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 No. 08-55037
MADARIAGA, WILLIAM A. HARRIS, D.C. No.
STERLING HARRIS, APRIL HARRIS,
MINDY PHENEGER, RICHARD HARRIS; CV-07-01851-JFW
Petitioners-Appellants, ORDER AND
AMENDED
v. OPINION
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
Amended Opinion Filed March 22, 2010
4641
4642 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.
4644 JEFFREDO v. MACARRO
COUNSEL
Paul Harris and Patrick Romero Guillory, Dolores Park Law
Offices, San Francisco, California, for the petitioners-
appellants.
Frank Lawrence, Holland and Knight, Los Angeles, Califor-
nia, and John Schumacher, Law Office of John Schumacher,
LLC, Riverton, Wyoming, for the respondents-appellees.
JEFFREDO v. MACARRO 4645
ORDER
The opinion and dissent filed on December 22, 2009, and
reported at 590 F.3d 751 are hereby amended. An amended
opinion and dissent are filed concurrently with this order.
No petition for rehearing or rehearing en banc was filed
within the original time period, and that time period has now
expired. No subsequent petitions for rehearing or rehearing en
banc shall be filed.
IT IS SO ORDERED.
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 and despite the potential
injustice of this situation, we nonetheless lack subject matter
jurisdiction to consider this claim, because Appellants were
not detained. Therefore, Appellants cannot bring their claims
under § 1303 of the ICRA and we must affirm the district
court. Only Congress can aid these appellants.
I. BACKGROUND
The Pechanga Tribe is a federally-recognized Indian tribe.
72 Fed. Reg. 13648, 13650 (Mar. 22, 2007). The Tribe’s ulti-
4646 JEFFREDO v. MACARRO
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 Luiseño Mission Indians
(“Pechanga Constitution”). Article II of the Pechanga Consti-
tution provides:
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.
JEFFREDO v. MACARRO 4647
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-
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-
4648 JEFFREDO v. MACARRO
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
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
JEFFREDO v. MACARRO 4649
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.
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-
4650 JEFFREDO v. MACARRO
tion. The district court granted the Motion to Dismiss. Appel-
lants appealed the district court decision.
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
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)). Further, “[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 del-
icate matters.” Santa Clara Pueblo, 436 U.S. at 72 n.32.
JEFFREDO v. MACARRO 4651
Therefore, an ICRA habeas petition 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.
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. Any expansion of this jurisdiction
must come from Congress, not by decision of this court.
4652 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 4653
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
4654 JEFFREDO v. MACARRO
is not severe nor immediate enough to justify the writ.
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 4655
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). We have also noted that “[a]n Indian tribe has the power
to define membership as it chooses, subject to the plenary
power of Congress.” Williams v. Gover, 490 F.3d 785, 789
(9th Cir. 2007). Thus (while Congress may have authority in
these matters) in the complete absence of precedent, we can-
not 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
exactly the same subject matter. At its heart, this case is a
challenge 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
4656 JEFFREDO v. MACARRO
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
undertaken to punish Appellants. Therefore, Trop is not con-
trolling.
We do not wish to minimize the impact of the Tribe’s
membership decision on Appellants. Indeed, we recognize
that Appellants have suffered a significant loss. Nevertheless,
such loss is simply not equivalent to detention. This is not the
first time that we have noted that we do not have jurisdiction
to review membership decisions, even when the results of
such decisions appear unfair. In Lewis v. Norton, 424 F.3d
959 (9th Cir. 2005), the plaintiff-appellants likewise sought
judicial review of a tribal membership decision. We stated,
“[a]lthough [plaintiffs’] claim to membership appears to be a
strong one, as their father is a recognized member of the tribe,
their claim cannot survive the double jurisdictional whammy
of sovereign immunity and lack of federal court jurisdiction
to intervene in tribal membership disputes.” Id. at 960. In
Lewis we further noted that our jurisdiction in these matters
may prevent us from intervening even when fairness may
seem to dictate otherwise. There we said, “[w]e agree with the
district court’s conclusion that this case is deeply troubling on
the level of fundamental substantive justice. Nevertheless, we
are not in a position to modify well-settled doctrines of sover-
eign immunity. This is a matter in the hands of a higher
authority than our court.” Id. at 963.
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-
JEFFREDO v. MACARRO 4657
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 thus lack jurisdiction
over any of Appellants’ claims for exclusion or eviction.
III. CONCLUSION
[12] The district court properly dismissed Appellants’
action for lack of subject matter jurisdiction. Appellants were
not detained and did not exhaust their tribal remedies. There-
fore, they cannot get relief under the habeas corpus provision
of the ICRA. Accordingly, we affirm the district court.
AFFIRMED
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.
1
At the time of Appellants’ disenrollment, every adult Pechangan
received a per capita benefit of over $250,000 per year.
4658 JEFFREDO v. MACARRO
The majority concludes that the district court properly dis-
missed Appellants’ petition for lack of subject matter jurisdic-
tion because Appellants (1) were not detained and (2) 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. The statute at issue, 25 U.S.C. § 1303, pro-
vides, “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.” A
central purpose of ICRA was to “ ‘secur[e] for the American
Indian the broad constitutional rights afforded to other Ameri-
cans,’ and thereby to ‘protect individual Indians from arbi-
trary 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. 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 v. Tonawanda Band of Seneca Indians, 85 F.3d 874,
891 (2d Cir. 1996), cert. denied, 519 U.S. 1041 (1996)
(“Congress appears to use the terms ‘detention’ and ‘custody’
interchangeably in the habeas context.”). The habeas statutes
analogous to § 1303 refer to “detention” as well as “in custo-
JEFFREDO v. MACARRO 4659
dy” throughout. See 28 U.S.C. §§ 2242, 2243, 2245, 2249,
2253 and 2255. “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 ‘cus-
tody’ set forth in the other federal habeas statutes.” Moore v.
Nelson, 270 F.3d 789, 791 (9th Cir. 2001). Nor is there any
reason to conclude that the requirement 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).
The detention requirement is designed to limit the availabil-
ity of habeas review “to cases of special urgency, leaving
more conventional 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 prerequi-
site 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 constitute 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
4660 JEFFREDO v. MACARRO
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-
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
JEFFREDO v. MACARRO 4661
(4) any behavior which is suspicious or not consis-
tent with a legitimate visit either to a tribal
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.
4662 JEFFREDO v. MACARRO
Furthermore, Appellants have been stripped of their life-
long Pechanga citizenship, which by itself constitutes a severe
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
JEFFREDO v. MACARRO 4663
is a loss of a political, ethnic, racial and social association.
William C. Canby, Jr., American Indian Law in a Nut Shell
§§ 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.
The majority, in dicta, implies that we may not hear Appel-
lants’ ICRA claims because we generally do not have juris-
diction to review tribal membership decisions. Here,
Appellants are not directly challenging the merits of their dis-
enrollment, i.e. whether they are direct descendants from the
original Pechanga Temecula people. Rather, Appellants chal-
lenge under ICRA the manner of their disenrollment. The for-
mer would be barred by tribal sovereign immunity, whereas
the latter is not.
B. 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
4664 JEFFREDO v. MACARRO
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.