Temple v. Her Many Horses, No. 5:2015cv05062 - Document 184 (D.S.D. 2019)
Court Description: ORDER granting 172 Motion to Quash. Signed by Chief Judge Jeffrey L. Viken on 12/4/19. (SB)
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er current job, the court reminds him that the allocation of OST grazing leases is not a part of this litigation. (Docket 183 at pp. 18-20). 5 from acting[.]” Id. Plaintiff selectively summarizes a Supreme Court case establishing a “general rule” for determining when “a suit is against the sovereign” for purposes of sovereign immunity analysis. Dugan v. Rank, 372 U.S. 609, 620 (1963). In full, the Supreme Court held: The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act. Id. (emphasis added) (internal quotations and citations omitted). Plaintiff’s subpoenas would “command a government unit to appear in federal court and obey whatever judicial discovery commands may be forthcoming. The potential for severe interference with government functions is apparent.” DeJordy, 675 F.3d at 1103. Plaintiff cannot force the OST, through its officials, to act in response to his subpoenas. Plaintiff next asserts he will inevitably depose Ms. Mesteth and Ms. Provost in his pending tribal litigation. Id. at p. 3. This is far from certain, as the Oglala Sioux Tribal Court (“Tribal Court”) dismissed plaintiff’s case in that court on the basis of tribal sovereign immunity. Temple v. OST Allocation Comm. et al., Nos. CIV-13-0533, CIV-15-0333 & CIV-18-0038 (Oglala Sioux Tribal Ct. Aug. 22, 2019).3 In any event, whether OST law would permit plaintiff to depose Ms. Mesteth and Ms. Provost is a matter beyond this court’s purview. At most, this is an equitable or prudential argument for enforcing plaintiff’s subpoenas. But tribal sovereign immunity bars all suits, no matter their underpinning. See Mich. v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014) (“[A]ny suit against a 3The Tribal Court’s order is filed at docket entry 180-1. 6 tribe” must be dismissed “absent congressional authorization (or a waiver).”). It is irrelevant whether plaintiff can depose the tribal movants under OST law; the court cannot enforce his deposition subpoenas under federal law. Finally, plaintiff contends the OST waived its sovereign immunity. (Docket 176 at p. 3). He argues the tribal grazing code waives sovereign immunity by requiring grazing permit holders to “consent to the jurisdiction of the Oglala Sioux Tribe[.]” Id. Plaintiff goes on to argue the OST constitution “contains a Bill of Rights . . . . which prohibits tribal government from taking action that results in a denial of due process and equal protection.” Id. In plaintiff’s view, “[t]he courts are given the right to declare laws of the Tribe invalid if those laws are not in agreement with the Oglala Sioux Tribe Constitution.” Id. “A waiver of sovereign immunity may not be implied, but must be unequivocally expressed by either the Tribe or Congress.” Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680, 685 (8th Cir. 2011) (quoting Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995)). Plaintiff “bear[s] the burden of proving that either Congress or [the OST] has expressly and unequivocally waived tribal sovereign immunity.” Id. at 685-86 (citation omitted). Plaintiff did not show the OST waived its sovereign immunity and consented to participation in this litigation. In dismissing plaintiff’s cases, the Tribal Court explicitly rejected the argument that the tribal grazing code waives the OST’s sovereign immunity. Temple at pp. 18-21; see also Docket 180-1 at pp. 18-21. The court adopts the persuasive reasoning of the Tribal Court. As that court found, the text of the grazing code merely subjects grazing permit 7 holders to OST jurisdiction. Id. It does not subject the OST to suit in federal court. As for plaintiff’s argument that the court should imply a waiver of sovereign immunity from the OST’s constitution, the court has absolutely no authority to do so. “A waiver of sovereign immunity may not be implied[.]” Amerind, 633 F.3d at 685 (emphasis added). Additionally, plaintiff does not explain what source of authority permits a federal court to interpret the OST’s constitution and enforce it against tribal officials. The court declines to interfere so heavily in the OST’s internal affairs. DeJordy squarely controls this dispute. The court finds plaintiff’s third-party subpoenas directed to Ms. Mesteth and Ms. Provost are suits that are barred by the OST’s sovereign immunity. Because the subpoenas would “require[] disclosure of . . . protected matter”—documents and information protected by the OST’s sovereign immunity—the court must grant the tribal movant’s motion to quash. Fed. R. Civ. P. 45(d)(3)(A)(iii). ORDER For the above reasons, it is ORDERED that the tribal movant’s motion to quash (Docket 172) is granted. IT IS FURTHER ORDERED that plaintiff’s subpoenas of May 7, 2019, directed to Denise Mesteth and Jolene Provost are quashed. Dated December 4, 2019. BY THE COURT: /s/ Jeffrey L. Viken JEFFREY L. VIKEN CHIEF JUDGE 8
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