Yes, sir. Good morning, May pleases the Court. My name is Glenn Feldman, appearing on behalf of Tribal Defendants, Carlos Garcia, Lisa Kaiser, and Ferrell Sivall. The district court made three separate but related errors in denying the Tribal Defendants 12v1 motion to dismiss his case on sovereign immunity grounds. First, the Court held that the assertion of sovereign immunity did not raise any jurisdictional issue, and therefore the 12v1 motion was an improper vehicle for raising the sovereign immunity issue. The Court then compounded that error by suespanthe treating the 12v1 motion as if it were a 12v6 motion. All right. Let's say that we agreed with you that this was properly. It's really not your jurisdiction, it's a quasi-jurisstictional, but there seems to be case law allowing it to be determined on the 12v1. Suppose that was all right. But we could still affirm on the merits of the determination, right? With regard to the sovereign immunity. No, we certainly don't think so. Well, you don't think so, but I mean, what I mean is structurally we could. I mean, in other words, we would, an alternative basis for upholding the district records ruling would be, well, there actually was no sovereign immunity here. Well, under 12v1, we are entitled to present evidence to support our jurisdiction, our claim that there is no jurisdiction. We did submit substantial evidence in support of that
. But under Maxwell, the standard seems, this was a lawsuit against individuals and there are individual capacity for damages. And as I read Maxwell, there is no sovereign immunity, tribal sovereign immunity, and that circumstance with some narrow exceptions which don't seem to apply here. Well, Maxwell is an interesting case because it seems to fly in the face of- Sotomayor, well, whatever it flies in the face of, it's our case law. It gills with all the other case law. It's comprehensive and reconciles or attempts to reconcile all the other pieces. And it's binding on us. Well, let me give you two reasons why Maxwell doesn't control here. First, let me talk about the substantial factual differences. Maxwell, we have two paramedics employed by a tribal ambulance company who are providing off-services, off-the-reservation, and the services that are providing are just simple medical services that are attending to a gunshot victim. Services have nothing to do with tribal government or tribal functions. That's very different than the case here where we have on-reservation activities by high-level tribal officials and employees, the chief of police, the general mangrove. Kagan, you're still suing the individuals, the individuals for damages coming out of their own pockets, not out of the tribe. And it's not a governance question. It's on the ground question. No, I think it is a governance question, Your Honor
. And so I submit to you that Maxwell is inconsistent with the cases like hardened cases like murdered. But that was true. We'd have to go on-pack, is that what you're suggesting? No, no. What I suggest is that Maxwell, what I'm suggesting is that Maxwell is should be restricted to its particular facts. But it doesn't breathe that way. It breathes as stated a very broad general principle, is it not? No, Your Honor. Let me get to my second reason, my second reason. I mean, they're suing individuals for damages. Yes. So at this stage, isn't that the end of it? No. As the hardened versus white modern, Hatchie, they were sued in their individual capacity, merger, certain, sued in their individual capacity, Miller versus Wright sued in their individual capacity. In every one of those cases, the individual were found being protected by tribal sovereign immunity. The reason Maxwell doesn't control here is that Maxwell itself says we are not establishing a rule that applies in all cases. They say that expressly it says, well, low-level tribal officials might not be, might not get the benefit of sovereign immunity as in this case. And I'm quoting here, we cannot say this will always be the case
. Kelsal and Miller, the dependence in that case, were engaged in tax collection, which is an integral part of the tribal function. So I'm not sure that case helps you a lot. Oh, I think it helps us a great deal, Your Honor. Why? Tribal government gaming is not just a commercial activity. The casino that's involved here is tribally owned and operated. It's operated under Federal law. Every tribal casino in the country has to comply with the Indian Gaming Regulatory Act of 1988, a Federal statute. And the actions that tribal officials were taking in this case, they were enforcing tribal law. They were enforcing the tribes' gaming ordinance, which was itself approved by the National Indian Gaming Commission. Well, part of the allegations are that they stole their money. So I don't care who it is. If it's the head of the tribe, I mean, are you saying, I mean, it has to pay for the people to be within the scope of lawful authority, right? No, it has to be within the scope of their authority, not within the scope of law. Keep in mind, every assertion is something. So if, no matter what they did, if they kidnapped them and kept them for two weeks, if they stole all their money, you're saying they can do that because the tribal law is it? No, not exactly. What I'm saying is that under this Court's precedence, if tribal officials are acting in their official capacities, which these people were, if they're acting within the scope of their authority, which these people were under the tribal gaming ordinance, and they are enforcing tribal law, which they were, they're entitled to sovereign rule
. That's the rule that Maxwell rejected, right? No. Okay. I don't think that's the rule. Let's suppose we thought that. Then what happens next in the case? I mean, the other really fact-based question here is, were they operating under State law or tribal law for 1983 purposes? I would think that we don't reach that question because it's not one thing. It's not a proper question before us on this non-final appeal. It's a strictly a question over the statute of whether or with a cause of action or wasn't a cause of action. Well, I think you do have the ability to reach that question here. Because we've submitted their, in the record, in the excerpts of record, their substantial evidence submitted on behalf of these tribal defendants, which documents and makes absolutely clear that they were acting under tribal law. How do we have jurisdiction over that question? Is what I'm asking you? Because that information is in front of you as part of this appeal. That's not a reason. I mean, we only have jurisdiction over the quasi-Sombern immunity issue. I think that's a question under 12b1. But if you're not. The question of whether there's been a cause of action stated under Section 1983 is not that kind of a question and not one of which you could have an appeal at this stage in the case
. Is that not true? Well, I guess I'll leave that to your determination. I would point out to you that the lower court cited Evans versus McKay as part of the basis for its decision that we're here on appeal. But you can't appeal of 12b6. I'm sorry, Your Honor. If even if we termed it a 12b6 issue, that's not appealable at this stage. A 12b6 motion would not be appealable. This was only appealable because it was a 12b1 assertion of sovereign immunity. Right. But this question, the question of whether they were operating under State or Federal Law is not a sovereign immunity question. It's a question. I'm asking you, I'm stating this because I want you to give you the chance to respond because it seems to me that the issue of whether that's a question of whether they stated a cause of action under 1983. It's not a sovereign immunity question. I think. But if you tell me otherwise, I will listen. I think they're inexplicably intertwined
. Why is that? They seem to depend on the district court clearly thought they were. The district court cited Evans versus McKay, which is a 1983 case, to support its view that sovereign immunity didn't apply here. That doesn't make them right. And it seems to me that they depend on completely different factual considerations, right? And nothing to do with. The facts, the relevant facts are quite different. The issue, 1983 question is where they are operating under State or Tribal Law, which is a very fine cut factual question and is not related really to the sovereign immunity question. I believe they're intertwined. You may not disagree. But I think they're intertwined because because sovereign immunity would apply equally to a 1983 claim as to any other type of claim, if we've proven the prerequisites for the search in sovereign immunity. It would apply no matter what the claim. It would apply, but not because they were operating in an interstate rather than tribal law. I mean, you could have a statute that allows you to sue for people operating into tribal law. We just don't happen to have one. They want you to have to be operating interstate law. Well, I believe there's ample evidence in the record for this Court to conclude that these tribal officials were, in fact, acting under tribal, exclusively under tribal law
. And I'd ask you, there's nothing, let me say, that there's nothing in the record here that suggests that they were operating under any state law. No state law, no county ordinance has been submitted to the Court to suggest that they were operating under anything other than enforcement of the tribal gaming ordinance. That's the only law that was in effect here, and that's what these, that's what these defendants have stated in their declarations. They were enforcing the tribal gaming ordinance. If there were a judgment entered against the defendants, would the trial pay that judgment? Yes. And also use that such a discretion, right? Well, the judge asked the question, the answer is yes. I mean, they're viewed as, they're, I'm the tribe's attorney. I'm here representing the tribe's interest as well as the, as well as the interest of the defendants. You said there were, if the Court had preceded with this case as a 12-1 case, there was additional evidence you would have presented. What would that evidence have been? We submitted five declarations. No, I'm saying you said you would have submitted evidence. So evidence that you submitted, was there any additional evidence that you would have submitted if given the opportunity to do so? We submitted the evidence. It was ignored by the district court. Everything is, everything we would submit is before you in the excerpt of record. Okay
. If you'd like to reserve some time. Yes. Can I make, can I just make one, one other point here? And I think I've still lined up with a couple minutes. Let me talk about Evans versus McCay, because it's an important case, and we, we talk about it quite a bit in the, in our briefs. The judge cites it as a 12-6, it was a 12-6 case, and in that case, because the complaint alleged that the tribal officials had been acting under color of state law, the, the, the court was bound to accept those allegations as true at the motion to dismiss stage, a 12-6 motion. But then, if you go, if you look at what happens in that case, as it goes through the process, the case gets remanded back to the district court, comes back up to the second, to the ninth circuit, three years later, in 1992, and we've got a completely different method of analysis. The court isn't bound by the face of the complaint. The court isn't looking at just the allegations of the complaint. And the court sets forth what I think is a very simple rule that applies in, that should be applied in this case. And, and the court basically said, if the evidence demonstrates that the tribal officials were acting in their capacity as tribal officials, and were acting to enforce tribal law, then they were not acting under color of state law, and they were immune from a 1983 claim. And I think that's exactly- Sotomayor, and this case is in the posture of the first evidence case, not the second one, right? Well, it shouldn't have been, though. If the court had considered the evidence that it should have under 12v1, it could have made that determination. Sotomayor, I think that is not a 12v1 issue. That's why Evans developed the way it did. Sotomayor, I think that issue is- Sotomayor, I think that is not a 12v1 issue
. I mean, there are two issues here, and that is not a 12v1 issue, is it? Sotomayor, I think it could have been determined on a 12v1 motion, Governor. Now, I'm sorry. Thank you very much. Sotomayor, thank you. Thank you. Good morning, Your Honours. May I please the court, Robert Nersessian, and with me is the assanquets of Nersessian and Sankwitz for the plaintiffs and respondents. Your honor, Judge Beclow, thank you. I think you hit what we were dealing with here. This is Maxwell reconciling the history of this tortured sovereign immunity that was- that has been going back all the way to Evans with respect to subordinate persons within a tribe. Specifically, it dealt with Harden, it dealt with Evans, and it dealt with Avi Casino. That's the body that provides where you might find a conflict, and it reconciles that conflict, and that reconciliation provides that if you show, citing the Evans, joint action. With state officials in a 1983 violation, the employees, and this is separate, and apart from all of this other stuff, the employees who act in concert and conspiracy with the state actors that are providing the state action with themselves not have sovereign immunity that is pledged. But Evans has sovereign immunity, can you say what was about the reach of 1983? That is a wonderful question, and I would say it is both, because it is obvious that sovereign immunity would apply to- And as far as I can tell, it's totally about 1983. Well, it seems to be except that nobody makes- it has regularly been accepted that sovereign immunity would be a defense to a 1983 claim, and within the body of that case, the 1983 claim, which was appropriately pled, and before the court, together with at least the showing of the sovereign resulted in a finding of, no, you don't get dismissed
. So it is both. I don't think the word sovereign immunity are in heaven, but- Okay. Except that you can't get past the denial of the motion to dismiss in Evans without addressing the sovereign immunity issue. But if the court nobody raises it and the court doesn't address it, how can we read it into the case? That is exactly my argument in the defendant's cited authority with respect to Paulson and why it would apply, and I understand that Judge Robinson. And yes, you're right. If it is not in there and was not necessary to the decision, the court should not look at it as presidential. But that doesn't take us away from the fact that they also reconfirmed Maxwell from a sovereign immunity standpoint, the decision in Evans and thusly projecting onto Evans by this circuit, even if it wasn't there in Evans, the sovereign immunity analysis saying you don't get sovereign immunity and a 1983 question is a dual question, one of which is if you show 1983 liability of an individual actor with state action outside of the tribe, outside of the sovereign, then there won't be governmental immunity or sovereign immunity. I wasn't the reason why state action matters in 1983 because the statute says so. Does that's a dual sovereign immunity? Your Honor, you may well, I'm sorry, I was not talking over you, I understand that. That should sense that you have to be acting under color of state laws. That's why we care whether they were acting under color of state law because otherwise you don't have a cause of action. Your Honor, thank you for pointing that out. As I've been preparing for this argument, I, one can't escape the language in Evans that says that this shant be dismissed, okay? But I can't also, I don't have any way to say other than to cite Evans and Maxwell's confirmation of the propriety of Evans that this is a, that 1983 creates some special exception. What I do know though is that 1983 was violated here. Is that issue before us? I don't believe it has to be except that there was. The reality, not that. The we have jurisdiction now. And this was essentially a collateral order appeal because of the quasi-sovereign immunity aspects of this case, over the question whether this is, these were state actors or tribal actors. I think from the record that's before you, construing the complaint in the light most favorable to the plaintiffs that it would be appropriate to decide whether or not state action is alleged. Or the narrow link, do you get to appeal the, does any, could they have appeal the denial of a 12 p6 motion for a failure to state a claim because somebody is not a state actor? Let's say you have a private person in 1983 case and the judge says he's not a state actor. And dismisses yes, then we have appeal and appeal. But that's not what happened here, right? You're right, you're right. I, maybe I'm just being a little too gracious and encompassing because it seems to me that if the complaint is before you, which includes the undisputed, you have evidence before you as well by the first set of affidavits, but the complaint under Schwartz and Ager is still to be taken as true unless it is expressly contradicted by the affidavits and then in that case you have a dispute. I, I see judge, if, if a complaint alleges something on a summary judgment motion or a failure to state a claim motion and the converse says or then affidavits are submitted and those affidavits do not address a given allegation in the complaint under Schwartz and Ager in a number of other cases, those allegations in the complaint are to be construed as true. We don't have, it doesn't have to be re-avered by the respondent. It has to be contradicted by the movement and if it is not contradicted by the movement, then those, those statements are given not only deference there to be assumed to be true in the appeal. The narrow issue here just whether as a matter of law that they are, that they have sovereign immunity, something that I would think I would talk to you on that least here on the allegations of your complaint can't be decided at this stage. So therefore I think I would assume that we should send it back. Well, I would- Sotomayor, the trial judge was wrong in terms of saying, well, the way he had watched. I was going to point this out is even if you accept the arguments that the appellance have made, the remedy in this instance is to send it back for further proceedings and even under the defendant's posture with Evans being resubmitted later, that is the right process
. The reality, not that. The we have jurisdiction now. And this was essentially a collateral order appeal because of the quasi-sovereign immunity aspects of this case, over the question whether this is, these were state actors or tribal actors. I think from the record that's before you, construing the complaint in the light most favorable to the plaintiffs that it would be appropriate to decide whether or not state action is alleged. Or the narrow link, do you get to appeal the, does any, could they have appeal the denial of a 12 p6 motion for a failure to state a claim because somebody is not a state actor? Let's say you have a private person in 1983 case and the judge says he's not a state actor. And dismisses yes, then we have appeal and appeal. But that's not what happened here, right? You're right, you're right. I, maybe I'm just being a little too gracious and encompassing because it seems to me that if the complaint is before you, which includes the undisputed, you have evidence before you as well by the first set of affidavits, but the complaint under Schwartz and Ager is still to be taken as true unless it is expressly contradicted by the affidavits and then in that case you have a dispute. I, I see judge, if, if a complaint alleges something on a summary judgment motion or a failure to state a claim motion and the converse says or then affidavits are submitted and those affidavits do not address a given allegation in the complaint under Schwartz and Ager in a number of other cases, those allegations in the complaint are to be construed as true. We don't have, it doesn't have to be re-avered by the respondent. It has to be contradicted by the movement and if it is not contradicted by the movement, then those, those statements are given not only deference there to be assumed to be true in the appeal. The narrow issue here just whether as a matter of law that they are, that they have sovereign immunity, something that I would think I would talk to you on that least here on the allegations of your complaint can't be decided at this stage. So therefore I think I would assume that we should send it back. Well, I would- Sotomayor, the trial judge was wrong in terms of saying, well, the way he had watched. I was going to point this out is even if you accept the arguments that the appellance have made, the remedy in this instance is to send it back for further proceedings and even under the defendant's posture with Evans being resubmitted later, that is the right process. Additionally here, I don't know if the Court has had an opportunity to see the supplemental authorities, but there is a quasi-published order that has the Court below going forward. And everything we're talking about has been shown to have been true that the word unlawful acts taken against the plaintiffs, that summary judgment, judgment has entered against the people who were alleged to have been acting in concert with the tribal defendants, judgment. That's a rare thing to see a Court enter a summary judgment against police officers, especially en masse, and that's what has happened here at this point. And with all of that being said, certainly it would be premature having-it would be premature to just outright say there is sovereign immunity here. A couple other things I would like to point out. I am gratified that, or I'm happy to hear that, Mr. I'm sorry, I spaced my-Mr. Feldman's representation that the tribe would pay the judgment. We've never asked them to. And I would also point out- The difference between the two. Yes, it does because I'm sorry, Your Honor. That's me doing it again. You anticipate my question? Yes, I am. Does that make a difference in terms of whether or not sovereign immunity applies if the tribe will be satisfying the judgment? The answer to that I would suggest is no, but there is something very similar that would address sovereign immunity. Which would be- The question is, if the tribe is responsible for the verdict, but it is dangerous
. Additionally here, I don't know if the Court has had an opportunity to see the supplemental authorities, but there is a quasi-published order that has the Court below going forward. And everything we're talking about has been shown to have been true that the word unlawful acts taken against the plaintiffs, that summary judgment, judgment has entered against the people who were alleged to have been acting in concert with the tribal defendants, judgment. That's a rare thing to see a Court enter a summary judgment against police officers, especially en masse, and that's what has happened here at this point. And with all of that being said, certainly it would be premature having-it would be premature to just outright say there is sovereign immunity here. A couple other things I would like to point out. I am gratified that, or I'm happy to hear that, Mr. I'm sorry, I spaced my-Mr. Feldman's representation that the tribe would pay the judgment. We've never asked them to. And I would also point out- The difference between the two. Yes, it does because I'm sorry, Your Honor. That's me doing it again. You anticipate my question? Yes, I am. Does that make a difference in terms of whether or not sovereign immunity applies if the tribe will be satisfying the judgment? The answer to that I would suggest is no, but there is something very similar that would address sovereign immunity. Which would be- The question is, if the tribe is responsible for the verdict, but it is dangerous. Okay, see that was two different questions, Your Honor. The first one is, if the tribe is going to be paying the judgment, the second one is, if the tribe is responsible for the judgment. For two different questions, answer the first one. If the tribe is voluntarily going to pay the judgment. Well, thank you, Tribe. I think you're being insane. You have people who work for you, who have gone out there and committed theft, who have committed false imprisonment, who have stolen money from the people who come to your businesses to give you business. And now you as a body politic are going to sit there and say, you know what, this was fine. Even with this summary judgment below, we still have, by that representation, Mr. Feldman saying, this was fine on behalf of his clients. It wasn't fine. Okay, so- So- So the next question is whether or not the tribe is responsible to pay. We're not saying they were. But under the law. Under the law, I believe that there's plenty of case law that says when an employee acts patternally outside the scope of employment, responding at superior will not apply
. Okay, see that was two different questions, Your Honor. The first one is, if the tribe is going to be paying the judgment, the second one is, if the tribe is responsible for the judgment. For two different questions, answer the first one. If the tribe is voluntarily going to pay the judgment. Well, thank you, Tribe. I think you're being insane. You have people who work for you, who have gone out there and committed theft, who have committed false imprisonment, who have stolen money from the people who come to your businesses to give you business. And now you as a body politic are going to sit there and say, you know what, this was fine. Even with this summary judgment below, we still have, by that representation, Mr. Feldman saying, this was fine on behalf of his clients. It wasn't fine. Okay, so- So- So the next question is whether or not the tribe is responsible to pay. We're not saying they were. But under the law. Under the law, I believe that there's plenty of case law that says when an employee acts patternally outside the scope of employment, responding at superior will not apply. And especially in the nature of a 1983 claim, we see the case law that is expansive throughout the entire area of the law that the municipality, unless they have established a policy or practice that has placed these actions outside the discretion of the police officers and they're acting only in accord with that policy in practice. The sovereign in a 1983 action, which is the State or be it the State subdivision, is not liable. There is no claim against them. And in most 1983 cases against individuals, there is indemity by the governmental entity has been documented all over the place. And the R.K. Slough nonetheless is that that's simply irrelevant, whether there's a State and Dendriti or not. And you're absolutely right, Judge Brisson. And I personally, I believe that that is a correct decision as a relevancy, as a relevancy. And I would even take it a step further that perhaps this should be written up more along the perspectives of forgiveness. Six, do you people realize or recognize speaking to the police authorities that to get a judgment a 1983 past qualified immunity means that no reasonable police officer could have done what your police officer did and you're going to stand there and say, you know what, we're going to indemnify somebody who is so ignorant that they committed an intentional tort that no other person in blue that we ever hired would do. They should be hanging these people out to dry. The whole idea that people are not going to become police officers because of the fear of such exposure doesn't make sense. The proper analysis should really be on behalf of these municipalities. We hire smart people
. And especially in the nature of a 1983 claim, we see the case law that is expansive throughout the entire area of the law that the municipality, unless they have established a policy or practice that has placed these actions outside the discretion of the police officers and they're acting only in accord with that policy in practice. The sovereign in a 1983 action, which is the State or be it the State subdivision, is not liable. There is no claim against them. And in most 1983 cases against individuals, there is indemity by the governmental entity has been documented all over the place. And the R.K. Slough nonetheless is that that's simply irrelevant, whether there's a State and Dendriti or not. And you're absolutely right, Judge Brisson. And I personally, I believe that that is a correct decision as a relevancy, as a relevancy. And I would even take it a step further that perhaps this should be written up more along the perspectives of forgiveness. Six, do you people realize or recognize speaking to the police authorities that to get a judgment a 1983 past qualified immunity means that no reasonable police officer could have done what your police officer did and you're going to stand there and say, you know what, we're going to indemnify somebody who is so ignorant that they committed an intentional tort that no other person in blue that we ever hired would do. They should be hanging these people out to dry. The whole idea that people are not going to become police officers because of the fear of such exposure doesn't make sense. The proper analysis should really be on behalf of these municipalities. We hire smart people. We trust them considering the spectrum of what constitutes qualified immunity to know when they are violating clearly established principles of the Constitution. And therefore, we will not be indemnifying. We have no duty to indemnify and you take those actions at your own risk. And you know what? Yeah, maybe the line will move back a little bit. The likelihood of indendentay has an institute to do with the software and immunity question and the answer is generally no. I mean, the likelihood of indemnity is generally yes. No. No. No? Well, if you wanted to be yes. Okay. No. No, I'm saying that from my personal experience. And as far as the other side of it is, I suppose there's a lot of plaintiffs who win judgments who are glad that there is indemnification. Oh. I just said, I'm ecstatic that Mr
. We trust them considering the spectrum of what constitutes qualified immunity to know when they are violating clearly established principles of the Constitution. And therefore, we will not be indemnifying. We have no duty to indemnify and you take those actions at your own risk. And you know what? Yeah, maybe the line will move back a little bit. The likelihood of indendentay has an institute to do with the software and immunity question and the answer is generally no. I mean, the likelihood of indemnity is generally yes. No. No. No? Well, if you wanted to be yes. Okay. No. No, I'm saying that from my personal experience. And as far as the other side of it is, I suppose there's a lot of plaintiffs who win judgments who are glad that there is indemnification. Oh. I just said, I'm ecstatic that Mr. Feldman said that they will be paying. I'm also truly a little bit surprised. I thank you very much for your time and would ask if there's any further questions. No. Thank you. Thank you. We'll give you a minute in the rebuttal. Let me just say a couple of things. I think you have one minute and if you five seconds. Thank you. In our brief, we cite a case called Little versus City of Seattle. I would ask the Court to take a look at that case. I think it shed some light on this situation. It's not a tribal sovereign immunity case. It's a federal sovereign immunity case
. Feldman said that they will be paying. I'm also truly a little bit surprised. I thank you very much for your time and would ask if there's any further questions. No. Thank you. Thank you. We'll give you a minute in the rebuttal. Let me just say a couple of things. I think you have one minute and if you five seconds. Thank you. In our brief, we cite a case called Little versus City of Seattle. I would ask the Court to take a look at that case. I think it shed some light on this situation. It's not a tribal sovereign immunity case. It's a federal sovereign immunity case. A federal investigator was investigating some folks for something. I'm not sure exactly what it was. They claimed that the investigation was poorly handled and that their rights were violated, statutory rights, constitutional rights, all kinds of rights were violated. In that case, ninth circuit case, the Court said the real question here is, was this investigation within the, within the officer's duties? And they said not only was it within his duties, it was his duty. It was his duty, his duty was to investigate. And therefore, the fact that he may have done it poorly makes no difference. If it was within the scope of his authority, he is entitled to sovereign immunity case dismissed. Excuse me. Was that a damages case or an injunction case? Damages or what? Was that a damages case or an injunctive case? Damages, I believe. What stage was that decided? I don't know your honor. I don't know. Let me make one other point about Maxwell. Again, I need to emphasize this. Maxwell clearly says they are not stating a rule. That panel was not stating a rule that would apply in all cases
. A federal investigator was investigating some folks for something. I'm not sure exactly what it was. They claimed that the investigation was poorly handled and that their rights were violated, statutory rights, constitutional rights, all kinds of rights were violated. In that case, ninth circuit case, the Court said the real question here is, was this investigation within the, within the officer's duties? And they said not only was it within his duties, it was his duty. It was his duty, his duty was to investigate. And therefore, the fact that he may have done it poorly makes no difference. If it was within the scope of his authority, he is entitled to sovereign immunity case dismissed. Excuse me. Was that a damages case or an injunction case? Damages or what? Was that a damages case or an injunctive case? Damages, I believe. What stage was that decided? I don't know your honor. I don't know. Let me make one other point about Maxwell. Again, I need to emphasize this. Maxwell clearly says they are not stating a rule. That panel was not stating a rule that would apply in all cases. They said it applied to what they were calling low ranking tribal officers. And they said we cannot say that the rule we're announcing here today will always be the case. They said in every case in which tribal officials are sued individually, we have to, we need to be sensitive to the impact that that suit will have on tribal governmental activities and tribal governmental functions. And I submit to you that that's what we have here. It's very different than paramedics, you know, helping a gunshot victim off the reservation. Isn't that why there need to be more of a factual development here to find out exactly what they were doing and under word circumstances. I mean, what we do know, at least by the complaint, is that they took these people into custody, that they found they weren't breaking any law. They eventually did some, kept their money. Apparently, where used state officials were involved in a rust. Now, how that would be within, or if it was within the scope of their authorized actions, don't we need to know more about what they knew and how they were acting and why they were doing it? Well, you're on a week. Again, I think that all that is intertwined. You've got, in front of you, in the excerpts of records, the declarations were assessed forth all that information, and it's available to you and would have been available to the District Court had the Court reviewed it. But all of those are declarations. Third, they haven't been examined, cross examined, or anything else. It's just their statements
. They said it applied to what they were calling low ranking tribal officers. And they said we cannot say that the rule we're announcing here today will always be the case. They said in every case in which tribal officials are sued individually, we have to, we need to be sensitive to the impact that that suit will have on tribal governmental activities and tribal governmental functions. And I submit to you that that's what we have here. It's very different than paramedics, you know, helping a gunshot victim off the reservation. Isn't that why there need to be more of a factual development here to find out exactly what they were doing and under word circumstances. I mean, what we do know, at least by the complaint, is that they took these people into custody, that they found they weren't breaking any law. They eventually did some, kept their money. Apparently, where used state officials were involved in a rust. Now, how that would be within, or if it was within the scope of their authorized actions, don't we need to know more about what they knew and how they were acting and why they were doing it? Well, you're on a week. Again, I think that all that is intertwined. You've got, in front of you, in the excerpts of records, the declarations were assessed forth all that information, and it's available to you and would have been available to the District Court had the Court reviewed it. But all of those are declarations. Third, they haven't been examined, cross examined, or anything else. It's just their statements. Statements, which are adequate under this Court's precedence to demonstrate that they were acting within the scope of their authority, that they were acting in their official capacities, and that they were enforcing tribal law, and if that is the case, then they were entitled to sovereign immunity. Thank you. Thank you very much. Thank you for your argument. The case is on. Historic versus Garcia is submitted and we are adjourned.
Yes, sir. Good morning, May pleases the Court. My name is Glenn Feldman, appearing on behalf of Tribal Defendants, Carlos Garcia, Lisa Kaiser, and Ferrell Sivall. The district court made three separate but related errors in denying the Tribal Defendants 12v1 motion to dismiss his case on sovereign immunity grounds. First, the Court held that the assertion of sovereign immunity did not raise any jurisdictional issue, and therefore the 12v1 motion was an improper vehicle for raising the sovereign immunity issue. The Court then compounded that error by suespanthe treating the 12v1 motion as if it were a 12v6 motion. All right. Let's say that we agreed with you that this was properly. It's really not your jurisdiction, it's a quasi-jurisstictional, but there seems to be case law allowing it to be determined on the 12v1. Suppose that was all right. But we could still affirm on the merits of the determination, right? With regard to the sovereign immunity. No, we certainly don't think so. Well, you don't think so, but I mean, what I mean is structurally we could. I mean, in other words, we would, an alternative basis for upholding the district records ruling would be, well, there actually was no sovereign immunity here. Well, under 12v1, we are entitled to present evidence to support our jurisdiction, our claim that there is no jurisdiction. We did submit substantial evidence in support of that. But under Maxwell, the standard seems, this was a lawsuit against individuals and there are individual capacity for damages. And as I read Maxwell, there is no sovereign immunity, tribal sovereign immunity, and that circumstance with some narrow exceptions which don't seem to apply here. Well, Maxwell is an interesting case because it seems to fly in the face of- Sotomayor, well, whatever it flies in the face of, it's our case law. It gills with all the other case law. It's comprehensive and reconciles or attempts to reconcile all the other pieces. And it's binding on us. Well, let me give you two reasons why Maxwell doesn't control here. First, let me talk about the substantial factual differences. Maxwell, we have two paramedics employed by a tribal ambulance company who are providing off-services, off-the-reservation, and the services that are providing are just simple medical services that are attending to a gunshot victim. Services have nothing to do with tribal government or tribal functions. That's very different than the case here where we have on-reservation activities by high-level tribal officials and employees, the chief of police, the general mangrove. Kagan, you're still suing the individuals, the individuals for damages coming out of their own pockets, not out of the tribe. And it's not a governance question. It's on the ground question. No, I think it is a governance question, Your Honor. And so I submit to you that Maxwell is inconsistent with the cases like hardened cases like murdered. But that was true. We'd have to go on-pack, is that what you're suggesting? No, no. What I suggest is that Maxwell, what I'm suggesting is that Maxwell is should be restricted to its particular facts. But it doesn't breathe that way. It breathes as stated a very broad general principle, is it not? No, Your Honor. Let me get to my second reason, my second reason. I mean, they're suing individuals for damages. Yes. So at this stage, isn't that the end of it? No. As the hardened versus white modern, Hatchie, they were sued in their individual capacity, merger, certain, sued in their individual capacity, Miller versus Wright sued in their individual capacity. In every one of those cases, the individual were found being protected by tribal sovereign immunity. The reason Maxwell doesn't control here is that Maxwell itself says we are not establishing a rule that applies in all cases. They say that expressly it says, well, low-level tribal officials might not be, might not get the benefit of sovereign immunity as in this case. And I'm quoting here, we cannot say this will always be the case. Kelsal and Miller, the dependence in that case, were engaged in tax collection, which is an integral part of the tribal function. So I'm not sure that case helps you a lot. Oh, I think it helps us a great deal, Your Honor. Why? Tribal government gaming is not just a commercial activity. The casino that's involved here is tribally owned and operated. It's operated under Federal law. Every tribal casino in the country has to comply with the Indian Gaming Regulatory Act of 1988, a Federal statute. And the actions that tribal officials were taking in this case, they were enforcing tribal law. They were enforcing the tribes' gaming ordinance, which was itself approved by the National Indian Gaming Commission. Well, part of the allegations are that they stole their money. So I don't care who it is. If it's the head of the tribe, I mean, are you saying, I mean, it has to pay for the people to be within the scope of lawful authority, right? No, it has to be within the scope of their authority, not within the scope of law. Keep in mind, every assertion is something. So if, no matter what they did, if they kidnapped them and kept them for two weeks, if they stole all their money, you're saying they can do that because the tribal law is it? No, not exactly. What I'm saying is that under this Court's precedence, if tribal officials are acting in their official capacities, which these people were, if they're acting within the scope of their authority, which these people were under the tribal gaming ordinance, and they are enforcing tribal law, which they were, they're entitled to sovereign rule. That's the rule that Maxwell rejected, right? No. Okay. I don't think that's the rule. Let's suppose we thought that. Then what happens next in the case? I mean, the other really fact-based question here is, were they operating under State law or tribal law for 1983 purposes? I would think that we don't reach that question because it's not one thing. It's not a proper question before us on this non-final appeal. It's a strictly a question over the statute of whether or with a cause of action or wasn't a cause of action. Well, I think you do have the ability to reach that question here. Because we've submitted their, in the record, in the excerpts of record, their substantial evidence submitted on behalf of these tribal defendants, which documents and makes absolutely clear that they were acting under tribal law. How do we have jurisdiction over that question? Is what I'm asking you? Because that information is in front of you as part of this appeal. That's not a reason. I mean, we only have jurisdiction over the quasi-Sombern immunity issue. I think that's a question under 12b1. But if you're not. The question of whether there's been a cause of action stated under Section 1983 is not that kind of a question and not one of which you could have an appeal at this stage in the case. Is that not true? Well, I guess I'll leave that to your determination. I would point out to you that the lower court cited Evans versus McKay as part of the basis for its decision that we're here on appeal. But you can't appeal of 12b6. I'm sorry, Your Honor. If even if we termed it a 12b6 issue, that's not appealable at this stage. A 12b6 motion would not be appealable. This was only appealable because it was a 12b1 assertion of sovereign immunity. Right. But this question, the question of whether they were operating under State or Federal Law is not a sovereign immunity question. It's a question. I'm asking you, I'm stating this because I want you to give you the chance to respond because it seems to me that the issue of whether that's a question of whether they stated a cause of action under 1983. It's not a sovereign immunity question. I think. But if you tell me otherwise, I will listen. I think they're inexplicably intertwined. Why is that? They seem to depend on the district court clearly thought they were. The district court cited Evans versus McKay, which is a 1983 case, to support its view that sovereign immunity didn't apply here. That doesn't make them right. And it seems to me that they depend on completely different factual considerations, right? And nothing to do with. The facts, the relevant facts are quite different. The issue, 1983 question is where they are operating under State or Tribal Law, which is a very fine cut factual question and is not related really to the sovereign immunity question. I believe they're intertwined. You may not disagree. But I think they're intertwined because because sovereign immunity would apply equally to a 1983 claim as to any other type of claim, if we've proven the prerequisites for the search in sovereign immunity. It would apply no matter what the claim. It would apply, but not because they were operating in an interstate rather than tribal law. I mean, you could have a statute that allows you to sue for people operating into tribal law. We just don't happen to have one. They want you to have to be operating interstate law. Well, I believe there's ample evidence in the record for this Court to conclude that these tribal officials were, in fact, acting under tribal, exclusively under tribal law. And I'd ask you, there's nothing, let me say, that there's nothing in the record here that suggests that they were operating under any state law. No state law, no county ordinance has been submitted to the Court to suggest that they were operating under anything other than enforcement of the tribal gaming ordinance. That's the only law that was in effect here, and that's what these, that's what these defendants have stated in their declarations. They were enforcing the tribal gaming ordinance. If there were a judgment entered against the defendants, would the trial pay that judgment? Yes. And also use that such a discretion, right? Well, the judge asked the question, the answer is yes. I mean, they're viewed as, they're, I'm the tribe's attorney. I'm here representing the tribe's interest as well as the, as well as the interest of the defendants. You said there were, if the Court had preceded with this case as a 12-1 case, there was additional evidence you would have presented. What would that evidence have been? We submitted five declarations. No, I'm saying you said you would have submitted evidence. So evidence that you submitted, was there any additional evidence that you would have submitted if given the opportunity to do so? We submitted the evidence. It was ignored by the district court. Everything is, everything we would submit is before you in the excerpt of record. Okay. If you'd like to reserve some time. Yes. Can I make, can I just make one, one other point here? And I think I've still lined up with a couple minutes. Let me talk about Evans versus McCay, because it's an important case, and we, we talk about it quite a bit in the, in our briefs. The judge cites it as a 12-6, it was a 12-6 case, and in that case, because the complaint alleged that the tribal officials had been acting under color of state law, the, the, the court was bound to accept those allegations as true at the motion to dismiss stage, a 12-6 motion. But then, if you go, if you look at what happens in that case, as it goes through the process, the case gets remanded back to the district court, comes back up to the second, to the ninth circuit, three years later, in 1992, and we've got a completely different method of analysis. The court isn't bound by the face of the complaint. The court isn't looking at just the allegations of the complaint. And the court sets forth what I think is a very simple rule that applies in, that should be applied in this case. And, and the court basically said, if the evidence demonstrates that the tribal officials were acting in their capacity as tribal officials, and were acting to enforce tribal law, then they were not acting under color of state law, and they were immune from a 1983 claim. And I think that's exactly- Sotomayor, and this case is in the posture of the first evidence case, not the second one, right? Well, it shouldn't have been, though. If the court had considered the evidence that it should have under 12v1, it could have made that determination. Sotomayor, I think that is not a 12v1 issue. That's why Evans developed the way it did. Sotomayor, I think that issue is- Sotomayor, I think that is not a 12v1 issue. I mean, there are two issues here, and that is not a 12v1 issue, is it? Sotomayor, I think it could have been determined on a 12v1 motion, Governor. Now, I'm sorry. Thank you very much. Sotomayor, thank you. Thank you. Good morning, Your Honours. May I please the court, Robert Nersessian, and with me is the assanquets of Nersessian and Sankwitz for the plaintiffs and respondents. Your honor, Judge Beclow, thank you. I think you hit what we were dealing with here. This is Maxwell reconciling the history of this tortured sovereign immunity that was- that has been going back all the way to Evans with respect to subordinate persons within a tribe. Specifically, it dealt with Harden, it dealt with Evans, and it dealt with Avi Casino. That's the body that provides where you might find a conflict, and it reconciles that conflict, and that reconciliation provides that if you show, citing the Evans, joint action. With state officials in a 1983 violation, the employees, and this is separate, and apart from all of this other stuff, the employees who act in concert and conspiracy with the state actors that are providing the state action with themselves not have sovereign immunity that is pledged. But Evans has sovereign immunity, can you say what was about the reach of 1983? That is a wonderful question, and I would say it is both, because it is obvious that sovereign immunity would apply to- And as far as I can tell, it's totally about 1983. Well, it seems to be except that nobody makes- it has regularly been accepted that sovereign immunity would be a defense to a 1983 claim, and within the body of that case, the 1983 claim, which was appropriately pled, and before the court, together with at least the showing of the sovereign resulted in a finding of, no, you don't get dismissed. So it is both. I don't think the word sovereign immunity are in heaven, but- Okay. Except that you can't get past the denial of the motion to dismiss in Evans without addressing the sovereign immunity issue. But if the court nobody raises it and the court doesn't address it, how can we read it into the case? That is exactly my argument in the defendant's cited authority with respect to Paulson and why it would apply, and I understand that Judge Robinson. And yes, you're right. If it is not in there and was not necessary to the decision, the court should not look at it as presidential. But that doesn't take us away from the fact that they also reconfirmed Maxwell from a sovereign immunity standpoint, the decision in Evans and thusly projecting onto Evans by this circuit, even if it wasn't there in Evans, the sovereign immunity analysis saying you don't get sovereign immunity and a 1983 question is a dual question, one of which is if you show 1983 liability of an individual actor with state action outside of the tribe, outside of the sovereign, then there won't be governmental immunity or sovereign immunity. I wasn't the reason why state action matters in 1983 because the statute says so. Does that's a dual sovereign immunity? Your Honor, you may well, I'm sorry, I was not talking over you, I understand that. That should sense that you have to be acting under color of state laws. That's why we care whether they were acting under color of state law because otherwise you don't have a cause of action. Your Honor, thank you for pointing that out. As I've been preparing for this argument, I, one can't escape the language in Evans that says that this shant be dismissed, okay? But I can't also, I don't have any way to say other than to cite Evans and Maxwell's confirmation of the propriety of Evans that this is a, that 1983 creates some special exception. What I do know though is that 1983 was violated here. Is that issue before us? I don't believe it has to be except that there was. The reality, not that. The we have jurisdiction now. And this was essentially a collateral order appeal because of the quasi-sovereign immunity aspects of this case, over the question whether this is, these were state actors or tribal actors. I think from the record that's before you, construing the complaint in the light most favorable to the plaintiffs that it would be appropriate to decide whether or not state action is alleged. Or the narrow link, do you get to appeal the, does any, could they have appeal the denial of a 12 p6 motion for a failure to state a claim because somebody is not a state actor? Let's say you have a private person in 1983 case and the judge says he's not a state actor. And dismisses yes, then we have appeal and appeal. But that's not what happened here, right? You're right, you're right. I, maybe I'm just being a little too gracious and encompassing because it seems to me that if the complaint is before you, which includes the undisputed, you have evidence before you as well by the first set of affidavits, but the complaint under Schwartz and Ager is still to be taken as true unless it is expressly contradicted by the affidavits and then in that case you have a dispute. I, I see judge, if, if a complaint alleges something on a summary judgment motion or a failure to state a claim motion and the converse says or then affidavits are submitted and those affidavits do not address a given allegation in the complaint under Schwartz and Ager in a number of other cases, those allegations in the complaint are to be construed as true. We don't have, it doesn't have to be re-avered by the respondent. It has to be contradicted by the movement and if it is not contradicted by the movement, then those, those statements are given not only deference there to be assumed to be true in the appeal. The narrow issue here just whether as a matter of law that they are, that they have sovereign immunity, something that I would think I would talk to you on that least here on the allegations of your complaint can't be decided at this stage. So therefore I think I would assume that we should send it back. Well, I would- Sotomayor, the trial judge was wrong in terms of saying, well, the way he had watched. I was going to point this out is even if you accept the arguments that the appellance have made, the remedy in this instance is to send it back for further proceedings and even under the defendant's posture with Evans being resubmitted later, that is the right process. Additionally here, I don't know if the Court has had an opportunity to see the supplemental authorities, but there is a quasi-published order that has the Court below going forward. And everything we're talking about has been shown to have been true that the word unlawful acts taken against the plaintiffs, that summary judgment, judgment has entered against the people who were alleged to have been acting in concert with the tribal defendants, judgment. That's a rare thing to see a Court enter a summary judgment against police officers, especially en masse, and that's what has happened here at this point. And with all of that being said, certainly it would be premature having-it would be premature to just outright say there is sovereign immunity here. A couple other things I would like to point out. I am gratified that, or I'm happy to hear that, Mr. I'm sorry, I spaced my-Mr. Feldman's representation that the tribe would pay the judgment. We've never asked them to. And I would also point out- The difference between the two. Yes, it does because I'm sorry, Your Honor. That's me doing it again. You anticipate my question? Yes, I am. Does that make a difference in terms of whether or not sovereign immunity applies if the tribe will be satisfying the judgment? The answer to that I would suggest is no, but there is something very similar that would address sovereign immunity. Which would be- The question is, if the tribe is responsible for the verdict, but it is dangerous. Okay, see that was two different questions, Your Honor. The first one is, if the tribe is going to be paying the judgment, the second one is, if the tribe is responsible for the judgment. For two different questions, answer the first one. If the tribe is voluntarily going to pay the judgment. Well, thank you, Tribe. I think you're being insane. You have people who work for you, who have gone out there and committed theft, who have committed false imprisonment, who have stolen money from the people who come to your businesses to give you business. And now you as a body politic are going to sit there and say, you know what, this was fine. Even with this summary judgment below, we still have, by that representation, Mr. Feldman saying, this was fine on behalf of his clients. It wasn't fine. Okay, so- So- So the next question is whether or not the tribe is responsible to pay. We're not saying they were. But under the law. Under the law, I believe that there's plenty of case law that says when an employee acts patternally outside the scope of employment, responding at superior will not apply. And especially in the nature of a 1983 claim, we see the case law that is expansive throughout the entire area of the law that the municipality, unless they have established a policy or practice that has placed these actions outside the discretion of the police officers and they're acting only in accord with that policy in practice. The sovereign in a 1983 action, which is the State or be it the State subdivision, is not liable. There is no claim against them. And in most 1983 cases against individuals, there is indemity by the governmental entity has been documented all over the place. And the R.K. Slough nonetheless is that that's simply irrelevant, whether there's a State and Dendriti or not. And you're absolutely right, Judge Brisson. And I personally, I believe that that is a correct decision as a relevancy, as a relevancy. And I would even take it a step further that perhaps this should be written up more along the perspectives of forgiveness. Six, do you people realize or recognize speaking to the police authorities that to get a judgment a 1983 past qualified immunity means that no reasonable police officer could have done what your police officer did and you're going to stand there and say, you know what, we're going to indemnify somebody who is so ignorant that they committed an intentional tort that no other person in blue that we ever hired would do. They should be hanging these people out to dry. The whole idea that people are not going to become police officers because of the fear of such exposure doesn't make sense. The proper analysis should really be on behalf of these municipalities. We hire smart people. We trust them considering the spectrum of what constitutes qualified immunity to know when they are violating clearly established principles of the Constitution. And therefore, we will not be indemnifying. We have no duty to indemnify and you take those actions at your own risk. And you know what? Yeah, maybe the line will move back a little bit. The likelihood of indendentay has an institute to do with the software and immunity question and the answer is generally no. I mean, the likelihood of indemnity is generally yes. No. No. No? Well, if you wanted to be yes. Okay. No. No, I'm saying that from my personal experience. And as far as the other side of it is, I suppose there's a lot of plaintiffs who win judgments who are glad that there is indemnification. Oh. I just said, I'm ecstatic that Mr. Feldman said that they will be paying. I'm also truly a little bit surprised. I thank you very much for your time and would ask if there's any further questions. No. Thank you. Thank you. We'll give you a minute in the rebuttal. Let me just say a couple of things. I think you have one minute and if you five seconds. Thank you. In our brief, we cite a case called Little versus City of Seattle. I would ask the Court to take a look at that case. I think it shed some light on this situation. It's not a tribal sovereign immunity case. It's a federal sovereign immunity case. A federal investigator was investigating some folks for something. I'm not sure exactly what it was. They claimed that the investigation was poorly handled and that their rights were violated, statutory rights, constitutional rights, all kinds of rights were violated. In that case, ninth circuit case, the Court said the real question here is, was this investigation within the, within the officer's duties? And they said not only was it within his duties, it was his duty. It was his duty, his duty was to investigate. And therefore, the fact that he may have done it poorly makes no difference. If it was within the scope of his authority, he is entitled to sovereign immunity case dismissed. Excuse me. Was that a damages case or an injunction case? Damages or what? Was that a damages case or an injunctive case? Damages, I believe. What stage was that decided? I don't know your honor. I don't know. Let me make one other point about Maxwell. Again, I need to emphasize this. Maxwell clearly says they are not stating a rule. That panel was not stating a rule that would apply in all cases. They said it applied to what they were calling low ranking tribal officers. And they said we cannot say that the rule we're announcing here today will always be the case. They said in every case in which tribal officials are sued individually, we have to, we need to be sensitive to the impact that that suit will have on tribal governmental activities and tribal governmental functions. And I submit to you that that's what we have here. It's very different than paramedics, you know, helping a gunshot victim off the reservation. Isn't that why there need to be more of a factual development here to find out exactly what they were doing and under word circumstances. I mean, what we do know, at least by the complaint, is that they took these people into custody, that they found they weren't breaking any law. They eventually did some, kept their money. Apparently, where used state officials were involved in a rust. Now, how that would be within, or if it was within the scope of their authorized actions, don't we need to know more about what they knew and how they were acting and why they were doing it? Well, you're on a week. Again, I think that all that is intertwined. You've got, in front of you, in the excerpts of records, the declarations were assessed forth all that information, and it's available to you and would have been available to the District Court had the Court reviewed it. But all of those are declarations. Third, they haven't been examined, cross examined, or anything else. It's just their statements. Statements, which are adequate under this Court's precedence to demonstrate that they were acting within the scope of their authority, that they were acting in their official capacities, and that they were enforcing tribal law, and if that is the case, then they were entitled to sovereign immunity. Thank you. Thank you very much. Thank you for your argument. The case is on. Historic versus Garcia is submitted and we are adjourned