      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,                 )
                                            )           Supreme Court No. S-16235
                    Appellant,              )
                                            )           Superior Court No. 1JU-15-00625 CI
       v.                                   )
                                            )           OPINION
CENTRAL COUNCIL OF TLINGIT                  )
AND HAIDA INDIAN TRIBES OF                  )           No. 7198 – September 8, 2017
ALASKA; RICHARD PETERSON,                   )
individually and in his capacity as         )
President of the Central Council of Tlingit )

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.              )

                                            )


              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, Chief Justice, 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


                                            -2-                                       7198

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.
Central Council representatives told Douglas that the funds were maintained in a separate
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
damages from Central Council. Nowhere in its complaint did Douglas allege that 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


       1
             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.

                                            -3-                                       7198

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)).

                                           -4-                                      7198

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




       7
              Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).

                                           -5-                                        7198
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).
                                            -6-                                         7198

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”).

                                           -7-                                        7198

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 pre­
answer 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).

                                            -8­                                     7198

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. We disagree. 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 law are 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.

                                            -9-                                        7198

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 ‘quasi­
jurisdictional . . . 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...)
                                           -10-                                        7198

“Although sovereign immunity is only quasi-jurisdictional in nature, Rule 12(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”).

                                           -11-                                       7198

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)).

                                          -12-                                       7198

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.
              Douglas argues that even if tribal sovereign immunity is a jurisdictional 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
Agreement expressly reserving Central Council’s immunity. Nor did Douglas allege any
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...)
                                           -13-	                                       7198

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 “the question of whether [the tribal 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 [Alaska Civil] Rule 26 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 the jurisdictional 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.”).

                                            -14-                                        7198

       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).
       47
             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...)
 


                                             -15-	                                        7198

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 ordering that the officials “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))).
       50
              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, the court 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.”).
       52
              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)).
                                             -17-                                         7198

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.
              The superior court’s conclusion was correct. If Douglas wanted to establish
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.

       53
                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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