Excerpted from: Andrea M. Seielstad, The Need for More Exacting Assessment of the Individual Rights and Sovereign Interests at Stake in Federal Court Interpretation of "Detention" under the Indian Civil Rights Act's Remedy of Habeas Corpus, 14 Tennessee Journal of Law and Policy 63 (Summer, 2019) (337 Footnotes) (Full Document)



The recognition of fundamental civil or human rights, even ones guaranteed under a Bill of Rights or Constitution, depends not just on their codification under law but on their enforceability. While the very existence of individual rights as a matter of legal or constitutional mandate may guide and limit government action, there inevitably will be encroachments. When that occurs, there must be effective remedies for seeking redress and correcting government practices or actions or the rights functionally cease to exist. "When one's civil liberties are infringed, there must be a process to challenge that injury, an opportunity to be heard, and, critically, a system of judicial review to test the legitimacy of that deprivation." As explained by the Supreme Court in its first case recognizing the right of judicial review of constitutional matters: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."

For rights violations perpetuated by state and local officials and governments, Congress has enacted civil rights legislation providing for causes of action, enabling both state and federal court to ascertain remedies. The creation of federal courts with independence and jurisdiction to hear matters arising under federal law provides a forum for those concerned about their reception in state and local courts. When federal officials violate individual rights, a federal cause of action has been directly implied from the Constitution. This combination of congressional legislation and judicial decision-making has established a path by which individuals may seek legal redress in the form of civil actions seeking both damages and injunctive relief for violations of their rights. The statutory availability of attorney fees expands the opportunities for legal representation as well.

In addition to these civil remedies, for violations that infringe directly upon liberty, the writ of habeas corpus, or "great writ of liberty," as it is often called, has been a "vital instrument" to check governmental power and secure remedies from unlawful restraint. Dating back to English common law in the 14 century, it is a judicial remedy whose goal is to provide relief against the arbitrary use of government authority to imprison or otherwise restrict the liberty of individuals without just cause. Colonial courts recognized the writ as matter of common law, as modern courts continue to do. The writ is recognized in the U.S. Constitution, which provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In the Judiciary Act of 1789, Congress granted the federal courts jurisdiction over habeas corpus to persons in federal custody or who were charged and set for trial before a federal court. In 1867, at the height of post-Civil War reconstruction during which time some states and local authorities resisted adherence to federal civil rights laws, that Congress bestowed the right in federal court to challenge unlawful state deprivation of liberty through the writ of habeas corpus.

Thus, by 1867, individuals who were unlawfully detained in violation of the Constitution, treaties or any law of the United States could seek release in federal court using the writ of habeas corpus, whether they were detained pursuant to federal or state authority. Although there has been an ebb and flow to the scope of the writ, particularly with respect to federal challenges to state detentions, the remedy of habeas corpus remains a crucial tool against arbitrary and unlawful rights violations that result in deprivation of liberty. Additionally, those whose federally guaranteed rights have been encroached upon by federal, state or local authority, as indicated above, may seek injunctive relief and damages through other federal causes of action. This ensures accountability by government officials at all levels of federal, state and local government to the civil rights laws of this nation.

The path for recognition of individual rights of Native Americans vis-a-vis tribal government action has taken a different, much more circumscribed path to federal recognition. Because tribes enjoy some measure of inherent sovereignty that predated the formation of the United States Constitution, they are not subject to the Bill of Rights or other Constitutional restrictions. It was not until 1968, moreover, that Congress exercised its plenary power over tribal affairs and enacted the Indian Civil Rights Act (hereinafter "ICRA"). The [Indian Civil Rights Act] bestows on tribes the requirement, as a matter of federal statutory law, that they adhere to fundamental rights similar to those of the Bill of Rights.

With respect to enforcement of [Indian Civil Rights Act]'s substantive provisions, however, the Supreme Court determined in the case of Santa Clara Pueblo v. Martinez that Congress authorized federal review only when grounds for relief under the writ of habeas corpus exist. While individuals must establish that a violation of one of the substantive provisions of [Indian Civil Rights Act] has occurred and, sometimes, that they have exhausted tribal remedies, the key interpretive issue is whether the circumstances of their rights violations may qualify for habeas relief under the act: namely, whether a "detention" has occurred under § 1303. Thus, in contrast to federal, state and local encroachments of federal substantive rights, the writ of habeas corpus is the only federal remedy available for those impacted by tribal officials or actions. Unless tribes independently provide for them within their own tribal court system, which is not universally the case, there are no causes of action that may be construed for damages or injunctive relief outside of the scope of habeas.

Since Santa Clara Pueblo, a number of individuals impacted by very serious encroachments of their rights by tribal officials and possessing no further remedies within their tribal systems of justice have sought federal recognition and enforcement under [Indian Civil Rights Act]'s habeas provision in last ditch efforts to avert harm to the freedom and livelihood of individual tribal members as well as to the interests of the sovereign itself. In some cases, individuals have been arrested and incarcerated by order of tribal court or council without counsel, jury trial or other due process. In others, they have been banished, disenrolled, or excluded from tribal facilities, services and cultural events. Judges and tribal court advocates have been removed from office in retaliation for decisions or advocacy that challenged certain tribal action or officials. When accompanied by disenrollment from tribal membership, individuals' political, cultural and legal identity and status as an Indian and member of a distinctive tribe may be lost altogether. The ramifications to individuals are often devastating, and there can be an impact as well on the collective interests of the tribe. This article explores the scope of the remedies available for federal redress under [Indian Civil Rights Act] and the federal courts' response to jurisdictional challenges brought by tribes in an effort to remove cases from the boundaries of [Indian Civil Rights Act]'s habeas provision.

While some decisions have rendered interpretations of [Indian Civil Rights Act]'s habeas requirement commensurate in scope to that of habeas relief challenging custodial situations under federal and state authority, a number of decisions have limited federal court review of individual rights much more narrowly. Indeed, it may be argued that such interpretations virtually eviscerate Congressional intent in enacting [Indian Civil Rights Act]. Santa Clara Pueblo v. Martinez put the brakes on federal review of [Indian Civil Rights Act]'s substantive rights, citing a Congressional policy toward deference to tribal sovereignty and the need for federal judicial restraint in encroaching on it; but it did not preclude federal court review of tribal violations of its substantive rights altogether. Nor does it warrant restrictions in federal review beyond those inherent in the habeas remedy itself.

With some exceptions, lower court opinions since Santa Clara Pueblo have effectively denied relief to individuals in ways unanticipated by Congress or the Supreme Court. This has particularly been the case with respect to exclusion and enrollment cases wherein tribal officials, often pressured or induced by distribution of gaming revenues and/or efforts by individual tribal members to advocate for accountability of tribal officials, have sought to dis-enroll or exclude tribal members from tribal census rolls and services. The Ninth Circuit, in recent cases, has exacted a particularly severe toll on the ability of individuals to seek redress for violations of rights guaranteed to them under [Indian Civil Rights Act].

In many cases, the rejection of federal jurisdiction is premised upon a summary and abstract deference to tribal sovereignty concerns. Federal courts, in those instances, often make general reference to a policy of deference to tribal sovereignty concerns without analyzing the particular sovereign interests or impacts that are present in any given case.

Tribes are often treated as monolithic units for the purposes of application of federal law, bestowed with common attributes of sovereignty and the need for deference to it. However, not all exercises of sovereignty are similar or based on exercise of inherent or internal tribal sovereign interests. Sometimes actions that violate individual rights, may also damage a tribes' sovereign interests and ability to engage in self-determination as well. For example, where a tribe takes land set aside for the purpose of individual and family livelihood and residence to further private development interests, there may be a net loss to the community of livable spaces. In many cases, federal funds or legal interests are implicated and/or outside private financial or business enterprises are driving the tribal action in ways that are not necessarily in the interests of collective self-determination of a particular tribal nation. Sometimes personas acting as tribal officials may act outside the boundaries of recognized governance structures to the grave detriment of the community, entering into questionable financial arrangements, taking land, compromising tribal programs and services, and/or disenfranchising or dis-enrolling members critical to the long-term sustainability of the tribe itself. While it is true that restraint on federal court review may be warranted with respect to some intratribal disputes, denying federal review may also have a devastating impact not just on the inability of individuals to have [Indian Civil Rights Act]'s substantive rights be recognized and enforced but on the sovereignty and well-being of the tribe as a whole. In any case, as discussed more fully below, more exacting criteria for rejecting review in the name of sovereignty should be applied by the federal courts, with an eye toward maximizing the interests of the individuals involved as well as the tribal community.

Focusing on the [Indian Civil Rights Act]'s habeas provision under § 1303, this article analyzes and critiques federal court interpretation and application of the scope of [Indian Civil Rights Act]'s habeas relief since Santa Clara Pueblo.

Part II establishes the background of [Indian Civil Rights Act] and its habeas corpus provision.

Part III sets forth the courts' interpretation of what it means to be detained for the purposes of [Indian Civil Rights Act]'s federal habeas relief, dividing cases into the different contexts in which the grounds for habeas have been denied as well as those where detention has been found to exist, i.e., from actual incarceration to exertion of supervisory control by tribal courts or officials to banishment and other forms of physical restraint.

Part IV describes federal court interpretation of "detention" in the context of § 1303, delineating how the 9 Circuit and some lower court opinions have restricted the scope of detention beyond the scope afforded in the context of federal and state proceedings.

The article argues, in Part V, how these narrow interpretations are wrong. Not only do they misinterpret Congress' goal in enacting [Indian Civil Rights Act], virtually eliminating federal review in cases other than actual incarceration, but they may also do injustice to the goal of self-determination and deference to tribal sovereignty that is often articulated as a reason to decline jurisdiction. In deciding what weight to ascribe and how to incorporate the interests of tribal sovereignty in any particular case, federal courts should conduct a more exacting analysis of the circumstances. As articulated in the Conclusion such analysis should include considerations of the harm exacted on the individual petitioners as well as the community at large, the nature and source of the authority of the tribal actors encroaching on petitioners' rights, or the impact on the underlying land base, enrollment or other core sovereign rights and interests.

[. . .]

The role tribal sovereignty should play and the way it should be construed with respect to [Indian Civil Rights Act] and the enforcement of individual civil rights has a long and contentious history. Many viewed [Indian Civil Rights Act] itself as a grievous assault on tribal sovereignty. For those, Santa Clara Pueblo was ushered in as a welcome and appropriate interpretation of Congressional intent.

As established in this article, however, Santa Clara Pueblo may have restricted federal review under [Indian Civil Rights Act] beyond Congressional intent, and the lower courts have continued the restrictive interpretive agenda to such an extent that few remedies are actually available. Like an unfunded mandate, [Indian Civil Rights Act] thus becomes an act with largely unenforceable standards. While some tribes provide suitable mechanisms and waivers of sovereign immunity, most do not, leaving individuals in very grievous situations without any redress. Additionally, the very interest that federal courts often seek to protect - tribal sovereignty and self-determination itself - may unwittingly be diminished where federal courts swiftly and summarily reject habeas actions, rather than go to the merits.

The law of federal habeas recognizes a need for relief in many circumstances other than actual incarceration. While there is a need to revisit whether habeas itself provides a suitable measure of redress, federal courts may revive some of [Indian Civil Rights Act]'s intended purposes by adhering to an appropriate scope for "detention" and conducting a detailed and case-specific analysis of the particular sovereign interests at stake and how they would be undermined by federal review of the merits of petitioners' allegations of individual rights violations. Without that, [Indian Civil Rights Act] remains an elusive and largely hollow articulation of rights. While it has impacted the jurisprudence of some tribal justice systems and produced concrete federal habeas relief for a few individual parties, the vast majority of rights violations go unchecked. The greater impact is on the collective interests of the sovereignty at large.

In the words of one of the founding fathers of the American Constitutional system of governance:

If [a] legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government, would be a mockery of common sense.

Although infused of history and cultural attributes independent and different from those contributing to the establishment of the United States and, thus, entitled to a different measure of review in some instances than would occur in cases alleging violations by federal, state or local governmental actors, tribes without remedies are no less susceptible to these impacts.

Professor of Law and Director of Clinical Programs, University of Dayton School of Law; J.D., University of Michigan School of Law 1991; AB Princeton University 1988.

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