Western Shoshone Business Council For and on Behalf of Western Shoshone Tribe of Duck Valley Reservation v. Babbitt

Decision Date27 July 1993
Docket NumberNo. 92-4062,92-4062
Citation1 F.3d 1052
PartiesWESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY RESERVATION; Edwards, McCoy & Kennedy, P.C., Plaintiffs-Appellants, v. Bruce E. BABBITT, Secretary of the United States Department of the Interior, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

John Paul Kennedy, Salt Lake City, UT, for plaintiffs-appellants.

Ellen J. Durkee, Atty., Environment & Natural Resources Div., Dept. of Justice Washington DC (Roger Clegg, Asst. Atty. Gen., David J. Jordan, U.S. Atty., and Stephen Roth, Asst. U.S. Atty., Salt Lake City, UT, Jim Upton and John A. Bryson, Attys., Environment & Natural Resources Div., Dept. of Justice, Washington, DC; of counsel: Scott Keep, Office of the Sol., Dept. of the Interior, Washington, DC, and Wayne Nordwall, Office of the Field Sol., Dept. of the Interior, Phoenix, AZ, with her on the brief), for defendant-appellee.

Before LOGAN, RONEY * and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs, the Western Shoshone Business Council (Council), suing for and on behalf of the Western Shoshone Tribe of the Duck Valley Reservation (Western Shoshones), and the law firm Edwards, McCoy & Kennedy (EM & K), appeal the decision of the district court granting defendant Secretary of the Interior's motion to dismiss and denying plaintiffs' motions for leave to file an amended complaint.

In 1989, the Council approved a contract with EM & K for legal services and submitted it to the Acting Area Director of the Bureau of Indian Affairs (BIA) for approval, pursuant to 25 U.S.C. Sec. 81. 1 The Acting Area Director determined that because the Western Shoshones did not appear on a list of federally recognized tribes, 2 see 53 Fed.Reg. 52,829-02 (1988), the contract was between private parties and did not require BIA approval. This decision was later affirmed by the Interior Board of Indian Appeals (IBIA). Edwards, McCoy & Kennedy v. Acting Phoenix Area Director, 18 I.B.I.A. 454 (1990).

Plaintiffs then brought this action in district court seeking declaratory and injunctive relief setting aside defendant's refusal to review the contract and holding that the Western Shoshones are a federally recognized Indian tribe. The district court concluded that because they could pursue a procedure for becoming federally recognized, see 25 C.F.R. pt. 83, plaintiffs had failed to exhaust their administrative remedies and jurisdiction was therefore lacking.

The district court's determination regarding jurisdiction is a legal one, which we review de novo. Boise City Farmers Cooperative v. Palmer, 780 F.2d 860, 866 (10th Cir.1985). We are free to affirm a district court's decision on any grounds for which there is a record sufficient to support conclusions of law. Medina v. City & County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992).


Under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. Secs. 701-706, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Id. Sec. 704. The regulations regarding appeals from BIA decisions provide that a decision made by an Area Director may be appealed to the IBIA, 25 C.F.R. Sec. 2.4(e), and that the IBIA is the final authority for the Department of the Interior on administrative actions by BIA officials. 43 C.F.R Sec. 4.1(b)(2)(i). Plaintiffs pursued their appeal of defendant's refusal to review their contract to the highest authority available to them within the Department of the Interior. 3 Plaintiffs were not required to pursue any other administrative avenue before seeking judicial review of defendant's decision. For purposes of the APA, the IBIA decision was final agency action. That is only the first step, however, in our jurisdictional analysis.


We turn next to whether plaintiffs have standing to bring this appeal. Plaintiffs must meet both the constitutional requirements subsumed by the Article III "case or controversy" limitation on judicial power and the judicially created prudential requirements under the APA. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The Supreme Court has summarized the constitutional limitations on standing as follows:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.

Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quotations and citations omitted).

Under Sec. 702 of the Administrative Procedure Act, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Thus, a plaintiff claiming a right to sue under the APA must "identify some 'agency action' that affects him in the specified fashion; it is judicial review 'thereof' to which he is entitled." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). Then the prospective plaintiff must show that this agency action has caused him to suffer "legal wrong," or that he is "adversely affected or aggrieved" by that action. Id. at 883, 110 S.Ct. at 3186. Because a determination that a plaintiff has suffered legal wrong as the result of agency action goes to the merits, courts have focused on adverse effect or aggrievement in ascertaining standing under the APA.

Adverse effect or aggrievement, in turn, has been interpreted as requiring a plaintiff to show that "the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing, 397 U.S. at 153, 90 S.Ct. at 829; see also Lujan, 497 U.S. at 883, 110 S.Ct. at 3186; Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396, 107 S.Ct. 750, 755, 93 L.Ed.2d 757 (1987).


Although EM & K has an interest that is arguably threatened by defendant's refusal to review its contract with the Council, it is clear that EM & K does not fall within the zone of interests protected or regulated under 25 U.S.C. Sec. 81. EM & K focuses on a portion of the Supreme Court's explanation of the zone of interests test in Clarke, that "there need be no indication of congressional purpose to benefit the would-be plaintiff," 479 U.S. at 399-400, 107 S.Ct. at 757, and reasons that because its right to contract with the Council is regulated under Sec. 81 it is thereby entitled to challenge defendant's action. We are more persuaded by the unequivocal limitation on standing immediately preceding the above-quoted language: "[T]he test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." 479 U.S. at 399, 107 S.Ct. at 757.

It is well settled that Sec. 81 was "intended to protect the Indians from improvident and unconscionable contracts." In re Sanborn, 148 U.S. 222, 227, 13 S.Ct. 577, 579, 37 L.Ed. 429 (1893). Several courts have, on this basis, denied standing to challenge BIA decisions under Sec. 81 to the non-Indian contracting party. See, e.g., Schmit v. International Finance Management Co., 980 F.2d 498 (8th Cir.1992) (per curiam); Enterprise Management Consultants, Inc. v. United States ex rel. Hodel, 685 F.Supp. 221, 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) ("The potential economic interest of nonIndians in a contractual relationship with a tribe is not within the intended purview of the statute."), appeal dismissed, 789 F.2d 632 (8th Cir.1986). We agree with the reasoning behind these decisions. Of course plaintiff EM & K is "regulated" by Sec. 81, but the undisputed purpose of the statute is to protect tribal lands, not to regulate lawyers specifically, or to create either an administrative right of review or a contract cause of action for non-Indian contractors. Given the overtly paternalistic cast of Sec. 81, we conclude that "it cannot reasonably be assumed that Congress intended to permit the suit," Clarke, 479 U.S. at 399, 107 S.Ct. at 757, by non-Indian contractors.

Plaintiff EM & K does not have standing under the APA to bring this action.


Insofar as defendant's refusal to review the contract between the Council and EM & K casts a cloud over their transaction and prevents the Council from obtaining the legal services it desires, the Council can show injury in fact, traceable to defendant's action and redressable by a favorable ruling. Nevertheless, we hold that the Council is not within the zone of interests protected or regulated by Sec. 81. By its terms, Sec. 81 covers only those contracts "made by any person with any tribe of Indians, or individual Indians not citizens of the United States." This contract does not involve noncitizen individual Indians. Therefore, Sec. 81 will apply only if the Tribe is a "tribe of Indians" within the meaning of the statute.

Historically, the federal government has treated a tribe as "recognized" if Congress or the President has created a reservation for the group and the United States has a continuing political relationship with the group. Felix S. Cohen, Handbook of Federal Indian Law 6 (1982). When the...

To continue reading

Request your trial
83 cases
  • Robinson v. Salazar
    • United States
    • U.S. District Court — Eastern District of California
    • 6 d1 Agosto d1 2012
    ... ... David Laughing Horse Robinson and Kawaiisu Tribe of Tejon filed oppositions, objections, and ... and by establishing the Tejon Indian Reservation in 1853. (TAC 1.) A. The Plaintiffs Plaintiff, ... is one of the ancient Great Basin Shoshone Paiute tribes whose pre-European territory ... to bring suit in the Court of Claims on behalf of the Indians of California," who were defined ... As explained in Round Valley Indian Tribes v. U.S., 97 Fed.Cl. 500, 504 ... v. Peabody Western Coal Co., 610 F.3d 1070 (9th Cir. 2010), cert ... vires when the officer is not doing the business which the sovereign has empowered him to do or he ... Babbitt, 230 F.3d 1158, 1164 (9th Cir. 2000). "The ... See, e.g., W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056-57 (10th Cir.1993) ... ...
  • Yu v. Brown
    • United States
    • U.S. District Court — District of New Mexico
    • 28 d4 Janeiro d4 1999
    ... ...         Plaintiff Yue Yu ("Yu"), on behalf of herself and a purported class of similarly ... Forest Guardians v. Babbitt, 164 F.3d 1261, 1269 (10th Cir.1998). Thus, the ... , 117 F.3d 1167, 1170 (10th Cir.1997); Western Shoshone Business Council v. Babbitt, 1 F.3d ... ...
  • Wind River Multiple-Use Advocates v. Espy
    • United States
    • U.S. District Court — District of Wyoming
    • 29 d5 Outubro d5 1993
    ... ... 3185-86, 111 L.Ed.2d 695, 712-13 (1990); Western Shoshone Business Council v. Babbitt, 1 F.3d ... at 3326, 82 L.Ed.2d at 569 (citing Valley Forge Christian College v. Americans United for ... ...
  • U.S. ex rel. Hall v. Tribal Development Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 9 d4 Março d4 1995
    ... ... Corporation, and the Menominee Indian Tribe. According to plaintiffs' amended complaint, the ... of gaming activities on their reservation. The plaintiffs, who do not claim to be Indians, ... , the plaintiffs, as private citizens on behalf of the United States, brought this action ... of 'cases' and 'controversies.' " Valley Forge College v. Americans United For Separation ... recent decision out of the Tenth Circuit, Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 ... ...
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • FNREL - Special Institute Natural Resources Development in Indian Country (FNREL)
    • Invalid date
    ...F.2d 498, 498 (8%gth%g Cir. 1992) (25 U.S.C. § 81 enacted solely for benefit of Indians); Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1056 (10%gth%g Cir. 1993) (holding former § 81 was enacted solely for the benefit of Indians and non-Indian contracting party lacks standing).......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT