                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 05-2106
                                  ___________


Sac & Fox Tribe of the Mississippi       *
in Iowa, Election Board,                 *
                                         *
             Appellant,                  *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Northern District of Iowa.
Bureau of Indian Affairs; Midwest        *
Regional Director, and Office of the     *
Assistant Secretary – Indian Affairs;    *
Aurene M. Martin; First Assistant &      *
Principal Advisor; Sac & Fox Tribe of *
the Mississippi in Iowa, Tribal Council, *
                                         *
             Appellees.                  *

                                  ___________

                            Submitted: January 12, 2006
                               Filed: March 3, 2006
                                ___________

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.
       Sac & Fox Tribe of the Mississippi River in Iowa Election Board (Peters
Election Board) appeals the district court’s1 dismissal of its case for lack of federal
jurisdiction. We affirm.

                                          I.
       The Sac and Fox Tribe of the Mississippi in Iowa (Tribe) is a federally
recognized Indian tribe that operates the Meskwaki Casino•Bingo•Hotel (Casino).
The Tribe’s constitution provides that a tribal council is to govern the Tribe and an
election board is to conduct and supervise tribal elections. At the time the events
underlying this action began, Alex Walker, Jr., led the tribal council (Walker Elected
Council) and Leo Dean Peters led the election board (Peters Election Board).

       In the fall of 2002, members of the Tribe who were dissatisfied with the
conduct of the Walker Elected Council circulated petitions to seek a special election
to recall the entire council. The tribal constitution mandates a recall procedure when
thirty percent of the eligible voters sign such a petition. The petitioners submitted
more than the requisite number of signatures, but the Walker Elected Council refused
to conduct a recall election, alleging forgeries and irregularities in the petitions. The
Walker Elected Council did not claim to have conducted an investigation, but stated
only that it was satisfied that the irregularities were sufficient to warrant not holding
a recall election.

       Under the tribal constitution, the elected council’s responsibilities include
dispute resolution and the duty to call special elections. At the time the petition was
submitted, the elected council provided the only avenue of appeal for the dissatisfied
tribal members; the Tribe did not have a tribal court. On March 3, 2003, the
hereditary chief of the Tribe, Charlie Old Bear, appointed a new tribal council led by


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                          -2-
Homer Bear, Jr. (Bear Appointed Council). The Bear Appointed Council claimed
authority to govern the Tribe based on the traditional form of tribal government that
predated the tribal constitution.

       The members of the Bear Appointed Council, who previously led the recall
petition effort, did not seek assistance from the Bureau of Indian Affairs (BIA) in
securing the recall election before claiming authority to govern the Tribe. When the
Bear Appointed Council sought BIA recognition as the new government of the tribe,
the BIA refused to involve itself in what it characterized as an internal tribal matter.
In late March 2003, the Bear Appointed Council seized control of the Casino, the
tribal center, other tribal facilities, and some of the Tribe’s finances.

       On April 8, 2003, the Walker Elected Council filed a declaratory judgment suit
in the United States District Court for the Northern District of Iowa, asking the court
to determine whether the Bear Appointed Council or the Walker Elected Council was
authorized to govern the Tribe and control the Casino. On April 15, 2003, the district
court dismissed the action, concluding that it lacked subject matter jurisdiction to
decide an intratribal dispute. Sac & Fox Tribe of the Mississippi in Iowa v. Bear, 258
F. Supp. 2d 938 (N.D. Iowa 2003).

       Because the Walker Elected Council was the federally recognized governing
body, but the Bear Appointed Council had control of the Casino and the tribal
government, the National Indian Gaming Commission (NIGC) issued a Notice of
Violation to both Councils. Ultimately, the disorder led to a lawsuit and the Casino’s
closure. In re: Sac & Fox Tribe of the Mississippi in Iowa/Meskwaki Casino Litig.,
264 F. Supp. 2d 830 (N.D. Iowa 2003), aff’d in part, rev’d in part, 340 F.3d 749 (8th
Cir. 2003) (Meskwaki Casino Litigation).

       On October 21, 2003, the Peters Election Board supervised a tribal council
election and a recall election on behalf of the Walker Elected Council. One hundred

                                          -3-
eighty-one tribal members cast their ballots in that election. The same day, a
dissident group that had boycotted the Peters Election Board’s election held a
separate election on behalf of the Bear Appointed Council. Four hundred two tribal
members cast their ballots in that election. On October 24, 2003, Larry Morrin, the
BIA Regional Director, acknowledged and combined the results of both elections.
Morrin called for the appointment of a new election board and requested that the new
election board conduct a special election. On November 4, 2003, a special election
was held. On November 7, 2003, Morrin stated that the federal government would
recognize the Elected Council of the dissident group, led by Homer Bear, Jr. (Bear
Elected Council).

      The Peters Election Board appealed Morrin’s decision to create a new election
board and applied to stay further action by Morrin. Aurene Martin, Principal Deputy
Assistant Secretary of Indian Affairs, assumed jurisdiction over the appeal. Although
she did not receive any briefing or hear argument from the Peters Election Board,
Martin affirmed Morrin’s decision to recognize the Bear Elected Council.

                                             II.
       The Peters Election Board filed suit against the BIA on January 2, 2004,
objecting to the federal recognition of the Bear Elected Council. In Count I, the
Peters Election Board sought judicial review of the BIA’s decision under the
Administrative Procedures Act (the APA), 5 U.S.C. § 702. In Counts II and III, the
Peters Election Board sought a declaratory judgment that the BIA had unlawfully
interfered with tribal elections and a writ of mandamus requiring the BIA to recognize
the tribal council elected at the election administered by the Peters Election Board.
The BIA moved to dismiss the complaint for lack of subject matter jurisdiction. On
June 10, the district court denied the BIA’s motion to dismiss as to Count I, and
granted it as to Counts II and III. D. Ct. Order of June 10, 2004, at 12.




                                         -4-
       On September 15, 2004, the Bear Elected Council appointed a new election
board, led by Virginia Eagle (Eagle Election Board). Although not a party to the case
before the district court, the Eagle Election Board appeared on October 5, 2004, and
moved to dismiss the Peters Election Board’s complaint. The Eagle Election Board
alleged that, as a matter of tribal law, an election board does not have the power to
bring suit in federal court. It further argued that, if tribal law granted that legal
authority to an election board, then the Eagle Election Board was the plaintiff. As
such, it moved for voluntary dismissal of the case.

       The district court concluded that it would necessarily have to recognize the
Peters Election Board as the proper plaintiff to reach the merits of the case.
Accordingly, the district court dismissed the case for lack of subject matter
jurisdiction. D. Ct. Order of March 2, 2005, at 13–14.

                                          III.
      On appeal, the Peters Election Board argues that the district court had subject
matter jurisdiction to review the BIA’s recognition of the Bear Elected Council under
28 U.S.C. § 1331, in conjunction with the APA, 5 U.S.C. § 702. We review questions
of subject matter jurisdiction de novo, Longie v. Spirit Lake Tribe, 400 F.3d 586,
588–89 (8th Cir. 2005), and conclude that the district court properly held that it
lacked subject matter jurisdiction to resolve this dispute.

       In cases involving tribal affairs, we exercise section 1331 jurisdiction only
when federal law is determinative of the issues involved. Longie, 400 F.3d at 589.
“Jurisdiction to resolve internal tribal disputes [and] interpret tribal constitutions and
laws . . . lies with Indian tribes and not in the district courts.” Meskwaki Casino
Litig., 340 F.3d at 763. We have characterized election disputes between competing
tribal councils as nonjusticiable, intratribal matters. Id.; see Goodface v. Grassrope,
708 F.2d 335, 339 (8th Cir. 1983).



                                           -5-
        Our opinions in Meskwaki Casino Litigation and Goodface v. Grassrope are
instructive. In Goodface, a former tribal council refused to recognize the authority
of the newly elected tribal council. The BIA refused to intervene and instead
recognized both councils until the tribe resolved the dispute. On appeal of the BIA’s
decision under the APA, the district court examined tribal law, addressed the merits
of the election dispute, and ordered the BIA to recognize the newly elected tribal
council. Goodface, 708 F.2d at 337. We reversed the district court’s order, stating
that “the district court overstepped the boundaries of its jurisdiction in interpreting
the tribal constitution and bylaws and addressing the merits of the election dispute.”
Id. at 339.

       Similarly, in Meskwaki Casino Litigation, we held that the district court lacked
jurisdiction to decide a dispute between the Walker Elected Council and the Bear
Appointed Council. 340 F.3d at 764. In that case, the Bear Appointed Council
brought suit against the United States and the NIGC Chairman, and the Walker
Elected Council intervened. The Walker Elected Council sought an order enjoining
the Bear Appointed Council from conducting gaming at the Casino and requiring the
Bear Appointed Council to surrender control of the Casino, its revenues, the tribal
government buildings, and bank accounts containing tribal monies. Because the
Walker Elected Council sought “a form of relief that the federal courts cannot
provide, namely, the resolution of the internal tribal leadership dispute,” we held that
the claims were nonjusticiable. Id. at 763.

        To reach the merits of this case, the district court would necessarily have to
construe and apply tribal law to determine whether an election board has authority to
file suit on behalf of the Tribe. The district court would then have to determine which
election board is the proper plaintiff, the Peters Election Board (appointed by the
Walker Elected Council) or the Eagle Election Board (appointed by the Bear Elected
Council). In Meskwaki Casino Litigation, we specifically held that the district court
lacked jurisdiction to determine which tribal faction rightfully controlled the Sac &

                                          -6-
Fox Tribe of the Mississippi in Iowa. The exact same issue was before the district
court here, and thus it appropriately dismissed the case for lack of subject matter
jurisdiction.

       Finally, we must address the unorthodox procedure followed in this case. The
Eagle Election Board, rather than intervening as required by Rule 24 of the Federal
Rules of Civil Procedure, filed a motion to dismiss as a purported plaintiff. The
Peters Election Board argues that the district court erred in recognizing the Eagle
Election Board as a party to the action. Any error by the district court in this regard
was harmless, however, for “[w]henever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss
the action.” Fed. R. Civ. P. 12(h)(3). Even in the absence of a challenge from any
party, courts have an independent obligation to determine whether subject matter
jurisdiction exists. Arbaugh v. Y&H Corp., No. 04-944, 2006 WL 397863, at *7
(U.S.). Once the district court became aware that it lacked subject matter jurisdiction,
it had no choice but to dismiss the claim. See id.

      The order of dismissal is affirmed. The motion to dismiss, the motion for
sanctions, the request for imposition of discipline, the motions to strike and to
supplement the record, and the motion for permission to file a reply are denied.
                      ______________________________




                                           -7-
