Stillaguamish Tribe of Indians , a federally-recognized Indian tribe v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S TILLAGUAMISH TRIBE OF INDIANS , a
federally-recognized Indian tribe,
Plaintiff-Appellee,
v.
S TATE OF W ASHINGTON ; R OBERT W.
FERGUSON, in his official capacity as
Attorney General of Washington,
Defendants-Appellants.
No. 17-35722
D.C. No.
3:16-cv-05566-
RJB
OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted November 8, 2018
Seattle, Washington
Filed January 22, 2019
Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Susan R. Bolton,* District Judge.
Opinion by Judge McKeown
* The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.

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2 S TILLAGUAMISH TRIBE V. S TATE OF W ASHINGTON
SUMMARY**
Subject Matter Jurisdiction
The panel vacated the district court’s summary judgment
in favor of an Indian tribe that sought a declaration that its
sovereign immunity barred any lawsuit arising from a
particular contract with the State of Washington.
The panel held that the district court lacked subject
matter jurisdiction because the tribe’s anticipatory defense
to a state court lawsuit did not amount to a cause of action
based on federal law and thus did not form a basis for federal
question jurisdiction. The panel vacated the district court’s
judgment and remanded with instructions to dismiss for lack
of subject matter jurisdiction.
COUNSEL
Alan D. Copsey (argued), Deputy Solicitor General; Rene D.
Tomisser, Senior Counsel; Robert W. Ferguson, Attorney
General; Attorney General's Office, Olympia, Washington;
for Defendants-Appellants.
Rob Roy (argued), Kilpatrick Townsend & Stockton LLP,
Seattle, Washington; Scott Mannakee, Stillaguamish Tribe
of Indians, Arlington, Washington; for Plaintiff-Appellee.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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S TILLAGUAMISH TRIBE V. S TATE OF W ASHINGTON 3
OPINION
McKEOWN, Circuit Judge:
In an effort to engineer federal jurisdiction, the
Stillaguamish Tribe of Indians (“the Tribe”) sued the State
of Washington in federal court, seeking a declaration that the
Tribe’s sovereign immunity barred any lawsuit arising from
a particular contract with Washington. The trouble with this
approach is that the Tribe’s anticipatory defense to a state
court lawsuit does not net federal jurisdiction.
In 2005, the Tribe’s Environmental Manager signed an
agreement with Washington concerning construction of a
revetment to protect salmon populations in the Stillaguamish
River. The details of the agreement are unimportant here,
except for an indemnification provision, which obligated the
Tribe to “indemnify, defend and hold harmless
[Washington] from and against all claims . . . arising out of
or incident to the [Tribe’s] . . . performance.” After a tragic
landslide near the Stillaguamish River, Washington became
embroiled in litigation. Victims of the slide alleged the
revetment had contributed to their injuries. Washington
indicated repeatedly that it would seek indemnification from
the Tribe, both while the litigation was ongoing and after the
resulting settlement.
In response, the Tribe sued Washington1 in federal
district court, seeking to establish that the Tribe’s sovereign
immunity would bar a suit for indemnification. The district
court granted summary judgment in favor of the Tribe.
1 Washington’s attorney general was also named as a defendant.
Because he was sued in his official capacity, we refer to the defendants
collectively as “Washington.”

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4 S TILLAGUAMISH TRIBE V. S TATE OF W ASHINGTON
We do not reach the merits of the Tribe’s sovereign
immunity defense because we conclude, on de novo review,
that the district court lacked subject matter jurisdiction.
Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008) (holding that whether subject
matter jurisdiction exists is reviewed de novo).
The Tribe invokes federal question jurisdiction under
28 U.S.C. § 1331, which provides for jurisdiction over “all
civil actions arising under the Constitution, laws, or treaties
of the United States.” Under the well-pleaded complaint
rule, federal question jurisdiction exists only if the plaintiff’s
cause of action is based on federal law. See Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987). Neither a defense
based on federal law nor a plaintiff’s anticipation of such a
defense is a basis for federal jurisdiction. See Aetna Health
Inc. v. Davila, 542 U.S. 200, 207 (2004); Bodi v. Shingle
Springs Band of Miwok Indians, 832 F.3d 1011, 1023 n.16
(9th Cir. 2016) (“A tribal immunity defense does not provide
an independent basis for federal jurisdiction.”).
Parties cannot circumvent the well-pleaded complaint
rule by filing a declaratory judgment action to head off a
threatened lawsuit. See Atay v. Cty. of Maui, 842 F.3d 688,
697–98 (9th Cir. 2016). When a declaratory judgment action
“seeks in essence to assert a defense to an impending or
threatened state court action,” courts apply the well-pleaded
complaint rule to the impending or threatened action, rather
than the complaint seeking declaratory relief. Id. In other
words, “the character of the threatened action, and not of the
defense” determines whether there is federal-question
jurisdiction. Id. at 698; accord Medtronic, Inc. v. Mirowski
Family Ventures, LLC, 571 U.S. 191, 197 (2014).
The Tribe points out that tribal sovereign immunity is a
question of federal common law. True enough. Kiowa Tribe

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S TILLAGUAMISH TRIBE V. S TATE OF W ASHINGTON 5
of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). But
tribal immunity is a federal defense. Okla. Tax Comm’n v.
Graham, 489 U.S. 838, 841 (1989) (per curiam). As such,
“[t]he possible existence of a tribal immunity defense . . . did
not convert [Washington contract claims] into federal
questions, and there was no independent basis for original
federal jurisdiction.” Id. It makes no difference that the
Tribe asserted its defense in a declaratory judgment action
rather than in a lawsuit brought by the state.
We are not persuaded by the Tribe’s reliance on Shaw v.
Delta Air Lines, Inc., 463 U.S. 85 (1983). In Shaw, the
Supreme Court reiterated that “[a] plaintiff who seeks
injunctive relief from state regulation, on the ground that
such regulation is pre-empted by a federal statute . . .
presents a federal question.” Id. at 96 n.14. The Tribe is
asserting a defense to a threatened lawsuit, not contending
that federal law preempts state law. The rule from Shaw is
inapplicable. Holding otherwise would permit any potential
defendant faced with a state common law action brought by
a state official to evade the well-pleaded complaint rule by
seeking a declaratory judgment based on a federal defense.
See Atay, 842 F.3d at 697–98.
The other cases cited by the Tribe are similarly
distinguishable, because they involved either claims based
on federal law or challenges to ongoing state action. See,
e.g., Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1151–
53 (9th Cir. 2017) (tribe sought a declaration that ongoing
state law actions violated federal law on tribal authority to
exercise jurisdiction over non-Indians); Sac & Fox Nation v.
Hanson, 47 F.3d 1061, 1062 (10th Cir. 1995) (tribe sought
to enjoin state court action which was itself brought under
federal law).

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6 S TILLAGUAMISH TRIBE V. S TATE OF W ASHINGTON
Because there was no federal question jurisdiction, we
VACATE the judgment of the district court and REMAND
with instructions to dismiss for lack of subject matter
jurisdiction.

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