In the last article, and the one before it, we discussed the origins of tribal sovereign immunity and how it has acted as a buffer against lawsuits filed by private citizens and state governments. We also discussed tribal disenrollments, the process by which federally recognized Indian tribes may expel individuals from their membership and revoke their legal status as Native Americans. As always, there are two sides to any issue. One side argues that Indian tribes are disenrolling their members because it would mean more money spread out among fewer people from tribal gaming, that Indian gaming itself is perpetuating greed and deceit amongst the Indian people. The other side argues that regulating tribal membership is an offshoot of maintaining and growing a multi-million dollar business; that any one particular tribe should only have to worry about its own members and provide for them, and not for anyone whose lineage to that particular tribe is questionable.
The last article dealt with Santa Clara Pueblo v. Martinez, a U.S. Supreme Court case dealing directly with tribal membership regulation. The Court held:
Indian tribes are distinct, independent, political communities, retaining their original natural rights in matters of local self-government. Although no longer possessed of the full attributes of sovereignty they remain a separate people, with the power of regulating their internal and social relations (i.e. membership, inheritance rules, and domestic relations.) They have the power to make their own substantive law in internal matters and to enforce that law in their own forums. 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 (1978 ) 436 U.S. 49, 55 [98 S. Ct. 1670, 56 L. Ed. 2d 106].)
Santa Clara also marked an occasion whereby Indians sought relief under statutory law; in that case, it was the Indian Civil Rights Act (25 U.S.C. 1301-1303). In California, many disenrolled have attempted to find relief under Public Law 280, a federal law which hands down certain civil and criminal jurisdiction to certain state governments. This article deals with the Indian Civil Rights Act of 1968.
The Indian Civil Rights Act & California State Courts
Santa Clara Pueblo highlighted a cause of action concerning tribal membership with regards to ICRA; unfortunately, the Supreme Court struck down the plaintiff’s suit: “In the absence here of any unequivocal expression of contrary legislative intent [behind ICRA], we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.” (Santa Clara Pueblo v. Martinez, supra, 436 U.S. 49, 59.)
The Indian Civil Rights Act was passed in 1968 and was meant to extend to tribes certain constitutional protections that weren’t supplied to them under the United States Bill of Rights. (Talton v. Mayes (1896) 163 U.S. 376, 382 [16 S. Ct. 986, 41 L.Ed. 196]; see also Getches et. al., Cases and Materials on Federal Indian Law (2005) p. 388.) Section 1302 is simply a near verbatim parroting of the United States Bill of Rights however several features are missing from ICRA, namely, “limitations similar to the establishment of religion clause, the guarantee of a republican form of government, the privileges and immunities clauses, the provisions involving the right to vote, the requirement of free counsel for an indigent accused, and the right to a jury trial in civil cases.” (Getches, at p. 388.) The only remedy available under the Indian Civil Rights Act is that of habeas corpus:
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.)
Furthermore, California courts have re-affirmed Santa Clara Pueblo‘s holding where Indians have attempted to bring causes of action against the tribes and tribal officers that have disenrolled them:
The [Supreme Court of the United States] found that imposition of a federal cause of action for enforcement of the rights created in title 1 of the ICRA, however useful in securing compliance with 25 United States Code section 1302, would undermine the authority of tribal forums and impose serious financial burdens on financially disadvantaged tribes… Therefore, the Supreme Court found section 1302 does not impliedly authorize actions for declaratory or injunctive relief against either a tribe or its officers. (Ackerman v. Edwards (2004) 121 Cal.App.4th 946, 952-953 [17 Cal.Rptr.3d 517].)
The Ackerman case also carried Santa Clara Pueblo‘s refusal to grant causes of action under the ICRA in setting aside a tribe’s sovereign immunity into California state courts via Public Law 280, which shall be discussed shortly. The Ackerman case centered around “the 76-member Foreman family that says it was unjustly cut from the Redding Rancheria‘s membership rolls. Members of the Redding Rancheria voted in January  that the family could not prove its links to the tribe… The family alleges the vote was driven by greed for increased gaming dividends that are paid out to tribal members.” (Lawsuits over cuts to tribal membership rise as Indian gaming industry grows (July 2004), volume 2, No. 7, Nat. Amer. L.Rep. 63.)
The trouble for the Foreman family began when a tribal elder wrote two letters to Redding’s enrollment committee “casting doubts” on their lineage and, upon further investigation, found that an application file for the family’s grandfather claiming ancestral ties through an already established member of the tribe lacked a birth certificate and baptismal record. (Ackerman v. Edwards, supra, 121 Cal.App.4th 946, 949.) The family was then disenrolled according to procedures adopted by the tribe wherein an impartial mediator (who must also be an attorney) would preside over a formal hearing on the reconsideration of tribal enrollment. (Id. at p. 950.) When the disenrolled sought action in court, the Tribe filed a motion to quash service of summons based on the trial court’s lack of jurisdiction to which the court held in favor. The disenrolled then sought appeal on the grounds that Public Law 280 granted California courts jurisdiction to hear membership disputes despite Santa Clara Pueblo’s holding, however the appeals court held against them and affirmed the trial court’s decision.
In a similar situation, a family made up of 132 individuals, constituting one-fifth of the Pechanga Band of Luiseno Indians, were disenrolled when “tribal leaders…questioned whether the family’s ancestor…was a true Pechanga Indian.” (Pechanga family files second lawsuit alleging wrongful tribal disenrollment (April 2005), volume 3, No. 4, Nat. Amer. L.Rep. 40.) The lawsuit was filed, charging “Pechanga leaders with seeking to expand their share of power and gaming profits.” (Ibid.) The lawsuit specifically charged the tribe with violating its own laws as well as the ICRA to which the trial court, after much litigation, dismissed the lawsuit for lack of jurisdiction based on tribal sovereign immunity. The disenrolled appealed, claiming the court did have jurisdiction via Public Law 280. The appellate court stated:
[The disenrolled plaintiffs] argue that as the [Pechanga Band] does not have a “tribal court,” the state courts [of California] therefore operate as de facto “tribal courts” to decide disputes between tribal members. As we will explain, California courts act as “tribal courts,” if at all, in only a limited sense, and that sense does not extend as far as plaintiffs argue… With some reluctance we conclude that Congress did not intend [Public Law 280] to authorize state courts to intervene in a case such as this. (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1062 [31 Cal.Rptr. 3d 880].)
Aside from denying plaintiff’s Public Law 280 argument, the court dealt with their cause of action under ICRA:
The cause of action under the Indian Civil Rights Act of 1968 is also unsustainable in California courts. As [Santa Clara Pueblo v. Martinez] explains, Congress chose not to create a federal remedy for tribal violations of the act in order to protect tribal autonomy; a fortiori Congress cannot have intended that the various courts of Public Law 280 states would have jurisdiction over such claims. (Id. at p. 1067.)
ICRA Habeas Corpus Remedy & Federal Courts
Poodry v. Tonawanda Band of Seneca Indians
The only remedy available under the ICRA is that of Habeas Corpus. Banishment, unlike disenrollment, pertains to geographic movement such as physically removing an Indian person from the borders of the Rancheria or Reservation however it is implied that one is also disenrolled, i.e. losing a certain legal and financial status, when banished. A case in the 2nd Circuit of Appeals, Poodry v. Tonawanda Band of Seneca Indians, took on the issue of whether “banishing” members of an Indian constituted an unlawful detention sufficient to activate the ICRA’s sole remedy. The court ruled positively on the issue, however, the court also took pains to distinguish between whether banishment was a criminal or civil act and ultimately deciding that it was a criminal one. In looking at the legislative history of ICRA, the Court concluded:
Since these proposed remedial sections referred specifically to criminal convictions, it would be possible to conclude that the remedial section ultimately enacted-providing for habeas review-was intended by Congress to apply only in criminal cases. (Poodry v. Tonawanda Band of Seneca Indians (2d Cir. 1996) 85 F.3d 874, 889.)
Futhermore, in a purely criminal context, banishment constituted a deprivation of liberty. (Id. at p. 894.) However, a defeat has handed to the plaintiff on the basis of jurisdiction, the constant enemy of tribal litigants. On what could have been a doorway for other federal circuits to allow banished and disenrolled a federal habeas corpus remedy, the 2nd Circuit ruled:
[ICRA] does not signal congressional abrogation of tribal sovereign immunity even in habeas cases. In claiming otherwise, the petitioners misapprehend the reasoning of the cited passage from Santa Clara Pueblo: not only does § 1303 not serve as a general waiver of immunity in civil suits, there is no immunity issue here at all. Because a petition for a writ of habeas corpus is not properly a suit against the sovereign, the Tonawanda Band is simply not a proper respondent. (Id. at p. 899.)
Despite banishment being a criminal act that served as an unlawful detention the fact still remained: ICRA is useless against tribal governments who disenroll or banish their members.
Quair v. Sisco
To drive the point further, the 9th Circuit took up banishment under the habeas corpus remedy of ICRA in Quair v. Sisco. The dispute arose from the Santa Rosa Rancheria Tachi Indian Tribe who voted to disenroll and banish the two plaintiffs who then filed a cause action against the tribe citing violations of Santa Rosa’s constitution, and that such violations could be sustained via the habeas corpus remedy of ICRA. The Court ruled, citing Poodry, that banishments were punitive in nature but didn’t conclude that they were criminal but civil. (Quair v. Sisco (9th Cir. 2004) 359 F.Supp.2d 948, 966.) Despite, not being a criminal act, the banishments and disenrollments may have possibly been a violation of ICRA thus denying each side the summary judgment they sought.
A summary judgment is simply a finding by a judge that there is such a dispute in each side’s presentation of the facts that the dispute must be resolved by a jury and not a judge. However, a jury could not determine the outcome of the dispute based on the same jurisdictional problem Poodry had:
…federal courts will not review an alleged violation of a tribal constitution on the ground that it is an internal tribal matter subject to sovereign immunity. Nonetheless, petitioners assert, “when the violation of its own Tribal Constitution allows a tribe to exceed its jurisdiction under the Indian Civil Rights Act, the Court does have jurisdiction to review the matter.” However…petitioners’ claim is barred by the doctrine of sovereign immunity. “Jurisdiction to resolve internal tribal disputes, interpret tribal constitutions and laws, and issue tribal membership determinations lies with Indian tribes and not in the district courts.” Because respondents have been sued in their official capacities, these claims are barred by the doctrine of sovereign immunity. (Id. at p. 979.)
The judge in the Quair case ordered Santa Rosa General Council to hold a rehearing to reconsider its disenrollment and banishment of the plaintiffs. At this rehearing the plaintiffs would have the opportunity to have legal counsel present and to present witnesses. The plaintiffs didn’t show to the rehearing claiming that the rehearing itself was a violation of ICRA as it was being conducted by the very same governing body that unfairly disenrolled them anyway. The General Council then voted once again to disenroll and banish the plaintiffs. The plaintiffs once again took up legal action under ICRA, this time arguing that disenrollments were subjected to the same habeas corpus review as banishments. In an unpublished/non-citable opinion, the court held:
Here, the disenrollment of petitioners does not qualify as detention under § 1303…disenrollment strips a member of tribal membership and the tangible benefits that attend upon membership… In this case, all the benefits are financial, such as monthly per capita payments that come from the Tribe’s gaming revenue… Section 1303 grants federal courts jurisdiction to review [detentions] and not penalties that, while harsh, do not constitute detention. Therefore, the court finds that § 1303 is simply inapplicable to the disenrollment of petitioners. (Quair v. Sisco (May 21, 2007, 1:02-CV-5891 DFL) [nonpub. opn.].)
Quair and Poodry point out the uselessness of pleading a disenrollment case under ICRA. The last statute the disenrolled have used to combat their former tribal nations is Public Law 280, a federal statute that cedes criminal and civil authority to certain states, among them being California. As we will see in Part 4, this too has proven ineffective.
Or, continue to Part 4.