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Liska v. Macarro


September 17, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


[Doc. No. 70]

Presently before the Court is Respondents' Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, and Butch Murphy's motion to dismiss Petitioner Joseph Liska's ("Petitioner") Amended Petition.*fn1 (Doc. No. 70.) Petitioner filed an opposition, and Respondents filed a reply. Oral argument was heard on August 30, 2010. For the reasons stated herein, the Court GRANTS the motion to dismiss.


On October 14, 2008, Petitioner, proceeding pro se, filed the original petition, captioned "Complaint [for] Writ of Habeas Corpus." (Doc. No. 1.) Petitioner alleged he is a descendant of the Pechanga Band of Mission Indians (the "Tribe"), but not an enrolled member of the Tribe. The Tribe currently has in place a moratorium on enrolling new members. The petition named as respondents Tribe members Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy. Petitioner alleged Respondents illegally banished Petitioner from the Tribe without a hearing or due process, in violation of the American Indian Civil Rights Act of 1968 ("ICRA"), 25 U.S.C. §§ 1301, 1302, and 1303. According to Petitioner, he is entitled to be recognized as a member of the Tribe, share in the Tribe's trust proceeds, and enter the reservation to visit his father's grave.

On June 25, 2009, Respondent Donna Baron ("Baron") filed a motion to dismiss the petition. At that time, Baron was the only party whom Petitioner served with the petition. On August 5, 2009, the Court granted Baron's motion to dismiss for lack of personal jurisdiction, and alternatively for failure to state a claim under Rule 12(b)(6).

On June 18, 2010, Petitioner filed an Amended Petition against the same respondents as in the original petition, with the exception of Baron.*fn2 The Amended Petition alleges the same conduct as the original petition, but also describes an incident on May 19, 2005 where men came to Petitioner's home, pounded on his door, and put banishment flyers on his cars. Petitioner alleged this was "reckless conduct" and he felt like he was being warned to cease protesting against the Tribe's enrollment policies. The Amended Petition sets forth three claims: (1) violation of ICRA, 25 U.S.C. §§ 1301, 1302, 1303; (2) "conspiracy against rights" in violation of 18 U.S.C. § 241, and (3) violation of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. Petitioner seeks punitive damages, compensatory damages, fourteen years of back pay or trust proceeds, as well as orders vacating his alleged criminal and civil convictions by the Tribe and vacating his banishment from the Tribe. Petitioner also filed a request for the U.S. Attorneys Office to oversee this case. (Doc. No. 82.)

On July 19, 2010, Respondents filed this motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Respondents argue the Amended Petition should be dismissed for the same reasons the Court previously dismissed the original petition in the August 5, 2009 Order.


I. Motion to Dismiss for Lack of Personal Jurisdiction

Respondents move the Court to dismiss the ICRA claims as to Respondent John Magee for lack of personal jurisdiction under Rule 12(b)(2). Respondents assert that because Respondent John Magee is indisputably no longer a member of the Tribal Council, he is not a proper party. The Court agrees.

Petitioner brings his ICRA claims relating to his alleged banishment via a petition for writ of habeas corpus under ICRA, 25 U.S.C. § 1303.*fn3 The ICRA guarantees certain rights that are similar but not identical to those in the Bill of Rights and the Fourteenth Amendment. 25 U.S.C. §§ 1301-1303; Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 881-82 (2d Cir.1996), cert. denied, 519 U.S. 1041 (1996). A petition for writ of habeas corpus under § 1303 is the only avenue for relief for a violation of the ICRA. Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir. 2004). Section 1303 provides, "[t]he 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." 25 U.S.C. § 1303.

As the Court previously noted in its August 5, 2009 Order dismissing the original petition, when a habeas corpus petition fails to name a proper respondent, federal courts lack personal jurisdiction.*fn4 See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). The proper respondent in a federal habeas corpus petition is the petitioner's immediate custodian. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). However, "[a]s the 'custody' requirement has expanded to encompass more than actual physical custody, so too has the concept of a custodian as a respondent in a habeas case." Poodry, 85 F.3d at 899. Therefore, even if a habeas corpus petitioner under § 1303 is not in actual physical custody he may still "'name as respondent someone (or some institution) who has both an interest in opposing the petition if it lacks merit, and the power to give the petitioner what he seeks if the petition has merit--namely, his unconditional freedom.'" Poodry, 85 F.3d at 899 (citation omitted); see also Armentero v. I.N.S., 340 F.3d 1058, 1064 (9th Cir. 2003)) (finding the petitioner had correctly named tribal council members as respondents in § 1303 matter because they were empowered to end the petitioner's restraint by overturning or ceasing to enforce the relevant banishment order).

Here, the Amended Petition names as respondents several enrolled members of the Tribe, who "all are General Members of the Council (Tribal Council) except John Magee." (Amended Petition ¶ 4.) Respondents submit, and Petitioner does not dispute, that only the Tribal Council has the authority to offer Petitioner the requested relief from the alleged "detention and restraint on his liberty." Because Respondent John Magee is not a member of the Tribal Council, he cannot provide Petitioner his requested relief under the ICRA. The ICRA claim is therefore dismissed as to Respondent John Magee.

II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Respondents contend the Court lacks subject matter jurisdiction over Petitioner's claim for habeas corpus. As discussed previously, the substantive guarantees of the ICRA may only be enforced via a writ of habeas corpus under § 1303.

The Ninth Circuit has instructed that federal courts have no jurisdiction to hear a claim for habeas corpus under § 1303 unless both (1) the petitioner is in custody, and (2) the petitioner first exhausts tribal remedies. Jeffredo v. Macarro, 599 F.3d 913, 918 (9th Cir. 2010). For purposes of habeas corpus, a person is in detention or custody when severe restraints are imposed upon the person's liberty. Hensley v. Municipal Court, 411 U.S. 345, 351 (1973). Over the years, courts have expanded the scope of the term "custody" to cover "circumstances [that] fall outside conventional notions of physical custody." Edmunds v. Won Bae Chang, 509 F.2d 39, 40 (9th Cir. 1975). For example, courts have held that permanent banishment constitutes detention. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 879 (2d Cir. 1996) (holding the stripping of petitioners' tribal membership and imposition of a sentence of "permanent banishment" was sufficiently severe to constitute detention for purposes of § 1303).

Here, Petitioner was excluded from the reservation as a result of his attempt to enter the reservation without permission. Respondents submit the "Notice of Exclusion" issued to Petitioner on May 19, 2005, as well as the Tribe's "Exclusion and Eviction Regulations" applicable to non-members. (Declaration of Mark Macarro in Supp. of Mot. to Dismiss ("Macarro Decl."), Exs. 2-3.) Respondents explain that banishment, in contrast to exclusion, is typically a punishment reserved for members of the Tribe. As Respondents argue, the exclusion of Petitioner, a non-member and non-resident of the Tribe, does not constitute a severe restraint upon Petitioner's liberty, so as to be in "detention or custody" for purposes of habeas corpus. See Hensley, 411 U.S. at 351. In fact, Ninth Circuit authority establishes that "[i]n the absence of treaty provisions or congressional pronouncements to the contrary, the tribe has the inherent power to exclude non-members from the reservation." Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 410 (9th Cir. 1976). Petitioner points to no authority to the contrary.

The Ninth Circuit case Petitioner relies on, Jeffredo v. Macarro, 599 F.3d 913, does not compel a different result. In Jeffredo, the petitioners, who were disenrolled as members of the Tribe but still resided on the reservation, were denied access to certain facilities, including the Tribe's senior center, health clinic, and school. Id. at 919. The Ninth Circuit affirmed the dismissal of the petition for habeas corpus under the ICRA, because petitioners did not suffer a "severe actual or potential restraint on liberty to give rise to requisite 'detention.'" Id. The Ninth Circuit noted petitioners had not been banished from the reservation, and had never been arrested, imprisoned, fined, or otherwise held by the Tribe. Id. Thus, Jeffredo is inapplicable to the situation in this case -- specifically, the exclusion of a non-member of the Tribe, who does not reside on the reservation.

Finally, at oral argument, Petitioner asserted the Tribe treated him as a member of the Tribe when it subjected him to criminal proceedings for trespass. However, Petitioner makes no showing that he was subjected to criminal proceedings by the Tribe. According to Respondents, Petitioner was at most only subject to civil proceedings for trespass, which are within the Tribe's jurisdiction. The documents submitted by Respondents in support of the motion to dismiss support their position. In his declaration, Respondent Mark Macarro, Chairman of the Tribe, states the Tribe does not exercise criminal authority, Petitioner has never been subject to any criminal proceeding of the Tribe, and the County of Riverside is responsible for dealing with all crimes committed on the reservation. (Macarro Decl. ¶¶ 18-19). In addition, the May 19, 2005 Notice of Exclusion states that Petitioner's attempts to enter the reservation without permission "constitute trespass and public nuisance within the meaning of those terms as assigned by tribal custom and tradition," and Petitioner is excluded from the reservation as a result. (Macarro Decl., Ex. 3). The Notice of Exclusion, however, does not impose any criminal punishment.

Accordingly, this Court has no jurisdiction to hear Petitioner's claim for writ of habeas corpus under § 1303. Petitioner's claims under the ICRA are therefore dismissed with prejudice.

III. Motion to Dismiss for Failure to State a Claim

A. Conspiracy

In the Amended Petition, Petitioner alleges a "conspiracy against rights" in violation of 18 U.S.C. § 241. Petitioner alleges the Tribal Council conspired to put a moratorium on enrollment so that they could retain control over the Pechanga government. As Respondents argue, however, that statute is a criminal statute that does not provide a private right of action.*fn5 Therefore, Petitioner fails to state a claim under 18 U.S.C. § 241. This cause of action is dismissed with prejudice.

B. Indian Child Welfare Act

The Amended Petition also asserts a claim under the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1901 et seq. Petitioner alleges he "can sue to uphold the enforcement of the Indian Child [W]elfare Act [sic] the court can insert a private right of action." (Amended Petition ¶ 19.) Petitioner alleges he was given up through adoption and has "the right to return and make sure his tribal ties are not terminated." (Amended Petition ¶ 19.) Respondents argue the ICWA does not provide a private right of action against an Indian tribe, provide Petitioner with any "right to return," or abrogate tribal sovereign immunity.

Petitioner cannot state a claim under the ICWA. The purpose of ICWA is to rectify state agency and court actions that result in the removal of Indian children from their Indian communities and heritage. Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005). "'At the heart of ICWA' lies a jurisdictional scheme aimed at ensuring that tribes have a role in adjudicating and participating in child custody proceedings involving Indian children domiciled both on and off the reservation." Id. at 1049. The ICWA contains provisions granting Indian tribes jurisdiction in child custody matters involving Indian children. 25 U.S.C. § 1911. The ICWA also sets out substantive provisions to be applied in pending court cases involving adoption or foster care placement of Indian children or the termination of parental rights. Id. §§ 1915, 1912. In addition, the ICWA allows any Indian child, parent, or Indian custodian to petition the courts to invalidate foster care placement or termination of parental rights under state law. Id. § 1914.

Because none of these situations is applicable here, the Amended Petition fails to state a claim under this statute. This cause of action is therefore dismissed with prejudice.

IV. Petitioner's Request for the Involvement of the U.S. Attorneys

Petitioner's request for the U.S. Attorneys Office to oversee this case, under 25 U.S.C. § 175, is denied. (Amended Petition ¶ 18.) Title 25 U.S.C. § 175 provides: "In all States and Territories where there are reservations or allotted Indians the United States Attorney shall represent them in all suits at law and in equity." The Ninth Circuit, however, has held that this provision is not mandatory. U.S. v. Gila River Pima-Maricopa Indian Cmty., 391 F.2d 53, 56 (9th Cir.1968); see also Siniscal v. U.S., 208 F.2d 406, 410 (9th Cir. 1954). Petitioner asserts he has delivered his request for representation to the U.S. Attorneys Office. It is now in the U.S. Attorney's discretion whether to exercise its authority under the statute. See Salt River PimaMaricopa Indian Cmty. v. Ariz. Sand & Rock Co., 353 F. Supp. 1098, 1099-1100 (D.C. Ariz. 1972).


Accordingly, the Court GRANTS Respondents' motion to dismiss.

1. The Rule 12(b)(2) motion to dismiss the claim for lack of personal jurisdiction is GRANTED WITH PREJUDICE as to Respondent John Magee, with respect to Petitioner's claims under the ICRA.

2. The Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is GRANTED WITH PREJUDICE as to Petitioner's claims under the ICRA.

3. The Rule 12(b)(6) motion to dismiss for failure to state a claim is GRANTED WITH PREJUDICE as to the remainder of Petitioner's claims under 18 U.S.C. § 241 and the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq.

4. Petitioner's request for the U.S. Attorneys Office to oversee this case, under 25 U.S.C. § 175, is DENIED.

The Clerk of Court shall close this case.


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