Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

DOUGLAS INDIAN ASSOCIATION, 

Appellant, 

v. 

CENTRAL COUNCIL OF TLINGIT 

AND HAIDA INDIAN TRIBES OF 

ALASKA; RICHARD PETERSON, 

individually and in his capacity as 

President of the Central Council of Tlingi

and Haida Indian Tribes of Alaska; and 

WILLIAM WARE, individually and in 

his capacity as Tribal Transportation 

Manager of the Central Council of Tlingit

and Haida Indian Tribes of Alaska, 

Appellees. 

t

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) Supreme Court No. S-16235 

Superior Court No. 1JU-15-00625 CI 

O P I N I O N 

o. 7198 – September 8, 2017 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Juneau, Louis J. Menendez, Judge. 

Appearances: Lael A. Harrison, Faulkner Banfield, P.C., 

Juneau, for Appellant. Richard D. Monkman and Kendri M. 

M. Cesar, Sonosky, Chambers, Sachse, Miller & Munson, 

LLP, Juneau, for Appellees. Nicholas Gasca, Tanana Chiefs 

Conference, Fairbanks, for Amicus Curiae Tanana Chiefs 

Conference. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Before: Stowers,ChiefJustice, Winfree,Bolger, and Carney, 

Justices. [Maassen, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Under the doctrine of tribal sovereign immunity, an Indian tribe is immune 

from suit unless Congress has authorized the suit or the tribe has waived its immunity. 

Relying on this doctrine, the superior court dismissed a complaint by Douglas Indian 

Association against Central Council of Tlingit and Haida Indian Tribes of Alaska and 

two Central Council officials. Douglas now argues that the superior court’s action was 

premature because sovereign immunity is an affirmative defense that should be resolved 

following discovery. But the federal courts recognize that tribal sovereign immunity is 

a jurisdictional bar that may be asserted at any time, and we agree with this basic 

principle. Immunity is a core aspect of tribal sovereignty that deprives our courts of 

jurisdiction when properly asserted. We therefore affirm the superior court’s order 

dismissing the complaint. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Douglas alleges the following facts in its complaint. Both Douglas and 

Central Council are federally recognized Indian tribes located in Juneau. Between 2005 

and 2012, both tribes were eligible to receive tribal transportation funds from the federal 

government. Central Council formed a consortium to administer these funds on behalf 

of individual tribes. Douglas accepted Central Council’s invitation to join the 

consortium, and the two tribes signed a Memorandum of Agreement in August 2006. 

Douglas attached the Agreement as an exhibit to its complaint. The 

Agreement provided that upon Douglas’s withdrawal from the consortium, Douglas’s 

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funds would be administered in accordance with the federal regulations that govern such 

withdrawals.1 Both Douglas and Central Council also expressly reserved their sovereign 

immunity from suit. 

According to Douglas’s complaint, the consortium did not undertake any 

of Douglas’s transportation projects or use any of Douglas’s funds for Douglas’s benefit. 

CentralCouncil representatives toldDouglasthat thefundsweremaintained in aseparate 

savings account and had not been expended. Douglas withdrew from the consortium in 

January 2012 and asked Central Council to remit Douglas’s funds, but Central Council 

neither remitted the funds nor provided an accounting. 

B. Proceedings 

In April 2015 Douglas filed suit against Central Council and two of its 

tribal officials, President Richard Peterson and Tribal Transportation Manager William 

Ware, in their individual and official capacities. Douglas sought a declaration that 

Central Council owed a fiduciary duty to Douglas under a trust or agency theory and 

requested injunctive relief against the tribal officials “enjoining any action inconsistent 

with the court’s declaratory judgment.” Douglas also sought specific performance and 

damagesfromCentralCouncil. Nowhere in its complaint did Douglas allegethat Central 

Council had waived its sovereign immunity or Congress had abrogated it. Nor did 

Douglas make any allegations about Peterson and Ware other than to state their names 

and titles. 

Central Council resisted Douglas’s attempts to engage in discovery and 

filed a motion to dismiss for lack of subject matter jurisdiction under Alaska Civil 

See 25 C.F.R. §§ 1000.32-.35, .253 (2017). The regulations provide a 

federal administrative process for resolving disputes between the consortium and a 

withdrawing tribe. 25 C.F.R. § 1000.34. These regulations do not provide for any 

abrogation or waiver of sovereign immunity. 

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Rule 12(b)(1), asserting tribal sovereign immunity. Douglas opposed the motion, 

arguing that sovereign immunity is an affirmative defense that can be raised only after 

discovery in an Alaska Civil Rule 56 motion for summary judgment, not a jurisdictional 

bar that can be raised via Rule 12(b)(1); that it was at least entitled to jurisdictional 

discovery; and that sovereign immunity did not protect the tribal officials from suit. 

The superior court granted Central Council’s motion to dismiss, and 

Douglas appeals. Tanana Chiefs Conference filed an amicus curiae brief in support of 

Central Council’s position. 

III. STANDARD OF REVIEW 

We review issues of sovereign immunity de novo.2 We also “review 

de novo a superior court’s decision to dismiss a complaint for lack of subject matter 

jurisdiction.”3 “In exercising our independent judgment, we will adopt the rule of law 

that is most persuasive in light of precedent, reason, and policy.”4 

“We review the denial of a motion to compel discovery for abuse of 

discretion.”5 “An abuse of discretion occurs when [a decision] is ‘arbitrary, capricious, 

manifestly unreasonable, or improperly motivated.’ ”6 

2 McCrary v. Ivanof Bay Vill., 265 P.3d 337, 339 (Alaska 2011). 

3 Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014). 

4 Id. 

5 Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146 (Alaska 1999) 

(citing Stone v. Int’l Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska 1996)). 

6 Price v. Unisea, Inc., 289 P.3d 914, 918 (Alaska 2012) (quoting Okagawa 

v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010)). 

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IV. DISCUSSION 

Douglas renews its arguments on appeal. First, Douglas argues that under 

Alaska law, tribal sovereign immunity, like state sovereign immunity, is an affirmative 

defense rather than a jurisdictional bar, meaning that it should be “raised in a Rule 56 

motion for summary judgment after discovery” rather than a Rule 12(b)(1) motion to 

dismiss. Second, Douglas argues that even if tribal sovereign immunity is a 

jurisdictional bar, the superior court should have granted Douglas’s request for 

jurisdictional discovery as to whether Central Council may have waived its sovereign 

immunity or whether the tribal officials may have acted ultra vires. Finally, Douglas 

argues that even if Central Council is protected by sovereign immunity, Douglas should 

still be permitted to sue Peterson and Ware, the two tribal officials, for declaratory and 

injunctive relief. 

A. Tribal Sovereign Immunity Is A Jurisdictional Bar. 

The parties do not dispute that Central Council is a federally recognized 

tribe, that federally recognized tribes are entitled to tribal sovereign immunity, and that 

under federal law, tribal sovereign immunity may be raised prior to discovery in a 

Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Their dispute is 

whether Alaska should follow this federal rule. For the reasons discussed below, we 

hold that under Alaska law, tribal sovereign immunity is a jurisdictional bar that may be 

invoked by a sovereign defendant in a Rule 12(b)(1) motion to dismiss. 

Under the doctrine of tribal sovereign immunity, an Indian tribe is immune 

from suit unless Congress has authorized the suit or the tribe has waived its immunity.7 

This common law immunity is “[a]mong the core aspects of sovereignty” possessed by 

Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). 

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tribes and “traditionally enjoyed by sovereign powers.”8 In Michigan v. Bay Mills Indian 

Community, the U.S. Supreme Court recently reaffirmed that it has “time and again 

treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against 

a tribe absent congressional authorization (or a waiver).”9 

“[T]ribal immunity ‘is a matter of federal law and is not subject to 

diminution by the States.’ ”10 We have long held that federally recognized tribes in 

Alaska are sovereign entities entitled to tribal sovereign immunity in Alaska state court.11 

We have explained that this immunity is “motivated in significant part by the need to 

ensure that tribal assets are used as the tribe wishes, without threat from litigation.”12 We 

have thus affirmed a superior court’s dismissal of a suit against an Alaska Native village 

8 Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (quoting 

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). 

9 Id. at 2030-31 (alteration in original) (quoting Kiowa, 523 U.S. at 756). 

10 Id. at 2031 (quoting Kiowa, 523 U.S. at 756); see also Atkinson v. Haldane, 

569 P.2d 151, 163 (Alaska 1977) (“Because of the supremacy of federal law, we are 

bound to recognize the doctrine of tribal sovereign immunity . . . .”). 

11 See Atkinson, 569 P.2d at 162-63. 

12 Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 440 

(Alaska 2004) (citing Native Vill. of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 32, 

41 n.24 (Alaska 1988); Atkinson, 569 P.2d at 160). 

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when the village appeared on the U.S. Department of the Interior’s list of federally 

recognized tribes and raised tribal sovereign immunity as a defense.13 

But we have deferred the question “whether a tribe’s sovereign immunity 

is merely an affirmative defense or a bar to jurisdiction.”14 Although the U.S. Supreme 

Court has not addressed this question directly, many federal circuit courts have indicated 

that tribal sovereign immunity is properly invoked as a jurisdictional bar under the 

federal version15 of Rule 12(b)(1).16 Douglas nonetheless argues that Alaska should 

follow a different rule. Douglas asks us to treat tribal sovereign immunity as an 

13 McCrary v. Ivanof Bay Vill., 265 P.3d 337, 339, 342 (Alaska 2011). See 

also John v. Baker, 982 P.2d 738, 750 (Alaska 1999) (deferring to the federal 

government in recognizing the sovereignty of tribes who appear on the federal list); 

25 U.S.C.A. §§ 5130, 5131 (West Supp. 2017) (authorizing annual publication of the 

list); Indian Entities Recognized and Eligible To Receive Services From the United 

States Bureau of Indian Affairs, 82 Fed. Reg. 4,915 (Jan. 17, 2017). 

14 McCrary, 265 P.3d at 342 n.36 (citing Sea Hawk Seafoods, Inc. v. State, 

215 P.3d 333, 339 (Alaska 2009); Kiowa, 523 U.S. at 755-56; Puyallup Tribe, Inc. v. 

Dep’t of Game of the State of Wash., 433 U.S. 165, 172 (1977)). 

15 Under both the Alaska and federal rules of civil procedure, a party may 

assert the defense of lack of subject matter jurisdiction by motion before serving a 

responsive pleading. Alaska. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(1). 

16 See, e.g., Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1286-87(11th Cir. 

2015); Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Memphis Biofuels, LLC 

v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 919-20 (6th Cir. 2009); Miner Elec., Inc. 

v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007); Garcia v. Akwesasne 

Hous. Auth., 268 F.3d 76, 78, 84 (2d Cir. 2001); Hagen v. Sisseton-Wahpeton Cmty. 

Coll., 205 F.3d 1040, 1043 (8th Cir. 2000). But see Meyers v. Oneida Tribe of Indians 

of Wis., 836 F.3d 818, 820 (7th Cir. 2016), cert. denied, 137 S. Ct. 1331 (2017) 

(endorsing the district court’s conversion of a tribe’s Rule 12(b)(1) motion to dismiss for 

lack of jurisdiction to a Rule 12(b)(6) motion to dismiss for failure to state a claim 

because “the question of sovereign immunity is not jurisdictional”). 

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affirmative defense “properly raised in a Rule 56 motion for summary judgment after 

discovery.”17 

Douglas relies primarily on our decision in Sea Hawk Seafoods v. State. 

18 

In Sea Hawk Seafoods, a fish processor sued the State of Alaska for fraudulent 

conveyance and conspiracy.19 After almost ten years of litigation, the State raised the 

defense of sovereign immunity.20 We rejected the State’s argument that sovereign 

immunity was a jurisdictional bar and determined that “the State’s claim of sovereign 

immunity is properly characterized as an affirmative defense.”21 We explained that 

sovereign immunity is “ ‘an avoidance’ under [Alaska] Civil Rule 8(c)” because, like an 

avoidance, “[s]overeign immunity . . . bars a person from bringing a claim against the 

State and plaintiffs are not required to show that they may sue the State in order to 

proceed with their claims.”22 We concluded that the proper inquiry for determining if the 

17 Douglas apparently suggests that an affirmative defense can be decided 

only after discovery. This is inaccurate. Affirmative defenses may be raised in a preanswer motion under Civil Rule 12(b)(6) as long as the defense “clearly appear[s] on the 

face of the pleading.” Martin v. Mears, 602 P.2d 421, 428 (Alaska 1979) (quoting 

5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 

§ 1357, at 605-06 (1969 & Supp. 1979)). We note that Central Council’s immunity 

clearly appears on the face of Douglas’s complaint, which states that “[t]he defendant 

Central Council . . . is a federally recognized Indian tribe” and does not allege that 

Congress has authorized Douglas’s suit or that Central Council has waived its immunity. 

18 215 P.3d 333 (Alaska 2009). 

19 Id. at 334-35. 

20 Id. at 334. 

21 Id. at 338-39. 

22 Id. (footnotes omitted). 

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State had waived its immunity was “whether the adverse party is prejudiced by the 

moving party’s delay in raising the defense.”23 

Douglas argues that Sea Hawk Seafoods states a general rule of Alaska 

procedure that applies to all forms of sovereign immunity, including tribal sovereign 

immunity. Wedisagree. Douglas minimizes the“few, limited, distinctions between state 

and tribal sovereign immunity” as relating primarily to the states’ participation in the 

Constitutional Convention. But Douglas ignores the specific situation in Alaska: Our 

state constitution expressly provides for suits against the State.24 We cited this provision 

at the beginning of our discussion in Sea Hawk Seafoods, noting that criticism of 

sovereign immunity led some states to “consent[] to be sued under certain conditions.”25 

We have thus stated that in claims against the State, “liability is the rule, immunity the 

exception,”26 and we have placed the burden of showing a presumption of immunity on 

a state instrumentality wishing to invoke it.27 Our statements describing the contours of 

Alaska’s sovereign immunity under Alaska state laware informed by state constitutional 

23 Id. at 340 (quoting Pickle v. Bd. of Cty. Comm’rs of Cty. of Platte, 764 P.2d 

262, 264 (Wyo. 1988)). 

24 Alaska Const. art. II, § 21 (“The legislature shall establish procedures for 

suits against the State.”). 

25 Sea Hawk Seafoods, 215 P.3d at 336-37 (citing State v. ZIA, Inc., 556 P.2d 

1257, 1260 (Alaska 1976)). 

26 Kinegak v. State, Dep’t of Corr., 129 P.3d 887, 889 (Alaska 2006) (quoting 

Native Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 49 (Alaska 2004)); see also Sea 

Hawk Seafoods, 215 P.3d at 337 (“Presently, the general rule in Alaska is that the 

government is liable for its wrongs.”). 

27 Alaska R.R. Corp., 87 P.3d at 49. 

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underpinnings and policies that are not present when analyzing the federal doctrine of 

tribal sovereign immunity. 

We instead take guidance from federal law and the Ninth Circuit’s analysis 

in Pistor v. Garcia. 

28 The Pistor court recognized that subject matter jurisdiction is 

traditionally understood to refer to “the courts’ statutory or constitutional power to 

adjudicate the case.”29 When the court lacks subject matter jurisdiction, “ ‘the court must 

dismiss the complaint,’ sua sponte if necessary.”30 “Sovereign immunity’s ‘quasijurisdictional . . . nature,’ by contrast, means that ‘[i]t may be forfeited where the 

[sovereign] fails to assert it . . . .’ ”31 But even though “sovereign immunity is not 

‘jurisdictional in the sense that it must be raised and decided by this Court on its own 

motion,’ ” it is jurisdictional “in the sense that it ‘may be asserted at any time.’ ”32 

28 791 F.3d 1104 (9th Cir. 2015). 

29 Id. at 1110 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 

(2010)). 

30 Id. at 1111 (quoting Leeson v. Transamerica Disability Income Plan, 671 

F.3d 969, 975 n.12 (9th Cir. 2012)); see also Alaska R. Civ. P. 12(h)(3) (“Whenever it 

appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the 

subject matter the court shall dismiss the action.”). 

31 Id. (alterations in original) (quoting In re Bliemeister, 296 F.3d 858, 861 

(9th Cir. 2002)). 

32 Id. (first quoting Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 515 

n.19 (1982); and then quoting Mitchell v. Franchise Tax Bd., 209 F.3d 1111, 1117 (9th 

Cir. 2002)). While a waiver of tribal sovereign immunity may not be implied, we 

observe that a tribe’s litigation conduct may sometimes be construed as a waiver of 

immunity. See generally Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 

1011, 1017-18 (9th Cir. 2016) (comparing cases). We interpret the Ninth Circuit to 

mean that the tribe may raise its immunity at any time, at which point the court would 

consider whether the tribe has “clearly and unequivocally expressed its intent to waive 

(continued...) 

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“Although sovereign immunityis onlyquasi-jurisdictionalin nature, Rule12(b)(1) is still 

a proper vehicle for invoking sovereign immunity from suit.”33 

We find this analysis persuasive with respect to tribal sovereign immunity, 

as well as consistent with our precedent. Tribal sovereign immunity may be termed 

“quasi-jurisdictional” in Alaska because, as we have previously recognized, “subject 

matter jurisdiction is not waivable and can even be raised at a very late stage in the 

litigation,”34 but “an Indian tribe may waive its sovereign immunity” from suit.35 

Nonetheless, when a tribal defendant invokes sovereign immunity in an appropriate 

manner and the tribe is entitled to such immunity, our courts “may not exercise 

jurisdiction.”36 Because tribal sovereign immunity serves as a jurisdictional bar under 

federal law, we follow the Ninth Circuit in concluding that a motion to dismiss under 

32 (...continued)
 


its immunity from suit” based on its litigation conduct. Id. at 1017.
 


33 Pistor, 791 F.3d at 1111 (citations omitted). 

34 Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d 246, 249 (Alaska 

1996). 

35 Native Vill. of Eyak v. GC Contractors, 658 P.2d 756, 759 (Alaska 1983). 

36 Puyallup Tribe, Inc. v. Dep’t of Game of the State of Wash., 433 U.S. 165, 

172 (1977) (emphasis added). Applying a state affirmative defense rule to tribal 

sovereign immunity could also lead to a conflict with federal law when determining 

whether a tribe is entitled to immunity. Compare Sea Hawk Seafoods, Inc. v. State, 215 

P.3d 333, 341 (Alaska 2009) (analysis “turns on whether the plaintiff is prejudiced by 

the [sovereign’s] late assertion of the defense”), with Bodi, 832 F.3d at 1017 (question 

is “whether . . . the Tribe clearly and unequivocally expressed its intent to waive its 

immunity from suit”). 

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Rule 12(b)(1) for lack of subject matter jurisdiction is “a proper vehicle for invoking 

sovereign immunity from suit.”37 

We respect Douglas’s position as itself a tribal sovereign, which “believes 

that the transparency and accountability that come with providing discovery are 

consistent with the high standards it associates with sovereignty.” But we are mindful 

of the concerns raised by amicus Tanana Chiefs Conference, representing rural tribes in 

interior Alaska, that “even ‘limited’ discovery could be financially ruinous for many 

tribes in [the Conference’s] region” as funds are shifted from critical programs and rural 

village economies to urban lawyers in Anchorage, Fairbanks, or Juneau. We find the 

latter consideration more compelling given that “protecting tribal assets has long been 

held crucial to the advancement of the federal policies advanced by immunity.”38 And 

we observe that even with a jurisdictional bar, a tribe can still choose to waive its own 

immunity for transparency and accountability reasons or protect its interests when 

entering into a contract with another tribe by negotiating a waiver of the other tribe’s 

immunity or some other procedure for resolving disputes.39 But the “federal policies of 

tribal self determination, economic development, and cultural autonomy”40 are better 

served by leaving these decisions up to the tribes. We hold that tribal sovereign 

37 Pistor, 791 F.3d at 1111. 

38 Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 440 

(Alaska 2004). 

39 For instance, Douglas seems to have access to an alternative federal 

administrative remedy pursuant to the Agreement. See supra note 1 and accompanying 

text. 

40 Runyon, 84 P.3d at 440 (quoting Am. Indian Agric. Credit Consortium, Inc. 

v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985)). 

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immunity is a jurisdictional bar properly raised in a Rule 12(b)(1) motion to dismiss for 

lack of subject matter jurisdiction. 

B.	 	 The Superior Court Did Not Abuse Its Discretion By Denying 

Discovery To Douglas. 

Douglasarguesthateveniftribalsovereign immunity is ajurisdictional bar, 

the superior court erred by denying Douglas jurisdictional discovery on two issues: 

(1) whether Central Council may have waived its sovereign immunity and (2) whether 

the tribal officials may have acted ultra vires. We conclude that the superior court did 

not abuse its discretion by denying discovery to Douglas. 

The superior court found that Douglas “presented no substantive evidence 

as to waiver” and “alleged no specific ultra vires actions or continued violation of federal 

law on the part of [the tribal officials].” These statements are supported by the record. 

Douglas did not allege any waiver in its complaint; in fact, Douglas attached the 

Agreementexpressly reserving Central Council’s immunity. Nordid Douglasallegeany 

ultra vires actions on the part of Peterson and Ware. 

In its opposition to the motion to dismiss, Douglas described several broad 

categories of documents “that may contain a waiver of sovereign immunity” (emphasis 

added), but although Douglas provided theories for how these documents could contain 

evidence of waiver, Douglas did not allege any facts to show why they would.41 As to 

41 Douglas listed three types of documents: (1) Central Council’s agreements 

and correspondence with the federal agencies who manage tribal transportation funds; 

(2) Central Council’s internal resolutions regarding the consortium and these funds; and 

(3) Central Council’s insurance coverage. But it is not clear, for instance, why a federal 

agency would negotiate a third-party waiver for Douglas when federal regulations 

already provide an administrative process for the disposition of funds after withdrawal, 

as referenced in the Agreement’s termination clause. Nor is it clear why Central Council 

would pass a resolution waiving its immunity as to Douglas without informing Douglas, 

(continued...) 

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the tribal officials, Douglas did not even offer theories; Douglas stated only that the issue 

is “intensely factual” without alleging any specific actions taken by the officials or any 

specific documents that would resolve“thequestionofwhether [thetribal officials] acted 

inside or outside the scope of their authority from the tribe.” 

Douglas argues that much of its requested discovery “would have been 

produced in routine[AlaskaCivil]Rule26 initial disclosures,” but this begs the question; 

Douglas was not entitled to Rule 26 disclosures until the court determined it had 

jurisdiction to order such disclosures. Jurisdictional discovery may be appropriate in 

some cases involving tribal sovereign immunity,42 but the plaintiff must specifically 

indicate “what facts additional discovery could produce that would affect [the court’s] 

jurisdictional analysis.”43 Here, Douglas indicated no facts beyond its conclusory 

assertions of possible waiver and possible ultra vires actions. The superior court did not 

abuse its discretion by denying discovery on these issues. 

41 (...continued) 

or why insurance would have any bearing on immunity. 

42 See, e.g., Runyon, 84 P.3d at 440-41 (describing factors used to determine 

whether an organization “is an arm of a tribe for sovereign immunity purposes”). 

43 Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 872 n.21 (Alaska 

2014) (alteration in original) (quoting Cheyenne Arapaho Tribes of Okla. v. United 

States, 558 F.3d 592, 596 (D.C. Cir. 2009)). See also id. at 872-73 (upholding superior 

court’s denial of further discovery “[b]ecause none of the requested discovery would 

have led to information relevant to thejurisdictional analysis”); Price v. Unisea, Inc., 289 

P.3d 914, 923 (Alaska 2012) (“Since further discovery would not have changed the 

superior court’s immunity analysis, it was properly denied by the superior court.”). 

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C.	 	 The Tribal Officials In This Case Are Protected From Suit By 

Sovereign Immunity. 

Finally, Douglas argues that even if Central Council is protected by tribal 

sovereign immunity, Peterson and Ware are not immune from suit. Douglas offers two 

theories: (1) the officials could be sued for injunctive relief under Ex parte Young, 

44 and 

(2) Douglas could sue the officials based on their ultra vires actions without alleging 

specific actions in its complaint. The superior court rejected both theories, and we affirm 

the court’s dismissal against Central Council and both officials. 

1.	 	 Ex parte Young does not apply to the officials in this case. 

Douglas first argues that the tribal officials can be sued for injunctive relief 

under the doctrine of Ex parte Young. Under that doctrine, “immunity does not extend 

to officials acting pursuant to an allegedly unconstitutional statute.”45 “Because, under 

Ex parte Young, a state officer who violates federal law or the federal constitution is 

presumed to be acting without the authority of the state, such suits are simply deemed 

not to be suits against the state, so they do not implicate a state’s sovereign immunity.”46 

“This doctrine has been extended to tribal officials sued in their official capacity such 

that ‘tribal sovereign immunity does not bar a suit for prospective relief against tribal 

officers allegedly acting in violation of federal law.’ ”47 “[T]he relevant inquiry is only 

44	 	 209 U.S. 123 (1908). 

45 Burlington N. &Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir. 

2007) (citing Ex parte Young, 209 U.S. at 155-56). 

46 State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs. v. 

Native Vill. of Curyung, 151 P.3d 388, 404 (Alaska 2006) (citing Ex parte Young, 209 

U.S. at 159). 

Vaughn, 509 F.3d at 1092 (quoting Burlington N. R.R. Co. v. Blackfeet
 


Tribe, 924 F.2d 899, 901 (9th Cir. 1991), overruled on other grounds by Big Horn Cty.
 


(continued...)
 


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whether [the plaintiff] has alleged an ongoing violation of federal law and seeks 

prospective relief.”48 

Douglas has not alleged an ongoing violation of federal law. Instead, 

Douglas argues that the doctrine of Ex parte Young should be extended to reach tribal 

officials who allegedly violate state law. But we do not reach this question because 

regardless of the answer, Ex parte Young cannot be used to obtain the remedy that 

Douglas seeks. Douglas requests injunctive relief orderingthat theofficials“neither take 

nor permit any action inconsistent” with the court’s declaration that Central Council is 

Douglas’s trustee or agent, but “Ex parte Young cannot be used to obtain . . . an order for 

specific performance of a . . . contract.”49 Given that tribal sovereign immunity is “not 

subject to diminution by the States,”50 we decline to extend the doctrine of Ex parte 

47 (...continued) 

Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000)); see also Santa Clara 

Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (analogizing to Ex parte Young for support 

that a tribal official was “not protected by the tribe’s immunity from suit”). 

48 Vaughn, 509 F.3d at 1092 (citing Verizon Md., Inc. v. Pub. Serv. Comm’n 

of Md., 535 U.S. 635, 645-46 (2002)). 

49 Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 256-57 (2011) 

(citing Edelman v. Jordan, 415 U.S. 651, 666-67 (1974)); see also COHEN’S HANDBOOK 

OF FEDERAL INDIAN LAW § 7.05[1][a] (Nell Jessup Newton ed., 2012 & Supp. 2015) 

(“[A] suit seeking specific performance on a tribal contract cannot be maintained against 

a tribal official” because “the relief will run directly against the tribe itself.” (citing 

Tamiami Partners v. Miccosukee Tribe of Fla., 177 F.3d 1212, 1225-26 (11th Cir. 

1999))). 

Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2031 (2014). 

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Young to allow a suit to proceed against a tribal official based on what is essentially a 

contract claim merely because Douglas seeks declaratory and injunctive relief.51 

2. Douglas has not alleged any ultra vires actions. 

Douglas also argues that the tribal officials are not protected by the tribe’s 

sovereign immunity because their actions were ultra vires, i.e. outside the scope of the 

officials’ delegated authority. As the superior court recognized, an official acting 

“without any authority whatever” is not protected by sovereign immunity.52 The court 

nonetheless rejected Douglas’s ultra vires theory because Douglas “did not plead any set 

of facts or any allegation that [the tribal officials] acted outside their scope of authority.” 

Douglas argues that it satisfied Alaska’s lenient notice pleading standards 

under Rule 8 and that “[u]ltra vires actions are not one of the matters required to be plead 

with specificity by [Alaska Civil Rule] 9.” But Douglas’s focus on pleading standards 

is misplaced. Central Council did not move to dismiss Douglas’s complaint based on 

Douglas’s failure to satisfy Alaska’s pleading standards; that is, Central Council did not 

file a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could 

be granted. Instead, as we explained earlier, Central Council properly filed a Rule 

12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Once the issue of the 

superior court’s jurisdiction was raised, thecourt was then required to determine whether 

51 Cf. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997) (“To 

interpret Young to permit a federal-court action to proceed in every case where 

prospective declaratory and injunctive relief is sought against an officer . . . would be to 

adhere to an empty formalism and to undermine the principle . . . that Eleventh 

Amendment immunity represents a real limitation on a federal court’s federal-question 

jurisdiction.”). 

Pennhurst State Sch. &Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) 

(quoting Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982) 

(plurality opinion)). 

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it had subject matter jurisdiction before it could allow further litigation to proceed — 

regardless of whether the facts supporting jurisdiction were alleged in the complaint or 

established in other pleadings.53 

The superior court properly conducted that analysis in this case. Central 

Council filed a motion challenging the court’s jurisdiction, arguing that both Central 

Council and the tribal officials were protected by tribal sovereign immunity. Douglas 

was then given an opportunity to respond — to show why the court did, in fact, have 

subject matter jurisdiction. At this point in the litigation, Douglas should have made any 

legal arguments or factual allegations supporting the superior court’s subject matter 

jurisdiction, such as facts supporting its theory that the tribal officials were acting outside 

the scope of their authority and were therefore not protected by Central Council’s 

sovereign immunity. But as the superior court found, Douglas never “plead[ed] any set 

of facts or any allegation that [the tribal officials] acted outside their scope of authority.” 

The superior court therefore concluded that it lacked jurisdiction to hear the claims 

against the tribal officials. 

Thesuperior court’s conclusion was correct. IfDouglaswanted toestablish 

the court’s subject matter jurisdiction based on an ultra vires theory of avoiding tribal 

sovereign immunity, it was required to assert the legal and factual bases for that 

argument in response to Central Council’s motion to dismiss for lack of subject matter 

jurisdiction. Because Douglas failed to do so, we affirm the superior court’s dismissal 

of Douglas’s claims. 

See Alaska R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the 

parties . . . that the court lacks jurisdiction of the subject matter the court shall dismiss 

the action.” (emphasis added)); Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 

872-73, 878 (Alaska 2014) (affirming a superior court’s dismissal based on 

Rule 12(b)(1) where the court reviewed “all the information relevant to the jurisdictional 

analysis” including “affidavits, memoranda, . . . and other documents”). 

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V. CONCLUSION 

For the reasons stated above, we AFFIRM the superior court’s judgment 

dismissing the complaint. 

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