Ronald J. WOPSOCK, Luke J. Duncan, Cassandra Kochamp, Plaintiffs-Appellants, v. Millicent Maxine NATCHEES, in her individual capacity and in her official capacity as Chairperson of the Tribal Business Committee of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation; T. Smiley Arrowchis, in his individual capacity and in his official capacity as Vice-Chairman of the Tribal Business Committee; O. Roland McCook, Sr., Richard Jenks, Jr., in their individual and their official capacities as Members of the Tribal Business Committee; Carl J. Artman, in his official capacity as Assistant Secretary-Indian Affairs, United States Department of the Interior; Diane Peltier, in her individual capacity and official capacity as the Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs; John P. Jurrius, in his individual capacity; Dirk Kempthorne, Secretary of the Interior; Susan Hammer, in her individual capacity; Allen Anspach, Regional Director, Western Regional Office, Bureau of Indian Affairs, Defendants-Appellees.
No. 06-4215.
United States Court of Appeals, Tenth Circuit.
May 23, 2008.
279 Fed. Appx. 679
ORDER AND JUDGMENT *
*MICHAEL R. MURPHY, Circuit Judge.
I. Introduction
This case centers on a dispute over the membership on the Business Committee1 of the Ute Indian Tribe of the Uintah and Ouray Reservation and the financial management of the Tribe‘s assets. Ronald Wopsock, Luke Duncan and Cassandra Kochamp,2 enrolled members of the Ute Indian Tribe, filed an eight-count complaint in United States District Court for the District of Utah against various private parties and tribal and federal officials. The plaintiffs allege two ordinances passed by the Business Committee impermissibly amended the Tribe‘s constitution, giving rise to various federal claims. The first amended complaint alleged, inter alia, violations of the Indian Reorganization Act (IRA) and conspiracy to violate plaintiffs’ civil rights. The district court dismissed all claims and denied the plaintiffs’ motion to amend their complaint. Exercising jurisdiction pursuant to
II. Background
The Ute Tribe was organized under a constitution and bylaws adopted pursuant to the IRA. The IRA, passed in 1934, gives Indian tribes the right to organize pursuant to a constitution and bylaws that become effective when ratified by the tribal members in an election authorized and called by the Secretary of the Interior (Secretary) and subsequently approved by the Secretary.
Wopsock and Duncan were members of the Business Committee when the Tribe entered into a financial consulting agreement with defendant John Jurrius. Wopsock and Duncan became dissatisfied with Jurrius’ management of the Tribe‘s assets. Wopsock and Duncan filed an action in United States District Court for the District of Utah against the BIA, alleging violations of statutes governing the management of tribal assets and a general breach of trust claim for failure to intervene and investigate the management of the Tribe‘s assets.4
Shortly after the initiation of the lawsuit, the Business Committee passed two resolutions expelling Wopsock and Duncan from the Committee. The Business Committee explained in the resolution effectuating the expulsions that its actions were taken in response to the lawsuit filed by the plaintiffs. After expelling Wopsock and Duncan, the Business Committee enacted Ordinance 03-002, which barred any member who had been expelled from the Business Committee from running as a candidate for the Committee for a period of four years. Later, in response to a petition to recall Business Committee Chairperson Millicent Maxine Natchees, the Committee enacted Ordinance 03-004, which imposed additional procedural requirements on recall petitions and effectively quashed the attempt to recall Natchees.
BIA Superintendent Chester Mills approved Ordinance 03-002 and Ordinance 03-004 (Ordinances) shortly after their passage. The plaintiffs filed an appeal of the approval with the Western Regional Director of the BIA, Wayne Nordwall. Before Nordwall acted, Mills received a letter from Natchees requesting he vacate his approval of the Ordinances because the Committee had concluded BIA approval was not needed. Nordwall, after considering the letter, agreed the Ordinances did not require BIA approval and Mills’ approval had no effect on their validity. Furthermore, he noted that although the BIA had previously approved election ordinances, it would no longer do so. Mills then informed the Business Committee that he was vacating his approval of the Ordinances.
Nordwall dismissed the plaintiffs’ appeals of Mills’ approval of the Ordinances on the grounds that the Tribe had sole authority over the Ordinances and Mills’ approval had no effect. The plaintiffs appealed that dismissal to the Interior Board of Indian Appeals (IBIA). Before the IBIA reached a conclusion, the plaintiffs filed the instant suit in United States District Court for the District of Utah.5 The suit named as defendants the members of the Business Committee who participated in the expulsion, including Chairperson
The plaintiffs brought eight counts in their first amended complaint. Counts 1 and 2 alleged the tribal defendants violated the IRA in passing the Ordinances.
In the district court, the plaintiffs sought a temporary restraining order or a preliminary injunction to prevent the tribal defendants from enforcing Ordinance 03-002 and to permit Wopsock and Duncan to run for Business Committee seats in the upcoming election. The district court denied the request and the plaintiffs appealed to this court. In an unpublished order, this court held that we lacked jurisdiction over the appeal and transferred the appeal to the Federal Circuit because
The defendants then filed motions to dismiss and a motion for summary judgment in the district court. The day before the district court‘s planned hearing on the merits of the motions, and after the completion of briefing by all parties, the plaintiffs filed a motion to amend their first amended complaint pursuant to
The district court entered a memorandum and order granting the defendants’ motions to dismiss and motion for summary judgment and denying the plaintiffs’
The plaintiffs appealed the district court‘s decision to the Federal Circuit. The Federal Circuit examined its jurisdiction over the appeal. Wopsock, 454 F.3d at 1331. In so doing, it noted that it has jurisdiction over appeals when the district court‘s jurisdiction is based, at least in part, on the Little Tucker Act. Id. The Little Tucker Act,
The Federal Circuit determined that none of the statutes pleaded by the plaintiffs mandated compensation by the federal government for the claimed injuries. Wopsock, 454 F.3d at 1332-33. In particular, it held the IRA does not grant the Secretary a comprehensive managerial role, but only requires her to call and hold an election after receipt of a tribal request. Id. at 1332. Thus, the Federal Circuit determined that no money-mandating statute was pleaded by the plaintiffs and directed the appeal be transferred to this court. Id. at 1333-34.
III. Discussion
The plaintiffs challenge the dismissal of Counts 1, 2, 3, 4 and 8. At oral argument the plaintiffs’ counsel acknowledged they were not pursuing Counts 5 and 6 in this appeal. Counsel further conceded that Count 7, the Bivens claim, was not viable in light of the Supreme Court‘s recent decision in Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The plaintiffs also appeal the district court‘s denial of the motion to amend the complaint.
A. Claims against the tribal defendants under the IRA (Counts 1 and 2)
The tribal defendants claim Counts 1 and 2 must be dismissed for lack of jurisdiction over the tribal defendants in their official capacity. “Due to their sovereign status, suits against tribes or tribal officials in their official capacity are barred in the absence of an unequivocally expressed waiver by the tribe or abrogation by Congress.” Dry v. United States, 235 F.3d 1249, 1253 (10th Cir.2000) (quotation omitted). Congressional waivers of tribal sovereign immunity must be unequivocally expressed. Osage Tribal Council ex rel. Osage Tribe of Indians v. United States Dept. of Labor, 187 F.3d 1174, 1181 (10th Cir.1999). “We review de novo the legal question of when a party can assert sovereign immunity.” Sac and Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.1995).
Here, the plaintiffs have not argued that the tribal defendants waived their sovereign immunity. Neither do they point to language in the IRA abrogating a tribe‘s immunity from suit. The plaintiffs instead
This court, however, has held that where “the relief requested by [i]ndividual [p]laintiffs, concerning rights to vote in future tribal elections and hold tribal office, if granted, would run against the Tribe itself, the Tribe‘s sovereign immunity protects these defendants in their official capacities.” Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997). In Fletcher, the plaintiffs brought suit in federal district court alleging that restrictions on the right to vote in tribal elections violated the Due Process Clause of the Fifth Amendment and Title II of the Civil Rights Act of 1968. Id. at 1320. Although the Tribe itself was not a named party to the suit, the plaintiffs did name various tribal officials in their official capacities and sought declaratory relief. This court held that because the relief sought, if granted, would run against the Tribe itself, the “[t]ribal [d]efendants were entitled to sovereign immunity as far as the official capacity claims, unless there is an unequivocally expressed waiver either by the Tribe or abrogation by Congress.” Id. at 1324.
“Indian tribes are distinct, independent political communities, retaining their original natural rights in matters of local self-government. Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (quotations and citations omitted). Here, despite naming the tribal defendants in their official capacity, the plaintiffs ask for relief that would run against the Tribe itself. See Fletcher, 116 F.3d at 1324. They request a permanent injunction prohibiting the tribal defendants from recognizing the results of the tribal election from which Wopsock and Duncan were excluded and prohibiting future elections that would take place under the ordinances. They also request an order directing the tribal defendants to accept the recall petition of Natchees and prohibiting the tribal defendants from relying on Ordinance 03-004. The relief sought by the plaintiffs would, if granted, impact the right to hold tribal office and the governing of the Tribe itself. Accordingly, the tribal defendants are entitled to sovereign immunity for the claims against them in their official capacities and we affirm the dismissal of Counts 1 and 2 for lack of jurisdiction.
B. Claims against the federal defendants under the IRA (Counts 3 and 4)
“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1463 (10th Cir.1989) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)) (alterations omitted). Such consent “cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quotation omitted). It is the terms of the United States’ consent that define this court‘s jurisdiction to entertain any suit. Id. The federal defendants argue the district court‘s dismissal of Counts 3 and 4, brought against them in their official capacity, must be affirmed for lack of jurisdiction because neither the IRA‘s nor the Administrative Procedure Act‘s (APA) waivers of sovereign immunity apply here.
The IRA provides a mechanism for Indian tribes to adopt or revoke constitutions, bylaws or amendments.
(1) The Secretary shall call and hold an election as required by subsection (a) of this section—
(A) within one hundred and eighty days after the receipt of a tribal request for an election to ratify a proposed constitution and bylaws, or to revoke such constitution and bylaws; or
(B) within ninety days after receipt of a tribal request for election to ratify an amendment to the constitution and bylaws.
Subsection (d) requires the Secretary to approve or disapprove the constitution, bylaws, or amendments adopted by a tribe under subsection (a).
This result is consistent with the purpose of the IRA. “The overriding purpose of [the IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government.” Mancari, 417 U.S. at 542. In particular, in enacting the IRA “Congress was seeking to modify the then-existing situation whereby the primarily
Neither does the APA provide a waiver of sovereign immunity in this case. The agency‘s actions cannot meet the requirements for the APA‘s definition of “agency action unlawfully withheld.”
C. Claim against Mills, Nordwall, Jurrius, Hammer and the tribal defendants for conspiracy to violate the plaintiffs’ civil rights (Count 8)
The plaintiffs’ eighth cause of action alleged a conspiracy to violate their civil rights in violation of
On appeal, the plaintiffs do not pursue their
The defendants argue the plaintiffs are barred from raising this argument before this court because it was not raised before the district court as a reason the defendants’ Rule 12(b)(6) motion should be denied. The plaintiffs respond that their citation to
“We have repeatedly held that absent extraordinary circumstances, we do not consider arguments raised for the first time on appeal.” Hill v. Kan. Gas Serv. Co., 323 F.3d 858, 866 (10th Cir.2003) (quotation omitted). No extraordinary circumstances are present here and we therefore refuse to consider this argument. The district court‘s dismissal of Count 8 is therefore affirmed.
D. Motion to Amend
The plaintiffs appeal the district court‘s denial of their Rule 15(a)(2) motion to amend their complaint.
When a party moves to amend its pleading, Rule 15 instructs that “[t]he court should freely give leave when justice so requires.”
[c]ourts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, to present theories seriatim in an effort to avoid dismissal, or to knowingly delay raising an issue until the eve of trial.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir.2006) (alterations, quotations and citations omitted).
The district court did not abuse its discretion in denying the motion to amend. The plaintiffs waited eight months after filing their first amended complaint before seeking permission to amend a second time. They responded to the defendants’ motions for dismissal and summary judgment on the merits and did not file their motion to amend until approximately four months after the defendants’ motions were filed and after the defendants’ reply briefs were filed. The plaintiffs have never provided an explanation for this delay. In addition, the plaintiffs attached a modified second proposed amended complaint to their reply brief in support of their motion to amend. That new proposed complaint sought to address the problems raised by the district court when it granted the plaintiffs’ motions to dismiss and motion for summary judgment. It came after the defendants’ had raised objections to the proposed second amended complaint in their briefing in opposition to the motion to amend.
Given such actions by the plaintiffs, the district court did not abuse its discretion in concluding that the plaintiffs were using Rule 15 inappropriately to respond to arguments raised by the court and the defendants. See Pallottino, 31 F.3d at 1027 (“Much of the value of summary judgment procedure in the cases for which it is appropriate would be dissipated if a party were free to rely on one theory in an attempt to defeat a motion for summary judgment and then, should that theory prove unsound, come back along thereafter and fight on the basis of some other theory.” (alteration omitted)). We therefore affirm the district court‘s denial of the plaintiffs’ motion to amend.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.