Ninth Circuit Affirms Qualified Immunity for BIA Officers Who Arrested Non-Indian Pursuant to Tribal Court Bench Warrant

Here is the unpublished memorandum in Roberts v. Elliott (In re Roberts Litigation).

An excerpt:

The Supreme Court has not addressed the interaction between Oliphant’s rejection of inherent criminal jurisdiction over non-Indians and a non-Indian’s ability to waive the question of personal jurisdiction before the tribal court in criminal matters. The extent to which a non-Indian may consent to tribal jurisdiction is not settled law. Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1136–40 (9th Cir. 2006) (en banc) (discussing non-tribal member consent to jurisdiction in civil suits).


Appellant Brief

Appellee Brief

Reply Brief


FTCA/Civil Rights Suit against BIA Officers Enforcing N. Cheyenne Tribal Bench Warrant against Non-Indian Dismissed

Here are the materials in the case captioned In re Roberts Litigation (D. Mont.):

33 Federal Motion for Summary J

44 Opposition

45 Federal Reply

54 DCT Order Granting Federal Motion for Summary J

An excerpt:

In order for Roberts’ claim under Bivens to survive, the law must have been sufficiently clear to place a reasonable officer on notice that the Tribal Court acted in complete absence of jurisdiction in issuing the warrants, and that in carrying out the Tribal Court mandate to serve the warrants, reasonable officers would have known they were [8]  engaging in an unlawful act, Existing law permits no such conclusions, notwithstanding Roberts’ contention that the law was clearly established that the Tribal Court lacked criminal jurisdiction over non-Indians under the authority of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978) and that the officers had personal knowledge that Roberts was a non-Indian.

Roberts’ argument fails to take into account the Northern Cheyenne Tribal Court’s claim of capacity to exercise jurisdiction over non-Indians by consent. It is not necessary, however, for this Court to decide the question of whether a tribal court may exercise such jurisdiction. Rather, the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains.

The officers were presented with facially valid warrants, they were charged with the responsibility to execute the warrants, and they had a reasonable basis to believe in the validity of the warrants and in the lawfulness of their actions in executing the warrants. They are entitled to qualified immunity for the personal capacity claims brought against them under the Bivens doctrine.