906 F.3d 773
9th Cir.2018Background
- Curtiss Wilson (non-tribal member) drove from a casino on the Lummi Reservation and was stopped on a state road that crosses the reservation; Lummi police found marijuana in his truck.
- Lummi Tribal Court issued a civil forfeiture notice under tribal law; Horton’s Towing released the truck to Lummi Officer Brandon Gates, who served the notice.
- Wilson sued Horton’s Towing and Officer Gates for conversion; the Attorney General certified Gates was acting within scope and the district court substituted the United States under the Westfall Act.
- Defendants moved for summary judgment; the district court granted judgment for defendants, concluding Wilson failed to exhaust tribal remedies against Horton’s and failed to exhaust FTCA administrative remedies against the United States.
- Ninth Circuit affirmed summary judgment on exhaustion/comity and Westfall substitution grounds, but vacated the dismissal with prejudice and remanded for dismissal without prejudice to permit exhaustion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tribal remedies exhaustion was required before federal suit against Horton’s Towing | Wilson: federal court can decide conversion because the seizure (release) occurred off reservation | Defendants: comity requires dismissal because tribal jurisdiction over dispute is colorable | Court: tribal jurisdiction is colorable (direct connection to conduct on tribal land); exhaustion required, so dismissal was proper |
| Whether the state road where the stop occurred is tribal land (affecting jurisdiction) | Wilson: stop/seizure occurred off tribal land, so tribal court lacks jurisdiction | Defendants: events connected to on-reservation conduct (possession at casino) so tribal jurisdiction plausible | Court: need not decide road’s status; claim has direct connection to tribal land (possession on reservation), making tribal jurisdiction colorable |
| Whether the United States properly substituted for Officer Gates under the Westfall Act (and whether Gates was a federal employee for FTCA purposes) | Wilson: Gates acted as a tribal officer, not a federal/BIA employee; certification should be rebutted | Government: Attorney General’s certification and 638/self-governance agreement show Gates acted pursuant to federal contract; Shirk two-step analysis satisfied | Court: AG certification not rebutted; the funding/compact encompassed law-enforcement activity and Gates acted within scope under Washington scope-of-employment law; substitution was proper |
| Whether dismissal should have been with prejudice | Wilson: case resolved on merits—should not be barred | Defendants: exhaustion failure justifies final dismissal | Court: dismissal for failure to exhaust was proper but dismissal with prejudice was erroneous; remand to enter dismissal without prejudice to allow refiling after exhaustion |
Key Cases Cited
- Montana v. United States, 450 U.S. 544 (1981) (limits tribal civil authority over nonmembers; establishes two exceptions)
- Strate v. A-1 Contractors, 520 U.S. 438 (1997) (treats status of rights-of-way/state highways through reservations and tribal adjudicative authority)
- Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (focuses inquiry on how claims relate to tribal land for exhaustion requirement)
- Shirk v. United States ex rel. Dep’t of Interior, 773 F.3d 999 (9th Cir. 2014) (two-step test for when tribal employees count as federal employees under 638/self-governance agreements)
- Nat’l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (exhaustion principle: give tribal forum first opportunity to address jurisdictional challenges)