Rahne Pistor v. Carlos Garcia , 791 F.3d 1104 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAHNE PISTOR; GEORGE ABEL; No. 12-17095
JACOB WHITHERSPOON,
Plaintiffs-Appellees, D.C. No.
2:12-cv-00786-
v. FJM
CARLOS GARCIA; FARRELL
HOOSAVA; LISA KAISER, OPINION
Defendants-Appellants,
and
REYNOLDS NEJO; TERRY PHILLIPS;
TONY MCDANIEL; ARIZONA
DEPARTMENT OF GAMING; GILA
COUNTY; GILA COUNTY SHERIFF’S
DEPARTMENT; TRAVIS BAXLEY,
Sgt.; DENNIS NEWMAN, Deputy,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted
November 20, 2014—San Francisco, California
Filed June 30, 2015
2 PISTOR V. GARCIA
Before: Marsha S. Berzon and Johnnie B. Rawlinson,
Circuit Judges, and Elaine E. Bucklo, Senior District
Judge.*
Opinion by Judge Berzon
SUMMARY**
Civil Rights
The panel affirmed the district court’s denial of a motion
to dismiss an action brought against tribal officers who were
sued in their individual capacities for an assertedly
unconstitutional detention and seizure of property that took
place at a casino owned and operated by a tribe on tribal land.
The district court held that even if the tribal defendants were
entitled to tribal immunity, it was inappropriate to dismiss the
claims against the defendants for lack of subject matter
jurisdiction. The district court went on to hold, however, that
if the tribal defendants’ Fed. R. Civ. P. 12(b)(1) motion to
dismiss was construed as a Rule 12(b)(6) motion to dismiss,
the court would conclude that plaintiffs had sufficiently stated
a 42 U.S.C. § 1983 claim against the tribal defendants in their
individual capacities. The district court therefore denied
defendants’ motion to dismiss the action.
*
The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PISTOR V. GARCIA 3
The panel held that sovereign immunity is a
quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1)
stage, must be addressed and decided. Accordingly, the panel
held that the district court erred in concluding that it would be
inappropriate to dismiss the claims against the defendants at
the 12(b)(1) stage. The panel nevertheless affirmed the
district court’s denial of defendants’ motion to dismiss the
action. The panel held that the tribal defendants were not
entitled to tribal sovereign immunity because they were sued
in their individual rather than their official capacities, as any
recovery will run against the individual tribal defendants,
rather than the tribe.
The panel held that it did not have jurisdiction to decide
whether plaintiffs successfully stated a claim against the
defendants under § 1983. The panel held that whether the
tribal defendants were acting under state or tribal law did not
matter for purposes of the tribal sovereign immunity analysis,
although it will matter for purposes of deciding whether
plaintiffs can succeed in their § 1983 claim.
COUNSEL
Glenn M. Feldman (argued) and D. Samuel Coffman,
Dickinson Wright/Mariscal Weeks, Phoenix, Arizona, for
Defendants-Appellants.
Robert A. Nersesian (argued) and Thea M. Sankiewicz,
Nersesian & Sankiewicz, Las Vegas, Nevada, for Plaintiffs-
Appellees.
4 PISTOR V. GARCIA
OPINION
BERZON, Circuit Judge:
Our question is whether tribal officers may assert tribal
sovereign immunity when sued in their individual capacities
for an assertedly unconstitutional detention and seizure of
property. The seizure and detention at issue took place at a
casino owned and operated by a tribe on tribal land.
We conclude that the tribal defendants are not entitled to
sovereign immunity because they were sued in their
individual rather than their official capacities, as any recovery
will run against the individual tribal defendants, rather than
the tribe. Maxwell v. County of San Diego, 708 F.3d 1075,
1089 (9th Cir. 2013), makes our determination pretty much
foreordained. But the position of the litigants in this case,
and the reluctance of the district court to decide the issue on
the pleadings, suggest continuing confusion regarding the
application of Maxwell, and also regarding the intersection of
tribal sovereign immunity doctrine with § 1983 principles in
tort actions brought against tribal officials. We therefore
further clarify our previous rulings on these issues.
I.
Plaintiffs Rahne Pistor, George Abel, and Jacob
Whitherspoon (“the gamblers”) are “advantage gamblers”
who “use[] legal techniques . . . to win at casino . . . games.”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1131 (9th Cir.
2012). They achieve this success by “limit[ing] their play to
games with a statistical advantage favoring the player.”
(Most casino games favor the house.) Applying advantage
gambling techniques, the gamblers won a significant amount
PISTOR V. GARCIA 5
of money on video blackjack machines at the Mazatzal Hotel
and Casino (“Mazatzal”) in Payson, Arizona. Mazatzal is
owned and operated by the Tonto Apache Tribe (“the Tribe”)
on tribal land.
In their original complaint, the gamblers alleged the
following: on October 25, 2011, Carlos Garcia, a Chief of the
Tonto Apache Police Department, Farrell Hoosava, the
General Manager of Mazatzal, and Lisa Kaiser, a Tribal
Gaming Office Inspector, (“the tribal defendants”) took them
from the gambling floor. The gamblers were then handcuffed
and led to interrogation rooms inside Mazatzal, where they
were questioned. While they were detained, the tribal
defendants took significant sums of cash and other personal
property from them, none of which has been returned. Before
the day of the seizure, “[t]he Gila County Sheriff’s Office
. . . , the Arizona Department of Gaming . . . , [and the tribal
defendants] met or discussed the seizure of the plaintiffs.”
This scheme was concocted “with the goal of punishing
plaintiffs for winning so much at . . . Mazatzal, and the hope
of stealing back some of the funds that the plaintiffs had
legitimately won.” All of these actions were taken “under
color of state law,” “in concert with the state defendants”
from the Gila County Sheriff’s Office and Arizona
Department of Gaming. The gamblers sought damages from
the tribal defendants (and also from non-tribal defendants)
under 42 U.S.C. § 1983 for violations of their Fourth and
Fourteenth Amendment rights, and under state tort law for
battery, false imprisonment, conversion, defamation, trespass
to chattels, and negligence.
The tribal defendants moved the district court for an order
“dismissing all claims against them pursuant to Rule[]
12(b)(1).” They asserted that the district court “lack[ed]
6 PISTOR V. GARCIA
jurisdiction over the subject matter of the claims asserted
against the Tribal Defendants . . . based on well-recognized
principles of tribal sovereign immunity.” Because “[e]ach of
the Tribal Defendants is an employee of the Tonto Apache
Tribe or the Tribe’s wholly-owned gaming facility, . . .
Mazatzal,” the tribal defendants maintained, they possessed
“the same sovereign immunity as the Tribe itself, which bars
unconsented suits against these defendants.” In support of
their motion to dismiss, each of the tribal defendants averred
that he or she was “employed by the Tonto Apache Tribe,”1
and that all the actions he or she took during the gamblers’
seizure and detention were done “in furtherance of . . . official
duties” and within the scope of official authority.
The tribal defendants also submitted a declaration by
Hubert Nanty, Executive Director of the Tonto Apache Tribal
Gaming Office, attaching a copy of the Tribe’s official Tribal
Gaming Ordinance. Nanty’s declaration explained that the
Ordinance, approved by the National Indian Gaming
Commission under the Indian Gaming Regulatory Act of
1988, 25 U.S.C. § 2701 et seq., confers regulatory authority
on the Tribal Gaming Commission, a five-member body
appointed by the Tribal Council to direct the activities of the
Tribal Gaming Office. The Commission, Nanty explained, is
empowered by the Tribal Gaming Ordinance to, among other
things, “[i]nvestigate any suspicion of wrongdoing associated
with any gaming activities,” “detain persons who may be
involved in illegal acts in or around the gaming facility for
the purpose of notifying appropriate law enforcement
authorities,” and “[p]rovide referrals and information to the
1
Garcia stated that he was the Chief of the Tonto Apache Police
Department; Kaiser stated that she was a Tribal Gaming Office Inspector;
and Hoosava stated that he was the General Manager of Mazatzal.
PISTOR V. GARCIA 7
appropriate law enforcement officials when such information
indicates a violation of Tribal, Federal, or State [law].” “All
of the actions that Carlos Garcia, Farrell Hoosava and Lisa
Kaiser took with respect to the plaintiffs on October 25,
2011[,] were done solely in their capacities as tribal officials
. . . [and solely] within the scope of their authorities under the
Tonto Apache Tribal Gaming Ordinance,” not under any state
authority, Nanty asserted. The tribal defendants also included
a supplemental declaration by Garcia, which asserted that his
investigation of the gamblers was ordered by Nanty.
The gamblers opposed the tribal defendants’ motion,
repeating their allegations of conspiracy between the tribal
defendants and state defendants to seize the gamblers and
steal their property.
The district court denied the defendants’ motion to
dismiss. It reasoned that “[e]ven if [the tribal defendants] are
entitled to tribal immunity from suit . . . it would be
inappropriate . . . to dismiss the claims against them for lack
of [subject matter] jurisdiction,” because the district court has
“power generally to hear these kinds of claims,” i.e., those
relying on 28 U.S.C. § 1331 and § 1367 for jurisdiction.
Tribal sovereign immunity is essentially “the assertion of an
affirmative defense,” the court maintained, and so is a
“separate question” from whether the court “ha[s] the power
to hear a kind of claim.”
The district court went on to hold, in the alternative, that
if the tribal defendants’ motion were construed as a Rule
12(b)(6) motion to dismiss, “[t]aking the[] [gamblers’]
allegations as true,” as required under that Rule, the court
“would conclude that the plaintiffs have sufficiently stated a
§ 1983 claim against [the tribal defendants] in their individual
8 PISTOR V. GARCIA
capacities.” This was so, the court’s order on the dismissal
motion stated, because the tribal “[d]efendants are not entitled
to tribal immunity . . . if they are sued under § 1983 in their
individual capacities for actions that they took under color of
state law,” rather than in their official capacities.
II.
“Tribal sovereign immunity protects Indian tribes from
suit absent express authorization by Congress or clear waiver
by the tribe.” Cook v. AVI Casino Enterprises, Inc., 548 F.3d
718, 725 (9th Cir. 2008). Tribal sovereign immunity “also
protects tribal employees in certain circumstances,” Maxwell,
708 F.3d at 1086, namely, where a tribe’s officials are sued
in their official capacities. “A suit against . . . [a tribe’s]
officials in their official capacities is a suit against the tribe
[that] is barred by tribal sovereign immunity.” Miller v.
Wright, 705 F.3d 919, 927–28 (9th Cir. 2013), cert. denied,
133 S. Ct. 2829 (2013) (internal quotation marks omitted).
A.
“Issues of tribal sovereign immunity are reviewed de
novo.” Burlington N. & Santa Fe Ry. v. Vaughn, 509 F.3d
1085, 1091 (9th Cir. 2007). Although generally “[a] district
court’s denial of a motion to dismiss is not a final decision
within the meaning of 28 U.S.C. § 1291, . . . an adverse
decision . . . denying tribal sovereign immunity as a complete
defense to proceeding with the litigation” is considered a final
decision for purposes of § 1291 appellate jurisdiction. Id. at
1089. That is because, “[a]s with absolute, qualified, and
Eleventh Amendment immunity, tribal sovereign immunity
‘is an immunity from suit rather than a mere defense to
liability; and . . . it is effectively lost if a case is erroneously
PISTOR V. GARCIA 9
permitted to go to trial.’” Id. at 1090 (quoting P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143–44
(1993)) (alteration in original) (emphasis omitted).
“[T]he issue of tribal sovereign immunity is [quasi-
]jurisdictional.” Pan Am. Co. v. Sycuan Band of Mission
Indians, 884 F.2d 416, 418 (9th Cir. 1989); see also Alvarado
v. Table Mountain Rancheria, 509 F.3d 1008, 1015–16 (9th
Cir. 2007); Evans v. McKay, 869 F.2d 1341, 1345–46 (9th
Cir. 1989). Normally, “‘[s]ubject-matter jurisdiction’ refers
to ‘the courts’ statutory or constitutional power to adjudicate
the case.’” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,
161 (2010) (quoting Steel Co. v. Citizens for a Better Env’t.,
523 U.S. 83, 89 (1998)) (emphasis omitted). Under that
general rule, “when a federal court . . . lacks subject-matter
jurisdiction, the court must dismiss the complaint,” sua
sponte if necessary. Leeson v. Transamerica Disability
Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (quoting
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)).
Sovereign immunity’s “quasi-jurisdictional . . . nature,” by
contrast, means that “[i]t may be forfeited where the
[sovereign] fails to assert it and therefore may be viewed as
an affirmative defense.” Arizona v. Bliemeister (In re
Bliemeister), 296 F.3d 858, 861 (9th Cir. 2002); see also Alto
v. Black, 738 F.3d 1111, 1125 (9th Cir. 2013) (describing
sovereign immunity as “a quasi jurisdictional issue”). In
other words, sovereign immunity is not “jurisdictional in the
sense that it must be raised and decided by this Court on its
own motion,” Patsy v. Bd. of Regents of State of Fla.,
457 U.S. 496, 515 n. 19 (1982), but rather in the sense that it
“may be asserted at any time.” Mitchell v. Franchise Tax
Board (In re Mitchell), 209 F.3d 1111, 1117 (9th Cir. 2000),
abrogated on other grounds as recognized by Hibbs v. Dep’t
of Human Res., 273 F.3d 844, 853 n.6 (9th Cir. 2001). A
10 PISTOR V. GARCIA
defendant may, however, be found to have waived sovereign
immunity if it does not invoke its immunity in a timely
fashion and takes actions indicating consent to the litigation.
See in re Bliemeister, 296 F.3d at 862; Hill v. Blind Indus. &
Servs. of Md., 179 F.3d 754, 760 (9th Cir.), amended on
denial of reh’g, 201 F.3d 1186 (9th Cir. 1999). Although
sovereign immunity is only quasi-jurisdictional in nature,
Rule 12(b)(1) is still a proper vehicle for invoking sovereign
immunity from suit.2 See, e.g., Maxwell, 708 F.3d at 1081;
Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir.
2012) cert. denied sub nom. Pentonville Developers, Ltd. v.
Republic of Iraq, 134 S. Ct. 64 (2013); Mills v. United States,
742 F.3d 400, 404–05 (9th Cir. 2014).
In the context of a Rule 12(b)(1) motion to dismiss on the
basis of tribal sovereign immunity, “the party asserting
subject matter jurisdiction has the burden of proving its
existence,” i.e. that immunity does not bar the suit. Miller,
705 F.3d at 923 (quoting Robinson v. United States, 586 F.3d
683, 685 (9th Cir. 2009)). When a district court is presented
with a challenge to its subject matter jurisdiction, “‘[n]o
presumptive truthfulness attaches to [a] plaintiff’s
allegations.’” Robinson, 586 F.3d at 685 (quoting Augustine
v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). In
resolving such a motion, “[a] district court may ‘hear
evidence regarding jurisdiction’ and ‘resolv[e] factual
disputes where necessary.’” Robinson, 586 F.3d 685 (quoting
Augustine, 704 F.2d at 1077).
Given these established principles, the district court was
incorrect to conclude that “[e]ven if [the tribal defendants] are
2
Fed. R. Civ. P. 12(b)(1) provides that a party may assert the defense of
“lack of subject-matter jurisdiction” by motion.
PISTOR V. GARCIA 11
entitled to tribal immunity from suit . . . it would be
inappropriate . . . to dismiss the claims against them for lack
of [subject matter] jurisdiction.” To the contrary, as the tribal
defendants invoked sovereign immunity in an appropriate
manner and at an appropriate stage, i.e. in a Rule 12(b)(1)
motion to dismiss, if they were entitled to tribal immunity
from suit, the district court would lack jurisdiction over the
claims against them and would be required to dismiss them
from the litigation. See Leeson, 671 F.3d at 975 n. 12. The
district court also should not have declined outright to
consider the Nanty declaration and Garcia supplemental
declaration as arguments raised for the first time on reply, for
two reasons. First, the additional declarations did not, in fact,
go to “new” arguments, but rather pertained to the
defendants’ original argument, raised in their Rule 12(b)(1)
motion to dismiss, i.e. that they were entitled to sovereign
immunity. Second, the declarations presented evidence going
to the question of quasi-jurisdiction, and the district court was
not bound to consider only the face of the complaint or
motion to dismiss nor to accept the gamblers’ allegations as
true in resolving that issue. See, e.g., Robinson, 586 F.3d at
685.
B.
The district court’s alternative reasoning, however, was
correct—with regard to the tribal defendants’ invocation of
tribal sovereign immunity, “the crucial question . . . [is]
whether plaintiffs sued these defendants . . . in their official
capacities or in their individual capacities”; the suit is in fact
against the officials in their individual capacities; and it can
therefore go forward.
12 PISTOR V. GARCIA
As a general matter, individual or “[p]ersonal-capacity
suits seek to impose personal liability upon a government
official for [wrongful] actions he takes under color of . . .
law,” and that were taken in the course of his official duties.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). By contrast,
official capacity suits ultimately seek to hold the entity of
which the officer is an agent liable, rather than the official
himself: they “‘generally represent [merely] another way of
pleading an action against an entity of which an officer is an
agent.’” Id. at 165–66 (quoting Monell v. N.Y.C. Dep’t of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). For this reason,
an officer sued in his official capacity is entitled to “forms of
sovereign immunity that the entity, qua entity, may possess.”
Id. at 167. An officer sued in his individual capacity, in
contrast, although entitled to certain “personal immunity
defenses, such as objectively reasonable reliance on existing
law,” id. at 166–67, cannot claim sovereign immunity from
suit, “so long as the relief is sought not from the
[government] treasury but from the officer personally.”
Alden v. Maine, 527 U.S. 706, 757 (1999).
These same principles fully apply to tribal sovereign
immunity. Although “[t]ribal sovereign immunity ‘extends
to tribal officials when acting in their official capacity and
within the scope of their authority,’” Cook, 548 F.3d at 727
(emphasis added) (quoting Linneen v. Gila River Indian
Cmty., 276 F.3d 489, 492 (9th Cir. 2002); see also Miller,
705 F.3d at 928 (same), tribal defendants sued in their
individual capacities for money damages are not entitled to
sovereign immunity, even though they are sued for actions
taken in the course of their official duties. See Maxwell,
708 F.3d at 1089. As the Tenth Circuit has explained:
PISTOR V. GARCIA 13
The general bar against official-capacity
claims . . . does not mean that tribal officials
are immunized from individual-capacity suits
arising out of actions they took in their
official capacities . . . . Rather, it means that
tribal officials are immunized from suits
brought against them because of their official
capacities—that is, because the powers they
possess in those capacities enable them to
grant the plaintiffs relief on behalf of the tribe.
Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d
1288, 1296 (10th Cir. 2008).
Following this rule, Maxwell held that two paramedics
employed by a tribe (the Viejo Band) who allegedly had
provided grossly negligent care to a shooting victim were not
entitled to tribal sovereign immunity from a state tort action
brought against them in their individual capacities. 708 F.3d
at 1079, 1081, 1089–90. Conducting a “remedy-focused
analysis,” id. at 1088, Maxwell explained:
Tribal sovereign immunity derives from the
same common law immunity principles that
shape state and federal sovereign immunity.
Normally, a suit like this one—brought
against individual officers in their individual
capacities—does not implicate sovereign
immunity. The plaintiff seeks money
damages not from the state treasury but from
the officer[s] personally. Due to the essential
nature and effect of the relief sought, the
sovereign is not the real, substantial party in
interest.
14 PISTOR V. GARCIA
Id. at 1087–88 (citations omitted) (internal quotation marks
omitted) (alteration in original). Maxwell went on to caution:
In any suit against tribal officers, we must be
sensitive to whether “the judgment sought
would expend itself on the public treasury or
domain, or interfere with the public
administration, or if the effect of the judgment
would be to restrain the [sovereign] from
acting, or to compel it to act.”
Id. at 1088 (quoting Shermoen v. United States, 982 F.2d
1312, 1320 (9th Cir. 1992)) (alteration in original).
As examples of such suits, Maxwell pointed to Cook,
548 F.3d 718, and Hardin v. White Mountain Apache Tribe,
779 F.2d 476 (9th Cir. 1985). Maxwell, 708 F.3d at 1088–89.
In Cook, for example, the plaintiffs’ object was to reach the
public treasury through a respondeat superior ruling. See
Maxwell, 708 F.3d at 1088; see also Cook, 548 F.3d at 727.
The tribe in Cook was thus “the ‘real, substantial party in
interest,’” and the suit against the tribal officers in their
official capacities was therefore barred by sovereign
immunity principles. Maxwell, 708 F.3d at 1088 (quoting
Cook, 548 F.3d at 727). Likewise, in Hardin, sovereign
immunity barred the plaintiff from litigating a case against
high-ranking tribal council members seeking to hold them
individually liable for voting to eject the plaintiff from tribal
land. To hold otherwise, we ruled, would interfere with the
tribe’s internal governance. See Hardin, 779 F.2d at 478.
“Hardin was in reality an official capacity suit,” barred by
sovereign immunity, because the alternative, to “[h]old[] the
defendants liable for their legislative functions[,] would . . .
have attacked ‘the very core of tribal sovereignty.’” Maxwell,
PISTOR V. GARCIA 15
708 F.3d at 1089 (quoting Baugus v. Brunson, 890 F. Supp.
908, 911 (E.D. Cal. 1995)).
Maxwell’s caution about masked official capacity suits
aside, it remains “the general rule that individual officers are
liable when sued in their individual capacities.” 708 F.3d at
1089. So long as any remedy will operate against the officers
individually, and not against the sovereign, there is “no
reason to give tribal officers broader sovereign immunity
protections than state or federal officers.” Id.
The principles reiterated in Maxwell foreclose the tribal
defendants’ claim to tribal sovereign immunity in this case.
The gamblers have not sued the Tribe. The district court
correctly determined that the gamblers are seeking to hold the
tribal defendants liable in their individual rather than in their
official capacities. They “seek[] money damages ‘not from
the [tribal] treasury but from the [tribal defendants]
personally.’” Maxwell, 708 F.3d at 1088 (quoting Alden,
527 U.S. at 757). Given the limited relief sought, the tribal
defendants have not shown that “the judgment sought would
expend itself on the [tribal] treasury or domain, or interfere
with [tribal] administration, . . . [or] restrain the [Tribe] from
acting.” Id. (quoting Shermoen, 982 F.2d at 1320). Even if
the Tribe agrees to pay for the tribal defendants’ liability, that
does not entitle them to sovereign immunity: “The unilateral
decision to insure a government officer against liability does
not make the officer immune from that liability.” Id. at 1090.
In sum, the tribal defendants have not shown that the
Tribe is the “real, substantial party in interest.” Id. at 1088.
They are not entitled to invoke the Tribe’s sovereign
immunity.
16 PISTOR V. GARCIA
III.
We do not have jurisdiction to decide whether the
gamblers have successfully stated a claim against the
defendants under 42 U.S.C. § 1983. That question is not one
of sovereign immunity, but instead concerns whether the
gamblers have stated a valid cause of action. The cause of
action question is neither reachable under Rule 12(b)(1) nor
appealable under Burlington, or, more generally, the
collateral order doctrine derived from Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). See, e.g.,
Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007); Am.
Fed. of Gov’t Emps. Local 1 v. Stone, 502 F.3d 1027,
1039–40 (9th Cir. 2007).
Nevertheless, we note that the intersection of tribal
sovereign immunity principles and § 1983 doctrine appears
to be a lingering source of confusion. Both the gamblers and
defendants misapprehend the significance for the sovereign
immunity inquiry—or rather, the lack of significance—of
whether the tribal defendants were acting under color of state
law or under color of tribal law when they seized the
defendants. We briefly clarify why the § 1983 color of state
law issue is not before us and expand on the distinction
between that issue and tribal sovereign immunity.
The question whether defendants were acting in their
official capacities under color of state or under color of tribal
law is wholly irrelevant to the tribal sovereign immunity
analysis. By its essential nature, an individual or personal
capacity suit against an officer seeks to hold the officer
personally liable for wrongful conduct taken in the course of
her official duties. Graham, 473 U.S. at 165. As the officer
personally is the target of the litigation, she may not claim
PISTOR V. GARCIA 17
sovereign immunity—and that is so regardless whether she
was acting under color of tribal or of state law at the time of
the wrongful conduct in question.
By contrast, whether the defendants were acting under
color of state or tribal law when they seized the gamblers is
a necessary inquiry for the purposes of establishing the
essential elements of the gamblers’ § 1983 claim: “To
maintain an action under section 1983 against . . . individual
defendants, [a plaintiff] must . . . show: (1) that the conduct
complained of was committed by a person acting under the
color of state law; and (2) that this conduct deprived them of
rights, privileges, or immunities secured by the Constitution
or laws of the United States.” Evans v. McKay, 869 F.2d
1341, 1347 (9th Cir. 1989) (emphasis in original). As we
have long recognized, “actions under section 1983 cannot be
maintained in federal court for persons alleging a deprivation
of constitutional rights under color of tribal law.” Id.; see
also Bressi v. Ford, 575 F.3d 891, 895 (9th Cir. 2009); R.J.
Williams Co. v. Fort Belknap Housing Authority, 719 F.2d
979, 982 (9th Cir. 1983). The tribal defendants can thus be
held liable under § 1983 only if they were acting under color
of state, not tribal, law at the time they seized the gamblers.
Evans exemplifies this distinction. In Evans, non-Indians
residing in a city on the Blackfeet Indian Reservation sued
local police officers and tribal officials in their individual
capacities under § 1983, arguing that their arrest under a city
ordinance was unconstitutional. Under an agreement between
the tribe and the city, the police officers in question were
empowered to enforce both local and tribal law. 869 F.2d at
1343–44. The district court dismissed the suit under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim, holding that the
18 PISTOR V. GARCIA
tribal defendants and police officers possessed tribal
sovereign immunity. Id. at 1345.
We reversed. Noting, first, that a § 1983 claim cannot be
maintained against a defendant acting under color of tribal
law, Evans held that, under the 12(b)(6) standard, the
plaintiffs had sufficiently pleaded that both the individual
police officers and individual tribal defendants had acted
under color of state law when they arrested the plaintiffs
under the city ordinance. See id. at 1347–49. In Bressi,
similarly, we held that tribal officials were acting under color
of state law because they were authorized to act under either,
and, in the particular instance, stopped a non-Indian on a
public highway and cited him for a violation of state law.
575 F.3d at 896–97.
This case law merely confirms the well-established rule
that a § 1983 claim cannot be maintained against defendants
who act under color of tribal rather than state law. It does not
in any way disturb the tribal sovereign immunity principle
that tribal officials are immune only from suits brought
against them in their official rather than in their individual
capacities.
CONCLUSION
Tribal sovereign immunity is a quasi-jurisdictional issue
that, if invoked at the Rule 12(b)(1) stage, must be addressed
and decided. Accordingly, the district court erred in
concluding that it could deny the tribal defendants’ 12(b)(1)
motion even if they were entitled to tribal sovereign
immunity. The tribal defendants are not entitled to tribal
sovereign immunity, however, because they are being sued in
their individual capacities, rather than in their official
PISTOR V. GARCIA 19
capacities, for actions taken in the course of their official
duties; the gamblers “seek[] money damages ‘not from the
[tribal] treasury but from the [tribal defendants] personally’”;
and any remedy will not operate against the Tribe. Maxwell,
708 F.3d at 1088 (quoting Alden, 527 U.S. at 757). Whether
the tribal defendants were acting under state or tribal law does
not matter for purposes of this analysis, although it will
matter for purposes of deciding whether the gamblers can
succeed in their § 1983 claim.
AFFIRMED.