no. 02-6198 united states court of appeals oct for the … · 2011. 2. 8. · no. 02-6198 united...
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No. 02-6198
UNITED STATES COURT OF APPEALS OCT 7 8 2002
FOR THE TENTH CIRCUIT " _'_c _-,
SYLVIA DAVIS, as guardian and next friend for DONELL E. DAVIS, DOSAR-
BARKUS BAND OF THE SEMINOLE NATION OF OKLAHOMA, and THE
BRUNER BAND OF THE SEMINOLE NATION OF OKLAHOMA,
Plainti ffs-Appellants,
-v-
UNITED STATES OF AMERICA, DEPARTMENT OF THE INTERIOR, BUREAU OF
INDIAN AFFAIRS, and in their official capacities, GALE NORTON, the Hon. Secretary
of the Interior, her agents employees, and successors; NElL McCALEB, Assistant
Secretary of the Interior for Indian Affairs, his agents employee.,;, and successors;
GLORIA SPYBUCK, Superintendent, Bureau of Indian Affairs, Wewoka Agency;
JEANETTE HANNA, Regional Director, Bureau of Indian Affairs, Eastern Oklahoma
Regional Office, her agents, employees, and successors,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(HON. VICKI MILES-LaGRANGE)
BRIEF OF THE FEDERAL APPELLEES
OF COUNSEL:
SUSAN K. EHLEN
CHARLES R. BABST JR.
U.S. Department of the Interior
Office of the Solicitor
Tulsa Field Solicitor's Office
Tulsa, OK 74145
THOMAS L. SANSONETTI
Assistant Attorney General
ROBERT G. McCAMBELL
United States Attome2L
ARVO Q. MIKKANEN
Assistant United States Attorney
JOHN A. BRYSON
AARON P. AVILA
Attorneys, U.S. Department of Justice
Environment & Natural Resources Div.
P.O. Box 23795 (L'Enfant Plaza Station)
Washington, DC 20026
(202) 514-1307
ORAL ARGUMENT REQUESTED
Statement of Jurisdiction
Statement of the Issues
Statement of the Case
A.
B.
TABLE OFCONTENTS
• ° ° ° ° ° • ° ° • • ° ° ° ° ° ° • ° ° ° • ° • I ° ° ° ° • ° ° ° o ° , ° o o o , . ° ° ° •
Nature of the Case ......................................
Statement of the Facts ...................................
6
*
"
"
"
6.
o
8.
9.
Page
The Seminole Nation And The Freedmen ...............
The Treaty Of 1866 ................................
The Seminole Indian Rolls And The Dawes Commission ..
The Seminole Nation's Land Claims Against The UnitedStates ........................................... 7
The Seminole Nation Judgment Fund .................. 8
The Seminole Nation's 1991 Usage Plan, Ordinances,
And Eligibility Requirements For Use And Distribution
Of Its Judgment Fund ............................. 11
Certificates Of Degree Of Indian Blood ............... 13
Other Litigation ........................... ....... 18
Extra-Record Facts ............................... 19
1
2
2
2
5
5
6
7
C° Course of Proceedings
1.
2.
3.
° ° ° ° ° ° ° ° ° , , , , o o ° ° , ° ° ° ° ° ° , ° ° ° ° .....
The District Court's March 20, 1998 Order ............
This Court's September 21, 1999 Decision .............
The District Court's April 25, 2002 Post-Remand Order ..
Summary of Argument ............................................
Argument ......................................................
I. The District Court Did Not Abuse Its Discretion When It Dismissed
Plaintiffs' Judgment Fund Claim For Failure To Join An IndispensableParty ..................................................... 29
A. Applicable Law And Standard Of Review .................. 29
B. Application Of Rule 19(b) ............................... 30
1. The District Court Correctly Concluded That The Tribe
And Names Parties Would Be Severely Prejudiced ByAn Adjudication On The Merits In The Tribe's Absence
And That The Prejudice Cannot Be Minimized ......... 31
2. The District Court Properly Concluded The Federal
Defendants Risk Inconsistent Legal Obligations ......... 39
3. The District Court Correctly Concluded That A JudgmentRendered In The Tribe's Absence Would Not Be
Adequate ....................................... 42
Page
20
20
20
22
26
29
- ii -
Page
4. The District Court Did Not Err By Dismissing Plaintiffs'
Claim Even Though It Found Plaintiffs Lack of An
Adequate Alternative Remedy ....................... 45
5. To The Extent The District Court Did Not Consider
Other "Equitable Factors" It Did Not Abuse Its
Discretion ....................................... 47
II. The District Court Properly Dismissed Plaintiffs' CDIB Claim For
Failure To Exhaust Administrative Remedies ..................... 50
Conclusion ..................................................... 56
Oral Argument Statement .......................................... 57
Certificate of Compliance With Fed. R. App. P. 32(a)(7) ................. 58
Certificate of Service ............................................. 59
- iii -
TABLE OF AUTHORITIES
Page
CASES:
Adams v. Morton, 581 F.2d 1314 (9 '" Cir. 1978) ........................ 34
Azure v. Morton, 514 F.2d 897 (9 th Cir. 1975) .......................... 34
Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978) ........................ 1
Bateman v. City of West Bountiful, 89 F.3d 704 (10 _hCir. 1996) ........... 51
Citizen Potawatomi Nation v. Norton, 248 F.3d 993 (10 'n Cir. 2001) ... 34,37,46
Clinton v. Babbitt, 180 F.3d 1081 (9 th Cir. 1999) ........................ 38
Cully v. Mitchell, 37 F.2d 493 (10 th Cir. 1930) .......................... 7
Davis v. United States, 192 F.3d 951 (10 _hCir. 1999) ................. passim
Davis v. United States, 199 F. Supp. 2d 1164 (W.D. Okla. 2002) ........ passim
Dawavendew v. Salt River Project Agric. Improvement and Power Dist.,
276 F.3d 1150 (9 th Cir. 2002) .................................. 38
Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977) .............. 34
Enterprise Management Consultants, Inc. v. United States, 883 F.2d 890
(10 thCir. 1989) ........................................... 38,46
Fletcher v. United States, 116 F.3d 1315 (10 'h Cir. 1997) ................ 20,2
Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613 (10 th Cir. 1998) .. 36,53
Harrv. Federal Home Loan Bank Bd., 557 F.2d 747 (10 thCir. 1977) ........ 55
Hicks v. Gates Rubber Co., 928 F.2d 966 (10 th Cir. 1991) ................. 47
Holt v. United States, 46 F.3d 1000 (10 'h Cir. 1995) ..................... 52
Land v. Dollar, 330 U.S. 731 (1947) ................................. 51
Mcllravy v. Kerr-McGee Coal Corp., 204 F.3d 1031 (10 th Cir. 2000) ...... 35,36
Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4 th Cir. 1999) ............... 41
Prairie Band of the Pottawatomie Tribe of Indians v. Puckkee, 321 F.2d
767 (10 th Cir. 1963) ......................................... 34
Prairie Band of the Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364
(10 th Cir. 1966) ............................................. 34
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968) .. 42
Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 94 F.3d 1407
(I0 th Cir. 1996) ............................................. 30
- iv -
Page
CASES (continued):
Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10 th Cir. 2001) . 44,45
Seminole Indians of the State of Fla. v. United States, 13 Ind. Cl. Comm.
326 (1964) ................................................. 5
Seminole Indians of the State of Fla. v. United States, 38 Ind. CI. Comm.
62 (1979) .............................. '................... 3,7
Seminole Nation of Oklahoma v. Norton, 206 F.R.D. 1 (D.D.C. 2001) ....... 48
Seminole Nation of Okla. v. Norton, United States District Court for the
District of Columbia, Case Nos. 00-2384(CKK) & 02-0739(RBW) .. 18,44
Shermoen v. United States, 982 F.2d 1312 (9 _hCir. 1992) ................. 37
Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351
(9 th Cir. 1975) .............................................. 34
Sizova v. National Inst. of Standards & Tech., 282 F.3d 1320
(10 th Cir. 2002) ............................................. 52
St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169 (10 th Cir. 1979) ...... 19
United States v. Consolidated Mines & Smelting Co., 455 F.2d 432
(9 _hCir. 1971) .............................................. 53
United States v. Ferguson, 247 U.S. 174 (1918) ......................... 7
United States v. Mora, 293 F.3d 1213 (10 _hCir. 2002) ................... 36
Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260 (10 th Cir. 1998) ....... 26
Wichita and Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765
(D.C. Cir. 1986) ......................................... passim
STATUTES, RULES AND REGULATIONS:
Act of Congress, June 21, 1906, 34 Stat. 325 ........................... 13
Administrative Procedure Act:
5 U.S.C. 702 1
5 U.S.C. 703 ................................................ 1
5 U.S.C. 704 ............................................... 53
-V-
Page
STATUTES, RULES AND REGULATIONS (continued):
Distribution of Judgment Funds Act:
25 U.S.C. 1401 .............................................
25 U.S.C. 1402
25 U.S.C. 1403
25 U.S.C. 1404
25 U.S.C. 1405
25 U.S.C. 1406
25 U.S.C. 1407
25 U.S.C. 1408
8,9
° ° ° ° ° ° .... • ° ° ° ..... • • .... ° * • • • • • ° .... ° ° ..... ° 8,9
" " ° ° ° ° • " ° ° • ° ° ° ° • • ° ° ° ° • • ° ° ° ° • ° • .... ° ° ° ° ° • ° ° .... 8
° ° ° ° ° ° ° • ° ° ° ° • ° ° ° • ° ° • ° ° • • ° ° • • ° ° ° ° ° ° • • • • ° ° ° ° ° • ° ° 8
° " ° ° ° ° ° .... ° ° ° ° • • " ° ° ° • ° ° ° ° • • • • ° ° • • ° ° .... • .... • 8
° ° ° ° ° ° ° ° ° " " • ° ° ° ° ° ° ° • ° ° ° ° • ° • ° ° • ° • ° ° • ° ° ° • • ° ° ° ° ° • 8
° ° ° ° " " ° ° ° ° ° ° ° • ° ° ° ° ° ° ° • • • • • .... ° ° ° ° ° • ..... ° ° ° . ° 8
° ° ° ° ° ° ° • ° ° " " ° ° ..... • ° ° ° ° ° ° ° ° ° ° ° ° • • • • ° ° • ° ° • .... 8
28 U.S.C. 1291° ° " ° • ° ° ° " " * ° ° • • ° ° • • • ° ° • • • • ° ..... • • ° • • ° ° ° ° • ° ° ° . . ° ° ° . 1
28 U.S.C. 1331• ° ° ° ° ° ° ° ° ° " ° ° ° ° • " • ° ° ° • • • ° • • * • • ° • • * • • • • ° ° .... ° ° ° . • ° ° 1
28 U.S.C. 1362° ° ° • • ° ° ° " " * ° ° .... ° • • ° ° ° ° ° • • • ° ° ° • • ° • ° ° ° ° ° • • ° ° . . . ° ° , , 1
28 U.S.C. 2107(b) ................................................. 1
28 U.S.C. 2201-2202.... ° • " " " • ° ° ° ° ° ° .... ° ° ° ° ° ° ° • ° ° ° ° • • ° ° .... ° . ° ° • ° l
Fed. R. App. P. 4(a)(1)(B) .......................................... 1
Fed. R. Civ. P. 12(h)(3) ......................................... 52,53
Fed. R. Civ. P. 19(a)-(b) ........................................ passimFed. R. Civ. P. 58 • .-.........-................. .... ............... 1
25 C.F.R. 2.6(a) ................................................. 53
25 C.F.R. 2.8 .................................................... 54
56 Fed. Reg. 32,480 (1991) ........................................ 11
MISCELLANEOUS:
Wright & Miller, Federal Practice and Procedure § 1350 ................. 51
- vi -
STATEMENT OF RELATED CASES
Prior appeal: Davis v. United States, No. 98-6161, 19:2 F.3d 951 (10 thCir.1999).
- vii -
STATEMENT OF JURISDICTION
Plaintiffs Sylvia Davis, on behalf of Donnell Davis, and the Dosar-Barkus
and Bruner Bands of the Seminole Nation of Oklahoma, asserted district court
jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. §§ 2201-
2202 (declaratory judgment), 28 U.S.C. § 1362 (Indian tribe suit), and 5 U.S.C.
§§ 702-703 (Administrative Procedure Act).l
Plaintiffs appeal from an order entered by the United States District Court
for the Western District of Oklahoma (Hon. Vicki Miles-LaGrange) on April 25,
2002, granting the defendants' motion to dismiss and for summary judgment.
Plaintiffs timely filed a notice of appeal of the district court's order on June 21,
2002. Fed. R. App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b). Although the district court
has not entered a separate final judgment pursuant to Fed. R. Civ. P. 58, this Court
has appellate jurisdiction over the April 25, 2002 order pursuant to 28 U.S.C.
§ 1291. See generally Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978).
1. In the district court, the Federal Defendants challenged some of thejurisdictional bases asserted by Plaintiffs, for instance that none of the Plaintiffs
may invoke jurisdiction under 28 U.S.C. § 1362 because they are not a separately,federally recognized "band" or "tribe" as defined within the statute. The district
court did not rule on those arguments and the Federal Defendants do not raise them
here because they believe it is necessary and sufficient to defend the bases on
which the district court did rule. See also note 8, infra.
STATEMENT OF THE ISSUES
I. Whether the district court abused its discretion when it determined that the
Seminole Nation of Oklahoma is an indispensable party to a claim that challenges
its laws, ordinances, and procedures.
II. Whether the district court properly dismissed for failure to exhaust
administrative remedies Plaintiffs' claim that the Bureau of Indian Affairs failed to
issue them Certificate of Degree of Indian Blood cards.
STATEMENT OF THE CASE
A. Nature Of The Case
The Dosar-Barkus and Bruner Bands of the Seminole Nation along with
Sylvia Davis, as guardian and next friend for Donnell E. Davis, (collectively,
"Plaintiffs") filed this lawsuit in January 1996 for declaratory and injunctive relief.
A0036-58. 2 While Plaintiffs' lawsuit challenges actions of both the United States
and the Seminole Nation of Oklahoma (the "Seminole Nation" or the "Tribe"),
Plaintiffs sued only the federal government (the "Federal Defendants") and did not
join the Seminole Nation as a party even though Plaintiffs primarily seek "to
2. References of the form "A "are to the Appendix filed by Plaintiffs.
References to "SA "are to the Supplemental Appendix filed by the Federal
Defendants concurrently with this brief. "Br." refers to Plaintiffs' Opening Brief.
require that the Seminole Nation provide benefits deriving from the Judgment Trust
Fund," in a manner contrary to the Tribe's ordinances. A0056.
Plaintiffs claim entitlement to participate in certain tribal programs
administered by the Seminole Nation. The programs are funded by the Indian
Claims Commission (the "ICC")judgment compensating the Seminole Nation for
land taken by the United States (the "Judgment Fund"). The judgment was entered
in favor of"the Seminole Nation as it existed in Florida on September 8, 1823."
Seminole Indians of the State of Fla. v. United States, 38 Ind. CI. Comm. 62, 90
(1979). Although Plaintiffs allege that the Federal Defendants have breached their
duty as trustee of the Judgment Fund and have a "policy" of denying Freedmen
access to programs funded by the Judgment Fund, their claim is a challenge to
certain Tribal ordinances which determine access to Judgment Fund programs.
A0051-52. Plaintiffs seek an injunction that would compel the Federal Defendants
to require that "the Seminole Nation provide benefits deriving from the Judgment
Fund Trust" to certain Tribal members. A0056. Plaintiffs also seek a declaratory
judgment to gain access to Judgment Fund programs. Id.
In addition, Plaintiffs' complaint alleges that they are entitled to "Certificate
of Degree of Indian Blood" ("CDIB") cards? A0053. Plaintiffs maintain that
3. These cards confirm that the holder possesses a quantum of Seminole Indian
blood. SA063; SA068; SA072.
notwithstanding the fact that they may have no Indian blood, the Bureau of Indian
Affairs (the "BIA") should provide them CDIB cards confirming that they have
Indian blood. A0050. Plaintiffs therefore seek an injunction compelling the
Federal Defendants "to accept and approve applications for a CDIB Cards [sic]
submitted by members" of the Dosar-Barkus and Bruner Bands. A0056.
In a March 20, 1998 order, the district court dismissed Plaintiffs' complaint
for failure to join the Tribe as a party. SA001-11. The district court concluded that
the Seminole Nation was a necessary and indispensable party that could not be
joined because of its sovereign immunity. SA010-11. Plaintiffs appealed.
On appeal, this Court held that the Seminole Nation is a "necessary" party to
litigation of Plaintiffs' Judgment Fund claim. Davis v. United States, 192 F.3d 951,
957-59 (10th Cir. 1999) (hereinafter "Davis r'). The Court, however, found the
record insufficient to determine whether the Seminole Nation is also
"indispensable" and remanded to the district court for findings on that issue, ld. at
959-6 I. Finally, this Court concluded that the district court improperly dismissed
Plaintiffs' CDIB claim for failure to join the Seminole Nation. ld. at 961-62.
On remand, the district court concluded that the Seminole Nation is an
indispensable party with respect to Plaintiffs' Judgment Fund claim. Davis v.
United States, 199 F. Supp. 2d 1164, 1175-78 (W.D. Okla. 2002) (hereinafter
"Davis If'). The district court therefore granted summary judgment to the Federal
4
Defendants on that claim. Id. The district court dismissed the CDIB claim without
prejudice because Plaintiffs failed to exhaust their administrative remedies. Id. at
1178-80.
B. Statement Of The Facts
1. The Seminole Nation And The Freedmen
In the 18th and 19th centuries, African slaves from the Caribbean and the
southern states of North America escaped to the territory of present-day Florida.
SA002. 4 There, some slaves moved in and among the Native Americans who
inhabited the area. SA003. This group of Native Americans and African people
became known as "Seminoles." Id. The Africans living in Seminole territory were
often referred to as the "Black Seminoles," "Estelusti Seminoles," or, eventually,
the "Freedmen." Id.
In the early part of the 19th century, the United States took formal
possession of Florida. Id. On September 18, 1823, the United States and Seminole
Nation entered into the Treaty of Camp Moultrie by which the Seminoles ceded
their claims to their Florida territory and the United States assigned the Seminoles a
reservation in south-central Florida. Seminole Indians of the State of Fla. v. United
4. Because of the procedural posture of this case, some of the facts contained in
the record have not been subject to challenge by the Federal Defendants, but wouldbe contested by them at a trial on the merits.
States, 13 Ind. CI. Comm. 326, 339 (1964). On May 9, 1832 the Seminoles
executed the Treaty of Payne's Landing pursuant to which the Seminole Nation
recognized that title to the entirety of its reservation ceased to exist. Id.
Subsequently, many of the African and Native-American Seminoles in Florida
resettled in present-day Oklahoma. A0037. Those individuals ultimately formed
the federally recognized "Seminole Nation of Oklahoma," the tribe at issue in this
case. A0097-I01. The Seminoles who remained in Florida formed the separate
"Seminole Indians of Florida" tribe. Id.
2. The Treaty 0f1866
Following the United States Civil War, the Seminole Nation and the United
States entered into the Treaty of'March 21, 1866. 14 Stat. 755. Among other
things, the treaty provided that slavery was not to exist among the Seminoles. Id.
Art. 2. Additionally, the treaty stated that persons of African descent in the
Seminole Nation were to "have and enjoy all the rights of native citizens, and the
laws of [the Seminole ] nation [were to] be equally binding upon all persons of
whatever race or color." Id. This provision was the genesis of'the Seminole
Nation's formal recognition of'the Freedmen as actual tribe members. A0098-99.
Thereafter, persons of African heritage or descent organized into two "Freedmen"
bands -- the "Dosar-Barkus Band" and the "Bruner Band." A0098. These are two
of the fourteen separate bands of the Seminole Nation. Id.
6
3. The Seminole Indian Rolls And The Dawes Commission
Congress created the Dawes Commission in 1893 to, among other things,
create rolls listing the members of certain Indian tribes. A0096-97. In 1906, the
Commission created two rolls for the Seminole Nation: the "Freedmen Roll" for
the Freedmen and the "Seminole Citizen Roll" for Seminole Indians. Davis I, 192
F.3d at 954. For both the federal government and the Seminole Nation, the Dawes
Rolls represent the official federal documents for determining the Indian blood
degree of Seminole Nation members. See. e.g., SA064; United States v. Ferguson,
247 U.S. 174, 178 (1918) ("[T]he approved rolls 'shall be conclusive as to quantum
of Indian blood of any enrolled citizen or freedmen of said tribes .... '"); Cull), v.
Mitchell, 37 F.2d 493,499 (10th Cir. 1930) ("[W]e have grave doubts of the power
of any court to alter [the blood quantum of] this roll .... "); Davis II, 199 F. Supp.
2d at 1168 n.2.
4. The Seminole Nation's Land Claims Against The United States
In August 1950 and July 1951, the Seminole Nation of Oklahoma and the
Seminole ,Indians of Florida, respectively, filed claims with the Indian Claims
Commission seeking compensation for Florida tribal lands that were ceded to the
United States in the Treaties of Camp Moultrie and Payne's Landing. Seminole
Indians of the State of Fla. v. United States, 38 Ind. C1. Comm. 62, 63 (1976). The
claims (assigned docket numbers 63 and 151) were tried as a consolidated case. Id.
7
In April 1976, the ICC approved the parties' "proposed compromise settlement"
and entered a final judgment of $16 million in favor of the Seminole Indians of
Florida and the Seminole Nation of Oklahoma "on behalf of the Seminole Nation
as it existed in Florida on September 18, 1823." Id. at 90 (emphasis added).
5. The Seminole Nation Judgment Fund
In October 1973, Congress passed the "Distribution of Judgment Funds
Act," 25 U.S.C. §§ 140 l-1408, setting forth general guidelines for judgment funds
awarded by the ICC or the United States Court of Claims. Id. § 1402. Specifically,
the Act requires the Secretary of the .Interior (the "Secretary") to prepare and
submit to Congress a plan for the use and distribution of monies appropriated for
judgment funds. Id.
In June 1976, Congress appropriated the Seminole Nation judgment fund
monies in the amount of $16 million plus interest. 90 Stat. 597, 629 (1976).
Pursuant to the Distribution of Judgment Funds Act, the BIA then presented
Congress with a document entitled "Results of Research Report on Seminole
Judgment in Dockets 73 and 151 Before the Indian Claims Commission," which
included a methodology for distributing the appropriated Seminole Nation
Judgment Fund. See 25 U.S.C. § 1402; A0088-107.
The BIA based its report on archival files and determined that the Judgment
Fund should be divided between the Seminole Indians of Florida and the Seminole
8
Nation of Oklahoma, consistent with the number of individuals in each tribe.
A0106; A0126. Ultimately, the BIA recommended that approximately twenty-five
percent of the Fund should go to the Florida Tribe and seventy-five percent to the
Oklahoma Tribe. A0126. The BIA's computation of the Oklahoma Tribe's share
did not include Freedmen. A0099. The BIA believed that because the Judgment
Fund award resulted from violations that occurred more than thirty-four years
before the time the Freedmen became members of the Seminole Nation, the
Freedmen should not be included in the Judgment Fund distributions. Id. The
Distribution of Judgment Funds Act requires the Secretary to consult with the tribes
and receive tribal input when preparing a judgment fund use and distribution plan.
25 U.S.C. § 1402. From 1977 until 1990, a final use and distribution plan was
never enacted or became operative, at least in part because of a lack of agreement
between the tribes on the proper division of the Judgment Fund monies. SA160-
61. The previously appropriated funds therefore remained unavailable for
expenditure by the tribes. A0126; A0136.
Congress eventually enacted the "Indian Claims: Distribution of Funds to
Seminole Indians Act" in April 1990 (the "1990 Distribution Act"). 104 Stat. 143.
This Act superceded the provisions of the 1973 Distribution of Judgment Funds
Act with respect to the Seminole Nation Judgment Fund. Id. § 1
("[N]otwithstanding any provision of... 25 U.S.C. 1401, et seq .... the funds
9
appropriated in satisfaction of judgments awarded to the Seminole Indians in
dockets 73, 151, and 73-A of the Indian Claims Commission shall be used and
distributed as provided in this Act."). The 1990 Distribution Act allocated the
previously appropriated Judgment Fund monies among the Florida and Oklahoma
tribes as suggested by the BIA Research Report. A0126. It also granted the
Seminole Nation of Oklahoma the authority to propose a general plan for the use
and distribution of the Tribe's Judgment Fund. 104 Stat. 143, § 3. Specifically,
Congress authorized "the governing body of the Seminole Nation of Oklahoma[,]
in consultation with the Secretary of the Interior," to prepare a "plan for the use and
distribution of the funds allocated to the Seminole Nation of Oklahoma." Id. The
1990 Distribution Act provided that the final plan would become effective sixty
legislative days after the Secretary forwarded it to Congress, absent Congressional
action to the contrary. Id. §§ 3(a) & 4(d).
The 1990 Distribution Act did not, however, address or prescribe any
eligibility requirements for a tribal member's participation in the Judgment Fund.
Congress clearly left that determination to the Tribe. Likewise, no statutory
provision requires or authorizes the BIA or any other federal government entity to
administer Tribal Judgment Fund programs or establish eligibility requirements for
participation in the Judgment Fund. SA065.
10
6. The Seminole Nation's 1991 Usage Plan, Ordinances, And
Eligibility Requirements For Use And Distribution Of Its Judgment
Fund
In accordance with the 1990 Distribution Act, the Seminole Nation
developed the "1991 Usage Plan." 56 Fed. Reg. 32,480 (1991). This is a general
plan for the use and distribution of the Tribe's Judgment Fund. The Tribe
presented its plan to the Secretary who submitted it to Congress with a
recommendation that the plan be approved. The 1991 Usage Plan became
operative pursuant to § 4(d) of the 1990 Distribution Act when Congress did not
disapprove of it within Sixty legislative days of the Plan's submission to Congress.
56 Fed. Reg. at 32,480.
Under the 1990 Distribution Act, the Seminole Nation is responsible for
developing programs for the benefit of the Tribe "as the circumstances of the
Seminole Nation of Oklahoma may determine." 104 Stat. 143, § 4(a). The Tribe
has established and implemented such programs through tribal ordinances. As
provided in these ordinances, the Tribe is responsible for receiving, processing, and
denying applications for participation in Judgment Fund programs. The Tribe
determines what information must be provided and the conditions for participation
in the program. SA065; SA077-96. It is also the Tribe that determines eligibility
requirements for individuals seeking to participate in these programs.
11
The eligibility requirement relevant to this case is found in some of the
ordinances establishing Judgment Fund programs. Those ordinances provide that
an eligible program applicant:
must be an enrolled member of the Seminole Nation of
Oklahoma who has been determined to have descended
from a member of the Seminole Nation as it existed in
Florida on September 18, 1823.
SA087 (emphasis added) (hereinafter, the "Eligibility Requirement"). At least one
Judgment Fund program, the Culture and Recreation Enhancement Assistance
Program, does not include the Eligibility Requirement. SA163--67.
Once the Tribe establishes a Judgment Fund program, it then requests a fund
distribution from the BIA. SA065. Prior to releasing the funds, the BIA
determines only whether the planned program expenditures are consistent with the
1990 Distribution Act and with the Tribe's 1991 Usage Plan. ld. The BIA takes no
active role in determining individual eligibility, it reviews only the general program
goals and objectives and disburses funds to the Tribe. ld.
Here, Sylvia Davis purportedly filed an application with the Seminole Nation
for her son's participation in a Judgment Fund program. Pursuant to its authority to
determine eligibility requirements, the Tribe deniedDavis's application. In doing
so, the Tribe stated:
[T]he applicant must be an enrolled member of the
Seminole Nation of Oklahoma who has been determined
12
A0308.
to have descended from a member of the Seminole
Nation as it existed in Florida on September 18, 1823.Since your child is not enrolled with Seminole blood, heis not eligible to receive the clothing assistance from ouroffice.
7. Certificates Of Degree Of Indian Blood
A CDIB card constitutes certification that its holder possesses a specified
quantum of Indian blood. SA063. The burden of proving Indian ancestry rests
upon the CDIB-card applicant. Id.; SA171. Membership in the Seminole Nation
does not entitle an individual to a card because not all members of the Tribe have
Indian blood. SA064. The BIA, which is responsible for issuing CDIB cards,
grants them to "those persons who apply and can satisfactorily prove that they
possess some degree of Seminole Indian blood from the Dawes Commission Rolls,
approved by Act of Congress, June 21, 1906, 34 Stat. 325, which (for the Seminole
Nation) include the Index and Final Rolls of the Seminole Citizens and the
Seminole Freedmen." SA063.
The Dawes Commission Rolls, which generally establish Indian blood
degree of various citizens of the Seminole Nation, were prepared according to the
Tribe's traditional matrilineal structure. SA067. This means that an individual
belongs to the tribal band to which his mother belongs, ld. Accordingly, a
Seminole Nation member with a Seminole Indian mother and a Freedmen father
13
would customarily have been enrolled on the Seminole Citizen Roll. Id. Likewise,
a member with a Freedmen mother and a Seminole Indian father would
customarily have been enrolled on the Freedmen Roll. Id. The parental band-
information is set out with specificity on the Dawes Commission enrollment cards
and in most, if not all, cases it is possible to determine whether individuals enrolled
as Freedmen also possess Seminole Indian blood based upon the listed band
membership of those individuals' fathers. Id. Consequently, when assessing CDIB
applications, the BIA uses both the Seminole Citizen and the Freedmen Rolls to
calculate an individual's degree of Seminole Indian blood. /d.
The Seminole Nation requires that applicants for most Judgment Fund
programs prove that they are descended from a member of the Tribe as it existed in
1823. The Tribe apparently accepts a CDIB card showing any degree of Seminole
Indian blood as proof of such Tribal descent. A0306. An individual who does not
possess Indian blood or is otherwise unable to prove he or she descends from an
1823 member cannot participate in Judgment Fund programs that contain the
Eligibility Requirement. When Sylvia Davis filed an application with the Seminole
Nation seeking to participate in one of the Judgment Fund programs on behalf of
her son, the Tribe apparently determined that the application was incomplete
because it did not include, among other things, a copy ofa CDIB card as proof of
descent from an Indian within the Tribe as it existed in 1823. A0304-05.
14
Ultimately, the Tribe did not process the application because of this omission and
lack of proof.
In September 1995, counsel for Plaintiffs Dosar-Barkus and Bruner Bands
wrote to the Superintendent of the Wewoka Agency of the BIA, requesting that all
Freedmen Band members automatically receive CDIB cards without providing
proof of Seminole Indian blood. SA064. The rationale offered was that all
individuals on the Dawes Freedmen Roll should be deemed full blood Seminole
Indians even though they might not have any Indian blood. Under this rationale, all
current-day Freedmen would only need to establish that they descend from
individuals on the Dawes Roll to get a CDIB card documenting that they are a full-
blood Indian, without having to demonstrate any proof of Seminole Indian blood.
In an October 4, 1995 letter, the BIA Superintendent explained why he could
not grant the Bands' request. SA168-69. The BIA stated, among other things, that
ira Freedman, or any other individual for that matter, applies for a CDIB card but
cannot provide acceptable proof that they possess a specified quantum of Seminole
Indian blood, a CDIB card cannot be issued. Id. The BIA made no reference to
any particular Freedmen application. The Superintendent concluded, stating, "[i]n
my understanding of the policy, I do not have the authority to certify a member of
the freedman bands as having Indian blood without acceptable proof of
relationship" to an ancestor with Seminole Indian blood. The Superintendent
15
further explained that his decision could be appealed to the Area Director of the
BIA. ld.
In October 1995, the Bands filed an appeal to the Area Director who
affirmed the Superintendent's decision. The Director clarified that because the
Bands had inquired, but individuals themselves did not request the CDIB cards, the
Superintendent's letter did not address any actual BIA action; rather, the decision
"essentially answer[ed] the academic question of whether CDIB cards will be
issued to applicants who have not presented proof of Indian blood." SA171. The
Director also stated that contrary to the Band's interpretation of the
Superintendent's determination, it "did not determine that the members of the
Seminole Freedmen, as a group, were not entitled to CDIB cards." ld. The
Director explained that, as stated in the Superintendent's letter, the BIA "has issued
CDIB cards to individual Seminole Freedmen band members and will continue to
do so when presented acceptable evidence of [possession of] Indian blood by
individual applicants." ld. Such acceptable evidence includes proof of
"descendency from a member shown on the Dawes Commission enrollment cards
[who] possess[es] Seminole blood." SA172. Lastly, the Director wrote that his
decision could be appealed to the interior Board on Indian Appeals (the "IB1A").
The Bands appealed to the IBIA in October 1996. The IBIA determined that
inasmuch as CDIB cards are only issued to persons and not to tribes or to
16
subsections of tribes, the Bands were not proper appellants and directed counsel for
the Bands to provide names of individual members whom he represented for
purposes of the appeal. SA175. Counsel submitted the names of thirty-two
individuals and the IBIA substituted those individuals as appellants. Id. The Area
Director maintained that of those thirty-two individuals only seven had actually
applied for CDIB cards and that those applications were still pending at the agency
and therefore the case should be remanded to the agency for resolution of the
applications. Id.
The IBIA dismissed the appeal for lack of jurisdiction on February 3, 1998.
To the extent the appeal presented the "academic question" answered by the
Superintendent, the IBIA concluded that to resolve the appeal would be to render
an unauthorized advisory opinion. Id. The IBIA concluded it lacked jurisdiction
even if the appeal presented the "real world" question of whether one of the thirty-
two listed individuals was entitled to a CDIB card because the IBIA is not part of
the appeals process for "adverse enrollment actions." SA175-76. The Area
Director's motion for remand as to the seven pending applications was not
explicitly addressed, but apparently dismissed on mootness grounds given the
IBIA's conclusion that it lacked jurisdiction. 5 SA177.
5. Those seven applications were eventually denied, but Davis's allegedapplication was not among them. SA178-91.
17
In the district court proceedings, Plaintiff Davis alleged that she applied for a
CDIB card although she has no written documentation of the application, nor does
the BIA have any record of such application. Davis indicates that she "received no
response from the BIA." A0248; A0304; SA069. 6
8. Other Litigation
The Tribe, of late, has instituted various lawsuits against the federal
government in connection with the government's response to attempts by the Tribe
to modify its constitution. See, e.g., Seminole Nation of Okla. v. Norton, United
States District Court for the District of Columbia, Case Nos. 00-2384(CKK) & 02-
0739(RBW). In those lawsuits the Tribe has challenged, among other things, the
Department of the Interior's (the "DOI's") refusal to recognize amendments to the
Tribe's constitution which purport to deny the Freedmen membership in the
Seminole Nation and the DOl's refusal to recognize actions of lhe Tribe's General
Council without the Freedmen's participation. A0311 ; A0359.
6. Because Davis alleges that she applied for a CDIB card and never received a
response from BIA, it is clear that hers was not one of the thirty-two names
submitted to the IBIA by the Bands' counsel. Nor was it one of the seven
individuals for which an application had been received.
18
9. Extra-Record Facts
The Statement of Facts in Plaintiffs' opening brief impermissibly references
materials not part of the record on appeal. Br. at 11-15. While Plaintiffs may be
correct that this Court can take judicial notice of proceedings in other courts
because they are "verifiable with certainty," some of the materials referenced by
them are not properly the subject of judicial notice. CA 79-3511 St. Louis Baptist
Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979); Br. at 11 n.3. For
instance, Plaintiffs refer to what appears to be an Associated Press wire story
(A0353-54), an excerpt from "The Seminole Producer" Newspaper (A0355), a
computer "download" of an article by "Producer Staff Writers" (A0356), and three
color photographs (A0358). Plaintiffs have presented no basis for this Court to
take judicial notice of these materials or the facts contained therein. In addition,
Plaintiffs have not properly authenticated these materials such that this Court might
otherwise consider them, nor are they properly part of Plaintiffs' appendix on
appeal. 10th Cir. Rule 30.1 ("[T]he appellant must file an appendix containing
record excerpts." (Emphasis added)).
Plaintiffs also cite to a Sylvia Davis Affidavit located at A0303, but that
affidavit does not support the proposition for which it is cited -- presumably that
the BIA suggested ceasing Judgment Fund payments until this litigation was
resolved. Br. at 11-12. It may be that Plaintiffs intended to cite to a different Davis
19
affidavit located at A0309, but if so, this Court cannot take judicial notice of that
document because, among other reasons, there is no indication that this affidavit
was filed in any action.
This Court should not consider the materials submitted by Plaintiffs at pages
A0309-10 and A0353-58 of the Appendix or the portions of their brief that relies
on them.
C. Course Of Proceedings
1. The District Court's March 20, 1998 Order
In a motion dated April 1, 1997, the Defendants moved to dismiss Plaintiffs'
complaint on a wide variety of grounds, including failure to join an indispensable
party. A0005. On March 20, 1998, the district court granted Defendants' motion
and dismissed Plaintiffs' complaint in its entirety. SA001-11. The district court
concluded that under this Court's decision in Fletcher v. United States, 116 F.3d
1315 (10th Cir. 1997), the Seminole Nation is an indispensable party who could not
be joined because of its sovereign immunity and therefore Plaintiffs' complaint had
to be dismissed under Rule 19. SA010-11. Plaintiffs appealed.
2. This Court's September 21, 1999 Decision
On appeal, this Court first held that the Tribe is a necessary party under Rule
19(a). The Tribe has an interest in determining requirements for participation in its
Judgment Fund, which requirements are embodied in the Tribe's laws, ordinances,
20
and procedures, and the Tribe's ability to protect that interest will be impaired and
impeded by Plaintiffs' Judgment Fund claim. Davis 1, 192 F.3dat 958-59 & n.7.
Therefore, the Tribe is a necessary party. Ia¢. Specifically, this Court stated:
The Tribe has determined the eligibility criteria for
participation in [Judgment Fund] programs and has
adopted ordinances containing the Eligibility
Requirement .... A ruling on the merits in favor of
Plaintiffs on their Judgment Fund Award claim will have
the practical effect of modifying the Tribal ordinances
containing the Eligibility Requirement. Unless the Tribe
is a party to the lawsuit, it has no ability to protect its
claimed interest in determining eligibility requirements.
The Tribe's claimed interest in determining eligibility
requirements and adopting ordinances embodying those
requirements is neither fabricated nor frivolous. The
disposition of Plaintiffs' Judgment Fund Award claim in
the Tribe's absence will impair or impede the Tribe'sability to protect its claimed interest.
ld. at 959 (emphasis added).
This Court rejected Plaintiffs' contention that the Tribe was not a
"necessary" party under Rule 19(a) because "any right the Tribe had to use the
Judgment Fund Award to the exclusion of the Estelusti Seminoles has been
divested by treaty and act of Congress" and therefore the Tribe had no "legally
protected interest" in the litigation. Id. at 958. This Court found that Plaintiffs'
approach "misinterpret[ed] Rule 19(a)" and was "untenable because it would
21
render the Rule 19 analysis an adjudication on the merits." Id. Thus, the Court
affirmed the district court's Rule 19(a) determination that the Tribe is a necessary
party that cannot be joined. 7
This Court, however, disagreed with the district court's conclusion that
Fletcher conclusively resolved the Tribe's "indispensability." The factual record
was therefore insufficient to permit meaningful appellate review and this Court
"remand[ed] to the district court to conduct an analysis of all the factors articulated
in Rule 19(b) and make a reviewable determination as to whether the Tribe is an
indispensable party with respect to Plaintiffs' Judgment Fund Award claim." Id. at
961.
The dismissal of Plaintiffs' CDIB claim was reversed because the district
court inadequately identified the Tribal interest implicated by the claim so as to
render the Tribe indispensable. /d. at 961-62.
3. The District Court's April 25, 2002 Post-Remand Order
On remand and after a status conference, the parties filed simultaneous briefs
on the issue of whether the Tribe is an indispensable party with respect to
Plaintiffs' Judgment Fund claim. Additionally, the Federal Defendants renewed
their motion to dismiss or, alternatively, for summary judgment on issues of
7. Plaintiffs have never argued that the Tribe's sovereign immunity, which
prevents it fi'om being joined, has been waived or abrogated.
22
standing, subject matter jurisdiction, ripeness, and exhaustion of administrative
remedies. The parties briefed those issues. At the district court's request, the
parties submitted supplemental briefing regarding the jurisdictional basis and
sovereign immunity waiver for each of Plaintiffs' claims.
On April 25, 2002, the district court entered an order granting the Federal
Defendants' motion. Davis II, 199 F. Supp. 2d at 1180. After reviewing the
historical background of the Seminole Nation and this case, the district court
addressed the limited issues on which this Court remanded. It first considered and
weighed the Rule 19(b) factors for determining whether the Seminole Nation is an
indispensable party. It found that "[a] favorable judgment for plaintiffs on their
judgment fund award claim would, in effect, reverse the decisions of the Tribe's
governing body, and significantly interfere with the Tribe's ability to govern its
programs. Essentially, the Court would be defining who is eligible for participating
in tribal programs." Id. at 1176-77. The district court determined that "[t]he BIA
is not representing the Seminole Nation's interest in this lawsuit, and therefore, the
Seminole Nation has no party to represent its interest in its programs and the
distribution of its funds in those programs." Id. at 1176. The district court
concluded that "a judgment would be highly prejudicial to the absent Seminole
Nation." Id. at 1177.
23
The district court then concluded it could not craft a judgment that would
eliminate or minimize that prejudice to the Tribe. ld. The district court found that
"Plaintiffs' complaint hinges on the Eligibility Requirement established by the
Tribe. No matter how the remedy is shaped, essentially the Court will be
modifying the Tribe's policies and ordinances" and that "there are no protective
provisions which could be included in the judgment which would prevent trampling
on the Seminole Nation's sovereign right to make its own laws and be ruled by
them." ld. Thus, the district court could not "envision the construction of a
remedy which would lessen or avoid the prejudice against the absent Tribe." ld.
The district court was also troubled by "the very real possibility that [the
federal] defendants would incur a substantial risk of inconsistent legal obligations"
if it entered the injunction that Plaintiffs' complaint sought, ld. An injunction
would require the Federal Defendants to take action against the Tribe. A lawsuit
by the Tribe against the Federal Defendants would likely result, raising the specter
that the Federal Defendants would be subjected to conflicting obligations.
The district court concluded that "[a] judgment in favor of plaintiffs will not
settle this cause of action. Plaintiffs' success in this lawsuit would not necessarily
afford complete relief because a favorable decision by this Court will not have a
binding effect on the absent Tribe." ld. Because any judgment entered by the
district court could not bind the non-party Tribe, the Tribe would still be free to
24
assert the authority of its ordinances as well as its own authority, management
responsibilities, and control over the Judgment Fund programs. Id.
The only factor weighing in Plaintiffs' favor according to the district court
was the unavailability of an adequate remedy and forum if the claim were
dismissed for nonjoinder. /d. at 1178. The district court believed that resort to the
Tribe's legislative and political processes was inadequate to address Plaintiffs'
claims and concluded that there was no alternative forum in which Plaintiffs' claim
could be heard. Id. at 1177-78. Nonetheless, after weighing all of the factors, the
district court concluded that "the prejudice to the absent Tribe, the Court's inability
to lessen the prejudice and the absence of an adequate remedy without the Tribe's
joinder prevent proceeding in equity and good conscience." Id. at 1178.
Finally, the district court dismissed the CDIB claim because Plaintiffs failed
to exhaust their administrative remedies and the claim therefore was not ripe for
judicial review. Id. at 1178-80. The district court noted that Davis claimed only
that she applied for a CDIB card and received no response. Davis, however, failed
to follow the administrative procedures for appealing the agency inaction she
alleged. Id. at 1180. She was obligated to, for example, request in writing that the
BIA take the action originally requested. Id. Thus, Davis's claim was not ripe for
judicial review because she had not exhausted the administrative remedies of which
she was required to avail herself. Id.
25
SUMMARY OF ARGUMENT
The district court properly concluded that the Tribe's interest at stake in
Plaintiffs' Judgment Fund claim is its ability to determine and establish eligibility
requirements for access to its Judgment Fund programs and adopt ordinances
embodying those requirements, as this Court found in Davis I when it determined
the Tribe is a necessary party. Litigation of the Judgment Fund claim would
severely prejudice that interest because the district court would have to determine
the validity of the Eligibility Requirement and impose its own requirements for
access to programs financed by the Tribe's Judgment Fund monies. This would
require the district court to trample on the Tribe's sovereign fight to make laws and
be ruled by them. In addition, through the 1990 Distribution Act, Congress opted
to allow the Tribe to determine for itself the nature of Judgment Fund programs
and requirements for participation therein. See, e.g., Ute Distrib. Corp. v. Ute
Indian Tribe, 149 F.3d 1260, 1261 n.l (10th Cir. 1998) (since the 1960s, Congress
has "generally pursued a policy of protecting and promoting tribal self-
governance"). Thus, any remedy imposed here will prejudice the discretion which
Congress conferred on the Tribe.
In addition, the Federal Defendants risk prejudice from repetitious litigation
and inconsistent legal obligations if this case proceeds absent the Tribe. The
district court properly concluded that if Plaintiffs obtain their relief, the Tribe will
26
institute its own lawsuit to vindicate its enacted Eligibility Requirement because it
will not be bound by any judgment Plaintiffs obtain. This is not a hypothetical
threat of litigation -- even Plaintiffs acknowledge that the Tribe readily institutes
litigation when action is taken with respect to its Judgment Fund.
There is also no way to craft a remedy that will reduce this prejudice to the
Tribe and the Federal Defendants. The very essence of the relief sought by
Plaintiffs would invalidate a tribal ordinance that sets requirements for access to the
Tribe's Judgment Fund. The district court correctly determined that it is not
possible to shape the relief sought to avoid that result.
Proceeding with this lawsuit without the Tribe also will not afford complete
relief-- the substance of this dispute will remain a live controversy even if a final
judgment is entered in Plaintiffs' favor. Again, the Tribe will be free to and likely
will institute a lawsuit which will again focus on the propriety of the Eligibility
Requirement.
While Plaintiffs may lack an alternative adequate remedy, it must be
remembered that dismissal here is required because "society has consciously opted
to shield Indian tribes from suit without congressional or tribal consent." Wichita
and Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765,777 (D.C. Cir. 1986). This
case must be dismissed because to hold otherwise would be to disregard this shield
from litigation that society has provided Indian tribes in these circumstances as
27
well as Congress's deferral to Tribal decision-making as to Judgment Fund
programs.
Finally, the district court properly dismissed Plaintiffs' CDIB claim.
Plaintiffs did not exhaust their administrative remedies and therefore there is no
final agency action that is ripe for judicial review. On appeal, Plaintiffs do not
dispute that proposition -- they argue only that the district court erred by looking
beyond the mere allegations of the complaint. But the Federal Defendants moved
to dismiss pursuant to Rule 12(b)(1) or, alternatively, for summary judgment on
that ground that Plaintiffs failed to exhaust administrative remedies and supported
the motion with evidence. In such circumstances, the district court was required to
go beyond the face of Plaintiffs' complaint?
8. In their motion to dismiss or, alternatively, for summary judgment in the districtcourt, the Federal Defendants raised a number of alternative arguments in supportof their motion which the district court never addressed. A0182-234. The FederalDefendants do not raise these arguments on appeal because the district court neveraddressed them in the first instance and they do not waive or otherwise abandonthem.
28
ARGUMENT
I
The District Court Did Not Abuse Its Discretion When It Dismissed Plaintiffs'
Judgment Fund Claim For Failure To Join An Indispensable Party
A. Applicable Law And Standard Of Review
Under Rule 19, a claim should be dismissed for failure to join an entity as a
party where that entity is "necessary" to the litigation of the claim, cannot be
joined, and is "indispensable." Fed. R. Civ. P. 19(a)-(b). A "necessary" person is
deemed "indispensable" where, in equity and good conscience, litigation of a claim
cannot proceed without that person. Id. 19(b).
Rule 19(b) provides four factors for determining whether litigation of a
claim should proceed in a "necessary" person's absence, and thus whether that
person is "indispensable." They are:
• the extent a judgment rendered in the person's absence might beprejudicial to the person or those already parties;
• the extent to which the prejudice can be lessened or avoided by
shaping relief or protective provisions in the .judgment;
• the adequacy of a judgment rendered in the person's absence;and
• whether the plaintiff will have an adequate remedy if the action
is dismissed for nonjoinder.
29
Id. These factors "are not rigid, technical tests, but rather guides to the overarching
equity and good conscience determination." Wichita, 788 F.2d at 774 (internal
quotation marks omitted). They are to "be evaluated in a practical and equitable
manner, and be given the appropriate weight" in determining whether equity and
good conscience require dismissal of a claim. Rishell v. Jane Phillips Episcopal
Mern 'lMed. Ctr., 94 F.3d 1407, 1412 (10th Cir. 1996). This Court reviews a
dismissal for failure to join an indispensable party for an abuse of discretion by the
district court. Id. at 1410-11.
In this case's prior appeal, it was conclusively determined that the Seminole
Nation is a necessary party to this litigation that cannot be joined. Davis/, 192
F.3d at 959. Thus, the only Rule 19 issue now before the Court is whether the
district court abused its discretion when it dismissed Plaintiffs' Judgment Fund
claim because "in equity and good conscience" the action could not proceed in the
Seminole Nation's absence, that is, when it determined the Tribe is an
indispensable party.
B. Application Of Rule 19(b)
The district court did not err, much less abuse its discretion, when it applied
Rule 19(b)'s factors and concluded that equity and good conscience did not permit
litigation of the Judgment Fund claim in the Tribe's absence.
30
1. The District Court Correctly Concluded That The Tribe And Named
Parties Would Be Severely Prejudiced By An Adjudication On The
Merits In The Tribe's Absence And That The Prejudice Cannot BeMinimized
The first and second factors of the Rule 19(b) indispensability analysis
inquire whether litigation of a claim absent a necessary party will result in
prejudice to that person as well as existing parties to the litigation and whether any
judgment or relief might be crafted to lessen or avoid that prejudice. Plaintiffs seek
a judgment that will clearly prejudice the Tribe, and there is no way for the district
court to lessen that prejudice.
Plaintiffs' Judgment Fund claim asks the district court not only to invalidate
the Eligibility Requirement contained in the Tribe's ordinances but to require the
Seminole Nation to provide Judgment Fund benefits to the Freedmen. A0056.
Proceeding with this action in the absence of the Tribe would therefore be
extremely prejudicial to the very interests that this Court previously determined
make the Tribe a "necessary" party. Plaintiffs' claim puts at stake the Tribe's
interest in determining the allocation of its Judgment Fund through eligibility
requirements for Judgment Fund programs which are embodied in Tribal
ordinances. 9 The district court would not only determine the validity of the Tribe's
enacted Eligibility Requirement, but also establish its own eligibility requirements
9. Plaintiffs agree that the Judgment Fund is the Tribe's monies. Br. at 19.
31
for access to the Tribe's Judgment Fund, all without the Tribe present. If judgment
were entered in Plaintiffs' favor, the district court, not the Seminole Nation, would
essentially be administratively managing the requirements for participation in the
Tribe's Judgment Fund programs. Having the court insert itself into eligibility
determinations is highly prejudicial to the Tribe and cannot be avoided or
minimized by shaping any judgment or relief.
Plaintiffs argue that neither the first nor the second Rule 19(b) factors favor
dismissal._° According to Plaintiffs, the district court on remand concluded that
Congress intended the Freedmen to share in the Judgment Fund and the Tribe has
no interest in excluding the Freedmen from the Judgment Fund. Br. at 19-22.
Plaintiffs therefore contend the Tribe's interest is a frivolous one and there can be
no prejudice to the Tribe because it has no fight to exclude the Freedmen from the
Judgment Fund. Id. Plaintiffs' argument fails on multiple grounds -- it
misconstrues the district court's order, disregards this Court's holding in Davis I,
and misidentifies the Tribe's interest which will be prejudiced.
Initially, the district court never made a finding of fact nor held that the
Freedmen have a statutory right to share in the Judgment Fund or that the BIA
! 0. As to the second Rule 19 factor (ability to mitigate or eliminate prejudice),
Plaintiffs argue not that the district court failed to consider avenues for minimizingor eliminating any prejudice, but that there is no prejudice to minimize oreliminate. Br. at 22.
32
colluded to deprive the Freedmen of that right. In fact, the district court concluded
that "the provisions of the Distribution Act did not directly address the Black
Seminoles' entitlement to share in the tribal programs." Davis I1, 199 F. Supp. 2d
at 1170. The district court also stated that its order "does not reflect any find!ngs
by the Court as to the merits of plaintiffs' Judgment Fund Award claim." Id. at
1178. _ Plaintiffs' contention that the district court found that the Freedmen have a
right to participate in the Judgment Fund is untenable.
It is true that the "Historical Background" portion of the district court's order
recites some of the thoughts, discussions, and opinions allegedly expressed by
certain BIA employees in the course of providing the consultation with the Tribe
required by the 1990 Distribution Act as the Tribe developed its 1991 Usage Plan.
This does not, however, amount to factual findings by the district court. Moreover,
the district court did not conclude that these statements and opinions reflected
anything more than the attempt of various agency employees to deal with a
complex historical record and a statute that did not directly address the Freedmen's
1 I. Plaintiffs are therefore incorrect to assert that the district court "reached the
merits of this dispute." Br. at 15.
33
entitlement to share in Judgment Fund monies but rather placed the issue of the use
of the Judgment Fund squarely with the Seminole Nation's tribal government. 12
The district court also cited to an August 1991 memorandum by U.S.
Department of the Interior Regional Solicitor Tim Vollmann regarding the release
of Judgment Fund monies subject to the Eligibility Requirements. Notably,
however, the court did not question that memorandum's ultimate conclusion that
the 1990 Distribution Act legislates Congressional deference to tribal decision-
making and that "judgments made by the tribal leadership would be the principal
determiners of the manner of use and distribution of the [Judgment Fund] award."
A0131; seeDavis 11, 199 F. Supp. 2d at 1173.
In addition, the alleged statements and actions by certain BIA officials are
irrelevant to the Rule 19 inquiry; if anything, they might go to the merits of
Plaintiffs' claim, which is not what a Rule 19 analysis is about. Davis 1, 192 F.3d
at 958; Citizen Potawatomi Nation v. Norton, 248 F.3d 993,998 (lOth Cir. 2001)
("the underlying merits of the litigation are irrelevant" for Rule 19 purposes).
12. As this Court is certainly aware, disputes over the proper allocation of ICC
awards are not uncommon. See. e.g., Sisseton-Wahpeton Sioux Tribe v. United
States, 90 F.3d 351 (9th Cir. 1996); Adams v. Morton, 581 F.2d 1314 (9th Cir.
1978); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977); Azure v.
Morton, 514 F.2d 897 (9th Cir. 1975); Prairie Band of the Pottawatomie Tribe of
Indians v. Udall, 355 F.2d 364 (10th Cir. 1966); Prairie Band of the Pottawatomie
Tribe of Indians v. Puckkee, 321 F.2d 767 (10th Cir. 1963).
34
What certain BIA employees may or may not have said or believed is simply
irrelevant to determining whether the Tribe's interest in determining eligibility
requirements for its Judgment Fund will be prejudiced if this litigation continues.
Thus, even if the district court did make the findings that Plaintiffs claim, the
district court correctly did not include them in its Rule 19 analysis because to do so
would be to inappropriately turn the Rule 19 inquiry into a merits adjudication.
Plaintiffs also misconstrue the Tribe's interest at stake in this litigation. This
Court has already found that "[t]he Tribe's claimed interest in determining
eligibility requirements and adopting ordinances embodying those requirements is
neither fabricated nor frivolous." Davis/, 192 F.3d at 959 (emphasis added). This
conclusion is the law of the case which the district court was bound to follow and
this Court must continue to adhere to in these circumstances. McIlravy v. Kerr-
McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) ("[W]hen a court decides
upon a rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case .... [W]hen a case is appealed and remanded,
the decision of the appellate court establishes the law of the case and ordinarily will
be followed by both the trial court on remand and the appellate court in any
subsequent appeal." (Internal quotation marks and citations omitted)). There are, it
is true, "three exceptionally narrow grounds" for departure from the law of the case
35
doctrine, but none of them apply here. /d. at 1035.13 Moreover, Plaintiffs did not
argue in their opening brief that a law of the case exception applies and therefore
have waived any such argument. See, e.g., Gaines-Tabb v. ICI Explosives. USA,
h_c., 160 F.3d 613,624 (10th Cir. 1998) ("[A]rguments not set forth fully in the
opening brief are waived."); United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.
2002) (this Court will not consider argument raised for first time in reply brief).
The Tribe's interest at stake in this litigation is in determining requirements
for access to the Judgment Fund it was awarded, not as Plaintiffs claim to
discriminate against the Freedmen. To the extent Plaintiffs contend that something
in the district court's order on remand rendered the Tribe's interest frivolous, this is
a thinly veiled attempt to resurrect Plaintiffs' conception of the Tribe's Rule 19
interest that this Court soundly rejected in Davis I "because it would render the
Rule 19 analysis an adjudication on the merits." Davis I, 192 F.3d at 958. The
Tribe's interest, as found by this Court, is in determining how its Judgment Fund
monies are spent and administering eligibility requirements for access to its
Judgment Fund, such as the one challenged here by Plaintiffs. That interest is not
13. Those three exceptions are "(1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has subsequently made a
contrary decision of the law applicable to such issues; or (3) when the decision was
clearly erroneous and would work a manifest injustice." Mcllravy, 204 F.3d at
1035 (quotation marks omitted).
36
rendered "frivolous" if any given eligibility requirement might ultimately be held
invalid. To hold otherwise would render the Rule 19 analysis a merits adjudication
-- a prospect specifically rejected by this Court in Davis/and Potawatomi Nation.
Also, one of the purposes of the Rule 19 prejudice inquiry is to insure that a
necessary party's claimed interest is protected and adequately defended during
litigation of a claim. See Wichita, 788 F.2d at 774-75; Shermoen v. United States,
982 F.2d 1312, 1317 (9th Cir. 1992) ("Just adjudication of claims requires that
courts protect a party's right to be heard and to participate in adjudication of a
claimed interest, even if the dispute is ultimately resolved to the detriment of that
party .... [T]he joinder rule is to be applied so as to preserve the right of parties to
make known their interests and legal theories." (Internal quotation marks and
citation omitted)). In certain circumstances where a plaintiff challenges particular
federal agency action it may be that the United States can adequately represent a
non-party Tribe with which it shares an interest in having the agency action
affirmed. Here, however, this Court has already determined that "[u]nless the
Tribe is a party to the lawsuit, it has no ability to protect its claimed interest in
determining eligibility requirements." Davis I, 192 F.3d at 959. In addition, the
crux of Plaintiffs' Judgment Fund claim is an attack on the Tribe's actions (its
ordinance containing the Eligibility Requirement), not a federal agency's. This is
evidenced by the fact that Plaintiffs seek an injunction compelling the Seminole
37
Nation to provide benefits to the Freedmen. A0056. It is therefore the very finding
that Plaintiffs claim the district court made -- that the Eligibility Requirement is
invalid because it illegally excludes the Freedmen from the Judgment Fund
programs -- on which this Court's holding in Davis ! and Rule 19 recognize the
Tribe's right to be heard so that its interests are adequately presented and defended.
Finally, it is well established that Rule 19(b)'s prejudice inquiry is similar, if
not identical, to the Rule 19(a) necessary party determination. Enterprise
Management Consultants, hzc. v. United States, 883 F.2d 890, 894 n.4 (10th Cir.
1989) (Rule 19(b) "prejudice test is essentially the same as the inquiry under Rule
19(a)(2)(i) into whether the action without a person will, as a practical matter,
impair that person's ability to protect his interest relating to the subject of the
lawsuit"); see Dawavendew v. Salt River Project Agric. Improvement and Power
Dist., 276 F.3d 1150, 1162 (9th Cir. 2002) ("The prejudice to the Nation [under
Rule 19(b)] stems from the same impairment of legal interests that makes the
Nation a necessary party .... "); Clinton v. Babbitt, 180 F.3d 1081, 1090 (9th Cir.
1999) (prejudice test under Rule 19(b) is essentially same as inquiry under Rule
19(a)). In Davis I, this Court held that the Tribe is a necessary party under Rule
19(a)(2)(i) because the Tribe has a non-frivolous interest and its ability to protect it
would be impaired or impeded if litigation of the Judgment Fund claim continued
in its absence. 192 F.3d at 959. As discussed above, this is law of the case and
38
Plaintiffs have not demonstrated why the result should be any different. The
district court's finding of prejudice to the Tribe is therefore consistent with, if not
compelled by, this Court's holding in Davis L
2. The District Court Properly. Concluded The Federal Defendants
Risk Inconsistent Legal Obligations
The district court properly concluded that the judgment Plaintiffs seek
presents a substantial risk of prejudicing the Federal Defendants through
inconsistent legal obligations. Plaintiffs seek an injunction compelling the Federal
Defendants "to require that the Seminole Nation provide benefits deriving from the
Judgment Fund Trust to Estelusti Seminoles in a nondiscriminatory manner and on
the same basis that such benefits are provided to other members of the Seminole
Nation." A0056 (emphasis added). Plaintiffs do not suggest how a court (in the
Tribe's absence) or the Federal Defendants might compel the Seminole Nation to
provide Judgment Fund benefits to the Freedmen. Presumably the Federal
Defendants would have to take some as yet unspecified action to force the Tribe to
provide the Freedmen with access to Judgment Fund programs. An order requiring
such action by the Federal Defendants presents them with the real possibility of a
lawsuit by the absent Seminole Nation to vindicate its tribal sovereignty,
ordinances, and rights with respect to its Judgment Fund.
39
Plaintiffs argue the district court erred becausea "judgment for the Estelusti
would not require the BIA to take any action against the Tribe or to alter Judgment
Fund programs" and thus any possible inconsistent legal obligation is speculative.
Br. at 23. Plaintiffs are incorrect. First, it cannot seriously be argued that a
decision by the BIA to not disburse Judgment Funds to the Tribe is not "action:
against the Tribe." Surely if Plaintiffs tried to withdraw funds from their savings
account and their bank refused to release the funds, Plaintiffs would say the bank
took action against them.
Second, Plaintiffs seem to contend that the injunction they seek will simply
prevent the BIA from making disbursements and that the Tribe "might then remove
the Eligibility Requirement, but it need not do so." Br. at 23. But this is not, the
relief sought in the complaint. It requests an injunction compelling the Federal
Defendants to affirmatively require that the Tribe provide Judgment Fund benefits
to the Freedmen, not just to stop providing funds to the Tribe while the Eligibility
Requirement is in place.
Plaintiffs' contention that compliance with a federal court order entered here
cannot create an inconsistent legal obligation also misses the point. Br. at 23-24.
Even assuming that the federal government as trustee could legally withhold
Judgment Fund monies based on a court order where the Tribe was not a party, that
does not address the potential prejudice to the Federal Defendants. If they were to
40
take that action, the Federal Defendants would clearly risk a lawsuit by the Tribe
that claims the Eligibility Requirement is valid or that it is not the Federal
Defendants' province to determine Judgment Fund eligibility requirements,
particularly because the ! 990 Distribution Act gave that discretion to the Tribe.
The Tribe, of course, would not be bound by any order entered in this litigation and
therefore would be free to litigate the validity of the Eligibility Requirement against
these same Federal Defendants. This repetitious litigation alone prejudices the
Federal Defendants, but even worse, what if the Tribe prevailed in its subsequent
lawsuit -- which court's order would the Federal Defendants be bound to follow?
Cf Owens-Illinois, hlc. v. Meade, 186 F.3d 435,441-42 (4th Cir. 1999) ("[T]he
high potential for factual and legal whipsawing indicates that the parties will be
prejudiced by any judgment rendered in the absence of the non-diverse
[party] .... ,,).14
14. It is plainly irrelevant whether the Federal Defendants are "squeamish" aboutconfronting the Seminole Nation. Br. at 24. Even if true, that would have no
bearing on whether continuing the litigation here in the absence of the Tribe would
prejudice the Federal Defendants. To continue the litigation would prejudice the
Federal Defendants because, as the district court found, it is likely that they wouldface another lawsuit, this one by the Tribe, if Plaintiffs were successful.
41
3. The District Court Correctly Concluded That A Judgment Rendered
In The Tribe's Absence Would Not Be Adequate
Under Rule 19(b)'s third factor, a court considers "whether a judgment
rendered in the person's absence will be adequate." Fed. R. Civ. P. 19(b).
According to the Supreme Court, this factor embodies "the interest of the courts
and the public in complete, consistent, and efficient settlement of controversies."
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968).
As discussed above, were the Judgment Fund claim to proceed without the Tribe,
any judgment entered in Plaintiffs' favor presents the strong likelihood of
subsequent litigation and even inconsistent judgments. Plaintiffs' brief makes clear
that the Tribe is not shy about suing the Federal Defendants when they take action
with respect to the Tribe's Judgment Fund. Br. at 26. Thus, as the district court
concluded, Plaintiffs' successful prosecution of this claim will not end the
controversy, and the interests of the courts and public embodied in Rule 19(b)'s
third factor will not be served.
Plaintiffs argue, however, that a judgment in their favor will be adequate
because all they seek is a declaration of the Freedmen's rights to Judgment Fund
benefits and an order prohibiting the Federal Defendants from making distributions
in violation of those rights. Id. at 25. As previously discussed, the injunctive relief
sought by Plaintiffs is not so innocuous; it would compel the Federal Defendants to
42
require that the Tribe provide Judgment Fund benefits to Freedmen. Even putting
that aside, the fact remains that to grant Plaintiffs' relief, the district court will have
to pass on the validity of the Tribe's Eligibility Requirement. Subsequent litigation
brought by the Tribe against the Federal Defendants to vindicate that requirement is
likely. A judgment for Plaintiffs in this case therefore will not be adequate in the
sense that it will not result in "complete, consistent, and efficient settlement" of the
controversy over the Eligibility Requirement.
The district court also noted that even with a judgment for Plaintiffs, the
Tribe "would certainly continue to assert its authority, management responsibilities
and control of the Judgment Fund Programs via its tribal ordinances" and therefore
the judgment would be inadequate. Davis II, 199 F. Supp. 2d at 1177. Plaintiffs
argue this conclusion was erroneous because "the Tribe reacts swiftly when the
BIA cuts off federal funding" and "[t]he notion that [the] Tribe will not react to
losing access to the $56 million Judgment Fund is absurd." Br. at 26. Ironically,
Plaintiffs support their argument with reference to a list of litigation that Plaintiffs
claim the Tribe instituted when the BIA threatened to or actually did cut off
funding to the Tribe. Id. But that undermines rather than supports Plaintiffs'
position. It reinforces the district court's conclusion that if Plaintiffs obtain the
judgment they seek, it will not change the Tribe's ways and will not result in a
complete and efficient resolution of the controversy regarding the Eligibility
43
Requirement. Rather, it will lead only to litigation instituted by the Tribe to protect
its interests that are at stake in this litigation and to restore funding under the terms
and conditions the Tribe thinks appropriate. The district court was correct to
conclude that the third Rule 19(b) factor favors dismissal.
Finally, Sac and Fox Nation of Mtlssouri v. Norton, 240 F.3d 1250 (10th Cir.
2001), relied on by Plaintiffs, is inapposite. The claims in Sac" andFox "turn[ed]
solely on the appropriateness of the Secretary's actions, and the Secretary [wa]s
clearly capable of defending those actions." Id. at 1260. To the contrary, the
claims of Plaintiffs here turn on the appropriateness of the Tribe's Eligibility
Requirement and, as this Court determined, "[u]nless the Tribe: is a party to the
lawsuit, it has no ability to protect its claimed interest in determining eligibility
requirements." Davis I, 192 F.3d at 959.
Moreover, the plaintiffs in Sac and Fox sought a declaration that the
Secretary acted arbitrarily and capriciously in acquiring land and concluding that a
tribe could conduct gambling pursuant to the Indian Gaming Regulatory Act on
that land. Sac andFox, 240 F.3d at 1256-57. Here, Plaintiffs' relief is directed at
the Tribe. They seek an injunction compelling the Federal Defendants to require
that the "Seminole Nation provide benefits deriving from the Judgment Fund Trust
to Estelusti Seminoles in a nondiscriminatory manner and on the same basis that
such benefits are provided to other members of the Seminole Nation." A0056
44
(emphasis added). Similarly, Plaintiffs seek to condition payment of any Judgment
Fund monies to the Tribe on the "Seminole Nation's compliance" with the
nondiscriminatory policy asserted by Plaintiffs. Id. Also, the declaratory relief
sought by Plaintiffs includes a judgment that the Freedmen are "entitled to receive
benefits deriving from the [Tribe's] Judgment Fund." Id. Unlike Sac and Fox,
where the claim and relief was directed at the Secretary's actions, Plaintiffs' claim
and relief here is aimed at invalidating the Tribe's enacted Eligibility Requirement.
See Davis I, 192 F.3d at 959 ("A ruling on the merits in favor of Plaintiffs on their
Judgment Fund Award claim will have the practical effect of modifying the Tribal
ordinances containing the Eligibility Requirement.").
4. The District Court Did Not Err By Dismissing Plaintiffs' Claim
Even Though It Found Plaintiffs Lack An Adequate AlternativeRemedy
The district court stated that although the Seminole Nation's legislative and
political mechanisms still remain available to Plaintiffs, this course of relief was
"inadequate" to address Plaintiffs' claim. Davis 11, 199 F. Supp. 2d at 1177.
Because this was the only factor that the district court found weighed in Plaintiffs'
favor, the Court concluded that in equity and good conscience Plaintiffs' claim
should not proceed. Id. at 1177-78. The district court did not abuse its discretion
and properly applied Rule 19's principles.
45
"When... a necessary party under Rule 19(a) is immune from suit, there is
very little room for balancing of other factors set out in Rule 19(b), because
immunity may be viewed as one of those interests compelling by themselves."
Enterprise Management Consultants, 883 F.2d at 894 (internal quotation marks and
citations omitted). Moreover, dismissal for nonjoinder where a party will not have
an adequate remedy is "less troublesome" where "dismissal of th[e] suit is
mandated by the policy of tribal immunity" because "the dismissal turns on the fact
that society has consciously opted to shield Indian tribes from suit without
congressional or tribal consent" and not "some procedural defect such as venue."
Wichita, 788 F.2d at 777; see also Enterprise Management Consultants, 883 F.2d
at 894. It is undisputed that it is the tribe's sovereign immunity that prevents it
from being joined here. In Potawatomi Nation, 248 F.3d at 1001, this Court upheld
a dismissal for failure to join absent tribes even though that "meant there [was] no
way to challenge the conduct in question." The district court in Potawatomi Nation
based its dismissal on the "strong policy favoring dismissal when a court cannot
join a tribe because of sovereign immunity" and the fact that "the absent tribes
would suffer substantial prejudice if the action proceeded without them and there
was no way to lessen the prejudice." Id. (Internal quotation marks and citation
46
omitted). These same factors are present here and therefore the district court's
decision that this litigation cannot continue without the Tribe must be affirmed._5
5. To The Extent The District Court Did Not Consider Other
"Equitable Factors" It Did Not Abuse Its Discretion
On remand, the district court recognized that it had substantial discretion in
what factors to consider and how much weight to give them when deciding whether
litigation could proceed in equity and good conscience. Davis II, 199 F. Supp. 2d
at 1175-76. Plaintiffs nonetheless claim that the district court erred by limiting its
analysis to those factors enumerated in Rule 19(b). This argument is too little, too
late.
In the briefing before the district court on remand, Plaintiffs never argued the
district court should consider any factor other than the those listed in Rule 19(b).
A0076-85; A0251-52. Particularly where review is for an abuse of discretion by
the district court, an appellate court should follow the general rule that issues or
arguments not presented to the district court will not be considered on appeal. See
generally Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991).
Moreover, Plaintiffs do not point to any authority holding that a district court
abuses its discretion by not looking beyond Rule 19(b)'s enumerated factors. In
15. Plaintiffs' argument that it would have been error to dismiss after concluding
no alternative forum was effectively available "even if all of the Rule 19(b) factorsfavored dismissal" misstates the law of this Circuit. Br. at 27.
47
addition, the factors now suggested by Plaintiffs are irrelevant. As discussed
above, the district court did not determine that "the BIA had deliberately evaded
Congressional intent on the basis of racial animus." Br. at 28.16
Also, contrary to Plaintiffs' contention, there is nothing in the Federal
Defendants' position here that is undermined by its opposition to intervention by
the Freedmen in Seminole Nation of Oklahoma v. Norton, 206 F.R.D. 1 (D.D.C.
2001) (Plaintiffs refer to this as the "Babbitt case" and for consistency the Federal
Defendants do so, too). The Tribe instituted the Babbitt lawsuit against the
Department of the Interior (the "DOI") when the DOI deemed nine amendments
passed by the Tribe to its constitution to be without effect or force. Generally
speaking, the amendments sought to deny the Freedmen membership in the
Seminole Nation, "establish a court system charged with interpreting Seminole
law, vest the [Tribe's] government with the ability to lay and collect taxes, vest the
[T]ribe's members with the power to conduct referenda, and limit the term of the
Principal Chief." A0332. The DOI refused to recognize the amendments because
the Tribe failed to submit them for the Secretary's approval prior to enactment as
required by the Tribe's constitution. Babbitt, 206 F.R.D. at 3-4. As to the
16. Further, to consider this under the guise of other relevant equitable factors
would be to do an end-run around this Court's holding that Rule 19 determinations
are not merits adjudications.
48
substance of the amendments, the DOI "expresse[d] particular concern about
[those] that purport to disenfranchise the Freedmen members of the Seminole
Nation" and advised the Tribe that the DOI would "not recognize any further
resolutions or actions of the [Tribe's] General Council without the participation of
the Freedmen." Id. at 4 (internal quotation marks omitted). The Seminole Nation
filed suit against the DOI seeking judicial review of the agency's refusal to
recognize the nine constitutional amendments.
The Freedmen sought to intervene in the Babbitt lawsuit over the status of
the Tribe's constitutional amendments and assert their unrelated Judgment Fund
claim. The Babbitt court found that through this intervention, the Freedmen
improperly sought to "assert an entirely new universe of claims" and "circumvent[]
other rules of civil procedure by simply intervening in another's lawsuit and
expanding the scope of the issues presented therein." Id. at 7-8. The Freedmen's
proposed intervention appeared to the Babbitt court to be an unabashed attempt at
impermissible "judge shopping" given the ongoing litigation in this case. Id. The
Babbitt court also questioned whether the Tribe's filing of a lawsuit constituted a
sufficient waiver of sovereign immunity and thus whether it could even hear the
Judgment Fund claim. Id. Because the Freedmen's intervention in Babbitt would
have vastly expanded the scope of that litigation, was an improper attempt to
circumvent other rules of civil procedure, was impermissible judge shopping, and
49
the Tribe's sovereign immunity still might have prevented the court from
addressing a Judgment Fund claim, the government's opposition to intervention in
Babbitt is not inconsistent with its claim that it and the Tribe would be prejudiced if
this litigation continued without the Tribe.
II
The District Court Properly Dismissed Plaintiffs' CDIB Claim For Failure To
Exhaust Administrative Remedies
In Davis I, this Court determined that the district court abused its discretion
when it dismissed Plaintiffs' CDIB claim for failure to join an indispensable party.
On remand, the Federal Defendants moved to dismiss or, alternatively, for
summary judgment on the CDIB claim. The Federal Defendants' motion argued,
among other things, that the CDIB claim was not ripe for review because Plaintiffs
failed to exhaust administrative remedies. The district court agreed and dismissed
the CDIB claim without prejudice. Davis 11, 199 F. Supp. 2d at 1180.
Plaintiffs' only argument on appeal is that the district court erred because the
Federal Defendants allegedly never made a proper request for the district court to
resolve this jurisdictional issue. Br. 30-31. Plaintiffs seem to contend that even
though the Federal Defendants moved to dismiss or, alternatively, for summary
judgment, on this issue, the district court was bound by this Court's footnote in
Davis I that "[f]or the sole purpose of determining jurisdiction at this preliminary
50
stage of the lawsuit... [t]he allegations in Plaintiffs' complaint are sufficient to
resolve the jurisdictional issues in favor of Plaintiffs." Davis I, 192 F.3d at 954 n. 1.
Plaintiffs are incorrect.
The Federal Defendants moved for dismissal pursuant to, among others,
Rule 12(b)(l ) and alternatively for summary judgment and introduced evidence in
support.17 To resolve either of those motions in these circumstances, the district
court's review was not limited to the face of the complaint• Rather, the district
court was obligated (as it did) to look beyond that pleading and at the actual
evidence submitted by the parties. This is true for summary judgment motions and
motions to dismiss pursuant to Rule 12(b)(1). See Fed R. Civ. P. 56(c) (summary
judgment should be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law"); Land v. Dollar, 330 U.S. 731,735 n.4
(1947) (stating that "when a question of the District Court's jurisdiction is raised..
• the court may inquire by affidavits or otherwise, into the facts as they exist" and
decided a decade after adoption of the Federal Rules of Civil Procedure with no
17. Rule 12(b)(1) is a proper procedural vehicle for alleging that a plaintiff has
failed to exhaust administrative procedures and therefore the claim is not ripe for
review. Wright & Miller, Federal Practice and Procedure § 1350; see also
Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir. 1996)•
51
subsequent material change to Rule 12(b)(1)); Sizova v. National htst. of Standards
& Tee&, 282 F.3d 1320, 1324 (10th Cir. 2002) ("When... a party's Rule 12(b)(l)
motion challenges the facts upon which subject matter jurisdiction depends, a
district court may not presume the truthfulness of the complaint's factual
allegations. A court has wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1)." (Internal quotation marks and citations omitted))._8 Thus, the Federal
Defendants properly moved the district court to go beyond the complaint and
examine the actual evidence.
It is of no significance that a portion of the Federal Defendants' moving
papers articulated the more limited Rule 12(b)(6) standard -- they did, after all, also
move pursuant to Rule 12(b)(6). The parties' recitation of a particular standard
cannot change the district court's authority and duty in disposing of a Rule 12(b)(1)
motion. More generally, the district court is obligated to satisfy, itself at every point
of the litigation that it has jurisdiction to hear a claim. See, e.g., Fed. R. Civ. P.
18. Courts have recognized at least two forms of a Rule 12(b)(1) motion -- (i) a
facial challenge to the sufficiency of the allegationsrelating to jurisdiction in the
complaint and (ii) going beyond the complaint and challenging the actual facts on
which jurisdiction depends. See. e.g., Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). On the exhaustion and ripeness question, the record makes clear
that the Federal Defendants were challenging whether, as a factual matter,
Plaintiffs had taken the administrative steps necessary for judicial review.
52
12(h)(3). In addition, the Federal Defendants moved for summary judgment on
this issue. This clearly required the district court to look beyond the complaint's
allegations. Plaintiffs were on notice that they needed to submit evidence in
opposition to the motion and in fact they did. A0301-08. Thus, Plaintiffs do not,
nor canthey, claim prejudice from the district court's analysis going beyond the
allegations contained in the complaint. The district court was not required to limit
its review to the face of the complaint and nothing it found was inconsistent with
Davis L
In as much as Plaintiffs' brief does not otherwise challenge the merits of the
district court's conclusion that Plaintiffs failed to exhaust their administrative
remedies, any such arguments have therefore been waived. Gaines-Tabb, 160 F.3d
at 624 ("[A]rguments not set forth fully in the opening brief are waived."). If this
Court is nonetheless inclined to look beyond Plaintiffs' procedural argument, it is
clear the district court properly dismissed the CDIB claim. An agency can
establish rules that require an applicant to take certain appellate steps within the
agency before judicial review will be available. See United States v. Consolidated
Mines & Smelting Co., 455 F.2d 432,452 (9th Cir. !971). BIA regulations provide
that no decision which is subject to appeal to higher authority within the BIA shall
constitute final agency action reviewable pursuant to 5 U.S.C. § 704. See 25
C.F.R. § 2.6(a). Where a BIA official fails to act, the regulations provide a
53
procedure for appealing that failure by, among other things, asking in writing that
the BIA official take the action originally requested. See id. § 2.8.
In the district court, Plaintiffs rested their ripeness and exhaustion arguments
on the affidavits of Sylvia Davis and eight other individuals (who are not named
plaintiffs) stating that each had submitted a CDIB card application with the BIA,
but never received a response. A0287-94; A0304. These factual allegations are
insufficient to establish exhaustion of administrative remedies and ripeness; nor are
they sufficient to create a triable issue of material fact. To be sure, it is the BIA's
position that Sylvia Davis never applied for a CDIB card (for herself or Donnell
Davis) because the BIA has no record indicating Davis applied. SA069. Davis
alleges she did submit an application but received no response. While there is a
factual dispute as to whether Davis applied for a CDIB card, this is not material
because there is no evidence that, even if Davis did apply, she took the requisite
steps to appeal the agency inaction she states occurred (e.g. submit a request in
writing that the BIA official take the action originally requested). 19
19. Plaintiffs have never asserted, nor could they, exhaustion of administrative
remedies based on actions with respect to the thirty-two names submitted to the
IBIA by Plaintiffs' counsel. Sylvia Davis (on behalf of Donnell Davis) is the only
named, individual plaintiff in this action and her application was allegedly never
acted upon -- Davis contends in her affidavit that she applied but received no
response from the BIA. A0304.
54
Finally, the district court correctly declined to excuse Plaintiffs' failure to
exhaust these administrative procedures. Determining entitlement to CDIB cards
involves historically unique and complex Indian blood degree issues which should
first be addressed by the BIA. Not only would the reviewing court benefit from the
agency's expertise and the development of a record, but judicial review might
become unnecessary. "It is obvious that administrative remedies must be
exhausted under virtually all circumstances where judicial review is sought" and
the district court was correct to require it here. Hart" v. Federal Home Loan Bank
Bd., 557 F.2d 747, 749 (10th Cir. 1977).
55
CONCLUSION
For the foregoing reasons, the district court's April 25, 2002 order should be
affirmed.
Respectfully submitted,
OF COUNSEL:
SUSAN K. EHLEN
CHARLES R. BABST JR.
U.S. Department of the Interior
Office of the Solicitor
Tulsa Field Solicitor's Office
Tulsa, OK 74145
THOMAS L. SANSONETTI
Assistant Attorney General
ROBERT G. McCAMBELL
United States Attorney
ARVO Q. MIKKANEN
Assistant United States Attorney
JOHN A. BRYSON __""J
/AARON P. AVILA
Attorneys, U.S. Department of Justice
Environment & Natural Resources Div.
P.O. Box 23795 (L'Enfant Plaza Station)
Washington, DC 20026
(202) 514-1307
OCTOBER 2002
90-2-4-1807
56
ORAL ARGUMENT STATEMENT
.The federal appellees believe that oral argument would benefit the Court, as
this appeal concerns important issues regarding the indispensability of Indian tribes
to lawsuits challenging their ordinances, regulations, and policies.
57
CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)
I certify that the foregoing Brief of the Federal Appellees complies with the
type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B). This brief
contains 12,990 words.
Environment & Natural Resources Div.
Department of JusticeP.O. Box 23795 (L'Enfant Plaza Station)Washington, DC 20026(202) 514-1307
58
CERTIFICATE OF SERVICE
I certify that two copies of the foregoing Brief of the Federal Appellees and one
copy of the Supplemental Appendix of the Federal Appellees have been served upon each
of the following counsel on this 17th day of October, 2002 by dispatching same by First
Class U.S. Mail and addressed to:
Franklin B. Velie
Mark H. Goldey
Mark A. Strauss
Salans, Hertzfeld, Heilbronn,
Christy & Viener
620 Fifth Avenue
New York, NY 10020-2457
Jonathan T. Velie
William Velie
Velie & Velie
210 E. Main Street
Suite 222
Norman, OK 73071
John Engel
Shaw, Pittrnan, Potts& Trowbridge
2300 N Street, NW
Washington, DC 20037
Linda A. Epperley
United States Attorney's Office
Eastern District of Oklahoma
1200 West Okmulgee Street
Muskogee, OK 74401
Arvo Q. Mikkanen
United States Attorney's Office
210 West Park Avenue
Suite 400
Oklahoma City, OK 73102
Charles R. Babst, Jr.
U.S. Department of the Interior
Office of the Solicitor
Tulsa Field Solicitor's Office
7906 East 33rd Street
Tulsa, OK 74145
Aaron P. Avila
Environment & Natural Resources Division
Department of Justice
P.O. Box 23795 (L'Enfant Plaza Station)
Washington, DC 20026
(202) 514-1307
59