Evans v. Little Bird
| Decision Date | 05 March 1987 |
| Docket Number | No. CV-84-270-GF.,CV-84-270-GF. |
| Citation | 656 F. Supp. 872 |
| Parties | Marilyn EVANS and Carl Evans, Plaintiffs, v. Glenn LITTLE BIRD, Greg Gilham, and Carl Pepion, individually and as Bureau of Indian Affairs Police Officers, and as City of Browning Police Officers; James Arnoux, individually and as Blackfeet Prosecutor and as City of Browning Prosecutor; Don Sollars, individually and as Blackfeet Judge and as City of Browning Magistrate; City of Browning, Montana, a municipal corporation; Michael Fairbanks, individually and as Superintendent of Blackfeet Agency; Dan Harwood, individually as Administrative Officer of Blackfeet Agency; Blackfeet Tribe of Indians; Joe McKay, individually and as Blackfeet Tribal Council Member; Philip Roy, individually and as Blackfeet Tribal Attorney; Richard Evans, a Blackfeet tribal member; and Leonard Mountain Chief, individually and as Blackfeet Tribal Council Member, Defendants. |
| Court | U.S. District Court — District of Montana |
Marilyn Evans, pro se.
Vance Gillette, Browning, Mont., Andrew M. Small, Billings, Mont., for plaintiffs.
Richard Evans, pro se.
Don Kittson, Blackfeet Legal Dept., Browning, Mont.
Joe McKay, Blackfeet Tribal Council Member, Blackfeet Tribe, Phillip Roy, Blackfeet Legal Dept., Browning, Mont., for Tribal defendents.
James Arnoux, City of Browning Magistrate, Browning, Mont., George Darragh, Asst. U.S. Atty., Great Falls, Mont., for BIA Police Officers.
Ross W. Cannon, Cannon & Sheehy, Helena, Mont., for defendant City of Browning.
The plaintiffs, Marilyn Evans and Carl Evans, are non-Indians residing in Browning, Montana, located within the exterior boundaries of the Blackfeet Indian Reservation. The Evans bring this action to obtain declaratory relief and monetary compensation for damages emanating from the named defendants' alleged deprivation of the rights secured the Evans by the Constitution and laws of the United States. Named as defendants are the Blackfeet Tribe of Indians (the "Tribe"); certain officials and agents of the Tribe in their individual capacities; the United States of America acting through the Bureau of Indian Affairs ("BIA"); certain officers and agents of the BIA in their individual capacities;1 the City of Browning, Montana; and certain officials and agents of the City of Browning.
This matter is before the court on motion of the defendants. The Tribe and the individual officials and agents of that entity (hereinafter "tribal defendants") seek dismissal of the action upon grounds of sovereign immunity. The United States and the individual federal defendants move to dismiss the complaint upon the ground it fails to state a claim upon which relief can be granted. The City of Browning and the individual officials and agents of that entity also seek dismissal of the complaint upon the ground it fails to state a claim against them upon which relief can be granted.
I. DISCUSSION
This action has its genesis in the arrests of the Evans, on two separate occasions, by law enforcement personnel of the Tribe. The Evans contend their arrests were accomplished without probable cause, in violation of the fourth and fourteenth amendments to the United States Constitution. The Evans also assert that the Tribe and the individually named officials and agents of that entity have conspired to deprive the Evans of their constitutional rights by instituting and propagating a boycott of the Evans' business, a service station. A boycott, the Evans submit, was predicated upon racial animus.
The Evans seek monetary damages against the tribal defendants pursuant to 42 U.S.C. §§ 1981, 1983 and 1985(2) and (3). In the alternative, the Evans seek monetary relief against the individual tribal defendants under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). With respect to the City of Browning and that entity's officials and agents (hereinafter "state defendants"), the Evans seek monetary relief pursuant to 42 U.S.C. § 1983. Finally, the Evans invoke the Bivens doctrine to recover monetary relief against the individually named officials and agents of the BIA (hereinafter "federal defendants").
The court undertakes a separate analysis of the propriety of the Evans' claims for monetary relief against each of these groups of defendants.
The Evans' suit against the Tribe is barred by the doctrine of sovereign immunity. The common law immunity of the Tribe is coextensive with that of the United States and similarly subject to the plenary control of Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978); Puyallup Tribe v. Dept. of Game of Washington, 433 U.S. 165, 173, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977); Kennerly v. United States, 721 F.2d 1252, 1258 (9th Cir.1983). Since there has been no express waiver or consent by the Tribe to a suit of this nature, nor any congressional authorization for such a suit against the Tribe, this court is without jurisdiction to entertain the claims advanced against the Tribe. See, Santa Clara Pueblo v. Martinez, supra; Kennerly v. United States, supra.
The court is cognizant of the fact that the officials and agents of the Tribe do not have the same immunity as the Tribe itself. See, Kennerly v. United States, supra, 721 F.2d at 1259 (citing Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. at 1677).2 Consistent with its opinion in Kennerly v. United States, 534 F.Supp. 269 (D.Mont.), rev'd. in part on other grounds, 721 F.2d 1252 (9th Cir.1983), however, the court concludes that the claims advanced by the Evans against the individual tribal defendants are beyond the jurisdiction of the federal courts. 534 F.Supp. at 277-78. Redress for an alleged deprivation of civil rights accomplished under color of tribal law must be sought in the appropriate tribal court under the Indian Civil Rights Act. 25 U.S.C. §§ 1301-1303. Id. at 278. Relief is not available under either a 42 U.S.C. § 1983 state action analogy theory, or a Bivens doctrine theory. Ibid.3
The Evans name as defendants two members of the Blackfeet Tribal Council, i.e., McKay and Mountain Chief; the tribal attorney, i.e., Roy; the tribal game warden, i.e., Cobell; and three law enforcement officers of the Tribe, i.e., Little Bird, Gilham and Pepion.4 The allegations of the Evans' complaint, as amended, establish that these individual tribal defendants were, at all times pertinent to this action, acting within their official capacities and under authority of tribal law. The seizure and arrests of which the Evans complain, by the Evans' own admission, were accomplished pursuant to order of the Tribal Court. Any claim for relief emanating from the conduct of these individuals must be prosecuted in the Blackfeet Tribal Court under authority of the ICRA.
As previously noted, the Evans name the defendant law enforcement officers individually and as agents of the BIA, the Tribe, and the City of Browning. The parties do not dispute that the individually named law enforcement officers operate in a "triple" capacity. Yet, after having had three opportunities to amend their complaint and elucidate the basis upon which they predicate a claim against the individual officers under either section 1983 or the Bivens doctrine and, hence, against the City of Browning and the United States, the Evans fail to plead a claim cognizable under section 1983 or the Bivens doctrine.
In section 1 of their third amended complaint, the Evans assert the "seizure and arrests" at issue were based on Tribal Court order. Again in section 16, the amended complaint refers to the subject arrests, i.e., October, 1984, being effectuated pursuant to Tribal Court order. Finally, in section 18, the amended complaint specifically states the line officers detained the Evans on August 22, 1985, pursuant to Tribal Court order. Consequently, the Evans' redress would lie under the ICRA, not section 1983 or the Bivens doctrine.
The Evans do not point to any inherent illegality in the "triple capacity" occupied by the individually named officers. The mere fact these individuals may wear a different "hat" in the performance of their duties is not, in itself, sufficient to invoke section 1983 or the Bivens doctrine to impose liability upon these individual officers, or the United States and the City of Browning via the doctrine of respondeat superior.5 The arrest and detention for which the Evans seek redress are attributable to action taken by the Tribe, its officers and agents. The Evans state no claim against the United States, the City of Browning or any officers of those entities for those incidents.
Invoking relief under 42 U.S.C. §§ 1981, 1983 and 1985 subsections (2) and (3), the Evans allege the tribal defendants and defendant Richard Evans conspired with City of Browning police to "arrest and boycott against white plaintiffs" in an effort "to drive plaintiffs out of business, run them off the Reservation, and violate their civil rights." The overt acts in furtherance of the alleged conspiracy set forth by the Evans consists of an "order" by defendant Mountain Chief (a member of the Tribal Council) directing defendant Cobell and "others" not to do business with Marilyn Evans. A similar allegation is made against defendants Harwood, Fairbanks and Little Bird with respect to their alleged directive to BIA personnel not to purchase gasoline from Marilyn Evans.
The court is compelled to agree with the defendants that these allegations are insufficient to state a claim of conspiracy for which relief can be granted under either section 1981, section 1983 or section 1985.
Pleading a conspiracy demands specific allegations. While a plaintiff is not required to plead his/her evidence, general...
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