State Habeas and Tribal Habeas: Identical or Fraternal Twins? By Barbara Creel and Veronica C. Gonzales-Zamora August 31, 2017 In law school, you learn about the great writ, also known as the writ of habeas corpus. In form, the writ is a petition. In theory, the writ is a civil procedural mechanism by which a state or federal prisoner requests relief and release in a federal court with jurisdiction. See 28 U.S.C. 2254 (1996) (applying to a person in state custody); 28 U.S.C. 2255 (2008) (applying to a person in federal custody). What you likely did not learn is that this civil remedy is also available to Native American Indian prisoners via the Indian Civil Rights Act (ICRA) of 1968, 25 U.S.C. 1301 1304, codified in section 1303 (tribal habeas). Specifically, section 1303 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 order of an Indian tribe. Although codified in the Indian provisions of the U.S. Code, the tribal writ of habeas corpus applies to Indians and non-indians alike. Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976), rev d on other grounds sub nom., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). This scope of application is not unusual. See, e.g., Violence Against Women Reauthorization Act of 2013, 42 U.S.C. 13925 14045d (2013) (expressly requiring that the courts inform a non-indian of access to the writ of habeas). Though parallel in theory, the state and tribal writs have distinct practical applications. See generallyalvarez v. Tracy, 773 F.3d 1011 (9th Cir. 2014), withdrawn and superseded on other grounds sub nom., Alvarez v. Lopez, 835 F.3d 1024 (9th Cir. 2016). See also Tavares v. Whitehouse, 851 F.3d 863, 865 (9th Cir. 2017). The tribal writ, a little-known statute, requires attention to protect the civil rights of Native Americans. Comparing the Twin Writs The best way to approach this analysis is to discuss how the state habeas doctrine parallels the tribal habeas doctrine. First, like the state habeas process, the tribal habeas process in its most basic form allows an imprisoned person to petition the federal court for review of an unlawful detention.
Second, both petitions are considered last-ditch efforts to obtain release from imprisonment. Consequently, petitioners in both situations are required to take some basic steps before a court will consider exercising review. For example, a petitioner in either context must have a final judgment or a final order of detention. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895 (2d Cir. 1996) (interpreting detention for purposes of habeas petitions as encompassing other important rights such as enrollment and banishment). Third, petitions in both contexts are considered civil, though they are predominantly utilized in the criminal context. A significant difference exists in that a state habeas petition, while available in other contexts, is generally not submitted outside the criminal context. On the other hand, a tribal habeas petition is widely used in both criminal and civil contexts, such as when a petitioner wishes to challenge a tribal banishment or disenrollment. See, e.g., Poodry, 85 F.3d at 895 97. Last, and most importantly, both petitions are available to protect and ensure that individual liberties are honored. In state habeas, federal review ensures that the constitutional rights of state defendants are protected vis-à-vis the state. In tribal habeas, however, the protections are embodied in the Indian civil rights statute; this is because the state and federal constitutions do not apply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 384 (1896). Contrasting the Twin Writs The differences between the two writs, while not obvious, are deliberate, relevant, and critically important. First, state habeas petitioners facing a denial have several alternative remedies at their disposal. Alternative modes of relief, such as those available under other constitutional or federal statutory provisions, may be more favorable than state habeas. As an example, a court can accord less deference to the state by using a higher level of scrutiny for an equal protection claim. Or states may afford additional avenues of redress in state motions for reconsideration, state postconviction statutes, DNA review statutes, and state habeas review. These avenues allow a state to correct a constitutional defect or structural error before federal review. And, if not, the federal habeas statute remains a constitutional safety net.
On the other hand, tribal habeas is unique in that it provides for one federal court remedy. Although the 567 current Indian Tribes enjoy the same sovereignty, there is no guarantee that they afford the same rights or protections to people appearing before their courts. There is not one body of constitutional law that provides constitutional protections or prevents misapplication of constitutional law. Instead, it is only through section 1303 that an individual Indian can have his case reviewed by a federal court. Although the same plethora of constitutional remedies available to state and federal prisoners was considered, it was ultimately not adopted by the ICRA. See Constitutional Rights of the American Indian: Hearings on S. 961 68 and S.J. Res. 40 Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 89th Cong. (1965) (proposing and ultimately declining to extend all constitutional provisions applicable to the federal government to tribal governments). Second, federal courts have applied procedural and substantive limits on state habeas petitions, largely as a measure to control their dockets and prevent state prisoners from clogging the federal court system with frivolous petitions. Other purposes of these restrictions include promoting the finality of sentences and deferring to state court judgments. Congress further limited state habeas petitions with statutes such as the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. See 28 U.S.C. 2254. The AEDPA narrowed the procedural scope and timing of the state habeas writ with extreme rules designed to prevent the filing of any petition after one year has passed and to prohibit successive petitions. Additionally, a petitioner must first exhaust all of the available state court remedies, which are presumed to be adequate. This presumption of adequacy may or may not be fair because states (and their courts) are obligated to honor (1) their respective state constitutions and (2) the federal constitutional standards that have been incorporated to apply to the states. The AEDPA also narrowed the substantive scope of federal review of state convictions. It provides the current, highly deferential standard of review. Claims can only succeed when convictions are contrary to clearly established federal law or an unreasonable determination of the facts in light of the evidence. 28 U.S.C. 2254(d)(1), (2). In light of this difficult burden of proof, successful claims are rarer than ever. In contrast, tribal habeas petitions have no requirements on timing, exhaustion, or deference to the tribal court decision. The rules governing section 2254 cases do not apply to tribal habeas cases on their face, and there are no rules providing a process for review of a petition for writ of habeas corpus under section 1303. And after Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978) (the seminal Indian law case denying civil rights review but securing the writ to challenge tribal court orders of detention), there has been little interpretive guidance from the courts. See United States v. Swift Hawk, 125 F. Supp. 2d 384, 8 (D.S.D. 2000) (noting that [t]here is almost no case law on the ICRA ). In passing the ICRA and the tribal habeas provision, Congress did not expressly require any such limits, instead providing for one exclusive remedy: the privilege of the writ of habeas corpus under section 1303. See Santa Clara Pueblo, 436 U.S. at 58 (federal habeas review is the only remedial provision expressly supplied by Congress ). Problems with Equal Treatment Fast-forward nearly fifty years after the ICRA was enacted. Federal courts, having little practice with tribal habeas petitions, are in danger of unilaterally expanding the scope of the AEDPA by applying the state habeas limits to tribal habeas petitions. This is a misapplication of federal law. The AEDPA applies to state court decisions and is not applicable to tribal decisions on its face. The tribal habeas s chance at review by one federal judge, without limits, was intended to honor individual liberties. But applying the AEDPA limits to federal review of tribal petitions defeats this unique objective of the ICRA. See Santa Clara Pueblo, 436 U.S. at 69 70 (concluding that, based on the legislative history, the ICRA intended federal review of a writ of habeas to be the sole remedy for a tribal prisoner); see also Talton,163 U.S. at 384. In tribal habeas cases, federal courts have erroneously denied review on the basis that the tribal remedies have not been exhausted, citing concerns about deference to the tribal sovereign. This is a misreading of the ICRA and a misunderstanding of tribal sovereignty. Congress explicitly granted federal review of tribal court orders, thus allowing an individual to seek habeas relief with the enactment of 25 U.S.C. 1303. The ICRA s only express remedial provision, section 1303, extends the writ of habeas corpus to any person, in a federal court, to test the legality of his detention by order of an Indian tribe. Santa Clara Pueblo, 436 U.S. at 49, 58. There is no exhaustion doctrine that applies to section 1303. See, e.g., Oliphant, 435 U.S. at 191 (implying that the non-indian petitioners did not need to exhaust tribal remedies in considering their claim for the first time in federal court). As such, Congress has already balanced protection of tribal sovereignty and the need for federal review of civil rights in the criminal context and found in favor of unfettered review. In fact, there are no restrictions on federal review.
The imposition of AEDPA limits despite the intent of the ICRA is particularly strange considering that the AEDPA was passed nearly 30 years after the ICRA was enacted. Considering this timeline, the ICRA did not and could not have anticipated the application of this judge-made doctrine extending the limits of federal court review to a tribal habeas petition. Although, because of the lack of cases interpreting the ICRA, there is little analysis about deference, federal courts should err on the side of not applying the AEDPA deference requirements to tribal habeas matters. A misapplication of the AEDPA effectively forecloses an Indian prisoner s sole opportunity for review. If, for instance, a tribal prisoner discovers that he has no remedy within his tribe or that whatever remedy is available is inadequate, a misapplication of the AEDPA means that he will also be denied review in federal court for failure to exhaust his inadequate-but-presumedadequate remedies. Whatever the reason for the inadequacy, be it financial or otherwise, tribes are not required to do anything more than what the ICRA requires them to do. Tribes need not comply with federal constitutional protections and certainly not with state constitutional protections. For example, the ICRA does not require counsel for a Native defendant equivalent to federal Sixth Amendment protections, which creates an equal protection problem for Natives. See United States v. Bryant, 579 U.S., No. 15-420, slip op. at 8 (June 13, 2016) ( The Bill of Rights, including the Sixth Amendment right to counsel... does not apply in tribal-court proceedings. ) (citation omitted). Additionally, a tribal petitioner will not have a guarantee of access to a speedy, fair, and independent appellate process in tribal court. If the AEDPA limits are applied in federal court, a tribal petitioner will effectively not have those guarantees in federal court, either. What court, then, will hear the tribal prisoner s claim if denied review under section 1303? None. Practice Points Because the ICRA intended tribal habeas to be the exclusive federal remedy in form and in practice, the courts cannot impose state habeas like limits on that review, particularly when Indians do not have the benefit of state-like protections. Thus, when bringing a tribal habeas petition to a federal court, practitioners have a duty to confidently remind the court that
exhaustion is not required, especially when the remedies necessary to exhaust are not adequate. Conclusion Congress did not intend the ICRA to be a state parallel, and it is not. Although state habeas and tribal habeas share many similarities, a significant difference is that tribal habeas offers one federal court remedy, without limits a distinction that is critical to preserving Indian individual rights. Barbara Creel is a member of the Pueblo of Jemez and is the director of the Southwest Indian Law Clinic at the University of New Mexico School of Law. Creel filed an amicus brief in Bryant. Veronica C. Gonzales-Zamora is an alumna of the University of New Mexico School of Law and is a licensed attorney in New Mexico. Creel and Gonzales-Zamora filed an amicus brief in Alvarez