DALE A. DROZD, District Judge.
On December 27, 2016, petitioners in this action filed a petition for writ of habeas corpus pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303,. (Doc. No. 1.) On January 28, 2017, they filed an amended petition which is now the operative pleading in this case. (Doc. No. 10.) On May 5, 2017, respondents Poncho, Rogers, Romero, Vega, and Williams (collectively, the "Tribal Council respondents") and respondent Kockenmeister, a tribal court judge, separately moved to dismiss the amended petition. (Doc. Nos. 19, 20.) Following the filing of oppositions, replies, objections and a motion to strike, oral argument on the motions to dismiss was heard by the court on June 20, 2017. Attorneys Andrea Seielstad and Jack Duran appeared at that hearing on behalf of petitioners, attorney Anna Kimber appeared on behalf of the Tribal Council respondents, and attorney Michael Vinding appeared on behalf of respondent Kockenmeister. For the reasons that follow, respondents' motions to dismiss will be granted.
At the core of this case is an intra-tribal dispute regarding the ownership of certain parcels of land on the Bishop Paiute reservation located in eastern California. The amended petition alleges petitioners were unlawfully detained by respondents when they were denied access to their family land and were cited for trespass when attempting to enter the disputed land.
According to petitioners, the Bishop Paiute Tribal Council was constituted after Ms. Warlie's original assignment of these lots in 1941, and has only limited powers that do not include the ability to transfer, rescind, or otherwise interfere with the land grants. Nevertheless, sometime around 2006, the Tribal Council allegedly seized certain blocks of the land previously granted to Ms. Warlie—now owned by petitioners here—for the purpose of expanding a casino, adding parking, and constructing a hotel. In July 2007, the Owens Valley Board of Trustees apparently cancelled an assignment of land made to Karen Gail Manuelito, a descendant of Ms. Warlie through whom petitioners Ron Napoles, James Napoles, and Wade Williams claim they received their land assignment. In May 2013, the chairman of the Owens Valley Board of Trustees informed petitioners that surveyors would be establishing boundaries and fencing for expanded casino parking on the land. Petitioners denied the surveyors access to the land and were then issued the first of a number of trespass citations.
These trespass citations have been the subject of extensive litigation in the tribal courts and form the basis for this federal habeas petition. Specifically, respondent tribal court judge Kockenmeister held an evidentiary hearing with respect to trespass citations issued to petitioners in 2013 and filed a decision in June 2014, affirming the citations. Subsequently, the tribal appellate court reversed this decision and remanded the matter back to the tribal court for further fact-finding. Thereafter, the Tribal Council respondents moved to dismiss the trespass citations and they were dismissed with prejudice in October 2016. Petitioners believe this dismissal by the tribal court of the trespass citations originally issued in 2013 precludes the parties from re-litigating the question of whether petitioners trespassed on the land in question and, therefore, serves as a determination that they are the rightful owners of the disputed land parcels.
However, in September 2016, shortly prior to the dismissal of the citations issued in 2013, the Tribal Council respondents published a notice concerning the planned casino and hotel expansion, which they anticipated would start in March 2017. In November 2016, the Tribal Council respondents also issued a press release indicating they believed the dismissal of the earlier trespass citations did not dictate the outcome of any future proceedings. Indeed, a few days later, the Tribal Council respondents caused the tribal police and officers from the Inyo County Sheriff's Office to issue new trespass and nuisance citations to petitioners. The petitioners contend that numerous other acts of aggression on the part of the Tribal Council respondents occurred around this time, including: (1) petitioners being threatened with having their livestock and buildings destroyed; (2) the service of the trespass and nuisance citations on them being conducted in such a way as to cause embarrassment and intimidation; (3) certain petitioners being suspended without pay from their jobs with the tribe in retaliation; and (4) one petitioner ultimately being fired in retaliation.
According to petitioners, on November 22, 2016, respondent tribal court judge Kockenmeister issued an ex parte temporary restraining order preventing petitioners from entering the disputed land, purportedly under the federal Violence Against Women Act ("VAWA").
Since the filing of the petition pending before this court, proceedings remain ongoing in the tribal courts. Respondent tribal court judge Kockenmeister dismissed the round of citations issued to petitioners in November 2016 and vacated his November 22, 2016 temporary restraining order on March 21, 2017. (Doc. No. 18 at 3.) Thereafter, however, petitioners were cited for trespassing onto the disputed property on April 1, 2017, April 2, 2017, and April 18, 2017. (Id. at 2-3.) It is unclear what the status of these more recently issued citations is in the tribal courts. Petitioners also apparently sought to have the tribal court reopen the 2013 trespass citations following the voluntary dismissal of those citations. Respondent tribal court judge Kockenmeister declined to do so and petitioners thereafter appealed that decision to the newly-reconstituted tribal appellate court at some point after May 5, 2017.
On May 5, 2017, the same day petitioners moved to stay these proceedings, respondents moved to dismiss the petition for habeas relief now pending before this court,. (Doc. Nos. 18, 19, 20.) Oppositions to the motion to dismiss were filed on June 5, 2017. (Doc. Nos. 25, 26.)
Jurisdiction over this action is premised upon 25 U.S.C. § 1303, which states 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 order of an Indian tribe." This provision is part of Title I of the Indian Civil Rights Act of 1968 ("ICRA"). See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 51 (1978); Tavares v. Whitehouse, 851 F.3d 863, 870 (9th Cir. 2017). The ICRA's accompanying provisions have been held not to imply a cause of action against tribal leaders, and therefore the habeas provision is the sole cause of action contemplated by the statute. Santa Clara Pueblo, 436 U.S. at 60-62; Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 476 (9th Cir. 1980). Thus, under § 1303 federal courts this statute federal courts are authorized only to address properly filed applications for habeas relief and are not granted general jurisdiction to consider appeals from the decisions of tribal courts addressing other matters. See Jeffredo v. Macarro, 599 F.3d 913, 915 (9th Cir. 2010); see also Tavares, 851 F.3d at 876; Alto v. Black, 738 F.3d 1111, 1122 (9th Cir. 2013) ("[W]e have regularly declined to exercise jurisdiction over cases in which individuals are seeking an order mandating BIA involvement in tribal enrollment decisions.") Of course, physical custody is the prototypical form of detention contemplated to be challenged in a habeas action. However, just as with the "in custody" requirement of other habeas statutes, detention within the meaning of § 1303 is somewhat more expansive than merely physical custody. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 893-895 (2d. Cir. 1996) (requiring the petitioners to identify only "severe restraints on their liberty"). The Ninth Circuit, however, has recently interpreted the "detention" requirement under § 1303 in a more restrictive manner than the "in custody" requirement found in other federal habeas statutes. See Tavares v. Whitehouse, 851 F.3d 863, 876-77 (9th Cir. 2017) ("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 also id at 871-73 ("At the time Congress enacted the ICRA, `detention' was generally understood to have a meaning distinct from and, indeed, narrower than `custody.'"); see also Jeffredo, 599 F.3d at 918; 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.").
Respondents move to dismiss the pending petition, arguing that petitioners are not subject to "detention" within the meaning of 25 U.S.C. § 1303. (Doc. No. 19 at 13-14; Doc. No. 20-1 at 14-15.) Petitioners argue at great length that they are in fact subject to "detention" as a result of the issuance of the citations within the meaning of that statute. (Doc. No. 26 at 13-38.) In this regard, petitioners argue that physical custody is not required for a person to be detained and they need only be subject to a "severe actual or potential restraint on liberty." According to petitioners, they are subject to such a restraint on their liberty because the tribal court may continue to fine them for trespassing on the disputed land which they claim is rightfully theirs. Petitioners contend that this is tantamount to their partial permanent banishment, in the sense that they are permanently banished from the land they claim belongs to them.
(Doc. No. 26 at 21.)
Two foundational principles guide this court's application of the statute: the concepts of "tribal sovereignty and congressional primacy in Indian affairs." Tavares, 851 F.3d at 869. Because of these principles, federal courts are to "refrain from interpreting federal statutes in a way that limits tribal autonomy unless there are `clear indications' that Congress intended to do so." Id. (quoting Santa Clara Pueblo, 436 U.S. at 60); see also Jeffredo, 599 F.3d at 918 ("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.") (quoting Santa Clara Pueblo, 436 U.S. at 72 n. 32). The ICRA, in particular was designed to serve two competing interests, namely (1) the "objective of strengthening the position of individual tribal members vis-à-vis the tribe"; and (2) promoting "the well-established federal `policy of furthering Indian self-government.'" Santa Clara Pueblo, 436 U.S. at 62 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)); see also Tavares, 851 F.3d at 870.
With these principles in mind, the court now turns to whether the petitioners in this case have been subject to "detention" within the meaning of § 1303. Consistent with the conclusion that "detention" in this context is more restrictive than the "in custody" requirement of other habeas statutes, the Ninth Circuit has concluded that the following do not constitute a detention within the meaning of § 1303: imposition of fines, Moore, 270 F.3d at 791; denial of access to various facilities on a reservation, Jeffredo, 599 F.3d at 918-19; denial of quarterly monetary distributions, Tavares, 851 F.3d at 870; and temporary (two to ten year) exclusion from all reservation lands, id. at 878. District courts within the Ninth Circuit have similarly held that the following acts are insufficient to comprise a detention within the meaning of the statute: (1) being prevented from running for a tribal council member seat, Lewis v. White Mountain Apache Tribe, No. CV-12-8073-PCT-SRB (DKD), 2013 WL 510111, at *6 (D. Ariz. Jan. 24, 2013); (2) being prevented from reentering the reservation when the petitioner is a non-member of the tribe, Liska v. Macarro, No. 08-CV-1872IEG (POR), 2009 WL 2424293, at *7-8 (S.D. Cal. Aug. 5, 2009); (3) tribal eviction proceedings, Quitiquit v. Robinson Rancheria Citizens Bus. Council, No. C 11-0983 PJH, 2011 WL 2607172, at *5 (N.D. Cal. July 1, 2011); (4) situations where disenrollment from tribal membership did not affect the petitioners' geographic movement, Quair v. Sisco, No. 1:02-cv-5891 DFL, 2007 WL 1490571, at *3-4 (E.D. Cal. May 21, 2007); and (5) being permanently banished from a reservation pursuant to a civil proceeding, Alire v. Jackson, 65 F.Supp.2d 1124, 1127-28 (D. Ore. 1999).
As noted above, the Ninth Circuit has recently stated that the meaning of "detention" as it is used in § 1303 is much narrower than that espoused by petitioners here. In Tavares, the court explained why Congress's use of the term "detention" was to be understood differently than the phrase "in custody" used in other federal habeas statutes:
851 F.3d at 871.
In arguing for a broader definition of "detention" under § 1303, petitioners rely primarily upon the Second Circuit's decision in Poodry. In that case, the court concluded that complete and permanent disenrollment from a tribe and banishment from a reservation could constitute such a severe punishment that it would qualify as a "detention" under § 1303 and thus be susceptible to challenge by way of habeas petition in federal court under that provision. 85 F.3d at 895-97 (analogizing banishment and tribal disenrollment to denaturalization and denationalization punishments). However, following the decision in Poodry the Ninth Circuit has recognized both that the Second Circuit itself has limited its reach and that, at least in this circuit, the only punishment short of physical confinement that could potentially rise to the level of detention as required by § 1303 is permanent banishment. Tavares, 851 F.3d at 875-76 ("Unlike the Second Circuit, we distinguished between disenrollment and banishment, and recognized that there is no federal habeas jurisdiction over tribal membership disputes.").
Here, petitioners argue they have been "permanently banished" from their land because they risk being issued additional citations if they reenter the property under dispute, and that this is sufficient to constitute "detention" under § 1303 under the holding in Tavares. The court takes as true that petitioners have been cited previously for trespass, though many of these disputes have been resolved in petitioners' favor in the tribal courts, and that they received renewed trespass citations as recently as April of this year. However, plaintiffs are not currently detained, have never been in physical custody, and cannot face such confinement as a result of the issuance of these citations. Even if petitioners' complaints of foul play may have merit, their allegations are nonetheless simply insufficient to support a finding that a "detention" has occurred within the meaning of § 1303. See Tavares, 851 F.3d at 875-76 (suggesting that, absent physical custody, only permanent banishment could satisfy detention requirement); Jeffredo, 599 F.3d at 918-19 (denial of access to various facilities on reservation is not detention); Moore, 270 F.3d at 791 (fines do not constitute detention); Quitiquit, 2011 WL 2607172, at *5 (tribal eviction proceedings do not constitute a detention); see also Lac Vieux Desert Band of Lake Superior Chippewa Indians Tribal Council v. Lac Vieux Desert Band of Lake Superior Indians Tribal Court, No. 2-10-cv-223, 2010 WL 3909957, at *2 (W.D. Mich. Sept. 14, 2010) (finding no jurisdiction under the ICRA where the petitioners had been temporarily detained and then released from custody). Even to the extent petitioners fear the issuance of additional trespass citations or exclusion from the disputed land, these concerns are insufficient to confer habeas jurisdiction upon this court. Cf. Maleng v. Cook, 490 U.S. 488, 491-93 (1989) (concluding that a petitioner is not "in custody" for purposes of a federal habeas statute, 28 U.S.C. § 2241, after expiration of his sentence "merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes"); Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998) (Addressing a habeas petition filed pursuant to 28 U.S.C. § 2241 and observing that "[w]e do not think that the mere potential for future incarceration, without any present restraint on liberty, can satisfy the `in custody' requirement.").
Finally, even under the decision in Poodry, petitioners' argument regarding partial permanent banishment—that they have been permanently banished from their own lands—does not support their claim that they have been detained. In Poodry, the Second Circuit found permanent banishment and disenrollment sufficient to constitute detention because it analogized such actions to the stripping of citizenship in denaturalization and denationalization proceedings. 85 F.3d at 895-96. That is quite dissimilar from what is alleged by petitioners here, which more closely resembles a takings claim than a denaturalization or denationalization. Petitioners cite no authority, and the court has identified none, suggesting that § 1303 gives federal courts sitting in habeas the jurisdiction to resolve intra-tribal land ownership disputes.
Because the court concludes that petitioners have not been subjected to "detention" within the meaning of § 1303, it lacks jurisdiction over this habeas action.
IT IS SO ORDERED.
