F OR P UBLICATION

UNITED STATES COURT OF AP P EALS F OR THE NINTH CIRCUIT

B I G S A N D Y R A N C H E R I A E N T E R P R I S E S , a federally

- chartered corporation, Plaintiff-Appellant

,

v

.

R O B B O N T A , * in his official capacity as Attorney

General of the State of California; N I C O L

A S M A D U R

O S , in his official capacity as Director of the California Department of Tax and F ee Administration,

Defendants-Appellees. N o. 19-16777

D.C. No. 1:18-cv-00958- DAD-EPG

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Dale A. Droz d, District J u d g e, Presiding

A rg ued and Submitted November 19, 2020 San F rancisco, California

F iled J une 16, 2021

* Ro b B on ta h as b een s u b s t i t ut e d f

o r h is p red ecesso r, Xav ier B ecerra, as Calif

orn ia A tto rn ey

Gen eral u n d er Fed . R. A pp . P 4 3(c)(2 ).B I G S A N D Y R A N C H E R I A E N T E R S

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. B O N T A 2

B efore: Sidney

R. Thomas, Chief J udg e, and Mary M. Schroeder and Marsha S. B erz on, Circuit J udg e s

Opinion by

Chief J udg e Thomas; Concurrence by

J udg e B erz on

SUMMARY * *

Indian Tribes

The panel affirmed the dist r i c t court’s dismissal of an action in which B ig Sandy Rancheria E nterprises, a federally chartered tribal corporation wholly owned and controlled b y the B ig Sandy Rancheria of W estern Mono I n d i an s , soug ht declaratory and injunctive relief ag ainst the Attorney General

o f California and the Director of the California Department of Tax and F ee Administration concerning tax es applied to inter-tribal sales of cig arettes.

The district cour t dismissed for lack of subject matter jurisdicti on the Corporation’s c halleng e to California’s cig arette ex cise tax as applied to the Corporation’s wholesale cig arette distribution busi ness, a n d dismissed for failure to state a claim the Corporation’s remaining challeng es to other
reg ula t i ons g overning c ig arette d istribution in California, a s applied to the Corporation’s business.

The Corporation’s fifth c ause of action a ll e ge d that federal common law and tri b a l sovereig n immunity

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B I G S A N D Y R A N C H E R I A E N T E R S

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. B O N T A 3

p r e e mpted California’s Cig a rette T ax L aw as applied to th e Corporation. T he panel held that the district cour t p r o p erly dismissed this cause of action on jurisdictiona l gr o unds
pu rs u ant to the Tax I njunction Act, which prohibits district
courts from enjoining

, suspending

, o r restraining the assessment, levy

, or collection of any tax under State law where a plain, speedy

, and e fficient r emedy may be had in the
courts of s u ch State. The panel held that the district court pr operly declined to a

p ply the I n dian tribes ex ception to the Tax I n junction Act’s jurisdictional bar. This ex ception

, s et forth at 28 U.S.C. § 1362, c o n f e r s federal jurisdiction over claims broug ht by any I ndian tribe or band with a g overning b o d y d u ly r ecog niz ed by the Secretary of the I n terior. The Corporation contended that a s an “incorporated tribe” under § 17 of the I ndian Reorg aniz a tion Act, it was an “I ndian tribe

or b a n d ” for jurisdictional purposes. B ased on the relevant statutory lang uag e, leg islative history

, and circuit p recedent narrowly construing § 1362, the pane l c o n c luded that the Corporation w as not an “I ndian tribe or band” within the meaning o f § 1362, and therefore could not invoke § 1362 to avoid the Tax I njunction Act’s jurisdictional bar.

The Corporation’s remaining causes of action challeng ed California’s T obacco Directo r y L aw, which requires the Attorney General t o m aintain and publish a directory o f toba c co product manufacturers and tobacco brand f amilies that h ave b een approved f o r sale in California, a nd Califo rn i a ’ s l i c e n s i n g, r e p o r t i n g, a n d r ecordkeeping requirements in connection with cig arette distribution, on two g rounds: ( 1) ap ply ing the challeng ed reg ulations to the Corporation’s cig arette sal es to tribal retailers on other reservations violates “principles of I ndian tribal selfg overnance;” and (ii) federal reg ulation of “trade with I n dians within I n d ian country ” under the I n dian Trader StatutesB I G S A N D Y R A N C H E R I A E N T E R S

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p r e e mpts the challeng e d reg ulations as applied to t h e Corporation’s intertribal wholesale cig arette business.

The p anel held that the d i s t rict court properly dismissed both theories for failure to state a claim. T he p anel concluded that tribal sovereig nty p rinciples did not preclude California from reg ulating the Corporation’s int e r tribal wholesale cig arette sales under th e c h a lleng ed reg ulations. The Corporation conceded that it left the Rancheria t o sell cig arettes to tribal retailers on other reservat i ons. The Corporation d id not alleg e that the c halleng ed r e gu lations

were discriminatory

, nor d id it plausibly a lleg e that federal l a w barred the Directory Statute’s application to the Corporation. The Corporation therefore failed to state a claim that the challeng ed r e gulations, as applied to its offreservation conduct, infring ed tribal self-g overnan c e

. The panel joined the T enth Circuit and Oklahoma Supreme Court in treating tribe-to-tribe sales made outside the tribal enterprise’s reservation as “ off reservation” activities subject to non-discriminatory state laws of g eneral application. The panel held that the Corporation also failed to state a claim that the I ndian Trader Statutes preempted a n y of the challeng ed
reg ulations as applied to i t s i ntertribal wholesale cig arette business.

J udg e B e rz on concurred in part and acquiesced dubitante in part. J udg e B erz o n j o i n ed the majority opinion in affirming the dismissal of the Corporation’s first four claims. She wrote that she differed from the majority in its c ertainty that the Corporation was not an “I ndian tribe or band” for jurisdictional purposes und e r 2 8 U.S.C. § 1362, the I ndian tribes ex ception to the Tax I njunction Act’s jurisdictional bar. B ecause J udg e B erz on had doubts about the majority ’s conclus i on but was n o t prepared to say it was c ertainlyB I G S A N D Y R A N C H E R I A E N T E R S

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. B O N T A 5

w r o n g, she wrote separately

, d ubitante, as to Part I I I of t h e majority ’s o p i nion, which affirmed the dismissal of the Corporation’s fifth cause of action for lack of jurisdiction.

COUNSEL

Tim Hennessy (arg

ued), J o hn M. P e e b les, and Michael A

. Robinson, Peebles Kidder B ergen & Robinson L L P, Sacramento, California, for Plaintiff-Appellant.

Michael J ohn von L oewenfeldt (arg ued), W a g sta f

f e von L oewenfeldt B usch & Radwick L L P, San F rancisco, California; J ames V. Hart (arg ued) and P e t e r F

. Nascenz i, Deputy Attorney s General; K a r e n L eaf, Senior Assistant Attorney General; Attorney General’s Office, Sacramento, California; for Defendants-Appellees.B I G S A N D Y R A N C H E R I A E N T E R S

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OP INION

THOMAS, Chief J udg e :

This appeal p r e s ents the question whether California cig arette tax reg ulations apply to inter-tribal sales of cig arettes by a federally chartered tribal corporation wholly owned by a f

ederally recog niz ed I ndian tribe. W e c onclude that they do, and we affirm the judg ment of the district court. W e have jurisdiction under 28 U.S.C. § 1291.

Specifically

, this c ase involves B ig S andy Rancheria Enterprises (“the Corporation”), a fe d e rally chartered tribal corporation wholly owned and controlled by the B ig Sandy Rancheria of W este rn Mono I ndians (“the Tribe”). The Co r poration soug ht d eclaratory and injunctive r elief ag ainst the Attorney General of California (“Attorney General”) a nd the Director of the California Depar t m e n t of Tax and F ee Administration (“Director”).

The district court dismissed the Corporation’ s challeng e to California’ s cig arette ex cise tax as a pplied to the Corporation’s wholesale ciga rette distribution business, for lack of subject matter juris d iction, and dismissed the Corporation’s remaining challeng e s to o ther reg ulations
g over n i n g c ig arette distribution in California, as applied to the Corporation’s business, for failure to state a claim.

I

A

“Since 1959 California has imposed an ex cise tax on the distribution o f cig arettes.” Cal. S t a t e Bd. of E qualization v

.B I G S A N D Y R A N C H E R I A E N T E R S

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Chemehuevi Indian Tribe

, 474 U.S. 9, 10 (198 5 ) (per curiam); see a lso Cig arette and Tobacco Prod u c ts Tax L aw ( “Cig a rette Tax L aw”), Cal. Rev. & Tax

. C o d e §§ 30001–30483. “ Distribution” includes, in pertinent part, “[ t] he sale of untax ed cig arettes or tobacco products in th[ e] state” or “ [ t] he use or consumption of untax ed cig ar e t t e s o r tob a c c o p r oducts in th[ e ] state.” Cal. Rev. & Tax

. Code § 30008. 1 “Use o r consumption” means “the ex ercise o f any rig ht or power over cig a

rettes or tobacco products incident to t h e o wnership thereof.” Id. § 30009. However, “use o r consumption” ex cludes the “the keeping or retention” of such products “ by a licensed distributor for th e p u rpose o f sale.” Id. § 30009. T he “ s a l e of cig a rettes o r tobacco products b y the manufacturer to a licens ed d istributor” is not subject to the ex cise tax

. Id. § 30103.

Distributors pay the ex c ise tax b y purchasing stamps from the state to a ffix to e ach packag e of c ig arettes before distribution. Id. §§ 30161, 30163(a). Ca l i fo rnia’s scheme
recog niz es that the state may not tax cert a i n d istributions. F or ex ample, “cig arettes sold

. . . by a Native American tribe
to a member o f that tribe on that tribe’s land” are “ex empt from state ex cise tax pursuant to federal law.” Cal. Health & Safety Code § 104556(j); see also W agnon v. Prairie Ba nd Potawatomi Nation
, 546 U.S. 95, 101–02 (2005) (“States a re categ orically b arred f

rom placing the leg al incidence of an

ex c ise tax o n a tribe or on tribal members f or s a l e s made inside I ndian country without cong ressional authoriz ation.” (quotation ma r k s omitted; emphasis removed)); M ontana v

. Blackfeet Tribe

, 471 U.S. 759, 764 (1985) (“Indian tribes a nd

1 “ ‘ Un t ax ed cig ar ette’ m ean s an y cig arette w h ich h as n o t y et b een d istrib u ted in su ch m an n er as to resu lt i n a ta x liab ility ” u n d er state law

. Id

. § 3 00 0 5

.B I G S A N D Y R A N C H E R I A E N T E R S

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. B O N T A 8

individuals g enerally are ex empt from s t a t e tax ation within their own territory .”). I n such ins t a n c es , a “ user o r consumer,” who is “oblig ated to pay the tax ,” owes the tax , and the e x empt distributor is responsible for c ollecting the tax from such purchasers and remitting it to the state. Cal. Rev. & Tax

. Code §§ 30008(b), 30107, 30108(a), 30184; see also Chemehuevi

, 474 U.S. at 11 (“[ Section] 30107 clearly seems to place on cons u m e rs the oblig ation to pay the tax for all previously

untax ed cig arettes.” (citation omitted)).

The ex c ise tax es “provide f unding f o r l o c al a

nd state prog r ams, including health services, antismoking campaig ns,

cancer research, and education prog rams.” Cal. B us. & Prof. Code § 22970.1. T o facilitate the collection o f tax es, California requires all distributors to obtain two state-issued licenses, one of which must be renewed ann u a l ly

. See Cal. Rev. & Tax . Code § 30140; see also Cal. B us. & Prof. Code § 2 2975(a). California enacted the annual licensing requirement in 2 003, see Cig arette a nd Tob a cc o Products L icensing Act (“L icensing Act”), Cal. B us. & Pr o f. Code §§ 22970–22991, u

pon a finding that “[ t ] a x revenues ha[ d] declined b y hundreds of millions o f dollars per y ear due, in part, to unlawful distributions and untax ed sales of cig arettes and tobacco products,” id. § 2 2 9 70.1(b). To “help stem the tide of untax ed d istributions and illeg a l sales,” California imposed licensing oblig a tions on m a nufacturers, importers, wholesa lers, distributors, and retailers. Id. § 22970.1(d). Under the L icensing Act, distributors and whole s a l e rs may not sell to unlicensed entities. See id. § 22980.1(b)(1). Violations of the L icensing Act are misdemeanors punishable by a $ 5 000 fine, one y ear of imprisonment, or b o th. See id. § 22981. The L icensin g Ac t does not apply to any person “ex e mpt from reg u lation” under federal law. Id. § 22971.4.B I G S A N D Y R A N C H E R I A E N T E R S

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Additionally

, California imposes reporting a nd recordkeeping requirements on cig a r e t t e distributors. They
must file monthly reports with the California Department o f Tax and F e e Administration respecting their distributions both tax able and ex empt. See Cal. Rev. & T ax

. Code §§ 30182(a), 30183(a); 18 Ca l. Code Reg s. § 4031. Distributors must a l s o “keep

. . . records, receipts, invoices, and other pertin ent p apers with respect” to their cig arette dealing s, w hich the state may ex amine. Cal. Rev. & Tax

. Code § § 30453, 30454; 18 Cal. Code Reg s. §§ 4026(a), 4901. Similarly

, under the L icens ing Act, distributors must retain copies of transaction records to a ssist the state’s auditing a nd colle ction efforts. See, e.g. , Cal. B us. & Prof. Code §§ 22978.1, 22978.5 (requiring distributors and wholesalers
to maintain sale r ecords, including invoice s and receipts, “during the past four y ears ” a n d to make such records available upon the state’s request).

I n addition to c ollecting tax es, California r eg u lates cig arette m a nufacturers p ursuant to a 1998 settlement
ag reement b etween four major cig arette manufa c turers a nd 46 states, the District of Columb i a , and five United States
ter r i t o ries. See King M ountain Tobacco Co., Inc. v

. McKenna
, 768 F. 3 d 9 89, 991 (9th Cir. 2014). The Master S e t t l ement Ag reement (“Ag reement”) requires m a n u f a c t u r e r s that are sig natories to the Ag reemen t —“participating manufacturers”—“to make substantial annual cash pay ments to the settling states and territories, in perpetuity

, to o ffset the increased cost to the health care sy stem created by smoking

. ” Id. ; see also Ag reement § I X(c). 2 I n return, participating manufacturers obtained “a release of past, present, and c ertain

2 F o r th e tex t o f th e A g ree m e nt , see h ttp s://o ag .ca.g o v /sites/ all/f iles/ag w eb /p df

s/to b acco /1 m sa.p d f

.B I G S A N D Y R A N C H E R I A E N T E R S

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future c laims ag ainst them.” Cal. Health & Safety Code § 1 04555(e); see also Ag reement § XI I

. The parties to t h e Ag reement further n e gotiated the “Non-Participating Manufacturers Adjustment.” S ee Ag reement § I X(d). Under that provision, a participating manufacturer may substantially

r e duce its p a

y ment to a state if it has lost market shar e a s a result of competiti on from n o n-participating manufacturers. However, a state may a v oid that result if it e nacts a nd “dilig ently enforce[ s] ” a “ [ q] u alify ing [ s] tatute,” under which non-participating manufacturers must deposit money into an

escrow account b ased on the number of cig arette s sold in a state the prior y ear. Id. § I X(d)(2)(B ).

California’s qualify ing statute i s t he California Reserve F und Statute (“Escrow Statute”), Cal. Health & Safety Code §§ 104555–104558. I n enac ting the Escrow Statute, the California L e g islature found:

I t would be contrary to the policy of the state if non

- p articipating manufacturers could use

a resulting cost advantag e to der i v e larg e , short-term profits in the y e ars before liability
may a rise w ithout ensuring that the state w il l ha v e an eventual source of recovery f rom them if they a

re prove d t o have acted culpably

. I t is thus in the interest of the state to require that these manufacturers establish a

r e serve fund to g uarantee a source o f

c o m p e n s a t i o n a n d t o p r e v e n t t h o s e manufacturers from deriving larg e, short-term profits and then becoming judg ment proof before liability

may arise.B I G S A N D Y R A N C H E R I A E N T E R S

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Id. § 104555(f); see a l

so King Mountain Tobacco

, 768 F .3d
at 991 (ex plaining that because not all tobacco manufacturers

were p arties to the Ag reement, “[ t] he states feared that these non-participating manufacturers

. . . would become insolvent
ag ainst future liability f or smoking -related health c a re costs”).

T h e E s c row Statute r equires non-participat i n g manufacturers to either b ecome participating manu facturers under the Ag r eement or to place funds a nnually into an

escrow account at a specifi e d r a t e for each “unit[ ] sold” in California during the previous y ear. Cal. Hea l th & Safety Code § 104557(a). “U n i t s sold” refers to “the number o f individual c i ga rettes sold to a consumer in the state by the applicable tobacco product manufacturer, whether directly o r throug h a distributor, retailer, or similar i n t e rmediary

. . ., reg ardless of whether the state e x ci s e tax was due o r collected.” Id. § 104556(j). “Units sold” ex cludes “cig arettes sold

. . . by a Native American tribe to a member of that tribe

on that tribe’s land, o r that are o therwise ex e m p t from state

ex c ise tax pursuant to federal law.” Id. The required escrow pay ment roug hly equals the annual per-cig are t te-sold
pay ment r equired from participating manufa c t u rers and was around $6.95 per carton in 2018. The money i n the escrow account may be r eleased b a c k t o an non-participating manufacturer only : (i) to pay a judg ment or settlement; (ii) a s

a refund for overp a y

m e n t to the account; or (iii) after the funds have spent 25 y ears in the account. Id. § 104557(b).

The Escrow Statute further requires non-partici p a t ing manufa c t u r ers to “certify ” annually that they have complied wit h t heir escrow oblig ations. I d. § 104557(c). To ensure such compliance, states have enacted “directory ” sta t u tes ( also k nown a s “ contraband” or “complementary ” statut es ).B I G S A N D Y R A N C H E R I A E N T E R S

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California’s Tobacco D irectory L aw (“Directory Statute”), Cal. Rev. & Tax

. Code § 3 0165.1, req u i r e s t he Attorney General to maintain and publish a directory of tobacco product manufacturers and tobacco b rand families that h ave been approved for sale in California. See id. § 30165.1( c). To be listed on this directory

, a manufacturer must an n u ally certify to the Attorney G eneral that it is either a participating manufacturer that has ma d e all pay ments owed under the Ag reement or is a non-partic i p a ting manufacturer that has complied with its escrow oblig ations as well as the L icensing Act. S ee id. § 30165.1(b). The Directory Statute deems offdirectory c ig arettes contraband

. See id. § 30165.1(e)(1) (prohibiting any p erson from affix ing a tax stamp to or pay ing the tax on o f

f

- d i r e ct ory cig arettes); see a lso id. § 30165.1(e)(2) (prohibiting any person from “sell[ ing ], offer[ ing ]
, or possess[ ing ] f or sale” in California, “ship[ ping ]

or otherwise d istribut[ ing ] into or within [ Cali f ornia]

, o r import[ ing ] for p ersonal c onsumption in [ California] ” offdirectory cig arettes).

B

The Tribe is federall y r e cog niz ed, see I ndian Entities Recog niz ed and Elig ible to Receive Services f r o m the U.S. B ureau of I ndian Affairs

, 8 6 Fe d

. Reg

. 7554, 7 554 (J a n. 29, 2021), with o ffices on the B ig Sandy Rancheria (the “Rancheria”) in Auberry

, California.

The Tribe has not adopted a tribal constitution according
to the procedures set forth in section 16 o f t h e I ndianB I G S A N D Y R A N C H E R I A E N T E R S

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Reorg aniz ation Act (“I RA”), 3 b u t instead has adopted
g overning documents under 25 U.S.C. § 5 1 2 3(h)(1) (recogniz ing trib e ’ s “inherent sovereig n power to adopt
g overning documents u n der procedures other than those specified” in section 16)

. T h e Tribe owns and controls the Corporation, which w as c hartered and org aniz ed in 2012 under section 17 of the I RA, see id

. § 5 1 24. 4 The Corporation’s B o ard of Dire c t o r s is comprised of the same members as the Tribe’s g overning body

, the Tribal Council.

The Corporation is a “tobacco distribution en t erprise” whose p u r

p o s e is to “foster economic development o n the Rancheria a

nd to create economic opportunities f or Tribal members.” The enterpris e has four subdivisions: (i) B SR Distributing , a wholesale distributor of tobacco products “to I ndian tribes and I ndian-owned entities in I ndian C o untry ”; (ii) B SR Distribution, which was “org aniz ed to eng ag e in the distribution of tobacco p roducts to non-I ndian owned entities,” but has “ not made any sales” y et; (i i i ) Bi g Sandy Manufacturing

, which wa s “org aniz ed to eng ag e in the manufacture of tobacco products” o n the reservation, but has

3 S ee 2 5 U .S.C. § 51 2 3(a) (“ An y I n d i a n t rib e sh all h av e th e rig h t to

o rg an i ze f

or i ts co m

m o n w elfare, an d m ay ad o p t an ap p ro p riate

co n stitu tio n an d b y law s, an d an y am en d m en ts th ereto , w h ich sh all b eco m e ef f ectiv e w h en ” b o th “ ratif

i ed b y a m aj o rity v o te o f th e ad u lt m em b ers of th e trib e o r trib es a t a sp ecial electio n au t h o rized an d called by th e Secretary u

n d er s u ch ru les an d reg u latio n s as th e S ecretary m ay p rescrib e”

an d “ ap p ro v ed b y

th e Secretary [.]”).

4 T h e Secretary m ay “ issu e a ch arter o f in co rp o ratio n ” to “ an y trib e” th at p e t i t i o n s f

o r o n e. Id

. T h e ch arter is n ot op erativ e u n til “ ratif ied b y th e g o v ern in g b o d y o f su ch t rib e” an d “ sh all n o t b e rev o k ed o r su rren dered

ex cep t b y A ct o f Co n g ress.” Id

. “ [A ]ll In dian trib es” m ay

p etitio n f o r a sectio n 1 7 ch arter reg ard less w h eth er th ey h av e v o t ed ag ain st th e IRA ’ s ap p licatio n

. Id

. § § 5 1 25

– 2 6

.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 14

“not y et received” a Manufacture of Tobacco Products p ermit from the United States Department of the Treasury, Alcohol and Tobacco Tax and T rade B ureau; and (iv) B ig Sandy I mporting

, which was “org a n i z ed to e ng ag e in the importation of tobacco a n d tobacco products o nto the Bi g Sandy Rancheria” and obtained a T o b a cco I mporter p ermit from the [ Department of th e T r e asury ]
, effective N ovember 8, 2017, and ex piring on November 7, 2022.

Throug h B ig Sandy I mporting and B SR Distributing

, the Corporation “purchases tobacco products for non-retail resale

ex c lusively f

rom I n dian manufacturers.” 5 I t is unclear from the Corporation’s alleg ations whether these purchases occur

on the Rancheria or the “ I n d ian manufacturers[ ’] ” respective reservations.

B SR D istributing resells these c ig arettes “ex clusively to I ndian tribal g overnmental, a nd I n dian tribal-member, reservation-based retailers operating within their own I ndian reservations [ or] I ndian Country w ithin th e geog raphical limits of the State o f California.” According to the Corporation, these retailers, in tur n , sell to “individual

5 T h e Co rp o ratio n h as p u rch ased cig arettes f ro m A zu m a Co rp oratio n , w h ich i s w h o lly o w n ed b y t h e A ltu ras In d ian Ran ch eria, a f ed erally

rec o g n i z e d I n d ian trib e in A ltu

ras, C alif o rn ia, an d Gran d Riv er En terp rises Six Natio n s (“ GRE”), a Can ad ian co rp o ratio n w h o lly o w n ed b y m em

b ers

o f t h e Six Natio n s o f th e Gran d R iv e r , a F irst Natio n o f Can ad a. In N o v em b er 2 0 1 8
, af

ter GRE en tered in t o a settlem en t ag reem en t w i t h Calif o rn ia, ag reein g to , am o n g o th er th in g s, co m p ly w ith its escro w

o b lig atio n s, th e C o rp o ratio n sto p p ed im p o rtin g cig arettes f

ro m GRE. S

ee Settlem en t A g reem en t B etw een th e Peo ple o f th e State o f Calif orn ia an d G r a n d R i v e r E n t e r p r i s e s S i x N a t i o n s , L t d

. ( N o v

. 2 0 1 8 )

, h ttp s://tin y u rl.co m /GRE- s ettlem en t; see a l s o Calif o rn ia T ob acco D i r e cto ry , h ttp s ://o ag

. c a

. g o v / t o b a c c o / d i r e c t o r

y ( l i s t i n g G R

E

- m a n u f a c t u r e d cig arettes).B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 15

c u s t omers within [ the] retailers’ own I ndian reservation / I ndian Country .”

I n 2008, before obtaining a section 17 charter, the Tribe, doing business as “B SR Distribution,” applied f or a distributor’s license. I n response, a state representative
soug h t to clarify

whether B SR Distribution intended to “sell
to [ California] retailers and wholesalers, ” i n w hich case “a distributor’s license [ would b e] requ ired.” The Corporation does not all ege that it ever r esponded to this letter o r otherwise followed up on the application.

B e tween 2011 and 2 0 1 6, the Attorney General corresponded with the Corporation and its va r i o u s business entities, raising concerns about compliance w ith state a nd fe deral laws g overning cig arette sales. During that period, the Attorney General accused the Corporation of v iolating the Cig arette T ax L a

w, the Directory Statute
, and California’s l i c e n s i n g r e q u i r e m e n t s b y s e l l i n g “ o f f

- d i r e c t o r y” cig arettes—“without collection o f state tax ”—“to non-tribal members in California,” and without a state-issued license. The Corporation continues to d istribute cig arettes in California.

C

I n J uly 2018, the Corporation sued the Attorney General and the Director in their offici a l capacities. Seeking declaratory and injunctive relief, the complaint alleg ed that: (i) federal common law and tribal sovereig n ty pre e m p t the Directory Statute as applied to the Corporation; ( ii) the I ndian T r ader Statutes, 25 U.S.C. §§ 261–64, do so as wel l ; (iii) federal c ommon law and tribal sovereig nty preempt California’s licensing require m ents as applied to theB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 16

Corporation; (iv) the I ndian Trader Statutes do so as well; a nd (v) federal c ommon law and tribal sovereig nty preempt the Cig arette Tax L aw as a pplied to the Corpora t i o n

. I n connection with its fifth c ause of action, the Corpora t i on soug h t a declaration tha t it “has no liability ” for tax e s imposed under the Cig arette Tax L aw.

B o th the Attorney General and the D i r e c tor moved to dismiss the fifth cause of action under the Tax I njunction Act, 2 8 U .S.C. § 1341, which prohibits district courts f r o m “enjoin [ ing ]
, suspend[ ing ] or restrain[ ing ] the assessment, levy or collection of a n y tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” They bot h a cknowledg ed an ex ception to the Tax I njunction A ct availa b l e to I ndian tribes (the “I ndian tribes

ex c e ption”) under 28 U.S.C. § 1362, which confers federal jurisdiction over claims “broug ht by any I ndian tribe or band with a g overning b ody duly recog niz ed b y the Secretary o f
t h e I nterior.” See also Moe v. Confederated Salish & Kootenai Tribes of the F

lathead Rsrv.
, 425 U.S. 463, 470–74 (1976) (holding that the I ndian trib e s e x ception ex tends to claims c halleng ing state tax law s ). B ut they countered that the Corporation is not itse l f a n “I ndian tribe or band” and, thus, cannot invoke the federal co u rt s’ jurisdiction under § 1362.

The Corporation subs e q u ently amended its complaint to al l e ge that the Corporation itself is a federally recog niz ed I n dian tribe, rather than a “federally

- chartered corporat i o n wholly owned by

. . . a federally recog niz ed I ndian tribe.” The Director ag ain moved to dismiss the fifth cause of action for lack o f subject matter jurisdiction. The Attorney General likewise moved to dismiss on that g round and to dismiss the other four causes of action for failure to state a claim.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 17

After a hearing o n the motions, the district court dismissed the fifth cause of action for lack of jurisdiction a nd the rem a i n i ng causes o f action with p rejudice for f a ilure to state a claim. See Big Sand y Ra n ch eria Enters. v. B ecerra , 395 F

. Supp. 3d 1314, 1334 (E.D. Cal. 2 019) (“ Big S andy ”). The Corporation timely

appealed.

I I

W e review dismissals for lack of subject matter jurisdiction and for failure to state a c laim de novo. See Hyatt

v. Off. o f Mgmt. & Bu d

g et , 908 F .3d 1165, 1170 (9th Cir. 2018). To determine whether the Corporation “state[ s] a claim to relief that is plausible on its face,” Ashcroft v. Iqbal

, 556 U.S

. 662, 678 (2009) (citation omitted), and “ sufficient

as a leg al matter to invoke the court’s jurisdiction,” we accept the Corporation’s factual alleg ations as t r ue and draw all reasonable inferences in its f avor, L ei t e v

. Crane Co.
, 749 F .3d 1117, 1121 (9th Cir. 2014).

I I I

The d is trict c ourt properly dismissed the Corporation’s fifth cause of action o n jurisdictional g rounds pursuant to the Tax I njunction Act, 2 8 U.S.C. § 1341, and properly declined
to apply the I ndian tribes ex c ep tion to the Tax I njunction Act’s jurisdictional bar, see id. § 1362.

A

The T ax I njunction Act p rohibits district c ourts from “en join[ ing ]
, suspend[ ing ] or restrain[ ing ] the assessment, levy or collection of any tax under S t a t e law where a plain, speedy and efficient remedy may be had in the courts of suchB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 18

S t a t e .” Id. § 1341. I t is well-settled, and the Corporat i o n does not dispute, that the Tax I njunction Act’s jurisdictional bar ex tends to action s f

or declaratory relief. See California

v. Grace Brethren Church

, 4 5 7 U .S. 393, 4 0 8–09 (1982) (“[ T] he principal p urpose o f the T a x I njunction Act [ is] to limit drastically federal district court jurisdiction to interfere with so important a local concern a s the collection of tax es.” (internal citation and quotation marks omitted)); see also Lowe v. W

ashoe County
, 627 F .3d 1151, 1155 ( 9th Cir. 2 010) (“The Supreme Court repeatedl y has c haracteriz ed the [ Tax I njunction] Act as a broad jurisdictional barrier

. . . that prohibits both declara t ory and injunctive relief.” (internal

c i t a tion and quotation marks omitted)). Nor does the Corporation dispute that California p rovides a “plain, speedy and efficient remedy” withi n t h e meaning of § 1341. See Grace Brethren

, 457 U.S. at 414 n.31, 417; s ee also Jerron W

., Inc. v. Cal. State Bd. of Equalizatio n , 129 F

. 3d 1334, 1339 (9th Cir. 1997).

The only o b

j e c t ion that the Corporation raises to the district c ourt’s jurisdictional determin a tion is based on 28 U.S.C. § 1362, which g rants d istrict courts “orig inal jurisdiction of all civil actions” arising under federal law a nd “broug ht by any I ndian tribe or ba n d with a g overning body duly recog niz ed by the Secretary of the I nterior [ (“Se cretary

”)] .” Id. Section 1 362 constitutes an ex c eption
to the Tax I njunction Act. See Moe
, 425 U.S. at 470–74. The Corporation con t ends that as the “incorporated tribe” under section 17 of the I ndian Reorg aniz ation Act, i t i s an “I ndian tribe or band” for jurisdictional purposes. W e disag ree.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 19

B

Cong r ess enacted the I ndian Reorg aniz ation Act to enable tribes “ to r evitaliz e t heir self-g overnment throug h the adoption of constitutions and by laws” under section 16 of the I RA, see 25 U.S.C. § 5126, and “ t h r o u gh the c reation o f chartered corporations, with the power to conduct the business and e conomic a ffairs of the tribe,” under section 17 of the I RA, see id. § 5124. Mescalero A p ache Tribe v. Jones
, 411 U.S. 145, 151 ( 1973) (“ Mescalero ”); see a lso S. Rep. No. 73-1080 (1934) (ex p laining that Cong ress enacted section 17
to “permit I ndian tribes to e q u ip themselves with the devices

o f m o d e r n b u s i n e s s org aniz ation, throug h forming themselves into business corporations”).

B y incorporating

, a tribe may waive tribal sovereig n immunity for its business operations without having to waive that immunity for nonbusiness liability

. Cf. Linneen v. Gila River I ndian Cmty.
, 276 F .3d 489, 493 ( 2 0 0 2 ) (ex plaining that a waiver of immunity from suit in a t r i b e ’ s “ corporate charter in no way affects the sovereig n immunity of t h e [ tribe] as a c onstitutional, o r g o vernmental, entity ”). A tribal corporation’s waiver of sovereig n imm u nity “removes a

m a jor market hurdle for a tribal b usiness (because thi r d parties g enerally d o not want to e n t e r into contracts with parties they cannot sue to enforce ag reements or to seek tort damag es) and puts a tribal business on equal f o o t i n g with nontribal businesses.” Uniband, Inc. v. Comm’r
, 140 T.C. 230, 261 (2013).

Under section 17, the S e cretary “may
, upon petition b y any tribe, issue a charter o f incorporation to such tribe.” 25 U.S.C. § 5124. To “become operative,” the charter must be rati f i e d “ b y the g overning body of such tribe.” Id.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 20

“Corpor a t ions chartered under section 17 must be wholly owned by the tribe.” F elix S. Cohen’s Handbook of F ederal I ndian L aw (“Cohe n ’ s H a ndbook”) § 4.04[ 3] [ a] [ ii] p. 258 (2012 ed.); see also B ureau of I n dian Affairs, Ex ample of a F ederal Charter, https://tiny url.com/B I A-ex ample-charter (“[ The Corporation] is a l e gal e n tity wholly o wned by the EXAMPL E TRI B E, a federally recog n iz ed I ndian tribe, but distinct and separate from the Tribe.”). The char t er “ m a y convey to the incorporated tribe the power to p urchase, take by g ift, or bequest, or otherwise, own, hold, manag e , operate, and dispose of property of every description

. . . , i n cluding the power to purchase restricted I ndian lands. ” 2 5 U.S.C. § 5124.

C

B a sed o n the relevant statutory lang uag e, leg islative history

, and circuit precedent narrowly construing § 1 362, we conclude that the Corporation is not an “I ndian tribe or band”

w i t h i n the meaning of § 1362, and that the Corporation therefore may not invoke § 1362 to avoid the Tax I njunction Ac t ’ s jurisdictional bar. These c o nclusions alig n with Cong r ess’s purpose in e nact i n g section 17—“g iving tribes the
power to incorporate,” including “enabl[ ing ] tribes to waive

s o v e r e i g n i m m u n i t y, t h e r e b y f a c i l i t a t i n g b u s i n e s s tran s a c t i o n s.” Am. V

a ntage Cos., Inc. v. Table Mountain Rancheria

, 292 F .3d 1091, 1098 (9th Cir. 2002). I n lig ht o f this purpose, it would b e o dd to allow a s e c tion 17 corporation to selectively claim the benefits of sovereig nty in order to challeng e a tax

.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 21

1

W e beg in by interpreting “I ndian tribe or band,” b earing in mind that “statutes passed for the benefit of I n d ian tribes, such as [ §] 1362, are to b e liberally construed, with doubtful

ex p ressions being resolved in the I n dians’ favor.” Gila River Indian Cmty. v. Henningson, Durham & Richardson

, 626 F .2d 7 08, 712 (1980). “[ F ] e deral law ordinarily uses the
term ‘I ndian tribe’ to desig nate a g roup of native people with whom the fed e r al g overnment has established some kind o f politic a l r elationship or ‘recog nition.’” Cohen’s Handbook § 3.02[ 2] at 132–33 (emphasis added). As stated in the House Report a ccompany ing the bill that became the F ederally Recog niz ed I ndian Tribe L ist Act of 1994, Pub. L

. No. 103-454, 108 S t at

. 4 7 91 (Nov. 2, 1994), 25 U .S.C. § 5131: 6

[ F ] ederal recogn i t ion is

. . . [ a] formal political act , it permanently establishes a g o v e r n m e n t

- t o

- g o v e r n m e n t r e l a t i o n s h i p between the United States a nd the recog niz ed tribe

. . . . C o n c omitantly

, it institutionaliz e s the tribe’s quasi-sovereig n status, along with all the powers accompany ing that status such

as the power to tax , and t o e stablish a separate judiciary

. F inall y , it imposes upon the Secretary of the I n t erior specific

6 T h is act req u i res th e Secretary to p u blish in th e F ed eral Reg ister a

“ l ist o f all In d ian

trib es w h ich th e Secretary reco g n izes to b e elig ib le f or th e sp ecial p ro g ram s an d serv ices p ro v id ed b y th e Un i ted State s to th e In d ian s b ecau se of t h eir statu s as In d ian s.” 25 U.S.C. § 5 13 1 ; s ee a l so 2 5 C.F.R. § § 8 3 .5 , 8 3 .1 1.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 22

oblig ations to provid e a panoply of benefits and services to the tribe and its members.

H.R. Rep. No. 103-781 (19 9 4 ) (emphasis added); accord Cohen’s Handbook § 3.02[ 3] at 133.

Alt h o u g h these authorities do not construe “ I ndian tribe

or band” a s u sed in § 1362, they tend to support the district court’s construction of “I ndian tribe o r band” as limited to “the Tribe in its constitutional form,” as distinct from its corporate form. Big Sandy

, 3 95 F

. Supp. 3d at 1324. Section 1362 ’ s leg islative history provides some additional support for that construction, ex plaining t h at the “tribe’s desire to have a F e d e ral forum for matters based upon F ederal questions is justified ” by

, inter alia

, the “unique governmental status of I ndian tribe s .” H.R. Rep. No. 89- 2040, at 3146 (1966) (emphasis added).

As the Corporation ackn o w ledg es, the Tribe, not the Corporation, appears on the F ederally Recog niz e d I n d ian Tribes L ist, see 86 F ed. Reg

. 7 554, 7554, as a tribe entitled to receive benefits and services from the Departmen t o f the I nterior. Cf. Price v. Hawaii
, 764 F

. 2d 623, 627–28 (9th Cir. 1985) (concluding that “the same factors which g overn [ tribal] elig ibility for federal benefits” u nder federal
reg ulations “ provide some g uidance for the ju r isdictional inquiry ” under § 136 2 ). Even more sig nificantly

, the Corporation doe s n ot alleg e that the federal g overnment, in issuing t h e Tribe a section 1 7 charter, recog niz ed the Corporati o n as a distinct political entity or a g overnment. Nor does the Corporation alleg e that it m a y ex ercise
g overnmental functions, such as imposing tax es o r establishing a judiciary

—powers that Cong ress has ex pressly associated with tribal status. See H.R. Rep. No. 1 03-781; seeB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 23

also W ashington v

. C onfederated Tribes of Colville I ndian Rsrv.
, 4 47 U.S. 134, 152 (1980) (“ Colville ”) (“The power to tax transactions occurring on t r u st lands and sig nificantly involving a tribe or its members is a fundamental attribute o f

s o v ereig nty which the tribes retain unless divested of it b y federal law or necessary implica t i on of their dependent status.”).

Section 17 simply d oes not provide for such recog nition. See 25 U.S.C. § 5124. B y permitting “any tribe ” to petition for a c h a rter of incorporation, which—once ratified “by the
g overni n g b o dy of such tribe ” —may convey certain powers to the “incorporated tribe,” the statute p lainly distin gu ishes between the t ribe and the incorporated tribe. Id. (emphasis added); see also Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc.
, 585 F .3d 917, 9 2 1 ( 6 th Cir. 2009) (“[ T] he lang uag e o f Section 17 itself—by c a lling the entity an ‘incorporated tribe’—sug g ests that the entity is an arm of the tribe.” (emphasis added)).

B e cause Cong ress e nacted § 1362 (in 1966) a few decades after enacting section 17 (in 1934), Cong ress could have used the phrase “incorporated tribe” or cross-referenced section 17 in § 1362. Cf. B ig Sandy

, 395 F

. Supp. 3d at 1325 ( “Cong ress

was aware when it passed § 1362 that I ndian tribes could act in both sovereig n and proprietary capacities.”). I t did not do
so, reinforcing the conclusion t hat “I ndian tribe or band” under § 1362 and the “incorporated tribe” created under section 17 are not sy

nony mous.

2

I n a ddition to b e ing a poor fit with the relevant statutory lang uag e, the Corporation’s position is difficult to squ a r eB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 24

with our mandate to “ n arrowly construe[ ] ” the § 1362 “ex c eption to the Tax I njunction Act for I nd i a n t ribes.” A s hton v. Cory
, 780 F .2d 8 16, 820–21 (9th Cir. 1986). Fo r i n s tance, in Navajo Tribal Utility Auth. v. Ariz. Dep’ t o f Revenue
, 608 F .2d 1228 ( 9 t h Cir. 1979), the Navajo Tribal Utility Authority (“Utility Auth o rity ”), a “subordinate

e c o n o mic enterprise of the Navajo I ndian Tribe,” sue d Ariz on a i n federal court to challeng e state tax es passed throug h to it by a company from which it purchased electrical
power. 608 F .2d at 1229–30. W e concluded that the Utility Authori t y c o u l d “not g round jurisdiction on [ §] 1362.” Id.
at 1 2 31. W e reasoned that § 1362, by its plain terms, “makes

no provision f

or wholly controlled or owned subordinate economic tribal entities

. ” Id. W e further rejected the
arg ument (made by both the Utility Authority and the United States, as amicus curiae) that because the “[ Utility A uthority ] is ultimately controlled by and closely related to the Tr i be itself, it should be treated a s a tribe f o r jurisdictional purposes.” Id. at 1232. W e reasoned that “[ i] f the leadership of a tribe or band decides that litig ation is necessary to protect the rig hts of the tribe or band, then [ §] 1362 will provide federal court access to the tribe or band when t h e other jurisdictional requirements of the section are also met.” Id.

The Corporation maintains that Navajo “is not controlling here” because Navajo “did not involve a se ction 17 corporation,” and the Corporation’s B o ard o f D i r e c t ors is identical to the membership of t h e T r ibal Council, whereas the Utility Authority ’ s leadership was “not sy nony mous with the T ribal Co u ncil.” Id. at 1232. The Corporation according ly reasons that its decision to challeng e California’s
tax enforcement scheme is the functional equivalent of the
t ribal leadership’s decision to do so. T hese a rg u ments are unavailing

. Navajo ’s observation that § 1362 “makes noB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 25

provision for wholly c o ntrolled or owned subordinate economic tribal entities,” id. a t 1231, easily ex te n ds to the Corporation, reg ardless o f its section 17 st a t u s , because the Corporation i s an economic entity wholly owned a nd controlled by the Tri b e

. See Cohen’s Handbook § 4.04[ 3 ] [ a] [ii] at 258 (“Corporations chartered under section 17 must be wholly owned by

the tribe.”).

Additionally

, we ag ree w ith the district court t h at Navajo ’s h o l d i n g “did not hing e on the overlap of interests between the political and c orporate entities.” B i g Sandy

, 395 F

. Supp. 3d at 1 325. I ndeed, we acknowledg ed that there
may be circumstances in which a tribal corporation’s interests

are “identi[ cal] ” to the tribe’s, but concluded that, even then, “the Tribe itself will be able to protect those interests” if it decides to d o so. Navajo
, 608 F

. 2d at 123 3 ; c f

. also Agua Caliente Band of Cahuilla Indians v. Hardin

, 2 23 F

. 3 d 1041, 1 0 4 3
, 1 046 n.5 (9th Cir. 2000) (noting that the I ndian tribes

ex c e ption to the Tax I njunction A ct wa s satisfied where a section 17 corporation and the g overning tribe we re coplaintiffs).

Navajo also requires us to reject the Corporation’s reliance on Mescalero

. There, the Mescaler o Apache Tribe appealed f

rom unfavorable state ruling s r eg arding its liability for s t a t e tax e s imposed on an off-reservation ski r esort that the tri b e o w n ed and o perated. Mescalero

, 411 U.S.
at 146–47. Reversing in part and affirming in part, the Court observed that it was “ unclear from the record wh e t h e r the Tribe h as a ctually incorporated itself as an I ndian c hartered corporation” under section 1 7, but remarked that “the question of tax immunity canno t b e made to turn on the
p a r ticular form in which the Tribe chooses to conduc t i t s business.” I

d. at 157 n.13. B a s e d on this, the CorporationB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 26

arg ues that “[ t] he f

a c t t h a t an I n dian tribe has the same federal immunity from state tax es wh e t her acting ” as a section 16 or 17 entity

is “compelling evidence that” § 1362

was intended to permit both entities to “ litig ate such immunity ” in federal court.

But Navajo declined to adopt that same reasoning

. I t

ex p lained that Mescalero “ does no t a s s ist” with the ju risdictional question that a rises when a tribal corporation invokes § 1362 because the tribe initiated the litig ation in Mescalero and d i d s o “ i n state court.” Navajo
, 608 F .2d
at 1232–33 (emphasis added). Then, assuming arguendo that Mescalero stands for the proposition that “a t a x a g a inst a tribal enterprise i s a tax ag ainst the tribe itself,”we nonetheless c oncluded that “[ s] uch a view speaks o nly to the question of tax immunity

, not t o the question of federal jurisdiction.” Id. at 1233. 7

3

The Corporation’s reliance on Price is l i k e wise misplaced. There, after assuming arguendo that a n ative Hawaiia n t r i bal g roup w as an “ I n dian tribe or b and,” we focused our analy sis on whether th e t r i b e had a “g overning b o d y d u l y recog niz ed by the Secretary .” Price
, 7 64 F .2d

7 T h e Co rp o ratio n cites v ario u s f ed eral tax au th o rities ref

lectin g th at

a sectio n 1 7 trib al co r p o r atio n sh ares th e trib e’ s im m u n ity f ro m f ed eral in co m e tax

. S

ee Rev

. Ru l

. 8 1 -2 9 5 (1 9 8 1 ); Rev

. Ru l. 9 4

- 1 6 (1 9 9 4 ); 2 6 C.F.R. § 3 0 1 .7 7 0 1

- 1 (a)(3 ) (“ [T ]rib es in co rp o rated u n d er s ectio n 1 7 of th e [IRA ]

. . . are n ot reco g n ized as sep arate en tities f o r f ed eral tax p u rp o s es.”); U

n i ba n d

, 1 4 0 T .C. at 2 6 2 (“ [T ]h e trib e ex ists, at l east in p art, t h r o u g h its sectio n 1 7 co rp o ratio n .”). L ik e Mesca lero

, th o se au th o rities

“ s p eak [] o n ly to th e q u estio n of tax im m u n ity

, n o t to th e qu estio n of f ed eral j u risd i ctio n .” Na va jo , 6 0 8 F.2 d at 1 2 3 3.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 27

at 6 26 (quoting § 1362). W e concluded that the g roup could
not claim federal rec o gnition of its g overning body under either p r ovision o f t he I RA because, a s Native Hawaiian
g roups are ex cluded f rom t h e I RA “by its terms,” Kahawaiolaa v. Norton
, 3 86 F .3d 1271, 1280 (9th Cir. 2004), it had not adopted a constitution and by laws under section 16

or received a section 1 7 charter. P rice
, 764 F .2d a t 6 26. B ecause Native Hawaiian g roups are not elig ible for charters under section 17, we had no o cc asion to decide whether section 17 incor

p o ration actually satisfies § 1362’s requirement that a tribe ha v e a federally recog niz ed
g overning body . Thus, Price is inapposite. 8

I V

The Corporation’s remaining causes of action challeng e the Directory Statute and California’s licensing

, reporti n g, and recordkeeping requirements in connection with cig arette distribution on two g r ounds: ( i) apply i n g the challeng ed
reg ulations to the Corporation’s cig ar e t t e sales to tribal retailers on other reservations violates “ pri n c i ples of I ndian tribal self-g overnance”; a nd (ii) federal reg ulation of “trade with I ndians w ithin I ndian country ” under the I ndian Trader Statutes, see 2 5 U.S.C. §§ 261–64, preempts the challeng ed
reg ulations as ap p l i e d to the Corporation’s intertribal wholesale cig arette b usiness. The district court properly dismissed both theories for failure to state a claim.

8 Giv en ou r d eterm in atio n th at th e Co rp o ratio n h as f ailed to m eet th e th resh o ld req u irem en t of b ein g an “ In d i an trib e o r b a n d ,” w e n eed n o t reach th e d istin ct q u estio n w h eth er th e C o rp o ratio n h as a d u l y reco g n ized
g o v ern in g b o dy . In ad ditio n , b ecau se w e af f irm th e d ism issal o f

th e f if th

cau se o f actio n f

o r lack o f j u risd ictio n , w e ex p ress n o o pin io n a s to

w h eth er th e Co rp oratio n h as stated a claim th at Calif o rn ia m ay n o t im

p ose

an y ex cise tax es o n

th e Co rp o ratio n ’ s in tertrib al tran sactio n s

.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 28

A

“L ong ag o the [ Supreme] Court d eparted f rom Mr. Chief J ustice Marshall’s view that ‘the laws of [ a state] can have no for ce’ within reservation boundaries.” W h ite Mountain Apache Tribe v. Bracker

, 448 U.S. 136, 141 (1980) (quoting W orcester v. G eorgia
, 31 U .S. 515, 5 20 (1832)). “ [ T] h ere is

no rig id rule” that resolves “whether a pa r t icular state law
may be applied to a

n I ndian reservation or to tribal members.” Id. at 142. Rather, there are “two i n d e p e n d ent but related barriers to the as s e r t i on of state reg ulatory authority over tribal reservations and members.” Id

.

The first b arrier is that state action may n o t b u rden “the rig ht of reservation I ndians to make their o w n laws a nd be ruled by them.” 9 Id. (citation and quotation marks omitted). “I ndian tribes retain attributes of sovereig nty over both their members and their territory .” Id. (cita t i o n a nd quotation marks omitted). B u t tribal sovereig nty do e s n ot ex tend “bey ond what is necessary to protect tr i b a l self-g overnment

or to control internal relations.” Mont a na v. United States
, 450 U.S. 544, 564 (1981).

The second barrier is p reemption by f e d e r a l law, a s “Cong ress has broad p ower to reg ula t e tribal affairs.” Bracker

, 448 U.S. at 142–43; see also U.S. Const. Art. 1, § 8, cl. 3 (empowering Cong ress to “reg u late Commerce

. . . with the I ndian Trib e s ” )

. “Ambig uities in federal law have been construed g enerously in order to comport with

. . . traditional notions of sovereig nty and with the federal pol i c y o f

9 T h is rig h t is also k

n ow n as th e “ rig h t o f trib al self

- g o v ern m en t.” Id

. at 1 43

. T h e f

irst am en d e d c o m

p l ain t ref ers to th is rig h t as “ trib al

so v ereig n ty .”B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 29

encourag ing tribal in d e p e n dence.” Bracker

, 448 U.S.
at 143–44. Thus, “in order to find a particular st a t e law to have b een preempted by operation of federal law,” w e need
not identify “an ex press cong ressional statement t o that eff e c t.” Id. at 144. Rather, where a state seeks to reg ulate tribal activity that is already g overned b y a “comprehensive,” “detailed,” and “pe r v asive” federal reg u latory scheme, this preemption barrier applies. Id. at 145–46, 148. “At the same time any a

pplicable r eg ulatory intere s t o f the State must be
g iven weig ht.” Id. at 144.

1

W h ether s t ate reg ulation infring es tribal sovereig nty d e p e n d s o n w h o i s b e i n g r e g u l a t e d

— In d i a n s o r non-I ndians—and where the acti v i t y to be reg ulated takes place—on o r off a tribe’s reserva t i o n

. W agnon , 546 U.S.
at 101. B a sed on the “who” and “where,” one o f t h r ee analy tical frameworks applies.

F irst, “[ w ] hen o n -reservation con d u c t involving only I ndians is at issue, state law is g enerally inapplicable, for the State’s reg ulatory interest is l i k ely to be minimal and the federal interest in e n courag ing tribal self-g overnment is at its strong est.” Bracker

, 448 U .S. at 144. Apply ing this rule in Moe
, 4 25 U.S. 463, the Supreme C ourt invalidated Montana’s “vendor l i c e nse fee” as “applied to a reservation I ndian

co n d ucting a cig arette business for the T ribe on reservation land; and [ the state’s] cig arette s a l e s t a x , as a pplied to onreservation sales by I ndians to I ndians.” Id. at 480–81; see also, e.g. , Okla. Tax Comm’n v

. Chickasaw Nation
, 515 U.S. 450, 454–55 ( 1995) (invalidating motor fuels tax as a pplied
to tribal retail stores on tribal trust land); M cClanahan v. Ariz. Tax Comm’n
, 411 U.S. 164, 165–66 (1973) ( invalidating a taxB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 30

on income earned from reservation sources by tribal members residing on the reservation).

Second, when a state “ asserts a uthority over the conduct

o f non-Indians eng ag ing in activity on the reservatio n , ”
courts must conduct “a particulariz ed inquiry into” a nd balance the “ state, federal, and tribal interes t s at stake.” Bracker

, 448 U.S. a t 145 (emphasis added). Under Bracker ’s balancing test, “State jurisdiction is preempte d by the operation o f f

ederal law if it interferes o r is incompatible with federal a nd tribal interests reflected in federal law, unless the
state interests at stake are sufficient to justify the assertion o f
state authority .” New Mexico v. Mescalero Apache Tribe

, 462 U.S. 324, 334 (1983). W h e n “a tribe play s an active role in g enerating activities of value on its reservation” with the aid o f non-I ndian e n tities, it h a s a “strong interest in maintaining those a c tivities free from state interference,” in
contrast to w hen tribes “ simply allow the sale of it e ms such as cig a rettes to take place on their reservations.” G ila River I n d ian Cmty. v. W

addell

, 967 F .2d 1404, 1410 (9th Cir. 1992).

The Court has “balanced federal, state, and tribal interests in diverse contex ts,” including w here—as here—the challeng ed r eg ulations are not themselves tax e s. Chickasaw Nation
, 515 U

. S

. at 458. The Court has upheld such
reg ulations where they are “minimal burden[ s] d e s i gned to avoid the l i kelihood that in [ their] absence non-I n dians purchasing from the tribal seller will avoid pay m e n t of a

c oncededly lawful tax .” Moe
, 425 U.S. at 483. T h e s e permissible burdens have included requiring on-reservation tribal retailers to collect and remit cig arette tax es fro m nonI ndian purchasers, id.

, and r equiring such retailers to maintain records reg arding tax -ex empt sales, see Colville

, 447 U.S. atB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 31

160 (“[ T] he Tribe s h ave failed to demonstrate that [ W ashing ton’s] r ecordkeeping requirements for ex e mpt sales

are n ot reasonab l y n e c essary as a means of preventing fraudulent transactions.”).

Third, b ec ause “state power over I ndian affairs is considerably more e x p a n s i ve” “outside the reservation

. . . than it is w ithin reservation boundari e s ,” id. at 162, when a tribe or tribal members act outside their reservation, they a re subject to “non-discriminatory state law otherwise applicable
to all citiz ens of the State,” “[ a] b s e n t e x press federal law to the con t r a ry

. ” Mescalero

, 411 U.S. a t 148–49; see also Brack e r , 448 U.S. at 144 n.11 ( reaffirming principle). Apply ing this rule, the Supreme Court has up h e l d a state’s
tax ation of income derived from a tribe’s off-reservation ski

re s o rt, Mescalero

, 411 U.S. at 148–49, and a state cig arette tax on I ndian purchasers who were “n o t members of the Tribe” on whose reservation the sales took pl a c e, C olville

, 447 U .S. at 161. As to the latter, the Court has ex plained that
tax ing such purchasers ty pically does n o t “contravene the principle o f tribal self-g overnment” because “ [ f ] or most practical purposes those I ndians stand on the same footing a s non-I ndians resident o n the r e servation.” Id. Absent evidence that such nonmembe r s “have a say in tribal affairs

or sig nifica n t l y share in tribal disbursements,” “the State’s interest in tax ing these purchasers outweig hs a ny tribal interest that may ex ist in preventing the State from imposing its tax es.” Id. The Court h a s warned that balancing interests

u n d er Bracker when the reg u lated activity is o ff-reservat i o n is “inconsistent with the special g eog raphic sovereig nty

concerns that g ave r i s e to that test.” W agnon , 546 U.S. at 112–13.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 32

2

W e nex t turn to the specif i c fe d e ral law that the Corporation identifies a s preempting all the challeng ed state
reg ulations: the I ndian Trader Statutes (the “Statutes”), 2 5 U .S.C. §§ 261–64. Since 1790, the federal g overnment has soug h t to regu l a te persons trading with I n dians to “prevent f raud and imposition upon” the latter. Cent. Mach. Co. v. Ariz. Tax Comm’n
, 448 U .S. 160, 162 (1980) (quotation marks omitted); see also Dep’t of Tax’n & Fin. of New Y ork v. Mil h elm A ttea & Bros., Inc.
, 512 U.S. 61, 70 (1994). Under the present reg u l a t ory scheme, the “Commissioner o f I ndi a n Affairs [ (“Commissioner”)] shall have the sole power

. . . to a ppoint traders t o t h e I n d ian tribes” and to issue reg ulations “ specify ing the kind a

nd quantity of g oods and the prices at which such g oods should be sold to the I ndians.” 25 U.S.C. § 261. “Any person desiring to trade with the I ndians on any I ndian reservation”
must follow reg ulations that the Commissioner “may prescribe for the protection of said I ndians.” Id. § 262. The Statutes f urther authoriz e the President “to p r o hibit the introduction of g o ods, or any partic u l a r a rticle, into the country b elong ing to any I ndian tribe,” id. § 263, and set forth sanctions for “any p e r son other th a n an I ndian of the full b l o od” who attempts to trade “on any I ndian reservation” “without [ a] license,” id. § 264.

Under the Statutes, “the Commissioner has promulg ated detailed reg ulations” reg arding “who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which g overnment employ e es may trade with I ndians; articles that cannot be sold to I ndians; a

nd conduct forbidden on a licensed trader’s premises.” W

arren Trading Post Co. v. Ariz. S t a te TaxB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 33

Comm’n
, 380 U.S. 685, 6 89 (1965); see also 2 5 C.F .R. §§ 140.1–.26

. Only o ne implementing reg ulation, however, addresses traders’ on- r es e rvation cig arette sales, and it prohibits such sales to “any I n d i a n under 18 y ears of ag e.” 25 C.F .R. § 140.17.

On two o c c a s i ons, the Supreme Court has deemed the Statutes p r e em p tive with respect to state taxation of traders
to I n d i a n tribes. I n W arren Trading Post
, the Court concluded that the Statutes barred Ariz ona from i m p o s i ng a g r o s s sales tax on a n on-I ndian retail trading business “federally licensed” as a

n “I ndian trader with respect to sales made to reservation I n dians on the reservation.” 380 U.S. at 691–92. The Court ex plained that the tax could “disturb a nd disarrang e the statutory p lan Congress set up in o rder to protect I ndians ag ainst prices d eemed unfair or unreasonable by the I ndian Commissioner.” Id. at 6 91. L ater , t h e Court held that Ariz ona c ould not tax the g ross receipts o f a nontribal corporation’s on-reservation tractor sales to a tribal entity

, even thoug h the corporation was not a f ederally licensed I n dian trader. See Cent. M ach.

, 448 U.S. at 164–65. The Court noted, however, that the B ureau of I ndian Affairs had ex pressly approved the co n t ract for sale and the tribe’s budg etary a llocation for the tractor purchases. Id. at 161, 165 n.4. I n the Cour t ’ s view, it w as “ irrelevant that [ the corporation] w a s not a licensed I ndian trader” because it is “the ex istence of the I ndian trader statutes

. . . , and not their administration, that p reempts the field of transactions with I ndians occurring

on reservations.” Id. at 165.

Subsequent Supreme Court cases have taken a n arrower view of the Statutes’ pree m p t i ve effect. F or instance, in

u p h o lding W ashing ton’s tax ation of non-I ndians that purchase cig arettes f

r om on-reservation tribal retailers, theB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 34

Court c larified that the Statutes “ incorporate a cong ressional desire c omprehensively to reg ulate b usinesses selling g oods
t o r e s ervation I ndians

. . . , but no similar intent is evide n t with respect to sales b y I ndians to n onmembers of the Tribe.” Colville

, 447 U.S. at 155–56. The Court rejected the notion that the Statutes “g o[ ] s o far as to g rant tribal enterprises

s elling g oods to nonmembers an artificial competitiv e advantag e over all other businesses in a State.” Id. at 155.

And most r ecently

, as the Corporation acknowledg es, the Court retreated from W

arren Trading Post ’s sug g estion that “no state r eg ulation of I ndian traders can be valid,” Milhelm

, 512 U.S. at 71; see also id. at 74 ( r ejecting the proposition that the I ndian Trader Statutes “ b a r[ ] any and all stateimposed burdens on I n dian traders”). I n Milhelm

, non-I ndian “wholesalers licensed by

the B ureau of I ndian Affairs

. . . to sell cig arettes to reservation I n dians” c o n t ended that the Statutes p reempted various state reg ulations, including a limit

on the number of tax -free c ig arettes that they could sell to tribes and reservation retailers as well as req u i r e ments that they “hold state licenses,” “keep records reflecting the identity of the buy er in each tax -ex empt s a l e [
, ] and make monthly reports to [ New York] on all such s a l e s

. ” Id. at 66–67. The Court clarified t h a t the Statutes preempt state reg ulatory authority only insofar as the state seeks to “dictate ‘the kind and quantity of g oods and the prices at which such
g oods shall be sold to the I ndians.’” Id. at 75 (quoting 25 U.S.C. § 261). New York’s quantity limitation on tax-free cig arettes d id not have this impermissible purpose because “I ndian traders remain[ ed] free to sell I ndian tr i b es a nd retailers as many cig arettes as they w ish[ ed]

, of any kind a nd at whatever price.” Id.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 35

Apply ing the reasoning o f Moe and Colville

, even thoug h those cases “d e a l t most directly with claims of interference with tribal sovereig nty ,” id. at 74, the Court upheld the other challeng ed r eg ulations as “minimal burdens reasonably tailored to the collection of valid tax e s from non-I ndians,” id.
at 73–74, 7 6. I t ex plained that “[ i] t would be anomalous” to p e r mit states, under Moe and Colville

, to “impose ta x collection and b o o k k eeping burdens o n reservation retailers who are themselves enrolled tribal members,” but to h o ld that the Statutes bar “similar burdens

. . . on whole s a l e rs w ho often (as in this case) are [ non-I n d ian]

. ” Id. at 7 4. The Court reasoned that “[

j] ust as tribal sovereig nty does not completely preclude States from enlisting t r i b a l retailers to assist enforcement of valid state tax es, the I ndian Trader Statutes do
not bar the States from imposing reasonable reg ulatory burdens upon I ndian traders for the same purpose.” Id.

B

Apply ing these principles, we affirm the dismissal of the Corporation’s preemption challeng es to the Directory Statute and California’s licensing

, recordkeeping

, and r e porting requirements.

1

Tribal sovereig nty principles do not preclude California from reg ulating the Corporation’ s intertribal wholesale cig arette sales under the challeng ed reg ulations.

The Corporation concedes that it leaves the Rancheria to sell cig arettes to tribal retailers on o ther reservations

. T h e C o r p o ration does not alleg e that the c halleng e d r e g ulations

are discriminatory nor, for the reasons stated below, does theB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 36

Corporation plausibly alleg e t h at federal law bars the Directory Statute’s application to the Corpo r a tion. See Mescalero

, 411 U.S. at 148–49. The Corporation therefore f a ils to state a claim that the challeng ed reg ulations

, a s applied to its off-reservation c onduct, infring e tribal selfg overnance. See id. at 148, 153 (e x plaining that “offreservation activities are within the reach of s t a t e law” so long a s the state law is n ot discriminatory and “[ a] bsent

ex p ress federal law to the contrary ”); see also King Mountain Tobacco

, 768 F .3d at 993 ( “ Mescalero requires that we determine wheth e r W a s h i n gt o n ’ s e scrow statute is discriminatory and whether King Mountain’s activities g o bey ond the boundaries of the reservation.”).

The Corporation doe s n ot r emain “on reservation” for
purposes of the tribal-sov e reig nty analy sis by selling

c i garettes on other tribes’ reservations. The Corporatio n ’s contention t h a t it undertakes its sales a ctivities entirely in “I ndian country ” disreg ards that “ [ t] he r e i s a sig nificant
g eog raphical component to tribal sovereig nty ,” Bracker

, 448 U.S. at 151, and that “I ndian tribes ar e u n ique aggregations possessing a ttributes of sovereig nty o ver both their members and their territory .” U

nited States v. Mazurie
, 419 U.S. 544, 557 (1975) (emphasis added). T h e Corporation fails to plausibl y alleg e that California hinders the Tribe’s ability to g overn its territory and members by prohibiting the Corporation, an unlicensed distributor, from s e lling offdirectory cig arettes outside the Rancheria. See Mescalero

, 411 U.S. a t 1 5 7 ( ex plaining that a tribe does not have “ex p a nsive immunity from ord i n ary ” reg ulation that applies
to “businesses throug hout the State” when that t r i b e travels “bey ond its reservation borders for the purpose of carry ing on a business enterprise” (emphasis added)).B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 37

W e therefore join t h e Tenth Circuit and Oklahoma Supreme Court in treating tribe-to

- tribe sales made outside the tribal enterprise’s reservation as “off reservation” activity

su b j e ct to non-discriminatory state laws of g eneral application. See Muscogee ( Creek) Nation v. Pruitt
, 669 F .3d 1159, 1 172 (10th Cir. 2012) (“[ W ] hen I n dians

. . . act outside of their own I ndian country

. . ., including wi t h i n t h e I ndian country of another tri b e , they a re subject to nondiscriminatory

state laws otherwise applicable to all citiz ens of the state.” (emphasis a d de d)); 1 0 Edmondson v. Native W holesale S

upply

, 237 P

. 3 d 199, 2 15–16 (Okla. 2 010) (concluding that “tribal to tribal transacti ons” that “ex tend[ e d] b e y o n d t h e b o undaries of any sing le ‘reservation ’ ” constituted “off-reservation conduct”), cert. denied

, 563 U.S. 960 (2011), abrogated on other g rounds by Bristol-Meyers Squibb Co. v. S u p e r

. Ct.
, 137 S. Ct. 1773 (2017).

I n these circumstances, the district court properly declined to balance federal, state, and tribal interests under Bracker

. See B ig Sandy

, 395 F

. Supp. 3d at 1328–30. Bracker balancing is appropriate when a tribe or tribal entity challeng es a state’s reg ulatio n o f transactions between the tribe and nonmembers o n the tribe’s reservation

. See, e.g. , Bracker

, 448 U.S. at 141 ( balancing interests w here a tribe

10 L ik e t h e t rib e in Mu sco gee , w

h ere th e T en th Circu it rej ected a p reem p tio n ch allen g e to O k l ah o m a’ s d irecto ry statu te, see 6 6 9 F.3 d
at 1 1 7 9

– 8 0, th e Co rp o ratio n do es n o t alleg e th at Calif o rn ia h as en f

orced

o r th reaten ed to en f

o rce th e Directo ry Statu te o n t h e Ran ch eria—f or

ex am p le, b y seizin g co n trab an d cig arettes t h ere. Cf. Mu sco g ee , 66 9 F.3 d
at 1 1 80 & n .9 (d eclin in g to p erf o rm B r a cker b alan cin g w h ere th e trib e alleg ed en f

orcem en t an d th reaten ed en f o rcem en t o f th e d irecto ry s t a t u te

o u t s id e o f its reserv atio n , e.g ., th e seizu re o f cig arettes “ i n tra nsit t o t h e In d ia n co u n try of

th e Natio n ”).B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 38

intervened as a plaintiff to challeng e Ariz ona’s tax ation of a non-I ndian company that provided the tribe log g ing services

o n the tribe’s reservation ) ; California v. Cabazon Band o f Mi s s i o n Indians

, 480 U.S. 202, 216 (1987) ( b alancing interests where tribes c h a l leng ed California’s attempt to prohibit them from offeri ng non-I ndians hig h stakes bing o g ames on their re servations ) ; Gila R iver Indian Cmty.
, 967 F .2d at 1407, 1410–11 (balancing interests where a tribe challeng ed Ariz ona’s tax ation of non-I ndian ent i t y that operated performing

arts center o n the tribe’s reservation ).

Here, the Corporation does not alleg e that C a lifornia seeks to reg ulate its transactions with non-I ndians o r nonmembers on the Rancheria in a way that infring es on the Tribe’s self-g overnance. Rather, the Corporation claims that th e D i r ectory Statute, as applied to the Corporation’s sales activities off the Rancheria

, infrin ges the Tribe’s selfg overnance. F or the reasons already stated, this claim is not
cog niz able under M

escalero , 411 U.S. at 148–49.

2

The Corporation h as likewise f ailed to sta t e a c l aim that
t he I ndian Trader Statutes p reempt any of the challenge d
reg ulations as a p plied to its intertribal wholesale cig arette business.

a

As a preliminary matter, the c omplaint is d ev o i d of any alleg ations that the federal g overnment has ex erci s e d a n y shred of o versig ht—still less “comprehensive,” “detailed,” o r “p er v asive” o versig ht—with respect to the Corporation’s alleg ed I ndian trading

. Bracker

, 448 U.S. at 145–46, 148.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 39

According ly

, the transactions that th e Corporation seeks to immuniz e from state reg ulation are fundamentally different from the transactions that have led the Court to deem the Statutes preemptive of state reg ulation as applied to I ndian traders. Specifically

, the Corporation does not alleg e that the federal g overnment has licensed it as an I ndian trader o r otherwise approv e d its c ig a rette sales to tribal retailers on other reservations. See W a rren Trading Post
, 380 U.S.
at 691; Cent. Mach.

, 448 U.S. at 165 n.4. Moreover, it strains credulity to deem a lone f

ederal r eg u lation that prohibits onreservation cig arette sales to I ndian minors, see 25 C.F .R. § 14 0

. 1 7
, “comprehensive” and preemptive federal reg ulation of cig arette trade within I ndian country

. W arren Trading Post , 380 U.S. at 688–89.

b

The S u p r eme Court’s reasoning in Milhelm f urther requires dismissal of the Corporation’s claims that the Statutes preempt the Directory Statute a nd Cali f ornia’s licensing , recordkeeping , and reporting requirements.

(1)

F irst, the Corporation’s a lleg ation t hat the Directory Statute impermissibly

“specifies the kind and price o f g oods that may b e sold to I ndians by limiting the cig arettes that the Tribe may sell

. . . to cig arett e s o f a tobacco product manufacturer or brand family included in the directory ” f ails under M ilhelm

. The Director

y S t atute prohibits the Corporation from selling certain tobacco produc t s b ased sol e l y on the product manufacturer’s violation of state law

a nd without reg ard to the ty pe, price, or quantity o f t h e product itself. So long as the Corporation sources itsB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 40

cig arettes from manufacturers that c omply with their escrow oblig ations, it “rema in[ s] free to sell I ndian tribes a nd retailers as many cig a

rettes” as it wishes, “of any kind, a nd at whatever price.” Milhelm , 512 U.S. at 75.

To be sure, non-participating manufacturers may have an economic incentive to pass the cost of e scrow deposits on to their consumers, such that the Corporation’s compliance with the Directory Statute may very well i n crease the cost of the cig arettes that it sells. No twithstanding this potential downstr eam effect on pricing

, the Directory Statute, unlike the preempted tax ation in W arren Trading Post and Central Machi n e r y , does not d irectly affect the price that the Corporation charg e s its consumers.

I n sum, the Corporation fails to p lausibly a l l e g e that the Directory Statute “disturb[ s] and disarrang e[ s] the statutory plan to protect I ndians ag ainst price s d e emed unfair o r unreasonable,” W

a rren Trading Post
, 380 U

. S

. at 691; see also 25 C.F .R. § 140.22 ( describing federa l go v ernment’s “duty ” to ensure that prices charg ed to I ndians are “fair a nd reasonable”), or that it impermis s i b l y seeks to “ dictate ‘the kind an d q u a n t i ty of g oods and the prices a t which such
g oods shall b e sold to the I ndians.’” Milhelm

, 512 U.S. at 75 (quoting 25 U.S.C. § 261).

(2)

The Corporation al s o fails to state a claim that the Statutes preempt California’s licensing

, recordkeeping

, a nd reporting requirements b ecause it does not plausibly a lleg e that those requirements are no t “reasonable reg ulatory burdens” imposed on I ndian traders “to assist enforcement o f valid state tax es.” I

d. at 74; see also Colville

, 4 4 7 U.S. at 160B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 41

(placing the burd e n o n t h e tribe to show that the challeng ed
reg ulations a re “not r e a sonably necessary as a means o f preventing f

raudulent transactions”). Valid st a te tax e s include the cig arette e x cise tax es that California seeks to collect from customers who purchase c ig a rettes on reservations to which they do n ot belong

. See Cheme h u e v i
, 474 U.S. at 11–12; see also Colville , 447 U.S. at 156–59.

These minimal burdens may b e imposed o n I ndian businesses that, like the Corporation, purport to eng ag e only in tax

- ex empt transactions. See Colville

, 447 U.S. at 159–60 (reversing the district court, which h ad struck down recordkeeping requirements with respect to all on-reservation cig arette sales by I ndian retailers after find i n g t h a t none o f these retailers’ sale s were tax able); Milhelm

, 512 U.S. at 76 (u p h o l d i n g New York law r equiring that cig a rette wholesalers making on-reservation cig arette sale s to tribal retailers “maintain detailed records on tax

- exempt t ransactions” (emphasis added)).

The Corporation does n o t plausibly alleg e that C a l i f o r n i a ’ s l i c e n s i n g, r e cordkeeping

, and re p o r t i n g requirements, as applied to its sales to n o n m e m ber I ndian retailers, a

re ex ce s s ive burdens. As the district court n oted,
tax enfo r c e m ent schemes “with even more demanding requirements than those of Calif o r nia have been repeatedly upheld by the Supreme Court a s i mposing only a ‘minimal burden.’” Big Sandy

, 395 F

. Supp. 3d at 1332–33; see also Milhelm

, 512 U.S. a t 6 4 –67, 76 ( u pholding state laws requiring “[ w] holesale distributors of tax -ex empt cig arettes”
to “hold state licenses,” maintain records reg ardi n g tax

ex e mpt transactions, and adhere to quantity limitations on the
untax e d cig arettes that they could se l l to reservation retailers); Co l v i lle

, 447 U.S. at 159–60 (upholdingB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 42

r e c o r d k e e p i n g r e q u i r e m en t s , w h i ch re q u i r e d In d i a n smokeshop operators to “keep detailed records of both
tax able a nd nontax abl e t

r a n s a c t i o n s , ” i n c l u d i n g , in connection with the latter, “the names of all I ndian purchasers, their tribal affiliations, the I ndian reservations within which sales are made, and the dollar amount and dates of sales”).

I ndeed, as the Supreme Court reasoned in Milhelm

, cig arette wholesalers

, like the Corporation—which must “maintain d etailed records” r eg arding their transactions—are
g enerally less burdened tha n I ndian retailers w hom the state may require to do the same under Colville because “wholesale trade ty

pically involves a comparatively small number o f l a r ge -volume sales.” 512 U.S. at 74. The Corporation does not alleg e otherwise.

I n asserting that California’s li ce n sing

, recordkeeping

, and reporting r equirements are not “desig ned to prevent nonI ndians from evading tax es,” the Corporati o n d i sreg ards the L eg islature’s finding s to the contrary

. See Cal. B us. & Prof. Code §§ 22970.1(c) (“The enforcem e n t of California’s cig arette and tobacco products tax laws is necessary to collect millions of dollars i n lost tax revenues each y ear.”), 22970.1(d) (finding that lic e n sing every person in the distribution chai n would “help stem the tide of untax ed distributions and illeg al sales”). And as the Attorney General

ex p lained below, “[ e] ven if [ th e C o r p oration] does n ot owe the tax , or [ the Corporation’s] customers do not owe the tax , the State’s licensing and r eporting r equirements allow [ the State] to see if someone owes the tax , and then, if they do, to collect it.” Big Sandy , 395 F . Supp. 3d at 1332.

J u st because the state-mandated “ reports would n o t identify [ the Corporation’s] r etail c ustomers” or anyB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 43

information about those retailers’ do wnstream transactions, i.e., “the i n f

o rmation necessary to ascertain the products’ ultimate tax a

bil i t y , ” that does not make California’s requirements unreasonab l e. “[ A] lthoug h the Corporation’s reports w ould not list the identity o f its customers, each of its customers’ filing s would list the Corporation as the s eller, thereby allowing the State to compare t h e Corporation’s
ag g r eg ate monthly outflow w ith the monthly inflow r eported by its customers, and to f ollow up in t h e event o f discrepancies.” Id. Morever, wholesale distrib u tors must “maintain and make a vailable f or ex amination underly

ing invoices and other r ecords suppo r t i ng the r equired reports”—that is, “ex a c tly the kind of information that would aid

. . . in t r a c king [ the Corporation’s] downstream sales.” Id. ; see also Cal. B us. & Prof. Code § 22978.5.

The Corporation likewise fails to state a claim that the licensing

, recordkeeping

, and reporting requirements a re g enerally “incompatible with the federal reg ula t ion of trade with I ndians in I ndian country .” T h e Corporation does not alleg e, for instance, that the challeng ed requirements “could

. . . disturb and disarrang e the statutory plan” b y imposing an “economic burden” on the Corporation that “ would eventually b e passed o n to” tribal purchasers in the form o f either p ricier, fewer, or shoddier p roducts. Bracker

, 4 48 U.S.
at 152; see also Cent. Mach.

, 448 U .S. at 162 (noting that the seller h a d a d d ed the a mount of the challeng ed state tax , nearly $3000, to the price of the tractors purchased by a tribal entity on the r eservation). Nor does the Corporation plausibly alleg e that the challeng e d r e g ulations, which enable the state to monitor and police statewide cig arette distribution, usurp

o r i nterfere with the Commissioner’s “sole power a n d

a u t h o r i t y to appoint traders to the I ndian tribes.” 25 U .S.C

. § 261. The Corporation does not , for ex ample, a ttribute itsB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 44

f ailure to apply for an I ndian trader license under 25 U.S

. C

. § 262 and 25 C.F .R. § 1 40.9 to Calif o r n i a ’s reg ulatory scheme or contend that holding the licenses required un d er California law would somehow prevent it from obtaining an I ndian trader license under federal law.

V

F or the foreg oing reasons, w e a f f irm the district court’s dismissal for lack of subject matter jurisdiction and for failure to state a claim.

AF F IRMED.

B ERZ ON, Circuit J udg e, concurring in part and acquiescing dubitante in part:

I j oin the majority opinion in affirming the dismissal o f B ig Sandy Rancheria E n terprises’ (“B SRE” or “the C o r p o ration”) first four claims. W here I differ from th e majority is in the certainty that B SRE is not an “I ndian tribe

or band” f or jurisdictional purposes. 28 U.S.C. § 1362. Nor

am I c ertain, however, that B SRE is an “I ndian tribe or band.” B ecause I have doubts about the majority ’s conclusion but am not p repared to say it is certainly wrong , I c o n c ur in the judg m e n t but write separately

, dubitante

, as to Part I I I
, affirm i n g the dismissal of B SRE’s fifth c laim f or lack o f jurisdiction. See United States v. Campbell

, 9 3 7 F .3d 1254, 1259–61 ( 9th Cir. 2019) (B erz on, J
., dubitante); United States

v. $11,500.00 in U.S. Currency
, 869 F

. 3d 1062, 1076–77 (9th Cir. 2017) (Hur w i t z , J
., concurring in part a nd acquiescing dubitante in part). As the matter of t h e t ribal status o fB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 45

corporations inco r

porated u n der § 17 of the I ndian Reorg aniz ation Act (I RA), 25 U.S.C

. § 5 124, is likely to be of continuing sig nificance and the pertinent case law is scant, it s eems worth spelling out some of my concerns even thoug h, in the e nd, they a re not of sufficient weig ht to convince me to reject the majority ’s ultimate holding

.

Under the “I ndian T ribes ex ception,” any actio n t h at could be brou gh t in federal c ourt u nder 28 U.S.C. § 1 362 is

ex e mpt from the T ax I njunction Act’s command th at challeng es to state law be broug ht f irst in state c o u rt

. See 28 U.S. C

. § 1 341; Moe v. Confederated Salish & Kootenai Tribes of the Flathead Rsrv.
, 425 U.S. 463, 4 74–75 ( 1 976); Barona B and o

f Mission Indians v. Y

ee , 528 F .3d 1 184, 1187 n.1 (9th Cir. 2008). Section 1362 confers federal jurisdiction

ov er “all civil actions, broug ht by a ny I ndian tribe or band with a g overning b ody duly recog niz e d by the Secretary o f the I nterior,” arising under f ederal law. 28 U.S.C. § 1362. W h ether this p rovision encompasses the current suit turns on the scope of the term “any I ndian tribe or band.”

As the majority points out, Maj. O p. at 22, our analy sis o f this question must b e g uided b y the c anon that “statutes passed for the ben e f

i t o f I n dian tribes, such as [ §] 1 362, a re to be liberally construed, with doubtful ex pressions being resolved in t h e I n d ians’ favor.” Gila River Indian Cmty. v

. Henning son, Durham & Richardson

, 626 F .2d 708, 712 (1980); see B ryan v. Itasca County
, 426 U.S. 373, 392 (1976). I n this case, c onstruing the statute “ liberal l y

. . . in the I ndians’ favor” with reg ard to a n y “doubtful ex p re s s ions” would mean holding that th e statute includes tribes incorporated under § 17 of the I RA, like B SRE, and that the district court therefore has jurisdiction to consider B SRE’s claim under the Tax I njunction Act. The key question, then,B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 46

is whether the scope of “any I ndian tribe or b and” in § 1362 i s t he ty pe of “doubtful ex pression[ ] ” to which the I ndi a n canon of construction applies.

Cas e l aw c onstruing either § 1362 or § 17 is e x tremely
sparse, and Cong ress has provided little g uidance on how the statutes’ terms are to be construed. The question whether § 17 corporations are an “I ndian t r i b e or band” for jurisdictional p urposes appears to have never been squarely addressed by our circuit or b y any other federal court o f appeals. F aced with an untrodden statutory and precedential backdro p , the majority has reached a conclusion that is plausible and per h a p s correct. I w rite separately

, however, because the majority ’s conclusion is not the o n l y one that could be drawn ag ainst the pertinent backdrop.

F irst, I view the majority ’s focus on whether the Corporation, itself and independently

, is a federally
recog niz ed tribe as misg uided. See Maj. Op. at 22–25. I t is

un d isputed that B ig Sandy Rancheria is a federally
recog niz ed tribe. The relevant question is therefore not whether B SRE is federally recog niz ed for the pur p oses o f § 1 362, but whether BS R E
, in its incorporated form, is identical with B ig Sandy Rancheria for jurisdi c tional
purposes.

F ramed in this w ay , I am not c ertain that B SRE’s position that § 17 c orpo r a t i o n s are “I ndian tribe[ s] or band[ s] ” for jurisdictional purposes is, as the majority has it, a “poor fit with the relevant statutory lang uag e.” Ma j

. O p

. at 23. Section 17 of the I RA empowers the Secretary of the I nterior
to “upon petition by any tribe, issue a c harter of incorporation
to such tribe ,” provided that “such c h a rter shall not become operative u ntil ratified b y the g overning body

of such tribe.”B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 47

25 U.S.C. § 5124 (emphasis added). The § 17 charter “may
convey to the incorporated tribe ” the power to purchase a nd alienate property , including restricted I ndian lands. Id. (emphasis added).

This statutory lang uag e d o e s , a s the majority points out, disting uish betwe e n the Tribe’s g overning body and its corporate entity

. B ut by issuing the corporate charter “to such tribe” a

nd referring to a § 17 corporation a s the “incorporated tribe, ” t h e s tatute can be read to identify § 17 corporations a s also “tribe[ s]
, ” whether or not distinct entities from the tribe as org aniz e d in i t s governmental capacity

. Section 1362—enacted, as the maj o r i t y points out, several decades after § 17, see Pub. L

. 89-635, § 1, Oct. 1 0
, 1966, 80 S t a t. 880 (codified at 28 U.S.C. § 1362)—does not limi t i t s g rant o f jurisdiction to suits broug ht by the governing body o f

an I ndian tribe or band, n or to tribes or ga n iz ed under the specific structures set out in the I RA. A plausible reading o f the statute’s silence is that § 1 362 e ncompasses tribal entities
reg ardless of the org aniz a tional structure or capacity in which they bring suit.

I t is this reasoning that g u ided the only o ther Ninth Circuit o pinion to consider whether § 1 7 corporations qualify for the Tax I njunction A c t ’s “ I ndian tribes ex ception.” I n W hite Mountain A

pache Tribe v

. W

illiams

, 810 F .2d 844 (9th Cir. 1985), the W hite Mountain Apache Tribe, in its capacity

as a § 17 corporation, broug ht a § 1983 claim in federal court challeng ing Ariz ona’s power t o tax a joint venture b etween the incorporated tribe and a private timber operation. See id.
at 846–47; id. at 865 (B

. F letcher, J

. , dissenting)

. The majority concluded that t h e T ri b e had failed to state a claim

un d e r § 1983; it did not c onsider whether the court h ad jurisdiction to consider any such claim.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 48

I n dissent, however, J udg e F letcher concluded that it did. B ecause she would hav e h e l d t h at the Tribe had a sserted a viable § 1983 claim, she considered whether the incorporated tribe was en t i tled to bring suit based on those claims a nd, if
so, whether any such action was “barred in the federal courts” by the Tax I njunction Act. Id. at 865 (F le t c her, J
., dissenting ). J udg e F letcher reasoned that, because “ [ t ] he plain lang uag e of section 1 362

. . . does not disting uish between the ‘g overnmental’ tribe provided for in I RA section 16 and the ‘incorporated tribe’ provided for in section 17,” the § 1 7 entity was an “I ndian tribe or band” under § 1362. Id. at 868 (quotin g 2 5 U

. S.C. §§ 476–77 (now c odified at 25 U.S.C. § 5123–24))

. So, reviewing the same statutory tex t, J udg e F letcher drew the o pposite conclusion to that drawn by the majority

here.

L ikewise, J udg e F letcher in W hite Mountain Apache took the opposite view from that of the majority here as t o other indicia of cong ressional intent. She noted first that “[ w] h en Cong r ess passed section 1 362 in 1966, it was fully a ware that I ndian tribes could act in both sovereig n and proprietary capacities,” and then concluded that the “failure to limit

ex p licitly the scope of section 1 36 2 t o a c tions b roug ht b y tribes in their g overnmental capacity sug g ests that [ Cong ress] intended the provision to encompass a c tions broug ht by tribes in th e i r co r

p o rate capacity as well.” Id

. The majority here draws the ex act opposite conclusion from the same leg islative history

. S e e Maj. Op. a t 22–23. That the tex t and leg islative history of the jurisdictional statu t e have been interpreted b y different member s of this court as commanding directly opposite outcomes sug g ests that, at the very le a s t , § 1362’s reference to “I ndian tribe[ s] or band[ s] ” may be the ty pe o f doubtful ex pressi o n entitled to c onstruction favorable to the tribe.B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 49

Nor do I find, in my own review o f the leg islative history

, a persuasive answer to the quest i on whether Cong ress intended § 1362’s application to “I ndian tribe[ s] or b a

nd[ s] ”
to include § 17 corporations. As the Supreme Court pointed
out in M oe , Cong ress’s p urpose in enacting § 1362 was “to
open the federal courts to the kind of claims that could have been broug ht by the United States as trustee, but for whatever reason were not so broug ht.” 425 U.S. at 472. The relevant

case law does not paint a cry stal-clear p icture of what actions could be broug ht b y the United States as trustee

. Bu t the United States a

ppears to have represented the interests of § 17 incorporated tribes in at least one leg al action. See Md. Cas. Co. v. Citizens Nat. B a n k o f W

. H ollywood

, 3 61 F .2d 517, 518–19 (5th Cir. 1 9 6 6 )

. The federal g overnment is also empowered to hold lands in trust for § 17 incorporated tribes. See Carlson v. Tulalip Tribes of W ash.

, 510 F .2d 1337, 1339 (9th Cir. 1975). And, as Moe hel d, the United States is empowered to “seek[ ] to e n join the enforcement of a state tax l a w ” t o vindicate tribal interests. 425 U.S. at 474. Ag ainst this limited case law, a plausible inference from the statute’s
purpose a nd ambig uous tex t is that Cong ress intended to open federal c ourts to claims v indicating the i nterests of tribes in their § 17 incorporated capacity

.
Third, I believe t h e m a

jority overstates our mandate to “narrowly construe[ ] ” the § 1362 ex ception to the Tax I njunct i o n Ac t. Maj. Op. at 24 (quoting Ashton v. Cory
, 780 F .2d 816, 820 (9th Cir. 1986)). Ashton ’s conclusion that the § 1362 ex c eption to the Act “has been narrowly construed by our court” relied ex clusively on cases “refus[ ing ] to ex tend the ex ception to include individual members of I ndian tribes” suing in a personal capacity

. Id. at 820–21 (emphasis a dded) (citing Comenout v. W ashing ton, 722 F. 2 d 574, 577 (9th Cir.1983); Dillon v. M ontana, 634 F .2d 463, 469 (9thB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 50

C i r

. 1980)). I ts holding has b een applied only once since, i n

a case declining to apply the ex ception to a private enterprise owned by tribal members. See Amarok Corp. v. N ev

. Dep’t of Tax’n , 935 F .2d 1068, 1069–71 (1991).

I do not read these cases a s sanctioning in ge n e ra l a cramped construction of the jurisdictional statute. Rather, the construction o f § 1362 in the cited cases refl ects a straig htforward understanding of the distinction between a sovereig n entity and its citiz ens. A c ourt’s refusal to a pply the jurisdictional statute to privat e citiz ens and corporations does n ot narrow the st at u t o ry definition of “I ndian tribe o r band,” any more than a refusal b y the Supreme Court to assert orig inal jurisdiction over a suit by a private citiz en of a state would constitute a narrow constructio n of Art. I I I
, § 2, cl. 2 of t h e U .S. Constitution, which ex tends the Court’s orig inal jurisdiction to suits in which states are a party

.
Navajo Tribal Util. Auth. v. Arizona Dep’t of R e ve n u e , 608 F .2d 1228 ( 9th Cir. 1979), does, however, p r e sent a wrinkle for a more forg iving reading of the case law. A s the majority points out, Navajo rejected an ex pansive reading o f the jurisdictional statute in p a r t o n the g round that “[ i] f the l e adership o f a tribe or band decides that litig ation i s necessary ,” then that leadership is free to bring suit itself under § 1362. Id. at 1232. I n t h e p resent case, I remain
puz z led as to why the B ig Sandy Rancheria tribal council—a body that, by the § 17 charter, is identical in its membership to the B SRE B oard—chose not to sidestep the jurisdictional question a ltog ether by bring ing suit q u a t r i b al council. B ut

even so, that the tribal council could have initiated suit in its
g overnmental capacity does n o t necessarily mean that, a s a statutory matter, t h e same body is foreclosed from initiating

a federal suit in its incorporated form. Cf. Mescalero ApacheB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 51

Tribe v. Jones
, 411 U .S. 1 45, 1 58 n.13 (1973) (“[ T] he question of tax immunity cannot be m ade to turn on the particular form in whi c h t h e Tribe chooses to conduct its business.”).

I n the end, I a m not convinced t h a t Navajo ’s interpretation of the jurisdictional statute squarely forecloses federal jurisdiction here. Navajo held only that § 1 362 “does
not cover subordinate, semi-autonomous tribal entities.” 608 F .2d at 1231. 1 That case concerned the Navajo Nation’s public utility company , which enjoy ed a “substantial” relationship with the tribe and over which t h e tribal
g over n m e n t “ex ercise[ d] some measure of control.” Id.
at 1232. B ut in declining t o assert jurisdiction, the Navajo
court emphasiz ed the utility a uthority ’s “substantial deg r ee o f autonomy ” from the tribal g o v e r nment, noting that the corporation’s B o ard was “not sy n o ny mous with the Tribal Council or even a committee thereof. R a ther, it [ wa] s a somewhat, althoug h not a completely

, i n d ependent e ntity

. ” Id.

B y contrast, § 17 corporations appear by definition to lack autonomy

. Charters o f i n c orporation are issued at the discretion of the Secretary o f t h e I nterior; may be revoked only by an Act of Cong ress; and “ c onfer only powers that the Secretary of the I nte r i or is w illing for the corporation to possess.” Uniband, Inc. v. Comm’r
, 140 T.C. 230, 262 (2013) (citing Md. Cas. Co.
, 361 F .2d at 520); see 25 U .S.C. § 5 124. W h at’s more, § 17 corporations a re treated a s

1 Ev en w ith th is h o ld in g —w h ich m ay o r m ay n o t en co m p ass § 1 7

co rp o ratio n s—th e Nin th Circu it ap p ears to g o f u rth er in lim itin g th e sco p e

o f § 1 3 6 2 t

h an o t h er circu its h av e. S ee 1 Co h en ’ s Han d b o o k o f Fed eral In d ian L aw § 7 .0 4 n . 1 8 (N. J essu

p , Ed ., 2 0 1 9).B I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 52

identical to tribal g overnments for p u r poses of federal tax immunity

. See 26 C.F

. R. § 301.7701-1(a)(3). And, althoug h this court has never addressed the question, several c ircuits have held—as the majority a c knowledg es, Maj. Op.
at 23—that § 17 corporations are “arms of the tribe” f o r purposes of sovereig n immunity

. S ee A merind Risk Mgmt. Corp. v. Malaterr e , 6 3 3 F .3d 680, 685 (8th Cir. 2 011); Memphis Biofuels, LLC v. Chickasaw Nation I n d u s ., Inc.
, 585 F .3d 9 1 7
, 9 21 ( 6th Cir. 2009); Md. Cas. Co
, 361 F .2d
at 5 21–22 (adopted as binding precedent by the 11th Circuit,

see Bonner v. City of Prichard

, 661 F .2d 1206, 1207 (11th Cir. 1981) (en banc)). The analy ses relevant t o as sessing f e deral tax and sovereig n immunity a re, of course, d istinct from the jurisdictional analy sis. See In re Prairie Island Dakota Siou x , 21 F .3d 302, 304 ( 8th Cir. 19 9 4 )

. B ut in my view, these features of the § 17 corporation compli c a t e t he latter question and render the present case sufficiently d istinct from Navajo to merit closer consideration.

F inally

, I address the majority ’s assertion that it would be “odd” to allow tribes to allow a § 1 7 entity to “selectively claim the benefits of sovereig nty .” Maj. Op. at 20. I do not

see why this is so. F irst, I n ote ag a in that, althoug h this circuit has never addressed the question, every circuit to have considered whether § 17 corporations a r e entitled to inherent sovereig n immunity ha s h el d that they are. See cases cited
supra ; see also Breakthrough Mgmt. Grp., Inc. v

. Chukchansi Gold Casin o & R esort , 629 F .3d 1173, 1184 n.8 (10th Cir. 2010); Clay Smith, Tribal Sovereign Immunity: A P rimer
, 50 A dvocate 19, 2 0

– 2 1 (May 2007) (“The principal leg al difference [ between § 1 7 corporations and other tribal corporations] is that, w hile section 17 corporations retain
t h eir tribal status—and, according ly

, sovereig n immunity in the absence of a ‘sue and be sued’ waiver—the other speciesB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 53

of corporations are not imbue d automatically with such status.”). The Supreme Court reinforced this principle in Michigan v. B ay Mills Indian Cmty.
, 572 U.S. 78 2 ( 2 0 1 4 ), when it held that tribes are e n t itled to sovereig n immunity whe n eng ag ing in commercial a ctivity both on- and offreservation, id. at 790.

That many § 1 7 c orporations choose to waive their inher e n t immunity h as no bearing on whether they a re “tribe[ s] ” under § 1362. Tribes, like all sover e ig ns, may waive immunity when doing so is b eneficial to their interests. See United States v. State of Or e g o n , 6 57 F .2d 1009, 1014 ( 9 t h Cir. 1981). As we h eld in State of Oregon
, one of the “[ c] lear policy considerations

. . . militat[ ing ] in favor of [ a] tribe’s p ower to consent to suit” is the concern that “ n o n

I n d i a n interests mig ht p rudently avoid contracts with Tribes that would otherwise prove beneficial to the I ndians, with the result that Tribes wishing to eng ag e i n b u siness would be needlessly impeded.” Id. According ly

, tribes may consent to suit as an act of prudent self-g overnment. See id.

As our precedent and that of other circuits makes clear, a waiver of sovereig n immunity does n ot n e g a te inherent sovereig nty

. A s State of Oregon p ointed ou t , some tribal constitutions rat i f

i ed under § 16 of the I RA, like some § 17 charters, contain “sue or be sued” c lauses that can be interpreted a s waiving immunity f or the relevant g overnment. Se e i d

. at 1013 n. 11; see also Linneen v. Gila River I ndian Cmty.
, 276 F. 3d 489, 492 ( 9th Cir. 2 002). B ut the majority does n ot a

nd c annot plausibl y a

rg u e that tribes with constitutions r atif

i ed by the Department of the I nterior pursuant to § 16 are n ot “I ndian tribe[ s]

. . . duly recog niz ed by the Secretary o f the I nterior.” 28 U.S.C. § 1362. Native nations org aniz ed under § 16, like all sovereig n entities, mayB I G S A N D Y R A N C H E R I A E N T E R S

. V

. B O N T A 54

waive immunity in some contex ts while invoking the benefits of sovereig nty in others. I see no r eason why

, as a matter of principle, tribes i n c o rporated under § 17 should be any different.

This is not to c o nclud e definitively that § 17 entities a re the “tribe” for jurisdictional purposes. B ut I am dubious as to the majority ’s assertion that an entity that waives sovereig n immunity may not a t the same time selectively cl aim the benefits of sovereig nty in ot her c ontex ts. The selective enjoy ment of the benefits of sovereig n ty is the p rerog a tive o f all sovereig n entities; tribes are no different.

I join the m a

j o r ity ’s conclusion because, with the

ex c e ptions noted, its r easoning is persuasive, and I cannot be certain, faced with an ambig uous statutory tex t, a thin leg isla t i v e history

, and sparse case law, that the majority ’s conclusion is incorrect. B ut I am qu ite certain that the question is a closer one than the majority opinion indicates. And a s w e appear to be the first federal circuit court to address this p recise question, I believe there is some value in

ex p ressing these doubts publicly

. I therefore concur with the majority in full as to Parts I
, I I
, and I V, and concur, dubitante

, as to Part I I I

.