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Stanko v. Oglala Sioux Tribe
United States District Court, D. South Dakota, Western Division
September 14, 2017
RUDY STANKO, a/k/a “Butch” Stanko, Plaintiff,
OGLALA SIOUX TRIBE, aka the Tribe, c/o Chief Charles Yellow Bird; DARWIN LONG, Director of Oglala Sioux Tribe Adult Correctional Facility, individually and in his official capacity; CLAY LANDRY, BIA 9675, individually and in his official capacity as a highway cop; A. GRASER, individually and in his official capacity as a highway cop; DEREK THUNDER HAWK, jail guard, individually and in his official capacity; SHEENA MOUSSEAU, Judge of the Oglala Sioux Tribal Court, individually and in her official capacity; CHARLES MONTILEAUX, Judge of the Oglala Sioux Tribal Court, individually and in his official capacity; ANDRE MILLS, proprietor of Mills Towing, 6 miles north of Porcupine; and Defendants IX through 6X, individually, will be named after discovery, Defendants.
JEFFREY L. VIKEN CHIEF JUDGE.
Rudy Stanko filed a ten-count complaint against the
defendants. (Docket 1). Defendants Oglala Sioux Tribe
(“OST” or the “Tribe”), Darwin Long,
Derek Thunder Hawk, Sheena Mousseau and Charles Montileaux
(jointly the “Individual Tribal Defendants”)
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)
for lack of subject matter jurisdiction or, in the
alternative, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief may be granted. (Docket 6).
Mr. Stanko resists the defendants' motion. (Docket 14).
For the reasons stated below, the defendants' motion to
dismiss is granted.
Tribe is a federally recognized tribe. Wilson v.
Bull, No. CIV. 12-5078, 2014 WL 412328, at *3 (D.S.D.
Feb. 3, 2014). Mr. Long and Mr. Thunder Hawk are officers
serving in the Oglala Sioux Tribe Corrections Department,
which is a department within the tribal government. (Dockets
1 ¶¶ 9 & 12 and 7 at pp. 4-5). At the time of
the filing of the complaint, Ms. Mousseau was an ex-judge and
Mr. Montileaux was a current judge of the Oglala Sioux Tribal
Court system. (Docket 9 ¶¶ 13 & 14 and 7 at p.
5). The Oglala Sioux Tribal Court is a branch of tribal
defendants' asserted grounds for dismissal are summarized
A. Pursuant to Rule 12(b)(1), the court lacks subject matter
jurisdiction over the Tribe or the Individual Tribal
Defendants. This portion of the motion is broken down into
1. OST possesses tribal sovereign immunity and is immune from
2. The doctrine of tribal sovereign immunity extends to the
claims against the Individual Tribal Defendants in their
B. Pursuant to Rule 12(b)(6), the complaint fails to state a
claim upon which relief can be granted. This portion of the
motion is broken down into the following:
1. OST is not a state or Territory for purposes of 42 U.S.C.
2. The Individual Tribal Defendants were not acting under
color of state law as required by 42 U.S.C. § 1983;
3. The complaint's common law claims do not arise under
federal law, but rather tribal law; and
4. The complaint's common law claims do not meet the
diversity jurisdiction requirements of 28 U.S.C. § 1332.
(Dockets 7 & 16). For these reasons the defendants seek
dismissal of the complaint with prejudice. (Docket 6).
assertion of tribal “[s]overeign immunity is a
jurisdictional issue . . . .” Rupp v. Omaha Indian
Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995). If the Tribe
and the Individual Tribal Defendants “possess sovereign
immunity, then the district court [has] no jurisdiction to
hear [plaintiff's claims]. Id. ...