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Scudero v. Moran

United States District Court, D. Alaska

January 6, 2017

JIM E. SCUDERO, Petitioner,
JEFF MORAN, et al., Respondents.




         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.


         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]


         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]


         “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 ...

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