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Banishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies a Narrow Reading of the Indian Civil Rights Act

By Randa Larsen. Full Text.

At the heart of this Note is the need to preserve Tribal sovereignty. This Note focuses on a lesser-known issue currently being debated in circuit courts: whether Tribes should be permitted to banish Tribal members from their ranks without submitting to the scrutiny of federal courts.

Recently, there has been a resurgence in banishment discussions in Indian Country. To justify banishment, an individual’s actions must reach the point that they disrupt Tribal cohesion, the Tribe’s overarching cultural identity, and its bylaws. Banishment comes under federal review when banished individuals file a writ of habeas corpus under section 1303 of the Indian Civil Rights Act (ICRA). This provision provides that habeas review shall be available to any person to test the legality of their detention by an Indian Tribe. In 2022, the Tenth Circuit decided Chegup v. Ute Indian Tribe of Uintah & Ouray Reservation, which addressed whether the banishment of a Tribal member counted as “detention” within the meaning of the habeas provision of the ICRA. If the court agreed with the banished Tribal members that banishment constitutes “detention,” then federal courts could impose themselves on issues of Tribal membership. However, if the court agreed with the Tribe that banishment does not include “detention,” then the banished individuals would have no further federal remedy. The Tenth Circuit did not formally rule on this issue, but the court articulated it in a way that highlighted the relevant circuit split and opened the door for future courts to consider the issue.

Chegup also brought to the forefront the debate of Tribal sovereignty versus individual civil rights. This debate comes down to the fact that some individuals feel that they have been unjustly banished and attempt to circumnavigate a Tribe’s sovereign decision-making power regarding membership by seeking a remedy from the federal courts instead. Should the habeas provision of the ICRA be read broadly to include banishment as “detention,” thereby preserving individual civil rights and the individuals’ right to remedy? Or should the provision be read narrowly so as not to include banishment, thereby preserving the critical practice of Tribal sovereignty and Tribal control over membership decisions? This Note argues the latter.

It is reasonable to ask if banishment constitutes a severe restraint on liberty and is subject to habeas review. However, if Tribes do not have control over determining Tribal membership, then their unique sovereign powers are significantly undermined. This must be avoided even if a few banished individuals, while still provided with procedural fairness through the Tribal court process, are left without legal remedy in federal court.