607 F.3d 1225 (10th Cir. 2010), 08-3277, Iowa Tribe of Kansas and Nebraska v. Salazar

Docket Nº:08-3277
Citation:607 F.3d 1225
Opinion Judge:LUCERO, Circuit Judge.
Party Name:IOWA TRIBE OF KANSAS AND NEBRASKA; MARK PARKINSON, Governor of State of Kansas, Plaintiffs - Appellants, SAC AND FOX NATION OF MISSOURI; PRAIRIE BAND OF POTAWATOMI INDIANS, Plaintiffs, v. KENNETH LEE SALAZAR, Secretary of the Interior, Defendant - Appellee
Attorney:Mark S. Gunnison, Payne & Jones, Chartered, Overland Park, Kansas, (Michael Leitch, Office of the Attorney General for the State of Kansas, Topeka, Kansas, with him on the briefs) for Plaintiffs-Appellants. Allen M. Brabender, United States Department of Justice, Environment & Natural Resources D...
Judge Panel:Before LUCERO, MURPHY, and HOLMES, Circuit Judges.
Case Date:June 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

sPage 1225

607 F.3d 1225 (10th Cir. 2010)

IOWA TRIBE OF KANSAS AND NEBRASKA; MARK PARKINSON, Governor of State of Kansas, Plaintiffs - Appellants, SAC AND FOX NATION OF MISSOURI; PRAIRIE BAND OF POTAWATOMI INDIANS, Plaintiffs,

v.

KENNETH LEE SALAZAR, Secretary of the Interior, Defendant - Appellee

No. 08-3277

United States Court of Appeals, Tenth Circuit

June 7, 2010

Page 1226

[Copyrighted Material Omitted]

Page 1227

Appeal from the United States District Court for the District of Kansas. (D.C. No. 5:96-CV-04129-RDR-DJW).

Mark S. Gunnison, Payne & Jones, Chartered, Overland Park, Kansas, (Michael Leitch, Office of the Attorney General for the State of Kansas, Topeka, Kansas, with him on the briefs) for Plaintiffs-Appellants.

Allen M. Brabender, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, (Marietta Parker, Acting United States Attorney, and Jackie A. Rapstine, Assistant United States Attorney, Topeka, Kansas; John C. Cruden, Acting Assistant Attorney General, and William Lazarus, United States Department of Justice, Environment & Natural Resources Division, Washington, DC with him on the briefs) for Defendant-Appellee.

Before LUCERO, MURPHY, and HOLMES, Circuit Judges.

OPINION

Page 1228

LUCERO, Circuit Judge.

This appeal is part of a long-running dispute over whether the Secretary of the Interior (the " Secretary" ) properly took a small tract of land into trust on behalf of the Wyandotte Tribe of Oklahoma. Because the Secretary has already taken the land at issue into trust, sovereign immunity precludes the relief sought by plaintiffs. Consequently, we dismiss the appeal for want of jurisdiction.

I

We have previously described the underlying dispute in this matter and will recite only the details directly relevant to this appeal. 1 This case arises from a dispute over the status of a 0.52-acre parcel of land in Wyandotte County, Kansas, known as the Shriner Tract. The Wyandotte Tribe of Oklahoma sought to purchase the Shriner Tract in 1996 so that the United States could place the land into trust on behalf of the tribe. A gaming facility was to be built on the tract. Notice of intent to take the land into trust pursuant to Public Law 98-602, 98 Stat. 3149 (1984), was published by the Secretary on June 12, 1996. Congress provided that $ 100,000 of the funds appropriated by Public Law 98-602 " shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of" the Wyandotte Tribe. 98 Stat. at 3151, § 105(b)(1). The tribe represented that it intended to acquire the Shriner Tract using these Public Law 98-602 funds.

Shortly thereafter, the Governor of Kansas, the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, and the Prairie Band of Potawatomi Indians sued under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 551 et seq., to enjoin the Secretary's planned course of action. Plaintiffs were signatories to a tribal-state compact that permitted the tribes to operate gaming establishments in Kansas; the opening of a casino on the Shriner Tract by the Wyandotte Tribe could affect the plaintiff tribes' plans to operate their own gaming facilities. Plaintiffs argued inter alia that the funds used by the Wyandotte Tribe to acquire the Shriner Tract did not come exclusively from Public Law 98-602 funds. If the Wyandotte Tribe used other funding to purchase the Shriner Tract, the Secretary's decision to acquire the land was arguably improper.

And thus began a case that would spawn recurring trips from the district court to the Tenth Circuit and back. Shortly after plaintiffs filed their initial complaint, the district court granted them a temporary restraining order (" TRO" ) enjoining the Secretary from taking the Shriner Tract into trust on behalf of the Wyandotte Tribe. The Wyandotte Tribe intervened for the purpose of challenging the TRO and appealed the matter to the Tenth Circuit. Before this court, plaintiffs argued that the TRO was necessary because the district court would be deprived of jurisdiction to review the Secretary's actions once the Shriner Tract was actually taken into trust. The Wyandotte Tribe and United States Attorney countered that an emergency stay of the TRO was needed because, otherwise, the tribe would lose its right to acquire the Shriner Tract pursuant

Page 1229

to a land contract. They also represented that lifting the TRO would " not affect or bar the ultimate resolution of whether [the Shriner Tract] can be used for Class III gaming pursuant to the Indian Gaming Regulatory Act." Determining that dissolution would best preserve the status quo, we ordered the TRO dissolved:

subject to the conditions which constitute the law of this case, that the respective rights of the parties to obtain judicial review of all issues which have been raised in the complaint below shall be preserved, including standing of all parties, jurisdiction, compliance by the Secretary with all requirements of law, and the ultimate question of whether gaming shall be permitted on the subject land.

The Wyandotte Tribe then closed on the Shriner Tract, and the Secretary took the land into trust on the tribe's behalf. 2

The district court then dismissed plaintiffs' complaint, determining that the Wyandotte Tribe was a necessary and indispensible party that could not be joined due to sovereign immunity. Sac & Fox Nation of Mo. v. Babbitt, 92 F.Supp.2d 1124, 1129 (D. Kan. 2000). We reversed that ruling on appeal. See Norton, 240 F.3d at 1259-60. Further, we concluded that the Secretary acted arbitrarily in finding that the Wyandotte Tribe used only Public Law 98-602 funds to purchase the Shriner Tract. Norton, 240 F.3d at 1263-64. Accordingly, we remanded " to the district court with directions to enter partial judgment consistent with our holdings and to remand in part to the Secretary for further consideration of whether Pub. L. 98-602 funds were used for the acquisition." Norton, 240 F.3d at 1253. The issue of the United States' sovereign immunity was not discussed.

On remand, the district court entered partial judgment, remanded to the Secretary, and closed the case. See Kempthorne, 516 F.3d at 838. Reaffirming an earlier decision, the Secretary determined that only Public Law 98-602 funds were used to acquire the Shriner Tract. See id. at 839. After a new lawsuit was filed, the district court upheld the Secretary's determination under the APA. See id. at 839-40. However, we vacated the district court's judgment on appeal, holding that sovereign immunity barred plaintiffs' second lawsuit. We reasoned that Congress had not waived sovereign immunity for challenges to the United States' title to real property held in trust for an Indian tribe. Id. at 841-46 (interpreting the Quiet Title Act (" QTA" ), 28 U.S.C. § 2409a). At the same time, we expressly reserved the question of " whether the United States could divest a court of jurisdiction if it took this land into trust for the Wyandotte Tribe after the complaint was filed and served." Kempthorne, 516 F.3d at 844 n.5.

Plaintiffs then successfully moved the district court to re-open their original lawsuit--which was filed before the Shriner Tract was taken into trust--pursuant to Federal Rule of Civil Procedure 60(b)(6). Plaintiffs' success, however, was short-lived: the district court later dismissed the initial lawsuit for lack of subject matter jurisdiction. Sac & Fox Nation of Mo. v. Kempthorne, No. 96-4129-RDR, 2008 WL 4186890 (D. Kan. Sept. 10, 2008) (unpublished). It determined that the United States had not waived its sovereign immunity vis-a-vis plaintiffs' claim because plaintiffs challenged the United States' title to real property held in trust for an Indian tribe. In so holding, the court declined

Page 1230

to adopt plaintiffs' position that sovereign immunity determinations should be made by reference to the facts in existence at the time a complaint was filed. The Governor of Kansas and the Iowa Tribe of Kansas and Nebraska timely appealed.

II

A

Before proceeding to our analysis, we note that the issue of whether the Wyandotte Tribe may open a gaming facility on the Shriner Tract is not before us. In dissolving the TRO in 1996, we explicitly referenced the position of the United States Attorney and the Wyandotte Tribe that dissolution would " not affect or bar the ultimate resolution" of that issue, which is now the subject of separate proceedings. See Wyandotte Nation v. Nat'l Indian Gaming Comm'n, 437 F.Supp.2d 1193 (D. Kan. 2006) (remanding to the Secretary the question of whether gaming may be conducted on the Shriner Tract). Therefore, the sole issue before us is whether we retain jurisdiction over plaintiffs' challenge to the Secretary's acquisition of the Shriner Tract in trust on behalf of the Wyandotte Tribe.

To evaluate this limited question, we must begin by classifying plaintiffs' cause of action. At the time they filed their complaint, plaintiffs sought review of a decision made by an agency: the Secretary's decision to take the Shriner Tract into trust. This type of suit is authorized by the APA, which provides both a cause of action and a waiver of sovereign immunity for claims in which a plaintiff has suffered " a legal wrong because of agency action." 5 U.S.C. § 702. Consequently, when their complaint was filed and served, sovereign immunity did not bar plaintiffs' claim.

Once the Secretary took the Shriner Tract into trust, however, the nature of plaintiffs' claim changed. Unlike their complaint, which sought to prevent the Shriner Tract from being taken into trust, " there appears to be no dispute that the relief plaintiffs have in mind at the present time is to remove the...

To continue reading

FREE SIGN UP