FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAIUTE-SHOSHONE INDIANS OF THE
BISHOP COMMUNITY OF THE BISHOP
COLONY, CALIFORNIA, a federally
No. 07-16727
recognized Indian tribe,
Plaintiff-Appellant,
D.C. No.
CV-06-00736-OWW
v.
OPINION
CITY OF LOS ANGELES, a California
municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued August 10, 2010;
Resubmitted March 7, 2011
San Francisco, California
Filed March 14, 2011
Before: Susan P. Graber, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber
3483
3486 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
COUNSEL
Randolph H. Barnhouse, Luebben Johnson & Barnhouse LLP,
Los Ranchos de Albuquerque, New Mexico, for the plaintiff-
appellant.
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3487
Lisa S. Berger, Deputy City Attorney, Los Angeles, Califor-
nia, for the defendant-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Paiute-Shoshone Indians of the Bishop Commu-
nity of the Bishop Colony, California, an Indian tribe formally
recognized by the United States, filed this action against
Defendant City of Los Angeles for an order restoring Plaintiff
to possession of land that the City took long ago in a deal with
the United States. The district court dismissed the action
under Federal Rule of Civil Procedure 12(b)(7) because it
ruled that, under Rule 19 of the Federal Rules of Civil Proce-
dure, the United States was a required party that Plaintiff
could not join. The district court certified the appealability of
its order under 28 U.S.C. § 1292(b). Upon Plaintiff’s timely
request, we agreed to hear this interlocutory appeal, and we
now affirm.
I. Background1
For centuries, Plaintiff’s members lived in the area now
called the Owens Valley in Inyo County, California. After
non-Indian settlers began to move into that area in the late
Nineteenth Century, Congress moved to protect Plaintiff by
acquiring land in the area and setting it aside for Plaintiff’s
benefit. By 1924, the United States had acquired and set aside
five tracts of land totaling approximately 1,030 acres (the
“Bishop Tribal Land”). Pursuant to the usual custom, the
1
On review of an order dismissing an action under Rule 12(b)(7), we
accept as true the allegations in Plaintiff’s complaint and draw all reason-
able inferences in Plaintiff’s favor. Transmission Agency of N. Cal. v.
Sierra Pac. Power Co., 295 F.3d 918, 923 (9th Cir. 2002).
3488 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
United States held the title to the Bishop Tribal Land in trust
for Plaintiff.
In the Act of April 20, 1937, 50 Stat. 70, Congress autho-
rized the Secretary of the Interior to exchange federal land
and water rights in the Owens Valley for other land and water
rights owned by the City. The Act placed several conditions
on any such exchange. Among them, a majority of Plaintiff’s
adult members had to consent to an exchange; an exchange
had to include the water rights appurtenant to the exchanged
lands; and the value of the rights conveyed in an exchange
had to equal the value of the rights received.
In 1937, the United States set out to exchange 3,126 acres
of federal land, which included the Bishop Tribal Land, for
1,511 acres of land in the Owens Valley held by the City.
Plaintiff alleges that the United States engaged in several
improprieties in conducting that exchange. Agents of the Fed-
eral Bureau of Indian Affairs canvassed Plaintiff’s members,
going house-to-house and gathering signatures. Plaintiff
alleges that, of the 211 signatures gathered, 187 were written
on blank pieces of paper. Plaintiff further alleges that the
remaining 24 signatures were written on term sheets bearing
a “grossly insufficient description” of the particulars of the
exchange.
On May 18, 1938, the United States effected the exchange
with the City by a written agreement. The agreement reserved
to each party all water rights appurtenant to the exchanged
lands, and the appraisals on which both parties relied did not
include the value of those water rights. Plaintiff alleges that
the agreement violated the Act’s requirement that an
exchange include the water rights appurtenant to the land
exchanged. Plaintiff further alleges that the parties had insuf-
ficient evidence from which to conclude that they were
exchanging rights of equivalent value because the appraisals
did not include the value of the water rights.
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3489
In July 1941, the United States formally conveyed the
Bishop Tribal Land to the City by an executed deed. Since
that time, the City has excluded Plaintiff’s members from
occupying and using the Bishop Tribal Land.
Plaintiff filed this action against the City in 2006, asking
the district court mainly “for an order ejecting [the City] from
the Bishop Tribal Land and restoring [Plaintiff] to posses-
sion.” Plaintiff did not name the United States as a party.
Eventually, the City moved to dismiss the action under Rule
12(b)(7), arguing that the United States was a required party
under Rule 19 and that it could not be joined. The district
court agreed and dismissed the suit with leave to amend.
Rather than amend its complaint, however, Plaintiff decided
to pursue an interlocutory appeal under 28 U.S.C. § 1292(b).
Finding this case “exceedingly close,” the district court
granted a certificate of appealability. Upon Plaintiff’s timely
request, we agreed to hear this appeal.
II. Discussion
[1] Our review of a dismissal under Rule 12(b)(7) has
three parts. EEOC v. Peabody W. Coal Co., 400 F.3d 774,
779-80 (9th Cir. 2005). First, guided by the provisions of Rule
19(a), we must decide whether it is “desirable in the interests
of just adjudication” to join the United States. Id. at 779
(internal quotation marks omitted). If so, we must determine
next whether a court feasibly could order that the United
States be joined. Id. Finally, if a court cannot so order, then,
guided by the provisions of Rule 19(b), we must decide
whether “in equity and good conscience” the case may pro-
ceed in the absence of the United States. Id. at 779-80.
We review for abuse of discretion the district court’s deci-
sion to dismiss this action for failure to join the United States.
Dawavendewa v. Salt River Project Agric. Improvement &
Power Dist., 276 F.3d 1150, 1154 (9th Cir. 2002). To the
3490 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
extent that the district court’s decision involves questions of
law, we review de novo. Id.
A. The United States is a “required party” under Rule
19(a).
[2] We have interpreted Rule 19(a)2 to provide for a two-
part analysis. Yellowstone County v. Pease, 96 F.3d 1169,
1172 (9th Cir. 1996). We first examine whether the district
court could award complete relief to the parties present with-
out joining the non-party. Id. at 1172. Alternatively, we ask
whether the non-party has a “legally protected interest” in this
action that would be “impaired or impeded” by adjudicating
the case without it. Id. at 1172-73. If we answer either of
those questions in the affirmative, then the United States is a
“required party” under Rule 19(a). Id. at 1172.
We have no doubt that the United States is a required party.
The district court could not award the relief that Plaintiff
seeks in the absence of the United States. Plaintiff’s theory of
this case involves three steps that it claims lead to its
requested relief, which is to eject the City from the Bishop
2
In its recently amended form, Rule 19(a) provides:
Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of pro-
cess and whose joinder will not deprive the court of subject-
matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete
relief among existing parties; or
(B) that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the per-
son’s absence may:
(i) as a practical matter impair or impede the person’s ability
to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incur-
ring double, multiple, or otherwise inconsistent obligations
because of the interest.
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3491
Tribal Land and to restore Plaintiff to possession of it. First,
Plaintiff alleges that the United States violated the conditions
in the Act when it exchanged the Bishop Tribal Land without
proper consent from a majority of Plaintiff’s adult members,
without transferring the water rights appurtenant to the
exchanged land, and without obtaining sufficient appraisals of
the exchanged land. Second, because of those violations,
Plaintiff theorizes that the “purported transfer” of the Bishop
Tribal Land “was null and void.” Finally, because the City has
never lawfully held title to the Bishop Tribal Land, Plaintiff
asks the district court to take the land from the City and give
it to Plaintiff.
[3] But Plaintiff’s theory skips a crucial fourth step. As
Plaintiff’s complaint acknowledges, the United States, not
Plaintiff, conveyed the Bishop Tribal Land to the City. Even
if a finder of fact were to decide that the United States vio-
lated the Act and that those violations render the land
exchange null and void, the title to the Bishop Tribal Land
would revert to the United States, not to Plaintiff. To achieve
the relief that it seeks, Plaintiff would require an additional
order, apart from an order ejecting the City, requiring the
United States either to cede title to Plaintiff or to hold the land
in trust for Plaintiff’s benefit. Without such an order, we see
nothing stated in Plaintiff’s complaint that would require the
United States to give the Bishop Tribal Land back to Plaintiff.
And, before a court could bind the United States by such an
order, the United States must be a party. See Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,
110 (1968) (recognizing that an “outsider . . . not before the
court . . . cannot be bound by the judgment rendered”).
[4] Because we conclude that the district court could not
accord complete relief to Plaintiff in the absence of the United
States, the United States is a required party under Rule 19(a).
We therefore need not answer the alternative question
whether the United States has a legally protected interest in
3492 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
this action that would be impaired or impeded by adjudicating
the case without it.
B. The United States cannot be joined.
[5] We turn to the second part of the analysis, whether the
United States feasibly could be joined in this action. Because
the United States has sovereign immunity, no one, including
Indian tribes, may sue the United States without first obtain-
ing permission from Congress. Sisseton-Wahpeton Sioux
Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990). We
therefore examine whether Congress has given Plaintiff per-
mission to join the United States here.
[6] As it turns out, Congress waived its sovereign immu-
nity over Plaintiff’s claim many years ago, but Plaintiff failed
to take advantage of that waiver. In 1946, Congress enacted
the Indian Claims Commission Act (“ICCA”), formerly codi-
fied at 25 U.S.C. §§ 70 to 70n-2. The ICCA created an execu-
tive tribunal, the Indian Claims Commission, to hear and
determine all tribal claims against the United States that
accrued before August 13, 1946. 28 U.S.C. § 1505 (1982).
Tribes had five years within which to file claims with the
Commission. 25 U.S.C. § 70k (1976). Any claim not filed by
that deadline could not “thereafter be submitted to any court
or administrative agency for consideration.”3 Id.
3
In 1978, Congress abolished the Indian Claims Commission and trans-
ferred the Commission’s pending cases to the Court of Federal Claims. 28
U.S.C. § 1505. Congress also gave the Court of Federal Claims jurisdic-
tion to hear actions for money damages brought against the United States
“founded either upon the Constitution, or any Act of Congress or any reg-
ulation of an executive department, or upon any express or implied con-
tract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). We note that, even if
Plaintiff could now file a claim against the United States in the Court of
Federal Claims, that court has no jurisdiction to award the injunctive relief
that Plaintiff would require to achieve its desired result—an order requir-
ing the United States to turn over the Bishop Tribal Land to Plaintiff. E.
Enters. v. Apfel, 524 U.S. 498, 520 (1998).
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3493
[7] We hold that the United States cannot feasibly be
joined in this action because the ICCA provided the exclusive
remedy for Plaintiff’s claim but Plaintiff failed to avail itself
of that remedy. According to Plaintiff’s complaint, it had a
ripe claim against the United States by 1941, when the United
States finalized its land exchange with the City, yet Plaintiff
failed to file a claim with the Commission before 1951, the
year in which the ICCA’s statute of limitations expired. In
those circumstances, the ICCA states unequivocally that no
court may adjudicate Plaintiff’s claim. The district court
therefore lacks jurisdiction over Plaintiff’s untimely claim
against the United States.
Our holding finds support from our sister circuits. In Nav-
ajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1457
(10th Cir. 1987), the Navajo Tribe asserted that the United
States improperly transferred tribal lands to the State of New
Mexico and several individuals. The Navajo Tribe named the
United States, New Mexico, and the individual grantees as the
defendants. Id. at 1462. The Tenth Circuit held that the Nav-
ajo Tribe’s claim against the United States could not go for-
ward because it fell within the exclusive jurisdiction of the
Indian Claims Commission and the statute of limitations con-
tained in the ICCA had run. Id. at 1464.
The Eighth Circuit arrived at a similar conclusion in Oglala
Sioux Tribe of Pine Ridge Indian Reservation v. United
States, 650 F.2d 140 (8th Cir. 1981). An Indian tribe brought
an action in district court to quiet title to the Black Hills of
South Dakota, alleging an unconstitutional taking under the
Fifth Amendment. Id. at 141. The alleged taking arose from
an 1877 statute that abrogated a treaty between the United
States and the Sioux Nation. Id. at 142. The Eighth Circuit
affirmed the district court’s dismissal of the action, holding
that the remedy provided in the ICCA negated any implied
cause of action arising under the Constitution for taking of
Indian land by the United States. Id. at 143.
3494 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
Notwithstanding that body of precedent, Plaintiff argues
that Oregon Department of Fish & Wildlife v. Klamath Indian
Tribe, 473 U.S. 753 (1985), and Swim v. Bergland, 696 F.2d
712 (9th Cir. 1983), stand for the proposition that the ICCA
does not exclude other avenues for litigating its claim against
the United States. Those cases are irrelevant to the issue
involved here. The United States was not a required party in
Klamath Indian Tribe because the plaintiff tribe could have
obtained complete relief without joining the United States as
a party. The tribe filed suit against the State of Oregon, claim-
ing that its treaties and subsequent agreements with the
United States protected the tribe from state regulation. The
tribe sought only to enjoin Oregon from enforcing certain
state regulations that would prohibit the tribe from hunting
and fishing outside its reservation. Nothing about the relief
requested in Klamath Indian Tribe required any action by the
United States.
In Swim, 696 F.2d at 714-15, we addressed a situation in
which two tribes defended a declaratory judgment action
brought by non-Indians who wanted to obtain grazing permits
for property owned by the United States and reserved for the
tribes. The tribes were not seeking to be restored to land that
they formerly inhabited; rather, they wanted only to keep the
land that they already had. Thus, the ICCA had no application
in Swim because the tribes were not suing anyone; they were
defending their interests in an action filed by non-Indians.
Plaintiff also argues that 28 U.S.C. § 1362 provides an
independent waiver of sovereign immunity over actions
brought by Indian tribes against the United States.4 We
4
Title 28 U.S.C. § 1362 provides:
The district courts shall have original jurisdiction of all civil
actions, brought by any Indian tribe or band with a governing
body duly recognized by the Secretary of the Interior, wherein
the matter in controversy arises under the Constitution, laws, or
treaties of the United States.
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3495
decline Plaintiff’s sweeping invitation to read § 1362 as waiv-
ing sovereign immunity over every action brought by an
Indian tribe against the United States when the statute says
nothing about either sovereign immunity or actions against
the United States. Section 1362 merely grants jurisdiction to
the district courts to adjudicate civil actions by Indian tribes
so long as no other jurisdictional bar prohibits the courts from
hearing those actions.
[8] In summary, we agree with our sister circuits that the
ICCA provided the exclusive remedy for claims accrued by
Indian tribes against the United States before 1946. Because
Plaintiff had such a claim but failed to present it to the Indian
Claims Commission within the statute of limitations pre-
scribed by the ICCA, Plaintiff has lost its opportunity to liti-
gate its dispute with the United States. Accordingly, the
United States cannot feasibly be joined in this suit.
C. This case cannot proceed in equity and good
conscience without the United States.
[9] We turn to the last part of the analysis, whether this
case may proceed in the absence of the United States under
Rule 19(b).5 The Supreme Court has interpreted Rule 19(b) as
5
Rule 19(b) provides:
When Joinder Is Not Feasible. If a person who is required to
be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should pro-
ceed among the existing parties or should be dismissed. The fac-
tors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
3496 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
requiring us to consider at least four interests: (1) the plain-
tiff’s interest in having a forum; (2) the defendant’s interest
in not proceeding without the required party; (3) the interest
of the non-party by examining “the extent to which the judg-
ment may as a practical matter impair or impede [its] ability
to protect [its] interest in the matter”; and (4) the interests of
the courts and the public in “complete, consistent, and effi-
cient settlement of controversies.” Patterson, 390 U.S. at 109-
11 (internal quotation marks omitted). That list is not exclu-
sive of other considerations, however. At all events, Rule
19(b) requires us to undertake a “practical examination of
[the] circumstances” to determine whether an action may pro-
ceed “in equity and good conscience” without the absent
party. Id. at 119 n.16.
[10] Plaintiff argues that all of the Patterson factors favor
allowing this case to proceed in the absence of the United
States. We disagree. First, Plaintiff claims a “strong interest”
in having this forum because it has no other avenue available
for establishing its right to the Bishop Tribal Land. That is a
dilemma of Plaintiff’s own making. Congress gave Plaintiff
an opportunity to adjudicate its dispute with the United States
but Plaintiff missed that opportunity. Even accepting Plain-
tiff’s claim that it cannot obtain relief in any other forum
today, the fact that Plaintiff at one time had a “satisfactory
alternative forum” but failed to take advantage of it signifi-
cantly lessens the strength of Plaintiff’s interest in having this
action go forward. Id. at 109.
Second, because the City does not face the possibility of
multiple litigation, inconsistent relief, or sole responsibility
(C) other measures;
(3) whether a judgment rendered in the person’s absence
would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3497
for a liability that it shares with someone else, Plaintiff argues
that the second Patterson factor favors it, too. Plaintiff inter-
prets that factor too narrowly. Rule 19(b) tells us to consider
the extent to which a judgment rendered in the United States’
absence might prejudice the existing parties. In Patterson, the
Supreme Court interpreted that directive to mean that we must
consider a defendant’s “interest” in whether a case should
proceed without a required party. Id. at 110. As examples of
interests a defendant might have, the Court observed that a
defendant “may properly wish to avoid multiple litigation, or
inconsistent relief, or sole responsibility for a liability he
shares with another.” Id. We do not take that observation to
mean that those are the only interests a defendant might have
in not wanting to proceed with an action in the absence of a
required party who could not be joined.
[11] Here, even if we agree with Plaintiff that the City
does not face the possibility of multiple litigation, inconsistent
relief, or responsibility for liability that it would share with
the United States, the City still has a significant interest in not
wanting to proceed with this case. To achieve the relief that
Plaintiff seeks, Plaintiff must prove that agents of the United
States violated the 1937 Act when they gave the Bishop
Tribal Land to the City. The City cannot reasonably be
expected to defend the actions of an entirely different entity
over which the City had no control. Proceeding with this suit
in the absence of the United States therefore would prejudice
the City because the City by itself cannot defend effectively
against the crux of Plaintiff’s allegations, even though those
allegations may be untrue. Accordingly, we conclude that the
second Patterson factor weighs against allowing Plaintiff to
proceed with its suit.
[12] The third factor militates against allowing this case to
proceed as well. Plaintiff has accused federal agents of
wrongdoing. The United States is therefore the proper party
to defend itself against Plaintiff’s accusations. If a jury were
to agree with Plaintiff—perhaps because the City could not
3498 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
mount an adequate defense—a judgment in Plaintiff’s favor
“may as a practical matter impair or impede” the United
States’ ability to protect its interest. Patterson, 390 U.S. at
110. Plaintiff would have an argument that such a judgment
would estop the United States from relitigating the legality of
its actions if the United States chose to do so in a future case.
Montana v. United States, 440 U.S. 147, 155-62 (1979).
[13] There remains the interests of the courts and the pub-
lic in “complete, consistent, and efficient settlement of contro-
versies.” Patterson, 390 U.S. at 111. Because it has no other
forum for litigating this dispute, Plaintiff argues that the pub-
lic’s interest in the settlement of controversies favors letting
Plaintiff proceed with its action in the absence of the United
States. But, as the Supreme Court instructed in Patterson, the
courts and the public have an interest in the complete and effi-
cient settlement of controversies. Id. Even if we allowed
Plaintiff to proceed here, the best Plaintiff could do would be
to undo the 1938 exchange agreement between the City and
the United States. The controversy regarding what to do with
the Bishop Tribal Land after such an order would remain alive
and incapable of resolution in the absence of the United
States. Because Plaintiff’s action only gets Plaintiff part of the
way to the relief that it wants, the interest of the courts and
the public in a complete and efficient settlement does not sup-
port Plaintiff’s position.
[14] Accordingly, we hold that the Rule 19(b) analysis
does not favor allowing Plaintiff to proceed with this action
in the absence of the United States. We therefore hold that the
district court did not abuse its discretion by dismissing this
action under Rule 12(b)(7).
As a final matter, we reject Plaintiff’s argument that our
holding in Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d
1251 (9th Cir. 1983), which we recently reaffirmed in Lyon
v. Gila River Indian Community, 626 F.3d 1059 (9th Cir.
2010), provides an exception to Rule 19(b) into which this
PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3499
case fits. As we explained in Lyon, 626 F.3d at 1070, we held
in Puyallup that, “in a suit by an Indian tribe to protect its
interest in tribal lands, regardless of whether the United States
is a [required] party under Rule 19(a), it is not [a] party in
whose absence litigation cannot proceed under Rule 19(b).”
(Internal quotation marks omitted.)
At first blush, that holding appears to support Plaintiff’s
position. But, in Lyon, we expressly observed that the United
States’ interests were “shared and adequately represented” by
the plaintiff tribes. Id. at 1071. Similarly, in Puyallup, 717
F.2d at 1254, the plaintiff tribe’s position was not adverse to
the interests of the United States, which simply held the title
to the disputed land in trust for the benefit of the tribe. The
central dispute in Puyallup, as in Lyon, involved the plaintiff
tribe and the named defendant. It did not involve the United
States. See also Fort Mojave Tribe v. Lafollette, 478 F.2d
1016, 1018 (9th Cir. 1973) (allowing a suit by an Indian tribe
to proceed without the United States when “[i]t [did] not
appear that failure to join the United States would radically
and injuriously affect its interest” (internal quotation marks
omitted)).
Here, by contrast, the lawfulness of the United States’
actions forms the central issue. In these circumstances, the
Puyallup exception to Rule 19(b) does not apply.
AFFIRMED.