United States District Court, D. Colorado
ORDER GRANTING 25 U.S.C. § 1303
A. BRIMMER UNITED STATES DISTRICT JUDGE
Harrison Cheykaychi has filed, through counsel, a Petition
for Writ of Habeas Corpus Pursuant to 25 U.S.C. §1303
and 28 U.S.C. § 2241 [Docket Nos. 1-1, 4]. Petitioner
asserts that his tribal court convictions were obtained in
violation of his rights under the Indian Civil Rights Act
(“ICRA”), at 25 U.S.C. § 1302.
FACTUAL AND PROCEDURAL BACKGROUND
is a member of the Pueblo of Kewa (formerly known as the
Pueblo of Santo Domingo) (“Tribe”), a federally
recognized Indian Tribe in New Mexico. See 82 Fed.
Reg. 4915-02 (Jan. 17, 2017). Petitioner alleges that he was
arrested on September 17, 2016 within the external boundaries
of the reservation and charged with five separate offenses
arising from his exchange with the Tribal Police that
morning. Docket Nos. 1-1, 1-3. Petitioner alleges that during
a September 19, 2016 hearing, he was coerced by threats from
the Tribal Court to plead guilty to criminal trespass,
assault on a tribal officer, and terroristic threats, in
exchange for the Tribe's promise that it would drop the
charges of eluding, intoxication, and disorderly conduct and
that he would receive a two and one-half year sentence.
Docket No. 1-1. Petitioner states that he was not appointed
counsel at the hearing or afforded the opportunity to retain
counsel. Id. He was taken into custody immediately
after the sentencing and was eventually transferred to the
San Ignacio Detention Center in Colorado. Id. at 5.
2, 2017, Petitioner, through counsel, filed a Petition for
Writ of Habeas Corpus Pursuant to 25 U.S.C. § 1303 and
28 U.S.C. § 2241 against Respondent and Kewa Pueblo in
the District Court for the District of New Mexico, No.
17-cv-00514-KG-GBW, asserting that the tribal court
convictions were obtained in violation of the ICRA. Docket
Nos. 1-1, 4. Petitioner asks the Court to deem his tribal
court conviction(s) invalid and to order Respondent to
release him from custody.
9, 2017, the District of New Mexico issued an order
dismissing the Kewa Pueblo based on sovereign immunity.
Docket No. 1-5 at 1. In a July 5, 2017 Memorandum Opinion and
Order of Transfer, the District of New Mexico transferred the
Petition to this Court pursuant to 28 U.S.C. § 1361 and
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004),
because Petitioner was confined in a Colorado detention
facility. Docket No. 1. The case was filed in this Court on
July 7, 2017. Docket No. 1.
August 22, 2017, the Court issued an order directing
Respondent Geisen to show cause why the § 1303 Petition
should not be granted. Docket No. 13. On September 21, 2017,
Respondent filed a Response in which he represented that, as
the mere physical custodian of Petitioner, he was unable to
address the merits of Petitioner's ICRA claims
challenging the validity of his tribal court convictions or
afford any relief beyond Petitioner's release from
custody. Docket No. 15. Respondent maintained that one or
more tribal officials are necessary parties to this action.
December 28, 2017, pursuant to the parties' joint motion,
Petitioner was released from custody, under terms of
supervision, pending final disposition of the Petition.
See Docket No. 25.
September 6, 2018, the Court issued an order directing
Respondent to contact the proper tribal official(s) to obtain
their position as to the merits of the ICRA claims raised in
the Petition and to file a status report within 30 days.
Docket No. 27. See Santa Clara Pueblo v. Martinez,
436 U.S. 49, 60 (1978) (recognizing that the ICRA authorizes
habeas corpus relief against tribal officers); Poodry v.
Tonawanda Band of Seneca Indians, 85 F.3d 874, 899-900
(2d Cir. 1996) (concluding that tribal officials are
appropriate respondents to a § 1303 petition because
they have an interest in opposing the petition or granting
the requested relief).
filed a status report on October 5, 2018, in which he states
Undersigned counsel contacted counsel for the tribe on
September 13, 2018, and received the following response on
October 3, 2018:
No one from the Santo Domingo Tribe will be entering an
appearance or contesting the claims in Mr. Cheykaychi's
Petition for Writ of Habeas Corpus. Please note however, that
Mr. Cheykaychi remains subject to the Tribe's 2011
Banishment Order (attached), which was not challenged in Mr.
Cheykaychi's Petition, so he should not be released at
the Pueblo, or allowed to enter the Pueblo without the prior
consent of the Tribe.
Thus, the proper tribal officials do not intend to contest
Petitioner's claims or join as parties to the action. Nor
have they requested or authorized Respondent to contest the