v. Garcia, presiding. - Turtle Talk · PDF fileThis case concerns a citizen of the Navajo Nation, Mr. Russell Chavez ... Motion to Dismiss, docket number 7. Magistrate Judge Lorenzo

NO. 11-2203

IN THE UNITED STATES COURT OF APPEALS FOR THEN TENTH CIRCUIT

Russell Chavez,

Appellant,

v.

Navajo Nation Tribal Courts, et al.,

Appellees.

On Appeal from a decision of the Federal District Court of New Mexico, the Honorable Lorenzo Garcia, presiding. Oral Argument Not Requested

APPELLEES’ BRIEF

Paul Spruhan, Esq. New Mexico Bar No. 12513 Navajo Nation Department of Justice Post Office Drawer 2010 Window Rock, Arizona 86515-2010 Telephone: (928) 871-6229 [email protected]

Appellate Case: 11-2203 Document: 01018792072 Date Filed: 02/10/2012 Page: 1

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TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES ……………………………………………... 3

STATEMENT OF THE ISSUES ………………………………………… 5

STATEMENT OF THE CASE …………………………………………… 6

STATEMENT OF FACTS ……………………………………………….. 8

SUMMARY OF ARGUMENT …………………………………………… 10

STATEMENT OF STANDARD OF REVIEW …………………………... 11

ARGUMENT ……………………………………………………………… 12

I. THE DISTRICT COURT CORRECTLY HELD THAT 28 U.S.C. § 1343 DOES NOT GRANT FEDERAL COURTS SUBJECT MATTER JURISDICTION OVER CIVIL RIGHTS CLAIMS AGAINST NATIVE NATION OFFICIALS ACTING UNDER COLOR OF TRIBAL LAW. ……………………………………… 12

II. EVEN ASSUMING SECTION 1343 PROVIDED SUBJECT

MATTER JURISDICTION, THE DISTRICT COURT CORRECTLY HELD THAT OFFICIALS OF THE NAVAJO NATION ARE IMMUNE FROM SUIT ………………… 15

III. THIS COURT CAN AFFIRM THE DISTRICT COURT

DECISION IN THE ALTERNATIVE BECAUSE MR. CHAVEZ’S COMPLAINT FAILS TO STATE A CLAIM AND SHOULD BE DISMISSED UNDER FED. R. CIV. P. 12(B)(6) …………………… 16

A. A claim cannot be stated against Native Nation officials

under Section 1983 when they act under color of tribal law. ……………………………………………………………… 17

B. Even if Section 1983 generally applied, the underlying claims asserting violations of the United States Constitution do not apply to Native Nation sovereigns. ………………………... 17

CONCLUSION …………………………………………………………….. 19


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TABLE OF AUTHORITIES PAGE

CASES Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006) …………………… 13, 14, 17 Crowe & Dunleavy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011) ….. 15, 16 Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) …………………………………………….. 18 E.F.W. v. St. Stephen’s Indian High School, 264 F.3d 1297 (10th Cir. 2001) ……………………………………… 13, 14, 17 Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997) ………………… 16 Lindstrom v. United States, 510 F.3d 1191 (10th Cir. 2007) ……………… 11 Santa Clara v. Martinez, 436 U.S. 49 (1978) …………………………… 15, 18 Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000) …………….. 16 Tafoya v. U.S. Dep’t of Justice, Law Enforcement Assistance Admin., 748 F.2d 1389 (10th Cir. 1984) ……………………………………………. 12 Talton v. Mayes, 163 U.S. 376, 384 (1896) ………………………………. 18 Walton v. Tesuque Pueblo, 443 F.3d 1274 (10th Cir. 2006) ………………. 18 FEDERAL STATUTES 25 U.S.C. § 1301, et seq. ………………………………………………… 18, 19 28 U.S.C. § 1343 ……………………………………………………. 12, 13, 14


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42 U.S.C. § 1983 ………………………………………………… 13, 14, 15, 16 FEDERAL RULES Fed. R. Civ. P. 12(b)(1) …………………………………………………….. 12 Fed. R. Civ. P. 12(b)(6) ………………………………………………… 12, 16 NAVAJO NATION STATUTES 1 N.N.C. § 554(F)(5) (2005) ……………………………………………… 19


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STATEMENT OF THE ISSUES

The issues in the case are (1) whether 28 U.S.C. § 1343 provides the

federal courts with jurisdiction to hear civil rights claims against officials of

Native Nations acting under color of tribal law, and (2) whether Native Nation

officials acting under tribal law are immune from federal money damages actions

if there is no unequivocal tribal or congressional waiver of the Native Nation’s

sovereign immunity; and (3) if Section 1343 does provide jurisdiction, and there

is a waiver of immunity, does a complaint invoking 42 U.S.C. § 1983 and the

United States Constitution state a claim for which relief can be granted against

officials of Native Nations acting under color of tribal law.


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STATEMENT OF THE CASE

This case concerns a citizen of the Navajo Nation, Mr. Russell Chavez

(Mr. Chavez), who filed a federal civil rights complaint against the Navajo

Nation, a sovereign Native Nation, and several of its Judicial and Executive

Branch officials. Mr. Chavez claims violations of his rights under the United

States Constitution and invokes 28 U.S.C. § 1343 as the source of federal

jurisdiction and 42 U.S.C. § 1983 as the source of his cause of action.

Complaint, docket number 2, at 4.1 His complaint arises out of the dismissal of

two cases he filed in the Window Rock District Court and subsequent rulings on

procedure by the Navajo Nation Supreme Court, explained more fully in the

Statement of Facts below. Such acts were official acts of the judges and justices

of the Navajo Nation courts under Navajo Nation law. The Nation and its

officials filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). Corrected

Motion to Dismiss, docket number 7. Magistrate Judge Lorenzo Garcia, who

heard the case by consent under Fed. R. Civ. P. 73(b), dismissed the case under

Fed. R. 12(b)(1), holding 28 U.S.C. § 1343 did not grant jurisdiction for the

federal courts to hear Mr. Chavez’s complaint, and that the Navajo Nation and its

officials were immune from suit. Memorandum Opinion and Order, docket

1 As Mr. Chavez did not file an appendix with his brief, references to the record conform to 10th Cir. R. 28.1(B).


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number 22. This appeal followed.


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STATEMENT OF FACTS

Mr. Chavez filed two cases in the Window Rock District Court of the

Navajo Nation, one against the Arizona State Hospital and other defendants, and

one against the United States Government and other defendants. Complaint,

docket number 2, Exhibits A-A-1, B-B-1. In his case against the Arizona State

Hospital, the Window Rock District Court applied Mr. Chavez’s own factual

allegations, and concluded his claims arose out of the defendants’ actions in

Phoenix, clearly outside the territory of the Navajo Nation, and dismissed the

complaint. Chavez v. Arizona State Hospital, No. WR-217-10, Amended Order

of Dismissal, Response to Corrected Motion to Dismiss, docket number 16,

Exhibit 23, at 2. In Mr. Chavez’s case against the United States, the court made

the same ruling, but additionally concluded that the federal government had

sovereign immunity for actions filed in Navajo court. Chavez v. United States

Government, No. WR-218-10, Amended Order of Dismissal, Response to

Corrected Motion to Dismiss, docket number 16, Exhibit 23, at 2. Mr. Chavez

attempted to appeal the decision dismissing his case against the United States, but

failed to follow the Navajo Rules of Civil Appellate Procedure requirements, and

the Navajo Supreme Court dismissed his appeal. See Chavez v. United States,

No. SC-CV-06-01, Order Dismissing Amended Notice of Appeal, Reply to

Response to Motion to Dismiss, docket number 17, Exhibit 2. He successfully


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filed an appeal in his case against the Arizona State Hospital. Chavez v. Arizona

State Hospital, No. SC-CV-69-10, Docket Sheet, Reply to Response to Motion,

docket number 17, Exhibit 1. That appeal remains pending before the Navajo

Supreme Court.

While his appeal was pending, Mr. Chavez filed his complaint in the

Federal District Court of New Mexico, alleging the actions of the Navajo Nation

judges and justices violated his rights under the United States Constitution.

Complaint, docket number 2.


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SUMMARY OF ARGUMENT

The District Court correctly held that 28 U.S.C. § 1343 does not grant the

federal courts jurisdiction over civil rights claims against Native Nation officials

acting under color of tribal law. The District Court further correctly held that

Native Nations and their officials acting under tribal law are immune from

money damages claims absent an unequivocal waiver by the Native Nation or

Congress. Even if such holdings were wrong, Mr. Chavez’s complaint fails to

state a claim for which relief can be granted because Section 1983 requires

government officials to act under color of state law. Further, Mr. Chavez’s

underlying claims of violations of the United States Constitution cannot apply to

Native Nations and their officials.


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STATEMENT OF STANDARD OF REVIEW

This Court reviews a dismissal for lack of subject matter jurisdiction de

novo. Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007).


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ARGUMENT

I. THE DISTRICT COURT CORRECTLY HELD THAT 28 U.S.C. § 1343 DOES NOT GRANT FEDERAL COURTS SUBJECT MATTER JURISDICTION OVER CIVIL RIGHTS CLAIMS AGAINST NATIVE NATION OFFICIALS ACTING UNDER COLOR OF TRIBAL LAW.

This Court should affirm the District Court’s ruling that it lacks subject

matter jurisdiction to hear Mr. Chavez’s case. Though the Navajo Nation and its

officials did not move to dismiss the case under Fed. R. Civ. P. 12(b)(1), but did

so under 12(b)(6),2 a federal district court may review its own jurisdiction at any

time and dismiss a complaint if it concludes that subject matter jurisdiction is

lacking. See Tafoya v. U.S. Dep’t of Justice, Law Enforcement Assistance

Admin., 748 F.2d 1389, 1390 (10th Cir. 1984) (“[I]t has long been recognized that

a federal court must, sua sponte, satisfy itself of its power to adjudicate in every

case and at every stage of the proceedings and the court is not bound by the acts

or pleadings of the parties.”).

As the District Court noted, 28 U.S.C. § 1343 is the sole jurisdictional statute

Mr. Chavez invokes in his complaint. Memorandum Opinion and Order, docket

2 As discussed below, supra, Section III(A), the rationale for dismissing the case for lack of jurisdiction is the same one asserted by the Navajo Nation and its officials for why Mr. Chavez’s complaint failed to a state claim: the alleged acts of the Nation’s officials were done solely under color of tribal law, and therefore are not within the scope of 42 U.S.C. § 1983.


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number 22, at 2; Complaint, docket number 2, at 4.3 That statute establishes

federal jurisdiction over “any civil action authorized by law”

to redress the deprivation under color of any state law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

28 U.S.C. § 1343(a)(3) (emphasis added). Mr. Chavez invoked 42 U.S.C. § 1983

as the federal statute that allegedly authorizes his civil action against the Navajo

Nation and its officials. Complaint, docket number 2, at 4, 50-53. For the federal

courts to properly have subject matter jurisdiction over this case under Section

1343, (1) Section 1983 would have to authorize his action, and (2) he must seek

to redress a deprivation of a right, privilege or immunity recognized by federal

law by someone acting under color of state law. The District Court correctly

concluded that Mr. Chavez cannot fulfill either condition.

First, Section 1983, as held in two prior cases by this Court, cannot

authorize a civil action against Native Nation officials acting under color of tribal

law. See Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006); E.F.W. v. St.

Stephen’s Indian High School, 264 F.3d 1297, 1305-06 (10th Cir. 2001). The

plain language of that statute requires an act done under color of state law:

3 Pursuant to 10th Cir. R. 28.2(B), a copy of the Memorandum Opinion and Order is included as an attachment to this brief, as it was not included with Mr. Chavez’s brief.


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Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983 (emphasis added). Here, as found by the District Court, all the

actions allegedly giving rise to his civil rights deprivation claims, the alleged

wrongful dismissal of his complaints filed in Window Rock District Court and

the alleged denial of procedural rights by the Navajo Supreme Court, were by

Navajo Nation officials under Navajo Nation law. See Memorandum Opinion

and Order, docket number 22, at 4; Complaint, docket number 2, at 2-4, 6-9. Mr.

Chavez has the burden to establish “the existence of a real nexus between [the

Nation officials’] conduct and [their] badge of state authority in order to

demonstrate action was taken under color of state law.” St. Stephen’s 264 F.3d at

1305 (internal quotation marks omitted). Mr. Chavez has never alleged any facts

suggesting the officials acted under state law, and, in his brief to this Court,

makes no such argument. Under such circumstances, both the statutory language

itself and two prior opinions of this Court confirm that the Navajo Nation and its

officials are not subject to Section 1983 in this case. See Burrell, 456 F.3d at

1174; St. Stephen’s, 264 F.3d at 1305 (“[T]he only proper defendants in a [§

1983] claim are those who represent [the state] in some capacity, whether they


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act in accordance with their authority or misuse it.”).

Second, even assuming that Section 1983 itself somehow provided a cause

of action, the precondition in Section 1343(a)(3) still precludes jurisdiction over

this case. That subsection similarly requires an act under “color of any state law,

statute, ordinance, regulation, custom or usage.” 28 U.S.C. § 1343(a)(3). Again,

as stated by Mr. Chavez in his complaint and the District Court in its decision,

the acts he alleges violated his civil rights were performed by Navajo Nation

officials under Navajo Nation law. They therefore do not fall within the scope of

Section 1343(a)(3), and the District Court’s ruling should be affirmed.

II. EVEN ASSUMING SECTION 1343 PROVIDED SUBJECT MATTER JURISDICTION, THE DISTRICT COURT CORRECTLY HELD THAT OFFICIALS OF THE NAVAJO NATION ARE IMMUNE FROM SUIT IN THIS CASE.

Even assuming Mr. Chavez’s complaint properly invoked federal

jurisdiction under Section 1343, the District Court correctly held in the

alternative that the Navajo Nation’s courts and officials are immune from Mr.

Chavez’s suit. In his complaint, Mr. Chavez seeks money damages of more than

fifteen million dollars from the Nation and its officials. Complaint, docket

number 2, at 54. Absent an unequivocal waiver, the Nation and its officials have

sovereign immunity from such damages claims. See Santa Clara v. Martinez,

436 U.S. 49, 58-59 (1978); Crowe & Dunleavy, P.C. v. Stidham, 640 F.3d 1140,

1153-55 (10th Cir. 2011) (officials share tribal immunity unless Ex Parte Young


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exception applies). As Mr. Chavez’s complaint seeks damages from officials

acting within their official capacity, the suit runs against the Nation itself, and its

officials share in the Nation’s immunity. See Crowe & Dunleavy, 640 F.3d at

1153; Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997). Neither

the Nation nor its officials have consented to this suit, and, absent clear

congressional intent to waive such immunity, which Mr. Chavez does not and

cannot assert, the District Court properly dismissed Mr. Chavez’s suit.

III. THIS COURT CAN AFFIRM THE DISTRICT COURT DECISION IN THE ALTERNATIVE BECAUSE MR. CHAVEZ’S COMPLAINT FAILS TO STATE A CLAIM AND SHOULD BE DISMISSED UNDER FED. R. CIV. P. 12(B)(6)

Even assuming there was subject matter jurisdiction over Mr. Chavez’s

claims under some other properly invoked federal statute, Mr. Chavez’s

complaint fails to state a claim for which relief can be granted, and should be

dismissed under Fed. R. Civ. P. 12(b)(6). The Nation and its officials filed its

motion to dismiss on this ground, based on the inapplicability of Section 1983.

See Corrected Motion to Dismiss, docket number 7. For similar reasons, as

discussed above, the District Court dismissed this case for lack of subject matter

jurisdiction. Whether seen as a lack of jurisdiction or failure to state a claim, the

result is the same: the complaint was properly dismissed. This Court may affirm

the District Court’s decision for the alternative reasons the Nation presented in its

motion to dismiss. See Smith v. Ingersoll-Rand Co, 214 F.3d 1235, 1248 (10th


17

Cir. 2000) (“We are free to affirm the rulings of a district court on any ground

that finds support in the record, even where the lower court reached its

conclusions from a different or even erroneous course of reasoning.” (internal

quotation marks omitted)). A remand under such circumstances would not serve

judicial economy, when Mr. Chavez’s complaint simply cannot be heard by the

federal courts.

A. A claim cannot be stated against Native Nation officials under Section 1983 when they act under color of tribal law

As discussed above, prior opinions of this Court bar Section 1983

actions against Native Nation officials acting under color of tribal law. See

infra., Section I. In those cases, this Court directly held that complaints filed

under Section 1983 in such circumstances failed to a state a claim under Fed. R.

Civ. P. 12(b)(6). See Burrell, 456 F.3d at 1174; St. Stephen’s, 264 F.3d at 1305-

06. As Section 1983 does not apply in this case for the same reason, Mr.

Chavez’s complaint had to be dismissed by the District Court.

B. Even if Section 1983 generally applied, the underlying claims asserting violations of the United States Constitution do not apply to Native Nation sovereigns.

Even assuming the District Court was wrong, and that Section 1983

generally could authorize Mr. Chavez’s causes of action, his underlying claims of

constitutional violations cannot apply to a Native Nation and its officials. In his

complaint, Mr. Chavez asserts several rights under the United States Constitution


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that he claims were violated by the actions of Navajo Nation officials, and that

these violations trigger the application of Section 1983. See Complaint, docket

number 2, at 49-53. However, the Nation’s officials govern pursuant to the

Navajo Nation’s inherent sovereignty, and the U.S. Constitution does not define

the scope of that sovereign authority. See Talton v. Mayes, 163 U.S. 376, 384

(1896) (holding plaintiff cannot bring Fifth Amendment claim against Native

Nation, as Constitution does not restrain tribal governments). The only possible

federal claim arises under the Indian Civil Rights Act (ICRA), which applies

most of the requirements of the U.S. Constitution’s Bill of Rights to Indian tribes.

See 25 U.S.C. § 1301, et seq. However, to state a federal cause of action under

ICRA, the plaintiff may only properly assert a claim for habeas corpus. See

Santa Clara Pueblo, 436 U.S. at 65-66 (1978).4 Plaintiff did not file an ICRA

4 This Court has once recognized an exception to Santa Clara in Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980). In that case, non-Indians were barred from accessing their fee land within the Wind River Reservation, and were flatly denied access to the tribal court. See id. at 684-84. This Court allowed a federal ICRA action under such circumstances notwithstanding Santa Clara Pueblo. Id. at 685. This Court has subsequently limited that exception to the unique facts of that case, rejecting arguments to expand it to any other situation. See Walton v. Tesuque Pueblo, 443 F.3d 1274, 1278 (10th Cir. 2006) (“[W]e have stated that the rule has minimal precedential value.” (internal quotation marks omitted)). This Court has specifically rejected its application when the tribal court agreed to hear the case, but dismissed it for jurisdictional reasons. See id. Mr. Chavez did not assert ICRA or Dry Creek Lodge in his complaint or his brief submitted to this Court, and there is no justification to expand Dry Creek Lodge to this case.


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action, under habeas corpus or otherwise, and did not allege any facts that would

support a federal ICRA action. The Nation’s courts have exclusive jurisdiction to

hear his civil rights claims under the Navajo Bill of Rights and Indian Civil

Rights Act in such circumstances, and is the appropriate forum to hear this

dispute. See 1 N.N.C. § 554(F)(5) (2005) (expressly providing a waiver of the

Nation’s sovereign immunity and a remedy for “wrongful deprivation or

impairment of civil rights”). Disputes, like this one, between a Navajo citizen

and the Navajo Nation government, are properly resolved in the Navajo Nation

courts under Navajo law. Mr. Chavez’s invocation of the United States

Constitution as the source of the Nation’s alleged violations therefore fails to

state a claim.

CONCLUSION

Plaintiff’s claims ultimately concern a Navajo tribal citizen’s disagreement

with the procedural decisions of Navajo Nation courts under Navajo law. Such

disagreements are to be decided in the Navajo Nation system, and federal law

does not allow federal courts to hear the dispute. This Court should affirm the

District Court’s dismissal with prejudice of Mr. Chavez’s complaint, either for

the reasons stated by that court, or for the alternative reasons presented by the

Nation and its officials.


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Respectfully submitted this 10th day of February, 2012.

By: /s/ Paul Spruhan Paul Spruhan, Assistant Attorney General Navajo Nation Department of Justice Post Office Box 2010 Window Rock, Arizona 86515-2010


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CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2012, I electronically submitted the attached document to the Clerk’s Office using the CM/ECF System for filing and mailed a copy of document first class U.S. mail to: Russell W. Chavez P.O. Box 37676 Phoenix, AZ 85069-7676 Russell W. Chavez c/o Clara Jones 6245 N. 16th Avenue Phoenix, AZ 85015

By: /s/ Paul Spruhan


ATTACHMENT A

Memorandum Opinion and Order Docket Number 22

9/14/2011


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

RUSSELL CHAVEZ,

Plaintiff, vs. CIVIL NO. 11-601 LFG/KBM

NAVAJO NATION TRIBAL COURTS, NAVAJO NATION TRIBE, THOMAS HOLGATE, District Court Judge, NavajoNation District Court; HERB YAZZIE,Chief Justice Judge, Supreme Court ofNavajo Nation; E. SHIRLEY, AssociateJustice Judge, Supreme Court of NavajoNation; and BEN SHELLY, JR., NavajoTribal President,

Defendants.

MEMORANDUM OPINION AND ORDERGRANTING DEFENDANTS’ MOTION TO DISMISS

DUE TO LACK OF JURISDICTION

THIS MATTER is before the Court on Defendants' Motion to Dismiss [Doc. 7]. The Court

considered the motion together with Russell Chavez's ("Chavez") Response in opposition [Doc. 16],

as well as Defendants' Reply [Doc. 17]. Oral argument is not necessary. For the reasons hereafter

set out, Defendants’ motion is granted.

Background

Chavez seeks to prosecute civil rights claims against the Navajo Nation Tribal Courts and

against the Navajo Nation itself. He also seeks to appeal rulings issued by T.J. Holgate, Navajo

Nation District Court Judge, as well as the affirmance of Judge Holgate's rulings by the Supreme

Court of the Navajo Nation.1

1One of Chavez’s appeals from tribal court’s rulings is pending before the Navajo SupremeCourt. See Chavez v. Arizona State Hospital, No. SC-CV-69-10 (Nav. Sup. Ct. 2011) [Defendants’Ex. 1.]

Case 1:11-cv-00601-LFG-KBM Document 22 Filed 09/14/11 Page 1 of 5Appellate Case: 11-2203 Document: 01018792072 Date Filed: 02/10/2012 Page: 23

Chavez's Complaint, a behemoth pleading, with 439 pages, recites Chavez’s dissatisfaction

with alleged corruption within the Navajo Nation dating back multiple decades to the administration

of then Chairman Peter McDonald. Chavez alleges that the great Navajo Nation and various Navajo

tribal entities deprived him of constitutional rights. He asserts a history of financial

mismanagement, corruption, Tribal Council conflicts of interest, insider dealing, and an allegedly

corrupt judicial system.

Present Motion

Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants specifically

note that Chavez's causes of action all are claimed to arise under 42 U.S.C. § 1983 and the United

States Constitution. But, as Defendants' alleged conduct does not arise under color of state law, but,

rather, under color of Tribal law, Defendants assert that the federal court has no jurisdiction.

Analysis

Chavez asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1343(a) as well as 42

U.S.C. § 1983. Chavez is incorrect on both assertions.

Section 1343(a)(3) provides:

The district court shall have original jurisdiction of any civil actionauthorized by law to be commenced by any person:

* * *

(3) to redress the deprivation, under color of any state law, statute,ordinance, regulation, customer or usage, of any right, privilege orimmunity secured by the Constitution of the United States or by anyact of Congress providing for equal rights of citizens or of all personswithin the jurisdiction of the United States;

Thus, the pre-condition for bringing a claim under § 1343 is that a civil action be "authorized by

law."

2


The law upon which Chavez seeks to rely is 42 U.S.C. § 1983. This federal statute allows

a plaintiff to prosecute a claim for violation of rights when two conditions exist: (1) "[t]he plaintiff

must allege that some person has deprived him of a federal right," and (2) "he must allege that the

person who has deprived him of that right acted under color of state or territorial law." Gomez v.

Toledo, 446 U.S. 635, 640 (1980); West v. Atkins, 487 U.S. 42, 48 (1988).

Both elements must be present. A party may not prosecute a claim under 42 U.S.C. § 1983

unless there is both an alleged constitutional violation and action taken under color of state law by

a person or entity who allegedly violated the Constitution or a federally protected right. The acts

or omissions of the Navajo Nation and Navajo courts are not undertaken pursuant to the United

States Constitution or federal law. Instead, those entities act under color of tribal law. Burrell v.

Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006); E.F.W. v. St. Stephen's Indian High School, 264 F.3d

1297, 1305-06 (10th Cir. 2001).

In Burrell, supra, the plaintiff brought claims against tribal officials and sought to rely on

42 U.S.C. § 1983. The Tenth Circuit Court of Appeals sustained dismissal of the § 1983 claim

against tribal officials because they act under color of tribal law as opposed to state law. The Circuit

concluded that the plaintiff failed to state a claim under § 1983 for which the court could grant relief.

Fed. R. Civ. P. 12(b)(6); id. at 1174-75.

So, too, in the St. Stephen's case, supra, the Tenth Circuit noted:

[Section 1983] created a federal cause of action for damages tovindicate alleged violations of federal law committed by individualsacting under color of state law . . . . Therefore, the only properdefendants in a [Section 1983] claim are those who represent [thestate] in some capacity, whether they act in accordance with theirauthority or misuse it.

Id., 264 F.3d at 1305.

3


It is clear by reading Chavez's voluminous Complaint that his disputes all concern the

operation of tribal government and tribal courts which do not rely on state law as their genesis.

Accordingly, Chavez may not prosecute an action under 42 U.S.C. § 1983 against these defendants.

As he may not rely on 42 U.S.C. § 1983, his claims are not authorized under law pursuant to § 1343.

Sovereign Immunity

In addition to Chavez's failure to state a claim under Fed. R. Civ. 12(b)(6), he failed to

address Defendants' sovereignty. Indian tribes, as sovereign powers, possess common-law immunity

from suit. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

While Congress has authority to limit or control tribal sovereign immunity, it must do so

unequivocally. Id.; E.F.W. v. St. Stephen's Indian High School, 264 F.3d at 1304. Neither 42

U.S.C. § 1983 nor 28 U.S.C. § 1343, under which Chavez alleges jurisdiction in his Complaint, can

be construed as a congressional intent to waive tribal sovereign immunity.

[T]he Indian nations ha[ve] always been considered as distinct,independent political communities . . . . Talton v. Maynes, 163 U.S.376 at 383, 16 S.C. 986 (quoting Worcester v. Georgia, 31 U.S. 515,559 (1832)).

While American courts have moved away from Worcester’s "platonic notions of sovereign

immunity," McClanahan v. State Tax Comm. of Arizona, 411 U.S. 164, 171-72 (1973), Indian tribes

"still possess those aspects of sovereignty not withdrawn by treaty or statute or by implication as a

result of their dependent status." United States v. Wheeler, 435 U.S. 313, 323 (1978), superceded

in other respects by statute, 25 U.S.C. §§ 1301-1303.

In this case, it is clear that the great Navajo Nation is sovereign, and Congress has not

authorized a lawsuit against tribal entities pursuant to 42 U.S.C. § 1983.

4


Conclusion

The Court determines that Chavez's claims against the Navajo Nation Tribal Courts, the

Navajo Nation, and Navajo Nation officials must be dismissed due to lack of jurisdiction.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss is GRANTED; and

Chavez's claims as against all Defendants are DISMISSED.

_________________________________Lorenzo F. GarciaUnited States Magistrate Judge

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Documents

v. Garcia, presiding. - Turtle Talk · PDF fileThis case concerns a citizen of the Navajo Nation, Mr. Russell Chavez ... Motion to Dismiss, docket number 7. Magistrate Judge Lorenzo