United States District Court, D. Alaska
JIM E. SCUDERO, Petitioner,
v.
JEFF MORAN, et al., Respondents.
ORDER AND OPINION [RE: MOTION AT DOCKET 17]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTION PRESENTED
At
docket 17, Respondents filed a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Petitioner filed a response
at docket 24. Respondents filed a reply at docket 27. Oral
argument was not requested and would not be of assistance to
the court.
II.
BACKGROUND
Petitioner
is a member of the Metlakatla Indian Community. The
Metlakatla Indian Community is governed by a twelve-member
Community Council and a mayor. Petitioner was a candidate for
mayor in November of 2015. After he lost the election,
Petitioner requested that the Community Council certify a new
election based on alleged irregularities surrounding the
counting of the ballots. The Community Council denied the
request, and Petitioner filed a case in the Metlakatla Tribal
Court challenging the validity of the November 2015 election
and the Community Council's decision not to hold a new
election. In a closed meeting in December of 2015, the
Community Council decided that it would seek costs against
Petitioner in the event the tribal court found in its favor.
The tribal judge ultimately granted the Community
Council's motion to dismiss the case, and the Community
Council filed a motion with the court to collect costs
against Petitioner in the amount of $2, 355.50, with a
reservation to increase the amount as needed.
Before
the court ruled on the request for costs, Petitioner filed a
petition for a writ of habeas corpus, pursuant to § 1303
of the Indian Civil Rights Act (“IRCA”),
[1]
asking for relief from the imposition of costs. He asserts
that he “has been effectively ‘banished' from
the Community through improper and vindictive imposition of
fines given to him by the Community Council stemming from an
illegal election.”[2]
III.
STANDARD OF REVIEW
Under
Federal Rule of Civil Procedure 12(b)(1), a party may seek
dismissal of an action for lack of subject matter
jurisdiction. In order to survive a defendant's motion to
dismiss, the plaintiff has the burden of proving
jurisdiction.[3] Where the defendant brings a facial attack
on the subject matter of the district court, the court
assumes the factual allegations in the plaintiff's
complaint are true and draws all reasonable inferences in the
plaintiff's favor.[4] The court does not, however, accept the
truth of legal conclusions cast in the form of factual
allegations.[5] Where the defendant brings a factual
attack-that is, where the movant challenges the substantive
allegations supporting jurisdiction-the court may consider
evidence outside the pleadings to determine whether
jurisdiction exists.[6]
IV.
DISCUSSION
“Federal
courts have long recognized that Indian tribes are distinct
political entities retaining inherent powers to manage
internal tribal matters.”[7] However, Congress has abrogated
some tribal immunity through the ICRA. Section 1302 of the
ICRA extends some civil rights protections to tribe members,
including equal protection and due process rights:
No Indian tribe in exercising powers of self-government shall
. . . (8) deny to any person within its jurisdiction the
equal protection of its laws or deprive any person of liberty
or property without due process of law . . . .[8]
The
substantive rights set forth in § 1302 are not
accompanied by a federal cause of action to remedy
violations. Rather, any private right of action under the act
lies in tribal court.[9] The ICRA does, however, in § 1303,
make available “[t]he privilege of the writ of habeas
corpus . . ., in a court of the United States, to test the
legality of his detention by order of an Indian
tribe.”[10] The term “detention” is
“interpreted similarly to the ‘in custody'
requirement in other habeas contexts, ” meaning that a
petitioner under § 1303 must demonstrate “a severe
actual or potential restraint on
liberty.”[11] A petitioner must also exhaust tribal
remedies before bringing an ICRA habeas
petition.[12] Therefore, in order for this court to
have jurisdiction to hear Petitioner's claim for habeas
relief under § 1303, he must be (1) in custody and (2)
have exhausted all tribal remedies.[13]
Petitioner
argues that imposing the costs of the underlying tribal court
case on him without due process amounts to a severe restraint
on his liberty. Indeed, “[h]abeas relief does address
more than actual physical custody.”[14] Restraint of
liberty includes parole, probation, and release on one's
own recognizance pending sentencing and trial.[15] It can also
include permanent banishment from a tribe. In Poodry v.
Tonawanda Band of Seneca Indians, [16] members of
the Tonawanda Band of Seneca Indians accused members of the
governing council of misconduct and then formed their own
interim tribal council. The governing council decided that
the members' actions constituted treason, and they were
stripped of their tribal memberships, told to leave their
homes, and permanently banished. The banished members then
petitioned for writs of habeas corpus. The Second Circuit
concluded that the permanent banishment was a sufficiently
severe restraint on liberty to support federal court
jurisdiction under § 1303.
The
Ninth Circuit examined Poodry in Jeffredo v.
Macarro.[17] In Jeffredo, an enrollment
committee of the Pechanga Band of the Luiseño Mission
Indians disenrolled a number of its members for failing to
provide the necessary lineal eligibility, and consequently,
those members lost access to some tribal facilities and
services. The disenrolled members petitioned for habeas
relief. Like the Second Circuit in Poodry, the Ninth
Circuit acknowledged that actual physical custody is not
necessarily a jurisdictional requirement for habeas review
under § 1303.[18] However, it concluded that loss of
tribal citizenship and access to certain tribal facilities
and services was not sufficiently severe to constitute
detention. The court stated that unlike the petitioners in
Poodry, the petitioners in Jeffredo had not
been convicted of a crime and permanently banished, thereby
losing all rights afforded to tribal members.[19] It noted that
the petitioners had not “been arrested, imprisoned,
fined, or otherwise held by the Tribe” and had not been
evicted from their homes or had their movements on the
reservation restricted.[20] It noted that deprivations such as
the “loss of one's ‘voice' in the
community, loss of health insurance, loss of access to tribal
health and recreation facilities, loss of quarterly
distributions to tribal members, and loss of one's place
on the membership roles of the tribe” are insufficient
to provide the federal court jurisdiction under ICRA's
habeas provision.[21]
Given
the case law and the guidance provided in Jeffredo,
the court concludes that Petitioner has not suffered a severe
restraint on his liberty. He has not been convicted of a
crime and banished from the community as in Poodry.
He has not been evicted from his home or had his movements
restricted in some significant way. The council's
decision to seek imposition of costs after a favorable
judgment pursuant to tribal ordinances is far less severe
than what the Ninth Circuit deemed insufficiently severe in
Jeffredo-denial of access to certain tribal
facilities and services and disenrollment in the tribe.
Moreover, if the loss of one's “voice” in the
community, health insurance, and quarterly distributions ...