no. 17-16620 in the united states court of appeals for … · 2018-11-26 · 1:16-cv-01933-dad-jlt...

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No. 17-16620

__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD NAPOLES, LAURINE NAPOLES, RICK NAPOLES,

MARK NAPOLES, JAMES NAPOLES, DEBRA WILLIAMS,

WADE WILLIAMS,

Plaintiffs-Appellants,

v.

DESTIN ROGERS, BRIAN PONCHO, EARLEEN WILLIAMS,

BISHOP PAIUTE TRIBAL COURT, BILL KOCKENMEISTER, and

WILLIAM “BILL” VEGA, JEFF ROMERO

Defendants-Appellees.

On Appeal from the United States District

Court for the Eastern District of California No.

1:16-cv-01933-DAD-JLT

Hon. Dale A. Drozd

PLAINTIFF-APPELLANT NAPOLES’

OPENING BRIEF

Andrea Seielstad

c/o University of Dayton School of Law

Law Clinic, 300 College Park

Dayton, OH 45469-2750

(937) 229-3817

Attorney for Plaintiffs-Appellants

Case: 17-16620, 01/15/2018, ID: 10724445, DktEntry: 9, of 82

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TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………….……………………… iv

INTRODUCTION………………...………………………………………………..1

STATEMENT OF JURISDICTION……………………………………….............2

ISSUES PRESENTED FOR REVIEW………………………………….............…3

STATEMENT OF THE CASE.……………………………………………………3

SUMMARY OF ARGUMENT…………………………………………………...14

STANDARD OF REVIEW……………………………………………………….16

ARGUMENT……………………………………………………………………...17

I. The antecedent custodial grounds for habeas corpus jurisdiction do

exist in this case……………………………………………………..20

A. The relevant issue is whether the circumstances of this case fall

within the requirements for federal review carved out by

Congress in ICRA and interpreted by the federal courts……..20

B. Jurisdiction under habeas corpus does not require actual

incarceration. The requisite conditions for habeas even under

Section 1303 are that, at the time of filing, there be a severe

actual or potential restraint on liberty………………………...21

C. Tavares creates an unwarranted distinction between

“detention” and “custody,” that conflicts with other precedent

of the Ninth Circuit and bears revisiting.……..……………....22

II. Irrespective of whether the physical, geographical restraint and

permanent banishment from their land constitutes a detention, there is

an independent basis for jurisdiction created by the measures of

judicial control and restraint imposed by the tribal court…………...27

III. To the extent Tavares is controlling, it sustains a finding of

jurisdiction under the circumstances of this case where assignees have

been physically threatened and restrained, permanently banished from


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their land, and repetitively charged, convicted and threatened with

arrest and prosecution.…..…………………………………………..34

A. The district court erred in its application of Tavares to the

circumstances of this case. …………………………………...34

B. The circumstances of the instant case are markedly different

and more onerous in terms of physical restraint in significant

ways. …………………………………....................................36

C. Restrictions in assignees’ geographical movement do

create a detention sufficient to invoke federal jurisdiction

under §1303. …………………...………………………… 40

D. The district court’s rationale does not withstand scrutiny

insofar as it suggested both that actual confinement is a

requirement and that assignees factually were not at

risk of such

confinement…………………………………………………..43

E. The “interpretive principles animating habeas jurisdiction”

emphasized in Tavares weigh in the opposite direction in this case.

Both of ICRA’s purposes – to protect the rights of individuals

against encroachment by tribal officials and to protect tribal

sovereignty – are advanced by exercising federal habeas

jurisdiction. ………………………………………………… 46

1. This case does not involve a purely intratribal

conflict.. ………………………………………………47

2. The actions of tribal actors intrude on the federal trust

obligation established by Congress and the Bureau of

Indian Affairs…………………………………………..48

3. An inter-tribal ordinance and board, not tribal actors,

have authority over land assignments; and no entity has

authority to take land out of status as an assignment….52

4. Not only do tribal officials in this matter violate the

rights of Appellants, by taking federally granted land


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assignments belonging to individual families, they also

seek to subvert the federal trust authority established by

Congressional statute and the intertribal band (OVBT)

created to manage assignments. ………………...… 52

CONCLUSION………………...…………………………………………………54

STATEMENT OF RELATED CASES…………………………………………...55

CERTIFICATE OF COMPLIANCE…………………………………………...…56

CERTIFICATE OF

SERVICE………………………………………………………………………….57

STATUTORY ADDENDUM TABLE OF CONTENTS… Statutory Addendum i

STATUTORY ADDENDUM…………………………...Statutory Addendum 1-12


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TABLE OF AUTHORITIES

Cases

Alto v. Black, 738 F.3d 1111 (9th Cir. 2013) ………..………................................39

Barry v. Bergen Cty. Prob. Dep’t, 128 F.3d 152 (3d Cir. 1997) ......................24,29

Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144 (9th Cir. 2017)…………..43-44

Boozer v. Wilder, 381 F.3d 931(9th Cir. 2004) .....................................................23

Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965) ............................................26

Davis v. Muellar, 643 F.2d 521 (8th Cir. 1981)…………………………………..26

Dow v. Court of the First Circuit through Huddy, 995 F.2d 922, 923

(9th Cir.1993) ……………...…..............................................................28-29

Dry v. CFR Court of Indian Offense for Choctaw Nation, 168 F.3d 1207

(10th Cir. 1999) …….…………….........................................................29, 30

Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes,

623 F.2d 682 (10th Cir. 1980). ...............................................................................37

Durbin v. California, 720 F.3d 1095 (9th Cir. 2013) .............................................29

Hensley v. Municipal Court, 411 U.S. 345…………………….......21-22, 29-30, 33

Jackson v. Torres, 720 F.2d 877 (5th Cir.1983) ....................................................45

Jeffredo v. Macarro, 599 F.3d 913 (9th Cir. 2010)…............................21, 23, 39, 42

Jones v. Cunningham, 371 U.S. 236 (1963) …………….…………....21-22, 29, 45

Justices of Boston Mun. Court v. Lydon, 466 U.S. 294 (1984)........................28, 30

Kelsey v. Pope, 809 F.3d 849 (6th Cir. 2016) ……………………………............25


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https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965101027&pubNum=0000350&originatingDoc=Ie7d33ac0091611e7b123a7c0dc92d5ef&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)


https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1984119006&pubNum=708&originatingDoc=I88f6bb2892b411d9a707f4371c9c34f0&refType=RP&fi=co_pp_sp_708_1809&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)#co_pp_sp_708_1809

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Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ……………………..................16

Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038

(9th Cir. 2011)………………......................................................................16

Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014) ……………...20

Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005)……………………..…30-31

Moore v. Nelson, 270 F.3d 789 (9th Cir.2001) ……………….………………….23

Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829

(9th Cir. 2012) …………………………………………………………...... 16

Paiute-Shoshone Indians of Bishop Community of Bishop Colony, California v.

City of Los Angeles, 637 F.3d 993 (9th Circuit 2011) …………………….......50-51

Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir.),

cert. denied, 519 U.S. 1041 ……………………….……21, 24-27, 38, 40-42

Quair v. Sisco, 359 F.Supp.2d 948 (E.D.Cal.2004) ...............................................40

Quair v. Sisco, 2007 WL 1490571 (E.D. Cal. May 21, 2007)(Quair II) . ………..40

Sammons v. Rodgers, 785 F.2d 1343 (5th Cir.1986) ..............................................28

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978)………………………......................................................17-18, 20, 37-39, 46

Sweet v. Sisco, 634 F.Supp.2d 1196 (W.D. Wash. 2008) (Sweet I) ….......….......40

Tavares v. Whitehouse, 851 F.3d 864

(9th Cir. 2017) ……………......14, 18, 22-24, 27, 29-30, 33-35, 38-40, 46-47

United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) ……………..………... 20


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United States ex rel. B. v. Shelly, 430 F.2d 215 (2d Cir.1970) ………………….28

United States v. Wheeler, 435 U.S. 313 (1978)…………………………………26

Valenzuela v. Silversmith, 699 F.3d 1199, 1203 (10th Cir. 2012) .........................31

Wales v. Whitney, 114 U.S. 564, 571 (1885) ……………….................................22

Statutes

18 U.S.C. § 1162 (“Pub. L. 280”). ………….……………………………………43

18 U.S.C. § 2261(a)(l) & (2) …………………………………………………… 32

18 U.S.C. § 2262(a) (1) & (2)…………………………………………………….32

25 U.S.C.A. 331, 24 Stat. 388, ch. 119 (“Dawes Act of 1887”)……………….. 48

25 U.S.C. § 1301…………….…………………………………………………… 3

25 U.S.C. § 1302……………………………………………………………. 17, 18

25 U.S.C. §§ 1301-1304…..………………………..................................................3

25 U.S.C. § 1303…………………………………….....14-15, 19-20, 23-27, 29, 32

28 U.S.C. § 1291…………….……………………………………………………..3

28 U.S.C. § 1331…………….……………………………………………………..3

28 U.S.C. § 1343…………………………..……………………………………….3

28 U.S.C. § 2107(a) ……………………………..…………………………………3

28 U.S.C. § 2241...……………………………..…………………………24, 25, 29

28 U.S.C. §§ 2241(c)(1)–(4), 2254(a), and 2255(a) …..……………………….....25

28 U.S.C. §§2242, 2243, 2244 . . . . . . ...………………………............................25

28 U.S.C. §§ 2245, 2249, 2253…..……………………….....................................25

28 U.S.C. §§ 2252 -------…..………………………...............................................24

28 U.S.C. § 2254 …………………………..…………………………………...24

28 U.S.C. § 2255…..………………………...........................................................25

50 Stat. 70, Act of April 20, 1937 ……………………………………………..5, 49

Rules

Fed. R. App. P. 4(a)(1)(A) …………………………………………………………3

82 Fed. Reg.10 (January 7, 2017) ………...…………………………..………....5, 6




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Legislative Reports:

Hearings on S. 961–968 and S.J. Res. 40 Before the Subcommittee on

Constitutional Rights of the Senate Judiciary Committee, 89th Cong., 1st Sess.

(1965) (“1965 Senate Hearings ”) …………………………………………...26-27

Rights of Members of Indian Tribes: Hearing on H.R. 15419 and Related Bills

Before the Subcommittee on Indian Affairs of the House Committee on Interior and

Insular Affairs, 90th Cong., 2d Sess. (1968) (“1968 House Hearing ”)…………27

Senate Committee on the Judiciary, Summary Report of Hearings and

Investigations Pursuant to S. Res. 194, 89th Cong., 2d Sess. (1966) (“1966

Summary Report ”) ………………………………………………………………27

S. Rep. No. 841, 90th Cong., 1st Sess. (1967) ……………………………………17

Other Materials

Ferris & Ferris, THE LAW OF EXTRAORDINARY LEGAL REMEDIES, Part I,

pp. 32-33 (1926)………………………………………………………………….45

Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights And The Myth

Of Common Ownership, 54 Vand. L. Rev. 1559 (2001)…………………………23

Owens Valley Water History, Inyo County Water Department,

https://www.inyowater.org/documents/reports/owens-valley-water-history-

chronology/ (last viewed January 7, 2017). ……………………………………..49

Petition For A Writ Of Certiorari, Tavares v. Whitehouse, S. Ct. Case No.17-429,

2017 WL 4251148, (September 21, 2017)………………………………………..23


https://www.inyowater.org/documents/reports/owens-valley-water-history-chronology/


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INTRODUCTION:

This case is about the federal court’s authority to exercise jurisdiction over a

petition for habeas corpus filed by Appellants (“original assignees” or “assignees”)

in an effort to seek protection of their individual rights guaranteed under the Indian

Civil Rights Act ( “ICRA”). It is not a purely intratribal dispute that pits a tribe’s

sovereignty authority against the rights of individual tribal members, nor does it

implicate sovereign enrollment and membership concerns. Rather, it involves

circumstances wherein certain tribal officials, members of the tribal council

bestowed with authority over day-to-day business affairs of the Tribe but not land

assignments (hereinafter “tribal council”), have taken dramatic and unlawful steps

to permanently and physically restrain and banish assignees from a portion of their

family’s original land assignment, which they have lawfully used and occupied

since the inception of the Bishop Paiute reservation. It is also a situation where

the tribal court judge entered a pretrial order that not only banned original

assignees from their land but directed the supervision and control of their

movement and actions, upon threatened penalty of additional charges and arrest,

during the pendency of their charges.

These actions of council members and judge (“tribal actors”) constitute a

detention sufficient to create federal habeas corpus jurisdiction under ICRA. Such

actions also diminish the land base available for the homes and livelihood of tribal


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members like assignees and contribute to the demise of the legitimate governance

structure that comprises and sustains three tribes located within the Owens Valley,

California. Additionally, they disturb the arrangement created by Congress and the

Commissioner of Indian Affairs for the benefit and protection of the Owens Valley

Indians. Here, both individual and sovereign interests of the three tribes and the

federal government are aligned and will be enhanced by federal court review under

ICRA.

As members of a federally recognized Indian tribe, family assignees are

entitled to certain fundamental rights and protections from abuse by tribal officials.

Congress passed ICRA to ensure that tribal governments honor these fundamental

civil. In so doing, Congress recognized the need for a balance between respect for

individual rights and tribal sovereignty, granting federal courts jurisdiction in

appropriate cases to remedy egregious violations of these rights. An unlawful

detention has occurred at the hands of tribal actors, and the circumstances of this

case fit squarely within the remedy in habeas corpus determined by Congress to

warrant federal court jurisdiction.

STATEMENT OF JURISDICTION:

The district court had jurisdiction pursuant to The Indian Civil Rights Act

(“ICRA”). 25 U.S.C. §§ 1301-1304; 28 U.S.C. § 1331, and 28 U.S.C. §1343. The

Motion to Dismiss was granted and judgment entered on July 10, 2017. ER 1, 12.


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A timely Notice of Appeal was filed on August 8, 2017. ER 13; 28 U.S.C. §

2107(a); Fed. R. App. P. 4(a)(1)(A). This court has jurisdiction to review the

District Court’s final decision pursuant to 28 U.S.C. § 1291.

ISSUE PRESENTED FOR REVIEW:

Did the district court err in ruling it lacked jurisdiction to give relief to

members of an Indian tribe who were permanently banished from their family land,

physically threatened, apprehended and detained, and subjected to pretrial

superintendence and control measures that removed them from their land upon

threat of arrest and further prosecution by the actions and decisions of the tribal

judge and certain members of the Bishop Paiute Tribal Council?

STATEMENT OF THE CASE:

Family assignees in this action filed a petition for writ of habeas corpus

pursuant to the ICRA on December 27, 2016. Doc. No. 1, ER 220. On January

28, 2017, they filed an amended petition (“FAC”). ER 15. On May 5, 2017,

Appellants moved to stay the proceedings to permit the tribal court of appeals,

which had been disbanded but was re-constituted during the pendency of the

federal action, to make further determinations of the charges and orders issued by

Appellees prior to the filing of the FAC. ER 199. Also on May 5, Appellees

Poncho, Rogers, Romero, Vega, and Williams and Appellee Kockenmeister, the

tribal court judge, separately moved to dismiss the amended petition. Doc. Nos.


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19, 20, ER 222. Following the filing of oppositions, replies, objections, a request

for stay and a motion to strike, oral argument on the motions to dismiss was heard

by the court on June 20, 2017. Doc. No. 36, ER 223. The district court dismissed

assignees’ FAC on July 7, 2017, dismissing as moot their Request for Stay and

Motion to Strike in light of its ruling on jurisdiction. ER 1, 12. Assignees filed a

timely Notice of Appeal on August 8, 2017. ER 13.

At the root of this case is an effort by tribal actors to force family land

owners off their original family land assignment to pursue a casino expansion and

hotel development that tribal actors would like to locate there and the methods

utilized to force and banish them from this land. The land in question is located in

the Owens Valley, California, within the exterior boundaries of the Bishop Paiute

Tribe. It consists of two of eleven remaining lots of land originally assigned to the

Ida Warlie family pursuant to a federally-created resettlement effort and land

exchange with the Los Angeles Department of Water and Power that induced

Paiute families like Ida Warlie’s, who were scattered and residing elsewhere in the

Owens Valley on and around land purchased for water rights by the Los Angeles

Department of Water and Power, to relocate upon the land that now comprises the

Bishop Paiute Reservation. 50 Stat. 70, 75th Congress, April 20, 1937, (“To

authorize the Secretary of the Interior to exchange certain lands and water rights in


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Inyo and Mono Counties, California, with the city of Los Angeles, and for other

purposes.”).

Following discussions with agents of the federal government, heads of

households like Ida Warlie gave up interests in land, homes and improvements in

Sunland in exchange for family assignments of land located within the present

boundaries of the Bishop Paiute Reservation. FAC, ER 20-21; Ida Warlie

Community Land and Building Assignment, July 22, 1941, ER 83-85; Ordinance

Governing Assignments on Bishop, Big Pine and Lone Pine Reservations (“1962

Ordinance”), ER 86-91. Family land was assigned according to household size,

and the purpose was to provide a means of livelihood and housing for the benefit

of individual members of the tribe. Id.

The original name of the Bishop Tribe, “Paiute-Shoshone Indians of the

Bishop Community of the Bishop Colony” reflected its nature as a community of

families and individuals. FAC, ER 21; 82 Fed. Reg. 10 at 4915. Decision-making

over primary tribal affairs such as whether to pursue specific development projects

takes place through consensus of the General Council, comprised of all adult

members of the Bishop Paiute Tribe and corresponding General Councils of the

other Owens Valley tribes. ER 21. The assigned land of the Bishop Paiute Tribe

as well as the Big Pine Paiute Tribe of the Owens Valley and the Lone Pine Paiute-

Shoshone Tribe was and is owned and held in trust by the United States for the


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livelihood, welfare and benefit of the members of the community. Id.; 1962

Ordinance, ER 86-91. Land assignments within the three Owens Valley Tribes are

governed by an inter-band entity, the Owens Valley Board of Trustees (“OVBT”).1

FAC, ER ; 1962 Ordinance, id.. Indeed, the Tribal Council did not even exist at

the time these original individual and family assignments were granted and

consolidated into the land base that lies within the boundaries of Bishop Paiute

reservation. Id.. Because of the governing authority of the General Council and

the OVBT, the powers of the Tribal Council are limited and do not extend to the

granting, transfer, rescission or other decision-making with respect to family

and/or assigned land. (Id.; ER 21).

Assignees are members of the Bishop Paiute Tribe and first or second-

generation direct descendants of Ida Warlie. On or about July 27, 2941, Ida Warlie

received a family assignment of 14 lots and a 6-room house in exchange for her

agreement to relocate with her family to the Bishop Paiute Reservation. FAC, ER

20; Community Land and Building Assignment, Owens Valley, California, ER 83-

85. The assignment was signed and approved by the Owens Valley Board of

Trustees and the Superintendent of Indian Affairs. Id. According to the document:

“Upon death of this assignee, this land will be reassigned by the Trustees with the

1 The tribes governed by the OVBT include the Bishop Paiute Tribe, the Big Pine

Paiute Tribe of the Owens Valley and the Lone Pine Paiute-Shoshone Tribe. 82

Fed. Reg.10, at 4915, 4917 (January 17, 2017).


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approval of the Superintendent, preference being given to the persons designated

by the assignee by will or written request, or in the absence of a written

assignation, to one or more of his natural heirs, provided said persons qualify as

eligible to receive an assignment of Owens Valley Indian land.” Id. at 85.

Appellant, Laurine Napoles, was listed on Ida Warlie’s original assignment

for the purpose of determining its household size, as was her sister Geraldine

Pasqua, who is now deceased, and four other siblings. Id..

In April 1962, a land assignment ordinance was enacted by the members of

the Bishop, Big Pine, and Lone Pine Reservations “in order to promote the general

welfare, safeguard our interests, conserve and develop our lands and resources.”

Preamble, ER 86. It provided for validation of all existing assignments like that of

Ida Warlie’s. Art. I(A)(1), ER 87. It also sets forth procedures for other tribal

members to apply for assignments of “unassigned tribal land,” to exchange or

relinquish land for reassignment to another tribal member as well as for land to be

passed down through the generations through designation by assignees of those

they would like to receive the assignment upon death and preference rights for

those who are named as beneficiaries or represented in the original assignment.

Art. II(D)(5)(6), (9) & (10)(d), ER 88-89; FAC, ER 21.

On June 15, 1962, following the adoption of the Ordinance, Ms. Warlie’s

family assignment was formally recognized and validated by resolution of the


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Owens Valley Board of Trustees. ER 109-110. The assignment included Lots 4-

11 of Block 3, including the Lots 6 and 7 that are at issue in this matter, and Lots

2-4 of Block 9, as mapped by the Bureau of Indian Affairs in 1960. Id.; ER 24.

Following the death of Ida Warlie, the lots contained within her family assignment

were granted to various of her children, as required under the 1962 Ordinance and

tribal custom and tradition, the details of which are set forth in their petition. ER

24-25. Upon the death of her children, assignments were approved by the OVBT

for members of the next generation. Id. Pending re-assignment to a particular

family member upon relinquishment or death, the land remains family land eligible

for assignment to a family member. Id.; Art. II(D), ER 87-91.

On November 15, 1977, the OVBT approved the assignment application of

Block 3 Lots 6-11 and Block 9 Lot 4, to her daughter, the late Janice Geraldine

Pasqua. FAC, ER 25; OVBT Resolution 127, ER 111. Prior to her death, Ms.

Pasqua executed intents to relinquish her interest in Lots 6 through 11 to

Appellants Ronald and Rick Napoles and Debra Williams, who applied for

assignments in their name. Id. With the exception of the application for Lots 6

and 7, which has been held up by the tribal council, the other applications were

forwarded to the OVBT and approved. Id.

In or around 2006, members of the Bishop Tribal Council unilaterally and

without authority decided to take the land locat.ed in Block 3, Lots 4 and 5, 6 and 7


9

for economic development, putting into motion the actions that gave rise to this

habeas action. FAC, ER 25-26. The tribal council took from family assignees’

cousin and niece, Lots 4 and 5, and built a casino. Id. at 26. They proposed an

expansion of the casino and hotel to be built on Lots 6 and 7. Id. On or about July

9, 2013, as required by the governing authority of the Bishop Paiute Tribe, the

matter of the building of a hotel and casino expansion that tribal council members

wished to build on Lots 6 and 7 was put to a referendum vote of the General

Council, comprised of all members of the community. The majority voted against

the proposal. FAC, id.; Sample Ballot and Vote, ER 115-16; BTC Letter to

Community, ER 117-18.

Until these efforts of recent contingents of the Bishop Paiute Tribal Council

to build the hotel and casino expansion upon their land began, Ida Warlie, her

children, grandchildren and great grandchildren had continuously occupied the

family land described above since it was originally granted in 1941. FAC, ER 27.

They are the rightful occupants of Lots 6 and 7, possessing use and occupancy

rights exclusive to other members of the tribe and equivalent to their interest in the

remaining lots of Ida Warlie’s family assignment that are not desired for casino

expansion. Id. As direct descendants of Ida Warlie they possess valid use and

occupancy rights in the entire family assignment existing since the inception of the

creation of the Bishop Paiute Reservation and passing properly through the


10

generations based on the terms of the 1962 Ordinance, the decisions of the OVBT,

and tribal law and custom. Id. By no law or custom applicable within the Bishop

Paiute Tribe, does tribal council have proper authority to exercise dominion over

Lots 6 and 7, or any other family or assigned land issued for the welfare, homes,

and sustenance of tribal members. ER, 27-28.

Notwithstanding their lack of lawful dominion and authority and the General

Council’s rejection of the proposed development project, contingent tribal actors

attempted to proceed with the project. Tribal actors commissioned an

Environmental Impact statement and issued a press release indicating ground-

breaking would begin in March 2017. ER 32. They began the efforts to punish

and force the Warlie family from their land that necessitated the filing of this

action.

On June 19, 2014, following the filing of trespass charges by tribal council

against certain of the Warlie family and their invitees, the tribal court entered an

order with sanctions for trespass for their presence on Lots 6 and 7. ER 29. In

that case, there was an extensive factual presentation and record established on the

issue of who had use and occupancy rights to the land in question and whether the

Tribal Council had authority, thereby, to trespass family assignees or their guests

from this land. Id.; see also Opinion, Bishop Paiute Tribal Council v. Bouch, B-

AP-1412-6-12 (Nov. 3, 2015), ER 62-76; Opinion (on rehearing)(June 1, 2016),


11

ER 92-108). On appeal, the Bishop Paiute Court of Appeals, reversed the decision

of the lower court, remanding the matter to the lower court for the purpose of

receiving further evidence and argument and issuing findings of fact and

conclusions of law about the core issue: namely, use and occupancy rights to the

land in question. Opinion (Nov. 3, 2015), ER 92-108. Instead of exercising their

option to do that, however, tribal council moved to dismiss their case. FAC, ER

30. Appellants opposed said motion and argued, in the event the court granted

dismissal, that it should be with prejudice, given the late stage of the proceedings

and the extensive factual and legal record that had been developed. Id.

On October 28, 2016, the tribal court dismissed the matter with prejudice,

thereby entering final disposition on the merits of the trespass citations. ER 31-

32;123-125.

Assignees, having prevailed in the previous suit on the matter, resumed use

and occupancy of the land in question, restoring livestock and fencing and moving

a trailer that had been stored elsewhere on their family land upon the land in

question. FAC, ER 32. It was at this point that tribal actors intensified their

punitive efforts that led to the detention that forms the basis of this habeas action.

On or about November 19, 2016, Appellee Deston Rogers, accompanied by

officers of the Bishop Paiute Police Department and Inyo County Sheriff’s office,

nonetheless entered without authority onto Lots 6 and 7 and issued trespass and


12

nuisance citations once again against family assignees who were present on the

property. FAC, ER 34; Citations, ER, 127-129, 135. Family assignees felt

personally threatened and at risk of imminent injury or arrest. FAC, ER 34-35;

Declaration, ER 197. Tribal police and sheriffs returned on November 20 and 21

and issued additional citations, in the same menacing way, each commanding

family assignees to appear in court on December 20, 2016. FAC, id.; Declaration,

id.; Citations, ER 130-34.

On or about November 21, tribal actors caused to be served on assignees a

directive to remove their property within 24 hours. FAC, id.; Notice, ER 136 (“24

hours to remove fence and other property. Hearing by 11/23/16”). Also on

November 21, in the evening, tribal actors commanded assignees to appear in court

the following day, November 22, 2016 at 2:30 p.m. ER 36. The notice did not

state the reason or legal authority for the proceeding. Id. It directed assignees to

bring whatever evidence or witnesses they wished to present at this mysterious

event. Id.; Notice, ER 137.

On November 22, the tribal judge convened a proceeding in the tribal court,

and family assignees appeared. ER 36. No petition or affidavit was ever filed, as

required by the law applicable to ex parte and temporary restraining orders. ER

37. The judge indicated that notice had been provided simply as “a courtesy” to

assignees and that he would be issuing an ex parte temporary restraining order. Id.


13

He permitted no evidence or argument as required under the Tribe’s Trespass

Ordinance and law regarding emergency restraining orders. Id.; Trespass

Ordinance, ER 144-47. He also indicated his intention to disregard the ruling of

the appellate court. Id.

On November 23, 2016, Appellants were served with a written Temporary

Restraining Order (“TPO”). FAC, ER 37; TPO, ER 138-141. The court issued

notices compelling assignees to attend a hearing set for December 20, 2016. Id.;

Notices, ER 142-143.

At this juncture, family assignees filed a Petition for Writ of Mandamus in

the Bishop Paiute Tribal Court of Appeals and were informed that the court had

been disbanded. It was then, having exhausted all tribal remedies then available

and subjected to permanent physical banishment, judicial superintendence and

control and threat of incarceration and other punitive sanctions, that they filed the

petition for habeas corpus in the district court. Although the tribal judge ultimately

issued an Order of Continuance and Stay of Proceedings pending the empanelment

of the court of appeals, the order indicated “the restraining order issued herein shall

remain in effect until further Order of this court.” ER 41. 2

2 Along with their FAC, assignees filed an Ex Parte Application For

Emergency Injunctive Relief, Temporary Restraining Order & Order to Show

Cause. ER 148. Although the district court denied the temporary restraining

order, the Tribe did reconstitute its Court of Appeals with a new panel of judges in

March 2017. Assignees then requested a stay the proceedings in the district court


14

SUMMARY OF ARGUMENT:

Section 1303 of the ICRA provides for federal jurisdiction over habeas

corpus actions “to test the legality of his detention by order of an Indian tribe.”

This has been interpreted as requiring “a severe actual or potential restraint on

liberty.”

The Ninth Circuit’s effort in Tavares v. Whitehouse to distinguish between

“detention by an order of an Indian tribe” and “custody” under federal and state

habeas doctrine creates an illogical and unsubstantiated rift with other precedent of

the Ninth Circuit and that of every other circuit that has considered the matter that

is worthy of reconsideration. To the extent it is controlling, however, its holding

does not preclude jurisdiction under the circumstances of this case. Even under a

stringent view of the scope of detention under ICRA, family assignees’ pleadings,

taken as true and in the light most favorable to the plaintiff, presented the district

court with the grounds for jurisdiction on two separate custodial grounds.

First, the tribal court subjected them to judicial control and superintendence

of the kind and nature widely recognized as creating a premise for habeas

to give the tribal court of appeals an opportunity to rectify the violations. ER 199.

In dismissing the case for lack of jurisdiction, the district court rendered that

motion moot. ER 11. Since the filing of their FAC, new charges have been filed,

dismissed and refiled by tribal actors, along with further appeals and process by

assignees in the court of appeals. Those proceedings remain pending in the tribal

courts. See also, Order of Dismissal, ER 4.


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jurisdiction. A pretrial temporary restraining order issued by the tribal court

prohibited family assignees from entering upon their land upon threat of arrest and

the filing of additional charges, even federal ones, and imposed other unlawful

constraints upon them such as a prohibition against their possessing firearms or

ammunition. Additionally, assignees pleadings established the details for how

were unlawfully punished, detained, and permanently and physically banished. At

the behest of tribal actors, the tribal chairman, tribal police and local sheriffs

apprehended family assignees, each and every time they moved upon their land.

They approached them menacingly at home and work to serve them with notices;

surrounding them physically with hands on their guns, thereby putting them in fear

for their lives. These actions constituted clear physical detention of the kind

required under §1303 and the precedent of this circuit.

None of the animating principles regarding tribal sovereignty that sometimes

caution against federal review of tribal action apply here. It is not a purely

intratribal dispute. It does not implicate tribal membership or enrollment. It does

not pit the rights of individuals against a single tribal entity. Rather, it is a

situation where tribal actors not only have violated the rights of family land

owners, but have intruded on the governing authority of the inter-tribal OVBT and

three distinct tribes. The actions are also contrary to Congressional legislation and

a federal trust agreement that created the reservation’s land base and bestowed use


16

and occupancy rights to families like original assignees to induce them to move

upon the reservation. Exercising jurisdiction is, therefore, consistent with and

imperative not just for the protection of the rights of assignees but also to give

meaning to these federal mandates and the inter-tribal governing authority that

regulates land assignments in the Owens Valley.

STANDARD OF REVIEW:

Review de novo is applied to a district court's order dismissing a case for

lack of subject matter jurisdiction. Maronyan v. Toyota Motor Sales, U.S.A., Inc.,

658 F.3d 1038, 1039 (9th Cir. 2011) (subject matter jurisdiction). See also Knievel

v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (review of motion to dismiss is

reviewed de novo).

De novo review requires the appellate court to accept plaintiff's factual

allegations as true and viewed in a light most favorable to the plaintiff. Oklevueha

Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 834 (9th Cir.

2012); Knievel, 393 F.3d at 1072.

Under this standard the district court clearly erred in dismissing Appellant’s

complaint. Given the importance of the legal issues presented in this case, the

district court's dismissal should be reversed and the case remanded for a

determination on the merits.


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ARGUMENT:

The court below granted tribal actors’ motion to dismiss for “lack of

jurisdiction.” This was legal error warranting reversal. ICRA expressly confers

federal court jurisdiction to extend relief under the circumstances presented here.

There is nothing in the plain language of ICRA or decisions interpreting the scope

of habeas relief that limit it to orders of actual incarceration or even total

banishment from the boundaries of the reservation.

A central purpose of ICRA 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.’” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978) (quoting S.Rep. No. 841, 90th

Cong., 1st Sess., 5–6 (1967)). Pursuant to this objective, Congress granted

individual tribal members like assignees the rights to be informed of the nature and

cause of the accusation, to be confronted with the witnesses against them, to have

compulsory process for obtaining witnesses. 25 U.S. C. §1302(6). It also

guarantees them “due process,” both procedural and substantive, and equal

protection under law, grants a right to freedom of speech and assembly, and

prohibits the taking of land for public use without just compensation. §§ 1302(1),

1302(5) and 1302(8)). In enacting these provisions, Congress evinced an intent to

extend to individuals protections against abuses by tribal officers and governments.


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Id. Santa Clara, 436 U.S. at 62. It is these rights that family assignees seek to

enforce in this habeas action. FAC, ER 46-54.

It is important to note at the outset, moreover, because this point sometimes

gets improperly conflated in the jurisdictional analysis, as it did with the district

court in this case, that the determination of whether a substantive right has been

violated must be ascertained by the federal court once it is determined there is

jurisdiction, irrespective of the particular right involved. This is so even with

respect to a takings question. Jurisdiction is determined by whether and to what

extent a detention has occurred sufficient for invoking federal habeas review under

ICRA’s § 1303 and interpretative case law. Santa Clara, 436 U.S. at 57-58;

Tavares v. Whitehouse, 851 F.3d 864 (9th Cir. 2017)). The merits of the

substantive rights violations are a separate evidentiary stage in the life of a habeas

action. § 1302; Ronold P. Sokol, Federal Habeas Corpus Practice, 20 Am. Jur. §§

28-51. If there is jurisdiction, the court then must ascertain the merits of whether a

rights violation occurred and determine what remedies to impose. Section 1302

clearly modifies the substantive law applicable to the tribes. Santa Clara, 436 U.S.

at 59. That is a separate inquiry that must be undertaken by the federal court once

the jurisdiction for habeas is established.

The district court confuses the distinct inquiries required in a habeas action,

asserting: “Petitioners cite no authority, and the court has identified none,


19

suggestion that § 1303 gives federal courts sitting in habeas the jurisdiction to

resolve intra-tribal land ownership disputes.” ER 11. The court also suggests it

relevant that the claims here “more closely resembles a takings claim than a

denaturalization or denationalization.” Id. These are not proper subjects of inquiry

at the jurisdictional stage, however. Whether the case involves land ownership or

denaturalization, due process or equal protection has no bearing on whether a

detention sufficient to invoke the court’s jurisdiction has occurred. If there is a

detention, then there is jurisdiction; and the court must decide the land ownership

question to determine the merits of assignees’ claims under the takings clause and

make findings regarding all other alleged violations of § 1302 as well. Whether a

published opinion exists on the exact taking questions implicated in this case has

no bearing on whether a basis for relief exists in this one. At best it establishes that

there has been no identical case that reached judicial decision. The only relevant

issue for the court to consider in this appeal is whether there was a detention

sufficient to warrant federal habeas jurisdiction under § 1303.

I. The antecedent custodial grounds for habeas corpus jurisdiction do exist in

this case.

A. The relevant issue is whether the circumstances of this case fall within

the requirements for federal review carved out by Congress in ICRA and

interpreted by the federal courts.


20

Tribes, likes states, the federal government and even foreign nations, may as

a general matter enjoy a measure of sovereign immunity as an inherent attribute of

sovereignty. However, sovereign immunity is subject to waiver or Congressional

abrogation. Santa Clara, 436 U.S. at 56-58; see also Michigan v. Bay Mills Indian

Community, 134 S.Ct. 2024 (2014); United States v. Oregon, 657 F.2d 1009,

1012– 13 (9th Cir. 1981). It is the scope of this congressional waiver set forth in §

1303 that is the issue of this case; and the applicable authority in the matter,

therefore, are the precedent in this and other jurisdictions that interpret that

provision.

Section 1303 of the ICRA provides: “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.” § 1303. The Supreme Court

in Santa Clara v. Martinez held that the ICRA’s substantive rights did not imply a

federal remedy; rather, a writ of habeas corpus under § 1303 was the exclusive

federal remedy for violations of the ICRA. Id. at 69–72. The operative interpretive

requirement for federal review, therefore, is that there be circumstances

constituting a detention. Congress unequivocally did intend to provide a remedy in

federal court to test the legality of tribal governmental orders and actions that do

meet those requirements. §1303; Santa Clara, id.




21

B. Jurisdiction under habeas corpus does not require actual incarceration.

The requisite conditions for habeas even under § 1303 are that, at the

time of filing, there be a severe actual or potential restraint on liberty.

Federal law is clear that to invoke habeas relief under the ICRA, one must

establish “a severe actual or potential restraint on liberty.” Poodry v. Tonawanda

Band of Seneca Indian, supra, 85 F.3d 874, 880 (2nd Cir. 1996). Though “actual

physical custody is not a jurisdictional prerequisite for habeas review,” the “[t]erm

‘detention’ [used in the ICRA] must be interpreted similarly to the ‘in custody’

requirement in other habeas contexts.” Jeffredo v. Macarro, 599 F.3d 913, 918 (9th

Cir. 2010). In Hensley v. Municipal Court, the Supreme Court explained:

The custody requirement of the habeas statute is designed to preserve the

writ of habeas corpus as a remedy for severe restraints on individual liberty.

Since habeas corpus is an extraordinary remedy whose operation is to a large

extent uninhibited by traditional rules of finality and federalism, its use had

been limited to cases of special urgency, leaving more conventional

remedies for cases in which the restraints on liberty are neither severe nor

immediate.

411 U.S. 345, 351 (1973). In Jones v. Cunningham, the Supreme Court also

stated: “History, usage, and precedent can leave no doubt that, besides physical

imprisonment, there are other restraints on a man’s liberty, restraints that are not

shared by the public generally, which have been thought sufficient in the English-

speaking world to support the issuance of habeas corpus.” 371 U.S. 236, 240

(1963).


22

It is well established that actual physical custody is not a jurisdictional

prerequisite for federal habeas review. See, e.g., Jones, 371 U.S. at 243 (emphasis

added). Explains the Supreme Court: “Of course, [the] writ always could and still

can reach behind prison walls and iron bars. But it can do more. It is not now and

never has been a static, narrow, formalistic remedy; its scope has grown to achieve

its grand purpose—the protection of individuals against erosion of their right to be

free from wrongful restraints upon their liberty.” Id. (emphasis supplied). What

is critical under the precedent of federal habeas law is that the tribal action create

an onerous physical and geographical constraint of “special urgency”, or even

threat of it under supervised control. Hensley, 411 U.S. at 351. Courts have long

recognized that the writ of habeas corpus is available in a wide array of

circumstances, including:

Confinement under civil and criminal process. . . . Wives restrained by

husbands, children withheld from the proper parent or guardian, persons

held under arbitrary custody by private individuals . . . as well as those under

military control may all become proper subjects of relief by the writ of

habeas corpus.

Wales v. Whitney, 114 U.S. 564, 571 (1885).

C. Tavares creates an unwarranted distinction between “detention” and

“custody” that conflicts with other precedent of the Ninth Circuit and

bears revisiting.

This Circuit dismissed another habeas petition brought under ICRA during

the pendency of the instant case. Tavares v. Whitehouse, 851 F.3d 864 (9th Cir.




23

2017). Petitioners in Tavares have petitioned the Supreme Court to review this

court’s decision. Petition For A Writ Of Certiorari, Tavares v. Whitehouse, S. Ct.

Case No.17-429, 2017 WL 4251148, (September 21, 2017). They argue that the

Ninth Circuit’s interpretation of ICRA’s “detention” requirement as a subset of

custody is out of step with all other jurisdictions as well as Congressional intent.

Id. For the reasons set forth in their Petition in that case, family assignees concur

with this position and urge this court to reconcile its earlier ruling on this point

with other of its precedent. Id.

The detention/custody distinction generated for the first time in Tavares is

counter to well-established Ninth Circuit precedent as well as that of every other

circuit that has examined the issue. As determined by the Ninth Circuit in another

of its cases: “The term ‘detention’ in the [ICRA] statute must be interpreted

similarly to the ‘in custody’ requirement in other habeas contexts.” Jeffredo, 599

F.3d at 918. See also Boozer v. Wilder, 381 F.3d 931, 934 n.2 (9th Cir.

2004) (“Detention [as used in 25 U.S.C. § 1303] is interpreted with reference to

custody under other federal habeas provisions.”); and Moore v. Nelson, 270 F.3d

789, 791-92 (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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The decisions of the Tenth Circuit have similarly rejected this contention.

See, e.g., Poodry, supra, 85 F.3d at 880; Dry v. CFR Court of Indian Offenses for

Choctaw Nation, 168 F.3d 1207 (10th Cir. 1999); Valenzuela v. Silversmith, 699

F.3d 1199, 1203 (10th Cir. 2012) (“We have recognized that the ‘detention’

language in §1303 is analogous to the ‘in custody’ requirement contained in the

other federal habeas statutes.”). So, too, have the Third and Sixth Circuits. Barry

v. Bergen Cty. Prob. Dep’t, 128 F.3d 152, 160-61 (3d Cir. 1997) (relying on the

Poodry analysis of “detention” under ICRA in analyzing “in custody” under

§2254(a)); Kelsey v. Pope, 809 F.3d 849, 854 (6th Cir. 2016) (citing Poodry for its

rule that “habeas claims brought under the Indian Civil Rights Act, 25 U.S.C.

§1303, are most similar to habeas actions arising under 28 U.S.C. §2241”).

The Tavares majority was inaccurate in its suggestion that “detention” and

“in custody” are used distinctively between tribal and state or federal systems. As

noted by the dissent, the terms “detention” and “in custody” are interdependent.

Tavares, 851 F.3d at 880 (dissenting opinion). For instance, the Third Circuit

concluded in a non-ICRA case that a person sentenced to perform five hundred

hours of community service was “in custody,” relying in part on the Second

Circuit's analysis of “detention” in an ICRA case. Barry v. Bergen Cty., 128 F.3d

at161 (discussing Poodry, 85 F.3d at 894–95). Tavares, 851 F.3d at 880

(dissenting opinion). The majority suggests that the use of the word “detention” in





25

§ 1303 is significant because, by contrast, the word “custody” is used in “every

section” of federal habeas statutes 28 U.S.C. §§ 2241(c)(1)–(4), 2254(a),

and 2255(a). Tavares, id. However, this mischaracterizes the statutes. The word

“custody” does not appear in every habeas statute. See 28 U.S.C. §§

2245, 2249, 2253 (referring to “detention” only). Moreover,

detention” also appears frequently in most other sections of the federal habeas

statutes. See §§ 2241, 2242, 2243, 2244, 2255 (referring to both

“detention” and “custody,” interchangeably; cf. §§ 2252, 2254 (referring to

“custody” only). There is no indication in any part of any section that the terms

might have distinct meanings: if anything, the statutes suggest, as a whole, that

“detention” and “custody” are interchangeable. As explained convincingly by the

2nd Circuit:

We find the choice of language unremarkable in light of references to

“detention” in the federal statute authorizing a motion attacking a federal

sentence, see § 2255, as well as in the procedural provisions

accompanying §2241, see §§ 2242, 2243, 2244(a), 2245, 2249, 2253.

Congress appears to use the terms “detention” and “custody”

interchangeably in the habeas context. We are therefore reluctant to attach

great weight to Congress's use of the word “detention” in § 1303.

Poodry, supra, 85 F.3d at 890–91.

The legislative history similarly does not support a finding of a distinction

between the two terms, surely not one limiting the concept in the tribal context. In

fact, as accurately pointed out by the dissent in Tavares, the language used in §


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1303, “legality of the detention of an Indian,” is the same language used in the case

of Colliflower v. Garland. 342 F.2d 369 (9th Cir. 1965) (overruled on other

grounds by United States v. Wheeler, 435 U.S. 313 (1978), as recognized by Davis

v. Muellar, 643 F.2d 521, 532 n.13 (8th Cir. 1981)). Colliflower was referenced

extensively in the legislative history leading to the enactment of ICRA and

provided the basis for Congress’ understanding of tribal detention orders, and so it

was natural for Congress to use its wording when seeking to clarify habeas review

would apply to ICRA. Tavares, 851 F.3d at 881 (dissenting opinion).

After careful analysis of the particular Indian court in place in Colliflower,

most notably that it was a creature of the federal government, the Ninth Circuit

held that “it is competent for a federal court in a habeas corpus proceeding to

inquire into the legality of the detention of an Indian pursuant to an order of an

Indian court.” 342 F.2d at 379. The main point of the analysis, in fact, was that

the tribal court involved in Colliflower that issued the relevant order was an Indian

court created by and still operating under the authority of the federal government –

an extension of federally exercised jurisdiction, therefore. Id. A careful reading of

the case and discussion of the case in ICRA’s legislative history, therefore, reveals

a congressional intent to render ICRA’s habeas provisions to be as broad as its

federal counterparts. Poodry, 85 F.3d at 891 (citing Hearings on S. 961–968 and

S.J. Res. 40 Before the Subcommittee on Constitutional Rights of the Senate









27

Judiciary Committee, 89th Cong., 1st Sess. (1965) at 2, 24–25, 66–67, 91–92, 95,

220, 227 (“1965 Senate Hearings ”); Senate Committee on the Judiciary, Summary

Report of Hearings and Investigations Pursuant to S. Res. 194, 89th Cong., 2d

Sess. (1966) (“1966 Summary Report ”) at 13; Rights of Members of Indian Tribes:

Hearing on H.R. 15419 and Related Bills Before the Subcommittee on Indian

Affairs of the House Committee on Interior and Insular Affairs, 90th Cong., 2d

Sess. (1968) at 47, 112-13 (“1968 House Hearing ”)).

In short, there is no basis for the proposition that “detention” for the

purposes of habeas in ICRA should be more narrowly construed than that required

in federal or state courts, and good cause exists to reconcile that aspect of Tavares

with other opinions of the Ninth Circuit as well as the uncontroverted decisions in

all other federal circuits.

II. Irrespective of whether the examples of physical restraint and permanent

geographical banishment from assignees’ land constitute a detention under §

1303, there is an independent basis for jurisdiction created by the measures

of judicial control and superintendence imposed by the tribal court.

Cases such as Poodry and Tavares address the nature and level of physical

and/or geographical restraint that are necessary to constitute a detention under §

1303 when tribal members have been banished or excluded from tribal lands but

not incarcerated in prison or jail. Because the actions of tribal actors in this case

effectuated a permanent banishment and physical restraint on tribal assignees, there


28

is a basis for jurisdiction under the banishment and exclusion line of cases.

However, there is a separate basis for habeas review that has been recognized by

the Supreme Court as well as the Ninth Circuit in an independent line of cases.

Tavares does not and should not impact this line of cases.

In Hensley v. Municipal Court, the Supreme Court determined federal

habeas review to be invoked by an order of personal recognizance requiring

petitioner to appear at times and places as ordered by any court or magistrate and

other restraints “’not shared by the public generally’ ” 411 U.S. at 351 (quoting

Jones v. Cunningham, 371 U.S. at 240).

A number of other cases have held habeas to be the appropriate remedy for

other forms of judicial superintendence and control. See, e.g., United States ex rel.

B. v. Shelly, 430 F.2d 215, 217–18 n. 3 (2d Cir.1970) (probation); Sammons v.

Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam) (suspended sentence

carrying a threat of future imprisonment); Justices of Boston Mun. Court v. Lydon,

466 U.S. 294, 301 (1984) (obligation to appear in court and requirement that

petitioner not depart the state without the court's leave demonstrated the existence

of restraints on the petitioner's personal liberty “not shared by the general public”).

The Ninth Circuit has held that that a requirement to attend fourteen hours of

alcohol rehabilitation constituted “custody” because requiring petitioner’s physical

presence at a particular place “significantly restrain[ed][his] liberty to do those









29

things which free persons in the United States are entitled to do.” Dow v. Court of

the First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir.1993) (per curiam),

cert. denied, 510 U.S. 1110 (1994). See also, Durbin v. California, 720 F.3d 1095,

1096 (9th Cir. 2013) (recognizing validity of habeas petition to challenge parole

term of only two years); Barry v. Bergen, 128 F.3d at160-61(holding that a

sentence to 500 hours of community service met the requirement).

The district court in this matter dismissed this argument in a footnote with

the following cursory statement:

Petitioners also assert that the exercise of habeas jurisdiction by this federal

court is proper under a ‘judicial control and restraint’ theory, because the

tribal court previously imposed fines and a temporary protective order

against them even though subsequently vacated or dismissed. (Doc. No. 26

at 18–20.) Petitioners point to the decision in Dry v. CFR Court of Indian

Offense for Choctaw Nation . . . as establishing this ‘judicial control and

restraint’ theory of jurisdiction. The court finds petitioners’ reliance on the

decision in Dry to be misplaced. In that case, the Tenth Circuit sought to

determine whether the district court had a jurisdiction under 28 U.S.C. §

2241. . . . That statute is not at issue here. Indeed, § 2241 uses the language

of “in custody” as opposed to “detention,” a distinction the Ninth Circuit has

now found to be meaningful.

ER 6, n. 6 (citing Dry Creek, 168 F.3d 1207, 1208 (10th Cir. 1999) and Tavares,

851 F.3d at 871-73).

There are several problems with this reasoning. First of all, it is not true that

Dry was an interpretation only of § 2241. Petitioners in that case also invoked

jurisdiction under ICRA’s 1303 and the court, like all other circuits who have

addressed the issue, determined the two standards to be the same, holding there to


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be proper federal habeas jurisdiction federal jurisdiction. Dry, supra, 168 F.3d at

1209, n. 1. Explained the Dry court:

Petitioners also rely on the Indian Civil Rights Act, 25 U.S.C. § 1301, et

seq., as a basis for habeas corpus jurisdiction. ICRA makes habeas corpus

“available to any person, in a court of the United States, to test the legality of

his detention by order of an Indian tribe.” 25 U.S.C. § 1303 (emphasis

added). We read the “detention” language as being analogous to the “in

custody” requirement contained in 28 U.S.C. § 2241.

Id. (citing Poodry, supra, 85 F.3d at 890-93 (citations omitted).

Second and more significantly, Tavares is not the appropriate precedent in

the Ninth Circuit for circumstance involving judicial superintendence and control,

and it was error for the district court to cast away assignees’ argument for

jurisdiction as a byproduct of Tavares. In Means v. Navajo Nation, the Ninth

Circuit upheld jurisdiction under § 1303 for terms of pretrial release less severe

than the ones imposed in the instant case. Specifically, he was prohibited from

having contact with his former father-in-law or to go within 100 yards of his home,

and he was ordered to appear at trial and face arrest or additional punishment for

failure to appear. 432 F.3d 924, 928-29 (9th Cir. 2005). (agreeing with the district

court that “Means was in custody for purposes of habeas jurisdiction under Justices

of Boston Municipal Court v. Lydon and Hensley v. Municipal Court (citations

omitted”)).

Here, the pretrial actions of the tribal court judge in themselves created

exactly the type of judicial superintendence and control sufficient to invoke habeas


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jurisdiction under ICRA. The final precipitating factor leading up to the filing of

the federal habeas action was a written order issued by the tribal judge on

November 22, 2016 in advance of the hearing that was scheduled on the

underlying charges for December 20, 2016. ER 138-42. Not only was it issued ex

parte and sua sponte, unaccompanied by any of the requisite pleadings and

affidavits required by law for those seeking ex parte or temporary restraining

orders, but it was entered in advance of the trial for the new trespass citations. Id..

As such, it operated as a pretrial order of superintendence in the guise of a TPO. It

imposed, moreover, exactly the type of conditions that have been sufficient to

justify habeas corpus relief in other situations.

As with the petitioner in Means, who was restricted from coming near the

complainant’s person or home, the order prohibited assignees from entering Lots 6

and 7. ER 139. The order warned assignees that a violation “is a criminal

violation and will result in a misdemeanor offense unless a more severe penalty is

prescribed by law.” ER 138. It indicated further that possession of firearms and

ammunition “may constitute a felony under federal law punishable by fines and/or

a prison sentence. Id. Although the situation involving the parties has nothing to

do with domestic violence, the court erroneously utilized language used in

domestic violence cases, enhancing the seriousness of the risk of harm or arrest. It

warned: “This Order meets all Full Faith and Credit provisions of the Violence


32

Against Woman Act. All other Courts and law enforcement within the United

States and all Indian Nations shall give full faith and credit to this Order pursuant

to 18 U.S.C. Sec. 2265.” Id..

The order contained unmistakable language warning assignees of the

possibility of not just tribal, but even federal, criminal charges being filed against

them: “Violation of the order may subject you, the offender to federal charges and

punishment pursuant to 18 U.S.C. Sec. 2261(a)(l) and (2) and 2262(a) (1) and (2).”

Id. Law enforcement from all jurisdictions were directed to charge assignees with

a misdemeanor for violation of the order itself in addition to other criminal charges

that may be warranted. Id.

This order, together with assignees’ discovery that the appellate court had

been disbanded, was what finally necessitated the filing of the habeas action in this

case. These terms of the pretrial order combined with the procedural posture of the

case, the pending trespass charges and hearing, and promise of worse sanctions

should assignees disobey the order constitute exactly the kind of pretrial order of

superintendence sufficient to constitute a detention under § 1303 under the

precedent of the Supreme Court and the Ninth Circuit. At the time of filing, the

risk of arrest and incarceration was direct, palpable and high in this case, based on

this order alone. Even though mistaken in its invocation of domestic violence and

federal domestic violence statutes, it was a court order and its threats were real.


33

If assignees were to enter the Lots 6 and 7 of their land, they were at risk,

not just from having to pay fines or otherwise be sanctioned in the trial on the

merits of trespass, but also from immediate arrest and prosecution for criminal

charges stemming from violation of the order itself. If they were found with

firearms or ammunition, which is their lawful right under normal circumstances,

they were at risk of arrest and criminal prosecution. Because of the erroneous

association with domestic violence, any law enforcement response for any

suspected violation was predictably serious and possibly volatile or even life-

threatening. Significantly also, family assignees were placed in a situation that the

general public was not, a significant concern noted by the Supreme Court in

holding that other conditions of judicial superintendence and control constituted

detention sufficient for the purposes of habeas jurisdiction. Hensley, 411 U.S. at

351.

III. To the extent Tavares is controlling, it sustains a finding of jurisdiction

under the circumstances of this case where assignees have been physically

threatened and restrained, permanently banished from their land, and

repetitively charged, convicted and threatened with arrest and prosecution.

A. The district court erred in its application of Tavares to the circumstances

of this case.

In dismissing the habeas action in this case, the district court expanded

without justification or authority the holding in Tavares beyond what was imposed

by the Ninth Circuit in the context of that case and distorted certain factual


34

findings relevant to the determination of whether a “detention” occurred.

Although purporting to make a distinction between “detention” under ICRA and

what it means to be “in custody” for the purposes of other federal habeas statutes,

Tavares does not hold and could not permissibly hold that detention in the form of

jail, imprisonment, or even permanent banishment are necessary pre-requisites to

jurisdiction under ICRA.

Of primary relevance to the court in Tavares is that the restraint involved

“temporary exclusion orders.” Indeed, it frames the issue:

The question here is whether a temporary exclusion from tribal land, but not

the entire reservation, constitutes a detention under the ICRA. Reading the

ICRA’s habeas provision in light of the Indian canons of construction and

Congress’s plenary authority to limit tribal sovereignty, we hold that the

district court lacked jurisdiction under § 1303 of the ICRA to review this

temporary exclusion claim.

Tavares, 751 F.3d at 866. The petitioners in Tavares were only facing partial

disenfranchisement from certain tribal events, properties, offices, schools, health

and wellness facilities, a park and casino, but not private land within the

reservation, their own homes or land owned by other tribal members. Id. at 868.

The exclusion, moreover, was a punishment for established violations of tribal

laws that specifically gave the tribal council the power to discipline tribal members

for disseminating false or defamatory information outside the tribe against tribal

programs and/or tribal officials. Id. at 866-68. The punishment was established in


35

the enrollment ordinance, which provided punishment “up to and including

disenrollment” for violations of the above-described tribal laws. Id.

Also noteworthy is the fact that the dispute in Tavares was entirely

intratribal, implicating only the sovereign authority of United Auburn tribal

officials, not interests of other tribes or the federal government, and that the land

within the Auburn reservation was a combination of tribal trust and private land.

Id. Furthermore, the exclusion orders and actions against the Petitioners in

Tavares were effectuated by the tribal council with review to an appeals board, and

there does not appear to have been any tribal court involvement. Id. at 868. These

circumstances, according to the Ninth Circuit, did not amount to physical

confinement of sufficient severity to permit the district court to “to review the

challenge to the temporary exclusion orders.” Id. at 879.

B. The circumstances of the instant case are markedly different and more

onerous in terms of physical restraint in significant ways.

Whereas Tavares involved a temporary exclusion from tribal services and

land, the instant case involves a permanent ejectment or banishment. A restraint

tantamount to custody exists in the instant case because tribal actors decided to

forcibly remove assignees, their appurtenances and belongings, including their

cattle, and ban them from use and occupancy of their lands forever. They did this

in a number of ways. First, the tribal council directed armed law enforcement

from two jurisdictions to force family assignees to physically leave the land.


36

Declaration, ER 195-96; FAC, 34-40, 43-45. Facts alleged and referenced in the

signed affidavit indicate that the officer encircled Petitioners each time they

entered the land, and at least some officers had their hands on their guns in a

manner that intimidated Petitioners and made them fear for their personal safety

and risk of imminent arrest or injury. Id.

As described by Appellant Ronald Napoles: “I felt personally threatened

during those visits. During the visit of November 19, 2016, the officers and Tribal

Chairman Deston Rogers surrounded me in menacing fashion, and at least one

officer held his hand on his gun at all times during the interaction.” ER 196-97.

During another encounter, Appellant Napoles was gashed with a shovel and

physically injured by a piece of heavy equipment driven by tribal employees who

were instructed tribal council to block assignees from their land. Id. at 195-96.

Tribal actors and their agents physically confronted assignees each time

they entered upon their land in this threatening manner with police from two

jurisdictions and the tribal chairman, physically accosted them, charged them

repeatedly with trespass citations despite a court of appeals decision reversing the

first effort at trespassing them from the land, and issuing judicial process and

orders banning them upon threat of arrest and further prosecutions. On December

16, 2017, tribal actors erected a chain link fence around Lots 4 through 7,

physically excluding assignees from their land and cancelling their use and


37

occupancy rights. ER 40. In doing so, tribal actors have permanently banned

petitioners from their land in an effort to take the land for the purpose of a planned

casino and hotel expansion. Because of the persistent, repetitive and menacing

actions by tribal actors, family assignees have been ejected and permanently

deprived of their rights as original assignees to the useful enjoyment of their

original family assignment which has been theirs for almost eighty years.

Also significant is the fact that family assignees have been banned from their

own land assignment, not land designated for tribal economic development, tribal

trust or other tribally owned or held lands. In Dry Creek Lodge, Inc. v. Arapahoe

and Shoshone Tribes, the Tenth Circuit upheld habeas relief under ICRA for the

purposes of private assignees’ being able to seek redress from a tribal blockade to

the access routes to their private hunting lodge that they owned and operated

within the boundaries of the reservation. 623 F.2d 682 (10th Cir. 1980). The court

emphasized that the problem posed in the Supreme Court’s Santa Clara case was

“strictly an internal one between tribal members and the tribal government relating

to the policy of the Tribe as to its membership.” Id. at 685. Explained the court:

Much emphasis was placed in the opinion on the availability of tribal courts

and, of course, on the intratribal nature of the problem sought to be

resolved. With the reliance on the internal relief available the Court in Santa

Clara places the limitations on the Indian Civil Rights Act as a source of a

remedy. But in the absence of such other relief or remedy the reason for the

limitations disappears. The reason for the limitations and the references to

tribal immunity also disappear when the issue relates to a matter outside of

internal tribal affairs and when it concerns an issue with a non-Indian.


38

Id. Although family assignees in this matter are clearly enrolled tribal members

unlike those in Dry Creek, their interest in the land as assignees is more akin to the

private ownership interest of petitioners in Dry Creek. Moreover, their use and

occupancy rights as assignees are independent from the Bishop Paiute Tribe’s and,

hence, do not implicate intratribal interests.

Another distinction in this case is that it does not in any way implicate

membership or enrollment. This distinction is significant because of Tavares’

emphasis on the need for special deference to tribal control over tribal membership

rights. Tavares emphasized: “Unlike the Second Circuit, we distinguished

between disenrollment and banishment, and recognized that there is no federal

habeas jurisdiction over tribal membership disputes.” Id. at 875, citing Poodry at

920. Furthermore, stated the court: “Because exclusion orders are often intimately

tied to community relations and membership decisions, we cannot import an

exclusion-as-custody analysis from the ordinary habeas context.” Id., citing Santa

Clara, 436 U.S. at 72 n.32. Even Santa Clara was fundamentally a membership

dispute. It was in that context that the Court stated:

A tribe's right to define its own membership for tribal purposes has long

been recognized as central to its existence as an independent political

community. Given the often-vast gulf between tribal traditions and those

with which federal courts are more intimately familiar, the judiciary should

not rush to create causes of action that would intrude on these delicate

matters.” (citations omitted).


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Id. There is no issue of membership or enrollment in the instant case. Tavares’

strictures in that regard, imposed clearly as a limitation derived for the purpose of

protecting the authority of the tribal sovereign to regulate membership and

enrollment, do not apply to this situation. This distinction separates the instant

case from those for which habeas jurisdiction was ultimately denied in deference to

enrollment. See, e.g., Jeffredo v. Macarro, supra, 599 F.3d at 920 (“This court is

without jurisdiction to review direct appeals of tribal decisions regarding

disenrollment of members”; emphasis added); Alto v. Black, 738 F.3d 1111, 1122

(9th Cir. 2013)(“[W]e have regularly declined to exercise jurisdiction over cases in

which individuals are seeking an order mandating BIA involvement in tribal

enrollment decisions.”)

The governing structures and sovereign authority of the appellees in each

case are also different. Whereas the Tavares case involved actions of a tribal

council that is the exclusive governing and adjudicative body for the United

Auburn Community, the instant case involves a tribal council and tribal court

taking actions for which they lack the sovereign authority. In contrast to the

Auburn Community, the primary governing authorities in this case are a General

Council and the inter-tribal OVBT. Tribal Council filed legal charges in the tribal

court, which entered the order that gave rise to this case and took other steps to

empower BTC beyond their lawful authority. Careful case-by-case analysis of the


40

unique circumstances, historical legacy and features of sovereignty present within

each tribal context provide a basis for distinguishing the circumstances of this case

from those in Tavares.

C. Restrictions in assignees’ geographical movement do create a detention

sufficient to invoke federal jurisdiction under 1303.

Geographical banishment cases like Poodry provide the best authority for

the instant case because the facts are so analogous to those here. A number of

lower court decisions in this jurisdiction have retained jurisdiction based on

similar constraints. See also Quair v. Sisco 359 F.Supp.2d 948 (E.D. Cal.

2004)(Quair I); Quair v. Sisco, 2007 WL 1490571, at *1-2 (E.D. Cal. May 21,

2007)(Quair II)(retaining jurisdiction on banishment orders, uncoupling dis-

enrollment from the analysis); Sweet v. Sisco, 634 F.Supp.2d 1196 (W.D. Wash.

2008) (Sweet I).

It was not just the severity of banishment that was observed by the court in

Poodry, but also other evidence of restraint presented but ignored by the district

court. The court noted the “coerced and peremptory deprivation” created by the

circumstances, including the banishment order as well as repeated service of

banishment notices by groups of people, numerous efforts to remove petitioners

from the reservation, the fact that they had been threatened or assaulted by

individuals purporting to act on respondents’ behalf and denied electrical services.

Id. at 895. The fact that petitioners in that case had been ordered banished, but no


41

steps had been taken to actually remove them yet, did not remove the impact or

severity of the restraint. As explained by the Tenth Circuit in Poodry:

‘Restraint’ does not require ‘on-going supervision’ or ‘prior approval.’ As long as the banishment orders stand, the petitioners may be removed from the Tonawanda Reservation at any time. That they have not been removed thus far does not render them ‘free’ or ‘unrestrained.’ While ‘supervision’ (or harassment) by tribal officials or others acting on their behalf may be sporadic, that only makes it all the more pernicious. Unlike an individual on parole, on probation, or serving a suspended sentence-all “restraints” found to satisfy the requirement of custody-the petitioners have no ability to predict if, when, or how their sentences will be executed. The petitioners may currently be able to “come and go” as they please, [ . . .] but the banishment orders make clear that at some point they may be compelled to “go,” and no longer welcome to “come.’ That is a severe restraint to which the members of the Tonawanda Band are not generally subject. Indeed, we think the existence of the orders of permanent banishment alone-even absent attempts to enforce them-would be sufficient to satisfy the jurisdictional prerequisites for habeas corpus.

Id. at 895.

Like the petitioners in Poodry, tribal assignees here have been harassed,

intimidated, ordered to leave, fenced out, fined and told if they return to their

lands they will face not just additional sanctions and prosecution but also arrest

and charging with new crimes for violation of the court’s order of

superintendence. The district court ignored several material facts, focusing on

assignees’ “fear of the additional trespass citations” to the exclusion of other

critical circumstances. ER 10. There is much more than a fear of additional

citations that excludes assignees from their land and impacts their movement. As


42

discussed above, tribal officials and sheriffs surrounded them with hands on their

weapons, creating an immediate fear of apprehension or even being physically

shot. At least one appellant was assaulted and injured. Another was fired, and

two others received unpaid disciplinary probation from their jobs with the Tribe.

ER 36. It is in this context that family assignees were punished with the penalty

of banishment from their own lands. The combined actions forced them

completely from their lands and created a very real fear, not just of being cited in

the future, but in being actually incarcerated or physically harmed at the hands of

tribal actors and their delegates. In both cases the group in power intimidated

family assignees and strove to permanently throw them off the lands. Poodry, 85

F.3d at 897.

The harms to assignees are severe and actual, with the imminent risk of

imprisonment and prosecution for other crimes within and outside the Bishop

Paiute Tribe. Thus, like the petitioners in Poodry, family owners are detained.

Even under a narrower definition of “in custody,” there is a “severe actual and

potential restraint on liberty” such that the requirements of 1303 are met.

Jeffredo, 599 F.3d at 919, quoting Poodry, 85 F.3d at 880.

D. The district court’s rationale does not withstand scrutiny insofar as it

suggested both that actual confinement is a requirement and that

assignees factually were not at risk of such confinement.


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In denying jurisdiction, the district court concluded: “However, plaintiffs

are not currently detained, have never been in physical custody, and cannot face

such confinement as a result of the issuance of these citations.” ER 10. As

discussed above, the suggestion that actual physical custody is a requirement is an

erroneous legal conclusion.

So too is the factual assertion that assignees “cannot face such confinement”

as a result of the actions of tribal actors. On multiple occasions, family assignees

were physically surrounded by tribal police and sheriffs, several times with hands

their weapons. That itself was a form of physical confinement. The court order

pending at the time of filing, moreover, threatened immediate arrest and

incarceration should they enter upon the land. It is true in California, that state law

enforcement agencies have been designated primary authority over offenses

committed by or against Indians on the reservations. Pub. L. 280, 18 U.S.C. s

1162. However, Bishop Paiute tribal police officers have arrested people, even

non-Indians, and the tribe even has presented a recent case before this court

asserting the right of tribal police to effectuate arrest in furtherance of their

criminal codes, including the trespass one. See Bishop Paiute Tribe v. Inyo

County, 863 F.3d 1144, 1148-49 (9th Cir. 2017) (holding there was federal

jurisdiction as a matter of federal common law in a suit brought by the Tribe for

declaratory relief that tribal police have the authority to “investigate violations of




44

tribal, state, and federal law, detain, and transport or deliver a non-Indian violator

[encountered on the reservation] to the proper authorities.”). The case describes an

incident whereby a tribal police officer actually arrested a non-Indian under the

Tribe’s trespass ordinance, the same one involved in the instant case. Id. The

findings in that case describe the Bishop Paiute Tribe’s position with respect to

investigation and arrest:

In 2009, the Tribe established a Tribal Police Department (“Tribal PD”).

Since that time, the Tribal PD has responded to several hundred calls. Many

of the responses are completed along with the Inyo County Sheriff's

Department (“ICSO”). The Tribal PD employs three officers and a Chief

of Police. Each officer must meet various qualification requirements,

including having two years of law enforcement experience and completing a

law enforcement training class. The Tribal PD patrols the reservation,

enforces tribal ordinances, and conducts investigations. Tribal PD General

Order 3.1 states that a Tribal PD officer may need to detain an Indian or

non-Indian individual to secure the scene, prevent the suspect from leaving

the scene, or for officer safety. Tribal PD officers are also permitted to

detain non-Indians who are suspected of committing criminal acts on the

reservation and to transfer such individuals to outside law enforcement.

Non–Indians are to be turned over to outside law enforcement as soon as

possible.”

Id. at 1148. Thus, the official position of the tribe is that their police do have

authority and actually effectuate it to arrest individuals under a variety of

circumstances. Thus, not only have tribal assignees been directly detained and

deprived of liberty in a permanent and geographical sense, their risk of actual

arrest and incarceration at the hands of tribal actors did, in fact, exist. Every time

they were apprehended by tribal police and sheriff, they were physically detained,


45

and there was a real chance of arrest and transport to jail. The court’s pretrial order

itself threatened immediate arrest and charging, even under federal law, should

assignees be found upon their land. Unless and until relief is granted that reverses

the actions of the tribal court and council actors, assignees remain in a state of

physical restraint as well as under threat of arrest, prosecution for other charges

and incarceration for being upon land that is rightfully theirs under federal and

inter-tribal mandate.

The emphasis in determining habeas jurisdiction is on the “fact” of one’s

“detention” or “deprivation of liberty” and how and why it was imposed – i.e., its

legal validity. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir.1983)(per

curiam)(attack on validity or length of confinement lies in habeas). “The test as to

the right to the writ is the existence of . . . detention, actual though it may not be, as

it deprives one of the privileges of going when and where he pleases.” Ferris &

Ferris, THE LAW OF EXTRAORDINARY LEGAL REMEDIES, Part I, pp. 32-

33 (1926)(italics added). Appellants here are not free to enter upon their land at

any time, let alone when and where they please. The actions of tribal actors are

invalid and in violation of federal and tribal mandates that impact more than one

tribal entity. These are exactly the circumstances intended to be the subject of “the

Great Writ.” Jones v. Cunningham, 371 U.S. at 243.


46

E. The “interpretive principles animating habeas jurisdiction” emphasized in

Tavares weigh in the opposite direction in this case. Both of ICRA’s

purposes – to protect the rights of individuals against encroachment by

tribal officials and to protect tribal sovereignty – are advanced by

exercising federal habeas jurisdiction.

Tavares rooted its interpretation in certain fundamental “Principles

Animating Habeas Jurisdiction Under § 1303 of the Indian Civil Rights Act.” 851

F.3d at 869. Specifically, noted the 9th Circuit: “We ground our opinion in two

foundational principles in the Indian law canon—tribal sovereignty and

congressional primacy in Indian affairs.” Id. Characterizing the matter as an

intratribal dispute over interpretation and enforcement of certain tribal laws, the

court determined there was a reason for deference to tribal sovereignty and

embraced the position of the tribal officials as the official sovereign position. It

highlighted also the second of Congress’ aims in implementing ICRA: namely,

protection and deference to tribal sovereignty. Id. See also Santa Clara, 436 U.S.

at 62 (noting how addition to protecting the rights of individual tribal members,

Congress intended also to “promote the well-established federal policy of

furthering Indian self-government.”).

The animating principles are important, but Congress already accounted for

them in its designation of habeas as the sole source of federal remedy. Id. It

would be clear legal error to invoke them to nullify or even limit Congress’

intention to provide relief for those suffering unlawful detention whose rights


47

under ICRA were violated. While some cases like Tavares do present purely

intratribal conflicts between the interests of individuals and the interests of a tribe,

the instant case does not present a dilemma between the two interests. In fact, the

animating interpretive principles identified by the Ninth Circuit weigh in favor of

federal court jurisdiction under the circumstances of this case.

1. This case does not involve a purely intratribal conflict.

Unlike the situation underlying Tavares, this case does not involve a purely

intratribal conflict. In addition to the individual assignees and Bishop Paiute

Community at large, the land base and sovereign authority of two other tribes of

Indians are impacted by the actions of tribal actors as well. See, supra n. 1 and

accompanying text. Bishop tribal actions have also contravened the authority of

the OVBT, created by the three Owens Valley Tribes to effectuate federal

legislation and trust agreements with respect to land assignments. 1962 Ordinance,

ER 86-91. Not only do appellees overstep governing authority within their tribal

community, most notably by proceeding with a project that the General Council

has expressly voted upon and rejected, but they intrude on intertribal interests and

governance authority of the OVBT established over assigned land within the

exterior boundaries of the Bishop, Big Pine and Lone Pine Paiute reservations.


48

2. The actions of tribal actors intrude on the federal trust obligation

established by Congress and the Bureau of Indian Affairs

Whereas petitioners in Tavares were excluded from tribal land held in trust

by the United States for the benefit of the tribe itself, assignees have been excluded

from use and occupancy of their own assignment. The Bishop Paiute reservation is

comprised of land assignments granted to families and individual tribal members

for their use and occupancy and held in trust by the U.S. and the intertribal OVBT.

As such, assignments are more akin to allotments that were granted to heads of

household under the Dawes Act of 1887, 24 Stat. 388, ch. 119, 25 U.S.C.A. 331;

but they are smaller in size and have unique properties under law unlike land in

any other tribal context. Like allotments, however, they are held in trust by the

United States for the benefit and livelihoods of individual families to develop

agricultural opportunities and homes independent from lands held in trust for the

benefit of a tribe itself. For a discussion of allotments and diverse tribal land

ownership practices, see Kenneth H. Bobroff, Retelling Allotment: Indian Property

Rights And The Myth Of Common Ownership, 54 Vand. L. Rev. 1559 (2001).

The history of the Bishop Paiute Tribe and the creation of its present-day

reservation is unique above all over tribes. This is a consequence of the history of

land use and ownership in the Owens Valley by aboriginal Paiute and Shoshone

people, the federal government, and the City of Los Angeles. In an effort to

procure water rights, Los Angeles purchased thousands of acres of land at the


49

beginning of the 20th century, creating an untenable situation for Paiute individuals

and families who found themselves squatting upon such land and/or separate and

dislocated from others. For a chronology of water right transactions in the Owens

Valley, see Owens Valley Water History, Inyo County Water Department,

https://www.inyowater.org/documents/reports/owens-valley-water-history-

chronology/ (last viewed January 7, 2017). The solution agreed upon by the

federal government was to purchase and exchange land previously obtained by the

federal government with the Department of Water and Power for the purposes of

consolidating and creating the present boundaries of the reservation. The pre-

requisite for this exchange was that the majority of the Paiute people had to agree

to the exchange. Advanced written agreement had to be obtained from families

like that of Ida Warlie that they would give up homesites and improvements in

other locations around the Owens Valley in exchange for land assignments within

the reservation that was to be created. ER 20-22.

In April 1937, Congress passed an Act that authorized the exchange of land

and water rights between the federal government and the City of Los Angeles. Act

of April 20, 1937, 50 Stat. 70 (“To authorize the Secretary of the Interior to

exchange certain lands and water rights in Inyo and Mono Counties, California,

with the city of Los Angeles, and for other purposes”). In a case regarding water

rights under the same agreement the Ninth Circuit summarized the early history:




50

For centuries, Plaintiff's members lived in the area now called the Owens

Valley in Inyo County, California. After non-Indian settlers began to move

into that area in the late Nineteenth Century, Congress moved to protect

Plaintiff by acquiring land in the area and setting it aside for Plaintiff's

benefit. By 1924, the United States had acquired and set aside five tracts of

land totaling approximately 1,030 acres (the “Bishop Tribal Land”).

Pursuant to the usual custom, the United States held the title to the Bishop

Tribal Land in trust for Plaintiff.

In the Act of April 20, 1937, 50 Stat. 70, Congress authorized the Secretary

of the Interior to exchange federal land and water rights in the Owens Valley

for other land and water rights owned by the City. The Act placed several

conditions on any such exchange. Among them, a majority of Plaintiff's

adult members had to consent to an exchange; an exchange had to include

the water rights appurtenant to the exchanged lands; and the value of the

rights conveyed in an exchange had to equal the value of the rights received.

Paiute-Shoshone Indians of Bishop Community of Bishop Colony, California v.

City of Los Angeles, 637 F.3d 993, 996 (9th Circuit 2011). In the resulting Land

Exchange Agreement, the United States swapped 3,126 acres of federally reserved

Indian lands for 1,511 acres of city-owned land located in the Owens Valley. Id.

The land exchange consolidated scattered parcels that the Owens Valley Indians

held into three new reservations in Bishop, Big Pine, and Lone Pine.

The Bishop Paiute Tribal Land acquired in 1924 and swapped in the Land

Exchange Agreement was determined by the Ninth Circuit to belong to the United

States, not the Bishop Paiute Tribe. Id. at 998. Explained the court:

But Plaintiff's theory skips a crucial fourth step. As Plaintiff's complaint

acknowledges, the United States, not Plaintiff, conveyed the Bishop Tribal

Land to the City. Even if a finder of fact were to decide that the United

States violated the Act and that those violations render the land exchange

null and void, the title to the Bishop Tribal Land would revert to the United


51

States, not to Plaintiff. To achieve the relief that it seeks, Plaintiff would

require an additional order, apart from an order ejecting the City, requiring

the United States either to cede title to Plaintiff or to hold the land in trust

for Plaintiff's benefit. Without such an order, we see nothing stated in

Plaintiff's complaint that would require the United States to give the Bishop

Tribal Land back to Plaintiff.

As a result of this Congressional legislation, the OVBT was created and

recognized to administer the lands of the three Owens Valley Tribes and funds

appropriate for development, relocation and housing. Explains the 1962 Ordinance

of that history:

By the Trust Agreement for Relief and Rehabilitation Grant to Unorganized

Bands, (Hereinafter referred to as the "Trust Agreement), approved April 17,

1939, by the Acting Commissioner of Indian Affairs, the governing body

titled Trustees for the Owens Valley Board Paiute-Shoshone Indians,

(Hereinafter referred to as the Owens Valley Board of Trustees), was created

and recognized. The purpose of creating and recognizing the Owens Valley

Board of Trustees was to receive and administer funds appropriated under the

Emergency Relief Appropriation Act of 1938 for and on behalf of the Owens

Valley Paiute-Shoshone Indians, under the direction and approval of the

Commissioner of Indian Affairs. It was to this recognized governing body and

their successors in office that the Commissioner granted and conveyed the

said funds in Trust, subject to specified conditions stated in the Trust

Agreement. Therefore, the recognized governing body of the Owens Valley

Indian Bands is the Owens Valley Board of Trustees.

“Governing Body,” ER 87.

3. No entity, not even the OVBT, has authority to take land out of status as

an assignment.

There is no lawful provision for assigned land to be converted into land for

economic development or any other purpose at the hands of the Bishop Paiute

Council or any other government entity. ER 23; 1962 Ordinance, ER 86-91. All


52

provisions of the 1962 Ordinance provide for and regulate the validation,

exchange, relinquishment, availability and assignment of land from one tribal

member to another. Id. When land becomes unavailable to or is relinquished by

one head of household or individual, it becomes available for reassignment to

another family member or individual, in the event there are no heirs available for

assignment. Id. Even where surviving family members are not available or do not

qualify for assignment, the land does not escheat to the Tribal Council or other

tribal entity. Provides the ordinance: “In the event those individuals in the above

categories do not qualify for an assignment under terms of this ordinance, the

available acreage may be reassigned to any eligible member of the Owens Valley

Paiute Shoshone Bands.” Art. II(D)(10)(d), ER 91. The federal court would not

be intruding on a valid exercise of sovereignty in assuming jurisdiction over this

case.

4. Not only do tribal officials in this matter violate the rights of Appellants,

by taking federally granted land assignments belonging to individual

families, they also seek to subvert the federal trust authority established

by Congressional statute and the intertribal band (OVBT) created to

manage assignments.

If allowed to do so unchecked, Bishop tribal actors could eviscerate, without

any lawful authority the entire land base that comprises the homes and livelihoods

of the members of the Tribe, driving people off the reservation or onto smaller and

smaller plots of land in the interests of private or public development projects, or


53

aggrandizements of political power. Land, as a place necessary for sustaining

homes, agriculture and livelihood for tribal members, is the foundation of

sovereignty. As explained in the Ordinance: “In the past, the size of assignments

on the Bishop, Big Pine and Lone Pine Reservations generally were determined by

the size of the assignee’s family. The assignments were granted for the purpose of

providing a home and acreage to aid in supporting a family.” Art. II(D)(10)(a), ER

90.

Tribal actors’ actions if allowed to continue unchecked will undermine

Congress’s goal not only in protecting individual rights under ICRA but in

enacting legislation that created the modern reservation and authorized a land with

the DWP for the purpose of relocating Paiute people onto a consolidated

community of contiguous assignments. It would violate the terms of a federal

trust agreement and judicial precedent in this circuit regarding the status of the land

within the Owens Valley. Thus, the interests of tribal sovereignty for the Bishop,

Big Pine and Lone Pine Bands and the federal government, as expressed by

Congress, warrant federal review of the errant actions of tribal officials. The

animating principles of habeas corpus operate in this case in support of federal

jurisdiction.


54

CONCLUSION:

Appellants have been permanently and physically banished from their

original family land. The tribal court exercised superintendence and control,

restricting their movement and threatening arrest and additional prosecution should

they violate it. These actions constitute a severe restraint on their liberty sufficient

to constitute a detention under Section 1303 and the precedent of this circuit. None

of the animating principles regarding tribal sovereignty that sometimes caution

against federal review of tribal action apply here. It is not a purely intratribal

dispute. It does not implicate tribal membership or enrollment. It does not pit the

rights of individuals against a single tribal entity. To the contrary, exercising

jurisdiction is consistent with and imperative not just to the rights of Appellants but

also to give meaning to the federal mandate and inter-tribal governing authority

over land assignments in the Owens Valley.

The writ of habeas corpus should be granted and the court’s order dismissing

this case for lack of jurisdiction should be reversed.

DATED: January 15, 2017

By:

/s/ Andrea M. Seielstad

___________________________

Andrea M. Seielstad,

Attorney for Petitioners/Appellants


55

STATEMENT OF RELATED CASES

Counsel for Appellants is not aware of any related cases pending in this Court.


56

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify that:

1. This brief complies with the type-volume limitations of 14,000 words, required

under Ninth Circuit Rule 28.1-1(b), because it contains 13,619 words, excluding

the parts of the brief exempted in the rules.

2. This brief complies with the typeface requirements of Federal Rule of Appellate

Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate

Procedure 32(a)(6) because this brief has been prepared in a 14-point,

proportionally-spaced typeface in Microsoft Word 2010.

DATED: January 15, 2017

By:


___________________________




57

CERTIFICATE OF SERVICE

On January 15, 2017, I served true copies of the following document(s) described

as APPELLANTS' OPENING BRIEF on the interested parties in this action as

follows:

BY NEF: The foregoing document will be served by the court via NEF and

hyperlink to the document. On January 15, 2017, I checked the CM/ECF docket

for this civil case and determined that the persons listed on the attached Service

List are on the Electronic Mail Notice List to receive NEF transmission at the

email address(es) indicated on the service list.

Additionally, email copies were sent to:

Anna Kimber, Law Office of Anna Kimber, 8303 Mount Vernon Street

Lemon Grove, California 91945

Email: [email protected]

Michael Vinding, BRADY & VINDING, 400 Capitol Mall, Ste. 2640,

Sacramento, CA 95814

Email: [email protected]

By:


___________________________




https://maps.google.com/?q=8303+Mount+Vernon+Street+%0D+%0D+Lemon+Grove,+California+91945_+%0D+%0D+*(619*_&entry=gmail&source=g

mailto:[email protected]

mailto:[email protected]

STATUTORY ADDENDUM


Statutory Addendum Page i

TABLE OF CONTENTS

Page

25 U.S.C. § 1301 ..................................................................................................................... 1

25 U.S.C. § 1302 ..................................................................................................................... 1

25 U.S.C. § 1303 ..................................................................................................................... 4

28 U.S.C. § 1291 ..................................................................................................................... 4

28 U.S.C. § 2107 ..................................................................................................................... 4

Federal Rule of Appellate Procedure 4 ................................................................................. 5

Federal Rule of Civil Procedure 12 ..................................................................................... 10

50 Stat. 70, 75 Cong. Ch. 114, April 20, 1937……….…………………………..….12


Statutory Addendum 1

25 U.S.C. § 1301. Definitions

For purposes of this title, the term—

(1) "Indian tribe" means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;

(2) "powers of self-government" means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;

(3) "Indian court" means any Indian tribal court or court of Indian offense; and

(4) "Indian" means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, United States Code, if that person were to commit an offense listed in that section in Indian country to which that section applies.

25 U.S.C. § 1302. Constitutional Rights

(a) In general. No Indian tribe in exercising powers of self-government shall--

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

(3) subject any person for the same offense to be twice put in jeopardy;

(4) compel any person in any criminal case to be a witness against himself;



(5) take any private property for a public use without just compensation;

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense (except as provided in subsection (b));

(7) (A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;

(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $ 5,000, or both;

(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $ 15,000, or both; or

(D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;

(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;

(9) pass any bill of attainder or ex post facto law; or

(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

(b) Offenses subject to greater than 1-year imprisonment or a fine greater than $ 5,000. A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $ 5,000 but not to exceed $ 15,000, or both, if the defendant is a person accused of a criminal offense who--

(1) has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or

(2) is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.



(c) Rights of defendants. In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall--

(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and

(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;

(3) require that the judge presiding over the criminal proceeding--

(A) has sufficient legal training to preside over criminal proceedings; and

(B) is licensed to practice law by any jurisdiction in the United States;

(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and

(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

(d) Sentences. In the case of a defendant sentenced in accordance with subsections

(b) and (c), a tribal court may require the defendant--

(1) to serve the sentence--

(A) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after the date of enactment of the Tribal Law and Order Act of 2010 [enacted July 29, 2010];

(B) in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) [234(c)] of the Tribal Law and Order Act of 2010 [note to this section];



(C) in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or

(D) in an alternative rehabilitation center of an Indian tribe; or

(2) to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

(e) Definition of offense. In this section, the term "offense" means a violation of a criminal law.

(f) Effect of section. Nothing in this section affects the obligation of the United States, or any State government that has been delegated authority by the United States, to investigate and prosecute any criminal violation in Indian country.

25 U.S.C. § 1303. Habeas Corpus

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.

28 U.S.C. § 1291. Final Decisions of District Courts

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

28 U.S.C. § 2107. Time for Appeal to Court of Appeals

(a) Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty



days after the entry of such judgment, order or decree.

(b) In any such action, suit, or proceeding, the time as to all parties shall be 60 days from such entry if one of the parties is--

(1) the United States;

(2) a United States agency;

(3) a United States officer or employee sued in an official capacity; or

(4) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the United States, including all instances in which the United States represents that officer or employee when the judgment, order, or decree is entered or files the appeal for that officer or employee.

(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds--

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

(d) This section shall not apply to bankruptcy matters or other proceedings under Title 11.

Federal Rule of Appellate Procedure 4. Appeal as of Right—When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed



with the district clerk within 30 days after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf-- including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order -- but before the entry of the judgment or order -- is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would



alter the judgment;

(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

(B)

(i) If a party files a notice of appeal after the court announces or enters a judgment -- but before it disposes of any motion listed in Rule 4(a)(4)(A) -- the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal -- in compliance with Rule 3(c) --

within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.



(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure

• 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.



(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order -- but before the entry of the judgment or order -- is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces a decision, sentence, or order -- but before it disposes of any of the motions referred to in Rule 4(b)(3)(A) -- becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such



remaining motion; or

(ii) the entry of the judgment of conviction.

(C) A valid notice of appeal is effective -- without amendment -- to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may -- before or after the time has expired, with or without motion and notice -- extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

(5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

(c) Appeal by an Inmate Confined in an Institution.

(1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the



district court's docketing of the defendant's notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.

Federal Rule of Civil Procedure 12. Defenses and Objections: When and

How Presented; Motion for Judgment on the Pleadings; Consolidating

Motions; Waiving Defenses; Pretrial Hearing

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.


Statutory Addendum Page 12

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under



Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.

All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-

(5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or



(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

(B) by a motion under Rule 12(c); or

(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)-- whether made in a pleading or by motion--and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.



75 Cong. Ch. 114, April 20, 1937, 50 Stat. 70

UNITED STATES STATUTES AT LARGE

75TH CONGRESS - 1ST SESSION

Convening January 5, 1937

An Act

To authorize the Secretary of the Interior to exchange certain lands and water

rights in Inyo and Mono Counties, California, with the city of Los Angeles, and

for other purposes.

April 20, 1937


no. 17-16620 in the united states court of appeals for … · 2018-11-26 · 1:16-cv-01933-dad-jlt...

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