85 F.3d 874 (2nd Cir. 1996), 492, Poodry v. Tonawanda Band of Seneca Indians

Docket Nº:492, Docket 95-7490, 95-7492, 95-7498, 95-7502 and 95-7504.
Citation:85 F.3d 874
Party Name:Peter L. POODRY, David C. Peters, Susan LaFromboise, John A. Redeye, and Stonehorse Lone Goeman, Petitioners-Appellants, v. TONAWANDA BAND OF SENECA INDIANS; Bernard Parker, a/k/a Ganogehdaho; Kervin Jonathan, a/k/a Skongataigo; Emerson Webster, a/k/a Gauhnahgoi; Darren Jimerson, a/k/a Sohjeahnohous; Harley Gordon, a/k/a Gah-En-Keh; James Logan; an
Case Date:May 16, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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85 F.3d 874 (2nd Cir. 1996)

Peter L. POODRY, David C. Peters, Susan LaFromboise, John A.

Redeye, and Stonehorse Lone Goeman, Petitioners-Appellants,

v.

TONAWANDA BAND OF SENECA INDIANS; Bernard Parker, a/k/a

Ganogehdaho; Kervin Jonathan, a/k/a Skongataigo; Emerson

Webster, a/k/a Gauhnahgoi; Darren Jimerson, a/k/a

Sohjeahnohous; Harley Gordon, a/k/a Gah-En-Keh; James

Logan; and Darwin Hill, Respondents-Appellees.

No. 492, Docket 95-7490, 95-7492, 95-7498, 95-7502 and 95-7504.

United States Court of Appeals, Second Circuit

May 16, 1996

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[Copyrighted Material Omitted]

Argued Nov. 30, 1995.

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Joseph E. Zdarsky, Buffalo, New York, James Cohen, Minneapolis, Minnesota (Gerald T. Walsh, Zdarsky, Sawicki & Agostinelli, Buffalo, New York, of counsel), for petitioners-appellants.

Harold M. Halpern, Buffalo, New York (Borins, Halpern & Stromberg), for respondents-appellees.

Before FEINBERG, JACOBS, and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

The petitioners are members of the Tonawanda Band of Seneca Indians, a federally recognized Indian tribe. They claim that on January 24, 1992, certain tribal officials summarily convicted them of "treason" and sentenced them to permanent "banishment" from the Tonawanda Seneca Indian Reservation ("Tonawanda Reservation"). The orders of "banishment" read in part as follows: "You are to leave now and never return.... [Y]our name is removed from the Tribal rolls, your Indian name is taken away, and your lands will become the responsibility of the Council of Chiefs. You are now stripped of your Indian citizenship and permanently lose any and all rights afforded our members. YOU MUST LEAVE IMMEDIATELY AND WE WILL WALK WITH YOU TO THE OUTER BORDERS OF OUR TERRITORY." The petitioners claim that the banishment orders amount to a criminal conviction in violation of rights guaranteed under Title I of the Indian Civil Rights Act of 1968 ("ICRA" or "Act"), 25 U.S.C. §§ 1301-1303. In November 1992, they sought writs of habeas corpus in the United States District Court for the Western District of New York. In this case of first impression, the district court (Richard J. Arcara, Judge ) concluded that the threat of permanent banishment was not a sufficient restraint on liberty to trigger the application of the ICRA's habeas corpus provision. The court therefore dismissed the petitions for lack of subject matter jurisdiction.

The respondents invite us to hold that the petitioners--citizens of the United States residing within our borders--cannot challenge the threatened loss of their tribal membership, cultural and religious identity, and property under the laws of the United States. It is undisputed that no avenue for tribal review of the actions of the members of the Council of Chiefs is available in this case. Accordingly, if the district court lacks subject matter jurisdiction to entertain the applications for writs of habeas corpus, the petitioners have no remedy whatsoever. We decline the respondents' invitation to hold that under

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current law basic American principles of due process are wholly irrelevant in these circumstances, or that the federal courts are completely divested of authority to consider whether the alleged actions of the members of the tribal Council of Chiefs conform to those principles. We conclude that the district court based its dismissal of the petitions on an erroneous view of the scope of the ICRA's habeas corpus provision. We therefore vacate the orders of dismissal and remand for further proceedings.

I

The Tonawanda Band of Seneca Indians is a federally recognized Indian tribe occupying a 7,500-acre reservation near Akron, New York. Along with Seneca Indians now occupying the Cattaraugus and Allegany reservations in upstate New York, the Band was formerly recognized as the Seneca Nation, one of six nations known collectively as the Haudenosaunee or the Iroquois Confederacy. 1 Unlike the Indians currently recognized as the Seneca Nation--i.e., the Seneca Indians of the Cattaraugus and Allegany Reservations--the Tonawanda Band retains the traditional governing institution of the Confederacy: the tribal Council of Chiefs ("the Council"), which carries out the views of the tribe on matters of internal governance. The petitioners claim, and the respondents do not appear to dispute, that this traditional form of Seneca government is based on consensus. The Tonawanda Band consists of eight "clans": the Snipe, the Heron, the Hawk, the Deer, the Wolf, the Beaver, the Bear, and the Turtle. Each clan appoints a clan mother, who in turn appoints an individual to serve as Chief. The clan mother retains the power to remove a Chief and, in consultation with members of the clan, provides recommendations to the Chief on matters of tribal government. 2 The clan mothers cannot disregard the views of the clan, nor can the Chiefs disregard the recommendations of the clan mothers.

The petitioners also claim that the Tonawanda Band has held regular tribal elections, recognized under § 41 of the New York Indian Law (McKinney 1950), for President, Clerk, Treasurer, Peacemakers, and Marshal. The duties of these offices, or the functional relationship between these elected officials and the tribe's traditional government structure, are not clear from the record.

In November and December 1991, a dispute arose on the Tonawanda Reservation concerning alleged misconduct by certain members of the Tonawanda Council of Chiefs. The petitioners, Peter L. Poodry, David C. Peters, Susan LaFromboise, John A. Redeye, and Stonehorse Lone Goeman, and others, apparently accused members of the Council, particularly its Chairman, respondent Bernard Parker, of misusing tribal funds, suspending tribal elections, excluding members of the Council of Chiefs from the tribe's business affairs, and burning tribal

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records. Allegedly in consultation with other members of the tribe, the petitioners formed an Interim General Council of the Tonawanda Band.

Petitioners Poodry, Peters, and LaFromboise claim that on January 24, 1992, they were accosted at their homes by groups of fifteen to twenty-five persons bearing the following notice:

It is with a great deal of sorrow that we inform you that you are now banished from the territories of the Tonawanda Band of the Seneca Nation. You are to leave now and never return.

According to the customs and usage of the Tonawanda Band of the Seneca Nation and the HAUDENOSAUNEE, no warnings are required before banishment for acts of murder, rape, or treason.

Your actions to overthrow, or otherwise bring about the removal of, the traditional government at the Tonawanda Band of Seneca Nation, and further by becoming a member of the Interim General Council, are considered treason. Therefore, banishment is required.

According to the customs and usage of the Tonawanda Band of Seneca Nation and the HAUDENOSAUNEE, your name is removed from the Tribal rolls, your Indian name is taken away, and your lands will become the responsibility of the Council of Chiefs. You are now stripped of your Indian citizenship and permanently lose any and all rights afforded our members.

YOU MUST LEAVE IMMEDIATELY AND WE WILL WALK WITH YOU TO THE OUTER BORDERS OF OUR TERRITORY.

The individuals bearing the notices attempted (without success) to take petitioners Poodry, Peters, and LaFromboise into custody and eject them from the reservation. Petitioners John A. Redeye and Stonehorse Lone Goeman received identical notices by mail. The notices were signed by respondents Parker, Kervin Jonathan, Emerson Webster, Darren Jimerson, Harley Gordon, and James Logan, all members of the Tonawanda Band's Council of Chiefs. 3 Respondent Darwin Hill, whose signature does not appear on the notices, is the tribal clerk.

After this initial attempt to remove the petitioners from the reservation, the respondents and persons purporting to act on their behalf allegedly continued to harass and assault the petitioners and their family members, attacking petitioner LaFromboise on Main Street in Akron and "stoning" petitioner Peters. The petitioners also claim to have been denied electrical service to their homes and businesses, at the direction of the Council. 4 In early February 1992, the respondents sent notices of the petitioners' "convict[ion]" and "banishment" to, inter alia, President Bush, the Bureau of Indian Affairs of the Department of the Interior, Governor Cuomo, Senator D'Amato, Senator Moynihan, and other federal and state officials, requesting recognition of the banishment orders and/or assistance in removing the petitioners from the Tonawanda Reservation. The New York Department of Public Health, which operates the Tonawanda Indian Reservation Medical Clinic, instructed the clinic (by an unsigned letter) to remove the petitioners from its list of eligible members; thereafter the petitioners were allegedly denied the health services and medications provided to other members of the tribe, both at the clinic and at local pharmacies. On February 3, 1992, the Bureau of Indian Affairs, in response to the political upheaval on the reservation, issued a notice that it continued to recognize "the traditional Council of Chiefs as the legal governing body of the Tonawanda Band of the Seneca Nation." On February 25, 1992, the clan mother of the

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Snipe clan allegedly removed respondent Bernard Parker as Chief. According to the petitioners, however, Parker continues to claim the chairmanship of the Council of Chiefs. 5

The five targeted individuals filed petitions for writs of habeas corpus in the United States District Court for the Western District of New York on November 10, 1992, claiming that they had been denied several rights...

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