Native Village of Tyonek v. Puckett
| Decision Date | 13 January 1992 |
| Docket Number | Nos. 87-3569,87-3587 and 87-3588,s. 87-3569 |
| Citation | 957 F.2d 631 |
| Parties | NATIVE VILLAGE OF TYONEK, Plaintiff-Appellee, v. Donald PUCKETT, and Erna Puckett; Fred Slawson, and Virginia Slawson, Defendants-Appellants. NATIVE VILLAGE OF TYONEK, Plaintiff-Appellant, v. Donald PUCKETT; Erna Puckett; Alexandra Kaloa; Esther Kaloa; Fred Slawson; Virginia Slawson; Alec Constantine; Olga Constantine, Defendants-Appellees. NATIVE VILLAGE OF TYONEK, Plaintiff-Appellee, v. Donald PUCKETT, and Erna Puckett; Fred Slawson, and Virginia Slawson, Defendants, and Alexandra Kaloa; Esther Kaloa; Alec Constantine; Olga Constantine, Defendants-Appellants. . Opinion Filed |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bertram E. Hirsch, Floral Park, N.Y., James F. Vollintine, Anchorage, Alaska, for plaintiff-appellant.
Randall G. Simpson, Jermain, Dunnagan & Owens; Lewis F. Gordon, Ashburn & Mason, Anchorage, Alaska, for defendants-appellees, cross defendants-appellants.
On remand from the United States Supreme Court.
Before WRIGHT, ALARCON and POOLE, Circuit Judges.
The opinion filed January 13, 1992, is withdrawn.
In Native Village of Tyonek v. Puckett, 890 F.2d 1054 (9th Cir.1989), we reversed the dismissal of the Village of Tyonek's (Village) complaint against Donald and Erna Puckett (Pucketts) and Fred and Virginia Slawson (Slawsons). We affirmed the dismissal of the Pucketts and Slawsons counterclaims against the Village, and their third-party claims against four Village Council officials. We also affirmed the dismissal of the Village's complaint against Alexandra and Esther Kaloa (Kaloas) and Alec and Olga Constantine (Constantines). This matter was remanded to this court by the Supreme Court for our reconsideration in light of its decision in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, --- U.S. ----, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). We have concluded that we cannot determine the applicability of Oklahoma Tax Commission until the district court has had the opportunity to prepare express findings to support its holding that the Native Village of Tyonek is an Indian tribe protected by the doctrine of sovereign immunity, and that its real property is "Indian country."
The Native Village of Tyonek (Village) filed a complaint in the district court. The object of this action is to evict Donald and Erna Puckett (Pucketts) and Fred and Virginia Slawson (Slawsons) from Village territory because they are not members of the tribe. The Village alleged that the extended presence of non-members Pucketts and Slawsons in Village territory violated Village Ordinance No. 4. The Village also sought to enjoin tribal members Alexandra and Esther Kaloa (Kaloas), and Alec and Olga Constantine (Constantines) from leasing their homes to the Pucketts and Slawsons in violation of Village Ordinance No. 65-32.
The Pucketts and Slawsons filed counterclaims against the Village and third party complaints against four Village Council officers, alleging violations of their constitutional and civil rights. The Kaloas and Constantines moved to dismiss the Village's complaint. The remaining parties moved for summary judgment.
The district court dismissed the Village's complaint for lack of subject matter jurisdiction. The district court also dismissed the counterclaims and third party complaints. The district court concluded that the Village is a tribe and is immune from suit under the doctrine of sovereign immunity and that the Village Council officers are protected from liability based on derivative sovereign immunity. The district court explained its ruling on this question as follows:
I conclude, based upon Tyonek's history and the manner in which the federal government has dealt with Tyonek, that the Village possesses sovereign immunity from suit like that of any other Indian tribes in the contiguous United States. I further conclude that neither the federal government nor Tyonek has waived the Village's immunity in this case or consented for the Pucketts and Slawsons to bring counterclaims against it. I also conclude that the claims of the Pucketts and Slawsons against Tyonek's officers are based upon conduct within the scope of these officers' official capacities and within the scope of the authority that the Village is capable of bestowing upon them.
The district court did not enter written findings in support of its conclusion that the Village is a tribe protected by the doctrine of sovereign immunity.
The Kaloas and Constantines appeal from the dismissal of the Village's complaint against them. The Village appeals from the dismissal of the complaint. The Pucketts and the Slawsons appeal from the dismissal of their counterclaims and third-party claims. This court has jurisdiction over each appeal under 28 U.S.C. § 1291.
The Kaloas and Constantines argue that the injunctive relief sought by the Village, if granted, would amount to the judicial enforcement of a racially restrictive ordinance in violation of the United States Constitution, the Indian Civil Rights Act (25 U.S.C. § 1302), the Civil Rights Act of 1866 (42 U.S.C. § 1982), the Village's own corporate charter, and Supreme Court precedent.
Because the district court dismissed the Village's complaint against the Kaloas and Constantines and did not grant injunctive relief, the Kaloas and Constantines have no standing to appeal. See Public Serv. Comm'n v. Brashear Freight Lines Inc., 306 U.S. 204, 206, 59 S.Ct. 480, 481, 83 L.Ed. 608 (1939) (); Bryant v. Technical Research Co., 654 F.2d 1337, 1343 (9th Cir.1981) (). Accordingly, their appeal must be dismissed.
The district court concluded it did not have subject matter jurisdiction over the Village's complaint because the claims alleged against the defendants involved the enforcement of village ordinances and not federal law. In so holding, the district court relied on the rationale of Boe v. Fort Belknap Indian Community, 642 F.2d 276 (9th Cir.1981), in which we held that the application of a tribal ordinance did not involve a federal question. Id. at 279. We agree with the district court that we do not have subject matter jurisdiction under Boe to hear the Village's complaint against the Kaloas and Constantines. As in Boe, the Village argues that the allegations in their complaint are sufficient to state a cause of action which 'arises under' federal law because the Village's ordinances were adopted pursuant to and under the authority of the Indian Reorganization Act, 25 U.S.C. §§ 476, 477. Although "[i]t is true that 25 U.S.C. §§ 476, 477 provide the authority and procedures whereby Indian tribes may adopt constitutions and bylaws and ratify corporate charters, ... that fact alone is insufficient to confer federal question jurisdiction" over a dispute between members of a tribe. Id. We also conclude, however, that Boe does not preclude us from asserting subject matter jurisdiction over the Village's complaint against the Pucketts and Slawsons.
Boe involved the application of a tribal ordinance exclusively to tribal members. Boe is distinguishable from the present situation because the Village's complaint against the Pucketts and Slawsons involves the application of a village ordinance to non-members of the Native Village of Tyonek. The rule concerning the application of a tribal ordinance to non-members of a village is expressed in Chilkat Indian Village v. Johnson, 870 F.2d 1469, 1473-75 (9th Cir.1989). In Johnson, the Chilkat village council sought damages from non-member defendants who removed Chilkat artifacts in contravention of a Village ordinance. Id. at 1470. The district court dismissed on jurisdictional grounds. Id. We reversed the dismissal of the claim of the Chilkat Village Council. We held that the district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1362. Id. at 1473. As we explained, Id. (footnote omitted).
A similar question is presented in this matter. The Village of Tyonek is attempting to apply its ordinance to non-members of the Tyonek Village. Pursuant to Ordinance No. 4, the Village is attempting to bar non-members from staying in the Village for any period longer than 24 hours unless they receive the Village's permission to remain. As in Johnson, the Village's power to apply this ordinance will require a showing of its authority, under federal law, to enact and enforce this ordinance against non-members of the Village. Id. at 1474.
The Pucketts and Slawsons contend that the Village is not entitled to protection from suit under the doctrine of sovereign immunity. They argue that the Village fails to meet the prerequisites for the application of sovereign immunity set forth in Oklahoma Tax Commission. We cannot address the effect, if any, of Oklahoma Tax Commission on the question whether the Village possesses sovereign immunity from suit by the Pucketts and Slawsons, because the present record fails to set forth sufficient facts to demonstrate that the Village is an Indian tribe in the political sense, and that the real property it owns is Indian country.
"[S]overeign immunity is an incident of sovereign power, and ... the sovereign power of an Indian...
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