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Case: 11-36001 03/05/2013 ID: 8536917 DktEntry: 30-1 Page: 1 of 3

Case 2:11-cv-00073-LRS Document 64 Filed 03/05/13

FILED

NOT FOR PUBLICATION

MAR 05 2013

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

TERRY TONASKET, dba Stogie Shop;
DANIEL T. MILLER, an individual,

No. 11-36001

D.C. No. 2:11-cv-00073-LRS

Plaintiffs - Appellants,

v.

MEMORANDUM *

TOM SARGENT, Tobacco Tax
Administrator; THE COLVILLE
BUSINESS COUNCIL; MICHAEL O.
FINLEY, Chairman; HARVEY MOSES,
Jr.; SYLVIA PEASLEY; BRIAN
NISSEN; SUSIE ALLEN; CHERIE
MOOMAW; JOHN STENSGAR;
ANDREW JOSEPH; VIRGIL
SEYMOUR, SR.; MIKE MARCHARD;
ERNIE WILLIAMS; DOUG SEYMOUR;
SHIRLEY CHARLEY; RICKY
GABRIEL; COVILLE CONFEDERATED
TRIBES OF THE COLVILLE INDIAN
RESERVATION, a federally recognized
Indian tribe,

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

Case: 11-36001 03/05/2013 ID: 8536917 DktEntry: 30-1 Page: 2 of 3

Case 2:11-cv-00073-LRS Document 64 Filed 03/05/13

Lonny R. Suko, District Judge, Presiding

Argued and Submitted August 6, 2012

Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

Appellants Terry Tonasket (Tonasket) and Daniel T. Miller (Miller) appeal

the district court’s order dismissing, for lack of subject matter jurisdiction, this

action against Appellees Tom Sargent (Sargent), the Colville Business Council (the

Council), and The Colville Confederated Tribes of the Colville Indian Reservation

(the Colville Tribes), concerning the imposition by the Colville Tribes of cigarette

taxes on non-Indians. In light of our decision in Miller v.Wright, No 11-35850,

2013 WL 174493 (9th Cir. Jan. 14, 2013), as amended, a case in which Miller

brought the same claims against the Puyallup Tribe of Indians, we affirm.

In Miller, we held that: (1) the Puyallup Tribe’s execution of the cigarette

tax contract (CTC) did not waive tribal sovereign immunity, id. at *5; (2) tribal

sovereign immunity extends to the tribal officials, who were acting in their official

capacities and within the scope of their authority when they taxed cigarette sales

occurring on tribal land, id. at *7; and (3) the federal antitrust laws do not abrogate

tribal sovereign immunity, id. at *6-7.

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Case: 11-36001 03/05/2013 ID: 8536917 DktEntry: 30-1 Page: 3 of 3

Case 2:11-cv-00073-LRS Document 64 Filed 03/05/13

Here, as in Miller, the district court lacked subject matter jurisdiction over

Tonasket’s and Miller’s claims because the Colville Tribes did not waive sovereign

immunity by entering into a CTC with the state of Washington; tribal sovereign

immunity extends to Sargent, who is a tribal official; and federal antitrust laws do

not abrogate tribal sovereign immunity. See id. at *5-7.

AFFIRMED.

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