The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE: MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
In 1986, Plaintiffs Bruce Alan Ingrassia and Millimac Enterprises produced a number of original visual images among them, "MiWuk Indian Riding on a Chicken." Plaintiffs printed this image on hats, shirts, and other souvenirs. Defendants Chicken Ranch Rancheria Tribe and Chicken Ranch Bingo and Casino purchased these items for resale. Plaintiffs retained the copyright under the arrangement. It is unclear whether there was a written contract between Plaintiffs and Defendants. The business relationship lasted for a number of years and ended at an unspecified time. In 2007, Plaintiffs discovered that Defendants were selling items with the image of "MiWuk Indian riding on a Chicken" produced without Plaintiffs' permission.
Plaintiff sued Defendants in the Superior Court of California, County of Tuolumne on June 9, 2009, alleging breach of contract, common counts, and copyright infringement. Defendants removed the case to federal court on July 20, 2009 under 28 U.S.C. §1441(b). Defendants then filed a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1) due to tribal sovereign immunity. Plaintiffs opposed the motion. The court requested additional briefing and evidence which the parties provided. The matter was taken under submission without oral argument.
"Sovereign immunity limits a federal court's subject matter jurisdiction over actions brought against a sovereign. Similarly, tribal immunity precludes subject matter jurisdiction in an action against an Indian tribe." Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007). "Suits against Indian tribes are...barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation." Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); Stock West Corp. v. Lujan, 982 F.2d 1389, 1398 (9th Cir. 1993). "There is a strong presumption against waiver of tribal sovereign immunity." Demontiney v. United States, 255 F.3d 801, 811 (9th Cir. 2001). Waiver of sovereign immunity by a tribe may not be implied and must be expressed unequivocally. Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996). Similarly, congressional abrogation of sovereign immunity may not be implied and must be "unequivocally expressed" in "explicit legislation." Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2003). The plaintiff bears the burden of showing a waiver of tribal sovereign immunity. See Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 2007 U.S. Dist. LEXIS 67422, *7 (D. Colo. 2007); Dontigney v. Conn. BIAC, 2006 U.S. Dist. LEXIS 55625, *10 (D. Conn. 2006); Morgan v. Coushatta Tribe of Indians of La., 2001 U.S. Dist. LEXIS 25291, *7 (E.D. Tex. 2001).
Tribal sovereign immunity applies in both federal and state courts. Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir. 1983), citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). "The immunity...extends to suits for declaratory and injunctive relief," and "is not defeated by an allegation that [the tribe] acted beyond its powers." Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991). Tribal sovereign immunity is not dependent on a distinction between on-reservation and off-reservation conduct nor is it dependent upon a distinction between the governmental and commercial activities. Kiowa Tribe v. Manufacturing Techs., 523 U.S. 751, 754-55 (1998). A tribe's sovereign immunity extends both to tribal governing bodies and to tribal agencies which act as an arm of the tribe. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). Tribal sovereign immunity extends to tribal officials when acting in their official capacity and within the scope of their authority but not to individual tribe members generally. United States v. Oregon, 657 F.2d 1009, 1013 n.8 (9th Cir. 1981).
A. Tribal Sovereign Immunity
Defendants claim tribal sovereign immunity. Plaintiffs deny that either of the Defendants have immunity from suit.
Plaintiffs provide no reason for their position with regards to the Chicken Ranch Rancheria tribe. "The Supreme Court has consistently treated tribal recognition decisions by Congress or the executive as entitled to a large degree of deference." Artichoke Joe's Cal. Grand Casino v. Norton, 278 F. Supp. 2d 1174, 1179 (E.D. Cal. 2003). The Chicken Ranch Rancheria of Me-Wuk Indians of California are included on a list of federally acknowledged tribes promulgated by the Bureau of Indian Affairs, Department of the Interior. 72 Fed. Reg. 13648 (March 22, 2007). "[T]he inclusion of a group of Indians on the Federal Register list of recognized tribes would ordinarily suffice to establish that the group is a sovereign power entitled to immunity from suit." Cherokee Nation v. Babbitt, 117 F.3d 1489, 1499 (D.C. Cir. 1997).
Plaintiffs assert that "no record has been presented to establish that the Casino operates as an arm of the Tribe" sufficient to warrant immunity. Doc. 13, Plaintiffs' Opposition, at 5:17-18, quotations and citations omitted. Plaintiffs state "Chicken Ranch Bingo and Casino was and is a business entity or association, the form of which is unknown at this time" and that Chicken Ranch Rancheria tribe owned a business entity that "conducted business activities open to the general public, including but not limited to gaming and retail sales of clothing and other paraphernalia, primarily based at the commercial facility commonly known as Chicken Ranch Bingo and Casino." Doc. 1, Ex. 4, Complaint at 4:10-22. Defendants provide the declaration of the Tribal Administrator, which states "The Tribe conducts gaming on its tribal trust lands under the fictitious business name 'Chicken Ranch Bingo and Casino' pursuant a Tribal-State class III gaming compact with the State of California and the requirements of the Indian Gaming Regulatory Act. The Tribe, dba, the Chicken Ranch Bingo and Casino is not a corporation under either tribal, state or federal law." Doc. 17, Amended Costa Declaration, at 2:4-9. Defendants have established their entitlement to tribal sovereign immunity.
The burden is thus on Plaintiffs to show waiver of immunity from suit. Plaintiffs, explicitly or implicitly, make four arguments: the U.S. Congress abrogated immunity in the Copyright Act, the tribal-state compact waives immunity, the contract with ...