FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMUL ACTION COMMITTEE; JAMUL No. 17-16655
COMMUNITY CHURCH; DARLA
KASMEDO; PAUL SCRIPPS; GLEN D.C. No.
REVELL; WILLIAM HENDRIX, 2:13-cv-01920-
Plaintiffs-Appellants, KJM-KJN
v.
OPINION
E. SEQUOYAH SIMERMEYER,
Chairman of the National Indian
Gaming Commission; DAVID
BERNHARDT, Secretary of the U.S.
Department of the Interior; TARA
KATUK MAC LEAN SWEENEY,
Assistant Secretary - Indian Affairs,
U.S. Department of the Interior;
PAULA L. HART, Director of the
Office of Indian Gaming, Bureau of
Indian Affairs; U.S. DEPARTMENT OF
THE INTERIOR; NATIONAL INDIAN
GAMING COMMISSION; RAYMOND
HUNTER, Chairman, Jamul Indian
Village; CHARLENE CHAMBERLAIN;
ROBERT MESA; RICHARD TELLOW;
JULIA LOTTA; PENN NATIONAL, INC.;
SAN DIEGO GAMING VILLAGE, LLC;
C.W. DRIVER, INC.; UNITED STATES
OF AMERICA,
Defendants-Appellees.
2 JAMUL ACTION COMM. V. SIMERMEYER
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted November 13, 2019
San Francisco, California
Filed September 8, 2020
Before: William A. Fletcher and Bridget S. Bade, Circuit
Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Tribal Matters
The panel affirmed the district court’s dismissal for
failure to join a required party in an action challenging the
Jamul Indian Village’s efforts to build a casino.
In 1981, a small group of Kumeyaay Indians living on
land in Rancho Jamul, California organized under the Indian
Reorganization Act as the Jamul Indian Village. The Bureau
of Indian Affairs (“BIA”) approved the Village’s constitution,
*
The Honorable Barry Ted Moskowitz, United States District Judge
for the Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JAMUL ACTION COMM. V. SIMERMEYER 3
and the Village has appeared on the BIA’s published list of
federally recognized Indian tribes ever since.
Two community organizations and several of their
members (collectively “JAC”) contend that the Village is not
a federally recognized Indian tribe.
The panel held that the distinction JAC urges between
historic tribes and other tribal entities organized under the
Indian Reorganization Act was without basis in federal law.
The panel held further that the Jamul Indian Village is a
federally recognized Indian tribe with the same privileges and
immunities, including tribal sovereign immunity, that other
federally recognized Indian tribes possess. The Village’s
tribal sovereign immunity extends to its officers in this case.
Because the Village was protected by tribal sovereign
immunity, the panel agreed with the district court that the
Village cannot be joined in this action and that the action
cannot proceed in equity and good conscience without it. The
panel therefore affirmed the dismissal for failure to join a
required party.
COUNSEL
Kenneth R. Williams (argued), Sacramento, California, for
Plaintiffs-Appellants.
Varu Chilakamarri (argued), William B. Lazarus, Judith
Rabinowitz, and Barbara M.R. Marvin, Attorneys, Appellate
Section; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General;
Environment and Natural Resources Division, United States
4 JAMUL ACTION COMM. V. SIMERMEYER
Department of Justice, Washington, D.C.; Matthew Kelly,
Office of the Solicitor, United States Department of the
Interior, Washington, D.C.; Austin T. Badger, Office of the
General Counsel, National Indian Gaming Commission,
Washington, D.C.; for Federal Defendants-Appellees.
Frank Lawrence (argued) and Zehava Zevit, Law Office of
Frank Lawrence, Nevada City, California, for Tribally-
Related Defendants-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
Since at least 1912, a small group of Kumeyaay Indians
have lived on a two-acre plot of land in Rancho Jamul,
California, deeded to the Roman Catholic Diocese of
Monterey and Los Angeles for use as an Indian cemetery. In
1981, the families residing there organized under the Indian
Reorganization Act (“IRA”), 25 U.S.C. §§ 5101 et seq., as the
Jamul Indian Village. The Bureau of Indian Affairs (“BIA”)
approved the Village’s constitution, and the Village has
appeared on the BIA’s published list of federally recognized
Indian tribes ever since. See 84 Fed. Reg. 1,200, 1,202 (Feb.
1, 2019); 83 Fed. Reg. 34,863, 34,864 (July 23, 2018);
82 Fed. Reg. 4,915, 4,916 (Jan. 17, 2017); 81 Fed. Reg.
26,826, 26,828 (May 4, 2016); 80 Fed. Reg. 1,942, 1,944
(Jan. 14, 2015); 79 Fed. Reg. 4,748, 4,750 (Jan. 29, 2014);
78 Fed. Reg. 26,384, 26,386 (May 6, 2013); 77 Fed. Reg.
47,868, 47,870 (Aug. 10, 2012); 75 Fed. Reg. 60,810, 60,811
(Oct. 1, 2010); 74 Fed. Reg. 40,218, 40,220 (Aug. 11, 2009);
73 Fed. Reg. 18,553, 18,554 (Apr. 4, 2008); 72 Fed. Reg.
13,648, 13,649 (Mar. 22, 2007); 70 Fed. Reg. 71,194, 71,195
JAMUL ACTION COMM. V. SIMERMEYER 5
(Nov. 25, 2005); 68 Fed. Reg. 68,180, 68,181 (Dec. 5, 2003);
67 Fed. Reg. 46,328, 46,329 (July 12, 2002); 65 Fed. Reg.
13,298, 13,300 (Mar. 13, 2000); 63 Fed. Reg. 71,941, 71,943
(Dec. 30, 1998); 62 Fed. Reg. 55,270, 55,272 (Oct. 23, 1997);
61 Fed. Reg. 58,211, 58,212 (Nov. 13, 1996); 60 Fed. Reg.
9,250, 9,252 (Feb. 16, 1995); 58 Fed. Reg. 54,364, 54,367
(Oct. 21, 1993); 53 Fed. Reg. 52,829, 52,830 (Dec. 29, 1988);
51 Fed. Reg. 25,115, 25,116 (July 10, 1986); 50 Fed. Reg.
6,055, 6,056 (Feb. 13, 1985); 48 Fed. Reg. 56,862, 56,863
(Dec. 23, 1983); 47 Fed. Reg. 53,130, 53,132 (Nov. 24,
1982).
This case concerns the Village’s status as a federally
recognized Indian tribe. In a suit challenging the Village’s
efforts to build a casino, two community organizations and
several of their members (collectively, “JAC”) contend that
the Village is not a federally recognized Indian tribe. Instead,
JAC contends that the Village is only a community of adult
Indians, not a historic tribe with inherent sovereign authority.
Therefore, according to JAC, the Village may not use its
lands for gaming and is not protected by tribal sovereign
immunity.
No tribunal has accepted this argument. But that has not
deterred litigants, including JAC and other members of the
plaintiff organizations, from pressing similar claims in
myriad actions before administrative agencies, state courts,
and federal courts around the country since the early 1990s.
In an opinion that we hope will finally put an end to these
claims, we hold as follows. The distinction JAC urges
between historic tribes and other tribal entities organized
under the IRA is without basis in federal law. Jamul Indian
Village is a federally recognized Indian tribe with the same
privileges and immunities, including tribal sovereign
6 JAMUL ACTION COMM. V. SIMERMEYER
immunity, that other federally recognized Indian tribes
possess. The Village’s tribal sovereign immunity extends to
its officers in this case.
Because we hold that the Village is protected by tribal
sovereign immunity, we agree with the district court that the
Village cannot be joined in this action and that the action
cannot proceed in equity and good conscience without it. We
therefore affirm the district court’s judgment dismissing
JAC’s claims for failure to join a required party.
I. Background
A. The Jamul Indian Village
In 1912, the Coronado Beach Company deeded a small
parcel in Rancho Jamul, San Diego County, California, to the
Roman Catholic Diocese of Monterey and Los Angeles for
use as an Indian cemetery. No more than a portion of the
land has ever been used as a burial ground. On the remainder
of the parcel, with the acquiescence of the Diocese, several
families of Kumeyaay Indians have made their home for
generations.
Beginning in the early 1970s, the families residing on the
parcel sought to organize under the IRA. The Diocese and a
local family transferred about six acres to the United States,
including the greater part of the Indian cemetery and an
adjoining parcel of private land, which the government
accepted into trust for the benefit of the Jamul Indians. After
the United States took this land into trust, the Superintendent
of the Southern California Agency for the BIA recommended
federal recognition of the Village and its inclusion on the list
of recognized tribal entities published in the Federal Register.
JAMUL ACTION COMM. V. SIMERMEYER 7
The BIA authorized a constitutional election. After a
majority of eligible voters cast ballots in favor, the BIA
approved the Village’s constitution under the IRA on July 7,
1981. The tribal constitution limited membership to those
with one-half or more California Indian blood.
B. Leadership Dispute and Subsequent Litigation
Trouble began for the Village in the early 1990s with a
series of disputes about the Village’s membership and
leadership. Faced with the prospect of declining membership
as the Village’s initial members died, the Village began
considering reducing the blood quantum requirement for
membership. At about the same time, some members of the
Village sought to recall officers elected in the Village’s 1992
election. See Rosales v. Sacramento Area Dir. (Rosales I),
32 IBIA 158, 159–63 (1998). Those members held a recall
election, which the BIA determined did not comport with the
Village’s constitution and declined to recognize. Id. at 161.
The Village’s BIA-recognized government and its opponents
held separate elections in 1995. The Interior Board of Indian
Appeals (“IBIA”) ultimately reinstated the officers elected in
the 1992 elections. Id. at 167.
Meanwhile, the Village obtained authorization from the
BIA to hold an election to amend its constitution to reduce
the blood quantum requirement for membership from one-
half to one-quarter. The election approved the amendment in
1996. The BIA rejected a challenge to the amendment
brought by the tribal members opposed to the Village’s
government. See Rosales v. Sacramento Area Dir., 34 IBIA
50 (1999). However, some members continued to dispute the
amendment’s validity. They challenged every tribal election
in which individuals of less than one-half Indian blood were
8 JAMUL ACTION COMM. V. SIMERMEYER
allowed to vote and held separate elections in 1997, 1999, and
2001. Rosales v. United States (Rosales II), 477 F. Supp. 2d
119, 124 (D.D.C. 2007) (holding that individuals who were
not registered voters in the 1996 election lacked standing to
challenge its results), aff’d, 275 F. App’x 1 (D.C. Cir. 2008).
Central to the arguments raised by the opponents of the
Village’s BIA-recognized tribal government in these suits
was the theory that the Village was no more than a
community of adult Indians created by the Department of the
Interior and therefore was not a federally recognized Indian
tribe with the same privileges and powers as a properly
recognized historic tribe. Plaintiffs advanced this theory in
challenges to tribal elections, to the beneficial ownership of
the parcels held in trust by the United States for the Village,
and to the Village’s more recent efforts to build and operate
a casino. See, e.g., Rosales II, 477 F. Supp. 2d at 129;
Rosales v. United States, 73 F. App’x 913 (9th Cir. 2003);
Rosales v. United States, 477 F. Supp. 2d 213 (D.D.C. 2007).
In a 2009 opinion holding that a claim by opponents of the
Village’s tribal government to a personal beneficial interest
in the Village’s trust land was time-barred, the Court of
Federal Claims identified “no fewer than fourteen legal
actions brought before tribal tribunals, administrative boards,
and federal courts in California and the District of Columbia,
all without success,” presenting “these same and related
issues.” Rosales v. United States, 89 Fed. Cl. 565, 571 & n.2
(2009). Since then, both individuals and organizations
affiliated with JAC have continued to press similar claims in
both state and federal courts. See, e.g., Rosales v. Dep’t of
Transp., No. D066585, 2016 WL 124647 (Cal. Ct. App. Jan.
12, 2016) (unpublished); Jamulians Against the Casino v.
Dep’t of Transp., No. C077806, 2016 WL 1253586 (Cal. Ct.
JAMUL ACTION COMM. V. SIMERMEYER 9
App. Mar. 30, 2016) (unpublished); Rosales v. Dutschke,
787 F. App’x 406, 407 (9th Cir. 2019).
C. Procedural History
JAC filed this action challenging continued construction
and operation of a casino on the Village’s federal trust land.
JAC’s operative complaint invokes a host of state and federal
statutory and constitutional provisions, but the gravamen of
its claim is that the parcel on which the casino sits does not
qualify as Indian land eligible for gaming under the Indian
Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701 et seq.,
because the Village is only a community of adult Indians and
not a federally recognized Indian tribe. The complaint also
alleges that the federal government failed to comply with the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321 et seq., in approving the Village’s gaming ordinance
and management contract. JAC named as defendants the
Department of the Interior, the National Indian Gaming
Commission, several federal officials at those agencies, five
council members or officials of the Jamul Indian Village, and
two contractors involved in construction of the casino. The
complaint seeks relief including an injunction against further
construction of the casino and a declaration that the Village’s
land is not “trust land under [tribal] government control” and
is therefore “[in]eligible for tribal gaming.”
Shortly after filing its operative complaint, JAC moved
for a writ of mandate directing the federal defendants to
complete a supplemental environmental impact statement and
for a preliminary injunction. The district court denied the
motion, and JAC appealed.
10 JAMUL ACTION COMM. V. SIMERMEYER
We heard argument in JAC’s interlocutory appeal and
affirmed. In a published opinion, we held that IGRA’s
mandatory deadline for approving a tribe’s gaming ordinance
displaced NEPA’s default requirement that agencies conduct
environmental review before undertaking major federal
action. Jamul Action Comm. v. Chaudhuri, 837 F.3d 958 (9th
Cir. 2016). In an accompanying memorandum disposition,
we held that JAC had not shown a likelihood of success on
the merits of its other claims and that any challenge to the
federal government’s decision to take land into trust for the
benefit of the Village was foreclosed by this court’s opinion
in Big Lagoon Rancheria v. California, 789 F.3d 947 (9th
Cir. 2015) (en banc). See Jamul Action Comm. v. Chaudhuri,
651 F. App’x 689 (9th Cir. 2016).
After our resolution of JAC’s interlocutory appeal, the
federal and tribal defendants moved to dismiss. The district
court dismissed all claims for failure to join a required party,
with the exception of JAC’s NEPA claim related to the
gaming management contract. While that NEPA claim was
still pending, JAC filed another interlocutory appeal, which
we dismissed for lack of jurisdiction. See Jamul Action
Comm. v. Chaudhuri, No. 16-16442, 2017 WL 3611433 (9th
Cir. June 15, 2017) (mem.). The district court granted
summary judgment in favor of the federal defendants on
JAC’s remaining NEPA claim and entered judgment. JAC
again appealed. That appeal is now before us.
Because JAC presents no argument on appeal related to
its NEPA claim, we deem that issue waived and limit our
analysis to the district court’s dismissal of JAC’s other claims
for failure to join a required party. See Christian Legal Soc.
Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir.
2010) (“We review only issues that are argued specifically
JAMUL ACTION COMM. V. SIMERMEYER 11
and distinctly in a party’s opening brief.” (alterations and
citation omitted)).
II. Standard of Review
“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). “Issues of tribal sovereign
immunity are reviewed de novo.” Burlington N. & Santa Fe
Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir. 2007).
III. Discussion
A. Tribal Sovereign Immunity
We first address whether the tribal defendants—five
current or former elected officers of the Village—are
protected by tribal sovereign immunity in this suit. Because
the answer to that question depends on whether the Village
itself enjoys tribal sovereign immunity, we begin there.
1. Sovereign Immunity of the Jamul Indian Village
“Indian tribes are ‘domestic dependent nations’ that
exercise inherent sovereign authority over their members and
territories. Suits against Indian tribes are thus barred by
sovereign immunity absent a clear waiver by the tribe or
congressional abrogation.” Okla. Tax Comm’n v. Citizen
Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509
(1991) (citations omitted). Tribal sovereign immunity
extends to both the governmental and commercial activities
of a tribe, whether undertaken on or off its reservation. See
Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751,
12 JAMUL ACTION COMM. V. SIMERMEYER
754–55 (1998); Cook v. AVI Casino Enters., Inc., 548 F.3d
718, 725 (9th Cir. 2008).
The scope and applicability of tribal sovereign immunity
lie within the plenary control of Congress. Michigan v. Bay
Mills Indian Cmty., 572 U.S. 782, 788 (2014); see Kiowa
Tribe of Okla., 523 U.S. at 759 (“Like foreign sovereign
immunity, tribal immunity is a matter of federal law.”). As
a matter of federal law, federal recognition of a tribe “affords
important rights and protections to Indian tribes, including
limited sovereign immunity.” Kahawaiolaa v. Norton,
386 F.3d 1271, 1273 (9th Cir. 2004). “Federal recognition
may arise from treaty, statute, executive or administrative
order, or from a course of dealing with the tribe as a political
entity.” Id. (quoting William C. Canby, Jr., American Indian
Law in a Nutshell 4 (4th ed. 2004)). When the political
branches of the federal government decide to recognize an
Indian tribe, courts are obligated to respect that decision. See
United States. v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1865).
The Jamul Indian Village was recognized by the BIA in
1981, which authorized and oversaw its constitutional
election. The Village has appeared on every list of federally
recognized tribes that the agency has published since then.
The Village maintains a government-to-government
relationship with the United States, which has dealt with the
Village as a political entity and provided it services reserved
for federally recognized tribes.
JAC nonetheless contends that the Village is not a
federally recognized tribe with the same privileges and
immunities as other federally recognized Indian tribes. In the
view of JAC, the BIA did not recognize the Village as a
historic tribe that exercised inherent sovereign authority.
JAMUL ACTION COMM. V. SIMERMEYER 13
Instead, in its view, the BIA recognized the Village only as a
created tribe—a community of adult Indians organized under
the provisions of the IRA allowing the provision of benefits
to individuals with one-half or more Indian blood. See
25 U.S.C. § 5129. JAC contends that because the Village is
only a creation of the federal government, not an entity with
inherent sovereign authority, it is not protected by tribal
sovereign immunity. JAC is wrong.
JAC principally relies on a 1993 letter sent by Carol
Bacon, then Director of Tribal Services for the BIA, to the
Chairman of the Village. The letter responded to the
Village’s request to hold a Secretarial election to amend its
constitution to allow membership of individuals with less
than one-half Indian blood (an election that the Secretary of
the Interior ultimately authorized in 1996). Director Bacon
threatened that the Village might lose its recognition status if
it allowed broader membership. According to Director
Bacon, some “tribes” that the federal government allowed to
organize under the IRA were not really tribes. Some, like the
Village, were only “communities of adult Indians” who “had
no historical existence as self-governing units.” Because
these “created tribes” were not inherently sovereign, she
wrote, they “possess[ed] only those powers set forth in their
IRA constitution.” Therefore, she wrote, a change in the
Village’s membership criteria “could jeopardize the Village’s
continued right to Federal recognition.”
In the years leading up to Director Bacon’s letter to the
Village, the BIA had relied on this distinction between
“created” and “historic” tribes when other recognized tribal
entities had sought to change their membership criteria. One
of these tribes was the Pascua Yaqui Tribe of Arizona, and its
conflict with the BIA over its membership caught the
14 JAMUL ACTION COMM. V. SIMERMEYER
attention of Congress. Like the Village, the Pascua Yaqui
Tribe received a letter from (then Acting) Director Bacon in
1991 when the Tribe sought approval for a constitutional
amendment to expand its membership rolls. See To Amend
the Act Entitled “An Act to Provide for the Extension of
Certain Federal Benefits, Services, and Assistance to the
Pascua Yaqui Indians of Arizona, and for Other Purposes:
Hearing on H.R. 734 Before the Subcomm. on Native Am.
Affs. of the H. Comm. on Nat. Res., 103d Cong. 80–96 (1993)
(Exhibit J to statement of Albert Garcia, Chairman, Pascua
Yaqui Tribe of Arizona). The letter explained that it was the
BIA’s position that because the Indians who lived on the
Pascua Yaqui reservation were not always a “historic tribal
unit,” the group did not possess the same rights and powers
as historic tribes. Id. at 83, 88. Citing a 1936 opinion from
the Solicitor of the Interior, Director Bacon wrote that such
adult Indian communities could exercise only a narrow set of
delegated powers that did not include setting their own
membership criteria. See id. at 81–85.
When Director Bacon presented this position to Congress,
she met considerable resistance. See, e.g., id. at 15–20
(questioning by Rep. Richardson, following statement of
Carol Bacon); 140 Cong. Rec. 11,377 (1994) (statement of
Rep. Richardson). Her testimony triggered a flurry of
legislative activity. Within a year, Congress eliminated the
distinction between “created” and “historic” tribes, both as to
the Pascua Yaqui Tribe specifically and as to other “adult
Indian communities” organized under the IRA. See Act of
Oct. 14, 1994, Pub. L No. 103-357, § 1, 108 Stat. 3418, 3418
(declaring the Pascua Yaqui to be a historic tribe); Act of
May 31, 1994, Pub. L. No. 103-263, § 5, 103 Stat. 707, 709
(codified as amended at 25 U.S.C. § 5123(f)–(g)) (forbidding
classifications among federally recognized tribes). Congress
JAMUL ACTION COMM. V. SIMERMEYER 15
also enacted further reforms to limit the BIA’s ability to
withdraw federal recognition or limit the rights of a
recognized tribe. See Federally Recognized Indian Tribe List
Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791. These
reforms were designed, in large measure, to ensure that
Indian tribal entities, once federally recognized and included
on the published list of recognized tribes, were not treated
differently based on whether they were “created” or “historic”
tribes. See H.R. Rep. No. 103-781, at 3–4 (1994) (“[T]he
BIA indicated that it intended to differentiate between
federally recognized tribes as being ‘created’ or ‘historic.’
. . . Because this dichotomy ran so clearly counter to the
intent of Congress and was outside the Department’s
authority, Congress quickly enacted legislation prohibiting
the distinction.” (footnote omitted) (citing Act of May 31,
1994)).
The Act of May 31, 1994, prohibits any agency decision
under the IRA “that classifies, enhances, or diminishes the
privileges and immunities available to the Indian tribe
relative to other federally recognized tribes by virtue of their
status as Indian tribes.” See 25 U.S.C. § 5123(f)–(g). The
purpose and effect of the Act was to eliminate the distinction
between “created” and “historic” tribes. See Rosales I,
32 IBIA at 165 (“[T]he amendment was intended to end the
distinction which had been drawn since at least 1936 between
the powers of ‘historic’ and ‘created’ tribes.”). That is
precisely the distinction JAC urges here.
Even if the BIA intended the Village to have only a
different and lesser status when the Village was first included
on the list of recognized tribes, federal law no longer permits
this distinction. Today, the Village enjoys the same
16 JAMUL ACTION COMM. V. SIMERMEYER
privileges and immunities as other federally recognized
Indian tribes, including tribal sovereign immunity.
2. Sovereign Immunity of the Tribal Defendants
We next turn to whether the tribal officers sued in this
case are protected by the Village’s sovereign immunity.
Although tribal sovereign immunity generally does not bar
claims for prospective injunctive relief against tribal officers,
we hold that in the circumstances of this case, the Village is
the real party in interest. JAC’s claims against the officers
are therefore barred by the sovereign immunity of the Village.
Tribal sovereign immunity extends to tribal officers when
“the sovereign entity is the ‘real, substantial party in
interest.’” Cook, 548 F.3d at 727 (quoting Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)); see Lewis v.
Clarke, 137 S. Ct. 1285, 1290–91 (2017). “In making this
assessment, courts may not simply rely on the
characterization of the parties in the complaint, but rather
must determine in the first instance whether the remedy
sought is truly against the sovereign.” Lewis, 137 S. Ct.
at 1290; see also Maxwell v. County of San Diego, 708 F.3d
1075, 1089 (9th Cir. 2013) (stating that it is the “remedy
sought” that determines whether a suit against tribal officers
may proceed). That a suit implicates a tribal officer’s official
duties does not by itself establish that the tribe is the real
party in interest. Maxwell, 708 F.3d at 1088.
In suits for damages, “the general rule [is] that individual
officers are liable when sued in their individual capacities.”
Id. at 1089; see, e.g., Lewis, 137 S. Ct. at 1291 (rejecting
argument that tribal employee was protected by sovereign
immunity because he was acting within the scope of his
JAMUL ACTION COMM. V. SIMERMEYER 17
employment). Suits that seek to recover funds from tribal
coffers or establish vicarious liability of a tribe for damages,
on the other hand, are barred by tribal sovereign immunity
even when nominally styled as against individual officers.
See Maxwell, 708 F.3d at 1088 (citing Cook, 548 F.3d
at 727).
Suits seeking prospective injunctive relief ordinarily may
proceed against tribal officers sued in their official capacities
under the doctrine of Ex parte Young, 209 U.S. 123 (1908).
Bay Mills Indian Cmty., 572 U.S. at 796. “That doctrine
permits actions for prospective non-monetary relief against
state or tribal officials in their official capacity to enjoin them
from violating federal law, without the presence of the
immune State or tribe.” Salt River, 672 F.3d at 1181 (citing
Ex parte Young, 209 U.S. 123). Declaratory relief may issue
against tribal officers in the same circumstances. See Nat’l
Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 847–48 (9th Cir.
2002).
For Ex parte Young to apply, a plaintiff must point to
threatened or ongoing unlawful conduct by a particular
governmental officer. The doctrine does not allow a plaintiff
to circumvent sovereign immunity by naming some
arbitrarily chosen governmental officer or an officer with
only general responsibility for governmental policy. Ex parte
Young, 209 U.S. at 157 (“In making an officer of the state a
party defendant in a suit to enjoin the enforcement of an act
alleged to be unconstitutional, it is plain that such officer
must have some connection with the enforcement of the act,
or else it is merely making him a party as a representative of
the state, and thereby attempting to make the state a party.”).
18 JAMUL ACTION COMM. V. SIMERMEYER
There are also limits to what sort of relief a plaintiff may
seek under Ex parte Young without making the sovereign the
real party in interest. The Supreme Court has disallowed
attempts to use the doctrine discussed in Ex parte Young to
quiet title to a sovereign’s property, to compel a
governmental official to pay a sovereign’s past legal
obligation, or to obtain specific performance of a sovereign’s
contract. See Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261 (1997); Edelman v. Jordan, 415 U.S. 651
(1974); Ex parte Ayers, 123 U.S. 443 (1887). These
remedies, which disturb a sovereign’s title to property or
reach into its coffers, lie directly against the sovereign even
when styled as a claim for injunctive relief against an
individual governmental officer.
In Coeur d’Alene, the Supreme Court held that state
sovereign immunity barred a suit in which the Coeur d’Alene
Tribe of Idaho claimed ownership of submerged lands within
its reservation. The Tribe brought a trespass suit in an
attempt to establish the boundary between reservation land
and land owned by the State of Idaho. The Tribe sought an
injunction prohibiting named state officers “from regulating,
permitting, or taking any action in violation of the Tribe’s
rights of exclusive use and occupancy, quiet enjoyment, and
other ownership interest in the submerged lands” and a
declaration that the Tribe held the exclusive right to their use
and regulation. Coeur d’Alene, 521 U.S. at 265. The Tribe
contended that its suit was not barred by the State’s sovereign
immunity because, like in Ex parte Young, the Tribe sought
only prospective injunctive and declaratory relief against state
officers engaged in trespassing conduct that the Tribe
contended violated its rights under federal law. The Court
disagreed. Although the Tribe had named state officers, not
the State itself, the Court held that the suit was “the
JAMUL ACTION COMM. V. SIMERMEYER 19
functional equivalent of a quiet title action” and implicated
Idaho’s sovereign interests in its regulatory authority over the
land in question. Id. at 281–82; see also id. at 289
(O’Connor, J., concurring in part). The State, not its officers,
was the real party in interest, and so the suit was barred by the
State’s sovereign immunity.
JAC’s suit falls outside the class of suits allowed under Ex
parte Young. It is clear that the Village, not the named tribal
officers, is the real party in interest. That is so both because
JAC has named only an arbitrary collection of tribal
policymakers as a substitute for the Village and because the
suit seeks to extinguish or otherwise diminish the Village’s
beneficial interest in its federal trust land.
First, JAC fails to articulate any connection between the
particular named tribal officers and any allegedly unlawful
conduct. In its operative complaint, JAC named five tribal
officers as defendants. JAC describes those individuals only
as “council members or officials of the [Village]” in its
description of the parties to the suit. It does not explain what
responsibility any of those individuals have or had for the acts
it contends are unlawful—specifically, construction of the
casino—beyond their general role in the formulation of tribal
policy. None of these individuals is mentioned elsewhere in
the complaint, with the exception of former Chairman Hunter,
who the complaint alleges signed management and
development contracts for the casino on behalf of the Village.
JAC’s briefing to this court provides little further detail. It
does not mention any of the named tribal officers except
former Chairman Hunter, who it claims signed an easement
deed allowing the federal government to take a portion of the
Village’s fee land into trust.
20 JAMUL ACTION COMM. V. SIMERMEYER
In essence, JAC has simply named Village officials as
stand-ins for the tribal council. It is telling that the only
specific conduct JAC identifies on the part of any named
tribal officer is the signing of a contract and a deed on behalf
of the Village. The object of JAC’s suit is not to restrain
future unlawful activity by particular tribal officers, but to
call into question the status of the Village’s property and the
validity of its contracts.
Second, and more fundamentally, JAC’s suit seeks a
remedy that goes to the heart of the Village’s sovereign and
proprietary interests. JAC’s complaint contends that the
Village is “not a tribal government”; that it “never had
powers of inherent sovereignty”; that it “is not a federally
recognized tribe”; and that its land “is neither trust land,
restricted Indian land nor reservation land” but is instead
“property owned [in fee] by the United States.” It seeks a
declaration that the Village’s land “is [not] trust land under
[the Village’s] government[al] control” and an injunction
against further construction by the Village of a casino.
Although the complaint also seeks equitable remedies against
the federal defendants, those remedies rest on its contention
that the Village is not a federally recognized tribe and seek to
prevent the federal government from affording it the benefits
to which recognized tribes are entitled.
The remedies JAC seeks here are at least as invasive of
the Village’s sovereign and proprietary interests as those
sought against Idaho in Coeur d’Alene. As the plaintiffs did
there, JAC challenges the Village’s title in its land. The
plaintiffs in Coeur d’Alene sought a declaration that
submerged lands were reservation land rather than State land,
and were thus not subject to the regulatory authority of the
State. The Court held that the suit was barred by the State’s
JAMUL ACTION COMM. V. SIMERMEYER 21
sovereign immunity. Here, JAC seeks a declaration that the
Village’s federal trust land is not part of its reservation and is
not subject to the regulatory authority of the Village. JAC’s
suit does not stop at contesting the Village’s ownership and
authority over its land—it goes a step further still and
challenges the Village’s existence as a federally recognized
tribe. It disputes not only the geographical extent of the
Village’s sovereignty, but the very fact of its sovereignty.
In these circumstances, we have no trouble concluding
that the Village, rather than the five council members and
other officials JAC has named as defendants, is the real party
in interest here. We therefore hold that JAC’s claims against
the tribal defendants are barred by tribal sovereign immunity.
B. Dismissal for Failure to Join a Required Party
Federal Rule of Civil Procedure 19(a) requires joinder of
parties whose presence is necessary to ensure complete and
consistent relief among the existing parties or whose interests
would be impeded were the action to proceed without them.
When a required party cannot be joined, Rule 19(b) requires
dismissal when the action cannot proceed in equity and good
conscience in the absence of the required party.
We have held that Rule 19 requires a three-step inquiry.
See Salt River, 672 F.3d at 1179. We first determine whether
an absent party is a required party; then whether joinder is
feasible; and finally whether the case can fairly proceed in the
party’s absence.
Rule 19(a) requires a party to be joined if feasible in three
circumstances, but only one is relevant here: when an absent
party claims an interest in the subject matter of the litigation
22 JAMUL ACTION COMM. V. SIMERMEYER
that would be impeded were the suit to proceed without it.
See Fed. R. Civ. P. 19(a)(1)(B)(i). We hold that under this
standard, the Village must be joined if feasible in this action.
To come within the bounds of Rule 19(a)(1)(B)(i), the
interest of the absent party must be a legally protected interest
and not merely some stake in the outcome of the litigation.
See Dine Citizens Against Ruining Our Env’t v. Bureau of
Indian Affs., 932 F.3d 843, 852 (9th Cir. 2019); Makah Indian
Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). “[A]n
absent party has no legally protected interest at stake in a suit
merely to enforce compliance with administrative
procedures.” Dine Citizens, 932 F.3d at 852 (alteration in
original) (quoting Cachil Dehe Band of Wintun Indians of the
Colusa Indian Cmty. v. California, 547 F.3d 962, 971 (9th
Cir. 2008)).
When dealing with claims challenging federal actions that
alter tribal rights, we have distinguished between those that
would have “retroactive effects” on rights already enjoyed by
a tribe and those “relat[ing] only to the agencies’ future
administrative process.” Id. at 852–53. Accordingly, we
have held that a tribe has an interest for purposes of Rule
19(a)(1)(B)(i) in a suit challenging a federal agency decision
to reauthorize mining by the tribe, because the suit, if
successful, would impair the tribe’s existing lease, rights-of-
way, and surface mining permits. See id. at 853. In other
cases, we have found protected interests in challenges to
existing tribal gaming licenses, but not those to the issuance
of future licenses; and in suits seeking reallocation of past
harvests, but not those seeking to change the procedures for
future allocations. See Cahil Dehe Band, 547 F.3d at 974;
Makah, 910 F.2d at 559.
JAMUL ACTION COMM. V. SIMERMEYER 23
Here, the Village has a protected interest in the trust status
of its land and in its status as a federally recognized tribe.
Although JAC couches some of its claims as challenges to
prospective agency decisions—such as the government’s
approval of the Village’s gaming ordinance—the basis for its
claims is its contention that the Village is not a recognized
tribe and that its land therefore is not Indian land held in trust
on its behalf by the federal government. As in Dine Citizens,
these challenges to prospective agency decisions would have
far-reaching retroactive effects on the Village’s existing
sovereign and proprietary interests.
We also hold that these interests would be impeded were
this action to proceed in the Village’s absence. See Fed. R.
Civ. P. 19(a)(1)(B)(i). Both tribal officers and federal
agencies may, in some circumstances, adequately represent
the interests of an absent tribe. When tribal officers are
properly sued in their official capacities under Ex parte
Young, their interests align with those of the tribe, and they
may adequately represent the tribe’s interests. See Salt River,
672 F.3d at 1180. Here, however, the tribal defendants are
immune from suit, and so, like the Village, they cannot be
joined.
Nor can the federal defendants adequately represent the
Village’s interests in this case. We have held that the United
States, based on its trust relationship with Indian tribes,
generally may “adequately represent an Indian tribe unless
there exists a conflict of interest between the United States
and the tribe.” Sw. Ctr. for Biological Diversity v. Babbitt,
150 F.3d 1152, 1154 (9th Cir. 1998) (per curiam); see also
Ramah Navajo School Bd., Inc. v. Babbitt, 87 F.3d 1338,
1351 (D.C. Cir. 1996) (“the United States may adequately
represent that interest as long as no conflict exists between
24 JAMUL ACTION COMM. V. SIMERMEYER
the United States and the nonparty beneficiaries”). Applying
that standard, we have held that federal defendants would not
adequately represent an absent tribe where their obligations
to follow relevant environmental laws were in tension with
tribal interests, see Dine Citizens, 932 F.3d at 855, or where
individual Indians challenged a federal decision concerning
the status of tribal land, see Clinton v. Babbitt, 180 F.3d 1081
(9th Cir. 1999). This case, like Clinton, concerns the status
of tribal lands that JAC contends are owned by individual
Indians rather than the Village, thus calling into question the
government’s ability to adequately represent the Village’s
interests were the case to proceed. Because the Village has
protected interests in this litigation that no existing party
would adequately represent, Rule 19(a) requires its joinder.
Having concluded that the Village is a party required to
be joined if feasible, the remaining steps of the Rule 19
analysis are straightforward. We have already held that the
Village is protected by tribal sovereign immunity; its joinder
in this action is therefore infeasible. The balancing of
equitable factors under Rule 19(b) almost always favors
dismissal when a tribe cannot be joined due to tribal
sovereign immunity. See Kescoli v. Babbitt, 101 F.3d 1304,
1311 (9th Cir. 1996); see also Dine Citizens, 932 F.3d at 857
(“[T]here is a ‘wall of circuit authority’ in favor of dismissing
actions in which a necessary party cannot be joined due to
tribal sovereign immunity—‘virtually all the cases to consider
the question appear to dismiss under Rule 19, regardless of
whether [an alternate] remedy is available, if the absent
parties are Indian tribes invested with sovereign immunity.’”
(alteration in original) (quoting White v. Univ. of Cal.,
765 F.3d 1010, 1028 (9th Cir. 2014)).
JAMUL ACTION COMM. V. SIMERMEYER 25
This case, where JAC’s claims go directly to the Village’s
most important interests, is no exception. Equity and good
conscience do not permit an action disputing the Village’s
status as a federally recognized tribe and its ownership of
land in a suit in which the Village cannot be joined. We
agree with the district court that the action should be
dismissed for failure to join a required party.
Conclusion
The Jamul Indian Village is protected by tribal sovereign
immunity, just as is every other federally recognized Indian
tribe. That immunity bars a suit like this one, attacking the
Village’s title in land and its status as a sovereign entity, from
proceeding in its absence. We therefore affirm the district
court’s judgment dismissing the action for failure to join a
required party.
AFFIRMED.