Stanko v. Oglala Sioux Tribe et al

Filing 43

ORDER granting 6 Motion to Dismiss for Lack of Jurisdiction and granting 6 Motion to Dismiss for Failure to State a Claim as to defendants Oglala Sioux Tribe, Darwin Long, Derek Thunder Hawk, Sheena Mousseau and Charles Montileaux. Signed by Chief Judge Jeffrey L. Viken on 9/14/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5105-JLV

RUDY STANKO,
a/k/a “Butch” Stanko,
Plaintiff,
vs.

ORDER

OGLALA SIOUX TRIBE, aka the Tribe,
c/o Chief Charles Yellow Bird;
DARWIN LONG, Director of Oglala
Sioux Tribe Adult Correctional Facility,
individually and in his official capacity;
CLAY LANDRY, BIA 9675, individually
and in his official capacity as a highway
cop; A. GRASER, individually and in his
official capacity as a highway cop;
DEREK THUNDER HAWK, jail guard,
individually and in his official capacity;
SHEENA MOUSSEAU, Judge of the
Oglala Sioux Tribal Court,
individually and in her official capacity;
CHARLES MONTILEAUX, Judge of the
Oglala Sioux Tribal Court, individually
and in his official capacity;
ANDRE MILLS, proprietor of Mills
Towing, 6 miles north of Porcupine; and
Defendants IX through 6X,
individually, will be named after
discovery,
Defendants.
INTRODUCTION
Plaintiff Rudy Stanko filed a ten-count complaint against the defendants.
(Docket 1). Defendants Oglala Sioux Tribe (“OST” or the “Tribe”), Darwin Long,
Derek Thunder Hawk, Sheena Mousseau and Charles Montileaux (jointly the
“Individual Tribal Defendants”) filed a motion to dismiss pursuant to Fed. R. Civ.

P. 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be
granted. (Docket 6). Mr. Stanko resists the defendants’ motion. (Docket 14).
For the reasons stated below, the defendants’ motion to dismiss is granted.
ANALYSIS
The Tribe is a federally recognized tribe. Wilson v. Bull, No. CIV. 12-5078,
2014 WL 412328, at *3 (D.S.D. Feb. 3, 2014). Mr. Long and Mr. Thunder Hawk
are officers serving in the Oglala Sioux Tribe Corrections Department, which is a
department within the tribal government. (Dockets 1 ¶¶ 9 & 12 and 7 at
pp. 4-5). At the time of the filing of the complaint, Ms. Mousseau was an
ex-judge and Mr. Montileaux was a current judge of the Oglala Sioux Tribal
Court system. (Docket 9 ¶¶ 13 & 14 and 7 at p. 5). The Oglala Sioux Tribal
Court is a branch of tribal government.
The defendants’ asserted grounds for dismissal are summarized as follows:
A.

Pursuant to Rule 12(b)(1), the court lacks subject matter
jurisdiction over the Tribe or the Individual Tribal Defendants.
This portion of the motion is broken down into the following:
1.
2.

B.

OST possesses tribal sovereign immunity and is
immune from suit;
The doctrine of tribal sovereign immunity extends
to the claims against the Individual Tribal
Defendants in their official capacities.

Pursuant to Rule 12(b)(6), the complaint fails to state a claim
upon which relief can be granted. This portion of the motion
is broken down into the following:

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1.

OST is not a state or Territory for purposes of
42 U.S.C. § 1983;

2.

The Individual Tribal Defendants were not acting
under color of state law as required by 42 U.S.C.
§ 1983;

3.

The complaint’s common law claims do not arise
under federal law, but rather tribal law; and

4.

The complaint’s common law claims do not meet
the diversity jurisdiction requirements of
28 U.S.C. § 1332.

(Dockets 7 & 16). For these reasons the defendants seek dismissal of the
complaint with prejudice. (Docket 6).
The assertion of tribal “[s]overeign immunity is a jurisdictional issue . . . .”
Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995).

If the Tribe

and the Individual Tribal Defendants “possess sovereign immunity, then the
district court [has] no jurisdiction to hear [plaintiff’s claims]. Id. For this
reason, the court will first address the defendants’ Rule 12(b)(1) motion.
I.

RULE 12(b)(1) MOTION TO DISMISS
Rule 12 provides in part that “a party may assert the following defenses by

motion: . . . lack of subject-matter jurisdiction . . . .” Fed. R. Civ. P. 12(b)(1).
“In order to properly dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993) (internal citation omitted). “In a facial challenge to jurisdiction, all of
the factual allegations concerning jurisdiction are presumed to be true and the
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motion [to dismiss] is successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.” Id. (internal citation omitted).
While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction the court must “accept all factual allegations in the pleadings as true
and view them in the light most favorable to the nonmoving party.” Great Rivers
Habitat Alliance v. Federal Emergency Management Agency, 615 F.3d 985,
988 (8th Cir. 2010). “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
“The burden of proving federal jurisdiction, however, is on the party
seeking to establish it, and this burden may not be shifted to the other party.”
Great Rivers Habitat Alliance, 615 F.3d at 988 (internal quotation marks and
brackets omitted). “The burden of establishing that a cause of action lies within
the limited jurisdiction of the federal courts is on the party asserting jurisdiction
. . . .” Arkansas Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A.,
551 F.3d 812, 816 (8th Cir. 2009).
Because Mr. Stanko is proceeding pro se, his pleading must be liberally
construed and his complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
“[A] pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers’ and can only be dismissed
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for failure to state a claim if it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976).
Plaintiff’s complaint cites 28 U.S.C. § 1331 and 42 U.S.C. § 1983 as the
bases for the court’s jurisdiction. (Docket 1 at p. 2). Plaintiff’s response to
defendants’ motion to dismiss relies on § 1983 for jurisdiction. (Docket 14 at
p. 7). Viewing plaintiff’s pro se filings in a less stringent light, he has not
identified a waiver of sovereign immunity.
The essence of Mr. Stanko’s complaint against the Tribe and the Individual
Tribal Defendants is summarized as follows. On March 6, 2015, OST Tribal
Court Judge Mousseau issued a warrant for the arrest of Mr. Stanko for his
failure to appear on a speeding ticket. (Docket 1 ¶ 16). On May 8, 2015, Judge
Montileaux issued a separate warrant for the arrest of Mr. Stanko for his failure
to appear on a second speeding ticket. Id. ¶ 17. On November 10, 2016,
Bureau of Indian Affairs Law Enforcement Officers Clay Landry and A. Graser
stopped Mr. Stanko’s vehicle on Highway 27 within the exterior boundaries of the
Pine Ridge Indian Reservation. Id. ¶ 22. Officers Landry and Graser
handcuffed Mr. Stanko and took him to the OST Tribal Adult Correctional
Facility (“Tribe’s jail”). Id. ¶ 24. Jailer Thunder Hawk placed Mr. Stanko in the
Tribe’s jail, in an area Mr. Stanko describes as “the hole.” Id. ¶ 33. Jailer Long
refused to permit Mr. Stanko to post bond to get out of the Tribal jail. Id. ¶ 37.
Mr. Stanko seeks money damages for past and future pain and suffering,
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reimbursement for his cost and time for asserting these constitutional claims
and a “[c]ontingency enhancement premium . . . because of the high risk of
litigation of civil rights grievances.” Id. at p. 8.
Mr. Stanko’s claims against the Tribe and the Individual Tribal Defendants
must be separately analyzed.
OGLALA SIOUX TRIBE
“[I]n enacting § 1983, Congress did not intend to override well-established
immunities or defenses under the common law.”1 Will v. Michigan Department
of State Police, 491 U.S. 58, 66 (1989). “It is well established that Indian tribes
possess sovereign immunity from suit that existed at common law.” Rupp,
45 F.3d at 1244 (referencing Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F.2d
550, 552 (8th Cir. 1989)). “The common law sovereign immunity possessed by
the Tribe is a necessary corollary to Indian sovereignty and self-governance.”
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476
U.S. 877, 890 (1986). “[B]ecause of the peculiar ‘quasi-sovereign’ status of the
Indian tribes, the Tribe’s immunity is not congruent with that which the Federal
Government, or the States, enjoy. . . . And this aspect of tribal sovereignty, like all
others, is subject to plenary federal control and definition.” Id. “As a matter of
Mr. Stanko erroneously argues “[t]he Fort Laramie Treaty of 1868, which
the Indians are always hallowing about, was abrogated by Congress in 1877.
Indians are a defeated nation and Congress was given the power to regulate
Indian Tribes in Article 1, § 8, cl. 3 of the US Constitution.” (Docket 14 at p. 3
n.3). See, i.e., Sioux Tribe of Indians v. United States, 316 U.S. 317 (1942);
United States v. Sioux Nation of Indians, 448 U.S. 371 (1980); and South Dakota
v. Bourland, 508 U.S. 679 (1993).
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federal law, an Indian tribe is subject to suit only where Congress has authorized
the suit or the tribe has waived immunity.” Kiowa Tribe of Okla. v.
Manufacturing Techs., Inc., 523 U.S. 751, 754 (1998).
“The Tribe may waive this immunity.” Rupp, 45 F.3d at 1244. “A waiver
of sovereign immunity may not be implied, but must be unequivocally expressed
by either the Tribe or Congress.” Id. (referencing Rosebud Sioux Tribe, 874 F.2d
at 552). “While sovereign immunity has long been enjoyed by Indian tribes,
such immunity may be waived, but the waiver must be unequivocally expressed,
and may not be implied.” Rosebud Sioux Tribe, 874 F.2d at 552 (referencing
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Weeks Construction,
Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668, 670-71 (8th Cir. 1986);
American Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux
Tribe, 780 F.2d 1374, 1377-81 (8th Cir. 1985)). “Tribes possess immunity
because they are sovereigns predating the Constitution.” Rupp, 45 F.3d at
1244 (referencing American Indian Agricultural Credit, 780 F.2d at 1378).
“One method in which express waiver may be made is by virtue of a
provision allowing the tribe ‘to sue or be sued,’ found in the tribe’s corporate
charter.” Rosebud Sioux Tribe, 874 F.2d at 552. The Tribe’s Constitution does
not contain a “to sue or be sued” provision. See Docket 7-3. In 2001, the Tribe
specifically reserved its right to assert tribal sovereign immunity in the absence
of consent by the Tribe and the United States. (Docket 7-1). The Tribe
reaffirmed its tribal sovereign immunity in 2015. (Docket 7-2).
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Congress has not expressly authorized suit and has not waived the Tribe’s
sovereign immunity. Mr. Stanko has not presented any evidence the Tribe
waived its sovereign immunity so to be subject to this litigation. The Tribe is
immune from suit and the complaint must be dismissed with prejudice as to the
Tribe. Santa Clara Pueblo, supra; Kiowa Tribe of Okla., supra; Rosebud Sioux
Tribe, supra.
INDIVIDUAL TRIBAL DEFENDANTS
OFFICIAL CAPACITY CLAIMS
The Tribe’s immunity extends to its officers acting in their official
capacities. “Defendants in an official-capacity action may assert sovereign
immunity.” Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017). Plaintiff’s claims
against the Individual Tribal Defendants in their official capacities function as a
suit against the Tribe. Id. at 1290-91 (“lawsuits brought against employees in
their official capacity represent only another way of pleading an action against an
entity of which an officer is an agent, and they may also be barred by sovereign
immunity.”) (internal quotation marks and citation omitted).
Mr. Stanko’s claims against the Individual Tribal Defendants in their
official capacities fail as a matter of law. These claims are against the Tribe,
which is immune from suit. The complaint against the Individual Tribal
Defendants in their official capacities must be dismissed with prejudice.

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II.

RULE 12(b)(6) MOTION TO DISMISS
Under Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Two “working principles” underlie Rule 12(b)(6) analysis. See
Iqbal, 556 U.S. at 678. First, courts are not required to accept as true legal
conclusions “couched as . . . factual allegation[s]” in the complaint. See id.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). The court does, however, “take the
plaintiff’s factual allegations as true.” Braden v. Wal-Mart Stores, Inc., 588 F.3d
585, 594 (8th Cir. 2009). Second, the plausibility standard is a “contextspecific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 678 (citation omitted). The complaint
is analyzed “as a whole, not parsed piece by piece to determine whether each
allegation, in isolation, is plausible.” Braden, 588 F.3d at 594.
When the court states “that a pro se complaint should be given liberal
construction, [it] mean[s] that if the essence of an allegation is discernible, even
though it is not pleaded with legal nicety, then the district court should construe
the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).
A pro se litigant must still set forth a claim “in a manner which, taking the
pleaded facts as true, states a claim as a matter of law.” Cunningham v. Ray,
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648 F.2d 1185, 1186 (8th Cir. 1981). “(A) complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.”
Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted)). “Where the allegations
show on the face of the complaint there is some insuperable bar to relief,
dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co.,
Inc., 524 F.3d 866, 870 (8th Cir. 2008).
INDIVIDUAL TRIBAL DEFENDANTS
INDIVIDUAL CAPACITY CLAIMS
Mr. Stanko’s complaint sues the Individual Tribal Defendants in their
individual capacities under 42 U.S.C. § 1983. (Docket 1 at p. 1). Mr. Stanko
alleges the Individual Tribal Defendants violated his rights under 42 U.S.C.
§ 1983, by violating his Fourth Amendment, Eight Amendment and Fourteenth
Amendment rights. Id. at pp. 1-2 and 6-8.
The Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C. § 1983.
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The complaint alleges violations of the Fourth, Eighth and Fourteenth
Amendment of the United States Constitution as the basis for the § 1983 claim.
(Docket 1 at pp. 6-8). “As separate sovereigns pre-existing the Constitution,
tribes have historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on federal or state authority.”
Santa Clara Pueblo, 436 U.S. at 56. The Supreme Court “held that the Fifth
Amendment did not operate upon the powers of local self-government enjoyed by
the tribes.” Id. (citing Talton v. Mayes, 163 U.S. 376, 384 (1896) (internal
quotation marks and brackets omitted). The Supreme Court also recognized
that its holding in Talton has been “extended . . . to other provisions of the Bill of
Rights, as well as the Fourteenth Amendment.” Id. (references omitted). For
this reason, Mr. Stanko’s § 1983 allegations fail to state a claim upon which relief
can be granted.
Mr. Stanko’s § 1983 claims fail for another reason. “The traditional
definition of 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 law.’ ”
Parker v. Boyer, 93 F.3d 445, 447-48 (8th Cir. 1996) (citing West v. Atkins,
487 U.S. 42, 49 (1988) (emphasis added). The conduct at issue must “be fairly
attributable to the State” for liability under § 1983 to exist. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982).

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There is no allegation in the complaint that the Individual Tribal
Defendants were acting under color of state law.2 It is also improper for the
court to infer from the complaint that the Individual Tribal Defendants were
acting under color of state law. Section 1983 does not provide jurisdiction for
plaintiff’s claims against the Individual Tribal Defendants. Jones v. United
States, 16 F.3d 979, 981 (8th Cir. 1994).
ORDER
Based on the above analysis, it is
ORDERED that defendants’ motion to dismiss for lack of subject matter
jurisdiction (Docket 6) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) as it relates
to the Oglala Sioux Tribe is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to Darwin
Long, Derek Thunder Hawk, Sheena Mousseau and Charles Montileaux in their
official capacities is dismissed with prejudice.

Mr. Stanko’s argument is that “[t]he United States District Court for the
Western District of South Dakota is under the color of South Dakota law. . . . The
United States District Court for the Western District of South Dakota is the
proper venue for suing Indians for violation of the constitution, civil rights and
robbery.” (Docket 14 at p. 7). This argument is without merit because the
United States District Courts were created by the Constitution of the United
States and federal laws and not under the laws of the state of South Dakota.
See Article III, s. 1, of the Constitution of the United States.
2

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IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to Darwin
Long, Derek Thunder Hawk, Sheena Mousseau and Charles Montileaux in their
individual capacities is dismissed without prejudice.
Dated September 14, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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