Department did "not deem the compact to have been submitted as the term is used in 25 U.S.C. § 2710(d)(8)." Thus, he concluded, the forty-five day period within which the Secretary has authority to act would not begin until the Supreme Court of Kansas had rendered its decision in Kansas v. Finney.
On May 19, 1992, plaintiffs brought this suit seeking a declaration that the compact was now approved as a matter of law as forty-five days had passed since Gov. Finney and the Kickapoo Tribe had submitted their compact to the Department of the Interior; and requesting a writ of mandamus directing defendants to comply with IGRA and publish the compact in the Federal Register.
On July 10, 1992, before the parties in this suit began to brief their cross-motions for summary judgment, the Supreme Court of Kansas ruled that while the Governor possessed the power to negotiate a compact with the Kickapoo Tribe, she did not have the power to sign the resulting compact. Kansas v. Finney, 251 Kan. 559, 836 P.2d 1169 (Kan. 1992).
Relying on the decision of the Supreme Court of Kansas, Acting Asst. Secy. William D. Bettenberg that same day returned the compact to Chairman Cadue unapproved.
Plaintiffs filed a motion for summary judgment; defendants have moved to dismiss or, in the alternative, for summary judgment. Oral argument on all motions was held in open court on July 2, 1993.
Plaintiffs' contentions are simply stated: First, that Asst. Secy. Brown had no authority to defer his approval of the Tribal-State compact until after the Supreme Court of Kansas ruled; under IGRA, 25 U.S.C. § 2710(d)(8)(C), plaintiffs assert, Asst. Secy. Brown had to approve or disapprove of the compact within forty-five days. Second, as Asst. Secy. Brown failed to take action on the compact within forty-five days, the default provision included in § 2710(d)(8)(C) applies, and the compact should be considered to have been approved as of April 20, 1992. And third, Since the compact is considered approved, defendants must publish notice to that effect in the Federal Register pursuant to 25 U.S.C. § 2710(d)(8)(D).
Defendants' arguments are also easily summarized: First, that plaintiffs have failed to join an indispensable party, the State of Kansas, as a defendant in this suit; this failure, defendants warrant, mandates a dismissal of plaintiffs' cause of action pursuant to Fed. R. Civ. P. 19. Second, even if the suit is not dismissed, defendants claim that the Governor's powerlessness to enter into the Tribal-State compact renders that compact void. Since the compact was a legal non-entity, defendants posit, no executed Tribal-State compact was ever properly submitted to the Department of the Interior; without a valid submission, the forty-five day statutory approval period never began; without that statutory deadline, no default provision could be reached. Thus, defendants conclude, there is no valid Tribal-State compact between the State of Kansas and the Kickapoo Tribe, and summary judgment should be entered for defendants.
In Part A., the court rejects defendants' first argument and finds that the State of Kansas is not an indispensable party; thus, this action must proceed. In Part B., the court agrees with plaintiffs' first two arguments, finding not only that defendants had a mandatory, unambiguous duty to approve or disapprove the compact within forty-five days, but also that defendants' failure to act triggers the statutory approval mechanism of § (8)(C). However, although the compact is deemed approved under that provision, it is nonetheless void as it was never lawfully entered into by the State of Kansas. See Part C. Thus, plaintiffs' motion for summary judgment must be denied as none of plaintiffs' requested relief may be granted; defendants' motion for summary judgment must be granted.
A. The State of Kansas is not an Indispensable Party under Fed. R. Civ. P. 19.
The first half of defendants' motion is to dismiss plaintiffs' complaint for failure to join an indispensable party, the State of Kansas, under Fed. R. Civ. P. 19. The court finds that the State is not an indispensable party, and thus defendants' motion is denied.
Rule 19 establishes a two-prong test, both parts of which must be met before a court may dismiss plaintiffs' complaint for failure to join an indispensable party. First, the court must determine that the absent party is a necessary party under Rule 19(a); second, the court must find that the absent person should be regarded as indispensable and thus that the person's absence warrants dismissal of the action.
For purposes of this discussion, the court will assume that the State of Kansas is a necessary party under Rule 19(a)(2). Under that Rule,
A person . . . shall be joined as a party in the action if
. . . (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Fed. R. Civ. P. 19(b).
The court will assume - without deciding - that the State of Kansas does have an interest
which may be impaired in this suit and thus that this prong of the Rule 19 test is satisfied.
However, even if the State were to be considered a necessary party under Rule 19(a), the court holds that it is not an indispensable party under Rule 19(b). Rule 19(b) lists four non-exclusive factors to be considered by the court in determining whether a party is indispensable:
first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.