Oertwich v. Traditional Village of Togiak et al

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
RONALD OERTWICH, )
)
Plaintiff, ) 3:19-cv-00082 JWS
)
vs. ) ORDER AND OPINION
)
TRADITIONAL VILLAGE OF ) [Re: Motion at docket 22]
TOGIAK, et al., )
Defendants. )
)
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
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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
1Complaint at docket 1.
2Order at docket 24.
3Order at docket 27.
4Tosco Corp. v. Comtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (citing 28
U.S.C. §§ 1331, 1332(a)).
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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
5Id.
6Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
7Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
8Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
9Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).
10Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
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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
11Id.
12Id. (citing Twombly, 550 U.S. at 556).
13Id. (quoting Twombly, 550 U.S. at 557).
14Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see also Starr, 652 F.3d
at 1216.
15 Pearson v. Callahan, 555 U.S. 223, 230 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
16 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted).
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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
17Saucier v. Katz, 533 U.S. 194, 201-202 (2001).
18Pearson v. Callahan, 555 U.S. at 236.
19Anderson v. Creighton, 483 U.S. 635, 640 (1987).
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in Wilkes v. PCI Gaming Authority20 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 appealed21 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 Nation22 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
20No. 1151312, 2017 WL4385738 (Ala. Sept. 29, 2017).
21Poarch Band of Creek Indians v. Wilkes, No. 17-1175, 2019 WL 2570656 (U.S. June
24, 2019).
22Arizona v. Tohono O’odham Nation, 818 F.3d 549 (9th Cir. 2016).
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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
23Id. at 563 n.8.
24138 S. Ct. 1649 (2018).
25502 U.S. 251 (1992).
26138 S. Ct. at 1653.
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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
27Id. at 1655.
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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:
28498 U.S. 505 (1991).
29Id. at 516.
30436 U.S. 49 (1978).
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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 subject matter jurisdiction over
these claims, so they will be dismissed pursuant to Rule 12(b)(1).
Individual Capacity Claims
The Tribe and the individual defendants argue that Plaintiff’s individual capacity
claims are in reality official capacity claims. Plaintiff argues that his individual capacity
claims are viable. In resolving this disagreement, it is noted that under Rule 12(b)(6), all
Plaintiff’s allegations of material fact must be accepted as true and construed in the light
favorable to Plaintiff.33
Count I advances a claim based on actions which Plaintiff says were ultra vires
actions by officers of the Tribe. To the extent that this claim is asserting that the Tribe
31Id. at 58.
32See, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47 (1985);
Madison v. Virginia, 474 F.3d 118, 130 (4th Cir. 2006); A. W. v. Jersey City Pub. Sch., 341 F.3d
234, 250 (3d Cir. 2003).
33Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
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could not banish him, it cannot be an individual capacity claim, because it rests entirely
on the premise that the banishment was wrongly taken by tribal officials on behalf of the
Tribe. However, acting in their individual capacities with respect to banishment, the
officers could not be acting on behalf of the Tribe. To the extent that this claim is based
on arrest and detention of Plaintiff it is subsumed in other Counts of the Complaint,
which are addressed below. Count I will be dismissed with respect to Plaintiff’s
banishment.
The allegation in paragraph 35 of the Complaint regarding the seizure of
Plaintiff’s personal property does not state a plausible claim with respect to the seizure
by VPSO Wassilie, because the property seized was contraband not permitted in the
dry village. The allegation in paragraph 37 of the Complaint refers to the seizure of
unspecified personal property from Plaintiff’s dwelling and when viewed in the light
favorable to Plaintiff would support a plausible claim for the violation of Plaintiff’s civil
rights as pled in Counts II and III by officer Nanalook, but for the points discussed
below.
Plaintiff’s attempt to rely on a violation of ICRA pled in Count II fails with respect
to both VPSO Wassilie and officer Nanalook. It is clear that Plaintiff is asserting a
violation of the ICRA provision which provides that no tribe exercising the power of self-
government may “violate the right . . . to be secure in their persons, houses, papers,
and effects against unreasonable search and seizures . . . .”34 While such a violation
may be what happened to Plaintiff, this court cannot adjudicate the claim. The ICRA
3425 U.S. C. § 1302(a)(2).
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creates no private right of action, and the Supreme Court has explained that § 1302
creates no implied right of action against a tribe or its officers.35 It follows that Count II
must be dismissed without prejudice to Plaintiff’s pursuit of relief in the Togiak tribal
court.
In Count III, Plaintiff asserts a violation of his rights under the United States
Constitution for the search and seizure of his property. The claim is the type that may
be brought under 42 U.S.C. § 1983. However, § 1983 is premised on action taken
under color of state law. Plaintiff does not allege that any act by the Tribe or tribal
defendants was taken under color of state law. He is complaining about actions taken
under color of tribal law. Count III must therefore be dismissed.
The allegations in paragraph 36 of the Complaint supporting Count IV allege that
Plaintiff was incarcerated for six days before being removed from Togiak the second
time. The Tribal Court order issued after Plaintiff’s return to Togiak does not direct that
Plaintiff be imprisoned. The order dated March 30, 2017, specifically directs that
Plaintiff “will be escorted to the airport for immediate transportation out of Togiak.”36
Viewed in the light favorable to Plaintiff the actions taken may have been taken in the
actors’ individuals capacities, for it appears that there was no tribal authorization for
Plaintiff’s imprisonment. Count IV states a viable individual capacity claim. However,
Count IV, like Counts II and III, cannot be pursued in this court. Plaintiff may pursue this
35Santa Clara Pueblo v. Martinez, 436 U.S. 49, 51, 71-72 (1978) (foreclosing claim for
declaratory and injunctive relief); Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 700 (8th Cir.
2019) (plaintiff Stanko had no damage claim which he could pursue in federal court).
36Docket 23-2 at p. 2.
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claim in tribal court. Count IV will be dismissed without prejudice to pursuit of the claim
in tribal court.
The allegations in paragraph 38 regarding the conduct of defendants Leroy
Nanalook, Jimmy Coopchiak, Bobby Coopchiak, Herbert Lockuk, and Paul Markoff is
not conduct that necessarily was required by the order to banish Plaintiff. It is plausible
that banishment could have been achieved without resorting to the violent conduct
alleged. The battery claim in Count V may be pursued as an individual capacity claim,
but like the claims in Counts II, III, and IV, this claim is one to be pursued in tribal court.
Count V will be dismissed without prejudice to a claim in tribal court.
Finally, the allegations in paragraph 36 of the Complaint regarding restrictions on
Plaintiff’s access to food, medicine, hygiene, and communications state a plausible
individual capacity claim of intentional infliction of emotional distress, which is pled in
Count VI. Yet, as with the claims discussed above, this court lacks the authority to
adjudicate the claim. It will be dismissed without prejudice to its pursuit in tribal court.
Official Immunity
Several of the individual defendants are being sued for actions which they took
as Tribal judges. These are defendants Kritz, Thompson, Nick, Wasillie, and Lockuk
(“judicial defendants”). Defendants contend that tribal judges, like state and federal
judges, are entitled to absolute judicial immunity for actions they take within the
jurisdiction of their court.37 Plaintiff does not respond to this argument but merely
37Defendants cite Inbler v. Pactman, 424 U.S. 409, 418 (1976). The case recognized
that common law absolute judicial immunity is available in § 1983 actions.
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contends that no immunity applies to individual capacity claims. However, any claim
arising from the orders issued by the tribal court is perforce a claim based on actions
taken by the judicial defendants in their capacities as judges. It follows that all Plaintiff’s
claims against the judicial defendants will be dismissed.
Concerning the other individual defendants, the Tribe and the individual
defendants argue that those persons are entitled to qualified immunity.38 Defendants
assert that tribal officials, employees, and volunteers, like state officials and employees,
may make use of the doctrine of qualified immunity. Plaintiff does not dispute that
proposition. The defense then asserts that qualified immunity protects defendants from
the need to participate in litigation, not just from liability for their actions. This is
hornbook law, and Plaintiff does not contest that proposition. The Tribe and the
individual defendants then argue that unless the conduct at issue violated clearly
established constitutional or statutory rights qualified immunity bars prosecution of any
claim based on that conduct. Again, Plaintiff does not dispute this principle of the
qualified immunity doctrine. Plaintiff’s response is devoid of any argument that any of
the conduct alleged in the Complaint clearly violated a statutory or constitutional right.
Moreover, even if Plaintiff did contend that the actions of which he complains violated a
clearly established right, his remedy lies in tribal court. As explained above, this court
lacks jurisdiction to entertain Plaintiff’s claims.
38Doc. 22 at p. 17.
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Federal Tort Claims Act
Defendants also argue that Plaintiff's claims must be dismissed pursuant to the
Federal Tort Claims Act. The court finds it unnecessary to address this argument,
because Plaintiff’s claims will be dismissed based on the other grounds discussed
above.
V. CONCLUSION
For the reasons set forth above, Plaintiff’s claims against the Tribe and the
individual defendants are dismissed without prejudice to Plaintiff’s pursuit of claims in
tribal court. This order does not address Plaintiff’s claim against defendant Teodoro
Pauk in his capacity as Mayor of the City of Togiak. That claim remains before this
court.
DATED this 12th day of September 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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