Tribe v. Harnsberger

• Decision Date: 06 October 2009
• Docket Number: Case No. 08-CV-215-B.
• Citation: 660 F.Supp.2d 1264
• Parties: NORTHERN ARAPAHO TRIBE, Plaintiff, v. Scott HARNSBERGER, Treasurer, Fremont County, Wyoming; Edmund Schmidt, Director, Wyoming Department of Revenue and Taxation; and Daniel Noble, Administrator, Excise Tax Division, Wyoming Department of Revenue and Taxation, In their individual and official capacities, Defendants v. City of Riverton, Wyoming, Intervenor v. United States of America and Eastern Shoshone Tribe, Third-Party Defendants.
• Court: U.S. District Court — District of Wyoming

660 F.Supp.2d 1264

NORTHERN ARAPAHO TRIBE, Plaintiff, v. Scott HARNSBERGER, Treasurer, Fremont County, Wyoming; Edmund Schmidt, Director, Wyoming Department of Revenue and Taxation; and Daniel Noble, Administrator, Excise Tax Division, Wyoming Department of Revenue and Taxation, In their individual and official capacities, Defendants v. City of Riverton, Wyoming, Intervenor v. United States of America and Eastern Shoshone Tribe, Third-Party Defendants.

Case No. 08-CV-215-B.

United States District Court, D. Wyoming.

October 6, 2009.

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Andrew W. Baldwin, Berthenia S. Crocker, Janet E. Millard, Kelly A. Rudd, Baldwin Crocker & Rudd, Lander, WY, for Plaintiff.

Edward L. Newell, II, Jodi Ann Darrough, Fremont County & Prosecuting Attorney's Office, Lander, WY, Bruce A. Salzburg, David L. Delicath, Martin L. Hardsocg, Michael L. Hubbard, Wyoming Attorney General's Office, Cheyenne, WY, for Defendants.

Frank D. Neville, Scott P. Klosterman, Williams Porter Day & Neville, Casper, WY, for Intervenor.

Amy Tryon, Patricia Miller, Department of Justice, Washington, DC, Donald R. Wharton, Native American Rights Fund, Boulder, CO, Kimberly D. Varilek, Eastern

Shoshone Tribe, Fort Washakie, WY, for Third-Party Defendants.

ORDER GRANTING EASTERN SHOSHONE TRIBE'S MOTION TO DISMISS (DOC. NO. 90); GRANTING UNITED STATES'S MOTION TO BE DISMISSED AS A THIRD-PARTY DEFENDANT (DOC. NO. 93); GRANTING STATE DEFENDANTS' SECOND MOTION TO DISMISS (DOC. NO. 96); AND GRANTING DEFENDANT HARNSBERGER'S RENEWAL OF MOTION TO DISMISS (DOC. NO. 100)

CLARENCE A. BRIMMER, District Judge.

This matter comes before the Court on several motions to dismiss: (1) a Rule 12(b)(1) motion to dismiss Eastern Shoshone Tribe ("EST") as a Third-Party Defendant (Doc. No. 90); (2) a motion to dismiss the United States as a Third-Party Defendant (Doc. No. 93);¹ and (3) two motions to dismiss the case, filed by Defendants Noble and Schmidt and Defendant Harnsberger ("State and County Defendants") (Doc. Nos. 96 & 100). Two hearings were held regarding these motions on April 16, 2009, and May 15, 2009, the second to address supplemental briefing. Appearing at the April 16 hearing were Kelly Rudd, Andrew W. Baldwin, Berthenia S. Crocker, and Janet E. Millard, on behalf of Plaintiff; Jodi Ann Darrough on behalf of Defendant Harnsberger; Martin Hardsocg and David Delicath on behalf of State Defendants; Frank Neville on behalf of Intervenor City of Riverton; Amy Tryon on behalf of the United States; and Kimberly Varilek and Donald Wharton on behalf of the EST. Appearances at the May 15 hearing were largely the same, except that Scott Klosterman appeared on behalf of Riverton and Patricia Miller appeared on behalf of the United States. This Court having carefully considered the motions, the materials on file, and the oral arguments, and being fully advised in the premises, FINDS and ORDERS the following:

I. BACKGROUND

Plaintiff, the Northern Arapaho Tribe ("NAT"), brings this action seeking injunctive relief against alleged unlawful taxation by the State and County Defendants within the Wind River Indian Reservation ("Reservation").² The NAT rests its assertion of illegal taxation on the boundary descriptions resulting from the July 3, 1868 Treaty of Fort Bridger, 15 Stat. 655, the Lander Purchase Agreement of 1874 18 Stat. 291, and the Thermopolis Purchase Agreement of 1897, 30 Stat. 93. (Doc. No. 1, Compl. 3.) The critical aspect of Plaintiff's allegations is its interpretation of a later surplus land act, the Act of March 3, 1905, ch. 1452, 33 Stat. 1016 ("1905 Act"). The 1905 Act served to codify, with amendments, an April 21, 1904 agreement ("1904 Agreement"), also referred to as the Second McLaughlin Agreement. Both tribes on the Reservation, the EST and Plaintiff, entered into this agreement with James McLaughlin, the United States Indian Inspector for the Reservation, acting on behalf of the United States. 1905 Act, 33 Stat. 1016, 1016. The Court does note, however, the Plaintiff takes the position in this case that it in fact never officially agreed to the 1904 Agreement. (Doc. No. 78, Mem. in Supp. of NAT Mot. for J. on Pleadings 17.)

Plaintiff contends that while the 1905 Act opened a portion of the Reservation ("1905 Act area") to non-Indian settlement, it did not terminate the reservation or Indian country status of that 1905 Act area. It is in this 1905 Act area where Plaintiff alleges State and County defendants are conducting illegal taxation of the Tribe and Indians. It appears that the question is of particular concern to the parties with respect to Riverton, as the city lies within the 1905 Act area but has historically existed as an incorporated state entity. Thus, while couched in the context of illegal state taxation, a grant or denial of relief to Plaintiff necessarily requires a determination as to whether or not the 1905 Act area diminished the Reservation.

After the hearing on State and County Defendants' original motions to dismiss, which were joined by Intervenor Riverton, this Court ordered that the United States and the EST be joined as Third-Party Defendants as they are required parties under Federal Rule of Civil Procedure 19(a).³ (Doc. No. 60, Order Jan. 27, 2009.) Now joined and able to respond to their inclusion, the United States and the EST have filed motions to dismiss them as parties, invoking sovereign immunity and asserting lack of subject-matter jurisdiction. In addition, the original defendants again filed motions to dismiss this matter on the ground that it cannot proceed without the United States or the EST.

The resolution of these motions involves the application of principles of sovereign immunity as well as the application of Rule 19(b), which addresses when a case may proceed despite the absence of required parties who cannot be joined. The parties have taken different positions as to each of these issues. The United States has declared itself immune from suit and has not stated a position as to the continuing viability of this action. The EST also asserts immunity from suit, but also contends that this case must be dismissed in its absence. State and County Defendants agree that the United States and the EST are immune from suit and agree with the EST that the case must as a result be dismissed.⁴ Plaintiff takes the position that the United States and the EST have waived immunity and thus, were appropriately made involuntary parties.⁵ Plaintiff alternatively argues that even if the United States and the EST are immune from suit here, this case may proceed without them as parties.

Given the present posture of the case, the Court will not revisit its earlier ruling that the United States and EST are required parties. If they are in fact immune from suit and cannot be joined, the Court must conduct a Rule 19(b) analysis to determine whether the case may proceed without them. As set forth below, the Court finds that the United States and the EST are indeed immune from suit in this matter and that this case may not proceed in their absence. However, before conducting the requisite analysis, it is helpful to address a case relied heavily upon by Plaintiff: In re The General Adjudication of All Rights to Use Water in the Big Horn River System and All Other Sources, 753 P.2d 76 (Wyo.1988) [hereinafter "Big Horn I"], aff'd sub nom. Wyoming v. United States, 492 U.S. 406, 109 S.Ct.2994, 106 L.Ed.2d 342 (1989).

II. THE RELEVANCE OF BIG HORN I TO THIS MATTER.⁶

Big Horn I involved the adjudication of rights to use water in the Big Horn River System and all other sources within Wyoming's Water Division No. 3. Id. at 83. Big Horn I specifically addressed Indian reserved water rights, one of three phases of the adjudication. Id. at 85. A portion of that opinion, which assessed congressional intent to reserve water for the Reservation, involved in part a review of the 1905 Act at issue here. In its review of the 1905 Act in this context, the court held that "[t]he Second McLaughlin Agreement, Treaty of April 21, 1904, Act of March 3, 1905, 33 Stat. 1016, does not evidence an intent not to reserve water." Id. at 92.

Central to Plaintiff's underlying claim is the assertion that the Big Horn I decision in fact decided the ultimate question here of whether the 1905 Act served to diminish the Reservation such that the ceded lands are no longer Indian country.⁷ Plaintiff thus characterizes this case as seeking "enforcement of the judgment in Big Horn I." (Doc. No. 115, NAT 19(a)(2) Br. 8.) Plaintiff maintains that the levy of taxes by State and County Defendants contravenes the ruling in Big Horn I, and that the ruling serves as res judicata here, precluding Defendants from arguing that the 1905 Act area is not Indian country. (Doc. No. 1, Compl. 4; Doc. No. 78, NAT Mot. for J. passim; Doc. No. 32, Resp. to Defs.' Mot. to Dismiss 4, 7, 17; Doc. No. 107, Resp. to U.S. Mot. to Dismiss 8).⁸

Based on its position that Big Horn I has preclusive effect regarding the diminishment issue, Plaintiff contends that the EST and the United States are appropriately made parties in this action as they were parties in Big Horn I. Plaintiff argues that the result in Big Horn I triggers the United States' fiduciary trust obligation to protect it from unlawful encroachment and that the United States has thus waived sovereign immunity in this suit seeking declaratory and injunctive relief.⁹ (Doc. No. 107, Resp. to U.S. Mot. to Dismiss 7.) Similarly, Plaintiff contends that the EST has waived sovereign immunity as it was a party, by intervention, in Big Horn I and is bound by that judgment. (Doc. No. 115, NAT 19(a)(2) Br. 8.)

Plaintiff's reliance on Big Horn I rests upon the interpretation that Big Horn I held the 1905 Act area to be part of the Reservation, and thus, Indian country. If Plaintiff's reliance is misplaced, Big Horn I will have no impact on the question of proper parties here....