Excerpted From: Randa Larsen, Banishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies a Narrow Reading of the Indian Civil Rights Act, 108 Minnesota Law Review 1001 (December, 2023) (291 Footnotes) (Full Document)

RandaLarsenPerhaps the most basic principle of all Indian law ... is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished.

At the heart of federal Indian law is Tribal sovereignty. In its 2022 decision, Oklahoma v. Castro-Huerta, the Supreme Court held that the States have jurisdiction over issues in Indian Country unless preempted. This decision severely decreased Tribes' inherent sovereign powers, departing from how courts and scholars understood federal Indian law and Tribal rights for the last two centuries. Despite the generally positive outcome for federal Indian law in Haaland v. Brackeen, this decision left questions about Tribal sovereignty's future unanswered. In short, Tribal sovereignty's future remains uncertain and under threat by the highest federal court, and the question is if lower courts will continue to follow the trend.

In broad strokes, Tribal sovereignty refers to Tribes' inherent authority to govern themselves, determine membership, create laws, establish court systems, and so on. Tribal banishment and disenrollment actions are examples of how Tribes exert their currently endangered sovereign powers. Tribes should be permitted to banish Tribal members from their ranks without submitting to federal courts' scrutiny. And, because Tribal courts have mechanisms ensuring procedural fairness, a person can be banished from their Tribe with no need for federal remedy--as involving the federal government in Tribal decisions rarely produces positive outcomes for communal Tribal rights. Nevertheless, individuals who feel that the Tribe unjustly banished them go to federal courts for a remedy to get around the Tribe's sovereign decision-making power regarding membership.

In 2022, the Tenth Circuit decided Chegup v. Ute Indian Tribe of Uintah & Ouray Reservation, considering who has jurisdiction over membership decisions. The court addressed whether banishment constitutes detention within the meaning of the Indian Civil Rights Act's (ICRA) habeas corpus provision. If the court agreed with the banished members that banishment constitutes detention, then federal courts could impose themselves on issues regarding Tribal membership. However, if the court agreed with the Tribe that banishment does not constitute detention, the banished individuals would have no further federal judicial remedy. The Tenth Circuit did not rule on this issue because Tribal remedies were not exhausted. However, the court articulated it in a way that highlighted a relevant circuit split and opened the door for future courts to consider the issue.

Chegup brought forth the seminal debate of individual rights versus Tribal sovereignty. Reading the ICRA's habeas provision broadly to include banishment may preserve individual rights because banished individuals would have a chance for a federal remedy and potentially get around an allegedly unfair Tribal decision. Conversely, reading the provision narrowly to not include banishment would preserve Tribal sovereignty since Tribes would retain sole control over membership decisions.

While the Supreme Court has not decided a banishment case, the issue whether banishment constitutes detention under the ICRA's habeas provision has garnered discussion among circuit courts. Notably, banishment cases across the circuits involve various temporal aspects of said banishment--either temporary or permanent. For the purposes of this Note, banishment will be discussed broadly and whether the banishment at issue in each case was temporary or permanent is not examined in depth.

What is more important for this Note is that the ICRA was initially adopted to balance individual Tribal members' civil rights with Tribal sovereignty. And within the federal legal system, a writ of habeas corpus allows a prisoner or detainee to come before the relevant court to determine if their imprisonment or detainment is lawful. Thus, invoking habeas under the ICRA would first require determining if banished individuals are under “detention” and if they have the right to be heard by a federal court to potentially reverse the banishment order. The Second Circuit holds that habeas review applies to banishment actions, treating “detention” under the ICRA as synonymous with the broader term “custody.” In contrast, the Ninth Circuit rejects this approach. It holds that banishment does not constitute detention, reading “detention” more narrowly than “custody” to cover only physical detainment. The Ninth Circuit's rationale preserves Tribal sovereignty, so, as this Note argues, the decision was proper and future courts should follow it when reviewing the issue.

This Note sheds light on the general topic of banishment, which has recently garnered attention in the lower courts. Interpretations of banishment, detention, and habeas review under the ICRA add new dimensions to the Tribal sovereignty question by pitting the constitutional-like rights of individual Tribal members against a Tribal government's rights--providing an interesting analysis in the context of the Supreme Court's decisions regarding federal Indian law. It is reasonable to ask, for example, if banishment from Tribal lands or a loss of Tribal citizenship constitutes severe restraints on liberty and is thus subject to habeas review. However, if Tribes do not have complete control over determining Tribal membership, it significantly undermines their sovereign powers. This catastrophe must be avoided, even if a few banished individuals, while provided with procedural fairness in Tribal courts, are left without federal remedy. It frustrates Congress's original intent to preserve Tribal sovereignty if habeas review allows federal courts to take over a Tribal decision about who can be a Tribal member or who is allowed on Tribal lands.

Part I of this Note introduces the concept of banishment and its place (or lack thereof) under the ICRA's habeas provision. This Part sets the stage for the problem at hand--Tribes should oversee this fundamental membership decision, but people have gone to federal courts to get around Tribal decisions. Part II analyzes circuit court decisions regarding banishment and the ICRA's habeas provision, expanding on how debates about individual rights versus Tribal sovereignty fueled the decisions. Finally, Part III evaluates the arguments raised by the circuit courts, argues why preserving Tribal sovereignty is more persuasive than those favoring individual rights, and explains why federal habeas review threatens Tribal sovereignty. This Part also discusses potential limits and concerns about reading the ICRA narrowly. Nevertheless, this Note concludes that courts should approach habeas jurisdiction under the ICRA narrowly as the Ninth Circuit did, so “detention” and “custody” are not equivalent. Thus, future courts should find that banishment does not constitute detention.

[. . .]

[Tribal sovereignty] can restore the tribes' ability to tailor their justice systems to their unique histories, customs and culture .... Adjudicating and resolving disputes according to their own laws, customs and traditions is very important to them.

As more political discussions regarding Tribal sovereignty develop, federal courts will undoubtedly face difficult decisions regarding the balance between Tribes' inherent sovereign powers and individual Tribal members' civil rights. Of course, this is not a “this or that” dichotomy, as the two systems must be balanced.

The Second, Ninth, and Tenth Circuits have considered the issue of banishment from Tribal lands under the ICRA. The Second Circuit's holding that federal courts have subject matter jurisdiction to review a writ of habeas corpus concerning a Tribal member's banishment from the Tribe has identifiable flaws. Doing so expands past what Congress intended to be the Act's curated balance between individual Tribal members' civil rights and a Tribe's sovereign powers. Thus, when future federal courts face these issues as the Tenth Circuit did in Chegup, they should follow the reasoning of the Ninth Circuit's holding that “detention” should be read narrowly, not the same or broader than “custody,” to preserve Tribal sovereignty. The civil rights of individual Tribal members and Tribal sovereignty can and should coexist. However, strengthening individual civil rights through broad readings of the ICRA invites more federal court involvement in Tribal decision-making. To better preserve individual Tribal members' civil rights, Tribal sovereignty must take center stage. A narrow reading of the ICRA ensures this balance is met and that courts best preserve Tribal laws, cultures, and practices.

J.D. Candidate 2024, University of Minnesota Law School; Managing Editor, Minnesota Law Review Volume 108.