Benedict Cosentino v. PECHANGA BAND OF LUISENO MISSION INDIANS and PECHANGA GAMING COMMISSION

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENEDICT COSENTINO,
Petitioner - Appellant,
v.
PECHANGA BAND OF LUISENO
MISSION INDIANS and PECHANGA
GAMING COMMISSION,
Respondents - Appellees.
No. 13-57113
D.C. No. 5:13-cv-00912-R-OP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 3, 2016
Pasadena, California
Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.
Benedict Cosentino, a former table games dealer at the Pechanga Casino,
appeals the district court’s order dismissing his petition to compel the Pechanga
Gaming Commission and the Pechanga Band of Luiseño Mission Indians (“the
FILED
FEB 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

Tribe”) to arbitrate his tort claims pursuant to the Federal Arbitration Act, 9 U.S.C.
§ 1, et seq. Because the Tribe did not waive its sovereign immunity as to
Cosentino’s claims, the district court correctly ruled that it lacked jurisdiction to
order arbitration. See Fed. R. Civ. P. 12(b)(1). We affirm the dismissal of this
action.
Indian tribes possess common law immunity from suit, Michigan v. Bay
Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014), and may only be sued “where
Congress has authorized the suit or the tribe has waived its immunity,” Kiowa
Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). A tribe’s waiver of
immunity must be “clear.” C & L Enters., Inc. v. Citizen Band Potawatomi Indian
Tribe of Okla., 532 U.S. 411, 418 (2001) (citation omitted); see also Maxwell v.
County of San Diego, 697 F.3d 941, 953 (9th Cir. 2012) (“Waivers of tribal
sovereign immunity must be explicit and unequivocal.”).
Section 10.2(d) of the Tribal-State Compact between the Tribe and the State
of California requires the Tribe to adopt and maintain a Tort Liability Ordinance
wherein the Tribe consents to suits to compel arbitration of certain tort clams.
Cosentino concedes that the Tribe’s existing Tort Liability Ordinance does not
waive the Tribe’s immunity to his suit, but claims that Section 10.2(d) of the
Compact itself waives the Tribe’s immunity.
2

-- 2 of 3 --

The Tribe did not consent to Cosentino’s suit in the Compact; it merely
agreed to adopt an Ordinance waiving certain claims. Insofar as Cosentino is
arguing that the Tort Liability Ordinance failed to waive the Tribe’s sovereign
immunity to the extent required by the Compact, he lacks standing to make that
claim. See Compact § 15.1 (precluding third party suits to enforce the Compact).
Thus, construing the Compact as a whole, Compact § 10.2(d) memorializes certain
of the Tribe’s obligations to the State; it does not clearly waive the Tribe’s
immunity from third party suits. See C & L Enterprises, 532 U.S. at 418–20.
AFFIRMED.
3

-- 3 of 3 --