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Rebecca Merrill v. Picayune Rancheria of Chukchansi Indians


February 22, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Defendant Picayune Rancheria of the Chukchansi Indians ("Chukchansi" or "Defendant"*fn1 ) moves to dismiss the complaint of Plaintiff Rebecca Merrill pursuant to Fed. R. Civ. P. 12(b)(1). According to Defendant, the Court lacks subject matter jurisdiction to hear Plaintiff's negligence-based claims because the Tribe has not waived its sovereign immunity.

Plaintiff has filed an opposition, to which Defendant has replied.


This action arises from an accident at Defendant's Resort & Casino. Plaintiff alleges that, on August 4, 2009, she was a guest of the Resort and returned to her car, which was located in the handicapped section of Defendant's parking lot. (Doc. 1 at ¶ 6.) Plaintiff retrieved a used coffee cup from her car and discarded it in a nearby trash receptacle, which was located off the main walkway on an area of dirt covered by tree bark. (Id. at ¶ 7.) Returning to her vehicle, Plaintiff alleges that she "trip[ped] [on] a significantly raised area of sidewalk [located between the receptacle and her automobile]." (Id. at ¶ 7.) According to Plaintiff, the damaged section of the sidewalk contained "multiple discrete and severe levels" and was "in a state of disrepair [...] the uneven nature of that section of the sidewalk was inconsistent with the surrounding area." (Id. at ¶ 10.)

As a result of the fall, Plaintiff alleges she "felt significant pain all over her body, specifically across her knees, her right hip, her back, her right hand and her right wrist." (Id. at ¶ 11.) Plaintiff was taken by ambulance to St. Agnes Medical Center in Fresno, California, and, after a medical examination, she was released. (Id.) Plaintiff subsequently received treatment from a physical therapist for her injuries. (Id. at ¶ 12.)

On June 24, 2010, Plaintiff filed this action to recover compensatory damages for the injuries allegedly suffered as a result of the August 4, 2009 fall. The federal complaint advances two claims for relief: (1) failure to exercise reasonable care for the safety of an invitee while on commercial premises; and (2) failure to provide reasonable notice to an invitee of defective premises. (Id. at ¶¶ 14-18.)

On November 15, 2010, Defendant moved to dismiss this action on the basis of sovereign immunity. (Doc. 13.) Plaintiff opposed the motion on December 6, 2010. (Doc. 16.)


Defendant argues that it is a federally recognized Indian Tribe, entitled to sovereign immunity, and that the district court lacks subject matter jurisdiction over the present action. The motion to dismiss the complaint for lack of subject matter jurisdiction is analyzed under Fed. R. Civ. P. 12(b)(1).*fn2

A. Fed. R. Civ. P. 12(b)(1)

Dismissal of a claim is appropriate under Federal Rule of Civil Procedure Rule 12(b)(1) when the court lacks subject-matter jurisdiction over the claim. Federal subject-matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. California Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).

A Rule 12(b)(1) motion may either attack the sufficiency of the complaint to establish federal jurisdiction (a facial challenge) or allege a lack of jurisdiction that exists despite the formal sufficiency of the complaint (a factual challenge). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts lack of federal jurisdiction based on the complaint alone, and the court must "accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs." See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). By contrast, with a factual challenge, a court need not assume the truth of factual allegations but may hear additional evidence about jurisdiction and resolve factual disputes when necessary. See Roberts, 812 F.2d at 1177 (quotation omitted). If a defendant challenges jurisdiction by presenting evidence, then the party opposing the motion must present sufficient evidence to support the court's subject-matter jurisdiction. See Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003).

Defendant here advances a facial challenge to the complaint under the doctrine of sovereign immunity.

B. Sovereign Immunity

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. See, e.g., 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). 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).

In this case, it is undisputed that Defendant is a federally-recognized sovereign Indian tribe. See Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino and Resort, --- F.3d ----, 2010 WL 5263143, at 1 (10th Cir. 2010)(stating that "the [Chukchansi] Casino is operated for the benefit of a federally recognized Indian tribe, the Picayune Rancheria of the Chukchansi Indians."); see also 74 Fed. Reg. 40219 (2010)(listing "Picayune Rancheria of Chukchansi Indians of California" as one of the "Indian Tribal Entities Within the Contiguous 48 States Recognized and Eligible to Receive Services From the Unites State Bureau of Indian Affairs."). Plaintiff also does not dispute that the alleged accident occurred on property owned and operated by Defendant.*fn3 Sovereign immunity applies unless Plaintiff shows it has been expressly waived.

C. Waiver

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). "There is a strong presumption against waiver of tribal sovereign immunity." Demontiney v. United States, 255 F.3d 801, 811 (9th Cir. 2001). Plaintiff argues that Defendant waived its sovereign immunity by adopting and distributing the "Picayune Rancheria of Chukchansi Indians Indians Tort Claims Ordinance." Plaintiff claims that the Ordinance, enacted on May 25, 2003, waives the Defendant's sovereign immunity for "any suits brought against them relating to injuries suffered as a result of negligent acts, omissions, or caused by a dangerous condition of the property." (Doc. 16 at 2:26-2:28)(emphasis added). Plaintiff argues, incorrectly, that this waiver of immunity extends to cases filed against Defendant in federal court.

Plaintiff claims that Section 4.3 of the Ordinance is a clear waiver of tribal immunity:*fn4 4.3 The Chukchansi sovereign Goldimmunity Resort & ofCasino the Tribe is and the the following instances: waived in 4.3.1 Injuries negligent proximately acts or omissions caused by of the Chukchansi Gold Resort & Casino; the Chukchansi any property caused the by resort of the Tribe at 4.3.2 Injuries condition proximately the of Gold & Casino, that the property Claimant established condition and the Chukchansi was in dangerous Casino personnel had Gold Resort & constructive condition notice actual of the knowledge dangerous or provided that the the injury and to sufficient take measures time to to remedy prior protect against the dangerous condition;or to 4.3.3 Negligent Gold Resort acts & or omissions of Chukchansi within the course Casino employees or employment or agency.and scope of agents their (Id. at 3:1-3:13.)

Plaintiff's proposed reading of the May 25, 2003 Ordinance is overly parsed and incomplete. In particular, Plaintiff overlooks that the two preceding subsections of the Ordinance - §§ 4.1 & 4.2 - make clear that this limited waiver of immunity applies only to suits filed in tribal court, not in federal court. Those provisions of the Ordinance provide, in relevant part:

4.0 Limited Waiver of Sovereign Immunity 4.1 The continue sovereign except immunity the of the Tribe shall expressly waived by to this Ordinance, extent that it is the Tribe, including Officers of Council, remain immune members from of the Tribal arising within the course and suit scope for of actions authority and duties. their 4.2 The Chukchansi Gold Resort & Casino and the Tribe may be sued solely in Tribal Court. The Tribe does not waive immunity from suit in any state or federal court.

(Doc. 16-1 at pg. 16)(emphasis added).

Contrary to Plaintiff's arguments, the presence of § 4.3 in the Tribal Ordinance cannot serve as a broad and complete waiver of sovereign immunity in this case. The Tribe's Ordinance expressly reserves sovereign immunity with respect to litigation in federal or state court. The only waiver and appropriate venue for compensatory redress for negligence-based actions is in tribal court. See Tribal Ordinance § 4.2 ("The Chukchansi Gold Resort & Casino and the Tribe may be sued solely in Tribal Court.") The relevant provisions, read together, demonstrate that the Tribe unambiguously intended to preserve its tribal sovereign immunity as to claims raised in any judicial forum, federal or state.

Plaintiff submits no other documents or authority showing a waiver of sovereign immunity as to claims advanced in a U.S.

District Court. Based on the plain and express language of Section 4.2 and a complete review of the Ordinance, the Court finds that, at most, Defendant has agreed to a limited waiver of sovereign immunity in tribal court for negligence-based claims allegedly occurring at its Resort and/or parking facility.

Plaintiff's citation to two prefatory subsections, §§ 2.1 and 2.4, has little, if any, bearing on the analysis.*fn5 These two subsections, located in the "definition" portion of the Ordinance, only serve to define the relevant commercial premises and adjacent real property under the authority and control of the Tribe; and the scope of "injuries" that are capable of redress in a tribal forum, if a claimant complies with the claim and notice procedures delineated in §§ 7.1 and 7.2 of the Ordinance. These two subsections, taken separately or cumulatively with the other subsections cited by Plaintiff, do not establish that Defendant expressly waived its sovereign immunity with respect to federal court litigation.

It is appropriate to identify what this case is not about. The arguments here are not comparable to those advanced and discussed in C & L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2001), Oglala Sioux Tribe v. C & W Enterprises, Inc., 542 F.3d 224 (8th Cir. 2008), Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 313 F.3d 1087 (8th Cir. 2002), Garcia v. Akwesasne Hous. Auth., 268 F.3d 76 (2nd Cir. 2001) and Saroli v. Agua Caliente Band of Cahuilla Indians, No. 10-CV-1748-BEN-NLS, 2010 WL 4788570 (S.D. Cal. Nov. 7, 2010), cases involving "sue or be sued" clauses inserted into tribal charters, disputes over contracts and rental agreements, or the scope/enforceability of "choice-of-law" and arbitration provisions. Those subjects were not raised in the parties' briefing and are not addressed here. The resolution of this dispute is limited to whether Defendant waived its tribal sovereign immunity pursuant to the May 25, 2003 Ordinance.

The final argument advanced by Plaintiff is that Defendant has not promptly administered her claim as required under the May 25, 2003 Ordinance.*fn6 Plaintiff asserts her claim was properly filed with the tribal court on September 17, 2009. To date, however, Plaintiff has only received a June 24, 2010 letter from the Tribe indicating that it was aware of an "open personal injury claim against the Tribe." As a result, according to Plaintiff, the status of her claim - i.e., its acceptance or rejection - is entirely unclear.*fn7

Plaintiff argues that the Tribe's alleged "unwillingness" to timely process her claim constitutes a cognizable cause of action in federal court: As information a result of regarding the Tribe's the the status unwillingness to provide violated of the any her claim, Tribe her claim under the Ordinance. right to a prompt of Plaintiff's The plaintiff investigation was copies of all claims arising under this Ordinance to the Tribal Gaming Commission, the Chukchansi Economic Development Authority Board of Director's and the Tribe's Insurer. Such forms may be obtained from the Chukchansi Gold Resort & Casino, or the Tribal Gaming Commission [...]

11.0 Acceptance or Rejection of Claim All claims meeting the criteria of Section 6.0 above shall be forwarded to the Tribe's insurer within thirty in left the with Eastern no other District. recourse More than to than file her complaint passed Tribe, between and the plaintiff filing her nine had finally being claim months with insurer, without Tribe's the albeit an indication contacted by the acceptance of her claim. of rejection or The who Ordinance does not receive does not the provide benefit any remedy the for a under afforded claimant Ordinance. In rights from the waiver the absence of of confirmation suit brought by plaintiff, of immunity any the for the appropriate the Eastern the type the the Tribe, District of of California complaint was filed. was forum at the time the (Doc. 16 at 15:26-16:3.)

These arguments, which draw on constitutional due process, run into a powerful impediment, namely that Indian tribes are neither states nor part of the federal government, therefore Courts have held that the Bill of Rights and the Fourteenth Amendment generally do not apply to them. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56-57 (1978)("[T]ribes have historically been regarded as unconstrained by th[e]se constitutional provisions framed specifically as limitations on federal or state authority."). The Ninth Circuit has further held: "Constitutional guarantees [] are not applicable to the exercise of governmental powers by an Indian tribe except to the extent that they are made explicitly binding by the Constitution or are imposed by Congress." Trans-Canada Enters. v. Muckleshoot Indian Tribe, 634 F.2d 474, 476-77 (9th Cir. 1980). These cases, and others, make clear that allegations of substantive and/or procedural constitutional violations against a federally-recognized Tribe do not create jurisdiction in the absence of express congressional or constitutional authority, circumstances not present in this case.*fn8

Even if Plaintiff's arguments were valid, which they are not, the Court would be constrained to interpret the meaning of "prompt investigation" under the terms of the Ordinance. Such an undertaking oversteps the boundaries of federal jurisdiction in interpreting tribal constitutions and bylaws. See, e.g., In re Sac & Fox Tribe of the Mississippi of Iowa/Meskwaki Casino Litig., 340 F.3d 749, 751 (8th Cir. 2003)("Jurisdiction to resolve internal tribal disputes, interpret tribal constitutions and laws, and issue tribal membership determinations lies with Indian tribes and not in the district courts.")(citation omitted); see also Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983) ("[T]he district court overstepped the boundaries of its jurisdiction in interpreting the tribal constitution and bylaws and addressing the merits of the election dispute.").

Defendant did not waive its tribal sovereign immunity when it adopted and distributed the May 25, 2003 Ordinance. The subsections cited by Plaintiff do not establish that Defendant expressly waived its sovereign immunity with respect to federal court litigation, the required showing in this Circuit. Plaintiff's remaining arguments are similarly flawed as the allegations of an untimely claim investigation, without exhausting tribal court review, do not create federal jurisdiction; and well-established federal appellate law establishes that judicial interpretation of tribal law is not allowed. No subject matter jurisdiction exists over the present action.*fn9


Defendant's motion to dismiss the complaint is GRANTED. Defendant is a federally recognized Indian Tribe, entitled to sovereign immunity. It has not expressly waived its tribal sovereign immunity pursuant to the terms of the May 25, 2003 Ordinance. The complaint is DISMISSED.

Defendant shall submit a form of order consistent with, and within five (5) days following electronic service of, this Memorandum Decision.


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