ELEM Citizens Lose in 9th Circuit

Sad news for some in the ELEM COMMUNITY:

This action is between two groups of the Elem Indian Colony Pomo Tribe (the Tribe), the “Brown faction” (plaintiffs) and the “Garcia Council” (defendants). Plaintiffs sued the Garcia Council over allegedly defamatory statements published in a notification that warned they would be disenrolled if the Tribe’s General Council found them guilty of specified crimes. The trial court ruled the lawsuit was barred by sovereign immunity and dismissed the complaint. We affirm




As the trial court noted, Maxwell and Pistor make clear that the general rule is not dispositive if the lawsuit will encroach upon the tribe’s sovereignty. (See Maxwell, supra, 708 F.3d at p. 1088.)

Here, substantial evidence established that defendants were tribal officials at the time of the alleged defamation and that they were acting within the scope of their tribal authority when they determined that, for the reasons stated in the allegedly defamatory Order of Disenrollment, plaintiffs should be disenrolled from the Tribe pursuant to a validly enacted tribal ordinance.

On this record, which we have carefully reviewed, the trial court concluded that plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe on the basis of plaintiffs’ alleged unlawful acts. The court further found that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs, “which itself requires an impermissible analysis of Tribal law and constitutes a determination of a non-justiciable inter-tribal dispute.” We agree. “ ‘A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.’ ” (Lamere v. Superior Court (2005) 131 Cal.App.4th 1059, 1064 (Lamere), quoting Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.)

It is thus not dispositive here that the complaint sought relief only from individual defendants. Despite the plaintiffs’ careful pleading, their action sought to hold defendants liable for their legislative functions and is thus “in reality an official capacity suit” properly subject to sovereign immunity. (Maxwell, supra, 708 F.3d at p. 1089, citing Hardin, supra, 779 F.2d 476.) While it may be true that, as plaintiffs assert, their suit does not ask the court to take any actions regarding their disenrollment, the action seeks to assess liability for torts tribal officials allegedly committed in effectuating that disenrollment.

Notwithstanding 10 plaintiffs’ assertion that their action is “purely about harmful publications” and “does not require a court to interfere with any membership or governance decisions,” entertaining the suit would require the court to adjudicate the propriety of the manner in which tribal officials carried out an inherently tribal function. This is so whether or not, as plaintiffs assert (without reference to the record), some of the defendants are no longer members of the Tribe’s governing body.

Finally, plaintiffs assert the trial court “had a duty to allow them to conduct discovery to assist in determining whether it had jurisdiction to proceed.” They have supplied neither relevant authority nor cogent legal analysis to support this claim, so it is forfeited.

In any event, plaintiffs fail even to suggest what relevant evidence such discovery might have produced. The court ruled correctly