immunities, and the same participation in the national funds, as native Cherokees, with their children born thereafter being regarded as native Cherokee in all respects; or (2) maintaining their tribal laws, customs, and usages, and receiving a district of land set off for their use.
Since the time of the 1867 Agreement, there has been some uncertainty as to the Delaware Tribe's political status. After three United States Supreme Court decisions touching on the issue
and a long history of agency action, the Bureau issued a letter on May 24, 1979 to the Chairman of the Cherokee Delaware Business Committee notifying him that the Bureau was withdrawing its prior approval of the Committee's 1958 By-Laws because the Committee was "not capable of adequately protecting the interests of the Cherokee Delaware people" as required by a federal appropriation to satisfy Delawares' claim awards, and because the Committee had failed to meet a deadline the Bureau previously set for forming a Committee to draft adequate By-Laws.
In addition, the May 24, 1979 letter summarized the Bureau's position as to the Delaware Tribe's status. It stated that the Bureau's prior dealings with the Committee with respect to pre-1867 treaty claims had led to "misunderstandings" by some that those dealings "established for the Delawares a relationship with the Federal Government separate from that of the Cherokee Nation; such is not the case." See Letter of Acting Deputy Commissioner of the Bureau of Indian Affairs to Harry Secondine, Chairman of the Cherokee Delaware Business Committee, May 24, 1979.
On September 23, 1996, the Assistant Secretary of Indian Affairs, U.S. Department of Interior, issued a Notice of Final Agency Action, which retracted the May 1979 letter and thereby acknowledged the Delaware Tribe of Indians' status as a tribe independent of the Cherokee Nation. By its 1996 retraction, the Department recognized that the Delaware Tribe is a "separate sovereign," "with the same legal rights and responsibilities as other tribes," and "eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian tribe." See Final Decision to Retract 1979 Decision of the Deputy Commissioner of Indian Affairs Regarding the Delaware Tribe of Indians, 61 Fed. Reg. 50862, 50863 (Sept. 27, 1996).
The Cherokee Nation filed a Motion for a Temporary Restraining Order and a Preliminary Injunction as well as the Complaint in the above-entitled action on October 2, 1996.
THE COURT SHALL GRANT THE DEFENDANTS' MOTION TO DISMISS BECAUSE THE DELAWARE TRIBE OF INDIANS IS A NECESSARY AND INDISPENSABLE PARTY THAT CANNOT BE JOINED DUE TO ITS SOVEREIGN IMMUNITY.
Rule 19 of the Federal Rules of Civil Procedure provides that a court may dismiss an action if an absent party is determined to be both "necessary" and "indispensable." Fed. R. Civ. P. 19. The United States Court of Appeals for this Circuit has held that a district court deciding a motion under Rule 19 must answer three questions: First, is the party necessary to the action and, thus should it be joined? Second, if the absent party should be joined, can the absent party be joined? Third, if the absent party cannot be joined, should the lawsuit proceed without that party or, instead, is the party indispensable to the action? Western Maryland Ry. Co. v. Harbor Ins. Co., 285 U.S. App. D.C. 460, 910 F.2d 960, 963 n.6 (D.C. Cir. 1990). The moving party has the burden of persuasion in arguing for dismissal pursuant to Rule 19. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990).
I. THE DELAWARE TRIBE IS A NECESSARY PARTY TO THIS ACTION UNDER FED. R. CIV. P. 19(a).
"In determining whether a party is 'necessary' under Rule 19(a), a court must consider whether 'complete relief' can be accorded among the existing parties, and whether the absent party has a 'legally protected interest' in the subject of the suit." Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992) (quoting Fed. R. Civ. P. 19(a)), cert. denied, 509 U.S. 903, 125 L. Ed. 2d 688, 113 S. Ct. 2993 (1993). As to the first factor, there is little doubt that the Cherokee Nation can obtain complete relief in the absence of the Delaware Tribe from this suit, and, thus, this concern does not make the Delaware Tribe a necessary party.
The Court concludes, however, that Delaware tribe has a "legally protected interest in the outcome of this action," and, therefore, is a necessary party thereto. The question at the heart of this dispute is whether the Department acted appropriately when it acknowledged, by retraction of the 1979 letter, that the Delaware Tribe is an independent tribe with the authority to have government-to-government relations with the federal government. If the Department's action is invalidated, the Delaware Tribe's legal identify surely will be affected. In short, a decision in this action favorable to the plaintiff could forever change the status of the Delaware Tribe. See Pit River Home & Agricultural Co-op Ass'n v. United States, 30 F.3d 1088, 1099 (9th Cir. 1994) (absent party is a necessary party because it has an interest in preserving its sovereign authority); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir. 1994) (Quinault Indian Nation is a necessary party because complete relief would implicate the Quinaults' governing status); Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991) (Quinault Indian Nation is a necessary party to action challenging the Quinaults' governing authority); Kickapoo Tribe of Oklahoma v. Lujan, 728 F. Supp. 791, 796 (D.D.C. 1990) (Harris, J.) (Texas Band of Kickapoo is a necessary party because it has an interest in protecting its own sovereignty).
In addition, the Delaware Tribe is a necessary party because the Delaware Tribe's rights under the 1867 Agreement, to which it was a party, are a central issue in this dispute. Because this Court must determine to what extent the rights of the Delaware were preserved or were relinquished under the 1867 Agreement, the Delaware Tribe must be a party to this action in order to assert what it believes are its rights preserved under the Agreement. See Kickapoo Tribe of Indians of Kickapoo Reservation in Kansas v. Babbitt, 310 U.S. App. D.C. 66, 43 F.3d 1491, 1498 (D.C. Cir. 1995) (State of Kansas was necessary party because it was a party to disputed compact); McClendon v. United States, 885 F.2d 627, 633 (9th Cir. 1989) (absent tribe is a necessary party to an action seeking to enforce a lease agreement signed by the tribe); Enterprise Management Consultants, Inc. v. United States, ex. rel. Hodel, 883 F.2d 890, 893 (10th Cir. 1989) (tribe's interest in the validity of contract it signed would be directly affected by relief plaintiff seeks). Thus, under Rule 19, the Delaware Tribe is necessary to the action because "the disposition of the action in the [Delawares'] absence may as a practical matter impair or impede the [Delawares'] ability to protect [its] interest." Fed. R. Civ. P. 19(a)(2)(i).
Because it is a necessary party, the Delaware Tribe should be joined in this action. However, as hereinafter discussed, sovereign immunity is a bar to such joinder.
II. THE DELAWARE TRIBE'S SOVEREIGN IMMUNITY BARS ITS JOINDER AS A NECESSARY PARTY.
Having found the Delaware Tribe necessary to this action, the Court must determine whether it can be joined and, if not, whether it is indispensable to the action, rendering dismissal of the case necessary. See Pit River Home, 30 F.3d at 1099; Confederated Tribes, 928 F.2d at 1499. Without an explicit waiver, the Delaware Tribe cannot be joined as a necessary party if it has sovereign immunity. Whether a defendant has sovereign immunity is a question of law to be decided by the Court.
Based on the following analysis, the Court concludes that the Delaware Tribe has sovereign immunity and cannot be joined in this action.
A. Indian Tribes Are Sovereign Entities.
Indian tribes are "distinct, independent political communities," pre-existing the Constitution, with their own sovereign authority. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978). The powers of Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished." United States v. Wheeler, 435 U.S. 313, 322, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978) (quoting F. Cohen, Handbook of Fed'l Indian Law 122 (1945)) (emphasis omitted). To exercise sovereign authority, an Indian tribe need not show that such power has been granted to it by the federal government, either by explicit recognition of the tribe or implicitly through a course of dealing.
Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065 (1st Cir. 1979). Rather, sovereign power in Indian tribes is inherent.
One definitive aspect of a tribe's sovereignty is its immunity from suit. Santa Clara Pueblo, 436 U.S. at 58; United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 84 L. Ed. 894, 60 S. Ct. 653 (1940); Bottomly, 599 F.2d at 1066. As the Supreme Court noted in Santa Clara Pueblo :
Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit."