Indians Tossed From Tribe Can’t Seek Habeas Relief

(CN) - A group of Native Americans who lost their tribal membership after they could not prove their lineal descent to the tribe's original members cannot seek reenrollment under the illegal detention clause of the Indian Civil Rights Act because they were not detained, the 9th Circuit ruled.

Sixteen former members of the Pechanga Band of the Luiseno Mission Indians filed a petition for writ of habeas corpus after they were removed from the tribe because they could not prove that they descended from the original Pechanga Temecula people.

The San Francisco-based appeals court ruled that the former tribe members could not bring their claims under the Indian Civil Rights Act because they were not detained.

The court also said it lacks jurisdiction over the matter.

"[A]n ICRA habeas petition is only proper when the petitioner is in custody," Judge Randy Smith wrote. "They have not been banished from the reservation, imprisoned or evicted, and they have not exhausted tribal remedies," the opinion states.

The former members were denied access to the reservation's health clinic, school and senior center, which they argue amounts to detention. But they are not experiencing a "severe actual or potential restraint on liberty," Smith wrote.

The court also ruled that the tribe members' disenrollment was a civil matter, not criminal, and the Indian Civil Rights Act does not grant habeas relief for detention resulting from civil proceedings.

Dissenting Judge Claudia Wilken said the law covers civil and criminal detention cases, adding that the former members had been effectively detained.

"The combination of the current and potential restrictions placed upon appellants and the loss of their lifelong Pechanga citizenship constitutes a severe restraint on their liberty," Wilken wrote.

Appellants have lost all their rights as tribal members. Even though they still live on the reservation, "any tribal ranger can take away that liberty at any moment," Wilken wrote.

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