Sac and Fox Nation of Missouri v. Babbitt, 96-4129-RDR.

• Decision Date: 02 March 2000
• Docket Number: No. 964130-RDR.,No. 96-4129-RDR.,96-4129-RDR.,964130-RDR.
• Parties: SAC AND FOX NATION OF MISSOURI, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, Governor of the State of Kansas, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior of the United States, Defendant. Kickapoo Tribe of Kansas, Plaintiff, v. Bruce Babbitt, Secretary of the Interior of the United States, et al., Defendants.
• Court: U.S. District Court — District of Kansas

92 F.Supp.2d 1124

SAC AND FOX NATION OF MISSOURI, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves, Governor of the State of Kansas, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior of the United States, Defendant.

Kickapoo Tribe of Kansas, Plaintiff, v. Bruce Babbitt, Secretary of the Interior of the United States, et al., Defendants.

No. 96-4129-RDR.

No. 964130-RDR.

United States District Court, D. Kansas.

March 2, 2000.

Mark S. Gunnison, Stephen D. McGiffert, Payne & Jones, Chtd., Overland Park, KS, Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, John R. Shordike, Berkeley, CA, Paul Alexander, Alexander & Karshmer, Washington, DC, Judith A. Shapiro, Hobbs, Straus, Dean & Walker, Washington, DC, M. Frances Ayer, Federal Bar Ass'n, for Sac and Fox Nation of Missouri, Iowa Tribe of Kansas & Nebraska and Prairie Band of Potawatomi Indians, plaintiffs.

M.J. Willoughby, John W. Campbell, Office of Attorney General, Topeka, KS, Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA, Carla J. Stovall, Kansas Attorney General, Topeka, KS, John R Shordike, Berkeley, CA, Paul Alexander, Alexander & Karshmer, for Bill Graves, Governor of State of Kansas, plaintiff.

Jackie A. Rapstine, Office of United States Attorney, Topeka, KS, Edward Passarelli, U.S. Dept. of Justice, General Litigation Section, Environment and Natural Resources Div., Washington, DC, Steven E Carroll, U.S. Dept. of Justice, Indian Resources Section, Environment & Natural Resources Div., Washington, DC, for Bruce Babbitt, Secretary of Interior, defendant.

David McCullough, Oklahoma City, OK, Richard W. Morefield, Jr., Thomas G. Munsell, Bottaro, McCormick & Morefield, L.C., Kansas City, MO, for Wyandotte Tribe of Oklahoma, defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

These long-pending cases concern the decision of the Secretary of the Interior to take .52 acres of land (the "Shriner Tract") into trust on behalf of the Wyandotte Indian Tribe of Oklahoma, purportedly under the mandate of Public Law 98-602, and whether that land is contiguous to "reservation" land for the purposes of the Indian Gaming Regulation Act, 25 U.S.C. § 2701 et seq. The alleged "reservation" land is the Huron Cemetery in Kansas City, Kansas.

The complaints

Case No. 96-4129 was filed by the Sac and Fox Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, the Prairie Band of Potawatomi Indians, and the Governor of the State of Kansas against the Secretary of the Interior of the United States. The Wyandotte Indian Tribe of Oklahoma sought and was granted leave to intervene as a defendant in Case No. 96-4129.

Case No. 96-4130 was filed by the Kickapoo Tribe in Kansas and other plaintiffs, who have since been dismissed, against the Secretary of the Interior, various federal officials, the United States and the Wyandotte Indian Tribe of Oklahoma. The Wyandotte Tribe has since been dismissed from Case No. 96-4130 with the consent of plaintiffs on sovereign immunity grounds.

Plaintiffs in these cases have filed joint briefs asking this court to reverse the decision of the Secretary of the Interior to take the Shriner Tract into trust for the Wyandotte Tribe. Plaintiffs also seek a declaratory judgment that the Huron Cemetery is not a "reservation" of the Wyandotte Tribe. The court shall consider any other claims raised in the complaints as waived.

The underlying concern of the plaintiffs in these cases is that the Wyandotte Tribe will use the Shriner Tract as a location for gambling. Defendants have raised jurisdictional, procedural and substantive defenses to plaintiffs' claims in their responsive briefs.

Indispensable Party/Sovereign Immunity

The United States and the Wyandotte Tribe have asserted without contradiction that the Wyandotte Tribe is a necessary party to this litigation under FED. R.CIV.P. 19(a). The Wyandotte Tribe clearly has interests in the subjects of these actions which could be impaired if it is not made a party. It is also undisputed that the Wyandotte Tribe is a sovereign entity capable of asserting sovereign immunity. Indeed, the Wyandotte Tribe has been dismissed by agreement for this reason in Case No. 96-4130. As discussed below, the Wyandotte Tribe is an indispensable party under FED.R.CIV.P. 19(b). Therefore, the court shall direct that Case No. 96-4130 be dismissed.

In Case No. 96-4129, it is argued that the Wyandotte Tribe has waived its sovereign immunity claim by voluntarily intervening in the case. Upon a review of the events in this case and the law regarding waiver, the court disagrees.

The complaint in Case No. 96-4129 sought an injunction and other relief against taking the Shriner Tract into trust for the Wyandotte Tribe. This was the predominant focus of the complaint. Plaintiffs also sought a declaratory judgment that the Huron Cemetery was not an Indian reservation and that the Shriner Tract would not be eligible for Indian gaming if purchased by an Indian tribe.

The case was filed on July 12, 1996 and a temporary restraining order against taking the Shriner Tract into trust for the Wyandotte Tribe was immediately requested. The emergency relief was granted and an urgent motion by the Wyandotte Tribe for leave to intervene as a defendant was filed. Although at that time the motion to intervene had not been formally granted, the Wyandotte Tribe was permitted to appeal the temporary restraining order and argue the matter before the Tenth Circuit. The Circuit, after an emergency hearing, dissolved the restraining order at least in part to protect the right of the Tribe to have the property taken in trust against the imminent expiration of the Secretary's prerogative to so acquire the land. The Circuit's order was "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."¹ Up to this point, sovereign immunity was neither explicitly reserved nor waived by the Wyandotte Tribe.

In a motion for extension of time to answer filed on June 30, 1996, the Wyandotte Tribe indicated implicitly (not expressly) that it would not assert sovereign immunity in Case No. 96-4129 because monetary damages were not requested in that case, but that it would assert sovereign immunity in Case No. 96-4130 because there monetary damages were alleged. Intervention was formally allowed in an order dated September 3, 1996. No mention was made of waiving or asserting sovereign immunity.

The position of the Wyandotte Tribe seemed unchanged in a motion to dismiss filed September 19, 1996, although the Tribe also argued the sovereign immunity status of the United States as grounds to dismiss the case. The motion was later withdrawn.

On March 5, 1997, when the Wyandotte Tribe filed its answer in Case No. 96-4129, it expressly stated that it had not waived sovereign immunity and that the court therefore lacked jurisdiction.

Later, on October 1, 1997, in opposing plaintiffs' motion for a preliminary injunction, the Wyandotte Tribe specifically asserted that it had not consented to jurisdiction regarding the status of the Huron Cemetery. The Tribe stated: "Plaintiffs do not allege and cannot prove that the Wyandotte consented to jurisdiction of this court for the purpose of litigating claims about `the status of the Huron Cemetery' or the Wyandotte's right to develop or otherwise use the Huron Cemetery. Absent such consent, this Court does not have jurisdiction to grant the injunction requested."

Express waivers of Eleventh Amendment immunity have been required by various courts, including the Tenth Circuit. See Jicarilla Apache Tribe v. Kelly, 129 F.3d 535, 538 (10th Cir.1997) (mere appearance in a lawsuit is not sufficient to waive); Mascheroni v. Board of Regents, 28 F.3d 1554, 1560 (10th Cir.1994) (same); Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 449 (2nd Cir.1999) (failing to raise immunity defense until summary judgment motion is not fatal). We believe the rule would be the same in the case of a tribe's waiver of sovereign immunity. See Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) ("Suits against Indian tribes are ... barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation."); Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263-68 (10th Cir.1998) (requirement that waiver be clear and unequivocal cannot be flexibly applied based on the parties or the specific facts involved); Pit River Home and Agricultural Co-op. Association v. U.S., 30 F.3d 1088, 1100 (9th Cir.1994) (any waiver must be unequivocally expressed).

Under the circumstances of this case, we do not believe that, even though the Wyandotte Tribe voluntarily intervened as a defendant, there has been a clear or unequivocal waiver of sovereign immunity as to either taking the Shriner Tract into trust or declaring the Huron Cemetery to be "reservation" land. The absence of a waiver is particularly strong as to the latter issue because the primary relief requested in the complaint and the relief which required the emergency intervention of the Wyandotte Tribe was the injunction against taking the Shriner Tract into trust.²

We recognize that we cannot merely assume because the Wyandotte Tribe is a necessary party claiming immunity, that it is also an indispensable party. Davis v. U.S., 192 F.3d 951, 960-61 (10th Cir.1999). But, we believe equity and good conscience would not allow this matter to proceed without the Wyandotte Tribe as a party. Any judgment against the Wyandotte Tribe in its absence...