Thomas Mitchell, husband and wife; v. Tulalip Tribes of Washington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS MITCHELL, husband and wife;
et al.,
Plaintiffs-Appellants,
v.
TULALIP TRIBES OF WASHINGTON,
Defendant-Appellee.
No. 17-35959
D.C. No. 2:17-cv-01279-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 12, 2018**
Seattle, Washington
Before: BLACK,*** TALLMAN, and BEA, Circuit Judges.
Thomas Mitchell, his wife, and two other married couples are non-tribal
property owners in fee simple of residences within the historical boundaries of the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Susan H. Black, United States Circuit Judge for the
U.S. Court of Appeals for the Eleventh Circuit, sitting by designation.
FILED
OCT 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Tulalip Indian Reservation in Snohomish County, Washington. They appeal
dismissal of their claims for declaratory and injunctive relief seeking to quiet title
against the Tulalip Tribes of Washington (“the Tribes”) regarding tribal ordinances
that they allege create a cloud on their title. The district court dismissed the claims
as unripe and did not address the Tribes’ alternative grounds for dismissal
including res judicata and tribal sovereign immunity. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the dismissal on grounds of tribal sovereign
immunity.
We review de novo a district court’s dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Navajo Nation v.
Dep’t of the Interior, 876 F.3d 1144, 1160 (9th Cir. 2017); Bishop Paiute Tribe v.
Inyo Cty., 863 F.3d 1144, 1151 (9th Cir. 2017). We review de novo issues of
tribal sovereign immunity, see Burlington N. & Santa Fe Ry. v. Vaughn, 509 F.3d
1085, 1091 (9th Cir. 2007), and a district court’s dismissal based on res judicata,
see Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We “can affirm
the district court’s dismissal on any ground supported by the record, even if the
district court did not rely on the ground.” Livid Holdings Ltd. v. Salomon Smith
Barney, Inc., 416 F.3d 940, 950 (9th Cir. 2005).
When the district court dismissed on grounds of ripeness, it did not address
Washington law that recognizes cloud on title as a hardship fit for judicial

-- 2 of 3 --

3
determination. See, e.g., Robinson v. Khan, 948 P.2d 1347, 1349 (Wash. Ct. App.
(1998); Wash. Rev. Code § 7.28.010.
Nevertheless, we affirm because this case must be dismissed under the
doctrine of tribal sovereign immunity, which protects Indian tribes from suit absent
congressional abrogation or explicit waiver. Santa Clara Pueblo v. Martinez, 436
U.S. 49, 58 (1978). Indian tribes possess “the common-law immunity from suit
traditionally enjoyed by sovereign powers.” Id.; see also McClendon v. United
States, 885 F.2d 627, 629 (9th Cir. 1989) (“Because they are sovereign entities,
Indian tribes are immune from unconsented suit in state or federal court.”). This
common-law immunity from suit applies to actions for injunctive and declaratory
relief. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271
(9th Cir. 1991). Congress must “unequivocally express” its intent to abrogate
immunity. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2031 (2014)
(internal quotation omitted). “The tribe’s immunity is not defeated by an
allegation that it acted beyond its powers.” Imperial Granite Co., 940 F.2d at
1271. The claims here are not brought under any federal law that abrogates tribal
immunity and the Tribes have not waived their immunity. The Tribes, therefore,
cannot be sued in federal court.
AFFIRMED.

-- 3 of 3 --