CITIZEN NATION v. NORTON 993 Cite as 248 F.3d 993 (10th Cir. 2001)

not abuse its discretion in redacting this action because it was unable to join as note from Mr. Arney’s exhibit. necessary and indispensable parties other tribes participating in Nation’s funding III. Conclusion agreement for dividing federal appropria- We find that the district court did not tions. The District Court for err in submitting the Allen charge to the the Western District of , Wayne jury. We also find that the district court E. Alley, J., dismissed action. Nation ap- did not abuse its discretion in excluding pealed. The Court of Appeals, Holloway, the testimony of Mr. Arney’s expert wit- Circuit Judge, held that: (1) District Court ness. Finally, we find that the district did not abuse its discretion in determining court did not abuse its discretion in admit- that other tribes were necessary parties; ting evidence of Mr. Arney’s cattle inven- (2) District Court did not abuse its discre- tory and redacting a note attached to one tion in determining that other tribes were of Mr. Arney’s exhibits. Accordingly, we indispensable parties; and (3) Interior De- AFFIRM. partment was precluded from funding, though Indian Self-Determination and Ed- ucation Assistance Act, certain purportedly , ‘‘residual’’ functions of Nation. Affirmed.

1. Federal Courts O776, 817 CITIZEN POTAWATOMI NATION, Determinations of whether parties a federally recognized Indian must be joined are reviewed for an abuse Tribe, Plaintiff–Appellant, of discretion, while the underlying legal v. conclusions supporting such determina- tions are reviewed de novo. Fed.Rules Gale A. NORTON,* Secretary of the In- Civ.Proc.Rule 19(a), 28 U.S.C.A. terior, William Sinclair, Director of the Office of Self Governance, Defen- 2. Federal Courts O776 dants–Appellees. A legal ruling on when a party can No. 99–6077. assert its sovereign immunity and a dis- trict court’s determination of subject mat- United States Court of Appeals, ter jurisdiction are reviewed de novo. Tenth Circuit. 3. Federal Civil Procedure O1747 April 25, 2001. A district court must follow a three- step process for determining whether an Citizen Potawatomi Nation sued offi- action should be dismissed for failure to cials of Department of the Interior chal- join a purportedly indispensable party, in lenging Department’s methods for calcu- that it must determine whether the absent lating funding received by Nation under person is necessary, and if so, must then tribal self-governance compact. Officials determine whether joinder is feasible, and, responded that Nation could not maintain if it is not, must decide whether the absent

* Pursuant to Fed. R.App. P. 43(c)(2), Gale A. retary of the Interior, as a defendant in this Norton is substituted for Bruce Babbitt, Sec- action. 994 248 FEDERAL REPORTER, 3d SERIES person is indispensable, that is, whether in properly provided shared service area for equity and good conscience the action can it and Tribe and therefore had continue in the absent person’s absence. improperly awarded Tribe excess funds, Fed.Rules Civ.Proc.Rule 19(a, b), 28 inasmuch as Tribe’s claim of shared ser- U.S.C.A. vice area was not patently frivolous and Department could not adequately repre- 4. Federal Civil Procedure O211 sent Tribe’s interest given that its duty to District court did not abuse its discre- implement national Native American policy tion in determining that tribes that had was not necessarily same as Tribe’s inter- entered into agreement with Citizen Pota- est in receiving funds at issue. Fed.Rules watomi Nation setting forth formula for Civ.Proc.Rule 19(a), 28 U.S.C.A. dividing future federal appropriations were necessary parties with respect to Nation’s 8. Federal Civil Procedure O211 claim that Interior Department had incor- District court did not abuse its discre- rectly determined that formula was static, tion in determining that tribes that had as opposed to changing if there was entered into agreement with Citizen Pota- change in data upon which formula was watomi Nation setting forth formula for based, inasmuch as Nation’s claim could dividing future federal appropriations alter future funding for absent tribes, such were indispensable parties with respect to that absent tribes could claim interest in Nation’s action challenging Interior De- application of formula, and absent tribes partment’s methods for calculating funding had varied and potentially conflicting in- received by Nation under tribal self-gover- terests, such that Department could not nance compact; although such determina- adequately represent their interests. Fed. tion meant there was no way to challenge Rules Civ.Proc.Rule 19(a), 28 U.S.C.A. conduct in question, district court relied on strong policy favoring dismissal when 5. Federal Civil Procedure O201 court cannot join tribe because of sover- The underlying merits of the litigation eign immunity, and on its ruling that ab- are irrelevant to a determination whether sent tribes would suffer substantial preju- parties must be joined. Fed.Rules Civ. dice if action proceeded without them and Proc.Rule 19(a), 28 U.S.C.A. that there was no way to lessen that prej- 6. Federal Civil Procedure O201 udice. Fed.Rules Civ.Proc.Rule 19(a), 28 U.S.C.A. The rule requiring that a party assert a claimed interest in order for joinder of 9. Federal Courts O762 that party to be necessary excludes only The Court of Appeals may affirm the those claimed interests that are patently district court on any basis the record sup- frivolous. Fed.Rules Civ.Proc.Rule 19(a), ports, even one the district court did not 28 U.S.C.A. reach. 7. Federal Civil Procedure O211 10. Indians O7 District court did not abuse its discre- Interior Department was precluded tion in determining that tribes that had by moratorium clause in Congress’ 1999 entered into agreement with Citizen Pota- appropriations bill from funding, though watomi Nation setting forth formula for Indian Self-Determination and Education dividing future federal appropriations were Assistance Act, certain purportedly ‘‘resid- necessary parties with respect to Nation’s ual’’ functions of Citizen Potawatomi Na- claim that Interior Department had im- tion, inasmuch as Congress had specified CITIZEN POTAWATOMI NATION v. NORTON 995 Cite as 248 F.3d 993 (10th Cir. 2001)

that provision of funds under Act was sub- ing funding the Citizen Potawatomi Nation ject to availability of appropriations. Indi- receives under its tribal self-governance an Self-Determination and Education As- compact. Subject matter jurisdiction was sistance Act, § 2 et seq., 25 U.S.C.A. § 450 asserted under 28 U.S.C. § 1362 in that et seq.; Omnibus Consolidated and Emer- the action was brought by an Indian tribe gency Supplemental Appropriations Act, or band with a governing body duly recog- 1999, § 328, 16 U.S.C.A. § 460l–6a note. nized by the Secretary of the Interior and the matter in controversy arises under the 11. Federal Civil Procedure O1748, 1828 Constitution, laws or treaties of the United District court did not abuse its discre- States. The complaint also presented an tion in dismissing Indian tribe’s action for action in the nature of mandamus to com- failure to join necessary and indispensable pel an officer or employee of the United parties without allowing further discovery, States to perform a duty owed to the where tribe had not suggested possibility Plaintiff. 28 U.S.C. § 1361. of development of evidence that would be Defendants moved to dismiss the action relevant to such inquiry, and district court on the ground that the Citizen Potawatomi assumed that facts alleged by tribes were are unable to join three ‘‘necessary’’ and true. Fed.Rules Civ.Proc.Rule 19(a), 28 ‘‘indispensable’’ parties, tribal participants U.S.C.A. in the funding agreement. The district court agreed and granted the motion. This timely appeal ensued. We have ap- pellate jurisdiction under 28 U.S.C. § 1291. Michael Minnis, Michael Minnis & Asso- ciates, PC., Oklahoma City, OK (David I McCullough with him on the briefs), for BACKGROUND Plaintiff–Appellant. Arvo Q. Mikkanen, Assistant United Under the Indian Self–Determination States Attorney, Oklahoma City, OK (Pat- and Education Assistance Act, 25 U.S.C. rick M. Ryan, United States Attorney, §§ 450 et seq., the United States is autho- with him on the brief), for Defendants– rized to enter into compacts with tribes. Appellees. Pursuant to that Act, tribes do not con- tract to take over specific programs; rath- Before TACHA, Chief Judge, er, tribes assume comprehensive responsi- HOLLOWAY and SEYMOUR, Circuit bility for the planning and administration Judges. of programs and services previously pro- vided by the United States. Essentially, HOLLOWAY, Circuit Judge. the Act provides for tribal self-governance. Plaintiff/appellant Citizen Potawatomi Once the United States enters into a Nation (Citizen Potawatomi), a federally compact with a tribe, the parties ordinarily recognized Indian Tribe located in the negotiate an Annual Funding Agreement. Western District of Oklahoma, brought In 1988, however, five tribes within the this action which the Tribe termed as one Shawnee Agency of the Bureau of Indian for a ‘‘mandatory injunction in the nature Affairs negotiated a formula among them- of mandamus’’ against federal officials of selves for dividing future federal appropri- the United States Department of the Inte- ations. Those tribes included the Citizen rior challenging their methods for calculat- Potawatomi, the Shawnee Tribe, the Kic- 996 248 FEDERAL REPORTER, 3d SERIES kapoo Tribe of Oklahoma, the Sac & Fox developed for the court to rule on the Nation, and the . motion. Under their formula, the tribes agreed to The court first noted that under Rule 19, divide (1) twenty-five percent of the fund- it must determine whether the absent ing equally; (2) twenty-five percent in pro- tribes are ‘‘necessary’’; if they are neces- portion to total tribal enrollment; (3) sary, whether joinder is ‘‘feasible’’; and if twenty-five percent in proportion to resi- not, whether the absent tribes are ‘‘indis- dent tribal enrollment within each tribe’s pensable.’’ Applying this three-part test, jurisdictional area; and (4) twenty-five the district court ruled that the absent percent of the funds in proportion to the tribes were necessary because complete amount of trust property in each tribe’s relief was not possible without them since jurisdiction. The United States used this ‘‘as a result of the action and a possible formula to determine the amount of fund- increase in plaintiff’s funding allocation, ing awarded to the tribes in their Annual the remaining tribes would suffer detri- Funding Agreements. ment from which they may seek collateral relief from the plaintiff or the defendants’’ On September 23, 1998, the Citizen Po- and because the absent tribes had an in- tawatomi brought this action against De- terest in the funding allocations. Order fendants challenging the methods they use [granting motions to dismiss] at 5, II App. for determining the Citizen Potawatomi’s at 406. Further, the district court ruled funding. Specifically, the Citizen Potawa- that joinder was not feasible because the tomi challenge (1) the determination that absent parties possessed sovereign immu- the Shawnee Tribe and the Citizen Pota- nity. Finally, the absent tribes were indis- watomi share the same service area and, pensable because they would suffer sub- therefore, the funds provided to that area; stantial prejudice if the action proceeded (2) the determination that the 1988 formu- without them; there was no way to lessen la is static and does not change as the data the prejudice; a judgment without the change; (3) the refusal of Defendants to tribes would be inadequate; and the Citi- fund certain items of the Citizen Potawato- zen Potawatomi Nation was said to have mi that Defendants claim are ‘‘residual’’; an adequate alternative remedy in Con- and (4) Defendants’ interpretation of a gress. See Order at 8–10, II App. at 409– ‘‘moratorium’’ clause, which Defendants al- 411. Accordingly, the district court grant- lege prevents them from fully funding the ed the motions to dismiss. Citizen Potawatomi.

After the Citizen Potawatomi filed this II lawsuit, Defendants moved to dismiss the A action on the ground that the Citizen Pota- watomi had not, and could not, join as STANDARD OF REVIEW parties to the action the other tribal partic- [1, 2] We review determinations made ipants in the funding agreement; the De- pursuant to Fed.R.Civ.P. 19(a) for an fendants argued that because those tribes abuse of discretion, while the underlying were ‘‘indispensable,’’ the court should dis- legal conclusions supporting Rule 19 deter- miss the action pursuant to Fed.R.Civ.P. minations are reviewed de novo. Davis v. 19(a). The district court agreed and re- United States, 192 F.3d 951, 957 (10th jected the Citizen Potawatomi’s contention Cir.1999). We review de novo the legal that the evidence had not been sufficiently ruling on when a party can assert its sov- CITIZEN POTAWATOMI NATION v. NORTON 997 Cite as 248 F.3d 993 (10th Cir. 2001)

ereign immunity and the district court’s (‘‘Indian tribes are ‘domestic dependent determination of subject matter jurisdic- nations’ that exercise inherent sovereign tion. Fletcher v. United States, 116 F.3d, authority over their members and territo- 1315, 1323–24 (10th Cir.1997). riesTTTT As an aspect of this sovereign immunity, suits against tribes are barred B in the absence of an unequivocally ex- pressed waiver by the tribe or abrogation RULE 19 by Congress.’’) (citing Oklahoma Tax [3] ‘‘The question of whether an absent Comm’n v. Citizen Band Potawatomi In- party is necessary and/or indispensable is dian Tribe of Oklahoma, 498 U.S. 505, 509, resolved by applying Rule 19 of the Feder- 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)). al Rules of Civil Procedure.’’ Sac and Fox Finally, if joinder is not feasible, the Nation of Missouri v. Norton, 240 F.3d court must decide whether the absent per- 1250, 1258 (10th Cir.2001) (quoting Davis, son is ‘‘indispensable,’’ i.e., whether in ‘‘eq- 192 F.3d at 957). Rule 19 provides a uity and good conscience’’ the action can three-step process for determining wheth- continue in his absence. The factors the er an action should be dismissed for failure court considers include: to join a purportedly indispensable party. [F]irst, to what extent a judgment ren- United States v. Bowen, 172 F.3d 682, 688 dered in the person’s absence might be (9th Cir.1999). First, the court must de- prejudicial to the person or those al- termine whether the absent person is ‘‘nec- ready parties; second, the extent to essary.’’ A person is necessary if: which, by protective provisions in the (1) in the person’s absence complete re- judgment, by the shaping of relief, or lief cannot be accorded among those al- other measures, the prejudice can be ready parties, or (2) the person claims lessened or avoided; third, whether a an interest relating to the subject of the judgment rendered in the person’s ab- action and is so situated that the disposi- sence will be adequate; fourth, whether tion of the action in the person’s absence the plaintiff will have an adequate reme- may (i) as a practical matter impair or dy if the action is dismissed for nonjoin- impede the person’s ability to protect der. that interest or (ii) leave any of the Fed.R.Civ.P. 19(b). persons already parties subject to a sub- stantial risk of incurring double, multi- III ple, or otherwise inconsistent obligations by reason of the claimed interest. NECESSARY PARTIES Fed.R.Civ.P. 19(a); Bowen, 172 F.3d at A 688. If the absent person is necessary, the THE FUNDING FORMULA court must then determine whether join- [4] The Citizen Potawatomi challenge der is ‘‘feasible.’’ See Fed.R.Civ.P. 19(a)- Defendants’ determination that the 1988 (b). In the instant case, the Citizen Pota- formula is static. Because the Citizen Po- watomi do not dispute the district court’s tawatomis’ action may alter the future ruling that joinder of the absent tribes was funding for the absent tribes, the tribes not feasible because the tribes possess sov- can claim interests relating to the subject ereign immunity. See Fletcher v. United of the action. See Manygoats v. Kleppe, States, 116 F.3d 1315, 1324 (10th Cir.1997) 558 F.2d 556, 558 (10th Cir.1977) (‘‘The 998 248 FEDERAL REPORTER, 3d SERIES

financial and other benefits to the Tribe clear, the underlying merits of the litiga- under the Exxon agreement give the tribe tion are irrelevant under Fed.R.Civ.P. sufficient interest to satisfy the require- 19(a): ments of Subsection (a)(2)(i).’’). In Citizen Plaintiffs’ narrow interpretation of the Band Potawatomi Indian Tribe of Okla- term ‘‘legally protected interest’’ inap- homa v. Collier, 17 F.3d 1292, 1294 (10th propriately presupposes Plaintiffs’ suc- Cir.1994), we noted that for purposes of cess on the merits. Under the interpre- Rule 12(b)(7) necessary party analysis the tation advanced by Plaintiffs, the Tribe Rule does not protect ‘‘inchoate’’ interests. would have no legally protected interest Here, however, the tribes have already in the monies used to fund Judgment agreed to the use of the formulas in ques- Fund Programs that exclude the Este- tion. As the district court noted, Order at lusti only if Plaintiffs prevail 6, II App. at 407, here the five tribes on the merits. Consequently, if this entered in an agreement regarding a fund- court adopted Plaintiffs’ interpretation ing formula in 1988. We feel this trans- of the term ‘‘legally protected interest,’’ forms the funding decisions from a mere the district court would be required to expectation, which is unprotected, into an determine the merits of Plaintiffs’ Judg- interest which is protected. ment Fund Award claim before ruling The Citizen Potawatomi argue, however, on Defendants’ motion to dismiss. Such that they do not challenge the use of the an approach is untenable because it 1988 formula as a basis for funding, but would render the Rule 19 analysis an rather how the Defendants implement the adjudication on the merits. The term formula, and that under the Ninth Cir- ‘‘legally protected interest’’ thus cannot cuit’s decision in Makah Indian Tribe v. mean what Plaintiffs would like it to Verity, 910 F.2d 555, 558 (9th Cir.1990), mean. absent tribes are not ‘‘necessary’’ in such circumstances. We are not persuaded. Davis, 192 F.3d at 958. That case presented a challenge brought [6] We thus noted that ‘‘Rule 19, by its by the Makah to regulations of the Secre- plain language, does not require the absent tary of Commerce governing quotas on party to actually possess an interest; it tribal ocean fishing for various tribes. The only requires the movant to show that the court held that the other tribes were not absent party ‘claims an interest relating to necessary to the action because ‘‘all of the the subject of the action.’ ’’ Id. (emphasis tribes have an equal interest in an admin- in original) (quoting Fed.R.Civ.P. 19(a)(2)). istrative process that is lawful.’’ Id. at Consequently, Rule 19 excludes only 559. The Citizen Potawatomi make the ‘‘those claimed interests that are ‘patently same argument in this action, contending frivolous.’ ’’ Id. at 959 (citing Shermoen v. that the ‘‘remaining tribes’’ do not possess United States, 982 F.2d 1312, 1318 (9th a ‘‘legitimate interest in continuing to re- Cir.1992)) (emphasis in original). Apply- ceive funding allocations that are not fairly ing Davis to the instant case, we are con- distributed.’’ Brief For Appellant at 15– vinced that the Citizen Potawatomi have 16. not demonstrated that the absent tribes’ [5] We do not agree. Makah focused defense of the current funding methods on the underlying merits of the litigation— would be ‘‘patently frivolous.’’ Thus, even all tribes have an interest in a ‘‘lawful’’ if the Citizen Potawatomi would otherwise administrative process. As we have made prevail on the merits, the absent tribes can CITIZEN POTAWATOMI NATION v. NORTON 999 Cite as 248 F.3d 993 (10th Cir. 2001)

nevertheless validly claim an interest in that the district court did not abuse its the subject of the action. discretion by ruling that the absent tribes We are likewise unpersuaded by Citizen were ‘‘necessary’’ for purposes of the Citi- ’ reliance on Ramah Navajo zen Potawatomis’ claim concerning the Sch. Bd. v. Babbitt, 87 F.3d 1338, 1351 funding formula. (D.C.Cir.1996), for the proposition that the United States can adequately protect the B absent tribes’ interest and that therefore THE SERVICE POPULATION they are not necessary parties. Brief For [7] The Citizen Potawatomi next Appellant at 16. The Court of Appeals for claims that Defendants have improperly the District of Columbia Circuit did note in provided a shared service area for it and Ramah, 87 F.3d at 1351, that the United the Shawnee and therefore improperly States may ‘‘adequately represent’’ a awarded the Shawnee excess funds. Brief tribe’s interests; however, it made it clear for Appellant at 11. Unquestionably the that this representation is permissible only Shawnee can claim an interest in the fund- so long as ‘‘no conflict exists between the United States and the nonparty beneficia- ing that they receive for the shared service ries.’’ Id. (emphasis added). In the in- area. Manygoats, 558 F.2d at 558 (‘‘The stant case, however, some tribes may gain, financial and other benefits to the Tribe while some tribes may lose if the Citizen under the Exxon agreement give the tribe Potawatomi prevail. Thus, we agree with sufficient interest to satisfy the require- the district court here that the United ments of Subsection (a)(2)(i).’’). The Citi- States cannot adequately represent these zen Potawatomi argues, however, that we varied and potentially conflicting interests. have previously ruled that the Shawnee do Order at 10–11, II App. at 411–12. See not share a reservation with them and that Nation of Oklahoma v. Babbitt, it therefore follows that they do not share 117 F.3d 1489, 1497 (D.C.Cir.1997) (finding a service area with them either. absent Tribe was indispensable and distin- It is true that in Citizen Band Potawa- guishing Ramah as a case in which the tomi Indian Tribe of Oklahoma v. Collier, government ‘‘had no conflicting obligations 17 F.3d 1292, 1294 (10th Cir.1994), we held to the nonparty tribes’’); see also Makah that the United States had failed to ade- 910 F.2d at 560 (‘‘[T]he absent tribes had quately demonstrate that the Shawnee and no proper representative because potential the Citizen Potawatomi share a common intertribal conflicts meant the United former reservation. We did not hold, how- States could not represent all of them.’’). ever, that the United States could not pro- In sum, Defendants have sufficiently vide that proof. Moreover, our Collier demonstrated that the absent tribes can opinion did not decide whether the Shaw- claim an interest in the application of the nee and the Citizen Potawatomi share a funding formulas and that Defendants can- common service area, which is the rele- not adequately represent their varied in- vant question at issue here.1 Accordingly, terests. Accordingly, we are convinced we conclude the Shawnee do not present a

1. We are not persuaded by the Citizen Pota- before us is whether our Collier decision ren- watomi Nation’s argument that service areas ders the ’ interest in this litigation are generally defined by reservation bound- ‘‘patently frivolous.’’ Nothing in Collier com- aries. Brief For Appellant at 12. That con- pels a conclusion that service areas are de- cerns the merits of its claims, which are irrel- fined by reservation boundaries. evant to the issue at hand. The only question 1000 248 FEDERAL REPORTER, 3d SERIES

‘‘patently frivolous’’ claim that they share they are not ‘‘indispensable.’’ In deter- the service area with the Citizen Potawato- mining whether absent parties are indis- mi Nation and thus pursuant to Davis, pensable, the court must determine wheth- they can claim an interest in the Citizen er, in ‘‘equity and good conscience,’’ the Potawatomis’ action. action can continue without the party. Nor do we believe that Defendants can Fed.R.Civ.P. 19(b). In making this deter- adequately represent the Shawnees’ inter- mination, the court must weigh the extent ests. Unlike the claim concerning the to which a judgment rendered in the per- funding factors, where potential tribal son’s absence might be prejudicial to the conflicts were present, on this claim, the person or those already parties; the extent government officers would only have to to which, by protective provisions in the represent one tribe-the Shawnee. Never- judgment, by the shaping of relief, or oth- theless, the relevant question under Rule er measures, the prejudice can be lessened 19(a) is whether the United States and or avoided; whether a judgment rendered the tribe share the same interest. In this in the person’s absence will be adequate; case, Defendants have a duty to imple- and whether the plaintiff would have an ment national Native American policy. adequate remedy if the action is dismissed The Shawnee, on the other hand, have an for nonjoinder. Id. interest in receiving the funds at issue in The Citizen Potawatomi argue primarily this case. The two interests are not nec- about the lack of an adequate remedy if essarily the same. Manygoats, 558 F.2d the action is dismissed (and the prejudice at 558 (‘‘The Secretary must act in accord that it would accordingly suffer). Clearly, with the obligations imposed by sovereign immunity prevents the Citizen NEPATTTT The national interest is not Potawatomi from pursuing these claims in necessarily coincidental with the interest an alternative legal forum. Fletcher, 116 of the Tribe in the benefits which the F.3d at 1324–26. Moreover, if the Citizen Exxon agreement provides. When there Potawatomi cannot challenge Defendants’ is a conflict between the interest of the administrative decisions, then no one can. United States and the interest of Indians, As we have previously suggested: representation of the Indians is not ade- quate.’’). Dismissal of the action for nonjoinder of the Tribe would produce an anoma- In the circumstances of this case, we lous result. No one, except the Tribe, believe the district court did not abuse its could seek review of an environmental discretion by holding that the United impact statement covering significant States could not adequately represent the federal action relating to leases or Shawnees’ interest. Accordingly, the dis- agreements for development of natural trict court did not abuse its discretion by resources on Indian lands. deciding that the Shawnee were ‘‘neces- sary’’ for the purposes of the shared ser- Manygoats, 558 F.2d at 559; see also Ma- vice claim. kah, 910 F.2d at 559 n. 6 (holding that the absent parties would not be ‘‘indispens- IV able’’ because ‘‘Congress explicitly made FCMA regulations subject to judicial re- INDISPENSABLE PARTIES view. The Makah seek to use that tool to [8] The Citizen Potawatomi argue that question whether the 1987 regulations even if the absent tribes are ‘‘necessary,’’ were lawfully adopted in the first place.’’). CITIZEN POTAWATOMI NATION v. NORTON 1001 Cite as 248 F.3d 993 (10th Cir. 2001)

The relevant question before us is (10th Cir.1997) (‘‘[W]e are not constrained whether the district judge abused his dis- by the district court’s conclusions, but may cretion. We have noted the ‘‘strong policy affirm the district court on any legal favoring dismissal when a court cannot ground supported by the record.’’). Our join a tribe because of sovereign immuni- examination of § 328 of Congress’ 1999 ty.’’ Davis, 192 F.3d at 960. The district appropriations bill convinces us that it con- court relied on this factor as a reason for tains a moratorium clause that precludes holding that the absent tribes were indis- the future funding of residuals: pensable. Order at 10, II App. 411. Notwithstanding any other provision of Moreover, the district court ruled that the law, none of the funds in this Act may absent tribes would suffer substantial prej- be used to enter into any new or ex- udice if the action proceeded without them panded self-determination contract or and there was no way to lessen that preju- grant or self-governance compact pursu- dice. Id. at 9; II App. at 410. Here we ant to the Indian Self–Determination do not believe the district court abused its Act of 1975, as amended, for any activi- discretion by relying on these factors as ties not previously covered by such con- reasons for dismissing the action, even tracts, compacts or grants. Nothing in though the district court’s decision meant this section precludes the continuation of there is no way to challenge the conduct in those specific activities for which self- question. determination and self-governance con- tracts, compacts and grants currently V exist or the renewal of contracts, com- pacts and grants for those activities; im- REMAINING CLAIMS plementation of section 325 of Public The Citizen Potawatomi challenge De- Law 105–83 (111 Stat. 1597); or compli- fendants’ refusal to fund certain of their ance with 25 U.S.C. § 2005. functions which the Citizen Potawatomi Omnibus Consolidated and Emergency claim are ‘‘residual’’ and Defendants’ inter- Appropriations Act of 1999, Pub.L. No. pretation of the ‘‘moratorium’’ clause. 105–277, § 328. Brief For Appellant at 4–5. The district Congress has specified that ‘‘the provi- court did not address these claims in its sion of funds under [the Indian Self Deter- order, and Defendants do not address mination and Education Assistance Act] is them in their brief. The absent tribes do subject to the availability of appropria- not appear to have an interest in these tions.’’ Because the 1999 moratorium claims. Moreover, Defendants have not clause precludes the Citizen Potawatomi met their burden under Davis of ‘‘demon- from receiving additional funds, we are left strating the Tribe has an interest in [the] without an effective remedy to afford to claim and that the Tribe’s ability to protect them and thus lack jurisdiction over the that interest will be impaired or impeded if residual and moratorium claims. Accord- the suit proceeds in the Tribe’s absence.’’ ingly, we affirm their dismissal. Davis, 192 F.3d at 962. [11] The Citizen Potawatomi also ar- [9, 10] However, we may affirm the gue that the district court abused its dis- district court on any basis the record sup- cretion by dismissing the action without ports, even one the district court did not allowing further discovery. However, they reach. See Wolfgang v. Mid–America have not suggested the possibility of devel- Motorsports, Inc., 111 F.3d 1515, 1524 opment of any evidence that would be 1002 248 FEDERAL REPORTER, 3d SERIES

relevant to a Rule 19 inquiry. Indeed, the show pretext; (3) DOC could not be held district court assumed that the Citizen Po- liable for conduct of investigators; (4) tawatomis’ facts alleged were true, but guard was not similarly situated to white held that under those assumed facts, it had female guard who had allegedly kissed in- to dismiss the action. See Order at 4; II mate; and (5) employer was not entitled to App. at 405. The district court did not costs for couriers, court reporter, and oth- abuse its discretion by deciding the mo- er service providers. tions without allowing further discovery. Affirmed in part, and reversed in part. Accordingly, we affirm the district Lucero, C.J., concurred and filed opin- court’s dismissal of the action. ion.

, 1. Federal Courts O802 In reviewing a district court’s order of summary judgment, Court of Appeals draws all reasonable inferences from the evidence in favor of the plaintiff in review- Lee C. ENGLISH, Plaintiff–Appellant, ing an order of summary judgment. Fed. v. Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. COLORADO DEPARTMENT OF COR- 2. Federal Civil Procedure O2497.1 RECTIONS and Aristedes Zavaras, in In order to survive a motion for sum- his official capacity, Defendants–Ap- mary judgment in Title VII action, em- pellees. ployee relying on McDonnell Douglas No. 99–1452. bears an initial burden of establishing a prima facie case intended to eliminate the United States Court of Appeals, most common nondiscriminatory reasons Tenth Circuit. that might account for the adverse employ- April 26, 2001. ment action. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

African-American prison guard 3. Civil Rights O378 brought action against his former employ- Once employee has established a pri- er, the Colorado Department of Correc- ma facie case of discrimination under Title tions (DOC), alleging race discrimination VII, the burden then shifts to the employ- in violation of Title VII, § 1981, and § 1983. er to articulate some legitimate, nondis- The DOC moved for summary judgment. criminatory reason for taking an adverse The United States District Court for the employment action against the employee; District of Colorado, Lewis T. Babcock, J., if employer successfully meets its burden granted DOC’s motion and guard appeal- of production, the burden shifts back to ed. The Court of Appeals, Ebel, Circuit the employee to put forth evidence suffi- Judge, held that: (1) DOC’s proffered rea- cient to allow a jury to find that employer’s son for terminating guard was not pretext reason is pretextual, meaning that it is for race discrimination; (2) evidence that unworthy of belief. Civil Rights Act of co-worker was denied promotions in retali- 1964, § 701 et seq., 42 U.S.C.A. § 2000e et ation for previous Title VII claim did not seq.