Submitted: October 17, 2018
from United States District Court for the District of South
Dakota - Rapid City
SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
Stanko, a non-Indian, filed this common law and 42 U.S.C.
§ 1983 action against the Oglala Sioux Tribe and various
tribal officers, seeking damages for their violation of his
constitutional and civil rights. The pro se complaint alleged
that, while traveling on a federally-maintained highway on
the Pine Ridge Reservation in South Dakota, tribal officers
arrested and detained him on an illegally issued warrant;
took him to the Kyle Police Department jail instead of the
Oglala Sioux Tribal Court; assaulted, battered, and placed
him in isolation because he was a non-Indian; and stole $700
from his wallet. Stanko appeals the district
court order granting defendants' motion to
dismiss all claims. We affirm the dismissal with prejudice of
claims against the Tribe and the individual defendants acting
in their official capacities because those claims are barred
by the Tribe's sovereign immunity. We affirm the
dismissal without prejudice of claims against defendants
acting in their individual capacities on a different ground,
failure to exhaust tribal court remedies.
Claims Barred by Tribal Sovereign Immunity.
tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign
powers." Santa Clara Pueblo v. Martinez, 436
U.S. 49, 58 (1978); see Alltel Commc'ns, LLC v.
DeJordy, 675 F.3d 1100, 1102 (8th Cir. 2012). The Oglala
Sioux are a federally recognized tribe. See Indian
Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 83 Fed. Reg. 34, 863
(July 23, 2018). Thus, as a matter of federal law, the Tribe
is subject to suit only if Congress has authorized the suit
or the tribe has waived its immunity. Amerind Risk Mgmt.
Corp. v. Malaterre, 633 F.3d 680, 685 (8th Cir. 2011).
district court properly rejected Stanko's contention that
Congress expressly authorized § 1983 suits against
Indian tribes. See Will v. Mich. Dept. of State
Police, 491 U.S. 58, 67 (1989) ("in enacting §
1983, Congress did not intend to override well-established
immunities or defenses under the common law"); cf.
Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701,
709 (2003). Stanko made no showing that the Tribe has waived
its sovereign immunity; indeed, the Tribe specifically
reserved its right to assert sovereign immunity absent
consent in 2001 and reaffirmed tribal immunity in 2015. OST
Ord. No. 01-22; OST Ord. No. 15-16. On appeal, quoting an
article by an eminent law professor, Stanko argues that
"sovereign immunity is an anachronistic relic and the
entire doctrine should be eliminated from American law."
Erwin Chemerinsky, Against Sovereign Immunity, 53
Stan. L. Rev. 1201, 1201 (2001). Whatever the merits of this
view, "it is too late in the day, and certainly beyond
the competence of this court, to take issue with a doctrine
so well-established." Alltel, 675 F.3d at 1106
district court properly dismissed Stanko's claims against
individual tribal officers acting in their official
capacities as also barred by the Tribe's sovereign
immunity. "A suit against a governmental officer in his
official capacity is the same as a suit against the entity of
which the officer is an agent." McMillian v. Monroe
County, 520 U.S. 781, 785 n.2 (1997) (cleaned up).
"There is no reason to depart from these general rules
in the context of tribal sovereign immunity." Lewis
v. Clarke, 137 S.Ct. 1285, 1292 (2017).
pro se Response to defendants' motion to dismiss, Stanko
argued his complaint states a claim against defendants for
violation of the Indian Civil Rights Act ("ICRA"),
25 U.S.C. § 1302. The district court did not address
this contention; we conclude it is without merit. In §
1302, Congress exercised its "plenary authority to
limit, modify or eliminate the powers of local
self-government which the tribes otherwise possess . . . . by
imposing certain restrictions upon tribal governments
similar, but not identical, to those contained in the Bill of
Rights and the Fourteenth Amendment." Santa
Clara, 436 U.S. at 56-57. However, because
"Congress also intended to promote the well-established
federal policy of furthering Indian self-government,"
the Court held there is no implied private right of action
against tribal officers in federal court to remedy alleged
ICRA violations, other than "the habeas corpus
provisions of [25 U.S.C.] § 1303." Id. at
62, 70 (quotation omitted). Thus, Stanko's complaint did
not state a claim under ICRA against any defendant.
Individual Capacity Claims.
claims against tribal officers acting in their individual
capacities are not barred by the Tribe's sovereign
immunity. See Lewis, 137 S.Ct. at 1292-93. The
district court dismissed those claims without prejudice
because Stanko's "allegations fail to state a claim
upon which relief can be granted." See
Fed.R.Civ.P. 12(b)(6). We review this issue de novo.
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 936 (8th Cir. 2012) (standard of review).
pro se complaint alleged that the individual defendants
violated his Fourth Amendment, Eighth Amendment, and
Fourteenth Amendment rights. It alleged the district court
had subject matter and personal jurisdiction under 28 U.S.C.
§§ 1331 and 1343 (federal question and federal
civil rights jurisdiction). Diversity of citizenship was not
alleged. The district court ruled that these allegations
failed to state a claim because "provisions of the Bill
of Rights, as well as . . . the Fourteenth Amendment" do
not "operate upon the powers of local self-government
enjoyed by the tribes," quoting Santa Clara,
436 U.S. at 56, which in turn quoted Talton v.
Mayes, 163 U.S. 376, 384 (1896). We disagree. These
cases did not establish that tribal officers cannot be sued
individually for violating the constitutional rights of
non-Indians while on tribal lands. Non-Indian United States
citizens do not shed their constitutional rights at an Indian
reservation's border. Thus, the inquiry must focus on
whether Stanko stated a plausible claim for violation of
those rights that survives defendants' motion to dismiss
these claims. "A non-frivolous claim of a [federal]
right or remedy . . . is sufficient to invoke federal
question jurisdiction." Weeks Constr., Inc. v.
Oglala Sioux Hous. Auth., 797 F.2d 668, 672 (8th Cir.
pro se complaint described his claims as "a common law
complaint and a complaint pursuant to 42 USC §
1983." The district court ruled (alternatively) that the
complaint failed to state a § 1983 claim because it did
not allege "that the Individual Tribal Defendants were
acting under color of state law." See West v.
Atkins, 487 U.S. 42, 49 (1988) ("acting under color
of state law requires that the defendant in a § 1983
action have exercised power possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state ...