Tavares v. Whitehouse

• Decision Date: 14 March 2017
• Docket Number: No. 15-55667,15-55667
• Parties: Jessica TAVARES; Dolly Suehead; Donna Caesar; Barbara Suehead, Petitioners-Appellants, v. Gene WHITEHOUSE; Calvin Moman; Brenda Adams; John Williams; Danny Rey, in their official capacity as members of the Tribal Council of the United Auburn Indian Community, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

851 F.3d 863

Jessica TAVARES; Dolly Suehead; Donna Caesar; Barbara Suehead, Petitioners-Appellants,

v.Gene WHITEHOUSE; Calvin Moman; Brenda Adams; John Williams; Danny Rey, in their official capacity as members of the Tribal Council of the United Auburn Indian Community, Respondents-Appellees.

No. 15-55667

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2016 San Francisco, California

Filed March 14, 2017

Andrew W. Stroud (argued) and Landon D. Bailey, Hanson Bridgett LLP, Sacramento, California; Fred J. Hiestand, Esq., Sacramento, California; for Petitioners-Appellants.

Elliot R. Peters (argued), Steven A. Hirsch, Jo W. Golub, and Jesse Basbaum, Keker & Van Nest LLP, San Francisco, California, for Respondents-Appellees.

Before: M. Margaret McKeown, Kim McLane Wardlaw, and Richard C. Tallman, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Wardlaw

OPINION

McKEOWN, Circuit Judge:

This appeal tests the limits of federal court jurisdiction to hear a habeas petition brought under the Indian Civil Rights Act ("ICRA"), 25 U.S.C. §§ 1301 –1303, where the underlying claim arises not from an actual detention or imprisonment, but instead from a tribe's temporary exclusion of its own members.¹

Congress enacted the ICRA in 1968 in response to a "long line" of federal court decisions exempting Indian tribes from constitutional restraints. See Cohen's Handbook of Federal Indian Law § 1.07, at 97 (Nell Jessup Newton ed., 2012) [Cohen's]; see also Michigan v. Bay Mills Indian Cmty. , –––U.S. ––––, 134 S.Ct. 2024, 2030, 2037, 188 L.Ed.2d 1071 (2014) (noting that Indian tribes possess a "special brand of sovereignty" that predates, and is consequently not bound by, the Constitution). The Act extended to tribes most (but not all) of the civil protections in the Bill of Rights. See David H. Getches et al., Federal Indian Law 380–81 (6th ed. 2011). The ICRA created a new federal habeas remedy "to test the legality of ... detention by order of an Indian tribe." 25 U.S.C. § 1303. Because § 1303 provides the exclusive federal remedy for tribal violations of the ICRA, unless a petitioner is in "detention by order of an Indian tribe," the federal courts lack jurisdiction over an ICRA challenge and the complaint must be brought in tribal court. See Santa Clara Pueblo v. Martinez , 436 U.S. 49, 65, 67, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).

The question here is whether a temporary exclusion from tribal land, but not the entire reservation, constitutes a detention under the ICRA. Reading the ICRA's habeas provision in light of the Indian canons of construction and Congress's plenary authority to limit tribal sovereignty, we hold that the district court lacked jurisdiction under § 1303 of the ICRA to review this temporary exclusion claim.

BACKGROUND

Before the first Europeans arrived in California, as many as 350,000 Indians lived within the state's borders, speaking up to eighty different languages. S. Rep. No. 103-340, at 1 (1994). By the time Mexico ceded California to the United States in 1848, the indigenous population had dropped to approximately 150,000 people; by 1900, it had plummeted to about 15,000. Id. at 1–2. This decline was not, of course, unique to California, but instead mirrored the effects of disease, war, and removal policies on tribes across the country.

One of the indigenous groups still in California at the turn of the century was the Auburn Band, "a small, cohesive band of Indians" that lived about forty miles outside of Sacramento. Id. at 4. By 1953, the federal government had acquired forty acres of land (the "Auburn Rancheria" or "Rancheria") in trust on the Band's behalf. Id. But by the mid-1950s, Congress adopted a policy of "assimilation through termination," Cohen's § 1.06, at 85, and the Auburn Rancheria was ultimately terminated in 1967. S. Rep. No. 103-340, at 5. As a result, "[R]ancheria lands formerly held in tribal or community ownership" were divided and distributed. H.R. Rep. No. 103-812, at 22 (1994).

The Tribe's history is a microreflection of congressional seesawing on tribal governance over the past century. The so-called Termination Era of the 1950s saw Congress end the "historic relationships" between specified tribes and the federal government, defund federal tribal assistance programs, and give named states civil and criminal jurisdiction over individual Indians with an option for other states to assume such jurisdiction. Cohen's § 1.06, at 91. It was in this context that the Rancheria was terminated.

But blowback to the "disastrous results" of termination came swiftly, and by the 1960s, the federal government had adopted a policy of strengthening tribal self-government and self-determination. Id. § 1.07, at 94. This shift in focus led Congress to "enact[ ] special acts restoring a substantial number of previously terminated tribes," id. § 1.07, at 97, including the Auburn Indian Restoration Act in 1994, 25 U.S.C. § 1300l –1300l -7.

Today, the historic Band is known as the United Auburn Indian Community ("UAIC" or "Tribe"). The UAIC owns twelve parcels of land on the historic Rancheria, including a preschool, a community service center, foster homes, and recreational facilities. It also owns off-Rancheria facilities, including the Thunder Valley Casino Resort. The remaining twenty-one parcels of land on the Rancheria are privately owned, not tribally owned or controlled.

In keeping with the goals of current federal Indian policy, the Tribe is self-governing. It is run by an elected five-member Tribal Council, which enacts legislation and takes executive action. The Council also disciplines tribal members for civil violations of the Tribe's constitution and ordinances. Like many tribes today, the UAIC does not have a criminal code and does not exercise criminal jurisdiction over its members.

The Tribe adopted a constitution and bylaws, three of which are particularly implicated by this appeal. Ordinance 2004-001 III(B) imposes a duty on all tribal members "to refrain from damaging or harming tribal programs or filing of false information in connection with a tribal program." Ordinance 2004-001 III(I) requires members to "refrain from defaming the reputation of the Tribe, its officials, its employees or agents outside of a tribal forum[.]" And the Enrollment Ordinance provides that a Tribe member can be punished—up to and including disenrollment—for making misrepresentations against the Tribe.

This appeal arises out of actions taken by the Tribal Council in 2011. Petitioners Jessica Tavares, Dolly Suehead, Donna Caesar, and Barbara Suehead (collectively, "the petitioners") disagreed with how the Council was governing internal tribal affairs and, on November 7, 2011, they submitted a recall petition to the Tribe's Election Committee.² The recall petition raised a litany of allegations against the members of the Council: financial mismanagement, retaliation, electoral irregularity, denial of due process, denial of access to an audit, and restrictions on access to Tribe members' mailing addresses. The Election Committee rejected the recall petition after determining that it did not have signatures from forty percent of tribal members, some of the signatures were not notarized, and some signatories did not provide a date and address, as required by a tribal ordinance.³

Around the same time, the petitioners circulated to mass media outlets two press releases detailing their complaints. The first press release stated that the Council had engaged in "questionable financial practices" and "cover-ups of financial misdealings," that the Council had "fraudulently" refused to conduct a financial audit of the Tribe's resources, and that the Tribe's elections were "dishonest and rigged." After the Election Committee denied the recall petition, the petitioners circulated the second press release, which alleged that the Council had "scuttle[d]" the petition.

Four days after the recall petition was rejected, the Council sent each petitioner a Notice of Discipline and Proposed Withholding of Per Capita. The Notices stated that the petitioners' press releases "contained numerous inaccurate, false and defamatory statements" that wound

up being published in non-tribal news outlets like the Sacramento Bee . The Notices informed the petitioners that, through the press releases, the petitioners had "[r]epeatedly libel[ed] and slander[ed] the Tribe and its agents maliciously and in disregard of the truth in non-tribal forums" and had taken "[h]armful and damaging actions to tribal programs, specifically our tribal businesses and government, and provid[ed] outsiders with false information about tribal programs," in violation of tribal law. The Notices also stated that the Council had voted to withhold the petitioners' per capita distributions and to ban them temporarily from tribal lands and facilities.

The exclusion orders were effective immediately. The petitioners were barred from tribal events, properties, offices, schools, health and wellness facilities, a park, and the casino. During their terms of exclusions, the petitioners could not run for tribal office, but they could vote in tribal elections through absentee ballots. They were not excluded from the twenty-one privately owned parcels of land, including their own homes and land owned by other members of the Tribe, and they retained their tribal health care benefits. Tavares was excluded for ten years, while the others were excluded for two years. None of the petitioners had a right to a hearing or an appeal on the exclusion orders.

The Notices also stated that the Council intended to withhold the petitioners' "per capita distributions and all other financial benefits and membership privileges," excluding health care benefits, for four years (as to Tavares) and six months (as to the others). Unlike the exclusion orders, the withholding orders were not effective immediately. Instead, the petitioners were entitled to a hearing before...