This week, the Ninth Circuit takes a deep look at tribal sovereign immunity.
OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK
The Court holds that the district court lacked subject matter jurisdiction over the plaintiff's claims arising out of his banishment asserted exclusively against an Alaskan tribe due to tribal sovereign immunity, as well as the plaintiff's claims against tribal judicial officers due to judicial immunity, but that the district court should reconsider the plaintiff's ability to pursue § 1983 claims against individual defendants in their individual capacities, a request for prospective injunctive relief, and state tort claims against individual defendants.
Panel: Judges Rawlinson, Christen, and Nelson, with Judge Rawlinson writing the opinion, and Judge Nelson dissenting.
Key Highlight: "[T]ribal sovereign immunity does not extend to the individual defendants merely because they were sued for conduct within the scope of their employment for the tribe."
Background: Ronald Oertwich sued the tribe Traditional Village of Togiak and its officers for banishing him based on his alleged attempt to import alcohol into the City of Togiak, Alaska and for detaining him in municipal jail in the process and forcing him to board an airplane to another city in Alaska. The district court dismissed the suit for lack of subject matter jurisdiction on the grounds that the tribe and its officers were entitled to tribal sovereign immunity.
Result: The Ninth Circuit affirmed in part and reversed and remanded in part. Oertwich argued that the district court erred in dismissing his claims against the tribe and its officers because tribal sovereign immunity of Alaskan tribes should not extend to tortious conduct occurring on non-tribal lands. The Ninth Circuit disagreed explaining that ordinary tribal sovereign immunity applies to Alaskan tribes even though they are organized as political entities rather than geographical areas of reservations. Such sovereign immunity is abrogated only when Congress has spoken unequivocally to rescind tribal sovereign immunity in a particular scenario, and Oertwich did not allege that Congress had done so here. The Ninth Circuit also held that the district court correctly held that the tribal judges were entitled to judicial immunity because Oertwich failed to sufficiently allege that the tribal judges that ordered his banishment were not acting in their "judicial capacity," or that the tribal court's orders were "taken in the complete absence of all jurisdiction." The Court held that the district court erred, however, in dismissing Oertwich's entire § 1983 claim without first analyzing whether Oertwich alleged claims against the defendants in their individual (rather than official) capacities and remanded for the district court to consider this issue in the first instance. In so ruling, the Court held that that the complaint did sufficiently allege the denial of a federally guaranteed right to be free from unreasonable seizure, or possibly substance due process for the deprivation of Oertwich's non-contraband property. The Court also remanded for the district court to consider whether Oertwich's request for prospective injunctive relief against enforcement of the banishment order was not barred by tribal sovereign immunity because the tribal officers were sued in their official capacities in accordance with Ex parte Young, 209 U.S. 123 (1908). Finally, the court held that the district court's conclusion that Oertwich was required to bring his state law claims against individual tribal defendants in their individual capacities in tribal court was erroneous. The Court explained that if the district court decides on remand that any recovery for Oertwich's state tort claims will run against the individual tribal defendants themselves, those defendants cannot enjoy tribal sovereign immunity.
Judge Nelson dissented. Judge Nelson concluded that the majority erred in holding that Oertwich's complaint properly alleges a § 1983 claim against the individual defendants acting in their individual capacities under the color of state law.
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