Poulson et al v. Ute Indian Tribe of the Uintah and Ouray Reservation et al

Filing 142

MEMORANDUM DECISION and Order-IT IS ORDERED that the petitioners' Complaint Notice of Removal of Action, by Writof Habeas Corpus from Ute Tribal Court, filed April 2, 2013 (CM/ECF No. 141) is DENIED for lack of jurisdiction under 25 U.S.C. 1303. Signed by Judge Bruce S. Jenkins on 4/4/13. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
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HONORABLE CLAIR M. POULSON, in
his official capacity as Judge of the
Duchesne County Justice Court, and
DEREK DALTON,
Plaintiffs,
vs.
TRIBAL COURT FOR THE UTE
INDIAN TRIBE OF THE UINTAH AND
OURAY RESERVATION, et al.,
Defendants;
EDSON GARDNER and LYNDA
KOZLOWICZ,
Petitioners.

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Civil No. 2:12-CV-497 BSJ
MEMORANDUM OPINION
& ORDER
(28 U.S.C. § 1303)

FILED
CLERK, U.S. DISTRICT COURT
April 4, 2013 (3:49pm)
DISTRICT OF UTAH

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On April 2, 2013, petitioners Edson Gardner and Lynda Kozlowicz, joined by defendants
Athenya Swain and Johnny Slim, filed a paper captioned as a “Complaint Notice of Removal of
Action, by Writ of Habeas Corpus from Ute Tribal Court” (CM/ECF No. 141). The court has
reviewed that paper and concludes that this court lacks jurisdiction to grant the relief that the
petitioners seek.
Habeas Corpus Relief Under 25 U.S.C. § 1303
In 1961, a congressional committee began conducting a series of hearings to investigate
complaints of civil rights violations in Indian country. Felix S. Cohen, et al., Cohen’s Handbook
of Federal Indian Law § 14.04[2], at 951 (2005 ed.). The committee eventually produced a bill

that imposed certain restrictions on tribal governments similar, but not identical, to the
restrictions imposed on federal and state governments by the Bill of Rights and the Fourteenth
Amendment. Id.; see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57 (1978). In 1968,
Congress enacted the Indian Civil Rights Act (ICRA) as Title II of the Civil Rights Act of 1968,
Pub. L. No. 90-284, 82 Stat. 73. Cohen’s Handbook of Federal Indian Law at 952. These
“constitutional” limitations on the governmental powers of Indian tribes are codified at 25 U.S.C.
§ 1302. Cohen’s Handbook of Federal Indian Law at 952.1
“[A] central purpose of the ICRA and in particular of Title I was to ‘secur[e] for the
American Indian the broad constitutional rights afforded to other Americans,’ and thereby to
‘protect individual Indians from arbitrary and unjust actions of tribal governments.’” Martinez,
436 U.S. at 60–61 (quoting S.Rep. No. 841, 90th Cong., 1st Sess., 5–6 (1967)). The Martinez
Court observed that the intent of Congress in enacting ICRA was also “to promote the
well-established federal ‘policy of furthering Indian self-government.’” Id. at 62 (additional
citations omitted). The provisions of ICRA thus reflect the commitment of Congress to protect
tribal sovereignty from undue interference from federal and state government. Id. at 62, 63.
The Martinez Court noted that Title I of ICRA did not expressly authorize civil actions
for declaratory or injunctive relief to enforce its provisions. Id. at 51–52. Congress expressly
authorized only the writ of habeas corpus as a federal court remedy under § 1303 of ICRA for
persons in tribal custody. Id. at 58; see also Cohen’s Handbook of Federal Indian Law at 955
1

The rights guaranteed by § 1302 are federal statutory rights rather than true
constitutional rights because the constitutional provisions that limit federal or state authority do
not apply to Indian tribes because the tribes retain powers of self-government that predate the
Constitution. See Talton v. Mayes, 163 U.S. 376, 384 (1896); Martinez v. Southern Ute Tribe,
249 F.2d 915, 919 (10th Cir. 1957).
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(The Martinez Court “interpreted ICRA to limit federal court enforcement to habeas corpus
jurisdiction over claims by persons in tribal custody.”).2 In light of Congress’ dual objectives in
enacting ICRA, the Martinez Court held that “[c]reation of a federal cause of action for the
enforcement of rights created in Title I, however useful it might be in securing compliance with §
1302, plainly would be at odds with the congressional goal of protecting tribal self-government.”
Martinez, 436 U.S. at 64. Further, implying a federal civil remedy “is not plainly required”
because tribal forums are available to vindicate any infringement of rights provided by ICRA. Id.
at 65. Absent express Congressional intent, the Court declined to imply a federal civil cause of
action in addition to the habeas corpus remedy expressly provided for in § 1303. Id. Thus, §
1302 “does not impliedly authorize actions for declaratory or injunctive relief against either the
tribe or its officers.” Id. at 72. “Instead, tribal members have only one avenue to seek relief in
federal court for violations of § 1302—filing a petition for writ of habeas corpus pursuant to 25
U.S.C. § 1303.” Valenzuela v. Silversmith, 699 F.3d 1199, 1203 (10th Cir. 2012) (citing White v.
Pueblo of San Juan, 728 F.2d 1307, 1311 (10th Cir. 1984) (“The only remedy in federal courts
expressly authorized by Congress in the ICRA is a writ of habeas corpus.”)); see also United
States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir. 2005) (“We acknowledge that in the
civil context, habeas corpus relief generally is the sole federal remedy for a violation of ICRA.”);
Stevens v. Skenandore, 2000 WL 1069404 (7th Cir. 2000) (“Stevens cannot sue the individual
Oneida defendants under the ICRA because the only remedy authorized by the statute is a habeas
corpus proceeding brought against the tribe pursuant to 42 U.S.C. § 1303.”)
2

25 U.S.C. § 1303 reads:“The 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.”
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A federal court has no jurisdiction to hear a petitioner’s petition for habeas corpus relief
under § 1303 unless the petitioner is (1) in custody and (2) has exhausted all tribal remedies. See
Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir. 2010) (“‘[A]ll federal courts addressing the
issue mandate that two prerequisites be satisfied before they will hear a habeas petition filed
under the ICRA: The petitioner must be in custody, and the petitioner must first exhaust tribal
remedies.’”); Necklace v. Tribal Court of Three Affiliated Tribes, 554 F.2d 845, 846 (8th Cir.
1977) (“[T]ribal remedies must ordinarily be exhausted before a claim is asserted in federal court
under [§ 1303].”).3 One seeking to invoke federal jurisdiction under § 1303 must demonstrate
“‘a severe actual or potential restraint on liberty.’” Jeffredo, 599 F.3d at 919 (quoting Poodry v.
Tonawanda Band of Seneca Indians, 85 F.3d 874, 880 (2nd Cir. 1996)). The Tenth Circuit has
“recognized that ‘[t]he “detention” language in § 1303 is analogous to the “in custody”
requirement contained in the [other] federal habeas statute[s].’” (quoting Walton v. Tesuque
Pueblo, 443 F.3d 1274, 1279 n.1 (10th Cir. 2006)).4
Thus, federal court jurisdiction of a § 1303 habeas petition is only proper when the
petitioner is somehow held “in custody.” Jeffredo, 599 F.3d at 918 (citing Moore, 270 F.3d at

3

Some courts have added a third requirement-that the tribal proceeding must have been
criminal and not civil in nature. Cohen's Handbook of Federal Indian Law at § 9.09 n.280; see
also Quair v. Sisco, 359 F.Supp.2d 948, 963 (E.D.Cal. 2004) (“In order to be entitled to a writ of
habeas corpus, petitioners must establish that the decision which they are requesting this court to
review is criminal and not civil in nature; that petitioners are being detained by the Tribe; and
that petitioners have exhausted all other available remedies.”).
4

The Ninth Circuit has similarly held that such restraint or “detention” as provided in the
ICRA must be interpreted similarly to the “in custody” requirement in other habeas contexts.
Jeffredo, 599 F.3d at 918; see also 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 habeas
statutes.” (citation omitted)).
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791); see also Shenandoah v. U .S. Dept. of Interior, 159 F.3d 708, 714 (2d Cir. 1998) (“Habeas
relief does address more than actual physical custody, and includes parole, probation, release on
one’s own recognizance pending sentencing or trial, and permanent banishment”). As precedent
demonstrates, a writ of habeas corpus is a measure reserved for only the most severe restraints on
individual liberty—restraints that amount to some form of detention. Hensley v. Mun. Court, San
Jose Milpitas Judicial Dist., Santa Clara County, California, 411 U.S. 345, 351 (1973).
This concept of custody for habeas corpus proceedings is not coextensive with a denial of
an individual’s liberty interest under the Fourteenth Amendment—or under § 1302(8). Rather,
the custody required in habeas corpus proceedings is actual, physical custody or a substitute for
such custody, such as release on bond. See Lawrence v. 48th Dist. Court, 560 F.3d 475, 480 (6th
Cir. 2009).
Petitioners’ Claim for Habeas Relief
From the paper filed by petitioners, it appears that the Ute Indian Tribe’s Executive
Director, with the approval of the tribal Business Committee, gave notice to Mr. Gardner and
Ms. Kozlowicz in March 21, 2013 that they are suspended from practice as lay advocates before
the Ute Tribal Court for a period of ninety days from and after March 21, 2013, indicating that
“[y]ou may be reinstated to practice as lay advocates on June 19,2013.”
The temporary suspension of one’s license to practice as a tribal court advocate is simply
not the “custody” required to sustain habeas corpus proceedings. In Jeffredo, the Ninth Circuit
concluded that denial of access to certain Indian tribal facilities and services were not sufficient
restraints to satisfy the detention requirement of § 1303. 599 F.3d at 919, 920. Such conditions
and restrictions must significantly restrain one’s liberty in order to invoke § 1303 habeas
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jurisdiction. Id.; compare Poodry v. Tonawanda Band ofSeneca Indians, 85 F.3d 874 (2nd Cir.
1996).
Therefore,

IT IS ORDERED that the petitioners' Complaint Notice of Removal of Action, by Writ
of Habeas Corpus from Ute Tribal Court, filed April 2, 2013 (CM/ECF No. 141) is DENIED for
lack ofjurisdiction under 25 U.S.C. § 1303.

~

DATED this

1/

day of April, 2013.

BY THE COURT:

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