Eighth Circuit Visits – but Declines to Expand – Bivens Claims to Tribal Officers

Under federal law and common law doctrines, it is well established that sovereign immunity exists for each of the 573 federally recognized Native American tribes, absent consent or an act of Congress. Although the Indian Civil Rights Act was adopted to ensure that tribal and non-tribal members had many of the protections afforded by the Bill of Rights with respect to Native American tribes, the recourse provided in federal courts is solely that of a writ of habeas corpus. In a recent decision, the Eighth Circuit Court of Appeals considered – but declined to decide – whether a Bivens claim may lie against individual tribal officers.


In the same way that Native American tribes have sovereign immunity absent consent or an express abrogation under the law, so to do state and federal governments and their agencies and officers. The exception to make claims against state officers for violations of civil rights is found at 42 U.S.C. § 1983. To make a claim against federal officers for violations of civil rights, the United States Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), created an exception similar to § 1983 actions. Since expanded, Bivens and its progeny establish a framework for recovery of damages due to violations of civil rights at the hands of agents of the federal government.

The Case

Rudy Stanko is a non-Indian who was driving on U.S. Highway 27 across the Pine Ridge Indian Reservation. Mr. Stanko was arrested and taken to the local police station and detained. Mr. Stanko claimed that while he was incarcerated, he was assaulted, battered, placed in isolation, and had $700 stolen from his wallet. Mr. Stanko brought suit in federal court against the Oglala Sioux Tribe and the individual officers who arrested and detained him, claiming that the initial arrest warrant was illegally issued, and seeking damages stemming from what he claimed were the violations of his civil rights.

The Honorable United States District Judge Jeffrey L. Viken dismissed Mr. Stanko’s claims with prejudice, finding that his claims were barred by the doctrine of sovereign immunity.

The Argument on Appeal

On appeal, Mr. Stanko made a series of arguments, including most significantly, that he stated a viable § 1983 claim against the tribal officers, since Mr. Stanko was traveling on a federal highway across the Pine Ridge Indian Reservation.

Beginning from the premise that “Non-Indian United States citizens do not shed their constitutional rights at an Indian reservation’s border,” the panel of the Eighth Circuit considered Mr. Stanko’s argument. The Eighth Circuit panel quickly noted that because U.S. Highway 27 is a federal highway maintained by the federal government, a § 1983 claim could lie, as the tribal officers could not be considered to be “acting under color of state law, as § 1983 requires.”

Mr. Stanko’s appellate counsel argued that under the substantiality doctrine, the lower court should have considered whether Mr. Stanko made a valid Bivens claim against the tribal officers on the grounds that they were acting under the color of federal law. The Eighth Circuit panel explained:

In a brief response to this contention, defendants argue that Bivens “only applies to federal officers acting under color of federal law” and the individual defendants “are officers of the Tribe, and acted under color of tribal law, not federal law.” True, but the question is whether this is enough to sustain dismissal of the claim for failure to state a claim. Broadly stated, the question is whether the “substantiality doctrine” reflected in Bivens should be extended to permit a non-Indian to bring a damage action in federal court for violation of his constitutional rights by tribal officers acting under color of tribal law, when non-Indian citizens have a right to bring that action against officials acting elsewhere under color of state or federal law. To be sure, the Supreme Court “has made clear that expanding the Bivens remedy is now a disfavored judicial activity,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). However, determining whether there are “special factors counselling hesitation” to extend Bivens is a complex inquiry. Id. at 1857-58. Given the recognized limitations on tribal sovereign power over non-Indians on reservation land, this is not a frivolous claim. See Montana v. United States, 450 U.S. 544, 565-66 (1981).
Even though the Eighth Circuit panel seemingly opened the door to a potential new breed of claims against tribal officers under Bivens, the panel shut the door in this case under the doctrine of exhaustion of administrative remedies, finding that Mr. Stanko had not first sought a remedy in tribal court. The panel also relied on the Pullman abstention doctrine, noting that “Whether tribal officers violated the civil rights of a non-Indian traveling on the reservation unquestionably has a direct effect on the political integrity and welfare of the Tribe,” and, therefore, before a federal court should intervene, the tribal court must be given a chance to do so. And, as the Indian Civil Rights Act does create a forum in tribal court to vindicate alleged violations of federal constitutional rights at the hands of a tribal government, the Eighth Circuit panel found that abstention was warranted here.

The Import

In a special concurrence, the Honorable United States Circuit Judge Raymond W. Gruender wrote separately to state that he would “refuse to extend Bivens, and leave it to Congress to create any new cause of action,” noting that he “would refrain from addressing the complicated issues surrounding tribal court jurisdiction, which are not necessary to resolve the case.” With those words, Judge Gruender recognizes that, though the case of Stanko v. Oglala Sioux Tribe may not have allowed Stanko to recover for his damages, the Eighth Circuit panel arguably opened the door to an expansion of Bivens actions against tribal officers purportedly acting under the color of federal law. Only time will tell if such an expansion develops, but Stanko is certainly a case worth watching.

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