United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 22]
JOHN
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT.
I.
MOTION PRESENTED
At
docket 22 defendants Traditional Village of Togiak
(“Tribe”) and Jimmy Coopchiak, Teodoro Pauk,
Leroy Nanalook, Anecia Kritz, Esther Thompson, John Nick,
Willie Wassillie, Herbert Lockuk, Jr., William Echuck, Craig
Logusak, Paul Markoff, Peter Lockuk, Sr., and Bobby Coopchiak
(collectively “individual defendants”) move to
dismiss the complaint filed by plaintiff Ronald Oertwich
(“Plaintiff”) pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6). Plaintiff responds at docket 31, and the Tribe
and the individual defendants reply at docket at docket 38.
II.
BACKGROUND
Plaintiff
filed a complaint seeking declaratory and injunctive relief
plus compensatory and punitive damages naming the Tribe, the
individual defendants, the State of Alaska Department of
Public Safety and the City of Togiak as
defendants.[1]Plaintiff's nine claims for relief are
rooted in the fact that the Tribe banished him from Togiak on
the grounds that he brought alcohol into the village and
Plaintiff nevertheless returned to the village. The court
granted the City of Togiak's motion to dismiss
Plaintiff's claim for punitive damages against
it.[2]
The court also granted the motion by the State of Alaska
Department of Public Safety to dismiss Plaintiff's claims
against it.[3]
The
Tribe and the individual defendants contend that this court
lacks jurisdiction to entertain Plaintiff's claims
against them because they are entitled to sovereign immunity,
and because there are other insurmountable impediments to
Plaintiff's claims against them.
III.
STANDARDS OF REVIEW
A.
Rule 12(b)(1)
Under
Federal Rule of Civil Procedure 12(b)(1), a party may seek
dismissal of an action for lack of subject matter
jurisdiction. “A federal court has subject matter
jurisdiction over an action that either arises under federal
law, or when there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75, 000.”[4] When a defendant challenges subject matter
jurisdiction under Rule 12(b)(1), “the plaintiff has
the burden of proving jurisdiction in order to survive the
motion.”[5]
B.
Rule 12(b)(6)
Rule
12(b)(6) tests the legal sufficiency of a plaintiff's
claims. In reviewing such a motion, “[a]ll allegations
of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving
party.”[6] To be assumed true, the allegations,
“may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.”[7] Dismissal for failure to
state a claim can be based on either “the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”[8] “Conclusory
allegations of law . . . are insufficient to defeat a motion
to dismiss.”[9]
To
avoid dismissal, a plaintiff must plead facts sufficient to
“‘state a claim to relief that is plausible on
its face.'”[10] “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct
alleged.”[11] “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”[12] “Where a complaint pleads facts
that are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.'”[13] “In sum, for a complaint to
survive a motion to dismiss, the non-conclusory
‘factual content,' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.”[14]
C.
Qualified Immunity
“The
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'”[15] “Qualified immunity gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions, ” and
protects “all but the plainly incompetent or those who
knowingly violate the law.”[16] Qualified immunity
requires a two-part analysis: (1) was there deprivation of a
statutory or constitutional right; and (2) was the right
clearly established at the time of the alleged
misconduct.[17] Courts may 'exercise their sound
discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
hand.”[18]An official's challenged conduct
violates clearly established law if at the time of the
conduct the “contours of the right were sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.”[19]
IV.
DISCUSSION
Sovereign
Immunity
The
principal argument offered in support of the motion to
dismiss pursuant to Rule 12(b)(1) is that the Tribe and the
individual defendants are entitled to sovereign immunity,
because the Tribe is a federally recognized tribe and the
individual defendants were acting as officers and employees
of that sovereign. Plaintiff does not dispute that the Tribe
and the individual defendants acting in their official
capacities on behalf of the Tribe may claim sovereign
immunity. Rather, Plaintiff contends that there are
exceptions to the application of sovereign immunity that
foreclose reliance on that doctrine here.
Plaintiff
contends that his claims sound in tort and that tribal
sovereign immunity does not apply to tort claims. He relies
on a decision by the Supreme Court of Alabama in Wilkes
v. PCI Gaming Authority[20] holding that sovereign
immunity does not bar tort claims brought by non-Indian
plaintiffs. That case is not binding precedent in this court.
Plaintiff asserts that the fact that the Supreme Court
decided not to grant certiorari when the tribe
appealed[21] may be relied upon as an expression of
the Supreme Court's view that the Alabama court's
decision is correct. As even a first year law student should
know, the denial of a petition for certiorari does not
constitute a decision on the merits by the Supreme Court.
There
is binding precedent respecting Plaintiff's assertion of
an exception to sovereign immunity for tort claims. In
Arizona v. Tohono O'odham Nation[22] the appellate
court addressed a complicated dispute about the right of one
Indian tribe to operate a casino on a particular parcel of
land. The state of Arizona and another Indian tribe argued
that the Tohono O'odham Nation (“Nation”)
could not operate a casino on that parcel. The case turned
primarily on interpretation of a gaming compact executed by
the state and the Nation pursuant to the Indian Gaming
Regulatory Act and on the status of the parcel of land
proposed for the casino. However, the defendants also made
tort claims against the Nation. The appellate court held that
the plaintiffs' claims for fraud in the inducement,
material misrepresentation, and promissory estoppel were not
contract claims, but rather tort claims. It further held that
the tort claims were barred by tribal sovereign immunity,
writing: “We have held that tribal sovereign immunity
bars tort claims against an Indian tribe, and that remains
good law.”[23]
Plaintiff
also contends that his lawsuit somehow involves issues
relating to land titles in or around the City of Togiak. From
this premise, Plaintiff reasons that the “immovable
property exception” precludes the use of tribal
sovereign immunity. Plaintiff points to the decision by the
Supreme Court in Upper Skagit Indian Tribe v.
Lundgren.[24]In the Skagit case, the
defendant, Lundgren, owned a parcel of land within the
tribe's reservation. Lundgren's property was fenced,
but the tribe argued that the fence enclosed about an acre of
reservation land which was not part of Lundgren's parcel.
Lundgren had prevailed in the Washington Supreme Court, but
that court had relied on an erroneous interpretation of
County of Yakima v. Confederated Tribes and Bands of the
Yakima Nation.[25] The Washington court read the
Yakima case to say that tribes may be sued on in
rem claims, but not on in personam claims. The
Skagit court explained that the Yakima
decision involved a question of statutory interpretation and
“resolved nothing about sovereign
immunity.”[26] The Skagit majority concluded
that the case should be remanded to state court to afford the
state court an opportunity to address the sovereign immunity
issues involving the immovable property exception.
Concurring, Chief Justice Roberts agreed that the immovable
property exception issue should be remanded. However, he
warned that “if it turns out that the rule does not
extend to tribal assertions of rights in non-trust,
non-reservation property, the applicability of sovereign
immunity in such circumstances would, in my view, need to be
addressed in a future case.”[27] Justice Thomas dissented
contending that the Court itself should address the immovable
property exception. The Washington court did not have an
opportunity to address the immovable property exception,
because following remand the tribe quit claimed the disputed
real estate to Lundgren.
While
the contours of the exception as it might apply to tribal
sovereign immunity remain unclear, it is clear that the
exception relates to claims about real estate.
Plaintiff's first claim is based on allegedly ultra vires
acts by the Tribe and the individual defendants.
Plaintiff's second claim alleges that the search and
seizure of his personal property, along with his subjection
to the jurisdiction of the tribal court, his arrest and
imprisonment, and his banishment violated the Indian Civil
Rights Act ('ICRA”). The third claim alleges that
the actions complained about in the second claim violated the
Civil Rights Act of 1964. Plaintiff's last three claims
against the Tribe and the individual defendants are a false
imprisonment claim, a battery claim, and an intentional
infliction of emotional distress claim. None of these claims
relates to real estate. They are tort and civil rights
claims. The immovable property exception cannot be used to
defeat tribal sovereign immunity here.
Plaintiff
contends that because one of the remedies he seeks is an
injunction to protect him from future acts by the Tribe and
the individual defendants, they cannot rely on tribal
sovereign immunity. Plaintiff cites Oklahoma Tax
Commission v. Citizen Band Potawatomi Indian Tribe of
Oklahoma.[28] There, the Court held that tribal
sovereign immunity prevented Oklahoma from taxing the
tribe's sale of cigarettes on reservation land to tribal
members, but that it could tax such sales to non-members of
the tribe. The decision was applicable to future cigarette
sales, leading Justice Stevens to write in his concurring
opinion that “a tribe's sovereign immunity from
actions seeking money damages does not necessarily extend to
actions seeking equitable relief.”[29] Plaintiff
cites no other authority. He advances no explanation why in
the case at bar the request for an equitable remedy
“necessarily” overcomes the Tribe and individual
defendants' reliance on tribal sovereign immunity. This
court does not read Potawatomi to establish a rule
of law that would allow Plaintiff to avoid tribal sovereign
immunity here.
Plaintiff
also argues that the Tribe's acceptance of federal
funding constitutes a waiver of sovereign immunity. Plaintiff
cites Santa Clara Pueblo v. Martinez.[30] That decision
does not support Plaintiff's argument. In that case, a
female member of the tribe advanced a claim against the tribe
alleging that a tribal rule denying membership to her child
who was fathered by a non-tribal member violated the ICRA.
The Court held that the ICRA did not waive the tribe's
sovereign immunity. In its discussion the Court reiterated
the settled proposition that waivers of sovereign immunity
may not be implied: they must be expressed
unequivocally.[31] Of direct relevance to Plaintiff's
argument, Santa Clara Pueblo did not include any
discussion of federal funding given to the tribe. Moreover,
there is considerable case law which recognizes that
accepting federal funds does not constitute a waiver of
sovereign immunity.[32]
Based
on the preceding discussion, the court concludes that all of
Plaintiff's claims against the Tribe and the individual
defendants acting in their official capacities as officers
and employees of the Tribe are barred by the doctrine of
tribal sovereign immunity. Plaintiff has not proved that the
court has ...