516 F.3d 833 (10th Cir. 2008), 06-3213, Governor of Kansas v. Kempthorne

Docket Nº:06-3213.
Citation:516 F.3d 833
Party Name:GOVERNOR of the State of KANSAS; Iowa Tribe of Kansas and Nebraska; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Prairie Band of Potawatomi Nation; Sac and Fox Nation of Missouri in Kansas and Nebraska, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the Interior; Aurene Martin, Acting Assistant Secretary of the Interior
Case Date:January 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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516 F.3d 833 (10th Cir. 2008)

GOVERNOR of the State of KANSAS; Iowa Tribe of Kansas and Nebraska; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Prairie Band of Potawatomi Nation; Sac and Fox Nation of Missouri in Kansas and Nebraska, Plaintiffs-Appellants,

v.

Dirk KEMPTHORNE, Secretary of the Interior; Aurene Martin, Acting Assistant Secretary of the Interior, Defendants-Appellees.

No. 06-3213.

United States Court of Appeals, Tenth Circuit.

Jan. 30, 2008

Appeal from the United States District Court for the District of Kansas, D.C. No. 03-CV-4140-JAR.

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Mark S. Gunnison of Payne & Jones, Chartered, Overland Park, Kansas (Stephen D. McGiffert, Payne & Jones, Chartered, Overland Park, Kansas; Thomas Weathers and Meredith D. Drent, Alexander, Berkey, Williams & Weathers LLP, Berkeley, California; Steven D. Alexander, Assistant Attorney General for the State of Kansas; Steven O. Phillips, Assistant Attorney General for the State of Kansas; Amelia C. Holmes, Horton, Kansas, with him on the brief), for Plaintiffs-Appellants.

Allen M. Brabender, United States Department of Justice, Washington, D.C. (Lisa Jones, United States Department of Justice, Washington, D.C.; Eric F. Melgren, United States Attorney and Jackie A. Rapstine, Assistant United States Attorney, Topeka, Kansas; Sue Ellen Wooldridge, Assistant United States Attorney General, Washington, D.C., with him on the brief), for Defendants-Appellees.

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

ORDER

The appellees petition for rehearing is granted. The published opinion filed October 24, 2007, is vacated and a revised opinion is attached.

EBEL, Circuit Judge.

This appeal represents another chapter in the long-running dispute over the Secretary of the Interior's 1996 decision to take a tract of land in downtown Kansas City, Kansas (the "Shriner Tract," or simply the "Tract"), into trust for the benefit of the Wyandotte Tribe of Oklahoma, which intends to operate a casino on the property. The Governor of Kansas, along with three other Indian tribes, attempted to block the trust acquisition by filing suit in federal court, claiming that the Secretary erroneously determined that she was statutorily bound to take the Tract into trust. Sac & Fox Nation v. Babbitt, 92 F.Supp.2d 1124 (D. Kan. 2000). While that case was pending in the district court, however, the Wyandotte purchased the Tract and the Secretary took it into trust. We eventually remanded the case to the Secretary for reconsideration of her decision to take the Tract into trust, thus officially ending the Sac & Fox Nation case.

On reconsideration after our remand, the Secretary reaffirmed her decision to take the Shriner Tract into trust for the Wyandotte. The Sac & Fox Nation plaintiffs - -now joined by an additional Indian tribe - -once again challenged this determination with a new complaint in federal court, thereby initiating the instant case. The district court affirmed the trust status of the Tract, a judgment from which the Plaintiffs now appeal.

While Sac & Fox Nation and the present case present issues related to a single transaction - -the trust acquisition of the Shriner Tract - -they are distinct in one

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highly significant respect: at the time the Plaintiffs filed their complaint in the latter case, the Shriner Tract was already held by the United States in trust for the Wyandotte. As a result, the waiver of sovereign immunity provided by Congress in the Quiet Title Act, 28 U.S.C. § 2409a, no longer applied to any action challenging the United States' title to the Tract. Without an applicable waiver of sovereign immunity at the time the complaint was filed, the district court lacked jurisdiction to entertain a challenge to the Secretary's decision. Thus, we are constrained to vacate the district court's judgment and order this case dismissed for lack of jurisdiction.

BACKGROUND

The history of how the Wyandotte used congressionally designated funds to purchase the Shriner Tract is long and complex, and our previous opinions have described this history in detail. See Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1249-51 (10th Cir. 2006); Sac & Fox Nation v. Norton, 240 F.3d 1250, 1253-57 (10th Cir. 2001), cert. denied, 534 U.S. 1078, 122 S.Ct. 807, 151 L.Ed.2d 693 (2002). We therefore here provide only a brief factual summary before narrowing our focus to the procedural history necessary to our resolution of this appeal.

A. Factual background

Over the last two hundred years, the Wyandotte ceded much of its traditional territory to the United States. Sac & Fox Nation, 240 F.3d at 1253-55. In 1984, Congress enacted legislation providing for payments to the Wyandotte as compensation for certain of these land transfers. Id. at 1255. Public Law 98-602, 98 Stat. 3149 (1984) ("P.L. 98-602") expressly provides for distribution of these allocated funds among members of the Wyandotte tribe, requiring that eighty percent of the allocated funds be distributed to tribal members as per capita payments. P.L. 98-602, § 105(a). The remaining twenty percent is required to be "used and distributed in accordance with the following general plan" laid out in § 105(b):

(b) (1) A sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.

(2) The amount of such funds in excess of $100,000 shall be held in trust by the Tribal Business Committee of such Tribe for the benefit of such tribe.

(3) Any interest or investment income accruing on the funds described in paragraph (2) may be used by the Tribal Business Committee of such Tribe for any of the following purposes:

(A) Education of the members of such Tribe (including grants-in-aid or scholarships).

(B) Medical or health needs of the members of such Tribe (including prosthetics).

(C) Economic development for the benefit of such Tribe.

(D) Land purchases for the use and benefit of such Tribe.

(E) Investments for the benefit of such Tribe.

(F) Tribal cemetery maintenance.

(G) Tribal building maintenance.

(H) Tribal administration.

Pub.L. 98-602, § 105(b). In addition, § 105(c) requires the Secretary to enforce the statute but does not require her approval for the Wyandotte's selection of property to be placed in trust or its management of the excess funds. Id. at § 105(c).

The Wyandotte Tribe's attempts to utilize the funds allocated in § 105(b)(1) form

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the factual basis for this case. Although the Wyandotte received these funds in 1986, the Tribe made no immediate effort to acquire trust property pursuant to § 105(b)(1); instead, the funds were invested and eventually commingled with other tribal monies in investment accounts. In April 1995, however, the Wyandotte authorized the use of "a portion of the PL 602 set aside funds" for the purchase of property in downtown Kansas City, Kansas, with the intention that this property would be held in trust by the United States and would be used for gaming purposes by the tribe. Pursuant to this plan, in June 1995, Nations Realty - -a company contracted by the Wyandotte to develop the tribe's gaming facilities - -entered into a contract to purchase the Shriner Tract for $325,000. In anticipation of the purchase, the Wyandotte also filed a "Fee-to-Trust Land Acquisition Application" with the Department of the Interior in January 1996, thus initiating the Secretary's review process prior to taking the Tract into trust.

This process hit a snag when a Department of Interior appraisal in February 1996 concluded that the Shriner Tract had a market value of only $182,000.1Subsequently, in late June 1996, Nations Realty entered into a new contract to purchase the Shriner Tract for a revised purchase price of $180,000. At approximately the same time, Nations Realty also entered into a separate non-competition and non-disclosure agreement with the seller of the Shriner Tract, obligating Nations Realty to pay $152,250 in return for the seller's agreement not to operate a gaming facility within one mile of the Shriner Tract. Prior to closing, Nations Realty assigned its interest in the real estate purchase contract to the Wyandotte; there is no evidence, however, that the Wyandotte received any assignment of, or were directly involved in, the non-competition and nondisclosure agreement.

On June 12, 1996, the Secretary published notice of her decision, pursuant to her duty under § 105(b)(1) of P.L. 98-602, to "acquire title in the name of the United States in trust for the Wyandotte Tribe of Oklahoma for [the Shriner Tract] no sooner than 30 days after the date of this notice." 61 Fed. Reg. 29,757 (June 12, 1996).

B. The Sac & Fox Nation case

On July 12, 1996, exactly thirty days after the Secretary published notice of her decision, the Governor of Kansas and three Indian tribes - -the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, and the Prairie Band of Potawatomi Indians - -filed suit in the United States District Court for the District of Kansas challenging the Secretary's decision to take the Shriner Tract into trust for the Wyandotte. The suit claimed that § 105(b)(1) created no mandatory duty for the Secretary to place the Shriner Tract in trust, and that the Secretary had failed to determine whether the Wyandotte had actually used § 105(b)(1) funds to purchase the Tract in any case.2 Sac & Fox Nation, 240 F.3d at 1260.

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In order to prevent the Secretary from taking the Shriner Tract into trust prior to resolution of these claims, the Sac & Fox Nation plaintiffs requested, and the district court granted, a...

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