Ingrassia v. Chicken Ranch Bingo and Casino, 2009 WL 5030658 (E.D. Cal. 2009)
A photographer took pictures of members of a Native American tribe and printed them on hats, shirts and souvenirs. The tribe purchased the merchandise for resale for a number of years. The photographer allegedly discovered that the tribe was producing and distributing unauthorized copies of the merchandise. The photographer brought a claim for copyright infringement in state court (the relevance of which will appear later). The tribe removed the case to federal court because federal courts have exclusive jurisdiction over claims arising under the Copyright Act.
Tribal sovereign immunity
The tribe argued that the copyright claim was barred by sovereign immunity. The Court provided a nice outline of tribal sovereign immunity. A couple of excerpts:
“Suits against Indian tribes are … barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Stock West Corp. v. Lujan, 982 F.2d 1389, 1398 (9th Cir.1993).
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Tribal sovereign immunity applies in both federal and state courts. Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983), citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). “The immunity … extends to suits for declaratory and injunctive relief,” and “is not defeated by an allegation that [the tribe] acted beyond its powers.” Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir.1991). Tribal sovereign immunity is not dependent on a distinction between on-reservation and off-reservation conduct nor is it dependent upon a distinction between the governmental and commercial activities. Kiowa Tribe v. Manufacturing Techs., 523 U.S. 751, 754-55, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). A tribe’s sovereign immunity extends both to tribal governing bodies and to tribal agencies which act as an arm of the tribe. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir.2006). Tribal sovereign immunity extends to tribal officials when acting in their official capacity and within the scope of their authority but not to individual tribe members generally. United States v. Oregon, 657 F.2d 1009, 1013 n. 8 (9th Cir.1981).
The plaintiff argued that  Congress abrogated immunity in the Copyright Act,  the tribal-state compact waives immunity,  the contract between the photographer and the tribe waives immunity, and  the defendant waived immunity by removing the case to federal court. The Court rejected the first three arguments perfunctorily but there were fireworks on whether the tribe waived immunity by removing the case to federal court. The Court ultimately found that the tribe didn’t waive immunity by removing the case. The Court, however, overtly stated that the plaintiff had more than a puncher’s chance on appeal because precedent on the issue was inconsistent:
At this point, the case law is not absolutely clear whether tribal sovereign immunity is more like the immunity enjoyed by the states or by foreign sovereigns in the circumstance of removal. There are a number of cases in which courts have applied tribal sovereign immunity after removal without addressing the issue. See New York v. Shinnecock Indian Nation, 280 F.Supp.2d 1, 8 (E.D.N.Y.2003); Maynard v. Narrangansett Indian Tribe, 798 F.Supp. 94 (D.R.I.1992); Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 1997 U.S. Dist. LEXIS 21776 (W.D.Mo. Nov. 19, 1997). In other cases where tribes removed, courts have pierced immunity but not based on waiver from removal. See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980). These cases, in conjunction with Sonoma Falls, leads to the conclusion that removal to federal court does not waive tribal sovereign immunity. However, the issue is not settled and appeal may be fruitful for Plaintiffs.
Federal courts sometimes state that they lack subject matter jurisdiction when they find they can’t hear a case because of sovereign immunity. 28 U.S.C. 1447(c) states that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” The question then became, was the court required to follow 1447(c) strictly and remand the case back to state court even if the state court lacked subject matter jurisdiction. The Court found that it could dismiss the case without remand:
Sovereign immunity is commonly termed an issue of subject matter jurisdiction, but some courts have found that, “sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction.” Kreig v. Prairie Island Dakota Sioux, 21 F.3d 302, 305 (8th Cir.1994). It is not clear whether the language of Section 1447(c) mandates remand in cases where the “subject matter jurisdiction” lacking is an assertion of sovereign immunity. Further, the Ninth Circuit has recognized a futility exception when subject matter jurisdiction is lacking, stating, “Where the remand to state court would be futile, however, the desire to have state courts resolve state law issues is lacking. We do not believe Congress intended to ignore the interest of efficient use of judicial resources…. District court resolution of the entire case prevents any further waste of valuable judicial time and resources. The district court correctly denied the motion to remand and dismissed the state claims.” Bell v. City of Kellogg, 922 F.2d 1418, 1424-25 (9th Cir.1991); accord Herman v. Salomon Smith Barney, Inc., 266 F.Supp.2d 1208, 1213 (S.D.Cal.2003); Dale v. IRS, 2001 U.S. Dist. LEXIS 7013, *7 (E .D. Cal. April 27, 2001). In this case, the state court would not have jurisdiction over Defendants if the federal court does not. No party has asked for remand in this case and it appears that remand would be futile. The case will be dismissed.