Madelyn P. Genskow v. Stacey Prevost

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2020 *
Decided September 3, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20‐1601
MADELYN P. GENSKOW,
Plaintiff‐Appellant,
v.
STACEY PREVOST, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 19‐C‐1474
William C. Griesbach,
Judge.
O R D E R
Madelyn Genskow, an Oneida Nation elder, was forcibly removed by tribal
police officers from a meeting of the tribe’s governing body after she voiced her opinion
that the scheduled agenda was not being followed. Genskow sued the four officers who
carried her out, alleging that they violated her constitutional rights. The district court,
concluding that the real party in interest was the tribe and not the officers, dismissed
the suit based on the doctrine of tribal sovereign immunity. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 4 --

No. 20‐1601 Page 2
As set forth in the complaint, the allegations of which we assume are true,
O’Brien v. Vill. of Lincolnshire, 955 F.3d 616, 618 (7th Cir. 2020), Genskow, a 77‐year‐old
tribal member, was mistreated in front of 1,500 other members while attending a
meeting of the General Tribal Council, the tribe’s governing body. The meeting was
held at a Radisson Hotel, a tribal property on the Oneida Nation Reservation. At some
point, Genskow called for the discussion to return the meeting’s scheduled topics. But
instead of recognizing her (as the Nation’s rules required him to do), the Tribal
Chairman shut off Genskow’s microphone and told four officers of the Oneida Police
Department to remove her from the meeting. The officers each grabbed one of her limbs
and carried her outside the building. Afterward, one of the officers issued “three bogus
citations” for violating Wisconsin law, including one for trespassing. (The state
prosecutor ultimately dropped the “sham charges” after reviewing video of the
incident.)
Genskow sued the four tribal police officers for violating her right to participate
in the General Tribal Council and for using excessive force to remove her from the
meeting. The officers, she alleged, embarrassed and intimidated her to deter other tribal
members from voicing concerns about issues of tribal governance. She sought damages
for her pain and suffering as well as reimbursement of her legal expenses related to the
citations. She also maintained that the Oneida Police Department cannot use its powers
to enforce state law (i.e., by issuing state‐law citations) to discourage tribal members
from participating in tribal government on tribal land. Finally, anticipating a sovereign‐
immunity defense, she asserted that the Oneida Police Department had “waived tribal
sovereignty” through a law‐enforcement Service Agreement between the Nation and
Brown County, Wisconsin—an agreement in which the Nation agreed to accept liability
for the police department’s acts and waive the Nation’s sovereign immunity to enforce
that liability.
The district court granted defendants’ motion to dismiss on grounds of sovereign
immunity. To the extent Genskow sued the defendants in their official capacities and
sought relief for certain events that transpired at the meeting (the tribal chairman’s
refusal to recognize her, the silencing of her microphone, and the order to remove her),
the Oneida Nation alone had the sovereignty to conduct the meeting of its governing
body. And to the extent her suit targeted the defendants individually for injuring her
while removing her, it too was barred because the Nation was the real party in interest
and Genskow effectively was seeking to “interject the court into the internal workings
of the Nation and its governing body.” The court distinguished Lewis v. Clarke, 137 S. Ct.

-- 2 of 4 --

No. 20‐1601 Page 3
1285, 1292 (2017), which held that a tribe’s sovereign immunity did not extend to the
individual liability of a tribal employee for a tort committed within the scope of his
employment because the employee, and not the tribe, was the real party in interest.
Unlike Lewis, the court explained, Genskow brought her suit as a tribal member over
tribal events that took place on tribal land. As for the waiver of sovereign immunity set
forth in the Nation’s Service Agreement with Brown County, the court concluded that it
did not apply here, since the agreement limited the enforcement of liability to the State’s
courts. Alternatively, the court determined, Genskow did not state a claim under
42 U.S.C. § 1983 because the tribal officers were acting not under color of state law, but
rather in their official duties toward a tribal member on the tribe’s own land. Further,
Genskow had not alleged what the defendants did while removing her that was
unreasonably excessive.
On appeal, Genskow reprises her argument that the tribe waived sovereign
immunity through its law‐enforcement agreement with the county. She also cites a state
statute that holds a tribe liable for its law‐enforcement officers’ conduct within the
scope of their employment. WIS . STAT . 165.92(3). A waiver of sovereign immunity,
however, “cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58 (1978) (citation and quotation marks omitted). Because the
agreement specifically limits the tribe’s liability to suits in Wisconsin state courts, an
arrangement explicitly permitted under WIS . STAT . 165.92(3), the tribe did not waive its
sovereign immunity and thereby consent to suits in federal court.
Alternatively, Genskow argues that her suit against the officers had to have been
in their individual capacities, since the officers rather than the tribe are the real parties
in interest. Despite this characterization, any assessment of the real party in interest
requires courts to “determine in the first instance whether the remedy sought is truly
against the sovereign.” Lewis, 137 S. Ct. at 1291. Here, we agree with the district court
that—with regard to the Tribal Chairman’s directive to remove Genskow from the
meeting—the tribe is the real party in interest because the officers’ actions “in essence”
were the tribe’s own. Id. In carrying out the Chairman’s directive, the officers were
acting merely as “an arm or instrumentality” of the tribe. Any claim based on the
decision to remove Genskow from the meeting is essentially a claim against the tribe
and therefore barred by its sovereign immunity. Id.
It is a closer question, however, whether tribal sovereign immunity also bars
Genskow’s claims against the individual officers for using excessive force while
removing her from the meeting. The Supreme Court held in Lewis that a tribe’s

-- 3 of 4 --

No. 20‐1601 Page 4
sovereign immunity did not apply to the individual liability of a tribal employee for
acts taken in the scope of employment because the real party in interest was the
employee, and not the tribe. 137 S. Ct. at 1292. But we agree with the district court that
Lewis differs from this case in material ways. In Lewis, the action for damages was
brought by a non‐Indian for personal injuries sustained in a car accident on a state
highway; this action, the Court emphasized, would not require involvement “by the
sovereign or disturb the sovereign’s property.” Id. (quoting Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 687 (1949)). Here, by contrast, a tribal member seeks to
hold individual tribal officers liable for using excessive force while removing her from a
meeting of the Nation’s governing body on tribal land at the Tribal Chairman’s
direction. These facts reflect that the tribe must be the real party in interest. Allowing
this suit to proceed would be “at odds with … tribal self‐government” and “undermine
the authority of tribal forums,” which “have repeatedly been recognized as appropriate
forums for the exclusive adjudication of disputes affecting important personnel and
property interests of both Indians and non‐Indians.” Santa Clara Pueblo, 436 U.S. at
64–65.
Because we conclude that all Genskow’s claims are barred by sovereign
immunity, we need not consider whether the complaint states a claim against the
defendants for using excessive force in violation of the Fourth Amendment.
We have considered Genskow’s other arguments, and none has merit.
AFFIRMED

-- 4 of 4 --