FILED
NOT FOR PUBLICATION
DEC 11 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER ROSALES; et al., No. 17-16967
Plaintiffs-Appellants, D.C. No.
2:15-cv-01145-KJM-KJN
v.
AMY DUTSCHKE, Regional Director, MEMORANDUM*
Bureau of Indian Affairs; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted November 13, 2019
San Francisco, California
Before: W. FLETCHER and BADE, Circuit Judges, and MOSKOWITZ,** District
Judge.
This is at least the third case in which Plaintiff-Appellant Walter Rosales
alleges that the construction of a casino by Jamul Indian Village (the “Tribe”), a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
federally recognized Indian tribe, unlawfully disturbed human remains and
funerary objects. See Rosales v. United States, No. 07cv0624, 2007 WL 4233060,
at *5–10 (S.D. Cal. Nov. 28, 2007) (unpublished), appeal dismissed for failure to
prosecute, No. 08-55207 (9th Cir. Aug. 12, 2008); Rosales v. Dep’t of Transp., No.
D066585, 2016 WL 124647, at *1–3 (Cal. Ct. App. Jan. 12, 2016) (unpublished).
As in those earlier cases, we hold that the claims were properly dismissed for
failure to join the Tribe.
Federal Rule of Civil Procedure 19 requires the dismissal of a case where an
absent party has an interest in the litigation that would be impaired if the litigation
were to proceed in its absence, joinder of that party is unfeasible, and the action
could not proceed in equity and good conscience without it. Dine Citizens Against
Ruining Our Env’t v. Bureau of Indian Affairs, 932 F.3d 843, 851 (9th Cir. 2019).
“We review a Rule 19 dismissal for abuse of discretion and underlying legal
conclusions de novo.” Salt River Project Agric. Improvement & Power Dist. v.
Lee, 672 F.3d 1176, 1179 (9th Cir. 2012) (citation omitted).
The Tribe has a substantial interest in this litigation because the complaint
contends that the Tribe does not exercise governmental power over the land on
which the casino was built. Plaintiffs’-Appellants’ claims turn largely on the status
of this land. On appeal, Plaintiffs-Appellants do not dispute the district court’s
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conclusion that joinder of the Tribe is unfeasible because it is immune from this
suit under the doctrine of tribal sovereign immunity. Even assuming that the
Tribe’s sovereign immunity does not extend to its officers here because they are
properly sued in their personal capacities, the interests of those individuals in
defending a claim for damages may not align with those of the Tribe. See
Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992); cf. Salt River
Project Agric. Improvement & Power Dist., 672 F.3d at 1180–81. The district
court did not abuse its discretion in concluding that the Tribe would not adequately
be represented by the remaining parties in this suit and that it would be inequitable
to proceed in its absence.
AFFIRMED.
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