Eastern Shawnee Tribe of Oklahoma v. Douthitt et al
Filing
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OPINION AND ORDER by Judge Claire V Eagan ; denying 16 Motion to Dismiss for Lack of Jurisdiction (Re: 2 Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
EASTERN SHAWNEE TRIBE OF
OKLAHOMA,
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Plaintiff,
v.
JON D. DOUTHITT, Magistrate Judge
of the Court of Indian Offenses, Miami,
Oklahoma, in his Official and Individual
Capacities, and THE COURT OF INDIAN
OFFENSES FOR THE EASTERN
SHAWNEE TRIBE OF OKLAHOMA,
Defendants.
Case No. 11-CV-0675-CVE-TLW
OPINION AND ORDER
Now before the Court is Defendants’ Motion to Dismiss and Brief in Support (Dkt. # 16).
Defendants argue that the Court lacks subject matter jurisdiction over this case because plaintiff is
asking the Court to resolve an internal tribal dispute. They also assert that they have not waived
their sovereign immunity from suit and that plaintiff’s claims should be dismissed. Plaintiff
responds that it is asking the Court to determine whether the Court of Indian Offenses for the Eastern
Shawnee Tribe of Oklahoma had jurisdiction to decide an election dispute, and this is a federal
question that can be decided by this Court. They also argue that defendants are not shielded from
suit by the doctrine of sovereign immunity.
I.
The Eastern Shawnee Tribe of Oklahoma (the Tribe) is a federally recognized Indian tribe
based in Ottawa County, Oklahoma. The Tribe has enacted a Tribal constitution that has been
approved by the Bureau of Indian Affairs (BIA), but the constitution does not create a system of
Tribal Courts. Instead, the constitution provides:
Section 1. Until such time as the Business Committee determines that the Tribe is
financially and otherwise prepared to maintain a separate Tribal Court, the judicial
authority of the Tribe shall be exercised by the Court of Indian Offenses. The
jurisdiction of the Court of Indian Offenses shall include, but not be limited to,
criminal and civil jurisdiction, including settlement of tribal disputes and
interpretation of this Constitution and tribal enactments.
Dkt. # 2-1, at 9. The Courts of Indian Offenses (CFR Court) were created by the Department of the
Interior, and the relevant regulations governing these courts are found at 25 C.F.R. Part 11. The
Tribe is under the jurisdiction of the CFR Court of the Miami Agency of the BIA. Under 25 C.F.R.
§ 11.118(b), a CFR Court “may not adjudicate an election dispute, take jurisdiction over a suit
against a tribe, or adjudicate any internal tribal government dispute, unless the relevant tribal
governing body passes a resolution, ordinance, or referendum granting the jurisdiction of the Court.”
In addition, “[a] tribe may not be sued in a [CFR Court] unless its tribal governing body explicitly
waives its tribal immunity by tribal resolution or ordinance.” 25 C.F.R. § 11.118(d).
On June 14, 2008, the members of the Tribe approved a referendum on an Initiative Measure
prohibiting elected Tribal officials from receiving compensation from the Tribe in any capacity other
than their elected office. Dkt. # 2-2, at 3. The Tribe’s Business Committee refused to enforce the
Initiative Measure. Dkt. # 2-6, at 2; Dkt. # 2-10, at 3. Instead, the Business Committee held a
special meeting on January 16, 2009 and called for a referendum on an amendment to the Tribal
constitution that would effectively overrule the June 14, 2008 vote. Dkt. # 2-10, at 4. In March
2009, the new amendment was approved by Tribal voters and the results of the election were
certified by the Tribe’s Election Board. Certain Tribal members filed a challenge to the election
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results with the Eastern Shawnee Election Board but were unsuccessful in their efforts to have the
election invalidated.
A group of Tribal members referred to by the parties as the “Enyart plaintiffs”1 filed a
complaint in the CFR Court to strike the March 2009 referendum. Dkt. # 2-4. The election dispute
was based solely on Tribal law and alleged violations of the Tribe’s constitution. The defendants
in the CFR proceedings were Chief Glenna Wallace, the Business Committee, and the Tribe, and
they filed a motion to dismiss the complaint on the grounds that the CFR court lacked jurisdiction
to hear an election dispute and that the Tribe had not waived its sovereign immunity. The case was
assigned to Magistrate Judge Jon D. Douthitt of the CFR Court. Magistrate Douthitt denied the
motion to dismiss and ruled that the March 2009 referendum was invalid under the Tribe’s
constitution. Dkt. # 2-6. The Business Committee filed a motion for new trial or to stay the
decision, but that motion was denied as well. Dkt. # 2-8. The Business Committee appealed
Magistrate Douthitt’s decision, and the Court of Indian Appeals for the Eastern Shawnee Tribe
Eastern Oklahoma Region stayed Magistrate Douthitt’s order while the appeal was pending. Dkt.
# 2-9. The Court of Indian Appeals found that the Tribal constitution contained language “sufficient
to satisfy the conditions of subsection (b) of 25 C.F.R. 11.118” and that the CFR Court had
jurisdiction to hear an election dispute. Dkt. # 2-10, at 4. It also found that the Tribal defendants
had waived their sovereign immunity from suit. Id. at 5-8.
On November 1, 2011, the Tribe filed this case seeking a declaratory judgment that the CFR
Court lacked jurisdiction to hear the challenge to the March 2009 election results. Dkt. # 2. The
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Charles Enyart was the first plaintiff named in the case caption in the CFR Court. The
remaining plaintiffs were Bud Enyart, Van Huggins, Norman Krause, Vanna Koepke, and
Bud Nelson. Dkt. # 2-4, at 2.
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Tribe also asks the Court to declare that the Tribe has not waived its sovereign immunity from suit
concerning election matters. The Tribe seeks injunctive relief to enforce any declaratory judgment
issued by this Court, but the Tribe is not seeking monetary damages. Id. at 31-33. The Tribe has
named Magistrate Douthitt and the CFR Court as defendants. Defendants have filed a motion to
dismiss this case for lack of jurisdiction. Dkt. # 16.
II.
Federal courts are courts of limited jurisdiction and, as the party seeking to invoke federal
jurisdiction, plaintiff bears the burden of proving that jurisdiction is proper. See Southway v. Cent.
Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003). A court lacking jurisdiction “cannot render
judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent
that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Motions to dismiss under Rule 12(b)(1) “generally take one of two forms. The moving party may
(1) facially attack the complaint’s allegations as to the existence of subject matter jurisdiction, or
(2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual
basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs, Inc. v. Nudell,
363 F.3d 1072, 1074 (10th Cir. 2004) (internal citation and quotations omitted). Here, defendants
have facially attacked the sufficiency of the complaint’s allegations as to the existence of subject
matter jurisdiction over plaintiff’s claim for declaratory and injunctive relief. In analyzing such
motions to dismiss, the Court must presume all of the allegations contained in the complaint to be
true. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002); Holt v. United States, 46 F.3d
1000, 1002-03 (10th Cir. 1995). This is the same standard of review applied to motions arising
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under Fed. R. Civ. P. 12(b)(6). See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.
2007).
III.
Defendants ask the Court to dismiss this case for lack of subject matter jurisdiction on the
ground that this case presents an intratribal dispute that must be resolved by tribal courts. Dkt. # 16,
at 3-6. Defendants also argue that they have not waived their sovereign immunity from suit, and that
plaintiff has not identified a valid waiver of sovereign immunity that would allow plaintiff to obtain
declaratory or injunctive relief from defendants. Id. at 6-10. Plaintiff responds that the law is
clearly settled that federal courts have jurisdiction under 28 U.S.C. § 1331 to determine whether a
tribal court, including a CFR court, exceeded its jurisdiction and if the Tribe has expressly waived
its sovereign immunity from suit, and it is not asking the Court to resolve the merits of any dispute
under Tribal law. Dkt. # 17, at 6-12. The Tribe also argues that the federal government has waived
sovereign immunity for federal officers and agencies as to claims for declaratory or injunctive relief
in their official capacities, and the Tribe’s claims are not barred by sovereign immunity. Id. at 20.
A.
Defendants initially argue that the Court lacks subject matter jurisdiction to hear this case,
because the Court would be required to interpret the Tribal constitution to determine the scope of
the CFR Court’s jurisdiction. Plaintiff responds that the federal courts ordinarily have subject matter
jurisdiction to determine the boundaries of a tribal court’s jurisdiction, and the same rule applies to
the Tribe’s claim concerning the scope of the CFR Court’s jurisdiction.
It is well-established that a federal court has subject matter jurisdiction under § 1331 to
determine whether a tribal court has exceeded the lawful limits of its jurisdiction. National Farmers
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Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 853 (1985); Kerr-McGee Corp. v. Farley,
115 F.3d 1498, 1501 (10th Cir. 1997); Superior Oil Co. v. United States, 798 F. 2d 1324 (10th Cir.
1986). “If a federal court decides the tribal court properly exercised jurisdiction over the
controversy, proper deference to the tribal court system precludes relitigation of the issues raised
and resolved in the tribal courts.” Davis v. Mille Lacs Band of Chippewa Indians, 193 F.3d 990,
991-92. (8th Cir. 1999). A party seeking to litigate the issue of tribal court jurisdiction must fully
exhaust its tribal remedies before filing a case in federal court. Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 16-17 (1987); Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir. 1993).
In this case, the Tribe is challenging the jurisdiction of the CFR Court to hear an election
dispute. CFR courts are created by federal regulation, and “[d]esignated CFR courts that have not
been supplanted by independent tribal courts pursuant to the provisions of 25 C.F.R. § 11.1(d) retain
some characteristics of an agency of the federal government.” Tillett v. Lujan, 931 F.2d 636, 640
(10th Cir. 1991). “CFR courts, however, also function as tribal courts; they constitute the judicial
forum through which the tribe can exercise its jurisdiction until such time as the tribe adopts a
formal law and order code.” Id. For the purpose of federal subject matter jurisdiction, federal courts
have exercised jurisdiction over disputes concerning whether a CFR court has exceeded its lawful
jurisdiction. United States Bancorp v. Ike, 171 F. Supp. 2d 1122, 1125-26 (D. Nev. 2001).
Defendants concede that federal courts ordinarily have jurisdiction to consider whether a
tribal court has exceeded its jurisdiction, and they do not contest that the Tribe has fully exhausted
its remedies in the CFR Court before filing this case. Dkt. # 20, at 1. However, defendants argue
that this case concerns a purely intratribal dispute and the Court should refrain from exercising
jurisdiction over the case. Dkt. # 16, at 4. Defendants rely on Wheeler v. Swimmer, 835 F.2d 259
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(10th Cir. 1987), to support their argument that the Court lacks jurisdiction to hear this case. In
Wheeler, the Tenth Circuit considered whether the district court properly declined to hear a dispute
arising out of a tribal election. Unsuccessful candidates for various offices in a tribal election
challenged the results of the election and the subsequent certification of the results using procedures
provided by the tribe and the BIA, and these challenges did not change the outcome of the election.
Id. at 260. The unsuccessful candidates then filed a case in federal district court alleging violations
of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1302, the Constitution of the United States, and
the treaty, constitution, and laws of the Cherokee Nation. Id. The district court declined to hear the
case on the ground that it presented an intratribal dispute, and the court granted a motion to dismiss
for lack of subject matter jurisdiction. The Tenth Circuit found that federal courts should not
interfere with a tribal election when there is a tribal forum to resolve such disputes. Id. at 262.
Citing a general policy of non-interference with tribal self-government, the Tenth Circuit held that
the election dispute should have been resolved by tribal courts or forums, and the aggrieved
candidates were required to seek relief from the tribe itself. Id. at 262. The aggrieved candidates
did not asks the Tenth Circuit to consider whether the tribal courts had jurisdiction over the election
dispute, and this was not presented as a basis for the district court to exercise subject matter
jurisdiction over the dispute.
This case is distinguishable from Wheeler, because the claims raised in the Tribe’s complaint
here are considerably more narrow than the election dispute at issue in Wheeler. The Court has
thoroughly reviewed the complaint, and the Tribe is not asking the Court to affirm the results of the
March 2009 referendum. Instead, the Tribe is arguing that the CFR Court lacked jurisdiction to hear
a challenge to the results of the March 2009 referendum, and that this is a federal question allowing
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this Court to exercise jurisdiction under § 1331. In fact, this presents a more direct federal question
than the ordinary case in which a federal court is asked to determine whether a tribal court has
jurisdiction, because the CFR Courts are created by federal regulations and this Court will be
required to interpret federal regulations to resolve the jurisdictional dispute. There is an underlying
substantive issue as to whether the language in the Tribal constitution is intended to confer on the
CFR Courts jurisdiction over election disputes, but the resolution of that issue will turn on the
specificity of a tribal resolution required as a matter of federal law to grant CFR Courts jurisdiction
over election disputes. The Tribe’s complaint raises a federal question as to the scope of the CFR
Court’s jurisdiction, and the Court has jurisdiction to hear this case under § 1331.2
B.
Defendants argue that they are entitled to sovereign immunity from suit, because federal
employees and agencies acting in their official capacities have the same immunity from suit as the
federal government. Plaintiff asserts that defendants acted outside of their legal authority and that
their sovereign immunity is waived under the ultra vires doctrine. Plaintiff also argues that the
United States and its agencies and officers have waived sovereign immunity from suit for claims for
declaratory or injunctive relief under the Administrative Procedures Act, 5 U.S.C. § 701, and that
the APA’s broad waiver of sovereign immunity, found in 5 U.S.C. § 702, applies in this case.
The United States is a sovereign that is immune from suit unless it consents to be sued.
Sydnes v. United States, 523 F.3d 1179, 1182-83 (10th Cir. 2008).
Sovereign immunity also
generally shields from suit federal agencies and officers acting in their official capacity. See
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To the extent that resolution of this matter would require interpretation of purely Tribal law,
the Court will defer to the findings of the CFR Court when resolving the federal question
raised in plaintiff’s complaint.
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Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002). “[C]onsent may be found ‘only
when Congress unequivocally expresses its intention to waive the government’s sovereign immunity
in the statutory text.’” Rural Water Dist. Wagoner County No. 2 v. Grand River Dam Authority,
577 F.3d 1255, 1260 (10th Cir. 2009). General jurisdictional statutes, such as 28 U.S.C. § 1331, do
not waive the government’s sovereign immunity from suit. Normandy Apartments, Ltd. v. United
States Dep’t of Housing and Urban Development, 554 F.3d 1290, 1295 (10th Cir. 2009); EaglePicher Indus., Ind. v. United States, 901 F.2d 1530, 1532 (10th Cir. 1990).
Plaintiff argues that defendants exceeded their legal authority by exercising jurisdiction in
violation of § 11.118, and that this strips defendants of their sovereign immunity. Dkt. # 17, at 20.
In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the Supreme Court
recognized that certain claims against government officials may not be claims against the sovereign
if the “officer purports to act as an individual and not as an official . . . .” Id. at 689. An officer’s
actions may be considered ultra vires and not within the scope of his official duties if he “is not
doing the business which the sovereign has empowered him to do or he is doing it in a way which
the sovereign has forbidden.” Id. This exception does not apply if the officer is acting within the
scope of his duties but commits an error when exercising the powers delegated to him. United Tribe
of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001); Painter v. Shalala, 97 F.3d
1351, 1359 (10th Cir. 1996). “Official action is not ultra vires or invalid ‘if based on an incorrect
decision as to law or fact, if the officer making the decision was empowered to do so.’” Wyoming,
279 F.3d at 1229-30 (quoting Larson, 337 U.S. at 695). To show that the ultra vires doctrine applies,
a plaintiff “must allege facts sufficient to establish that the officer was acting ‘without any authority
whatever,’ or without any ‘colorable basis for the exercise of authority.’” Danos v. Jones, 652 F.3d
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577, 583 (5th Cir. 2011) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11
(1984)).
The ultra vires exception does not apply in this case. The allegedly ultra vires act was
Magistrate Douthitt’s and the CFR Court’s decision to assume jurisdiction over the dispute between
the Enyart plaintiffs and the Tribe. However, courts are clearly empowered to make decisions
concerning the scope of their jurisdiction and, even if the CFR erroneously found that jurisdiction
existed, this decision was committed to Magistrate Douthitt and the CFR Court by the federal
government. There are no allegations that Magistrate Douthitt acted wholly outside of his judicial
capacity or that there was no colorable basis for the CFR Court to find that jurisdiction existed.
Instead, plaintiff received an unfavorable ruling on a close jurisdictional issue. This is not the type
of circumstance under which the ultra vires exception has been found to apply. See Petterway v.
Veterans Administration Hospital, 495 F.2d 1223 (5th Cir. 1974) (veterans hospital that allegedly
engaged in racial discrimination acted outside of scope of governmental authority). Plaintiff
disagrees with Magistrate Douthitt’s and the CFR Court’s decision to exercise jurisdiction over the
underlying election dispute, but this is not sufficient to show that defendants’ actions were ultra
vires.
Plaintiff also argues that defendants are not entitled to sovereign immunity from claims for
declaratory or injunctive relief under § 702. The APA contains a waiver of sovereign immunity as
to claims for declaratory or injunctive relief against government agencies and officers. Section 702
states:
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an officer or employee
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thereof acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party. The United States
may be named as a defendant in any such action, and a judgment or decree may be
entered against the United States: Provided, That any mandatory or injunctive decree
shall specify the Federal officer or officers (by name or by title), and their successors
in office, personally responsible for compliance. Nothing herein (1) affects other
limitations on judicial review or the power or duty of the court to dismiss any action
or deny relief on any other appropriate legal or equitable ground; or (2) confers
authority to grant relief if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.
5 U.S.C. § 702. This statute provides a “general waiver of sovereign immunity in all civil actions
seeking equitable relief on the basis of legal wrongs for which government agencies are
accountable.” United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 549 (10th Cir.
2001). Section 702 also waives the government’s sovereign immunity for “most claims for
nonmonetary relief,” whether the plaintiff’s claims are APA or non-APA claims. See Robbins v.
United States Bureau of Land Management, 438 F.3d 1074, 1080 (10th Cir. 2006). However, the
scope of the waiver of sovereign immunity is limited, and § 702 does not permit a case to proceed
if another statute imposes limitations on a court’s power to hear a case or the relief that can be
awarded. Neighbors for Rational Development, Inc. v. Norton, 379 F.3d 956, 961 (10th Cir. 2004).
Plaintiff seeks declaratory and injunctive relief only, and it appears that § 702 does provide
a waiver of sovereign immunity allowing plaintiff to proceed with its claims against defendants.
Defendants argue that the scope of the waiver of sovereign immunity in § 702 is limited by other
provisions of the APA, and that the APA does not provide a waiver of sovereign immunity in this
case. Dkt. # 20, at 11-12. Under 5 U.S.C. § 701(a)(2), the APA applies “except to the extent that
. . . agency action is committed to agency discretion by law.” Defendants claim that the
Commissioner of Indian Affairs, under the authority of the Secretary of the Interior, has the
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discretion to manage “all Indian affairs and . . . all matters arising out of Indian relations.” 25
U.S.C. § 2. However, defendants have cited no authority suggesting that a CFR Court has discretion
concerning the exercise of its jurisdiction under federal regulations. Section 11.118 states certain
limits as to the jurisdiction of the CFR Court, but it contains no language suggesting that a CFR
Court has the discretion to decline jurisdiction over a case properly before or to exercise jurisdiction
when none exists. The CFR Court’s exercise of jurisdiction over the underlying election dispute was
not a discretionary act that is exempt from judicial review. The Court has reviewed defendants’
motion to dismiss and reply and can discern no additional arguments concerning the application of
§ 702.
The Court finds that defendants’ sovereign immunity is waived under § 702, and that
plaintiff may proceed with its claims for declaratory and injunctive relief against defendants.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss and Brief in Support
(Dkt. # 16) is denied.
DATED this 22nd day of August, 2012.
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