No. 11-

F LED

1 I-8 0 & 15Z011

IN THE

GILA RIVER INDIAN COMMUNITY,Petitioner,

Vo

G. GRANTLYON

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Linus EverlingGeneral Counsel

Thomas L. MurphyDeputy General Counsel

GILA RIVER INDL4N COMMUNITYPIMA MARICOPA TRIBE LAWOFFICEP.O. Box 97Sacaton, AZ 85247-0400

Patricia A. MillettCounsel of Record

Mark J. MacDougallTroy D. CahillAKIN, GUMP, STRAUSS,

HAUER & FELD LLP1333 New Hampshire

Ave., NWWashington, DC 20036(202) 887-4000pmillett@akingump.com

WILSON-EPES PRINTING COo, INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

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QUESTIONS PRESENTED

I. Whether, under Federal Rule of Civil Procedure19(b), courts may adjudicate and compromise legalrights in land to which the United States holds titlewithout the United States’ participation in thelitigation.

II. Whether, in light of this Court’s recent decision inUnited States v. Jicarilla Apache Nation, No. I0-382(June 13, 2011), the Ninth Circuit properly held, as amatter of law, that litigation compromising theUnited States’ title in land can proceed in the UnitedStates’ absence as long as an Indian tribe is a partyto the litigation.

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PARTIES TO THE PROCEEDING

All parties to this case are reflected in the caption.In addition, Michael Keith Schugg, d/b/a SchuburgHolsteins, and Debra Schugg were the debtors in theunderlying bankruptcy and were noted as such in thecase capt~on in the district court and court of appeals.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................i

PARTIES TO THE PROCEEDING ..........................ii

OPINIONS BELOW ..................................................1

JURISDICTION ........................................................1

RELEVANT FEDERAL RULES PROVISIONS .......2

STATEMENT OF THE CASE ...................................2

REASONS FOR GRANTING THE WRIT .................8

I. THE NINTH CIRCUIT’S DECISIONALLOWING LEGAL CLAIMS TO THEUNITED STATES’ PUBLIC ANDTRUST LANDS TO BE ADJUDICATEDIN THE UNITED STATES’ ABSENCEDEFIES PRECEDENT FROM THISCOURT AND OTHER CIRCUITS .................10A. The Ninth Circuit’s Decision

Flatly Defies This Court’s On-Point Precedent.. i .................................11

B. The Ninth Circuit’s DecisionContradicts The Law Of OtherCircuits And The Position Of TheUnited States .......................................18

II. THE NINTH CIRCUIT’SAPPLICATION OF ITS "SOMEWHATINCONGRUOUS" EXCEPTION TOTHE UNITED STATES’ SOVEREIGNIMMUNITY CONFLICTS WITH

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UNITED STATES V. JICARILLAAPACHE NATION ..........................................20

III. THE QUESTIONS ARE IMPORTANTAND RECURRING .........................................24

CONCLUSION ..........................................................25

APPENDIX

United States Court of Appeals for the NinthCircuit, Opinion (Nov. 24, 2010) ...............................la

United States District Court for the District ofArizona, ]Findings of Factand Conclusions of Law (Feb. 12, 2008) .................34a

United States District Court for the District ofArizona, Order on Summary Judgment(May 24, 2007) .........................................................76a

United States District Court for the District ofArizona, Order Denying Motion to Dismiss(Mar. 9, 2006) ...........................................................96a

United States Court of Appeals for the NinthCircuit Order Denying Petition for Rehearingand Rehearing En Banc (Feb. 15, 2011) ...............104a

Federal Rule of Civil Procedure 19 .......................106a

V

TABLE OF AUTHORITIES

CASES

A123 Sys., Inc. v. Hydro-Quebec,626 F.3d 1213 (Fed. Cir. 2010) ..................18

Arizona v. California,298 U.S. 558(1936) ..............................12,16

Central Va. Cm~. College v. Katz,546 U.S. 356(2006) ....................................20

Confederated Tribes of Chehalis IndianReservation v. Lujan,928 F.2d 1496 (9th Cir. 1991) ....................21

Dawavendewa v. Salt River ProjectAgricultural Improvement and PowerDistrict,276 F.3d 1150 (9th Cir. 2002) ....................19

Enterprise Mgmt. Consultants, Inc. v. UnitedStates,883 F.2d 890 (10th Cir. 1989) ....................!9

Fluent v. Salamanca Indian Lease Auth.,928 F.2d 542 (2d Cir. 1991) ........................19

Mine Safety Appliances Co. v. Forrestal,326 U.S. 371 (1945) ....................................16

Minnesota v. United States,305 U.S. 382 (1939) .............................passim

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Office of Personnel Mgmt. v. Richmond,496 U.S. 414 (1990) ....................................14

Provident Tradesmen Bank & Trust Co. v.Patterson,390 U.S. 102 (1968) ....................................10

Puyallup Indian Tribe v. Port of Tacoma,717 F.2d 1251 (9th Cir. 1983) ..............20, 22

Republic ,of the Philippines v. Pimentel,553 UoS. 851 (2008) .............................passim

School Dist. of the City of Pontiac v. Secretaryof the United States Dep’t of Educ.,584 F.3d 253 (6th Cir. 2009) ......................18

Sokaogon Chippewa Community v. Wisconsin,879 F.2d 300 (7th Cir. 1989) ...................... 22

Texas v. New Mexico,352 U.S. 991 (1957) .............................passim

United States v. Hellard,322 U.S. 363 (1944) ....................................23

United States v. Jicarilla Apache Nation,131 S. Ct. 2313 (2011) ......................... passim

United States v. Shaw,309 U.S. 495 (1940) ....................................14

Wichita & Affiliated Tribes v. Hodel,788 F.2d 765 (D.C. Cir. 1986) ....................19

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STATUTES, REGULATIONS AND RULES

11 U.S.C. § 501 ..................................................4

25 U.S.C. § 323 ............................................7, 17

28 U.S.C.§ 1254(1) .......................................................1§ 2409a ..........................................5, 8, 14, 17

Act of July 22, 1854, Chapter 103, § 5,10 Stat. 308 ...................................................3

Act of June 20, 1910, Chapter 310 § 24,36 Stat. 557 ...................................................3

R.S. § 1946 (1873) ..............................................3

25 C.F.R. § 169.1 ....: .....................................7, 17

75 Fed. Reg. 60810 (Oct. 1, 2010) ...................24

Federal Rule of Civil Procedure 19 ..........passim

Federal Rule of Bankruptcy Procedure 3003... 4

JUDICIAL MATERIALS

Brief of Amicus Curiae United States ofAmerica, BGA LLC v. Ulster County (2d Cir.2008) (No. 08-0596-cv) .....................................18

Texas v. New Mexico, Report of the SpecialMaster, No. 9 Orig. (March 15, 1954) ........ 11, 16

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PETITION FOR A WRIT OF CERTIORARI

Petitioner, the Gila River Indian Community,respectfully petitions for a writ of certiorari to reviewthe judgment of the United States Court of Appealsfor the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,1a-33a) is reported at 626 F.3d, 1059 (9th Cir. 2010).The district court’s findings of fact and conclusions oflaw (App., infra, 34a-75a) are reported at 384 B.R.263 (D. Ariz. 2008). The district court’s decisions atthe motion to dismiss stage (App., infra, 96a-103a)and the summary judgment stage (App., infra, 76a-95a) are not reported.

JURISDICTION

The court of appeals entered its judgment onNovember 24, 2010. App., infra, la. TheCommunity’s petition for rehearing and rehearing enbanc was denied on February 15, 2011. App., infra,104a. On May 6, 2011, Justice Kennedy extended thetime for filing a petition for writ of certiorari to andincluding June 15, 2011, and, on June 2, 2011,Justice Kennedy further extended the time for filingthe petition to and including July 15, 2011. ThisCourt has jurisdiction pursuant to 28 U.S.C.§ 1254(1).

RELEVANT FEDERAL RULES PROVISIONS

The relevant provision of the federal rules,Federal Rule of Civil Procedure 19, is reproduced infull in the Appendix to the Petition (App., infra, 106a-108a).

STATEMENT OF THE CASE

1. Fecleral Rule of Civil Procedure 19(a) identifiesthose persons that must be joined in litigation iffeasible. Under Rule 19(a), a party is "required" if,"in that person’s absence, the court cannot accordcomplete relief among existing parties," or if "thatperson claims an interest relating to the subject ofthe action and is so situated that disposing of theaction in the person’s absence may as a practicalmatter impair or impede the person’s ability toprotect the interest" or "leave an existing partysubject to a substantial risk of incurring double,multiple, or otherwise inconsistent obligationsbecause of the interest." Fed. R. Civ. P. 19(a).

If the court finds that a party is required, thecourt then applies Rule 19(b)’s prescribed factors todetermine whether the party is indispensable suchthat the litigation must be dismissed unless the partycan be joined. Those factors are: (i) the prejudice toany party or to the absent party; (ii) whether reliefcan be shaped to lessen prejudice; (iii) whether ajudgment rendered in the person’s absence would beadequate; and (iv) whether the plaintiff would havean adequ.ate remedy if the action were dismissed fornonjoinder, i.e., whether there exists an alternativeforum. Fed. R. Civ. P. 19(b).

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2. This case arises from the bankruptcy trustee’sattempt to obtain a judicially implied easementproviding access to a 657-acre parcel of land in south-central Arizona known as "Section 16." App., infra,2a. Section 16 is fully encircled by individually heldlands and petitioner’s lands. Id. at 3a. The UnitedStates holds title to all of the land across which thepurported easement runs, holding that title in trustfor the individual allottee landowners and forpetitioner, the Gila River Indian Community, afederally recognized Indian tribe. Id. at 9a, 62a.

Section 16 was originally reserved as school landsfor the Territories of New Mexico and Arizona, andthen the State of Arizona. See Act of July 22, 1854,ch. 103, § 5, 10 Stat. 308, 309; R. S. § 1946 (1873); Actof June 20, 1910, ch. 310, § 24, 36 Stat. 557, 572. In1929, however, Arizona sold Section 16 to a privateowner, and since that time the land has been usedexclusively for agricultural and animal husbandrypurposes. App., infra, at 3a.

3. In 2004, Section 16’s owners, Michael andDebra Schugg, declared Chapter 11 bankruptcy andlisted Section 16 as their largest asset. App., infra,4ao G. Grant Lyon is the bankruptcy trustee for theSchugg bankruptcy estate. Id.

On January 20, 2005, the trustee attempted toprovide Wells Fargo a priority lien in the land bycollateralizing Section 16 in the bankruptcyproceedings. In re Michael Schugg, No. 04-bk-13326-GBN, dkt. #150 (Bankr. D. Ariz. Jan. 20, 2005).Petitioner objected and asserted title to Section 16.In re Michael Schugg, No. 04-bk-13326-GBN, dkt.#221 (Bankr. D. Ariz. Apr. 29, 2005). The trustee

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then asserted, for the first time in the bankruptcyproceedings, a right of access in the form of aneasement across petitioner’s and the individualallottees’ surrounding lands. In re Michael Schugg,No. 04-bk-13326~GBN, dkt. #224 (Bankr. D. Ariz.May 5, 2005). Obtaining a right of access acrosspetitioner’s and the individual allottees’ lands was anindispensable part of the trustee’s high-densityresidential development plans for Section 16, whichthe trustee had begun marketing to developers. Lyonv. Gila River Indian Cmty., No. 05-ap-384-GBN, dkt.#1, at 9 ¶I 42 (Bankr. D. Ariz. May 25, 2005); see alsoApp., infra, 52a; Pet. C.A. App. 352-353. Inaccordance with bankruptcy law, Fed. R. Bankr. P.3003; 11 U.S.C. § 501, petitioner then filed a proof ofclaim to protect its beneficiary interests in the lands.App., infra, 12a-13a.

The trustee subsequently initiated an adversaryproceeding in the bankruptcy court against theCommunity. App., infra, 12a. In that action, thetrustee sought not only to quiet title to Section 16,but also to obtain a judicial ruling that it had a fullright of access across the lands held by the UnitedStates in. trust for petitioner and the individuallandowners. Id. at 4a. The trustee sought aneasement for the purpose of opening the rural landup to residential development, with an estimated2,250 new homes and 850 cars traveling the roadduring peak periods, id. at 52a, 56a.

Petitioner filed counterclaims seeking adeclaration that no easement existed and assertingaboriginal title and control over Section 16. App.,infra, at 5a. Petitioner also moved to dismiss thetrustee’s action on the ground that the United States,

as title holder of all the lands over which the allegedeasement would run, was an indispensable party tothe litigation under Federal Rule of Civil Procedure19(b). The district court initially denied the Rule 19motion without prejudice to its renewal. Id.

Following a bench trial, the district court enteredfinal judgment partially in favor of the trustee. App.,infra, at 34a-75a. As relevant here, the district courtruled that the United States was a "required" partyunder Rule 19(a). Id. at 59a. The court also heldthat, because the Quiet Title Act had specificallypreserved the United States’ sovereign immunity forsuits over Indian lands held in trust by the UnitedStates, the United States could not be joined. App.,infra, 60a; see Quiet Title Act, 28 U.S.C. § 2409a.

However, instead of dismissing the case underRule 19(b), the district court reasoned that the casecould proceed without the United States (and theindividual landowners) because petitioner was aparty to the action. App., infra, 59a (citing PuyallupIndian Tribe v. Port of Tacoma, 717 F.2d 1251, 1254(9th Cir. 1983)). The court also stated that neitherthe United States nor the individual allottees wouldtechnically be bound by its judgment implying aneasement across their lands. App., infra, at 61a, 62an.3.

4. The United States Court of Appeals for theNinth Circuit affirmed. App., infra, 1a-33a. Asrelevant here, the court agreed that, as title-holderfor the land across which the easement was beingimplied, the United States was a required partyunder Rule 19(a), whose joinder was impossiblebecause the United States had not waived sovereign

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immunity. App., infra, at 9a. The court also agreedthat "judicial recognition of an easement wouldimpair the government’s right[s]." Id.

In adclition, the court acknowledged that thisCourt had previously held that the United States isan indispensable party, whose absence requiresdismissal., in litigation designed to determine a "rightof way" over Indian land held in trust, and ’"to anysuit to establish or acquire an interest in the lands"’to which the United States ’"is confessedly the ownerof the fee."’ App., infra, 10a-11a (quoting Minnesotav. United States, 305 U.S. 382, 386 (1939)).

The Ninth Circuit nevertheless held that this suitto determine a right of way over reservation andindividual allottee lands .to which the United Statesholds title could proceed because petitioner was aparty to the litigation. App., infra, 14a. In holdingthat this Court’s decision in Minnesota did notgovern, the Ninth Circuit applied what it admittedwas its "somewhat incongruous" rule, id. at 12a, thatthe United States’ interest in lands to which it holdstitle can be litigated in its absence if an Indian tribeas plaintiff files suit "to protect its own interest," id.at 11a (citing Puyallup, supra). The court thenextended the Puyallup rule to cases where the tribe isa defendant in litigation and the United States’ titleis being compromised, reasoning that, by filing aproof of claim in bankruptcy, petitioner "had to know"that the trustee would initiate an adversary action toestablish its claim to the land. Id. at 12a-13a.

The Ninth Circuit further found inapplicableRepublic of the Philippines v. Pimentel, 553 U.S. 851(2008), in which this Court held that a foreign

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sovereign government is a necessary party tolitigation over rights to property in which it holds aninterest, and that, under Federal Rule of CivilProcedure 19(b), its absence due to sovereignimmunity bars the suit from going forward, id. at867. The court of appeals ruled that Pimentel’sholding about the nature of a sovereign’s interest inlitigation implicating its property interests only"narrowly" applied to the interests of a "foreignsovereign that had invoked sovereign immunity."App., infra, 14a.

The court then held that the easement wasproperly implied because it arose in 1877 whenSection 16 was reserved as school lands and all of the ¯surrounding lands were public lands held by theUnited States. App., infra, 19a-20a.

In so holding, the Ninth Circuit found itimmaterial, App., infra, 15a-16a, that Congress hasprescribed an alternative administrative process forobtaining access to and easements across land heldby the United States. See 25 U.S.C. § 323 (Secretaryof the Interior may "grant rights~of-way for allpurposes, subject to such conditions as he mayprescribe, over and across any lands now or hereafterheld in trust by the United States for individualIndians or Indian tribes, * * * or any lands now orhereafter owned, subject to restrictions againstalienation, by individual Indians or Indian tribes.");see also 25 C.F.R. § 169.1 et seq.1

1 The Ninth Circuit also held that the district court erred inconcluding that the access roads were publicly open IndianReservation Roads, App., infra, 23a, and that the trustee failed

5. The court of appeals subsequently deniedpetitioner’s timely request for rehearing andrehearing en banc. App., infra, at 104a.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s holding is extraordinary.Notwithstanding this Court’s on-point and directlybinding decisions in, inter alia, Minnesota v. UnitedStates, 305 U.S. 382 (1939), and Republic of thePhilippines v. Pimentel, 553 U.S. 851 (2008), theNinth Circuit held that courts remain free tocompromi~se the United States’ title both to publiclands held exclusively by the United States and tolands hel,:l by the United States in its sovereign roleas trustee, without the United States’ participation inthe litigation and despite the Quiet Title Act’sundisputed preservation of the United States’sovereign immunity from precisely such claims, 28U.S.C. § 2409a(a). The court, moreover, made thatruling wlhile openly acknowledging that "judicialrecognitian of an easement would impair thegovernment’s right[s]" in its absence. App. infra, 9a.

That iholding flies in the face of this Court’sdecision in Pimentel, which ruled that, in applyingRule 19(b)’s indispensable party criteria, courts must

to show that the access roads were public highways under R.S.2477, App., infra, 30a. In addition, the held that petitioner’saboriginal title to Section 16 was extinguished. Id. at 31a-32a.Finally, the panel held that the issue whether petitioner hadzoning authority over Section 16 was not ripe for decision. Id. at32a-33a. None of those issues are presented to this Court forreview.

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"give full effect to sovereign immunity," 553 U.S. at865, and a court cannot evade that rule by reasoningthat the sovereign "would not be bound by thejudgment in an action where they were not parties,"id. at 871.

The Ninth Circuit’s decision is also flatlyirreconcilable with this Court’s directly on-pointholding in Minnesota that the United States is anindispensable party in whose absence the litigationcannot proceed when a party seeks to adjudicate aclaimed right of way over Indian lands to which theUnited States holds fee title in trust. That is thiscase.

Invocation of "somewhat incongruous" circuitprecedent, App., infra, 12a, that treats Indian tribesas proxies for the United States--a rule that no othercourt of appeals applies--is no excuse for ignoringbinding precedent from this Court.

The gap between Ninth Circuit law and the law ofthis Court has only gotten worse with this Court’srecent issuance of its decision in United States v.Jicarilla Apache Nation, 131 S. Ct. 2313 (2011). Thatcase discussed at length the unique and distinctsovereign interests of the federal government thatare implicated when the United States holds propertyin trust for Indian tribes, id. at 2323-2327. Plaintiffscannot keep the United States’ sovereign interestssidelined in a lawsuit while compromising the UnitedStates’ title by the mere ~expedience of suing anIndian tribe.

Finally and unsurprisingly, the Ninth Circuit’sstark departure from binding precedent conflicts withthe decisions of other courts of appeals on issues of

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fundamental and recurringimportance--theconsistent application of Rule19(b) in casesimplicating sovereign immunity.Given the NinthCircuit’s refusal to reconsiderits "somewhatincongruous" law en banc, only thisCourt can correctthe Ninth Circuit’s expansive inroad on sovereignimmunity and disregard of settled Rule 19 precedent.

THE NINTH CIRCUIT’S DECISIONALLOWING LEGAL CLAIMS TO THEUNITED STATES’ PUBLIC AND TRUSTLANDS TO BE ADJUDICATED IN THEUNITED STATES’ ABSENCE DEFIESPRECEDENT FROM THIS COURT ANDOTHER CIRCUITS

The Ninth Circuit fully agreed that (i) the UnitedStates is a required party to this litigation,, forpurposes of Federal Rule of Civil Procedure 19(a),because !it has a substantial legal interest in aclaimed easement across lands to which it holds title,(ii) "judicial recognition of an easement would impairthe government’s right[s]," and (iii) the UnitedStates’ joinder is barred by sovereign immunity.App., infra, at 9a. The only question is whether,under Rule 19(b), the litigation must be dismissedbecause the United States cannot be joined orwhether, instead, the litigation can proceed and theUnited States’ title can be compromised in itsabsence.

While ordinarily "[t]he decision whether todismiss * * * must be based on factors varying withthe different cases," some factors are "compelling bythemselves." Provident Tradesmen Bank & Trust Co.

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v. Patterson, 390 U.S. 102, 118-119 (1968). InPimentel, this Court held that a "claim of sovereignimmunity" is just such a compelling factor, 533 U.S.at 869, and that lower courts err when they "fail~ togive full effect to sovereign immunity" in the Rule19(b) calculus, 533 U.So at 865. Likewise, inMinnesota, this Court held specifically that theUnited States is an indispensable party, in whoseabsence the litigation cannot proceed, when a right ofway is sought over Indian lands held by the UnitedStates. 305 U.S. at 386-387 & n.1. The decisionbelow casts that precedent and the law of othercircuits aside in favor of a "somewhat incongruous"exception to sovereign immunity devised by theNinth Circuit, App., infra, 12a.

A. The Ninth Circuit’s Decision FlatlyDefies This Court’s On-PointPrecedent.

Because, as the Ninth Circuit admitted, "judicialrecognition of an easement would impair thegovernment’s right[s]," App., infra, 9a, bindingprecedent of this Court mandated dismissal of thisaction because the judgment granting the easement"necessarily affect[ed] adversely and immediately the[interests of the] United States." See Texas v. NewMexico, Report of the Special Master, No. 9 Orig., p.41 (March 15, 1954) (recommending the dismissal ofthe complaint for failure to join the United States asan indispensable party); see also Texas v. NewMexico, 352 U.S. 991 (1957) (per curiam) (dismissingthe bill of complaint "because of the absence of theUnited States as an indispensable party").

In Republic of the Philippines v. Pimentel, this

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Court held quite straightforwardly that a sovereignimmunity barrier to joinder requires dismissal underRule 19(b) because "[a] case may not proceed when arequired-entity sovereign is not amenable to suit."553 U.S. at 867. That is this case. Here, as inPimentel, the United States was a "required-party"with a substantial interest in the case under FederalRule of ’Civil Procedure 19(a); the United States’interest i~ the land is "not frivolous"; and the court ofappeals agreed that "there is a potential for injury tothe interests of the absent sovereign." Id.; see App.,infra, 9a. Accordingly, "[t]he court’s consideration ofthe merits was itself an infringement on * * *sovereign immunity." Pimentel, 553 U.S. at 864. Thecases cannot fairly be distinguished.

The Ninth Circuit reasoned that the litigationcould proceed because the United States would not bebound by the judgment as it was not a party to thelitigation. App., infra, 14a. This Court rejected thatvery same rationale when the Ninth Circuit used it inPimentel, holding that permitting litigation toproceed in the absence of a required sovereign does"not further the public interest in settling the disputeas a whole." 553 U.S. at 870-871. The NinthCircuit’s rationale also defies Arizona v. California,298 U.S. 558 (1936), which specifically held that thefact that a particular decision will not "bind or affectthe United States" is "not an inducement for thisCourt to decide the rights of the [parties] which arebefore it by a decree which, because of the absence ofthe United States, could have no finality," id. at 572.

That already twice-rejected rationale works nobetter here. Once a court adjudicates rights inproperty, material consequences follow as conduct is

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undertaken in reliance on that judgment. As aresult, the rights and interests of non-parties in landcan become, for all practical purposes, irretrievablylost. In this case, for example, an easement wassought to allow development of a high-densitysubdivision in the middle of a rural, agrarian area.Once such a right is recognized by a court, the onlyway the sovereign can protect its legal interests is tocome to court to challenge the order--and thus tosurrender the very sovereign immunity fromlitigation over title that Congress statutorilypreserved in the Quiet Title Act. In addition,adjudicating property interests in the absence of thetitle holder confounds the "public stake in settlingdisputes by wholes" and in "the avoidance of multiplelitigation." Pimentel, 553 U.S. at 870-871.

But the Ninth Circuit now leaves the UnitedStates no choice except either (i) to acquiesce in thecourt’s grant of an easement across its land, or (ii) tomultiply the litigation, surrender its immunity, andgo to court to try to defend its legal interests withinthe straitened framework already set by the NinthCircuit’s precedential legal rulings and the districtcourt’s fact findings. That unravels all of Pimentel’sprotections. The sovereign immunity "privilege ismuch diminished if an important and consequentialruling affecting the sovereign’s substantial interest isdetermined, or at least assumed, by a federal court inthe sovereign’s absence and over its objection." 553U.S. at 868-869.2

2 Because no court notified the United States about thelitigation or invited its views on the trustee’s claim to its land,

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The Ninth Circuit’s only other distinction ofPimentel was to declare it a "narrow[]" ruling limitedto "foreign sovereign[s]." App., infra, 14a. Thatmakes no sense at all. Nothing in Pimentel or Rule19(b) creates a hierarchical stacking of sovereigns’immunities or relegates the United States’ immunityto a lower, more judicially dispensable class than thatof foreign nations.

In any event, other decisions of this Court, whichthe Nintlh Circuit also disregarded, compel equaltreatment for the United States’ and foreigngovernments’ sovereign immunity in Rule 19decisions. Most specifically, in Minnesota v. UnitedStates, this Court slammed the door shut on theNinth Circuit’s reasoning. Minnesota held that theUnited States’ sovereign interest in Indian lands towhich it holds title requires dismissal if sovereignimmunity bars joinder of the federal government. InMinnesota, the State brought suit to establish a rightof way by condemning the land of Indian allottees towhich the United States held fee title. 305 U.S. at383. The district court dismissed the United Statesas a defendant, but allowed the suit to proceed,reasoning that "the United States is not a necessary

the United States did not appear in this litigation and itselfassert sovereign immunity. But sovereign immunity principlescannot be dodged that easily. Congress, in the Quiet Title Act,has already asserted that immunity, 28 U.S.C. § 2409a.Because ti~e Executive Branch cannot waive sovereignimmunity that Congress has preserved, see Office of PersonnelMgmt. v. Richmond, 496 U.S. 414, 423-434 (1990); United Statesv. Shaw, 309 U.S. 495, 502 (1940), its formal assertion or not ofimmunity in a particular case cannot alter the weight of thesovereign immunity interest in the Rule 19(b) analysis.

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party." Id. at 384.

This Court disagreed and held that the suit mustbe dismissed in its entirety because it was a"proceeding against property in which the UnitedStates has an interest," and the United States hadnot consented to suit. 305 U.S. at 386, 388-389.Because the United States "is confessedly the ownerof the fee of the Indian allotted lands and holds thesame in trust for the allottees," this Court held that"the right of way cannot be condemned withoutmaking it a party." Id. at 386.

Indeed, in sharp contrast to the Ninth Circuit’sdecision here, this Court emphasized that "noeffective relief can be given in a proceeding to whichthe United States is not a party and that the UnitedStates is therefore an indispensable party to any suitto establish or acquire an interest in the lands."Minnesota, 305 U.S. at 387 n.1. The Ninth Circuit’sholding that "an interest in the lands," includingspecifically a "right of way," could be established overIndian trustlands without the United States’

is completely irreconcilable withparticipationMinnesota.

Nor wasimmunity an

Minnesota’s protection of sovereignisolated event. The Ninth Circuit’s

decision equally runs afoul of Texas v. New Mexico,352 U.S. 991 (1957), where this Court dismissed anoriginal-action complaint because the United Stateshad an interest in the water rights at issue as trusteebut could not be joined due to sovereign immunity.Texas filed suit claiming that New Mexico hadviolated the Rio Grande Compact. However, thisCourt agreed with the report of the Special Master,

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that the United States was indispensable in its roleas trustee for various Indians because, even thoughthe United States would not be bound by adetermination made in its absence, a decree in thatcase would have "necessarily affect[ed] adversely andimmediately the United States" in its fiduciarycapacity. See Texas v. New Mexico, Report of theSpecial Master, No. 9 Orig., p. 41 (March 15, 1954);see also Texas v. New Mexico, 352 U.S. 991 (1957)(per curiam) (dismissing the bill of complaint"because of the absence of the United States as anindispensable party").

The list of this Court’s precedent that the NinthCircuit’s decision transgresses does not stop there.See Ariz,~na v. California, 298 U.S. 558 (1936)(denying motion to file bill of complaint seekingdivision of unapportioned water in the Colorado Riverbecause the relief requested would affect the UnitedStates’ interests in the river and the United States’joinder was barred by sovereign immunity); MineSafety Appliances Co. v. Forrestal, 326 U.S. 371, 375(1945) (where "the suit is essentially one designed toreach [assets] which the government owns," the"government is an indispensable party").

The departure from precedent here is doubly starkbecause, although the case involves lands now held intrust by ~he United States, the Ninth Circuit ruledthat the easement actually arose in 1877, at a timewhen all of the lands at issue were public landsowned directly and exclusively by the United States.App., infra, 20a. There is no dispute that, had thetrustee sued the United States directly to have thatsame easement across public lands declared, thelawsuit would have been barred by the Quiet Title

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Act. See 28 U.S.C. § 2409a(a). Suing an Indian tribedoes nothing to change the United States’ exclusivelegal interest in and title to those lands at the time ofthe easement’s purported creation.~

Further compounding the harm of the decision isthat it licenses plaintiffs not only to circumvent directlimitations on the United States’ waiver of sovereignimmunity, but also to avoid the very administrativeprocesses that Congress and the Executive Branchhave provided for obtaining easements over publicand trust lands. See 25 U.S.C. § 323, et seq.; see also25 C.F.R. § 169.1 et seq. The Ninth Circuit’scontortion of precedent thus was entirelyunnecessary to provide the trustee an avenue forrelief on its claim. See Fed. R. Civ. P. 19(b) (existenceof alternative sources of relief weighs in favor ofdismissal).

Put simply, the Ninth Circuit has turned its backon binding law from this Court and charted in thisprecedential decision a path that is diametricallyopposed to the principles of sovereign immunity andtheir role in joinder analysis that this Court laiddown in, inter alia, Pimentel, Minnesota, and Texas v.New Mexico. Indeed, given the extent and on-pointclarity of this Court’s precedent on this importantquestion of law, summary reversal may bewarranted.

3 Petitioner’s reservation fully encompassing the relevantlandsdid not come into existence until 36 years after the NinthCircuit said the easement arose.

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The Ninth Circuit’s DecisionContradicts The Law Of OtherCircuits And The Position Of TheUnited States.

While the Ninth Circuit has held that Pimentel isa "narrow[]" ruling limited to cases involving "foreignsovereign[s]," App., infra, 14a, the Federal Circuithas applied Pimentel to domestic governments’assertions of sovereign immunity~ In A123 Sys., Inc.v. Hydro-Quebec, 626 F.3d 1213 (Fed. Cir. 2010), theFederal Circuit held that Pimentel applies tosovereign States and dismissed the litigation underRule 19(b) when sovereign immunity barred theState’s joinder, id. at 1221. See also School Dist. ofthe City of Pontiac v. Secretary of the United StatesDep’t of Educ., 584 F.3d 253, 305 (6th Cir. 2009) (enbanc) (McKeague, J. concurring) (citing Pimentel forthe proposition that, within Rule 19(b) analysis,State sovereign immunity ’"may be viewed as one ofthose interests compelling by themselves"’) (citationomitted).

Likewise, the Ninth Circuit’s cramped view ofPimentel has been rejected by the United Statesitself. Although the lower courts here did not seekthe views of the United States while compromisingits title to land, the United States, like the FederalCircuit, reads Pimentel as extending to the federalgovernment’s sovereign immunity. See Brief ofAmicus Curiae United States of America at 28-31,BGA LLC v. Ulster County, (2d Cir. 2008) (No. 08-0596-cv) (arguing that Pimentel applies to federalsovereign immunity).

Notably, the conflict among the courts of appeals

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regarding the importance of sovereign immunityinterests in the Rule 19(b) analysis is longstanding.Compare Fluent v. Salamanca Indian Lease Auth.,928 F.2d 542, 548 (2d Cir. 1991) (emphasizing the"paramount importance accorded the doctrine ofsovereign immunity under Rule 19"); EnterpriseMgmt. Consultants, Inc. v. United States, 883 F.2d890, 894 (10th Cir. 1989) ("When, as here, anecessary party under Rule 19(a) is immune fromsuit, there is very little room for balancing of otherfactors set out in Rule 19(b), because immunity maybe viewed as one of those interests compelling bythemselves.") (internal quotation marks omitted);and Wichita & Affiliated Tribes v. Hodel, 788 F.2d765, 777 n.13 (D.C. Cir. 1986) (same), withDawavendewa v. Salt River Project AgriculturalImprovement and Power District, 276 F.3d 1150, 1162(9th Cir. 2002) (applying traditional balancing of theRule 19(b) factors and declining to treat sovereignimmunity as a singularly compelling factor).

Thus this Court’s review is needed to ensure thatRule 19(b) is enforced consistently across circuitboundaries and that the federal government’s andStates’ activities within the Ninth Circuit receive thesame sovereign immunity protections accorded byother circuits~

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II. THE NINTH CIRCUIT’S APPLICATIONOF ITS "SOMEWHAT INCONGRUOUS"EXCEPTION TO THE UNITED STATES’SOVEREIGN IMMUNITY CONFLICTSWITH UNITED STATES V. JICARILLAAPACHE NATION

The Ninth Circuit attempted to justify its starkdeparture from this Court’s binding and directly on-point precedent by relying on what it described asthat Circuit’s "somewhat incongruous" decision (App.,infra, 12a) in Puyallup Indian Tribe v. Port ofTacoma, 717 F.2d 1251 (9th Cir. 1983). In Puyallup,the Ninth Circuit adopted the-novel, seeminglycategorical rule that the United States is not anindispensable party to "a suit by an Indian tribe" as aplaintiff "to protect its interestin tribal lands." App.,infra, at 11a. The panel in this case extendedPuyallup to cases where the Indian tribe is adefendant, hauled into court involuntarily and forcedto litigate to protect its and the United States’existing i~aterests in land. Id. at 12a.4

4 The Ninth Circuit here reasoned that petitioner, althougha named defendant in the trustee’s suit, was akin to a plaintiffbecause petitioner had filed a proof of claim in response to thebankruptcy trustee’s assertion of adverse claims to petitioner’sproperty. App., infra, 12a. Once again, that rationale issquarely foreclosed by Pimentel. See 553 U.S. at 871 (formalparty status controls in Rule 19(b) analysis regardless ofwhether "other parties press claims in the manner of aplaintiff."); cf. Central Va. Cmty. College v. Katz, 546 U.S. 356,378-379 (2(~06) (unless validly abrogated, Eleventh Amendmentimmunity applies to States that file proofs of claim inbankruptcy proceedings).

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Whatever Puyallup’s validity when an Indiantribe appears as a plaintiff seeking to assert newrights to land, Ninth Circuit law has now taken thatconcept far afield and extended it to situations when,as here, "the court quite literally cannot give theplaintiff the interest that it seeks withoutsimultaneously taking that interest away from theabsent non-party." Confederated Tribes of ChehalisIndian Reservation v. Lujan, 928 F.2d 1496, 1502(9th Cir. 1991) (O’Scannlain, J., concurring in partand dissenting in part). That is wrong. The circuitcourts have no license to mint "somewhatincongruous" exceptions to sovereign immunity, App.,infra, 12a, that are directly proscribed by this Court’sprecedent and that allow plaintiffs to take "interest[s]away from [an] absent non-party" sovereign.Chehalis, 928 F.2d at 1502. Indeed, Minnesota andTexas v. New Mexico both squarely addressed thejoinder analysis when a plaintiff sought to takeassets and interests away from a United States-heldtrust, and both held that the action must bedismissed in the United States’ absence. Minnesota,305 U.S. at 386, 388-389; Texas v. New Mexico, 352U.S. 991 (1957). The presence in the litigation ofIndians as defendants in Minnesota did nothing tosalvage the litigation. Minnesota, 305 U.S, at 383-384.

Nor did the Ninth Circuit ever explain how theUnited States’ legal interests could be sufficientlyimpacted by the litigation to trigger the Quiet TitleAct’s bar against suing the United States directly,but not sufficiently implicated to warrant givingthose sovereign interests meaningful protection inlitigation.

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Indeed, the Ninth Circuit’s decision that the tribeis a sufficient defensive proxy for the United States’legal interests is particularly "incongruous" becausethe court held that the easement arose more thanthree decades before the reservation encompassingthe rele~ant lands was created by the federalgovernment, and thus at a time when the lands overwhich the easement was applied were public landsdirectly and exclusively held by the United States.Plaintiffs cannot escape a direct sovereign immunitybar on lawsuits seeking easements over federalpublic lands by the simple expedience of suing anIndian tribe that later acquired reservation landscovering a portion of the easement.

Tellingly, no other circuit has adopted the NinthCircuit’s Puyallup rule. See Sokaogon ChippewaCommunity v. Wisconsin, 879 F.2d 300, 304 (7th Cir.1989) ("The nature of the Rule 19(b) inquiry--aweighing of intangibles--limits the force of precedentand casts doubt on generalizations such as [thePuyallup Rule]").

Finally, the Ninth Circuit’s foundationalassumption that "the government’s interests areshared and adequately represented by" an Indiantribe defendant in the litigation, App., infra, at 14a,runs headlong into this Court’s recent decision inUnited S~tates v. Jicarilla Apache Nation, 131 S. Ct.2313 (2011). In Jicarilla, this Court rejected theassumption that the United States’ legal interests astrustee of Indian lands and the interests of a tribeare coterminous. The Court noted that theadministration of laws concerning tribal trustproperty is a distinctly sovereign function and thesovereign "has often structured the trust relationship

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to pursue its own policy goals," id. at 2324; see alsoid. at 2327 n.8 (the control over Indian tribesexercised by the government pursuant to the trustrelationship and in restraining alienation "does notcorrespond to the fiduciary duties of a common lawtrustee"). Of most relevance here, this Court statedthat, when the United States holds land in trust forIndian tribes, "the United States continue[s] astrustee to have an active interest" of its own "in thedisposition of Indian assets because the terms of thetrust relationship embody policy goals of the UnitedStates." Id. at 2326. That "active interest" inavoiding an easement across United States-heldlands was nowhere represented in this litigation.

The Ninth Circuit’s unexplained equation ofpetitioner’s and the United States’ legal interests inthe case thus paid no heed to the distinct andindependent sovereign interests that the UnitedStates has in its role as trustee and titleholder of theland. Nor does the decision respect the sovereignimmunity rules set forth in Pimentel and Minnesotathat preclude compromising those interests in theUnited States’ absence. Jicarilla Nation, however,compels attentiveness to the United States’ distinctlegal interests in the Rule 19(b) analysis. See alsoUnited States v. Hellard, 322 U.S. 363, 366-369(1944) (United States indispensable in action topartition tribal land among tribe members becauseUnited States had its own "important governmentalinterests" that the tribe members could notrepresent).

Accordingly, if the Court does not grant thepetition for a writ of certiorari for plenary review orsummary reversal, it should grant, vacate and

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remand for further consideration in light of Jicarilla.

III. THE QUESTIONS ARE IMPORTANT ANDRECURRING

Resolution of the legal questions raised by theNinth Circuit’s decision here and the harmonizationof inter-circuit law is critical. Issues involving therights of sovereigns generally, and judicial solicitudefor absent sovereigns in litigation directly implicatingtheir property interests, are matters of great publicsignificance, as this Court’s decisions in Pimentel andMinnesotct reflect. And this Court’s recent decision inJicarilla underscored the importance of respectingthe United States’ distinct sovereign interests in thetrust relationships that exist between the UnitedStates and Indian tribes and individual allotteelandowners.

The Ninth Circuit’s disregard here of the UnitedStates’ sovereign interests, moreover, has far-reaching implications for tribes and the UnitedStates, given that there are approximately 421recognized tribal entities located within the NinthCircuit. See 75 Fed. Reg. 60810, 60810-60814 (Oct. 1,2010).

Finally, the impact of the Ninth Circuit’s sharpdeparture from precedent going forward is profound.That Circuit encompasses a disproportionately largeshare of trust and restricted lands. Phone Interviewwith Q. Michael Jones, Acting Chief, Division of LandTitles and Records, Bureau of Indian Affairs (July 13,2011) (as of March 30, 2009, approximately 38million of the roughly 67 million acres of trust andrestricted[ land in the United States sits within the

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Ninth Circuit). As to all of those lands, the NinthCircuit has now rolled back the rights of interestedsovereigns to participate in litigation compromisingtheir legal title. Given the frequency with whichdisputes arise involving trust and restricted lands,the questions presented here are bound to recur.This Court’s correction of the Ninth Circuit’sprecedent-spurning course thus is critical.

CONCLUSION

For the foregoing reasons, the petition for a writ ofcertiorari should be granted and the case set forplenary review. Alternatively, the Ninth Circuit’sjudgment should either be summarily reversed orvacated and remanded for further consideration inlight of United States v. Jicarilla Apache Nation, No.10-382.

Respectfully submitted.

Linus EverlingGeneral Counsel

Thomas L. MurphyDeputy General Counsel

GILA RIVER INDIAN

COMMUNITY

PIMA MARICOPA TRIBE LAW

OFFICE

P.O. Box 97Sacaton, AZ 85247-0400

Patricia A. MillettCounsel of Record

Mark J. MacDougallTroy D. CahillAKIN, GUMP, STRAUSS,

HAUER & FELD LLP

1333 New HampshireAve., NW

Washington, DC 20036(202) 887-4000pmillett@akingump.com

July 15, 2011

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