Oertwich v. Traditional Vill. of Togiak
| Decision Date | 30 March 2022 |
| Docket Number | 19-36029 |
| Parties | Ronald Oertwich, Plaintiff-Appellant, v. Traditional Village of Togiak, AKA Community of Togiak, AKA Native Village of Togiak, AKA Traditional Council of Togiak; Jimmy Coopchiak; Leroy Nanalook; Anecia Kritz; Esther Thompson; John Nick; Willie Wassillie; Herbert Jr. Lockuk; Willie Echuck, Jr.; Craig Logusak, in their individual and official capacities; Paul Markoff; Peter Lockuk, Sr.; Bobby Coopchiak, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Argued and Submitted June 15, 2021
Appeal from the United States District Court for the District of Alaska No. 3:19-cv-00082-JWS John W. Sedwick, District Judge Presiding
David H. Tennant (argued), Law Office of David Tennant PLLC Rochester, New York; Andy L. Pevehouse, Gilman & Associates LLC, Kenai, Alaska; for Plaintiff-Appellant.
Whitney A. Leonard (argued), Rebecca A. Patterson, Richard D. Monkman, and Nathaniel Amdur-Clark, Sonosky Chambers Sachse Miller Monkman LLP, Anchorage, Alaska, for Defendants-Appellees.
Before: Johnnie B. Rawlinson, Morgan Christen, and Ryan D. Nelson, Circuit Judges.
SUMMARY[*]
The panel affirmed in part and reversed in part the district court's dismissal, for lack of subject matter jurisdiction, of Ronald Oertwich's complaint against the Traditional Village of Togiak and various individual defendants.
Oertwich alleged that Tribe, its officers, and members improperly ordered his banishment based on his purported attempt to import alcohol into the City of Togiak, Alaska, and that, in the course of enforcing the banishment order, defendants detained Oertwich in the municipal jail and forced him to board an airplane destined for another city in Alaska.
Affirming in part, the panel held that tribal sovereign immunity deprived the district court of subject matter jurisdiction over Oertwich's claims alleged exclusively against the Tribe. The panel held that tribal sovereign immunity extends to Alaskan tribes even though they are organized as political entities rather than geographical areas or reservations. The panel held that, under controlling precedent, tribal sovereign immunity extends to tortious conduct occurring on non-tribal lands.
The panel also affirmed the district court's order dismissing claims against tribal judicial officers on judicial immunity grounds. The panel concluded that Oertwich failed to sufficiently allege that the tribal judges were not acting in their judicial capacity or that the tribal court's orders were taken in the complete absence of all jurisdiction.
The panel reversed in part and remanded for the district court to fully consider (1) Oertwich's 42 U.S.C. § 1983 claims as to individual defendants in their individual capacities; (2) whether Oertwich is entitled to prospective injunctive relief against individual defendants; and (3) Oertwich's individual tort claims against the individual defendants.
The panel held that if Oertwich's § 1983 claim was asserted against individual defendants in their official capacities, they were entitled to sovereign immunity and the district court lacked jurisdiction to consider the claim. The panel remanded for the district court to analyze whether Oertwich fairly stated § 1983 claims against the individual defendants in their individual capacities and to consider whether Oertwich should be permitted to amend his complaint to clarify whether he alleges that individual defendants acted under color of state law.
The panel wrote that due to the district court's dismissal for lack of subject matter jurisdiction, it did not independently determine if Oertwich sufficiently alleged prospective injunctive relief available under Ex parte Young. As a result, the panel remanded to the district court to afford Oertwich the opportunity to amend his complaint to clarify whether he alleges prospective injunctive relief for threatened or ongoing unlawful conduct by a particular governmental officer.
The panel held that the district court erred in ruling that Oertwich was required to pursue his individual capacity claims premised on violations of state law in tribal court. The panel remanded for the district court to consider whether any recovery for Oertwich's state tort claims will run against the individual tribal defendants themselves, and whether they therefore cannot enjoy tribal sovereign immunity.
He wrote that he would affirm the district court's dismissal of the § 1983 claim for failure to allege that the individual defendants acted under the color of state law.
OPINION
Ronald Oertwich (Oertwich) appeals the district court's order dismissing his complaint against Appellee Traditional Village of Togiak (the Tribe) and various individual defendants for lack of subject matter jurisdiction. Oertwich alleged that the Tribe, its officers, and members improperly ordered his banishment based on his purported attempt to import alcohol into the City of Togiak, Alaska, and that, in the course of enforcing the banishment order, defendants detained Oertwich in the municipal jail and forced him to board an airplane destined for another city in Alaska. Oertwich contends that the district court erred in holding that, because the Tribe and its officers were entitled to tribal sovereign immunity, the court lacked subject matter jurisdiction. Oertwich also maintains that the district court did not properly consider his individual capacity claims against the individual defendants, or his claims brought pursuant to 42 U.S.C. § 1983. Finally, Oertwich argues that he is entitled to prospective injunctive relief preventing enforcement of the banishment order. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we hold that tribal sovereign immunity deprived the district court of subject matter jurisdiction over Oertwich's claims alleged exclusively against the Tribe. We also affirm the district court's order dismissing claims against the tribal judicial officers on immunity grounds. However, we reverse and remand for the district court to fully consider (1) Oertwich's § 1983 claims as to individual defendants in their individual capacities; (2) whether Oertwich is entitled to prospective injunctive relief against individual defendants; and (3) Oertwich's individual tort claims against the individual defendants.
In his complaint, Oertwich alleged that he is a non-Native American, non-Native Alaskan who resided in Togiak, Alaska, for over thirty years, and operated the Airport Inn. According to his complaint, "[t]he Traditional Village of Togiak . . . is one of the 229 federally-recognized tribes in Alaska," and the State of Alaska participated in a Village Public Safety Officer (VPSO) Program, that "provide[d] limited public safety services to rural Alaska communities."[1]Oertwich alleged that the Traditional Village of Togiak "is an Alaska Native Tribe but is not a geographic subdivision of Alaska," and its "members primarily live in and around the City of Togiak, which is not Indian Country, as defined in 18 U.S.C. § 1151."[2] Oertwich alleged that "none of the events relevant to this case occurred within Indian Country."
Oertwich alleged that, in January, 2017, VPSO Roger Wassillie informed Tribal Officer Leroy Nanalook that "a suspicious tote addressed to Oertwich . . . had arrived in Togiak via Everts Air Cargo." Officer Nanalook "opened the tote, which allegedly contained bottles of alcohol," and "seized the tote and [its] contents."
Oertwich further alleged that, on March 27, 2017, the Togiak Tribal Court issued an order banishing him from the Native Village of Togiak Tribe due to his "possession of prohibited controlled substances." Oertwich alleged that he was subsequently confronted by Officer Nanalook and Willie Echuck, Jr., who "escorted Oertwich to his home, where he had only a few minutes to gather some personal property," and placed him "onto a plane to Dillingham."
Oertwich returned to Togiak the following day. Officer Nanalook and VPSO Wassillie arrested Oertwich, "placed him in the back of a Togiak Tribal Police vehicle," "drove Oertwich to the City of Togiak jail," and "placed him in a locked jail cell." Oertwich alleged that VPSO Wassillie seized his personal property, and "Oertwich was held by force in the City of Togiak jail cell" until approximately April 3, 2017. According to Oertwich, "Willie Echuck Jr., Craig Logusak, and other [tribal] members acted as his jailors, restricting his access to food, his insulin, basic hygiene and communication." Oertwich further alleged that Officer Nanalook and individual defendants Jimmy Coopchiak, Herbert Lockuk Jr., Bobby Coopchiak, and Paul Markoff "tackled Oertwich, pinned him down on the floor of the jail cell, cuffed his hands behind his back, and bound his legs with duct tape," "placed him in a Tribal Police vehicle, and drove him to the Togiak airport." Oertwich alleged that "at the Togiak airport, [Officer] Nanalook, Peter Lockuk Sr. and Paul Markoff carried Oertwich from the police car and put him onto a Grant Aviation airplane to Dillingham." Oertwich alleged that he has resided in Oregon after his banishment because he "believes he would be in danger if he attempted to reside in Togiak again."
Oertwich's complaint asserted the following causes of action against the Tribe, and its members and officials: Count I for ultra vires acts premised on the Tribe's lack of authority to arrest, detain, and banish him; Count II for violations of the Indian Civil Rights...
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