Governor of Kansas v. Kempthorne

FILED
United States Court of Appeals
Tenth Circuit

January 30, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GOVERNOR OF THE STATE OF
KANSAS; IOWA TRIBE OF
KANSAS AND NEBRASKA;
KICKAPOO TRIBE OF INDIANS OF
THE KICKAPOO RESERVATION IN
KANSAS; PRAIRIE BAND OF
POTAWATOMI NATION; SAC AND
FOX NATION OF MISSOURI IN
KANSAS AND NEBRASKA,
No. 06-3213
Plaintiffs-Appellants,

v.

DIRK KEMPTHORNE, Secretary of
the Interior; AURENE MARTIN,
Acting Assistant Secretary of the
Interior,

Defendants-Appellees.

ORDER

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.
 The appellees petition for rehearing is granted. The published opinion filed

October 24, 2007, is vacated and a revised opinion is attached.

Entered for the Court

Elisabeth A. Shumaker, Clerk

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 FILED
United States Court of Appeals
Tenth Circuit

January 30, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GOVERNOR OF THE STATE OF
KANSAS; IOWA TRIBE OF
KANSAS AND NEBRASKA;
KICKAPOO TRIBE OF INDIANS OF
THE KICKAPOO RESERVATION IN
KANSAS; PRAIRIE BAND OF
POTAWATOMI NATION; SAC AND
FOX NATION OF MISSOURI IN
KANSAS AND NEBRASKA,
No. 06-3213
Plaintiffs-Appellants,

v.

DIRK KEMPTHORNE, Secretary of
the Interior; AURENE MARTIN,
Acting Assistant Secretary of the
Interior,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 03-CV-4140-JAR)

Mark S. Gunnison of Payne & Jones, Chartered, Overland Park, Kansas (Stephen
D. McGiffert, Payne & Jones, Chartered, Overland Park, Kansas; Thomas
Weathers and Meredith D. Drent, Alexander, Berkey, Williams & Weathers LLP,
Berkeley, California; Steven D. Alexander, Assistant Attorney General for the
State of Kansas; Steven O. Phillips, Assistant Attorney General for the State of
Kansas; Amelia C. Holmes, Horton, Kansas, with him on the brief), for Plaintiffs-
Appellants.
Allen M. Brabender, United States Department of Justice, Washington, D.C. (Lisa
Jones, United States Department of Justice, Washington, D.C.; Eric F. Melgren,
United States Attorney and Jackie A. Rapstine, Assistant United States Attorney,
Topeka, Kansas; Sue Ellen Wooldridge, Assistant United States Attorney General,
Washington, D.C., with him on the brief), for Defendants-Appellees.

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

This appeal represents another chapter in the long-running dispute over the

Secretary of the Interior’s 1996 decision to take a tract of land in downtown

Kansas City, Kansas (the “Shriner Tract,” or simply the “Tract”), into trust for the

benefit of the Wyandotte Tribe of Oklahoma, which intends to operate a casino on

the property. The Governor of Kansas, along with three other Indian tribes,

attempted to block the trust acquisition by filing suit in federal court, claiming

that the Secretary erroneously determined that she was statutorily bound to take

the Tract into trust. Sac & Fox Nation v. Babbitt, 92 F. Supp. 2d 1124 (D. Kan.

2000). While that case was pending in the district court, however, the Wyandotte

purchased the Tract and the Secretary took it into trust. We eventually remanded

the case to the Secretary for reconsideration of her decision to take the Tract into

trust, thus officially ending the Sac & Fox Nation case.

On reconsideration after our remand, the Secretary reaffirmed her decision

to take the Shriner Tract into trust for the Wyandotte. The Sac & Fox Nation

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plaintiffs — now joined by an additional Indian tribe — once again challenged

this determination with a new complaint in federal court, thereby initiating the

instant case. The district court affirmed the trust status of the Tract, a judgment

from which the Plaintiffs now appeal.

While Sac & Fox Nation and the present case present issues related to a

single transaction — the trust acquisition of the Shriner Tract — they are distinct

in one highly significant respect: at the time the Plaintiffs filed their complaint in

the latter case, the Shriner Tract was already held by the United States in trust for

the Wyandotte. As a result, the waiver of sovereign immunity provided by

Congress in the Quiet Title Act, 28 U.S.C. § 2409a, no longer applied to any

action challenging the United States’ title to the Tract. Without an applicable

waiver of sovereign immunity at the time the complaint was filed, the district

court lacked jurisdiction to entertain a challenge to the Secretary’s decision.

Thus, we are constrained to vacate the district court’s judgment and order this

case dismissed for lack of jurisdiction.

BACKGROUND

The history of how the Wyandotte used congressionally designated funds to

purchase the Shriner Tract is long and complex, and our previous opinions have

described this history in detail. See Wyandotte Nation v. Sebelius, 443 F.3d

1247, 1249-51 (10th Cir. 2006); Sac & Fox Nation v. Norton, 240 F.3d 1250,

1253-57 (10th Cir. 2001), cert. denied, 534 U.S. 1078, 122 S.Ct. 807, 151 L.Ed.2d

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693 (2002). We therefore here provide only a brief factual summary before

narrowing our focus to the procedural history necessary to our resolution of this

appeal.

A. Factual background

Over the last two hundred years, the Wyandotte ceded much of its

traditional territory to the United States. Sac & Fox Nation, 240 F.3d at 1253-55.

In 1984, Congress enacted legislation providing for payments to the Wyandotte as

compensation for certain of these land transfers. Id. at 1255. Public Law 98-

602, 98 Stat. 3149 (1984) (“P.L. 98-602”) expressly provides for distribution of

these allocated funds among members of the Wyandotte tribe, requiring that

eighty percent of the allocated funds be distributed to tribal members as per capita

payments. P.L. 98-602, § 105(a). The remaining twenty percent is required to be

“used and distributed in accordance with the following general plan” laid out in §

105(b):

(b)(1) A sum of $100,000 of such funds shall be used for the purchase
of real property which shall be held in trust by the Secretary for the
benefit of such Tribe.
(2) The amount of such funds in excess of $100,000 shall be held in
trust by the Tribal Business Committee of such Tribe for the benefit of
such tribe.
(3) Any interest or investment income accruing on the funds described
in paragraph (2) may be used by the Tribal Business Committee of such
Tribe for any of the following purposes:
(A) Education of the members of such Tribe (including grants-in-
aid or scholarships).
(B) Medical or health needs of the members of such Tribe
(including prosthetics).

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 (C) Economic development for the benefit of such Tribe.
(D) Land purchases for the use and benefit of such Tribe.
(E) Investments for the benefit of such Tribe.
(F) Tribal cemetery maintenance.
(G) Tribal building maintenance.
(H) Tribal administration.

Pub.L. 98-602, § 105(b). In addition, § 105(c) requires the Secretary to enforce

the statute but does not require her approval for the Wyandotte’s selection of

property to be placed in trust or its management of the excess funds. Id. at §

105(c).

The Wyandotte Tribe’s attempts to utilize the funds allocated in § 105(b)(1)

form the factual basis for this case. Although the Wyandotte received these funds

in 1986, the Tribe made no immediate effort to acquire trust property pursuant to

§ 105(b)(1); instead, the funds were invested and eventually commingled with

other tribal monies in investment accounts. In April 1995, however, the

Wyandotte authorized the use of “a portion of the PL 602 set aside funds” for the

purchase of property in downtown Kansas City, Kansas, with the intention that

this property would be held in trust by the United States and would be used for

gaming purposes by the tribe. Pursuant to this plan, in June 1995, Nations Realty

— a company contracted by the Wyandotte to develop the tribe’s gaming

facilities — entered into a contract to purchase the Shriner Tract for $325,000. In

anticipation of the purchase, the Wyandotte also filed a “Fee-to-Trust Land

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Acquisition Application” with the Department of the Interior in January 1996,

thus initiating the Secretary’s review process prior to taking the Tract into trust.

This process hit a snag when a Department of Interior appraisal in February

1996 concluded that the Shriner Tract had a market value of only $182,000. 1

Subsequently, in late June 1996, Nations Realty entered into a new contract to

purchase the Shriner Tract for a revised purchase price of $180,000. At

approximately the same time, Nations Realty also entered into a separate non-

competition and non-disclosure agreement with the seller of the Shriner Tract,

obligating Nations Realty to pay $152,250 in return for the seller’s agreement not

to operate a gaming facility within one mile of the Shriner Tract. Prior to closing,

Nations Realty assigned its interest in the real estate purchase contract to the

Wyandotte; there is no evidence, however, that the Wyandotte received any

assignment of, or were directly involved in, the non-competition and non-

disclosure agreement.

On June 12, 1996, the Secretary published notice of her decision, pursuant

to her duty under § 105(b)(1) of P.L. 98-602, to “acquire title in the name of the

United States in trust for the Wyandotte Tribe of Oklahoma for [the Shriner

1
Although § 105(b)(1) does not appear to require that property taken into
trust under that section be purchased at market value, the Wyandotte Tribe’s
authorization specified that the Shriner Tract would be purchased “with a portion
of the PL 602 set aside funds at a price less than the appraised fair market value.”

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Tract] no sooner than 30 days after the date of this notice.” 61 Fed. Reg. 29,757

(June 12, 1996).

B. The Sac & Fox Nation case

On July 12, 1996, exactly thirty days after the Secretary published notice of

her decision, the Governor of Kansas and three Indian tribes — the Sac and Fox

Nation of Missouri, the Iowa Tribe of Kansas and Nebraska, and the Prairie Band

of Potawatomi Indians — filed suit in the United States District Court for the

District of Kansas challenging the Secretary’s decision to take the Shriner Tract

into trust for the Wyandotte. The suit claimed that § 105(b)(1) created no

mandatory duty for the Secretary to place the Shriner Tract in trust, and that the

Secretary had failed to determine whether the Wyandotte had actually used §

105(b)(1) funds to purchase the Tract in any case. 2 Sac & Fox Nation, 240 F.3d

at 1260.

In order to prevent the Secretary from taking the Shriner Tract into trust

prior to resolution of these claims, the Sac & Fox Nation plaintiffs requested, and

the district court granted, a temporary restraining order (“TRO”) forbidding the

2
The Sac & Fox Nation complaint also stated two claims that are not
relevant to this appeal: whether National Environmental Policy Act (“NEPA”) and
National Historical Preservation Act (“NHPA”) analyses were necessary prior to
acquisition of the Shriner Tract, and whether a cemetery abutting the Shriner
Tract was a “reservation” for purposes of the Indian Gaming Reform Act
(“IGRA”). Sac & Fox Nation, 240 F.3d at 1260. On appeal, this court held that
the Secretary correctly decided that NEPA and NHMA analyses were not
necessary, but that the Secretary erred in determining the cemetery to be a
“reservation” under IGRA. Id. at 1263, 1267.

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Secretary from consummating the trust acquisition. Id. at 1257. The Wyandotte,

however, immediately filed an interlocutory appeal with this court, arguing that

the real estate contract for the purchase of the Shriner Tract was due to expire

and, if the TRO was not dissolved, the opportunity for the Tract to be placed in

trust would be lost. Id. “In order to preserve the status quo,” we granted the

Wyandotte’s request and dissolved the TRO

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.

Id. (quotations omitted).

With the TRO dissolved, the Wyandotte proceeded with their purchase of

the Tract on July 16, 1996, and the Secretary took the Tract into trust for the

benefit of the tribe. Id. The district court denied the plaintiffs’ subsequent

motions challenging the trust acquisition, and eventually dismissed the case on

procedural grounds. Id.

On appeal from this judgment, we reversed the district court’s procedural

dismissal. Reaching the merits of the plaintiffs’ claims, we agreed with the

Secretary that § 105(b)(1) created a nondiscretionary duty to take any land

purchased with the funds designated in that section into trust for the Wyandotte.

Id. at 1262. However, we found that the Secretary’s factual determination that

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the Wyandotte used only § 105(b)(1) funds for the Shriner Tract purchase lacked

sufficient record support Id. at 1263-64. We therefore remanded the case to the

district court, with instructions to remand to the Secretary “for further

consideration of the question of whether [§ 105(b)(1)] funds were used for the

acquisition of the Shriner Tract.” Id. at 1268.

The district court issued a judgment remanding the case to the Secretary on

August 23, 2001. Importantly, the district court clarified in a later order that the

Sac & Fox Nation case was officially closed after the remand, thus requiring any

challenges to the Secretary’s decisions on remand to be brought in a “new and

separate action”:

Consistent with the mandate of the Tenth Circuit, this court entered a
final judgment in these [Sac & Fox Nation] cases on August 23, 2001.
As directed by the Tenth Circuit, the judgment in part remanded these
cases to the Secretary of the Interior for further consideration of the
question of whether Pub.L. 98-602 funds were used for the acquisition
of a tract of land called the “Shriner Tract.” The court did not maintain
jurisdiction over these cases after the judgment and order of remand.
The court believes any appeal of the Secretary’s determination
following the remand must be considered a new and separate action,
which the instant motion indicates has been filed.

Therefore, the court shall deny plaintiffs’ motion [to supplement the
record and arrange a scheduling conference] because the above-
captioned cases are closed, and the challenge plaintiffs seek to make
should be made in a new and separate action.

C. Remand to the Secretary and the genesis of the instant case

On remand, the Secretary reconsidered her decision and again concluded

that the Wyandotte had used only § 105(b)(1) funds to purchase the Shriner Tract.

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In the published notice of this determination, the Secretary described the history

of the Wyandotte’s investment of the § 105(b)(1) funds and concluded, based

primarily on the analysis of a public accounting firm, that the value of those

funds, including appreciation, was $212,170 at the time of the Shriner Tract

purchase — more than enough to cover the $180,000 purchase price. 3 67 Fed.

Reg. 10,926 (Mar. 11, 2002).

The former Sac & Fox Nation plaintiffs requested reconsideration of this

determination, which the Secretary granted. In June 2003, after receiving

additional briefing from the parties, the Secretary issued a written opinion

confirming her prior determination that the Wyandotte had purchased the Shriner

Tract using only § 105(b)(1) funds, thereby triggering a nondiscretionary duty to

take the Tract into trust. In particular, the Secretary expressly determined that the

language of § 105(b)(1), although ambiguous, should be read so as to permit the

use of “interest or investment income” accrued on the original $100,000 allocated

in that section, thus allowing the Wyandotte to use up to $212,170 for purchase of

the Shriner Tract. The Secretary also concluded that the purchase price actually

paid for the Tract was $180,000 — not $325,000, as alleged by the Sac & Fox

3
The notice actually stated that the value was $121,170 at the time of the
Shriner Tract purchase; however, the Secretary subsequently issued a correction,
noting that the actual value of the funds was $212,170. 67 Fed. Reg. 30,953 (May
8, 2002).

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Nation plaintiffs — and that the Wyandotte’s remaining § 105(b)(1) funds were

used to satisfy this purchase price.

Plaintiffs tried to file their challenge in the original Sac & Fox Nation case,

but were required by the district court to file under a new case number.

Accordingly, in July 2003, Plaintiffs — consisting of the former Sac & Fox

Nation plaintiffs plus an additional Indian Tribe, the Kickapoo Tribe of Indians of

the Kickapoo Reservation in Kansas — filed the instant complaint in federal

court, specifically challenging the Secretary’s March 2002 and June 2003

decisions. The complaint characterized the Secretary’s determination that the

Shriner Tract was purchased with § 105(b)(1) funds as arbitrary, capricious, and

unsupported by substantial evidence, and argued that the Secretary therefore erred

by justifying her decision to take the Tract into trust as required by § 105(b)(1).

As relief, Plaintiffs requested that the district court enter a declaratory judgment

voiding the Secretary’s decision and order the Secretary to “revoke the non-

discretionary trust status of the Tract and rescind all other trust actions and

applications and activities concerning the same.”

Plaintiffs also sought to supplement the administrative record with

additional evidence they claimed undercut the Secretary’s determination that the

Wyandotte paid for the Tract with only § 105(b)(1) funds, including a $5,000

check written on an account of Nations Realty’s parent company and allegedly

used as earnest money for the purchase. The district court granted this request,

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once again remanding the case to the Secretary for “the limited purpose of

additional investigation or explanation of the supplemental evidence” proffered

by Plaintiffs and ordering the Secretary to tender her explanation to the court

within 60 days.

In December 2005, pursuant to the district court’s order, the Secretary

issued another opinion reiterating that only § 105(b)(1) funds and the investment

income therefrom were used to purchase the Shriner Tract. The Secretary

credited the Wyandotte’s assertion that the $5,000 earnest money check was

applied to “closing costs and other costs over and above the purchase price” of

the Tract, and therefore concluded that “materials presented by Plaintiffs in this

second remand refute neither the [public accounting firm’s] findings nor the

reasoning behind the [Secretary’s] 2003 conclusion that Wyandotte acted within

the law in funding the Shriner Tract purchase.”

On May 9, 2006, the district court affirmed the Secretary’s decision to take

the Shriner Tract into trust. The court concluded that: (1) because § 105(b)(1) is

ambiguous as to whether the Wyandotte could utilize the interest and investment

income from that section’s allocation of funds towards the purchase of trust

property, “the Secretary’s interpretation of Section 105(b) is entitled to deference

and should be affirmed under Chevron [U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)]”; (2) the Secretary’s determination that the

$5,000 earnest money check was not applied to the purchase price of the Shriner

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Tract was supported by substantial evidence in the administrative record; (3) the

Secretary’s determination that only § 105(b)(1) funds were used for the purchase,

based on a public accounting firm’s analysis of the Wyandotte’s accounts and a

Department of Interior financial analyst’s review of that analysis, also found

sufficient support in the record; and (4) the Secretary’s determination that the

actual purchase price of the Shriner Tract was $180,000, not $325,000, was

similarly supported by the record. Thus, the court denied Plaintiffs’ claims for

relief and upheld both the Secretary’s legal interpretation of § 105(b)(1) and her

substantive findings that only § 105(b)(1) funds were used to purchase the Shriner

Tract.

Plaintiffs now appeal the district court’s order affirming the Secretary’s

decision.

DISCUSSION

On appeal, Plaintiffs dispute all of the district court’s conclusions and ask

this court to “invalidate the Secretary’s decision as arbitrary and capricious, to

declare void the trust determination of the Shriner Tract, and alternatively, to

remand the case, again, to the Secretary for a full and fair review of the question

of whether only funds awarded by P.L. 602 were used to purchase the tract.”

Plaintiffs’ appeal thus raises the same “central question” that has animated their

litigation since 1996: whether the Wyandotte used funds designated by §

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105(b)(1) to purchase the Shriner Tract, so as to trigger a nondiscretionary duty

on the part of the Secretary to take the Tract into trust.

Before we may reach the various facets of this question, however, we are

faced with a jurisdictional argument raised by the Secretary for the first time on

appeal. The Secretary now argues that sovereign immunity bars the present suit

because, at the time the instant complaint was filed, the Shriner Tract was already

held in trust by the United States for the Wyandotte, and the Quiet Title Act, 28

U.S.C. § 2409a, “retain[s] the United States’ immunity from suit by third parties

challenging the United States’ title to land held in trust for Indians.” United

States v. Mottaz, 476 U.S. 834, 842 (1986).

Normally, of course, “absent extraordinary circumstances, we do not

consider arguments raised for the first time on appeal.” Hill v. Kan. Gas Serv.

Co., 323 F.3d 858, 866 (10th Cir. 2003) (quotation omitted). However, claims of

sovereign immunity implicate our jurisdiction and therefore “present[] an

exception to the general rule” against considering new arguments on appeal.

United States v. Richman, 124 F.3d 1201, 1205 (10th Cir. 1997). Thus, because

we have a duty to ascertain whether we have jurisdiction prior to reaching the

merits of an appeal, Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1275 n.11

(10th Cir. 2007), we begin by addressing the Secretary’s contention that

Plaintiffs’ suit is barred by sovereign immunity. Our review of questions of

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sovereign immunity is de novo. Shivwits Band of Paiute Indians v. Utah, 428

F.3d 966, 974 (10th Cir. 2005).

A. The Quiet Title Act and sovereign immunity generally

“The concept of sovereign immunity means that the United States cannot be

sued without its consent.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks,

960 F.2d 911, 913 (10th Cir. 1992). Such consent may be found “only when

Congress unequivocally expresses its intention to waive the government’s

sovereign immunity in the statutory text.” United States v. Murdock Mach. &

Eng’g Co., 81 F.3d 922, 930 (10th Cir. 1996) (quotation omitted). In cases

concerning the United States’ title to real property, the Supreme Court has

construed the Quiet Title Act as a waiver of sovereign immunity providing the

“exclusive means” for challenging such title. 4 Mottaz, 476 U.S. at 842 (quoting

Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 286

(1983)).

4
The Administrative Procedures Act (“APA”) provides a waiver of
sovereign immunity that might initially appear applicable in the context of a title
dispute involving an administrative agency. See 5 U.S.C. § 702 (“A person
suffering legal wrong because of agency action . . . is entitled to judicial review
thereof. An action . . . seeking relief other than money damages . . . shall not be
dismissed . . . on the ground that it is against the United States”). However, the
APA’s waiver is limited; specifically, it does not “confer [] authority to grant
relief if any other statute that grants consent to suit expressly or impliedly forbids
the relief which is sought.” Id. The Quiet Title Act “retain[s] the United States’
immunity from suit by third parties challenging the United States’ title to land
held in trust for Indians,” Mottaz, 476 U.S. at 842, thus preventing application of
the APA waiver. See Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956,
961 (10th Cir. 2004).

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 The Quiet Title Act states, in relevant part:

The United States may be named as a party defendant in a civil action
under this section to adjudicate a disputed title to real property in which
the United States claims an interest, other than a security interest or
water rights. This section does not apply to trust or restricted Indian
lands . . . .

28 U.S.C. § 2409a(a). Thus, the Act’s waiver of sovereign immunity is qualified

by an exception for suits challenging title to lands held in trust for Indian tribes:

“when the United States claims an interest in real property based on that

property’s status as trust or restricted Indian lands, the Quiet Title Act does not

waive the Government’s immunity.” Neighbors for Rational Dev., 379 F.3d at

961 (quoting Mottaz, 476 U.S. at 843).

Several questions are raised by the Secretary’s invocation of the Quiet Title

Act in the present context. First, does the Plaintiffs’ suit qualify as a quiet title

action so as to render a Quiet Title Act analysis applicable? If so, does the fact

that Plaintiffs brought the Sac & Fox Nation case challenging the Shriner Tract’s

trust status before the Secretary had actually taken the Tract into trust affect

application of the Act? Finally, does either this court’s order in Sac & Fox

Nation purporting to retain Plaintiffs’ right to contest the trust acquisition, or the

Secretary’s continued participation in this litigation up to the present, provide a

means to avoid application of the United States’ sovereign immunity in this case?

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 B. Plaintiffs’ suit is a “quiet title” action sufficient to invoke the
Quiet Title Act

Two of this court’s recent decisions dealing with similar facts require that

we treat Plaintiffs’ suit as a quiet title action against the United States, thus

invoking the Quiet Title Act. In Neighbors for Rational Development, Inc. v.

Norton, the Secretary took property owned by the Pueblo Indians of New Mexico

into trust, and the Pueblos subsequently made plans to develop the land. 379 F.3d

at 959. Neighbors For Rational Development (“Neighbors”), an organization of

local citizens, challenged the Secretary’s decision as “arbitrary, capricious, an

abuse of discretion, and otherwise not in accordance with law because the

Secretary (1) failed to comply with [NEPA], and (2) failed to consider the

‘regulatory factors for trust acquisitions’ in 25 C.F.R. § 151.10.” Id. at 960.

Neighbors argued that the Quiet Title Act did not apply because it was not

an adverse claimant but a third party, and its suit was not a quiet title action but

an APA challenge to the Secretary’s decision to place the land in trust. Id. We

held, however, that neither of these circumstances were relevant to our

application of the Act. Instead, we held that a court faced with a suit challenging

the United States’ title to land held in trust for an Indian tribe must focus on the

relief sought by the plaintiffs. Id. at 962.

In this case, Neighbors asks the court to “enter declaratory judgment
that the trust acquisition is null and void.” Neighbors also seeks to
“permanently enjoin [the Secretary] from converting the [Indian school]
property to trust status without fully complying with all federal laws,

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 regulations, and Guidelines, including the National Environmental
Policy Act.” We think these requests fall within the scope of suits the
Indian trust land exemption in the Quiet Title Act sought to prevent.

Id. at 961-62 (alterations in original). We based this conclusion on Congress’s

intent, as expressed in the Quiet Title Act, that third parties be prevented “from

interfering with the United States’ obligations to the Indians.” Id. at 962. “In

sum,” we concluded, “the Quiet Title Act precludes Neighbors’ suit to the extent

it seek[s] to nullify the trust acquisition.” Id. at 965.

A similar factual situation developed in Shivwitz Band, 428 F.3d at 966.

The Shivwits Band of Paiute Indians (the “Shivwits”) purchased tracts of land

adjacent to a highway south of St. George, Utah, and after the Secretary took

these tracts into trust, finalized several leases permitting an advertising company

to erect billboards on the trust land. 428 F.3d at 970. When the State of Utah

threatened criminal action and the City of St. George issued a stop-work order to

the advertising company, the Shivwits filed a federal action seeking declaratory

and injunctive relief. Id. The State and City counterclaimed, challenging the

statute under which the United States took the land into trust and claiming, inter

alia, that “the taking of the land in trust and the approval of the [billboard] lease .

. . violated [NEPA] and [DOI] regulations . . . .” Id. Relying on our Neighbors

for Rational Development analysis, we held that the Quiet Title Act barred

jurisdiction to hear the State and City’s arguments “to the extent [they] sought to

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challenge the BIA’s decision to take the property at issue into trust for the Band.”

Id. at 976.

The relief sought by Plaintiffs’ complaint in this case is functionally

identical to that sought by the plaintiffs in Neighbors for Rational Development

and Shivwits Band. Plaintiffs seek a determination that the Secretary’s decision

to place the Shriner Tract in trust “is not within the scope of [her] authority, that

the Agency did not comply with applicable procedures, and that its action is

otherwise arbitrary, capricious or an abuse of discretion, and that the Agency’s

Determination must be declared void ab initio . . . .” The complaint also seeks an

injunction and/or an order of mandamus “requiring the Agency to revoke the non-

discretionary trust status of the tract and rescind all other trust actions and

applications and activities concerning the same.” Similarly, Plaintiffs’ opening

brief to this court requests that we “invalidate the Secretary’s decision as

arbitrary and capricious, [and] declare void the trust determination of the Shriner

Tract.”

As such, Plaintiffs’ requested relief plainly presents a direct challenge to

the United States’ title for the Shriner Tract held in trust for the Wyandotte and

therefore “fall[s] within the scope of suits the Indian trust land exemption in the

Quiet Title Act sought to prevent.” Neighbors for Rational Dev., 379 F.3d at 962.

Thus, unless facts exist which distinguish Plaintiffs’ suit from those we dismissed

in Neighbors for Rational Development and Shivwits Band, the United States’

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sovereign immunity prevents the federal courts from exercising jurisdiction over

this case.

C. The timing of Plaintiffs’ complaint in the instant case precludes
application of the Quiet Title Act’s waiver of sovereign immunity

Plaintiffs argue that this case is distinguishable from Neighbors for

Rational Development and Shivwits Band based on the timing of their challenge

to the Secretary’s decisions. In both of those cases, the United States already

held title to the land in trust for the tribes at the time the suit challenging the

Secretary’s decision was filed; here, however, Plaintiffs emphasize that they filed

a complaint challenging the Secretary’s decision in Sac & Fox Nation prior to the

Secretary’s taking the Shriner Tract into trust. Thus, they argue, the Quiet Title

Act’s waiver of sovereign immunity permitted the court to hear their suit at the

time it was initiated, and the Secretary’s subsequent actions did not divest the

court of this jurisdiction.

Although Plaintiffs claim that their challenge to the Secretary’s decision

was initiated prior to the Secretary taking the Shriner Tract into trust for the

Wyandotte, they are referring to the complaint filed on July 12, 1996, which

initiated the Sac & Fox Nation case. As discussed in the facts above, however,

Sac & Fox Nation is not the case presently on appeal; it was officially closed by

the district court’s judgment remanding the case back to the Secretary on August

23, 2001. The district court in that case expressly disclaimed continuing

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jurisdiction, stating in a later order that “any appeal of the Secretary’s

determination following the remand must be considered a new and separate

action.”

The instant case is just such a “new and separate action,” filed on July 11,

2003 by a slightly different collection of Plaintiffs in the district court under a

different case number. Notably, this complaint, by its own terms, challenges only

the Secretary’s March 2002 determination and June 2003 opinion; it mentions the

Sac & Fox Nation case, but only as part of the previous history of litigation

surrounding the Huron Cemetery in Kansas City, Kansas. It is thus clear that,

despite the existence of certain common issues, Plaintiffs’ claims in this case are

focused upon the Secretary’s legal and factual explanations rendered after the

judgment and remand in Sac & Fox Nation rendered that case closed.

We therefore look to the status of the Shriner Tract as of July 11, 2003 —

the date Plaintiffs filed their complaint in this case — to determine whether the

Quiet Title Act’s waiver of sovereign immunity applies. As of that date, the Tract

was already held in trust by the United States, having been taken into trust at

some point prior to our publication of the Sac & Fox Nation opinion in early

2001. See 240 F.3d at 1257. Thus, the Act’s exception for Indian trust lands

“retain[ed] the United States’ immunity from suit by third parties challenging the

United States’ title to land held in trust for Indians.” Mottaz, 476 U.S. at 842.

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As a result, we conclude that Plaintiffs have not demonstrated that a waiver of the

United States’ sovereign immunity applied at the time they filed the instant suit. 5

D. Neither a court nor the Secretary can preserve the rights of the
parties to obtain judicial review of the trust acquisition in the
absence of a valid waiver by Congress

Plaintiffs argue that, even if the Quiet Title Act’s waiver does not apply in

this case, we should honor our order, issued in 1996 during an interlocutory

appeal in the Sac & Fox Nation case, in which we ordered 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” after dissolution of the TRO. Sac &

Fox Nation, 240 F.3d at 1257. In a similar vein, a suggestion was raised at oral

argument that the Secretary’s continued participation in this lawsuit waived, or

estopped her from invoking, the United States’ sovereign immunity. Well-settled

law, however, establishes that neither courts nor government officials can

effectuate such waiver; only Congress holds that power.

As discussed above, the Sac & Fox Nation plaintiffs sought and initially

received a TRO preventing the Secretary from taking the Shriner Tract into trust

while that case remained pending. Sac & Fox Nation, 240 F.3d at 1257.

However, upon interlocutory appeal by the Wyandotte, this court dissolved the

5
For purposes of this case, accordingly, we need not decide whether the
United States could divest a court of jurisdiction if it took this land into trust for
the Wyandotte Tribe after the complaint was filed and served.

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TRO preventing the Secretary from acquiring the Tract in trust. 6 Id. In our July

15, 1996 order vacating the TRO, we explained that the order was not intended to

prevent further review of questions related to gaming on the Tract:

We hear this matter on an emergency basis and wish to preserve, as best
we can, the rights of all parties. In order to do so, [We] take into
specific consideration the statement of the United States Attorney and
the counsel for the Wyandotte Tribe that acquisition by the Secretary of
this land in trust will not affect or bar the ultimate resolution of whether
this land can be used for Class III gaming pursuant to the Indian
Gaming Regulatory Act [“IGRA”].

. . . . In order to preserve the status quo, we grant the [Wyandotte’s]
emergency application for stay and hold that the temporary restraining
order below is dissolved, 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.

Wyandotte Nation, 443 F.3d at 1249-50 (alterations in original).

The Secretary argues that the July 15, 1996 order no longer carries any

authority because Sac & Fox Nation, the case in which it was issued, is closed.

6
Our reasoning in this decision is not revealed in the record, which does not
contain our order dissolving the TRO but only the references to it in Sac & Fox
Nation, 240 F.3d at 1257, and in Wyandotte Nation, 443 F.3d at 1249-50.
According to these cases, our dissolution of the TRO resulted from concerns that
either the sales contract or the Secretary’s ability to take the Tract into trust
would expire on July 15, 1996, and therefore if the TRO remained in effect the
purchase of the Tract would never come to pass. This worry was apparently
unfounded; Plaintiffs in this case attached to their reply brief a Notice of
Supplemental Information filed by the Wyandotte’s attorneys the day after the
TRO was dissolved, explaining that the Wyandotte had actually negotiated an
extension of some kind during the oral arguments on July 15, 1996.

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We need not address whether the order remains applicable, however, because in

the absence of an express statutory waiver of sovereign immunity, this court lacks

authority to authorize a suit against the United States.

“[O]nly Congress, not the courts, can waive the sovereign immunity of the

United States. Therefore, in the absence of clear congressional consent, then,

there is no jurisdiction to entertain suits against the United States.” Merrill

Lynch, Pierce, Fenner & Smith, Inc., 960 F.2d at 913 (quotation, alterations,

citations omitted); see also Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 704 (1949) (“[I]t is not for this Court to examine the necessity [of

sovereign immunity] in each case. That is a function of the Congress.”).

Congressional consent must come in the form of a statutory authorization:

In order for a claim against the United States to be heard, first there
must be, because sovereign immunity requires it, consent to be sued;
and because, with the exception of the Supreme Court, the subject
matter jurisdiction of federal courts is defined by statute, there must be,
second, Congressional provision of a court with the authority to hear
the claim and grant relief.

Franklin Sav. Corp. v. United States, 385 F.3d 1279, 1289 (10th Cir. 2004); see

also Kelley v. United States, 69 F.3d 1503, 1507 (10th Cir. 1995) (“[A] waiver of

sovereign immunity . . . may not be extended beyond the explicit language of the

statute.”).

Nor can the actions of the Secretary, or any government official or

attorney, act as a waiver or abandonment of the United States’ sovereign

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immunity. “Because waiver must be unequivocally expressed by Congress,

officers of the United States possess no power through their actions to waive an

immunity of the United States or to confer jurisdiction on a court. The federal

government’s appearance in court through its officers and agents, therefore, does

not waive the government’s sovereign immunity.” Murdock Mach. & Eng’g Co.,

81 F.3d at 931 (quotations, citations omitted); accord Richman, 124 F.3d at 1205

(“[N]either the government’s attorneys nor any other officer of the United States

may waive the United States’ sovereign immunity.”).

As a result of the strict jurisdictional nature of sovereign immunity, our

waiver analysis is necessarily constrained to consideration of whether the Quiet

Title Act itself waived the United States’ sovereign immunity. Having already

answered this question in the negative, the previous orders of this court and the

conduct of the Secretary during litigation are simply irrelevant; without a valid

congressional waiver, neither the district court nor this court possess jurisdiction

to hear this case. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is

axiomatic that . . . the existence of consent is a prerequisite for jurisdiction.”);

Murdock Mach. & Eng’g Co., 81 F.3d at 931 (“[I]n the absence of governmental

consent, the courts lack jurisdiction to restrain the government from acting, or to

compel it to act.” (quotation omitted, emphasis in original)). Although this result

may seem inequitable in light of the Secretary’s failure to raise this issue earlier

and our prior attempt to preserve judicial review through our order in Sac & Fox

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Nation, “this [c]ourt has no authority to create equitable exceptions to

jurisdictional requirements.” Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007); see

also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th

Cir. 2001) (“Any waiver [of sovereign immunity] must be construed strictly in

favor of the sovereign and not enlarged beyond what its language requires.”

(alteration, quotation omitted)).

CONCLUSION

Although this case follows Sac & Fox Nation in addressing the Secretary’s

acquisition of the Shriner Tract in trust for the Wyandotte tribe, it is a

procedurally separate case. As such, because the relief requested by Plaintiffs’

suit effectively renders it a quiet title action against the United States, we look to

the Quiet Title Act to determine whether, at the time of the instant complaint,

Congress had waived the United States’ sovereign immunity. Because the United

States had already taken the Tract into trust by the time Plaintiffs’ complaint in

this case was filed, and the Quiet Title Act expressly excepts land held in trust for

Indian tribes from its waiver of sovereign immunity, we conclude that the district

court lacked jurisdiction to decide the case below, and we lack jurisdiction to

address the merits of this appeal. We therefore DISMISS this appeal and remand

to the district court with instructions to VACATE its judgment and DISMISS the

case, without prejudice, for lack of jurisdiction.

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06-3213, Governor of the State of Kansas, et al. v. Kempthorne

BRISCOE, Circuit Judge, concurring, joined by HARTZ, Circuit Judge:

I agree that this case is, as indicated by the majority, “procedurally

separate” from the Sac & Fox Nation case and that, for reasons of sovereign

immunity, the district court lacked jurisdiction to hear it. I therefore concur in

the judgment. I write separately, however, to outline what I believe are

extraordinary circumstances that appear to justify vacatur of the final judgment

entered by the district court in the Sac & Fox Nation case and the authorization of

further proceedings in that case.

There is simply no doubt that this case is, in substance, a continuation of

the Sac & Fox Nation case. Except for the appearance of an additional plaintiff,

the parties in this case are the same as in the Sac & Fox Nation case, and the

plaintiffs in the instant case seek to challenge determinations made by the

Secretary pursuant to additional administrative proceedings that we directed to be

conducted in our 2001 decision in the Sac & Fox Nation case. See Sac & Fox

Nation v. Norton, 240 F.3d 1250, 1268 (10th Cir. 2001) (remanding “to the

Secretary for further consideration of the question of whether Pub.L. 98-602

funds were used for the acquisition of the Shriner Tract.”). Indeed, the plaintiffs

in this case, following the conclusion of the additional administrative proceedings

we directed, attempted to continue the Sac & Fox Nation case by filing with the

district court a motion to supplement the administrative record (to include the
record of the additional administrative proceedings) and for a scheduling

conference.

At the time plaintiffs filed that motion, the district court had already, and

erroneously (since the parties’ dispute was far from settled), entered final

judgment in the Sac & Fox Nation case. Cf. Trout Unlimited v. U.S. Dep’t of

Agric., 441 F.3d 1214, 1218 (10th Cir. 2006) (noting that a remand by a district

court to an administrative agency for further proceedings is ordinarily not

considered a final decision); Caesar v. West, 195 F.3d 1373, 1374 (Fed. Cir.

1999) (“Remands to administrative agencies, because they mark a continuation of

the case, are not generally considered final for jurisdictional purposes.”).

Presumably in light of its having entered final judgment, the district court denied

plaintiffs’ motion and directed them to proceed with their challenges to the

Secretary’s decision by filing a “new and separate action.” Not surprisingly,

plaintiffs, armed with our July 1996 order allegedly “preserv[ing] the status quo”

and protecting their rights to “obtain judicial review” of the Secretary’s decision

to take the land at issue into trust, proceeded as directed by the district court and

filed a new and separate action. In turn, the Secretary, consistent with the

language of this court’s July 1996 order, proceeded to litigate plaintiffs’

challenges on the merits for over four years without asserting any sovereign

immunity challenge to the plaintiffs’ new and separate action. In short, despite

plaintiffs having consistently acted in a timely fashion to challenge the

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Secretary’s determinations, the actions of this court, the district court, and the

Secretary have coalesced in the legally correct, but grossly inequitable, result we

are now required to reach.

These circumstances, I submit, are sufficiently extraordinary in nature that

they appear to warrant vacatur, pursuant to Federal Rule of Civil Procedure

60(b)(6), of the final judgment entered by the district court in the Sac & Fox

Nation case. See McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006)

(noting that Rule 60(b)(6) “should be liberally construed when substantial justice

will thus be served”) (internal quotation marks omitted). Absent vacatur of that

judgment, manifest injustice will likely result: plaintiffs, through no fault of their

own, will be prohibited from pursuing to conclusion the serious challenges they

have raised regarding the propriety of the Secretary’s decision to take the land at

issue into trust. At the same time, the public’s broad interest in ensuring that the

Secretary has fairly and adequately carried out his obligations will be stymied.

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06-3213 - Governor v. Kempthorne

HARTZ, Circuit Judge, concurring:

I join Judge Ebel’s opinion. I also join Judge Briscoe’s opinion,

recognizing that relief under Fed. R. Civ. P. 60(b)(6) will be unavailable if the

government is correct that it can divest a court of jurisdiction by taking land into

trust for a tribe after a complaint has been filed and served, an issue we have not

decided on this appeal.