Rudy Butch Stanko v. Oglala Sioux Tribe

United States Court of Appeals
For the Eighth Circuit
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No. 17-3176
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Rudy Butch Stanko
lllllllllllllllllllllPlaintiff - Appellant
v.
Oglala Sioux Tribe, et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: October 17, 2018
Filed: February 22, 2019
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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LOKEN, Circuit Judge.
Rudy Stanko, a non-Indian, filed this common law and 42 U.S.C. § 1983 action
against the Oglala Sioux Tribe and various tribal officers, seeking damages for their
violation of his constitutional and civil rights. The pro se complaint alleged that,
while traveling on a federally-maintained highway on the Pine Ridge Reservation in
South Dakota, tribal officers arrested and detained him on an illegally issued warrant;
took him to the Kyle Police Department jail instead of the Oglala Sioux Tribal Court;

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assaulted, battered, and placed him in isolation because he was a non-Indian; and
stole $700 from his wallet. Stanko appeals the district court1 order granting
defendants’ motion to dismiss all claims. We affirm the dismissal with prejudice of
claims against the Tribe and the individual defendants acting in their official
capacities because those claims are barred by the Tribe’s sovereign immunity. We
affirm the dismissal without prejudice of claims against defendants acting in their
individual capacities on a different ground, failure to exhaust tribal court remedies.
I. Claims Barred by Tribal Sovereign Immunity.
“Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58 (1978); see Alltel Commc’ns, LLC v. DeJordy, 675 F.3d
1100, 1102 (8th Cir. 2012). The Oglala Sioux are a federally recognized tribe. See
Indian Entities Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 83 Fed. Reg. 34,863 (July 23, 2018). Thus, as a matter of
federal law, the Tribe is subject to suit only if Congress has authorized the suit or the
tribe has waived its immunity. Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d
680, 685 (8th Cir. 2011).
The district court properly rejected Stanko’s contention that Congress expressly
authorized § 1983 suits against Indian tribes. See Will v. Mich. Dept. of State Police,
491 U.S. 58, 67 (1989) (“in enacting § 1983, Congress did not intend to override
well-established immunities or defenses under the common law”); cf. Inyo County
v. Paiute-Shoshone Indians, 538 U.S. 701, 709 (2003). Stanko made no showing that
the Tribe has waived its sovereign immunity; indeed, the Tribe specifically reserved
its right to assert sovereign immunity absent consent in 2001 and reaffirmed tribal
1 The Honorable Jeffrey L. Viken, Chief Judge of the United States District
Court for the District of South Dakota.
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immunity in 2015. OST Ord. No. 01-22; OST Ord. No. 15-16. On appeal, quoting
an article by an eminent law professor, Stanko argues that “sovereign immunity is an
anachronistic relic and the entire doctrine should be eliminated from American law.”
Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201
(2001). Whatever the merits of this view, “it is too late in the day, and certainly
beyond the competence of this court, to take issue with a doctrine so well-
established.” Alltel, 675 F.3d at 1106 (citation omitted).
The district court properly dismissed Stanko’s claims against individual tribal
officers acting in their official capacities as also barred by the Tribe’s sovereign
immunity. “A suit against a governmental officer in his official capacity is the same
as a suit against the entity of which the officer is an agent.” McMillian v. Monroe
County, 520 U.S. 781, 785 n.2 (1997) (cleaned up). “There is no reason to depart
from these general rules in the context of tribal sovereign immunity.” Lewis v.
Clarke, 137 S. Ct. 1285, 1292 (2017).
In his pro se Response to defendants’ motion to dismiss, Stanko argued his
complaint states a claim against defendants for violation of the Indian Civil Rights
Act (“ICRA”), 25 U.S.C. § 1302. The district court did not address this contention;
we conclude it is without merit. In § 1302, Congress exercised its “plenary authority
to limit, modify or eliminate the powers of local self-government which the tribes
otherwise possess . . . . by imposing certain restrictions upon tribal governments
similar, but not identical, to those contained in the Bill of Rights and the Fourteenth
Amendment.” Santa Clara, 436 U.S. at 56-57. However, because “Congress also
intended to promote the well-established federal policy of furthering Indian self-
government,” the Court held there is no implied private right of action against tribal
officers in federal court to remedy alleged ICRA violations, other than “the habeas
corpus provisions of [25 U.S.C.] § 1303.” Id. at 62, 70 (quotation omitted). Thus,
Stanko’s complaint did not state a claim under ICRA against any defendant.
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II. Individual Capacity Claims.
Stanko’s claims against tribal officers acting in their individual capacities are
not barred by the Tribe’s sovereign immunity. See Lewis, 137 S. Ct. at 1292-93. The
district court dismissed those claims without prejudice because Stanko’s “allegations
fail to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).
We review this issue de novo. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 936 (8th Cir. 2012) (standard of review).
Stanko’s pro se complaint alleged that the individual defendants violated his
Fourth Amendment, Eighth Amendment, and Fourteenth Amendment rights. It
alleged the district court had subject matter and personal jurisdiction under 28 U.S.C.
§§ 1331 and 1343 (federal question and federal civil rights jurisdiction). Diversity
of citizenship was not alleged. The district court ruled that these allegations failed
to state a claim because “provisions of the Bill of Rights, as well as . . . the Fourteenth
Amendment” do not “operate upon the powers of local self-government enjoyed by
the tribes,” quoting Santa Clara, 436 U.S. at 56, which in turn quoted Talton v.
Mayes, 163 U.S. 376, 384 (1896). We disagree. These cases did not establish that
tribal officers cannot be sued individually for violating the constitutional rights of
non-Indians while on tribal lands. Non-Indian United States citizens do not shed their
constitutional rights at an Indian reservation’s border. Thus, the inquiry must focus
on whether Stanko stated a plausible claim for violation of those rights that survives
defendants’ motion to dismiss these claims. “A non-frivolous claim of a [federal]
right or remedy . . . is sufficient to invoke federal question jurisdiction.” Weeks
Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 672 (8th Cir. 1986).
Stanko’s pro se complaint described his claims as “a common law complaint
and a complaint pursuant to 42 USC § 1983.” The district court ruled (alternatively)
that the complaint failed to state a § 1983 claim because it did not allege “that the
Individual Tribal Defendants were acting under color of state law.” See West v.
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Atkins, 487 U.S. 42, 49 (1988) (“acting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state
law”) (emphasis added, quotation omitted). We agree with the court’s conclusion, but
the issue requires further analysis.
Stanko alleged that he was unconstitutionally arrested and detained while
driving on “US/BIA Highway 27.” For the most part, this alleges tribal officers
acting under color of tribal law because “tribal law enforcement authorities possess
traditional and undisputed power to exclude persons whom they deem to be
undesirable from tribal lands and therefore have the power to restrain [non-Indians]
who disturb public order on the reservation, and if necessary to eject them.” United
States v. Terry, 400 F.3d 575, 579 (8th Cir. 2005) (quotation omitted). “Where
jurisdiction to try and punish an offender rests outside the tribe, tribal officers may
exercise their power to detain the offender and transport him to the proper [state or
federal] authorities.” Id. (citation omitted). Stanko’s complaint, liberally construed,
alleged a violation of this limited authority. Cf. Bressi v. Ford, 575 F.3d 891, 895-98
(9th Cir. 2009) (non-Indian stated a § 1983 claim against tribal officers operating an
unconstitutional roadblock on a state highway lying within the reservation, because
inquiry beyond determining whether the stopped motorist was a non-Indian was “not
authorized on purely tribal authority”). However, Stanko did not allege that the
individual defendants were acting under color of state law, as § 1983 requires. He
alleged that US/BIA Highway 27 is maintained by the Federal Government, not the
State of South Dakota. Thus, his § 1983 claim was properly dismissed.
In his Response to the motion to dismiss, going beyond his § 1983 claims,
Stanko also argued that “the substantiality doctrine requires that federal district court
entertain a complaint seeking recovery under the Constitution or laws of the United
States,” citing Bell v. Hood, 327 U.S. 678, 681-82 (1946). The district court did not
address this issue. Stanko’s counseled brief on appeal pursues the issue, noting that
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the complaint alleged it was based on “common law” as well as § 1983. On appeal,
Stanko relies on Bivens v. Six Unknown Named Agents, where the Supreme Court,
citing Bell v. Hood, held that “violation of [the Fourth Amendment] by a federal
agent acting under color of his authority gives rise to a cause of action for damages
consequent upon his unconstitutional conduct.” 403 U.S. 388, 389 (1971). Federal
courts have jurisdiction to remedy this “federally protected interest” under 28 U.S.C.
§ 1331(a); more explicit statutory authorization is not required. Id. at 400-06 (Harlan,
J., concurring).
In a brief response to this contention, defendants argue that Bivens “only
applies to federal officers acting under color of federal law” and the individual
defendants “are officers of the Tribe, and acted under color of tribal law, not federal
law.” True, but the question is whether this is enough to sustain dismissal of the
claim for failure to state a claim. Broadly stated, the question is whether the
“substantiality doctrine” reflected in Bivens should be extended to permit a non-
Indian to bring a damage action in federal court for violation of his constitutional
rights by tribal officers acting under color of tribal law, when non-Indian citizens
have a right to bring that action against officials acting elsewhere under color of state
or federal law. To be sure, the Supreme Court “has made clear that expanding the
Bivens remedy is now a disfavored judicial activity,” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017). However, determining whether there are “special factors
counselling hesitation” to extend Bivens is a complex inquiry. Id. at 1857-58. Given
the recognized limitations on tribal sovereign power over non-Indians on reservation
land, this is not a frivolous claim. See Montana v. United States, 450 U.S. 544, 565-
66 (1981).
We conclude we need not remand to the district court to address this issue
because Stanko’s individual-capacity claims were properly dismissed without
prejudice for his failure to exhaust an available tribal court remedy. “Tribal authority
over the activities of non-Indians on reservation lands is an important part of tribal
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sovereignty. Civil jurisdiction over such activities presumptively lies in the tribal
courts unless affirmatively limited by a specific treaty provision or federal statute.”
Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987) (citations omitted). Article V
of the Constitution of the Oglala Sioux Tribe created an independent tribal judiciary
with jurisdiction over “cases, in law and equity, arising under the . . . Constitution
[and] the laws of the Oglala Sioux Tribe.” Art. V, Section 2. This jurisdiction would
obviously include a civil damage action by Stanko alleging that tribal officers acting
in their individual capacities under color of tribal law violated his civil rights on
reservation land.
When a non-Indian challenges the exercise of tribal court jurisdiction, “the
federal policy supporting tribal self-government directs a federal court to stay its hand
in order to give the tribal court ‘a full opportunity to determine its own jurisdiction.’”
Iowa Mut., 480 U.S. at 16, quoting Nat’l Farmers Union Ins. Co. v. Crow Tribe of
Indians, 471 U.S. 845, 857 (1985). “Exhaustion is required as a matter of comity, not
as a jurisdictional prerequisite. In this respect, the rule is analogous to principles of
abstention . . . .” Iowa Mut., 480 U.S. at 16 n.8. Tribal court jurisdiction is not at
issue here. “Indian tribes retain inherent sovereign power . . . to exercise civil
authority over the conduct of non-Indians . . . within its reservation when that conduct
threatens or has some direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.” Montana, 450 U.S. at 565-66; see Strate v. A-1
Contractors, 520 U.S. 438, 456-59 (1997). Whether tribal officers violated the civil
rights of a non-Indian traveling on the reservation unquestionably has a direct effect
on the political integrity and welfare of the Tribe.
In this case, the federal court has jurisdiction but whether Stanko has a federal
cause of action is highly questionable. Though there is no case pending in tribal
court, “the reasons for exhaustion cited in National Farmers Union -- the policy of
supporting tribal self-government, the advantages of allowing a full record to be
developed in tribal court, and the benefit of receiving the tribal court’s expertise on
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these issues of tribal sovereignty -- apply whether or not the dispute is already
pending in tribal court.” Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d
1294, 1303 (8th Cir. 1994) (Loken, J., concurring). Moreover, there is an important
additional reason to exhaust tribal court remedies in this case. As we have explained,
Stanko has no damage claim under ICRA in federal court. However, “[t]ribal forums
are available to vindicate rights created by the ICRA, and § 1302 has the substantial
and intended effect of changing the law which these forums are obliged to apply.”
Santa Clara, 436 U.S. at 65. Thus, tribal court resolution of a tribal law claim under
ICRA might well moot or otherwise affect Stanko’s assertion of a direct federal claim
for violation of his federal constitutional rights. Though this antecedent issue is a
question of tribal law rather than state law, the circumstances warrant application of
what is called Pullman abstention -- “federal courts should abstain from decision
when difficult and unsettled questions of state law must be resolved before a
substantial federal constitutional question can be decided.” Hawaii Hous. Auth. v.
Midkiff, 467 U.S. 229, 236 (1984).2
The judgment of the district court is affirmed.
GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.
I concur in the court’s judgment and join part I of the court’s opinion. I write
separately because I would follow the Supreme Court’s lead, refuse to extend Bivens,
2This is not a case like Dry Creek Lodge, Inc. v. Arapahoe & Shosone Tribes,
623 F.2d 682, 685 (10th Cir. 1980), where non-Indian litigants asserting violation of
their constitutional rights had “no remedy within the tribal machinery.” Where
remedies are available in tribal court for tribal-related activities on reservation land,
“the doctrine of exhaustion of tribal remedies is analogous to dismissals under the
doctrine of abstention.” Krempel v. Prairie Island Indian Cmty., 125 F.3d 621, 623
(8th Cir. 1997).
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and leave it to Congress to create any new cause of action. See Ziglar v. Abbasi, 137
S. Ct. 1843, 1857 (2017). Thus, Stanko lacks claims under § 1983 and Bivens, and
the court need not discuss his failure to exhaust tribal court remedies. Indeed, the
court’s statement that the second Montana exception “unquestionably” applies, ante
at 7, risks undermining Supreme Court precedent limiting its scope, see, e.g., Plains
Comm. Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008); Strate v.
A-1 Contractors, 520 U.S. 438, 456-59 (1997). Accordingly, I would refrain from
addressing the complicated issues surrounding tribal court jurisdiction, which are not
necessary to resolve the case.
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