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(Cite
as: 2006 WL 2392194 (C.A.10 (Kan.))
MIAMI
TRIBE OF OKLAHOMA, Plaintiff-Appellant,
v.
No.
05-3085
United
States Court of Appeals, Tenth Circuit.
August
21, 2006
Before
LUCERO,
McKAY, and
McCONNELL,
Circuit Judges.
ORDER
AND JUDGMENT
FN*
*.
This
order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral
estoppel. The
court generally disfavors the citation of orders and judgments; nevertheless,
an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.Monroe G. McKay Circuit
Judge
This
dispute centers on whether the Miami Tribe (“Tribe”)
can, under the Indian Gaming Regulatory Act (“IGRA”),
conduct gaming on a tract of land known as the
Maria Christiana Reserve No. 35 (“the
Reserve”)
in Kansas. Any
gaming on Indian land must be approved by the National
Indian Gaming Commission (“NIGC”),
which approval is subject to judicial review. The
Tribe argues that a 2002 Department of the Interior (“DOI”)
Opinion Letter violated the Joint Stipulation entered into by the
Tribe, the NIGC, and the DOI in earlier litigation. The
Joint Stipulation would allow the Tribe to conduct gambling operations
on the Reserve. But
after the Joint Stipulation was made, the state of Kansas-not
a party to the stipulation-sought and received a preliminary injunction
that prevented the Tribe from commencing the gaming operations. The
Kansas litigation resulted in a remand to the NIGC for
further consideration of the Tribe's gaming application, and the NIGC
has yet to issue a final decision. It
was in response to our decision in the Kansas case
that the DOI issued its Opinion Letter. Because
our jurisdiction is limited to review of final agency action
and because the federal government has not waived its sovereign
immunity to judicial enforcement of the Joint Stipulation, we lack
jurisdiction to hear the Tribe's claims.
I.
Background
This
case follows three previous cases, one of which reached this
court in 2001. A
fuller treatment of this history is available in the published
opinions from the earlier cases, especially in Kansas
v. United States,
249 F.3d 1213, 1218-21 (10th Cir.2001) (Miami
III
).
Here
we provide a brief summary of the history and highlight
the portions of the dispute's history relevant to our resolution
of the issues before us.
A.
Miami
Tribe of Oklahoma v. United States,
927 F.Supp. 1419 (D.Kan.1996) (Miami
I)
In
1995, the Tribe appealed to the district court the NIGC's
rejection of its proposed contract for gaming on the Reserve.
Miami
I,
927 F.Supp. at 1420. The
NIGC found, and the district court affirmed, that the Reserve
did not constitute Indian land as defined in the IGRA
and, therefore, did not qualify for gaming. Id.
at 1423-24. The
district court noted that the Tribe had left the Reserve
by the 1870s and that Congress expressly abrogated any claim
the Tribe might have to the Reserve no later than
1924. Id.
at 1424-27. The
district court held that the Tribe could not demonstrate jurisdiction
over the Reserve based on its historical association with the
Reserve. But
the district court did not reach the question of whether
the Tribe's recent activities could reestablish its jurisdiction over the
Reserve. Id.
at 1427. The
Tribe did not appeal the holdings of the district court
regarding claims of historical jurisdiction and instead sought to reestablish
its jurisdiction over the Reserve to make another attempt at
NIGC approval.
B.
Miami
Tribe of Oklahoma v. United States,
5 F.Supp.2d 1213
(D.Kan.1998)
(Miami
II)
In
1996, and pursuant to an amendment to the Tribe's constitution,
the present owners of the Reserve were admitted to the
Tribe as members. Miami
II,
5 F.Supp.2d at 1215. After
their admission, the new members leased the Reserve to the
Tribe so the Tribe could conduct gaming operations. Id.
Shortly after completing the lease, the Tribe went back to
the NIGC and asked it to reexamine its earlier decision
in light of the Reserve's owners' enrollment in the Tribe.
Id.
The NIGC again denied the Tribe's application, but on appeal
to the district court the case was remanded to the
NIGC because the commission “failed
to provide a reasoned explanation for its action”
and the “limitations
in the administrative record ma[de] it impossible to conclude the
action was the product of reasoned decisionmaking.”
Id.
at 1219 (quotations omitted).
While
the case was on remand to the NIGC, the parties
came to an agreement that they memorialized in the Joint
Stipulation. In
return for the Tribe's ceasing its litigation of the matter,
the NIGC stipulated that the Reserve constituted Indian land as
defined by the IGRA, and the NIGC approved the Tribe's
application for a gaming contract between it and a third-party.
Stipulation
and Agreement, 1-2 (D.Kan. Jan. 15, 1999). The
district court approved the agreement and dismissed the case. Order
of Dismissal, 1 (D.Kan. Jan. 15, 1999).
C.
Kansas
v. United States,
249 F.3d 1213 (10th Cir.2001)
(Miami
III
)
Unhappy
that the Joint Stipulation would lead to gaming on the
Reserve, the State of Kansas sought declaratory and injunctive relief
under the Administrative Procedures Act (“APA”)
from the decision that the Reserve was Indian land. Miami
III,
249 F.3d at 1220. Though
not an original party to the case, the Tribe voluntarily
intervened as a defendant. Id.
at 1220-21. The
district court granted Kansas a preliminary injunction that stayed action
on the NIGC decision regarding the Tribe's control over the
Reserve. Id.
at 1218. The
defendants then challenged the preliminary injunction in an interlocutory appeal.
Id.
We
applied Chevron
deference
when evaluating the NIGC's decision. Id.
at 1228-29. But
even with that deferential standard, in upholding the preliminary injunction,
we held that “[t]he
NIGC's failure to thoroughly analyze the jurisdictional question in its
most recent decision likely renders its conclusion that the tract
constitutes ‘Indian
lands' within the meaning of IGRA arbitrary and capricious.”
Id.
at
1229. Because
the Tribe had not appealed Miami
I,
it was foreclosed from making a claim to historical jurisdiction
over the Reserve. Id.
at 1230. We
noted that “
‘Congress
possesses plenary power over Indian affairs, including the power to
...
eliminate tribal rights.’
”
Id.
at 1229 (quoting South
Dakota v. Yankton Sioux Tribe,
522 U.S. 329, 343 (1998)). The
Tribe could not, therefore, “unilaterally
create sovereign rights in itself that do not otherwise exist.”
Id.
As
Miami
I established,
Congress expressly abrogated the Tribe's claim to the Reserve no
later than 1924. Id.
at 1230. We
concluded that “[a]n
Indian tribe's jurisdiction derives from the will of Congress, not
from the consent of fee owners pursuant to a lease
under which the lessee acts.”
Id.
at 1231. Because
Kansas had a substantial likelihood of success on the merits
of the case, we affirmed the district court's grant of
the preliminary injunction, and we remanded the case for further
proceedings “not
inconsistent with [the] opinion.”
Id.
The
district court then remanded the case to the NIGC for
further review of the case.
D.
The
Instant Case (Miami
IV)
Following
the remand in Miami
III,
the NIGC sought from the DOI another opinion letter to
take into account Miami
III
's
holding. The
DOI opinion letter contradicted the Joint Stipulation and reasoned that
the Tribe could not, without Congressional action, regain the sovereignty
over the Reserve that Congress had expressly abrogated years ago.
The
Tribe now argues that the DOI opinion letter is arbitrary
and capricious and seeks equitable relief under the APA, and
it also seeks to enjoin the defendants from breaching fiduciary
duties allegedly owed the Tribe. The
district court held that the Tribe's claims were in essence
an attempt to enforce a contract-the Joint Stipulation-and that any
claim against the United States for more than $10,000 and
based in contract was outside the district court's jurisdiction. Finding
no claim for monetary damages under $10,000, the district court
dismissed the Tribe's claims for lack of subject matter jurisdiction.
The
Tribe now reasserts the same arguments on appeal.
II.
Analysis
We
do not have jurisdiction over the Tribe's claim. Essentially,
the Tribe is seeking through the federal courts to preempt
the 2002 DOI Opinion Letter and entrench Miami
II
's
Joint Stipulation as the final resolution of the Tribe's claims
to jurisdiction over the Reserve. The
Tribe offers two alternative theories of federal jurisdiction in this
case: (1)
that the DOI Opinion Letter constitutes final agency action and
is, therefore, reviewable under the APA, and (2) that the
government's violation of fiduciary duties that it allegedly owes the
Tribe is enforceable through the APA. The Tribe's first theory
fails because the DOI Opinion Letter was not a final
agency action and the APA, therefore, does not allow for
its review. The
Tribe's second theory fails because it is really an attempt
at an equitable remedy-to enforce the Joint Stipulation as a
contract-that is beyond the federal courts' power.
A.
The
DOI Opinion Letter Is Not “Final
Agency Action”
The
APA limits judicial review of agency actions to “final
agency action for which there is no other adequate remedy,”
and only during review of final agency action does the
APA allow for review of “intermediate
agency action.”
5
U.S.C. § 704;
see
also Marolt Park v. United States Dep't of Transp.,
382 F.3d 1088, 1093-94 (10th Cir.2004) (“Ordinarily,
whether the issues are fit for review depends on whether
the plaintiffs challenge a final agency action.”).
The
APA defines “agency
action”
as an “agency
rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.”
5
U.S.C. § 551(13).
The
Tribe bears the burden of demonstrating that the agency action
challenged-the DOI Opinion Letter-is final. See
Lujan
v. Nat'l Wildlife Fed'n,
497 U.S. 871, 882 (1990); Catron
County v. United States Fish & Wildlife,
75 F.3d 1429, 1434 (10th Cir.1996). To
determine whether an agency action is final, “we
look to whether its impact is direct and immediate; whether
the action marks the consummation of the agency's decisionmaking process;
and
whether the action is one by which rights or obligations
have been determined, or from which legal consequences will flow.”
Colorado
Farm Bureau Fed'n v. United States Forest Serv.,
220 F.3d 1171, 1173-74 (10th Cir.2000) (citations and quotations omitted).
The
DOI Opinion Letter is not final agency action. Congress
has vested the authority to decide gaming contracts under the
IGRA with the NIGC. 25 U.S.C. § 2711
(“Subject
to the approval of the Chairman [of the NIGC], an
Indian tribe may enter into a management contract [for gaming].”).
Only
the NIGC's final determination regarding a gaming contract is final
agency action subject to appeal under the APA. 25 U.S.C.
§ 2714
(“Decisions
made by the Commission pursuant to [§
2711]
shall be final agency decisions for purposes of appeal ....”);
see
also 25
C.F.R. § 533.1(b)
(outlining that “[gaming
c]ontract approval shall be evidenced by a Commission document dated
and signed by the Chairmen [and that n]o other means
of approval shall be valid”).
The
DOI Opinion Letter is only a part of the process
that will eventually result in the final NIGC action. See
Mem.
of Agreement Between the Nat'l Indian Gaming Comm'n and the
Dep't of the Interior, 1-2 (May 31, 2006), available
at www.nigc.gob/ReadingRoom/Memorandumof
Agreement/tabid/126/Default.aspx
(outlining the process by which the NIGC may seek legal
advice from DOI “for
certain actions requiring action under IGRA dependant upon the determination
of Indian lands”
and describing the process by which the NIGC and DOI
can resolve any differences of legal opinion regarding the determination
of Indian lands). The
DOI Opinion Letter is not the final product of agency
deliberation regarding the Tribe's jurisdiction over the Reserve and does
not have a direct or immediate impact on the Tribe.
The
Tribe argues that the Opinion Letter has determined its rights
and obligations and is, therefore, final agency action. The
Opinion Letter may predict how the NIGC will eventually resolve
the Tribe's gaming application, but if we intervene at this
stage of the agency decisionmaking process, we would be inappropriately
imposing on the NIGC what we think its final decision
will be. The
APA and its “final
agency action”
requirement for judicial review requires that we avoid that intervention.
See
5
U.S.C. § 704
(allowing for judicial review of “[a]
preliminary, procedural, or intermediate agency action or ruling not directly
reviewable ...
on the review of the final agency action”);
13A
Charles Alan Wright et al., Federal
Practice & Procedure
§ 3532.6
(2d ed. 1984)
(“[Courts]
should not intrude into matters that are better left to
ongoing administrative disposition....”).
B.
The
Joint Stipulation Is a Contract and Remedies for Any Violations
of It Must Be Sought in the Court of Claims
The
federal government
has not waived its sovereign immunity from suit to compel
the enforcement of the Joint Stipulation, and we, therefore, lack
jurisdiction to entertain the Tribe's equitable argument. The
Tribe relies on statutes conferring general jurisdiction on the federal
courts found in 28 U.S.C. §§ 1331-federal
question jurisdiction, 1361-mandamus jurisdiction, and 1362-Indian tribe jurisdiction-to claim jurisdiction
in federal court over its claims. It
is the APA's waiver of sovereign immunity for injunctive relief,
the Tribe argues, that allows for the Tribe to seek
judicial enforcement of the Joint Stipulation. See
5
U.S.C. § 702.
However,
in addition to allowing for injunctive relief, § 702
also states that “[n]othing
herein ...
confers authority to grant relief if any other statute that
grants consent to suit expressly or impliedly forbids the relief
which is sought.”
We
have held that “the
waiver of sovereign immunity in the APA does not extend
to actions founded upon a contract with the United States....
Under
the Tucker Act ...
the Claims Court has exclusive jurisdiction over any suit against
the United States which is ‘founded
upon any express or implied contract with the United States.’
”
Eagle-Picher
Indus., Inc. v. United States,
901 F.2d 1530, 1532 (10th Cir.1990) (quoting 28 U.S.C. § 1346(a)(2)).
The
Joint Stipulation is a settlement agreement and is treated like
a contract for enforcement purposes. See
United
States v. ITT Cont'l Banking Co.,
420 U.S. 223, 238 (1975). Because
the Joint Stipulation is a contract, the Tucker Act precludes
the Tribe's APA-based sovereign immunity argument and we are without
jurisdiction to compel specific performance.
That
the Tribe and the federal government have a fiducial relationship
does not alter this sovereign immunity analysis. The
federal government's fiducial relationship with Indian tribes is well established.
See
Cherokee
Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831). The
Tribe argues that we should view the court's power to
intervene in light of this special relationship and afford the
equitable relief the Tribe requests. We
recognize the special, fiducial relationship that exists between the Tribe
and the federal government, but we cannot intervene in this
dispute because the federal government has not waived its sovereign
immunity. Additionally,
if the NIGC accepts the 2002 DOI Opinion Letter and
denies the Tribe's application for a gaming contract-a reviewable final
agency action-the Tribe will have the opportunity to challenge the
DOI letter as part of that agency action in federal
court.
III.
Conclusion
The
Tribe's action prematurely challenges the DOI Opinion Letter in its
attempt to enforce the Joint Stipulation. We
lack jurisdiction to hear this challenge of intermediate agency action.
Under
the Tucker Act, we also lack the authority to enforce
the Joint Stipulation. We
therefore AFFIRM
the district
court's
dismissal of the Tribe's claims for lack of subject matter
jurisdiction.
Entered
for the Court
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