Amber Lanphere v. Chad Wright , 387 F. App'x 766 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMBER LANPHERE and PAUL M. No. 09-36035
MATHESON, individually, and on behalf
of others similarly situated, D.C. No. CV-09-05462-BHS
Plaintiffs - Appellants,
MEMORANDUM *
v.
CHAD WRIGHT, Puyallup Tribe Tax
Department, Enforcement Officer, and the
PUYALLUP INDIAN TRIBE, a
recognized American Indian Tribe,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted July 13, 2010 **
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, 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. Fed. R. App. P. 34(a)(2).
Plaintiffs Amber Lanphere and Paul Matheson appeal the district court’s
order dismissing, for failure to exhaust tribal remedies, this action against
Defendants Puyallup Indian Tribe and Chad Wright, head of the Puyallup Tribal
Tax Department, concerning the imposition by the Tribe of certain cigarette taxes
on non-Indians. Reviewing de novo, Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir.
2004), we affirm.
Plaintiffs correctly state that exhaustion of tribal court remedies is not
required "when it is ‘plain’ that tribal court jurisdiction is lacking, so that the
exhaustion requirement ‘would serve no purpose other than delay.’" Elliott v.
White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir.) (quoting
Nevada v. Hicks, 533 U.S. 353, 369 (2001)), cert. denied, 130 S. Ct. 624 (2009).
The district court correctly held, however, that tribal court "jurisdiction is
‘colorable’ or ‘plausible,’" and, therefore, that tribal court jurisdiction is not plainly
lacking. Id. at 848 (internal quotation marks omitted). Plaintiffs voluntarily
availed themselves of the tribal court’s jurisdiction by filing these same claims
before that tribunal. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1140 (9th
Cir. 2006) (en banc) ("We hold that a nonmember who knowingly enters tribal
courts for the purpose of filing suit against a tribal member has, by the act of filing
his claims, entered into a ‘consensual relationship’ with the tribe within the
2
meaning of Montana [v. United States, 450 U.S. 544 (1981)]."). Additionally,
Plaintiffs voluntarily engaged in commercial activities—the purchase and sale of
cigarettes—on tribal lands. See Montana, 450 U.S. at 565 (holding that tribal
courts have jurisdiction over nonmembers who enter into commercial dealings on
the reservation with the tribe or its members). For those reasons, tribal court
jurisdiction is plausible, and exhaustion of tribal court remedies is required. (At
this stage of the proceedings, we need not, and do not, decide definitively whether
the tribal courts have jurisdiction.)
We reject Plaintiffs’ other contentions.
AFFIRMED.
3