dissenting:
In many respects, I concur in the thoughtful and learned majority opinion. I thus agree that the Tonawanda Band is not a proper respondent, Maj. Op. at 899; that the writ afforded in section 1303 was intended by Congress to have no broader reach than the cognate statutory provisions governing collateral review of state and federal action, id. at 893; and that the writ therefore cannot issue unless petitioners show a severe actual or potential restraint on liberty, id. at 894. I respectfully dissent because I do not think these respondents have demonstrated a severe restraint on any liberty that the writ of habeas corpus protects. That conclusion would obviate any need to decide whether the order of banishment is an exercise of civil law or criminal law, or something else; still, I am bound to say that I view the conclusion in the majority opinion — that the banishment of these petitioners is a criminal penalty — as dubious.
For reasons adduced in the majority opinion, the “detention” required to support habeas corpus jurisdiction under section 1303 in no way differs from the general understanding of the term “custody” in other habeas corpus statutes. While I have found no controlling (or persuasive) cases that discuss whether banishment constitutes custody for purposes of habeas corpus, the Supreme Court has articulated some general principles:
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 ... uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for eases in which the restraints on liberty are neither severe nor immediate.
Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1575, 36 L.Ed.2d 294 *902(1973). While courts should not “suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements,” id. at 350, 93 S.Ct. at 1574, the writ should not issue unless a court discerns a “severe restraint[ ] on individual liberty,” id. at 351, 93 S.Ct. at 1574. I conclude that, although the banishment of petitioners from the Tonawanda Band is a harsh measure, imposed here with small provocation, it cannot be deemed a restraint that habeas corpus can reach. Furthermore, I conclude that issuance of the writ here would impinge upon the tribe’s power to define its membership and thereby disserves the ICRA goal of promoting tribal self-government.
A. Petitioners’ Rights.
Petitioners claim that their liberty is restrained because the tribe threatens to remove them involuntarily from the tribe, their land, homes, and businesses, and to bar their return. Putting aside whether the threat of banishment is distinguishable from actual banishment, no one can discount the drastic impacts (cultural, economic, and social) that banishment and exclusion would have on one who has been a member of the Tonawanda Band. However, I think it is an error to measure the severity of the restraint by reference to the liberties enjoyed by the Tonawanda tribal community. There is of course no doubt that the petitioners, if banished, will lose all the rights conferred by the tribal sovereignty. But the proper inquiry is whether the petitioners, if banished, will suffer a severe impairment of the liberties that are enjoyed by the American public at large.
The applicable principle is that habeas corpus responds to restraints that are “not shared by the public generally.” Hensley, 411 U.S. at 351, 93 S.Ct. at 1575 (quoting Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963)). Section 1303 is no different in this respect. It grants “any person” the right to challenge through habeas corpus any detention by an Indian tribe. The term “any person,” which obviously includes members of Indian tribes, applies just as clearly to non-tribal Americans and to anyone else in the country. Since “any person” may seek relief from a severe restraint on liberty imposed by an Indian tribe, it follows that the restraints contemplated by the statute, and remediable by a writ of habeas corpus, are restraints on the liberties ordinarily enjoyed by “any person” and not solely or even especially by members of the Indian tribes.
What restraints will be brought to bear upon the petitioners after they are banished from the Tonawanda Band and its reservation? What liberties will they thereby lose? Natural bom members of the Tonawanda Band are citizens of the United States. 8 U.S.C. § 1401(b). Once they exit the reservation, petitioners will be free to settle and travel where they wish, and to come and go as they please, in the same way and to the same extent as any other person in the United States. Although that freedom does not confer a right to settle or trespass on private lands, or on lands reserved to any Indian nation, the petitioners’ constitutional rights will in no way be diminished after banishment; indeed, they will then enjoy important constitutional rights that are not guaranteed by the ICRA on the Tonawanda reservation. For example, a tribe may establish a religion, need not provide jury trials in civil cases, need not appoint counsel to indigent criminal defendants, and is not required to initiate criminal prosecutions by grand jury indictment. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 63 & n. 14, 98 S.Ct. 1670, 1679 & n. 14, 56 L.Ed.2d 106 (1978) (discussing ICRA’s selective incorporation of provisions of the Bill of Rights).
The petitioners analogize banishment to alien exclusion, deportation, denaturalization or denationalization, and rely upon lines of cases holding that those deprivations support issuance of the writ. Banishment from an Indian nation differs in some critical respects from the loss of rights faced by persons facing shipment abroad or a loss of citizenship that prefigures exile. One who is excluded or deported from the United States may go to a native and congenial country that guarantees every essential liberty; nevertheless, that departure means the loss of the liberties enjoyed by the general populace of the United States, and it is that loss of rights that conceptually justifies habeas relief *903from our courts. This view is entirely consistent with the observation in Jones v. Cunningham that “habeas corpus is available to an alien seeking entry into the United States, although in those cases each alien was free to go anywhere else in the world.” 371 U.S. at 239, 83 S.Ct. at 375 (footnote omitted).
There are additional reasons why the habeas rights of excluded aliens offer no analogy useful to petitioners. First, an excluded alien’s right to invoke habeas corpus is a specific statutory right conferred by Congress. See 8 U.S.C. § 1105a(b) (“[A]ny alien against whom a final order of exclusion has been made ... may obtain judicial review of such order by habeas corpus proceedings....”). Second, the Supreme Court in Brownell v. We Shung, 352 U.S. 180, 183, 77 S.Ct. 252, 255, 1 L.Ed.2d 225 (1956) — one of the precedents cited in Jones — confirmed that any excluded alien seeking habeas corpus must still “be detained or at the least be in technical custody.” Id. The excluded alien cases therefore do not expand the meaning of the term “custody” for purposes of habeas corpus jurisdiction; they merely affirm the well settled rule that “[wjhatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950)).
Petitioners’ reliance on deportation eases is misplaced for all the same reasons. Deportation separates the individual from the rights and liberties enjoyed by the American populace at large. The availability of habeas corpus relief in deportation cases is also a matter of statutory law. 8 U.S.C. 1105a(a)(10) (“[A]ny alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.”). Moreover, in creating this remedy, Congress provided (without elaboration) that the petitioning alien must be “in custody” to invoke section 1105a(a)(10). See id. The deportation statute therefore does not weaken or modify the usual requisite of habeas corpus jurisprudence that the petitioner show a restraint on liberty.
Similarly, the Supreme Court has held that denationalization violates the Eighth Amendment because it strips an individual of “the right to have rights” and raises the threat of banishment from all of the United States. Trop v. Dulles, 356 U.S. 86, 101-02, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Banishment is therefore a severe restraint on the liberty of one who is banished from the United States or excluded from some place within the United States that the general population has the right to be. Doubtless, petitioners could plausibly claim a severe restraint on liberty if they were facing banishment to the Tonawanda reservation.1 But I do not see how banishment from the Indian reservation supports habeas relief. In terms of our habeas corpus jurisdiction, banishment to the United States is a meaningless concept.
The majority opinion points out that the petitioners are complaining about several forms of restraint, of which banishment is only one, and enumerates them. In my view, these do not add up to the requisite severe restraint on liberty. Thus, the respondents “attempted (without success) to take petitioners ... into custody and eject them.” Maj. Op. at 878. From this allegation it appears that the petitioners have not been taken into custody, and that the effort to lay hands on them was for the sole purpose of releasing them outside the reservation, not to detain them on it. Other alleged deprivations — the “continue[d][ ] harassfment] and assault,” id. at 878, the “stoning” of petitioner Peters, id., the “deni[al of] electrical service to their homes and businesses,” id. at 878, 895, the instruction that petitioners’ names be removed from the list of eligible clients of the reservation clinic, id. at 878, and a continuing *904“supervision” (which seems to be no more than a hostile observation), id. at 895 — do not amount to restraints of the person, and cannot very well be remedied by a writ of habeas corpus. Certainly, the writ of habeas corpus is an ill-adapted device for regulating utility services or clinic privileges.
The order of banishment itself, set forth in the majority opinion, recites the particular deprivations allegedly imposed. See Maj. Op. at 878. In addition to banishment, the petitioners’ “lands will become the responsibility of the Council of Chiefs,” petitioners will suffer loss of their tribal names, citizenship, and rights of membership, and their names will be removed from the tribal rolls. Do any of these deprivations justify issuance of the writ?
It was undisputed at oral argument that the lands at issue are tribal lands allotted by the tribe but not owned by the individual members. It has long been settled that
the powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members, that occupancy of tribal land does not create any vested rights in the occupant as against the tribe, and that the extent of any individual’s interest in tribal property is subject to such limitations as the tribe may see fit to impose.
Felix S. Cohen, Handbook of Federal Indian Law 144 (1941) (footnotes omitted). See Wilson v. Omaha Indian Tribe, 442 U.S. 653, 665, 99 S.Ct. 2529, 2536-37, 61 L.Ed.2d 153 (1979) (“Whatever title [in tribal land] the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.” (internal quotation marks and citations omitted)); Crowe v. Eastern Band of Cherokee Indians, Inc., 506 F.2d 1231, 1235 (4th Cir.1974) (“There can be no individual ownership of tribal land and the individual’s right of use depends upon tribal law or custom.”); Northern Cheyenne Tribe v. Northern Cheyenne Defendant Class of Allottees, Heirs, & Devisees, 505 F.2d 268, 273 (9th Cir.1974) (“[S]o long as the land remains tribal in character the individual Indian has no vested right, as against the tribe, to any specific part of the tribal property.”), rev’d on other grounds, 425 U.S. 649, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976).
Off the reservation, each petitioner has the right to use his tribal name or any other name he wishes (other than one selected to defraud creditors), and the tribe’s banishment order cannot prevent him from doing so. On the reservation, the other members may refuse to utter the petitioners’ tribal names, and a writ of habeas corpus (assuming jurisdiction to issue one) cannot force them to use those names. As to citizenship and rights of membership, I believe that the tribe has sovereign power to determine its membership, for the reasons stated in section B, infra. And as to the tribal rolls: to the extent that the rolls merely reflect the tribe’s own membership decisions, the addition or removal of names seems to be a function of the tribe’s undoubted power to make that determination. To the extent that rolls are maintained to determine entitlement to federal payments or federally controlled funds, the rolls are maintained by the Secretary of the Interior rather than by the tribe. 25 U.S.C. § 163.
B. Tribal Powers.
I therefore conclude that the only restriction claimed by petitioners that could remotely be deemed to support habeas relief is the deprivation of their right to live in and among the Tonawanda nation (and the threat that this exclusion will be visited upon them). However, Tonawanda membership (and the concomitant right to dwell on the Tonawandas’ lands) is emphatically not a right “shared by the public generally.” As an Indian tribe, the Tonawanda Band retains “those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of [its] dependent status.” United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). It is well settled that a tribe may physically exclude non-members entirely or condition their presence on its reservation. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 2385-86, 76 L.Ed.2d 611 (1983). Petitioners point to no provision in any treaty or statute that evidences a con*905gressional intent to limit the Tonawanda Band’s power to exclude or expel.
Given this power of the Indian nations to exclude non-members, the decisive question on this appeal becomes whether the Tonawanda Band had the power to strip petitioners of their tribal membership. The Supreme Court has not decided that question, but I think that it has pointed the way: “[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 v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978). See also Wheeler, 435 U.S. at 322 n. 18, 98 S.Ct. at 1086 n. 18 (“[Ujnless limited by treaty or statute, a tribe has the power to determine tribe membership....”); Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir.1957) (“[I]n absence of express legislation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity.... It appears that for purposes of which the tribe has complete control, the tribe conclusively determines membership ....”), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6 (N.D.N.Y.1989) (observing that “[tjhe Supreme Court has held that controversies surrounding membership in an Indian Nation are reserved to the tribe’s discretion, and therefore do not present a question of federal law,” and dismissing suit to enjoin plaintiffs exclusion from an Indian tribe for lack of subject matter jurisdiction). The order of banishment in this ease is harsh and disturbing, but a tribe’s prerogative to define itself as a “culturally and politically distinct entity,” Santa Clara Pueblo, 436 U.S. at 72, 98 S.Ct. at 1684, is a “delicate” matter in which federal courts should not lightly intrude, id. at 72 n. 32, 98 S.Ct. at 1684 n. 32, notwithstanding harsh consequences.
There is every reason to think that this tribal prerogative extends to the expulsion of existing tribal members. In Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897), a case cited in Santa Clara Pueblo as well as in Wheeler, a United States citizen whose wife had become a citizen of the Chickasaw Nation through Chickasaw legislation and was later stripped of her citizenship by a subsequent enactment, sued a representative of the tribe on a property-rights claim. The Court, which held that there was federal jurisdiction over the suit, observed: “[t]he Chickasaw legislature, by the second act, ... not only repealed the prior act, but canceled the rights of citizenship granted thereby, and further directed the governor to remove the parties named therein and their descendents beyond the limits of the nation.” Roff, 168 U.S. at 222, 18 S.Ct. at 62. In a word, they were banished. The Court stated:
The citizenship which the Chickasaw legislature could confer it could withdraw. The only restriction on the power of the Chickasaw Nation to legislate in respect to its internal affairs is that such legislation shall not conflict with the constitution or laws of the United States, and we know of no provision of such constitution or laws which would be set at naught by the action of a political community like this in withdrawing privileges of membership in the community once conferred.
Id.
C. Conclusion.
It cannot be said that the American populace at large, which has no right to settle on lands reserved to the Tonawanda, lives under a restraint that justifies issuance of a writ. It follows that the exclusion or “banishment” of wow-members from the Indian nations is not a restraint of their liberty. No different rule can be applied to members of the tribe without abridging the tribe’s sovereign power (one of the few appreciable sovereign powers remaining) to decide who is a member and who is not. This limitation on our habeas corpus jurisdiction under section 1303 serves the “[t]wo distinct and competing purposes” of the ICRA. See Santa Clara Pueblo, 436 U.S. at 62, 98 S.Ct. at 1678. On the one hand, the statute seeks to strengthen the rights of individual members against tribal power; on the other hand, it promotes the “well-established federal policy of furthering Indian self-government.” Id. (internal quotation marks and citation omitted). While *906sections 1302 and 1303 grant substantive rights and afford a habeas corpus remedy, other provisions of the ICRA limit state jurisdiction over Indian matters, strengthen tribal courts, and minimize interference in tribal litigation by the Federal Bureau of Indian Affairs. Id. at 63-64, 98 S.Ct. at 1679-80. The circumscribed remedial power of the federal courts preserves that balance. “Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal government.” Id. at 67, 98 S.Ct. at 1682. If we broaden the meaning of “detention” in section 1303 to include tribal banishment, the result will be a gross interference with tribal sovereignty — the abrogation of its ability to define itself — accomplished by means of a statute intended to promote tribal self-government.
Moreover, the writ that is sought cannot remedy many of the wrongs alleged. Tribal property and the quiet enjoyment of it cannot be allotted by writ; nor can the writ restore the petitioners’ roles in tribal affairs or their utility service, allay the hostility of their fellows, or force people to address the petitioners by their tribal names. If we had the power, by a writ of habeas corpus, to restore the petitioners to their culture and birthright, we still could not do it without dismantling the vestiges of tribal sovereignty that Congress requires us to preserve.
I agree with my colleagues that this case raises issues of cultural and political accommodation that may justify consideration of this question by Congress. Until Congress acts, however, I agree with Judge Arcara that subject matter jurisdiction is lacking, because (i) section 1303 is the sole source of potential jurisdiction; (ii) the threat of petitioners’ banishment from the Tonawanda Band is not “detention” within the meaning of section 1303, and (iii) petitioners’ other grounds urged for grant of the writ, such as denial of health benefits and electric service, do not support jurisdiction.
. In United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695 (C.C.Neb.1879), persons who had withdrawn from the Ponca tribe, severing their relations with it and taking up the ways of American life, petitioned for a writ of habeas corpus to block an army officer from returning them to the Indian country. Granting the writ, the court observed: “If they could be removed to the Indian Territoiy by force, and kept there in the same way, I can see no good reason why they might not be taken away and kept by force in the penitentiary....’’ 25 F. Cas. at 700.