United States District Court, W.D. Wisconsin
LORI J. TAGUMA, Plaintiff,
EDWARD J. BENTON, JR. and DANIELLE GEORGE BENTON, Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
civil action for monetary relief, plaintiff Lori Taguma, who
is a member of the Lac Courte Oreilles Tribe, contends that
fellow members of the tribe, defendants Edward and Danielle
Benton, violated her rights by threatening her and her family
members with violence, shooting at her and her family
members, using their influence within the tribe to encourage
others to terminate her job and discontinue her mother's
Bureau of Indian Affairs lease, damaging her and her
family's vehicles and other property and otherwise
plaintiff is proceeding without prepayment of the filing fee,
her complaint must be screened under 28 U.S.C. § 1915(e)
to determine whether her complaint is frivolous, malicious,
fails to state a claim upon which relief may be granted or
seeks money damages from a defendant who is immune from such
relief. After reviewing the complaint, I conclude that
plaintiff may not proceed on any claim because her complaint
does not involve any federal claim over which this court has
federal district court has limited jurisdictional authority.
Generally, it may exercise jurisdiction over a case in one of
two situations: (1) the plaintiff brings a claim that arises
under federal law, 28 U.S.C. § 1331; or (2) the
plaintiff and defendant are citizens of different states and
the amount in controversy is greater than $75, 000. 28 U.S.C.
§ 1332. Although plaintiff alleges that she and both
defendants are Native American, diversity jurisdiction does
not exist because all of the parties live in Hayward,
Wisconsin. Richardson v. Malone, 762 F.Supp. 1463,
1466-67 (N.D. Ok. 1991) (“Native American residing
within the borders of a state is a citizen of that
state.”)); Bresette v. Buffalo-Reyes, 2006 WL
3017256, at *1 (W.D. Wis. Aug. 7, 2006). Therefore, this
court would have jurisdiction over plaintiff's claims
only if they arise under the United States Constitution or
other federal law.
claims all seem to relate to matters involving state tort or
criminal law and therefore must be brought in state court.
Bresette, 2006 WL 3017256, at *1 (“Federal
jurisdiction is not present just because the alleged
[violation of state law] occurred on an Indian
reservation.”). Although she does not say so expressly,
plaintiff may be attempting to allege that defendants
violated her constitutional rights. A plaintiff may bring a
claim under 42 U.S.C. § 1983 to address the deprivation
of a right secured by the Constitution or laws of the United
States if the alleged deprivation was committed under the
color of state law. American Manufacturers Mutual
Insurance Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
However, plaintiff does not allege any facts that suggest
that defendants were public officials or acting under the
color of state law. The “under-color-of-state-law
element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or
wrongful.'” Id. (quoting Blum v.
Yaretsky, 457 U.S. 991, 1002 (1982)).
plaintiff has made it clear that defendants have strong ties
to members of the tribal council and are powerful within the
community, federal courts have found that “[a] §
1983 action is unavailable ‘for persons alleging
deprivation of constitutional rights under color of tribal
law.'” Burrell v. Armijo, 456 F.3d 1159,
1174 (10th Cir. 2006) (quoting R.J. Williams Co. v. Fort
Belknap Housing Authority, 719 F.2d 979, 982 (9th Cir.
1983)). See also Dallas v. Hill, 2019 WL 403713, at
*3 (E.D. Wis. Jan. 31, 2019) (holding same). Similarly,
plaintiff may not sue defendants as tribal actors under
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), which provides relief
for alleged constitutional violations by federal officials.
Evans v. Little Bird, 656 F.Supp. 872, 874 (D. Mont.
1987), aff'd in part, Evans v. McKay,
869 F.2d 1341, 1347 (9th Cir. 1989).
this case must be dismissed for lack of subject matter
jurisdiction. Plaintiff must bring her claims in state court
or in the tribal court that has jurisdiction over the Lac
Courte Oreilles Tribe. Bresette, 2006 WL 3017256, at
*1; Evans, 656 F.Supp. at 874 (redress for
deprivation of civil rights under color of tribal law must be
sought in appropriate tribal court under Indian Civil Rights
Act, 25 U.S.C. §§ 1301-1303).
ORDERED that plaintiff Lori Taguma's complaint is
DISMISSED for ...