Back to the Indian Law Bulletins

(Cite as: 2007 WL 174384)

United States District Court, D. Connecticut.

Neorck COLEBUT, Petitioner,



No. 3:05CV00247 (DJS).

Jan. 19, 2007.


Neorck Colebut, Enfield, CT, pro se.

Elizabeth Conway, Brown Jacobson, Norwich, CT, for Respondent.


DOMINIC J. SQUATRITO, United States District Judge.

*1 On February 8, 2005, Petitioner Neorck Colebut (?Petitioner?) filed with the court a petition challenging his temporary banishment by Respondent Mashantucket Pequot Tribal Nation Tribal Elders Council (?Respondent?) from the Mashantucket Pequot Tribal Nation (?the Tribe?) and seeking a writ of habeas corpus directing the reinstatement of his former status as a member of the Tribe. (See Dkt. # 1.) Respondent moved to dismiss Petitioner's claims. (See dkt. # 5.) On June 9, 2006, the court granted Respondent's motion and dismissed the petition without prejudice. (See dkt. # 10.) Now pending before the court is Petitioner's Motion to Re-Open[ ] (dkt.# 12). For the following reasons, Petitioner's motion to re-open is DENIED.

Petitioner claims that the Order of Temporary Banishment issued on December 17, 2003 by Respondent, which ?temporarily banished [Colebut] from the Mashantucket Pequot Tribal Reservation and/or other lands of the Mashantucket Pequot Tribe under the suspicion of possession of illegal drugs on the reservation? and declared Colebut's forfeit of ?all rights and privileges of tribal membership? save health care, violated his rights under Title I of the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303.FN1 On May 23, 2005, Respondent moved to dismiss (dkt.# 5), claiming that this court lacked subject matter jurisdiction over the petition and that, because Petitioner had not exhausted his tribal remedies, the court should abstain from exercising jurisdiction under the tribal exhaustion doctrine established by the Supreme Court. On June 9, 2006, the court, finding that Petitioner had not exhausted his available remedies, granted Respondent's motion. (See dkt. # 10.)


FN1. As discussed in more detail below, the court shall construe Petitioner's claims as arising from the U.S. Constitution and tribal law as well.

The dismissal of Petitioner's petition was, however, without prejudice. In the June 9, 2006 order, the court granted Petitioner leave to re-open this case at a later date so long as he obtained a final determination of his membership rights from Respondent and filed (1) a motion to re-open this proceeding, and (2) an amended petition for a writ of habeas corpus within thirty (30) days of that final determination from Respondent. In addition, the court ordered Petitioner to name those individual members of the Tribe who imposed the punishment as respondents to his amended petition.

On November 11, 2006, Petitioner filed his Motion to Re-Open[ ] (dkt.# 12), in which he seeks permission to re-open his case. Attached to this motion is a document titled ?Amended Complaint.? In the Amended Complaint, Petitioner alleges the following: On December 17, 2003, Petitioner was ?temporarily banned? from the Tribe by Respondent. The reason alleged for this temporary banishment was that Petitioner was under ?suspicion of possession of illegal drugs on the Reservation.? The result of the temporary banishment was that Petitioner ?forfeit[ed] all rights and privileges of tribal membership,? except for health services. Petitioner claims that this temporary banishment violated his ?Substantive Rights.? On January 27, 2006, the Tribe's court prosecutor withdrew the charge of suspicion of possession of illegal drugs, and on March 29, 2006, Respondent lifted Petitioner's temporary banishment and reinstated him back into the Tribe. After his reinstatement back into the Tribe, Petitioner requested that he receive his ?Incentive Back Pay for the time he was banished.? On September 13, 2006, Respondent denied Petitioner's request for such back pay.

*2 In his Amended Complaint, Petitioner claims that his ?Indian Civil Rights? of due process and equal protection under the Constitution of the United States and the laws of the Tribe were violated by Respondent's decision to uphold the stipulations of Petitioner's temporary banishment until Petitioner's reinstatement. Petitioner also claims that his temporary banishment, based on a suspicion of his possession of illegal drugs, was not a punishment allowed under the Tribe's law, thus constituting an ?ex post facto law? in violation of United States law. In addition, Petitioner maintains that Respondent's decision to temporarily banish him was ?arbitrary and capricious? and amounted to ?cruel and unusual punishment.? Petitioner thus requests that he be reinstated ?to his Status Quo,? which the court liberally construes as meaning that Petitioner wants both full status as a Tribe member and ?incentive back pay? for the time he was banished.

The issue now before the court is whether to allow Petitioner to re-open this case. Respondent opposes the reopening of this case, asserting that Petitioner's motion is untimely, and that the court lacks jurisdiction over the claims in Petitioner's Amended Complaint. For a variety of reasons, which the court shall set forth in detail below, the court agrees with Respondent that this case should not be re-opened.

As an initial matter, the court points out that Petitioner's Amended complaint does not comply with the requirements of the court's June 9, 2006 order. The court instructed Petitioner that, if he wanted to re-open this case, he must file an amended petition within thirty (30) days of a final determination from Respondent regarding his membership status. Yet, unbeknownst to the court when it issued the June 9, 2006 order, Petitioner had already received a final determination regarding his membership status. On March 29, 2006, Respondent had lifted Petitioner's temporary banishment and reinstated him into the Tribe, meaning that Petitioner had a final determination of his membership status in the Tribe before the court issued the June 9, 2006 order. Petitioner did not inform the court of this final determination until he filed this motion to re-open on November 16, 2006. Even if the court were to liberally construe its June 9, 2006 order as allowing Petitioner to file his motion to reopen within thirty days after the order was issued, Petitioner's motion is untimely, having been filed approximately four months later than the court instructed.

Petitioner has failed to comply with the court's June 9, 2006 order in another way as well. In the order, the court stated that Petitioner ?must also name the individual Tribe members who have imposed the punishment of which he seeks review as respondents to his amended petition.? (Dkt.# 10.) Petitioner has not complied with this directive. In the Amended Complaint, Petitioner lists only the ?Mashantucket Pequot Tribal Nation Elders Council? as the defendant. Petitioner has failed to follow the instructions in the court's June 9, 2006 order, and this failure precludes his case from being re-opened.

*3 The court next points out that the substantive claims Petitioner sets forth are either moot or futile. In his initial petition, Petitioner moved, pursuant to Title I of the Indian Civil Rights Act of 1968 (?ICRA?), 25 U.S.C. §§ 1301-1303, for ?an Order of Reinstatement,? seeking reinstatement back into the Tribe and ?retro-active privileges and benefits from the date of banishment.? The court construed this action primarily as a petition for a writ of habeas corpus. (See dkt. # 10.) Because the ICRA 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,? 25 U.S.C. § 1303, the court found that Petitioner had set forth a colorable claim over which the court had subject matter jurisdiction, (see dkt. # 10). In addition, as the Court of Appeals for the Second Circuit has held, a permanent banishment from an Indian tribe may amount to a sanction triggering the protection of the writ of habeas corpus. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894-98 (2d Cir.1996).FN2 Here, however, Petitioner's banishment, which was temporary, has been lifted, and Respondent has reinstated Petitioner into the Tribe. That is, Petitioner's desire for reinstatement into the Tribe has already been fulfilled without this court's intervention. Therefore, Petitioner's request for reinstatement into the Tribe is moot, and there is no reason to re-open this case on that point. Consequently, Petitioner's motion to re-open, insofar as Petitioner's Amended Complaint requests that Petitioner be reinstated into the Tribe, is denied.


FN2. As the Second Circuit stated in Poodry, ?a petition for a writ of habeas corpus is not properly a suit against the sovereign....? Poodry, 85 F.3d at 899 (holding that Tonawanda Band Indian tribe was not a proper respondent in a habeas action under § 1303). It was for this reason that the court ordered Petitioner to name individual Tribe members in his amended petition.

Petitioner has also claimed that he is entitled to money owed to him by the Tribe. Petitioner's claims, though, insofar as they seek money damages based upon the ICRA, are not appropriate. ?Although Title I of ICRA lists a number of substantive rights afforded to individuals that serve to restrict the power of tribal governments, see 25 U.S.C. § 1302, Title I does not establish or imply a federal civil cause of action to remedy violations of § 1302.? Shenandoah v. U.S. Dept. of Interior, 159 F.3d 708, 713 (2d Cir .1998). ?Title I of the ICRA identifies explicitly only one federal court procedure for enforcement of the substantive guarantees of § 1302.? Id. (internal quotation marks omitted). That federal court procedure-a habeas petition-?is the only avenue for relief from a violation of ICRA.? Boozer v. Wilder, 381 F.3d 931, 394 n. 2 (9th Cir.2004) (emphasis added); see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 51-52, 67-70 (1978).


?A writ of habeas corpus functions to grant relief from unlawful custody or imprisonment and must be sought against the authority that has custody of the petitioner.? Bell v. I.N.S, 292 F.Supp.2d 370, 373 (D.Conn.2003). ?Habeas relief does address more than actual physical custody, and includes parole, probation, release on one's own recognizance pending sentencing or trial, and permanent banishment.? Shenandoah, 159 F.3d at 714. Nevertheless, the Second Circuit has held that a writ of habeas corpus is not warranted in situations where tribe memebers claim that they

*4 were suspended or terminated from employment positions, lost their ?voice[s]? within the [tribe's] governing bodies, lost health insurance, were denied admittance into the [tribe's] health center, lost quarterly distributions paid to all [tribe] members, were banned from various businesses and recreational facilities such as the casino, ... park[s], [and] the gym, ... were stricken from [tribe] membership rolls, were prohibited from speaking with a few other [tribe] members, and were not sent [tribe] mailings,

Id. If the tribe members have ?not alleged that they were banished from the [tribe], deprived of tribal membership, convicted of any crime, or that defendants attempted in anyway to remove them from [tribal] territory .... [they] have not alleged a severe actual or potential restraint on [their] liberty....? Id. (internal quotation marks omitted). Even in situations where habeas relief may be warranted, ?habeas corpus does not provide for money damages.? Jenkins v. Haubert, 179 F.3d 19, 24 (2d Cir.1999) (emphasis added).

Although the ICRA affords to individuals a number of substantive rights that serve to restrict the power of tribal governments, it permits federal courts to issue writs of habeas corpus only. As the court has stated above, insofar as Petitioner requests to be reinstated into the Tribe, his habeas petition brought under the ICRA is moot, and this case need not be re-opened on that account. Because money damages are not available through writs of habeas corpus, the ICRA does not provide to Petitioner the means with which he may pursue his claims for money damages in federal court. Thus, insofar as Petitioner may be using § 1303 to obtain money damages, either from back-pay owed to him or from violations of the rights listed in the ICRA, such a use of § 1303 is impermissible. Petitioner has not alleged any other ?severe actual or potential restraint? on his liberty that would trigger habeas relief under the ICRA. Therefore, the court shall not allow Petitioner to re-open this matter based upon the ICRA. Consequently, Petitioner's motion to re-open, insofar as his claims are based on the ICRA, is denied.

From Petitioner's submissions, the court can glean that Petitioner also wishes to allege violations of: (1) the U.S. Constitution, namely, that his Fourteenth Amendment substantive due process and equal protection rights were violated, that the constitutional prohibition against ex post facto laws was violated, and that he was subject to ?cruel and unusual? punishment; and (2) tribal law, although Petitioner is not clear as to under which tribal law he wishes to bring his claims.FN3 The court finds, however, that, although Petitioner could rely upon the U.S. Constitution to establish federal question jurisdiction, allowing him to re-open this case based on these claims would be fruitless. The court also finds that it lacks jurisdiction over Petitioner's claims insofar as they are based upon internal tribal law.


FN3. Upon reading the original petition, the court is uncertain as to whether Petitioner intended to bring this action pursuant to the U.S. Constitution and the laws of the Tribe, as he only cites to the ICRA as the basis for his claim. In his proposed Amended Complaint, however, Petitioner mentions the Fourteenth Amendment and tribal law, both of which he clearly would like use as bases for his claims. In light of the facts alleged in the original petition, the court shall give Petitioner the benefit of the doubt and assume that his petition was also brought under the U.S. Constitution and tribal law.

*5 First, the court notes that ?Indian tribes enjoy the same immunity from suit enjoyed by sovereign powers. ...? Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir.2004). This immunity applies to Indian tribes and their governing bodies. See Poodry, 85 F.3d at 898. ?As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.? Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998). ?To abrogate tribal immunity, Congress must ?unequivocally? express that purpose.? C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418 (2001). ?Similarly, to relinquish its immunity, a tribe's waiver must be ?clear.? ? Id. ?[T]he [habeas] provisions of [the ICRA, 25 U.S.C. § 1303,] can hardly be read as a general waiver of the tribe's sovereign immunity.? Poodry, 85 F.3d at 898. The Mashantucket Pequot Tribe is a federally recognized Indian tribe. See 25 U.S.C. § 1758; Chayoon, 355 F.3d at 143. There is no indication that abrogation or waiver has occurred in this case. Respondent is thus not subject to Petitioner's suit, which makes re-opening Petitioner's case futile.

Second, the court points out that ?[t]he protections of the United States Constitution are generally inapplicable to Indian tribes, Indian courts and Indians on the reservation.? United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001) (emphasis added) .FN4 ?As a matter of substantive law ... the ICRA and not the U.S. Constitution is the source of the rights.? Akins v. Penobscot Nation, 130 F.3d 482, 486 (1st Cir.1997). ?With the exception of petitions for habeas corpus relief, Congress did not intend in the ICRA to create implied causes of action to redress substantive rights in federal court.? Id. In fact, ?such claims of violations of civil rights [under the ICRA] must be heard in the tribal courts, not in the federal courts.? Id. (emphasis added). To re-open Petitioner's case so that he could bring allegations of Respondent's violations of the U.S. Constitution would be an exercise in futility because this court would lack jurisdiction over such claims. If Petitioner wishes to pursue his due process, equal protection, ex post facto, or cruel and unusual punishment claims (which must be brought pursuant to the ICRA, not the U.S. Consitution), he should do so in the appropriate tribal court.


FN4. The Fourteenth Amendment states that ?No State ... shall deprive any person of life, liberty or property, without due process of law; nor deny to any person ... the equal protection of the laws.? U.S. Const. amend. XIV § 1 (emphasis added). With regard to ex post facto laws, the U.S constitution states that ?No ex post facto law shall be passed [by Congress],? Id., Art. I, § 9, cl. 3, and that ?No State shall ... pass any ex post facto Law....?, Id. Art. I, § 10 (emphasis added). The Eighth Amendment prohibits the federal and State governments from inflicting ?cruel and unusual punishments.? Id. amend. VII; see Wilson v. Seiter, 501 U.S. 294, 296 (1991) (stating that Eighth Amendment ?applies to the States through the Due Process Clause of the Fourteenth Amendment?). Petitioner's allegations implicate these constitutional provisions, but the provisions apply to the States and the U.S. Government. The court points out that ?Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate.? MacArthur v. San Juan County, 309 F.3d 1216, 1224 (10th Cir.2002) (internal quotation marks omitted). Indeed, Indian tribes are ?exempt[ ] ... from constitutional provisions addressed specifically to State or Federal Governments.? Santa Clara Pueblo, 436 U.S. at 56 n. 7.

Third, with regard to the adjudication of internal tribal laws, this court does not have jurisdiction. ?Jurisdiction to resolve internal tribal disputes [and] interpret tribal constitutions and laws ... lies with Indian tribes and not in the district courts.? Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832, 835 (8th Cir.2006) (internal quotation marks omitted). ?Civil jurisdiction over tribal-related activities presumptively lies in tribal courts unless a specific treaty provision or federal statute affirmatively limits the jurisdiction.? Hall v. Babbitt, 208 F.3d 218, 2000 WL 268485, at *1 (8th Cir.2000) (unpublished table decision) (citing Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987)). There is no indication here of a federal treaty or statute that grants this court civil jurisdiction over the Tribe's laws. The court shall not re-open this case so that Petitioner can assert claims based upon internal tribal laws over which the federal district courts lack jurisdiction. Again, if Petitioner wishes to bring claims based upon the Tribes internal laws, he must do so in the appropriate tribal court.

*6 Consequently, Petitioner's motion to re-open, insofar as his claims are based upon the U.S. Constitution and tribal law, is denied.



For the foregoing reasons, Petitioner's Motion to Re-Open[ ] (dkt.# 12) is DENIED, and this file shall remain closed. If Petitioner wishes to pursue claims under the ICRA or tribal law for monetary damages, he may bring suit in the appropriate tribal court.

So ordered this 19th day of January, 2007.