Oviatt v. Reynolds

UNITED STATES COURT OF APPEALS FILED
United States Court of Appeals
FOR THE TENTH CIRCUIT Tenth Circuit
_________________________________
May 7, 2018
KONNA C. OVIATT; EDSON G.
Elisabeth A. Shumaker
GARDNER; LYNDA M. Clerk of Court
KOZLOWICZ; ATHENYA SWAIN,
Plaintiffs - Appellants,
v. No. 17-4124
(D.C. No. 2:16-CV-01008-RJS)
WILLIAM REYNOLDS, in his (D. Utah)
official capacity as Judge of the Ute
Trial Court; SHAUN CHAPOOSE;
EDRED SECAKUKU; TONY
SMALL; BRUCE IGNACIO;
CUMMINGS J. VANERHOOP;
RONALD WOPSOCK; CLEVE
HATCH,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we are deciding this appeal based
on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
This appeal involves jurisdiction over claims against tribal officials.
Some or all of the four plaintiffs are lay advocates in the Ute Tribe. The
Tribe allegedly ordered
 the plaintiffs’ removal from tribal buildings and tribal court
and
 the arrest and incarceration of the plaintiffs.
As a result of these orders allegedly being carried out, the plaintiffs sued
certain tribal officials under the Indian Civil Rights Act and United States
Constitution, alleging that the officials had violated the Fourth Amendment
by incarcerating and searching the plaintiffs. 1 The district court dismissed
the action for lack of jurisdiction, and we affirm.
Two of the plaintiffs have also requested appointment of the U.S.
Attorney as counsel in this appeal. Exercising our discretion, we deny the
request.
I. We deny the motion to appoint the U.S. Attorney as counsel.
After the appeal was fully briefed, two plaintiffs (Mr. Edson Gardner
and Ms. Lynda Kozlowicz) moved for appointment of the U.S. Attorney to
represent them. The motion was grounded in 25 U.S.C. § 175, which
1
In the second amended petition, the plaintiffs also claimed a hostile
work environment and retaliation in violation of the First Amendment. On
appeal, however, the plaintiffs do not address these claims.
2
authorizes the U.S. Attorney to represent Indians on allotted lands. But, as
the plaintiffs acknowledge, appointment under the statute is not mandatory.
See Siniscal v. United States, 208 F.2d 406, 410 (9th Cir. 1953) (“We think
25 U.S.C.A. § 175 is not mandatory . . . .”); see also Thad Blank, Time to
Recommit: The Department of Justice’s Indian Resources Section, the Trust
Duty, and Affirmative Litigation, 48 Idaho L. Rev. 391, 409 (2012) (“The
courts have held that 25 U.S.C. § 175 does not create any statutory
obligation that the DOJ participate in litigation on behalf of tribal
governments.”). Instead, we exercise discretion in deciding whether to
appoint the U.S. Attorney. See Shoshone-Bannock Tribes v. Reno, 56 F.3d
1476, 1481 (D.C. Cir. 1995) (recognizing that 25 U.S.C. § 175 imposes
only a discretionary duty of representation); United States v. Pend Oreille
Pub. Util. Dist. No. 1, 28 F.3d 1544, 1553 (9th Cir. 1994) (“The United
States has discretion to represent the individual Indian allottees under 25
U.S.C. § 175.”).
We exercise discretion to deny the requested appointment for two
reasons.
First, the plaintiffs have sued Indian officials who enjoy an equal
right to representation by the U.S. Attorney. The U.S. Attorney could not
ethically represent both sides of the suit.
3
Second, the plaintiffs waited too long to seek appointment. They did
not ask for appointment of the U.S. Attorney in district court and asked in
this court only after the appeal had already been fully briefed.
Appointment of the U.S. Attorney would require the court to scrap the
existing briefs and start over, which would unfairly burden the defendants
and create unwarranted delay.
For both reasons, we deny the motion to appoint the U.S. Attorney
for Mr. Gardner and Ms. Kozlowicz.
II. The district court lacked subject-matter jurisdiction.
The district court dismissed this action for lack of subject-matter
jurisdiction. We review jurisdiction de novo. Ute Indian Tribe v.
Lawrence, 875 F.3d 539, 541 (10th Cir. 2017).
The plaintiffs bear the burden to establish subject-matter jurisdiction.
Merida-Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). To
satisfy their burden, the plaintiffs rely on the Indian Civil Rights Act and
28 U.S.C. § 1331. This reliance is misguided. The Indian Civil Rights Act
authorizes relief in the form of a writ of habeas corpus. Valenzuela v.
Silversmith, 699 F.3d 1199, 1202 (10th Cir. 2012). But habeas relief is
limited to individuals who are detained when the petition is filed, and the
plaintiffs have not alleged they were detained when they filed the habeas
4
petition. And to otherwise invoke 28 U.S.C. § 1331, the plaintiffs must
invoke a colorable basis for a federal claim. In our view, the plaintiffs
have not alleged a colorable claim under the Indian Civil Rights Act or any
other federal provision.
A. The Indian Civil Rights Act
Under the Indian Civil Rights Act, the plaintiffs could pursue habeas
relief only “to test the legality of [their] detention.” 25 U.S.C. § 1303; see
Broomes v. Ashcraft, 358 F.3d 1251, 1254 (10th Cir. 2004) (restricting
habeas relief to state prisoners who are in custody when the petition is
filed), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356(2010). We consider the plaintiffs “detained” only if they were subject at
the time to “a severe actual or potential restraint on liberty.” Jeffredo v.
Macarro, 599 F.3d 913, 919 (9th Cir. 2010) (internal quotation marks
omitted); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 880
(2d Cir. 1996).
The plaintiffs have alleged past arrests and incarceration. But they do
not allege that they were under arrest or incarcerated when they sought
habeas relief.
Instead, the plaintiffs argue that they were “banished,” relying on the
Second Circuit’s opinion in Poodry v. Tonawanda Band of Seneca Indians,
5
85 F.3d 874 (2d Cir. 1996). We have not decided whether banishment
satisfies the statutory requirement of detention. See Walton v. Tesuque
Pueblo, 443 F.3d 1274, 1279 n.2 (10th Cir. 2006) (declining to decide
whether banishment of a non-Indian from tribal lands constitutes detention
under 25 U.S.C. § 1303). But even in the Second Circuit, a tribal member
is considered “detained” only when permanently banished from the tribe.
Shenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 714 (2d Cir. 1998).
On appeal, the plaintiffs use the word “banishment.” But in district
court, the plaintiffs did not allege banishment. Nor have they presented
evidence of a permanent prohibition from entering the Ute Tribe’s land. As
a result, even if we were to follow Poodry, the plaintiffs’ new allegation of
“banishment” would not satisfy the detention requirement. See Walton, 443
F.3d at 1279 n.2 (rejecting a claim of banishment based on the plaintiff’s
lack of evidence notwithstanding his allegation of banishment in a
complaint and affidavit); Tavares v. Whitehouse, 851 F.3d 863, 875 (9th
Cir. 2017) (“[W]e do not need to decide whether to adopt Poodry’s
conclusion that tribal banishment orders amount to ‘detention’ under
§ 1303, because even under Poodry’s logic, the Second Circuit limited
habeas jurisdiction only to permanent banishment orders, not temporary
exclusion orders like those in this case.”).
6
The plaintiffs appear to rely on their exclusion from the tribal office,
court, and family-services building. Second Am. Pet. ¶ 14. But exclusion
from these facilities does not constitute permanent banishment. The Second
Circuit addressed a similar issue in Shenandoah v. United States
Department of Interior, 159 F.3d 708, 714 (2d Cir. 1998). There the
plaintiffs alleged that they had
[been] suspended or terminated from employment positions,
lost their voices within the Nation’s governing bodies, lost
health insurance, [been] denied admittance into the Nation’s
health center, lost quarterly distributions paid to all Nation
members, [been] banned from various businesses and
recreational facilities such as the casino, Turning Stone park,
the gym, and the Bingo hall, [been] stricken from Nation
membership rolls, [been] prohibited from speaking with a few
other Nation members, and [been deprived of] Nation mailings.
Id. (brackets and internal quotation marks omitted). Faced with these
allegations, the Second Circuit concluded that the plaintiffs had not faced a
severe actual or potential restraint on their liberty, stating: “In contrast [to
the Poodry plaintiffs], plaintiffs in the instant case have not alleged that
they were banished from the Nation, deprived of tribal membership,
convicted of any crime, or that defendants attempted in anyway [sic] to
remove them from Oneida territory.” Id.7
Though the plaintiffs use the word “banishment,” they have not
alleged any facts creating a colorable basis for jurisdiction under the
Indian Civil Rights Act.
B. 28 U.S.C. § 1331The plaintiffs also invoke federal-question jurisdiction based on 28
U.S.C. § 1331. This section does not provide subject-matter jurisdiction. 2
Section 1331 creates federal jurisdiction for a civil action arising
under the United States Constitution, a federal law, or a treaty. 3 28 U.S.C.
§ 1331. The plaintiffs base their substantive claims not only on the Indian
Civil Rights Act but also on the Fourth Amendment.
Generally, § 1331 creates federal jurisdiction over claims based
directly on the United States Constitution. Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 66 (2001). But § 1331 does not create jurisdiction when the
constitutional claim is “wholly unsubstantial and frivolous.” Junior
2
In district court, the plaintiffs also invoked 28 U.S.C. § 1343. But
their appeal briefs do not address § 1343.
3
In their opening brief, the plaintiffs stated that jurisdiction under
§ 1331 can be based on a claim arising under federal common law. But the
plaintiffs do not identify such a claim here, and we cannot discern a
principle of federal common law underlying the plaintiffs’ claims.
8
Chamber of Commerce v. United States Jaycees, 495 F.2d 883, 886 (10th
Cir. 1974).
The constitutional claims here are frivolous because the Fourth
Amendment does not bind Indian tribes. See Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 56-57 (1978) (“[T]ribes have historically been
regarded as unconstrained by those constitutional provisions framed
specifically as limitations on federal or state authority.”); Valenzuela v.
Silversmith, 699 F.3d 1199, 1202 (10th Cir. 2012) (“Constitutional
provisions that limit federal or state authority do not apply to Indian tribes
. . . .”); see also United States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir.
2005) (stating that “the fourth amendment does not apply to the conduct of
Indian tribal officials in Indian territory”); United States v. Becerra-
Garcia, 397 F.3d 1167, 1171 (9th Cir. 2005) (stating that the Fourth
Amendment “does not directly apply to the conduct of tribal
governments”). As a result, the plaintiffs lack a colorable Fourth
Amendment claim against the Ute Tribe or its officials. See Groundhog v.
Keeler, 442 F.2d 674, 678 (10th Cir. 1971) (holding that the district court
lacked jurisdiction over a suit against a tribal official because the
underlying constitutional challenge lacked a substantial basis).
9
To avoid this jurisdictional impediment, the plaintiffs argue that they
have asserted Bivens claims against the tribal officials in their personal
capacities rather than separate claims against the tribe itself. 4 But Bivens
claims lie against federal officials, not tribal officials. Dry v. United
States, 235 F.3d 1249, 1255 (10th Cir. 2000). And the Constitution does
not constrain tribal officials even when they are sued in their personal
capacities. Id. As a result, federal jurisdiction is lacking even though the
tribal officials were sued in their personal capacities. 5
* * *
4
In their reply brief, the plaintiffs flatly state that “[t]he Ute Tribe is
not named as the defendant.” Appellants’ Reply Br. at 16. But in the
second amended petition, the plaintiffs asserted official-capacity claims
against members of the Ute Tribal Court, Ute Tribal Council, and the Ute
Tribe Family Service. An official-capacity claim is generally considered
the equivalent of a claim against the entity itself. See Kentucky v. Graham,
473 U.S. 159, 165 (1985).
5
The plaintiffs also argue that the tribe’s sovereign immunity does not
protect tribal officers sued in their personal capacities. We need not
address this argument because jurisdiction would not exist even if the
tribe’s sovereign immunity were confined to claims against the tribe itself.
10
Because the district court lacked subject-matter jurisdiction, we
affirm the dismissal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
11