Here is the order in Tramper v. Smith (W.D. N.C.):
An excerpt:
Plaintiff’s Complaint will be dismissed for failure to state a claim. Plaintiff purports to bring a civil action pursuant to 42 U.S.C. § 1983 against the tribal prosecutor and the tribal judge who participated in Plaintiff’s criminal action in tribal court for the Eastern Band of Cherokee Indians. Actions brought under 42 U.S.C. § 1983 must allege deprivation of constitutional rights under color of state law, as opposed to under color of tribal law. See R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 1983). Here, Plaintiff does not allege that Defendants were acting under color of state law; indeed, Plaintiff’s claim appears to arise from his criminal conviction in tribal court pursuant to tribal law. Thus, for this reason alone, Plaintiff’s action is subject to dismissal.
In addition, to the extent that Plaintiff purports to sue Defendants in their official capacities, Defendants enjoy sovereign immunity from suit. “Indian tribes are neither states, nor part of the federal government, nor subdivisions of either.” N.L.R.B. v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) (en banc). Unless Congress authorizes the suit or sovereign immunity has been waived, Indian tribes, tribal entities, and persons acting on tribes’ behalf in an official capacity enjoy sovereign immunity against suit. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (tribe); Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (tribal entity), Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479-80 (9th Cir.1985) (tribal officials).
Turtle Talk 