Enterprise Management Consultants, Inc. v. U.S. ex rel. Hodel, Nos. 88-2151

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LOGAN, McWILLIAMS and SEYMOUR; SEYMOUR
Citation883 F.2d 890
PartiesENTERPRISE MANAGEMENT CONSULTANTS, INC., Plaintiff-Appellant, Cross-Appellee. v. UNITED STATES of America ex rel. Donald HODEL, Secretary of the Interior; United States of America ex rel. Ross Swimmer, Assistant Secretary--Indian Affairs, United States Department of Interior, Defendants-Appellees, United States of America, ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma, Defendants-Appellees, Cross-Appellants.
Decision Date28 August 1989
Docket Number88-2231,Nos. 88-2151

Page 890

883 F.2d 890
ENTERPRISE MANAGEMENT CONSULTANTS, INC.,
Plaintiff-Appellant, Cross-Appellee.
v.
UNITED STATES of America ex rel. Donald HODEL, Secretary of
the Interior; United States of America ex rel. Ross
Swimmer, Assistant Secretary--Indian Affairs, United States
Department of Interior, Defendants-Appellees,
United States of America, ex rel. Citizen Band Potawatomi
Indian Tribe of Oklahoma, Defendants-Appellees,
Cross-Appellants.
Nos. 88-2151, 88-2231.
United States Court of Appeals,
Tenth Circuit.
Aug. 28, 1989.

Page 891

Randy Dean Witzke (David W. Edmonds, with him on the briefs) of Edmonds, Cole, Hargrave & Givens, Oklahoma City, Okl., for plaintiff-appellant, cross-appellee.

Dirk D. Snel, Atty. for Dept. of Justice, Washington, D.C. (Roger J. Marzulla, Asst. Atty. Gen., William Price, U.S. Atty., Eleanor Darden Thompson, Asst. U.S. Atty., Oklahoma City, Okl., Martin W. Matzen and Thomas H. Pacheco, Attys., Dept. of Justice, Washington, D.C., with him on the brief), for Federal defendants-appellees.

Michael Minnis (David McCullough, with him on the briefs), of Michael Minnis & Associates, P.C., Oklahoma City, Okl., for Citizen Band Potawatomi Indian Tribe of Oklahoma, defendant-appellee, cross-appellant.

Before LOGAN, McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Enterprise Management Consultants, Inc. (EMCI) brought this suit against the Citizen Band Potawatomi Tribe of Oklahoma (Tribe) and officials of the United States Department of Interior. The district court granted the Tribe's motion to dismiss on the basis of sovereign immunity, but denied the Tribe's motion for sanctions under Fed.R.Civ.P. 11. The court also concluded that it had no jurisdiction over the suit against the federal officials. See Enterprise Management Consultants, Inc. v. United States, 685 F.Supp. 221 (W.D.Okla.1988). We affirm.

I.

This litigation is one of several interrelated disputes between EMCI and the Tribe arising from two bingo management contracts that were not approved by the Secretary of the Interior and the Commissioner of Indian Affairs as required by 25 U.S.C. Sec. 81 (1982). 1 A detailed recitation of the events which generated this appeal is set out in our opinion filed this day in United States ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enterprise Management Consultants, Inc., 883 F.2d 886, 887-889 (10th Cir.1989) (Citizen Band ). Briefly stated, in Citizen Band the Tribe sued EMCI for a declaration that the unapproved contracts were void under section 81. The district court in that action ordered the 1985 contract submitted for consideration by the appropriate federal officials.

Page 892

When they refused to approve it, EMCI sought agency review of the decision, which was then affirmed on administrative appeal. EMCI filed the instant suit seeking judicial review of the administrative action. The trial court in Citizen Band stayed determination of the merits in that case pending the outcome of these proceedings, and in the meantime enjoined the Tribe from interfering with EMCI's operation of the bingo games. The propriety of that injunction is the subject of the Citizen Band opinion issued today.

In the present suit, EMCI seeks injunctive relief prohibiting all defendants from enforcing disapproval of the contract, mandamus relief requiring the federal defendants to approve the contract, and declaratory relief stating that section 81 does not apply to the contract, that the Bureau of Indian Affairs (BIA) abused its discretion in disapproving the contract, and that both the Tribe and the BIA are estopped from enforcing this disapproval.

II.

The district court ruled that EMCI's suit against the Tribe is barred by sovereign immunity. This doctrine, "which recognizes the sovereignty of Indian tribes and seeks to preserve their autonomy, protects tribes from suits in federal and state courts." Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 771 (D.C.Cir.1986). The Supreme Court has unequivocally stated that Indian tribes possess "the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978). Although this immunity is subject to Congressional control, " 'without congressional authorization,' the 'Indian Nations are exempt from suit.' " Id. (citation omitted). Moreover, "[i]t is settled that a waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.' " Id. (citations omitted).

The Tribe has not consented to be sued in this action. The only ground offered by EMCI to support its argument that the Tribe is nevertheless amenable to suit is our decision in Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980). The majority in Dry Creek Lodge articulated an exception to the doctrine of sovereign immunity set out in Santa Clara Pueblo, basing its decision on three factors: an alleged violation of the Indian Civil Rights Act, the denial of a tribal forum, and a conflict involving a matter outside internal tribal affairs. Because Dry Creek Lodge created an exception to traditional tribal immunity arising from highly unusual circumstances, later opinions of this circuit indicate that it must be narrowly construed. See White v. Pueblo of San Juan, 728 F.2d 1307, 1312-13 (10th Cir.1984) ("Necessarily the Dry Creek Lodge opinion must be regarded as requiring narrow interpretation in order to not come into conflict with the decision of the Supreme Court in Santa Clara Pueblo."); Ramey Const. Co. v. The Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 319 n. 4 (10th Cir.1982) (Dry Creek Lodge "involved particularly egregious allegations of personal restraint and deprivation of personal rights"). The dispositive factors in Dry Creek Lodge are absent here. We therefore affirm the dismissal of the Tribe on the basis of its sovereign immunity from suit.

III.

The district court held that it had no jurisdiction over the federal officials both because EMCI lacked standing to protest their actions under section 81, and because the action of federal officials under section 81 is committed to agency discretion and therefore is not judicially reviewable. We do not reach these issues because we conclude that the action should be dismissed for lack of an indispensable party.

The indispensable party issue was not raised in the trial court or by the parties on appeal. However, courts and commentators generally agree that this issue is not waivable, and that a reviewing court has "an...

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    • United States State Supreme Court of Washington
    • August 30, 2012
    ...(alteration in original) (internal quotation marks omitted) (quoting Enter. Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir.1989))). As the Second Circuit Court of Appeals reasoned: The rationale behind the emphasis placed on immunity in the weighing of r......
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    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 9, 1995
    ...upon two district court decisions, Enterprise Mgmt. Consultants v. United States ex rel. Hodel, 685 F.Supp. 221 (W.D.Okla.1988), aff'd 883 F.2d 890 (10th Cir.1989), and United States ex rel. Shakopee, both of which addressed the same issue that was before the Tenth Circuit in Western Shosho......
  • Western Shoshone Business Council For and on Behalf of Western Shoshone Tribe of Duck Valley Reservation v. Babbitt, No. 92-4062
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 27, 1993
    ...223 (W.D.Okla.1988) ("plaintiff is not even arguably within the 'zone of interest' to be protected by [Sec. 81]"), aff'd on other grounds, 883 F.2d 890 (10th Cir.1989); United States ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Mgmt Co., 616 F.Supp. 1200, 1208 (D.Minn.1985) ......
  • Comstock Oil & Gas v. Alabama and Coushatta Indian, No. 9:99CV31.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • December 28, 1999
    ...the face of no alternative forum. The second case on which Defendants rely is Enterprise Mgmt. Consultants v. United States ex rel Hodel, 883 F.2d 890 (10th Cir.1989). That case relies on Jicarilla to a large extent and thus suffers from the same inapplicability to these facts. Moreover, th......
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85 cases
  • Auto. United Trades Org. v. State, No. 85661–3.
    • United States
    • United States State Supreme Court of Washington
    • August 30, 2012
    ...(alteration in original) (internal quotation marks omitted) (quoting Enter. Mgmt. Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir.1989))). As the Second Circuit Court of Appeals reasoned: The rationale behind the emphasis placed on immunity in the weighing of r......
  • U.S. ex rel. Hall v. Tribal Development Corp., No. 93-3519
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 9, 1995
    ...upon two district court decisions, Enterprise Mgmt. Consultants v. United States ex rel. Hodel, 685 F.Supp. 221 (W.D.Okla.1988), aff'd 883 F.2d 890 (10th Cir.1989), and United States ex rel. Shakopee, both of which addressed the same issue that was before the Tenth Circuit in Western Shosho......
  • Western Shoshone Business Council For and on Behalf of Western Shoshone Tribe of Duck Valley Reservation v. Babbitt, No. 92-4062
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 27, 1993
    ...223 (W.D.Okla.1988) ("plaintiff is not even arguably within the 'zone of interest' to be protected by [Sec. 81]"), aff'd on other grounds, 883 F.2d 890 (10th Cir.1989); United States ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Mgmt Co., 616 F.Supp. 1200, 1208 (D.Minn.1985) ......
  • Comstock Oil & Gas v. Alabama and Coushatta Indian, No. 9:99CV31.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • December 28, 1999
    ...the face of no alternative forum. The second case on which Defendants rely is Enterprise Mgmt. Consultants v. United States ex rel Hodel, 883 F.2d 890 (10th Cir.1989). That case relies on Jicarilla to a large extent and thus suffers from the same inapplicability to these facts. Moreover, th......
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