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Quinault Indian Nation v. Pearson

United States Court of Appeals, Ninth Circuit

August 29, 2017

Quinault Indian Nation, Plaintiff-Appellee,
v.
Mary Linda Pearson, Administrator Ad Prosequendum for the estate of Edward A. Comenout, Defendant-Appellant. Quinault Indian Nation, Plaintiff-Appellee,
v.
Mary Linda Pearson, Administrator Ad Prosequendum for the estate of Edward A. Comenout, Defendant, and Robert R. Comenout, Sr., Defendant-Appellant.

          Submitted June 9, 2017 [*] Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington D.C. No. 3:10-cv-05345-BHS, Benjamin H. Settle, District Judge, Presiding

          Robert E. Kovacevich, Spokane, Washington; Randal B. Brown, Covington, Washington; Aaron L. Lowe, Spokane, Washington; for Defendants-Appellants.

          Rob Roy Smith, Kilpatrick Townsend & Stockton LLP, Seattle, Washington, for Plaintiffs-Appellees.

          Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY[**]

         Tribal Sovereign Immunity

         In an action brought by the Quinault Indian Nation alleging a scheme to defraud the Nation of cigarette taxes, the panel affirmed the district court's dismissal of counterclaims as barred by the Nation's sovereign immunity.

         The panel held that if brought in a separate suit against the Nation, the counterclaims would be barred by sovereign immunity. Asserting the claims as counterclaims did not change the sovereign-immunity analysis. The panel concluded that the Nation did not waive its sovereign immunity because it filed the underlying suit but took no further action that unequivocally waived its immunity to the counterclaims, and the counterclaims did not qualify as claims for recoupment.

          OPINION

          McKEOWN, Circuit Judge

         Once again, the issue of tribal sovereign immunity and cigarette taxes is back in the federal courts. In this iteration, the Quinault Indian Nation (the "Nation") sued Edward A. Comenout, Jr.; Robert R. Comenout, Sr.; and other defendants for engaging in a scheme to defraud the Nation of taxes. When the Nation later asked the district court to dismiss its action, Edward's estate (the "Estate") sought to keep the litigation alive, asserting that maintaining the suit was necessary to litigate its counterclaims against the Nation.

         The district court dismissed the counterclaims as barred by the Nation's sovereign immunity. Because the court correctly held that the Nation retains its sovereign immunity as to the counterclaims, these claims were properly dismissed. We agree that the Estate cannot hold up dismissal of the suit. We affirm.

         Background

         Edward Comenout, now deceased, was an enrolled member of the Quinault Indian Nation, a federally recognized Indian tribe. Beginning in 1971, he operated a convenience store, the Indian Country Store, on land held in trust by the United States in Puyallup, Washington. The store, which is now run by his brother Robert Comenout, sells cigarettes and tobacco products.

         For years, the Comenouts have been embroiled in litigation about whether they must pay cigarette taxes. They have contested the authority of the State of Washington and the Nation to tax them at every turn. For example, in criminal proceedings initiated in 2008, they contended that they are exempt from Washington's cigarette tax, but the Washington Supreme Court disagreed. State v. Comenout, 267 P.3d 355, 358 (Wash. 2011).[1] Similarly, in litigation with the Nation, including the lawsuit on appeal here, the Comenouts have continually disputed the Nation's ability to collect cigarette taxes pursuant to an agreement with Washington. See, e.g., ...


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