1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HENDRIK BLOCK, No. 1:20-cv-01691-DAD-BAM 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

14 TULE RIVER TRIBAL COUNCIL, et al., (Doc. No. 15) 15 Defendants.

16 17 This matter is before the court on the motion to dismiss for lack of subject matter 18 jurisdiction filed on behalf of defendants Tule River Tribal Council (“Tribal Council”) and Tule 19 River Economic Development Corporation dba Eagle Feather Trading Post #2 (“TREDC”) on 20 May 24, 2021.1 (Doc. No. 15.) Pursuant to General Order No. 617 addressing the public health 21 emergency posed by the COVID-19 pandemic, the motion was taken under submission on the

22 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s 23 overwhelming caseload has been well publicized and the long-standing lack of judicial resources in this district long-ago reached crisis proportion. While that situation was partially addressed by 24 the U.S. Senate’s confirmation of a district judge for one of this court’s vacancies on December 17, 2021, another vacancy on this court with only six authorized district judge positions was 25 created on April 17, 2022. For over twenty-two months the undersigned was left presiding over approximately 1,300 civil cases and criminal matters involving 735 defendants. That situation 26 resulted in the court not being able to issue orders in submitted civil matters within an acceptable 27 period of time and continues even now as the undersigned works through the predictable backlog. This has been frustrating to the court, which fully realizes how incredibly frustrating it is to the 28 parties and their counsel. 1 papers. (Doc. No. 16.) For the reasons explained below, the court will grant defendants’ motion 2 to dismiss. 3 BACKGROUND 4 Plaintiff Hendrick Block initiated this action on November 25, 2020, alleging that 5 defendants violated the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. 6 (“ADA”), California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51–52 (“Unruh Act”), and 7 California Health and Safety Code §§ 19953, 19955–56, 19959. (Doc. No. 1 at ¶¶ 16–46.) In his 8 complaint plaintiff alleges as follows. Plaintiff “is substantially limited in his ability to walk, and 9 must use a cane, walker, wheelchair, or electric scooter for mobility.” (Id. at ¶ 8.) The defendant 10 Tribal Council is a federally recognized Indian Tribe, and along with defendant TREDC, the 11 defendants own and operate a business called the Eagle Feather Trading Post #2 (the “Facility”).2 12 (Id. at ¶¶ 1–2, 7.) Plaintiff visited defendants’ Facility on or about August 18, 2020 to purchase 13 beverages and snacks and encountered several physical and intangible barriers that interfered with 14 or denied his ability to “enjoy the goods, services, privileges and accommodations offered at the 15 Facility.” (Id. at ¶ 10.) These barriers included, among other things, poorly placed signage for 16 designated accessible parking stalls; uneven concrete leading to the Facility’s entrance; broken 17 tiles and flooring inside the Facility; a cluttered transaction counter; a toilet stall lacking 18 “sufficient clearances”; a difficult to grasp bathroom stall lock; and inoperable faucet controls. 19 (Id.) 20 On May 24, 2021, defendants filed the pending motion to dismiss for lack of subject 21 matter jurisdiction. (Doc. No. 15.) Defendants argue that they are immune from plaintiff’s 22 lawsuit under tribal sovereign immunity. (Doc. No. 15-1 at 5.) In support of defendants’ pending 23 motion, they included a declaration of Charmaine A. McDarment, the General Counsel to the 24 ///// 25 ///// 26 ///// 27 2 Based on plaintiff’s opposition brief, it appears that the Facility is a gas station with a 28 convenience store. (Doc. No. 17 at 2.) 1 Tule River Indian Tribe (the “Tribe”).3 (Doc. No. 15-2.) Attached to Ms. McDarment’s 2 declaration are the following exhibits: (i) a copy of the U.S. Bureau of Indian Affairs’ (BIA) list 3 of federally recognized Indian tribes from January 30, 2018 (Exhibit A); (ii) portions of the Tule 4 River Indian Tribe’s Constitution and Bylaws (Exhibit B); and (iii) several “approval documents” 5 purportedly evidencing that defendant TREDC is a federally-chartered corporation pursuant to 25 6 U.S.C. § 5124, wholly-owned and formed by the Tribe (Exhibit C). (Doc. No. 15-2 at ¶¶ 4–6.) 7 There were two different approval documents included in Exhibit C to Ms. McDarment’s 8 declaration. The first is an October 31, 2019 letter from the BIA to the Tribe’s chairman 9 informing the Tribe that the BIA had approved the federal charter of incorporation for defendant 10 TREDC. (Doc. No. 15-2 at 19–20.) Attached to the BIA’s October 31, 2019 letter was a signed 11 Certificate of Approval and a Charter of Incorporation for the Tule River Economic Development 12 Corporation (“charter of incorporation”). (Id. at 21–30.) The second approval document was a 13 resolution (Resolution No. FY2020-09) passed by the Tribe on November 12, 2019, which 14 acknowledged receipt of the October 31, 2019 BIA letter and documented defendant Tribal 15 Council’s approval of the federal charter for defendant TREDC. (Id. at 18–19.) 16 On June 22, 2021, plaintiff filed a brief in opposition to the pending motion to dismiss in 17 which he argued that defendants misconstrue Supreme Court precedent regarding tribal sovereign 18 immunity, that tribal sovereignty immunity cannot apply because it would mean plaintiff (and any 19 other disabled individual) could not sue to vindicate their civil rights, and that because plaintiff is 20 acting as a private attorney general—and tribal sovereign immunity does not protect tribes from 21 suit by the government—tribal sovereign immunity does not apply here. (Doc. No. 17.) Plaintiff 22 also included his counsel’s declaration with attached exhibits and a request for judicial notice in 23

24 3 Defendants moving papers clarify that the complaint “names the Tribal Council as a ‘federally recognized Indian Tribe,’ rather than naming the Tribe itself.” (Doc. No. 15-1 at 6 n.1.) As 25 defendants explained, “[defendant] Tribal Council is an elected governing body of the Tribe, not a separate entity.” (Id.) Plaintiff’s counsel responded in a declaration filed in support of her 26 opposition brief that defendant Tribe Council was named in the lawsuit because the deed for the 27 Facility “lists the grantee as ‘Tule River Tribal Council, a federally recognized Indian Tribe.’” (Doc. No. 17 at 3 n.1.) The court will address this issue further below, but the parties do not 28 contend that this discrepancy affects the court’s resolution of the pending motion. 1 support of his opposition to the pending motion to dismiss. (Doc. Nos. 17-1, 17-2, 17-3.) 2 Defendants filed their reply on June 29, 2021, contending that in his opposition plaintiff 3 misstates the holding of two Supreme Court decision on tribal sovereign immunity and that courts 4 have routinely rejected the other arguments advanced by plaintiff. (Doc. No. 19.) 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 7 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 8 claims alleged in the action. See Fed. R. Civ. P. 12(b)(1); see also Fed. R. Civ. P. 12(h)(3) (“If 9 the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss 10 the action.”). In a Rule 12(b)(1) motion, a defendant may either assert a “facial” challenge to the 11 federal court’s exercise of jurisdiction, or a “factual” one. Courthouse News Serv. v. Planet, 750 12 F.3d 776, 780 & n.3 (9th Cir. 2014) (“A ‘facial’ attack asserts that a complaint’s allegations are 13 themselves insufficient to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s 14 allegations, though adequate on their face to invoke jurisdiction, are untrue.”); see also Thornhill 15 Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Under a facial attack, 16 the court must consider the allegations of the complaint as true, whereas under a factual attack, 17 the court determines the facts for itself. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 18 2014). Here, defendants are asserting a factual challenge to the complaint because their pending 19 motion relies on a declaration and exhibits they have submitted which are not attached to 20 plaintiff’s complaint. (See Doc. No. 15-2.) 21 Defendants argue that they are immune from suit by virtue of their tribal sovereign 22 immunity. (See Doc. No. 15-1.) “The issue of tribal sovereign immunity is ‘quasi jurisdictional’ 23 in the sense that it ‘may be asserted at any time.’” Barron v. Alaska Native Tribal Health 24 Consortium, 373 F. Supp. 3d 1232, 1237 (D. Alaska 2019) (quoting Pistor v. Garcia, 791 F.3d 25 1104, 1111 (9th Cir. 2015)). “Although sovereign immunity is only quasi-jurisdictional in nature, 26 Rule 12(b)(1) is still a proper vehicle for invoking sovereign immunity from suit.” Pistor, 791 27 F.3d at 1111; see also Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017) 28 (“A sovereign immunity defense is ‘quasi-jurisdictional’ in nature and may be raised in either a 1 Rule 12(b)(1) or 12(b)(6) motion.”). “In the context of a Rule 12(b)(1) motion to dismiss on the 2 basis of tribal sovereign immunity, ‘the party asserting subject matter jurisdiction has the burden 3 of proving its existence,’ i.e., that immunity does not bar the suit.” Pistor, 791 F.3d at 1111 4 (quoting Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013)). In resolving such a motion, “no 5 presumptive truthfulness attaches to a plaintiff’s allegations” and “a district court may hear 6 evidence regarding jurisdiction and resolve factual disputes where necessary.” Id. (internal 7 quotations and brackets omitted); see also Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th 8 Cir. 2014); Gregory Vill. Partners, L.P. v. Chevron U.S.A., Inc., 805 F. Supp. 2d 888, 895 (N.D. 9 Cal. 2011). 10 ANALYSIS 11 A. Tribal Sovereign Immunity 12 “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority 13 over their members and territories. Suits against Indian tribes are thus barred by sovereign 14 immunity absent a clear waiver by the tribe or congressional abrogation.” Jamul Action Comm. v. 15 Simermeyer, 974 F.3d 984, 991 (9th Cir. 2020) (quoting Okla. Tax Comm’n v. Citizen Band 16 Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991)); see also Michigan v. Bay Mills 17 Indian Cmty., 572 U.S. 782, 788–89 (2014) (“[W]e have time and again treated the ‘doctrine of 18 tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional 19 authorization (or a waiver).”). “In addition, there is a strong presumption against waiver of tribal 20 sovereign immunity, and any congressional abrogation of tribal sovereign immunity must be 21 unmistakably clear.” Grondal v. United States, 37 F.4th 610, ___, 2022 WL 2112793, at *5 (9th 22 Cir. June 13, 2022) (internal quotation omitted); see also Oertwich v. Traditional Vill. of Togiak, 23 29 F.4th 1108, 1117 (9th Cir. 2022) (“Accordingly, a court must find that Congress has spoken 24 ‘unequivocally’ to rescind tribal sovereign immunity in a particular scenario and a tribe only 25 waives its immunity if it does so expressly.” (internal citation omitted)). 26 “Critically, this ‘[t]ribal sovereign immunity extends to both the governmental and 27 commercial activities of a tribe, whether undertaken on or off its reservation.’” Grondal, 2022 28 WL 2112793, at *5 (quoting Jamul Action Comm., 974 F.3d at 991). “Tribal sovereign immunity 1 not only protects tribes themselves, but also extends to arms of the tribe acting on behalf of the 2 tribe.” White v. Univ. of California, 765 F.3d 1010, 1025 (9th Cir. 2014). As such, it is “settled 3 law” in the Ninth Circuit “that tribal corporations acting as an arm of the tribe enjoy the same 4 sovereign immunity granted to a tribe itself.” Dine Citizens Against Ruining Our Env’t v. Bureau 5 of Indian Affs., 932 F.3d 843, 856 (9th Cir. 2019) (quoting Cook v. AVI Casino Enterprises, Inc., 6 548 F.3d 718, 725 (9th Cir. 2008)); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1046 7 (9th Cir. 2006). To determine “whether an entity is entitled to sovereign immunity as an ‘arm of 8 the tribe,’” courts examine several factors including: 9 (1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including 10 the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) 11 the financial relationship between the tribe and the entities. 12 White, 765 F.3d at 1025 (quoting Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & 13 Resort, 629 F.3d 1173, 1187 (10th Cir. 2010)). 14 B. Whether Defendants Are Entitled to Tribal Sovereign Immunity 15 As an initial matter, the U.S. Department of Interior has recognized the Tule River Indian 16 Tribe (the “Tribe”) as a tribe under federal law. See 83 Fed. Reg. 4235-02 (Jan. 30, 2018), 2018 17 WL 582952; (Doc. No. 15-2 at 10). Defendants first contend that defendant TREDC satisfies the 18 test articulated by the Ninth Circuit to determine if it is an “arm of the tribe” entitled to tribal 19 sovereign immunity. (Doc. No. 15-1 at 9–12) (citing White, 765 F.3d at 1025). 20 The court agrees with defendants’ contention in this regard. Consideration and 21 application of the White factors results in the conclusion that defendant TREDC is an arm of the 22 Tribe. As argued in defendants’ pending motion, defendant TREDC is a federally chartered 23 corporation under 25 U.S.C. § 5124, wholly owned and formed by the Tribe, as documented in a 24 resolution adopted by the Tribe.4 (Doc. Nos. 15-1 at 10; 15-2 at 17–18) (Tribe’s Resolution No.

25 4 Under § 5124 “[t]he Secretary of the Interior may, upon petition by any tribe, issue a charter of incorporation to such tribe,” which “shall not become operative until ratified by the governing 26 body of such tribe.” 25 U.S.C. § 5124. This “charter may convey to the incorporated tribe the 27 power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal. . . , and such further powers as may be 28 incidental to the conduct of corporate business, not inconsistent with law[.]” Id. 1 FY2020-09 approving defendant TRDC’s charter of incorporation). Not only does the Tribe hold 2 “one-hundred percent of the voting stock issued in” defendant TREDC, but it also retains a host 3 of other rights, such as the right to all assets upon TREDC’s dissolution, the right to examine 4 TREDC’s books and records, and the exclusive right to amend TREDC’s charter of incorporation, 5 among other rights. (Id. at 11.) Quoting from defendant TREDC’s charter of incorporation, 6 defendants contend that TREDC’s purpose “is to generate income to create profits to be used to 7 supplement the revenues of the Tribal government, and to provide essential governmental 8 services to those within its jurisdiction, including for the health, education and welfare of tribal 9 members, infrastructure, and to further economic development.” (Id. at 10.) The charter of 10 incorporation also explicitly shows the Tribe’s intention to share its sovereign immunity with 11 defendant TREDC. (Id. at 11) (“The [TREDC] . . . shall be an instrumentality of the Tribe with 12 the same privileges and immunities under federal law as the Tribe . . . including . . . 13 immunity[.]”).5 The court has closely reviewed Ms. McDarment’s declaration and its attached 14 exhibits and finds that defendants’ representations on this issue are accurate and persuasive. (See 15 Doc. No. 15-2.) Thus, the court concludes that consideration of the factors noted above weigh in 16 favor of finding that defendant TREDC is an arm of the Tribe. See White, 765 F.3d at 1025 17 (finding the repatriation committee to be an arm of several tribes where it was created by 18 resolutions from each tribe, was fully funded by the tribes, and operated under a process dictated 19 by the tribes); Allen, 464 F.3d at 1047 (finding there was “little doubt” that a casino owned and 20 operated by tribe functioned as an arm of the tribe). 21 As for defendant Tribal Council, defendants contend that they have shown that defendant 22 Tribal Council is “an elected governing body of the Tribe, not a separate entity” because the 23 Tribe’s Constitution and Bylaws provide that defendant Tribal Council is “[t]he governing body 24 of the Tule River Tribe.” (Doc. Nos. 15-1 at 6 n.1; 15-2 at 14.) This showing indicates that 25 defendant Tribal Council is literally a subdivision of the Tribe itself, specifically, the Tribe’s 26 5 The charter of incorporation also provides that defendant TREDC has no power to waive 27 immunity on behalf of the Tribe and can only waive its own immunity if “it does so explicitly pursuant to resolution of the Board of Directors.” (Doc. No. 15-1 at 13.) No such resolution is 28 before the court, nor does plaintiff contend that one exists. 1 decision-making and governing body. Plaintiff does not dispute these facts, nor does he name 2 any members of the Tribal Council as defendants in his lawsuit. (See Doc. No. 17 at 2–3 & n.1.) 3 In fact, plaintiff even affirmatively alleges in his complaint that defendant Tribal Council is “a 4 federally recognized Indian Tribe.” (Doc. No. 1 at ¶ 2.) In his opposition to the pending motion 5 plaintiff states that he sued defendant Tribal Council because it was listed as the grantee on the 6 deed for the Facility. (See Doc. No. 17 at 3 n.1.) The court concludes that defendant Tribal 7 Council is no different than the Tribe itself, and is thus immune from plaintiff’s lawsuit under 8 tribal sovereign immunity.6 See Colmar v. Jackson Band of Miwuk Indians, No. 2:09-cv-0742- 9 DAD, 2011 WL 2456628, at *2 (E.D. Cal. June 15, 2011) (“[T]he inclusion of a group of Indians 10 on the Federal Register list of recognized tribes would ordinarily suffice to establish that the 11 group is a sovereign power entitled to immunity from suit.” (quoting Cherokee Nation of 12 Oklahoma v. Babbitt, 117 F.3d 1489, 1499 (D.C. Cir. 1997)). 13 In plaintiff’s opposition, he also does not challenge defendants’ evidence or arguments 14 that defendant TREDC is an arm of the tribe, that defendant Tribal Council is the Tribe itself (not 15 a separate entity), or that the Tribe or Congress did not waive tribal sovereign immunity. (See 16 Doc. No. 17). Instead, plaintiff seeks to carry his burden merely by arguing that tribal sovereign 17 immunity is limited to contractual claims and absent this suit, plaintiff would not have any other 18 remedy for the violation of his civil rights. (Id. at 4–6.) Alternatively, plaintiff contends his 19 private action should be treated the same as a suit brought by the federal government, which is 20 not barred from suing Indian tribes. (Id. at 6–7.) 21 Plaintiff first argues that Supreme Court precedent dictates that tribal sovereign immunity 22 is limited to contractual claims. (Id. at 4–5) (citing Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 23 523 U.S. 751 (1998) and Bay Mills, 572 U.S. 782). According to plaintiff, there is a 24 “fundamental” difference between the contractual claims at issue in Kiowa and Bay Mills and 25

6 Even if plaintiff intended to sue individual members of defendant Tribal Council, those 26 members are most likely also immune from this suit because tribal officials acting in their 27 capacity also enjoy tribal sovereign immunity. See Miller v. Wright, 705 F.3d 919, 928 (9th Cir. 2013) (“Tribal sovereign immunity extends to tribal officials when acting in their official capacity 28 and within the scope of their authority.”). 1 plaintiff’s disability-related civil rights claims here. (Id. at 15.) Notably, plaintiff contends he 2 “had no way of knowing” when he entered the Facility that it was owned by the Tribe and that 3 without this suit, he would have no recourse to vindicate his rights. (Id.) 4 The court finds that nothing in the two Supreme Court cases cited by plaintiff limits tribal 5 sovereign immunity to contract claims. It is true that Bay Mills and Kiowa both involved the 6 Court upholding tribal sovereign immunity in the context of tribe’s facing contractual claims; in 7 Kiowa, a private party sued a tribe in state court for defaulting on a promissory note; in Bay Mills, 8 the state of Michigan sued a tribe for violating a gaming compact. See Kiowa, 572 U.S. at 753– 9 54; Bay Mills, 572 U.S. at 785–86. Plaintiff also calls attention to a footnote in the Bay Mills 10 decision indicating that the Court has never “specifically addressed . . . whether immunity should 11 apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a 12 tribe, has no alternative way to obtain relief for off-reservation commercial conduct.” Bay Mills, 13 572 U.S. at 799 n.8. But as the Supreme Court also explained, “[t]he argument that such cases 14 would present a ‘special justification’ for abandoning precedent is not before us,” id. (emphasis 15 added), suggesting that current precedent would dictate no different outcome in the context of a 16 case involving non-contractual causes of action brought against a tribe. 7 Indeed, in the Bay Mills 17 decision the Supreme Court reiterated the longstanding precedent that the “baseline position . . . is 18 tribal immunity” and only when Congress unequivocally expresses a contrary purpose will that 19 immunity be abrogated. Bay Mills, 572 U.S. at 790; see also Kiowa, 523 U.S. at 754–55 (“As a 20 matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit 21 or the tribe has waived its immunity.” (emphasis added)). As such, plaintiff’s bare assertions that 22 this court should find a “special justification” for not applying tribal immunity here because the 23 7 Moreover, in Kiowa, the court noted that “[tribal] immunity can harm those who are unaware 24 that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims,” but nonetheless declined to “confine it to reservation or 25 to noncommercial activities.” Kiowa, 523 U.S. at 758 (“[W]e defer to the role Congress may wish to exercise in this important judgment.”). In fact, it was the dissenting opinion that 26 expressed the view, in part, that tribal immunity was “unjust . . . with respect to tort victims” 27 because “nothing in the Court’s reasoning limits the rule to lawsuits arising out of voluntary contractual relationships.” Id. at 766 (J., Stevens, dissenting). Thus, the Supreme Court’s 28 decision in Kiowa also strongly suggests that its holding was not limited to contractual claims. 1 Facility is in a “strategic location . . . miles away from any alternative gas station[s]” or that 2 plaintiff “will have no other remedy to enforce his civil rights,” are simply not relevant to 3 resolution of the legal issue posed by the pending motion.8 (Doc. No. 17 at 6.) In fact, since Bay 4 Mills, the Ninth Circuit has rejected plaintiff’s argument in the context of tort victims, noting that 5 it has “held that tribal sovereign immunity bars tort claims against an Indian tribe, and that 6 remains good law.” Arizona v. Tohono O’odham Nation, 818 F.3d 549, 562–63 & n.8 (9th Cir. 7 2016) (upholding the district court’s finding that plaintiffs’ claims for fraud in the inducement, 8 material misrepresentation, and promissory estoppel were barred by tribal sovereign immunity). 9 Without any evidence of Congressional abrogation or a tribal waiver, binding precedent 10 requires that this court uphold defendants’ invocation of tribal sovereign immunity. See Bay Mill, 11 572 U.S. at 785. Thus, plaintiff’s arguments to the contrary are unavailing.9 12 In the alternative, plaintiff contends that the federal government’s ability to sue Indian 13 tribes should extend to private attorney generals—i.e., private plaintiffs—enforcing the ADA. 14 (Doc. No. 17 at 6–7.) Plaintiff argues that the ADA’s broad purpose shows that Congress 15 intended that it apply to Indian tribes, including the public accommodations that they offer. (Id. 16 at 6.) Plaintiff then reasons that because private plaintiffs are an important enforcement 17 8 Accordingly, plaintiff’s request that judicial notice be taken of two Google maps showing the 18 Facility’s location in relation to the Tribe’s reservation and the next nearest gas station is denied 19 as having been rendered moot by this order. (Doc. No. 17-3.)

20 9 Plaintiff also relies on a district court decision that interpreted Kiowa as leaving open the question of tribal immunity as to noncontractual claims. (Doc. No. 17 at 5) (citing Hollynn D’Lil 21 v. Cher-Ae Heights Indian Cmty. of Trinidad Rancheria, No. 3:01-cv-01638-TEH, 2002 WL 33942761, at *5 (N.D. Cal. Mar. 11, 2002) (holding that tribal sovereign immunity did not bar an 22 ADA claim brought against an off-reservation inn owned by tribe)). First, the district court’s 23 decision in that case is not binding on this court. Second, it would appear that the holding in D’Lil is potentially suspect because the court in that case erroneously balanced the “strong federal 24 policy” in favor of enforcing the ADA against the tribe’s interest in sovereign immunity, concluding that tribal immunity did not apply to all noncontractual off-reservation conduct. See 25 D’Lil, 2002 WL 33942761, at *8. That conclusion, however, would appear to be at odds with the Supreme Court’s holding in Bay Mills that “Indian tribes have immunity even when a suit arises 26 from off-reservation commercial activity[.]” Bay Mills, 572 U.S. at 785. The undersigned finds 27 no basis in precedent for the court to engage in a balancing of competing interests in this context. On that basis, the undersigned does not find the decision in D’Lil to be persuasive and declines to 28 follow it in resolving the pending motion. 1 mechanism for the ADA, they are acting as the federal government itself and thus are not barred 2 by tribal sovereign immunity. (Id.) 3 Plaintiff’s somewhat novel argument in this regard also lacks merit. It is true that tribal 4 sovereign immunity does not protect Indian tribes from suits brought by the federal government. 5 See Quileute Indian Tribe, 18 F.3d at 1459–60. It is also true that, as a statute of general 6 applicability, Title III of the ADA (the portion of the ADA concerning public accommodations) 7 likely governs Indian tribes and tribe-run businesses. See Fla. Paraplegic, Ass’n, Inc. v. 8 Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1129–30 (11th Cir. 1999) (applying Ninth 9 Circuit authority in concluding that Title III of the ADA applies to Indian tribes, but also holding 10 that nothing in the ADA expressed Congress’ intent to abrogate tribal sovereign immunity). 11 Nonetheless, plaintiff has failed to cite any authority for the proposition that plaintiffs’ suing 12 under Title III of the ADA are entitled to the same status as the federal government when 13 bringing an action against an Indian tribe. Notably, plaintiff’s argument ignores binding 14 precedent: “Indian tribes have immunity even when a suit arises from off-reservation commercial 15 activity,” absent an unequivocal expression of Congressional abrogation or tribal waiver. Bay 16 Mills, 572 U.S. at 785; see also Grondal, 2022 WL 2112793, at *5. Here, plaintiff does not assert 17 that there has been abrogation or waiver of tribal sovereign immunity, let alone even suggest a 18 showing that would carry his burden in that respect. Finally, courts that have examined whether 19 Congress expressed its clear intent to abrogate tribal sovereign immunity for plaintiffs filing 20 actions under Title III of the ADA have concluded that Congress did not do so. See Fla. 21 Paraplegic, 166 F.3d at 1131–34 (concluding “that Congress did not contemplate that Indian 22 tribes would be subject to private lawsuits for violating Title III of the ADA”); Drake v. Salt 23 River Pima-Maricopa Indian Cmty., 411 F. Supp. 3d 513, 520 (D. Ariz. 2019) (holding that a 24 plaintiff’s claims brought under the ADA, as well as state law claim, were barred by tribal 25 sovereign immunity where there was no clear waiver from Congress or the tribe itself). The 26 ///// 27 ///// 28 ///// 1 | court therefore finds that plaintiff's argument in this regard is unavailing.'® 2 For the foregoing reasons, the court concludes that plaintiff has failed to carry his burden 3 | to show that the defendants are not entitled to tribal sovereign immunity. Accordingly, the court 4 | will grant defendants’ pending motion to dismiss. See People of State of Cal. ex rel. Cal. Dep’t of 5 | Fish & Game v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979) (“Sovereign 6 | immunity involves a right which courts have no choice, in the absence of a waiver, but to 7 || recognize.”). The court also will not grant plaintiff leave to file an amended complaint because 8 || the granting of such leave would be futile due to both named defendants immunity from suit. See 9 | Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). 10 CONCLUSION 11 For the reasons set forth above, the court grants defendants’ motion to dismiss (Doc. No. 12 | 15) without leave to amend. The Clerk of the Court is directed to close this case. 13 | IT IS SO ORDERED. □ 14 [1 @ 6 Dated: _ July 6, 2022 fe or 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 | ———_ 10 Tribal sovereign immunity also applies to plaintiff's state law claims because immunity is “a 25 matter of federal law not subject to diminution by states.” Bay Mills, 572 U.S. at 789. Thus, the 26 || State of California has no authority to abrogate defendants’ tribal immunity, nor is there any assertion or evidence by plaintiff that Congress abrogated tribal immunity with respect to the state 27 | law claims asserted here. See Drake, 411 F. Supp. 3d at 521 (dismissing state law claims because “[t]he same analysis that precludes Plaintiff’s federal claims also precludes her claims under state 28 | tort law”). 12