                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BENEDICT COSENTINO,                              No. 13-57113

              Petitioner - Appellant,            D.C. No. 5:13-cv-00912-R-OP

 v.
                                                 MEMORANDUM*
PECHANGA BAND OF LUISENO
MISSION INDIANS and PECHANGA
GAMING COMMISSION,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted February 3, 2016
                               Pasadena, California

Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.

      Benedict Cosentino, a former table games dealer at the Pechanga Casino,

appeals the district court’s order dismissing his petition to compel the Pechanga

Gaming Commission and the Pechanga Band of Luiseño Mission Indians (“the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Tribe”) to arbitrate his tort claims pursuant to the Federal Arbitration Act, 9 U.S.C.

§ 1, et seq. Because the Tribe did not waive its sovereign immunity as to

Cosentino’s claims, the district court correctly ruled that it lacked jurisdiction to

order arbitration. See Fed. R. Civ. P. 12(b)(1). We affirm the dismissal of this

action.

      Indian tribes possess common law immunity from suit, Michigan v. Bay

Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014), and may only be sued “where

Congress has authorized the suit or the tribe has waived its immunity,” Kiowa

Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). A tribe’s waiver of

immunity must be “clear.” C & L Enters., Inc. v. Citizen Band Potawatomi Indian

Tribe of Okla., 532 U.S. 411, 418 (2001) (citation omitted); see also Maxwell v.

County of San Diego, 697 F.3d 941, 953 (9th Cir. 2012) (“Waivers of tribal

sovereign immunity must be explicit and unequivocal.”).

      Section 10.2(d) of the Tribal-State Compact between the Tribe and the State

of California requires the Tribe to adopt and maintain a Tort Liability Ordinance

wherein the Tribe consents to suits to compel arbitration of certain tort clams.

Cosentino concedes that the Tribe’s existing Tort Liability Ordinance does not

waive the Tribe’s immunity to his suit, but claims that Section 10.2(d) of the

Compact itself waives the Tribe’s immunity.


                                            2
      The Tribe did not consent to Cosentino’s suit in the Compact; it merely

agreed to adopt an Ordinance waiving certain claims. Insofar as Cosentino is

arguing that the Tort Liability Ordinance failed to waive the Tribe’s sovereign

immunity to the extent required by the Compact, he lacks standing to make that

claim. See Compact § 15.1 (precluding third party suits to enforce the Compact).

Thus, construing the Compact as a whole, Compact § 10.2(d) memorializes certain

of the Tribe’s obligations to the State; it does not clearly waive the Tribe’s

immunity from third party suits. See C & L Enterprises, 532 U.S. at 418–20.

      AFFIRMED.




                                           3
