August 31, 2017 Articles

State Habeas and Tribal Habeas: Identical or Fraternal Twins?

Limits on state habeas to not apply to tribal habeas.

By Barbara Creel and Veronica C. Gonzales-Zamora – August 31, 2017

In law school, you learn about the “great writ,” also known as the writ of habeas corpus. In form, the writ is a petition. In theory, the writ is a civil procedural mechanism by which a state or federal prisoner requests relief and release in a federal court with jurisdiction. See 28 U.S.C. § 2254 (1996) (applying to a person in state custody); 28 U.S.C. § 2255 (2008) (applying to a person in federal custody).

What you likely did not learn is that this civil remedy is also available to Native American Indian prisoners via the Indian Civil Rights Act (ICRA) of 1968, 25 U.S.C. §§ 1301–1304, codified in section 1303 (tribal habeas). Specifically, section 1303 provides that “[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.” Although codified in the Indian provisions of the U.S. Code, the tribal writ of habeas corpus applies to Indians and non-Indians alike. Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976), rev’d on other grounds sub nom., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). This scope of application is not unusual. See, e.g., Violence Against Women Reauthorization Act of 2013, 42 U.S.C. §§ 13925–14045d (2013) (expressly requiring that the courts inform a non-Indian of access to the writ of habeas).

Though parallel in theory, the state and tribal writs have distinct practical applications. See generally Alvarez v. Tracy, 773 F.3d 1011 (9th Cir. 2014), withdrawn and superseded on other grounds sub nom., Alvarez v. Lopez, 835 F.3d 1024 (9th Cir. 2016). See also Tavares v. Whitehouse, 851 F.3d 863, 865 (9th Cir. 2017). The tribal writ, a little-known statute, requires attention to protect the civil rights of Native Americans. 

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