Opinion
No. 03-4203-SAC.
July 27, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dk. 11). The plaintiff is a former owner of a retail fireworks operation located in Mayetta, Kansas. The plaintiff alleges in the complaint that the defendants are employees of the Prairie Band Potawatomi Tribal Police Force who were acting under that authority conveyed to them as tribal police officers. The plaintiff alleges the defendants executed an arrest warrant on him despite knowing that the plaintiff had not made the illegal sale of fireworks and that the plaintiff had sold the entire fireworks business months before the illegal fireworks sale. The plaintiff claims the defendants acting under color of law granted to them by the Potawatomi Indian Reservation violated his Fourth Amendment rights by unlawfully arresting him without probable cause. The plaintiff seeks declaratory and injunctive relief against further deprivations of liberty, actual compensatory damages in excess of $100,000.00, and punitive damages in excess of $100,000.00.
In their motion, the defendants assert sovereign immunity from any federal suit and challenge subject matter jurisdiction on the same ground. Characterizing the plaintiff's claims as based exclusively on the defendants' actions as officers of the Prairie Band Potawatomi Tribal Police Force, the defendants assert the same sovereign immunity enjoyed by Indian tribes. The defendants deny any applicable waiver of immunity for habeas corpus claims under the Indian Civil Rights Act. The defendants maintain the dismissal is appropriate even if the plaintiff purports to sue them in their individual capacity.
In response, the plaintiff concedes his complaint does not identify whether the defendants are being sued in their official or individual capacities. The plaintiff states his intention to amend the complaint so as to clarify that his suit is against the defendants in only their individual capacities, that he is not bringing a claim under the Indian Civil Rights Act, and that his only theory of recovery is under 42 U.S.C. § 1983 for the violation of his Fourth Amendment right to be free from unreasonable seizure. The plaintiff argues that tribal sovereign immunity does not protect the defendants from individual capacity claims under § 1983. The plaintiff asks the court to deny the defendants' motion and grant him leave to amend the complaint as clarified in his response.
"Tribal sovereign immunity is a matter of subject matter jurisdiction, . . ., which may be challenged by a motion to dismiss under Fed.R.Civ.P. 12(b)(1). . . ." E.F.W. v. St. Stephen's Indian High School, 264 F.3d 1297, 1302-03 (10th Cir. 2001) (citations omitted). Upon a defendant's Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of proving jurisdiction. Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984 (1992). Rule 12(b)(1) attacks on subject matter jurisdiction typically are either facial attacks on the sufficiency of jurisdictional allegations or factual attacks on the accuracy of those allegations. Holt v. United States, 46 F.3d 1000, 1002-3 (10th Cir. 1995). A facial attack questions the sufficiency of the allegations in the complaint as they relate to subject matter jurisdiction, and the district court in addressing this attack accepts the allegations in the complaint as true. Holt, 46 F.3d at 1002. The defendants here limit their motion to a facial challenge to the sufficiency of the plaintiffs' complaint. On such motions, the court accepts the well-pleaded material allegations as true and construes them to favor the plaintiff. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, 513 U.S. 868 (1994).
Accepting the plaintiff's concessions and limiting the plaintiff's claims to what would remain after his proposed clarifying amendments, the court's analysis need only address whether the plaintiff has alleged viable § 1983 claims against the defendants in their individual capacities that would afford this court subject matter jurisdiction. The plaintiff argues the complaint includes the requisite facts for a § 1983 claim as alleged in ¶¶ 6 and 21 that the defendants "were acting under authority conveyed to them by the Indian Territory." (Dk. 16, p. 4). Tenth Circuit case law plainly holds that such allegations do not state a § 1983 action:
Even if the plaintiff had chosen not to drop his official capacity suit, it would not have avoided dismissal. "A tribal officer is entitled to sovereign immunity if his actions are within the scope of his authority." Sulcer v. Davis, 986 F.2d 1429, 1993 WL 53613 (10th Cir. Feb. 18, 1993) (citations omitted), cert. denied, 510 U.S. 870 (1993); see Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997). Nor does the plaintiff's complaint allege a viable cause of action under the Indian Civil Rights Act, because a writ of habeas corpus is "[t]he only federal relief available under" it. Wheeler v. Swimmer, 835 F.2d 259, 261 (10th Cir. 1987).
[N]o action under 42 U.S.C. § 1983 can be maintained in federal court for persons alleging deprivation of constitutional rights under color of tribal law. . . . As the purpose of 42 U.S.C. § 1983 is to enforce the provisions of the fourteenth amendment, it follows that actions taken under color of tribal law are beyond the reach of § 1983, and may only be examined in federal court under the provisions of the Indian Civil rights Act. Sulcer v. Davis, 986 F.2d 1429, 1993 WL 53613 at *2 (10th Cir. Feb. 18, 1993) (quoting R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 982 (9th Cir. 1983) (citations omitted), cert. denied, 472 U.S. 1016 (1985)), cert. denied, 510 U.S. 870 (1993). Put another way, "[i]t is well settled that a defendant's actions pursuant to Tribal authority are not `under color of state law' for the purposes of maintaining an individual capacity suit against that defendant under 42 U.S.C . § 1983." E.F.W. v. St. Stephen's Mission Indian High School, 51 F. Supp.2d 1217, 1230 (D. Wyo. 1999), aff'd, 264 F.3d 1297 (10th Cir. 2001). "Indian tribes are not states of the union within the meaning of the Constitution, and the constitutional limitations on the states do not apply to tribes." Chapoose v. Hodel, 831 F.2d 931, 934 (10th Cir. 1987); see also Pounds v. Killion, 35 Fed. Appx. 819, 821, 2002 WL 1038774, at *1 (10th Cir. May 23, 2002). Thus, the plaintiff has not alleged any claims against these defendants over which this court would have subject matter jurisdiction.
IT IS THEREFORE ORDERED that the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) (Dk. 11) is granted.