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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Douglas Indian Association v. Central Council of Tlingit and Haida Tribes of Alaska (9/8/2017) sp-7198

Douglas Indian Association v. Central Council of Tlingit and Haida Tribes of Alaska (9/8/2017) sp-7198

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



DOUGLAS  INDIAN  ASSOCIATION,      )  

                                                                 

                                                                  )                                    

                                                                        Supreme Court No. S-16235  

                               Appellant,                         )  

                                                                  )                                                           

                                                                        Superior Court No.  1JU-15-00625 CI  

          v.                                                      )  

                                                                  )                        

                                                                       O P I N I O N  

CENTRAL COUNCIL OF TLINGIT  

                                                                  )  

AND HAIDA INDIAN TRIBES OF                                                                                      

                                                                 

                                                                  

                                                                  )    No. 7198 - September 8, 2017  

ALASKA; RICHARD PETERSON,  

                                                                  

                                                                  )  

individually and in his capacity as  

                                                                  

                                                                  )  

                                                       

President of the Central Council of Tlingi  )
 

                                                                t  

                                                                  )
 

and Haida Indian Tribes of Alaska; and  

                                                              

WILLIAM WARE, individually and in                                 )
 

                                   

his capacity as Tribal Transportation                             )
 

                                                       

Manager of the Central Council of Tlingit   )
 

                                           

and Haida Indian Tribes of Alaska,                                )
 

                                                                  )
 

                               Appellees.                         )
 

                                                                  )
 



                                                                                                          

                    Appeal from the Superior Court of the State of Alaska, First  

                                                                                           

                    Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                         

                    Appearances:            Lael  A.  Harrison,  Faulkner  Banfield,  P.C.,  

                                                                                                             

                    Juneau, for Appellant.  Richard D. Monkman and Kendri M.  

                                                                                                   

                    M. Cesar,  Sonosky, Chambers,  Sachse, Miller  & Munson,  

                                                                                                       

                    LLP, Juneau, for Appellees.  Nicholas Gasca, Tanana Chiefs  

                                                                                                      

                     Conference,  Fairbanks,  for  Amicus  Curiae  Tanana  Chiefs  

                     Conference.  


----------------------- Page 2-----------------------

                                                                                                   

                    Before: Stowers,ChiefJustice, Winfree,Bolger, and Carney,  

                                                                     

                    Justices.  [Maassen, Justice, not participating.]  



                                      

                    BOLGER, Justice.  



I.        INTRODUCTION  



                                                                                                                      

                    Under the doctrine of tribal sovereign immunity, an Indian tribe is immune  



                                                                                                                                   

from suit unless Congress has authorized the suit or the tribe has waived its immunity.  



                                                                                                                        

Relying on this doctrine, the superior court dismissed a complaint by Douglas Indian  



                                                                                                                            

Association against Central Council of Tlingit and Haida Indian Tribes of Alaska and  



                                                                                                                            

two Central Council officials.  Douglas now argues that the superior court's action was  



                                                                                                                      

premature because sovereign immunity is an affirmative defense that should be resolved  



                                                                                                                               

following discovery.  But the federal courts recognize that tribal sovereign immunity is  



                                                                                                                          

a jurisdictional bar that may be asserted at any time, and we agree  with this basic  



                                                                                                                               

principle.  Immunity is a core aspect of tribal sovereignty that deprives our courts of  



                                                                                                                         

jurisdiction when properly asserted.   We therefore affirm the superior court's order  



                        

dismissing the complaint.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                            

                    Douglas alleges the following facts in its complaint.  Both Douglas and  



                                                                                                                           

Central Council are federally recognized Indian tribes located in Juneau. Between 2005  



                                                                                                                        

and 2012, both tribes were eligible to receive tribal transportation funds from the federal  



                                                                                                                         

government.  Central Council formed a consortium to administer these funds on behalf  



                                                                                                                            

of  individual  tribes.             Douglas  accepted  Central  Council's  invitation  to  join  the  



                                                                                                                        

consortium, and the two tribes signed a Memorandum of Agreement in August 2006.  



                                                                                                                           

                    Douglas  attached  the  Agreement  as  an  exhibit  to  its  complaint.                                The  



                                                                                                                   

Agreement provided that upon Douglas's withdrawal from the consortium, Douglas's  



                                                               -2-                                                        7198
 


----------------------- Page 3-----------------------

funds would be administered in accordance with the federal regulations that govern such                                                 



                     1  

withdrawals.                                                                                                                    

                        Both Douglas and Central Council also expressly reserved their sovereign  



                                   

immunity from suit.  



                                                                                                                                          

                      According to Douglas's complaint, the consortium did not undertake any  



                                                                                                                                                 

of Douglas's transportation projects or use any of Douglas's funds for Douglas's benefit.  



                                                                                                                                  

CentralCouncil representatives toldDouglasthat thefundsweremaintained in aseparate  



                                                                                                                                             

savings account and had not been expended. Douglas withdrew from the consortium in  



                                                                                                                                   

January 2012 and asked Central Council to remit Douglas's funds, but Central Council  



                                                                                            

neither remitted the funds nor provided an accounting.  



           B.         Proceedings  



                      In April 2015 Douglas filed suit against Central Council and two of its  

                                                                                                                                           



tribal officials, President Richard Peterson and Tribal Transportation Manager William  

                                                                                                                                  



Ware, in their individual and official capacities.   Douglas sought a declaration that  

                                                                                                                                         



Central Council owed a fiduciary duty to Douglas under a trust or agency theory and  

                                                                                                                                         



requested injunctive relief against the tribal officials "enjoining any action inconsistent  

                                                                                                                            



with the court's declaratory judgment."  Douglas also sought specific performance and  

                                                                                                                                          



damagesfromCentralCouncil. Nowhere in its complaint did Douglas allegethat Central  

                                                                                                                                    



Council had waived its sovereign immunity or Congress had abrogated it.   Nor did  

                                                                                                                                          



Douglas make any allegations about Peterson and Ware other than to state their names  

                                                                                                                                     



and titles.  

                  



                      Central Council resisted Douglas's attempts to engage in discovery and  

                                                                                                                                         



filed a motion to dismiss for lack of subject matter jurisdiction under Alaska Civil  

                                                                                                                                       



           1          See  25 C.F.R.  1000.32-.35, .253 (2017).   The regulations provide a  

                                                                                                                                             

federal administrative process for resolving disputes between the consortium and a  

                                                                                                                                             

withdrawing tribe.   25 C.F.R.  1000.34.   These regulations do not provide for any  

                                                                                                                                         

abrogation or waiver of sovereign immunity.  

                                                          



                                                                     -3-                                                                7198
 


----------------------- Page 4-----------------------

 Rule   12(b)(1),   asserting   tribal  sovereign   immunity.     Douglas   opposed   the   motion,  



 arguing that sovereign immunity is an affirmative defense that can be raised only after                                                                        



 discovery in an Alaska Civil Rule 56 motion for summary judgment, not a jurisdictional                                                                                      



bar that can be raised via Rule 12(b)(1); that it was at least entitled to jurisdictional                                                                                     



 discovery; and that sovereign immunity did not protect the tribal officials from suit.                                                                                                                  



                                The   superior   court   granted  Central   Council's   motion   to   dismiss,   and  



 Douglas appeals.                          Tanana Chiefs Conference filed an amicus curiae brief in support of                                                                                           



 Central Council's position.                                       



 III.            STANDARD OF REVIEW                          



                                                                                                                                                              2  

                                We review issues of                                  sovereign   immunity   de novo.                                                                       

                                                                                                                                                                    We also  "review  



                                                                                                                                                                           

 de novo a superior court's decision to dismiss a complaint for lack of subject matter  



                                3  

                                                                                                                                                                                                     

jurisdiction."                       "In exercising our independent judgment, we will adopt the rule of law  



                                                                                                                                                           4  

                                                                                                                                        

 that is most persuasive in light of precedent, reason, and policy." 



                                                                                                                                                                                                        

                                "We  review  the  denial  of  a  motion  to  compel  discovery  for  abuse  of  



                            5  

 discretion."                                                                                                                                                                       

                                 "An abuse of discretion occurs when [a decision] is 'arbitrary, capricious,  



                                                                                                                               6  

                                                                                                                             

 manifestly unreasonable, or improperly motivated.' " 



                2               McCrary  v.  Ivanof  Bay   Vill.,  265  P.3d  337,  339  (Alaska  2011).  



                3               Healy  Lake   Vill.  v.  Mt.  McKinley  Bank,  322  P.3d  866,  871  (Alaska  2014).  



                4               Id .  



                5               Coulson  v.  Marsh  &  McLennan,  Inc.,  973  P.2d  1142,  1146  (Alaska  1999)  



 (citing  Stone  v.  Int'l  Marine  Carriers,  Inc.,  918  P.2d  551,  554  (Alaska   1996)).  



                6               Price  v.  Unisea,  Inc.,  289  P.3d  914,  918  (Alaska  2012)  (quoting  Okagawa  



 v.  Yaple,  234  P.3d   1278,   1280  (Alaska  2010)).  



                                                                                                    -4-                                                                                             7198
 


----------------------- Page 5-----------------------

IV.       DISCUSSION  



                    Douglas renews its arguments on appeal.  First, Douglas argues that under  

                                                                                                                           



Alaska law, tribal sovereign immunity, like state sovereign immunity, is an affirmative  

                                                                                                                   



defense rather than a jurisdictional bar, meaning that it should be "raised in a Rule 56  

                                                                                                                                



motion for summary judgment after discovery" rather than a Rule 12(b)(1) motion to  

                                                                                                                                 



dismiss.         Second,  Douglas  argues  that  even  if  tribal  sovereign  immunity  is  a  

                                                                                                                                 



jurisdictional  bar,  the  superior  court  should  have  granted  Douglas's  request  for  

                                                                                                                              



jurisdictional discovery as to whether Central Council may have waived its sovereign  

                                                                                                                     



immunity or whether the tribal officials may have acted ultra vires.  Finally, Douglas  

                                                                                                                       



argues that even if Central Council is protected by sovereign immunity, Douglas should  

                                                                                                                          



still be permitted to sue Peterson and Ware, the two tribal officials, for declaratory and  

                                                                                                                              



injunctive relief.  

                           



          A.         Tribal Sovereign Immunity Is A Jurisdictional Bar.  

                                                                                                  



                     The parties do not dispute that Central Council is a federally recognized  

                                                                                                                   



tribe, that federally recognized tribes are entitled to tribal sovereign immunity, and that  

                                                                                                                              



under federal law, tribal sovereign immunity may be raised prior to discovery in a  

                                                                                                                                  



Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.  Their dispute is  

                                                                                                                                 



whether Alaska should follow this federal rule.  For the reasons discussed below, we  

                                                                                                                    



hold that under Alaska law, tribal sovereign immunity is a jurisdictional bar that may be  

                                                                                                                                



invoked by a sovereign defendant in a Rule 12(b)(1) motion to dismiss.  

                                                                                                 



                    Under the doctrine of tribal sovereign immunity, an Indian tribe is immune  

                                                                                                                        

from suit unless Congress has authorized the suit or the tribe has waived its immunity.7  

                                                                                                                                     



This common law immunity is "[a]mong the core aspects of sovereignty" possessed by  

                                                                                                                                



          7         Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).  

                                                                                                                  



                                                                -5-                                                            7198  


----------------------- Page 6-----------------------

                                                                                                                                    8  

tribes and "traditionally enjoyed by sovereign powers."                                                                                 In  Michigan v. Bay Mills Indian                            



Community, the U.S. Supreme Court recently reaffirmed that it has "time and again                                                                                                                     



treated the 'doctrine of tribal immunity [as] settled law' and dismissed any suit against                                                                                                         

a tribe absent congressional authorization (or a waiver)."                                                                                 9  



                                 "[T]ribal  immunity  'is  a  matter  of  federal  law  and  is  not  subject  to  

                                                                                                                                                                                         

diminution by the States.' "10                                               We have long held that federally recognized tribes in  

                                                                                                                                                                                                              

Alaska are sovereign entities entitled to tribal sovereign immunity in Alaska state court.11  

                                                                                                                                                                                                                      



We have explained that this immunity is "motivated in significant part by the need to  

                                                                                                                                                                                                              

ensure that tribal assets are used as the tribe wishes, without threat from litigation."12  We  

                                                                                                                                                                                                           



have thus affirmed a superior court's dismissal of a suit against an Alaska Native village  

                                                                                                                                                                                                   



                8               Michigan v. Bay Mills Indian Cmty.                                                    , 134 S. Ct. 2024, 2030 (2014) (quoting                                  



Santa Clara Pueblo v. Martinez                                                , 436 U.S. 49, 58 (1978)).                  



                9               Id. at 2030-31 (alteration in original) (quoting Kiowa, 523 U.S. at 756).  

                                                                                                                                                                                                   



                10              Id. at 2031 (quoting Kiowa, 523 U.S. at 756); see also Atkinson v. Haldane,  

                                                                                                                                                                                             

569 P.2d 151, 163 (Alaska 1977) ("Because of the supremacy of federal law, we are  

                                                                                                                                                                                                            

bound to recognize the doctrine of tribal sovereign immunity . . . .").  

                                                                                                                                                             



                11               See Atkinson, 569 P.2d at 162-63.  

                                                                                                 



                12              Runyon ex rel. B.R. v. Ass'n of Vill. Council Presidents, 84 P.3d 437, 440  

                                                                                                                                                                                                          

(Alaska 2004) (citing Native Vill. of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 32,  

                                                                                                                                                                                                            

41 n.24 (Alaska 1988); Atkinson , 569 P.2d at 160).  

                                                                                                                



                                                                                                      -6-                                                                                                7198
 


----------------------- Page 7-----------------------

when the village appeared on the U.S. Department of the Interior's list of federally                                                                                              

recognized tribes and raised tribal sovereign immunity as a defense.                                                                                        13  



                               But we have deferred the question "whether a tribe's sovereign immunity  

                                                                                                                                                                                

                                                                                                                                 14   Although the U.S. Supreme  

is merely an affirmative defense or a bar to jurisdiction."                                                                                                                       

                                                                                                   



Court has not addressed this question directly, many federal circuit courts have indicated  

                                                                                                                                                                                  



that tribal sovereign immunity is properly invoked as a jurisdictional bar under the  

                                                                                                                                                                                               

federal version15  of Rule 12(b)(1).16                                                  Douglas nonetheless argues that Alaska should  

                                                                                                                                                                                       



follow  a  different  rule.                                  Douglas  asks  us  to  treat  tribal  sovereign  immunity  as  an  

                                                                                                                                                                                         



                13            McCrary v. Ivanof Bay Vill.                                      , 265 P.3d 337, 339, 342 (Alaska 2011).                                                       See  



also   John   v.   Baker,   982   P.2d   738,   750   (Alaska   1999)   (deferring   to   the   federal  

government in recognizing the sovereignty of tribes who appear on the federal list);                                                                                     

25 U.S.C.A.  5130, 5131 (West Supp. 2017) (authorizing annual publication of the                                                                                                             

list); Indian Entities Recognized and Eligible To Receive Services From the United                                                                                                    

 States Bureau of Indian Affairs, 82 Fed. Reg. 4,915 (Jan. 17, 2017).                                                                        



                14            McCrary, 265 P.3d at 342 n.36 (citing Sea Hawk Seafoods, Inc. v. State,  

                                                                                                                                                                                          

215 P.3d 333, 339 (Alaska 2009); Kiowa, 523 U.S. at 755-56; Puyallup Tribe, Inc. v.  

                                                                                                                                                                                                   

Dep't of Game of the State of Wash., 433 U.S. 165, 172 (1977)).  

                                                                                                                                  



                15             Under both the Alaska and federal rules of civil procedure, a party may  

                                                                                                                                                                                            

assert the defense of lack of subject matter jurisdiction by motion before serving a  

                                                                                                                                                                                

responsive pleading.  Alaska. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(1).  

                                                                                                                                                       



                16             See, e.g., Alabama v. PCI Gaming Auth. , 801 F.3d 1278, 1286-87(11th Cir.  

                                                                                                                                                                                               

2015); Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Memphis Biofuels, LLC  

                                                                                                                                                

v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 919-20 (6th Cir. 2009); Miner Elec., Inc.  

                                                                                                                                                                                              

v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007); Garcia v. Akwesasne  

                                                                                                                                                                              

Hous. Auth., 268 F.3d 76, 78, 84 (2d Cir. 2001); Hagen v. Sisseton-Wahpeton Cmty.  

                                                                                                                                                                                         

 Coll., 205 F.3d 1040, 1043 (8th Cir. 2000).  But see Meyers v. Oneida Tribe of Indians  

                                                                                                                                                                                     

of  Wis.,  836  F.3d  818,  820  (7th  Cir.  2016),  cert.  denied,  137  S.  Ct.  1331  (2017)  

                                                                                                                                                                                      

(endorsing the district court's conversion of a tribe's Rule 12(b)(1) motion to dismiss for  

                                                                                                                                                                                                

lack of jurisdiction to a Rule 12(b)(6) motion to dismiss for failure to state a claim  

                                                                                                                                                                                         

because "the question of sovereign immunity is not jurisdictional").  

                                                                                                                        



                                                                                                -7-                                                                                         7198
 


----------------------- Page 8-----------------------

affirmative defense "properly raised in a Rule 56 motion for summary judgment after                                                                                                                  



                            17  

discovery."                      



                                                                                                                                                                                                             18  

                                Douglas relies primarily on our decision in Sea Hawk Seafoods v. State.    

                                                                                                                                                                                               



                                                                                                                                                                                      

In  Sea  Hawk  Seafoods,  a  fish  processor  sued  the  State  of  Alaska  for  fraudulent  

                                                                    19     After almost ten years of litigation, the State raised the  

                                                                                                                                                                                                         

conveyance and conspiracy. 

defense of sovereign immunity.20                                                       We rejected the State's argument that sovereign  

                                                                                                                                                                                        



immunity was a jurisdictional bar and determined that "the State's claim of sovereign  

                                                                                                                                                                                         

immunity is properly characterized as an affirmative defense."21                                                                                                   We explained that  

                                                                                                                                                                                                       



sovereign immunity is " 'an avoidance' under [Alaska] Civil Rule 8(c)" because, like an  

                                                                                                                                                                                                           



avoidance, "[s]overeign immunity . . . bars a person from bringing a claim against the  

                                                                                                                                                                                                         



State and plaintiffs are not required to show that they may sue the State in order to  

                                                                                                                                                                                                           

                                                               22  We concluded that the proper inquiry for determining if the  

proceed with their claims."                                                                                                                                                                             

                                             



                17              Douglas apparently suggests that an affirmative defense can be decided                                                                                       



only after discovery.  This is inaccurate.  Affirmative defenses may be raised in a pre-                                                                                    

answer motion under Civil Rule 12(b)(6) as long as the defense "clearly appear[s] on the                                                                                                                  

face of the pleading."                                  Martin v. Mears                            , 602 P.2d 421, 428 (Alaska 1979) (quoting                                              

        HARLES  ALAN  WRIGHT  & A                                         RTHUR  R. M                   ILLER, F           EDERAL  PRACTICE AND                                    PROCEDURE  

5 C 

 1357, at 605-06 (1969 & Supp. 1979)).                                                                  We note that Central Council's immunity                                         

     

clearly appears on the face of Douglas's complaint, which states that "[t]he defendant                                                                                                   

Central Council . . . is a federally recognized Indian tribe" and does not allege that                                                                                                                 

Congress has authorized Douglas's suit or that Central Council has waived its immunity.                                                                                                 



                18              215 P.3d 333 (Alaska 2009).  

                                                                                                        



                19              Id. at 334-35.  

                                              



                20              Id. at 334.  

                                              



                21              Id. at 338-39.  

                                              



                22              Id. (footnotes omitted).  

                                                                   



                                                                                                     -8-                                                                                              7198
 


----------------------- Page 9-----------------------

State had waived its immunity was "whether the adverse party is prejudiced by the                                                                             

moving party's delay in raising the defense."                                        23  



                         Douglas argues that Sea Hawk Seafoods  states a general rule of Alaska  

                                                                                                                                                       



procedure that applies to all forms of sovereign immunity, including tribal sovereign  

                                                                                                                                                 



immunity. Wedisagree. Douglas minimizes the"few, limited, distinctions between state  

                                                                                                                                                            



and tribal sovereign immunity" as relating primarily to the states' participation in the  

                                                                                                                                                              



Constitutional Convention.  But Douglas ignores the specific situation in Alaska:  Our  

                                                                                                      

state constitution expressly provides for suits against the State.24  We cited this provision  

                                                                                                                                                   



at  the  beginning  of  our  discussion  in  Sea  Hawk  Seafoods,  noting  that  criticism of  

                                                                                                                                                                

sovereign immunity led some states to "consent[] to be sued under certain conditions."25  

                                                                                                                                                                      



We have thus stated that in claims against the State, "liability is the rule, immunity the  

                                                                                                                                                              

                      26  and we have placed the burden of showing a presumption of immunity on  

exception,"                                                                                                                                                     

a state instrumentality wishing to invoke it.27                                       Our statements describing the contours of  

                                                                                                                                                                



Alaska's sovereign immunity under Alaska state laware informed by state constitutional  

                                                                                                                                           



             23          Id.  at 340 (quoting                Pickle v. Bd. of Cty. Comm'rs of Cty. of Platte                                     , 764 P.2d     



262, 264 (Wyo. 1988)).          



             24          Alaska Const. art. II,  21 ("The legislature shall establish procedures for  

                                                                                                                                                               

suits against the State.").  

                                



             25          Sea Hawk Seafoods, 215 P.3d at 336-37 (citing State v. ZIA, Inc., 556 P.2d  

                                                                                                                                                            

 1257, 1260 (Alaska 1976)).  

                                       



             26          Kinegak v. State, Dep't of Corr., 129 P.3d 887, 889 (Alaska 2006) (quoting  

                                                                                                                                                     

Native Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 49 (Alaska 2004)); see also Sea  

                                                                                                                                                              

Hawk Seafoods, 215 P.3d at 337 ("Presently, the general rule in Alaska is that the  

                                                                                                                                                              

government is liable for its wrongs.").  

                                                     



             27          Alaska R.R. Corp. , 87 P.3d at 49.  

                                                                                   



                                                                               -9-                                                                         7198
 


----------------------- Page 10-----------------------

underpinnings and policies that are not present when analyzing the federal doctrine of                                                     



tribal sovereign immunity.     



                         We instead take guidance from federal law and the Ninth Circuit's analysis                                              

                                     28    The Pistor  court recognized that subject matter jurisdiction is  

in  Pistor v. Garcia                .                                                                                                                       



traditionally understood to refer to "the courts' statutory or constitutional power to  

                                                                                                                                                           

 adjudicate the case."29  When the court lacks subject matter jurisdiction, " 'the court must  

                                                                                                                                                       

 dismiss  the  complaint,'  sua  sponte  if  necessary."30                                          "Sovereign  immunity's  'quasi- 

                                                                                                                                                  



jurisdictional . .  .  nature,'  by  contrast,  means that '[i]t may be forfeited  where the  

                                                                                                                                                         

                                                                    31    But even though "sovereign immunity is not  

 [sovereign] fails to assert it . . . .' " 

                                                                                                                                                         



 'jurisdictional in the sense that it must be raised and decided by this Court on its own  

                                                                                                                                                       

motion,' " it is jurisdictional "in the sense that it 'may be asserted at any time.' "32  

                                                                                                                                                                 



             28          791 F.3d 1104 (9th Cir. 2015).               



             29          Id. at 1110 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161  

                                                                                                                                                        

 (2010)).  



             30          Id. at 1111 (quoting Leeson v. Transamerica Disability Income Plan, 671  

                                                                                                                                                        

F.3d 969, 975 n.12 (9th Cir. 2012));  see also Alaska R. Civ. P. 12(h)(3) ("Whenever it  

                                                                                                                                                             

 appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the  

                                                                                                                                                         

 subject matter the court shall dismiss the action.").  

                                                                             



             31          Id. (alterations in original) (quoting In re Bliemeister, 296 F.3d 858, 861  

                                                                                                                                                        

 (9th Cir. 2002)).  

                  



             32          Id . (first quoting Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 515  

                                                                                                                                                        

n.19 (1982); and then quoting Mitchell v. Franchise Tax Bd., 209 F.3d 1111, 1117 (9th  

                                                                                                                                                        

 Cir. 2002)).   While a waiver of tribal sovereign immunity may not be implied, we  

                                                                                                                                                         

 observe that a tribe's litigation conduct may sometimes be construed as a waiver of  

                                                                                                                                                           

immunity.  See generally Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d  

                                                                                                                                                      

 1011, 1017-18 (9th Cir. 2016) (comparing cases).   We interpret the Ninth Circuit to  

                                                                                                                                                           

mean that the tribe may raise its immunity at any time, at which point the court would  

                                                                                                      

 consider whether the tribe has "clearly and unequivocally expressed its intent to waive  

                                                                                                                                                    

                                                                                                                                      (continued...)  



                                                                            -10-                                                                      7198
 


----------------------- Page 11-----------------------

 "Although sovereign immunityis                           onlyquasi-jurisdictionalin                    nature, Rule12(b)(1) is                still  

 a proper vehicle for invoking sovereign immunity from suit."                                             33  



                        We find this analysis persuasive with respect to tribal sovereign immunity,  

                                                                                                                                     



 as well as consistent with our precedent.  Tribal sovereign immunity may be termed  

                                                                                                                                          



 "quasi-jurisdictional" in Alaska because, as we have previously recognized, "subject  

                                                                                                                                        



 matter jurisdiction is not waivable and can even be raised at a very late stage in the  

                                                                                                                                                 

 litigation,"34         but  "an  Indian  tribe  may  waive  its  sovereign  immunity"  from  suit.35  

                                                                                                                                                        



 Nonetheless, when a tribal defendant invokes sovereign immunity in an appropriate  

                                                                                                                                  



 manner  and  the  tribe  is  entitled  to  such  immunity,  our  courts  "may  not  exercise  

                                                                                                                                       

                        36  Because tribal sovereign immunity serves as a jurisdictional bar under  

jurisdiction ."                                                                                                                       



 federal law, we follow the Ninth Circuit in concluding that a motion to dismiss under  

                                                                                                                              



            32          (...continued)
 
 



 its  immunity  from  suit"  based  on  its  litigation  conduct.   Id.  at   1017.
 
 



            33          Pistor,  791  F.3d  at   1111  (citations  omitted).  



            34          Hydaburg  Coop.  Ass'n  v.  Hydaburg  Fisheries,  925  P.2d  246,  249  (Alaska  



 1996).   



            35          Native  Vill. of Eyak v. GC Contractors, 658 P.2d 756, 759 (Alaska 1983).  

                                                                                                                                                        



            36          Puyallup Tribe, Inc. v. Dep't of Game of the State of Wash., 433 U.S. 165,  

                                                                                                                                               

 172 (1977)  (emphasis  added).                            Applying  a  state  affirmative  defense  rule  to  tribal  

                                                                                                                                            

 sovereign immunity could also lead to a conflict with  federal law when  determining  

                                                                                                                                 

 whether a tribe is entitled to immunity.  Compare Sea Hawk Seafoods, Inc. v. State, 215  

                                                                                                                                                

 P.3d 333, 341 (Alaska 2009) (analysis "turns on whether the plaintiff is prejudiced by  

 the [sovereign's] late assertion of the defense"), with Bodi, 832 F.3d at 1017 (question  

                                                                                                                                      

 is "whether  . . . the Tribe clearly and unequivocally  expressed its intent to waive its  

                                                                                                                                                  

 immunity from suit").  

                             



                                                                        -11-                                                                  7198
 


----------------------- Page 12-----------------------

Rule 12(b)(1) for lack of subject matter jurisdiction is "a proper vehicle for invoking                                                         

sovereign immunity from suit."                             37  



                         We respect Douglas's position as itself a tribal sovereign, which "believes  

                                                                                                                                                



that  the  transparency  and  accountability  that  come  with  providing  discovery  are  

                                                                                                                                                          



consistent with the high standards it associates with sovereignty."  But we are mindful  

                                                                                                                                     



of the concerns raised by amicus Tanana Chiefs Conference, representing rural tribes in  

                                                                                                                                                              



interior Alaska, that "even 'limited' discovery could be financially ruinous for many  

                                                                                                                                                       



tribes in [the Conference's] region" as funds are shifted from critical programs and rural  

                                                                                                                                                         



village economies to urban lawyers in Anchorage, Fairbanks, or Juneau.  We find the  

                                                                                                                                                           



latter consideration more compelling given that "protecting tribal assets has long been  

                                                                                                                            

held crucial to the advancement of the federal policies advanced by immunity."38                                                                        And  

                                                                                                                                                         



we observe that even with a jurisdictional bar, a tribe can still choose to waive its own  

                                                                                                                                       



immunity  for  transparency  and  accountability  reasons  or  protect  its  interests  when  

                                                                                                                                                      



entering into a contract with another tribe by negotiating a waiver of the other tribe's  

                                                                                                                                                     

                                                                                                          39   But the "federal policies of  

immunity or some other procedure for resolving disputes.                                                                                                      

                                                                                           

tribal self determination, economic development, and cultural autonomy"40  are better  

                                                                                                                                                      



served  by  leaving  these  decisions  up  to  the  tribes.                                            We  hold  that  tribal  sovereign  

                                                                                                                                  



            37           Pistor, 791 F.3d at 1111.           



            38           Runyon ex rel. B.R. v. Ass'n of Vill. Council Presidents                                              , 84 P.3d 437, 440         



                

(Alaska 2004).  



            39           For  instance,  Douglas  seems  to  have  access  to  an  alternative  federal  

                                                                                                                                                   

administrative remedy pursuant to the Agreement.  See supra note 1 and accompanying  

                                                                                                                                      

text.  



            40           Runyon, 84 P.3d at 440 (quoting Am. Indian Agric. Credit Consortium, Inc.  

                                                                                                                                                           

v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985)).  

                                                                                                                  



                                                                             -12-                                                                        7198
 


----------------------- Page 13-----------------------

immunity is a jurisdictional bar properly raised in a Rule 12(b)(1) motion to dismiss for                                                                                                                                                                                                                                                                                                                                                                        



lack of subject matter jurisdiction.                                                                                  



                                    B.	 	                               The   Superior   Court   Did   Not   Abuse   Its   Discretion   By   Denying  

                                                                        Discovery To Douglas.                                                         



                                                                        Douglasarguesthateveniftribalsovereign                                                                                                                                                                                            immunity is ajurisdictional bar,                                                                                                                  



the superior court erred by denying Douglas jurisdictional discovery on two issues:                                                                                                                                                                                                                                                                                                                                                                                                   



(1)  whether Central Council may have waived its sovereign immunity and (2) whether                                                                                                                                                                                                                                                                                                                                                 



the tribal officials may have acted                                                                                                                                                    ultra vires                                                 .   We conclude that the superior court did                                                                                                                                                                 



not abuse its discretion by denying discovery to Douglas.                                                                                                                                                                                                           



                                                                        The superior court found that Douglas "presented no substantive evidence                                                                                                                                                                                                                                                                                 



as to waiver" and "alleged no specific                                                                                                                                                                ultra vires                                             actions or continued violation of federal                                                                                                                                     



law on the part of [the tribal officials]."                                                                                                                                                                           These statements are supported by the record.                                                                                                                                                                                                                   



Douglas   did   not   allege   any   waiver   in   its   complaint;   in   fact,   Douglas  attached   the  



Agreementexpressly                                                                                                reserving Central Council's immunity. Nordid                                                                                                                                                                                                             Douglasallegeany                                                                   



ultra vires                                              actions on the part of Peterson and Ware.                                                                                                                                                                                          



                                                                        In its opposition to the motion to dismiss, Douglas described several broad                                                                                                                                                                                                                                                                                               



categories of documents "that                                                                                                                                   may  contain a waiver of sovereign immunity" (emphasis                                                                                                                                                                                                    



added), but although Douglas provided theories for how these documents                                                                                                                                                                                                                                                                                                                                 could  contain  

                                                                                                                                                                                                                                                                                                                                                                                                                                      41             As to  

evidence of waiver, Douglas did not allege any facts to show why they would.                                                                                                                                                                                                                                                                                                                                                                                          



                                    41                                  Douglas listed three types of documents: (1) Central Council's agreements                                                                                                                                                                                                                                                                  



and correspondence with the federal agencies who manage tribal transportation funds;                                                                                                                                                                                                                                                                            

(2)  Central Council's internal resolutions regarding the consortium and these funds; and                                                                                                                                                                                                                                                                                                                                                                    

(3)  Central Council's insurance coverage. But it is not clear, for instance, why a federal                                                                                                                                                                                                                                                                                                                                          

agency   would   negotiate   a   third-party   waiver   for   Douglas   when   federal   regulations  

already provide an administrative process for the disposition of funds after withdrawal,                                                                                                                                                                                                                                                                                                                        

as referenced in the Agreement's termination clause. Nor is it clear why Central Council                                                                                                                                                                                                                                                                                                                                              

would pass a resolution waiving its immunity as to Douglas without informing Douglas,                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                                                          (continued...)  



                                                                                                                                                                                                                              -13-	                                                                                                                                                                                                                       7198
 


----------------------- Page 14-----------------------

 the tribal officials, Douglas did not even offer theories; Douglas stated only that the issue                                                                                                                                                    



 is "intensely factual" without alleging any specific actions taken by the officials or any                                                                                                                                                           



 specific documents that would resolve"thequestionofwhether [thetribal officials] acted                                                                                                                                                           



 inside or outside the scope of their authority from the tribe."                                                                                                                     



                                        Douglas argues that much of its requested discovery "would have been                                                                                                                                      



 produced in routine[AlaskaCivil]Rule26                                                                                     initial disclosures," but this begs the question;                                                         



 Douglas   was   not   entitled   to   Rule   26   disclosures   until   the   court   determined  it  had  



jurisdiction to order such disclosures.                                                                            Jurisdictional discovery may be appropriate in                                                                                         

                                                                                                                                                     42  but the plaintiff must specifically  

 some cases involving tribal sovereign immunity,                                                                                                                                                                              



 indicate "what facts additional discovery could produce that would affect [the court's]  

                                                                                                                                                                                                                            

jurisdictional  analysis."43                                                       Here,  Douglas  indicated  no  facts  beyond  its  conclusory  

                                                                                                                                                                                                                    



 assertions of possible waiver and possible ultra vires actions. The superior court did not  

                                                                                                                                                                                                                                                       



 abuse its discretion by denying discovery on these issues.  

                                                                                                                                                        



                    41                  (...continued)  



                                                                                                                                        

 or why insurance would have any bearing on immunity.  



                    42                  See, e.g.                ,  Runyon, 84 P.3d at 440-41 (describing factors used to determine                                                                                                



 whether an organization "is an arm of a tribe for sovereign immunity purposes").                                                                                                                              



                    43                  Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 872 n.21 (Alaska  

                                                                                                                                                                                                                                         

 2014) (alteration in original) (quoting  Cheyenne Arapaho Tribes of Okla. v. United  

                                                                                                                                                                                                                                            

 States, 558 F.3d 592, 596 (D.C. Cir. 2009)).  See also id. at 872-73 (upholding superior  

                                                                                                                                                                                                                                        

 court's denial of further discovery "[b]ecause none of the requested discovery would  

                                                                                                                                                                                                                                             

 have led to information relevant to thejurisdictional analysis"); Price v. Unisea, Inc., 289  

                                                                                                                                                                                                                                                      

 P.3d 914, 923 (Alaska 2012) ("Since further discovery would not have changed the  

                                                                                                                                                                                                                                                       

 superior court's immunity analysis, it was properly denied by the superior court.").  

                                                                                                                                                                                                                              



                                                                                                                           -14-                                                                                                                     7198
 


----------------------- Page 15-----------------------

             C.	 	       The   Tribal   Officials   In   This  Case   Are   Protected   From   Suit   By  

                         Sovereign Immunity.   



                         Finally, Douglas argues that even if Central Council is protected by tribal                                                  



sovereign immunity, Peterson and Ware are not immune from suit.                                                             Douglas offers two           



                                                                                                                                                     44  

theories: (1) the officials could be sued for injunctive relief under                                                   Ex parte Young              ,   and  



                                                                                                                                                 

(2) Douglas could sue the officials based on their ultra vires actions without alleging  



                                                                                                                                                     

specific actions in its complaint. The superior court rejected both theories, and we affirm  



                                                                                                      

the court's dismissal against Central Council and both officials.  



                                                                                                                                             

                         1.	 	       Ex parte Young does not apply to the officials in this case.  



                                                                                                                                                       

                         Douglas first argues that the tribal officials can be sued for injunctive relief  



                                                                                                                                                    

under the doctrine of Ex parte Young.  Under that doctrine, "immunity does not extend  



                                                                                                                            45  

                                                                                                                                                     

to officials acting pursuant to an allegedly unconstitutional statute."                                                          "Because, under  



                                                                                                                                                             

Ex parte Young, a state officer who violates federal law or the federal constitution is  



                                                                                                                   

presumed to be acting without the authority of the state, such suits are simply deemed  



                                                                                                                                                            46  

                                                                                                                                                                 

not to be suits against the state, so they do not implicate a state's sovereign immunity." 



"This doctrine has been extended to tribal officials sued in their official capacity such  

                                                                                                                                                       



that 'tribal sovereign immunity does not bar a suit for prospective relief against tribal  

                                                                                                                                                      

officers allegedly acting in violation of federal law.' "47                                            "[T]he relevant inquiry is only  

                                                                                                                                                        



            44	 	        209 U.S. 123 (1908).       



            45           Burlington N. &Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir.  

                                                                                                                                                         

2007) (citing Ex parte Young, 209 U.S. at 155-56).  

                                                                               



            46           State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. v.  

                                                                                                                                                            

Native Vill. of Curyung, 151 P.3d 388, 404 (Alaska 2006) (citing Ex parte Young, 209  

                                                                                                                          

U.S. at 159).  

               



            47           Vaughn, 509 F.3d at 1092 (quoting Burlington N. R.R. Co. v. Blackfeet
 
 

                                                                                                                                               

Tribe, 924 F.2d 899, 901 (9th Cir. 1991), overruled on other grounds by Big Horn Cty.
 
 

                                                                                                                                                         

                                                                                                                                       (continued...)
 
 



                                                                            -15-	                                                                      7198
 


----------------------- Page 16-----------------------

whether   [the   plaintiff]   has   alleged   an   ongoing   violation   of   federal   law   and   seeks  

prospective relief."                     48  



                             Douglas has not alleged an ongoing violation of federal law.   Instead,  

                                                                                                                                                                      



Douglas argues that the doctrine of Ex parte Young should be extended to reach tribal  

                                                                                                                                      



officials who allegedly violate state law.  But we do not reach this question because  

                                                                                                                                                                        



regardless of the answer, Ex parte Young  cannot be used to obtain the remedy that  

                                                                                                                                                                                



Douglas seeks. Douglas requests injunctive relief orderingthat theofficials"neither take  

                                                                                                                                                                                



nor permit any action inconsistent" with the court's declaration that Central Council is  

                                                                                                                                                                                     



Douglas's trustee or agent, but "Ex parte Young cannot be used to obtain . . . an order for  

                                                                                                                                                                                   

specific performance of a . . . contract."49                                              Given that tribal sovereign immunity is "not  

                                                                                                                                                                               

subject to diminution by the States,"50  we decline to extend the doctrine of Ex parte  

                                                                                                                                                                             



              47             (...continued)  



                                                                                                                                                              

Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000)); see also Santa Clara  

                                                                                                                                                                         

Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (analogizing to Ex parte Young for support  

                                                                                                                                                   

that a tribal official was "not protected by the tribe's immunity from suit").  



              48             Vaughn, 509 F.3d at 1092 (citing Verizon Md., Inc. v. Pub. Serv. Comm'n  

                                                                                                                                                                      

of Md., 535 U.S. 635, 645-46 (2002)).  

                                                                 



              49             Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 256-57 (2011)  

                                                                                                                                                                          

(citing Edelman v. Jordan, 415 U.S. 651, 666-67 (1974)); see also COHEN'S  HANDBOOK  

                                                                                                                                            

       FEDERAL INDIAN LAW   7.05[1][a] (Nell Jessup Newton ed., 2012 & Supp. 2015)                                                                                         

OF                                                       

("[A] suit seeking specific performance on a tribal contract cannot be maintained against                                                                                 

a tribal official" because "the relief will run directly against the tribe itself." (citing                                                                               

 Tamiami Partners v. Miccosukee Tribe of Fla.                                                          , 177 F.3d 1212, 1225-26 (11th Cir.                                      

 1999))).   



              50            Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2031 (2014).  

                                                                                                                                                            



                                                                                        -16-                                                                                   7198
 


----------------------- Page 17-----------------------

 Young  to allow a suit to proceed against a tribal official based on what is essentially a                                                                                     

 contract claim merely because Douglas seeks declaratory and injunctive relief.                                                                                   51  



                                                                                                                               

                            2.           Douglas has not alleged any ultra vires actions.  



                                                                                                                                                                      

                            Douglas also argues that the tribal officials are not protected by the tribe's  



                                                                                                                                                                            

 sovereign immunity because their actions were ultra vires, i.e. outside the scope of the  



                                                                                                                                                                     

 officials'  delegated  authority.                                  As  the  superior  court  recognized,  an  official  acting  

                                                                                                                                                         52   The court  

                                                                                                                                                                        

 "without any authority whatever" is not protected by sovereign immunity. 



nonetheless rejected Douglas's ultra vires theory because Douglas "did not plead any set  

                                                                                                                                                                             



 of facts or any allegation that [the tribal officials] acted outside their scope of authority."  

                                                                                                                                                                                     



                            Douglas argues that it satisfied Alaska's lenient notice pleading standards  

                                                                                                                                                               



under Rule 8 and that "[u]ltra vires actions are not one of the matters required to be plead  

                                                                                                                                                                        



with specificity by [Alaska Civil Rule] 9."  But Douglas's focus on pleading standards  

                                                                                                                                                               



 is misplaced.  Central Council did not move to dismiss Douglas's complaint based on  

                                                                                                                                                                             



 Douglas's failure to satisfy Alaska's pleading standards; that is, Central Council did not  

                                                                                                                                                                            



 file a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could  

                                                                                                                                                                        



be granted.   Instead, as we explained earlier, Central Council properly filed a Rule  

                                                                                                                                                                         



 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.  Once the issue of the  

                                                                                                                                                                             



 superior court's jurisdiction was raised, thecourt was then required to determine whether  

                                                                                                                                                                   



              51            Cf. Idaho v. Coeur d'Alene Tribe of Idaho                                            , 521 U.S. 261, 270 (1997) ("To                         



 interpret   Young   to  permit   a   federal-court   action   to   proceed   in   every   case   where  

prospective declaratory and injunctive relief is sought against an officer . . . would be to                                                                                   

 adhere   to   an   empty   formalism   and   to   undermine   the   principle   .   .   .   that   Eleventh  

Amendment immunity represents a real limitation on a federal court's federal-question                                                            

jurisdiction.").  



              52            Pennhurst State Sch. &Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)  

                                                                                                                                                                     

 (quoting  Fla.  Dep't  of  State  v.  Treasure  Salvors,  Inc.,  458  U.S.  670,  697  (1982)  

                                                                                                                                                                    

 (plurality opinion)).  

                      



                                                                                     -17-                                                                                7198
 


----------------------- Page 18-----------------------

 it had subject matter jurisdiction before it could allow further litigation to proceed -                                                                      



regardless of whether the facts supporting jurisdiction were alleged in the complaint or                                                                        

 established in other pleadings.                          53  



                                                                                                                                                      

                          The superior court properly conducted that analysis in this case.  Central  



                                                                                                                                                      

 Council filed a motion challenging the court's jurisdiction, arguing that both Central  



                                                                                                                              

 Council and the tribal officials were protected by tribal sovereign immunity.  Douglas  



                                                                                                                                                           

was then given an opportunity to respond - to show why the court did, in fact, have  



                                                                                                                                                              

 subject matter jurisdiction. At this point in the litigation, Douglas should have made any  



                                                                                                                                                        

 legal arguments or factual allegations supporting the superior court's subject matter  



                                                                                                                                                       

jurisdiction, such as facts supporting its theory that the tribal officials were acting outside  



                                                                                                                                                 

the scope of their  authority  and  were therefore not protected by  Central Council's  



                                                                                                                                                               

 sovereign immunity.  But as the superior court found, Douglas never "plead[ed] any set  



                                                                                                                                                                      

 of facts or any allegation that [the tribal officials] acted outside their scope of authority."  



                                                                                                                                                       

 The superior court therefore concluded that it lacked jurisdiction to hear the claims  



                                  

 against the tribal officials.  



                                                                                                                                                    

                          Thesuperior court's conclusion was correct. IfDouglaswanted toestablish  



                                                                                           

the court's subject matter jurisdiction based on an ultra vires theory of avoiding tribal  



                                                                                                                                                            

 sovereign  immunity,  it  was  required  to  assert  the  legal  and  factual  bases  for  that  



                                                                                                                                                        

 argument in response to Central Council's motion to dismiss for lack of subject matter  



                                                                                                                                                   

jurisdiction.  Because Douglas failed to do so, we affirm the superior court's dismissal  



                           

 of Douglas's claims.  



             53           See Alaska R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the  

                                                                                                                                                               

parties . . . that the court lacks jurisdiction of the subject matter the court shall dismiss  

                                                                                                                                                      

the action." (emphasis added)); Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866,  

                                                                                                                                                  

 872-73,   878   (Alaska   2014)   (affirming   a   superior   court's   dismissal   based   on  

                                                                                                                                                             

Rule 12(b)(1) where the court reviewed "all the information relevant to the jurisdictional  

                                                                                                                                            

 analysis" including "affidavits, memoranda, . . . and other documents").  

                                                                                                               



                                                                              -18-                                                                         7198
 


----------------------- Page 19-----------------------

V.       CONCLUSION  



                  For the reasons stated above, we AFFIRM the superior court's judgment  

                                                                                 



dismissing the complaint.  

                     



                                                         -19-                                                 7198

 

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