United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on the Petition for Writ of Habeas
Corpus for Relief From a Tribal Court Conviction Pursuant to
25 U.S.C. § 1303 filed by Petitioner, Milton Toya
(“Petition”). (Doc. 1). Also before the Court is
the Answer filed by Respondent Al Casamento, Director,
Sandoval County Detention Center (Doc. 6), which requests
dismissal from this proceeding. The Court will grant
Casamento's request for dismissal. The Court will also
order the joinder of a party required for just adjudication
under Fed.R.Civ.P. 19(a) and grant Petitioner Toya leave to
amend the Petition to identify and join a proper tribal
official as respondent.
Petition, Toya states that he is an enrolled member of the
Pueblo of Jemez, that he was arrested and charged with
Aggravated DUI, and that he was convicted and sentenced to
270 days in jail. (Doc. 1 at 1-2). Petitioner Toya claims
that his conviction and sentence violated his rights to
counsel and a jury trial guaranteed by the Indian Civil
Rights Act. (Doc. 1 at 3-5). Petitioner seeks issuance of a
writ of habeas corpus commanding his immediate release from
custody. (Doc. 1 at 5-6).
Toya named, as Respondents, the Pueblo of Jemez and Al
Casamento, the Director of the Sandoval County Detention
Center. The Court dismissed the Pueblo of Jemez based on
sovereign immunity. (Doc. 3). Respondent Casamento has
requested dismissal on the grounds that, although he has
immediate physical custody of Petitioner, he is not able to
answer on behalf of the Pueblo of Jemez or to afford Toya
relief from the tribal conviction or sentence. (Doc. 6).
Petitioner Toya has responded, arguing that Respondent
Casamento is a proper party under Rumsfeld v.
Padilla, 452 U.S. 426 (2004). (Doc. 8).
tribes are “distinct, independent political
communities, retaining their original natural rights.”
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559
(1832). They are domestic dependent nations that exercise
inherent sovereign authority over their members and
territories. Okla. Tax Comm'n v. Citizen Band
Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509
(1991). The sovereignty of Indian tribes predates the
Constitution and, as a result, Indian Tribes are not subject
to the constitutional restraints that bind the federal
government and the states. See Talton v. Mayes, 163
U.S. 376, 382-84 (1896). However, Congress has primary and
plenary authority over Indian affairs and may impose such
restraints by statute. See Washington v. Confederated
Bands & Tribes of Yakima Indian Nation, 439 U.S.
4663, 470-471 (1979).
exercise of its plenary authority, Congress has enacted the
Indian Civil Rights Act (“ICRA”), 25 U.S.C.
§§ 1301, et seq. The ICRA extends certain
constitutional rights to members of Indian tribes.
See 25 U.S.C. § 1302. The ICRA also grants the
privilege of the writ of habeas corpus to test the legality
of detention by order of an Indian tribe. 25 U.S.C. §
1303. Jurisdiction over habeas corpus proceedings under the
ICRA is vested in the courts of the United States. 25 U.S.C.
1303; Santa Clara Pueblo v. Martinez, 436 U.S. 49,
69-72 (1978). Indian tribes, however, retain their sovereign
immunity and cannot be sued for habeas corpus relief under
the ICRA. Instead, § 1303 authorizes a civil habeas
corpus action against tribal officers. Santa Clara
Pueblo, 436 U.S. at 60.
habeas corpus proceeding, the custodian or official having
immediate physical custody of the petitioner is a proper
party to the proceeding. See Rumsfeld v. Padilla,
452 U.S. at 442-43. However, where the petition collaterally
attacks the petitioner's tribal conviction and sentence,
rather than the manner in which the detention is being
carried out, the immediate physical custodian may lack the
authority to afford the relief requested by the petitioner.
In these circumstances, the proper respondent is not
necessarily the person with immediate physical custody but,
instead, the official with authority to modify the tribal
conviction or sentence. Poodry v. Tonawanda Band of
Seneca Indians, 85 F.3d 874, 899-900 (2nd
Cir. 1996). The Poodry court stated:
“The petitions also name as respondents the tribal
officials allegedly responsible for issuing the banishment
orders in this case. The respondents do not claim that tribal
immunity bars actions against tribal officers for writs of
habeas corpus. We note only that the individual respondents
can be properly thought “custodians” of the
petitioners, despite the fact that the petitioners, though
restrained, are not in physical custody. As 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. In examining
who the proper respondent would be in a case involving a
petitioner free on bail prior to a possible retrial, the
Seventh Circuit has observed that ‘[a] person released
on his own recognizance is usually considered to be in his
own custody; a person released after posting bail is usually
considered to be in either his lawyer's custody or the
bondsman's custody. But it would be odd to make any of
these the respondent in a habeas corpus action.... ....
The truth is that no one has custody of a person who is out
on bail but that the Supreme Court has decided that such a
person should be allowed to seek unconditional freedom
through an action for habeas corpus despite the absence of a
custodian. The important thing is not the quest for a
mythical custodian, but that the petitioner 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.'
The individual respondents surely fit this description-they
have an interest in opposing the petitions, as well as the
ability to lift the banishment orders should the petitions be
found on remand to have merit.”
Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d
at 899-900 (quoting Reimnitz v. State's Attorney of
Cook County, 761 F.2d 405, 408-09 (7th Cir.1985)).
the only named respondent is the immediate physical custodian
of the prisoner, full relief cannot be granted because an
order to the custodian directing release of the prisoner does
not modify or vacate the underlying tribal conviction in the
absence of a tribal official. The petitioner must name as a
respondent a tribal official 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 v.
Tonawanda Band of Seneca Indians, 85 F.3d at 899-900;
Fed.R.Civ.P. 19(a). See, also, Settler v. Yakima Tribal
Court, 419 F.2d 486 (9th Cir. 1969),
abrogated on other grounds, Moore v. Nelson, 270
F.3d 789, 791-92 (9th Cir. 2001) (concluding that
a tribal court or judge is an appropriate respondent in a
habeas proceeding testing the validity of a tribal conviction
case, the immediate physical custodian, Respondent Al
Casamento, states that he lacks the authority to alter
Petitioner Toya's conviction or sentence and, therefore,
the authority to afford the relief Toya seeks if a writ of
habeas corpus is issued by this Court. (Doc. 6). In
opposition to the request for dismissal by Respondent
Casamento, Petitioner Toya cites to two prior cases in this
Court, No. CV 16-01404 RB/WPL and No. CV 16-01405 RB/LF where
the Court concluded that Respondent Casamento was the proper
respondent. However, in both of those cases, when the Pueblo
was dismissed based on sovereign immunity, neither party
raised the issue of whether a tribal official was necessary
to afford complete relief and, instead, the Pueblo gave
Respondent Casamento both documentation and an affidavit of a
tribal official. See, e.g., No. CV 16-1404 RB/WPL
Doc. 6. In both cases, the parties should have raised, but
did not raise, the necessary party issue with the Court.
See Fed. R. Civ. P. 12(b)(7) and (h)(2).
Toya originally named the Pueblo of Jemez as a respondent,
but the Pueblo was dismissed based on sovereign immunity.
(Doc. 3). Unlike prior cases, Respondent Casamento has raised
the necessary party issue in his Answer, pleading that he has
not been given the authority or information to respond. (Doc.
6). Therefore, in its present posture, the Court cannot
afford complete relief in the absence of joinder of an
appropriate tribal official. Fed.R.Civ.P. 19(a). The Court
will order Petitioner Toya to identify and join, as
respondent, a tribal official with authority to both oppose
the petition if it lacks merit and to grant Petitioner the
relief he requests if ordered to do so by the Court.
Fed.R.Civ.P. 19(a). If an amended petition naming an
appropriate tribal official as respondent is not filed within
thirty (30) days of entry of this Memorandum Opinion and
Order, the Court may dismiss this case under the provisions
of Fed. R Civ. P. 19(b).
that the motion to dismiss filed by Respondent Al Casamento
(Doc. 6) is GRANTED and Al Casamento, Director, Sandoval
County Detention ...