Opinion
3:20-cv-1990-JR
11-10-2021
E.J.T., a minor, by and through his Conservator, InTRUSTment, Northwest, Inc., Plaintiff, v. JEFFERSON COUNTY, a public body; TYLER W. ANDERSON, in his individual capacity; and ARJANG ARYANFARD, in his individual capacity, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff E.J.T., through a conservator, brings this action alleging negligence, violation of Or. Rev. Stat. § 124.105, and violation of his right to equal protection pursuant to 42 U.S.C. § 1983. Defendant Arjan Aryanfard moves to dismiss, or in the alternative, for judgment on the pleadings. For the reasons stated below, defendant's motion should be denied.
BACKGROUND AND ALLEGATIONS
Plaintiff E.J.T. is a six-year-old boy who remains in the custody of his mother, Katylynne Rogerson, following her 2017 separation from his father, Andre Thomas. Compl. (ECF 1) at ¶¶ 7, 9. Thomas is a member of the Confederated Tribes of Warm Springs (“CTWS”) who resides on the Warm Springs Indian Reservation. Id. at ¶ 8. Plaintiff is not an enrolled member of the CTWS. Olson Decl. (ECF 50) at ¶ 2. Plaintiff and Rogerson reside in Madras in Jefferson County, Oregon. Compl. (ECF 1) at ¶¶ 7, 9.
In early July 2017, after a few months of dating Rogerson, Josue Jair Mendoza-Melo moved in with Rogerson and E.J.T. Rogerson would occasionally leave E.J.T. in Mendoza-Melo's care. Id. at ¶¶ 10, 11.
Plaintiff alleges that on July 2, 2017, Rogerson took E.J.T. to the St. Charles Madras Hospital after E.J.T. dislocated his thumb. Rogerson reported the injury happened from a witnessed fall. Id. at ¶ 12.
Plaintiff alleges Mendoza-Melo picked up E.J.T. from his regular babysitter, Brittany Fowler, on August 27, 2017 and brought him home. Plaintiff asserts that when E.J.T. left Fowler's home he was uninjured, but after Rogerson dropped him off the following morning, Fowler called Rogerson shortly thereafter to report plaintiff's arm was injured and that he needed medical care. Rogerson picked up the plaintiff and went to St. Charles Hospital where he was diagnosed with a dislocated elbow. Id. at ¶ 13.
Plaintiff alleges that on September 30, 2017, Thomas picked up E.J.T. from Fowler and delivered him to Rogerson at or around 9:10 p.m. Plaintiff asserts that at the time, E.J.T. exhibited no signs of injury. Id. at ¶ 14.
Plaintiff alleges that on October 1, 2017, Rogerson left E.J.T. in Mendoza-Melo's care at her Madras home during which time Mendoza-Melo assaulted E.J.T. Id. at ¶ 15. On October 2, 2017, while in the care of Fowler, plaintiff alleges Fowler discovered severe bruising around E.J.T.'s genitals while changing him and asked Rogerson to take him to the hospital. Id. at ¶ 16.
At the St. Charles Madras Hospital, an exam revealed scratches under both eyes, dry skin, bruising to the scrotal/perineal area, and a small bruise in the inner left thigh. Attending Nurse Brianna Mellor advised Rogerson that the nature of plaintiff's injuries required notification to law enforcement and to the Oregon Department of Human Services (DHS). Plaintiff alleges Nurse Mellor also advised Rogerson that DHS would likely come to speak with her at her home and check on E.J.T. Id. at ¶ 17.
Nurse Mellor reported the possible child abuse to local law enforcement. Defendant Jefferson County Sheriff's Deputy Tyler Anderson allegedly stated Nurse Mellor told him, prior to his arrival at the hospital, that the abuse happened at E.J.T.'s father's home the previous Saturday. Id. at ¶¶ 18, 19.
Plaintiff alleges that when defendant Anderson arrived, he asked where E.J.T.'s father lived to which Rogerson responded the Warm Springs Indian Reservation. Defendant Anderson allegedly raised his hands and told Rogerson that was “outside his jurisdiction” and left. Id. at ¶ 20. Defendant Anderson then reported to dispatch “the abuse occurred at Warm Springs. Dispatch is giving the call to them. Mom will wait at [St. Charles].” Id. Plaintiff alleges defendant Anderson left without speaking further to hospital staff, without requesting medical records, without examining E.J.T., without questioning Rogerson about E.J.T.'s whereabouts and activities in the preceding days, and without conducting any investigation whatsoever. Plaintiff also asserts Anderson did not notify DHS. Id. at ¶ 21.
Eventually, Warm Springs Police Officer defendant Arjang Aryanfard called Rogerson for a phone interview and mentioned he spoke with Thomas and that he wanted to photograph E.J.T. Id. at ¶ 22. Aryanfard is non-Indian, is not a member of any federally recognized tribe, and, when the events at issue in this lawsuit occurred, was an “authorized tribal police officer” within the meaning of Or. Rev. Stat. § 181A.680(1) “with the ability to exercise the powers of, and to receive the same protections provided to, law enforcement officers under the laws of this state[.]” Olson Decl. (ECF 50) at ¶ 3, Ex. 2, Ex. 1 at 3.
Plaintiff alleges Warm Springs Police took too long to get to the hospital and the hospital released E.J.T. when Rogerson assured staff she would take E.J.T. to the Warm Springs Police Department. Compl. (ECF 1) at ¶ 23. After leaving the hospital, plaintiff alleges Rogerson's mother called the Jefferson County Sheriff's Office and Sheriff James Adkins told her to contact Warm Springs Police. Id. at ¶ 24.
Plaintiff asserts that upon their arrival at the Warm Springs Police Department, defendant Aryanfard took photos of E.J.T., gave Rogerson his business card, and told Rogerson he would “figure out what happened”. Plaintiff allegedly never heard from Aryanfard again. Id. at ¶ 25.
Plaintiff alleges defendant Aryanfard came to the unreasonable conclusion that E.J.T. injured himself leaning over a coffee table. Aryanfard did not write a report, notify DHS, or do anything further with the photographs until November 19, 2017, more than six weeks later when the photographs were requested of him by officers investigating E.J.T.'s injuries. Id. at ¶ 26.
Two days after meeting with defendant Aryanfard, hearing nothing from DHS, Rogerson called DHS and discovered DHS had not received a report. Id. at ¶ 27. Rogerson continued to leave E.J.T. in Mendoza-Melo's care from October 2, 2017 to November 19, 2017 and Mendoza-Melo continued to abuse E.J.T. Id. at ¶ 28. Plaintiff alleges that on the morning of November 19, 2017, Mendoza-Melo again assaulted E.J.T. inflicting serious injuries including traumatic brain injury. E.J.T.'s injuries necessitated surgery at Doernbecher Children's Hospital to relieve a subdural brain hematoma, and resulted in catastrophic brain damage and permanent physical, cognitive, and developmental disabilities. Id. at ¶¶ 29, 30. After entering a plea, a Jefferson County judge sentenced Mendoza-Melo to a 144-month sentence for the injuries inflicted to E.J.T. on October 1, 2017 and November 19, 2017. Id. at ¶ 32.
Plaintiff alleges defendants Officer Aryanfard, in his individual capacity, and Jefferson County, by and through its agents, including Deputy Anderson, were negligent by:
(a) failing to make a mandatory cross-report of child abuse or neglect to DHS, as was required by ORS 419B.015;
(b) failing to cause an investigation to be made to determine the nature and cause of the abuse of E.J.T., as required by ORS 419.020(1)(a);
(c) failing to cause E.J.T.'s injuries to be photographed and sent to a designated medical professional pursuant to ORS 419B.028; and
(d) failing to ensure that a designated medical professional conducted a medical assessment of E.J.T. within 48 hours, as required by ORS 419B.023(2).Compl. (ECF 1) at ¶ 36.
Plaintiff also asserts that as a result of the negligence of defendants Jefferson County, Anderson, and Aryanfard, an investigation into the nature and cause of the injuries sustained by E.J.T. on or about October 1, 2017, was not conducted; E.J.T.'s actual assailant was not identified; and E.J.T. was not protected from Mendoza-Melo resulting in the critical injuries suffered on November 19, 2017. Id. at ¶ 37.
Plaintiff also alleges defendants Jefferson County, Anderson, and Aryanfard permitted Mendoza-Melo to abuse E.J.T. after October 2, 2027, in violation of Or. Rev. Stat. § 24.105, by knowingly failing to act under circumstances in which a reasonable person should have known of the physical abuse. Id. at ¶ 42.
Defendant Aryanfard moves to dismiss, or in the alternative, for judgment on the pleadings. Def. Mot. (ECF 35).
LEGAL STANDARDS
A motion to dismiss brought pursuant to Rule 12(b)(1) addresses the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over her claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Usually, “‘[s]ubject-matter jurisdiction' refers to ‘the courts' statutory or constitutional power to adjudicate the case.'” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)) (emphasis omitted).
While “sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is a proper vehicle for invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (citations omitted). Thus, when a defendant timely and successfully invokes tribal sovereign immunity, the court lacks subject matter jurisdiction. Acres Bonusing v. Marston, ___ F.4th ___, 2021 WL 5144701 at *4 (9th Cir. Nov. 5, 2021). “In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, ‘the party asserting subject matter jurisdiction has the burden of proving its existence,' i.e., that immunity does not bar the suit.” Pistor, 791 F.3d at 1111 (citing Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013) (quoting Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009)).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]") (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson, 586 F.3d at 685; see also Dreier, 106 F.3d at 847 (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).
“A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citation omitted). In response to a facial challenge, the Court must assume the truth of the allegations in the complaint unless controverted by undisputed facts in the record. Id. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation and internal quotation omitted).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the claims. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679. “Taken together, Iqbal and Twombly require well-pleaded facts, not legal conclusions, that plausibly give rise to an entitlement to relief.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (citations and internal quotations omitted).
A motion for judgment on the pleadings pursuant to Rule 12(c) challenges the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(c). Rule 12(c) is “functionally identical” to Rule 12(b)(6) and “the same standard of review” applies to motions brought under either rule. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n. 4 (9th Cir. 2011) (quoting Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.1989)); see also Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (applying Iqbal to a Rule 12(c) motion); Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (same); Johnson v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009) (same).
DISCUSSION
Plaintiff brought claims against defendant Aryanfard, in his individual capacity for (1) negligence per se under Oregon child abuse mandatory reporting laws, (2) negligence under Oregon common law, and (3) violation of Or. Rev. Stat. § 124.105. Plaintiff asserts Aryanfard was subject to an Oregon statutory duty to report suspected child abuse, as well as an Oregon statutory duty to prevent unidentified/undisclosed non-tribal members from committing child abuse.
Plaintiff argues that, even without an Oregon statutory duty, a common law negligence claim is available because Aryanfard established a special relationship with E.J.T. and then breached his duty to protect E.J.T. from harm by failing to exercise reasonable care in conducting the child abuse investigation.
Defendant Aryanfard asserts the doctrine of sovereign immunity as a complete defense to plaintiff's claims and seeks a judgment of dismissal with prejudice. Specifically, Aryanfard contends plaintiff failed to allege facts establishing this Court's subject matter jurisdiction because plaintiff failed to allege facts defeating or avoiding a sovereign immunity defense. Aryanfard moves to dismiss pursuant to Fed. R. Civil P. 12(b)(1) and Fed. R. Civil P. 12(b)(6) on three grounds. First, he argues Oregon abuse statutes do not apply to tribal police officers conducting investigations into crimes allegedly committed by tribal members on tribal land. Second, he argues Oregon courts lack jurisdiction over tribal police officers for claims based on such investigations, and, because the concept of supplemental jurisdiction presupposes that the state would have jurisdiction, the District Court likewise has no jurisdiction. Third, he argues plaintiff's claims are barred by the doctrine of tribal sovereign immunity. The Court addresses these three grounds in reverse order.
A. Tribal Sovereign Immunity Does Not Bar Claims Against Defendant Aryanfard in His Individual Capacity
While Rule 12(b)(1) can serve as a basis for dismissal where subject matter jurisdiction is defeated by sovereign immunity, a tribe's sovereign immunity is not necessarily implicated by individual capacity claims against tribal employees. Lewis v. Clarke, 137 S.Ct. 1285, 1288 (2017); Pistor, 791 F.3d at 1115 (acknowledging jurisdiction over individual capacity claims against a tribal law enforcement officer and other tribal officials acting in concert with state and county officials). Whether a tribal employee is sued in his individual or official capacity is a key distinction because “the identity of the real party in interest dictates what immunities may be available.” Lewis, 137 S.Ct. at 1291. Accordingly, “although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities.” Id. at 1289 (emphasis added). “[T]ribal defendants sued in their individual capacities for money damages are not entitled to sovereign immunity, even though they are sued for actions taken in the course of their official duties.” Pistor, 791 F.3d at 1112. Thus, defendant Aryanfard's facial challenge to this Court's subject matter jurisdiction fails.
In Lewis, the Supreme Court extended to the tribal context the general sovereign immunity rules pertaining to lawsuits against state and federal employees or entities. 137 S.Ct. at 1291. Under this line of precedent, defendants in an official-capacity action may assert sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 167 (1985). However, sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” Hafer v. Melo, 502 U.S. 30-31 (1991) (internal quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 757 (1999). To determine whether sovereign immunity bars the suit, a court should consider whether the sovereign is the real party in interest. See Hafer, 502 U.S. at 25. In conducting this analysis, courts must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte New York, 256 U.S. 490, 500-502 (1921).
Defendant Aryanfard's fact-based challenge to this Court's subject matter jurisdiction maintains that plaintiff's claims against him in his individual capacity are “in reality official- capacity claims” and that the CTWS is the real party in interest. Def. Mot. (ECF 35) at 28. Aryanfard offers two bases for this assertion. First, he points out that a “substantial number” of plaintiff's discovery requests target the Warm Springs Police Department's policies, procedures, and administrative documents. Id. Second, Aryanfard suggests that awarding the $90,000,000 money judgment sought by plaintiff would in effect compel the CTWS law enforcement entities to comply with “all facets of Oregon statutory law.” Id. at p. 29. The Court should find neither argument persuasive.
The general bar against official-capacity claims “means that tribal officials are immunized from suits brought against them because of their official capacities-that is, because the powers they possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe.” Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1296 (10th Cir. 2008) (emphasis in original). Following this rule, the Ninth Circuit in Maxwell v. Cty. of San Diego, held that two paramedics employed by an Indian tribe who allegedly had provided grossly negligent care to a shooting victim were not entitled to tribal sovereign immunity from a state tort action brought against them in their individual capacities. 708 F.3d 1075, 1079, 1081, 1089-90 (9th Cir. 2013).
Maxwell cautioned that in any suit against tribal officers, the court must be sensitive to whether “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 [sovereign] from acting, or to compel it to act.” Id. at 1088 (quoting Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir.1992)) (alteration in original). Maxwell pointed to two “masked official capacity suits” as examples. Pistor, 791 F.3d at 1113 (9th Cir. 2015). In one, the plaintiffs' object was to reach the public treasury through a respondeat superior ruling. See Maxwell, 708 F.3d at 1088; see also Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 727 (9th Cir. 2008). The tribe there was thus “the ‘real, substantial party in interest,'” and the suit against the tribal officers in their official capacities was therefore barred by sovereign immunity principles. Maxwell, 708 F.3d at 1088 (quoting Cook, 548 F.3d at 727). In the second case, sovereign immunity barred the plaintiff from litigating a case against high-ranking tribal council members seeking to hold them individually liable for voting to eject the plaintiff from tribal land. See Maxwell, 708 F.3d at 1089; see also Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 478 (9th Cir. 1985). The Ninth Circuit concluded that to hold otherwise would impermissibly interfere with the tribe's internal governance. Id.
The Ninth Circuit recently clarified this excerpt “does not make the tribal sovereign immunity analysis turn on a freestanding assessment of whether the suit related to tribal governance in some way. Nor did it create special rules for cases involving ‘garden variety' torts. Instead, this passage is fully consistent with the ‘remedy-focused analysis,' Maxwell, 708 F.3d at 1088, that the Supreme Court validated in Lewis.” Acres Bonusing, 2021 WL 5144701 at *8.
The Ninth Circuit explained why Hardin applied immunity:
[A]lthough Hardin did not mention the ‘remedy sought' principle when it granted sovereign immunity, it did not need to do so because Hardin was in reality an official capacity suit. The plaintiff in Hardin did not (1) identify which officials were sued in their individual capacities or (2) the exact nature of the claims against them. The lack of any such allegations and the nature of the relief sought indicated that the tribal officials were sued in their official capacities as part of the plaintiff's effort to challenge his removal from tribal lands.Acres Bonusing, 2021 WL 5144701 at *10 (quotation and citation omitted).
In Pistor v. Garcia, the Ninth Circuit applied Maxwell's “remedy-focused analysis” and reiterated that “it remains ‘the general rule that individual officers are liable when sued in their individual capacities[,]'” and that “so long as any remedy will operate against the officers individually, and not against the sovereign, there is ‘no reason to give tribal officers broader sovereign immunity protections than state or federal officers.'” Pistor, 791 F.3d at 1113 (quoting Maxwell 708 F.3d at 1089). The Ninth Circuit went on to reject the tribal defendants' claim to tribal sovereign immunity because (1) the plaintiffs did not sue the tribe, (2) the plaintiffs were seeking to hold the individual tribal defendants, not the tribe, financially liable, and (3) the tribal defendants did not show that “the judgment sought would expend itself on the [tribal] treasury or domain, or interfere with [tribal] administration, … [or] restrain the [Tribe] from acting.” Id. (alterations in original, quotation and citation omitted).
Similarly, plaintiff here sued defendant Aryanfard in his individual capacity and did not name the CTWS as a defendant. Plaintiff therefore seeks to collect a money judgment from Aryanfard, not the CTWS' tribal treasury. Aryanfard argues that entertaining plaintiff's claim would nonetheless “force tribal entities to make any number of changes” and therefore impermissibly interfere with the CTWS' sovereign right to administer its tribal affairs. Def. Reply (ECF 54) at 21. Aryanfard impliedly argues that such interference would flow from a substantial money judgment against him because his actions were covered by the CTWS' insurance policy. But, as explained below, the CTWS' sovereignty is not infringed upon where, as here, tribal and state law are materially harmonized. In addition, the fact that the CTWS has an insurance policy which covers Aryanfard does not change the real party in interest analysis.
In Lewis, a limousine driver, Clarke, in the course of his employment by an Indian tribe, caused an accident and injured two motorists while driving on Interstate 95 in Norwalk, Connecticut. 137 S.Ct. at 1289. The motorists sued Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. Id. The Supreme Court concluded the fact “that an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity.” Id. 1288. Clarke also argued that his tribal employer was the real party in interest because a tribal code provision required it to indemnify Clarke for any adverse judgment. Id. at 1292. However, the Court determined “that an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak.” Id. at 1293.
Here, the CTWS maintained an insurance policy as required by state law to cover the conduct of “authorized tribal police officers” including defendant Aryanfard. Or. Rev. Stat. § 181A.690(3)(b) (see Olson Decl. (ECF 50) Ex. 1, at 3). This Court finds that the tribe's insurance policy is akin to the indemnification provision in Lewis because “even if the Tribe agrees to pay for the tribal defendants' liability, that does not entitle them to sovereign immunity[.]” Pistor, 791 F.3d at 1114. “The unilateral decision to insure a government officer against liability does not make the officer immune from that liability.” Maxwell, 708 F.3d at 1090. The CTWS made the unilateral, voluntary choice to pursue eligibility to employ “authorized tribal police officers” under Or. Rev. Stat. § 181A.685(4). The unilateral and voluntary nature of that choice is not altered by the various eligibility requirements, including those related to insurance under Or. Rev. Stat. § 181A.690.
In sum, defendant Aryanfard has not shown that the CTWS is the real party in interest in plaintiff's claims. Thus, Aryanfard should not be entitled to invoke the CTWS' sovereign immunity to shield him from claims brought against him as an individual.
B. Jurisdiction Over Plaintiff's Claims Against Defendant Aryanfard
Defendant Aryanfard argues Oregon courts, and by extension, under supplemental jurisdiction jurisprudence, federal courts, lack jurisdiction over tribal police officers for investigating a crime reportedly committed by a tribal member on tribal land. In other words, Aryanfard maintains Oregon law cannot be applied to tribal police officers in such circumstances and therefore the CTWS' sovereign status prevents this Court from exercising supplemental jurisdiction over plaintiff's claims.
Plaintiff contends Oregon's laws protecting children and vulnerable persons apply to the relevant acts and omissions of defendant Aryanfard, a non-Indian employee of the CTWS certified as an “authorized tribal police officer” within the meaning of Or. Rev. Stat. § 181A.680(1), who was investigating an offense actually perpetrated by a non-Indian outside the boundaries of the Warm Springs Indian Reservation. Plaintiff further argues that even absent the application of specific Oregon statutes to his actions and omissions, a common law negligence claim is available to E.J.T. Plaintiff's complaint thus asserts this Court has supplemental jurisdiction under 28 U.S.C. § 1367 and Fed.R.Civ.P. 18(a) to hear plaintiff's state law claims against Aryanfard.
Defendant Aryanfard points to salient background law, noting that “[a] state ordinarily may not regulate the property or the conduct of tribes or tribal member Indians in Indian Country.” Cohen's Handbook of Indian Federal Law, §6.03[1][a], p. 511 (2012). “The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.” Rice v. Olson, 324 U.S. 786, 789 (1945) (citing Worcester v. Georgia, 31 U.S. 515 (1832)). “Essentially, absent governing Acts of Congress, the question [is] whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959); see also McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164 (1973) (rejecting Arizona's efforts to impose its personal income tax on a reservation Indian whose income derived wholly from reservation sources). The infringement test is nuanced, however, as is the jurisdictional split between federal, tribal, and state law. Cf. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 804-05 (9th Cir. 2011) (holding that where there are no sufficient competing state interests at play, see Nevada v. Hicks, 533 U.S. 353, 359-60 (2001), the tribe has regulatory jurisdiction over non-Indians acting on tribal land within the reservation through its inherent authority to exclude, independent from the power recognized in Montana v. United States, 450 U.S. 544 (1981)).
While Oregon's laws have limited to no effect on federally recognized Indian tribes and their members, in some contexts, Oregon courts have acknowledged that a tribe's agreement to the application of Oregon law or policy alignment with Oregon law may give state courts jurisdiction to apply Oregon law to tribal parties. Here, the issue is whether Oregon courts would have such authority over defendant Aryanfard in his individual capacity. While Aryanfard was an employee of the CTWS, he is non-Indian and not a member of any federally recognized tribe. In addition, the CTWS has not intervened in this proceeding in support of Aryanfard. This Court should conclude Aryanfard cannot shield himself from plaintiff's claims with the CTWS' sovereign immunity.
In fact, Congress has specifically exempted the CTWS from a law that gives the State of Oregon jurisdiction over offenses committed by or against Indians in the areas of Indian country and provides that the criminal laws of Oregon shall have the same force and effect within Indian country. 18 U.S.C. § 1162(a).
See, e.g., Warm Springs Forest Prods. Indus., Div. of Confederated Tribes of Warm Springs Reservation of Oregon v. Employee Benefits Ins. Co., 300 Or. 617, 623 (1986) (upholding a choice of law agreement where a wholly owned industry of the CTWS chose to be insured within the framework of Oregon's Workers' Compensation and associated state regulations).
See, e.g., State v. Jim, 81 Or.App. 177, 187 (1986) (Rossman, J., concurring) (explaining that while Indians have rights “superior to state law,” such rights belong to the “tribe as a political entity, not to the individual Indian[,]” and therefore because the tribal defendant's off-season fishing were in violation of both tribal law and state law, he was subject to prosecution under Oregon state law).
The question remains whether the application of Oregon child abuse statutes and tort common law to defendant Aryanfard would impermissibly infringe on the CTWS' right to self-govern. This Court recognizes that allowing the Oregon legislature to regulate the general law enforcement functions of tribal governments does not comport with the principles of Indian law which prohibit state interference with tribal sovereignty and self-government. See Montana, 450 U.S. at 565-66. Accordingly, the Oregon child abuse statutes at issue here do not apply to Aryanfard in his capacity as a tribal police officer. However, as alleged, plaintiff's claims involve a non-tribal member defendant, in his individual capacity, and a non-tribal member victim. Further, given the circumstances, it is unlikely plaintiff would be able to seek relief in Warm Springs Tribal Court. Accordingly, this Court should find Oregon courts have jurisdiction over the claims and therefore this Court has supplemental jurisdiction.
“If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987).
Arguably, this case did not “aris[e] upon the Reservation, land owned by the Confederated Tribes, or held by the United States in trust for the Confederated Tribes, or involv[e] an Indian defendant found upon the Reservation.” Warm Springs Tribal Code 200.025(2)(a) [W.S.T.C.]. This case allegedly “arose” in a non-reservation area of Jefferson County and “involves” a non-Indian. See generally Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (absent Congressional action, tribal courts generally do no have jurisdiction over civil lawsuits involving nonmembers on nonmember land). In addition, W.S.T.C. 200.025(3) allows only three categories of litigants to bring an action in the Warm Springs Tribal Court: “(a) Indians. (b) The Confederated Tribes. (c) Non-Indians, corporations, and other legal entities in cases for personal injury or property damage arising upon the Reservation in which an Indian is a defendant or when authorized by a specific Tribal Council enactment.” Because he is not enrolled as a member in any federally recognized tribe, whether E.J.T. is an “Indian” depends upon whether he is “recognized by the community as an Indian[.]” W.S.T.C. 200.010(1).
C. Applicability of Oregon Law to Authorized Tribal Police Officers
As stated above, plaintiff has brought claims against defendant Aryanfard, in his individual capacity, for (1) negligence per se under Oregon's mandatory child abuse reporting laws, (2) negligence under Oregon common law, and (3) violation of Or. Rev. Stat. § 124.105.
Under Oregon law, “[a]ny public or private official having reasonable cause to believe that any child with whom the official comes in contact has suffered abuse … shall immediately report or cause a report to be made in the manner required in ORS 419B.015.” Or. Rev. Stat. § 419B.010. “Public or private official” as defined in Or. Rev. Stat. § 419B.005(6)(f) means “[p]eace officer.” In 2011, Oregon enacted Senate Bill 412 (“SB 412”), which redefined “police officer” and “peace officer” under Oregon law to include DPSST-certified tribal police officers whose tribes meet certain requirements and provided “authorized tribal police officers” with state law enforcement authority. 2011 Or. Laws Ch. 644 § 11(c). Therefore, in his capacity as an authorized tribal police officer, defendant Aryanfard was subject to statutory requirements under Oregon law. Or. Rev. Stat. § 419B.010(1) (public official has a duty to report); Or. Rev. Stat. § 419B.005(6)(f) (public official includes a “peace officer”).
There is no meaningful difference, in the jurisdictional sense, between imposing a state's common law duty of care and imposing a duty based on a state's statutory law. Or. Rev. Stat. § 124.100(5) applies to any “person” who permits an abuser to “engage in … abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the … abuse.” Therefore, having concluded that defendant Aryanfard is subject to Oregon law and may not raise a sovereign immunity defense, the remaining question is the exact nature and temporal bearing of Aryanfard's duties, as an individual and authorized tribal police officer, under Oregon law.
During the time period at issue here, defendant Aryanfard had authority as a “State Certified Tribal Officer” under the laws of the CTWS and authority as an authorized tribal police officer under the laws of the State of Oregon. W.S.T.C. § 390.010; Or. Rev. Stat. § 181A.680; Olson Decl. (ECF 50) Ex. 1 at 3, Ex. 5. This dual authority derived from SB 412, which was advanced at the request of the CTWS. Id. Ex. 8 at 65-70, 77-82. Under SB 412, certain tribal governments may elect to vest their tribal police “with the ability to exercise the powers of, and to receive the same authority and protections provided to, law enforcement officers under the laws of [Oregon].” Or. Rev. Stat. §§ 181A.685, 181A.690(1).
Defendant Aryanfard argues Oregon's child abuse and mandatory reporting laws do not apply to tribal police officers conducting investigations into crimes allegedly committed by tribal members on tribal land. As explained above, this position is defensible for individuals acting as tribal police officers. However, Aryanfard was authorized to don not only his “tribal officer hat” but also his “SB 412 hat.” Thus, the issue here is whether Aryanfard had (1) a discretionary choice to wear or not wear his SB 412 hat, or (2) ongoing duties to adhere to all requirements of him by virtue of his ability to wear the SB 412 hat.
In March 2021, Howard Arnett, the CTWS' attorney, testified before the Oregon Senate Judiciary Committee and explained his perspective on how SB 412 works in practice for the CTWS:
Warm Springs law enforcement officers wear two “hats”; most of the time they are enforcing tribal (as well as federal) law within their territorial jurisdiction and with respect to tribal members exercising tribally regulated 1855 Treaty fishing and hunting rights outside the reservation. That is their “tribal hat” and in carrying out that authority they are subject to tribal law and applicable federal law, and not subject to state law or regulation. Most, but not necessarily all tribal officers have a need to also wear a second hat, their “SB 412 hat”. Those officers, as required by SB 412, have successfully completed training at the DPSST academy and are authorized to use their SB 412 authority to make state law arrests where the criminal conduct is within the jurisdiction of Oregon state courts. If a tribal officer has not successfully completed DPSST training (e.g., Warm Springs corrections officers do not attend DPSST training) he/she is not empowered to wear the second “SB 412 hat” and make state law arrests.Olson Decl. (ECF 50), Ex. 9 at 4.
Before answering this question, it bears mentioning the Oregon legislature recently took notice of SB 412's sovereignty-threating ambiguity in enacting Senate Bill 731. 2021 Or. Laws Ch. 408. In an amendment, lawmakers made clear the law “does not regulate the conduct or activities of tribal police officers or tribal governments occurring in Indian country or on the land of a tribal government or outside of Indian country or the land of a tribal government but within a tribe's civil or criminal jurisdiction.” Id. at § 1(2). The original SB 412, not the amended law, however, is at issue here.
The ultimate concern comes back to whether SB 412 impermissibly infringed on the CTWS' sovereignty or right to self-govern. The question of infringement is informed by the nature of the interests at play. See Rice v. Rehner, 463 U.S. 713, 719 (1983). When confronted with a question of infringement, courts will balance the federal, tribal, and state interests. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 156 (1980) (discussing “accommodation” between interests of tribal, federal, and state governments). There is no need to accommodate competing interests and thus no infringement where the governments' laws are aligned. Further, the conclusion that tribal self-government is not infringed upon grows even stronger with personal injury claims between non-Indian parties. See Cohen, § 6.03[2][c] (discussing Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997), the holding of which “may reflect the Court's belief that if only non-Indians are involved, a tribe's right to govern its reservation presumably is not infringed by the application of state law.”).
As illustrated by its endorsement of SB 412, the CTWS has actively sought law enforcement powers extending beyond the boundaries of its reservation and to non-Indians. The CTWS had satisfied the requirements of SB 412 and was thus eligible to employ authorized tribal police officers by April 9, 2012. Olson Decl. (ECF 50) Ex. 5. In implementing SB 412, the CTWS added Chapter 390 to the W.S.T.C., pursuant to which it expressly recognized the state law's benefit to the CTWS and its tribal police officers, “especially in light of the significant number of non-Indians residing on and visiting the Reservation.” Olson Decl. (ECF 50) Ex. 4 at 11-13. In addition, the W.S.T.C. provisions related to child abuse reporting create requirements which are substantially similar to those under state and federal law.
Compare W.S.T.C. §§ 305.135, 305.140 with Or. Rev. Stat. Ch. 419B and 34 U.S.C. § 20341(a)(1), (b)(6).
Thus, the principles of self-governance are not offended when the CTWS' police officers are held accountable in their individual capacities in non-tribal civil court for violations of their duties under SB 412 where, like here, there is substantial policy alignment between the tribal and state law. However, absent Congressional intervention, Oregon laws cannot regulate the conduct of tribal police officers indefinitely, even those certified as quasi-state sheriffs under SB 412.
Further, as the Ninth Circuit recently clarified in addressing tribal sovereign immunity and whether jurisdiction in federal court interferes with the public administration of the tribe:
The tribal sovereign immunity inquiry thus does not revolve around whether issues pertaining to tribal governance would be touched on in the litigation. The question is whether “any remedy will operate … against the sovereign.” Pistor, 791 F.3d at 1113
(emphasis added). Or as the Supreme Court put it, “[t]he critical inquiry is who may be legally bound by the court's adverse judgment.” Lewis, 137 S.Ct. at 1292-93. References to “interfering with the public administration” of the tribe can thus only be understood in connection with the fundamental principle that the “remedy sought” governs the tribal sovereign immunity analysis. …
Confirming this point, neither Lewis nor our prior cases evaluated the degree to which the suits could involve consideration of issues that relate to tribal governance or administration. Such an analysis would likely prove difficult because any suit against a tribal employee for conduct in the course of her official duties almost inevitably has some valence to tribal governance. And if that were the test, we would seemingly end up applying tribal sovereign immunity whenever a tribal employee was acting within the scope of her employment-which is precisely what the Supreme Court in Lewis said not to do.Acres Bonusing, 2021 WL 5144701 at *8-9.
Therefore, this Court should conclude that an authorized tribal police officer incurs certain obligations, including mandatory reporting duties, under Oregon state law when that officer knows or reasonably should have known of the need to exercise authority under SB 412 to appropriately respond to a situation.
I.e., to exercise the powers of, and to receive the same authority and protections provided to, law enforcement officers under the laws of Oregon, and incur the related state law compliance obligations (e.g., child abuse mandatory reporting).
Here, defendant Aryanfard had the ability to wear his SB 412 hat because he was certified as a police officer under Or. Rev. Stat. §§ 181A.355-181A.450, was in compliance with DPSST rules adopted under Or. Rev. Stat. §§ 181A.680-181A.692, and was employed by the CTWS, a tribal government compliant with the requirements of Or. Rev. Stat. § 181A.685(4). See Olson Decl. (ECF 50) Ex. 2. If, as Aryanfard maintains, he concluded that Thomas did not abuse E.J.T., Aryanfard was nonetheless allegedly presented with suspicious injuries to E.J.T.'s genitals which triggered his SB 412 duties. At that point, he was allegedly required, in his capacity as a peace officer, to file a report with the Oregon DHS or the Jefferson County Sheriff's Office. His employment by the CTWS did not relieve him of that obligation. Thus, Oregon's laws protecting children and vulnerable persons apply to the relevant acts and omissions of Aryanfard because he was then an authorized tribal police officer under Oregon law who learned information during the course of his investigation which invoked his state law duties.
CONCLUSION
Defendant's motion to dismiss, or in the alternative, for judgment on the pleadings (ECF 35) should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.