# Ronald Oertwich v. Traditional Village of Togiak

> Court of Appeals for the Ninth Circuit · March 30, 2022 · 29 F.4th 1108

URL: https://www.frixlaw.com/law-library/cases/6328794

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 30, 2022
- **Citations:** 29 F.4th 1108
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6328794. Public record. Not legal advice.