Adrian John Sr. and the other tribe-member plaintiffs had sought a writ of habeas corpus to prevent restraint of their liberty, claiming that the Elem Colony Tribal Council had tried to disenroll and banish them and that they remained under threat of being removed from the tribe’s California reservation.
In an order dismissing the case Saturday, U.S. District Judge William Alsup agreed with the tribal council that the members hadn’t shown their treatment by the tribal officials, based mostly on documents sent by the tribe in 2016 threatening them with disenrollment, reached the level of a “severe restraint” permitting habeas relief under the ICRA.
The members haven’t been removed from their homes or tribal land, and the tribe has repeatedly maintained that any efforts to disenroll the members have been withdrawn, the judge said.
The judge added that “the true theme of this petition seems to be that petitioners feel their membership in the tribe remains at risk, essentially because their political rivals remain in power and have, at minimum, expressed some desire to threaten petitioners with exclusion from the tribe.”
“This order in no way minimizes the seriousness of these political disputes and their impacts on the lives of the tribe’s individual members,” Judge Alsup said. “No amount of attorney rhetoric, however, can coalesce the general history and atmosphere of hostility and distrust between the tribe’s rival factions into a ‘severe restraint’ such that one faction may petition for writ of habeas corpus under Section 1303 [of the ICRA].”
The tribe member plaintiffs’ April 2016 complaint incorporating their habeas corpus petition alleged that the Elem Colony Tribal Council issued a disenrollment order containing “fantastical allegations” that those members violated tribal law, but didn’t allege that they weren’t properly enrolled in the tribe.
The order was sent to as many as 61 adult tribe members, and if those adults were banished, their children and extended families, totaling 71 additional members, would also be exiled, leaving an “empty reservation,” according to the complaint.
In February 2017, Judge Alsup said he would delay ruling on the tribe’s motion to dismiss the suit, saying that although he was “inclined to dismiss” the petition because the tribe claimed it wasn’t conducting disenrollment proceedings against any of the plaintiffs, he would give the members time to gather more information.
Judge Alsup noted in his order that the members’ petition was “grounded in a long history of conflict and litigation between different factions” of the tribe, including a disputed tribal election in November 2014 that helped put the current tribal officials in power.
The members fought the committee’s motion to dismiss the suit in their Aug. 29 filing, saying that the committee’s claims that they haven’t taken actions to disenroll the members don’t comply with a tribal ordinance and “do not suffice to show official tribal action has been taken to rescind” previously issued disenrollment orders.
Judge Alsup ruled Saturday that under Ninth Circuit precedent, the tribe members hadn’t shown the kind of “severe restraint” on their liberty that would allow them to bring their claims under the ICRA.
While the members “repeatedly claim in vague terms that unspecified persons denied them access to facilities or services, precluded them from political or cultural forums in the tribe, and prevented them from collecting shares of the tribe’s revenue … these restrictions do not suffice to trigger Section 1303,” according to the order.
And the threat of being evicted in the future also doesn’t trigger the ICRA, the judge said.
The tribe has unequivocally said that it doesn’t plan to disenroll the members, the judge said, and though “petitioners may still distrust respondents’ intentions,” the tribal officials “have, on the record, neutralized any threat that may have been posed to petitioners” by the documents sent by the tribe in 2016. OP: YOU CAN TRUST THEM, RIGHT??
Jack Duran Jr. of Duran Law Office, who represents the tribal officials, said Monday that there were no facts that supported the suit’s claims, and it was “a fruitless and fraudulent attempt to once again waste the tribe’s resources.”
Little Fawn Boland of Ceiba Legal LLP, who represents the tribe members, said in a statement Monday, "We are extremely proud that through our litigation we were able to thwart the disenrollment and banishment at least for now to keep these families in their tribe, on their reservation and in their homes."
"But, all these people are still disenfranchised from their government," Boland added. "We are hopeful the ruling is the beginning and not the end of the process to address the division within the Tribe. Perhaps now the on-reservation and off-reservation families will [be] able to heal and work together.”