Wyandotte Nation v. Salazar

Filing 53

ORDER DIRECTING SUPPLEMENTAL BRIEFING. The Court directs the Secretary and the State to submit supplemental briefs addressing the impact of Patchak on the subject matter jurisdiction issues raised in the Secretary's motion to dismiss and the St ate's response thereto. The Secretary's brief shall be filed on or before fourteen (14) days of the date of this Order; the State's response shall be filed within fourteen (14) days thereafter; there will be no reply. Signed by District Judge Julie A. Robinson on 7/3/2012. (pp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WYANDOTTE NATION,

)
)
Plaintiff,
)
)
v.
)
)
KENNETH L. SALAZAR, in his official )
capacity as Secretary of the United States )
Department of the Interior,
)
)
Defendant,
)
)
and
)
)
STATE OF KANSAS, ex rel.
)
DEREK SCHMIDT, Attorney General, )
)
Intervening Defendant.
)
__________________________________ )

Case No. 11-2656-JAR-DJW

ORDER DIRECTING SUPPLEMENTAL BRIEFING
Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this
lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the
Secretary”), seeking an order from this Court compelling the Secretary to comply with his
mandatory duty to accept title to certain land and hold it in trust for the Nation’s benefit, as
specifically required by Public Law 98-602, 98 Stat. 3149 (1984) (“P.L. 98-602”). The State of
Kansas (“the State”) was permitted to intervene as of right under Fed. R. Civ. P. 24(a) (Doc. 41)
and in its Answer, brought counterclaims against the Nation and cross-claims against the
Secretary. This matter is before the Court on the Nation and the Secretary’s Motions to Dismiss
the State’s claims for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) (Docs. 45,
47).

In its cross-claim, the State seeks declaratory relief and an injunction prohibiting the
Secretary from acquiring the Park City Land in trust. The Secretary moves for dismissal of the
State’s cross-claim because the State has failed to identify an applicable waiver of sovereign
immunity or establish that it has standing under Article III of the Constitution, and thus this
Court lacks subject matter jurisdiction. The State counters that this Court has supplemental
jurisdiction over the cross-claim under 28 U.S.C. § 1367, and that dismissal of its cross-claim
would “irretrievably impair” the State’s rights “if this Court proceeds to address the substantive
merits of the Plaintiff’s claims,” because once the Park City Land is acquired into trust, the Quiet
Title Act’s Indian lands exception preserves the United States’ immunity from suit, and it may or
will lose the opportunity of judicial review if the land is taken into trust.
On June 18, 2012, after the parties’ submissions were under advisement, the Supreme
Court issued its opinion in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak,1 which addresses the question of whether suits challenging the United States’
acquisition of land in trust for Indian tribes after the United States acquires title are actions
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. or the Quiet Title Act
(“QTA”), 28 U.S.C. § 2409a, abrogating the Tenth Circuit’s decision holding that the United
States has immunity from such suits.2 Accordingly, the Court directs the Secretary and the State
to submit supplemental briefs addressing the impact of Patchak on the subject matter jurisdiction

1

—S. Ct. —, 2012 WL 2202936 (June 18, 2012).

2
See Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-62 (10th Cir. 2004); see also Gov. of
Kan. v. Kempthorne, 516 F.3d 833, 843 (10th Cir. 2008) (following Neighbors, id.).

2

issues raised in the Secretary’s motion to dismiss and the State’s response thereto.3 The
Secretary’s brief shall be filed on or before fourteen (14) days of the date of this Order; the
State’s response shall be filed within fourteen (14) days thereafter; there will be no reply.
IT IS SO ORDERED.
Dated: July 3, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

3
The Court does not request supplemental briefing from the Nation on its motion to dismiss, which is
premised on the separate issue of tribal sovereign immunity.

3