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Resources: Habeas Corpus Requirements

Habeas Corpus Requirements

Habeas corpus is a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention.

SEC. 1303. HABEAS CORPUS

The 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. § 1304 (g) Notice; Habeas Corpus Petitions

A participating tribe that has ordered the detention of any person has a duty to timely notify in writing such person of their rights and privileges under this section and under section 1303 of this title.

Some tribes have their own tribal habeas corpus proceedings. This creates another mechanism within the tribal justice system for a defendant to raise concerns about whether their rights have been upheld. VAWA 2022 requires exhaustion of tribal remedies before a defendant can ask a federal court for review of what a tribal justice system has done. This means before going to federal court, someone accused of a crime in a tribal community has to go through all the tribal appeal processes and use the tribal habeas corpus procedure if they want to challenge what happened in tribal court. Tribes who are implementing STCJ should consider drafting a tribal habeas code if they do not already have one. 

Resources, generally

Resources, Tribal Law and Policy Institute

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