United Tribe of Shawnee Indians v. US, 00-3140

• Citation: 253 F.3d 543
• Decision Date: 13 June 2001
• Docket Number: No. 00-3140,00-3140
• Parties: (10th Cir. 2001) UNITED TRIBE OF SHAWNEE INDIANS, a United States Treaty Tribe, on our behalf and on behalf of all individuals descended from all such members receiving allotments under the Treaty of 1854, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; DEFENSE DEPARTMENT SECRETARY, The Honorable William S. Cohen; DEPARTMENT OF ARMY, The Honorable Paul W. Johnson, Deputy Assistant Secretary of the Army; GENERAL SERVICES ADMINISTRATION, The Honorable David I. Barram, Administrator; I. BLANE HASTINGS, Senior Reality Officer, The Heartland Region, General Services Administration; DEPARTMENT OF INTERIOR, Bruce Babbitt, Secretary; KEVIN GOVER, Assistant Secretary-Indian Affairs; BUREAU OF INDIAN AFFAIRS, Nancy L. Jamison, Acting Director, Office of Management and Administration, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 543

253 F.3d 543 (10th Cir. 2001)

UNITED TRIBE OF SHAWNEE INDIANS, a United States Treaty Tribe, on our behalf and on behalf of all individuals descended from all such members receiving allotments under the Treaty of 1854, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; DEFENSE DEPARTMENT SECRETARY, The Honorable William S. Cohen; DEPARTMENT OF ARMY, The Honorable Paul W. Johnson, Deputy Assistant Secretary of the Army; GENERAL SERVICES ADMINISTRATION, The Honorable David I. Barram, Administrator; I. BLANE HASTINGS, Senior Reality Officer, The Heartland Region, General Services Administration; DEPARTMENT OF INTERIOR, Bruce Babbitt, Secretary; KEVIN GOVER, Assistant Secretary-Indian Affairs; BUREAU OF INDIAN AFFAIRS, Nancy L. Jamison, Acting Director, Office of Management and Administration, Defendants-Appellees.

No. 00-3140

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 13, 2001

Appeal from the United States District Court for the District of Kansas (D.C. No. 99-CV-2063-GTV) [Copyrighted Material Omitted]

Sean W. Pickett, Weber, Pickett & Gale, L.L.C., Kansas City, Missouri, and John W. Ragsdale, Jr., Prairie Village, Kansas, for Plaintiff-Appellant

Sean H. Donahue, Environment and Natural Resources Division, Appellate Section, Washington, D.C. (James F. Simon, Acting Assistant Attorney General, Jackie N. Williams, United States Attorney, Janice Miller Karlin, Assistant United States Attorney, Kansas City, Kansas, and Ellen Durkee, Environment and Natural Resources Division, Appellate Section, Washington, D.C., with him on the brief), for Defendants-Appellees.

Before TACHA, Chief Judge, SEYMOUR and BRORBY, Circuit Judges.

SEYMOUR, Circuit Judge.

The United Tribe of Shawnee Indians (UTSI) brought this action for declaratory and mandamus relief against the United States, the Secretaries of Interior and Defense, and various federal administrative officials. UTSI sought a declaration of its status as a federally recognized Indian tribe, a mandate that it be included on the list of recognized tribes maintained by the Bureau of Indian Affairs, and a declaration that a constructive trust in its favor be placed on certain lands subject to disposition under the Federal Property and Administrative Services Act, 40 U.S.C. 471 et. seq.¹ The district court granted defendants' motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), concluding that UTSI's claims were barred by the doctrines of sovereign immunity, ripeness, standing, and primary jurisdiction. See United Tribe of Shawnee Indians v. United States, 55 F. Supp. 1238 (D. Kan. 1999). UTSI appeals and we affirm.

I

The facts underlying this litigation are set out in some detail in the district court opinion. We therefore recite only those necessary to our disposition of this appeal. UTSI is made up of thirty members, all of whom are related to its representative, principal chief Jimmie D. Oyler. It is based in Kansas on land owned by Mr. Oyler, which was patented to his ancestors under the Treaty with the Shawnee, 10 Stat. 1053 (1854). UTSI claims it is a present-day continuation as a tribal entity of the Shawnee Tribe that entered into the 1854 Treaty.

In 1994, Mr. Oyler initiated proceedings with the Bureau of Indian Affairs (BIA) under 25 C.F.R. Pt. 83. These regulations provide the administrative process by which an Indian group can establish it exists as an Indian tribe, thereby becoming recognized by the federal government for purposes of the protection, benefits and services the government provides to tribes. See 25 C.F.R. 83.2 (2000). Mr. Oyler abandoned these proceedings before the BIA had made a determination regarding whether UTSI was entitled to recognized status.

In 1998, federal officials began considering the potential disposal of the Sunflower Army Ammunition Plant as excess property. Part of this facility occupies land that was previously included in an Indian reservation created by the 1854 Treaty with the Shawnee. UTSI is based within three miles of the Sunflower Plant. The Federal Property and Administrative Services Act, which controls the management and disposal of government property, provides for the transfer to the Secretary of the Interior of

excess real property located within the reservation of any group, band, or tribe of Indians which is recognized as eligible for services by the Bureau of Indian Affairs. Such excess real property shall be held in trust by the Secretary for the benefit and use of the group, band, or tribe of Indians, within whose reservation such excess real property is located.

40 U.S.C. 483(a)(2).

In the present lawsuit, UTSI seeks a judicial ruling that it is a recognized tribe by virtue of both the 1854 Treaty and the decision in The Kansas Indians, 72 U.S. 737, 756 (1866), which held that the Shawnee tribe existed as a recognized tribal entity in 1866. UTSI also requests that reservation land included in the Sunflower facility be placed in constructive trust for its benefit, alleging it is entitled to this equitable relief under section 483(a)(2) due to its asserted recognized status. The district court did not reach the merits of UTSI's claims. Instead the court dismissed for lack of jurisdiction, holding that the only basis for a waiver of defendants' sovereign immunity was provided by the Administrative Procedure Act, 5 U.S.C. 701 et seq. (APA), and that UTSI's claims were not ripe for review under the APA because no final agency action had been taken.

On appeal, UTSI contends the district court erred in failing to conclude this case falls within the exception to sovereign immunity discussed in Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 (1949). UTSI also asserts that the lack of a final order is irrelevant to its ability to proceed because it is not asserting claims directly under the APA. Because we view these two issues as dispositive of this appeal, we need not address the remaining claims made by UTSI.

II

Motions to dismiss under Rule 12(b)(1) may take one of two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. Id. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Id. "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends." Id. at 1003. In addressing a factual attack, the court does not "presume the truthfulness of the complaint's factual allegations," but "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

It appears from the record on appeal that defendants mounted a factual, rather than a facial, challenge to subject matter jurisdiction below. "Accordingly, we review the district court's dismissal for lack of subject matter jurisdiction de novo[, and its] findings of jurisdictional facts for clear error." Id.

III

We turn first to UTSI's argument that sovereign immunity is waived here under the holding in Larson. The United States as a sovereign is immune from suit unless it consents to be sued. See United States v. Murdock Mach. & Eng'g Co., 81 F.3d 922, 929 (10th Cir. 1996). This immunity extends to injunctive relief such as that sought here; absent express provision, a court has no jurisdiction to either restrain the government from acting or compel it to act. See id.; see also In re Talbot, 124 F.3d 1201, 1206 (10th Cir. 1997). "Any waiver 'must be construed strictly in favor of the sovereign and not enlarged beyond what [its] language requires.'" Talbot, 124 F.3d at 1206 (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)).

In Larson, the Supreme Court recognized an exception to sovereign immunity under the ultra vires doctrine.

[W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.

Larson, 337 U.S. at 689.

UTSI contends that the BIA's actions in refusing to accord it status as a recognized tribe and enter it on the list of recognized tribes is outside the limit on the BIA's authority imposed by the Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (1994) (codified at 25 U.S.C. 479a). Section 103 of that Act provides:

(3) Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulation denominated "Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;" or by a decision of a United States court;

(4) a tribe which has been recognized in one of these manners may not be terminated except by an Act of Congress.

25 U.S.C. 479a (note). UTSI argues that because the Shawnee tribe was recognized as a tribal entity by Congress in the 1854 Treaty and by the Supreme Court in The Kansas Indians, the BIA acted outside the limits on its authority by refusing to list UTSI as a recognized tribe, which effectively terminated its existing recognition contrary to section 103.

UTSI's argument assumes the very factual issue at the heart of this litigation. UTSI can only prevail on its contention if we accept its bare assertion that it is the present-day embodiment of the Shawnee Tribe. The only evidence even arguably offered by UTSI to support this proposition is the fact that UTSI is based on land patented to Mr. Oyler's ancestor by the Treaty. While this fact may establish that Mr. Oyler's ancestor was a...