Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v. Babbitt

• Decision Date: 13 January 1995
• Docket Number: No. 93-5262,93-5262
• Citation: 310 App.D.C. 66,43 F.3d 1491
• Parties: , 63 USLW 2468, 31 Fed.R.Serv.3d 701 KICKAPOO TRIBE OF INDIANS OF the KICKAPOO RESERVATION IN KANSAS, et al., Appellants v. Bruce BABBITT, in His Official Capacity as Secretary of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1491

43 F.3d 1491

310 U.S.App.D.C. 66, 63 USLW 2468, 31

Fed.R.Serv.3d 701

KICKAPOO TRIBE OF INDIANS OF the KICKAPOO RESERVATION IN KANSAS, et al., Appellants v. Bruce BABBITT, in His Official Capacity as Secretary of the Interior, et al., Appellees.

No. 93-5262.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 3, 1994.

Decided Jan. 13, 1995.

Before: WILLIAMS, GINSBURG, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas appeals from the grant of summary judgment to the Secretary of Interior and the Assistant Secretary of Interior for Indian Affairs ("the Secretary"). The Tribe contends that the district court erred in ruling that, although a compact between the Tribe and the Governor of Kansas had been approved by operation of law under the Indian Gaming Regulatory Act ("Gaming Act"), 25 U.S.C. Sec. 2710(d)(8)(C), the compact was nevertheless invalid because the Governor lacked the authority under state law to sign the compact on behalf of the State of Kansas. We conclude, in agreement with the Secretary, that the district court abused its discretion in denying the Secretary's motion to dismiss the complaint because Kansas was an indispensable party under Rule 19(b) of the Federal Rules of Civil Procedure. Accordingly, we reverse and remand with instructions to dismiss the complaint.

I.

The Gaming Act authorizes Indian tribes and states to enter into "Tribal-State compacts" setting forth the terms under which a tribe may conduct certain forms of gambling on its reservation. 25 U.S.C. Secs. 2701-21 (1988). A compact must be submitted to the Secretary of the Interior, who shall approve or disapprove it within forty-five days; if the Secretary fails to act within that period, the compact is deemed approved. Id. Sec. 2710(d)(8)(C). Thereafter, the Secretary is required to publish notice of the approved compact in the Federal Register. Id. Sec. 2710(d)(8)(D).

In January 1992, the Chairman of the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas and the Governor of Kansas

entered into a compact authorizing Class III gambling on the Kickapoo Reservation in Kansas. ¹ Shortly after the Tribe forwarded the compact to the Secretary of the Interior, the Attorney General of Kansas challenged the Governor's authority under Kansas law to negotiate and enter into the compact, by filing a petition for mandamus in the Supreme Court of Kansas. In the interim, in response to the Secretary's position that the compact did not comply with the Gaming Act, the Tribe and the Governor revised the compact on grounds unrelated to the Attorney General's lawsuit and resubmitted the compact to the Secretary. Because of the litigation brought by the Kansas Attorney General, however, the Secretary notified the Governor and the Tribe that the compact "had not been submitted as ... required by 25 U.S.C. Sec. 2710(d)(8)," and that the Gaming Act's forty-five-day review period would be tolled until the Supreme Court of Kansas resolved the question of the Governor's authority.

The Tribe sued the Secretary seeking a declaratory judgment that the Secretary lacked authority to defer approval of the compact and that his failure to disapprove it within forty-five days resulted in approval of the compact as a matter of law. The Tribe also sought a writ of mandamus directing the Secretary to publish notice of the compact in the Federal Register. After the Supreme Court of Kansas interpreted state law as allowing the Governor to negotiate a compact under the Gaming Act but precluding the Governor from signing the resulting compact and thereby binding the State to its terms, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169, 1185 (1992), the Secretary moved to dismiss the Tribe's lawsuit on the ground that the State of Kansas was an indispensable party under FED.R.CIV.P. 19 not joined in the litigation. The Secretary also moved, in the alternative, for summary judgment on the ground that the Governor's lack of authority to enter into the compact rendered the compact a legal non-entity that could not constitute a valid submission to the Secretary and thus that the forty-five-day period under the Gaming Act had not commenced to run.

The district court denied the Secretary's motion to dismiss, ruling that the state legislature's failure to enter into a compact with the Tribe and the assumption that the Governor negotiated and signed the compact with "the best interests of the State in mind" meant that the State of Kansas was not an indispensable party and the litigation could proceed in its absence. Kickapoo Tribe of Indians v. Babbitt, 827 F.Supp. 37, 42-43 (D.D.C.1993). The district court thereafter granted summary judgment to the Secretary. While rejecting the Secretary's position that the Gaming Act permitted him to toll the statutory forty-five-day review period, and ruling that the compact was approved by operation of law, the district court concluded that the Governor's ultra vires action meant that the State of Kansas never lawfully entered into the compact and thus the compact was void. Id. at 44, 46.

II.

Under FED.R.CIV.P. 19, whether a party is indispensable for a just adjudication requires a determination regarding whether the absent party is necessary to the litigation; if so, whether the absent party can be joined in the litigation; and if joinder is infeasible, whether the lawsuit can nevertheless proceed "in equity and good conscience." FED.R.CIV.P. 19; ² see Western Md. Ry. Co v. Harbor Ins. Co, 910 F.2d 960, 961 (D.C.Cir.1990). The rule calls for a pragmatic decision based on practical considerations in the context of particular litigation. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 116-17 n. 12, 118, 88 S.Ct. 733, 741-42 n. 12, 742, 19 L.Ed.2d 936 (1968); WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D, Sec. 1601, at 10, 14 (1986). We review the district court's determination that Kansas was not an indispensable party under Rule 19(b) for abuse of discretion. Cloverleaf Standardbred Owners Ass'n. v. National Bank of Wash., 699 F.2d 1274, 1276 (D.C.Cir.1983). ³ In that regard, the court has acknowledged that the district court has "substantial discretion in considering which factors to weigh and how heavily to emphasize certain considerations in deciding whether the action should go forward." Id. at 1277 (citation omitted). We are, nevertheless, constrained to conclude that the district court abused its discretion in ruling that Kansas was not an indispensable party in the Tribe's lawsuit against the Secretary and that the trial could proceed in its absence. We reach this conclusion based on the nature of the issue before the district court in light of the immunity of the absent party and the district court's reliance on inappropriate factors.

A.

The Tribe seeks to obtain the validation of a compact with the State of Kansas that the Supreme Court of Kansas has held was not approved by an official empowered to do so under state law. State v. Finney, 836 P.2d at 1184-85. Clearly, as the district court assumed, the State of Kansas has an interest in the validity of a compact to which it is a party, and this interest would be directly affected by the relief that the Tribe seeks. Kickapoo Tribe, 827 F.Supp. at 41; Kansas v. Finney, 836 P.2d at 1176, 1183 (noting fiscal and other effects of the compact on the State). Thus, Kansas is a necessary party under Rule 19(a). ⁴ See Wichita & Affiliated Tribes, 788 F.2d at 774; Enterprise Management Consultants v. United States ex rel. Hodel, 883 F.2d 890, 893 (10th Cir.1989). As a necessary party, Kansas should have been joined in the litigation if such joinder was feasible. FED.R.CIV.P. 19; see also Western Md. Ry., 910 F.2d at 962-63.

One reason joinder may be infeasible is that the absent party enjoys sovereign immunity. See Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir.1994). Kansas enjoys immunity under the Eleventh Amendment of the United States Constitution that extends to suits commenced by Indian tribes. See Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). While Congress can abrogate this immunity, its intent to do so must be "unmistakably clear." See Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989). Likewise, Kansas can waive its immunity but only by explicit authorization in state law that is "express and unequivocal." See Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 467-68, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945). Neither has occurred here. While several courts have concluded that the Gaming Act's authorization of tribal suits against the states for bad faith in compact negotiation provides a clear expression of congressional intent to abrogate Eleventh Amendment immunity, ⁵ nothing suggests that the Gaming Act provides an "unmistakably clear" abrogation of state sovereign immunity when an Indian tribe seeks to compel the Secretary to act under the statute. ⁶ To the contrary, the fact that Congress expressly authorized particular causes of action under the Gaming Act, see 25 U.S.C. Sec. 2710(d)(7)(A), and did not include the present suit among those actions, indicates that Congress did not contemplate this type of suit, and thus provided no unmistakably clear intent to abrogate Kansas' immunity. See generally Guam v. American President Lines, 28 F.3d 142, 145-49 (D.C.Cir.1994) (reviewing law on implied causes of action). Further, nothing in the record suggests that Kansas has waived its immunity; its limited waiver for tort actions within its own courts, see Kan.St.Ann. Sec. 75-6103 (1993), does not encompass suits in federal court. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1...