## Facts

- Members of the United Auburn Indian Community (UAIC) criticized tribal governance and financial management and pursued a recall of certain Tribal Council members.
- On November 7, 2011, the members submitted a recall petition to the Tribe’s Election Committee and made public statements alleging misconduct by council members.
- The UAIC Tribal Council voted to temporarily exclude the members from tribal lands and facilities.
- The Council also voted to withhold the members’ per capita payments derived from tribal revenues.
- The members filed in federal district court seeking habeas relief under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1303, arguing the sanctions amounted to unlawful “detention.”
- The district court dismissed for lack of subject-matter jurisdiction, concluding the sanctions did not constitute “detention” under § 1303.

## Issues

1. Whether temporary exclusion from tribal lands and facilities constitutes “detention” or “custody” under 25 U.S.C. § 1303 sufficient to support federal habeas jurisdiction.
2. Whether withholding tribal per capita payments constitutes “detention” or “custody” under 25 U.S.C. § 1303.
3. Whether the combined effect of exclusion and withheld payments can satisfy § 1303’s “detention” requirement.

## Decision

- The Ninth Circuit affirmed the dismissal for lack of subject-matter jurisdiction.
- The court held that the temporary exclusion order was not “detention” because it did not impose severe restraints on physical liberty comparable to confinement or similar forms of custodial control.
- The court held that withholding per capita payments is a financial sanction and does not amount to a restraint on physical liberty for habeas purposes.
- The court rejected the argument that the sanctions, considered together, created “custody” under § 1303.

## Legal Principles

- ICRA’s federal judicial remedy is limited; federal courts may entertain ICRA claims only through the habeas provision in 25 U.S.C. § 1303, which requires “detention” by tribal order.
- “Detention” under § 1303 is interpreted in line with federal habeas “custody” concepts, requiring severe actual or potential restraints on physical liberty (typically confinement or its equivalent).
- Temporary exclusion from tribal property, without incarceration-like supervision or restrictions on general freedom of movement, does not satisfy the § 1303 detention requirement.
- Economic penalties or loss of benefits, including withheld per capita distributions, do not constitute habeas “custody.”
- A narrow reading of “detention” limits federal court involvement in internal tribal governance and disciplinary matters.

## Conclusion

The Ninth Circuit held that a tribe’s temporary exclusion of members from tribal lands and its withholding of per capita payments are not “detention” under ICRA § 1303, so federal courts lack habeas jurisdiction to review those sanctions.


Tavares v. Whitehouse, 851 F.3d 863 (9th Cir. 2017)