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[86WashLRev0941] Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions

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dc.contributor.author Swift, Mary
dc.contributor.author Washington Law Review
dc.date.accessioned 2011-12-21T16:59:55Z
dc.date.available 2011-12-21T16:59:55Z
dc.date.issued 2011-12
dc.identifier.citation 86 Wash. L. Rev. 941 (2011) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1078
dc.description.abstract Abstract: The Indian Civil Rights Act (ICRA or “the Act”) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: (1) exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; (2) expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; (3) declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and (4) the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Comment en_US
dc.title [86WashLRev0941] Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions en_US
dc.type Article en_US
dc.rights.holder Copyright 2011 by Washington Law Review Association. en_US

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