I I Appeal No I I I I I I I I I I I I I I I I I

Transcription

1 Appeal No UNTED STATES COURT OF APPEALS FOR THE NNTH CRCUT U.S. COURTq... LOUSE CHRSTOPHER VCTORA L. RYDER, JEFFREDO, JEREMAH JOYCE S. ;.JEAN YD _EFFoRE_2T_NER,. R, JO. RYDE R, MCHAEL JOHN JEFFREDO, ELZABETH VLLANA JEFFREDO WARDEN, JACKE M. MADARAGA, KELLY M. MADARAGA, CARRE MADARAGA, LAWRENCE MADARAGA, WLLAM A. HARRS, STERLNG HARRS, APRL HARRS, MNDY PHENEGER, RCHARD HARRS, Pettoners-Appellants, MARK A. MACARRO, DONNA,BARRON CALAC, MARC LUKER, ANDREW MASEL, RUSSELL BUTCH MURPHY, KENNETH PEREZ, DARLENE AZZARELL, CHRSTNE LUKER, Respondents V. -Appellees RESPONDENTS' ANSWERNG BREF On Appeal from the Unted States Dstrct Court tor the Central D_strct of Calforna Hon. John F. Walter, No. CV JFW JOHN SCHUMACHER, WY Bar # Law Offce of John Schumacher, LLC, 420 E. Washnmon Ave. Rverton, WY Telephone: (3()_) 857-0_00 Facsmle: (307) FRANK LAWRENCE, CA Bar # Holland and Knght 633 West Ffth Street, 21st Floor, Los Angeles, CA Telephone: (530) Facsxmle: (530) Counsel for Respondents- Appellees _._

2 Appeal No UNTED STATES COURT OF APPEALS FOR THE NNTH CRCUT LOUSE VCTORA JEFFREDO, JOYCE JEAN JEFFREDO-RYDER, CHRSTOPHER L. RYDER, JEREMAH S. RYDER, JONATHAN B. RYDER, MCHAEL JOHN JEFFREDO, ELZABETH VLLANA JEFFREDO WARDEN, JACKE M. MADARAGA, KELLY M. MADARAGA, CARRE MADARAGA, LAWRENCE MADARAGA, WLLAM A. HARRS, STERLNG HARRS, APRL HARRS, MNDY PHENEGER, RCHARD HARRS, Pettoners-Appellants, MARK A. MACARRO DONNA,,BARRON MARK CALAC, MARC LUKER, ANDREW MASEL, RUSSELL KENNETH PEREZ, DARLENE AZZARELL, CHRSTNE LUKER, V. Respondents-Appellees RESPONDENTS' ANSWERNG BREF On AEpeal from the Unted States Dstrct Court tor the Central Dstrct of Calforna Hon. John F. Walter, No. CV JFW JOHN SCHUMACHER, WY Bar # Law Offce of John Schumacher, LLC, 420 E. Washngton Ave., Rverton, WY Telephone: (307) Facslrnle: (307) FRANK LAWRENCE, CA Bar # Holland and Knght 633 West Ffth Street, 21 st Floor, Los Angeles, CA Telephone: (530) Facslrmle: (530) Counsel for Respondents- Appellees

3 CORPORATE DSCLOSURE STATEMENT No corporate dsclosure statement for the Respondent s requred by Rule

4 .. V. V. V1. V. TABLE OF CONTENTS NTRODUCTON... 1 JURSDCTONAL STATEMENT... 1 STATEMENT OF SSUE PRESENTED... 2 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 3 A. Background and Trbal Law Trbal Government Trbal Membershp Law Pechanga Reservaton Access Law... 5 B. Processng Of Dsenrollment Allegatons Specfc To Petatoners... 6 SUMMARY OF ARGUMENT ARGUMENT A. Standard of Revew B. The Federal Courts Do Not Have Jursdcton Pursuant To The ndan Cvl Rghts Act To Revew Trbal Membershp Decsons Membershp Decsons Are Wthn The Exclusve Jursdcton Of The Pechanga Trbe The ndan Cvl Rghts Act Vests Jursdcton n Trtbal Law- Applyng Bodzes For Enforcement Of ts Substantzve prorrovsons C. The Court Lacks 1303 Habeas Corpus Jursdcton n Ths Case...,o,*o* ooo,o...,., * oo,...,,,*,,o oo... *,,... o, o...., Habeas Corpus s An Extraordnary Remedy And ts Relef s Lmted Habeas Corpus Jursdcton Does Not Exst Because The Pechanga Trbe s Dsenrollment Proceedngs Are Cvl n Nature Pettoners Have Not Been Detaned... 25

5 4. Pettoners Have Not Exhausted Ther Trbal Remedes For Any Clams Of Banshment D. The Congress Has Reected Creaton Of A Federal Law Remedy That Provdes-For Drect Federal Court Appeals of nternal Trbal - Enrollment Decsons V. CONCLUSON... 31

6 Cas._ Alre TABLE OF AUTHORTES v. Jackson, 65 F.Supp.2d 1124 (D.Ore. 1999)... 20, 26, 27, 30 Bousel_j Unted States, 19, 20, 24 U.S. 614 (1998)... Cold Mountan v. Garber, F.3d 884 (9th Cr. 2004)... Duro v. Rena, 851 F.2d 1136 (th Cr. 1987), certorar _ranted 490 U.S. 1034, reversed on other grounds 495 U.S. 676, on ronan_ 910 F.2d , 12, 21, 25 Edmunds v. Won Bae Chang, F.2d 39 (9th Or. 1975)... Hardn v. Whte Mountan Apache Trbe, F.2d 476 (1985)... Hensle_lv 1 Muncpal U.S. 345 (1973) Court, n re Sac & Fox Trbe of Msssspp owa/meskwak Casno Ltgaton, 340 F.3d 749 (8thCm 2003) nsurance Corporaton of reland, Ltd v. Compagne des Bauxtes de Gunee, 456 U.S. 694 (1982) Jones v. Cunnnfzham, U.S. 236 (1963)... Klapport v. Unted States, U.S. 601 (1949)... Lehman v. Lycomng County Chldren's Servces Agency, 458 US. 502 (1982) Maleng v Cook, U,S, 488 (1989)... Morton v. Mancar, U.S. 535 (1974)... Olphant v Suquamsh ndan Trb_ 435 U.S. 191 (1978)... 12

7 Pood_ v. Tonawanda Trbe of Seneca ndans, 85 F.3d 874 (2nd Cr.) cert. dened 519 U.S (1996)... 18, 21, 22, 25 Prescott v. Unted States, 973 F.2d 696 (9th Cr. 1992) Quar v. Ssco ("Quar "), 2007 WL (E.D.Cal. 2007)... 22, 27 Quar v. Ssco ("Quar r'), 359 F.Supp.2d 948(E.D.Cal. 2004) , 25, 27, 30 Randall v. Yakma Naton Trbal Court, 841 F.2d 897 (9th Cr. 1988) Red Brd v. Unted States ( "Cherokee ntermarrtage Cases"), 203 U.S. 76 (t906) Rchter Roff v. Hckman. 521 F.3d 12_2 (9th Cr. 2008) v. Burne 168 U.S _.218 (1897)... 13, 14 Santa Clara Pueblo v. Martmez, 436 U.S. 49 (1978)... 1, 6, 10-12, 14, 16-21, 30, 31 Schnederman v. Unted States, 320 U.S. 118 (1943) Shenandoah v. Halbrtter ("Halbrtto"'), 275 F. Supp. 2d, 279 (N.D.N.Y. 2003)... 21, 27 Shenandoah v. U.S. Department of nteror ("Shenandoah"), 159 F.3d 708 (2nd Cr )... "... 19, 20, 27 Stephens v Cherokee Naton, 174 U.S. 445 (1899) Stock West, nc. v. Confederated Trbes of the Colvlle Reservaton, 873 F.2d 1221(9th Cr. 1989) Tropp v. Dulles, 356 U.S. 86 (1958) Wheeler v. Unted States, 435 U.S. 313 (1978) Wllams v. Gover, 490 F.3d 785 (9th Cr. 2007) v

8 Wdhamson v. Gregore, 151 F.3d 1180 (9th Cr. 1998) cert. dened 525 U.S (1999)... 26, 28 Statutes 18 U.S.C U.S.C ,16 25 U.S.C ,2,19,25 25 U.S.C U.S.C U.S.C U.S.C Pub. L , the ndan Law Enforcement Reform Act Other Authortes 139 Cong. Rec. H (1993) C.F.R. 62.2(b) C.F.R (a) Fed. Reg , (Mar. 7, 2007)... 3 Consttuton and Bylaws of the Temecula Trbe of Lusefo Msson ndans... 4 Felx S. Cohen, Handbook of Federal ndan Law (1982 ed.)... 12, 15 Pechanga Enrollment Dsenrollment Procedures... 4, 5, 7 Pechanga Excluson And Evcton Regulatons... 5, 6 Pechanga Non-Member Reservaton Access and Rental Ordnance... 5 Respondents' Bref n Santa Clara Pueblo,1977 WL (1977) S. Rep , 101st Cong. 1st Sess S. Rep , 102rd Cong. 1st Sess V

9 Solctor's Opnon of May 17, 1941, 1 Opnons of the Sohctor 1048; 55.D Unted States' Bref n Santa Clara Pueblo, 1977 WL (1977) V1

10 . NTRODUCTON nternal trbal membershp decsons are wthn the exclusve jursdcton of trbal governments. The Unted States Supreme Court n Santa Clara Pueblo held that federal courts do not have jursdcton to hear challenges to trbal cvl membershp decsons based on alleged volatons of Ttle of the ndan Cvl Pdghts Act, 25 U.S.C Based on unsupported statements of fear, hystera, and perceved outrageous conduct, Pettmners wrongly urge the Court to create federal court remedy that lacks any support n the law and has been rejected by Congress. The record shows that the Temecula Band of Lusefo Msson ndans of the Pechanga ndan Reservaton ("Pechanga Trbe") undertook to and dd provde Pettoners wth full due process and reached a consdered, reasoned, and documented decson that Pettoners fal to meet the Pechanga Band's membershp crtera. The dstrct court correctly held that there s no bases n the law federal court jursdcton over Pettoners' clams.. JURSDCTONAL STATEMENT The federal dstrct court lacks jursdcton to consder Pettoners' appeal of an nternal trbal enrollment matter pursuant to 25 U.S.C. 1303, the habeas corpus provason of the ndan Cvl Rghts Act ("CRA"), 25 U.S.C The dstrct court hadjurlsdlctlon, pursuant to 28 U.S.C. 1331, to reach that decson because ths case nvolves nterpretaton of federal statutory law, 25 U.S.C. 1303, _ and questons of federal ndan common law regardng the ' The habeas co_us provson of CRA states that "[t]he prvlege of the wrt of habeas corpus shall be avalable to any person, n a court ot the Unted States, to Page 1 of 33

11 authoraty of the Temecula Band of Lusefo Msson ndans of the Pechanga ndan Reservaton ("Pechanga Trbe") over nternal enrollment matters. Petatoners have brought thas acton as a habeas corpus petatlon. A fnal decson of the dstrct court was ssued on December 4, The fnal order of the &strct court as subject to revew by ths court pursuant to 28 U.S.C Ths Court also may have jursdacton pursuant to 28 U.S.C A tmely Moton of Appeal was fled on December 27, H. STATEMENT OF SSUE PRESENTED Does the habeas corpus provson of thendan Cvl Raghts Act, 25 U.S.C. 1303, provade the federal courts wth authorty to consder an appeal of an nternal tubal dlsenrollment decson? V. STATEMENT OF THE CASE Ths case nvolves an effort by Pettoners to get the federal courts to revew a fnal nternal membershp decson of the Pechanga Trbe after full due process and appellate revew were provded n trbal forums. Pettoners seek to use the cnrmnal habeas corpus provsons of the ndan Cavl Raghts Act, 25 U.S.C. 1303, to provde the dstrct court wth jursdcton to revew a non-crmnal, nonpuntve membershp decson. n late 2002 and early 2003, the Enrollment Commttee of the Pechanga Trbe receved allegatons that a number of members of the Trbe faled to meet the Pechanga Consttuton's membershp qualfcatons. On March 16, 2006, the Enrollment Commttee, after revew of the full record and n accordance wth full test the legalty of hs detenton by order of an ndan trbe." 25 U.S.C Habeas corpus relef under CRA s no broader than the statutory provsaons governng habeas corpus revew of state and federal actons. Page 2 of 33

12 ! due process, held that the Pettoners were dsenrolled for falure to prove lneal descent from an orgnal Pechanga Temecula person. (ER Vol., pp , 4-5; ER Vol., p. 424, 9). 2 On July 21, 2006, after consderaton of arguments at the appeal hearngs and the record before the Commttee, the Trbal Councl upheld the Commttee's decson. (See E.R Vol., p. 430). 3 A petton for wrt of habeas corpus was fled on May 22, (ER Vol., p. 353). An Order To Show Cause Re: Dlsrrussal For Lack Of Prosecuton was entered on August 9, 2007 md dscharged on August 20, A Moton For Summary Judgment was fled by Pettoners on October 4, Respondents fled a Moton To Dsmss Pursuant To FRCP 12(b)(1) on October 12, (ER Vol., p. 152). Petmoners fled an Opposaton on Novonber 14, (ERVol., p. 041). Consderaton of the Moton For Summary Judgment was stayed n order that the Moton to Dsmss could be consdered frst by the Court. An Order Grantng Respondents Moton To Dsmss Pursuant to F.1LC.P. Rule 12(b)(1) was ssued on December 4, (ER Vol., p. 001). V. STATEMENT OF FACTS A. Background and Trbal Law 1. Trbal Government The Pechanga Trbe s a federally-recognzed ndan trbe. 72 Fed. Reg , (Mar. 7, 2007). Respondents Mark Macarro, Donna Barton, Mark Calac, Marc Luker, Andrew Masel, Sr., Russell Murphy and Kenneth Perez consttute the elected Trbal Councl of the Pechanga Trbe. Respondent Darlene 2 "ER" refers to Appellants' Excerpt of Record 3 Petmoners ncorrectly assert that trbal forums, other than trbal courts, cannot dspense justce See Santa Clara Pueblo, 436 U.S. at 66 (Nonjudcal trbal nsttutons have also been recognzed as competent law-applyng bodes.) Page 3 of 33

13 Azzerell 1s the Trbal Secretary. Respondent Chrstne Luker s a trbal member. These persons are collectvely referred to herenafter as "Trbal Partes." 2. Trbal Membershp Law On December 10, 1978, the Pechanga Trbe's General Membershp adopted the Pechanga Consttuton. Consttuton and Bylaws of the Temecula Trbe of Lusefo Msson ndans, Art. V ("Pechanga Consttuton"). (ER Vol., p. 112). The General Membershp s the Trbe's ultmate governng authonty and conssts of all adult members of the Trbe. (ER Vol., p. 107, Art. ). The Pechanga Consttuton provdes: ARTCLE MEMBERSHP Membershp s an enrolled member documented n the Trbe's Offmal Enrollment Book of Qualfcatons for membershp Luseno Msson ndans Are: of the Temecula Trbe of A. Applcant must show proof of Lneal Descent from orxgnal Pechanga Temecula people. B. Adopted people, famly or Trbe, and non-lndaans cannot be enrolled. Excepton: People who were accepted n the ndan Way pror to 1928 wll be accepted. C. f you have ever been enrolled or recogn.zed n any other reservaton you cannot enroll n Pechanga (ER Vol., p., Art. ). The qualfcaton for membershp applcable to the facts of ths case s "proof of Lneal Descent from orgnal Pechanga Temecula people." (See ER Vol., p. 107, Art. ; ERVol., pp , 8-9). The General Membershp adopted the Pechanga Enrollment Dxsenrollment Procedures ("Dsenrollment Procedures") on October 2, (ER Vol., p. 120). The Dsenrollment Procedures were n effect at the Page 4 of 33

14 tme of the Pettoners' dsenrollment. The Dsenrollment Procedures were adopted to correct mstakes made n enrollng persons n the Pechanga Trbe. (ER Vol., p. 121, 1). The Enrollment Commttee s elected by the General Membershp and s responsble for processng dsenrollment allegatons. The Dsenrollment Procedures provde for: (1) dentfcaton of a possble enrollment mstake n Secton 2; (2) notce to affected ndvduals n Sectons 3 and 5; (3) an opportunty to respond to the allegatons and present evdence m Sectons 5 and 7; (4) a wrtten decson statng bases for dsenrollment m Secton 6; and (5) appellate revew to the Trbal Councl n Secton 9. ( ERVol., p. 121). The Trbal appellate record contans the exact nformaton that was before the Enrollment Commttee. (ER Vol., p. 121, 9). f the Trbal Councl notes any nfracton of the procedures or any unfar and/or mpartal handhng of the case, t s requred to nstruct the Enrollment Comn-nttee to reevaluate the case. (ER Vol., p. 121, 9). 3. Pechanga Reservaton Access Law On May 1, 1996, the Pechanga Trbe enacted the Non-Member Reservaton Access and Rental Ordnance ("Access Ordnance"). (ER Vol., p. 129). The Access Ordnance descrbes the condtons and procedures for access to Reservaton lands, ncludng non-member access to ther own fee land, access to leased land, access as a guest of a trbal member, and access as a famly member or domestc partner of an enrolled member. (See ER Vol., p. 129). Non-members are permtted access to facltes open to the general pubhc such as the Pechanga Trbe's casno. n 2000, the Trbe adopted ts Excluson And Evcton Regulatons ("Excluson Regulatons"). (ER Vol., p. 134). The Excluson Regulatons Page 5 of 33

15 l provde for excluson and evctaon from the Reservaton for one of the followng causes: 1. Volatng trbal laws and ordnances; 2. Creatng condtons whch pose a threat to the publc health, safety and welfare. 3. Engagng n crmnal actvtes on the Pechanga Reservaton, by fndng of the Trbal Councl, or beng convcted of one or more felomes; 4. Beng declared a publc nusance by the Trbal Councl; 5. Creatng a breach of peace, ncludng but not ln_ted to pubhc &unkenness. Both the Access Ordnance and the Excluson Regulatons provde for due process. (See ER Vol., p. 129; Vol., p. 135). Dueprocess s provded by notce, hearng, appeal and demson. (See, e.g. ER Vol., p ). 4. Trtbal Enforcement of lcra CRA s enforced n trbal cvl proceedngs by applcable lawapplyng trbal enttes. See Santa Clara Pueblo v. Martnez, 436 U.S. 49, 58 (1978). Calforna state crmnal law apphes on the Reservaton and s enforced by the State of Calforna and relevant poltcal subdvsons pursuant to 18 U.S.C The Pechanga Trbe has enacted no crmnal laws. B. Processng Of Dsenrollment Allegatons Specfc To Pettoners. Actons to dlsmroll trbal members have occurred at varous tmes snce 1988 by enforcement of the requrements of the Pechanga Consttuton through the Dsenrollment Procedures. Page 6 of 33

16 n late 2002 and early 2003, the Enrollment Commttee receved allegatons that a number of members of the Pechanga Trbe faled to meet the Pechanga Consttuton's membershp qualfcatons. (ER Vol., p. 412). The Enrollment Commattee was requred to nvestgate and evaluate the allegatons pursuant to Secton 2 of the Dsenrollment Procedures. (ER Vol., p. 121, 2). n response to concerns rased by the General Membershp and m order to ensure that the Dsenrollment Procedures would be followed an a "far and mpartal" manner, the Trbal Councl ssued a Notace and Order on March 7, 2003 regardng pendng dsenrollment matters. (ER Vol., p. 141). The Notce and Order drected that ndvdual Enrollment Commttee members, who were themselves the subject of dsenrollment allegatons, could not partcpate n Commttee matters untl such tme as the allegatons aganst them were resolved. The Trbal Councl also mandated that the Enrollment Commttee: (1) "use a far and mpartal decson by a majorty of the commttee to revew a fle;" (2) follow Robert's Rules of Order; and (3) allow adequate tme for presentaton of evdence as reqmred under the Dsenrollment Procedures. (ER Vol., p. 143). As of the date of the Notce and Order, there were allegatons that fve lnes of descent dd not qualfy for membershp. (See ER Vol., p ). For the frst three lnes of descent, the Enrollment Commttee after full revew held that the affected trbal members, of whom there were hundreds, met the Pechanga Trbe's membershp crtera. (See ER Vol., p ). Enrollment Commttee members whose membershp status was confrmed were allowed to partcpate n furore Commttee matters n Page 7 of 33

17 accordance wth the Trbal Councl's Notce and Order of March 7, (See ER Vol., p. 414; ERVol., p. 141). The Enrollment Commttee proceeded to consder the allegatons aganst Pettoners and others smlarly stuated who clamed lneal descent through Pauhna Hunter. (ER Vol. l, p. 414). The Comrruttee revewed the allegatons, pre-ntaton subrrnssons by Pettoners challengng the correctness of the allegatons, and the Enrollment Commttee's hstorcal records. (ER Vol., p. 414). On May 3, 2005, after a proper vote of the Enrollment Commttee, mdlvldual summonses were sent notf3ang Pettoners that the Commttee beheved grounds exsted for ntatng the dlsenrollment process. (See, e.g., ER Vol., p. 144). The summonses notfed Pettoners that: (1) the Dlsenrollment Procedures had been ntated; (2) addtonal reformaton was requested concernng Pettoners' famly hstory; and (3) Pettoners were requred to contact the Commttee to set up an ntal Meetng. (ER Vol., p ). A copy of the Dsenrollment Procedures was ncluded wth each summons. (ER Vol., p. 144). The Commttee held an ntal Meetng wth Pettoners to explan why the Dsenrollment Procedures were ntated. (ER Vol., p. 121, 3 and 5). Each Pettoner was provded a copy of all the factual records m the Enrollment Commttee's possesson concernng that Pettoner's enrollment. (See ER Vol., p. 149, 4). n accordance wth Secton 5 of the Dsenrollment Procedures, the Commttee stated ts concerns about each Pettoner's clam of hneal descent. (See ER Vol., p. 149, 4). Each Pettoner was notfed that he or she could submt nformaton supportng a clam of lneal descent from any orgnal Pechanga Temecula person. (See Page 8 of 33

18 ER Vol., p. 149, 14). Pettoners were nformed ther enrollment would be measured aganst the Pechanga Consttutaon's membershp qualfcatons. (See ER Vol., p. 149, 1 4). Pettoners were nformed that they had thrty (30) days to submt addatlonal reformaton, orally or n wrtten form, an support of ther quahfcaton for membershp. (ERVol., p. 121, 5). The Petmoners were advsed that allegatons would be processed ndvdually, but that Pettoners and others smlarly stuated could submt one set of common orgnal documents to reduce the fnancal cost of partcpaton n the dsenrollment process. (See ER Vol., p. 149, 1 4). The Commttee advsed each Pettoner that no decson would be made untl the Commttee receved the addtonal nformaton and the Commattee had an opportunty to revew all reformaton. (See ER Vol., p. 150, 1 5). Pettoners tmely submtted addtonal nformaton. On March 16, 2006, the Enrollment Commttee, after revew of the full record, held that the Pettmners were dsenrolled for falure to prove lneal descent from an orgnal Pechanga Temecula person. 4 (ER Vol., p ; Vol., 424, 19). The Enrollment Commttee lmted ts decson to a determnaton of quahfcaton for membershp, notng that "[n]othng n the Commttee's fndngs shall be construed or nterpreted that the Commttee s makng a determnaton of the 'ndan' or 'Natve Amercan' status of Pauhna Hunter or her descendants." (ER Vol., 424, 111). *rhe Enrollment Commttee revewed the tustorcal nformaton prepared by Dr. Johnson The Commttee, however, dd not hre Dr. Johnson to substtute hs opnon for that the Commttee, but rather evaluated hs documentaton n conjuncton w_th other records provded to the Commttee. See ER Vol H, pp Page 9 of 33

19 ! Pettoners exercsed ther rght to appeal to the Trbal Councl. Hearngs were held for all those who appealed. On July 21, 2006, after consderaton of arguments at the appeal hearngs and the record before the Commttee, the Trbal Councl found that: (1) there was no evdence of unfar or partal treatment of the Pettoners by the Enrollment Commttee; (2) there was no evdence of neghgence n the handlng of the Pettoners' case by the Enrollment Commttee; and (3) there was nsuffcent proof that the Enrollment Commttee volated the Dsenrollment Procedures. (See ER Vol., p. 430). Despte the dsenrollment decson, the Pechanga Trbe has not taken any acton to deny PeUtloners access to the Reservaton. Pettoners concede that they have not been banshed f-om the Reservaton. (ER Vol., p. 052:14-15). Two Pettoners, Mr. Mchael Jeffredo and Mr. Lawrence Madanaga state that they n fact resde on the Reservaton. (ER Vol., p. 099, 2; Vol., p. 086, 1). V. SUMMARY OF ARGUMENT The Petton fals to establsh the three crtera for habeas corpus jursdcton under CRA: (1) the clam arses from a crmnal proceedng, (2) there s an unlawful detenton, and (3) trbal remedes have been exhausted. The Supreme Court recognzed n Santa Clara Pueblo that a trbe's rght to defne ts own membershp for trbal purposes s central to ts exstence as an ndependent poltcal commumty. Santa Clara Pueblo, 436 U.S. at 72. "Efforts by the federal judcary to apply the statutory prohbtons of 1302 n acvl context may substantally nterfere wth a Page 10 of 33

20 ! trbe's ablty to mantan tself as a culturally and poltcally dstnct entty." d. "Gven the vast gulf between the trbal tradton and those wth wnch federal courts are more ntmately famlar, the judcary should not rush to create courses of acton that would ntrude on these delcate matters." d. "Efforts by the federal judcary to apply the statutory prohbtons of 1302 n a cvl context may substantally nterfere wth a trbe's ablty to mantan tself as a culturally and poltcally dstnct entty." Ths Court lacks jursdcton because Pettoners' admt that the dsenrollment proceedng was cvl n nature, the Pettoners admt they have not been banshed and are not detaned n that they have access to ther homes on the Reservaton and have not been dened access to the Reservaton, and the Pettoners have not exhausted ther trbal remedes for alleged denals of access, f any, to the Reservaton. V. ARGUMENT A. Standard of Revew. The same standard of revew s applcable to all ssues. The dstrct court's decson to deny the petluon for wrt of habeas corpus s revewed de novo by the Court of Appeals. Duro v. Rena, 851 F.2d 1136 (9th Cr. 1987), certorar granted 490 U.S. 1034, reversed on other grounds 495 U.S. 676, on remand 910 F.2d 673. The dstrct court's fndngs of fact are revewed for clear error. Rchter v. Hckman, 521 F.3d 1222 (9th Cr. 2008). Lack of subject matter jursdcton s never waved and can be rased by any party or the court at any tme. See nsurance Corporaton of rdand, Ltdv. Compagnedes Bauxtes de Gunee, 456 U.S. 694, 704 (1982). The Page 11 of 33

21 !!! Pettoners bear the ntal burden of provng that subject matter jursdcton exsts. Prescott v. Unted States, 973 F.2d 696, 701 (9th (fr. 1992). There s a presumpton aganst jursdcton unless the Pettoners prove otherwse. Stock West, nc. v. Confederated Trbes of the Colvlle Reservaton, 873 F.2d 1221, 1225 (9th Cr. 1989). B, The Federal Courts Do Not Have Jursdcton Pursuant To The ndan Cvl Rghts Act To Revew Trbal Membershp Decsons. Membershp Decsons Are Wthn The Exclusve Jursdcton Of The Pechanga Trbe. nternal trbal membershp decsons are exclusvely wthn the jurs&cton of the Pechanga Trbe. The courts, Congress, and the Executve Branch have long recognzed an ndan trbe's soveregn rght to make membershp decsons for trbal purposes. "The courts have consstently recognzed that one of an ndan trbe's most basc powers s the authorty to determne questons of ts own membershp." Fehx S. Cohen, Handbook of Federal ndan Law (1982 ed.), p n Santa Clara Pueblo, the Supreme Court recognzed that "[a] trbe's rght to defne ts own membershp for trbal purposes has long been recognzed as central to ts exstence as an ndependent poltcal commumty." Santa Clara Pueblo, 436 U.S. at p. 72, n.32. "Jursdcton to resolve nternal trbal dsputes, nterpret trbal consttutons md laws, and ssue trbal membershp determnatons les wth ndan trbes and not n the 5 Cohen s undsputedly the leadng treatse on the subject of federal n&an law, and has consstently and routnely been cted by theunlted States Supreme Court n federal ndan law cases snce publcaton of ts larst edton. See, e.g., Duro v. Rena, 495 U.S. 676,689 (1990); Olphant v Suquamsh ndan Trbg 435 U.S. 191,199 n. 9, (1978); Santa Clara Pueblo, 436 U.S. at 55. Page 12of33

22 dstrct courts." n re Sac & Fox Trbe of Msssspp owa/meskwak Casno Ltzgatton, 340 F.3d 749, 763 (8th Cr. 2003). n Sac & Fox Trbe, the Eghth Crcut Court of Appeals was faced wth an ssue smlar to Santa Clara Pueblo where t was requred to analyze the nterplay between a federal statute mposng governmental burdens on ndan trbes,.e., the federal gamng laws, and the trbe's soveregn rght to nterpret ts own consttuton. See Sac & Fox, 340 F.3d at 750. The Eghth Crcmt recognzed that federal courts do not have authorty to resolve nternal trbal dsputes even when the facts may be nterconnected wth a federal statute applcable to ndan trbes.. Sac & Fox, 340 F.3d at 763. To the extent a claam exsted, the Eghth Crcut held that t must be resolved n another forum. d. n ths case, Pechanga law provdes an appeal remedy that satsfes CRA's due process requrements. The Umted States Supreme Court has long acknowledged the paramount rght of a soveregn trbe to determne _ts own membershp. n Red Brd v. Unted States, 203 U.S. 76 (1906) ("Cherokee ntermarrmge Cases"), the Court consdered the clams of certan whte men, marred to Cherokee ndans, to partcpate n the common property of the Cherokee nat_on. Although the clamants had been recognzed as cmzens for certan purposes, the Court held the Cherokee Naton had complete authorty to qualfy the rghts of ctzenshp and had, n the exercse of ths authorty, provded for the revocaton or qualfcaton of ctzenshp raghts. Cherokee ntermarrage Cases, 203 U.S. at 81-82, 84. n Roffv. Burney, 168 U.S. 218 (1897), the Supreme Court held that a trbe's authorty over membershp decsons ncludes the rght to revoke that membershp: Page 13 of 33

23 The ctzenshp whch the Chckasaw legslature could confer t could wathdraw. The only restrcton on the power of the. Chckasaw Naton to legaslate an respect to ts nternal attars s that such legslaton sha]l not conflct wth the Consttuton or laws of the Unted States, and we know of no provson of suda Consttuton or laws whch would be set at naught by the acton of a poltcal communty hke ths n wthdrawng prvleges of membershp n the communty once conferred. Roff, 168 U.S. at 222. Pettoners would have the Court dsregard the Cherokee ntermarrage Cases and Roffbecause they were decded before passage of CRA. What Pettoners fal to note s that the Unted States Supreme Court contnues to cte each case as precedent. See, e.g., Wheeler v. Unted States, 435 U.S. 313,322 n. 18 (1978). mportantly, the Supreme Court recognzed the contnung valdty of these cases when t cted to them post-cra n Santa Clara Pueblo, the semnal case on lack of federal court jursdcton over nternal trbal membershp decsons. Santa Clara Pueblo, 436 U.S. at 55, 72 n. 32; see also Wllams v. Gover, 490 F.3d 785,789 n. 7 (9th Cr. 2007). L_ke the Supreme Court, Congress has consstently affrmed trbal authorty over trbal determnatons. For example, trbal authorty over membershp decsons has receved statutory recognton n 25 U.S.C 184, whch provdes that the chldren of a whte man and an ndan woman by blood shall be consdered members of the trbe f, and only f, "sad ndan woman was.., recognzed by the trbe." (Emphass added). The Executxve Branch also has long recognzed that "[t]he power of the trbe to determne ts membershp must be consdered lmted only by the express terms of congressonal enactments." See Solctor's Opnon of May 17, 1941, 1 Opnons of the Sohcator 1048; 55.D. 14, 33. "A trbe may provde for specal formaltes of recognton, and t may adopt such rules as Page 14of33

24 seem sutable to t, to regulate the abandonment of membershp, the adopton of non-ndans or ndans of other trbes, and the types of membershp or ctzenshp whch the robe may choose to recognze for trbal purposes." Handbook of Federal ndan Law (1958 ed.), p Secton 62.2(b) of Ttle 25 of the Code of Federal Regulatons provdes enrollment appeals may not be fled wth the Secretary unless: "(1) The adverse enrollment acton s ncdent to the preparaton of a trbal roll subject to Secretaral approval; or (2) An appeal to the Secretary s provded for n the trbal governng documents." n contrast to the longstandng pnncples set forth n the prevous paragraph, Pettoners mstakenly rely on Stephens v. Cherokee Naton, 174 U.S. 445 (1899). Stq_hens dealt wth a Congressonal enactment, Act of July 1, 1898, that gave the court authorty to revew trbal membershp decsons ncadent to dspersal of lands held by the federal government m trust. See Stephens, 174 U.S. at 476. There s no such statute applcable to ths case. Stephens also dd not deal at all wth the trbe's rght to determne membershp for ts own purposes. Moreover, the ssue before the Court was the consttutonalty of the act authorzng such revew. Stephens, 174 U.S. at 492. Ths case s not about the consttutlonahty of 25 U.S.C. 1303, but about whether Congress authorzed federal court revew of trbal membershp decsons when t enacted Statutes, regulatons, and case law all recognze and uphold exclusve trbal soveregnty over nternal enrollment matters. Therefore, the dstrct court correctly held that federal courts do not have jursdcton to second guess the Pechanga Trbe's determnaton of Trbal membershp status. Moreover, Congress n the exercse of ts plenary powers over ndan trbes Page 15 of 33

25 vested jursdcton to hear clams of alleged CRA volatons, other than habeas corpus clams, n ndan trbes - not the federal judcary. See Santa Clara Pueblo, 436 U.S. at The ndan Cvl RT,hts Act Vests Jursdcton n Trbal Law-Applyng Bodres For Enforcement Of ts Substantve Provsons. The semnal case nvolvng the scope of federal judcal revew of alleged volatons of CRA s Santa Clara Pueblo, 436 U.S. 49. Santa Clara Pueblo nvolved an attempt to seek federal judcal revew of membershp actons of an ndan trbe under CRA. The Supreme Court resoundngly rejected a federal cause of acton for alleged volatons of CRA n noncrrrunal proceedngs. Santa Clara Pueblo revolved a challenge to a trbal membershp ordnance whereby a female chld was dened membershp n the trbe because her mother had marred a non-member ndan. Santa Clara Pueblo, 436 U.S. at n contrast, chldren of males who marred non-member ndans were allowed to have ther chldren enrolled. d. Lke ths case, respondents alleged that the trbal acton volated provsons of 25 U.S.C The non-member respondent was rased on the reservaton, resded on the reservaton as an adult, but, due to the trbe's acton to prevent enrollment, could not vote n trbal electons, hold secular offce n the trbe, could not reman on the reservaton absent an enrolled fanuly member lvng on the reservaton, and could not nhert nterests n communal property. Santa Clara Pueblo, 436 U.S. at 52. As n ths case, the respondents unsuccessfully sought to persuade the trbe to change ts membershp decsons. Santa Clara Pueblo, 436 U.S. at 52. Page 16 of 33

26 Pettoners attempt to dstngush the clear holdngs of Santa Clara Pueblo clamng t was lmted to cases for njunctve or declaratory relef. mportantly, the decson was not based on the form of relef requested but on the substantve queston of federal court revew of nternal trbal membershp decsons. Pettoners' effort to dstngush Santa Clara Pueblo as a membershp case versus a dlsenrollment proceedngs also must be rejected. The Supreme Court decson cted both the Cherokee Marrage Cases and Roff, whch upheld a trbe's rght to revoke membershp, as good law. Santa Clara Pueblo, 436 U.S. at 55, 72 n.32. Santa Clara Pueblo asked whether CRA mpledly authorzed federal judcal actons to enforce ts substantve provsons. Santa Clara Pueblo, 436 U.S. at 51. The Act tself contans no express provson. Whle Congress could have exercsed ts plenary power to expressly abrogate the trbes' mmunty from sut n the CRA, t dd not do so. Santa Clara Pueblo, 436 U.S. at The Supreme Court held that CRA dxd not exphctly or mpledly authorze actons n federal court for volatons n the context of trbal cvl membershp decsons. Santa Clara Pueblo, 436 U.S. at 72. n reachng ts holdng, the Court contrasted relef for alleged volatons of CRA n the trbal cvl membershp context wth habeas corpus relef n crmnal matters. The Court held that hmtng habeas corpus remedes to crmnal proceedngs through 1303: [R]eflected a consdered accommodaton of the competng goals of "preventng njustaces perpetrated by tubal governments, on the one hand, and, on the other, avodng undue or precptous lnterterence n the affars of ndan people." Summary Report 11. n settlng on habeas co_rpus as the exclusve means for federal-court revew ot trbal crmnal proceedngs, Congress opted for a less ntrusve revew meclaansm than tad been ntally proposed. Page 17 of 33

27 Santa Clara Pueblo, 436 U.S. at (emphass added). The Court went on to state "[s]rmlarly, and of more drect mport to the ssue n ths case [federal revew of tubal membershp decsons], Congress consdered and rejected proposals for federal revew of alleged volatons of the Act arsng n a cvl context." Santa Clara Pueblo, 436 U.S. at 67 (emphass added). The Supreme Court recognzed n Santa Clara Pueblo that lmted habeas corpus relef under CRA was the excepton rather than the rule: Afortor, reso!ufon n a foregn forum ofntratrbal dsputes of a more "pubhc character, suct: as the one an ths case [a trbal members-hp, decson], cannot help but unsettle a trbal government s ablty to mantan authorty. Although Congress clearly has the power to authorze cvl actons aganst trbfl offcals and has done so wth respect to habeas corpus relef n 1303, a proper respect both for trbal soveregnty tself and for the plenary authorty of Congress n ths area cautons that we trea:l lghtly n the absence o-f clear ndcatons of legslatve ntent. Santa Clara Pueblo, 436 U.S. at (ctatons and footnote omtted). Wthout decdng the ssue, one lower court ntmated these clear statements by the Supreme Court mght not lrrnt 1303 relef to tubal crrrunal matters. Poodry v. Tonawanda Trbe of Seneca ndans, 85 F.3d 874, 887 (2nd Cr.) cert. dened 519 U.S (1996). rrportantly, Poodry dd not take nto account that Santa Clara Pueblo was ltgated because the partes acknowledged that habeas corpus was not an avalable remedy for alleged CRA volatons n the context of membershp decsons. Pettoners effort to obtan habeas corpus relef s so outsde the ntended scope of RCA and federal ndan law that all partes agreed n Santa Clara Pueblo that habeas corpus was not a remedy for those dssatsfed wth nternal trbal enrollment decsons. The respondents n Santa Clara Pueblo had pushed for an mpled remedy because trbal membershp, loss of land use rghts, and banshment were correctly Page 18 of 33

28 understood to be non-detenton or non-custodal matters. Santa Clara Pueblo, Respondents' Bref, at 4 and 15, 1977 WL The Unted States took the same poston before the Court: "0a]abeas corpus actons under Secton 203 of the Act, 25 U.S.C. 1303, whle provdng an effectve remedy aganst deprvaton of rghts n rmst crmnal cases, cannot provde adequate redress for loss of rghts n noncustodlal stuatons." Santa Clara Pueblo, Unted States' Bref, at 9, 1977 WL (emphass added). The Supreme Court has held that there s no federal court jursdcton to revew CRA volatons n the context of trbal cvl membershp decsons. Santa Clara Pueblo, 436 U.S. at 72. The dstrct court should be affrmed because the Pechanga Trbe has exclusve jursdcton over ts enrollment decsons. C. The Court Lacks 1303 Habeas Corpus Jursdcton n Ths Case 1. Habeas Corpus s An Extraordnary Remedy And ts Rehef s Lmted. The habeas corpus provson of CRA states: "The prvlege of the wrt of habeas corpus shall be avalable to any person, n a court of the Umted States, to test the legahty of hs detenton by order of an ndan robe." 25 U.S.C Habeas corpus s an extraordnary remedy. Bousely v Unted States, 523 U.S. 614, 621 (1998). Secton 1303 s no broader than the cognate statutory provsons governng habeas corpus revew of state and federal acton. Shenandoah v. U.S. Department of nterzor ("Shenandoah"), 159 F.3d 708, 713 (2nd (Sr. 1998). Federal court jursdcton only exsts under 1303 f Pettoners can establsh that: (1) the dsenrollment proceedng s crmnal and not cvl n nature; (2) the Page 19 of 33

29 Pechanga Trbe s detanng them; and (3) Pettoners have exhausted all avalable Trbal remedes. Quar v. Ssco ("Quar r'), 359 F.Supp.2d 948, 963 (E.D.Cal. 2004); Alrev. Jackson, 65 F.Supp.2d 1124, 1127 (D.Ore 1999). Under CRA, habeas corpus relef may only be granted from a trbal cnrmnal proceedng whch poses a "severe actual or potental restrant on [Pettoners'] lberty." Shenandoah, 159 F.3d at 714. Habeas corpus relef "wll not be allowed to do servce for an appeal." Bousely, 523 U.S. at 621. Whle trbal membershp s an mportant prvlege, reltgaton of an mportant nterest xs nsuffcent to establsh habeas corpus jursdcton. Habeas corpus, representng as t does a profound nterference wth the fundamental rght of trbes to self-governance, s reserved for those nstances m whch the federal nterest n lberty s so strong that t outweghs fnahty concerns for membershp decsons and the overrdng federal polcy of protectng trbal self-governance and cultural dentty. See Santa Clara Pueblo, 436 U.S. at 60-61; Lehman v. Lycomng County Chldren's Servces Agency, 458 U.S. 502, 516 (1982). 2. Habeas Corpus Jursdcton Does Not Exst Because The Pechanga Trbe s Dsenrollment Proceedngs Are Cvl n Nature. The dstrct court dsrrnssal should be affrmed because Pettoners admt that the Pechanga Trbe's actmn to dsenroll s a cvl acton. Appellants' Bref at 19. The dstrct court correctly found that habeas corpus jursdcton under the CRA only apples to trbal crmnal proceedngs. Order Grantng Respondents' Moton to DslT_SS Pursuant To F.R.C.P. at 4 (ER Vol., p. 004); see Santa Clara Pueblo, 436 U.S. at 66-67; Alre, 65 Page 20 of 33

30 F.Supp.2d 1124 (D. Ore 1999); accord Shenandoah v Halbrtter ("Halbrtter"), 275 F. Supp. 2d, 279, (N.D.N.Y. 2003). Congress has consstently understood 1303 relef to be lmted to cramnal proceedngs. CRA's legslatve hstory contans extensve dscussons of Congress's treatment of habeas corpus as a crmnal remedy. See Santa Clara Pueblo, 436 U.S. at 66-68; Poodry, 85 F.3d at Congress' subsequent treatment of 1303 shows that Congress stll understands habeas corpus relef to be llrmted to crmnal proceedngs. Congress consdered 1303 durng mactment of Pub. L , the ndan Law Enforcement Reform Act. Congress noted that, n addton to cvl remedes under CRA through trbal authortes, "n the area of crmnal law, Federal revew may be nvoked through a wrt of habeas corpus." S. Rep , 101st Cong. 1st Sess (emphass added). n 1991, dunng the consderaton of legslaton respondng to the decson n Duro, 495 U.S. 676, Congress noted that habeas corpus revew s avalable to trbal prsoners under 1303 lke t s to state prsoners under 28 U.S.C S. Rep , 102nd Cong. 1st Sess Congress clearly ntended and contnues to understand that 1303 s lmted to crmnal matters. n the anomalous cases suggestng that habeas corpus jursdcton may exst n connecton wth dsenrollment, t was materal that dsenrollment was a crmnal punshment and the dsenrolled persons were consdered crrranals. See Poodry, 85 F.3d at ; Quar, 359 F.Supp.2d a 953. n Poodry, pettoners were trbal members who were summarly convcted of"treason" and sentenced to dsenrollment and permanent banshment from the reservaton. Poodry, 85 F.3d at 876. The trbe clamed pettoners had engaged n "unlawful actvtes," ncludng "actons to Page 21 of 33

31 overthrow, or otherwse brng about the removal of, the tradtonal government" and for these reasons the pettoners were "convcted of treason." Poodry, 85 F.3d at 889. n contrast to ths case, the pettoners n Poodry concededly satsfed the general crtera for membershp. Poodry, 85 F.3d at 889. Contrary to Pettoners assernons, Quar dd nvolvea crmnal proceedng. n Quaw, petmoner was nformed and beleved that "attempts to seek redress of her grevances or appeal the crmnal charges and penaltes aganst her" would be pontless because the persons who dsenrolled her were the same partes who refused to hear her appeal. Quar, 359 F.Supp.2d at 953. Quarlheld that "the dsenrollment of a trbal member and the banshment of that trbal member consntutes a puntve sancton." Quar, 359 F.Supp. at 967. No court has held that all dsenrollment actons are nherently cramlnal m nature, or that a dsenrollment decson based strctly on trbal membershp crtera somehow consttutes a crmnal proceedng. Moreover, later n Quar, nvolvng separate trbal actons of banshment and dsenrollment, the court rejected habeas corpus jursdcton over the dsenrollment acton statng: n nt.ea-pretng _ 130.3,_coups should hestate to so expand the meanng of crmnal and detenton' such that, as a practcal matter, all trbal decasons affecton ndvdual members n amportant areas of ther laves become subject to revew an federal court. Such a result would be nconsstent wth the prncpal of broad, unrevewable trbal soveregnty n all but cnmnal cases revolvng physacal detentaon. Quar v. Ssco ("Quarl"), 2007 WL at *2. Randall v Yalama Naton Trbal Court, 841 F.2d 897 (9th (fr. 1988) supports the Trbal Partes poston that habeas corpus relef under CRA s approprate n the crmnal context. Pettoners wrongly nfer that Randall Page 22 of 33

32 stands for the proposton that all alleged volatons of due process by a trbal government are subject to appellate revew n the federal courts. Randall was a habeas corpus acton revewng appeal of a trbal crmnal decson. mportantly, Pettoners analogy to denaturalzaton s napposte. n Tropp v. Dulles, 356 U.S. 86 (1958), the ssue was the consttutlonalaty of a statute that revoked Unted States ctzenshp for deserton durng wartme even f the deserton was unrelated to any actons on behalf of foregn government. The statute at ssue left the defendant stateless. The Court m holdng the statute unconsttutonal contrasted t wth a statute where loss of cmzenshp was based on votng n a foregn electon. Tropp, 356 U.S. at 93. n ths case, Pettoners are not left stateless because they stll retan ther Umted States ctzenshp and may be elgble for membershp n another trbe. mportantly, n Tropp the Court defned when a statute s penal versus nonpenal: f the statute mposes a dsablty for the purposes of punshment - that s, to reprmand the wrongdoer, to deter others, etc., t has been consdered penal. But a statute has been consdered nonpenal f t mposes a dsabhty, not to punsh, but to accomplsh some other legtmate state purpose. Tropp, 356 U.S. at 96. Here the Pechanga Band has a legtmate governmental purpose n ensurng that only those persons who meet the Pechanga Consttuton's membershp requrements are members of the Trbe, vote n Trbal electons, and receve trbal benefts. There s nothng n the record of the proceedngs before the Pechanga Trbe to show that acton was taken n an effort to punsh the Pettoners. Klapport v. Unted States, 335 U.S. 601 (1949) and Sehnederman v Unted States, 320 U.S. 118 (1943), lkewse do not support habeas corpus Page 23 of 33

33 jursdcton. The Trbal Partes do not dspute that loss of membershp has sgnfcant consequences. However, unlke n Klapport, the Pechanga Trbe dd not dlsenroll Pettoners summarly, by default, and wathout an opportunty to respond to or present evdence. Schnederman was a drect appeal on the merts of the case - not a habeas corpus proceedng. As the Supreme Court held n Bousely, habeas corpus relef "wll not be allowed to do servce for an appeal." Bousely, 523 U.S. at 621. Contrary to ther poston before the dstrct court, Pettoners now concede at page 19 of ther Openng Bref that ther dsenrollment was a cvd proceedng. Ths s consstent wth the record below. The Record of Decson makes t clear that the Dsenrollment Procedures are cvl n nature. Pettoners were dsenrolled for falure to meet the Pechanga Consttuton's requrements. (ER Vol., p , _ 8-9). Dlsenrollment was not a punshment for any acton of Pettoners, crrrunal or otherwse. The factors to be consdered for ntatng the Dsenrollment Procedures all focus on mstakes or errors n the ntal enrollment. (ER Vol. Vol., p. 121, 2). mportantly, the Pechanga Consttuton, Art. X, establshes a separate acton where loss of membersbap prvleges may be mposed as a punshment for volatons of tubal law. (ER Vol., p. 119, Art. X). No charges have been brought aganst Pettoners under ths Artcle. Whale Pettoners conceded before the dstrct court that they have not been banshed (ER Vol., p. 203:8), t s mportant to note that the Access Ordnance and the Excluson Regulatons under whch someone mght be dened access to the Reservaton are cvl n nature. n Hardn v. Whte Mountan Apache Trbe, 779 F.2d 476, 478 (1985), thennth Crcut held that excluson was an exercse of a trbe's cvl jursdcton. Page 24 of 33

34 The Supreme Court n Duro recognzed the cvl nature of excluson and evcton remedes n contrast to a trbe's crlrrnnal jursdcton. The Court held that although trbes lack crmnal jursdcton over nonmembers under Olphant, they possess "ther tradtonal and undsputed power to exclude persons whom they deem to be undesrable from trbal lands." Duro, 495 U.S. at 696. Pettoners admt the Dsenrollment Procedures are a cvl proceedng. Habeas corpus under 1303 s not avalable to appeal from a cavl proceedng and the dstrct court decson should be affrmed. 3. Pettoners Have Not Been Detaned To be ehgble for habeas corpus relef, Pettoners must be an "detenton." 25 U.S.C. 1303; Poodry, 85 F.3d at 899. The detenton requrement s desgned to lmt the avalablty of habeas corpus revew "to cases of specal urgency, leavng more conventonal remedes for cases n whch the restrants on lberty are nether severe nor mmedate." Quar, 359 F.Supp.2d at 967 (ctnghensley v. Muncpal Court, 411 U.S. 345,351 (1973)). The courts have held that the detenton language n 1303 s nterpreted nterchangeably wth "custody" as that term s used n other federal habeas corpus statutes. Poodry, 85 F.3d at 891. What matters xs that the restrctons "must sgnfcantly restran pettoners' lberty to do those thngs whch n ths country free men are enttled to do." Jones v. Cunnngham, 371 U.S. 236, 243 (1963). rrportantly, collateral consequences even n a crmnal proceedng are not themselves suffcent to render an ndvdual detaned. "Some of the typcal collateral consequences of a [detenton] nclude the nablty to vote, engage n certan busnesses, Page 25 of 33

35 hold publc offce, or serve as a juror." Wllamson v. Gregore, 151 F.3d 1180, 1182 (9th Cr. 1998) cert. dened 525 U.S (1999); Maleng v. Cook, 490 U.S. 488, 491 (1989). Pettoners' Openng Bref makes t clear that ther real complant s that they no longer receve per capta payments and other monetary benefts of enrollment. See Openng Bref, pp. 3, 10, 12, 23, 35. n Alre, the court held that there was no protectable lberty nterest for 1303 jursdcton purposes where pettoner faled to explan "actual or potental severe restrctons" on lberty. Alre, 65 F.Supp.2d at Pettoners admt n ther Moton For Summary Judgment at page 10 that the "Petmtaoners heren have been dsenrolled, but not banshed." (Emphass added). There s no allegaton that Pettoners have been subjected to any sancton under the Trbe's Access Ordnance or Excluson Regulatons. Whle the Trbal Rangers may exclude someone from the Reservaton wthout pror Trbal Councl acton and opportunty for a hearng, such authorty s lmted to excluson for a maxmum of seven days, lmted to specfc crcumstances and subject to revew by the Trbal Councl. (ER Vol., p. 139, Art. 11). Moreover, excluson alone as not a protected lberty nterest. n Alre, the pettoner was excluded from the reservaton seven months after her crmnal convcton based on three other volatons of trbal law n addton to the crrmnal convcton. Habeas corpus jursdcton n Alre was demed because the separate volatons dd not rse to the level of a specal and urgent stuaton requrng habeas corpus relef. Alre, 65 F.Supp.2d at As m ths case, the pettoner n Alre was not strpped of her ndan name or her lands. Alre, 65 F.Supp.2d at She was not banshed from her Page 26 of 33