NORTHERN ARAPAHO TRIBE, Plaintiff - Appellant, v. SCOTT HARNSBERGER, Treasurer, Fremont County, Wyoming; EDMUND SCHMIDT, Director, Wyoming Department of Revenue and Taxation; DANIEL NOBLE, Administrator, Excise Tax Division, Wyoming Department of Revenue and Taxation, in their individual and official capacities, Defendants - Appellees, and UNITED STATES OF AMERICA; EASTERN SHOSHONE TRIBE, Third-Party-Defendants - Appellees.
No. 09-8098
United States Court of Appeals, Tenth Circuit
October 18, 2012
PUBLISH. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:08-CV-00215-CAB). Elisabeth A. Shumaker, Clerk of Court.
Martin L. Hardsocg, Deputy Attorney General, Cheyenne, Wyoming (Gregory Phillips, Attorney General, and David L. Delicath, Deputy Attorney General, Cheyenne, Wyoming, Brian T. Varn, Fremont County Attorney, and Jodi A. Darrough, Deputy Fremont County Attorney, Lander, Wyoming, with him on the briefs), for Defendants-Appellees.
Katherine J. Barton, Attorney, Environmental & Natural Resources Division, Department of Justice, Washington, D.C. (Ignacia S. Moreno, Assistant Attorney General, and Patricia Miller and Elizabeth A. Peterson, Attorneys, Environmental & Natural Resources Division, Department of Justice, Washington, D.C., with her on the brief), for Third-Party-Defendant-Appellee United States of America.
Kimberly D. Varilek, Attorney General for the Eastern Shoshone Tribe, Ft. Washakie, Wyoming (Donald R. Wharton, Native American Rights Fund, Boulder, Colorado, with her on the brief), for Third-Party-Defendant-Appellee Eastern Shoshone Tribe.
Before KELLY, EBEL, and HOLMES, Circuit Judges.
Plaintiff-Appellant, the Northern Arapaho Tribe (“Appellant” or “Northern Arapaho“), sued various state and county officials in Wyoming, seeking an injunction against the state‘s imposition of certain vehicle and excise taxes in an area that Appellant contends is Indian country. Appellant claimed that the state may not tax its members in Indian country, and that the Indian country status of the land was conclusively established by an earlier decision of the Wyoming Supreme Court. The district court dismissed the action with prejudice for failure to join a party under
I. BACKGROUND
A. The Wind River Indian Reservation
The Wind River Indian Reservation (“Reservation“) is situated in west-central Wyoming. It is occupied by Appellant and Third-Party Defendant-Appellee the Eastern Shoshone Tribe (collectively, the “Tribes“), who each possess an undivided one-half interest in the Reservation. Both Tribes are federally recognized. See 75 Fed. Reg. 60810, 60810, 60812 (Oct. 1, 2010). Although each tribe is regarded as an independent sovereign, the Tribes jointly govern many aspects of Reservation life. See N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 744 (10th Cir. 1987).
The Reservation was established in 1868 by treaty between the Eastern Shoshone and the United States, under the terms of which the Eastern Shoshone gave the United States some 44 million acres in what is now Colorado, Utah, Idaho, and Wyoming, in exchange for a reservation of about 3 million acres in what is now Wyoming. See Shoshone Tribe v. United States, 299 U.S. 476, 485 (1937). Ten years later, in 1878, the United States located the Northern Arapaho Tribe on the Reservation, without the Eastern Shoshone‘s consent. Id. at 487-88.
Since 1868, there have been three transactions by which the Eastern Shoshone, or the Tribes together, have ceded Reservation land to the United States. See In re The General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 83-84 (Wyo. 1988) (”Big Horn I“), aff‘d by an equally divided court sub nom. Wyoming v. United States, 492 U.S. 406 (1989) (per curiam), abrogated on other grounds by Vaughn v. State, 962 P.2d 149 (Wyo. 1998). For purposes of this case, the most relevant such transaction occurred in 1904 (“1904 Agreement“). In that year, the United States Indian Inspector, James McLaughlin, signed an agreement “with the Shoshone and Arapahoe tribes of Indians belonging on the Shoshone or Wind River Reservation in the State of Wyoming” to open an additional 1.4 million acres of the Tribes’ land to settlement. Act of March 3, 1905, ch. 1452, 33 Stat. 1016; accord Big Horn I, 753 P.2d at 84.
Some of this land is held in trust by the United States for the benefit of the Tribes,1 while some of this land is held in fee by other persons and entities.
B. The “Big Horn I” litigation
”Big Horn I” is a 1988 decision of the Wyoming Supreme Court that established, inter alia, priority of water rights along the Big Horn River in Wyoming. See 753 P.2d 76 (Wyo. 1988). The Tribes, the United States, and the State of Wyoming were all parties in that case. Among the final findings of the Wyoming Supreme Court in that case were that the Tribes had water rights dating back to the 1868 treaty establishing the Reservation, and that the cession of land under the 1905 Act had not clearly stripped the Tribes of their reserved water rights in the ceded lands. See id. at 90-94. That is, the Wyoming high court determined that there was a reserved water right for the Reservation that had not been abrogated by the 1905 Act. See id. at 93-94. For purposes of litigating that water rights case, the parties (the Tribes, the United States, and the State of Wyoming) entered into a “Stipulation Concerning the Boundaries of the Wind River Indian Reservation.” Aplt. App. at 946. The stipulation set forth “the exterior boundaries of the Wind River Indian Reservation” “for the purposes of this litigation only.” Id. The parties further agreed that “[t]his stipulation shall not affect the jurisdiction of any parties over lands within the exterior boundaries of the Reservation.” Id. at 959.
C. The present litigation
On September 30, 2008, Appellant brought suit in the District of Wyoming, seeking declaratory and injunctive relief against Defendants-Appellees Harnsberger, Noble, and Schmidt (“State and County Defendants“), who are county and state tax officials in Wyoming. Appellant claimed that the State and County Defendants’ imposition of vehicle registration and excise taxes on Indians living on fee lands in the 1905 Act Area violates Appellant‘s federal treaty and Constitutional rights. Appellant takes the position in this litigation that the 1905 cession of land did not affect the land‘s status as “Indian country,” as that term is defined in
The State and County Defendants, for their part, moved to dismiss this federal action under
The district court agreed, and dismissed the action with prejudice. In so doing, the district court also addressed a merits-related issue, concluding that Big Horn I had not conclusively established, for collateral estoppel purposes, the Indian country status of the 1905 Act Area. The Northern Arapaho appeals, arguing primarily that the district court erred by not according the Big Horn I litigation preclusive effect as to the Indian country status of the 1905 Act Area. Secondly, the Northern Arapaho argues that the district court should not have dismissed its claim under
II. DISCUSSION
A. Standard of review
Dismissal under
B. The district court did not abuse its discretion in dismissing the action under Fed. R. Civ. P. 19(b).
We agree that the Eastern Shoshone was an indispensable party under
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person‘s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person‘s absence may:
(i) as a practical matter impair or impede the person‘s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person‘s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person‘s absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
A finding of indispensability under
1. The Eastern Shoshone was required to be joined under Rule 19(a)
The district court‘s
this case.”4 Aplt. App. at 344-45. In its later order finally dismissing the case under
We agree with the district court that the Eastern Shoshone was a required party under
of both civil and criminal jurisdiction.“). If the area is Indian country, not only does the State of Wyoming lose jurisdiction (including criminal jurisdiction) over the area, but the Northern Arapaho and the Eastern Shoshone must assume greater jurisdiction over it. See, e.g.,
Moreover, the Eastern Shoshone is “so situated that disposing of the action in [its] absence may . . . leave an existing party“—namely the State of Wyoming—“subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”
It is true that in other cases we have declined to find a person to be an indispensable party where the possibility of inconsistent obligations was simply speculative. See Sac & Fox Nation of Mo., 240 F.3d at 1259 (“As noted above, nothing in the record indicates the possibility of additional lawsuits involving this same subject
matter. . . . ‘The key is whether the possibility of being subject to multiple obligations is real, an unsubstantiated or speculative risk will not satisfy the
In sum, the Eastern Shoshone has an interest in the litigation that could be harmed by proceeding in its absence, and proceeding in the absence of the Eastern Shoshone would also place the State of Wyoming at a substantial risk of incurring multiple inconsistent obligations. The Eastern Shoshone is therefore required to be joined under
In an effort to avoid this conclusion, the Northern Arapaho argue that the Eastern Shoshone should not be considered a required party because (1) the “public rights” exception to traditional joinder doctrine permits an action seeking to vindicate public rights to go forward in the absence of indispensable parties; and (2) “neighbor tribes” are not required parties when a tribe seeks declaratory and injunctive relief against state officials who infringe treaty rights. We reject these arguments in turn.
First, this is not a “public rights” case seeking to vindicate broadly applicable public rights, such as the prevention of unfair labor practices or administrative compliance with environmental protection statutes and regulations. See, e.g., S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 969 n.2 (10th Cir. 2008); Makah v. Verity, 910 F.2d 555, 559 n.6 (9th Cir. 1990); Nat‘l Licorice Co. v. NLRB, 309 U.S. 350, 363 (1940) (“In a proceeding so narrowly restricted to the protection and enforcement of public rights, there is little scope or need for the traditional rules governing the joinder of parties in litigation determining private rights.” (emphasis
rather the right to seek to have federal officials “follow statutory procedures in the future,” making the action “one that potentially benefits all who participate in the ocean fishery.” See id. at 559 n.6. Here, by contrast, Appellant seeks only to enforce its own, treaty-based rights; thus, the “public rights” exception recognized in, inter alia, National Licorice and Southern Utah Wilderness Alliance does not apply.
Second, the cases Appellant cites for the proposition that “neighbor tribes” whose treaty rights are potentially affected are not required parties when a tribe seeks declaratory and injunctive relief against state officials regarding treaty rights are wrongly characterized or inapposite. In Makah, the court upheld the district court‘s dismissal of the plaintiff tribe‘s treaty-based claims, finding that the absent tribes were necessary and indispensable. See Makah, 910 F.2d at 559. In Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118, 1130-31 (D. Minn. 1994), the district court found that absent, legally distinct bands of a tribe were not required parties in a dispute between one band and the state over treaty-based hunting, fishing, and gathering rights granted to the tribe by the United States, because it would result only in a declaration of the tribe‘s treaty rights vis-à-vis the state, and not the tribe‘s treaty rights vis-à-vis other tribes. But Mille Lacs did not present the situation here, where two distinct tribes possess an equal undivided interest in the same land, and the treaty right at issue implicates the very status of that land. The Northern Arapaho‘s treaty rights vis-à-vis the State of Wyoming are inseparable from the Eastern Shoshone‘s treaty rights. It is disingenuous to discuss this issue in terms of “neighbor tribes” when the Northern Arapaho and the Eastern Shoshone
are not “neighbors” occupying adjacent parcels of land but are effectively co-tenants occupying the same land.
2. It was not feasible to join the Eastern Shoshone
The district court held that sovereign immunity prevented joinder of the Eastern Shoshone, and that no exception to that immunity applies. Appellant does not dispute that the Eastern Shoshone is a sovereign entitled to immunity. Instead, Appellant argues that the Eastern Shoshone may be joined under Ex parte Young, 209 U.S. 123 (1908). We reject that argument.
The Eastern Shoshone Tribe is a federally recognized Indian tribe. See 75 Fed. Reg. at 60812. Indian tribes are regarded as sovereign and immune from suit. See Okla. Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991). Only a “clear waiver by the tribe or congressional abrogation” limits a tribe‘s sovereign immunity. Id. A waiver of tribal sovereign immunity “cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (internal quotation marks omitted).
Under Ex parte Young, 209 U.S. at 159-60, an exception to state sovereign immunity exists “for suits against state officials seeking to enjoin alleged ongoing violations of federal law.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011). This Court recently held that Ex parte Young‘s exception to state sovereign immunity is applicable to tribal sovereign immunity as
Young. However, Ex parte Young‘s exception to sovereign immunity is simply not applicable here. Appellant has not alleged that the Eastern Shoshone or any of its officials has violated federal law. Appellant makes its claim only against state and county officials in Wyoming. Appellant offers no explanation as to how the doctrine of Ex parte Young permits a sovereign to be joined against its will in a suit that does not allege that the sovereign (or its officials), as opposed to someone else, violated federal law.
Thus, the district court correctly held that the Eastern Shoshone is a sovereign and not amenable to suit, and that no exception to sovereign immunity permits its joinder. The Eastern Shoshone could not, therefore, feasibly be joined.
3. The district court did not abuse its discretion in determining that “equity and good conscience” required the case to be dismissed under Fed. R. Civ. P. 19(b)
Having concluded that the Eastern Shoshone was a required party that could not feasibly be joined by virtue of its sovereign immunity, the district court examined the
a. Factor 1: There would be prejudice to existing parties and absent persons
“This prejudice test is essentially the same as the inquiry under
b. Factor 2: The prejudice cannot be lessened or avoided
c. Factor 3: The judgment would not be adequate in the absence of the Eastern Shoshone
argue that the factor is irrelevant because any prejudice to the [absent person] is not legally cognizable. As previously discussed, this argument goes to the merits of their claim, rather than the potential harm to the [indispensable party] if Defendants lose. Their challenge, therefore, must fail.“).
“complete, consistent, [or] efficient,” Patterson, 390 U.S. at 111, about the settlement of this controversy if the State of Wyoming were required to relitigate the issue with the Eastern Shoshone, with potentially different results. This factor, therefore, weighs in favor of dismissal.
d. Factor 4: Plaintiff‘s lack of adequate remedy is not dispositive
Under
district court‘s concern with “partial” resolution. The question is not whether determining the Indian country status of the 1905 Act Area would wholly settle its Indian country status. It is a question of whether a judgment based on that determination, rendered in the absence of the Eastern Shoshone, would wholly settle the underlying dispute over the state‘s power to tax in the 1905 Act Area.
Makah, 910 F.2d at 560 (“[L]ack of an alternative forum does not automatically prevent dismissal of a suit. Sovereign immunity may leave a party with no forum for its claims.” (citations omitted)). Although this factor weighs in favor of not dismissing the action, it does not outweigh the other three factors, all of which support dismissal.
In sum, the district court did not abuse its discretion in deciding that the balance of
4. Dismissal should have been without prejudice
Although we hold that the district court did not abuse its discretion in dismissing the action on indispensable-party grounds, the district court‘s disposition was not an adjudication on the merits. See
an adjudication on the merits, and thus, should not have preclusive effect--i.e., such a dismissal should be without prejudice.“); Murphy v. Klein Tools, Inc., 935 F.2d 1127, 1128 (10th Cir. 1991) (per curiam) (“We agree that when the preclusive effects of federal court dismissal decisions are at issue,
Accordingly, we VACATE the district court‘s dismissal of the action with prejudice and REMAND with instructions to dismiss the action without prejudice.
C. Whether it was necessary for the district court to opine on the preclusive effect, if any, of Big Horn I
In dismissing this action, the district court first discussed the preclusive effect of Big Horn I, concluding that it had not conclusively established that the 1905 Act Area was Indian country. The district court addressed this merits-related question because Appellant sought to make the preclusive effect of Big Horn I relevant not just to the central merits issue (i.e., whether the state could tax in the 1905 Act Area), but also to the joinder question under
Before this Court, the Eastern Shoshone and the United States argue that it was unnecessary for the district court to rule on Big Horn I‘s preclusive effect on the question of the Indian country status of the 1905 Act Area. Even assuming arguendo that the Eastern Shoshone has standing to raise such an argument, it is unnecessary for us to reach this issue. Presumably, the Eastern Shoshone would like this Court to vacate that portion of the district court‘s order, as it requested in its motion to alter or amend the judgment, below. However, the Eastern Shoshone has not appealed the district court‘s denial of that motion, and it is unclear what exactly the Eastern Shoshone would have this Court do, even if we agreed that the district court should not have reached the question. To the extent that the Eastern Shoshone is concerned about being collaterally estopped from litigating the issue of Big Horn I‘s preclusive effect in the future, that fear seems unfounded. Collateral estoppel bars relitigation of a specific issue only when certain conditions are met:
(1) The issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) The party against whom estoppel was sought was a party to or was in privity with a party to the prior proceeding; (3) There was a final judgment on the merits in the prior proceeding; (4) The party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding.
Nichols v. Bd. of Cnty. Comm‘rs, 506 F.3d 962, 967 (10th Cir. 2007) (emphasis added). The Eastern Shoshone was not properly a party to the proceedings below in this case, and it did not have a full and fair opportunity to litigate the issue. This alone would appear to foreclose the applicability of collateral estoppel. Moreover, our conclusion that the
dismissal under
III. CONCLUSION
For the foregoing reasons, we find no abuse of discretion in the district court‘s dismissal of the action on the grounds that the Eastern Shoshone was an indispensable party, and therefore AFFIRM. But we VACATE the judgment to the extent that it dismissed the action with prejudice, and REMAND with instructions to dismiss the action without prejudice. We express no opinion on the preclusive effect of Big Horn I.
Appellant‘s Rule 27.2(A) motion for summary disposition or remand is DENIED as moot.
Notes
the term “Indian country“, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.