Evans v. McKay, 87-3761

Citation869 F.2d 1341
Decision Date16 March 1989
Docket NumberNo. 87-3761,87-3761
PartiesCarl EVANS; Marilyn Evans, Plaintiffs-Appellants, v. Joe McKAY, individually and as Blackfeet Tribal Member; Glenn Little Bird; Greg Gilham; Carl Pepion, individually and as Bureau of Indian Affairs Police Officers, and as City of Browning Police Officers; City of Browning, Montana, a municipal corporation; Michael Fairbanks, individually and as Superintendent of Blackfeet agency; Dan Harwood, individually and as Administrative Officer of Blackfeet Agency; Philip Roy, individually and as Blackfeet Tribal Attorney; Richard Evans, a Blackfeet tribal member; Les Cobell, individually and as Blackfeet Game Warden; Leonard Mountain Chief, individually and as Blackfeet Tribal Council Member, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Vance Gillette, Garrison, N.D., for plaintiffs-appellants.

Edward J. Shawaker, Washington, D.C., for federal defendants-appellees.

Ross W. Cannon, Helena, Mont., for city defendants-appellees.

Philip E. Roy, Browning, Mont., for tribal defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before FLETCHER and HALL *, Circuit Judges, and CARROLL **, District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The plaintiffs-appellants, Marilyn Evans and her son, Carl Evans, are non-Indians residing in Browning, Montana, a city located within the boundaries of the Blackfeet Indian Reservation. The Evanses brought civil rights actions emanating from alleged deprivations by the named defendants of rights secured by the Constitution and laws of the United States. An original complaint and three amended complaints were filed. Relief was sought pursuant to 42 U.S.C. Secs. 1981, 1983, 1985(2) and (3), Bivens, and federal common law. 1 Named as defendants were the Blackfeet Tribe of Indians ("Tribe"); Richard Evans, who is a member of the Blackfeet 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; the City of Browning, Montana; and certain officials and agents of the City of Browning.

On motion of the defendants, the district court dismissed the action in its entirety. Evans v. Little Bird, 656 F.Supp. 872 (D.Mont.1987). The action against the Tribe was dismissed as barred by the doctrine of sovereign immunity, and against the other defendants on the ground that the complaint failed to state a claim upon which relief can be granted.

The district court had jurisdiction under 28 U.S.C. Secs. 1331, 1343, and 2201. This court has jurisdiction under 28 U.S.C. Sec. 1291. The Evanses timely appeal.

I

Richard and Marilyn Evans were getting a divorce. Prior to this dissolution, the Evanses operated a business known as "Evans Chevron" which was located on the Blackfeet Indian Reservation in Browning, Montana. This business consisted of a gas station, convenience store, and tire shop. Richard Evans is a member of the Blackfeet Tribe; Marilyn Evans and her son, Carl Evans, are non-Indians.

In October 1984, Marilyn Evans was in possession of a supply of tax-free cigarettes. Tribal laws authorize the sale of tax-free cigarettes by Tribe members only. On October 19, 1984, on the petition of Richard Evans and the Blackfeet Tax Commission, the Tribal Court issued an order directing the police to seize the cigarettes and store them in a neutral place. The police in Browning operate in a dual capacity--as law enforcement officers of the Bureau of Indian Affairs (BIA), and of the City of Browning. On October 1, 1981, the Blackfeet Tribe retroceded its law enforcement program to the BIA. As a result, the BIA police also enforce tribal law on the reservation.

On October 19, 1984, the police attempted to take possession of the cigarettes. Although allegedly detained for over one hour, Mrs. Evans refused to give up the cigarettes. On October 23, 1984, the police again attempted to seize the cigarettes pursuant to the Tribal Court order. Mrs. Evans and Carl resisted the police. Pursuant to Browning city ordinance 9.04.010, they were arrested for interfering with the police in the performance of their duties. The cigarettes were seized on that same day.

On August 22, 1985, the Tribal Court issued an order for the seizure of certain tire repair equipment in the possession of Marilyn Evans. The police allegedly detained the Evanses for one hour while Richard Evans seized assets from Evans Chevron. Carl Evans again was arrested pursuant to the city ordinance for resisting the police.

II

We review de novo a dismissal for failure to state a claim. Mullis v. Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir.1987). In reviewing such a dismissal, it must appear to a certainty that plaintiffs would not be entitled to relief under any set of facts that could be proved. Id. All material allegations in the complaint are to be taken as true and construed in the light most favorable to the non-moving party. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986). All other questions presented by this appeal are issues of law which this court reviews de novo. See Big Spring v. United States BIA, 767 F.2d 614, 616 (9th Cir.1985), cert. denied, 476 U.S. 1181, 106 S.Ct. 2914, 91 L.Ed.2d 543 (1986).

III

Appellants contend that their claim under 42 U.S.C. Sec. 1981 2 against the individual defendants was sufficient to withstand a Rule 12(b)(6) motion to dismiss. The district court dismissed the appellants' claim on the basis that the pleadings contained only bare allegations of a conspiracy and that the appellants "fail[ed] to allege facts to show the existence of a conspiracy designed to deprive the Evans equal protection, privilege or immunity under the law because of their race." Evans, 656 F.Supp. at 876.

Contrary to the district court's assessment, claims under 42 U.S.C. Sec. 1981 do not require allegations of conspiracy. See Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). What is required in a section 1981 action, however, is that the plaintiffs must show intentional discrimination on account of race. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1986), as amended, 784 F.2d 1407 (9th Cir.1986); see also General Bldg. Contractor Ass'n v. Pennsylvania, 458 U.S. 375, 387-91, 102 S.Ct. 3141, 3148-50, 73 L.Ed.2d 835 (1982). Section 1981 prohibits private racial discrimination against white persons as well as against nonwhites. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 296, 96 S.Ct. 2574, 2586, 49 L.Ed.2d 493 (1976).

In the instant case, the appellants alleged that because of their race, the individual defendants instigated an "arrest-boycott conspiracy" in an effort "to drive plaintiffs out of business, run them off the Reservation, and violate their civil rights." Appellants further alleged that as a result of the individual defendants' acts and racial slurs, they suffered personal and economic harm, along with a deprivation of their civil rights. The overt acts of racial discrimination and conspiracy set forth in their complaint consist of an "order" by BIA defendants Fairbanks and Harwood "that BIA police and roads employees not ... get gas from Marilyn Evans." A similar allegation is made against a member of the Tribal Council, Mountain Chief, with respect to his alleged "order" to the tribal game warden, Cobell, and "others" not to do business with the appellants. The Evanses also assert that a sufficient allegation of racial animus was pleaded in a statement by Mountain Chief that "whites have no rights on the reservation."

This court has recently held that overt acts coupled with racial remarks are sufficient to state a claim under 42 U.S.C. Secs. 1985(2) and (3). Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). 3 In Usher, a black male brought an action against the City of Los Angeles and City police officers for violations of his civil rights. In his complaint, Usher alleged that he was arrested without cause, held handcuffed for several hours and denied toilet privileges, and then prosecuted under contrived charges; he specifically alleged that in the course of his arrest he was called a "nigger" and a "coon." The court stated that by pleading that racial slurs were directed against him, Usher made an allegation of racial animus sufficient to survive a motion to dismiss. Id. at 561.

Similarly, the Evanses have pleaded overt acts coupled with some direct evidence that the defendants' conduct was motivated by racial animus. At this stage of the proceedings, we have to assume the truth of the allegations in the complaint relating to a racially-motivated "arrest-boycott conspiracy," and construe them in the light most favorable to the appellants. We conclude that the Evanses have pleaded sufficient facts to defend their section 1981 claim against a 12(b)(6) motion, and that the district court erred in dismissing that claim.

IV

Appellants next contend that the district court erred in dismissing their 42 U.S.C. Sec. 1983 action against the Tribe, 4 the individual defendants, and the City of Browning for failure to state a claim. To determine whether the appellants' complaint was sufficient to state a claim under section 1983, we look to each of these three classes of defendants in turn.

A

The district court held that the claims against the Tribe were barred by the doctrine of sovereign immunity. Appellants contend that certain provisions of the Indian Self-Determination Act ("ISDA" or "the Act"), 25 U.S.C. Secs. 450-458e (1982 & Supp. IV 1986), or the terms of certain contracts authorized by those statutory provisions, constitute a waiver or abrogation of the Tribe's sovereign immunity.

The common law immunity...

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