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Oertwich v. Traditional Village of Togiak

United States District Court, D. Alaska

September 12, 2019





         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.


         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.


         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]


         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 ...

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