Here is the opinion in Pistor v. Garcia:

12-17095

From the court’s syllabus:

The panel affirmed the district court’s denial of a motion to dismiss an action brought against tribal officers who were sued in their individual capacities for an assertedly unconstitutional detention and seizure of property that took place at a casino owned and operated by a tribe on tribal land. The district court held that even if the tribal defendants were entitled to tribal immunity, it was inappropriate to dismiss the claims against the defendants for lack of subject matter jurisdiction. The district court went on to hold, however, that if the tribal defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss was construed as a Rule 12(b)(6) motion to dismiss, the court would conclude that plaintiffs had sufficiently stated a 42 U.S.C. § 1983 claim against the tribal defendants in their individual capacities. The district court therefore denied defendants’ motion to dismiss the action.

The panel held that sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided. Accordingly, the panel held that the district court erred in concluding that it would be inappropriate to dismiss the claims against the defendants at the 12(b)(1) stage. The panel nevertheless affirmed the district court’s denial of defendants’ motion to dismiss the action. The panel held that the tribal defendants were not entitled to tribal sovereign immunity because they were sued in their individual rather than their official capacities, as any recovery will run against the individual tribal defendants, rather than the tribe.

The panel held that it did not have jurisdiction to decide whether plaintiffs successfully stated a claim against the defendants under § 1983. The panel held that whether the tribal defendants were acting under state or tribal law did not matter for purposes of the tribal sovereign immunity analysis, although it will matter for purposes of deciding whether plaintiffs can succeed in their § 1983 claim.

Briefs and lower court materials here.