Jessica Tavares v. Gene Whitehouse

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA TAVARES; DOLLY No. 14-15814

SUEHEAD; DONNA CAESAR;

BARBARA SUEHEAD, D.C. No.

Petitioners-Appellants, 2:13-cv-02101-TLN-CKD

v.

OPINION

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.

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted March 15, 2016

San Francisco, California

Filed March 14, 2017

Before: M. Margaret McKeown, Kim McLane Wardlaw,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

Partial Concurrence and Partial Dissent by Judge Wardlaw

2 TAVARES V. WHITEHOUSE

SUMMARY*

Indian Civil Rights Act

The panel affirmed the district court’s dismissal for lack

of jurisdiction of a habeas corpus petition brought under the

Indian Civil Rights Act and dismissed three petitioners’

appeals as moot.

The panel held that a tribe’s temporary exclusion of its

own members from tribal land, but not the entire reservation,

did not constitute a “detention” under 25 U.S.C. § 1303, and

the district court therefore lacked jurisdiction to review the

tribal members’ temporary exclusion claim. The panel held

that the withholding of the petitioners’ per capita tribal

distributions also did not create habeas jurisdiction under the

ICRA.

The panel dismissed on mootness grounds the appeal of

three petitioners whose exclusion orders had expired.

Concurring in part and dissenting in part, Judge Wardlaw

agreed with the majority that the court lacked habeas

jurisdiction over the withholding orders and that the appeals

of three petitioners should be dismissed as moot. Judge

Wardlaw concluded, however, that the fourth petitioner’s ten-

year banishment order severely restrained her liberty and

constituted “detention” under the ICRA.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TAVARES V. WHITEHOUSE 3

COUNSEL

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.

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., 134

1

The parties dispute whether the petitioners were temporarily

“banished” or temporarily “excluded.” We use the term “exclusion,” but

ascribe no special significance to the word. See Patrice H. Kunesh,

Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37

N.M. L. Rev. 85, 88 n.17 (noting that “exclusion” and “banishment” are

often used interchangeably).

4 TAVARES V. WHITEHOUSE

S. Ct. 2024, 2030, 2037 (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 (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

TAVARES V. WHITEHOUSE 5

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.

6 TAVARES V. WHITEHOUSE

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

TAVARES V. WHITEHOUSE 7

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.

2

Under the Tribe’s constitution, “[u]pon receipt of a petition signed

by at least forty percent (40%) of the qualified voters of the [UAIC], it

shall be the duty of the Election Committee established by this

Constitution to call and conduct within thirty (30) days an election to

consider the recall of an elected official.”

3

The petitioners claim that the petition did in fact have signatures

from forty percent of the Tribe and that they had no notice of the other

requirements. This dispute is not before us; we take no position on which

version of the facts is true.

8 TAVARES V. WHITEHOUSE

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,”

TAVARES V. WHITEHOUSE 9

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 the Council and to an appeal. The Council

confirmed the proposed suspension of the petitioners’ per

capita distributions after a hearing.

On appeal, the Appeals Board affirmed the Council’s

findings and actions in a thirty-page thoroughly-reasoned

decision. It rejected the petitioners’ constitutional challenge

to the Tribe’s anti-defamation ordinance on three grounds: (1)

the petitioners’ arguments “ignore[d] entirely federal Indian

law,” (2) the ordinance “d[id] not violate the Tribe’s

Constitution,” and (3) the ordinance satisfied federal

constitutional standards. The Appeals Board affirmed the

Council’s finding that the petitioners had violated tribal law,

concluding that the press releases “sounded a loud (and

inaccurate) warning bell to [local businesses and

governments] that decisions made by our Tribe and casino

may not be reliable, and even illegal, and that our Tribe and

casino may not be a stable partner for business or even

accepting a donation.” According to the Appeals Board, the

petitioners’ “sensationalized publicity stunt . . . harms the

Tribe, its government infrastructure, its business activities

. . . , and the future of tribal members. It has been our tribal

custom and tradition to protect this Tribe and its institutions

from the harm caused by this type of defamation outside the

tribal forum. Our ability to be taken seriously as a tribal

government and business partner depends on it.”

The Appeals Board concluded that the length of the

original withholding orders was fair, but acknowledged the

unique cultural factors at play: “We, as tribal members, have

10 TAVARES V. WHITEHOUSE

distrust of authority bred into us, after centuries of broken

promises. We also are concerned about each individual

appellant here, who all have families. We are a Tribe

composed of a few extended families. Each of us has

dependents who we care for. The culture and tradition of this

Tribe has been to take care of each other.” Thus, “after

reflection on and discussion about our tribal customs and

traditions and values,” the Appeals Board reduced Tavares’

per capita withholding by six months (making her ultimate

withholding sanction total three-and-a-half years) and the

other petitioners’ per capita withholding by one month

(making their withholding sanctions total five months).4

The petitioners filed a petition for a writ of habeas corpus

in federal court under 25 U.S.C. § 1303 of the ICRA against

the members of the Council.5 The district court dismissed the

petition for lack of subject matter jurisdiction, concluding that

the petitioners’ punishment was not a “detention” sufficient

to invoke federal habeas jurisdiction.

4

As to petitioners Dolly Suehead, Donna Caesar, and Barbara

Suehead, the exclusion orders expired on November 15, 2013 and the per

capita withholding orders expired on May 1, 2012.

5

Gene Whitehouse, Brenda Adams, and Calvin Moman were

members of both the 2011 and 2013 Councils. John Williams and Danny

Rey were members only of the 2013 Council.

TAVARES V. WHITEHOUSE 11

ANALYSIS

I. Principles Animating Habeas Jurisdiction Under

§ 1303 of the Indian Civil Rights Act

We ground our opinion in two foundational principles in

the Indian law canon—tribal sovereignty and congressional

primacy in Indian affairs. We have long recognized that

Indian tribes are “distinct, independent political communities,

retaining their original natural rights.” Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 559 (1832). While tribes lack “the full

attributes of sovereignty,” they retain the power of self-

government. United States v. Kagama, 118 U.S. 375, 381–82

(1886). Tribal sovereignty offers “a backdrop against which

the applicable . . . federal statutes must be read.”

McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172

(1973). In other words, to the extent a statute is ambiguous,

we construe it liberally in favor of the tribes’ inherent

authority to self-govern. See, e.g., Ramah Navajo Sch. Bd.,

Inc. v. Bureau of Revenue, 458 U.S. 832, 846 (1982) (“We

have consistently admonished that federal statutes and

regulations relating to tribes . . . must be ‘construed

generously in order to comport with . . . traditional notions of

[Indian] sovereignty and with the federal policy of

encouraging tribal independence.’” (first alteration added)

(quoting White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 144 (1980))).

A second well-recognized principle is Congress’s

“constitutionally prescribed primacy in Indian affairs.”

Cohen’s § 2.01[1], at 110; see also Washington v.

Confederated Bands & Tribes of Yakima Indian Nation, 439

U.S. 463, 470–71 (1979) (describing Congress’s authority

over Indian affairs as “plenary and exclusive”). Because

12 TAVARES V. WHITEHOUSE

Congress’s jurisdiction is plenary, our jurisdiction is

correspondingly narrow. See Lone Wolf v. Hitchcock, 187

U.S. 553, 565 (1903) (“Plenary authority over the tribal

relations of the Indians has been exercised by Congress from

the beginning, and the power has always been deemed a

political one, not subject to be controlled by the judicial

department of the government.”). Hence, we refrain from

interpreting federal statutes in a way that limits tribal

autonomy unless there are “clear indications” that Congress

intended to do so. Santa Clara Pueblo, 436 U.S. at 60.

Because Indian tribes have sovereignty that predates the

Constitution, they are not subject to the constitutional

restraints that bind the federal government and the states. See

Talton v. Mayes, 163 U.S. 376, 382–84 (1896). Congress

can, however, impose such restraints by statute as part of its

plenary authority over tribal affairs. In 1968, Congress

exercised this authority and enacted the ICRA, which extends

much of the Bill of Rights to tribes by statute.6 The ICRA

also contains an explicit federal habeas remedy: “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.” 25 U.S.C. § 1303.

The Supreme Court first analyzed the scope of federal

court jurisdiction under the ICRA in Santa Clara Pueblo, 436

U.S. 49. The Court held that the ICRA’s substantive rights

(contained in § 1302 of the statute) did not imply a federal

6

The rights in the ICRA are similar, but not identical, to those

contained in the Bill of Rights. For example, the statute has no

requirement that tribes provide free counsel for indigent criminal

defendants in tribal court. See United States v. Bryant, 136 S. Ct. 1954,

1958–59 (2016).

TAVARES V. WHITEHOUSE 13

remedy; instead, § 1303 set out the exclusive remedy for

violations of the ICRA—a writ of habeas corpus “in a Court

of the United States.” Id. at 69–72. As part of its analysis,

the Court noted that one of the primary purposes in enacting

the ICRA was to “promote the well-established federal policy

of furthering Indian self-government.” Id. at 62 (citations and

internal quotation marks omitted). Although the Court

recognized that Congress also intended to “strengthen[] the

position of individual tribal members vis-à-vis the tribe,” it

concluded that finding an implied cause of action would

strengthen this goal only at the expense of tribal sovereignty.

Id. In sum, federal remedies beyond habeas were “not plainly

required to give effect to Congress’ objective[s].” Id. at 65.

With these principles in mind, we address whether the district

court had habeas jurisdiction over the per capita withholding

or the temporary exclusion orders.

II. Per Capita Withholding Orders

As a threshold matter, we quickly dispose of the argument

that the petitioners’ per capita withholding orders created

habeas jurisdiction under the ICRA.7

In Shenandoah v. U.S. Department of the Interior, the

Second Circuit explained that the loss of quarterly

distributions paid to all tribal members is “insufficient to

bring plaintiffs within ICRA’s habeas provision,” 159 F.3d

708, 714 (2d Cir. 1998), a determination that we cited with

approval in Jeffredo v. Macarro. 599 F.3d 913, 919 (9th Cir.

2009). This conclusion falls squarely within the “general

7

Although it is not entirely clear in their briefs, the petitioners appear

to argue that withholding of distributions creates habeas jurisdiction in

whole or part. To the extent they raise this argument, we address it here.

14 TAVARES V. WHITEHOUSE

rule” that “federal habeas jurisdiction does not operate to

remedy economic restraints.” Shenandoah v. Halbritter, 366

F.3d 89, 92 (2d Cir. 2004); see also United States v. Thiele,

314 F.3d 399, 402 (9th Cir. 2002) (writing that cognizable

claims “do not run interference for non-cognizable claims”).

Any disputes about per capita payments must be brought in

a tribal forum, not through federal habeas proceedings. See

25 C.F.R. §290.23; Lewis v. Norton, 424 F.3d 959, 963 (9th

Cir. 2005).

III. Temporary Exclusion Orders

We now turn to the crux of this appeal—whether the

petitioners, who were temporarily excluded from tribal lands,

were in “detention” under § 1303 for purposes of federal

habeas jurisdiction.8

We start with the words Congress used in § 1303,

focusing on a difference between the language used in that

provision and the language used in the general federal habeas

statutes. When Congress enacted the ICRA in 1968, it was

legislating against a well-established habeas framework: the

federal courts have habeas jurisdiction whenever a petitioner

8

The two-year exclusion orders applicable to Dolly and Barbara

Suehead and Donna Caesar expired before briefing in this appeal was

completed and hence there is no longer a live controversy. Chafin v.

Chafin, 133 S. Ct. 1017, 1023 (2013). Even assuming habeas jurisdiction

were proper, petitioners’ suggestion that the expired orders had continuing

consequences in a habeas sense is totally speculative. Thus, we dismiss

their appeals on mootness grounds, and also affirm the district court’s

dismissal of their claims on jurisdictional grounds.

TAVARES V. WHITEHOUSE 15

is “in custody.” See 28 U.S.C. §§ 2241, 2255;9 see also Jones

v. Cunningham, 371 U.S. 236, 236 (1963) (quoting 28 U.S.C.

§ 2241); Judiciary Act of Sept. 24, 1789, § 14, 1 Stat. 73, 82.

Yet Congress chose not to incorporate this language into the

ICRA. Instead, under § 1303, habeas corpus is available only

to a person who wishes to “test the legality of his detention by

order of an Indian tribe.” In addition to the usual rule that

different words in a statute ordinarily convey different

meanings, S.E.C. v. McCarthy, 322 F.3d 650, 656 (9th Cir.

2003), we think Congress’s use of “detention” instead of

“custody” when it created habeas jurisdiction over tribal

actions is significant in multiple respects.

At the time Congress enacted the ICRA, “detention” was

generally understood to have a meaning distinct from and,

indeed, narrower than “custody.” Specifically, “detention”

was commonly defined to require physical confinement. See,

9

The requirement that a petitioner be “in custody” is stated in every

section of the statutory provisions for state and federal habeas jurisdiction.

See 28 U.S.C. §§ 2241(c)(1)–(4) (“The writ of habeas corpus shall not

extend to a prisoner unless — (1) He is in custody under or by color of the

authority of the United States or is committed for trial before some court

thereof; or (2) He is in custody for an act done or omitted in pursuance of

an Act of Congress, or an order, process, judgment or decree of a court or

judge of the United States; or (3) He is in custody in violation of the

Constitution or laws or treaties of the United States; or (4) He, being a

citizen of a foreign state and domiciled therein is in custody for an act

done or omitted under any alleged right, title, authority, privilege,

protection, or exemption claimed under the commission, order or sanction

of any foreign state, or under color thereof . . . .” (emphases added)),

2254(a) (rendering habeas relief available to “a person in custody pursuant

to the judgment of a State court”), 2255(a) (rendering motions to “vacate,

set aside or correct the sentence” available to “[a] prisoner in custody

under sentence of a court established by Act of Congress”).

16 TAVARES V. WHITEHOUSE

e.g., Preiser v. Rodriguez, 411 U.S. 475, 484–85 (1973)

(equating “detention” and “physical confinement”); see also

Ballentine’s Law Dictionary 343 (3d ed. 1969) (defining

“detention” as “[h]olding one arrested on a charge of crime”).

By contrast, “custody” had a more fluid definition: while it

meant “physical control of the person,” it did not require

physical confinement or imprisonment. Id. at 300. Instead,

a person was in custody for habeas purposes if there was

“restraint of [that] person by another [such] that the latter can

produce the body of the former at a hearing as directed by

writ or order.” Id. In other words, at the time of the ICRA’s

enactment, detention was understood as a subset of custody.

See also Black’s Law Dictionary 460 (4th ed. 1968) (defining

“custody” as encompassing “[d]etention; charge; control;

possession” and noting that “[t]he term is very elastic and

may mean actual imprisonment or physical detention or mere

power, legal or physical, of imprisoning or of taking manual

possession”).

It is also notable that Congress used “detention” at the

same time that the Supreme Court had begun to expand the

scope of “custody” in the federal habeas statutes. Courts

“normally assume that, when Congress enacts statutes, it is

aware of relevant judicial precedent.” Merck & Co. v.

Reynolds, 559 U.S. 633, 648 (2010). The history and

precedent here are informative.

Under English common law, and for much of our history,

physical custody, confinement, or detention was required as

a prerequisite to habeas relief. See, e.g., Rumsfeld v. Padilla,

542 U.S. 426, 437 (2004) (recognizing that “we no longer

require physical detention as a prerequisite to habeas relief”);

Preiser, 411 U.S. at 486 (collecting cases in which the

petitioner complained of “being unlawfully subjected to

TAVARES V. WHITEHOUSE 17

physical restraint”); Wales v. Whitney, 114 U.S. 564, 569

(1885) (finding no habeas jurisdiction where “petitioner [wa]s

under no physical restraint”); 3 William Blackstone,

Commentaries *129–37. Beginning in 1963, however, the

Supreme Court expansively interpreted “custody” to include

continued oversight by criminal justice authorities with the

prospect of revocation of parole and return to incarceration.

See Jones, 371 U.S. at 243 (holding that parolee was in

custody, in part because he remained subject to the custody

and control of the state parole board); see also Hensley v.

Mun. Court, 411 U.S. 345, 351 (1973) (formulating the

“severe restraint[] on individual liberty” test for custody, and

holding that petitioner was in custody when he was released

on personal recognizance pending execution of his

sentence).10

By the time Congress enacted the ICRA in 1968, this

expansion of “custody” was well under way. The Supreme

Court had already explained that “custody” should not be

construed unduly narrowly because habeas “is not now and

never has been a static, narrow, formalistic remedy; its scope

has grown to achieve its grand purpose—the protection of

individuals against erosion of their right to be free from

wrongful restraints upon their liberty.” Jones, 371 U.S. at

243. Congress could have used the parallel “in custody”

language or indicated that ICRA’s habeas provision was to be

10

Neither Jones nor Hensley mention, much less discuss, “detention.”

See generally Hensley, 411 U.S. 345; Jones, 371 U.S. 236.

18 TAVARES V. WHITEHOUSE

read in light of that jurisprudence by using “custody” rather

than “detention,” but it did not do so.11

Our conclusion that we should credit Congress’s use of

“detention” to narrow the scope of federal habeas jurisdiction

over ICRA claims is bolstered by the limited legislative

history. During deliberations in the House of

Representatives, House Minority Leader Gerald Ford

submitted a memorandum from the House Committee on the

Judiciary that equated detention in the ICRA context with

imprisonment: under § 1303, the “habeas corpus application

for release from tribal detention shall be made in the Federal

courts (under present Constitutional practice, non-Indian

citizens, if imprisoned under state law, must first seek habeas

11

The only other court that has analyzed whether “detention” and

“custody” should be interpreted differently determined only that

“detention” should not be construed more broadly than “custody.” See

Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 890–93 (2d

Cir. 1996); see also Jeffredo, 599 F.3d at 918 (citing the adoption of

Poodry’s analysis by Moore v. Nelson, 270 F.3d 789, 791 (9th Cir. 2001)).

The Second Circuit examined the federal habeas statutes, 28 U.S.C.

§ 2241 et seq., and concluded that they “appear[] to use the terms

‘detention’ and ‘custody’ interchangeably.” Poodry, 85 F.3d at 890–91.

However, while some provisions of the federal habeas statutes appear to

use the terms synonymously, others treat “detention” as a subset of

“custody.” Compare, e.g., 28 U.S.C. § 2245 (last amended June 25, 1948)

(“On the hearing of an application for a writ of habeas corpus to inquire

into the legality of the detention of a person pursuant to a judgment the

certificate of the judge who presided at the trial resulting in the judgment

. . . shall be admissible in evidence.”), with id. § 2242 (last amended June

25, 1948) (stating that an “[a]pplication for a writ of habeas corpus . . .

shall allege the facts concerning the applicant’s commitment or detention”

(emphasis added)). Even if these provisions create ambiguity as to the

meaning of the ICRA’s use of “detention,” such ambiguities must be

resolved in favor of the tribes’ inherent authority to self-govern. Ramah

Navajo Sch. Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at 113.

TAVARES V. WHITEHOUSE 19

corpus by exhausting available state court remedies before

applying to Federal courts.).” 114 Cong. Rec. 9611 (1968).

Representative Reifel similarly explained that habeas corpus

under the ICRA “would assure effective enforcement of . . .

fundamental [trial] rights” that arise in the criminal context,

including the prohibition on double jeopardy, the privilege

against self-incrimination, and the right to confront witnesses.

Id. at 9553. As the Supreme Court in Santa Clara Pueblo

recognized, Congress’s “legislative investigation revealed

that the most serious abuses of tribal power had occurred in

the administration of criminal justice. In light of this finding,

. . . Congress chose at this stage to provide for federal review

only in habeas corpus proceedings.” 436 U.S. at 71 (internal

citation omitted); see also id. at 67 (describing “habeas

corpus as the exclusive means for federal-court review of

tribal criminal proceedings”); William C. Canby, Jr.,

American Indian Law in a Nutshell 422 (6th ed. 2014)

(concluding that, post–Santa Clara Pueblo, “the effectuation

of the non-criminal portions of the Indian Civil Rights Act

lies exclusively with [the tribal courts]”).12

12

We need not decide whether § 1303 applies only in the criminal

context. We merely note that Congress was concerned with a narrower

subset of tribal activity than would be covered under the current-day

“custody” standard. On this point, the dissent argues that “detention” and

“custody” should be understood as synonymous because the language of

§ 1303 tracks that of Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965),

a pre-ICRA case extending general habeas jurisdiction over a tribe’s

incarceration of a tribal member that was cited with approval during 1965

Senate subcommittee hearings on the ICRA. Dissent 35. But Colliflower

extended general habeas jurisdiction for a reason not applicable here:

because the tribe’s courts, having been developed under the supervision

and the guidelines of the Department of the Interior’s Bureau of Indian

Affairs, functioned “in part as a federal agency and in part as a tribal

agency.” Id. at 379. Importantly, Colliflower did not have occasion to

consider the scope of “detention” because the court used the term to refer

20 TAVARES V. WHITEHOUSE

Three cases that involve the limits of detention under

§ 1303 inform our analysis. We begin with Poodry, the first

case to address this issue. 85 F.3d 874. The petitioners,

members of the Tonawanda Band, were convicted of treason

after they accused the tribal council of misconduct. Id. at

877–78. As punishment, the tribe disenrolled them and

permanently banished them from the whole of the tribe’s

7,500 acre reservation. Id. at 878. The disenrollment and

banishment orders were served on the petitioners at their

homes by up to twenty-five people, who attempted to take the

petitioners “into custody and eject them from the

reservation.” Id. Although the initial ejection attempts

failed, the respondents “continued to harass and assault the

petitioners and their family members,” attacking one

petitioner on Main Street and “stoning” a second petitioner.

Id. The tribe also denied the petitioners home electrical

services and health services and medications. Id.

The Second Circuit held that the ICRA created federal

habeas jurisdiction over the tribal actions. Construing

ICRA’s “detention” requirement as “no broader” than the

“custody” requirement of other federal habeas statutes, the

Second Circuit concluded that the facts alleged—including

the manner in which the banishment orders were served, the

attempts at removal, the threats and assaults, and the denial of

electrical services—constituted “severe restraints on

[individual] liberty” under Hensley’s custody test. Id. at

893–95.

to a situation within the traditional confines of habeas corpus jurisdiction:

Colliflower’s incarceration pursuant to a criminal conviction. See id. at

371.

TAVARES V. WHITEHOUSE 21

The Second Circuit did not clearly distinguish between

whether it was the disenrollment or banishment of the

petitioners that constituted the severe restraint on liberty,

although it focused on the disenrollment. See id. at 895

(“Indeed, we think the existence of the orders of permanent

banishment alone . . . would be sufficient to satisfy the

jurisdictional prerequisites for habeas corpus. We deal here

. . . with the coerced and peremptory deprivation of the

petitioners’ membership in the tribe and their social and

cultural affiliation.” (emphasis added)); see also id. at 897

(characterizing the question at issue as “whether a federal

court has jurisdiction to examine the scope of and limitations

on the Tonawanda Band’s power to strip the petitioners of

their tribal membership”); id. at 901 (rejecting argument that

“membership determinations [are] committed to the absolute

discretion of the tribe”).

Two years later, in Shenandoah, the Second Circuit

revisited jurisdiction under the ICRA. 159 F.3d 708. The

petitioners in Shenandoah, like the petitioners in Poodry,

were members of a tribe who challenged tribal leadership.

The petitioners alleged that, because of these activities, they

lost their jobs, their “voice[s]” in tribal governance, their

health insurance, their access to the tribe’s health center, and

their quarterly per capita distributions; were banished from

tribal businesses and recreational facilities; were stricken

from tribal membership rolls; were prohibited from speaking

with some tribe members; and were not sent tribal mailings.

Id. at 714.

Significantly, the Second Circuit stepped back from

Poodry and limited its reach. It clarified that Poodry had

only recognized federal habeas jurisdiction for cases

involving permanent banishment. Id. at 714 (citing Poodry

22 TAVARES V. WHITEHOUSE

in support of the proposition that “[h]abeas relief does

address more than actual physical custody, and includes

parole, probation, release on one’s own recognizance pending

sentencing or trial, and permanent banishment”). The Second

Circuit then concluded that the tribe’s misconduct at issue in

Shenandoah, while “serious,” was not a sufficiently severe

restraint on liberty to create habeas jurisdiction. Id.

Notably, the Second Circuit again conflated disenrollment

and banishment in its analysis. The court characterized the

punishment in Poodry as considerably more severe than the

punishment in Shenandoah because in Poodry, “the

petitioners were convicted [ ] of treason, sentenced to

permanent banishment, and stripped of . . . Indian citizenship;

their names were removed from the Tribal rolls; and they

permanently [lost] any and all rights afforded [tribal]

members.” Id. (internal quotation marks omitted). By

contrast, the petitioners in Shenandoah “[did] not allege[] that

they were banished from the Nation, deprived of tribal

membership, convicted of any crime, or that defendants

attempted in anyway [sic] to remove them from [tribal land].”

Id.

In 2010, our court addressed the scope of habeas

jurisdiction under § 1303 of the ICRA in Jeffredo. 599 F.3d

913. The Pechanga Band of the Luiseño Mission Indians

disenrolled a number of its members following a dispute

about their lineage. Id. at 915. As a result of their

disenrollment, the petitioners lost access to the tribe’s senior

citizen center, health clinic, and schools. Id. at 918–19.

Although they were not excluded from the reservation, the

petitioners contended that, because of their new status as non-

members, they were “under a continuing threat of

banishment/exclusion.” Id. at 919. They filed a habeas

TAVARES V. WHITEHOUSE 23

petition under the ICRA, arguing that their disenrollment

“was tantamount to an unlawful detention.” Id. at 915.

We held that the district court lacked jurisdiction because

the petitioners were not detained under § 1303. Id. We

engaged in a factual inquiry about the severity of the

restrictions the petitioners faced, noting that the petitioners

“have not been banished from the Reservation,” “have never

been arrested, imprisoned, fined, or otherwise held by the

Tribe,” “have not been evicted from their homes or suffered

destruction of their property,” have not had “personal

restraint (other than access to [certain] facilities)” imposed on

them, and have not had their movements on the Reservation

subject to restriction. Id. at 919.

Unlike the Second Circuit, we distinguished between

disenrollment and banishment, and recognized that there is no

federal habeas jurisdiction over tribal membership disputes.

Id. at 920 (citing Santa Clara Pueblo, 436 U.S. at 72 n.32)

(observing that “[w]e cannot circumvent our lack of

jurisdiction over [tribal decisions regarding disenrollment of

members] by expanding the scope of the writ of habeas

corpus to cover exactly the same subject matter”).13

13

The dissent’s claim that Jeffredo is “binding precedent” that

dictates the result is not borne out by an examination of the analysis.

Dissent 38. Notably, Jeffredo relied on Moore as the sole authority

supporting the proposition that detention “must be interpreted similarly”

to custody, 599 F.3d at 918, and as Jeffredo itself acknowledges, Moore

stated merely that “[t]here is no reason to conclude that the requirement

of ‘detention’ set forth in . . . § 1303 is any more lenient than the

requirement of ‘custody’ set forth in the other habeas statutes,” 270 F.3d

at 791 (emphasis added). In stating that “an ICRA habeas petition is only

proper when the petitioner is in custody,” Jeffredo correctly recognized

that being “in custody” is a necessary condition for jurisdiction under the

24 TAVARES V. WHITEHOUSE

Looking at the statute and these cases, several principles

emerge. First, we do not need to decide whether to adopt

Poodry’s conclusion that tribal banishment orders amount to

“detention” under § 1303, because even under Poodry’s logic,

the Second Circuit limited habeas jurisdiction only to

permanent banishment orders, not temporary exclusion orders

like those in this case. Poodry, 85 F.3d at 901; see also

Shenandoah, 159 F.3d at 714. In addition, we have already

rejected Poodry’s assertion of federal habeas jurisdiction over

tribal membership disputes. Compare Poodry, 85 F.3d at 901

(rejecting argument that “membership determinations [are]

committed to the absolute discretion of the tribe”), with

Jeffredo, 599 F.3d at 920 (“We find . . . nothing in the

legislative history of § 1303 that suggests the [habeas]

provision should be interpreted to cover disenrollment

proceedings.”). We also have taken issue with Poodry’s

assertion that a tribe’s interference with “an individual’s

social, cultural, and political affiliations” can create custody.

Compare Poodry, 85 F.3d at 897, with Jeffredo, 599 F.3d at

921.14

ICRA. 599 F.3d at 918. However, because the panel subsequently

determined that the petitioners were not in custody, it did not have

occasion to determine (as we do here) whether custody is a sufficient

condition to create habeas jurisdiction under the ICRA.

14

The dissent places great weight on Poodry, describing the case as

the “leading authority” on banishment orders. See Dissent 44 n.9. Not

only is Poodry inapposite for the reasons we have already outlined, but

also, Poodry has been extensively criticized for disrupting the balance

Congress struck in the ICRA between preserving tribal sovereignty and

upholding the rights of individual tribe members. See, e.g., Cohen’s

§ 14.04[2], at 986–87 (observing that Poodry’s “attempt[] to circumvent

exclusive tribal jurisdiction disrupt[s] the delicate balance of tribal and

federal interests established by Congress” and risks “insert[ing] the federal

courts into precisely the types of internal tribal decisions that most

TAVARES V. WHITEHOUSE 25

Second, the federal courts lack jurisdiction to review

direct appeals of tribal membership decisions because they

fall within the scope of tribes’ inherent sovereignty. Jeffredo,

599 F.3d at 915. In many cases, a tribe’s decision to

temporarily exclude a member will be another expression of

its sovereign authority to determine the makeup of the

community.15 See Kunesh, supra note 1, at 86. Because

exclusion orders are often intimately tied to community

relations and membership decisions, we cannot import an

exclusion-as-custody analysis from the ordinary habeas

context. See Santa Clara Pueblo, 436 U.S. at 72 n.32 (“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. Given 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.” (citations omitted)).16

implicate tribal sovereignty”); Kunesh, supra note 1, at 124 (criticizing

Poodry for “unabashedly substitut[ing] its own legal and cultural bias for

the U.S. legal system and the rights and protections established under

federal law”).

15

The use of exclusion as a tool of social control is by no means

unique to the tribes. See Nan Goodman, Banished: Common Law and the

Rhetoric of Social Exclusion in Early New England 1–2 (2012) (noting

that “inclusion and exclusion are paired” because they both help define the

community).

16

The dissent asserts that “[b]anishment has generally been held to

satisfy the ‘in custody’ requirement of the general habeas laws.” Dissent

42 (alteration in original) (quoting Cohen’s § 9.09, at 780–81) (internal

quotation marks omitted). But the only authority the dissent cites for this

proposition is Cohen’s Handbook of Federal Indian Law, which in fact

states only that “banishment has been generally held to satisfy the ‘in

26 TAVARES V. WHITEHOUSE

Third, tribes have the authority to exclude non-members

from tribal land. See Merrion v. Jicarilla Apache Tribe, 455

U.S. 130, 142 (1982) (recognizing tribes’ authority to exclude

non-members); Hardin v. White Mountain Apache Tribe, 779

F.2d 476, 479 (9th Cir. 1985) (same). If tribal exclusion

orders were sufficient to invoke habeas jurisdiction for tribal

members, there would be a significant risk of undercutting the

tribes’ power because “any person,” members and non-

members alike, would be able to challenge exclusion orders

through § 1303. Thus, tribal sovereignty vis-à-vis exclusion

of non-members would collide with habeas jurisdiction.

With this framework in mind, we return to the principles

animating habeas jurisdiction under § 1303 of the ICRA. We

view Congress’s choice of “detention” rather than “custody”

in § 1303 as a meaningful restriction on the scope of habeas

jurisdiction under the ICRA. See Merck & Co., 559 U.S. at

648. But to the extent that the statute is ambiguous, we

construe it in favor of tribal sovereignty. Ramah Navajo Sch.

Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at 113. A

temporary exclusion is not tantamount to a detention. And

recognizing the temporary exclusion orders at issue here as

beyond the scope of “detention” under the ICRA bolsters

tribes’ sovereign authority to determine the makeup of their

communities and best preserves the rule that federal courts

should not entangle themselves in such disputes.

Petitioners’ contrary reading of the statute cannot be

reconciled. They make much of the fact that their cases do

not involve disenrollment and argue that we should

custody’ requirement” read into the ICRA by Poodry and two district

court cases. See Cohen’s § 9.09, at 780–81 & n.16. Again, this broad

statement circles back to Poodry’s flawed analysis.

TAVARES V. WHITEHOUSE 27

distinguish Jeffredo on this basis. We agree that it is

significant that the petitioners have only been temporarily

excluded, but we disagree with the conclusion they draw. If

we adopted the petitioners’ proposed rule that exclusion of

any duration creates habeas jurisdiction, it would create a

perverse incentive for tribes to first disenroll and then banish

a member. Because federal courts lack jurisdiction over

membership decisions, and because tribes have authority to

exclude non-members from tribal lands, this two-step dance

could be a loophole to avoid federal jurisdiction under the

ICRA. By incentivizing disenrollment, the petitioners’

proposed construct runs counter to Congress’s goal of

“strengthening the position of individual tribal members vis-

à-vis the tribe” by enacting the ICRA. Santa Clara Pueblo,

436 U.S. at 62.

Nor is the dissent’s interpretation of § 1303 persuasive.

As we have explained, statutory interpretation and the

legislative history support reading detention more narrowly

than custody, but to the extent that the statute is ambiguous,

we construe the statute in favor of Indian sovereignty in

accord with the Indian canons of construction. See Ramah

Navajo Sch. Bd., Inc., 458 U.S. at 846; Cohen’s § 2.02[1], at

113. These canons seemingly play no role in the dissent’s

analysis. Instead, the dissent claims that to preserve the

balance Congress struck “between the protection of tribal

sovereignty and the vindication of civil rights,” “we ought

simply to apply the standard of federal habeas law.” Dissent

49.

The dissent fails to recognize that it is precisely the

indiscriminate importation of an external body of law into the

ICRA that risks trenching upon that balance. Under its

reading, even if a tribe member was disenrolled from the

28 TAVARES V. WHITEHOUSE

tribe, the tribe’s decision to exclude that former member

would still be subject to judicial review, even while a

decision to exclude a non-member would not be. See Dissent

49–50. The dissent argues that former tribe members should

enjoy a special status because “[t]ribes’ power to ban non-

members from their land is rooted in their inherent power as

separate sovereigns,” while “tribes’ power to ban tribal

members from their land was explicitly ‘limit[ed]’ and

‘modif[ied]’ by Congress’s use of its ‘plenary authority’ to

provide individual rights to American Indians and to establish

a narrow mechanism of review to protect those rights.”

Dissent 50 (second and third alterations in original). This

reading of the ICRA cannot be reconciled with the statute

itself: the ICRA does not “explicitly” address exclusion

orders, and many of its provisions, including § 1303, apply to

tribe members and non-members alike. See also 25 U.S.C.

§ 1302. Nor does the dissent explain why it would be an

intrusion on tribal sovereignty to prevent a tribe from

excluding non-members, but not an intrusion to prevent a

tribe from excluding former or current tribe members. On the

contrary: as we have observed, the ability to determine the

membership of the community has long been regarded as an

essential attribute of sovereignty.

Thus, we conclude that the district court lacked

jurisdiction under § 1303 of the ICRA to review the challenge

to the temporary exclusion orders. In so holding, we in no

way minimize the significance of petitioners’ allegations or

the personal impact of the exclusion orders. The petitioners

raise free speech and due process claims that implicate the

substantive protections Congress saw fit to grant Indians with

respect to their tribes through the ICRA. See Quair v. Sisco,

359 F. Supp. 2d 948, 962 (E.D. Cal. 2004) (“Section 1302 [of

the ICRA] provides that no Indian tribe in exercising powers

TAVARES V. WHITEHOUSE 29

of self-government shall do or fail to do the things set forth in

Section 1302.”). But the petitioners’ remedy is with the

Tribe, not in the federal courts. Cf. Fisher v. Dist. Court, 424

U.S. 382, 390–91 (1976) (“[E]ven if a jurisdictional holding

occasionally results in denying an Indian plaintiff a forum to

which a non-Indian has access, such disparate treatment of

the Indian is justified because it is intended to benefit the

class of which he is a member by furthering the congressional

policy of Indian self-government.”).

APPEAL DISMISSED AS MOOT WITH RESPECT

TO DOLLY AND BARBARA SUEHEAD AND DONNA

CAESAR AND AFFIRMED FOR LACK OF

JURISDICTION WITH RESPECT TO ALL

PETITIONERS.

WARDLAW, Circuit Judge, concurring in part and dissenting

in part:

I agree with the majority that we lack habeas jurisdiction

over the UAIC’s withholding orders, and that the expired

two-year banishment orders against Dolly and Barbara

Suehead and Dona Caesar should be dismissed as moot.

However, I conclude that Jessica Tavares’s ten-year

banishment order severely restrains her liberty and constitutes

“detention” under the Indian Civil Rights Act (“ICRA”).

Therefore, I respectfully disagree with the majority’s holding

that we lack jurisdiction to entertain her habeas petition.

Tavares is a longtime leader of the UAIC. She served on

the Tribal Council from approximately 1998 to 2010; for

many of these years, she was Council Chair. In 2011,

30 TAVARES V. WHITEHOUSE

Tavares helped to organize a campaign to remove certain

Tribal Council members from office for malfeasance,

alleging financial misdealings and corruption related to

tribal elections. Notwithstanding Tavares’s right to

free expression,1 the tribe accused her of making

“misrepresentations against the Tribe” and “defaming [its]

reputation” in violation of tribal law.

In retaliation, the tribe informed Tavares that she was

henceforth “banned from tribal lands and facilities, for a

period of ten (10) years, due to [her] repeated and serious

violations of tribal law, effective November 15, 2011.”2 The

tribe’s order further specified that Tavares was “banned from

attending any tribally sponsored events and/or entering all

Tribal properties and/or surrounding facilities, which

includes, but is not limited to the Tribal Offices, Thunder

Valley Casino, the UAIC School, Health and Wellness

facilities at the Rancheria, and/or the Park at the Rancheria.”

The restraint on Tavares’s individual liberty is obvious: she

cannot set foot on her tribe’s reservation.

The district court was correct to recognize that “the

restraint in this case was severe.” Tavares v. Whitehouse,

1

The ICRA’s free expression clause reads in relevant part, “No

Indian tribe in exercising powers of self-government shall . . . (1) make or

enforce any law . . . abridging the freedom of speech, or of the press, or

the right of the people peaceably to assemble and to petition for a redress

of grievances . . . .” 25 U.S.C. § 1302(a).

2

The majority opinion avoids referring to the Petitioners’

“banishment,” using instead the euphemism “exclusion.” Maj. Op. 8. My

use of the terms “banned” and “banishment” reflects the language the

UAIC Tribal Council used to describe the punishment it meted out to

Petitioners. The UAIC does not dispute that Petitioners were “banned.”

TAVARES V. WHITEHOUSE 31

No. 2:13–CV–02101–TLN, 2014 WL 1155798, at *10 (E.D.

Cal. Mar. 21, 2014). Having so found, it should have

exercised jurisdiction over her habeas petition pursuant to

25 U.S.C. § 1303.3

I.

A.

“As separate sovereigns pre-existing the Constitution,

tribes have historically been regarded as unconstrained by

those constitutional provisions framed specifically as

limitations on federal or state authority.” Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 56 (1978). However, “Congress has

plenary authority to limit, modify or eliminate the powers of

local self-government which the tribes otherwise possess.”

Id. “Title I of the ICRA, 25 U.S.C. §§ 1301–1303, represents

an exercise of that authority.” Id. at 57.

Congress enacted the ICRA in 1968 “to insure that the

American Indian is afforded the broad constitutional rights

secured to other Americans.” S. Rep. No. 90-841, at 6

(1967). A “central purpose of the ICRA” was to “‘protect

individual Indians from arbitrary and unjust actions of tribal

governments.’” Santa Clara Pueblo, 436 U.S. at 61 (quoting

S. Rep. No. 90-841, at 5–6). Accordingly, the ICRA

“impos[es] certain restrictions upon tribal governments

similar, but not identical, to those contained in the Bill of

Rights and the Fourteenth Amendment.” Id. at 57; see also

25 U.S.C. § 1302. The rights enumerated in § 1302 do not

3

Section 1303 states, in full, “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.”

32 TAVARES V. WHITEHOUSE

contain implied causes of action. Santa Clara Pueblo, 436

U.S. at 51–52, 72. But Congress provided an explicit cause

of action to protect the rights that it chose to grant to the

American Indian: the “privilege of the writ of habeas corpus.”

25 U.S.C. § 1303.

Though narrow, this claim for relief is firmly established.

See Boe v. Fort Belknap Indian Cmty., 642 F.2d 276, 278–79

(9th Cir. 1981) (describing 25 U.S.C. § 1303 as “[t]he only

avenue available to a party who seeks relief in the federal

courts for an alleged violation of the ICRA”). Of course,

recognizing the “well-established federal policy of furthering

Indian self-government,” Santa Clara Pueblo, 436 U.S. at 62

(internal quotation marks omitted), we “should not rush to

create causes of action” that would intrude upon tribes’

inherent sovereignty, id. at 72 n.32. But we are not asked to

“create causes of action” in this case; we are asked to apply

the only law by which Indians may vindicate their ICRA

rights—the congressionally granted right to petition for

habeas relief.

Tavares presents us with precisely the kind of case over

which Congress intended to establish federal jurisdiction:

having exercised her right to free expression which Congress,

through the ICRA, had explicitly guaranteed her, Tavares

suffered retaliation from the UAIC in the form of “severe

restraints on individual liberty” not shared by other members

of her tribe. Poodry v. Tonawanda Band of Seneca Indians,

85 F.3d 874, 894 (2d Cir. 1996) (internal quotation marks

omitted). “[R]estraints on a [person’s] liberty . . . not shared

by the public generally . . . have been thought sufficient in the

English-speaking world to support the issuance of habeas

corpus.” Jones v. Cunningham, 371 U.S. 236, 240 (1963).

This is the trigger for jurisdiction that Congress designed.

TAVARES V. WHITEHOUSE 33

We should acknowledge our congressionally mandated

jurisdiction and exercise our duty to adjudicate Tavares’s

petition, as Congress intended when it balanced Indian

sovereignty against individual rights in the ICRA. It is not

our place to recalibrate that balance.

B.

“The term ‘detention’ in the [ICRA] statute must be

interpreted similarly to the ‘in custody’ requirement in other

habeas contexts.” Jeffredo v. Macarro, 599 F.3d 913, 918

(9th Cir. 2009). Reflecting this principle, the bodies of law

construing the “detention” and “custody” requirements are

interdependent. Just as habeas courts applying the ICRA rely

on authorities construing “custody” in general habeas

contexts, courts in general habeas contexts rely on authorities

construing “detention” under the ICRA. For instance, the

Third Circuit concluded in a non-ICRA case that a person

sentenced to perform five hundred hours of community

service was “in custody,” relying in part on the Second

Circuit’s analysis of “detention” in an ICRA case. Barry v.

Bergen Cty. Prob. Dep’t, 128 F.3d 152, 161 (3d Cir. 1997)

(discussing Poodry, 85 F.3d at 894–95).

The majority holds that “detention” as used in the ICRA

is “understood as a subset of custody.” Maj. Op. 16. The

majority suggests that the absence of the word “custody”

from 25 U.S.C. § 1303 is significant because, by contrast, the

word “custody” is used in “every section” of federal habeas

statutes 28 U.S.C. §§ 2241(c)(1)–(4), 2254(a), and 2255(a).

However, the word “detention” also appears frequently

throughout other sections of the federal habeas statutes. See

28 U.S.C. §§ 2245, 2249, 2253 (referring to “detention”

only); §§ 2241, 2242, 2243, 2244, 2255 (referring to both

34 TAVARES V. WHITEHOUSE

“detention” and “custody,” apparently interchangeably); cf.

§§ 2252, 2254 (referring to “custody” only). There is no

indication in any part of any section that the terms might have

distinct meanings: if anything, the statutes suggest, as a

whole, that “detention” and “custody” are interchangeable.

This is why the Poodry court declined to differentiate

between “detention” and “custody,” stating,

We find the choice of language unremarkable

in light of references to “detention” in the

federal statute authorizing a motion attacking

a federal sentence, see § 2255, as well as in

the procedural provisions accompanying

§ 2241, see §§ 2242, 2243, 2244(a), 2245,

2249, 2253. Congress appears to use the terms

“detention” and “custody” interchangeably in

the habeas context. We are therefore reluctant

to attach great weight to Congress’s use of the

word “detention” in § 1303.

85 F.3d at 890–91.

Reliance upon legislative history is unnecessary to

supplement our statutory analysis. See Nw. Forest Res.

Council v. Glickman, 82 F.3d 825, 830–31 (9th Cir. 1996), as

amended on denial of reh’g (May 30, 1996) (“In interpreting

a statute, we look first to the plain language of the statute,

construing the provisions of the entire law, including its

object and policy, to ascertain the intent of Congress. Then,

if the language of the statute is unclear, we look to its

legislative history.” (internal quotation marks omitted)). But

to the extent that legislative history is relevant, it supports our

exercise of jurisdiction to entertain Tavares’s habeas petition.

TAVARES V. WHITEHOUSE 35

The limited legislative history available suggests that

“detention” and “custody” are interchangeable terms in the

habeas context. The language of § 1303 “closely tracks the

language of Colliflower v. Garland, 342 F.2d 369 (9th Cir.

1965)[, overruled on other grounds by United States v.

Wheeler, 435 U.S. 313 (1978), as recognized by Davis v.

Muellar, 643 F.2d 521, 532 n.13 (8th Cir. 1981)].” Poodry,

85 F.3d at 891. In Colliflower, we relied on the broad scope

of the general federal habeas statutes to conclude that “it is

competent for a federal court in a habeas corpus proceeding

to inquire into the legality of the detention of an Indian

pursuant to an order of an Indian court.” 342 F.2d at 379.

Observing that Congress “frequently invoked [Colliflower]

with approval during the 1965 [Subcommittee on

Constitutional Rights of the Senate Judiciary Committee]

hearings” that preceded the ICRA’s enactment, the Second

Circuit concluded that Congress intended the ICRA’s habeas

provision to be as broad as, but “no broader than,” its federal

counterparts.4 Poodry, 85 F.3d at 891, 893.

4

The majority opinion contends that we ought to disregard this piece

of legislative history in part because Colliflower involved a prisoner

incarcerated due to a criminal conviction, and so did not consider the

scope of “detention” beyond “the traditional confines of habeas corpus

jurisdiction.” Maj. Op. 19–20 n.12. Of course, an identical point can be

made about Preiser v. Rodriguez, 411 U.S. 475, 484–85 (1973), on which

the majority relies to support its argument that “physical confinement” is

a requirement of “detention,” Maj. Op. 15–16, but there the majority

seems unconcerned with this distinction.

My point is not that Colliflower is authoritative precedent for the

exact issue before us. If it were, such a lengthy decision would be

unnecessary. But given that there is, as the majority opinion notes, little

other legislative history for us to consider, Maj. Op. 18, Colliflower is

relevant because it apparently guided Congress’s understanding that the

habeas provision it was enacting within ICRA would be as broad as the

36 TAVARES V. WHITEHOUSE

The majority opinion highlights two pieces of history

from the ICRA’s enactment to support its contrary position,

but neither is persuasive. First, the majority contends that a

memorandum prepared by the House of Representatives

Committee on the Judiciary supports its conclusion because

the memorandum describes the function of § 1303 with a

single reference to “tribal detention,” not “custody.” 114

Cong. Rec. 9611 (1968). But the memorandum is not an

analytical discussion of Congress’s word choice of

“detention” in the statute. It is merely a brief summary of

§ 1303; indeed it is unsurprising that the memorandum

mirrors the statutory language. The entirety of the excerpt

dedicated to the whole of the ICRA’s provision of individual

rights—of which § 1303 was but one part—is barely 150

words long. See id. Like the Second Circuit, I am “therefore

reluctant to attach great weight to Congress’s use of the word

‘detention’ in § 1303.” Poodry, 85 F.3d at 891.

Second, the majority speculates that Representative

Reifel’s remarks on the floor of the House show that the

ICRA’s habeas provision was intentionally circumscribed to

rights associated with criminal trials. Representative Reifel

noted that the provision of a federal habeas forum in § 1303

would “assure effective enforcement of [the] fundamental

rights” enumerated in the ICRA. 114 Cong. Rec. 9553

(1968). Those include not only protections associated with

criminal trials, see 25 U.S.C. § 1302(a)(3)–(10), but also the

ICRA’s analogues to the First and Fourth Amendments, see

§ 1302(a)(1)–(2). Thus, Representative Reifel’s commentary

does not support the majority’s argument that § 1303 is

limited only to rights associated with criminal trials. In any

federal habeas statutes that had long been part of the nation’s laws. The

majority opinion does not respond to this point.

TAVARES V. WHITEHOUSE 37

case, Representative Reifel’s brief remarks do not illuminate

any purported nuances distinguishing “detention” from

“custody”; his comments are irrelevant to our analysis of the

language Congress chose when it enacted § 1303.

C.

To reach its holding that “detention” in the ICRA is

narrower than “custody” in the general habeas statutes, the

majority relies heavily upon Poodry’s phrasing that 25 U.S.C.

§ 1303 “is no broader than analogous statutory provisions for

collateral relief.” 85 F.3d at 893 (emphasis added). But

Poodry used the phrase “no broader” specifically because two

courts—including ours—had previously held that “detention”

in the ICRA was broader than “custody” in the non-ICRA

context. See Settler v. Yakima Tribal Court (“Settler I”), 419

F.2d 486, 489–90 (9th Cir. 1969), abrogated by Santa Clara

Pueblo, 436 U.S. 49, and Hensley v. Mun. Court, 411 U.S.

345 (1973), as recognized by Moore v. Nelson, 270 F.3d 789,

791–92 (9th Cir. 2001); Tracy v. Superior Court, 810 P.2d

1030, 1049 (Ariz. 1991) (en banc). In both cases, the courts

noted that a person subjected to a fine only is under

“detention” for purposes of § 1303, even though a fine alone

would not bring that person within the jurisdiction of the

general federal habeas statutes.5 Thus Poodry reined in the

meaning of “detention” to the outer limits of “custody,” but

it did not suggest that “detention” was any narrower than

“custody.” Poodry provides no support for the majority

opinion’s novel holding that an American Indian may be in

5

See, e.g., Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (“We

have repeatedly recognized that the imposition of a fine, by itself, is not

sufficient to meet [28 U.S.C.] § 2254’s jurisdictional requirements.”).

38 TAVARES V. WHITEHOUSE

“custody” for purposes of the general habeas statutes, but not

in “detention” for purposes of the ICRA’s habeas statute.

We actually have binding precedent to the contrary,

which the majority opinion fails to acknowledge. It is the law

of our Circuit that “[t]he term ‘detention’ in the [ICRA]

statute must be interpreted similarly to the ‘in custody’

requirement in other habeas contexts.” Jeffredo, 599 F.3d at

918; see also Boozer v. Wilder, 381 F.3d 931, 934 n.2 (9th

Cir. 2004) (“Detention [as used in 25 U.S.C. § 1303] is

interpreted with reference to custody under other federal

habeas provisions.”); Moore, 270 F.3d at 791–92 (9th Cir.

2001) (relying on habeas cases interpreting custody to

analyze detention under the ICRA); cf. Mills v. Taylor, 967

F.2d 1397, 1400 (9th Cir. 1992) (affirming a grant of habeas

corpus, in part because the panel “conclude[d] that Congress

intended no change in meaning when it substituted

‘detention’ for ‘custody’ [in 18 U.S.C. § 3585]”).

Morever, the majority splits from every other federal

appellate court to have addressed this question. The Second

Circuit recognizes that “Congress appears to use the terms

‘detention’ and ‘custody’ interchangeably in the habeas

context.” Poodry, 85 F.3d at 891. The Tenth Circuit “read[s]

the ‘detention’ language as being analogous to the ‘in

custody’ requirement contained in 28 U.S.C. § 2241.” Dry v.

CFR Court of Indian Offenses, 168 F.3d 1207, 1208 n.1 (10th

Cir. 1999); see also Valenzuela v. Silversmith, 699 F.3d 1199,

1203 (10th Cir. 2012); Walton v. Tesuque Pueblo, 443 F.3d

1274, 1279 n.1 (10th Cir. 2006). And the Sixth Circuit

recognizes that “habeas claims brought under the Indian Civil

Rights Act, 25 U.S.C. § 1303, are most similar to habeas

actions arising under 28 U.S.C. § 2241,” § 1303’s “federal

law analogue.” Kelsey v. Pope, 809 F.3d 849, 854 (6th Cir.

TAVARES V. WHITEHOUSE 39

2016), cert. denied sub nom. Kelsey v. Bailey, 137 S. Ct. 183

(2016).

II.

Half a century ago, the Supreme Court made clear that a

habeas petitioner is in “detention” or “custody” when she is

subjected to severe restraints on liberty that need not rise to

the level of physical confinement. The Court declared,

“History, usage, and precedent can leave no doubt that,

besides physical imprisonment, there are other restraints on

a man’s liberty, restraints not shared by the public generally,

which have been thought sufficient in the English-speaking

world to support the issuance of habeas corpus.” Jones, 371

U.S. at 240. Ever since, the Court consistently has “very

liberally construed the ‘in custody’ requirement for purposes

of federal habeas.” Maleng v. Cook, 490 U.S. 488, 492

(1989) (per curiam).6 For our part, we faithfully have applied

the Court’s instructions to our cases, recognizing that a

habeas petitioner need only show “that he is subject to a

significant restraint upon his liberty” for our jurisdiction to

obtain. Wilson v. Belleque, 554 F.3d 816, 822 (9th Cir.

2009).

6

The Supreme Court’s broad construction of the “custody”

requirement reflects the wide scope of application that the writ has

enjoyed for centuries. For example, William Blackstone explained that

the writ is “efficacious . . . in all manners of illegal confinement.”

3 William Blackstone, Commentaries on the Laws of England 131 (Univ.

of Chicago Press 1979) (1768); see also Ex parte McCardle, 73 U.S.

(6 Wall.) 318, 325–26 (1867) (characterizing the writ of habeas corpus as

the judicial remedy for “every possible case of privation of liberty

contrary to the National Constitution, treaties, or laws,” the scope of

which is so broad that it is “impossible to widen”).

40 TAVARES V. WHITEHOUSE

In determining whether a habeas petitioner is “in

custody,” the Supreme Court has “rel[ied] heavily on the

notion of a physical sense of liberty—that is, whether the

legal disability in question somehow limits the putative

habeas petitioner’s movement.” Williamson v. Gregoire, 151

F.3d 1180, 1183 (9th Cir. 1998). In Jones v. Cunningham,

the Supreme Court held that conditions of parole satisfied the

custody requirement where the parolee was required to

remain in a particular community, make periodic reports to a

parole officer, and refrain from visiting certain places. 371

U.S. at 242–43. The Court also has held that an individual

released on his own recognizance pending sentencing after

conviction is “in custody” because he must appear at times

and places ordered by the court and “cannot come and go as

he pleases.” Hensley, 411 U.S. at 351; see also, e.g., Justices

of Boston Mun. Court v. Lydon, 466 U.S. 294, 301 (1984).

Similarly, we have held that a petitioner required to log

“fourteen hours of attendance at an alcohol rehabilitation

program” was “in custody” because the sentence required the

petitioner’s “physical presence at a particular place,” which

“significantly restrain[ed] [his] liberty to do those things

which free persons in the United States are entitled to do.”

Dow v. Circuit Court, 995 F.2d 922, 922–23 (9th Cir. 1993)

(per curiam).7 In these instances, the petitioner was “in

custody” for purposes of habeas jurisdiction because the

restraints on his physical liberty were “not shared by the

public generally.” Jones, 371 U.S. at 240. It is clear that

7

Likewise, in Barry v. Bergen County Probation Department, the

Third Circuit held that court-ordered community service constituted

“custody” because an “individual who is required to be in a certain

place—or in one of several places—to attend meetings or to perform

services, is clearly subject to restraints on his liberty not shared by the

public generally.” 128 F.3d at 161.

TAVARES V. WHITEHOUSE 41

such restraints need not rise to the level of actual confinement

for habeas jurisdiction to attach.8

As with “custody,” the restraint on physical liberty is the

essence of “detention” under the ICRA. Thus, in Means v.

Navajo Nation, 432 F.3d 924 (9th Cir. 2005), we held that a

petitioner was in “detention” for ICRA purposes when the

conditions of pretrial release barred the petitioner from going

within one hundred yards of his former father-in-law’s home

and required him to appear as scheduled before the trial court.

Id. at 928 (citing Lydon, 466 U.S. at 300–02, and Hensley,

411 U.S. at 351–52). Similarly, in Settler v. Lameer (“Settler

II”), 419 F.2d 1311, 1312 (9th Cir. 1969) (per curiam), we

held that despite the lack of physical confinement, petitioners

released on bail satisfied the ICRA’s detention requirement.

See also Moore, 270 F.3d at 791 (“Bail status clearly restricts

liberty in a way that a purely monetary fine does not; the

petitioner ‘cannot come and go as he pleases.’” (quoting

Hensley, 411 U.S. at 351)). Consistent with the Supreme

Court’s construction of the “custody” requirement under

8

The majority cites Preiser v. Rodriguez, 411 U.S. 475, 484–85

(1973), for the proposition that physical confinement was once a

prerequisite to habeas relief. Maj. Op. 16–17. Notwithstanding that it is

now “well established that actual physical custody is not a jurisdictional

prerequisite for federal habeas review,” Poodry, 85 F.3d at 893 (citing

Jones, 371 U.S. at 243), the circumstances of Preiser are not comparable

to Tavares’s banishment.

The Preiser petitioner was a state prisoner seeking release, which

explains why the Court used “custody,” “detention,” and “physical

confinement” interchangeably to describe Preiser’s situation. See 411

U.S. at 483–87. Contrary to the majority’s suggestion, the Court never

intimated that “detention” was somehow a subset of “custody.” To the

contrary: if Preiser, a non-ICRA case, stands for anything, it is that

“detention” and “custody” are interchangeable in habeas law.

42 TAVARES V. WHITEHOUSE

federal habeas law, we have made physical liberty the focal

point of our analysis of “detention” under the ICRA.

III.

A.

Banishment is a uniquely severe punishment. It 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. Tavares’s ten-year banishment is not “a modest

fine or a short suspension of a privilege . . . but [rather] the

coerced and peremptory deprivation of [her] membership in

the tribe and [her] social and cultural affiliation.” Id. at 895.

For these reasons, “[b]anishment has generally been held to

satisfy the ‘in custody’ requirement” of the general habeas

laws. Cohen’s Handbook of Federal Indian Law § 9.09,

780–81 (Nell Jessup Newton ed., 2012) (“Cohen’s”).

Whether under the law of our circuit or that of any other to

consider the issue, Tavares’s banishment places her in

“custody”; thus, she is in “detention.”

The majority asserts that three cases about the limits of

detention under § 1303 inform its analysis: Poodry v.

Tonawanda Band of Indians, 85 F.3d 874; Shenandoah v.

United States Department of Interior, 159 F.3d 708 (2d Cir.

1998); and Jeffredo v. Macarro, 599 F.3d 913. But only one

of these cases, Poodry, squarely addresses the legal principles

animating this case. Neither Shenandoah nor Jeffredo

pertains to banishment. To the contrary, they are explicitly

not about banishment. The Shenandoah petitioners did “not

allege[] that they were banished from the Nation, . . . or that

defendants attempted in anyway [sic] to remove them from

TAVARES V. WHITEHOUSE 43

[tribal] territory.” 159 F.3d at 714. Similarly, the Jeffredo

petitioners “ha[d] not been banished” and “[t]heir movements

ha[d] not been restricted on the Reservation.” 599 F.3d at

919. Only Poodry’s holding bears upon the case before us,

and it supports a finding of jurisdiction over Tavares’s

petition.

In Poodry, several members of the Tonawanda Band of

Seneca Indians filed a petition for habeas relief under 25

U.S.C. § 1303 after they were ordered permanently banished

from the tribe. The petitioners had accused members of the

Tonawanda Council of Chiefs of misusing tribal funds,

suspending tribal elections, burning tribal records, and other

misconduct. Poodry, 85 F.3d at 877–78. Several months

later, the petitioners were accosted at their homes by groups

of fifteen to twenty-five persons, summarily convicted of

“treason,” and issued orders of permanent banishment. Id. at

878–79. The orders read in part, “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.”

Id. at 876 (alteration in original). When the petitioners

refused to leave the reservation, they suffered continued

harassment, were assaulted, and were denied electrical

service to their homes and businesses. Id. at 878

The Poodry petitioners filed for writs of habeas corpus

under § 1303, claiming they had been denied several rights

guaranteed under Title I of the ICRA. Id. at 879. The

Western District of New York dismissed their petitions for

44 TAVARES V. WHITEHOUSE

lack of subject-matter jurisdiction, holding that banishment

did not constitute “detention” for the purposes of § 1303. Id.

The Second Circuit reversed, concluding that where a tribal

member has been banished rather than imprisoned, “[T]he

ICRA’s habeas provision [nevertheless] affords the

petitioners access to a federal court to test the legality of their

‘convict[ion]’ and subsequent ‘banishment’ from the

reservation and . . . therefore [the district court] erred in

dismissing the petitions for writs of habeas corpus on

jurisdictional grounds.” Id. (second alteration in original).9

9

Decided twenty years ago, Poodry has since become the leading

authority on banishment as a basis for federal habeas jurisdiction. See

1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 8.2[d], 449 & 449 n.53 (6th ed. 2011) (citing Poodry, 85 F.3d

at 894–96); Ryan Fortson, Advancing Tribal Court Criminal Jurisdiction

in Alaska, 32 Alaska L. Rev. 93, 147 (2015) (characterizing Poodry as the

“seminal case addressing banishment”); see also William C. Canby, Jr.,

American Indian Law in a Nutshell 419 (6th ed. 2015) (discussing

Poodry).

Notwithstanding Poodry’s significance, the majority opinion

selectively quotes from an article by Professor Patrice Kunesh criticizing

Poodry in an attempt to discount Poodry’s persuasive value. See Maj. Op.

25 n.14. But Kunesh’s problem was not that Poodry applied

“jurisdictional prerequisites under federal habeas corpus laws” to “ICRA’s

habeas corpus provision,” which is the issue before us. Patrice H. Kunesh,

Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37

N.M. L. Rev. 85, 123. Rather, Kunesh’s criticisms were aimed at “the

reach of the court’s decision to disenrollment actions;” the court’s

disregard for “tribal legal systems;” and the portions of Poodry’s holding

that “extend[ed] far beyond federal habeas corpus jurisprudence,”

including to “potential and threatened restraints on an individual’s

liberty,” general “harassment,” and “interference” with the provision of

utilities and health care services. Id. at 123–24. None of the targets of

Kunesh’s criticisms of Poodry is present in this case. And, of course,

Poodry remains good law in the Second Circuit and persuasive authority

in ours.

TAVARES V. WHITEHOUSE 45

In particular, the Second Circuit held that the scope of § 1303

is equivalent to that of the general federal habeas statutes, and

that therefore the petitioners’ banishment orders satisfied the

“detention” requirement of § 1303. Id. at 890–97. It follows

from Poodry that Tavares’s banishment also constitutes

“detention” under the ICRA.

In contrast, Jeffredo, the only case until today to raise the

scope of the meaning of the term “detention” in § 1303 before

our Court, does not support the majority’s holding. In

Jeffredo, a tribe disenrolled several members “for failing to

prove their lineal descent as members of the Tribe.” 599 F.3d

at 915. We held that the disenrollment of the petitioners,

whose “movements [had] not been restricted on the

Reservation,” did not constitute “detention” under the ICRA.

Id. at 919. Specifically, we noted that “[d]isenrollment does

not mean that a person is banished from the [tribe’s]

Reservation,” and that the habeas petitioners in that case

“ha[d] not been banished from the Reservation.” Id. at 916,

919. This case presents the inverse fact pattern: Tavares was

not disenrolled from her tribe, but she has been

banished—her movements are restricted on the reservation.

Jeffredo was about membership, not physical liberty; this

case is about physical liberty, not membership. Because

Jeffredo is not a case about banishment, our decision to

decline jurisdiction in that case does not govern us here. See

also Moore, 270 F.3d at 790–91 (recognizing that a tribal

member who was “subjected to a fine” but who “ha[d] not

been excluded or otherwise restricted in his movements on

the Reservation” was not in detention under the ICRA).

The majority opinion extends Jeffredo from disenrollment

decisions to temporary exclusion orders because, according

to the majority, the latter are merely “another expression of

46 TAVARES V. WHITEHOUSE

[the tribe’s] sovereign immunity to determine the makeup of

the community.” Maj. Op. 25. This reasoning sweeps too

broadly and occludes the distinct driving principles behind

Jeffredo and this case.

First, a tribe’s decision to disenroll members based on

their “lineal descent” implicates the “‘tribe’s right to define

its own membership for tribal purposes,’” which “‘has long

been recognized as central to its existence as an independent

political community.’” Jeffredo, 599 F.3d at 917–18 (quoting

Santa Clara Pueblo, 436 U.S. at 72 n.32). Here, because

Tavares does not challenge any membership decision of her

tribe, her petition does not raise Jeffredo’s animating concern

of protecting “[a] tribe’s right to define its own membership.”

Id. at 917; see also Cohen’s, supra, at 175 n.25 (explaining

that banishment and disenrollment must be analyzed

differently, and “[w]here the tribe clearly separates the

banishment and disenrollment decisions . . . only the former

is reviewable under the Indian Civil Rights Act’s habeas

corpus provision”).

Second, by emphasizing that “[d]isenrollment does not

mean that a person is banished from the [tribe’s] Reservation”

and that a disenrolled tribe member’s “movements have not

been restricted,” Jeffredo acknowledged that banishment

inherently involves physical coercion that more severely

restrains an individual’s liberty, and thus is more likely to

qualify as “detention.” 599 F.3d at 916, 919. Although the

Jeffredo petitioners were denied access to a senior citizens’

center, a health clinic, and a tribal school, we were careful not

to equate “the denial of access to certain facilities” with

banishment from the reservation. Id. at 918–19. And for

good reason: denying an individual access to certain

government facilities is a far cry from denying her access to

TAVARES V. WHITEHOUSE 47

her homeland. Thus, Jeffredo undermines, rather than

supports, the majority’s determination that Tavares’s

banishment fails to satisfy the ICRA’s “detention”

requirement.10

B.

Tavares is banned from “all Tribal properties and/or

surrounding facilities.” This total physical exclusion affects

Tavares’s daily life in many ways: she cannot walk her

grandchildren to school, attend tribal meetings, ceremonies,

and events, or join her family and friends for any purpose on

tribal land. A former leader of the UAIC, she no longer can

“participate in the ceremonies and events of the Tribe’s

culture and heritage.” Instead, she “ha[s] had to sit outside

the fence and look on, as if [she] were [a] criminal[] or

untouchable[].”11 Tavares has demonstrated a severe restraint

on her liberty not shared by other members of the tribe, which

satisfies her burden of showing that she is in “custody,” and

thus in “detention.”

10

Jeffredo also comports with federal habeas precedents holding that

the revocation of certain privileges or licenses, without a concomitant

restraint on an individual’s physical liberty, does not satisfy the “custody”

requirement of federal habeas jurisdiction. See, e.g., Lefkowitz v. Fair,

816 F.2d 17, 19–21 (1st Cir. 1987) (revocation of medical license).

Jeffredo’s analysis of disenrollment is likewise consistent with other

courts’ analysis of “[d]ignitary, reputation, ‘moral,’ or psychological

harm,” which generally are considered “noncustodial statuses.” Hertz &

Liebman, supra, at 451–53 & 452 n.66 (collecting cases).

11

Here, “both parties submitted declarations in connection with the

motion to dismiss, [and] because no evidentiary hearing was held we must

accept [Tavares’s] version of events as true for the purposes of

establishing jurisdiction and surviving a 12(b)(1) motion.” Rhoades v.

Avon Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007).

48 TAVARES V. WHITEHOUSE

The majority makes much of the fact that Tavares was

banished “only . . . temporarily.” Maj. Op. 27. But the

majority’s opinion does not explain why the duration of

Tavares’s banishment is legally relevant in determining

whether she is in “detention” for habeas purposes. The writ

of habeas corpus addresses the fact of detention, not its

duration. An individual restrained for a day has no more

freedom during the period of restraint than another restrained

for a year. Thus, habeas relief is available to a prisoner no

matter the length of his sentence.

Even if the duration of Tavares’s banishment were

relevant in determining whether she is in “detention,” the

ten-year term of her banishment is sufficient to severely

restrain her liberty. If fourteen hours of mandatory

attendance at an alcohol rehabilitation program, Dow, 995

F.2d at 922, or five hundred hours of mandatory community

service, Barry, 128 F.3d at 161–62, is long enough to

severely restrain an individual’s liberty, then surely ten

years—more than eighty thousand hours—of banishment is,

too. Moreover, Tavares is an elderly woman. A ten-year

period of banishment may constitute much of the remainder

of her lifetime.

Nor is it clear how “temporary” non-permanent

banishment orders are within the UAIC. The case of

Tavares’s daughter, Angelina (“Angie”) Rey, is instructive.

According to Tavares, the tribe banished Rey for one year for

“defamation.” During her year of banishment, Rey was

photographed “stepp[ing] into [the tribe’s] casino briefly” and

was “banished for another year with her per capita payments

and all membership privileges suspended for a year.” As a

result, Rey “was evicted from her home and, without a home,

was unable to regain custody of her[] children.” Given

TAVARES V. WHITEHOUSE 49

Tavares’s advanced age and the UAIC’s history of

compounding “temporary” banishment orders, ten years of

banishment is not a significantly less severe restraint on

Tavares’s liberty than if the banishment order were

permanent.

C.

Undisputedly, Congress had the authority to create federal

jurisdiction over violations of the ICRA, and it chose habeas

review as the vehicle for those claims. Santa Clara Pueblo,

436 U.S. at 56–58. Critically, “Congress’ provision for

habeas corpus relief, and nothing more, reflected a considered

accommodation of the competing goals of preventing

injustices perpetrated by tribal governments, on the one hand,

and, on the other, avoiding undue or precipitous interference

in the affairs of the Indian people.” Id. at 66–67 (internal

quotation marks omitted); see also id. at 67 (“Congress

apparently decided that review by way of habeas corpus

would adequately protect the individual interests at stake

while avoiding unnecessary intrusions on tribal

governments.”). In enacting § 1303, Congress struck a

balance between the protection of tribal sovereignty and the

vindication of civil rights. Our job is not to alter that balance

based on our own views about the competing values at stake.

Rather, we ought simply to apply the standards of federal

habeas law.

This is a responsibility that Congress explicitly delegated

to the courts, and one for which we are uniquely suited and,

50 TAVARES V. WHITEHOUSE

indeed, have a duty to perform.12 But the majority contends

that tribes’ authority to ban non-members from tribal land

must mean that banishment orders cannot invoke habeas

jurisdiction. The majority claims that if banishment orders

trigger jurisdiction under § 1303, under which the privilege

of the writ of habeas corpus is “available to any person”

detained by a tribe, then “any person” under a banishment

order—including non-members of the tribe—would enjoy

federal habeas review. Because that cannot be the case, the

majority concludes that the only way to reconcile the

intrusion upon tribal sovereignty embodied by § 1303 is to

bar from habeas jurisdiction all banishment orders, including

whatever it is the majority means by “exclusion.”

The majority’s reading assumes too much. Tribes’ power

to ban non-members from their land is rooted in their inherent

power as separate sovereigns. By contrast, tribes’ power to

ban tribal members from their land was explicitly “limit[ed]”

and “modif[ied]” by Congress’s use of its “plenary authority”

to provide individual rights to American Indians and to

establish a narrow mechanism of federal judicial review to

protect those rights. Santa Clara Pueblo, 436 U.S. at 56.

12

The Supreme Court has referred to “the virtually unflagging

obligation of the federal courts to exercise the jurisdiction given them.”

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817

(1976); see also Cohens v. Virginia, 19 U.S. 264, 404 (1821) (“It is most

true that this Court will not take jurisdiction if it should not: but it is

equally true, that it must take jurisdiction if it should. The judiciary

cannot, as the legislature may, avoid a measure because it approaches the

confines of the constitution. We cannot pass it by because it is doubtful.

With whatever doubts, with whatever difficulties, a case may be attended,

we must decide it, if it be brought before us. We have no more right to

decline the exercise of jurisdiction which is given, than to usurp that

which is not given.”).

TAVARES V. WHITEHOUSE 51

There is no particular reason why we must treat an order

banning a tribal member who enjoys legitimate associations

of kin, culture, tradition, and birthright to the tribe as

equivalent to one banning a non-member with no such

associations; indeed, for the purposes of § 1303, we ought not

to. To so hold is to choose a blunt tool, even while more

precise analytical instruments are available.

D.

The majority believes that by exercising habeas

jurisdiction over Tavares’s ten-year banishment, we “would

create a perverse incentive for tribes to first disenroll and then

banish a member” to avoid federal review of the temporary

banishment. Maj. Op. 27. The true effect of the majority’s

decision is to render unnecessary that “two-step dance,” Maj.

Op. 27; all a tribe would need to do to evade federal review

is to temporarily banish a member—whether for ten years or

fifty, or longer. This creates a different “perverse incentive”:

to banish a member “temporarily”—say, for ten years—and

then to extend the banishment, again “temporarily,” perhaps

for another ten, and so on. The majority opines that

Tavares’s requested remedy “runs counter to Congress’s goal

of ‘strengthening the position of individual tribe members

vis-à-vis the tribe’ by enacting the ICRA,” Maj. Op. 27

(quoting Santa Clara Pueblo, 436 U.S. at 62), but that is

precisely backward. It is the majority’s opinion that runs

counter to and weakens that goal. The majority’s decision

makes the individual rights that Congress championed in the

ICRA dependent upon the whims of the tribe and hands the

tribe the tool by which it can evade our habeas review—the

only relief that the individual tribal member has against

arbitrary or retaliatory violations of her ICRA rights.

52 TAVARES V. WHITEHOUSE

IV.

Balancing individual civil rights against the importance

of tribal sovereignty, Congress in 1968 decided that the doors

of the federal courts are open to American Indians claiming

unlawful and significant restraints on their liberty by their

tribes. It is not for us to adjust the lines that Congress has

drawn based on our own personal views of where the limits

should be drawn. Despite Congress’s instruction to the

contrary, the majority denies Tavares the opportunity to

challenge her detention in our courts. I respectfully dissent.