“Therefore, in an action against an Indian tribe, we conclude that § 1331 will only confer subject matter jurisdiction where another statute provides a waiver of tribal sovereign immunity or the tribe unequivocally waives its immunity.”
How later courts described this case
- “Therefore, in an action against an Indian tribe, we conclude that § 1331 will only confer subject matter jurisdiction where another statute provides a waiver of tribal sovereign immunity or the tribe unequivocally waives its immunity.”
- “Tribal immunity extends to subdivisions of a tribe, and even bars suits arising from a tribe’s commercial activities.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SHANTELL ROBINSON, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-289-D
)
OGLALA SIOUX TRIBE, et al., )
)
Defendants. )
ORDER
Before the Court is Defendants Oglala Sioux Tribe and Tribal Legal Department’s
Motion to Dismiss, With Brief in Support [Doc. No. 21].1 Plaintiff filed both an
“Objection” [Doc. No. 24] and a “Reply” [Doc. No. 42], which the Court will collectively
construe as Plaintiff’s response. The Tribe and Legal Department filed a Reply [Doc. No.
33]. The matter is fully briefed and at issue.
BACKGROUND AND FACTUAL ALLEGATIONS
After the Court sua sponte dismissed Plaintiff’s Complaint, she timely filed an
Amended Complaint [Doc. No. 11], along with two Supplements [Doc. Nos. 12, 14]. In
the Amended Complaint, Plaintiff appears to bring various fraud, copyright infringement,
and conspiracy claims against numerous defendants. Plaintiff’s claims appear to stem from
the alleged theft of her protected intellectual property, Omni Credit and Omni Virtual
1 Where appropriate, the Court differentiates between the Oglala Sioux Tribe (Tribe) and the Tribal
Legal Department (Legal Department). However, because the Tribe’s sovereign immunity extends
to the Legal Department (as will be explained below), the Court generally refers to both Defendants
as the Tribe.
Attendant. Plaintiff seeks $75,000,000 in compensatory damages, as well as punitive
damages.
In the instant Motion, the Tribe argues that it enjoys tribal sovereign immunity, and
that immunity extends to its agencies and departments, including the Legal Department.
Therefore, because the Tribe’s sovereign immunity has not been abrogated or waived, the
Court does not have subject-matter jurisdiction over Plaintiff’s claims against it or the
Legal Department.
STANDARD OF DECISION
“Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the
sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge
to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonell, 299
F.3d 1173, 1180 (10th Cir. 2002) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th
Cir. 1995)). “Tribal sovereign immunity is a matter of subject matter jurisdiction, which
may be challenged by a motion to dismiss under Fed.R.Civ.P. 12(b)(1).” E.F.W. v. St.
Stephen's Indian High Sch., 264 F.3d 1297, 1302–03 (10th Cir. 2001) (citation omitted).
The legal test used in the assessment of subject-matter jurisdiction depends on the
type of challenge asserted. When analyzing a facial attack, a district court must confine
itself to the complaint and accept the allegations as true. Holt, 46 F.3d at 1002. When
analyzing a factual attack, however, the motion challenges the underlying factual basis for
subject matter jurisdiction. A district court “may not presume the truthfulness of the
complaint's factual allegations” and “has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed facts.” Id. at 1003; see
also Paper, Allied-Indus., Chem. & Energy Workers Int'l Union v. Cont'l Carbon Co., 428
F.3d 1285, 1292–93 (10th Cir. 2005).
Here, the Tribe relies, at least in part, on the Declaration of Lisa Steele-Cummings
[Doc. No. 21-2] in arguing that it has not waived its sovereign immunity. See Tribe’s Mot.
to Dismiss at 8. Therefore, the Court treats the Tribe’s Rule 12(b)(1) argument as a factual
attack on the Amended Complaint’s jurisdictional allegations (to the extent any exist), and
the Court will not presume the truthfulness of those allegations. Accordingly, it is
“necessary for the party opposing the motion to present affidavits or any other evidence
necessary to satisfy its burden of establishing that the court, in fact, possesses subject
matter jurisdiction.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499
(10th Cir. 1995) (internal quotation marks omitted). The Court will “weigh the conflicting
evidence to arrive at the factual predicate that subject-matter jurisdiction does or does not
exist.” Teodosio v. DaVita, Inc., 684 F. Supp. 3d 1117, 1121-22 (D. Colo. 2023).2
DISCUSSION
As mentioned, the Tribe argues that it enjoys tribal sovereign immunity, and that its
immunity “extends to its agencies and departments,” including the Legal Department.
Tribe’s Mot. to Dismiss at 5-7.3 Therefore, because the Tribe’s sovereign immunity has not
2 The Court is not required to convert Defendants’ Motion to a motion for summary judgment, as
resolution of the jurisdictional question raised is not “intertwined with the merits of the case.”
Somerlott v. Cherokee Nation Distribs. Inc., No. CIV–08–429–D, 2010 WL 1541574, at *2 (W.D.
Okla. Apr. 16, 2010) (quoting Holt, 46 F.3d at 1003).
3 Citations refer to the Court’s CM/ECF pagination at the top of each page.
been abrogated or waived, the Court lacks subject-matter jurisdiction over the claims
asserted against it. Id. at 7-9.
In response, Plaintiff argues that the “doctrine of sovereign immunity does not apply
in this case due to the federal subject matter jurisdiction involving copyright infringement
under 17 U.S.C. §501 and civil rights concerns related to misuse of public infrastructure
and tribal economic fraud.” Pl.’s Objection at 1; see also Pl.’s Reply at 2 (arguing that
sovereign immunity does not shield “[i]ntellectual property theft,” “[c]ivil fraud and
tortious interference,” or “[a]ctions taken by tribal employees/entities operating under
federal program administration and federal contract law”).4
“Because Indian tribes are sovereign powers, they possess immunity from suit to
the extent that Congress has not abrogated that immunity and the tribe has not clearly
waived its immunity.” Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino and
Resort, 629 F.3d 1173, 1183 (10th Cir. 2010). “Tribal sovereign immunity may extend to
subdivisions of a tribe, including those engaged in economic activities, provided that the
relationship between the tribe and the entity is sufficiently close to properly permit the
entity to share in the tribe's immunity.” Id.; Somerlott v. Cherokee Nation Distribs., Inc.,
686 F.3d 1144, 1148 (10th Cir. 2012) (“Tribal immunity extends to subdivisions of a tribe,
and even bars suits arising from a tribe’s commercial activities.”).
“To abrogate tribal immunity, Congress must ‘unequivocally’ express that purpose.”
C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 416-417
4 Because Plaintiff proceeds pro se, her filings are construed liberally. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). But the Court will not act as her advocate. Id.
(2001) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) and citing United
States v. Testan, 424 U.S. 392, 399 (1976)). And “to relinquish its immunity, a tribe’s
waiver must be ‘clear.’” Id. at 418 (quoting Okla. Tax Comm’n v. Citizen Band of
Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991)).
Upon consideration, the Court concludes that it lacks subject-matter jurisdiction
over Plaintiff’s claims against the Tribe and Legal Department. The Tribe’s law specifically
affirms its sovereign immunity, providing as follows:
The Oglala Sioux Tribe and its governing body, the Oglala Sioux Tribal
Council, and its departments, programs, and agencies shall be immune from
suit in any civil action and its officers, employees, and agents shall be
immune from suit in any civil action for any liability arising from the
performance of their official duties.
O.S.T. Ord. No. 15-16 § 1(a) (Sept. 28, 2015) [Doc. No. 21-2 at 85]; see also Stanko v.
Oglala Sioux Tribe Pub. Safety Div., No. Civ. 21-5085-JLV, 2022 WL 220088, at *1 (D.S.D.
Jan. 25, 2022), aff'd sub nom. Stanko v. Oglala Sioux Tribe, No. 22-1266, 2022 WL
1499817 (8th Cir. May 12, 2022) (referencing O.S.T. Ord. No. 15-16 and noting that the
Tribe “specifically reserved its right to assert sovereign immunity absent consent . . . and
reaffirmed tribal immunity in 2015”).
Plaintiff points to no act of Congress abrogating the Tribe’s sovereign immunity,
and, as demonstrated above, the Tribe has not waived its sovereign immunity. Instead,
Plaintiff appears to argue that the Copyright Act independently confers subject-matter
jurisdiction, regardless of the Tribe’s immunity. See Pl.’s Objection at 1. But that argument
is squarely foreclosed by binding precedent. See Miner Elec., Inc. v. Muscogee (Creek)
Nation, 505 F.3d 1007, 1011 (10th Cir. 2007) (“Therefore, in an action against an Indian
tribe, we conclude that § 1331 will only confer subject matter jurisdiction where another
statute provides a waiver of tribal sovereign immunity or the tribe unequivocally waives
its immunity.”).
Plaintiff also argues that sovereign immunity does not shield “[i]ntellectual property
theft,” “[c]ivil fraud and tortious interference,” or “[a]ctions taken by tribal
employees/entities operating under federal program administration and federal contract
law.” Pl.’s Reply at 2. The only authority Plaintiff cites—Lewis v. Clarke—does not support
her position. In Lewis, the Supreme Court held that, “in a suit brought against a tribal
employee in his individual capacity, the employee, not the tribe, is the real party in interest
and the tribe's sovereign immunity is not implicated.” 581 U.S. 155, 158 (2017). Here,
Plaintiff brings claims against the Tribe and Legal Department, neither of which is a tribal
employee. Therefore, Lewis is inapplicable.
That Plaintiff alleges the Tribe committed various wrongs does not, on its own,
mean that she can bring suit against them. Because the Tribe enjoys tribal sovereign
immunity, to establish subject-matter jurisdiction, Plaintiff must show that the Tribe has
waived that immunity, or that Congress has abrogated it. She has done neither, and,
therefore, her claims against the Tribe and Legal Department must be dismissed.
CONCLUSION
For these reasons, the Tribe and Legal Department enjoy sovereign immunity, and
that sovereign immunity has not been abrogated or waived. Therefore, the Court does not
have subject-matter jurisdiction over Plaintiff’s claims against these Defendants.”
IT IS THEREFORE ORDERED that Defendants Oglala Sioux Tribe and Tribal
Legal Department’s Motion to Dismiss, With Brief in Support [Doc. No. 21] is
GRANTED. Plaintiff’s claims against these Defendants are DISMISSED without
prejudice.°®
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendants’ Motion
to Dismiss [Doc. No. 43] is DENIED as moot.
IT IS SO ORDERED this 16" day of May, 2025.
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Q: ya
TIMOTHY D. DeGIUSTI
Chief United States District Judge
> Because the Court concludes that it does not have subject-matter jurisdiction, it does not reach
the Tribe’s arguments regarding insufficient service of process.
6 “Jurisdictional dismissals ordinarily should be entered without prejudice.” Barnes v. United
States, 776 F.3d 1134, 1151 (10th Cir. 2015) (emphasis in original).