FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUISE VICTORIA JEFFREDO; JOYCE
JEAN JEFFREDO-RYDER; CHRISTOPHER
L. RYDER; JEREMIAH S. RYDER;
JONATHAN B. RYDER; MICHAEL JOHN
JEFFREDO; ELIZABETH VILLINA
JEFFREDO; JACKIE M. MADARIAGA;
KELLY M. MADARIAGA; CARRIE
MADARIAGA; LAWRENCE
MADARIAGA; WILLIAM A. HARRIS; No. 08-55037
STERLING HARRIS; APRIL HARRIS;
MINDY PHENEGER; RICHARD HARRIS, D.C. No.
CV-07-01851-JFW
Petitioners-Appellants.
OPINION
v.
MARK A. MACARRO; DONNA
BARRON; MARC CALAC; MARK
LUKER; ANDREW MASIEL; RUSSELL
BUTCH MURPHY; KENNETH PEREZ;
DARLENE AZZARELLI; CHRISTINE
LUKER,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 17, 2009—Pasadena, California
Filed December 22, 2009
16699
16700 JEFFREDO v. MACARRO
Before: Johnnie B. Rawlinson and N. Randy Smith,
Circuit Judges, and Claudia Wilken,* District Judge.
Opinion by Judge N.R. Smith;
Dissent by Judge Wilken
*The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
16702 JEFFREDO v. MACARRO
COUNSEL
Paul Harris and Patrick Romero Guillory, Dolores Park Law
Offices, San Francisco, California, for the petitioners-
appellants.
JEFFREDO v. MACARRO 16703
Frank Lawrence, Holland and Knight, Los Angeles, Califor-
nia, and John Schumacher, Law Office of John Schumacher,
LLC, Riverton, Wyoming, for the respondents-appellees.
OPINION
N.R. SMITH, Circuit Judge:
The Pechanga Band of the Luiseño Mission Indians
(“Pechanga Tribe”) disenrolled a number of its members
(“Appellants”) for failing to prove their lineal descent as
members of the Tribe. Federal courts generally lack jurisdic-
tion to consider any appeal from the decision of an Indian
tribe to disenroll one of its members. See Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 72 n.32 (1978). Appellants, there-
fore, brought this petition for habeas corpus under 25 U.S.C.
§ 1303 of the Indian Civil Rights Act (“ICRA”), claiming
their disenrollment by members of the Pechanga Tribal Coun-
cil (“Appellees”) was tantamount to an unlawful detention.
Despite the novelty of this approach, we nonetheless lack sub-
ject matter jurisdiction to consider this claim, because Appel-
lants were not detained. We hold that Appellants cannot bring
their claims under § 1303 of the ICRA and therefore affirm
the district court.
I. BACKGROUND
The Pechanga Tribe is a federally-recognized Indian tribe.
72 Fed. Reg. 13648, 13650 (Mar. 22, 2007). The Tribe’s ulti-
mate governing authority consists of all of the adult members
of the Tribe (“General Membership”). On December 10,
1978, the Pechanga Tribe adopted the Constitution and
Bylaws of the Temecula Tribe of Luisenño Mission Indians
(“Pechanga Constitution”). Article II of the Pechanga Consti-
tution provides:
16704 JEFFREDO v. MACARRO
Membership is an enrolled member documented
in the Band’s Official Enrollment Book of 1979.
Qualifications for membership of the Temecula
Band of Luiseno Mission Indians Are:
A. Applicant must show proof of Lineal
Descent from original Pechanga
Temecula people.
B. Adopted people, family or Band, and
non-indians cannot be enrolled. Excep-
tion: People who were accepted in the
Indian Way prior to 1928 will be
accepted.
C. If you have ever been enrolled or rec-
ognized in any other reservation you
cannot enroll in Pechanga.
At issue here is subsection A, requiring applicants to “show
proof of Lineal Descent from original Pechanga Temecula
people.” In late 2002 and early 2003, the Enrollment Commit-
tee received information from its members alleging that a
number of Pechanga Tribe members were not lineal descen-
dants from the original Pechanga Temecula people. There-
fore, according to the Pechanga Enrollment Disenrollment
Procedure (“Disenrollment Procedures”), the Enrollment
Committee was required to investigate the allegations. Allega-
tions surrounded five lines of descent that allegedly did not
qualify for membership under the Pechanga Constitution.
According to the Pechanga Disenrollment Procedure, dis-
enrollment is “revoking a person’s membership when it is
found that they do not meet the requirements set forth on the
enrollment application which was approved by the Band.”
The Disenrollment Procedures were adopted by the Pechanga
Tribe (1) to correct mistakes that resulted when tribal mem-
JEFFREDO v. MACARRO 16705
bership was mistakenly approved and (2) to provide a process
that would allow a fair hearing in the disenrollment proce-
dure. Under the Disenrollment Procedures, the Enrollment
Committee initiates a disenrollment process against those
individuals allegedly not qualifying for membership in the
Tribe. After the initiation of the disenrollment, the Enrollment
Committee must provide adequate notice to the individual to
be summoned to a meeting with the Enrollment Committee.
The notice must (1) state that the Enrollment Committee has
questions regarding enrollment; (2) stress the importance of
responding to the notice; and (3) request a meeting within
thirty days of the response. Unless the person receiving the
notice chooses to be automatically disenrolled, he or she must
respond. Once a response has been filed, the Enrollment
Committee has thirty days to set up a meeting. At that meet-
ing, the Enrollment Committee must show specific evidence
that would prove that the documentation provided for enroll-
ment does not provide evidence of lineal descent. If the
Enrollment Committee provides such evidence, the individual
then is allowed another thirty days to provide additional infor-
mation to prove her or his lineal descent. If the individual pro-
vides further evidence that satisfies the Enrollment
Committee as to his lineal descent, the process is terminated
and the individual keeps his or her membership status. If the
Enrollment Committee is not satisfied by the further evidence,
the individual will be disenrolled and the Tribal Council is
notified of the disenrollment.
If the Enrollment Committee fails to follow these steps or
is negligent in any way, the individual can appeal to the Tribal
Council for a fair hearing. At the hearing, the Tribal Council
only reviews the documentation that the Enrollment Commit-
tee reviewed. The individual is not entitled to legal represen-
tation at the hearing. If the Tribal Council finds there was an
error, the Enrollment Committee reevaluates the case. If the
appeal is successful, membership will be reinstated.
Disenrollment does not mean that a person is banished
from the Pechanga Reservation. The Pechanga Tribe instead
16706 JEFFREDO v. MACARRO
has specific procedures for exclusion and eviction. These
requirements are set forth in the “Exclusion and Eviction Reg-
ulations.” Under these regulations, the Pechanga Tribe may
exclude and or evict someone from the reservation for: “(1)
[v]iolating tribal laws and ordinances; (2) [c]reating condi-
tions which pose a threat to the public health, safety and wel-
fare; (3) [e]ngaging in criminal activities on the Pechanga
Reservation, by finding of the Tribal Council, or being con-
victed of one or more felony crimes; (4) [b]eing declared a
public nuisance by the Tribal Council; [or] (5) [c]reating a
breach of peace, including but not limited to public drunken-
ness.” The Exclusion and Eviction Regulations dictate the
procedure to evict and or exclude and the opportunity to
appeal such exclusion.
In early 2003, the Enrollment Committee began addressing
the allegations regarding the lineal descent of certain mem-
bers. On March 7, 2003, the Tribal Council issued a Notice
and Order regarding pending disenrollment matters. The
Notice and Order mandated that the Enrollment Committee:
(1) “use a fair and impartial decision by a majority of the
committee to review a file;” (2) follow Robert’s Rules of
Order; and (3) allow adequate time for presentation of evi-
dence as required under the Disenrollment Procedures.
Sometime before March 7, 2003, the Enrollment Commit-
tee determined that the first three lines of descent met the
membership criteria. Then it turned its attention to those
members who claimed a lineal descent through Paulina
Hunter. On May 3, 2005, after a proper vote, the Enrollment
Committee summoned Appellants and notified them that the
Enrollment Committee believed there were grounds to initiate
the disenrollment process. The summonses (1) notified Appel-
lants that the disenrollment procedures had been initiated, (2)
requested additional information concerning Appellants’ fam-
ily history, and (3) notified Appellants that they were required
to set up an Initial Meeting with the Enrollment Committee.
JEFFREDO v. MACARRO 16707
Meetings were held with Appellants in June of 2005. The
Enrollment Committee provided Appellants with a copy of all
factual records in its possession. The Enrollment Committee
then stated its concerns about each Appellant’s claim of lineal
descent. Appellants were also notified that they had thirty
days to submit information supporting their claim of lineal
descent. The Enrollment Committee emphasized that Appel-
lants’ enrollment would be measured by the Pechanga Consti-
tution’s requirements. The Enrollment Committee advised
each Appellant that no decision would be made until it
received all additional information.
On March 16, 2006, the Enrollment Committee (after
review of the full record) disenrolled Appellants for failure to
prove lineal descent from an original Pechanga Temecula per-
son. Appellants exercised their right to appeal to the Tribal
Council. The Tribal Council held hearings on July 21, 2006.
The Tribal Council affirmed the Enrollment Committee,
“finding: (1) there was no evidence of unfair or partial treat-
ment of Appellants by the Enrollment Committee; (2) there
was no evidence of negligence in the handling of Appellants’
case by the Enrollment Committee; and (3) there was insuffi-
cient proof that the Enrollment Committee violated the disen-
rollment procedures.”
Appellants then filed a petition for writ of habeas corpus in
the Central District of California. Appellants moved for sum-
mary judgment. Appellees filed a Motion to Dismiss pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure,
claiming that the district court lacked subject matter jurisdic-
tion. The district court granted the Motion to Dismiss. Appel-
lants appealed the district court decision here.
II. DISCUSSION
We review de novo dismissals for lack of subject matter
jurisdiction under Rule 12(b)(1). Carson Harbor Village, Ltd.
v. City of Carson, 353 F.3d 824, 826 (9th Cir. 2004). We also
16708 JEFFREDO v. MACARRO
review de novo a district court’s denial of a petition for writ
of habeas corpus under the ICRA. Selam v. Warm Springs
Tribal Corr. Facility, 134 F.3d 948, 951 (9th Cir. 1998).
Ordinarily, federal courts lack jurisdiction to consider an
appeal from the decision of an Indian Tribe to disenroll one
of its members. “A tribe’s right to define its own membership
for tribal purposes has long been recognized as central to its
existence as an independent political community.” Santa
Clara Pueblo, 436 U.S. at 72 n.32; Cherokee Intermarriage
Cases, 203 U.S. 76 (1906)). Because of this precedent, Appel-
lants did not directly appeal the Tribe’s decision. Instead, they
petitioned the court for a writ of habeas corpus under the
ICRA to collaterally challenge their disenrollment.
[1] Section 1303 of the ICRA provides: “The privilege of
the writ of habeas corpus shall be available to any person, in
a court of the United States, to test the legality of his deten-
tion by order of an Indian tribe.” 25 U.S.C. § 1303. The term
“detention” in the statute must be interpreted similarly to the
“in custody” requirement in other habeas contexts. See Moore
v. Nelson, 270 F.3d 789, 791 (9th Cir. 2001) (“There is no
reason to conclude that the requirement of ‘detention’ set
forth in the Indian Civil Rights Act § 1303 is any more lenient
than the requirement of ‘custody’ set forth in the other habeas
statutes.” (citation omitted)). Therefore, an ICRA habeas peti-
tion is only proper when the petitioner is in custody. Id. at 791
(explaining the custody requirement).
We have also held that a litigant must first exhaust tribal
remedies before properly bringing a petition for writ of
habeas corpus. Selam, 134 F.3d at 953-54 (explaining the
exhaustion requirement); see also Felix S. Cohen, Handbook
of Federal Indian Law § 9.09 (2005). Even when a federal
court has jurisdiction over a claim, if the claim arises in
Indian country, the court is required to “stay its hand” until
the party has exhausted all available tribal remedies. Cohen,
Handbook of Federal Indian Law § 7.04 (citing Iowa Mut.
JEFFREDO v. MACARRO 16709
Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987); Nat’l Farmers
Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857 (1985)).
“The Supreme Court’s policy of nurturing tribal self-
government strongly discourages federal courts from assum-
ing jurisdiction over unexhausted claims.” Selam, 134 F.3d at
953. There is authority for relaxing the exhaustion require-
ment where the party can show that exhaustion would be
futile or that tribal courts offer no adequate remedy. See id.
at 954.
[2] Therefore, “all federal courts addressing the issue man-
date that two prerequisites be satisfied before they will hear
a habeas petition filed under the IRCA: [(1)] The petitioner
must be in custody, and [(2)] the petitioner must first exhaust
tribal remedies.”. Cohen, Handbook of Federal Indian Law
§ 9.09 & § 9.09 n.280. We therefore have no jurisdiction to
hear a petitioner’s claim for habeas corpus, unless both of
these conditions are met.
Additionally, some courts have further imposed a third
requirement; that the tribal proceeding be criminal and not civil.1
See, e.g., Quair v. Sisco (Quair I), 359 F. Supp. 2d 948, 963
(E.D. Cal. 2004); Alire v. Jackson, 65 F. Supp. 2d 1124, 1127
(D. Ore. 1999); see also Cohen, Handbook of Federal Indian
Law § 9.09 & § 9.09 n.280 (noting that while custody and
exhaustion are prerequisites before a reviewing court will hear
a habeas petition, courts have “struggled” with whether there
is also a third requirement that the proceedings be criminal in
nature).
1
The dissent focuses on the distinction between civil and criminal
actions. However, it should be noted that while this distinction has been
mentioned by some courts, the distinction is immaterial unless the first
two requirements of custody and exhaustion are met.
16710 JEFFREDO v. MACARRO
I. Appellants do not meet the requirements for the court
to have jurisdiction under § 1303 of the ICRA.
A. Appellants were not detained/in custody.
Appellants contend that (1) the actual restraints, (2) the
potential restraints, and (3) their lost Pechanga identity all
amount to detention under § 1303. We do not agree.
1.
[3] Appellants contend that, because they have been denied
access to the Senior Citizens’ Center, cannot go to the health
clinic, and their children can no longer go to tribal school,
they have been detained. We disagree. Jones v. Cunningham
requires that “conditions and restrictions . . . significantly
restrain [one’s] liberty” in order to invoke § 1303 jurisdiction.
371 U.S. 236, 243 (1963). The Second Circuit has said that
“under Jones and its progeny, a severe actual or potential
restraint on liberty” is necessary for jurisdiction under § 1303.
See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d
874, 880 (2d Cir. 1996); see also Shenandoah v. Halbritter,
275 F. Supp. 2d 279, 285 (N.D.N.Y. 2003) (quoting Poodry
for the same proposition). We agree with our colleagues on
the Second Circuit and hold that § 1303 does require “a
severe actual or potential restraint on liberty.” Poodry, 85
F.3d at 880.
[4] In the case before us, the denial of access to certain
facilities does not pose a severe actual or potential restraint on
the Appellants’ liberty. Appellants have not been banished
from the Reservation. Appellants have never been arrested,
imprisoned, fined, or otherwise held by the Tribe. Appellants
have not been evicted from their homes or suffered destruc-
tion of their property. No personal restraint (other than access
to these facilities) has been imposed on them as a result of the
Tribe’s actions. Their movements have not been restricted on
the Reservation. Faced with a similar situation, the Second
JEFFREDO v. MACARRO 16711
Circuit also determined that less severe restraints such as loss
of one’s “voice” in the community, loss of health insurance,
loss of access to tribal health and recreation facilities, loss of
quarterly distributions to tribal members, and loss of one’s
place on the membership roles of the tribe are simply “insuffi-
cient to bring plaintiffs within [the] ICRA’s habeas provi-
sion.” Shenandoah v. U.S. Dept. of Interior, 159 F.3d 708,
714 (2d Cir. 1998).
[5] Appellants contend that the denial of access to these
facilities is similar to the restraint found in Poodry. This is not
Poodry. In Poodry, the petitioners were convicted of treason,
sentenced to permanent banishment, and permanently lost any
and all rights afforded to tribal members. See Poodry, 85 F.3d
at 876, 878. Appellants have not been convicted, sentenced,
or permanently banished. We therefore hold that the limita-
tion of Appellants’ access to certain tribal facilities does not
amount to a “detention.”
2.
[6] Appellants contend that, as non-members of the tribe,
they are “under a continuing threat of banishment/exclusion.”
No court has held that such a threat is sufficient to satisfy the
detention requirement of § 1303.
The custody requirement of the habeas corpus statute
is designed to preserve the writ of habeas corpus as
a remedy for severe restraints on individual liberty.
Since habeas corpus is an extraordinary remedy
whose operation is to a large extent uninhibited by
traditional rules of finality and federalism, its use has
been limited to cases of special urgency, leaving
more conventional remedies for cases in which the
restraints on liberty are neither severe nor immedi-
ate.
Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Applying
this principle, we previously held that a threat of confinement
16712 JEFFREDO v. MACARRO
is not severe nor immediate enough to justify the remedy.
Edmunds v. Won Bae Chang, 509 F.2d 39, 40-41 (9th Cir.
1975) (denying habeas relief under 28 U.S.C. §§ 2241, 2254).
In Edmunds, the petitioner was subject to a court-imposed
fine, which could be enforced by jail time. Id. at 41. The court
held, however, that until confinement is imminent (like the
confinement in Hensley) there can be no justification for use
of the habeas corpus remedy. Id. We see no reason not to
analogize to the court’s construction of the criminal habeas
corpus provisions in Edmunds. Therefore, we hold that the
potential threat of future eviction is not sufficient to satisfy
the detention requirement of § 1303.
[7] Appellants argue that, while no such procedures have
been commenced to exclude or evict Appellants, there is a
potential that they could be excluded. Under the Pechanga
Non-Member Reservation Access and Rental Ordinance
“[a]ccess to and residency within the Reservation is a privi-
lege which may be granted or denied to an individual upon
proper authority of the Pechanga Band.” However, the
Pechanga Tribe enacted exclusion and eviction regulations
that provide a process for eviction in an effort to protect law
and order on the reservation and to provide uniform proce-
dures for exclusion and eviction. These provisions apply
equally to those who have been disenrolled and those who are
current members of the tribe. Appellants admit they have
never been subjected to exclusion or eviction proceedings.
3.
[8] Appellants lastly contend that disenrollment, stripping
them of their Pechanga citizenship, is enough of a significant
restraint on their liberty to constitute a detention. While we
have the most sympathy for this argument, we find no prece-
dent for the proposition that disenrollment alone is sufficient
to be considered detention under § 1303. While “Congress’
authority over Indian matters is extraordinarily broad . . . the
role of courts in adjusting relations between and among tribes
JEFFREDO v. MACARRO 16713
and their members [is] correspondingly restrained.” Santa
Clara Pueblo, 436 U.S. at 71. Further, “[a] tribe’s right to
define its own membership for tribal purposes has long been
recognized as central to its existence as an independent politi-
cal community.” Id. at 71 n.32 (citing Roff v. Burney, 168
U.S. 218 (1897); Cherokee Intermarriage Cases, 203 U.S.
76). Thus (while Congress may have authority in these mat-
ters) in the complete absence of precedent, we cannot involve
the courts in these disputes.
[9] This court is without jurisdiction to review direct
appeals of tribal decisions regarding disenrollment of mem-
bers. See, e.g., Santa Clara Pueblo, 436 U.S. at 72 n.32. We
cannot circumvent our lack of jurisdiction over these matters
by expanding the scope of the writ of habeas corpus to cover
the exact same subject matter. At its heart, this case is a chal-
lenge to disenrollment of certain members by the tribe. It is
precisely because we lack jurisdiction to hear such claims,
however, that Appellants brought this case under habeas cor-
pus law. We find (and the parties direct us to) nothing in the
legislative history of § 1303 that suggests the provision
should be interpreted to cover disenrollment proceedings.
Because nothing in the legislative history suggests otherwise
and because binding precedent precludes review of disenroll-
ment proceedings, we cannot accept Appellants’ invitation to
expand habeas corpus here.
[10] Appellants contend that their disenrollment is analo-
gous to denaturalization. We disagree. Appellants cite Trop v.
Dulles, 356 U.S. 86 (1958), to support this proposition. The
court in Trop was confronted with the constitutionality of a
statute that revoked United States citizenship for desertion
during wartime even if the desertion was unrelated to any
actions on behalf of a foreign government. Id. at 87-88. Trop
is inapposite to this case. In Trop the statute left the defendant
stateless. Id. Further, the statute was penal in nature. Id. at 96.
Here Appellants have not been left stateless, and nothing in
the record indicates that the disenrollment proceedings were
16714 JEFFREDO v. MACARRO
undertaken to punish Appellants. Therefore, Trop is not con-
trolling.
B. Appellants have not exhausted their tribal remedies
in order to challenge a claim of banishment from the
reservation.
[11] Appellants argue that disenrollment is similar to ban-
ishment and that they are therefore detained. However, Appel-
lants have not been banished from the Reservation. The
Pechanga Tribe has established uniform Exclusion and Evic-
tion Regulations for excluding both members and nonmem-
bers of the tribe from the Reservation. The Exclusion and
Eviction Regulations also establish the procedures for appeal-
ing one’s exclusion or eviction. Appellants have not been sub-
jected to any exclusion or eviction proceedings. Therefore,
they have not exhausted their claims for exclusion from the
reservation or denial of access to it as established in the
Exclusion and Eviction Regulations. We then lack jurisdiction
over any of Appellants’ claims for exclusion or eviction.
C. The tribal proceeding was not criminal in nature.
[12] Failure to establish detention alone is sufficient to
defeat a habeas claim under the ICRA. However, because
some courts also require that ICRA habeas petitions be crimi-
nal proceedings, we address that issue here. The parties agree
that the disenrollment procedures are civil proceedings.
Whether habeas relief under the ICRA can be granted in a
non-criminal context is an issue of first impression for this
court. Three of our circuit’s district courts have previously
determined that § 1303 only applies to tribal criminal pro-
ceedings. See Quair v. Sisco (Quair II), 2007 WL 1490571 *2
(E.D. Cal. May 21, 2007) (“Petitioners seeking relief under
§ 1303 must establish that . . . the proceeding at issue is crimi-
nal and not civil in nature . . . .” (citing Quair I, 359 F. Supp.
2d at 963)); Alire, 65 F. Supp. 2d at 1127 (“[W]rit of habeas
JEFFREDO v. MACARRO 16715
corpus available under section 1303 is limited to unlawful
detentions arising out of tribal criminal decisions.”). We agree.2
[13] The Supreme Court has found that habeas corpus
under the ICRA is “the exclusive means for federal-court
review of tribal criminal proceedings.” Santa Clara Pueblo,
436 U.S. at 67. The Court has also found that “Congress con-
sidered and rejected proposals for federal review of alleged
violations of the [ICRA] arising in a civil context.” Id. We
also note “[i]n interpreting § 1303, courts should hesitate to so
expand the meaning of ‘criminal’ and ‘detention’ such that, as
a practical matter, all tribal decisions affecting individual
members in important areas of their lives become subject to
review in federal court. Such a result would be inconsistent
with the principle of broad, unreviewable tribal sovereignty in
all but criminal cases involving physical detention.” Quair II,
2007 WL 1490571 at *2. Lastly, “[g]iven the often vast gulf
between tribal traditions and those with which federal courts
are more intimately familiar, the judiciary should not rush to
create causes of action that would intrude on these delicate
matters.” Santa Clara Pueblo, 436 U.S. at 72 n.32.
Appellants contend that both Poodry and Quair I, support
their position that habeas relief may be granted in a civil tribal
proceeding. We disagree. In Poodry, the petitioners were con-
victed of “treason” and sentenced to banishment from the
Tonawanda Reservation. Poodry, 85 F.3d at 876. The specific
2
The dissent points to Duncan v. Walker, 533 U.S. 167 (2001), to sup-
port the argument that habeas is available in civil actions as well as crimi-
nal. We disagree with this characterization of Duncan. Duncan was
addressing the one year limitation period under the Antiterrorism and
Effective Death Penalty Act (AEDPA). Specifically, the Court in Duncan
was discussing what qualifies as “in custody” under AEDPA for purposes
of calculating the time limit. Id. at 176. The Court noted that some civil
actions (such as commitment to a mental institution and civil contempt,
id.) “may” satisfy this custody requirement. Id. We do not find that this
precedent bears on whether ICRA habeas petitions are available in civil
proceedings.
16716 JEFFREDO v. MACARRO
issue addressed in Poodry was whether § 1303 of the ICRA
“allows a federal court to review punitive measures imposed
by a tribe upon its members, when those measures involve
‘banishment’ rather than imprisonment.” Id. at 879. The Sec-
ond Circuit performed an extensive analysis of whether a
habeas petition could be brought in a civil context, but ulti-
mately stated, “[b]ecause we conclude the tribal action in this
case indeed arose in a criminal context, we ultimately need
not resolve the question of whether habeas review is restricted
to cases involving a tribal criminal conviction.” Id. at 888.
Therefore, any citation to Poodry for the proposition that
habeas relief may be granted from a civil tribal proceeding
would be dicta.
The allegations in Quair I were also criminal in nature. In
fact, the court in Quair I found that petitioners seeking relief
under § 1303 must establish that the proceeding at issue is
criminal and not civil in nature. Quair I, 359 F. Supp. 2d at
963. These decisions, therefore, do not support Appellants’
position that habeas relief may be granted from a civil tribal
proceeding.
[14] Because the extension of habeas relief to civil pro-
ceedings would circumvent tribal sovereignty and cause
undue or precipitous interference with matters such as enroll-
ment, we hold that Appellants in this case are not eligible for
relief under the ICRA habeas provision.
III. CONCLUSION
The district court properly dismissed Appellants’ action for
lack of subject matter jurisdiction. Appellants were not
detained, did not exhaust their tribal remedies, and their dis-
enrollment was the result of a civil proceeding. Therefore,
they cannot get relief under the habeas corpus provision of the
ICRA. Accordingly, we affirm the district court.
AFFIRMED.
JEFFREDO v. MACARRO 16717
Wilken, District Judge, dissenting:
Appellants, enrolled members of the Pechanga Tribe since
birth, filed a petition for a writ of habeas corpus under the
Indian Civil Rights Act (ICRA) asserting that their Tribal
Council violated the due process, equal protection, free
speech and cruel and unusual punishment clauses of the Act
when it stripped them of membership in the Tribe. The mem-
bership criteria that the Tribal Council applied were not estab-
lished until 1979; the procedures it used to disenroll Tribal
members were not established until 1988; and the Tribal
Council did not begin disenrolling large numbers of members
until recently, when the Tribe’s casino profits became a major
source of revenue.1 Appellants allege that they are victims of
the Tribal Council’s greed associated with these casinos.
The majority concludes that the district court properly dis-
missed Appellants’ petition for lack of subject matter jurisdic-
tion because Appellants (1) were disenrolled as the result of
a civil proceeding, (2) were not detained and (3) did not
exhaust their Tribal remedies. I respectfully dissent and
address each argument in turn.
I. Indian Civil Rights Act (ICRA)
Beginning in 1961, through hearings and surveys, Congress
commenced an investigation into the conduct of tribal govern-
ments due to abuses that some tribal members were enduring
at the hands of tribal officials. In 1968, Congress enacted
ICRA to protect against such abuses by imposing restrictions
upon tribal governments similar to those contained in the Bill
of Rights and the Fourteenth Amendment. The enforcement
mechanism Congress provided was that of habeas corpus in
federal courts. 25 U.S.C. § 1303. A central purpose of ICRA
was to “ ‘secur[e] for the American Indian the broad constitu-
1
At the time of Appellants’ disenrollment, every adult Pechangan
received a per capita benefit of over $250,000 per year.
16718 JEFFREDO v. MACARRO
tional rights afforded to other Americans,’ and thereby to
‘protect individual Indians from arbitrary and unjust actions
of tribal governments.’ ” Santa Clara Pueblo v. Martinez, 436
U.S. 49, 61 (1978) (quoting S. Rep. No. 841, 90th Cong., 1st
Sess., 5-6 (1967)).
A. Criminal v. Civil Action
I disagree with the majority’s view that ICRA provides a
federal court with jurisdiction to review only a tribal criminal
proceeding, not a civil proceeding.
The plain language of § 1303 does not limit the court’s
habeas jurisdiction to criminal proceedings. Section 1303 sim-
ply provides, “The privilege of the writ of habeas corpus shall
be available to any person, in a court of the United States, to
test the legality of his detention by order of an Indian tribe.”
In other contexts, the writ of habeas corpus has historically
been available to contest detention resulting from civil pro-
ceedings. See, e.g., Rex v. Clarkson, 1 Strange 444 (K.B.
1720); Gegiow v. Uhl, 239 U.S. 3 (1915). The Supreme Court
has held more recently that nothing in the language of the pro-
visions for federal habeas relief for a person in custody pursu-
ant to the judgment of a state court “requires that the state
court judgment pursuant to which a person is in custody be a
criminal conviction.” Duncan v. Walker, 533 U.S. 167, 176
(2001). As examples, the Court cited cases in which federal
courts had applied federal habeas review to petitions brought
“to challenge the legality of a state court order of civil com-
mitment or a state court order of civil contempt.” Id. (citations
omitted). No reason appears in the plain language of § 1303
to give it a narrower “reach than [the] cognate statutory provi-
sions governing collateral review of state and federal
action[s].” Poodry v. Tonawanda Band of Seneca Indians, 85
F.3d 874, 879-80 (2d Cir. 1996), cert. denied, 519 U.S. 1041
(1996).
JEFFREDO v. MACARRO 16719
The majority relies primarily on Santa Clara Pueblo to
support its conclusion. In that case, a female member of the
Santa Clara Pueblo Indian tribe and her daughter brought suit
in federal court against the tribe and its governor seeking
declaratory and injunctive relief against enforcement of a
tribal ordinance denying membership in the tribe to children
of female members who marry outside the tribe, while extend-
ing membership to children of male members who marry out-
side the tribe.
The issue before the Supreme Court in Santa Clara was
whether ICRA could be “interpreted to impliedly authorize”
the “bringing of civil actions for declaratory or injunctive
relief to enforce its substantive provisions.” Santa Clara, 436
U.S. at 51-52. The Court held that it could not.
The Court stated that its holding was “strongly reinforced
by the specific legislative history underlying 25 U.S.C.
§ 1303.” Id. at 66. As part of its discussion of the legislative
history, the Court explained that Congress had considered and
rejected two proposals that would have allowed for “federal
review of alleged violations of the Act arising in a civil con-
text.” Id. at 67. One of these proposals would have required
the Attorney General to prosecute deprivations of an Indian’s
statutory or constitutional rights and the other would have
authorized the Department of the Interior to adjudicate civil
complaints concerning tribal actions. Id. at 67-68. While Con-
gress rejected these two particular proposals, the legislative
history does not indicate that it rejected any possible review
of civil proceedings, and the Court did not so find.
The Court also noted, “In settling on habeas corpus as the
exclusive means for federal-court review of tribal criminal
proceedings, Congress opted for a less intrusive mechanism
than had been initially proposed.” Id. at 67. (The initial pro-
posal to which the Court referred here would have allowed for
de novo review in federal court of all convictions in tribal
courts.) From the premise that habeas corpus is the exclusive
16720 JEFFREDO v. MACARRO
means for review of criminal proceedings, it does not follow
as a matter of logic or grammar that habeas corpus is a means
that can be used to review criminal proceedings exclusively.
In other words, the Court’s statement does not preclude
habeas review of civil proceedings that result in detention.
The Court held only that habeas corpus, and not any other
federal remedy such as a direct appeal, is provided by ICRA.
The Court had no need to, and did not, decide that habeas
jurisdiction under ICRA applied only to criminal proceedings.
Such is the Second Circuit’s interpretation of the case: “Santa
Clara Pueblo obviously does not speak directly to the scope
of Title I’s habeas provision, which was a matter not raised
in that case.” Poodry, 85 F.3d at 887. In Poodry, the Second
Circuit also found that “it is not possible to draw from
[ICRA’s] legislative history a definitive conclusion as to
whether Congress intended that habeas review be restricted to
criminal convictions, or whether other circumstances of
‘detention’ by a tribal court order could trigger habeas
review.” Id. at 888.
The fact that the challenged proceedings in the case before
us were civil, not criminal, does not, in my view, bar the dis-
trict court from hearing the matter under § 1303.
B. Detention
“Detention” by order of an Indian tribe is the sole jurisdic-
tional prerequisite for federal habeas review. The requirement
in § 1303 that an individual be “detained” is akin to the “in
custody” and “detention” requirement in other habeas statutes.
Poodry, 85 F.3d at 891 (“Congress appears to use the terms
‘detention’ and ‘custody’ interchangeably in the habeas con-
text.”). The habeas statutes analogous to § 1303 refer to “de-
tention” as well as “in custody” throughout. See 28 U.S.C.
§§ 2242, 2243, 2245, 2249, 2253 and 2255. “There is no rea-
son to conclude that the requirement of ‘detention’ set forth
in the Indian Civil Rights Act § 1303 is any more lenient than
the requirement of ‘custody’ set forth in the other federal
JEFFREDO v. MACARRO 16721
habeas statutes.” Moore v. Nelson, 270 F.3d 789, 791 (9th Cir.
2001). Nor is there any reason to conclude that the require-
ment of “detention” in § 1303 is any more strict than the
requirement of “custody” or “detention” in the other federal
habeas statutes.
The custody or detention requirement may be met if the
habeas petitioner is not physically confined. Jones v. Cun-
ningham, 371 U.S. 236, 239-40 (1963); see Dow v. Court of
the First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir.
1993) (per curiam) (holding that a requirement to attend four-
teen hours of alcohol rehabilitation constituted custody;
requiring petitioner’s physical presence at a particular place
“significantly restrain[ed] [his] liberty to do those things
which free persons in the United States are entitled to do”),
cert. denied, 510 U.S. 1110 (1994).
This requirement is designed to limit the availability of
habeas review “to cases of special urgency, leaving more con-
ventional remedies for cases in which the restraints on liberty
are neither severe nor immediate.” Hensley v. Mun. Court,
411 U.S. 345, 351 (1973). Therefore, the inquiry into whether
a petitioner has satisfied the jurisdictional prerequisites for
habeas review requires a court to judge the “severity” of an
actual or potential restraint on liberty.
The combination of the current and potential restrictions
placed upon Appellants and the loss of their life-long
Pechanga citizenship constitutes a severe restraint on their lib-
erty. The majority analyzes each of these grounds separately,
instead of collectively, and determines that none amounts to
a detention. I respectfully disagree with this approach.
When Tribal members are disenrolled, they become “non-
members” of the Tribe and lose all rights associated with
being a Pechanga citizen. One of those rights is access to the
Pechanga Reservation. The Pechanga Non-Member Reserva-
tion Access and Rental Ordinance (Reservation Access Ordi-
16722 JEFFREDO v. MACARRO
nance) states, “The custom, tradition and practice of the
Pechanga Band has always been, and remains, that the
Pechanga Reservation is closed to non-members. Access to
and residency within the Pechanga Reservation is a privilege
which may be granted or denied to an individual upon proper
authority of the Pechanga Band.”
Elsewhere, the Reservation Access Ordinance provides,
“Use by non-members of roads within the Pechanga Reserva-
tion is . . . by permission of the Tribal Council and is subject
to revocation at any time and for any reason.” The Ordinance
establishes that a non-member may enter the Pechanga Reser-
vation only upon invitation by the Tribal Council or by an
enrolled member of the Pechanga Band. Otherwise, access to
the Pechanga Reservation by non-members is prohibited.
Since being disenrolled, Appellants have been excluded
from the school, the health clinic and the senior citizens’
facilities on the Reservation. Some of the Appellants live on
the Reservation. Although they may enter the Reservation and
travel to their homes, any Tribal Ranger can take away that
liberty at any moment.
Pechanga Tribal Rangers have the authority and discretion
summarily to exclude non-members from the Pechanga Res-
ervation for up to seven days for any of the following reasons:
(1) suspicion that a non-member has committed a
violation of any applicable tribal, state or fed-
eral law within the Pechanga Reservation;
(2) suspicion that a non-member is a danger to
himself, herself or others;
(3) a finding by a Tribal Ranger that a non-member
is a public nuisance; or
(4) any behavior which is suspicious or not consis-
tent with a legitimate visit either to a tribal
JEFFREDO v. MACARRO 16723
enterprise for business or patronage purposes,
or to the home of a resident of the Pechanga
Indian Reservation by invitation and in compli-
ance with the Non-Member Reservation Access
and Rental Ordinance.
Thus, a parent could, without warning, be barred from
going home for a week by a Tribal Ranger who observes “any
behavior that is suspicious.” That Appellants have not been
removed thus far does not render them free or unrestrained.
Appellants may currently be able to “come and go” as they
please, cf. Hensley, 411 U.S. at 351, but their current status
as non-members living on the Pechanga Reservation means
that at any point they may be compelled to “go,” and be no
longer welcome to “come.” That is a severe restraint to which
the members of the Pechanga Band are not generally subject.
See id.
The majority analogizes the severe restraint Appellants
confront with that in a case involving a twenty-five dollar
fine. Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir.
1975). In that case, the court held that Edmunds was not sub-
jected to a severe restraint because there was “no provision in
the sentence for his confinement in the case of non-payment.”
Id. The court generally observed that “a threat of incarceration
is implicit in any court-imposed fine, for jail is one of the
sanctions by which courts enforce their judgments and
orders.” However, in the circumstances of Edmunds, “con-
finement [was] no more than a speculative possibility — ‘the
unfolding of events may render the entire controversy aca-
demic.’ ” Id. (quoting Hensley, 411 U.S. at 352). Analogizing
the current and potential penalties involved in this case with
a twenty-five dollar fine and the speculative possibility that
failure to pay the fine may result in judicial proceedings lead-
ing to confinement trivializes the severity of Appellants’ situ-
ation.
Furthermore, Appellants have been stripped of their life-
long Pechanga citizenship, which by itself constitutes a severe
16724 JEFFREDO v. MACARRO
deprivation. A deprivation of citizenship is “an extraordinarily
severe penalty” with consequences that “may be more grave
than consequences that flow from conviction for crimes.”
Klapprott v. United States, 335 U.S. 601, 611-12 (1949). The
Supreme Court has found the penalty of denationalization of
a natural-born citizen, sought to be imposed after conviction
for military desertion, to be unconstitutional. See Trop v. Dul-
les, 356 U.S. 86, 104 (1958).
It is a form of punishment more primitive than tor-
ture, for it destroys for the individual the political
existence that was centuries in the development.
....
This punishment is offensive to cardinal principles
for which the Constitution stands. It subjects the
individual to a fate of ever-increasing fear and dis-
tress. He knows not what discriminations may be
established against him, what proscriptions may be
directed against him, and when and for what cause
his existence in his native land may be terminated.
He may be subject to banishment, a fate universally
decried by civilized people. . . . It is no answer to
suggest that all the disastrous consequences of this
fate may not be brought to bear on a stateless person.
The threat makes the punishment obnoxious.
Id. at 101-102. A “deprivation of citizenship does more than
merely restrict one’s freedom to go or remain where others
have the right to be: it often works a destruction of one’s
social, cultural, and political existence.” Poodry, 85 F.3d at
897. Although with disenrollment Appellants retain their
United States citizenship and will not be physically stateless,
they have been stripped of their life-long citizenship and iden-
tity as Pechagans. This is more than just a loss of a label, it
is a loss of a political, ethnic, racial and social association.
William C. Canby, Jr., American Indian Law in a Nut Shell
JEFFREDO v. MACARRO 16725
§§ III.B-C (5th ed. 2009); Felix S. Cohen, Handbook of Fed-
eral Indian Law § 3.03 (2005). Such a loss constitutes a
restraint on liberty that, combined with the actual and poten-
tial restraints described above, satisfies the detention require-
ment under § 1303, in my opinion.
C. Exhaustion
The majority concludes that we lack jurisdiction over any
claims for exclusion or eviction because Appellants have not
exhausted their Tribal remedies for such claims or demon-
strated that exhaustion would be futile. But Appellants are not
asserting jurisdiction based on any exclusion or eviction from
the Pechanga Reservation. Rather, Appellants’ claim of juris-
diction is based on the restraints on their liberty arising from
being disenrolled and threatened with exclusion. Notably, the
parties agree that Appellants have completed the internal
Tribal appeal process for challenging disenrollment. Further,
there does not appear to be any remedy available to Appel-
lants if they were to be given a seven-day exclusion without
warning. Appellants have exhausted their claims and their
habeas petition is ripe for adjudication.
II. Conclusion
When viewed together, the act of stripping Appellants’
Tribal citizenship and the current and potential restrictions
placed upon Appellants constitute a severe restraint on their
liberty. Therefore, Appellants have been detained within the
meaning of § 1303. Accordingly, I would reverse and remand
to the district court to hear their petition for a writ of habeas
corpus on its merits.