Daniel Miller v. Chad Wright

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL T. MILLER; AMBER No. 11-35850

LANPHERE; PAUL M. MATHESON ,

Plaintiffs-Appellants, D.C. No.

3:11-cv-05395-

v. RBL

CHAD WRIGHT , Puyallup Tribe Tax

Department, Enforcement Officer; OPINION

HERMAN DILLON , SR., Chairman

Puyallup Tribe of Indians;

PUYALLUP TRIBE OF INDIANS, a

federally recognized American

Indian tribe,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

August 6, 2012—Seattle, Washington

Filed November 13, 2012

Before: John T. Noonan, Susan P. Graber,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

2 MILLER V . WRIGHT

SUMMARY*

Affirming the district court’s dismissal of an antitrust

action brought by cigarette vendors challenging taxes imposed

by virtue of the authority vested in an Indian tribe, the panel

held that the district court lacked subject matter jurisdiction

in light of the tribe’s sovereign immunity.

The panel held that the tribe did not implicitly waive its

sovereign immunity by agreeing to dispute resolution

procedures nor by ceding its authority to Washington State

when entering into a cigarette tax contract. The panel also

held that federal antitrust law did not explicitly abrogate tribal

immunity, and the Sherman Antitrust Act was not a law of

general applicability vis-a-vis the tribe. The panel held that

tribal officials were protected by the tribe’s sovereign

immunity because they acted pursuant to the tribe’s authority.

The panel also affirmed the district court’s alternative

ruling that the action was barred by res judicata in light of

prior litigation in state and tribal courts.

COUNSEL

Robert Kovacevich, Spokane, Washington, for Appellants

Daniel Miller, Amber Lanphere, and Paul M. Matheson.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MILLER V . WRIGHT 3

John Howard Bell (argued) and Andrea George, Tacoma,

Washington, for Appellees Herman Dillon Sr., Chairman,

Puyallup Tribe of Indians, and the Puyallup Tribe of Indians,

a federally recognized Indian tribe.

James H. Jordan, Jr., Miller Nash LLP, Seattle, Washington,

for Appellee Chad Wright, Puyallup Tribe Tax Department,

Enforcement Officer.

OPINION

RAWLINSON, Circuit Judge:

This is the latest iteration of cigarette vendors’ challenge

to taxes imposed by virtue of the authority vested in an Indian

tribe. Appellants Daniel T. Miller (Miller), Amber Lanphere

(Lanphere), and Paul M. Matheson (Matheson) appeal the

district court’s dismissal of their antitrust action against

appellees Herman Dillon (Dillon), Chad Wright (Wright) and

the Puyallup Tribe (the Tribe). The district court dismissed

the action for lack of subject matter jurisdiction in light of the

tribe’s sovereign immunity.1 We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm the district court.

1

In reviewing a district court’s grant of a motion to dismiss, we “accept

the factual allegations of the complaint as true and construe them in the

light most favorable to the plaintiff.” AE ex rel. Hernandez v. County of

Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citation omitted).

4 MILLER V . WRIGHT

I. BACKGROUND

A. Allegations of Matheson, Miller, and Lanphere

Matheson is an enrolled Puyallup Indian who owns a

retail store that sells cigarettes. Matheson’s store is located

within the Puyallup Indian Reservation. The Tribe operates

retail stores in the same vicinity.

Miller is a non-Indian, non-resident of the reservation who

purchased cigarettes from Matheson. As a result of the Tribe’s

cigarette tax, the price Miller paid for a carton of cigarettes

included a $30.00 fee. This $30.00 fee stemmed from the

cigarette tax contract (CTC) between the State of Washington

and the Tribe. The price also included a $5 fee for the benefit

of Washington’s public health fund. Washington requires

collection of the $5 fee to comply with provisions of the

Master Settlement Agreement (MSA), a settlement between

the tobacco industry and numerous states, including

Washington. See Wash. Rev. Code § 70.157.010(e).

Pursuant to the MSA, tobacco manufacturers make payments

to an escrow fund for public health. See Wash. Rev. Code

§§ 70.157.020, 43.79.480. Tobacco manufacturers who are

not party to the MSA must pay funds into escrow. See Wash.

Rev. Code § 70.157.020(a) and (b). Miller seeks a refund of

these fees and a permanent injunction against their future

collection.

Lanphere is also a non-Indian, non-resident of the

reservation who purchased cigarettes from Matheson’s store.

Like Miller, the price Lanphere paid included the tribe’s

cigarette tax and the health fund fee.

MILLER V . WRIGHT 5

Prior to this litigation, Miller and other plaintiffs pursued

legal relief in other fora. Matheson first filed suit for

injunctive relief, declaratory judgment, and damages in

Washington state court. He specifically sought a ruling that

the cigarette tax contract with the state was invalid. The

Washington Court of Appeals affirmed the trial court’s

dismissal of the action, and the Washington and United States

Supreme Courts denied review. Matheson v. Gregoire,

139 Wash. App. 624 (2007), rev. denied, 163 Wash. 2d 1020,

cert. denied, 555 U.S. 881 (2008).

Matheson and Lanphere then filed a similar action in

Puyallup Tribal Court, seeking to invalidate the cigarette tax

contract. This action was dismissed by the tribal court

because of the Tribe’s sovereign immunity. The Tribal Court

of Appeals affirmed the dismissal.

Before the conclusion of proceedings in the tribal court,

Matheson and Lanphere filed suit in the United States District

Court for the Western District of Washington. That action

was dismissed for failure to complete the tribal proceedings.

See Lanphere v. Wright, 2009 WL 3617752 (W.D. Wash. Oct.

29, 2009). We affirmed the dismissal. See Lanphere v.

Wright, 387 F. App’x 766 (9th Cir. 2010).

B. The Tribe

Chad Wright “is or was the Tax Enforcement Officer of

the Puyallup Tribe” and Chief Executive Officer of the

Tribe’s store located near Matheson’s. Herman Dillon, Sr., is

the tribal chairman of the Puyallup Tribe.

6 MILLER V . WRIGHT

The Puyallup Tribe entered into a compact with the State

of Washington whereby the Tribe agreed that tribal retailers

would purchase only from Washington State Tobacco

Wholesalers or state certified wholesalers. Likewise, the

Tribe agreed to require retailers to charge a cigarette tax equal

to the amount of the tax that would otherwise be imposed by

the state. The Tribe’s agreement with the state provides that

“[r]esponsibility for enforcement of the terms of this

agreement shall be shared by the State and the Tribe. . . .”

The agreement also provides for mediation.

C. Miller’s, Lanphere’s, and Matheson’s Allegations

Before the District Court

Miller, Lanphere, and Matheson alleged that the Tribe

forces them “to pay more for the cigarettes by adding illegal

charges and restricting [Matheson’s] purchases at wholesale

to wholesalers who charge more to [sic] the product than

other wholesalers would charge. . . .” Their complaint sought

an injunction, a declaratory judgment, damages, and a refund

of fees paid as a result of the charges imposed by the Tribe.

D. The District Court’s Dismissal Order

The district court granted the Tribe’s motion to dismiss,

explaining that Miller, Lanphere, and Matheson “failed [to

meet their] burden of showing that sovereign immunity has

been waived and that [the district court] has jurisdiction to

hear the matter.”

Miller, Lanphere, and Matheson timely appealed.

MILLER V . WRIGHT 7

II. STANDARDS OF REVIEW

We review de novo a district court’s dismissal for lack of

subject matter jurisdiction. See Leeson v. Transamerica

Disability Income Plan, 671 F.3d 969, 974 (9th Cir. 2012).

“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)

(citation omitted).

We review de novo questions of sovereign immunity. See

Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012).

III. DISCUSSION

A. Sovereign Immunity

1. Waiver of Tribal Sovereign Immunity

Miller, Lanphere, and Matheson argue that the Tribe

implicitly waived its sovereign immunity by agreeing to

dispute resolution procedures and by ceding its authority to

Washington State when entering into the cigarette tax

contract.

“Tribal sovereign immunity protects Indian tribes from

suit absent express authorization by Congress or clear waiver

by the tribe. This immunity applies to the tribe’s commercial

as well as governmental activities. . . .” Cook v. AVI Casino

Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008) (citations

omitted). “[T]he settled law of our circuit is that tribal

corporations acting as an arm of the tribe enjoy the same

sovereign immunity granted to a tribe itself. . . .” Id.

8 MILLER V . WRIGHT

a) The Cigarette Tax Contract

The nature of the cigarette tax contract between the Tribe

and the State of Washington does not reflect a waiver of tribal

sovereign immunity simply by entering into the contract.

As we recently recognized, “[t]here has been a long-

standing dispute about the state’s power to tax cigarette sales

by tribal retailers on Indian reservations to non-Indians. . .”

United States v. Wilbur, 674 F.3d 1160, 1165 (9th Cir. 2012).

As a means of resolving this dispute, Washington law

“authoriz[es] the Governor to enter into cigarette tax contracts

(‘CTC’) with various tribes. A CTC is typically an agreement

by the state to retrocede its cigarette taxes to the tribe for

transactions covered by a CTC in exchange for the tribe’s

agreement to impose a cigarette tax equal to the state’s and to

use the proceeds to fund essential tribal government

services. . . .” Id. at 1166 (citation omitted). “The legislation

describes conditions a tribe must accept to enter into a CTC.

The CTC shall provide that the tribal cigarette tax rate be one

hundred percent of the state cigarette and state and local sales

and use taxes. . . .” Id. (citation and internal quotation marks

omitted). “The contract shall provide that Indian retailers can

purchase cigarettes only from licensed Washington

wholesalers, tribal manufacturers, or out-of-state wholesalers

or manufacturers who have agreed to comply with the terms

of the CTC. . . .” Id. (citation and internal quotation marks

omitted).

As described in Wilbur, any fees imposed pursuant to the

CTC stem from the State of Washington’s complex statutory

requirements as applied to the Tribe. Nothing about

compliance with these legal requirements evidences a clear

MILLER V . WRIGHT 9

waiver by the Tribe of its sovereign immunity. See C & L

Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of

Okla., 532 U.S. 411, 418-19 (2001) (noting that a waiver of

tribal sovereign immunity must be clear); see also Maxwell v.

County of San Diego, No. 10-56671, ---- F.3d ----, 2012 WL

4017462, at *9 (9th Cir. Sept. 13, 2012) (“Waivers of tribal

sovereign immunity must be explicit and unequivocal . . . .”)

(citation omitted).

b) The Dispute Resolution Clause

The Supreme Court has held that agreeing to an

arbitration clause may establish a clear waiver of sovereign

immunity. See C & L, 532 U.S. at 418-19.

In C & L, the Potawatomi Tribe entered into a form

contract with C & L for roofing work. The form contract was

proposed by the Tribe, and all details not set out in the form

were added by the Tribe. See id. at 414. The Tribe expressly

agreed to arbitrate any disputes arising under the contract,

with Oklahoma law designated as the governing law. The

Tribe also explicitly consented to enforcement of any ensuing

arbitration award “in any court having jurisdiction thereof.”

Id. Oklahoma has promulgated a Uniform Arbitration Act

that confers jurisdiction upon the courts of Oklahoma to

enforce arbitration agreements and any resulting arbitration

awards. See id. at 415.

After the contract was signed, the Tribe decided to

procure the services of a different roofing contractor. See id.

at 416. When C & L sought arbitration, the Tribe declined to

participate in the arbitration proceedings. See id. C & L

obtained an arbitration award and sued in Oklahoma state

10 MILLER V . WRIGHT

court to enforce the award. See id. The Tribe asserted

sovereign immunity. Following a remand from the United

States Supreme Court, the Oklahoma Court of Civil Appeals

ruled that the Tribe had not waived sovereign immunity by

agreeing to arbitrate.

Reversing the Oklahoma appeals court, the United States

Supreme Court explained that the “contract’s provision for

arbitration and related prescriptions” waived sovereign

immunity. See id. at 418. By designating Oklahoma law as

the law governing contract performance, the Tribe also

consented to application of Oklahoma’s Uniform Arbitration

Act. The Arbitration Act in turn vested jurisdiction in the

Oklahoma state courts over any arbitration award. See id. at

419.

We have described the ruling in C & L as one in which:

the Court relied on two provisions of a

contract between a tribe and a construction

company to find sufficient evidence of a clear

waiver of tribal sovereign immunity: (1) a

clause stating that all contractual disputes

should be resolved according to American

Arbitration Association Rules and providing

for enforcement of the arbitrator’s award in

accordance with applicable law in any court

having jurisdiction thereof; and (2) a

choice-of-law clause consenting to the law of

the project location, Oklahoma. The

referenced arbitration rules provided that

parties to these rules shall be deemed to have

MILLER V . WRIGHT 11

consented to enforcement of the award in

federal and state court.

Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian

Affairs, 255 F.3d 801, 813 n.5 (9th Cir. 2001) (citations,

alteration, and internal quotation marks omitted).2

The contract provisions at issue in Demontiney addressed

such mundane issues as indemnity, default remedies, interest

rates, and subjugation to enumerated federal laws. See id. at

812. Indeed, the contract expressly provided that the Tribe

retained its sovereign immunity. See id. The only contract

provision that addressed dispute resolution at all simply

provided that the decision of the Business Committee would

be final absent a determination from a “court of competent

jurisdiction” of fraud, arbitrariness, capriciousness or gross

error. Id. In contrast to C & L, the contract provisions in

Demontiney did not signal an intent to waive sovereign

immunity. The dispute resolution clause did not “reference or

incorporate procedures that provide for non-tribal jurisdiction

for enforcement . . .” Id. at 813 n.5. Unlike in C & L, the

contract provisions at issue in Demontiney designated the

tribal court as the court of exclusive jurisdiction and

designated tribal law as the governing law. See id. at 812.

The facts of this case are more akin to those in

Demontiney than to the facts in C & L. The inclusion of a

mediation provision to resolve disputes between the State of

2

W e have also held that a tribe waived its sovereign immunity when the

tribe itself initiates or joins a lawsuit. See United States v. Oregon,

657 F.2d 1009, 1013-14 (9th Cir. 1981). That circumstance does not exist

in this case.

12 MILLER V . WRIGHT

Washington and the Tribe does not evidence a clear and

explicit waiver of immunity. As a preliminary matter,

mediation generally is not binding and does not reflect an

intent to submit to adjudication by a non-tribal entity.3

Moreover, the CTC in this case did not contain any of the

provisions, including subjecting itself to the jurisdiction of the

state, that formed the basis for the waiver in C & L. The

Tribe did not waive its sovereign immunity when it executed

the CTC. See Demontiney, 255 F.3d at 812.

2. Abrogation of Tribal Sovereign Immunity

Miller, Lanphere, and Matheson contend that tribal

immunity is preempted by federal antitrust laws. The Tribe

counters that federal antitrust law does not apply to Indian

tribes.

Abrogation of tribal immunity by Congress “must be

unequivocally expressed in explicit legislation. Abrogation

of tribal sovereign immunity may not be implied.” Krystal

Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir.

2004), as amended on denial of reh’g en banc (citations and

3

“At its essence, mediation is a process of negotiations facilitated by a

third person(s) who assists disputants to pursue a mutually agreeable

settlement of their conflict. In contrast to adjudicatory forms of dispute

resolution -- hearings, arbitration and trials -- mediation is a contractarian

process. The salient features of mediation are an informal process, a

neutral mediator without authority to command a result, [and] disputants

who participate voluntarily and settle of their own accord . . .” Alan

Kirtley, The Mediation Privilege’s Transition from Theory to

Implementation: Designing a Mediation Privilege Standard to Protect

Mediation Participants, the Process and the Public Interest, 1995 J. Disp.

Resol. 1, 5-6 (1995) (footnote references omitted).

MILLER V . WRIGHT 13

internal quotation marks omitted). In Krystal, we held that

the Bankruptcy Code abrogated tribal sovereign immunity by

its reference to all foreign and domestic governments. See id.

at 1057-58. Similarly, the Tenth Circuit has held that the Safe

Drinking Water Act “contains a clear and explicit waiver of

tribal immunity” because its definition of person includes

municipalities, whose definition in turn includes Indian tribes.

Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S.

Dep’t of Labor, 187 F.3d 1174, 1181 (10th Cir. 1999). In the

same vein, the Eighth Circuit has held that the Resource

Conservation and Recovery Act of 1976 “clearly indicates

congressional intent to abrogate the Tribe’s sovereign

immunity . . .” Blue Legs v. U.S. Bureau of Indian Affairs,

867 F.2d 1094, 1097 (8th Cir. 1989).

Unlike these laws, federal antitrust law does not

“unequivocally express[] in explicit legislation” that it

abrogates tribal sovereign immunity. Krystal, 357 F.3d at

1056 (citations and internal quotation marks omitted). The

Sherman Act, for example, refers only to states and foreign

nations. See 15 U.S.C. § 1. In turn, the Clayton Act defines

the persons to whom it applies as “corporations and

associations existing under or authorized by the laws of either

the United States, the laws of any of the Territories, the laws

of any State, or the laws of any foreign country.” 15 U.S.C.

§ 12. Nowhere does either statute employ the sort of

expansive language that we and other circuits have held to

unequivocally abrogate tribal sovereign immunity.

In determining whether sovereign immunity is abrogated,

“we may look to state sovereign immunity precedent to help

determine how ‘explicit’ an abrogation must be . . .” Krystal,

357 F.3d at 1056. “A general authorization for suit in federal

14 MILLER V . WRIGHT

court is not the kind of unequivocal statutory language

sufficient to abrogate the Eleventh Amendment. . . . ” Id. at

1060 (citations and emphasis omitted).

Our decision in Sanders v. Brown, 504 F.3d 903 (9th Cir.

2007), is instructive. Sanders involved a challenge to the

MSA. See id. at 906. The plaintiffs alleged that the MSA

violated the Sherman Act, 15 U.S.C. § 1 et seq. See id. We

held that states are immune from antitrust liability for entering

into and implementing the MSA. See id. at 915 (“The [state

action] immunity doctrine protects most state laws and

actions from antitrust liability. . . .”); see also Parker v.

Brown, 317 U.S. 341, 351 (1943) (explaining that “[t]he

Sherman Act makes no mention of the state as such, and gives

no hint that it was intended to restrain state action or official

action directed by a state”). The district court thus correctly

relied on Parker to hold that federal antitrust law does not

overcome the Tribe’s sovereign immunity.

We are not persuaded that Jefferson County

Pharmaceutical Ass’n v. Abbott Laboratories, 460 U.S. 150

(1983), is the more applicable precedent. Jefferson County

involved a challenge by retail pharmacists and pharmacies to

alleged price-fixing by drug manufacturers and hospitals of

the state university. See id. at 152-53. The respondents

argued that the state purchases were exempt from federal

antitrust law. See id. at 153. The Supreme Court

characterized the “narrow” issue as whether “state purchases

for the purpose of competing against private enterprise-with

the advantage of discriminatory prices-in the retail market”

are exempt from the price-fixing statute. Id. at 154 (footnote

reference omitted). In her dissent, Justice O’Connor noted

that Parker involved sovereign immunity rather than an

MILLER V . WRIGHT 15

exemption from statutory provisions. See id. at 177 n.5

(O’Connor, J., dissenting).

This case is more akin to Parker than to Jefferson County.

As in Parker, this case involves a challenge to the sovereign

immunity of the Tribe rather than a challenge to the Tribe’s

claimed statutory exemption. Accordingly, we agree with the

district court that Parker is the more relevant legal authority.

Miller, Lanphere, and Matheson also argue that federal

antitrust law abrogates tribal immunity because the Sherman

Act is a statute of general applicability, and none of the

exceptions articulated in Donovan v. Coeur d’Alene Tribal

Farm, 751 F.2d 1113 (9th Cir. 1985), applies. Donovan

counsels that federal statutes of general applicability apply to

Indian tribes unless one of three exceptions applies:

(1) the law touches exclusive rights of

self-governance in purely intramural matters;

(2) the application of the law to the tribe

would abrogate rights guaranteed by Indian

treaties; or (3) there is proof by legislative

history or some other means that Congress

intended the law not to apply to Indians on

their reservations. In any of these three

situations, Congress must expressly apply a

statute to Indians before we will hold that it

reaches them.

Id. at 1116 (citation, alteration, and internal quotation marks

omitted).

16 MILLER V . WRIGHT

As we have explained, federal antitrust laws are not

intended to apply to Indian tribes. This conclusion forecloses

the argument that federal antitrust law is of general

applicability vis-a-vis the Tribe. Indeed, as the district court

properly ruled, Donovan’s third exception is consistent with

the precedent underlying our conclusion that Congress did not

include Indian tribes within the entities subject to antitrust

law.

Because Miller, Lanphere, and Matheson failed to

successfully challenge the Tribe’s sovereign immunity, we

affirm the district court’s holding that it lacked subject matter

jurisdiction to adjudicate the claims asserted against the Tribe.

3. Immunity of Tribal Officials

Miller, Lanphere, and Matheson argue that the tribal

officials are not covered by tribal sovereign immunity because

they assess unconstitutional taxes. The Tribe counters that

the officials act in their official capacity when they collect the

Tribe’s taxes, which the officials have the authority to

impose.

A suit against the Tribe and its officials “in their official

capacities is a suit against the tribe [and] is barred by tribal

sovereign immunity unless that immunity has been abrogated

or waived.” Linneen v. Gila River Indian Cmty., 276 F.3d

489, 492 (9th Cir. 2002). “Tribal sovereign immunity extends

to tribal officials when acting in their official capacity and

within the scope of their authority. . . .” Cook, 548 F.3d at

727 (citation and internal quotation marks omitted). “[A]

plaintiff cannot circumvent tribal immunity by the simple

expedient of naming an officer of the Tribe as a defendant,

MILLER V . WRIGHT 17

rather than the sovereign entity. . . .” Id. (citation and

internal quotation marks omitted).

As the district court found, the tribal officials are

protected by the Tribe’s sovereign immunity because they

were acting pursuant to the Tribe’s authority. “The power to

tax transactions occurring on trust lands and significantly

involving a tribe or its members is a fundamental attribute of

sovereignty which the tribes retain unless divested of it by

federal law or necessary implication of their dependent

status.” Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134, 152 (1980).

The Tribe’s sovereign immunity thus extends to its

officials who were acting in their official capacities and

within the scope of their authority when they taxed

transactions occurring on the reservation. See Cook, 548 F.3d

at 727; see also Confederated Tribes, 447 U.S. at 152.

Moreover, to the extent the complaint seeks monetary relief,

such claims are barred under Ex Parte Young. See Salt River

Project Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176,

1181 (9th Cir. 2012).4 We therefore reject Miller’s,

Lanphere’s, and Matheson’s attempt to circumvent tribal

immunity by naming tribal officials as defendants. See Cook,

548 F.3d at 727.

4

Neither in the district court nor on appeal do Miller, Lanphere, and

Matheson allege a separate and distinct claim for injunctive or declaratory

relief against the officials qua officials. See Maxwell, ---- F.3d ----, 2012

W L 4017462, at *11. W e therefore express no opinion as to the viability

of such a claim against the officials themselves.

18 MILLER V . WRIGHT

In the alternative, the district court also correctly

concluded that res judicata bars this action. “Res judicata,

also known as claim preclusion, applies only where there is

(1) an identity of claims, (2) a final judgment on the merits,

and (3) privity between parties. . . .” Turtle Island

Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 917

(9th Cir. 2012) (citation and internal quotation marks

omitted).

Res judicata bars this action. Like the suits in state court

and tribal court, the claims in this case involve allegedly

unlawful cigarette taxes arising from the sales at Matheson’s

store on the Puyallup reservation. There is thus an identity of

claims. See Turtle Island, 673 F.3d at 917-18. Likewise, the

state and tribal courts reached final judgments and Miller is

in privity with Lanphere and Matheson given the substantial

commonality of their interests. See Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d

1064, 1081 (9th Cir. 2003).

IV. CONCLUSION

As we have described, this action fails for four reasons.

First, the Tribe has not waived its tribal sovereign immunity.

Neither the cigarette tax contract nor the dispute resolution

clause in the contract constitutes a waiver by the Tribe.

Second, contrary to Miller’s, Lanphere’s, and Matheson’s

argument, federal antitrust law does not abrogate tribal

sovereign immunity. Third, the Tribe’s sovereign immunity

extends to the tribal officials who were acting in their official

capacities and pursuant to the Tribe’s authority. Fourth, the

MILLER V . WRIGHT 19

district court correctly held that res judicata bars this action in

light of the prior litigation in state and tribal courts.

AFFIRMED.