United States District Court, Southern District of California
February 8, 2000
JACQUELIN BARKER-HATCH AND JOHN HATCH, PLAINTIFF,
VIEJAS GROUP BARON LONG CAPITAN GRANDE BAND OF DIGUENO MISSION INDIANS OF THE VIEJAS GROUP RESERVATION, CALIFORNIA, DEFENDANT.
The opinion of the court was delivered by: Moskowitz, District Judge.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant, the Viejas Group Baron Long Capitan Grande Band of
Digueno Mission Indians of the Viejas Group Reservation ("Viejas
Group"), moves to dismiss plaintiffs' suit for damages sustained
when Jacquelin Barker-Hatch slipped and fell on a wet walkway on
defendant's property. Defendant argues that, as a
federally-recognized Indian tribe, it is immune from suit under
the doctrine of sovereign immunity. For the reasons expressed
below, the Court need not reach the issue of sovereign immunity
because it lacks subject matter to resolve the dispute.
It is axiomatic that federal judicial power extends only to
cases and controversies over which a court has subject matter
jurisdiction. See Fed.R.Civ.P. 12(b)(1); Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994). Although neither of the parties broached the issue of
subject matter jurisdiction, it is incumbent on the Court to
address this threshold question. See National Distribution
Agency v. Nationwide Mut. Ins. Co., 117 F.3d 422, 433 (9th Cir.
1997). Plaintiffs allege in their complaint that, at the time of
the incident, they were residents of California. Plaintiffs
further allege that defendant "is an Indian tribe that is not
incorporated and is not a citizen of the State of California.
There is diversity of citizenship which is basis for federal
The Court agrees that defendant is not a citizen of the State
of California, and it is clear that defendant is not a foreign
state. See Stock West, Inc. v. Confederated Tribes,
873 F.2d 1221, 1226 (9th Cir. 1989) (citing Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1, 20, 8 L.Ed. 25 (1831) for the principle that
Indian tribes are not foreign states). The Court is therefore
left with the question: What is the citizenship of an Indian
tribe for purposes of diversity jurisdiction?
Beginning with the plain language of the statute,
28 U.S.C. § 1332 provides, in pertinent part:
(a) The district courts shall have original
jurisdiction of civil actions where the matter in
controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between —
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of
a foreign state;
(3) citizens of different States and in which
citizens or subjects of a foreign state are
additional parties; and
(4) a foreign state, defined in section 1603(a) of
this title, as plaintiff and citizens of a State or
of different States.
28 U.S.C. § 1332(a). A corporation is deemed to be a citizen of
its state of incorporation and its principal place of business.
Id. § 1332(c)(1). When applying principles of diversity, the
Court must strictly construe the statute. See Thomson v.
Gaskill, 315 U.S. 442
, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942);
Matimak Trading Co. v. Khalily, 118 F.3d 76
, 87 (2d Cir.
1997), cert. denied, 522 U.S. 1091, 118 S.Ct. 883, 139 L.Ed.2d
Courts which have addressed the citizenship of Indian tribes
have held that
tribes are not citizens of any state for purposes of diversity
jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir.
1997) (Indian tribes are not citizens of any state for purposes
of diversity jurisdiction); Gaines v. Ski Apache, 8 F.3d 726,
729 (10th Cir. 1993) (same); Weeks Constr., Inc. v. Oglala
Sioux Housing Auth., 797 F.2d 668, 673 n. 5 (8th Cir. 1986)
(same); Standing Rock Sioux Indian Tribe v. Dorgan,
505 F.2d 1135, 1140 (8th Cir. 1974) (same); Oneida Indian Nation v.
Oneida County, 464 F.2d 916, 922-23 (2d Cir. 1972), rev'd on
other grounds, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73
(1974); Calumet Gaming Group-Kansas v. Kickapoo Tribe,
987 F. Supp. 1321, 1324-25 (Kan. 1997) (same); Whiteco Metrocom Div.
v. Yankton Sioux Tribe, 902 F. Supp. 199 (S.D. 1995) (same). If,
however, an Indian tribe incorporates under either the Indian
Reorganization Act, 25 U.S.C. § 477, or its own tribal laws,
then the rules governing the citizenship of corporations apply.
See Stock West, 873 F.2d at 1223 n. 3; see also Gaines, 8
F.3d at 729-30 (noting that a tribe cannot take on corporation
status simply because it refers to itself as a corporation in
its own constitution).
In this case, plaintiffs concede that the Viejas Group is an
unincorporated Indian tribe. Although the Ninth Circuit has yet
to decide the citizenship of unincorporated Indian tribes, the
Court is guided by the conclusions of other courts and likewise
holds that Indian tribes are not citizens of any state for
purposes of diversity jurisdiction. Even if the Viejas Group
could be considered a citizen of the state in which it is
located, i.e., California, nonetheless, the Court would be
unable to exercise diversity jurisdiction because the plaintiffs
are California citizens as well. See e.g. Ninigret Development
Corp. v. Narragansett Indian Wetuomuck Housing Auth.,
32 F. Supp.2d 497, 502 (R.I. 1999) (finding no diversity
jurisdiction where citizen of Rhode Island sued agency of Indian
tribe located in Rhode Island). The Court notes further that
plaintiffs have failed to allege federal question jurisdiction
under 28 U.S.C. § 1331, and there are no facts in the complaint
from which the Court can infer a federal claim.*fn1
Consequently, the Court's lack of subject matter jurisdiction
over this case renders the issue of sovereign immunity moot.
Under the doctrine of sovereign immunity, an Indian tribe is
subject to suit only when Congress has authorized the suit or
when the tribe has waived its immunity. Kiowa Tribe v.
Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700,
1702, 140 L.Ed.2d 981 (1998). The Court need not reach the issue
of immunity, however, as it lacks subject matter jurisdiction,
which the parties cannot waive.
Plaintiffs assert that dismissal of this case will leave them
without a forum to litigate their claims. Whether or not the
California courts have jurisdiction over this matter is not an
issue before the Court today. Undoubtedly, however, this Court
is not the appropriate forum for plaintiffs to litigate their
claims. As the Viejas Group is not a citizen of any state, it
cannot be sued in federal court under diversity jurisdiction.
Defendant's motion to dismiss for lack of jurisdiction is
IT IS SO ORDERED.