7 NICS App. 87, NAFCO v. UNITED STATES (June 2006)




NAFCO Inc. and Stormmy V. Paul, Plaintiffs/Appellants,


United States, et al., Defendants/Appellees.

No. TUL-CV-GC-2005-0432 (June 6, 2006)


Trial court dismissed complaint filed by tribal member under the name of his business seeking a tribal court injunction preventing the United States and members of the United States Attorney’s Office from prosecuting tribal member in federal court. Court of Appeals holds the Tribal Court lacks jurisdiction over the federal defendants because they enjoy sovereign immunity. Trial court order affirmed.


Jane M. Smith, Chief Justice; John Sledd, Justice; Daniel A. Raas, Justice.


Sledd, J.:

Appellant Stormmy V. Paul was indicted in federal court in Seattle in March, 2005. The indictment charged a conspiracy to traffic in cigarettes that lacked state tax stamps, in violation of 18 U.S.C. 2341(2), and related crimes. Mr. Paul and NAFCO, Incorporated filed this civil suit in the Tulalip Tribal Court in December, 2005. The suit seeks a writ against the federal District Court to stay the federal prosecution, as well as restitution and damages for seizure of Plaintiffs’ cigarettes. The Defendant-Appellees are the United States; John McKay, who is the United States Attorney for the Western District of Washington; and three Assistant United States Attorneys. The individuals were sued in their official capacities.

The Complaint alleged that Plaintiff Paul is a member of the Tulalip Tribes and that NAFCO is an Indian-owned business operating on the Tulalip Indian Reservation. Stripped to its basics, Plaintiffs’ theory appears to be that the Tulalip Tribes and their members have a right

7 NICS App. 87, NAFCO v. UNITED STATES (June 2006) p. 88

to sell cigarettes without state taxes under the Treaty of Point Elliott, 12 Stat. 927, that no federal statute abrogates the Treaty, and that Defendants therefore lack jurisdiction to prosecute.

Although served with the complaint and summons, Defendants did not file a timely responsive pleading. Plaintiffs filed a Motion for Order to Show Cause, effectively seeking a default judgment. The United States Attorney’s Office responded with a letter to the trial court on behalf of Defendants. The letter stated that the Defendants would not make a formal appearance, and asked that the letter be construed as, at most, a special appearance for the purpose of challenging jurisdiction. The letter argued that sovereign immunity deprived the tribal court of jurisdiction over the United States and its officers acting in their official capacities, citing United States v. White Mountain Apache Tribe, 784 F.2d 917, 919-920 (9th Cir. 1986) and United States v. Yakima Tribal Court, 806 F.2d 853, 860 (9th Cir. 1986), cert. den. 481 U.S. 1069 (1987).

Judge Pouley heard the Plaintiffs’ Motion for Order to Show Cause on January 24, 2006, denied it, and dismissed the case for lack of jurisdiction under Tulalip law.

Plaintiffs, now Appellants, timely filed their Notice of Appeal. This Court ordered Appellants to file a brief limited to the issue of its jurisdiction, and offered Appellees the opportunity to do the same. For reasons unknown, this Order was not served on Appellees, and they filed nothing. This does not matter, however, because Appellants’ brief fails to persuade us that the tribal courts have jurisdiction under Tulalip law. We will therefore affirm without further briefing or argument.

The pertinent jurisdictional provision is Tribal Ordinance 49, Section 1.2.1. It grants the tribal courts very broad jurisdiction, reaching “all persons natural and legal of any kind and … all subject matters,” “except as limited by federal or Tulalip tribal law” (emphasis added). The exception incorporates the federal law of tribal jurisdiction as tribal law, which we must follow.

Under federal law, sovereign immunity is a jurisdictional matter.1 F.D.I.C. v. Meyer, 510 U.S. 471, 114 S.Ct. 996 (1994). Also under federal law, the United States has sovereign immunity unless clearly waived. E.g., United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767 (1941). Federal officials acting in their official capacities and within the scope of their authority have the same immunity as the United States itself. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-690, 69 S.Ct. 1457 (1949).

7 NICS App. 87, NAFCO v. UNITED STATES (June 2006) p. 89

Appellants have not shown a clear waiver of federal sovereign immunity. They merely restate their argument that the United States is acting unlawfully and lacks jurisdiction to prosecute them under the Treaty. This is not enough. Immunity is intended to protect public funds and services from liability. If immunity vanished whenever the government acted unlawfully, it would be of no use at all. See, e.g., Larson, supra, 337 U.S. at 690 (error in exercise of authority does not cost official his or her immunity).

Although not argued in their jurisdictional brief, Appellants’ Complaint alleged that the federal Administrative Procedure Act was a waiver of immunity. The APA waives immunity for federal court review of final federal agency action for which there is no other adequate remedy at law. 5 U.S.C. secs. 702, 704; e.g., The Presbyterian Church (U.S.A) v. United States, 870 F.2d 518 (9th Cir. 1989). Tulalip tribal courts are not federal courts, an indicting grand jury is not a federal agency, United States v. Facchini, 832 F.2d 1159, 1161 (9th Cir. 1987), and Plaintiffs have an adequate legal remedy in the federal criminal case, where they may challenge jurisdiction and other matters.

The individual Appellees were sued only in their official capacities. In that capacity they are as immune as the United States themselves. The United States Attorney and his assistants did not act beyond the scope of their authority or unconstitutionally, such that their conduct would be ultra vires and not shielded by immunity. These officials are authorized to prosecute federal criminal offenses within their judicial district. 28 U.S.C. sec. 547. It is not unconstitutional for them to charge Indian defendants with crimes allegedly committed within an Indian reservation. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109 (1886).

Appellants raise many issues we need not and do not decide. We need not decide whether Appellees would have sovereign or prosecutorial immunity, had they been sued in their individual capacities. We need not decide the extent of tribal or federal jurisdiction over Appellants’ conduct or over reservation business generally. We need not decide what jurisdiction the Tulalip tribal courts would have absent the ordinance incorporating federal limits on that jurisdiction. We need not decide whether 18 U.S.C. 2341, requiring state tax stamps, is consistent with the Treaty of Point Elliott, with tribal sovereignty, or with longstanding federal jurisprudence excluding state and local authority over Indian Country. We decide only that the trial court was right to dismiss this case for lack of jurisdiction.



The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.


Unlike a “pure” defense of lack of subject matter jurisdiction, federal sovereign immunity can be waived. Immunity shares other aspects of a jurisdictional defense, however. Thus, a plaintiff must plead and prove the facts establishing jurisdiction, i.e., a waiver of immunity. Larson, supra, 337 U.S. at 690. The issue of immunity can be raised at any time. See, In re Mitchell, 209 F. 3d 1111, 1117 (9th Cir. 2000) (11th Amendment immunity). And, if immunity exists, the court must dismiss without permitting further litigation. See, Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789 (1991) (11th Amendment).