Stanko v. Oglala Sioux Tribe et al
ORDER granting 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Jeffrey L. Viken on 9/20/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
a/k/a “Butch” Stanko,
OGLALA SIOUX TRIBE, as known as
the Tribe; VENNESIA RODRIQUEZ,
individually and in her official capacity
as a guard at the Kyle jail; CHARLES
HUNTER, individually and in his official
capacity as an Oglala cop; JODIE
GARNETTE, individually and in her
official capacity guard at the Kyle jail;
TATEWIN MEANS, individually and in
her official capacity as an Indian
counselor; JOHN HUSSMAN,
individually and in his official capacity
as a medicine man/judge of the Oglala
Sioux Trial Court; and Defendants IX
through 6X, individually, will be named
Plaintiff Rudy Stanko filed a ten-count complaint against the defendants.
(Docket 1). Defendants Oglala Sioux Tribe (“OST” or the “Tribe”), Vannesia
Rodriguez, Charles Hunter, Jodie Garnette, Tatewin Means, and John Hussman
(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 7). Mr. Stanko resists the defendants’
motion. (Dockets 9 & 11). For the reasons stated below, the defendants’
motion to dismiss is granted.
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). Ms. Rodriquez, Mr. Hunter and
Ms. Garnette are officers serving in the Oglala Sioux Tribe Corrections
Department, which is a department within the tribal government. (Docket
1 ¶¶ 10-12 at p. 3). At the time of the filing of the complaint, Ms. Means was the
Attorney General of the Oglala Sioux Tribe and Mr. Hussman was a judge of the
Oglala Sioux Tribal Court system. (Docket 8 at p. 5). The Oglala Sioux Tribal
Court is a branch of tribal government.
The defendants’ asserted grounds for dismissal are summarized as follows:
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:
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:
OST is not a state or Territory for purposes of
42 U.S.C. § 1983;
The Individual Tribal Defendants were not acting
under color of state law as required by 42 U.S.C.
The complaint’s common law claims do not arise
under federal law, but rather tribal law; and
The complaint’s common law claims do not meet
the diversity jurisdiction requirements of
28 U.S.C. § 1332.
(Dockets 8 & 10). For these reasons the defendants seek dismissal of the
complaint with prejudice. (Docket 7).
The assertion of tribal “[s]overeign immunity is a jurisdictional issue . . . .”
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.
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
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
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, 1343 and 2680 and 42 U.S.C.
§ 1983 as the bases for the court’s jurisdiction. (Docket 1 at pp. 1-3).
Plaintiff’s response to defendants’ motion to dismiss relies on § 1983 for
jurisdiction. (Docket 9). 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 September 22, 2016, Mr.
Stanko was stopped by OST Law Enforcement Officer Jesse Red Wine for
speeding. (Docket 1 ¶ 15). Officer Red Wine informed Mr. Stanko there were
two OST arrest warrants outstanding. Id. ¶ 16. Mr. Stanko informed Officer
Red Wine that the tribal court had no jurisdiction over him and he refused to
waive jurisdiction by appearing in tribal court. Id. ¶ 17. Officer Red Wine did
not arrest Mr. Stanko, who drove away. Id. ¶ 18.
On October 28, 2016, OST Tribal Court Judge John Hussman imposed a
fine and court costs against Mr. Stanko for the ticket issued by Officer Red Wine.
Id. ¶ 20. On the same day, Tribal Court Judge Hussman issued an arrest
warrant for Mr. Stanko but with a credit of $100 per day for each day of
incarceration. Id. ¶ 21.
On January 21, 2017, Mr. Stanko was arrested by OST Tribal Officer
Charles Hunter “1/2 mile north of National Grassland boundary near the White
River on US/BIA Highway 27 and taken to the Kyle Police Department jail.” Id.
¶ 23. Officer Hunter advised Mr. Stanko that the officer had been ordered by
“Tatewin Means, his counselor, to arrest people of White descent.” Id. ¶ 27.
Mr. Stanko alleges Officer “Hunter fraudulently returned the service as stating
he took [Mr. Stanko] before the Oglala Sioux Tribal Court, when he took [Mr.
Stanko] to an Indian jail on January 21, 2017.” Id. ¶ 29. OST Tribal Jail
Officers Ms. Garnette, Ms. Rodriquez and Mr. Hunter told Mr. Stanko they
“would not take . . . cash as bail money, and insisted on a money order.” Id.
¶ 31. Officer “Hunter pulled a gun . . . pointed at [Mr. Stanko]” and told Mr.
Stanko “to put his hands on the wall and strip naked.” Id. ¶¶ 33-34. While in
that position, Officer Hunter assaulted Mr. Stanko by kicking him “several times
in the thigh until he was black and blue.” Id. ¶¶ 35-36. Officers Garnette and
Rodriquez assisted Officer Hunter in assaulting Mr. Stanko. Id. ¶ 37. The
three officers then stole $700 from Mr. Stanko’s wallet. Id. ¶ 38. The three
officers placed Mr. Stanko in jail, in what Mr. Stanko describes as “the hole.” Id.
¶ 39. Mr. Stanko remained in isolation in the jail for some unstated period of
time. Id. Mr. Stanko seeks money damages for past and future pain and
suffering, 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 pp. 7-8.
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 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
Mr. Stanko erroneously argues “[t]he Fort Laramie Treaty of 1868, which
the Indians are always referring to, 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 9 at p. 9
n.5). 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).
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 8-1. 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 8-2). The Tribe
reaffirmed its tribal sovereign immunity in 2015. (Docket 8-3).
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
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.
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,
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. 2). 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. 6-7.
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.
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. 6-7). “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).
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
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 9 at p. 13). This argument is without merit because the
United States District Courts were created by the Constitution of the United
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).
Mr. Stanko’s complaint alleges a cause of action under the Federal Tort
Claims Act, 28 U.S.C. § 2671 et seq., (“FTCA”). (Docket 1 ¶ 6). “The Federal
Tort Claims Act is a limited waiver of sovereign immunity, making the Federal
Government liable to the same extent as a private party for certain torts of federal
employees acting within the scope of their employment.” United States v.
Orleans, 425 U.S. 807, 813 (1976). The FTCA specifically restricted jurisdiction
of the federal district court to those “claims against the United States, for money
damages . . . for . . . personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope
of his . . . employment, under circumstances where the United States, if a private
person, would be liable to the claimant . . . .” 28 U.S.C. § 1346(b)(1). An
allegedly aggrieved party may not pursue an FTCA claim against an individual.
Based on the above analysis, it is
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.
ORDERED that defendants’ motion to dismiss for lack of subject matter
jurisdiction (Docket 7) 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
Vannesia Rodriguez, Charles Hunter, Jodie Garnette, Tatewin Means, and John
Hussman in their official capacities is dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s complaint as it relates to
Vannesia Rodriguez, Charles Hunter, Jodie Garnette, Tatewin Means, and John
Hussman in their individual capacities is dismissed without prejudice.
Dated September 20, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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