FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NISQUALLY INDIAN TRIBE,
Plaintiff-Appellant,
v.
CHRISTINE O. GREGOIRE, Governor
of the State of Washington;
CHAIRMAN DAVID LOPEMAN; No. 09-35725
ARNOLD COOPER; VINCENT HENRY;
RUSSELL HARPER; MISTI SAENZ-
GARCIA; MARCELLA CASTRO;
D.C. No.
3:08-cv-05069-RBL
CHARLENE KRISE; DEBORAH STOEHR; OPINION
THERESA BRIDGES,
Defendants-Appellees,
SQUAXIN ISLAND TRIBE; FRANK’S
LANDING INDIAN COMMUNITY,
Defendant-intervenors-
Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
July 14, 2010—Seattle, Washington
Filed October 4, 2010
Before: Pamela Ann Rymer and N. Randy Smith, Circuit
Judges, and William T. Hart, Senior District Judge.*
*The Honorable William T. Hart, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
16707
16708 NISQUALLY INDIAN TRIBE v. GREGOIRE
Opinion by Judge N.R. Smith
16710 NISQUALLY INDIAN TRIBE v. GREGOIRE
COUNSEL
Malcom S. Harris, Harris, Mericle & Wakayama, Seattle
Washington and Glenn M. Feldman, Mariscal, Weeks, McIn-
tyre & Friedlander, P.A., Phoenix, Arizona, for plaintiff-
appellant Nisqually Indian Tribe.
Keith M. Harper, Kilpatrick Stockton, LLP, Washington,
D.C., and Adam H. Charnes, Kilpatrick Stockton, LLP,
NISQUALLY INDIAN TRIBE v. GREGOIRE 16711
Winston-Salem, North Carolina, for defendant-appellees
Frank’s Landing Indian Community and Theresa Bridges.
Kevin R. Lyon and Nathan E. Schreiner, Squaxin Island Legal
Department, Shelton, Washington, for defendant-appellee
David Lopeman.
Robert M. McKenna, Attorney General, Robert K. Costello,
Deputy Attorney General, Cameron G. Comfort, Senior
Assistant Attorney General, and Heidi A. Irvin, Assistant
Attorney General, Olympia, Washington, for defendant-
appellee Christine Gregoire.
OPINION
SMITH, Circuit Judge:
The Nisqually Indian Tribe (“Nisqually”) challenges an
agreement between the Frank’s Landing Indian Community
(the “Community”), the Squaxin Island Indian Tribe1
(“Squaxin”), and the State of Washington2 (“Washington” or
the “State”) governing taxation of cigarettes at Frank’s Land-
ing. Nisqually brought suit claiming that Washington
breached a contract with Nisqually by entering into the agree-
ment with Squaxin and the Community, and further argues
that the agreement violates various state and federal laws.
With respect to Nisqually’s attempts to enforce federal and
1
The Squaxin Island Indian Tribe is not actually named as a party
because of its sovereign immunity from suit. The Chairman of the Tribe
was named as a party under the Ex Parte Young doctrine. 209 U.S. 123
(1908). For convenience as to which appellee represents the interests of
the tribe, we refer to Appellee Lopeman, the Chairman of the Squaxin
Island Indian Tribe, as “Squaxin.”
2
Washington State was not named as a party in this case; rather, the
action was brought against Washington’s governor, Christine Gregoire.
Because Gregoire represents the interests of the State, we simply refer to
her as the “State of Washington” in this opinion.
16712 NISQUALLY INDIAN TRIBE v. GREGOIRE
state law, we affirm the grant of summary judgment against
Nisqually because the laws under which it sues provide no
private right of action. We also affirm the district court’s
judgment denying Nisqually’s breach of contract claim.
FACTS AND PROCEDURAL HISTORY
A. Background
Washington law applies state sales and use taxes to the sale
of tobacco by Indian retailers to non-Indians, even when the
sale takes place in Indian country.3 Wash. Admin. Code 458-
20-192(9)(a), (e). In practice, assessment and collection of
these taxes has proven to be logistically difficult and has
become a source of contention between the Indian tribes and
the State. To address this issue, the State enacted a law allow-
ing the governor to enter into contracts regarding tobacco tax-
ation (“tobacco tax contracts”) with certain enumerated,
federally-recognized Indian tribes. Wash. Rev. Code
§ 43.06.455. Under these contracts, an Indian tribe can collect
tribal taxes, in lieu of state and local sales and use taxes, when
a tribal member retailer sells tobacco in Indian country. Wash.
Rev. Code §§ 43.06.450-460. To retain this tax revenue, then,
tribes must use the funds for “essential” government services.
Id. § 43.06.455(8).
B. Description of the Parties
Nisqually is a federally-recognized Indian tribe with reser-
vation lands in Washington State. Nisqually has entered into
a tobacco tax contract with the State government (the “Nis-
qually contract”).
Squaxin is also a federally-recognized Indian tribe with res-
3
Consistent with 18 U.S.C. § 1151, Washington law refers to Indian res-
ervations, allotments, and dependent communities as “Indian country.”
See Wash. Admin. Code 458-20-192(2)(b).
NISQUALLY INDIAN TRIBE v. GREGOIRE 16713
ervation lands in the State of Washington. Squaxin entered
into a tax contract with the State (the “Squaxin contract”) that
allowed Squaxin to tax tobacco sales by tribal retailers in “In-
dian country.” The contract defined “Indian country” to
include the Squaxin reservation and “allotments held in trust
for a Squaxin Island tribal member.”4 In 2008, Washington
and Squaxin executed an addendum to their contract (the
“Addendum”).
Frank’s Landing is a geographic location consisting of
three parcels of land, none of which is located on the Nis-
qually or Squaxin Reservations. The parcels are instead held
in trust by the United States for the benefit of individually
named Indians.5 The three parcels were set aside for these
individuals in 1918. The people, society, and government
located at and associated with Frank’s Landing are referred to
as the “Community.” The Community is not a federally-
recognized Indian tribe; rather, it is a “self-governing depen-
dent Indian Community.”
Two federal statutes define the powers of the Community.
First, in 1987, Congress passed Public Law Number 100-153
(the “1987 Act”), which states that the Community is “eligible
to contract, and to receive grants, under the Indian Self-
Determination and Education Assistance Act.” Indian Law
Technical Amendments of 1987, Pub. L. No. 100-153, § 10,
101 Stat. 886 (1987). Later, in 1994, Congress passed Public
4
One of the Frank’s Landing allotments is held by Theresa Bridges
(“Bridges”). Bridges was a member of the Pullyup Tribe, but also satisfied
the membership criteria of the Squaxin Tribe. Bridges decided— appar-
ently partially because of family connections and partially because of the
potential for an agreement between Squaxin and the Community for ciga-
rette sales—to join Squaxin. This required Bridges to relinquish her mem-
bership in the Pullyup Tribe.
5
Bridges owns property in trust at Frank’s Landing and was named as
a party to the original lawsuit and this appeal. Since Bridges joins the
Community’s brief, and her interests appear identical, we do not refer sep-
arately to her in this opinion.
16714 NISQUALLY INDIAN TRIBE v. GREGOIRE
Law Number 103-435 (the “1994 Act”), which amended the
1987 Act, and states, in relevant part:
RECOGNITION OF INDIAN COMMUNITY
(a) Subject to subsection (b), the Frank’s [Landing
Indian Community in the State of Washington is
hereby recognized;] . . .
(1) as eligible [for the special programs and services
provided by the United States to Indians because of
their status as Indians and is recognized as eligible
to contract, and to receive grants, under the Indian
Self-Determination and Education Assistance Act
for such services . . . ]; and . . .
(2) as a self-governing dependent Indian community
that is not subject to the jurisdiction of any federally
recognized tribe.
(b)(1) Nothing in this section may be construed to
alter or affect the jurisdiction of the State of Wash-
ington [over criminal matters in Indian country] . . . .
(2) Nothing in this section may be construed to con-
stitute the recognition by the United States that the
Frank’s Landing Indian Community is a federally
recognized Indian tribe.
(3) Notwithstanding any other provision of law, the
Frank’s Landing Indian Community shall not engage
in any class III gaming activity . . . .
Indians: Technical Corrections, Pub. L. No. 103-435, § 8, 108
Stat. 4566, 4569-70 (1994).
C. Tobacco Sales by Squaxin at Frank’s Landing
Cigarette sales at Frank’s Landing have strained the Com-
munity’s relationship with the State and nearby Indian tribes,
NISQUALLY INDIAN TRIBE v. GREGOIRE 16715
such as Nisqually. In particular, Nisqually claims tobacco
sales at Frank’s Landing directly reduce cigarette sales on the
Nisqually Reservation, resulting in a loss of sales revenue to
Nisqually. The different parties to this appeal have considered
and attempted a number of solutions to this problem. At one
time, the Community tried to contract directly with the State.
However, because the Community was not a federally-
recognized tribe, Washington declined to enter into a contract
with the Community, citing the lack of authority to do so
under state law. Nisqually proposed to the State that it could
sell cigarettes at Frank’s Landing under the Nisqually con-
tract. The Community resisted this attempt by Nisqually.
This appeal centers on a solution to the problem of cigarette
sales and taxes at Frank’s Landing negotiated by Washington,
the Community, and Squaxin (the “Agreement”). The parties
entered into an agreement wherein Bridges leased part of her
property, held in trust, to the Community. The Community, in
turn, sub-leased the property to Squaxin for a retail store oper-
ated by Island Enterprises, a business wholly-owned by
Squaxin. The Community, Squaxin, and Washington agreed
that Island Enterprises could sell cigarettes under the Squaxin
contract at Frank’s Landing. The Agreement further provided
that the Community would share in the revenue, and its share
would be used (consistent with Washington law) for commu-
nity purposes, including funding the Wa-He-Lut Indian
School, which the Community established in 1974.
Squaxin and Washington subsequently executed the
Addendum to further clarify that the Squaxin contract covered
sales at Frank’s Landing. The Addendum defined “Indian
country” as:
Public domain allotment lands when under a then
existing agreement between the Squaxin Island Tribe
and a Self-Governing Dependent Indian Community
. . . that conveys interest to the Squaxin Island Tribe
sufficient to allow the Tribe to operate as a ‘tribal
16716 NISQUALLY INDIAN TRIBE v. GREGOIRE
retailer’ in full compliance with the terms and condi-
tions of the [original Squaxin] Compact.
D. Procedural History
On February 6, 2008, Nisqually filed a lawsuit challenging
the Agreement on three grounds6: (1) the Agreement violates
the 1994 Act; (2) the Addendum violates state law; and (3)
the Addendum constitutes a breach of the Nisqually contract.
Both sides moved for summary judgment and the district
court granted Defendants’ motion while denying Nisqually’s.
Nisqually appeals.
STANDARD OF REVIEW
We review de novo a district court’s order granting sum-
mary judgment. Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004). We must determine whether there
are any genuine questions of material fact and whether the
district court correctly applied the law. Id. All inferences must
be drawn in favor of the nonmoving party. Id.
DISCUSSION
I. Nisqually has no right of action under the 1987 Act or
the 1994 Act.
On appeal, Nisqually argues that the Agreement violates
either the 1987 Act or the 1994 Act. We need not address Nis-
qually’s arguments as to the merits of this claim, because nei-
ther the 1987 Act nor the 1994 Act provides a private right of
action under which Nisqually may challenge the Agreement.
6
Nisqually initially argued before the district court that Bridges’ lease
to Squaxin was not properly approved by the Secretary of the Interior.
Because this argument was not presented in Nisqually’s opening brief on
appeal, it is waived. See Brookfield Commc’ns, Inc. v. W. Coast Entm’t
Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999).
NISQUALLY INDIAN TRIBE v. GREGOIRE 16717
[1] A plaintiff may only bring a cause of action to enforce
a federal law if the law provides a private right of action. See
First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1121 (9th
Cir. 2000). The ability to bring a private right of action may
be authorized by the explicit statutory text or, in some
instances, may be implied from the statutory text. See Touche
Ross & Co. v. Redington, 442 U.S. 560, 568-77 (1979). How-
ever, an implied right of action is only authorized when there
is clear evidence Congress intended such a right to be part of
the statute. Transamerica Mort. Advisors, Inc. (TAMA) v.
Lewis, 444 U.S. 11, 23-24 (1979).
A. The 1987 Act and the 1994 Act
[2] Nisqually does not dispute that neither the 1987 Act
nor the 1994 Act provides an explicit right of enforcement in
the statutory text. Thus, our only inquiry is whether either act
provides an implied right of action.
[3] In Cort v. Ash, 422 U.S. 66, 78 (1975), the Supreme
Court outlined a four-factor inquiry for determining whether
a statute provides an implied right of action. These factors
are: (1) whether the plaintiff is “one of the class for whose
especial benefit the statute was enacted”; (2) whether there is
“any indication of legislative intent, explicit or implicit, either
to create or to deny [a private right of action]”; (3) whether
it is “consistent with the underlying purposes of the legislative
scheme to imply” a private right of action; and (4) whether
“the cause of action [is] one traditionally relegated to state
law.” Id. (citation and quotation marks omitted). In the con-
text of Indian tribes, we have previously interpreted the fourth
factor to turn on determining “whether federal remedies
would interfere with matters traditionally relegated to the con-
trol of semisovereign Indian tribes.” Solomon v. Interior Reg’l
Hous. Auth., 313 F.3d 1194, 1197 (9th Cir. 2002) (citation
and quotation marks omitted).
[4] (1) Nisqually is not “one of the class for whose espe-
cial benefit the statute was enacted.” Cort, 422 U.S. at 78
16718 NISQUALLY INDIAN TRIBE v. GREGOIRE
(citation and quotation marks omitted). “In applying the first
Cort factor, courts look to whether the plaintiffs that claim a
cause of action exists are specifically mentioned as beneficia-
ries in the statute.” Opera Plaza Residential Parcel Home-
owners Ass’n v. Hoang, 376 F.3d 831, 835 (9th Cir. 2004).
Nisqually is not mentioned in the statute; the only reference
to any Indian tribe is found in the 1994 Act’s declaration that
the Community “is not subject to the jurisdiction of any feder-
ally recognized tribe.” Indians: Technical Corrections, Pub. L.
No. 103-435, § 8, 108 Stat. 4566, 4569-70 (1994). The 1987
Act and the 1994 Act recognize the status of the Community,
defining and setting limitations on the Community’s ability to
self govern. If there is a class, for whose benefit the statute
was enacted, that class is the Community alone.
[5] (2) Although Cort outlines a four-factor analysis, the
Supreme Court has subsequently explained that the second of
the four factors raises the dispositive question: “whether Con-
gress intended to create” a private right of action. Transamer-
ica Mortgage, 444 U.S. at 24 (emphasis added). “The starting
point in discerning congressional intent is the existing statu-
tory text.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004).
Reviewing the text of the Acts, there is no evidence of legisla-
tive intent to create a private right of action. The Acts simply
recognize and define the Community; nothing suggests an
intent to create a private right of action to enforce any particu-
lar provision therein.
[6] Finding no evidence of such intent in the Acts, we
review the legislative history. Such review does not indicate
that a private right of action was even considered when draft-
ing and enacting the Acts. The district court noted that one of
the “uncontroverted” facts of this case was that “Congress
amended [the 1987 Act] in 1994 at the behest of [the Commu-
nity], whose members feared unilateral annexation into the
Nisqually Tribal Reservation.” Nisqually Indian Tribe v. Gre-
goire, 649 F. Supp. 2d 1203, 1205 (W.D. Wash. 2009). At the
time, Nisqually was considering an amendment to its constitu-
NISQUALLY INDIAN TRIBE v. GREGOIRE 16719
tion which would have annexed the Community. Id. If any-
thing, this background militates against finding a private right
of action allowing Nisqually to sue under the Acts.
[7] (3) A private right of action is also not “consistent with
the underlying purposes of the legislative scheme.” Cort, 422
U.S. at 78. The Acts create and define the Community, grant
it certain rights as a “self-governing dependent Indian com-
munity,” and impose certain limitations (for example, no class
III gaming) on its ability to self-govern. This scheme explic-
itly seeks to establish the Community as “self-governing,” not
to subject it to outside control through private rights of action
to enforce the provisions recognizing and empowering the
Community.
[8] (4) Finally, the collection of state tobacco taxes in
Indian country is a matter relegated to the states and tribes.
See Washington v. Confederated Tribes of Colville Indian
Reservation, 447 U.S. 134, 159-60, 161-63 (1980); Wash.
Rev. Code § 43.06.450 (granting the governor power to enter
into contracts with Indian tribes in Washington to govern
tobacco tax collection).
[9] Confederated Tribes reaffirmed that states have the
authority to impose taxes on tobacco sales to non-Indians by
Indian retailers. 447 U.S. at 150-51. The Supreme Court noted
that the state may attempt to collect such taxes directly or to
enter into agreements with tribes—a decision at the discretion
of the state. Id. at 155-56. Thus, in matters relating to state
taxes, the state’s means of enforcement—whether through
direct collection, special contracts with tribes, or simply
allowing non-Indian purchasers to “flout [their] legal obliga-
tion to pay the tax,” id.—is an issue of state law. We find
nothing in the 1987 Act or the 1994 Act which suggests a fed-
eral right of action.
[10] After examining the four Cort factors, we hold that
Nisqually has no private right of action to enforce either the
1987 Act or the 1994 Act.
16720 NISQUALLY INDIAN TRIBE v. GREGOIRE
B. Nisqually’s Argument
Nisqually does not specifically argue that the 1987 Act or
the 1994 Act imply a private right of action. Rather, Nisqually
argues that, under Moe v. Confederated Salish & Kootenai
Tribes, 425 U.S. 463 (1976), it has a private right of action
stemming from 28 U.S.C. § 1362. We disagree.
[11] Title 28 U.S.C. § 1362 confers jurisdiction to federal
courts over actions “brought by any Indian tribe . . . wherein
the matter in controversy arises under the Constitution, laws,
or treaties of the United States.” Moe explained that, pursuant
to 28 U.S.C. § 1362, Indian tribes can bring “the kind of
claims that could have been brought by the United States as
trustee” in federal court. 425 U.S. at 472. Nisqually does not
argue, however, that the United States could bring a claim
under the 1987 Act or the 1994 Act as trustee for Nisqually
in federal court. Instead, Nisqually appears to argue that Moe
essentially creates a private right of action any time a claim
is brought by an Indian tribe. But Moe has to do with jurisdic-
tion, not with implied causes of action. There is no authority
to support Nisqually’s position. Title 28 U.S.C. § 1362 is a
jurisdictional statute and Moe merely recognizes a tribe’s
right to bring a claim in federal court which could otherwise
be brought by the United States acting as trustee. Since Nis-
qually has not demonstrated that the United States could have
brought an action as trustee in this matter, see Moe, 425 U.S.
at 472, we cannot entertain a private right of action under the
1987 Act or the 1994 Act.7
7
Nisqually seems to assert a federal common law cause of action. Rely-
ing on Nat’l Farmers’ Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 850-53
(1985), Nisqually argues that federal law “curtail[s]” Nisqually’s power
and, therefore, its cause of action is rooted in this limitation. Even if
National Farmers stands for the proposition that a tribe has a cause of
action when federal law curtails the tribe’s power, Nisqually has not
argued how the 1987 Act, the 1994 Act, or any other federal law actually
“curtails” its power nor explained how its power is so curtailed.
NISQUALLY INDIAN TRIBE v. GREGOIRE 16721
II. Nisqually has no right of action to challenge the
Addendum under state law.
The district court exercised supplemental jurisdiction under
28 U.S.C. § 1367 to reach Nisqually’s state law claims. We
review this issue because it was appealed to us on the final
order of the district court. See 28 U.S.C. § 1291. We conclude
that Nisqually has no right of action to bring state law claims
under the Washington tobacco contracting laws, Washington
Revised Code § 43.06.450 et seq. Though we analyze whether
a private right of action exists under state law, we note that
Nisqually makes no direct argument that such a right exists.
[12] Nisqually does not dispute that the relevant Washing-
ton laws do not explicitly provide a private right of action.
Thus, our inquiry again turns on whether Nisqually has an
implied right of action under state law.
Washington courts analyze implied private rights of action
using a two-step analysis. The first threshold question is
whether the statute “creates a right or obligation without a
corresponding remedy.” Ducote v. Dep’t of Soc. & Health
Servs., 222 P.3d 785, 787 (Wash. 2009) (en banc). If such a
right exists, Washington courts use a three-part inquiry to
determine whether an implied right of action exists, asking:
“[1] whether the plaintiff is within the class for whose ‘espe-
cial’ benefit the statute was enacted; [2] whether legislative
intent, explicitly or implicitly, supports creating or denying a
remedy; and [3] whether implying a remedy is consistent with
the underlying purpose of the legislation.” Id. (citation and
quotation marks omitted).
[13] Addressing the threshold question, we find that the
Washington tobacco contracting laws do not establish a right
without a corresponding remedy. While the statutes grant the
governor authority to enter into contracts, nothing requires
the governor to take such action. See Wash. Rev. Code
§ 43.06.455(1) (“[t]he governor may enter into cigarette tax
16722 NISQUALLY INDIAN TRIBE v. GREGOIRE
contracts”). Thus, rather than provide some enforceable right,
the Washington statutes merely establish a discretionary sys-
tem whereby the state government can enter into tax contracts
with Indian tribes. Compare Bennett v. Hardy, 784 P.2d 1258,
1262 (Wash. 1990) (en banc) (finding that a statute prohibit-
ing age discrimination in employment contemplates a right to
be free from age discrimination) with Adams v. King County,
192 P.3d 891, 899 (Wash. 2008) (en banc) (finding the Wash-
ington Anatomical Gift Act “creates procedures for the pro-
curement of organs, not for the protection of persons who
donate organs”). Thus, based on this threshold inquiry, we
find no private right of action can be implied under the rele-
vant Washington law.
[14] Even if we were to undertake the second step of the
analysis, our conclusion would not change. None of the three
factors suggests a private right of action on these facts. First,
Nisqually is not “within the class for whose ‘especial’ benefit
the statute was enacted.” Ducote, 222 P.3d at 787 (citation
and quotation marks omitted). The law does not mention
Nisqually—except when recognizing it as a tribe that may
contract with the state, Wash. Rev. Code § 43.06.460—nor
does it create a protection by right for any group. Rather, the
law grants the governor discretionary authority to enter into
contracts and defines the procedure for so doing. Second,
nothing in the statute suggests legislative intent to create a pri-
vate right of action. Indeed, the statute outlines the procedure
for entering into tobacco contracts, then explicitly contem-
plates that any disputes regarding the contract would be gov-
erned by the contract and general contract law. See Wash.
Rev. Code § 43.06.455(13). Third, a private right of action is
inconsistent with the underlying purpose of the legislation: to
grant the state discretionary authority to enter into tobacco
contracts with tribes. See Wash. Rev. Code § 43.06.455(1).
Allowing a third party, like Nisqually, to challenge a contract
arrangement between Washington and another tribe (like
Squaxin) runs contrary to this scheme. Thus, we find no pri-
vate right of action under the relevant Washington laws.
NISQUALLY INDIAN TRIBE v. GREGOIRE 16723
III. The Addendum does not breach the Nisqually
contract.
Nisqually argues that, by entering into the Addendum,
Washington breached the Nisqually contract. Because Nis-
qually is a contracting party to the contract, Nisqually may
bring a breach of contract claim under the contract.
Nisqually argues that the Nisqually contract grants it the
exclusive right to sell cigarettes at Frank’s Landing and,
therefore, Washington breached the Nisqually contract in
signing the Addendum. We disagree and affirm the district
court’s grant of summary judgment against Nisqually on this
claim.
[15] Washington courts interpret contracts according to the
objective manifestation of the agreement. Hearst Commc’ns,
Inc. v. Seattle Times Co., 115 P.3d 262, 267 (Wash. 2005) (en
banc). This means the court focuses on the “objective mani-
festations of the agreement, rather than on the unexpressed
subjective intent of the parties.” Id. Words should generally
be given their “ordinary, usual, and popular” meaning. Id.
Nisqually bases its argument on the following language of
the Nisqually contract. First, the agreement states that “[o]nly
tribal retailers are permitted to make retail cigarette sales
within Indian country.” A “tribal retailer” is defined as a
retailer wholly owned by the Nisqually tribe, and “Indian
country” includes “all lands placed in trust . . . for individual
Indians . . . located in the Nisqually River basin.”8 Nisqually
reads these three sentences together to suggest that only mem-
bers of Nisqually may sell cigarettes in Indian country within
the Nisqually River basin—meaning only Nisqually members
could sell cigarettes at Frank’s Landing.
8
This use of “Indian country” refers only to Indian country as defined
in the Nisqually contract, that is, Indian country with a connection to Nis-
qually (as opposed to “Indian country” as used in the Squaxin contract or
the general legal meaning of the term).
16724 NISQUALLY INDIAN TRIBE v. GREGOIRE
[16] Nisqually reads these parts of the contract out of con-
text in order to argue it has territorial exclusivity. The first
statement, relied on by Nisqually (“only tribal members are
permitted . . .”), is the only sentence of the contract under the
heading “Other Retail Sales within Indian Country by tribal
Members.” (emphasis added). The contract defines a “Tribal
member” as “an enrolled member of the Nisqually Tribe.”
This heading, read together with the clause Nisqually relies
on, demonstrates that the contract was only intended to apply
to Nisqually retailers operating within the basin. Thus, while
the Nisqually contract gives Nisqually exclusive jurisdiction
over its own tribal retailers operating in Indian country within
the basin, it does not apply to members of Squaxin.
Additionally, Nisqually’s argument is not supported by the
record. During negotiations, Nisqually sought an agreement
that cigarette sales would not be permitted at Frank’s Landing
and sought a 20 mile buffer around the Nisqually reservation
for exclusive selling rights. Washington rejected this 20-mile
radius and said, as to Frank’s Landing, “we will only negoti-
ate with federally recognized tribes [when negotiating con-
tracts] . . . . The Frank’s Landing Community is not a
federally recognized Indian tribe.” This is not an assurance
that no sales would be allowed at Frank’s Landing.
CONCLUSION
[17] We conclude there is no private right of action under
either the 1987 Act or the 1994 Act which would enable Nis-
qually to bring an action to enforce the Acts’ provisions. Fur-
ther, the Washington tobacco contract legislation, Wash. Rev.
Code § 43.06.450 et seq., contains no private right of action
which would allow Nisqually to bring suit to enforce those
laws. Finally, the Addendum does not constitute a breach of
the Nisqually contract. Accordingly, the judgment of the dis-
trict court is AFFIRMED.