It’s not every day you see the Ninth Circuit hand down an Indian law decision, let alone one dealing with tribal disenrollment. This blog’s particular attention to tribal disenrollment is well documented, so when I see a new case talking about this subject I am all over it.
The case in question is Jeffredo v. Macarro, — F.3d —, 2009 WL 4912143 (9th Cir. 2009). (To read the full opinion, see: http://blogs.findlaw.com/ninth_circuit/2009/12/jeffredo-v-macarro-no-08-55037.html)
For a full analysis, click here; below is a summary of the decision.
The Facts
The Appellants, several members of the Pechanga Band of the Luiseno Mission Indians (“Pechanga Tribe”), were disenrolled for failing to prove their lineal descent as members of the Tribe. Pursuant to the Pechanga Tribe’s constitution and bylaws, the Enrollment Committee investigated the Appellants because they “received information from its members alleging [the Appellants] were not lineal descendents from the original Pechanga Temecula people.” Jeffredo at *1. The Appellants were disenrolled after they failed to make the necessary showing that they were descended from a particular Indian ancestor and were disenrolled on March 16, 2006. Id. at *2-3. The Appellants exercised their right to appeal the decision to the Tribal Council; however, they affirmed the Enrollment Committee’s decision. Id. at *3. As a result of their disenrollment, the Appellants were denied access to the tribe’s Senior Citizens’ Center, health clinic, and their children could no longer attend the tribe’s school. Id. at *4.
Procedural Facts
The Appellants obtained counsel (no lawyers are permitted to represent tribal members during disenrollment proceedings according to the Pechanga Tribe’s constitution). Appellants’ counsel filed a petition for writ of habeas corpus under the Indian Civil Rights Act, 28 U.S.C. §§ 1301 – 1303 (“ICRA”). Id. at *3. The Appellants’ theory of recovery was that “their disenrollment by members of the [Tribal Council] was tantamount to unlawful detention.” Id. at *1. Specifically, the Appellants argued that “(1) the [effect of the disenrollment’s] actual restraints, (2) the [effect of the disenrollment’s] potential restraints, and (3) their lost Pechanga identity all amount to detention under [the Indian Civil Rights Act].” Id. at *4. Also, the Appellants argued that disenrollment was the same as banishment, and that this was analogous to unlawful detention. Id. at *6.
The Jeffredo Rule Set
The Ninth Circuit has laid out a rule set to determine whether or not a District Court has subject matter jurisdiction to hear a disenrolled Indian’s petition for writ of habeas corpus under ICRA:
- The disenrolled petitioner must be in custody; AND
- The disenrolled petitioner must first exhaust tribal remedies; AND
- The disenrollment proceedings must be criminal and not civil.
A failure to meet any requirement deprives a court of subject matter jurisdiction. See Id. at *4. With these rules in mind, the Ninth Circuit proceeds to affirm the Appellants’ disenrollment.
Discussion
Before analyzing the facts of the Appellants’ case, the Ninth Circuit covered a basic principle of Indian law. It cited Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and Cherokee Intermarriage Cases, 203 U.S. 706 (1906), in stating that “[a] tribe’s rights to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo, 436 U.S. at 72 n.32.
The Ninth Circuit ruled that disenrollment is not considered custody under the Indian Civil Rights Act. The Appellants’ disenrollment was not actual custody because being denied access to certain tribal facilities was not severe enough. The Appellants’ disenrollments were also not considered custody because the disenrollment’s potential threat of future detainment was neither severe nor immediate enough. The most interesting and creative argument that the Appellants’ counsel made was that the loss of tribal identity itself was severe enough to constitute as detention under ICRA.
While the Court had “the most sympathy,” for the reality that disenrolling Appellants effectively terminated their political existence as Native Americans, there was no “precedent for the proposition that disenrollment alone is sufficient to be considered detention under [the Indian Civil Rights Act.]” Id. Santa Clara Pueblo’s precedent cannot be ignored by courts in order to give federal courts jurisdiction to hear disenrollment proceedings, nor can the Court expand the “scope of the writ of habeas corpus to cover the exact same subject matter.” Jeffredo. at *5-6. The legislative history behind the Indian Civil Rights Act’s habeas remedy does not support the granting of subject matter jurisdiction to federal courts to review disenrollment proceedings. Id. at *6.
Also, the Appellants’ failed to exhaust their remedies with regards to their claim that disenrollment constituted banishment, and thus making the argument that disenrollment was equivalent to custody. Because of the Appellants’ failure to bring this claim at the tribal level, the Ninth Circuit declined to analyze this issue. The dissent noted that this conclusion was in error because the Appellants were “not asserting jurisdiction based on any exclusion or eviction from the Pechanga Reservation[, but rather], Appellants’ claim of jurisdiction . . . based on the restraints on their liberty arising from being disenrolled and threatened with exclusion.” Id. at * 12.
The Ninth Circuit also ruled that disenrollment proceedings were not criminal in nature, but were civil and therefore, the Appellants’ failed to establish the third prong of the rule set outlined at the beginning of the case. The Court felt that a broad interpretation of the ICRA habeas remedy would be “inconsistent with the principle of broad, unreviewable tribal sovereignty in all but criminal cases involving physical detention.” Id. at *7. Furthermore, courts give great deference to tribes concerning matters of enrollment and tribal membership because of “the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar,” and that “the judiciary should not rush to create causes of action that would intrude on these delicate matters.” Id. (citing Santa Clara Pueblo, 436 U.S. at 72 n.32).
Based on the above holding, the Appellants’ disenrollment was affirmed.
Now What?
As the Original Pechanga Blog notes: “The group can seek to have Tuesday’s decision re-heard by a larger group of 9th Circuit judges. They can ultimately appeal the case to the U.S. Supreme Court.” Off hand, I don’t know how successful appellants are in being granted a full en banc hearing, or whether the cost of bringing a lawsuit further into appellate court would discourage such petitions, but this could be an option. As for the Supreme Court, I have a good feeling the Roberts-lead SCOTUS will flush this case either through denying certiorari or affirming the Ninth Circuit without comment. Granting cert wouldn’t inspire me with much hope either since a published decision would reinforce already stagnant (and inherently racist) law, but would extend such law into the area of disenrollment.
All in all, the Ninth Circuit’s ruling is not very surprising other than it being published. Is it fair? No. Not in the slightest. As the dissent points out, Pechanga’s disenrollment procedures were never used on a large scale “until recently, when the Tribe’s casino profits became a major source of revenue,” and “every adult Pechangan received a per capita benefit of over $250,000 per year.” Jeffredo, — F.3d —, *8 & *8 n.1 (Wilken, J., dissenting). What the Jeffredo decision illustrates is the clear lack of any Indian’s Constitutional rights to procedural due process in the United States. Indians are Americans too, and all Americans have basic rights to life, liberty and property. What could be more detrimental to an Indians’ liberty interest than their loss of tribal identity? No court of law can ever grant a good decision to a disenrolled Indian so long as they follow Santa Clara Pueblo‘s precedent that Indian membership can only be handled by Indians only.
The dissent makes the clear analogy between disenrollment and denaturalization, and using denaturalization as a form of punishment is:
[M]ore primitive than torture, for it destroys for the individual the political existence that was centuries in the development. . . . This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people[.] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
While the Court had “the most sympathy,” for the reality that disenrolling Appellants
effectively terminated their political existence as Native Americans, there was no
“precedent for the proposition that disenrollment alone is sufficient to be considered
detention under [the Indian Civil Rights Act.]” Id. Santa Clara Pueblo’s precedent
cannot be ignored by courts in order to give federal courts jurisdiction to hear
disenrollment proceedings, nor can the Court expand the “scope of the writ of habeas
corpus to cover the exact same subject matter.” Jeffredo. at *5-6. The legislative history
behind the Indian Civil Rights Act’s habeas remedy does not support the granting of
subject matter jurisdiction to federal courts to review disenrollment proceedings. Id. at
*6.
