Rehearing and Rehearing En Banc Denied: September 11, 2003.
WOLLMAN, Circuit Judge.
Larry Bodin, Richard Armstrong, John Vettleson, and Frank Landeis appeal the district court's denial of their motion for summary judgment on the basis of absolute and qualified immunity. In addition to Federal Tort Claims Act claims not at issue in this appeal, Margaret Penn claimed that these four individual defendants violated her constitutional right to due process by serving and executing a tribal court order excluding her from the Standing Rock Sioux Indian Reservation. We reverse.
Margaret Penn is one-eighth Turtle Mountain Chippewa Indian but is not enrolled in any Indian tribe, thus her status is that of a non-Indian. At all times relevant to this action Penn lived on land that was within the Standing Rock Sioux Indian Reservation but owned in fee by a non-Indian
Bureau of Indian Affairs (BIA) Captain John Vettleson received the order from the tribal court on July 24. Pursuant to federal statute and regulation, the BIA's Division of Law Enforcement Services is responsible for enforcing federal "and, with the consent of the tribe, tribal law." 25 U.S.C. § 2802(c)(1); 25 C.F.R. §§ 12.21-12.22. Captain Vettleson consulted with BIA Standing Rock Superintendent Larry Bodin and BIA District Commander Richard Armstrong regarding the legality of the order. Each advised him to serve the order. Captain Vettleson requested the assistance of Sioux County Sheriff Frank Landeis in serving the order. The boundaries of Sioux County are coterminous with those of that portion of the Standing Rock Sioux Indian reservation lying within the state of North Dakota. Sheriff Landeis agreed to accompany Captain Vettleson while he served the order. Upon examining the order, Sheriff Landeis informed the BIA officers that Penn, fearing theft, had given to him for safekeeping the pistol mentioned in the petition. Captain Vettleson and Sheriff Landeis so informed Judge Dog Eagle, who repeated his direction to serve the order. Captain Vettleson and Sheriff Landeis then served Penn with the order at Tender Hearts. Penn indicated to them that she would comply with the order. The two officers escorted Penn to her home and helped her pack some of her belongings. Captain Vettleson advised her that if she returned to her home he would be obliged to arrest her. Captain Vettleson and Sheriff Landeis then followed Penn as she drove her vehicle to the reservation boundary.
On August 31, 1998, Penn filed suit against the tribe, the tribal council, and several officials and members seeking habeas corpus relief and damages. On motion of the Standing Rock Sioux Tribe, the tribal court vacated the restraining order on September 14, 1998. Penn settled all claims against the tribe, its officials, and its members for $125,000. Penn subsequently filed this suit in United States District Court seeking damages against the parties involved in the service and enforcement of the order.
The defendants appeal the district court's denial of their motion for
Although we start with the presumption that qualified immunity is sufficient to protect government officials other than judges, Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir.1994), we have not hesitated to extend absolute immunity to other officials for acts taken pursuant to a facially valid court order. Martin, 127 F.3d at 721 (extending absolute quasi-judicial immunity to bailiffs for "acts they are specifically required to do under court order or at a judge's direction") (citation omitted); Patterson v. Von Riesen, 999 F.2d 1235, 1239-40 (8th Cir.1993) (prison wardens); Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974) (per curiam) ("A quasi-judicial form of immunity is extended to police and other court officers for purely ministerial acts where they do nothing other than perform orders issuing from a court.").
A judge does not lose immunity for all judicial acts taken in excess of jurisdiction. If that were the case, every appellate invalidation of an order based upon lack of jurisdiction would expose the trial judge to a suit for damages. Similarly, to subject police officers to suit for serving or executing a facially valid court order that is later held to be unlawful would require them to "act as pseudo-appellate courts." Valdez v. City and County of Denver, 878 F.2d 1285, 1289 (10th Cir.1989). A police officer charged with service of a facially valid court order is entitled to carry out that order without exposure to a suit for damages. Patterson, 999 F.2d at 1240.
The court order at issue in this case includes both the written order dated July 24, 1998, and Judge Dog Eagle's verbal directions to carry out the order despite the inconsistency regarding the pistol. The order was styled as a "Traditional Custom Restraining Order," which forbad Penn from all contact with the residents of the Standing Rock Sioux Nation for thirty days. It was signed by a tribal judge known to the defendants and attested to by the clerk of court. Consequently, it can be facially invalid only if it was issued in the "clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (citation omitted). Stump explained that "the scope of the judge's jurisdiction must be construed
Id. at 357 n. 7, 98 S.Ct. 1099.
The court order relied in part on a mistaken assertion that Penn possessed a pistol. When Sheriff Landeis and Captain Vettleson informed Judge Dog Eagle of this error, they were directed to serve the order notwithstanding the error. We need not resolve whether Judge Dog Eagle actually had jurisdiction over this matter. A tribe's civil jurisdiction over nonmembers is limited but is broadest with respect to nonmembers who voluntarily involve themselves with tribal activities. Nevada v. Hicks, 533 U.S. 353, 358-59, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001); Montana v. United States, 450 U.S. 544, 565-66, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (protection of tribal integrity and nonmember's consensual relationship with tribe can confer civil jurisdiction). Penn lived on the reservation, had worked for the tribe, had a large civil suit against the tribe, and had various other personal and professional ties to the tribe and its members. Considering only the face of the order and the evidence relating to the verbal reaffirmation of that order, it is not apparent that Judge Dog Eagle was acting in the clear absence of jurisdiction. A holding that the exclusion order was facially invalid merely because it was directed toward a nonmember would bring within its reach even those tribal court orders that are lawful under the highly technical analyses governing a tribal court's jurisdiction over nonmembers. Accordingly, we conclude that because the order was facially valid, the defendants were entitled to absolute quasi-judicial immunity for all acts prescribed by the order.
We recognize that the ex parte nature of the order, its county-wide scope, and its thirty-day pre-hearing duration raise legitimate questions about its legality. A determination of whether an order is unlawful, however, is an inquiry distinct from whether it is facially valid. Penn does not complain about the manner in which Captain Vettleson and Sheriff Landeis served and executed the order — her complaint is that they carried it out at all. Given the circumstances, we will not subject the officers to the difficult choice "between disobeying the court order or being haled into court to answer for damages." Patterson, 999 F.2d at 1240.
We reverse the district court's order and remand with directions to grant summary judgment on the basis of absolute quasi-judicial immunity to Bodin, Armstrong, Vettleson, and Landeis on Penn's individual capacity claims.