Wilson v. Horton's Towing, 16-35320

Citation906 F.3d 773
Decision Date09 October 2018
Docket NumberNo. 16-35320,16-35320
Parties Curtiss WILSON, Plaintiff-Appellant, v. HORTON’S TOWING, a Washington corporation; United States of America, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

William Joseph Johnston (argued), Bellingham, Washington, for Plaintiff-Appellant.

Robert W. Novasky (argued), Forsberg & Umlauf P.S., Tacoma, Washington, for Defendants-Appellees.

Teal Luthy Miller (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Defendants-Appellees.

Before: Dorothy W. Nelson and Paul J. Watford, Circuit Judges, and Dean D. Pregerson,* District Judge.

PREGERSON, District Judge:

This appeal concerns the seizure of Plaintiff Curtiss Wilson’s truck by Brandon Gates, a police officer of the Lummi Indian Tribe. After visiting a casino on the Lummi reservation, Wilson was stopped by Lummi police and found with marijuana in his truck. Citing a violation of tribal drug laws, the Lummi Tribe issued a notice of civil forfeiture and took possession of Wilson’s truck.

Wilson sued Officer Gates, who had served the forfeiture notice, and Horton’s Towing, the towing company that had released the car to Officer Gates. The district court then substituted the United States as a defendant for Officer Gates pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

At the summary judgment phase, Wilson’s sole remaining claim was one for conversion against Horton’s Towing and the United States (collectively, "Defendants"). The district court entered summary judgment against Wilson and dismissed the action with prejudice. It held that Wilson had failed to exhaust his tribal remedies against Horton’s Towing, and that Wilson had also failed to exhaust his administrative remedies against the United States.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s order entering summary judgment. However, we vacate the judgment of dismissal and remand with instructions to dismiss this action without prejudice to refiling after Plaintiff has exhausted the appropriate remedies.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2014, Plaintiff Curtiss Wilson drove his 1999 Dodge Ram pickup to a casino located on the Lummi Indian Reservation.1 After drinking at the casino, Wilson travelled onto a Washington state road crossing through the reservation. Wilson was stopped on this road by Grant Assink, a Lummi tribal police officer, who suspected that Wilson was driving while intoxicated.2

Officer Assink searched Wilson’s pickup truck and found several containers of marijuana inside. Officer Assink then alerted the Washington State Patrol, who arrested Wilson for driving under the influence. At the direction of the Washington State Patrol, Horton’s Towing impounded the truck and towed it off the reservation.

The next day, the Lummi Tribal Court issued a "Notice of Seizure and Intent to Institute Forfeiture." The notice cited Section 5.09A.110(d)(2) of the Lummi Nation Code of Laws, which prohibits the possession of marijuana over one ounce, as the grounds for civil forfeiture. Lummi Tribal Police Officer Brandon Gates presented Horton’s Towing with the forfeiture notice, and Horton’s Towing released the truck to Officer Gates.

On the basis of these events, Plaintiff brought suit against Horton’s Towing and Officer Brandon Gates. After the filing of a certification by the Attorney General, the district court substituted the United States as a party for Officer Gates pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

Subsequently, Defendants filed motions for summary judgment. The district court entered summary judgment in Defendants’ favor. It held that principles of comity required Wilson to exhaust his tribal remedies against Horton’s Towing. It also held that Wilson had failed to exhaust his administrative remedies against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a).

Plaintiff timely appealed. See Fed. R. App. P. 4(a)(1).

STANDARD OF REVIEW

We review de novo a district court’s decision to grant summary judgment. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1135 (9th Cir. 2001).

ANALYSIS

This appeal turns on two separate determinations of the district court. The first concerns its decision to dismiss Wilson’s case against Horton’s Towing for failure to exhaust tribal remedies. The second concerns the district court’s decision to substitute the United States for Officer Gates as a party defendant, pursuant to the Westfall Act, 28 U.S.C. § 2679(d).

We address each issue in turn.

A. Exhaustion of Tribal Remedies against Horton’s Towing

"Principles of comity require federal courts to dismiss or to abstain from deciding claims over which tribal court jurisdiction is colorable, provided that there is no evidence of bad faith or harassment." Marceau v. Blackfeet Hous. Auth ., 540 F.3d 916, 920 (9th Cir. 2008) (quotations omitted). If tribal jurisdiction is "colorable" or "plausible," a plaintiff must first exhaust any remedies before the tribal court.

Atwood v. Fort Peck Tribal Court Assiniboine , 513 F.3d 943, 948 (9th Cir. 2008). This exhaustion requirement provides "the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge."3 Nat’l Farmers Union Ins. Companies v. Crow Tribe of Indians , 471 U.S. 845, 856, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985).

Applying this exhaustion of remedies requirement, the district court concluded that principles of comity warranted the dismissal of Wilson’s conversion claim against Horton’s Towing. The district court ruled that tribal jurisdiction was colorable because "the transactions forming the basis of Plaintiff’s case" happened or began on tribal lands. Specifically, the district court found that the stretch of state road upon which Plaintiff was arrested was tribal land, and therefore subject to the tribe’s civil jurisdiction.

We agree with the district court’s ultimate conclusion that tribal jurisdiction is colorable in this case. For the reasons discussed below, however, we part ways with the district court on why tribal jurisdiction is colorable and whether the state road is properly deemed tribal land.

1. A Tribe’s Civil Jurisdiction over Non-Members

Broadly speaking, a tribe’s source of authority may stem from statutory and treaty rights or, as relevant here, a tribe’s "inherent sovereignty." Montana v. United States , 450 U.S. 544, 563, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The foundational case on the scope of a tribe’s inherent sovereign authority is Montana v. United States , 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Montana voiced the "general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers."4 Id . at 565, 101 S.Ct. 1245.

Subsequent decisions have clarified that Montana ’s rule "ordinarily applies only to non-Indian land."5 Water Wheel Camp Recreational Area, Inc. v. LaRance , 642 F.3d 802, 813 (9th Cir. 2011). "[T]ribes retain considerable control over nonmember conduct on tribal land." Strate v. A-1 Contractors , 520 U.S. 438, 454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). The question of "whether tribal courts may exercise jurisdiction over a nonmember defendant may turn on how the claims are related to tribal lands." Smith v. Salish Kootenai Coll ., 434 F.3d 1127, 1132 (9th Cir. 2006) (en banc). For this reason, land status is often dispositive of the issue of a tribe’s civil jurisdiction over non-members. See Nevada v. Hicks , 533 U.S. 353, 360, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001).

On tribal lands, a tribe generally retains the inherent sovereign "right to exclude," together with regulatory and adjudicative authority that flows from that right. Window Rock Unified Sch. Dist. v. Reeves , 861 F.3d 894, 898, 899 (9th Cir. 2017), as amended (Aug. 3, 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 648, 199 L.Ed.2d 586 (2018).

Off tribal lands, however, a tribe generally lacks such authority unless one of the two exceptions set forth in Montana applies. Id. at 898. First, a tribe may exercise control over "the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Montana , 450 U.S. at 565, 101 S.Ct. 1245. Second, a tribe may "exercise civil authority over the conduct of non-Indians on fee lands 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." Id . at 566, 101 S.Ct. 1245.

Although Montana does not address the issue of exhaustion of tribal remedies, its reasoning informs our inquiry into whether tribal jurisdiction is colorable. Specifically, when "it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana ’s main rule," then "it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct." Strate , 520 U.S. at 459 n.14, 117 S.Ct. 1404. Under these circumstances, the exhaustion requirement "must give way, for it would serve no purpose other than delay." Id .

In this case, the threshold question is whether Plaintiff’s claim "bears some direct connection to tribal lands," such that tribal jurisdiction is colorable. Smith , 434 F.3d at 1135. Our inquiry is not narrowly focused on "deciding precisely when and where the claim arose." Id. Rather, we must examine "how the claims are related to tribal lands." Id . at 1132. Tribal jurisdiction is colorable, for example, when the events that "form the bases for [Plaintiff’s] claims occurred or were commenced on tribal territory." A & A Concrete, Inc. v. White Mountain Apache Tribe , 781 F.2d 1411, 1416 (9th Cir. 1986).

If Plaintiff’s claim...

To continue reading

Request your trial
20 cases
  • Kisor v. McDonough
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 30, 2021
    ...By mixing necessary and sufficient conditions, the Prost Concurrence commits a classic fallacy. See, e.g. , Wilson v. Horton's Towing , 906 F.3d 773, 782 (9th Cir. 2018) ("Plaintiff's argument commits the logical fallacy of mistaking a sufficient factor for a necessary one."); Arar v. Ashcr......
  • Rivera v. Merchants Auto. Grp., Inc.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 18, 2022
    ...establish scope of office or employment for purposes of removal. 28 U.S.C. § 2679(d)(2) (emphasis added); Wilson v. Horton's Towing , 906 F.3d 773, 780 (9th Cir. 2018) ; see also Osborn v. Haley , 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). After certification by the Attorney ......
  • McElroy v. United States
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 25, 2023
    ...... without prejudice. Wilson v. Horton's Towing,. 906 F.3d 773, 783 (9th Cir. 2018). . . ......
  • Sonner v. Premier Nutrition Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 29, 2022
    ...lack of subject matter jurisdiction, we would have vacated and remanded with instructions to that effect. Cf. Wilson v. Horton's Towing , 906 F.3d 773, 783–84 (9th Cir. 2018) (vacating the district court's with-prejudice dismissal and remanding because the plaintiff could "potentially renew......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT