Daniel Miller v. Chad Wright , 705 F.3d 919 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL T. MILLER; AMBER No. 11-35850
LANPHERE; PAUL M. MATHESON ,
Plaintiffs-Appellants, D.C. No.
3:11-cv-05395-
v. RBL
CHAD WRIGHT , Puyallup Tribe Tax
Department, Enforcement Officer; OPINION
HERMAN DILLON , SR., Chairman
Puyallup Tribe of Indians;
PUYALLUP TRIBE OF INDIANS, a
federally recognized American
Indian tribe,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
August 6, 2012—Seattle, Washington
Filed November 13, 2012
Before: John T. Noonan, Susan P. Graber,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
2 MILLER V . WRIGHT
SUMMARY*
Affirming the district court’s dismissal of an antitrust
action brought by cigarette vendors challenging taxes imposed
by virtue of the authority vested in an Indian tribe, the panel
held that the district court lacked subject matter jurisdiction
in light of the tribe’s sovereign immunity.
The panel held that the tribe did not implicitly waive its
sovereign immunity by agreeing to dispute resolution
procedures nor by ceding its authority to Washington State
when entering into a cigarette tax contract. The panel also
held that federal antitrust law did not explicitly abrogate tribal
immunity, and the Sherman Antitrust Act was not a law of
general applicability vis-a-vis the tribe. The panel held that
tribal officials were protected by the tribe’s sovereign
immunity because they acted pursuant to the tribe’s authority.
The panel also affirmed the district court’s alternative
ruling that the action was barred by res judicata in light of
prior litigation in state and tribal courts.
COUNSEL
Robert Kovacevich, Spokane, Washington, for Appellants
Daniel Miller, Amber Lanphere, and Paul M. Matheson.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MILLER V . WRIGHT 3
John Howard Bell (argued) and Andrea George, Tacoma,
Washington, for Appellees Herman Dillon Sr., Chairman,
Puyallup Tribe of Indians, and the Puyallup Tribe of Indians,
a federally recognized Indian tribe.
James H. Jordan, Jr., Miller Nash LLP, Seattle, Washington,
for Appellee Chad Wright, Puyallup Tribe Tax Department,
Enforcement Officer.
OPINION
RAWLINSON, Circuit Judge:
This is the latest iteration of cigarette vendors’ challenge
to taxes imposed by virtue of the authority vested in an Indian
tribe. Appellants Daniel T. Miller (Miller), Amber Lanphere
(Lanphere), and Paul M. Matheson (Matheson) appeal the
district court’s dismissal of their antitrust action against
appellees Herman Dillon (Dillon), Chad Wright (Wright) and
the Puyallup Tribe (the Tribe). The district court dismissed
the action for lack of subject matter jurisdiction in light of the
tribe’s sovereign immunity.1 We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm the district court.
1
In reviewing a district court’s grant of a motion to dismiss, we “accept
the factual allegations of the complaint as true and construe them in the
light most favorable to the plaintiff.” AE ex rel. Hernandez v. County of
Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citation omitted).
4 MILLER V . WRIGHT
I. BACKGROUND
A. Allegations of Matheson, Miller, and Lanphere
Matheson is an enrolled Puyallup Indian who owns a
retail store that sells cigarettes. Matheson’s store is located
within the Puyallup Indian Reservation. The Tribe operates
retail stores in the same vicinity.
Miller is a non-Indian, non-resident of the reservation who
purchased cigarettes from Matheson. As a result of the Tribe’s
cigarette tax, the price Miller paid for a carton of cigarettes
included a $30.00 fee. This $30.00 fee stemmed from the
cigarette tax contract (CTC) between the State of Washington
and the Tribe. The price also included a $5 fee for the benefit
of Washington’s public health fund. Washington requires
collection of the $5 fee to comply with provisions of the
Master Settlement Agreement (MSA), a settlement between
the tobacco industry and numerous states, including
Washington. See Wash. Rev. Code § 70.157.010(e).
Pursuant to the MSA, tobacco manufacturers make payments
to an escrow fund for public health. See Wash. Rev. Code
§§ 70.157.020, 43.79.480. Tobacco manufacturers who are
not party to the MSA must pay funds into escrow. See Wash.
Rev. Code § 70.157.020(a) and (b). Miller seeks a refund of
these fees and a permanent injunction against their future
collection.
Lanphere is also a non-Indian, non-resident of the
reservation who purchased cigarettes from Matheson’s store.
Like Miller, the price Lanphere paid included the tribe’s
cigarette tax and the health fund fee.
MILLER V . WRIGHT 5
Prior to this litigation, Miller and other plaintiffs pursued
legal relief in other fora. Matheson first filed suit for
injunctive relief, declaratory judgment, and damages in
Washington state court. He specifically sought a ruling that
the cigarette tax contract with the state was invalid. The
Washington Court of Appeals affirmed the trial court’s
dismissal of the action, and the Washington and United States
Supreme Courts denied review. Matheson v. Gregoire,
139 Wash. App. 624 (2007), rev. denied, 163 Wash. 2d 1020,
cert. denied, 555 U.S. 881 (2008).
Matheson and Lanphere then filed a similar action in
Puyallup Tribal Court, seeking to invalidate the cigarette tax
contract. This action was dismissed by the tribal court
because of the Tribe’s sovereign immunity. The Tribal Court
of Appeals affirmed the dismissal.
Before the conclusion of proceedings in the tribal court,
Matheson and Lanphere filed suit in the United States District
Court for the Western District of Washington. That action
was dismissed for failure to complete the tribal proceedings.
See Lanphere v. Wright, 2009 WL 3617752 (W.D. Wash. Oct.
29, 2009). We affirmed the dismissal. See Lanphere v.
Wright, 387 F. App’x 766 (9th Cir. 2010).
B. The Tribe
Chad Wright “is or was the Tax Enforcement Officer of
the Puyallup Tribe” and Chief Executive Officer of the
Tribe’s store located near Matheson’s. Herman Dillon, Sr., is
the tribal chairman of the Puyallup Tribe.
6 MILLER V . WRIGHT
The Puyallup Tribe entered into a compact with the State
of Washington whereby the Tribe agreed that tribal retailers
would purchase only from Washington State Tobacco
Wholesalers or state certified wholesalers. Likewise, the
Tribe agreed to require retailers to charge a cigarette tax equal
to the amount of the tax that would otherwise be imposed by
the state. The Tribe’s agreement with the state provides that
“[r]esponsibility for enforcement of the terms of this
agreement shall be shared by the State and the Tribe. . . .”
The agreement also provides for mediation.
C. Miller’s, Lanphere’s, and Matheson’s Allegations
Before the District Court
Miller, Lanphere, and Matheson alleged that the Tribe
forces them “to pay more for the cigarettes by adding illegal
charges and restricting [Matheson’s] purchases at wholesale
to wholesalers who charge more to [sic] the product than
other wholesalers would charge. . . .” Their complaint sought
an injunction, a declaratory judgment, damages, and a refund
of fees paid as a result of the charges imposed by the Tribe.
D. The District Court’s Dismissal Order
The district court granted the Tribe’s motion to dismiss,
explaining that Miller, Lanphere, and Matheson “failed [to
meet their] burden of showing that sovereign immunity has
been waived and that [the district court] has jurisdiction to
hear the matter.”
Miller, Lanphere, and Matheson timely appealed.
MILLER V . WRIGHT 7
II. STANDARDS OF REVIEW
We review de novo a district court’s dismissal for lack of
subject matter jurisdiction. See Leeson v. Transamerica
Disability Income Plan, 671 F.3d 969, 974 (9th Cir. 2012).
“Once challenged, the party asserting subject matter
jurisdiction has the burden of proving its existence.”
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009)
(citation omitted).
We review de novo questions of sovereign immunity. See
Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012).
III. DISCUSSION
A. Sovereign Immunity
1. Waiver of Tribal Sovereign Immunity
Miller, Lanphere, and Matheson argue that the Tribe
implicitly waived its sovereign immunity by agreeing to
dispute resolution procedures and by ceding its authority to
Washington State when entering into the cigarette tax
contract.
“Tribal sovereign immunity protects Indian tribes from
suit absent express authorization by Congress or clear waiver
by the tribe. This immunity applies to the tribe’s commercial
as well as governmental activities. . . .” Cook v. AVI Casino
Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008) (citations
omitted). “[T]he settled law of our circuit is that tribal
corporations acting as an arm of the tribe enjoy the same
sovereign immunity granted to a tribe itself. . . .” Id.
8 MILLER V . WRIGHT
a) The Cigarette Tax Contract
The nature of the cigarette tax contract between the Tribe
and the State of Washington does not reflect a waiver of tribal
sovereign immunity simply by entering into the contract.
As we recently recognized, “[t]here has been a long-
standing dispute about the state’s power to tax cigarette sales
by tribal retailers on Indian reservations to non-Indians. . .”
United States v. Wilbur, 674 F.3d 1160, 1165 (9th Cir. 2012).
As a means of resolving this dispute, Washington law
“authoriz[es] the Governor to enter into cigarette tax contracts
(‘CTC’) with various tribes. A CTC is typically an agreement
by the state to retrocede its cigarette taxes to the tribe for
transactions covered by a CTC in exchange for the tribe’s
agreement to impose a cigarette tax equal to the state’s and to
use the proceeds to fund essential tribal government
services. . . .” Id. at 1166 (citation omitted). “The legislation
describes conditions a tribe must accept to enter into a CTC.
The CTC shall provide that the tribal cigarette tax rate be one
hundred percent of the state cigarette and state and local sales
and use taxes. . . .” Id. (citation and internal quotation marks
omitted). “The contract shall provide that Indian retailers can
purchase cigarettes only from licensed Washington
wholesalers, tribal manufacturers, or out-of-state wholesalers
or manufacturers who have agreed to comply with the terms
of the CTC. . . .” Id. (citation and internal quotation marks
omitted).
As described in Wilbur, any fees imposed pursuant to the
CTC stem from the State of Washington’s complex statutory
requirements as applied to the Tribe. Nothing about
compliance with these legal requirements evidences a clear
MILLER V . WRIGHT 9
waiver by the Tribe of its sovereign immunity. See C & L
Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of
Okla., 532 U.S. 411, 418-19 (2001) (noting that a waiver of
tribal sovereign immunity must be clear); see also Maxwell v.
County of San Diego, No. 10-56671, ---- F.3d ----, 2012 WL
4017462, at *9 (9th Cir. Sept. 13, 2012) (“Waivers of tribal
sovereign immunity must be explicit and unequivocal . . . .”)
(citation omitted).
b) The Dispute Resolution Clause
The Supreme Court has held that agreeing to an
arbitration clause may establish a clear waiver of sovereign
immunity. See C & L, 532 U.S. at 418-19.
In C & L, the Potawatomi Tribe entered into a form
contract with C & L for roofing work. The form contract was
proposed by the Tribe, and all details not set out in the form
were added by the Tribe. See id. at 414. The Tribe expressly
agreed to arbitrate any disputes arising under the contract,
with Oklahoma law designated as the governing law. The
Tribe also explicitly consented to enforcement of any ensuing
arbitration award “in any court having jurisdiction thereof.”
Id. Oklahoma has promulgated a Uniform Arbitration Act
that confers jurisdiction upon the courts of Oklahoma to
enforce arbitration agreements and any resulting arbitration
awards. See id. at 415.
After the contract was signed, the Tribe decided to
procure the services of a different roofing contractor. See id.
at 416. When C & L sought arbitration, the Tribe declined to
participate in the arbitration proceedings. See id. C & L
obtained an arbitration award and sued in Oklahoma state
10 MILLER V . WRIGHT
court to enforce the award. See id. The Tribe asserted
sovereign immunity. Following a remand from the United
States Supreme Court, the Oklahoma Court of Civil Appeals
ruled that the Tribe had not waived sovereign immunity by
agreeing to arbitrate.
Reversing the Oklahoma appeals court, the United States
Supreme Court explained that the “contract’s provision for
arbitration and related prescriptions” waived sovereign
immunity. See id. at 418. By designating Oklahoma law as
the law governing contract performance, the Tribe also
consented to application of Oklahoma’s Uniform Arbitration
Act. The Arbitration Act in turn vested jurisdiction in the
Oklahoma state courts over any arbitration award. See id. at
419.
We have described the ruling in C & L as one in which:
the Court relied on two provisions of a
contract between a tribe and a construction
company to find sufficient evidence of a clear
waiver of tribal sovereign immunity: (1) a
clause stating that all contractual disputes
should be resolved according to American
Arbitration Association Rules and providing
for enforcement of the arbitrator’s award in
accordance with applicable law in any court
having jurisdiction thereof; and (2) a
choice-of-law clause consenting to the law of
the project location, Oklahoma. The
referenced arbitration rules provided that
parties to these rules shall be deemed to have
MILLER V . WRIGHT 11
consented to enforcement of the award in
federal and state court.
Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian
Affairs, 255 F.3d 801, 813 n.5 (9th Cir. 2001) (citations,
alteration, and internal quotation marks omitted).2
The contract provisions at issue in Demontiney addressed
such mundane issues as indemnity, default remedies, interest
rates, and subjugation to enumerated federal laws. See id. at
812. Indeed, the contract expressly provided that the Tribe
retained its sovereign immunity. See id. The only contract
provision that addressed dispute resolution at all simply
provided that the decision of the Business Committee would
be final absent a determination from a “court of competent
jurisdiction” of fraud, arbitrariness, capriciousness or gross
error. Id. In contrast to C & L, the contract provisions in
Demontiney did not signal an intent to waive sovereign
immunity. The dispute resolution clause did not “reference or
incorporate procedures that provide for non-tribal jurisdiction
for enforcement . . .” Id. at 813 n.5. Unlike in C & L, the
contract provisions at issue in Demontiney designated the
tribal court as the court of exclusive jurisdiction and
designated tribal law as the governing law. See id. at 812.
The facts of this case are more akin to those in
Demontiney than to the facts in C & L. The inclusion of a
mediation provision to resolve disputes between the State of
2
W e have also held that a tribe waived its sovereign immunity when the
tribe itself initiates or joins a lawsuit. See United States v. Oregon,
657 F.2d 1009, 1013-14 (9th Cir. 1981). That circumstance does not exist
in this case.
12 MILLER V . WRIGHT
Washington and the Tribe does not evidence a clear and
explicit waiver of immunity. As a preliminary matter,
mediation generally is not binding and does not reflect an
intent to submit to adjudication by a non-tribal entity.3
Moreover, the CTC in this case did not contain any of the
provisions, including subjecting itself to the jurisdiction of the
state, that formed the basis for the waiver in C & L. The
Tribe did not waive its sovereign immunity when it executed
the CTC. See Demontiney, 255 F.3d at 812.
2. Abrogation of Tribal Sovereign Immunity
Miller, Lanphere, and Matheson contend that tribal
immunity is preempted by federal antitrust laws. The Tribe
counters that federal antitrust law does not apply to Indian
tribes.
Abrogation of tribal immunity by Congress “must be
unequivocally expressed in explicit legislation. Abrogation
of tribal sovereign immunity may not be implied.” Krystal
Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir.
2004), as amended on denial of reh’g en banc (citations and
3
“At its essence, mediation is a process of negotiations facilitated by a
third person(s) who assists disputants to pursue a mutually agreeable
settlement of their conflict. In contrast to adjudicatory forms of dispute
resolution -- hearings, arbitration and trials -- mediation is a contractarian
process. The salient features of mediation are an informal process, a
neutral mediator without authority to command a result, [and] disputants
who participate voluntarily and settle of their own accord . . .” Alan
Kirtley, The Mediation Privilege’s Transition from Theory to
Implementation: Designing a Mediation Privilege Standard to Protect
Mediation Participants, the Process and the Public Interest, 1995 J. Disp.
Resol. 1, 5-6 (1995) (footnote references omitted).
MILLER V . WRIGHT 13
internal quotation marks omitted). In Krystal, we held that
the Bankruptcy Code abrogated tribal sovereign immunity by
its reference to all foreign and domestic governments. See id.
at 1057-58. Similarly, the Tenth Circuit has held that the Safe
Drinking Water Act “contains a clear and explicit waiver of
tribal immunity” because its definition of person includes
municipalities, whose definition in turn includes Indian tribes.
Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S.
Dep’t of Labor, 187 F.3d 1174, 1181 (10th Cir. 1999). In the
same vein, the Eighth Circuit has held that the Resource
Conservation and Recovery Act of 1976 “clearly indicates
congressional intent to abrogate the Tribe’s sovereign
immunity . . .” Blue Legs v. U.S. Bureau of Indian Affairs,
867 F.2d 1094, 1097 (8th Cir. 1989).
Unlike these laws, federal antitrust law does not
“unequivocally express[] in explicit legislation” that it
abrogates tribal sovereign immunity. Krystal, 357 F.3d at
1056 (citations and internal quotation marks omitted). The
Sherman Act, for example, refers only to states and foreign
nations. See 15 U.S.C. § 1. In turn, the Clayton Act defines
the persons to whom it applies as “corporations and
associations existing under or authorized by the laws of either
the United States, the laws of any of the Territories, the laws
of any State, or the laws of any foreign country.” 15 U.S.C.
§ 12. Nowhere does either statute employ the sort of
expansive language that we and other circuits have held to
unequivocally abrogate tribal sovereign immunity.
In determining whether sovereign immunity is abrogated,
“we may look to state sovereign immunity precedent to help
determine how ‘explicit’ an abrogation must be . . .” Krystal,
357 F.3d at 1056. “A general authorization for suit in federal
14 MILLER V . WRIGHT
court is not the kind of unequivocal statutory language
sufficient to abrogate the Eleventh Amendment. . . . ” Id. at
1060 (citations and emphasis omitted).
Our decision in Sanders v. Brown, 504 F.3d 903 (9th Cir.
2007), is instructive. Sanders involved a challenge to the
MSA. See id. at 906. The plaintiffs alleged that the MSA
violated the Sherman Act, 15 U.S.C. § 1 et seq. See id. We
held that states are immune from antitrust liability for entering
into and implementing the MSA. See id. at 915 (“The [state
action] immunity doctrine protects most state laws and
actions from antitrust liability. . . .”); see also Parker v.
Brown, 317 U.S. 341, 351 (1943) (explaining that “[t]he
Sherman Act makes no mention of the state as such, and gives
no hint that it was intended to restrain state action or official
action directed by a state”). The district court thus correctly
relied on Parker to hold that federal antitrust law does not
overcome the Tribe’s sovereign immunity.
We are not persuaded that Jefferson County
Pharmaceutical Ass’n v. Abbott Laboratories, 460 U.S. 150
(1983), is the more applicable precedent. Jefferson County
involved a challenge by retail pharmacists and pharmacies to
alleged price-fixing by drug manufacturers and hospitals of
the state university. See id. at 152-53. The respondents
argued that the state purchases were exempt from federal
antitrust law. See id. at 153. The Supreme Court
characterized the “narrow” issue as whether “state purchases
for the purpose of competing against private enterprise-with
the advantage of discriminatory prices-in the retail market”
are exempt from the price-fixing statute. Id. at 154 (footnote
reference omitted). In her dissent, Justice O’Connor noted
that Parker involved sovereign immunity rather than an
MILLER V . WRIGHT 15
exemption from statutory provisions. See id. at 177 n.5
(O’Connor, J., dissenting).
This case is more akin to Parker than to Jefferson County.
As in Parker, this case involves a challenge to the sovereign
immunity of the Tribe rather than a challenge to the Tribe’s
claimed statutory exemption. Accordingly, we agree with the
district court that Parker is the more relevant legal authority.
Miller, Lanphere, and Matheson also argue that federal
antitrust law abrogates tribal immunity because the Sherman
Act is a statute of general applicability, and none of the
exceptions articulated in Donovan v. Coeur d’Alene Tribal
Farm, 751 F.2d 1113 (9th Cir. 1985), applies. Donovan
counsels that federal statutes of general applicability apply to
Indian tribes unless one of three exceptions applies:
(1) the law touches exclusive rights of
self-governance in purely intramural matters;
(2) the application of the law to the tribe
would abrogate rights guaranteed by Indian
treaties; or (3) there is proof by legislative
history or some other means that Congress
intended the law not to apply to Indians on
their reservations. In any of these three
situations, Congress must expressly apply a
statute to Indians before we will hold that it
reaches them.
Id. at 1116 (citation, alteration, and internal quotation marks
omitted).
16 MILLER V . WRIGHT
As we have explained, federal antitrust laws are not
intended to apply to Indian tribes. This conclusion forecloses
the argument that federal antitrust law is of general
applicability vis-a-vis the Tribe. Indeed, as the district court
properly ruled, Donovan’s third exception is consistent with
the precedent underlying our conclusion that Congress did not
include Indian tribes within the entities subject to antitrust
law.
Because Miller, Lanphere, and Matheson failed to
successfully challenge the Tribe’s sovereign immunity, we
affirm the district court’s holding that it lacked subject matter
jurisdiction to adjudicate the claims asserted against the Tribe.
3. Immunity of Tribal Officials
Miller, Lanphere, and Matheson argue that the tribal
officials are not covered by tribal sovereign immunity because
they assess unconstitutional taxes. The Tribe counters that
the officials act in their official capacity when they collect the
Tribe’s taxes, which the officials have the authority to
impose.
A suit against the Tribe and its officials “in their official
capacities is a suit against the tribe [and] is barred by tribal
sovereign immunity unless that immunity has been abrogated
or waived.” Linneen v. Gila River Indian Cmty., 276 F.3d
489, 492 (9th Cir. 2002). “Tribal sovereign immunity extends
to tribal officials when acting in their official capacity and
within the scope of their authority. . . .” Cook, 548 F.3d at
727 (citation and internal quotation marks omitted). “[A]
plaintiff cannot circumvent tribal immunity by the simple
expedient of naming an officer of the Tribe as a defendant,
MILLER V . WRIGHT 17
rather than the sovereign entity. . . .” Id. (citation and
internal quotation marks omitted).
As the district court found, the tribal officials are
protected by the Tribe’s sovereign immunity because they
were acting pursuant to the Tribe’s authority. “The power to
tax transactions occurring on trust lands and significantly
involving a tribe or its members is a fundamental attribute of
sovereignty which the tribes retain unless divested of it by
federal law or necessary implication of their dependent
status.” Washington v. Confederated Tribes of Colville
Indian Reservation, 447 U.S. 134, 152 (1980).
The Tribe’s sovereign immunity thus extends to its
officials who were acting in their official capacities and
within the scope of their authority when they taxed
transactions occurring on the reservation. See Cook, 548 F.3d
at 727; see also Confederated Tribes, 447 U.S. at 152.
Moreover, to the extent the complaint seeks monetary relief,
such claims are barred under Ex Parte Young. See Salt River
Project Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176,
1181 (9th Cir. 2012).4 We therefore reject Miller’s,
Lanphere’s, and Matheson’s attempt to circumvent tribal
immunity by naming tribal officials as defendants. See Cook,
548 F.3d at 727.
4
Neither in the district court nor on appeal do Miller, Lanphere, and
Matheson allege a separate and distinct claim for injunctive or declaratory
relief against the officials qua officials. See Maxwell, ---- F.3d ----, 2012
W L 4017462, at *11. W e therefore express no opinion as to the viability
of such a claim against the officials themselves.
18 MILLER V . WRIGHT
In the alternative, the district court also correctly
concluded that res judicata bars this action. “Res judicata,
also known as claim preclusion, applies only where there is
(1) an identity of claims, (2) a final judgment on the merits,
and (3) privity between parties. . . .” Turtle Island
Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 917
(9th Cir. 2012) (citation and internal quotation marks
omitted).
Res judicata bars this action. Like the suits in state court
and tribal court, the claims in this case involve allegedly
unlawful cigarette taxes arising from the sales at Matheson’s
store on the Puyallup reservation. There is thus an identity of
claims. See Turtle Island, 673 F.3d at 917-18. Likewise, the
state and tribal courts reached final judgments and Miller is
in privity with Lanphere and Matheson given the substantial
commonality of their interests. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1081 (9th Cir. 2003).
IV. CONCLUSION
As we have described, this action fails for four reasons.
First, the Tribe has not waived its tribal sovereign immunity.
Neither the cigarette tax contract nor the dispute resolution
clause in the contract constitutes a waiver by the Tribe.
Second, contrary to Miller’s, Lanphere’s, and Matheson’s
argument, federal antitrust law does not abrogate tribal
sovereign immunity. Third, the Tribe’s sovereign immunity
extends to the tribal officials who were acting in their official
capacities and pursuant to the Tribe’s authority. Fourth, the
MILLER V . WRIGHT 19
district court correctly held that res judicata bars this action in
light of the prior litigation in state and tribal courts.
AFFIRMED.