Thomas Mitchell v. Tulalip Tribes of Washington ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       OCT 25 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    THOMAS MITCHELL, husband and wife;              No.    17-35959
    et al.,
    D.C. No. 2:17-cv-01279-JCC
    Plaintiffs-Appellants,
    v.                                             MEMORANDUM*
    TULALIP TRIBES OF WASHINGTON,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    John C. Coughenour, District Judge, Presiding
    Submitted October 12, 2018**
    Seattle, Washington
    Before:      BLACK,*** TALLMAN, and BEA, Circuit Judges.
    Thomas Mitchell, his wife, and two other married couples are non-tribal
    property owners in fee simple of residences within the historical boundaries of the
    *
    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).
    ***
    The Honorable Susan H. Black, United States Circuit Judge for the
    U.S. Court of Appeals for the Eleventh Circuit, sitting by designation.
    Tulalip Indian Reservation in Snohomish County, Washington. They appeal
    dismissal of their claims for declaratory and injunctive relief seeking to quiet title
    against the Tulalip Tribes of Washington (“the Tribes”) regarding tribal ordinances
    that they allege create a cloud on their title. The district court dismissed the claims
    as unripe and did not address the Tribes’ alternative grounds for dismissal
    including res judicata and tribal sovereign immunity. We have jurisdiction under
    
    28 U.S.C. § 1291
    , and we affirm the dismissal on grounds of tribal sovereign
    immunity.
    We review de novo a district court’s dismissal for lack of subject matter
    jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Navajo Nation v.
    Dep’t of the Interior, 
    876 F.3d 1144
    , 1160 (9th Cir. 2017); Bishop Paiute Tribe v.
    Inyo Cty., 
    863 F.3d 1144
    , 1151 (9th Cir. 2017). We review de novo issues of
    tribal sovereign immunity, see Burlington N. & Santa Fe Ry. v. Vaughn, 
    509 F.3d 1085
    , 1091 (9th Cir. 2007), and a district court’s dismissal based on res judicata,
    see Stewart v. U.S. Bancorp, 
    297 F.3d 953
    , 956 (9th Cir. 2002). We “can affirm
    the district court’s dismissal on any ground supported by the record, even if the
    district court did not rely on the ground.” Livid Holdings Ltd. v. Salomon Smith
    Barney, Inc., 
    416 F.3d 940
    , 950 (9th Cir. 2005).
    When the district court dismissed on grounds of ripeness, it did not address
    Washington law that recognizes cloud on title as a hardship fit for judicial
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    determination. See, e.g., Robinson v. Khan, 
    948 P.2d 1347
    , 1349 (Wash. Ct. App.
    (1998); 
    Wash. Rev. Code § 7.28.010
    .
    Nevertheless, we affirm because this case must be dismissed under the
    doctrine of tribal sovereign immunity, which protects Indian tribes from suit absent
    congressional abrogation or explicit waiver. Santa Clara Pueblo v. Martinez, 
    436 U.S. 49
    , 58 (1978). Indian tribes possess “the common-law immunity from suit
    traditionally enjoyed by sovereign powers.” Id.; see also McClendon v. United
    States, 
    885 F.2d 627
    , 629 (9th Cir. 1989) (“Because they are sovereign entities,
    Indian tribes are immune from unconsented suit in state or federal court.”). This
    common-law immunity from suit applies to actions for injunctive and declaratory
    relief. Imperial Granite Co. v. Pala Band of Mission Indians, 
    940 F.2d 1269
    , 1271
    (9th Cir. 1991). Congress must “unequivocally express” its intent to abrogate
    immunity. Michigan v. Bay Mills Indian Cmty., 
    134 S. Ct. 2024
    , 2031 (2014)
    (internal quotation omitted). “The tribe’s immunity is not defeated by an
    allegation that it acted beyond its powers.” Imperial Granite Co., 
    940 F.2d at 1271
    . The claims here are not brought under any federal law that abrogates tribal
    immunity and the Tribes have not waived their immunity. The Tribes, therefore,
    cannot be sued in federal court.
    AFFIRMED.
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