                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 10 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


In re: ROBERTS LITIGATION,                       No.   15-35404
______________________________
                                                 D.C. Nos.    1:13-cv-00026-SEH
SHERRI ROBERTS,                                               1:14-cv-00016-SEH

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

RANDY ELLIOTT; JIM SCOTT; HAWK
HAAKANSON,

              Defendants-Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                             Submitted June 14, 2017**
                                Seattle, Washington

Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Sherri Roberts, a non-Indian, was arrested twice pursuant to bench warrants

issued by the Northern Cheyenne Tribal Court. She brought a Bivens action

against three Bureau of Indian Affairs law enforcement officers (BIA Officers),

alleging that both arrests violated her Fourth and Fifth Amendment rights. She

also brought a Federal Tort Claim’s Act (FTCA) claim against the United States

for the second arrest,1 alleging false arrest, false imprisonment, and negligent

infliction of emotional distress. The district court granted summary judgment

against Roberts on all claims. We affirm.

      1.     The district court correctly granted summary judgment against

Roberts on the Fourth and Fifth Amendment claims on the ground that the BIA

Officers had qualified immunity. Government officials’ conduct is shielded from

liability for civil damages when it “does not violate clearly established . . .

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Roberts is correct that tribal courts do not

have inherent criminal jurisdiction over non-Indians. Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191, 212 (1978), superseded by statute on other grounds as

stated in United States v. Lara, 541 U.S. 193 (2004). However, Northern



      1
        There is no dispute that she filed her FTCA claim based on the first arrest
outside the statute of limitations.
                                            2
Cheyenne Tribal Court Rule of Criminal Procedure 9(B)(3) allows for non-Indians

to consent to personal jurisdiction in the tribal court for criminal proceedings. The

Supreme Court has not addressed the interaction between Oliphant’s rejection of

inherent criminal jurisdiction over non-Indians and a non-Indian’s ability to waive

the question of personal jurisdiction before the tribal court in criminal matters.

The extent to which a non-Indian may consent to tribal jurisdiction is not settled

law. Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1136–40 (9th Cir. 2006) (en

banc) (discussing non-tribal member consent to jurisdiction in civil suits).

      Because the BIA Officers did not violate clearly established constitutional

law when they arrested Roberts pursuant to a facially valid warrant issued by the

tribal court, they are entitled to qualified immunity. The officers’ good faith

reliance on the facially valid warrant was not unreasonable. See Baker v.

McCollan, 443 U.S. 137, 143–45 (1979) (detention pursuant to a valid warrant for

a time not unduly long not actionable under § 1983); Erdman v. Cochise Cty.,

Ariz., 926 F.2d 877, 882 (9th Cir. 1991) (detention pursuant to a facially valid

bench warrant not a constitutional violation). Even if the BIA Officers knew

Roberts was non-Indian, given the tribal court rules provide for waiver of lack of

personal jurisdiction over non-Indians, the BIA Officers did not act unreasonably

in: (1) assuming the tribal court had jurisdiction when it issued the warrant and (2)


                                           3
subsequently executing the warrant. See Arnsberg v. United States, 757 F.2d 971,

981 (9th Cir. 1985).

      2.     The district court correctly granted summary judgment against

Roberts on the FTCA claims alleging false arrest, false imprisonment, and

negligent infliction of emotional distress because Roberts’s second arrest was made

pursuant to facially valid warrant. Under Montana law, to establish a false

imprisonment or false arrest claim, the plaintiff must demonstrate: (1) “the restraint

of an individual against [her] will, and [2] the unlawfulness of the restraint.”

Kichnet v. Butte-Silver Bow Cty., 274 P.3d 740, 745 (Mont. 2012). The second

element cannot be satisfied, because the relevant arrest and detention occurred

pursuant to a facially valid warrant. Id. (“It is well-settled that a court’s

determination of probable cause is a complete defense to a claim of false arrest or

imprisonment . . .”). The bench warrant was issued pursuant to the tribal judge’s

correct determination that Roberts failed to appear at a status conference, which

established probable cause to arrest her. Even if Roberts is correct that the warrant

was not actually valid, that does not dispute the facial validity of the warrant in the

eyes of the arresting officers for the purpose of the tort analysis. Strung v.

Anderson, 529 P.2d 1380, 1381 (Mont. 1975). Thus, the lawful arrest is a

“complete defense” to Roberts’s false arrest or imprisonment claims.


                                            4
      In Montana, “[a] cause of action for negligent infliction of emotional distress

will arise under circumstances where serious or severe emotional distress to the

plaintiff was the reasonably foreseeable consequence of the defendant’s negligent

act or omission.” Sacco v. High Country Indep. Press, 896 P.2d 411, 425 (Mont.

1995). The BIA Officer did not engage in a “negligent act or omission.” As

explained above, the BIA Officer’s reliance on the warrant issued by the tribal

court was reasonable.

      AFFIRMED.




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