Agreement Providing To Mediate Did Not Satisfy Burden of Showing Clear Intent of Tribe to Waive Immunity

     Our next case, involving tribal sovereign immunity, does not fit into one of our convenient sidebar categories.  Miller v. Wright, Case No. 11-35850 (9th Cir. Nov. 13, 2012) (Rawlinson, J.) (published).  In Miller, a panel of the Ninth Circuit held that the Puyallup Tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures or by ceding its authority to Washington State when entering into a cigarette tax contract (CTC).  The opinion describes the case as “the latest iteration of cigarette vendors’ challenge to taxes imposed by virtue of the authority vested in the tribe.”

       A waiver of tribal immunity must be clear.  C&L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418-419 (2001).  In C&L, waiver of tribal immunity was clear, where a clause stated that contractual disputes should be resolved according to AAA Rules, the arbitrator’s award was to be enforced in accordance with applicable law in any court having jurisdiction, and the contract provided for Oklahoma choice of law.  In contrast to C&L, no waiver occurred in Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d 801 (9th Cir. 2001).   In Demontiney, the dispute resolution clause “did not ‘reference or incorporate procedures that provide for non-tribal jurisdiction for enforcement . . . ‘”.

     The panel in Miller concluded that the facts were “more akin to those in Demontiney than to the facts in C&L.”  Critically, the dispute resolution provision in Miller called for “mediation”, not “arbitration”, and mediation “generally is not binding and does not reflect an intent to submit to adjudication by a non-tribal entity.” 

     Affirmed.

     BLAWG BONUS:  Objections to a tobacco tax are nothing new.  See the print below, dating from 1790, and the explanatory note.

“A British satire on efforts by William Pitt, George Rose, and some members of Parliament to impose new "Excise" duties on tobacco (cf. Tobacco Excise Bill). The additional tax burden on British citizens is implied by the image of a bull, muzzled and blindfolded, with legs chained to a stump, being harassed by dogs (depicted with heads of members of Parliament). Edward Thurlow, also shown as a dog, registers his opposition to these "New Excise Fetters for John Bull" by urinating on tobacco leaves. Among the members of Parliament depicted are: William Wyndam Grenville, Henry Dundas, Charles Lennox Richmond, Charles Jenkinson, Richard Pepper Arden, Sir Charles Pratt Camden, and possibly Francis Osborne Carmarthen.”  James Gillray.  1790.  Library of Congress.