statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke, 479 U.S. at 399.
The Court does not deny that the Kickapoo Tribe of Oklahoma has an interest in the status and well-being of the Texas Band.
The history of the relationship between the two entities bears out this interest. The Secretary and the BIA acknowledged this interest and accordingly informed the Tribe of the Band's reorganization status.
It was the intent of Congress, however, that the newly-amended IRA "be available to all Indian tribes which have previously organized under the 1934 Act or are eligible to organize under such Act." H.R.Rep. No. 453, 100th Cong., 1st Sess. 3 (1987). And in the Texas Band of Kickapoo Act, Congress specifically made the Texas Band eligible to reorganize under the IRA.
25 U.S.C.A. § 1300b-14(a).
Plaintiffs argue that even if the Band were eligible to organize separately, the Traditional Council that submitted the draft constitution was ineligible to act on behalf of the Band, because the members' terms had expired and because the Council had no authority to speak for the Band without the approval of the Tribe. However, even though the formal terms of office for the members of the Traditional Council may have run, the Tribe continued to deal with that Council as spokespersons for the Band. The Tribe did not appoint a new Traditional Council until April 20, 1989, well after the draft constitution had already been submitted for the Secretary's approval.
The Tribe also asserts that it has standing under the doctrine of parens patriae, on behalf of some of its own members, who are both Oklahoma Tribe members and Texas Band members, and on behalf of the Texas Band members. This doctrine allows a sovereign to bring an action on behalf of the interests of all of its citizens, Louisiana v. Texas, 176 U.S. 1, 19, 44 L. Ed. 347, 20 S. Ct. 251 (1900), and has been used to allow states to recover damages to quasi-sovereign interests, such as "the 'health, comfort, and welfare' of the people, interstate water rights, pollution-free interstate waters, protection of the air from interstate pollutants, and the general economy of the state." West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1089 (2d Cir. 1971). However, this theory fails here because a sovereign tribe must be acting on behalf of all of its members in order to litigate as parens patriae. Assiniboine & Sioux Tribes v. Montana, 568 F. Supp. 269, 277 (D.Mont. 1983). While all members of the Tribe may be in some way affected by the Band's reorganization, the Tribe would not be representing the interests of all members as the doctrine of parens patriae requires.
The Oklahoma Tribe also cannot rely on third-party standing, asserting the rights and alleged injuries of the members of the Texas Band. A party generally cannot rely on the rights and interests of third-parties to state a claim. Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Although this rule has been relaxed in appropriate circumstances, it must be applied to a case such as this where the interests of at least some members of the Band conflict with the interests the Tribe claims to assert on their behalf.
The vast majority of Band members voted to ratify the new constitution as submitted by the Traditional Council.
To allow the Tribe to litigate on behalf of the Band would be highly unfair to certain Band members.
B. Indispensable Party
Defendants argue further that the case must be dismissed because the Kickapoo Traditional Tribe of Texas (formerly the Texas Band) is an indispensable party to the lawsuit but cannot be joined as a party due to its tribal immunity. The Court agrees.
The Court concludes that under Rule 19(a) of the Federal Rules of Civil Procedure the Texas Band is a "necessary" party and so must be joined in this action, if feasible. Specifically, the Court first finds that in the Band's absence, "complete relief cannot be accorded among those already parties." Rule 19(a)(1). Even were the Tribe to succeed in this lawsuit, the judgment would have little or no effect on the Texas Band, which would undoubtedly continue to assert its separate existence. Second, the Court finds that the Texas Band has "an interest relating to the subject of the action and is so situated that the disposition of the action in the [Band's] absence may . . . as a practical matter impair or impede the [Band's] ability to protect that interest. . . ." Rule 19(a)(2)(i). By submitting a proposed constitution and requesting an election, the Traditional Council was exercising its reorganization rights as conferred by Congress. When the Secretary approved the constitution and certified the election results, the Texas Band became a sovereign and now has an interest in protecting its own sovereignty. A judgment against defendants in this action would impair the Texas Band's ability to protect that interest. As explained above, the Oklahoma Tribe has interests which conflict with the sovereignty interest of the Band, and so cannot represent the Band's interest in this lawsuit. Finally, if the Band is not present to represent its own interests in this lawsuit and the plaintiffs succeed, the Secretary would face the probability of another lawsuit, brought this time by the Texas Band. See Rule 19(a)(2)(ii).
Although the Texas Band is a necessary party to this action, it is not feasible to join the Band as a party. Indian tribes are immune from suit under the doctrine of sovereign immunity, unless the tribe consents to be sued or there is clear legislative intent to waive tribal immunity. See Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 172-73, 53 L. Ed. 2d 667, 97 S. Ct. 2616 (1977); Seneca-Cayuga Tribe v. State ex rel. Thompson, 874 F.2d 709, 715 (10th Cir. 1989); Wichita and Affiliated Tribes of Oklahoma v. Hodel, 252 U.S. App. D.C. 140, 788 F.2d 765, 771 (D.C.Cir. 1986). In this case, there is no indication that the Texas Band is willing to waive its sovereign immunity and consent to be sued or that Congress has waived the Band's tribal immunity. Thus, the question becomes whether the Texas Band is not only a necessary party, but an indispensable party as well. See Rule 19(b).
The Court must determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party being thus regarded as indispensable." Rule 19(b). "In general, 'indispensable parties' are those persons who not only have a direct and tangible interest in the controversy, but also those whose interest would necessarily be affected in such a way by the judgment that it would be inequitable to proceed without them." Harjo v. Kleppe, 420 F. Supp. 1110, 1117 (D.D.C. 1976), aff'd, 189 U.S. App. D.C. 171, 581 F.2d 949 (D.C.Cir. 1978). Rule 19(b) sets forth four factors, among others, for the Court to consider: (1) the prejudice to the relevant person or to those who are already parties to the action; (2) the extent to which the prejudice can be lessened or avoided by means less severe than dismissal; (3) the adequacy of a judgment rendered in the person's absence; and (4) whether the plaintiff will have an adequate remedy if the case is dismissed.
There is no doubt that the Texas Band will be prejudiced by a decision rendered in its absence. As stated above, the Band has elected to reorganize and establish itself as a separate sovereign. Plaintiffs challenge the government's recognition of the Band as a sovereign. To allow this litigation to proceed in the Band's absence would promote the worst kind of paternalism and seriously undermine the Band's interest in its own survival. After all, the Band really is the subject at the center of this litigation. Of course, there are times when prejudice to an absent party can be eliminated or at least mitigated by the presence of a party in the action who can represent the absent party's interests. Wichita, 788 F.2d at 774. In this case, however, the Court does not believe that the government will adequately represent the interests of the Band. The Secretary has an interest in defending agency actions and authority with respect to tribal reorganization. The Texas Band, however, has an interest in its own survival, an interest which it is entitled to protect on its own. And, again, if the Band is unable to represent itself in this action and the plaintiffs were to obtain a favorable judgment, the Band likely would bring a new lawsuit against the Secretary. After all, in considering the adequacy of the judgment, the Court must consider "the interest of the courts and the public in complete, consistent, and efficient settlement of controversies," Provident Tradesmens Bank & Trust Company v. Patterson, 390 U.S. 102, 111, 19 L. Ed. 2d 936, 88 S. Ct. 733 (1968), and in this case, further litigation could be anticipated.
It is difficult to see how the Court could shape relief so as to avoid prejudice to the Texas Band. The fact of the matter is that in this case the real party at issue is missing. Without that party present to represent its interests, the Court could not in good conscience fashion a remedy without affecting the rights of the Band. See Wichita, 788 F.2d at 776.
Plaintiffs argue that if they are precluded from bringing an action in the absence of the Band, they will be without a forum in which to assert their claims, noting that the Texas Band does not have a tribal court system.
However, our Court of Appeals in Wichita, while recognizing that a court should be "extra cautious in dismissing a case for nonjoinder" where the plaintiff otherwise may be without an adequate remedy, went on to conclude that where the dismissal of a suit was mandated by tribal immunity, the result was "less troublesome." Id. at 777. The Court reasoned that the dismissal was based on society's policy choice to grant sovereign immunity to Indian tribes, rather than on a procedural defect, and suggested that that policy was strong enough to outweigh plaintiff's interest in having an available forum. Id.
Having weighed the relevant factors, the Court concludes that the Texas Band is an indispensable party, and that the case must be dismissed for nonjoinder. An appropriate Order accompanies this Opinion.
Date: January 19, 1990
ORDER - January 19, 1990, Filed
Upon consideration of plaintiffs' motion for a preliminary injunction, defendants' opposition thereto, defendants' motion to dismiss, plaintiffs' opposition thereto, and the entire record herein, it hereby is
ORDERED, that defendants' motion is granted for the reasons set forth in the accompanying opinion, and the case is dismissed.
Date: January 19, 1990