Summary
In Payer v. Turtle Mountain Tribal Council, 2003 WL 22339181 (D. N.D. 2003) (at page 19 of the petition) the court dismissed the action "styled as a request for habeas corpus relief" because it lacked "jurisdiction over this matter as the Petitioners have not satisfied the detention requirement.
Summary of this case from Martinez v. MortonOpinion
Case No. A4-03-105, Docket Number: 6
October 1, 2003
ORDER DISMISSING PETITIONERS' APPLICATION FOR WRIT OF HABEAS CORPUS UNDER 25 U.S.C. § 1303
Summary: Tribal members filed an application for a writ of habeas corpus under 25 U.S.C. § 1303 following their removal from the Ojibwa Indian School Board by Tribal Council. The Court dismissed the application, finding that the tribal members had not satisfied the detention requirement contained in 25 U.S.C. § 1303.
Before the Court is the Petitioners' Application for Writ of Habeas Corpus under 25 U.S.C. § 1303. The Petitioners assert that their civil rights were violated by the Respondents. The relief the Petitioners seek is a writ of habeas corpus under 25 U.S.C. § 1303. For the reasons outlined below, the Petitioner's application is denied.
I. BACKGROUND
The Ojibwa Indian School ("OIS"), formerly known as St. Ann's Mission, is a private corporation chartered and incorporated by both the State of North Dakota and the Turtle Mountain Band of Chippewa. It is located within the exterior boundaries of the Turtle Mountain Indian Reservation and the charter and bylaws provide for internal operation separate and apart from the Turtle Mountain Tribe. These bylaws recognize the OIS Board of Directors as the OIS school board. Additionally, the bylaws authorize corporate officers to enter into contractual relations with the Bureau of Indian Affairs for receipt of federal grant funds.
The Petitioners are members of the Turtle Mountain Band of Chippewa who were elected to the OIS Board of Directors, where they served as both school board members and as grant administrators. While sitting on the board, the Petitioners contracted with the United States Department of the Interior for the receipt of approximately $29,000,000 in federal funds for the OIS with the understanding that this money was to be disbursed through OIS corporate bank accounts.
On March 31, 2003, without giving notice to the Petitioners, tribal councilmen for the Turtle Mountain Band of Chippewa, Respondents Richard Monette, Leon Morin, Stuart Medrud, Les LaFountain, and Terry Baker (the "Respondents"), passed a resolution stating that the Petitioners had committed unspecified criminal activity in their capacity as OIS school board members. The Respondents then proceeded to remove the Petitioners from the school board and appoint themselves as replacements.
On May 30, 2003, Tribal Judge Madonna Marcellais granted the Petitioners a Temporary Injunction. On June 20, 2003, Special Judge John C. McClintock conducted a hearing on this matter. On June 27, 2003, Special Judge McClintock issued an order (1) removing the Respondents from the OIS school board and reinstating the Petitioners, (2) enjoining the Respondents from calling a special election to replace the Petitioners, and (3) instructing the Respondents to take no further action against the Petitioners without first providing them with proper notice and a hearing.
The Respondents did not appeal Special Judge McClintock's order. Instead, they terminated Judge McClintock on or about July 1, 2003. On July 3, 2003, the Respondents convened; passed another resolution charging the Petitioners with violating unspecified federal and tribal laws; and again removed the Petitioners from their positions on the OIS school board. The Petitioners responded by filing a Motion for Contempt with the Tribal Court on July 15, 2003, in an attempt to enforce Special Judge McClintock's July 1 order. However, the Respondents, without giving notice to the Petitioners, proceeded to abolish the OIS as a private corporation and, on July 18, 2003, passed a resolution giving themselves authority over the OIS's purse strings. On July 24, 2003, the Respondents suspended Tribal Judge Marcellais ostensibly for granting the Petitioners a Restraining Order. On July 31, 2003, the Respondents suspended Petitioners Rebecca Bless and Sam LaRoque from their OIS corporate positions; barred them from the OIS's corporate premises; and terminated all OIS teacher and employment contracts executed by the Petitioners after March 31, 2003.
On August 3, 2003, the Petitioners file a Request for a Temporary Restraining Order. The Tribal Court declined to take action on their request. On August 4, 2003, the Respondents passed a third resolution charging the Petitioners with continual violations of unspecified tribal laws.
Thereafter, the Respondents reinstated Tribal Judge Marcellais on August 7, 2003. That same day Respondent Richard Monette, on the tribe's behalf, filed a request for a Temporary Restraining Order and Permanent Injunction against the Petitioners. On August 8, 2003, Tribal Judge Marcellais granted the Respondent Monette's request. On August 14, 2003, Judge Marcellais issued a supplemental order giving the Respondents authority over OIS bank accounts and the $29,000,000 in federal grant monies contained therein.
On September 5, 2003, the Petitioners filed their Application for Application for Writ of Habeas Corpus under 25 U.S.C. § 1303, alleging:
Ground 1 Petitioners were wrongfully deprived of their liberty and property without due process of law and wrongfully denied the equal protection of the law and subjected to an unlawful detention by Respondents in violation of the 25 U.S.C. § 1302(8) of the Indian Civil Rights Act of 1968. Ground 2 Petitioners were denied the right to a speedy and public trial, were not informed of the nature and cause of the accusations, were not allowed to confront witnesses against them, nor were they allowed to call witnesses in their favor resulting in their illegal detention by Respondents in violation of the 25 U.S.C. § 1302(8) of the Indian Civil Rights Act of 1968. Ground 3 Petitioners were subjected to a wrongful bill of attainder passed by Respondents resulting in their [Petitioners] illegal detention by Respondents in violation of the 25 U.S.C. § 1302(8) of the Indian Civil Rights Act of 1968.
II. LEGAL DISCUSSION
It is well-established that Indian tribes possess a unique legal status in that they are recognized as distinct political entities retaining the inherent power to manage internal tribal matters. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978). Because tribal powers of self-government are "retained" and predate the federal Constitution, those constitutional limitations that are by their terms or by implication framed as limitations on federal and state authority do not apply to tribal institutions exercising powers of self-government with respect to tribal members or others within the tribe's jurisdiction. That being said, tribal authority remains subject to congressional limitation. Id. Congress, with its enactment of Title I of the Indian Civil Rights Act, sought to apply some basic norms to tribal governments in the form of restrictions similar to those contained in the Bill of Rights and the Fourteenth Amendment. These constitutional norms were codified at 25 U.S.C. § 1302 as follows:
No Indian tribe in exercising powers of self-government shall —
(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peacably to assemble and to petition for a redress of grievances;
(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
(3) subject any person for the same offense to be twice put in jeopardy;
(4) compel any person in any criminal case to be a witness against himself;
(5) take any private property for a public use without just compensation;
(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature of the cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both;
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
(9) pass any bill of attainder or ex post facto law; or
(10) deny to any person accused of an offense punishable by imprisonment the right upon request, to a trial by jury of not less than six persons
In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the United States Supreme Court held that in the absence of any unequivocal expression of contrary legislative intent, suits against the tribe under the Indian Civil Rights Act are barred by its sovereign immunity from suit. At issue in Santa Clara was a tribal ordinance that denied membership in the tribe to children of female members who had married outside the tribe, while extending membership to children of male members who had married outside the tribe. Julia Martinez, a female member of the Santa Clara Pueblo, sought to bar enforcement of this ordinance. On appeal, the Supreme Court concluded that:
(1) Section 1303 of the Indian Civil Rights Act did not serve as a waiver of tribal sovereign immunity;
(2) the Indian Civil Rights Act neither expressly nor impliedly provided for a civil cause of action in federal courts against tribal officials; and
(3) that federal enforcement of the substantive provisions of Section 1302 of the Indian Civil Rights Act was limited to those cases where the remedy sought was a writ of habeas corpus.
Although the Petitioners are alleging violations of their civil rights under Section 1302 of the Indian Civil Rights Act, the relief they seek is a writ of habeas corpus under 25 U.S.C. § 1303, which authorizes motions by a person "test[ing] the legality of his detention by order of an Indian tribe." The question before this Court is what constitutes "detention" for purposes of 25 U.S.C. § 1303. While the Eighth Circuit has yet to squarely address this question, other courts have looked to cognate statutory provisions governing collateral review of state and federal actions, i.e., 28 U.S.C. § 2241, 2254, and 2255, in interpreting the term "detention" as used in 25 U.S.C. § 1303. See, 85 F.3d 874, 889, 890 (2d Cir. 1996); Weatherwax on Behalf of Carlson v. Fairbanks, 619 F. Supp. 294, 296 n. 4 (D. Mont. 1985).
In Poodry, the petitioners sought writs of habeas corpus on the grounds that a banishment order entered by tribal officials amounted to a criminal conviction in violation of their rights under Title I of the Indian Civil Rights Act, 25 U.S.C. § 1301-1303. The district court dismissed the action for lack of subject matter jurisdiction. On appeal, the Second Circuit vacated the district court's order and remanded the matter for further proceedings, explaining that the terms "custody" and "detention" are generally used interchangeably in the habeas context.
Section 1303 of the ICRA provides that "[t]he 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 a order of an Indian tribe." In contrast, 28 U.S.C. § 2241(c)(3), along with § 2254(a), serves as a basis for a federal court to exercise jurisdiction over one held "in custody" by a state "in violation of the Constitution or laws or treaties of the United States." Similarly, 28 U.S.C. § 2255 permits a district court to entertain a motion by "a prisoner in custody under sentence" of a federal court; § 2241(c)(1), which authorizes relief from federal restraint mainly in noncriminal settings, also uses the phrase "in custody." The question is whether we should look to the interpretation of the "custody" requirement of these cognate federal statutes to inform our interpretation of the term "detention" in § 1303. The petitioners seize upon the difference in language to urge that Congress's use of the terms "detention" in the ICRA was deliberate, and was intended to empower district courts to entertain a petition for habeas corpus relief in a wider range of circumstances than the analogous provisions for relief from state and federal permit.
We are not persuaded. We found 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 procedural provisions accompanying § 2241, see §§ 2242, 2243, 2244(a), 2245, 2249, and 2253. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 889-891. The Second Circuit dismissed the notion that Congress intended to create a more expansive role for federal court habeas review of tribal actions when enacting the Indian Civil Rights Act, finding that the "legislative history of the [Indian Civil Rights Act] simply does not support the proposition that § 1303 was intended to be read more broadly than other habeas statutes." 85 F.3d at 891.
This Court finds persuasive the Second Circuit's analysis with respect to the scope of Section 1303. Accordingly, this Court construes the terms "custody" and "detention" coextensively. Thus, persons seeking to invoke jurisdiction in a federal court under 25 U.S.C. § 1303 must demonstrate a severe actual or potential restraint on liberty. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 880 (noting that under Jones v. Cunningham, 371 U.S. 236, 243 (1963), and its progeny, actual physical custody is not a jurisdiction prerequisite for federal habeas review); see also Moore v. Nelson, 270 F.3d 789, 791 (9th Cir. 2001) ("There is no reason to conclude that the requirement of `detention' set forth in the Indian Civil Rights Act § 1303 is any more lenient than the requirement of `custody' set forth in the other federal habeas statutes"); Harvey v. State of N.D., 526 F.2d 840, 841 (8th Cir. 1976) (stating that, in the context of a petition for federal habeas corpus filed by a state prisoner, the custody requirement has been equated with significant restraint on liberty). While the Supreme Court has not attempted to define with exactness the liberty guaranteed by the Constitution, it hasrecognized that [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972).
The following is a non-exhaustive list of cases where courts have held that a person is "in custody" for habeas jurisdictional purposes:
(1) when a person is released on his own recognizance pending sentencing, Hensley v. Municipal Court, 411 U.S. 345, 351 (1973);
(2) when a person is on probation or parole, United States ex. rel. B. v. Shelly, 430 F.2d 215, 217-18 n. 3 (2d Cir. 1970);
(3) when a person is subject to a suspended sentence carrying a threat of future imprisonment, Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986); and
(4) when a tribal member is "banished" from a tribe and its reservation, Poodry, 85 F.3d 874. The common thread running through all of these cases appears to be a restraint on a person's liberty of movement not shared by the public generally.
Outside the context of a habeas corpus proceeding, the Supreme Court has recognized that a liberty interest may exist where an employee's "good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572; see Mascho v. Gee, 24 F.3d 1037, 1039 (8th Cir. 1994). To establish a claim for the deprivation of such an interest, "the employee must show defamation by a state official, and that the defamation occurred in the course of the termination of employment." Mascho v. Gee, 24 F.3d 1037, 1039 (8th Cir. 1994).
Although the relief sought by the Petitioners has been styled as an application for a writ of habeas corpus, the Petitioners have failed to demonstrate a sufficiently severe restraint on their liberty. The Petitioners assert that being removed from the Ojibwa Indian School ("OIS") and stripped of authority to administer OIS funds constitutes an "unlawful detention." However, the Court does not equate steps resembling an adverse employment action with "detention" as contemplated by 25 U.S.C. § 1303. Further, removal from elected office cannot be likened to probation, release pending sentencing, or banishment from a reservation. To accept the Petitioner assertion, the Court would be required to stretch even the most liberal definition of "detention" and abandon the limits of the Indian Civil Rights Act as recognized by the Supreme Court in Santa Clara Pueblo v. Martinez.
This case is distinguishable Board of Regents of State Colleges v. Roth and Mascho v. Gee in that Petitioners were not hired by and did not work directly for the tribe. Rather, the Petitioners were elected and served on the Board of Directors and school board of a private corporation. Moreover, nowhere in the Petitioners application have they alleged to have been stigmatized so as to seriously damage their standing in the community, or foreclosed from taking advantage of other employment opportunities on account of the Respondents actions. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (injury to reputation by itself is not a "liberty" interest protected under the Constitution). Even if the Court were to find that the Petitioners have a liberty interest at stake, they have not demonstrated a severe restraint on liberty.
Finally, the Court remains mindful of the Supreme Court's admonition in Santa Clara Pueblo v. Martinez that in order not to intrude unduly on tribal self-government, the enforcement of most of the guarantees of the Indian Civil Rights Act should be left to the tribal courts. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66. The United States Supreme Court expressly held that "[t]ribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." Id.
In summary, the Petitioners may claim that their liberty has been unlawfully restrained, but on a close examination their claims can more appropriately be characterized as an alleged deprivation of a property right. The alleged taking of property in this instance does not involve detention and, consequently, may not be remedied in this Court. See Santa Clara Pueblo v. Martinez, 436 U.S. 49; see also Crow v. Eastern Band of Cherokee Indians, Inc., 584 F.2d 45 (4th Cir. 1978). The appropriate forum to resolve this dispute is within the Tribal Court system.
III. CONCLUSION
The decision of the United States Supreme Court in Santa Clara Pueblo v. Martinez reduces the degree of federal interference in tribal government and requires that enforcement of the Indian Civil Rights Act rest primarily in the Tribal Courts. Although the Petitioners have styled this action as a request for habeas corpus relief, the Court concludes that it lacks jurisdiction over this matter as the Petitioners have not satisfied the detention requirement of 25 U.S.C. § 1303. The Court is required to raise jurisdictional issues sua sponte when there is an indication that jurisdiction is lacking. See Krein v. Norris, 250 F.3d 1184, 1187 (8th)
Accordingly, the Petitioners' Application for Application for Writ of Habeas Corpus under 25 U.S.C. § 1303 (Docket No. 1) is DENIED.
IT IS SO ORDERED.