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Oertwich Decision and Potential Implications for Tribal Sovereign Immunity

April 8, 2022

Overview

On March 30, 2022, the Ninth Circuit Court of Appeals issued a decision in Oertwich v. Traditional Village Of Togiak, No. 19-36029 (9th Cir.) that has potential implications for tribal sovereign immunity, including recognizing that tribal sovereign immunity extends to tortious conduct occurring on non-tribal lands. 

Ronald Oertwich (“Oertwich”) was a non-tribal member living in the City of Togiak, Alaska (the “City”). Togiak is a dry town and it is illegal to import alcohol into the City. The City is also like many remote Alaska towns and villages in that it did not have a formal police force or state police presence permanently stationed in the City. 

The Alaska Native tribe for Togiak, the Traditional Village of Togiak (“the Togiak Tribe”), had established a tribal court system and had tribal police officers. The Togiak Tribe seized a tote containing alcohol that it believed was owned by Oertwich pursuant to a search warrant issued by its tribal court system. The Togiak Tribe then issued a banishment order against Oertwich and placed him on a plane to a neighboring village. After being flown out of Togiak, Oertwich returned to the City, at which point the Togiak Tribe police officers arrested Oertwich and held him for several days, after which they forcibly placed Oertwich on a plane out of the City.

Oertwich sued the Togiak Tribe, individual tribal offices, the City of Togiak, the State of Alaska, and the local Village Public Safety Officer in federal court. All of Oertwich’s claims were dismissed in response to various motions to dismiss and motions for summary judgment. The only dismissal that Oertwich appealed was the federal district court’s dismissal of his claims against the Togiak Tribe and individual tribal officials on sovereign immunity grounds.

The Ninth Circuit affirmed the district court’s dismissal of Oertwich’s claims against the Togiak Tribe and the Togiak Tribe officials to the extent the claims against the officials were against them in their official capacities. The Court remanded the case back to the district court to determine if Oertwich properly alleged claims against the Togiak Tribe officials in their personal capacities. 

The Ninth Circuit’s decision is potentially notable in that it holds that the sovereign immunity of federally recognized tribes in Alaska extends to torts committed by tribal employees against non-tribal members on non-tribal land. The Ninth Circuit declined to limit or abrogate the broad sovereign immunity afforded to federally recognized tribes in Alaska and elsewhere in the absence of congressional action. 

While the Ninth Circuit remanded the case back to the district court for a determination of whether Oertwich had asserted claims against the tribal officials in their personal capacity pursuant to § 1983, the availability of those claims may be of limited usefulness to Oertwich or similarly situated plaintiffs. In remanding the case, the Ninth Circuit made it clear that any claim against the tribal officials in their personal capacity could be permitted to go forward only if it would not impact the tribe, i.e. will the tribe be legally bound by the court’s judgment on those claims:

If the district court decides on remand that any recovery for Oertwich’s state tort claims “will run against the individual tribal defendants” themselves, those defendants cannot “enjoy tribal sovereign immunity.” Acres Bemusing, 17 F.4th at 910 (citations omitted). Accordingly, we remand for the district court to conduct this threshold analysis in the first instance.

If the Togiak Tribe would be legally bound by the claims against the tribal officials in the official capacity, the claims will be barred by sovereign immunity. 

The Ninth Circuit’s decision in Oertwich is a potentially important clarification and explanation of the extent to which the tribal sovereign immunity of Alaska tribes extends to claims by non-tribal members for actions occurring on non-tribal land.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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