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Tribe v. Inyo County

United States Court of Appeals, Ninth Circuit

July 19, 2017

Bishop Paiute Tribe, Plaintiff-Appellant,
v.
Inyo County; William Lutze, Inyo County Sheriff; Thomas Hardy, Inyo County District Attorney, Defendants-Appellees.

          Argued and Submitted April 21, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District No. 1:15-cv-00367-GEB-JLT of California Garland E. Burrell, Jr., District Judge, Presiding

          Dorothy A. Alther (argued), California Indian Legal Services, Escondido, California; Jasmine Andreas, California Indian Legal Services, Bishop, California; for Plaintiff-Appellant.

          John D. Kirby (argued), Law Offices of John D. Kirby, San Diego, California; Marshall S. Rudolph, Inyo County Counsel, Independence, California; for Defendants-Appellees.

          Before: Sidney R. Thomas, Chief Judge, Mary H. Murguia, Circuit Judge, and Michael M. Baylson, [*] District Judge.

         SUMMARY[**]

         Federal Question Jurisdiction / Ripeness

         The panel reversed the district court's dismissal on jurisdictional grounds of an action brought by an Indian tribe, seeking a declaration regarding the tribe's right to conduct law enforcement on its reservation.

         The panel held that because the tribe had alleged violations of federal common law, it had adequately pleaded a federal question providing the district court with subject matter jurisdiction under 28 U.S.C. § 1331.

         The panel held that the case was constitutionally and prudentially ripe because there was an actual and imminent threat to a concrete interest of the tribe, and the case was fit for judicial decision. In addition, the case was not moot.

         The panel remanded the case to the district court for further proceedings.

          OPINION

          MURGUIA, Circuit Judge.

         The Bishop Paiute Tribe (the "Tribe") seeks a declaration that they have the right to "investigate violations of tribal, state, and federal law, detain, and transport or deliver a non-Indian violator [encountered on the reservation] to the proper authorities." Before reaching this issue, the district court dismissed the case on jurisdictional grounds, concluding that the case presents no actual case or controversy. On appeal, we are also asked to assess whether the district court had subject matter jurisdiction over this case. Because questions of federal common law can serve as the basis of federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and because this case presents a definite and concrete dispute that is ripe and not moot, we reverse and remand for further proceedings.

         I. BACKGROUND

         A. Factual History[1]

         The Tribe is a federally recognized Indian Tribe with an 875-acre reservation near the city of Bishop in the County of Inyo, California. The Tribe exercises powers of self-government through its governing body, the Tribal Council, which consists of five officers elected from the general tribal membership. The Tribe has approximately 1, 800 persons living on the reservation and runs a casino that allegedly has received approximately 450, 000 visitors.

         The Tribe has established civil but not criminal tribal law and has enacted three civil ordinances that are relevant to this case: a Nuisance Ordinance, a Trespass Ordinance, and a Tribal Public Safety Ordinance. Section 201 of the Tribal Public Safety Ordinance permits the tribal court to issue and enforce protective orders for the purposes of preventing violence or threatening acts. Section 202 of the Tribal Public Safety Ordinance permits the tribal court to give full faith and credit to valid protective orders issued by a state or another tribe's tribal court.

         In 2009, the Tribe established a Tribal Police Department ("Tribal PD"). Since that time, the Tribal PD has responded to several hundred calls. Many of the responses are completed along with the Inyo County Sheriff's Department ("ICSO"). The Tribal PD employs three officers and a Chief of Police. Each officer must meet various qualification requirements, including having two years of law enforcement experience and completing a law enforcement training class. The Tribal PD patrols the reservation, enforces tribal ordinances, and conducts investigations. Tribal PD General Order 3.1 states that a Tribal PD officer may need to detain an Indian or non-Indian individual to secure the scene, prevent the suspect from leaving the scene, or for officer safety. Tribal PD officers are also permitted to detain non-Indians who are suspected of committing criminal acts on the reservation and to transfer such individuals to outside law enforcement. Non-Indians are to be turned over to outside law enforcement as soon as possible.

         On December 24, 2014, Tribal PD Officer Daniel Johnson ("Johnson") received an on-reservation call from a tribal member reporting that the tribal member's non-Indian ex-wife was violating the tribal member's tribal and state protective orders by being at his home and causing a disturbance. Johnson notified the ICSO about the incident and responded to the call. Tribal and local law enforcement knew the suspect well; Tribal PD had responded to 11 calls involving the suspect, and ICSO had previously arrested the suspect twice for violating the state protective order.

         Once Johnson arrived at the scene, he approached the suspect, who was sitting in her vehicle. Johnson informed the suspect that she was violating tribal and state court protective orders and that she needed to leave. The suspect became angry and verbally abusive. Johnson informed her that he was going to detain her for violating the protective ordinances and that she would be cited for violating the tribal nuisance and trespass ordinances. Johnson repeatedly ordered the suspect to exit the vehicle, but she did not. As Johnson attempted to remove her from the vehicle, the suspect kicked him. In response, Johnson removed his Taser and warned the suspect that if she did not comply, Johnson would deploy his Taser. The suspect did not comply, and Johnson applied his Taser to her.

         Moments after Johnson deployed his Taser, an ICSO deputy arrived. Several neighbors, who had gathered around Johnson and the suspect, were verbally abusive toward Johnson. The ICSO deputy requested assistance from the police department of the nearby city of Bishop, California, because he and Johnson were outnumbered and the neighbors were hostile. Johnson finally removed the suspect from the vehicle and handcuffed her. Soon thereafter, a Bishop City Police Detective and ICSO Acting Lieutenant and Detective arrived at the scene and conducted an investigation. The officers ultimately released the suspect, because her ex-husband did not want her to be arrested. Johnson, however, cited the suspect for trespass, nuisance, and violating the tribal and state protective orders.

         Before leaving the scene, the ICSO detective noticed a small abrasion and some redness on the suspect's abdominal area and asked the suspect if she was injured. Johnson asked the suspect if she wanted an ambulance to respond, and the suspect declined the offer. The following week, the ICSO conducted an investigation into the December 24 incident that was submitted to the Inyo County district attorney's office. On January 5, 2015, the Inyo County district attorney filed a ...


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