                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 27 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 THE KICKAPOO TRIBE OF
 INDIANS,

          Plaintiff-Appellant,
 v.                                                     No. 00-3095
 ADA E. DEER, Assistant Secretary of              (D.C. No. 96-CV-4130)
 the Interior for Indian Affairs;                        (D. Kan.)
 JIMMIE FIELDS, Area Director of the
 Bureau of Indian Affairs for the
 Muskogee Area Office; MITCHELL
 CHOUTEAU, Area Director of the
 Bureau of Indian Affairs for the
 Anadarko Area Office; GALE A.
 NORTON, 1 Secretary of the Interior;
 ROBERT T. ANDERSON, Associate
 Solicitor for the United States
 Department of the Interior; UNITED
 STATES OF AMERICA,

          Defendants-Appellees.




                             ORDER AND JUDGMENT         2




      1
       Pursuant to Fed. R. App. P. 43(c)(2), Gale A. Norton is substituted for
Bruce Babbitt, Secretary of the Interior, as a defendant in this action.
      2
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before HENRY, BRISCOE,         Circuit Judges, and    JENKINS , District Judge 3.


      Plaintiff Kickapoo Tribe in Kansas appeals the district court’s dismissal of

its action on the grounds that the Wyandotte Tribe of Oklahoma was a necessary

and indispensable party. We exercise jurisdiction over the Kickapoo Tribe’s

appeal pursuant to 28 U.S.C. § 1291, reverse the district court’s dismissal of the

action, and remand for further proceedings.

                                           I.

      The relevant factual history of this case is recounted in detail in our

opinion disposing of a companion appeal,        Sac and Fox Nation of Missouri et al.

v. Babbitt , No. 00-3063 (10th Cir. Feb. 27, 2001). For purposes of brevity, that

history will not be repeated here.

      The Kickapoo Tribe filed this action on July 12, 1996, challenging (1) the

Secretary’s decision to acquire, pursuant to Pub. L. 98-602, a tract of land in

downtown Kansas City, Kansas (the Shriner Tract) in trust for the Wyandotte

Tribe; and (2) the Secretary’s conclusion that the Wyandotte Tribe could lawfully

conduct gaming on the Shriner Tract under the Indian Gaming Regulatory Act, 25

U.S.C. §§ 2701-19. The complaint also asserted claims for monetary damages

against the Wyandotte Tribe. After more than two years of litigation, a consent


      3
         The Honorable Bruce S. Jenkins, Senior United States District Judge,
District of Utah, sitting by designation.

                                           2
order was filed on September 2, 1998, stating that the Kickapoo Tribe acceded in

the sovereign immunity of the Wyandotte Tribe. As a result of the sovereign

immunity finding, the Wyandotte Tribe was dismissed as a party defendant in this

action. Approximately two months later, the Kickapoo Tribe filed a motion for

judgment on the merits of its claims against the Secretary. The district court

rejected the motion and dismissed the action on the grounds that the Wyandotte

Tribe was a necessary and indispensable party under Federal Rule of Civil

Procedure 19.

                                            II.

       The sole question in this appeal is whether the district court erred in

dismissing the Kickapoo Tribe’s action against the Secretary on the grounds that

the Wyandotte Tribe was a necessary and indispensable party to the action.       4
                                                                                     In

Section II of our opinion disposing of the companion appeal,      Sac and Fox Nation

of Missouri et al. v. Babbitt   , we addressed an identical issue and concluded that

the Wyandotte Tribe was not a necessary and indispensable party to an action



       4
         Although the Secretary argues the Kickapoo Tribe’s claims are barred by
the Quiet Title Act (QTA), 28 U.S.C. § 2409(a), the district court did not reach
that issue. Instead, the district court dismissed the Kickapoo Tribe’s claims
solely on the grounds that the Wyandotte Tribe was an indispensable party to the
action. Further, even if otherwise applicable, it is apparent the QTA would not
bar the Kickapoo Tribe’s challenge to the Secretary’s determination that the
Huron Cemetery is a “reservation” for purposes of the IGRA. For these reasons,
we do not reach the issue of whether the QTA bars the Kickapoo Tribe’s claims.

                                            3
challenging the Secretary’s determination regarding the Shriner Tract. Because

the actions are substantially similar, we reach the same conclusion here,

incorporating by reference our discussion disposing of the issue in the companion

appeal. We reverse the district court’s order of dismissal and remand this case to

the district court for further proceedings.

                                         III.

      REVERSED and REMANDED for further proceedings.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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