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 D.C. No. HARPER; MISTI SAENZ- 

GARCIA; MARCELLA CASTRO; 3:08-cv-05069-RBL

CHARLENE KRISE; DEBORAH STOEHR; OPINION

THERESA BRIDGES,

Defendants-Appellees,

SQUAXIN ISLAND TRIBE; FRANK’S

LANDING INDIAN COMMUNITY,

Defendant-intervenorsAppellees. 

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
Opinion by Judge N.R. Smith

16708 NISQUALLY INDIAN TRIBE v. GREGOIRE
COUNSEL

Malcom S. Harris, Harris, Mericle & Wakayama, Seattle

Washington and Glenn M. Feldman, Mariscal, Weeks, McIntyre & Friedlander, P.A., Phoenix, Arizona, for plaintiffappellant Nisqually Indian Tribe.

Keith M. Harper, Kilpatrick Stockton, LLP, Washington,

D.C., and Adam H. Charnes, Kilpatrick Stockton, LLP,

16710 NISQUALLY INDIAN TRIBE v. GREGOIRE
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 defendantappellee 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 Landing. Nisqually brought suit claiming that Washington

breached a contract with Nisqually by entering into the agreement 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

1The 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.” 

2Washington 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. 

NISQUALLY INDIAN TRIBE v. GREGOIRE 16711
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 allowing the governor to enter into contracts regarding tobacco taxation (“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 reservation lands in Washington State. Nisqually has entered into

a tobacco tax contract with the State government (the “Nisqually contract”). 

Squaxin is also a federally-recognized Indian tribe with res3Consistent with 18 U.S.C. § 1151, Washington law refers to Indian reservations, allotments, and dependent communities as “Indian country.”

See Wash. Admin. Code 458-20-192(2)(b). 

16712 NISQUALLY INDIAN TRIBE v. GREGOIRE
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 “Indian 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 Nisqually 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 federallyrecognized Indian tribe; rather, it is a “self-governing dependent 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 SelfDetermination 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

4One 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— apparently partially because of family connections and partially because of the

potential for an agreement between Squaxin and the Community for cigarette sales—to join Squaxin. This required Bridges to relinquish her membership in the Pullyup Tribe.

5Bridges 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 separately to her in this opinion. 

NISQUALLY INDIAN TRIBE v. GREGOIRE 16713
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 Washington [over criminal matters in Indian country] . . . .

(2) Nothing in this section may be construed to constitute 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 Community’s relationship with the State and nearby Indian tribes,

16714 NISQUALLY INDIAN TRIBE v. GREGOIRE
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 federallyrecognized 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 contract. 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 operated 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 community 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

NISQUALLY INDIAN TRIBE v. GREGOIRE 16715
retailer’ in full compliance with the terms and conditions 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 summary 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 Nisqually’s arguments as to the merits of this claim, because neither the 1987 Act nor the 1994 Act provides a private right of

action under which Nisqually may challenge the Agreement.

6Nisqually 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). 

16716 NISQUALLY INDIAN TRIBE v. GREGOIRE
[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). However, 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 context 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 control 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 especial benefit the statute was enacted.” Cort, 422 U.S. at 78

NISQUALLY INDIAN TRIBE v. GREGOIRE 16717
(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 beneficiaries in the statute.” Opera Plaza Residential Parcel Homeowners 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 federally 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 Congress intended to create” a private right of action. Transamerica Mortgage, 444 U.S. at 24 (emphasis added). “The starting

point in discerning congressional intent is the existing statutory text.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004).

Reviewing the text of the Acts, there is no evidence of legislative 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 particular 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 drafting 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 Community], whose members feared unilateral annexation into the

Nisqually Tribal Reservation.” Nisqually Indian Tribe v. Gregoire, 649 F. Supp. 2d 1203, 1205 (W.D. Wash. 2009). At the

time, Nisqually was considering an amendment to its constitu16718 NISQUALLY INDIAN TRIBE v. GREGOIRE
tion which would have annexed the Community. Id. If anything, 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 community,” and impose certain limitations (for example, no class

III gaming) on its ability to self-govern. This scheme explicitly 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 obligation 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 federal 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.

NISQUALLY INDIAN TRIBE v. GREGOIRE 16719
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 jurisdiction, 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 Nisqually 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

7Nisqually seems to assert a federal common law cause of action. Relying 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. 

16720 NISQUALLY INDIAN TRIBE v. GREGOIRE
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 Washington 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 ‘especial’ 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

NISQUALLY INDIAN TRIBE v. GREGOIRE 16721
contracts”). Thus, rather than provide some enforceable right,

the Washington statutes merely establish a discretionary system 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 prohibiting 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 Washington Anatomical Gift Act “creates procedures for the procurement 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 relevant 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 private right of action. Indeed, the statute outlines the procedure

for entering into tobacco contracts, then explicitly contemplates that any disputes regarding the contract would be governed 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 private right of action under the relevant Washington laws.

16722 NISQUALLY INDIAN TRIBE v. GREGOIRE
III. The Addendum does not breach the Nisqually 

contract.

Nisqually argues that, by entering into the Addendum,

Washington breached the Nisqually contract. Because Nisqually 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 manifestations 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 members of Nisqually may sell cigarettes in Indian country within

the Nisqually River basin—meaning only Nisqually members

could sell cigarettes at Frank’s Landing.

8This use of “Indian country” refers only to Indian country as defined

in the Nisqually contract, that is, Indian country with a connection to Nisqually (as opposed to “Indian country” as used in the Squaxin contract or

the general legal meaning of the term). 

NISQUALLY INDIAN TRIBE v. GREGOIRE 16723
[16] Nisqually reads these parts of the contract out of context 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 negotiate with federally recognized tribes [when negotiating contracts] . . . . 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 Nisqually to bring an action to enforce the Acts’ provisions. Further, 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 district court is AFFIRMED.

16724 NISQUALLY INDIAN TRIBE v. GREGOIRE