Rahne Pistor v. Carlos Garcia

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.