United States District Court, W.D. Washington
ORDER GRANTING TULALIP TRIBES' MOTION TO
S. Lasnik United States District Judge
matter comes before the Court on “Defendant Tulalip
Tribes' Motion to Dismiss for Lack of Subject Matter
Jurisdiction.” Dkt. # 15. Having reviewed the memoranda
submitted by the parties and the remainder of the record, the
Court finds as follows:
Wilmington Savings Fund Society brings this foreclosure
action against defendant Corey Fryberg. Corey Fryberg is a
member of the Tulalip Tribes, a federally recognized Indian
tribe, and the property at issue is trust land within the
Tulalip Indian Reservation. Dkt. # 8
¶¶ 2.1, 3.2. The Tulalip Tribes is
also a named defendant for having a possible interest in the
initial complaint was filed on August 8, 2017. Dkt. # 1. On
August 17, 2017, the Court sua sponte issued an
Order to Show Cause for plaintiffs failure to provide the
citizenship of the parties to establish diversity
jurisdiction. Dkt. # 6. On August 25, 2017, plaintiff filed
an amended complaint (Dkt. # 8), and on September 28, 2017,
the Court vacated the Order to Show Cause. Dkt. # 14. Now,
defendant Tulalip Tribes moves to dismiss the case pursuant
to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “Unless the jurisdictional issue is
inextricable from the merits of a case, the court may
determine jurisdiction on a motion to dismiss for lack of
jurisdiction under Rule 12(b)(1) of the Federal Rules of
Civil Procedure. . . . Once challenged, the party asserting
subject matter jurisdiction has the burden of proving its
existence.” Robinson v. United States, 586
F.3d 683, 685 (9th Cir. 2009) (internal citations and
quotations omitted). Here, the Tulalip Tribes argues that
dismissal is appropriate because diversity jurisdiction is
lacking, the Tulalip Tribes is immune from suit, and
plaintiff failed to exhaust tribal remedies. The Court
addresses each of these arguments below.
asserts that this Court has jurisdiction pursuant to 28
U.S.C. § 1332. The diversity statute applies when the
amount in controversy exceeds $75, 000 and when the action is
between “citizens of different States” or
“citizens of a State and citizens or subjects of a
foreign state[.]” 28 U.S.C. § 1332(a)(1), (2). As
a threshold matter, the Tulalip Tribes is not a foreign
state. See Stock West Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1226 (9th Cir.
1989) (citing Cherokee Nation v. Georgia, 30 U.S. 1
(1831)). Therefore, diversity jurisdiction only exists if the
Tulalip Tribes is a “citizen” of Washington state
within the meaning of § 1332.
Ninth Circuit recognizes that “unincorporated Indian
tribes cannot sue or be sued in diversity because they are
not citizens of any state.” Am. Vantage Cos. v.
Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir.
2002); see also Cohen's Handbook of Federal Indian
Law § 7.04 (2012 ed.). Because the Tulalip Tribes
is not a citizen of Washington or any other state, complete
diversity is lacking, and this Court has no subject matter
jurisdiction. To hold otherwise would not accord with
the Tulalip Tribes' status as a “domestic dependent
nation” exercising inherent sovereign authority over
members and territories. See Okla. Tax Comm'n v.
Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505,
Tulalip Tribes also argues that plaintiff's lawsuit is
barred by tribal sovereign immunity. The Tulalip Tribes
possesses “inherent powers of a limited sovereignty
which has never been extinguished.” United States
v. Wheeler, 435 U.S. 313, 322 (1978) (internal citations
and quotations omitted) (superseded by statute as recognized
in United States v. Lara, 541 U.S. 193 (2004)).
“The common law sovereign immunity possessed by the
Tribe is a necessary corollary to Indian sovereignty and
self-governance.” Three Affiliated Tribes of the
Fort Berthold Reservation v. Wold Eng'g, 476 U.S.
877, 890 (1986). “As a matter of federal law, an Indian
tribe is subject to suit only 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] waiver of sovereign immunity
cannot be implied but must be unequivocally expressed.”
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978) (internal citations and quotations omitted). “In
the context of a Rule 12(b)(1) motion to dismiss on the basis
of tribal sovereign immunity, the party asserting subject
matter jurisdiction has the burden of proving its existence,
i.e. that immunity does not bar the suit.” Pistor
v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (internal
citations and quotations omitted).
concedes that the Tulalip Tribes has not waived immunity.
Dkt. # 21 at 2. Further, plaintiff does not point to any
source indicating that Congress has authorized this lawsuit
against the Tulalip Tribes. Therefore, the Court lacks
jurisdiction because the Tulalip Tribes is entitled to