In United States v. No Runner, case no. 08-30449 (9th Cir. Dec. 30, 2009), the issue is whether a defendant can appeal under the “collateral order doctrine” from an order determining her competent to stand trial, or instead must wait for entry of final judgment to appeal. The court first notes the conditions that satisfy the doctrine:

As a general rule, we have jurisdiction to review only “final decisions of the district courts.” 28 U.S.C. § 1291. “In criminal cases, this rule ordinarily prohibits appellate review until a defendant is convicted and sentenced.” United States v. Friedman, 366 F.3d 975, 978 (9th Cir. 2004). Under the collateral order doctrine, however, a non-final order is appealable if three conditions are satisfied.

First, it “must conclusively determine the disputed question”; second, it must “resolve an important issue completely separate from the merits of the action”; third, it must “be effectively unreviewable on appeal from a final judgment.”

Flanagan v. United States, 465 U.S. 259, 265 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted)).

It doesn’t take long for the court to conclude that the order finding the defendant competent to stand trial satisfies only the second condition. It notes that the ruling does not conclusively determine the disputed question because the issue of competency “remains open throughout the trial, and may be raised by the defendant, or by the court, at any time” under 18 U.S.C. § 4241(a). Regarding the third factor, appellant argued that the right protected by a determination of incompetence is the right to avoid trial entirely, and thus awaiting final judgment before appeal cannot possibly vindicate that right. The court, however, notes the policy of narrowly construing the collateral order doctrine and characterizes the purpose of the competency proceedings as protecting the due process right to a fair trial rather than the right to avoid trial entirely, and thus finds the order of competency effectively reviewable on appeal from a final judgment.

The Pechanga Band of the Luiseño Mission Indians (“Pechanga Tribe”) disenrolled a number of its members (“Appellants”) for failing to prove their lineal descent as members of the Tribe. Federal courts generally lack jurisdiction to consider any appeal from the decision of an Indian tribe to disenroll one of its members. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978). Appellants, therefore, brought this petition for habeas corpus under 25 U.S.C. § 1303 of the Indian Civil Rights Act (“ICRA”), claiming their disenrollment by members of the Pechanga Tribal Council (“Appellees”) was tantamount to an unlawful detention. Despite the novelty of this approach, we nonetheless lack subject matter jurisdiction to consider this claim, because Appellants were not detained. We hold that Appellants cannot bring their claims under § 1303 of the ICRA and therefore affirm the district court.

Give the appellants points for creativity.