FILED
NOT FOR PUBLICATION MAR 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERRY TONASKET, dba Stogie Shop; No. 11-36001
DANIEL T. MILLER, an individual,
D.C. No. 2:11-cv-00073-LRS
Plaintiffs - Appellants,
v. MEMORANDUM *
TOM SARGENT, Tobacco Tax
Administrator; THE COLVILLE
BUSINESS COUNCIL; MICHAEL O.
FINLEY, Chairman; HARVEY MOSES,
Jr.; SYLVIA PEASLEY; BRIAN
NISSEN; SUSIE ALLEN; CHERIE
MOOMAW; JOHN STENSGAR;
ANDREW JOSEPH; VIRGIL
SEYMOUR, SR.; MIKE MARCHARD;
ERNIE WILLIAMS; DOUG SEYMOUR;
SHIRLEY CHARLEY; RICKY
GABRIEL; COVILLE CONFEDERATED
TRIBES OF THE COLVILLE INDIAN
RESERVATION, a federally recognized
Indian tribe,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lonny R. Suko, District Judge, Presiding
Argued and Submitted August 6, 2012
Seattle, Washington
Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.
Appellants Terry Tonasket (Tonasket) and Daniel T. Miller (Miller) appeal
the district court’s order dismissing, for lack of subject matter jurisdiction, this
action against Appellees Tom Sargent (Sargent), the Colville Business Council (the
Council), and The Colville Confederated Tribes of the Colville Indian Reservation
(the Colville Tribes), concerning the imposition by the Colville Tribes of cigarette
taxes on non-Indians. In light of our decision in Miller v.Wright, No 11-35850,
2013 WL 174493 (9th Cir. Jan. 14, 2013), as amended, a case in which Miller
brought the same claims against the Puyallup Tribe of Indians, we affirm.
In Miller, we held that: (1) the Puyallup Tribe’s execution of the cigarette
tax contract (CTC) did not waive tribal sovereign immunity, id. at *5; (2) tribal
sovereign immunity extends to the tribal officials, who were acting in their official
capacities and within the scope of their authority when they taxed cigarette sales
occurring on tribal land, id. at *7; and (3) the federal antitrust laws do not abrogate
tribal sovereign immunity, id. at *6-7.
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Here, as in Miller, the district court lacked subject matter jurisdiction over
Tonasket’s and Miller’s claims because the Colville Tribes did not waive sovereign
immunity by entering into a CTC with the state of Washington; tribal sovereign
immunity extends to Sargent, who is a tribal official; and federal antitrust laws do
not abrogate tribal sovereign immunity. See id. at *5-7.
AFFIRMED.
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