United States District Court, W.D. Washington, at Tacoma.

Dotti CHAMBLIN, Plaintiff,

v.

Timothy J. GREENE, Chairman of the Makah?Tribal?Council, Honorable John Haupt, Chief Judge of the Makah?Tribal?Court, Morisset, Schlosser, Jozwiak & Somerville, A Professional Service Corporation, Defendants.

No. C14?5491 BHS.

Signed Sept. 2, 2014.

Dotti Chamblin, Neah Bay, WA, pro se.

Francis R. Jozwiak, Rebecca Jch Jackson, Morisset Schlosser Jozwiak & Somerville, Seattle, WA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

BENJAMIN H. SETTLE, District Judge.

*1?This matter comes before the Court on Defendants Timothy Greene, Honorable John Haupt, and Morisset, Schlosser, Jozwiak & Somerville's (“Defendants”) motion to dismiss (Dkt.5). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff Dotti Chamblin is a member of the Makah?Tribe?(“Tribe”), as well as a patient at the?Tribe's?Health Clinic (“Clinic”). Dkt. 5, Declaration of Rebecca JCH Jackson (“Jackson Dec.”), Ex. 4; Dkt. 6 at 1.

On January 3, 2014, the Clinic's Health Director, Elizabeth Buckingham (“Buckingham”), filed a petition for an order of protection against Plaintiff. Jackson Dec., Ex. 2. In the petition, Buckingham alleged that Plaintiff made threats against a Clinic staff member.?Id.?at 18. That same day, the Makah?Tribal?Court (“Tribal?Court”) granted a temporary order of protection. Jackson Dec., Ex. 3.

On January 8, 2014, the Clinic sent Plaintiff a notice of suspension of nonemergency services under the Clinic's Violent Patient Policy. Jackson Dec., Ex. 4. The notice explained that Plaintiff could only use the Clinic for emergency medical care with a police escort.?Id.?at 23. The notice also explained how Plaintiff would obtain her regular nonemergency treatment.?Id.

On April 28, 2014, the Clinic voluntarily moved to dismiss its petition for an order of protection. Jackson Dec., Ex. 1. The?Tribal?Court granted the Clinic's motion.?Id.

Plaintiff appealed the?Tribal?Court's order. Jackson Dec., Ex. 5. On June 16, 2014, the Makah Court of Appeals dismissed Plaintiff's appeal for lack of jurisdiction.?Id.?In its decision, the Makah Court of Appeals explained that Plaintiff was not an aggrieved party because the petition against her was dismissed.?Id.

On June 20, 2014, Plaintiff, appearing pro se, sued the Defendants in this court. Dkt. 1. Plaintiff alleges that the issuance of the restraining order violates various provisions of the?Indian?Civil Rights Act (“ICRA”).?Id.?at 4?5.

On July 11, 2014, Defendants filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), failure to state a claim under Rule 12(b)(6), and ineffective service of process under Rule 12(b)(5). Dkt. 5. On July 23, 2014, Plaintiff responded by filing a “Motion to Court to Accept Case.” Dkt. 6. On August 8, 2014, Defendants replied. Dkt. 8.

II. DISCUSSION

Plaintiff alleges claims under the ICRA. Dkt. 1 at 4?5. Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's claims. Dkt. 5 at 4. In response, Plaintiff argues that the Court has jurisdiction under the ICRA, the Treaty of January 31, 1855 (“Treaty”), and Article VI, Clause 2 of the U.S. Constitution. Dkt. 6 at 1?2.

Rule 12(b)(1) provides for dismissal of claims if the court lacks subject matter jurisdiction. Jurisdiction is a threshold issue that should be addressed before considering the merits.?Steel Co. v. Citizens for a Better Env't,?523 U.S. 83, 94?96, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998);?Retail Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC,?339 F.3d 1146, 1148 (9th Cir.2003). The burden falls on the plaintiff to establish that jurisdiction is proper.?Kokkonen v. Guardian Life Ins. Co.,?511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). If the court finds that it lacks subject matter jurisdiction, then it “must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

*2?Here, the Court lacks jurisdiction under the ICRA and the Treaty. Federal courts only have jurisdiction under the ICRA to hear claims against?tribes?in habeas corpus proceedings.?See?25 U.S.C. ? 1303;?Santa Clara?Pueblo?v. Martinez,?436 U.S. 49, 67?70, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Plaintiff, however, has not filed a habeas petition. Moreover, the ICRA “does not impliedly authorize actions for declaratory or injunctive relief against either the?tribe?or its officers.”?Martinez,?436 U.S. at 72. Similarly, the Treaty does not create an implied cause of action for individualtribal?members against the?Tribe?or its officers.?See?Treaty with the Makah?Tribe, Jan. 31, 1855, 12 Stat. 939. Thus, neither the ICRA nor the Treaty confer jurisdiction on the Court in this case.

The Court also lacks jurisdiction under Article VI, Clause 2 of the U.S. Constitution. Article VI, Clause 2 does not confer jurisdiction on the Court or give rise to Plaintiff's claims.?See?U.S. Const. art. VI, cl. 2.

Finally, Defendants Greene and Haupt are?tribal?officers who are immune from suit.FN1?Sovereign immunity bars suits against?tribes?unless Congress has authorized the suit or a?tribe?has waived its immunity.?Martinez,?436 U.S. at 58?59. Waivers of sovereign immunity must be express and unequivocable.?Id.?at 58. Sovereign immunity also extends to?tribal?officials acting within the scope of their authority.?Linneen v. Gila River?Indian?Cmty.,?276 F.3d 489, 492 (9th Cir.2002).

FN1. The ICRA applies to?tribes?acting in their governmental capacity.?See?25 U.S.C. ? 1302(a). Accordingly, the ICRA does not apply to Defendant Morisset, Schlosser, Jozwiak & Somerville, a non-tribal?law firm. Jackson Dec. at 2.

In this case, Defendants Greene and Haupt acted within the scope of their authority. Defendant Haupt performed his job as the?Tribal?Court's Chief Judge when he dismissed the Clinic's petition for an order of protection.?See?Jackson Dec., Ex 1. This act is within the scope of Defendant Haupt's authority. Meanwhile, Defendant Greene was not involved in either the?Tribal?Court proceedings or the Clinic's administrative action. Dkt. 8, Declaration of Timothy J. Greene at 2. Additionally, the Clinic's petition for an order of protection did not waive Defendant Greene's or Defendant Haupt's sovereign immunity for claims brought by Plaintiff in federal district court.?See Okla.?Tax Comm'n v. Citizen Band Potawatomi?Indian?Tribe,?498 U.S. 505, 510, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (“Tribe?did not waive its sovereign immunity merely by filing an action for injunctive relief.”). Plaintiff's claims against Defendants Greene and Haupt are therefore barred by sovereign immunity.

Because the Court does not have jurisdiction over Plaintiff's claims, Defendants' motion to dismiss on this issue is granted.

III. ORDER

Therefore, it is hereby?ORDERED?that the Defendants' motion to dismiss (Dkt.5) is?GRANTED,?and the Clerk shall close the case.