Section 1983

Ninth Circuit Reverses Dismissal of Civil Rights Claims against Tribal Officers

Matthew L.M. Fletcher

Here is the opinion in Bressi v. Ford, authored by Judge Canby, which is a sort of companion case to Murgia v. Reed. The court did affirm the dismissal of a Bivens-type action against the officers. Here are the lower court materials in Bressi.

An excerpt detailing what tribal officers may do during a traffic stop of non-Indians:

We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.

And an excerpt recognizing the implications of the decision:

We recognize that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to constitutional standards in establishing roadblocks. That result is consistent with our prior decision inEvans v. McKay, 869 F.2d 1341, 1348(9th Cir.1989), which held that officers acting pursuant to both tribal and city authority in making arrests were subject to a § 1983 claim. This result also appears to us to be an inevitable consequence of the accommodation of tribal authority over rights-of-way within Indian country and the rights of non-Indians to travel those rights-of-way. If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.

Federal Court Dismisses Civil Rights Claim against Menominee Jail

Matthew L.M. Fletcher

Here is the opinion in Lyons v. Menominee Tribal Jail (E.D. Wis.) — DCT Order Dismissing Lyons Complaint

The petitioner claimed to have been jailed for four months without seeing a judge — Lyons Pro Se Complaint. One hopes that isn’t true.

An excerpt from the order (technically, an order refusing the petitioner to waive filing fees):

Moreover, the complaint does not appear to state a claim upon which relief may be granted. Section 1983, the civil rights statute, imposes liability on individuals who act under color of state law, but it does not apply to those acting under color of tribal law. Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (“A § 1983 action is unavailable ‘for persons alleging deprivation of constitutional rights under color of tribal law.’ ”) (quoting R.J. Williams Co. v. Ft. Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir.1983)). Accordingly, it will be dismissed for that additional reason. “Because plaintiff does not allege that defendant acted under color of state law, the district court was correct to grant summary judgment to defendant on that basis.” Pounds v. Killion, 35 Fed. Appx. 819, 821, 2002 WL 1038774, *1 (10th Cir.2002).

The court also noted that no jurisdiction existed under the Indian Civil Rights Act:

Similarly, the Indian Civil Rights Act (“ICRA”) does not provide a remedy. The only remedy provided in ICRA is that of habeas-style relief (i.e., release from custody)-it does not authorize damages actions after release. United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir.2005) (“We acknowledge that in the civil context, habeas corpus relief generally is the sole federal remedy for a violation of ICRA.”); Stevens v. Skenandore, 2000 WL 1069404, * 1 (7th Cir.2000) (“Stevens cannot sue the individual Oneida defendants under the ICRA because the only remedy authorized by the statute is a habeas corpus proceeding brought against the tribe pursuant to 42 U.S.C. § 1303.”)

Dollar Douglas v. Dry Creek — Enrollment Dispute

Matthew L.M. Fletcher

Here are the materials in this enrollment-related case:

report-and-recommendations-dollar-douglas

dct-order-adopting-report-and-recommendations-dollar-douglas

Civil Rights Complaint against Mississippi Band Choctaw Jail Dismissed

Matthew L.M. Fletcher

The case is Hall v. Mississippi Band of Choctaw Indians, from the Northern District of Mississippi. The magistrate first asserted that the Band is immune from suit, but still offered a report on the merits, finding in favor of the defendants.

Here are the materials:

hall-v-mississippi-band-magistrate-report

hall-v-mississippi-band-dct-judgment

First Circuit Affirms Jury Verdict Against Narragansett Members over Smokeshop Injuries

Matthew L.M. Fletcher

The First Circuit affirmed the jury verdict, and the trial judge’s instructions to it, against the seven members of the Narragansett who were injured by Rhode Island police officers during the notorious smokeshop raid several years ago.

thomas-v-rhode-island-ca1-opinion

Gensaw v. Del Norte School District – Yurok Civil Rights Complaint

Matthew L.M. Fletcher1 Comment

The ACLU brought this claim on behalf of a class of Yurok middle school students objecting the closure of the school. In the words of the district court, “Plaintiffs allege that the Del Norte County Unified School District, its Superintendent, and five members of its Board discriminated against Native American students on the basis of race and/or national origin by deciding to close middle school grades of Margaret Keating Elementary School, located on the Yurok Reservation in Klamath, California.” Slip op. at

The district court granted parts of the motion to dismiss, leaving a Section 1983 and a Title VI claim.

Here are the materials:

gensaw-complaint

Continue reading →

Bressi v. Ford — Civil Rights Complaint Against Tohono O’odham Law Enforcement

Matthew L.M. Fletcher1 Comment

This case, now in the Ninth Circuit, presents an interesting question of whether tribal officers sued under Section 1983 are immune from suit under the tribal sovereign immunity doctrine. The district court held that the officers were immune because they acted under color of tribal law, not state law.

Here are the materials (so far):

Continue reading →