UNITED STATES OF AMERICA,
and William Brewer, William Lone Hill, Sr., Stanley Star Comes Out, Paul Forney,
Howard Spoonhunter, Jackson Ten Fingers, Marvin Afraid of Bear, Eugenio White
Hawk, Narcisse Rabbit, Barney White Face, Bernardo Rodriguez, Jr., Wendell
Yellow Bull and Steven Sandven, individually and as officers, employees or
agents of the Oglala Sioux Tribe and the Department of Public Safety, and
officers, agents and employees of the Oglala Sioux Tribe and the
Department of Public Safety, whose names are unknown at this time,
[2001 DSD 18]
United States District Court
District of South Dakota --Western Division
MEMORANDUM OPINION AND ORDER
Jane E. Colhoff, Porcupine, SD
Attorney for Plaintiff
Diana J. Ryan, US Attorney's Office, Rapid City, SD
Attorney for Defendant United States
Jay C. Shultz, Lynn, Jackson, Shultz & Lebrun, Rapid City,
Attorney for remaining Defendants
Filed August 3, 2001
Hon. Richard H. Battey, U. S. District Judge
[¶1] On December 28, 2000, plaintiff Glen Gibbons (Gibbons) filed a complaint against defendants United States of America ("USA"), William Brewer, William Lone Hill, Sr., Stanley Star Comes Out, Paul Forney, Howard Spoonhunter, Jackson Ten Fingers, Marvin Afraid of Bear, Eugenio White Hawk, Narcisse Rabbit, Barney White Face, Bernardo Rodriquez, Jr., Wendell Yellow Bull and Steven Sandven and unknown tribal defendants ("tribal defendants"). Count I of the complaint is grounded in the Federal Tort Claims Act ("FTCA"). Under the FTCA, the plaintiff alleges the following causes of action: assault, battery, false imprisonment, abuse of process, false arrest, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent training of employees, and negligent supervision on behalf of the United States. Count II of the complaint alleges civil rights violations under 42 USC § 1985(3) (conspiracy to deprive individuals of their civil rights), 42 USC § 1986 (negligence in failing to prevent a conspiracy to deprive an individual of his civil rights) and violations of the Indian Civil Rights Act codified at 25 USC § 1301 et seq. Additionally, Count II alleges violation of the plaintiff's Fourth, Fifth, Sixth, and Eighth Amendments rights under Bivens v. Six Unknown Named Narcotic Agents of the Federal Bureau of Narcotics, 403 US 388, 91 SCt 1999, 29 LEd2d 619 (1971). Additional complaints were filed on December 28, 2000, by additional plaintiffs arising from the same transaction as is at issue in this action.
[¶2] On May 1, 2001, tribal defendants moved to dismiss the charges filed by plaintiffs Crystal Eagle Elk, Robert Eagle Elk, Glen Gibbons, Everett Little Whiteman, Melanie Two Eagle, and Rhonda Two Eagle. Specifically, defendants move to dismiss the complaints for lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12 (b)(6). Subsequently, Gibbons responded, followed by a reply from the tribal defendants and a response from United States.
[¶3] On June 6, 2001, a motion was file by the United States seeking consolidation and permissive joinder of all the cases arising from the transactions and occurrences involved in the above entitled case. On July 16, 2001, this Court granted the United States motion and ordered the cases consolidated. Hence, the Court will, sua sponte, decide this motion to dismiss as to all the consolidated cases.
[¶4] I. Fed. R. Civ. P. 12(b)(6)
[¶5] The Federal Rules of Civil Procedure permit a party to move to dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P 12(b)(1). In deciding a 12(b)(1) motion, the Court must distinguish between a facial attack and a factual attack. Osborn v. United States, 918 F2d 724, 729 (8th Cir. 1990). When reviewing a facial attack, "the court restricts itself to the face of the pleadings and the nonmoving party receives the same protection as it would defending a motion brought under Rule 12(b)(6)." Id. (internal citations omitted). Under a factual attack, however, a court considers matters that lay outside of the pleadings. Id. Hence, in a factual attack, the nonmoving party loses the benefit of the 12(b)(6) safeguards. Id. [¶6] The Court will review this motion as a facial attack. "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Titus v. Sullivan, 4 F3d 590, 593 (8th Cir. 1993). Consequently, the burden falls on the plaintiff to prove subject matter jurisdiction. See V S Ltd. Partnership v. Dept. of Housing and Urban Development, 235 F3d 1109, 1112 (8th Cir. 2000). The issue of sovereign immunity is a jurisdictional question. See Hagen v. Sisseton-Wahpeton Community College, 205 F3d 1040, 1043 (8th Cir. 2000). In order to sue a sovereign, the plaintiff must not only prove a grant of jurisdiction but also a waiver of sovereign immunity. See V S Ltd. Partnership, 235 F3d at 1112.
[¶7] II. Application of Fed. R. Civ. P. 12(b)(6)
[¶8] A. Tribal Immunity
[¶9] "It is well established that Indian tribes possess the common law immunity from suit traditionally enjoyed by sovereign powers." Rosebud Sioux Tribe v. Val-U Const. Co. of South Dakota, Inc., 50 F3d 560, 562 (8th Cir. 1995) (citing Santa Clara Pueblo v. Martinez, 436 US 49, 58, 98 SCt 1670, 1677, 56 LEd 2d 106 (1978). Although a tribe may waive its sovereign immunity, the waiver must be unequivocally expressed. See Val-U Const. Co. of South Dakota v. Rosebud Sioux Tribe, 146 F3d 573, 576-77 (8th Cir. 1998); Rosebud Sioux Tribe, 50 F3d at 562 (citing Martinez, 436 US at 58); American Indian Agr. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F2d 1374, 1375 (8th Cir. 1985). As this is a facial attack and there are no claims that the Tribe has waived its sovereign immunity nor has Congress abrogated such immunity, this Court lacks jurisdiction to hear the action as to the defendants acting as agents or employees of the Tribe.
[¶10] B. Officers Acted Pursuant to Their Tribal Authority
[¶11] The plaintiff alleges that the tribal officers were in fact acting as federal agents pursuant to a "self-determination contract" (a "603" contract) which is authorized under 25 USC § 450f. Nevertheless, the acts of the officers were made pursuant to the Tribe's criminal jurisdiction which is inherent in tribal sovereignty. See Dry v. United States, 235 F3d 1249, 1253-54 (10th Cir. 2000) (citing United States v. Wheeler, 435 US 313, 322-23, 98 SCt 1079, 55 LEd 303 (1978). (1) As the tribal defendants were acting pursuant to the Tribe's inherent criminal jurisdiction in dealing with an intertribal matter, they were acting as tribal officials and are hence immune from suits in their official capacity. See Dry, 235 F3d at 1253-54. See also Rosebud Sioux Tribe v. Val-U Const. Co. of South Dakota, Inc., 50 F3d at 562 (citing Martinez, 436 US at 58).
[¶12] C. FTCA Claim
[¶13] "The [FTCA] is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment." United States v. Orleans, 425 US 807, 813, 96 SCt 1971, 48 LEd2d 390 (1976). Under the FTCA, the United States may be sued for damages arising from the negligent or wrongful acts or omissions of "any employee of the Government." 28 USC § 1346(b)(1). The FTCA also provides that an injured person's exclusive remedy is a suit against the United States. See 28 USC § 2679(b)(1). (2) As the sole remedy provided by the FTCA is a suit against the United States, the claims against the remaining tribal defendants, under the FTCA, must be dismissed. See id.
[¶14] The remaining issue under the plaintiffs' FTCA claim is whether the United States is subject to suit because the tribal defendants were acting as agents of the federal government. In Dry, which is factually analogous to this case, (3) the court held that "the tribal defendants were not acting as federal officers or otherwise under color of federal law ... the tribal defendants acted pursuant to their inherent criminal jurisdiction ... Neither the United States nor any other federal agency or officer is liable for the acts of the tribal defendants." 235 F3d at 1256. Plaintiff's argument that Law Enforcement Reform Act of 1990, 25 USC § 2801-2809, transforms the tribal defendants into federal agents (Gibbon's Reply to Motion to Dismiss at 8-11) is unpersuasive. The application of these statutes is clearly and unequivocally limited in scope to actions arising under Title 18 of the Criminal Code, specifically §§ 111 and 1114. Actions in tort and civil rights are clearly outside the scope of these provisions. In summary, as in Dry, the tribal defendants were acting as tribal, not federal, agents. Hence, the action against the United States must be dismissed.
[¶15] D. Bivens Claim
[¶16] "A Bivens claim is a cause of action brought directly under the United States Constitution against a federal official acting in his or her individual capacity for violations of constitutionally protected rights." Buford v. Runyon, 160 F3d 1199, 1203 n.6 (8th Cir. 1998) (citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388, 91 SCt 1999, 29 LEd2d 619 (1971). As already discussed, the tribal defendants were acting as tribal agents, not federal agents. As a Bivens claim requires a federal official, and there is no federal official in this case, the Bivens claim must be dismissed.
[¶17] E. Claims Based on 42 USC §§ 1985(3) and 1986.
[¶18] The plaintiff alleges that the tribal defendants conspired to deprive the plaintiff of his constitutional rights in violation of 42 USC §1985(3). Section 1985(3) provides that:
If two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation ...
Id. In order to prove a constitutional conspiracy under § 1985, the plaintiff must show that the defendants:
(1) "conspir[ed] ..." (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws." [She] must then assert one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of [the] conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States.
Borgen v. Minnesota, 236 F3d 399, 409 (8th Cir. 2000) (citing Andrews v. Fowler, 98 F3d 1069, 1079 (8th Cir. 1996) (quoting Griffin v. Breckenridge, 403 US 88, 102-03, 91 SCt 1790, 29 LEd2d 338 (1971)). However, § 1985 does not provide any substantive rights; the rights, privileges, and immunities protected by the statutes must be found elsewhere. See United Brotherhood of Carpenters and Joiners of America, Local 610, 463 US 825, 833, 103 SCt 3352, 77 LEd 1049 (1983). The plaintiff asserts the substantive rights lay with the United States Constitution and the Indian Civil Rights Act. An additional required element of a 1985(3) claim is "'a racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy ... must aim at a deprivation of the equal enjoyment of rights secured by the law to all.'" Id. (quoting Griffin v. Breckenridge, 403 US 88, 102, 91 SCt 1790 (1971)).
[¶19] The plaintiffs' cause of action under §§ 1985(3) and 1986 must be dismissed. Tribes and tribal officials, acting in their official capacity, are immune from 1985 claims. See Means v. Wilson, 522 F2d 833, 838 (8th Cir. 1975) (holding tribe immune from Civil Rights Act pertaining to conspiracy to deprive persons of rights or privileges); Runs After v. United States, 766 F2d 347, 354 (8th Cir. 1985) (holding that individual members of a tribal council, acting in their official capacity, cannot conspire when they act together in taking official action on behalf of the tribal council). Furthermore, the plaintiffs have failed to allege "a racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action" as required under Brotherhood of Carpenters, 403 US at 102. Personal animus does not equate to class-based animus. See Shortbull v. Looking Elk, 677 F2d 645, 649 (8th Cir. 1982).
[¶20] Assuming that there is no immunity for tribal officials acting in their official capacity and there is invidious class discrimination, the plaintiffs' constitutional claims still must be dismissed as this Court does not have jurisdiction to hear the constitutional claims. The United States Supreme Court has held that the Fifth Amendment does not "operate upon" the powers enjoyed by the tribes. Talton v. Mayes, 163 US 376, 384, 16 SCt 986, 41 LEd 196 (1896); Runs After, 766 F2d at 353 (quoting Talton). Lower federal courts have extended this holding to other provisions of the Bill of Rights and the Fourteenth Amendment. See Runs After, 766 F2d at 353.
[¶21] Finally, plaintiffs' claim under 42 USC § 1986 must also be dismissed. Section 1986 provides a federal cause of action "against any person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 ... are about to be committed, and having the power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed ... ." As the Court has determined that the § 1985(3) action must be dismissed, the §1986 action, which necessarily relies on § 1985 must also be dismissed.
[¶22] F. Indian Civil Rights Act (42 USC § 1301 et seq.)
[¶23] In response to Talton and its progeny, Congress enacted the Indian Civil Rights Act of 1968. 25 USC § 1301 et seq. See also Runs After, 766 F2d at 353. The Act imposed restrictions upon tribal governments which are similar to the Bill of Rights. See 25 USC 1301 et seq.; Runs After, 766 F2d at 353 (quoting Garreaux v. Andrus, 676 F2d 1206, 1209-10 (8th Cir. 1982). Nevertheless, the United States Supreme Court, in Martinez, concluded that "[c]reation of a federal cause of action for enforcement of the rights created in Title I [of ICRA] ... would be at odds with the congressional goal of protecting tribal self-government, would undermine the authority of the tribal forums, ... and would also impose serious financial burdens on already 'financially disadvantaged' tribes." Martinez, 436 US at 64. "The only federal relief available under the Indian Civil Rights Act is a writ of habeas corpus." See Runs After, 766 F2d at 353. Thus, plaintiffs' claims under the Indian Civil Rights Act must be dismissed for lack of subject matter jurisdiction. See Martinez, 436 at 64.
MOTION UNDER FED. R. CIV. P. 12(b)(6)
[¶24] As the Court has dismissed all plaintiffs' causes of action for lack of subject matter jurisdiction, it need not reach the motion to dismiss under Fed. R. Civ. P. 12(b)(6).
[¶25] In the final analysis, this case is one involving a squabble among members of the Oglala Sioux Tribe which plaintiffs seek to elevate to one of constitutional and statutory dimensions. The complaints set forth a litany of claims, all of which fail constitutional and statutory muster.
[¶26] Based upon the foregoing discussion, finding no basis for subject matter jurisdiction for all the causes of action plead by plaintiffs, it is hereby
[¶27] ORDERED that the tribal defendants' motion to dismiss plaintiffs' complaint for lack of subject matter jurisdiction is granted for the tribal defendants and the United States.
[¶28] IT IS FURTHER ORDERED that attorneys fees and costs of the tribal defendants are assessed against the plaintiffs and the tribal defendants shall file and serve an affidavit setting forth the amount claimed as attorneys fees.
1. Although this Court was unable to find any Eighth Circuit authority supporting Dry, the Court believes that if presented to the Eighth Circuit on appeal, the Court of Appeals would find Dry persuasive.
2. 28 USC § 2679(b)(1) provides:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
3. In Dry, the plaintiffs brought federal claims under Bivens, the United States Constitution, the FTCA, § 1983, and pendant state tort claims against tribal officers and officials, a city, and the United States. 235 F3d at 1251.