Ronald Oertwich v. Traditional Village of Togiak

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD OERTWICH, No. 19-36029

Plaintiff-Appellant,

D.C.

v. No. 3:19-cv-00082-JWS

TRADITIONAL VILLAGE OF

TOGIAK, AKA Community of OPINION

Togiak, AKA Native Village

of Togiak, AKA Traditional

Council of Togiak; JIMMY

COOPCHIAK; LEROY

NANALOOK; ANECIA KRITZ;

ESTHER THOMPSON; JOHN

NICK; WILLIE WASSILLIE;

HERBERT JR. LOCKUK;

WILLIE ECHUCK, JR.; CRAIG

LOGUSAK, in their individual

and official capacities; PAUL

MARKOFF; PETER LOCKUK,

SR.; BOBBY COOPCHIAK,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

2 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

Argued and Submitted June 15, 2021

Anchorage, Alaska

Filed March 30, 2022

Before: Johnnie B. Rawlinson, Morgan Christen, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Rawlinson;

Dissent by Judge R. Nelson

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 3

SUMMARY*

Tribal Sovereign Immunity

The panel affirmed in part and reversed in part the district

court’s dismissal, for lack of subject matter jurisdiction, of

Ronald Oertwich’s complaint against the Traditional Village

of Togiak and various individual defendants.

Oertwich alleged that Tribe, its officers, and members

improperly ordered his banishment based on his purported

attempt to import alcohol into the City of Togiak, Alaska, and

that, in the course of enforcing the banishment order,

defendants detained Oertwich in the municipal jail and forced

him to board an airplane destined for another city in Alaska.

Affirming in part, the panel held that tribal sovereign

immunity deprived the district court of subject matter

jurisdiction over Oertwich’s claims alleged exclusively

against the Tribe. The panel held that tribal sovereign

immunity extends to Alaskan tribes even though they are

organized as political entities rather than geographical areas

or reservations. The panel held that, under controlling

precedent, tribal sovereign immunity extends to tortious

conduct occurring on non-tribal lands.

The panel also affirmed the district court’s order

dismissing claims against tribal judicial officers on judicial

immunity grounds. The panel concluded that Oertwich failed

to sufficiently allege that the tribal judges were not acting in

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

their judicial capacity or that the tribal court’s orders were

taken in the complete absence of all jurisdiction.

The panel reversed in part and remanded for the district

court to fully consider (1) Oertwich’s 42 U.S.C. § 1983

claims as to individual defendants in their individual

capacities; (2) whether Oertwich is entitled to prospective

injunctive relief against individual defendants; and

(3) Oertwich’s individual tort claims against the individual

defendants.

The panel held that if Oertwich’s § 1983 claim was

asserted against individual defendants in their official

capacities, they were entitled to sovereign immunity and the

district court lacked jurisdiction to consider the claim. The

panel remanded for the district court to analyze whether

Oertwich fairly stated § 1983 claims against the individual

defendants in their individual capacities and to consider

whether Oertwich should be permitted to amend his

complaint to clarify whether he alleges that individual

defendants acted under color of state law.

The panel wrote that due to the district court’s dismissal

for lack of subject matter jurisdiction, it did not

independently determine if Oertwich sufficiently alleged

prospective injunctive relief available under Ex parte Young.

As a result, the panel remanded to the district court to afford

Oertwich the opportunity to amend his complaint to clarify

whether he alleges prospective injunctive relief for

threatened or ongoing unlawful conduct by a particular

governmental officer.

The panel held that the district court erred in ruling that

Oertwich was required to pursue his individual capacity

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 5

claims premised on violations of state law in tribal court. The

panel remanded for the district court to consider whether any

recovery for Oertwich’s state tort claims will run against the

individual tribal defendants themselves, and whether they

therefore cannot enjoy tribal sovereign immunity.

Dissenting in part, Judge R. Nelson wrote that the

majority erred in holding that Oertwich’s complaint properly

alleged a § 1983 claim against the individual defendants

acting in their individual capacities under color of state law.

He wrote that he would affirm the district court’s dismissal of

the § 1983 claim for failure to allege that the individual

defendants acted under the color of state law.

COUNSEL

David H. Tennant (argued), Law Office of David Tennant

PLLC, Rochester, New York; Andy L. Pevehouse, Gilman &

Associates LLC, Kenai, Alaska; for Plaintiff-Appellant.

Whitney A. Leonard (argued), Rebecca A. Patterson, Richard

D. Monkman, and Nathaniel Amdur-Clark, Sonosky

Chambers Sachse Miller Monkman LLP, Anchorage, Alaska,

for Defendants-Appellees.

6 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

OPINION

RAWLINSON, Circuit Judge:

Ronald Oertwich (Oertwich) appeals the district court’s

order dismissing his complaint against Appellee Traditional

Village of Togiak (the Tribe) and various individual

defendants for lack of subject matter jurisdiction. Oertwich

alleged that the Tribe, its officers, and members improperly

ordered his banishment based on his purported attempt to

import alcohol into the City of Togiak, Alaska, and that, in

the course of enforcing the banishment order, defendants

detained Oertwich in the municipal jail and forced him to

board an airplane destined for another city in Alaska.

Oertwich contends that the district court erred in holding that,

because the Tribe and its officers were entitled to tribal

sovereign immunity, the court lacked subject matter

jurisdiction. Oertwich also maintains that the district court

did not properly consider his individual capacity claims

against the individual defendants, or his claims brought

pursuant to 42 U.S.C. § 1983. Finally, Oertwich argues that

he is entitled to prospective injunctive relief preventing

enforcement of the banishment order. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we hold that tribal

sovereign immunity deprived the district court of subject

matter jurisdiction over Oertwich’s claims alleged

exclusively against the Tribe. We also affirm the district

court’s order dismissing claims against the tribal judicial

officers on immunity grounds. However, we reverse and

remand for the district court to fully consider (1) Oertwich’s

§ 1983 claims as to individual defendants in their individual

capacities; (2) whether Oertwich is entitled to prospective

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 7

injunctive relief against individual defendants; and

(3) Oertwich’s individual tort claims against the individual

defendants.

I. BACKGROUND

In his complaint, Oertwich alleged that he is a non-Native

American, non-Native Alaskan who resided in Togiak,

Alaska, for over thirty years, and operated the Airport Inn.

According to his complaint, “[t]he Traditional Village of

Togiak . . . is one of the 229 federally-recognized tribes in

Alaska,” and the State of Alaska participated in a Village

Public Safety Officer (VPSO) Program, that “provide[d]

limited public safety services to rural Alaska communities.”1

Oertwich alleged that the Traditional Village of Togiak “is an

Alaska Native Tribe but is not a geographic subdivision of

Alaska,” and its “members primarily live in and around the

City of Togiak, which is not Indian Country, as defined in

18 U.S.C. § 1151.”2 Oertwich alleged that “none of the events

1

Oertwich’s complaint named the State of Alaska as a defendant.

The State moved to dismiss, and the district court granted that motion in

a separate order that is not at issue in this appeal.

2

Pursuant to 18 U.S.C. § 1151,

the term “Indian country,” as used in this chapter,

means (a) all land within the limits of any Indian

reservation under the jurisdiction of the United States

Government, notwithstanding the issuance of any

patent, and, including rights-of-way running through

the reservation, (b) all dependent Indian communities

within the borders of the United States whether within

the original or subsequently acquired territory thereof,

and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have

8 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

relevant to this case occurred within Indian Country.”

Oertwich alleged that, in January, 2017, VPSO Roger

Wassillie informed Tribal Officer Leroy Nanalook that “a

suspicious tote addressed to Oertwich . . . had arrived in

Togiak via Everts Air Cargo.” Officer Nanalook “opened the

tote, which allegedly contained bottles of alcohol,” and

“seized the tote and [its] contents.”

Oertwich further alleged that, on March 27, 2017, the

Togiak Tribal Court issued an order banishing him from the

Native Village of Togiak Tribe due to his “possession of

prohibited controlled substances.” Oertwich alleged that he

was subsequently confronted by Officer Nanalook and Willie

Echuck, Jr., who “escorted Oertwich to his home, where he

had only a few minutes to gather some personal property,”

and placed him “onto a plane to Dillingham.”

Oertwich returned to Togiak the following day. Officer

Nanalook and VPSO Wassillie arrested Oertwich, “placed

him in the back of a Togiak Tribal Police vehicle,” “drove

Oertwich to the City of Togiak jail,” and “placed him in a

locked jail cell.” Oertwich alleged that VPSO Wassillie

seized his personal property, and “Oertwich was held by force

in the City of Togiak jail cell” until approximately April 3,

2017. According to Oertwich, “Willie Echuck Jr., Craig

Logusak, and other [tribal] members acted as his jailors,

restricting his access to food, his insulin, basic hygiene and

communication.” Oertwich further alleged that Officer

Nanalook and individual defendants Jimmy Coopchiak,

Herbert Lockuk Jr., Bobby Coopchiak, and Paul Markoff

not been extinguished, including rights-of-way running

through the same.

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 9

“tackled Oertwich, pinned him down on the floor of the jail

cell, cuffed his hands behind his back, and bound his legs

with duct tape,” “placed him in a Tribal Police vehicle, and

drove him to the Togiak airport.” Oertwich alleged that “at

the Togiak airport, [Officer] Nanalook, Peter Lockuk Sr. and

Paul Markoff carried Oertwich from the police car and put

him onto a Grant Aviation airplane to Dillingham.” Oertwich

alleged that he has resided in Oregon after his banishment

because he “believes he would be in danger if he attempted

to reside in Togiak again.”

Oertwich’s complaint asserted the following causes of

action against the Tribe, and its members and officials:

Count I for ultra vires acts premised on the Tribe’s lack of

authority to arrest, detain, and banish him; Count II for

violations of the Indian Civil Rights Act (ICRA) based on

illegal search and seizure, arrest, imprisonment and

banishment; Count III for violations of the Civil Rights Act

due to the defendants’ unconstitutional search and seizure,

arrest, imprisonment, and banishment; Count IV for false

imprisonment because the defendants allegedly lacked any

“lawful basis to arrest Oertwich or confine him in the City of

Togiak jail;” Count V for battery based on Oertwich’s

injuries from being tackled in the jail cell, bound, and forced

onto an airplane; and Count VI for intentional infliction of

emotional distress stemming from the unlawful arrest,

imprisonment, and banishment.

The Tribe and the individual defendants filed a motion to

dismiss Oertwich’s claims based on: (1) tribal sovereign

immunity from suit, (2) official immunity; (3) failure to

exhaust tribal remedies; (4) Federal Tort Claims Act (FTCA)

bar; (5) failure to sufficiently allege state action to support his

§ 1983 claim; and (6) lack of a private right under the ICRA.

10 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

The district court granted the Tribe’s motion to dismiss.

See Oertwich v. Traditional Vill. of Togiak, 413 F. Supp. 3d

963, 972 (D. Alaska 2019). Relying on Arizona v. Tohono

O’odham Nation, 818 F.3d 549 (9th Cir. 2016), the district

court held that dismissal of Oertwich’s tort claims against the

Tribe and its officers was warranted because tribal sovereign

immunity generally bars tort claims against Indian tribes. See

413 F. Supp. 3d at 968. The district court “conclude[d] that

all of [Oertwich’s] claims against the Tribe and the individual

defendants acting in their official capacities as officers and

employees of the Tribe [were] barred by the doctrine of tribal

sovereign immunity.” Id. at 970.

The district court dismissed Count I of Oertwich’s

complaint to the extent the allegations of ultra vires acts were

premised on the Tribe’s banishment order, including actions

taken by individuals in their official capacities to enforce that

order. See id. at 970–71. The district court further reasoned

that Oertwich’s allegations regarding seizure of his personal

property did not state a plausible claim “because the property

seized was contraband not permitted in the dry village.” Id.

at 971. To the extent Count I related to actions taken by

individual defendants in their individual capacities, the

district court concluded that conduct was “subsumed in other

Counts of the Complaint.” Id. at 970.

The district court dismissed Count II alleging that VPSO

Wassillie and Officer Nanalook violated the ICRA because

that statute does not provide a private right of action. See id.3

3

See Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d

1269, 1271 n.3 (9th Cir. 1991) (explaining that “[t]he Constitution’s

limitations on federal and state action does not restrain Indian tribes. The

Indian Civil Rights Act does, but Congress has provided no private right

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 11

The district court further concluded that Oertwich was

required to pursue this claim in tribal court. See id.

The district court dismissed Count III alleging that the

tribal officers conducted an illegal search and seizure of

Oertwich and his property, because Oertwich’s complaint was

“about actions taken under color of tribal law,” and he failed

to allege that “any act by the Tribe or tribal defendants was

taken under color of state law” as required for a claim under

§ 1983. Id.

Although the district court concluded that Oertwich

plausibly alleged in Count IV “a viable individual capacity

claim” under state tort law that he was falsely imprisoned

without tribal authorization, the district court held that

Oertwich was required to pursue this claim in tribal court.

See id.

The district court opined that the allegations in Count V

“regarding the conduct of defendants Leroy Nanalook, Jimmy

Coopchiak, Bobby Coopchiak, Herbert Lockuk, and Paul

Markoff [was] not conduct that necessarily was required by

the order to banish [Oertwich],” and that it was “plausible

that banishment could have been achieved without resorting

to the violent conduct alleged.” Id. However, the district

court held that Oertwich’s battery claim could only be raised

in tribal court. See id. at 972. It appears that the district court

reasoned that these defendants’ actions to enforce the

banishment order were necessarily official capacity claims

because they were taken in the course and scope of the

defendants’ duties on behalf of the Tribe. See id. at 971–72.

of action to enforce the Act, other than habeas corpus.”) (citations

omitted). Oertwich did not pursue habeas remedies.

12 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

Although the district court posited that “the allegations

. . . regarding restrictions on [Oertwich’s] access to food,

medicine, hygiene, and communications state[d] a plausible

individual capacity claim of intentional infliction of

emotional distress,” the district court also dismissed Count VI

for Oertwich to pursue the claim in tribal court. Id.

The district court held that dismissal of Oertwich’s claims

against the tribal judges who issued the banishment order was

warranted because the tribal judges were entitled to immunity

for their judicial acts. See id.

The district court dismissed Oertwich’s claims without

prejudice so that Oertwich could pursue them in tribal court,

but subsequently entered final judgment on October 15, 2019,

in favor of “the Traditional Village of Togiak, Jimmy

Coopchiak, Leroy Nanalook, Anecia Kritz, Esther Thompson,

John Nick, Willie Wassillie, Herbert Lockuk Jr., William

Echuck, Craig Logusak, Paul Markoff, Peter Lockuk Sr., and

Bobby Coopchiak.” Oertwich filed a timely notice of appeal,

and we entered an order limiting the appeal to “the October

15, 2019 judgment only.”4

II. STANDARDS OF REVIEW

We review de novo the district court’s dismissal of

Oertwich’s claims, “considering not just the complaint, but

also the evidence submitted by the parties in connection with

4

In the same order, we determined that the City of Togiak and

Teodoro Pauk were not subject to this appeal because Oertwich did not

properly file a notice of appeal for the separate judgments entered for

these defendants. We also granted a motion to dismiss Roger Wassillie

from any appeal.

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 13

the motion to dismiss under Federal Rule of Civil Procedure

12(b)(1).” Abcarian v. Levine, 972 F.3d 1019, 1029 n.6 (9th

Cir. 2020) (citation omitted). We also review de novo the

district court’s dismissal of Oertwich’s complaint for failure

to state a claim under Federal Rule of Civil Procedure

12(b)(6). See Lemmon v. Snap, Inc., 995 F.3d 1085, 1090

(9th Cir. 2021). “Issues of tribal sovereign immunity are

reviewed de novo.” Jamul Action Comm. v. Simermeyer,

974 F.3d 984, 991 (9th Cir. 2020) (citation omitted).

III. DISCUSSION

A. The Tribe’s Liability for Tort Claims and Tribal

Sovereign Immunity

Oertwich contends that the district court erred in

dismissing his claims against the Tribe and its officers

because the United States Supreme Court has not extended

tribal sovereign immunity to tortious conduct occurring on

non-tribal lands. In support of his contention, Oertwich

argues that Alaskan tribes are permitted to exercise “less”

sovereign authority than non-Alaskan tribes.

The Department of the Interior recognizes the Traditional

Village of Togiak as a tribe. See 85 Fed. Reg. 5462-01 (Jan.

20, 2020), 2020 WL 473053. “As a matter of federal law,

federal recognition of a tribe affords important rights and

protections to Indian tribes, including limited sovereign

immunity. . . .” Jamul Action Comm., 974 F.3d at 992

(citation and internal quotation marks omitted). Tribal

sovereign immunity protects tribes from suit absent

congressional authorization or waiver. See, e.g., Michigan v.

Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014) (“[W]e

have time and time again treated the doctrine of tribal

14 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

sovereign immunity as settled law and dismissed any suit

against a tribe absent congressional authorization (or a

waiver)”) (citation, alteration, and internal quotation marks

omitted); Tohono O’odham Nation, 818 F.3d at 563 n.8 (“We

have held that tribal sovereign immunity bars tort claims

against an Indian tribe, and that remains good law.”) (citation

omitted); Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 725

(9th Cir. 2008) (“Tribal sovereign immunity protects Indian

tribes from suit absent express authorization by Congress or

clear waiver by the tribe. . . .”) (citation omitted). This

immunity extends to Alaskan tribes even though they are

organized as political entities rather than geographical areas

or reservations. See, e.g., M.J. ex rel. Beebe v. United States,

721 F.3d 1079, 1081, 1084 (9th Cir. 2013) (recognizing that

the Native Village of Kwinhagak, an Alaska Native tribe

sharing “approximately the same geographic space” as the

City of Quinhagak, enjoyed “sovereign immunity as an

Indian tribe”); cf. Douglas Indian Ass’n v. Cent. Council of

Tlingit & Haida Indian Tribes of Alaska, 403 P.3d 1172,

1176 (Alaska 2017) (applying tribal sovereign immunity in “a

suit against an Alaska Native village when the village

appear[s] on the U.S. Department of the Interior’s list of

federally recognized tribes and [the village] raise[s] tribal

sovereign immunity as a defense”) (footnote reference

omitted).

The United States Supreme Court has repeatedly declined

to abrogate tribal sovereign immunity through litigation,

instead “defer[ring] to the role of Congress” to “alter its

limits through explicit legislation.” Kiowa Tribe of Oklahoma

v. Mfg. Techs., Inc., 523 U.S. 751, 758–59 (1998) (declining

to confine tribal sovereign immunity “to reservations or to

noncommercial activities” absent express congressional

action).

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 15

In Bay Mills, the Court addressed the State of Michigan’s

action against a tribe for opening a casino on non-tribal lands

in violation of a gaming compact. See 572 U.S. at 785–86.

The Supreme Court emphasized that “it is fundamentally

Congress’s job, not ours, to determine whether or how to

limit tribal immunity. The special brand of sovereignty the

tribes retain—both its nature and its extent—rests in the

hands of Congress,” and “[w]hatever our view of the merits

. . . we defer to the role Congress may wish to exercise in this

important judgment.” Id. at 800 (citations and internal

quotation marks omitted). Accordingly, a court must find

that Congress has spoken “unequivocally” to rescind tribal

sovereign immunity in a particular scenario, id. at 790, and a

tribe only waives its immunity if it does so expressly. See

Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d

416, 419 (9th Cir. 1989), as amended. Critically, Oertwich

has not alleged abrogation by Congress or express waiver by

the Tribe.

Instead, Oertwich makes much of the fact that the alleged

conduct was tortious and occurred on non-tribal lands. First,

Oertwich overlooks his own concession that the Tribe is

federally recognized and not a geographical subdivision of

Alaska. Second, even if the tortious conduct occurred on

non-tribal lands, Oertwich cannot overcome our broad

holding in Tohono O’odham Nation. There, we held that the

district court properly dismissed the plaintiffs’ tort claims

against a federally recognized tribe in Arizona for fraud in the

inducement, material misrepresentation, and promissory

estoppel on tribal sovereign immunity grounds. See 818 F.3d

at 558, 562–63. In rejecting the plaintiffs’ contentions that

tribal sovereign immunity did not apply to tort claims, we

explained that:

16 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

We have held that tribal sovereign immunity

bars tort claims against an Indian tribe, and

that remains good law. Furthermore, as the

Supreme Court also noted in Bay Mills, it is

fundamentally Congress’s job, not the federal

courts, to determine whether or how to limit

tribal immunity. The special brand of

sovereignty the tribes retain—both its nature

and its extent—rests in the hands of Congress.

Id. at 563 n.8 (citations and internal quotation marks

omitted); see also Jamul Action Comm., 974 F.3d at 991

(articulating that “[t]ribal sovereign immunity extends to both

the governmental and commercial activities of a tribe,

whether undertaken on or off its reservation”) (citations

omitted). Oertwich fails to distinguish his case from this

controlling precedent.5

Consistent with these authorities, the district court

properly held that tribal sovereign immunity deprived it of

subject matter jurisdiction over Oertwich’s claims alleged

exclusively against the Tribe. See Tohono O’odham Nation,

818 F.3d at 563 n.8.

5

In support of his assertion that the Tribe is not entitled to immunity

from tort claims, Oertwich relies heavily on a decision from the Alabama

Supreme Court, Wilkes v. PCI Gaming Auth., 287 So. 3d 330 (Ala. 2017).

In that case, the Alabama Supreme Court held that “the doctrine of tribal

sovereign immunity affords no protection to tribes with regard to tort

claims asserted against them by non-tribe members.” Id. at 335. But the

Alabama Supreme Court cited to our decision in Tohono O’odham Nation,

and acknowledged that its “holding [wa]s contrary to the holdings of

several of the United States Courts of Appeals that have considered this

issue,” and that “tribal immunity is a matter of federal law.” Id. (citations

omitted).

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 17

B. Claims Against the Tribal Judges and Judicial

Immunity

Oertwich contends that the district court erred in holding

that the tribal judges are entitled to judicial immunity

because, he contends, the tribal judges exceeded their

jurisdiction by ordering Oertwich’s banishment.

The Togiak Tribal Court ordered Oertwich permanently

banished from the Native Village of Togiak Tribe pursuant to

Togiak Tribal Code Chapter 6-2-G.6 The tribal court referred

any criminal charges relating to Oertwich’s “possession of

controlled substances in [a] dry community and [his]

possession of [a] stolen firearm” to Alaska state authorities.

In a second order, the tribal court determined that Oertwich

violated the banishment order and was “guilty of trespassing”

when he returned “to the community via Twin Hills, Alaska

and ATV.” The tribal court ordered Oertwich “to vacate the

community of Togiak,” and “be escorted to the airport for

immediate transportation out of Togiak.”

“Tribal officials, like federal and state officials, can

invoke personal immunity defenses. . . .” Acres Bonusing,

6

Togiak Tribal Code Chapter 6-2-G provides:

Banishment: An Order of permanent or temporary

banishment shall only be used to protect the Tribe

and/or Tribal members from harm. Before banishments

may be ordered, the person shall be given a Citation

and a Notice to Appear in Tribal Court. A hearing shall

be held that provides the person an opportunity to speak

either in person or telephonically. The Togiak Tribal

Court shall notify the surrounding villages when

banishment orders are issued by the Court.

18 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

Inc v. Marston, 17 F.4th 901, 915 (9th Cir. 2021). “A long

line of Supreme Court precedents acknowledges that,

generally, a judge is immune from a suit for money

damages.” Id. (citation and alteration omitted). “That

immunity extends to tribal court judges: a tribal court judge

is entitled to the same absolute judicial immunity that shields

state and federal court judges.” Id. (citations, alteration, and

internal quotation marks omitted). “Courts have articulated

only two circumstances in which judicial immunity does not

apply. First, a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the judge’s

judicial capacity. Second, a judge is not immune for actions,

though judicial in nature, taken in the complete absence of all

jurisdiction.” Id. (citation and internal quotation marks

omitted). “Whether an act by a judge is a judicial one relates

to the nature of the act itself, i.e., whether it is a function

normally performed by a judge, and to the expectations of the

parties, i.e., whether they dealt with the judge in his judicial

capacity.” Id. at 915–16 (citation, alteration, and internal

quotation marks omitted). “Because judicial immunity is an

immunity from suit and not just from damages, it cannot be

overcome by allegations of bad faith or malice.” Id. (citation

and internal quotation marks omitted).

We conclude that the tribal judges were entitled to

judicial immunity in ordering the banishment of Oertwich

from the Tribe’s lands because Oertwich failed to sufficiently

allege that the tribal judges were not acting in their “judicial

capacity,” or that the tribal court’s orders were “taken in the

complete absence of all jurisdiction.” Id. at 915.

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 19

C. Oertwich’s § 1983 Claim

Oertwich asserts that the district court erred by dismissing

his § 1983 claim based on qualified immunity because he

sufficiently alleged that the individual tribal officers violated

his clearly established constitutional rights. Oertwich’s

§ 1983 claim sought relief for “violations of his civil rights

under the United States Constitution.” He also asks for leave

to amend his complaint to “demonstrate that the tribal

officials operated under color of state law for purposes of

Section 1983 liability.” However, Oertwich overlooks that

before addressing qualified immunity, the threshold question

is whether the district court had subject matter jurisdiction to

address his § 1983 claim. As we explain below, if his § 1983

claim was asserted against individual defendants in their

official capacities, they were entitled to sovereign immunity

and the court lacked jurisdiction to consider the claim.

The district court dismissed Oertwich’s § 1983 claim

against individual defendants in both their individual and

official capacities. When analyzing Oertwich’s § 1983 claim

as to defendants in their individual capacities, the district

court first observed that Oertwich did “not allege that any act

by the Tribe or tribal defendants was taken under color of

state law.” Oertwich, 413 F. Supp. 3d at 971. But the court

later observed that some of the conduct alleged was “not

conduct that necessarily was required by the order to banish

[Oertwich]” and “[Oertwich’s] banishment could have been

achieved without resorting to the violent conduct alleged.”

Id.7

7

It is unclear from the district court’s decision whether it concluded

that Oertwich sufficiently alleged the denial of a federally conferred right.

See Pistor v. Garcia, 791 F.3d 1104, 1114 (9th Cir. 2015) (explaining that

20 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

Oertwich’s complaint is not a model of clarity and his

allegations are difficult to decipher. But the complaint

includes vague allegations that Officer Nanalook and VPSO

Wassillie arrested Oertwich when he returned to Togiak from

Dillingham following his banishment. And Oertwich alleged

that he was later “held by force in the City of Togiak jail”

where “his access to food, his insulin, basic hygiene and

communication” was restricted. Our understanding is that

VPSO Wassillie is no longer a defendant, but Officer

Nanalook and the other defendants who allegedly held

Oertwich in the City of Togiak jail are parties on appeal. We

also conclude that Oertwich’s complaint does sufficiently

allege the denial of a federally guaranteed right to be free

from unreasonable seizure, or possibly substantive due

process for the deprivation of Oertwich’s non-contraband

property, when generously construed. Notably, the Tribe

ordered Oertwich banished; it did not order him to be jailed

or deprived of “food, his insulin, basic hygiene, and

communication.” That said, we agree with the district court

that if Oertwich intended to allege a § 1983 claim against the

Tribe or individuals acting in their official capacities, that

claim is barred by tribal sovereign immunity.

The district court erred by dismissing Oertwich’s entire

§ 1983 claim without first analyzing whether Oertwich

alleged viable claims against the defendants in their

individual capacities pursuant to § 1983. See Jamul Action

Comm., 974 F.3d at 994 (explaining that “[i]n suits for

damages, the general rule is that individual officers are liable

when sued in their individual capacities”) (citation, alteration,

a plaintiff seeking relief under § 1983 must allege “that t[he]conduct

deprived them of rights, privileges, or immunities secured by the

Constitution or laws of the United States”) (citation omitted).

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 21

and internal quotation marks omitted). “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.” Pistor,

791 F.3d at 1114 (citation omitted) (emphasis in the original).

“As the officer personally is the target of the litigation, she

may not claim 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.” Id. (citation

omitted) (emphasis in the original). Accordingly, as to

Oertwich’s § 1983 claims, “[t]he 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.” Id.

It is unclear from Oertwich’s complaint and the current

briefing whether Oertwich fairly stated § 1983 claims against

the individual defendants in their individual capacities

because Oertwich refers to the individual defendants as

“officials,” “tribal member[s],” and “volunteers.” We

therefore remand for the district court to conduct this analysis

in the first instance.

Oertwich also seeks leave to amend his § 1983 claim to

allege that defendants acted pursuant to “state and tribal law

enforcement.” In view of our precedent allowing for liberal

amendment, the district court shall consider whether

Oertwich should be permitted to amend his complaint to

clarify whether he alleges that individual defendants acted

under color of state law. See Brown v. Stored Value Cards,

Inc., 953 F.3d 567, 574–75 (9th Cir. 2020); see also Pistor,

791 F.3d at 1114–15 (explaining that “tribal defendants can

. . . be held liable under § 1983 only if they were acting under

color of state, not tribal, law”) (emphasis in the original).

22 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

“Tribal sovereign immunity extends to tribal officers

when the sovereign entity is the real, substantial party in

interest.” Jamul Action Comm., 974 F.3d at 994 (citation and

internal quotation marks omitted). “In making this

assessment, courts may not simply rely on the

characterization of the parties in the complaint, but rather

must determine in the first instance whether the remedy

sought is truly against the sovereign.” Id. (citations omitted).

“That a suit implicates a tribal officer’s official duties does

not by itself establish that the tribe is the real party in

interest.” Id. (citation omitted). “In suits for damages, the

general rule is that individual officers are liable when sued in

their individual capacities.” Id. (citations, alteration, and

internal quotation marks omitted). “Suits that seek to recover

funds from tribal coffers or establish vicarious liability of a

tribe for damages, on the other hand, are barred by tribal

sovereign immunity even when nominally styled as against

individual officers.” Id. (citation omitted).

In Lewis v. Clarke, 137 S. Ct. 1285 (2017), addressing a

negligence claim against a tribal employee, the Supreme

Court emphasized that courts should consider individual

capacity claims independent of tribal sovereign immunity.

See id. at 1293. 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.” Id. at 1288.

“That an employee was acting within the scope of his

employment at the time the tort was committed is not, on its

own, sufficient to bar a suit against that employee on the basis

of tribal sovereign immunity.” Id. Accordingly, a court

“must determine in the first instance whether the remedy

sought is truly against the sovereign. . . .” Id. at 1290

(citation omitted). “An officer in an individual-capacity

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 23

action . . . may be able to assert personal immunity

defenses. . . . But sovereign immunity does not erect a barrier

against suits to impose individual and personal liability.” Id.

at 1291 (citations and internal quotation marks omitted)

(emphasis in the original). “There is no reason to depart from

these general rules in the context of tribal sovereign

immunity. . . .” Id.

Following Lewis, we recently emphasized that “[t]he

critical question is whether the remedy sought is truly against

the sovereign.” Acres Bonusing, 17 F.4th at 908 (citations and

internal quotation marks omitted) (emphasis in the original).

“Whether the remedy sought is one against the sovereign or

the individual officer turns on the distinction between

individual-and official-capacity suits.” Id. (citation,

alteration, and internal quotation marks omitted). “An

official-capacity claim, although nominally against the

official, in fact is against the official’s office and thus the

sovereign itself. . . .” Id. (citation and internal quotation

marks omitted). “Suits against officials in their personal

capacities . . . are different. In those cases, the plaintiff seeks

to impose individual liability upon a government officer for

actions taken under color of law. . . .” Id. at 909 (citation,

alterations, and internal quotation marks omitted) (emphasis

in the original). “[T]ribal 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. . . .” Id. at 910 (citation

omitted) (emphasis in the original).

Critically, “the tribal sovereign immunity inquiry thus

does not revolve around whether issues pertaining to tribal

governance would be touched on in the litigation. The

question is whether any remedy will operate against the

24 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

sovereign. Or as the Supreme Court put it, the critical inquiry

is who may be legally bound by the court’s adverse

judgment. . . .” Id. at 911 (citations, alterations, and internal

quotation marks omitted) (emphases in the original).

“[W]here a plaintiff s[eeks] money damages not from the

tribal treasury but from the tribal defendants personally, given

the limited relief sought, the tribal defendants have not shown

that the judgment would interfere with tribal administration.”

Id. at 912 (citation, alterations, footnote reference, and

internal quotation marks omitted). As a result, tribal

sovereign immunity does not extend to the individual

defendants “merely because they were sued for conduct

within the scope of their employment for the tribe.” Id.

at 914 (citation omitted); see also Pistor, 791 F.3d at 1112

(articulating that “[a]lthough tribal sovereign immunity

extends to tribal officials when acting in their official capacity

and within the scope of their authority, 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”) (citations,

alteration, and internal quotation marks omitted) (emphases

in the original). We remand to the district court to conduct

this requisite analysis in the first instance.

D. Oertwich’s Claims For Prospective Injunctive

Relief

Oertwich contends that his prayer for prospective

injunctive relief in Count I of his complaint was not barred by

tribal sovereign immunity because the tribal officers were

sued in their official capacities in accordance with Ex parte

Young, 209 U.S. 123 (1908).

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 25

“Suits seeking prospective injunctive relief ordinarily

may proceed against tribal officers sued in their official

capacities under the doctrine of Ex parte Young.” Jamul

Action Comm., 974 F.3d at 994 (citations omitted). “That

doctrine permits actions for prospective non-monetary relief

against state or tribal officials in their official capacity to

enjoin them from violating federal law, without the presence

of the immune State or tribe.” Id. (citation omitted).

“Declaratory relief may issue against tribal officers in the

same circumstances.” Id. (citation omitted). “For Ex parte

Young to apply, a plaintiff must point to threatened or

ongoing unlawful conduct by a particular governmental

officer. . . .” Id. (citation omitted).

The district court did not extensively consider whether the

tribal officials acting in their official capacities were subject

to prospective injunctive relief as alleged in Count I of

Oertwich’s complaint, instead holding that “all of

[Oertwich’s] claims against the Tribe and the individual

defendants acting in their official capacities as officers and

employees of the Tribe [were] barred by the doctrine of tribal

sovereign immunity.” Oertwich, 413 F. Supp. 3d at 970. But

Count I of Oertwich’s complaint was premised on the

“[u]ltra vires acts by the [Traditional Village of Togiak]” and

its officials and members, and alleged that “[t]he arrest,

detention and banishment of Oertwich were beyond any legal

authority given to the [Tribe] by Congress.”

Due to the district court’s dismissal for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1), the district court did not independently determine if

Oertwich sufficiently alleged prospective injunctive relief

available under Ex parte Young. As a result, we remand to

the district court to afford Oertwich the opportunity to amend

26 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

his complaint to clarify whether he alleges prospective

injunctive relief for “threatened or ongoing unlawful conduct

by a particular governmental officer.” Jamul Action Comm.,

974 F.3d at 994; see also Solis, 885 F.3d at 629.

E. Oertwich’s Other Individual Capacity Claims

Against The Individual Tribal Defendants

Oertwich argues that the district court erred by holding

that he was required to pursue his individual capacity claims

premised on violations of state law in tribal court.

In his complaint, Oertwich alleged that the tribal officers

and members were liable for false imprisonment, battery, and

intentional infliction of emotional distress. Specifically,

Oertwich alleged that, after he returned to the City of Togiak

subsequent to the banishment proceedings: (1) he was

imprisoned “by force” for six days at the City of Togiak jail;

(2) “VPSO Wassillie seized the personal property Oertwich

had returned to Togiak with,” and “[n]one of that property

ha[d] been returned”; (3) during his incarceration, Officer

Nanalook “entered his home without permission and seized

items of personal property”; (4) “Willie Echuck Jr., Craig

Logusak and other [tribal] members acted as his jailors,

restricting his access to food, his insulin, basic hygiene and

communication”; (5) Officer Nanalook, Bobby Coopchiak,

Jimmy Coopchiak, Paul Markoff, and Herbert Lockuk Jr.

“tackled Oertwich, pinned him down on the floor of the jail

cell, cuffed his hands behind his back, and bound his legs

with duct tape”; and (6) Oertwich was transported to the

airport, and “[Officer] Nanalook, Peter Lockuk Sr. and Paul

Markoff carried Oertwich from the police car and put him

onto a Grant Aviation airplane to Dillingham.”

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 27

The district court determined that Oertwich alleged viable

individual capacity claims:

Viewed in the light favorable to [Oertwich]

the actions taken may have been taken in the

actors’ individual[ ] capacities, for it appears

that there was no tribal authorization for

[Oertwich’s] imprisonment. Count IV states a

viable individual capacity claim. . . . The

allegations . . . regarding the conduct of

defendants Leroy Nanalook, Jimmy

Coopchiak, Bobby Coopchiak, Herbert

Lockuk, and Paul Markoff [was] not conduct

that necessarily was required by the order to

banish [Oertwich]. It is plausible that

banishment could have been achieved without

resorting to the violent conduct alleged. The

battery claim in Count V may be pursued as

an individual capacity claim . . . [And] the

allegations . . . regarding restrictions on

[Oertwich’s] access to food, medicine,

hygiene, and communications state a plausible

individual capacity claim of intentional

infliction of emotional distress.

Oertwich, 413 F. Supp. 3d at 971–72. The district court

nonetheless concluded that Oertwich’s only remedy for these

claims was in tribal court. See id. This ruling was erroneous.

As we have explained, “[t]he critical question is ‘whether

the remedy sought is truly against the sovereign.’” Acres

Bonusing, 17 F.4th at 908 (citations and internal quotation

marks omitted) (emphasis in the original). Although the

district court concluded that Oertwich alleged viable

28 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

individual-capacity tort claims, it failed to consider “in the

first instance whether the remedy sought [wa]s truly against

the sovereign.” Lewis, 137 S. Ct. at 1290 (emphasizing that

“courts may not simply rely on the characterization of the

parties in the complaint”) (citation omitted); see also Pistor,

791 F.3d at 1112 (articulating that “[a]lthough tribal

sovereign immunity extends to tribal officials when acting in

their official capacity and within the scope of their authority,

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”) (citations, alteration, and internal quotation marks

omitted) (emphases in the original). If the district court

decides on remand that any recovery for Oertwich’s state tort

claims “will run against the individual tribal defendants”

themselves, those defendants cannot “enjoy tribal sovereign

immunity.” Acres Bonusing, 17 F.4th at 910 (citations

omitted). Accordingly, we remand for the district court to

conduct this threshold analysis in the first instance.

Generously construed, Oertwich’s complaint includes

allegations that the Tribe may have acted in conjunction with

the federal government sufficient to overcome tribal

sovereign immunity under the FTCA. See, e.g., Shirk v.

United States ex rel. Dep’t of Interior, 773 F.3d 999, 1003

(9th Cir. 2014) (explaining that “Congress extended the

FTCA’s waiver of sovereign immunity to claims resulting

from the performance of functions under a contract, grant

agreement, or cooperative agreement authorized by the

[Indian Self-Determination and Education Assistance Act]”)

(citation, alteration, and internal quotation marks omitted).

Defendants concede that Oertwich could have pursued his

tort claims against the United States pursuant to the FTCA,

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 29

but he failed to do so. We decline to reach defendants’ FTCA

argument because the district court did not reach it.

IV. CONCLUSION

The district court properly held that dismissal of

Oertwich’s claims against the Tribe was warranted due to

tribal sovereign immunity. The district court also correctly

dismissed Oertwich’s claims against the tribal judges based

on judicial immunity.

However, the district court erred in other respects. We

remand for the district court to consider: (1) Oertwich’s

§ 1983 claims against individual defendants in their

individual capacities; (2) whether Oertwich is entitled to

prospective injunctive relief against individual defendants

under Ex parte Young; and (3) Oertwich’s tort claims against

the individual defendants as opposed to the Tribe. We also

direct the district court to consider whether Oertwich should

be granted leave to amend to cure any pleading deficiencies

related to his claims.8,9

AFFIRMED in part, and REVERSED and

REMANDED in part for further proceedings consistent

with this opinion. Each party shall bear its costs on

appeal.

8

We do not address the issues of tribal exhaustion or the timeliness

of any amendments to Oertwich’s complaint, as these issues were not fully

developed on appeal.

9

Because the case is being remanded for further proceedings,

Appellant’s Motion for Full Remand to Allow District Court to Consider

Non-Record Material Submitted in Appellees’ Supplemental Excerpt of

Record, filed October 29, 2020, is denied as moot.

30 OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK

R. NELSON, Circuit Judge, dissenting in part:

The majority errs in holding that Oertwich’s complaint

properly alleges a § 1983 claim against the individual

defendants acting in their individual capacities under the

color of state law. In my view, the district court did not err in

dismissing Oertwich’s complaint for failure to allege the

individual defendants acted under the color of state law. I

would therefore affirm the district court’s dismissal of

Count III.

“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.” Pistor v.

Garcia, 791 F.3d 1104, 1114–15 (9th Cir. 2015) (cleaned up).

A defendant has acted under color of state law where he has

“exercised power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the

authority of state law.” West v. Atkins, 487 U.S. 42, 49

(1988) (internal quotations omitted). It is “well-established

. . . that a § 1983 claim cannot be maintained against

defendants who act under color of tribal rather than state

law.” Pistor, 791 F.3d at 1115.

Count III of the complaint alleges a “violation of Civil

Rights Act by [the Tribe] and its officials and members”

because of “[t]he search and seizure of Oertwich’s property

and his subjection to [the Tribe’s] tribal court jurisdiction,

arrest, imprisonment and banishment.” While the complaint

can be generously read to allege that the individual

defendants acted outside their tribal authority, such

OERTWICH V. TRADITIONAL VILLAGE OF TOGIAK 31

allegations do not properly allege they acted under the color

of state law. Indeed, the complaint makes no reference to any

individual defendant acting under the color of state law. And

the district court dismissed in separate orders, which were not

appealed, all of the state defendants from the case.

Oertwich and the majority seem to recognize Oertwich’s

failure to properly allege actions under state law. Indeed,

Oertwich requests leave to amend his complaint as to Count

III. Why would Oertwich need to amend his complaint if he

properly alleged that the individual defendants acted under

color of state law?

The answer is far more simple than the majority suggests.

Oertwich needs leave to amend because he failed to allege

any action taken under state law. The district court, after a

careful review of the complaint, so held. Nothing suggests

the district court erred in this regard. Oertwich points to no

allegation in his complaint that any individual defendant

acted under color of state law. And the majority identifies no

such allegation either.

For these reasons, I would affirm the district court’s

dismissal of Count III.