ROGER RENVILLE Office of Executive Legal Counsel (406) 638 ... · iii, cody wilhelm, chaz bends, vernon hill, thomas hill, and diane cabrera, defendants. cv 11-120-rfc-cso memorandum

ROGER RENVILLE

Office of Executive Legal Counsel

P.O. Box 340

Crow Agency, MT 59022

(406) 638-2059

FAX: 406-638-2614

[email protected]

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

NELVETTE SIEMION,

Plaintiff,

vs.

CEDRIC BLACK EAGLE, LARRY

TOBACCO, WILLIAM F. SNELL

III, CODY WILHELM, CHAZ

BENDS, VERNON HILL, THOMAS

HILL, and DIANE CABRERA,

Defendants.

CV 11-120-RFC-CSO

MEMORANDUM IN

SUPPORT OF TRIBAL

DEFENDANTS’

MOTION TO DISMISS

PLAINTIFF’S AMENDED

COMPLAINT

Case 1:11-cv-00120-RFC-CSO Document 42-1 Filed 02/13/12 Page 1 of 14

mailto:[email protected]

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ---------------------------------------------------------- 2

QUESTIONS PRESENTED --------------------------------------------------------------- 2

BACKGROUND ---------------------------------------------------------------------------- 3

THE LEASING DISPUTE -------------------------------------------------------------------- 3

THE DESTRUCTION OF ROAMING BISON ------------------------------------------------ 5

ARGUMENT -------------------------------------------------------------------------------- 6

I. THE ACTION AGAINST CROW TRIBAL DEFENDANTS MUST BE DISMISSED FOR

LACK OF SUBJECT MATTER JURISDICTION. --------------------------------------------- 6

II. THE ACTION MUST BE DISMISSED BECAUSE SIEMION CANNOT OVERCOME THE

BAR OF TRIBAL SOVEREIGN IMMUNITY WITH FORMULAIC RECITATION ------------ 7

A. Crow Tribal Chairman Cedric Black Eagle Is Immune from Suit. -------- 8

B. Tribal Prosecutor Diane Cabrera Is Immune from Suit. -------------------- 9

C. Tribal Fish & Game Defendants Are Immune from Suit. ----------------- 10

III. THE CASE AGAINST TRIBAL DEFENDANTS MUST BE DISMISSED FOR FAILURE

TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED --------------------------- 10

CONCLUSION --------------------------------------------------------------------------- 133


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PRELIMINARY STATEMENT

Plaintiff Nelvette Siemion, filing pro se, names twenty defendants in a

Complaint describing events alleged to have occurred over many years, involving

several agencies of federal, tribal, and county government, countless actors in a

vast alleged conspiracy, and innumerable episodes of iniquity allegedly committed

against Siemion. Her complaint hints at previous litigation and administrative

proceedings involving some of the same alleged events and suggests, by reference

to enforcement actions against her for trespasses on Tribal land, that Siemion

comes to the Court with “unclean hands” as to her claims. Basically, Siemion asks

the Court to review the history of her remarkably tumultuous relationships with

neighbors and business partners and government officials and then to somehow

require others to compensate her for bad luck and hard consequences that she has

experienced as a Montana rancher.

The suit against the Tribal Defendants must be dismissed for lack of

jurisdiction. Even if the lack of jurisdiction could be cured, the suit against the

Tribal Defendants should be dismissed because the Tribe has not waived its

sovereign immunity from suit and because Siemion has failed to state a claim

entitling her to relief.

QUESTIONS PRESENTED

I. Whether the Court has subject matter jurisdiction where the plaintiff has not

pleaded jurisdiction and could not satisfy a jurisdiction inquiry by a

preponderance of the evidence.

II. Whether a plaintiff may overcome the bar to suit posed by the doctrine of

tribal sovereign immunity by merely reciting the formula “beyond the scope

of authority.”


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III. Whether the Court should dismiss for failure to state a claim where the

plaintiff pleads no basis for recovery against an elected tribal official and

where prosecutorial discretion and official duty provide built-in defenses.

BACKGROUND

Counts 10, 11, 13, and 14 assert claims against the Tribal Defendants.

Plaintiff’s Complaint 18-24 (Jan. 30, 2012). Those claims involve two disputes: a

leasing dispute dating back at least to 2006; and, a dispute over the Tribe’s

destruction of three unbranded bison, which Siemion now claims to have owned,

found roaming on the Crow Reservation. Id. As to these claims, Siemion names the

following defendants: Crow Tribal Chairman Cedric Black Eagle; Director of the

Tribal Fish & Game Department Larry Tobacco; Tribal Fish & Game Officers,

employees, or volunteers Vernon Hill, Bill Snell, Cody Wilhelm, Chaz Bends and

Thomas Hill; and, Crow Tribal Prosecutor Diane Cabrera. Id. These eight

defendants are the “Tribal Defendants” represented by the under-signed attorney

and the subject of this Memorandum and the Motion it supports.

The Leasing Dispute

The leasing dispute presented in Siemion’s Complaint arises from Siemion’s

unsuccessful application to the Crow Tribe in April 2006 to lease certain tracts of

Tribal land for the purpose of grazing Siemion’s bison. Pl.’s Compl. 2-9, 11, 13-

14, 22-23 (Jan. 30, 2012). When Siemion was not awarded the leases, she simply

continued to graze her ranch’s bison on tribal land for which she had no leases,

including tracts that she had not even attempted to lease. See Siemion v. Rocky

Mountain Regional Director, Bureau of Indian Affairs, 48 IBIA 249, 251(2009),

motion for reconsideration denied, 49 IBIA 194 (2009). At some point, the BIA

began regulatory enforcement actions against Siemion to stop the continuing

trespass of her bison on tribal land. Id. Eventually, under the federal government’s


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threat to impound her trespassing bison pursuant to federal regulations, Siemion

argued the leasing matter in appeals to the local BIA Superintendent and to the

BIA Regional Director. Id. She appealed their adverse decisions to the Interior

Board of Indian Appeals. Id. In 2008 Siemion appealed the IBIA decision and

other administrative decisions involving her trespasses on tribal land in this Court.

See Siemion v. U.S. Dept. of the Interior, CV-08-74-BLG-RFC (D. Mont., filed

May 30, 2008). On December 28, 2009, this Court dismissed Siemion’s appeal,

without prejudice, for her failure to comply with a court order and failure to

prosecute. Id.

Siemion also took the dispute to the Crow Tribal Court in 2009, suing the

third parties whom she alleged had leased the land she wanted to lease. Civil Case

No. 09-105, Nelvette Siemion v. CH Land & Cattle Company, Grapevine Ranch,

Inc., William He Does It, and Leland Walking Bear (Crow Tribal Court, April 5,

2011). The tribal court dismissed Siemion’s action on several grounds. The court

held that the Crow Tribe was an indispensable party that had not been joined, that

Siemion’s action was barred by the tribal statute of limitations, that Siemion had

failed to state a claim entitling her to recovery, and that her claims as to the leasing

dispute were barred by res judicata, having been finally decided by the Interior

Board of Indian Appeals. Id, Order Dismissing Plaintiff’s Complaint (April 5,

2011).

Based on her allegations related to the leasing dispute, Siemion now asserts

a claim against Chairman Black Eagle for an alleged failure to enforce tribal laws,

for “failure to protect” Siemion and for “condoning the illegal leasing practices of

non-Indians” on the Crow Reservation. Pl.’s Compl. 21-22 (Jan. 30, 2012). For

relief, Siemion asks the Court to “bring civil and possible criminal charges” against

Black Eagle, to order him to take certain actions involving Crow Tribal


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Government, and to recover from him Siemion’s “lost” income since 2006 and

several categories of “damages.” Id.

The Destruction of Roaming Bison

On January 20, 2011, Tribal Fish & Game Officers Bill Snell, Cody

Wilhelm, and Vernon Hill allegedly took a fourth Fish & Game employee, Chaz

Bends, and Officer Hill’s son Thomas with them to find, kill, and butcher some

bison without brands reported to be roaming at large on Tribal land. Pl.’s Compl.

17-18 (Jan. 30, 2012). Three bison were killed and the meat was allegedly

distributed to tribal members, including Larry Tobacco, the Fish & Game Director,

and Pete Molina, the Big Horn County Sheriff. Pl.’s Compl. 19-20 (Jan. 30, 2012).

Siemion alleges that the Fish & Game defendants were acting on

information related by a Bureau of Indian Affairs agent and with the approval of

Fish & Game Director Tobacco. Pl.’s Compl. 17, 19 (Jan. 30, 2012).

Based on these allegations, Siemion asserts claims against Director Tobacco

for condoning the actions of the Fish & Game parties. Pl.’s Compl. at 19-20 (Jan.

30, 2012). For relief, Siemion asks for restitution for the three bison, a personal

apology, and a court order removing Tobacco from his Fish & Game position and

barring him from the field of law enforcement. Id.

Siemion asserts claims against Snell, Wilhelm, Bends, Hill, and Hill for

killing the three bison. Pl.’s Compl. 18-19 (Jan. 30, 2012). She asks for restitution,

several categories of damages, and the defendants removal from Tribal

employment. Id.

Siemion asserts claims against Tribal Prosecutor Cabrera for failing to

prosecute the Fish & Game defendants. Pl.’s Compl. 21-22 (Jan. 30, 2012).

(Siemion also claims Cabrera failed to prosecute co-defendant Kelly Dee Passes

for an alleged assault, but that claim is subject to the same legal defense as this


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claim, so it will not be separately discussed). For relief, Siemion asks the Court to

remove Cabrera from the position of Crow Tribal Prosecutor (and from her

position as Special Assistant to the United States Attorney). Id.

Finally, Siemion asserts claims against Black Eagle, in addition to the

leasing-related claims. Pl.’s Compl. 22-23 (Jan. 30, 2012). Siemion claims that

Black Eagle failed to protect her bison from being killed and failed to “do anything

about” the bison killing. Id.

ARGUMENT

I. The Action Against Crow Tribal Defendants Must Be

Dismissed for Lack of Subject Matter Jurisdiction.

As to Siemion’s claims against the Tribal Defendants, Siemion does not

allege that the Court has subject matter jurisdiction. The fatal defect is not caused

merely by inartful pleading and it cannot be corrected with a technical amendment

of the Complaint. Rather, the Court’s lack of jurisdiction is manifest in the nature

of Siemion’s claims, which simply do not fall within the limited subject matter

jurisdiction of a federal district court. Without jurisdiction, the Court must dismiss

those parts of the action that are against the Tribal Defendants. Augustine v. U.S.,

704 F.2d 1074 (9th Cir. 1983). The Court need not consider the alternative grounds

for this Motion to Dismiss.

Rule 8(a) of the Federal Rules of Civil Procedure requires Siemion to

include in her Complaint a “short and plain statement of the grounds for the court's

jurisdiction.” The Complaint is devoid of any such jurisdictional statement.

Nor could Siemion simply amend the Complaint to add the jurisdictional

statement. A plaintiff contesting the motion cannot rest on pleadings alleging

subject matter jurisdiction but must affirmatively prove the existence of

jurisdiction by a preponderance of the evidence. Mortensen v. First Fed. Sav. &


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Loan Ass’n, 549 F2d 884, 891 (3d Cir. 1977). Siemion’s claims against the Tribal

Defendants provide no arguable basis for diversity jurisdiction, federal question

jurisdiction, or any other type of federal jurisdiction.

On this Motion to Dismiss for Lack of Subject Matter Jurisdiction, the Court

must dismiss Siemion’s action against Black Eagle, Tobacco, Vernon Hill, Thomas

Hill, William F. Snell III Pretty Shield, Cody Wilhelm, Chaz Bends, and Diane

Cabrera.

II. The Action Must Be Dismissed Because Siemion Cannot Overcome the

Bar of Tribal Sovereign Immunity With Formulaic Recitation

The Crow Tribe is protected by the doctrine of sovereign immunity and

cannot be sued without the consent of the Tribe or the United States Congress. See

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754

(1998); Oklahoma Tax Com'n v. Citizen Band Potawatomi Indian Tribe of

Oklahoma, 498 U.S. 505 (1991); Kennerly v. U.S., 721 F.2d 1252 (9th Cir. 1983).

The United States Supreme Court has stated that “to relinquish its immunity, a

tribe’s waiver must be clear.” C&L Enterprises, Inc. v. Citizen Band of

Potawatomi Tribe of Okla., 532 U.S. 411 (2001).

In this case, the Crow Tribe’s sovereign immunity extends to each of the

named Tribal Defendants and thus bars this suit. Tribal immunity to suit extends to

individual tribal officials and agents while acting in their representative capacity

and within the scope of their authority. Linneen v. Gila River Indian Community,

276 F.3d 489 (9th Cir. 2002) (holding that Indian community’s sovereign

immunity extended to tribal ranger alleged to have improperly detained Linneen

during ranger’s performance of official duties on the community’s land); Evans v.

McKay, 869 F.2d 1341 (9th Cir. 1989); Hardin v. White Mountain Apache Tribe,

779 F.2d 476, 479 (9th Cir. 1985) (despite defendants’ being named in their

individual capacities, tribal sovereign immunity applied because they within the


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scope of their delegated authority). Even on the face of Siemion’s Complaint, both

the leasing dispute and the bison dispute involved tribal officials and agents acting

in official capacity and within the scope of their authority.

Siemion’s recitations that Tribal Defendants acting beyond the scope of their

authority are contradicted by her pleaded facts and are, in any case, formulaic and

conclusory statements of law that fall far short of putting scope of authority in

issue. See Murgia v. Reed, 338 Fed. Appx. 614, 2009 WL 2011913 (C.A.9 (Ariz.))

(citing Hardin v. White Mountain Apache Tribe, supra).

Nor is the Ex Parte Young Doctrine applicable to Siemion’s claims. The

Federal courts have held that the Ex parte Young Doctrine may be applied to allow

a suit in federal court against tribal officials, but only when there is an allegation of

unconstitutional conduct or the application of an unconstitutional law, and when

only declaratory and/or prospective relief is being sought. See, e.g., Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 59 (1978); Burlington Northern Santa Fe v.

Vaughn, 509 F.3d 1085, 1092 (9th Cir. 2007); Burlington Northern Railroad Co. v.

Blackfeet Tribe of Blackfeet Indian Reservation, 924 F. 2d 899 (9th

Cir. 1991), cert

denied, 505 U.S. 1212 (1991), overruled on other grounds by Big Horn County

Elec. Co-op v. Adams, 219 F.3d 944 (9th Cir. 2000) (holding that tribal officials

enjoy immunity to the extent of the tribe’s valid authority). Under that analysis,

federal court jurisdiction in this cause of action cannot be established and each of

the Tribal Defendants is immune from suit. Siemion has not alleged that Tribal

Defendants have violated any specific federal law or applied any unconstitutional

tribal law.

A. Crow Tribal Chairman Cedric Black Eagle Is Immune from Suit.

Chairman Cedric Black Eagle is immune from suit. Elected officials of

federally recognized Indian Tribes are, as a rule, immune from suit under the


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Tribe’s sovereign immunity. The Crow Tribe is a federally recognized Indian tribe,

electing officials who lead its Executive Branch to four-year terms. Cedric Black

Eagle was elected in 2009 to fill the unexpired term of former Chairman Carl

Venne, who died in February 2009 shortly after his reelection in fall 2008.

Siemion’s assertion that Black Eagle acted “beyond the scope of his powers

as Chairman” is not enough to overcome the bar to suit. In Murgia v. Reed, supra,

a plaintiff had brought a Bivens action against tribal police officers arising from an

altercation on reservation which culminated in the shooting death of a tribal

member. The district court denied the police officers’ motion to dismiss based on

tribal sovereign immunity because the plaintiff had pleaded that the officers were

being sued in their individual capacities. 338 Fed. Appx. at 616 (citing Hardin v.

White Mountain Apache Tribe). The Ninth Circuit reversed, holding that the fact

the officers were sued in their individual capacities did not, without more, establish

that officers lacked the protection of tribal immunity. Id.

Here, not only does Siemion fail to plead facts that might support her

conclusion that Black Eagle acted beyond the scope of his authority, she also

contradicts that conclusion with what she does plead. Her very claim is that Black

Eagle failed to enforce tribal law or to take action against tribal employees and

agents. It would be absurd to conclude that a government official could be sued in

his individual capacity for failing to perform his official duties.

B. Tribal Prosecutor Diane Cabrera Is Immune from Suit.

Tribal Defendant Diane Cabrera is also immune from suit. Siemion’s claim

against Cabrera is that Cabrera “failed in her capacity as Crow Tribal Prosecutor.”

Pl.’s Compl. 22 (Jan. 30, 2012). There is simply no way to separate this claim from

Cabrera’s role as a tribal government officer.


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C. Tribal Fish & Game Defendants Are Immune from Suit.

The Fish & Game defendants, Tobacco, Snell, Wilhelm, Bends, Hill, and

Hill, are also immune from suit. Siemion recites that these defendents, too, acted

beyond the scope of their powers. Pl.’s Compl. 19-20 (Jan. 30, 2012). But her

factual pleadings contradict her legal conclusion.

Siemion pleads that the buffalo were killed by “Crow Tribal Game

Wardens” acting on information related by Bureau of Indian Affairs “agent” Ty

Ten Bear, after Fish & Game Director Tobacco “condoned” the action. Pl.’s

Compl. 17-20 (Jan. 30, 2012).Against these factual allegations, Siemion’s

conclusory statement of law—that their actions were beyond the scope of their

authority—is completely without support.

The Court should dismiss the action against each of the Tribal Defendants

because the tribe’s sovereign immunity from suit extends to them and has not been

overcome by Siemion’s pleading of unsupported legal conclusions as to their scope

of authorities.

III. The Case Against Tribal Defendants Must Be Dismissed for

Failure to State a Claim on Which Relief Can Be Granted

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the District

Court to dismiss a complaint for “[f]ailure to state a claim on which relief can be

granted.” Under this rule, when considering a motion to dismiss for failure to state

a claim, the court must take all material factual allegations in the complaint as true

and construe them in the light most favorable to the plaintiff. A complaint should

be dismissed “only when it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim that would entitle him to relief.” A&A Concrete,

Inc., v. White Mountain Apache Tribe, 676 F.2d 1330, 1332 (9th Cir. 1982).


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As to Black Eagle, Siemion fails to state any basis for recovery against a

tribal government elected official accused of failing to enforce tribal law and

failing to protect a tribal member. Siemion fails to cite any statute providing such a

private cause of action, or any common law tort relevant to her pleaded facts, or

any other legal basis for recovery. She fails to state a claim simply because there is

no possible claim to state.

Even assuming that Siemion could still conceive of some legal theory for

recovery, she pleads no facts that have any relation to her alleged injuries. For

instance, Siemion does not describe how any actions Black Eagle took after being

elected to the office of Chairman in 2009 could have affected her leasing dispute,

which she alleges to have begun in 2006. As to the bison dispute, Siemion does not

allege any specific duty that Chairman Black Eagle had and failed to perform.

As to the claims against Cabrera, Siemion’s complaint provides its own

built-in defense: prosecutorial discretion. The doctrine of prosecutorial discretion

is well-established in practice and is well-recognized within the American court

system both in practice and in decisions documented by caselaw. See, e.g.,

Prosecutorial Discretion, Lupton, T. 90 Geo. L. J. 1279. Prosecutors are absolutely

immune for acts taken in initiating prosecution and presenting a state’s case.

Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Babcock v. Tyler, 884 F.2d 497 (9th

Cir. 1989). Additionally, absolute immunity extends to a prosecutor’s decision not

to prosecute a case. Roe v. City and County of San Francisco, 109 F.3d 578, 583

(9th

Cir. 1997).

Cabrera is being sued for her decision, in her official capacity as Crow

Tribal Prosecutor, not to bring charges or otherwise prosecute individuals alleged

by Siemion to have killed three bison within the Crow Indian Reservation or

against an individual alleged to have assaulted Siemion’s husband. Siemion makes

no allegation of selective prosecution, nor can one be shown based on Siemion’s


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pleading. Absent any showing of impermissible motive for Cabrera’s decision not

to prosecute, she is absolutely immune from suit and she should be dismissed as a

defendant in this case.

A well-established limitation on prosecutorial discretion is the requirement

that a prosecutor’s discretionary authority may not be exercised in a way that

violates due process rights. Wayte v U.S., 470 U.S. 598, 608 (1985). However,

Siemion does not allege a violation of any due process rights. She does not allege

that Cabrera based her decisions on race, religion, or the exercise of Plaintiff’s

Constitutionally protected right to free speech. See, e.g., U.S. v. Choate, 619 F.2d

21, __ (9th Cir. 1980).

Additionally, insofar as Cabrera could be construed to be sued in her

capacity as a Special Assistant United States Attorney (which is not at all clear in

Siemion’s Complaint) she has absolute immunity from suit for any actions she may

have taken pursuant to tribal or federal law because she was exercising a judicial

function accorded absolute immunity from § 1983 actions, and under common law.

Finally, as to the Fish & Game defendants, Siemion includes a built-in

defense for these claims, too, albeit one not as well-developed as prosecutorial

discretion. Siemion alleges that the defendants acted in their official capacity, on a

federal BIA agent’s information to the effect that the bison were unowned, and

with approval of the Fish & Game Director. All of Siemions averments of fact are

consistent with tribal Fish & Game officers doing their duty. In short, the Siemions

have failed to state a claim even as to the events of January 20, 2011.

Because it appears that Siemion can establish no set of facts that would

entitle her to relief, her claims against the Tribal Defendants should be dismissed.


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CONCLUSION

For the reasons above, the Tribal Defendants respectfully request that the

Court GRANT the Tribal Defendants’ Motion to Dismiss Plaintiff’s Amended

Complaint.

Respectfully submitted,

/s/Roger J. Renville

ROGER J. RENVILLE

P.O. Box 340

Crow Agency, MT 59022

(406) 638-2059

FAX: 406-638-2614

[email protected]

Attorney for Defendants

DATED this 13th day of February, 2012.

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(D)(2)(A)

I, Roger Renville, hereby certify that this Memorandum in Support of Tribal

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint complies with the

6,500-word limit on Briefs filed in the District Court for the District of Montana,

as stated in Local Rule 7.1(D)(2)(A). By the word-count function on my computer,

this Memorandum is 4,926 words in length.


ROGER J. RENVILLE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 13, 2012, a copy of the attached

Memorandum in Support of Tribal Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint was served on the following persons by the following means:

1. Clerk, U.S. District Court, by CM/ECF

2. Nelvette Siemion, by U.S. Postal Service

P.O. Box 7484

Yellowtail, MT 59035


ROGER J. RENVILLE


mailto:[email protected]

Documents

ROGER RENVILLE Office of Executive Legal Counsel (406) 638 ... · iii, cody wilhelm, chaz bends, vernon hill, thomas hill, and diane cabrera, defendants. cv 11-120-rfc-cso memorandum