N. Arapaho Tribe v. Harnsberger

• Decision Date: 18 October 2012
• Docket Number: No. 09–8098.,09–8098.
• Citation: 697 F.3d 1272
• Parties: NORTHERN ARAPAHO TRIBE, Plaintiff–Appellant, v. Scott HARNSBERGER, Treasurer, Fremont County, Wyoming; Edmund Schmidt, Director, Wyoming Department of Revenue and Taxation; Daniel Noble, Administrator, Excise Tax Division, Wyoming Department of Revenue and Taxation, in their individual and official capacities, Defendants–Appellees, and United States of America; Eastern Shoshone Tribe, Third–Party–Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

697 F.3d 1272

NORTHERN ARAPAHO TRIBE, Plaintiff–Appellant,

v.Scott HARNSBERGER, Treasurer, Fremont County, Wyoming; Edmund Schmidt, Director, Wyoming Department of Revenue and Taxation; Daniel Noble, Administrator, Excise Tax Division, Wyoming Department of Revenue and Taxation, in their individual and official capacities, Defendants–Appellees,andUnited States of America; Eastern Shoshone Tribe, Third–Party–Defendants–Appellees.

No. 09–8098.

United States Court of Appeals,

Tenth Circuit.

Oct. 18, 2012.

Kelly A. Rudd (Andrew W. Baldwin, Berthenia Crocker, and Janet E. Millard, with him on the briefs), Baldwin, Crocker & Rudd, P.C., Lander, WY, for Plaintiff–Appellant.

Martin L. Hardsocg, Deputy Attorney General, Cheyenne, WY (Gregory Phillips, Attorney General, and David L. Delicath, Deputy Attorney General, Cheyenne, WY, Brian T. Varn, Fremont County Attorney, and Jodi A. Darrough, Deputy Fremont County Attorney, Lander, WY, with him on the briefs), for Defendants–Appellees.

Katherine J. Barton, Attorney, Environmental & Natural Resources Division, Department of Justice, Washington, D.C. (Ignacia S. Moreno, Assistant Attorney General, and Patricia Miller and Elizabeth A. Peterson, Attorneys, Environmental & Natural Resources Division, Department of Justice, Washington, D.C., with her on the brief), for Third–Party–Defendant–Appellee United States of America.

Kimberly D. Varilek, Attorney General for the Eastern Shoshone Tribe, Ft. Washakie, WY (Donald R. Wharton, Native American Rights Fund, Boulder, CO, with her on the brief), for Third–Party–Defendant–Appellee Eastern Shoshone Tribe.

Before KELLY, EBEL, and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff–Appellant, the Northern Arapaho Tribe (“Appellant” or “Northern Arapaho”), sued various state and county officials in Wyoming, seeking an injunction against the state's imposition of certain vehicle and excise taxes in an area that Appellant contends is Indian country. Appellant claimed that the state may not tax its members in Indian country, and that the Indian country status of the land was conclusively established by an earlier decision of the Wyoming Supreme Court. The district court dismissed the action with prejudice for failure to join a party under Federal Rule of Civil Procedure 12(b)(7) after determining, pursuant to Federal Rule of Civil Procedure 19(b), that two absent entities—the Eastern Shoshone Tribe (“Eastern Shoshone”) and the United States—were necessary parties who could not feasibly be joined, and in whose absence the action could not proceed. The district court also concluded that the Indian country status of the land had not been conclusively determined by the earlier state litigation. Appellant appeals both determinations. Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the dismissal of the action was proper because the Eastern Shoshone is a necessary party that cannot feasibly be joined, but we VACATE the judgment and remand with instructions to dismiss without prejudice. We also DENY as moot Appellant's Rule 27.2(A) motion for summary disposition or remand.

I. BACKGROUND

A. The Wind River Indian Reservation

The Wind River Indian Reservation (“Reservation”) is situated in west-central Wyoming. It is occupied by Appellant and Third–Party Defendant–Appellee the Eastern Shoshone Tribe (collectively, the “Tribes”), who each possess an undivided one-half interest in the Reservation. Both Tribes are federally recognized. See75 Fed. Reg. 60810, 60810, 60812 (Oct. 1, 2010). Although each tribe is regarded as an independent sovereign, the Tribes jointly govern many aspects of Reservation life. See N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 744 (10th Cir.1987).

The Reservation was established in 1868 by treaty between the Eastern Shoshone and the United States, under the terms of which the Eastern Shoshone gave the United States some 44 million acres in what is now Colorado, Utah, Idaho, and Wyoming, in exchange for a reservation of about 3 million acres in what is now Wyoming. See Shoshone Tribe v. United States, 299 U.S. 476, 485, 57 S.Ct. 244, 81 L.Ed. 360 (1937). Ten years later, in 1878, the United States located the Northern Arapaho Tribe on the Reservation, without the Eastern Shoshone's consent. See id. at 487–88, 57 S.Ct. 244.

Since 1868, there have been three transactions by which the Eastern Shoshone, or the Tribes together, have ceded Reservation land to the United States. See In re The General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 83–84 (Wyo.1988) (“Big Horn I ”), aff'd by an equally divided court sub nom. Wyoming v. United States, 492 U.S. 406, 109 S.Ct. 2994, 106 L.Ed.2d 342 (1989) (per curiam), abrogated on other grounds by Vaughn v. State, 962 P.2d 149 (Wyo.1998). For purposes of this case, the most relevant such transaction occurred in 1904 (“1904 Agreement”). In that year, the United States Indian Inspector, James McLaughlin, signed an agreement “with the Shoshone and Arapahoe tribes of Indians belonging on the Shoshone or Wind River Reservation in the State of Wyoming” to open an additional 1.4 million acres of the Tribes' land to settlement. Act of March 3, 1905, ch. 1452, 33 Stat. 1016; accord Big Horn I, 753 P.2d at 84.The Tribes agreed to “cede, grant, and relinquish to the United States all right, title, and interest” in the ceded lands, in exchange for sale proceeds and other benefits. Id. Congress ratified this agreement, with some amendments and modifications, by a public law enacted in 1905. Act of March 3, 1905, ch. 1452. Some of the lands ceded in this transaction were eventually restored to the Tribes, and the size of the reservation has been largely unchanged since the 1950s. See Big Horn I, 753 P.2d at 84. Some of the ceded land, however, has never been restored to the Tribes. Put another way, there are lands that lie within the original exterior boundaries of the Reservation, which were ceded in the 1905 transaction, but which have never formally been restored to the tribes. These lands are referred to by the parties as “the 1905 Act Area.” Aple. State Br. at 2. Some of this land is held in trust by the United States for the benefit of the Tribes,¹ while some of this land is held in fee by other persons and entities.

B. The “Big Horn I” litigation

“Big Horn I” is a 1988 decision of the Wyoming Supreme Court that established, inter alia, priority of water rights along the Big Horn River in Wyoming. See753 P.2d 76 (Wyo.1988). The Tribes, the United States, and the State of Wyoming were all parties in that case. Among the final findings of the Wyoming Supreme Court in that case were that the Tribes had water rights dating back to the 1868 treaty establishing the Reservation, and that the cession of land under the 1905 Act had not clearly stripped the Tribes of their reserved water rights in the ceded lands. See id. at 90–94. That is, the Wyoming high court determined that there was a reserved water right for the Reservation that had not been abrogated by the 1905 Act. See id. at 93–94. For purposes of litigating that water rights case, the parties (the Tribes, the United States, and the State of Wyoming) entered into a “Stipulation Concerning the Boundaries of the Wind River Indian Reservation.” Aplt. App. at 946. The stipulation set forth “the exterior boundaries of the Wind River Indian Reservation” “for the purposes of this litigation only.” Id. The parties further agreed that “[t]his stipulation shall not affect the jurisdiction of any parties over lands within the exterior boundaries of the Reservation.” Id. at 959.

C. The present litigation

On September 30, 2008, Appellant brought suit in the District of Wyoming, seeking declaratory and injunctive relief against Defendants–Appellees Harnsberger, Noble, and Schmidt (“State and County Defendants”), who are county and state tax officials in Wyoming. Appellant claimed that the State and County Defendants' imposition of vehicle registration and excise taxes on Indians living on fee lands in the 1905 Act Area violates Appellant's federal treaty and Constitutional rights. Appellant takes the position in this litigation that the 1905 cession of land did not affect the land's status as “Indian country,” as that term is defined in 18 U.S.C. § 1151.² Because the parties agree that the State of Wyoming may not tax Indians who live in Indian country, the sole issue raised by Appellant's complaint was whether fee lands in the 1905 Act Area are “Indian country.” Appellant alleged that the Indian country status of the entire area was conclusively decided in Big Horn I, and that principles of collateral estoppel bar the State of Wyoming from relitigating that issue.

The State and County Defendants, for their part, moved to dismiss this federal action under Fed.R.Civ.P. 12(b)(7), contending that both the United States and the Eastern Shoshone were required to be joined as parties under Fed.R.Civ.P. 19. The district court initially denied the motions to dismiss and ordered the Eastern Shoshone and the United States joined as third-party defendants. Once joined, both the Eastern Shoshone and the United States successfully moved under Rule 12(b)(1) to be dismissed from the case on the grounds of sovereign immunity. The State and County Defendants then renewed their motions to dismiss the action, claiming that the Eastern Shoshone and the United States were not only required, but also indispensable, parties because the case could not “in equity and good conscience” proceed without them. Fed.R.Civ.P. 19(b).

The district court agreed, and dismissed the action with prejudice. In so doing, the district court also addressed a merits-related issue, concluding that Big Horn I had not conclusively established, for collateral estoppel purposes, the Indian country status of the 1905 Act Area. The Northern Arapaho appeals, arguing primarily that the district court erred by not according the Big Horn I...