                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 15 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT

AMBER LANPHERE and PAUL M.                       No. 09-36035
MATHESON, individually, and on behalf
of others similarly situated,                    D.C. No. CV-09-05462-BHS

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

CHAD WRIGHT, Puyallup Tribe Tax
Department, Enforcement Officer, and the
PUYALLUP INDIAN TRIBE, a
recognized American Indian Tribe,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted July 13, 2010 **
                               Seattle, Washington

Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
       Plaintiffs Amber Lanphere and Paul Matheson appeal the district court’s

order dismissing, for failure to exhaust tribal remedies, this action against

Defendants Puyallup Indian Tribe and Chad Wright, head of the Puyallup Tribal

Tax Department, concerning the imposition by the Tribe of certain cigarette taxes

on non-Indians. Reviewing de novo, Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir.

2004), we affirm.

       Plaintiffs correctly state that exhaustion of tribal court remedies is not

required "when it is ‘plain’ that tribal court jurisdiction is lacking, so that the

exhaustion requirement ‘would serve no purpose other than delay.’" Elliott v.

White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir.) (quoting

Nevada v. Hicks, 533 U.S. 353, 369 (2001)), cert. denied, 130 S. Ct. 624 (2009).

The district court correctly held, however, that tribal court "jurisdiction is

‘colorable’ or ‘plausible,’" and, therefore, that tribal court jurisdiction is not plainly

lacking. Id. at 848 (internal quotation marks omitted). Plaintiffs voluntarily

availed themselves of the tribal court’s jurisdiction by filing these same claims

before that tribunal. See Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1140 (9th

Cir. 2006) (en banc) ("We hold that a nonmember who knowingly enters tribal

courts for the purpose of filing suit against a tribal member has, by the act of filing

his claims, entered into a ‘consensual relationship’ with the tribe within the


                                            2
meaning of Montana [v. United States, 450 U.S. 544 (1981)]."). Additionally,

Plaintiffs voluntarily engaged in commercial activities—the purchase and sale of

cigarettes—on tribal lands. See Montana, 450 U.S. at 565 (holding that tribal

courts have jurisdiction over nonmembers who enter into commercial dealings on

the reservation with the tribe or its members). For those reasons, tribal court

jurisdiction is plausible, and exhaustion of tribal court remedies is required. (At

this stage of the proceedings, we need not, and do not, decide definitively whether

the tribal courts have jurisdiction.)

      We reject Plaintiffs’ other contentions.

      AFFIRMED.




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