                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      August 21, 2006
                               TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                      Clerk of Court

 M IA M I TRIBE OF OKLAHOM A,
             Plaintiff-Appellant,                       No. 05-3085
 v.                                             (D.C. No. 02-CV-2591-CM )
 U N ITED STA TES O F A M ER ICA;                        (D . Kan.)
 GALE NORTON, Secretary, United
 States D epartment of Interior; NEAL
 A. M CCALEB, Assistant Secretary,
 United States D epartment of Interior;
 RODERICK E. W ALSTON, Solicitor,
 United States D epartment of Interior,
             Defendants-Appellees.



                          OR D ER AND JUDGM ENT *


Before L UC ER O, M cK AY, and M cCO NNELL, Circuit Judges.




      This dispute centers on whether the M iami Tribe (“Tribe”) can, under the

Indian Gaming Regulatory Act (“IGRA”), conduct gaming on a tract of land

known as the M aria Christiana Reserve No. 35 (“the Reserve”) in Kansas. Any

gaming on Indian land must be approved by the National Indian Gaming



      *
       This order and judgment is not binding precedent, except under the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.
Commission (“NIGC”), which approval is subject to judicial review. The Tribe

argues that a 2002 Department of the Interior (“DOI”) Opinion Letter violated the

Joint Stipulation entered into by the Tribe, the NIGC, and the DOI in earlier

litigation. The Joint Stipulation would allow the Tribe to conduct gambling

operations on the Reserve. But after the Joint Stipulation was made, the state of

Kansas–not a party to the stipulation–sought and received a preliminary

injunction that prevented the Tribe from commencing the gaming operations. The

Kansas litigation resulted in a remand to the NIGC for further consideration of the

Tribe’s gaming application, and the NIGC has yet to issue a final decision. It was

in response to our decision in the Kansas case that the DOI issued its Opinion

Letter. Because our jurisdiction is limited to review of final agency action and

because the federal government has not waived its sovereign immunity to judicial

enforcement of the Joint Stipulation, we lack jurisdiction to hear the Tribe’s

claims.

                                  I. B ACKGROUND

      This case follows three previous cases, one of which reached this court in

2001. A fuller treatment of this history is available in the published opinions

from the earlier cases, especially in Kansas v. United States, 249 F.3d 1213,

1218-21 (10th Cir. 2001) (M iam i III). Here we provide a brief summary of the

history and highlight the portions of the dispute’s history relevant to our

resolution of the issues before us.

                                         -2-
      A.     M iam i Tribe of Oklahom a v. United States, 927 F. Supp. 1419 (D .
             K an. 1996) (M iam i I)

      In 1995, the Tribe appealed to the district court the NIGC’s rejection of its

proposed contract for gaming on the Reserve. M iami I, 927 F. Supp. at 1420.

The NIGC found, and the district court affirmed, that the Reserve did not

constitute Indian land as defined in the IGRA and, therefore, did not qualify for

gaming. Id. at 1423-24. The district court noted that the Tribe had left the

Reserve by the 1870s and that Congress expressly abrogated any claim the Tribe

might have to the Reserve no later than 1924. Id. at 1424-27. The district court

held that the Tribe could not demonstrate jurisdiction over the Reserve based on

its historical association with the Reserve. But the district court did not reach the

question of whether the Tribe’s recent activities could reestablish its jurisdiction

over the Reserve. Id. at 1427. The Tribe did not appeal the holdings of the

district court regarding claims of historical jurisdiction and instead sought to

reestablish its jurisdiction over the Reserve to make another attempt at NIGC

approval.

      B.     M iam i Tribe of Oklahom a v. United States, 5 F. Supp. 2d 1213
             (D. K an. 1998) (M iam i II)

      In 1996, and pursuant to an amendment to the Tribe’s constitution, the

present owners of the Reserve were admitted to the Tribe as members. M iam i II,

5 F. Supp. 2d at 1215. After their admission, the new members leased the

                                         -3-
Reserve to the Tribe so the Tribe could conduct gaming operations. Id. Shortly

after completing the lease, the Tribe went back to the NIGC and asked it to

reexamine its earlier decision in light of the Reserve’s owners’ enrollment in the

Tribe. Id. The NIGC again denied the Tribe’s application, but on appeal to the

district court the case was remanded to the NIGC because the commission “failed

to provide a reasoned explanation for its action” and the “limitations in the

administrative record ma[de] it impossible to conclude the action was the product

of reasoned decisionmaking.” Id. at 1219 (quotations omitted).

      W hile the case was on remand to the NIGC, the parties came to an

agreement that they memorialized in the Joint Stipulation. In return for the

Tribe’s ceasing its litigation of the matter, the NIGC stipulated that the Reserve

constituted Indian land as defined by the IGRA, and the NIGC approved the

Tribe’s application for a gaming contract between it and a third-party. Stipulation

and Agreement, 1-2 (D. Kan. Jan. 15, 1999). The district court approved the

agreement and dismissed the case. Order of Dismissal, 1 (D. Kan. Jan. 15, 1999).

      C.     Kansas v. United States, 249 F.3d 1213 (10th C ir. 2001)
             (M iam i III)

      Unhappy that the Joint Stipulation would lead to gaming on the Reserve,

the State of Kansas sought declaratory and injunctive relief under the

Administrative Procedures Act (“APA ”) from the decision that the Reserve was

Indian land. M iam i III, 249 F.3d at 1220. Though not an original party to the



                                         -4-
case, the Tribe voluntarily intervened as a defendant. Id. at 1220-21. The district

court granted K ansas a preliminary injunction that stayed action on the NIGC

decision regarding the Tribe’s control over the Reserve. Id. at 1218. The

defendants then challenged the preliminary injunction in an interlocutory appeal.

Id.

      W e applied Chevron deference when evaluating the NIG C’s decision. Id. at

1228-29. But even with that deferential standard, in upholding the preliminary

injunction, we held that “[t]he NIGC’s failure to thoroughly analyze the

jurisdictional question in its most recent decision likely renders its conclusion

that the tract constitutes ‘Indian lands’ within the meaning of IGRA arbitrary and

capricious.” Id. at 1229. Because the Tribe had not appealed M iami I, it was

foreclosed from making a claim to historical jurisdiction over the Reserve. Id. at

1230. W e noted that “‘Congress possesses plenary power over Indian affairs,

including the power to . . . eliminate tribal rights.’” Id. at 1229 (quoting South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)). The Tribe could not,

therefore, “unilaterally create sovereign rights in itself that do not otherwise

exist.” Id. As M iam i I established, Congress expressly abrogated the Tribe’s

claim to the Reserve no later than 1924. Id. at 1230. W e concluded that “[a]n

Indian tribe’s jurisdiction derives from the will of Congress, not from the consent

of fee owners pursuant to a lease under which the lessee acts.” Id. at 1231.

Because Kansas had a substantial likelihood of success on the merits of the case,

                                          -5-
w e affirm ed the district court’s grant of the preliminary injunction, and we

remanded the case for further proceedings “not inconsistent with [the] opinion.”

Id. The district court then remanded the case to the NIGC for further review of

the case.

      D.     The Instant Case (M iam i IV)

      Following the remand in M iam i III, the NIGC sought from the DOI another

opinion letter to take into account M iam i III’s holding. The DOI opinion letter

contradicted the Joint Stipulation and reasoned that the Tribe could not, without

Congressional action, regain the sovereignty over the Reserve that Congress had

expressly abrogated years ago. The Tribe now argues that the DOI opinion letter

is arbitrary and capricious and seeks equitable relief under the A PA, and it also

seeks to enjoin the defendants from breaching fiduciary duties allegedly owed the

Tribe. The district court held that the Tribe’s claims were in essence an attempt

to enforce a contract–the Joint Stipulation–and that any claim against the United

States for more than $10,000 and based in contract was outside the district court’s

jurisdiction. Finding no claim for monetary damages under $10,000, the district

court dismissed the Tribe’s claims for lack of subject matter jurisdiction. The

Tribe now reasserts the same arguments on appeal.

                                    II. A NALYSIS

      W e do not have jurisdiction over the Tribe’s claim. Essentially, the Tribe

is seeking through the federal courts to preempt the 2002 DOI Opinion Letter and

                                          -6-
entrench M iam i II’s Joint Stipulation as the final resolution of the Tribe’s claims

to jurisdiction over the Reserve. The Tribe offers two alternative theories of

federal jurisdiction in this case: (1) that the DOI Opinion Letter constitutes final

agency action and is, therefore, reviewable under the APA , and (2) that the

government’s violation of fiduciary duties that it allegedly owes the Tribe is

enforceable through the A PA . The Tribe’s first theory fails because the DOI

Opinion Letter was not a final agency action and the APA , therefore, does not

allow for its review. The Tribe’s second theory fails because it is really an

attempt at an equitable remedy–to enforce the Joint Stipulation as a contract–that

is beyond the federal courts’ power.

      A. The DO I O pinion Letter Is Not “Final Agency A ction”

      The APA limits judicial review of agency actions to “final agency action

for which there is no other adequate remedy,” and only during review of final

agency action does the APA allow for review of “intermediate agency action.” 5

U.S.C. § 704; see also M arolt Park v. United States Dep’t of Transp., 382 F.3d

1088, 1093-94 (10th Cir. 2004) (“Ordinarily, whether the issues are fit for review

depends on whether the plaintiffs challenge a final agency action.”). The APA

defines “agency action” as an “agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The Tribe

bears the burden of demonstrating that the agency action challenged–the DOI

Opinion Letter–is final. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882

                                          -7-
(1990); Catron County v. United States Fish & W ildlife, 75 F.3d 1429, 1434 (10th

Cir. 1996). To determine whether an agency action is final, “we look to whether

its impact is direct and immediate; whether the action marks the consummation of

the agency’s decisionmaking process; and whether the action is one by which

rights or obligations have been determined, or from which legal consequences

will flow.” Colorado Farm Bureau Fed’n v. United States Forest Serv., 220 F.3d

1171, 1173-74 (10th Cir. 2000) (citations and quotations omitted).

      The DOI Opinion Letter is not final agency action. Congress has vested the

authority to decide gaming contracts under the IG RA with the NIG C. 25 U.S.C. §

2711 (“Subject to the approval of the Chairman [of the NIGC], an Indian tribe

may enter into a management contract [for gaming].”). Only the NIGC’s final

determination regarding a gaming contract is final agency action subject to appeal

under the APA . 25 U.S.C. § 2714 (“Decisions made by the Commission pursuant

to [§ 2711] shall be final agency decisions for purposes of appeal . . . .”); see also

25 C.F.R. § 533.1(b) (outlining that “[gaming c]ontract approval shall be

evidenced by a Commission document dated and signed by the Chairmen [and

that n]o other means of approval shall be valid”). The DOI Opinion Letter is only

a part of the process that will eventually result in the final NIG C action. See

M em. of Agreement Between the Nat’l Indian Gaming Comm’n and the Dep’t of

the Interior, 1-2 (M ay 31, 2006), available at

www.nigc.gob/ReadingRoom/M emorandumofAgreement/tabid/126/Default.aspx

                                          -8-
(outlining the process by which the NIGC may seek legal advice from DOI “for

certain actions requiring action under IGRA dependant upon the determination of

Indian lands” and describing the process by which the NIGC and DOI can resolve

any differences of legal opinion regarding the determination of Indian lands).

The DOI Opinion Letter is not the final product of agency deliberation regarding

the Tribe’s jurisdiction over the Reserve and does not have a direct or immediate

impact on the Tribe.

      The Tribe argues that the Opinion Letter has determined its rights and

obligations and is, therefore, final agency action. The Opinion Letter may predict

how the N IG C w ill eventually resolve the Tribe’s gaming application, but if we

intervene at this stage of the agency decisionmaking process, we would be

inappropriately imposing on the NIG C what w e think its final decision will be.

The APA and its “final agency action” requirement for judicial review requires

that w e avoid that intervention. See 5 U.S.C. § 704 (allowing for judicial review

of “[a] preliminary, procedural, or intermediate agency action or ruling not

directly reviewable . . . on the review of the final agency action”); 13A Charles

Alan W right et al., Federal Practice & Procedure § 3532.6 (2d ed. 1984)

(“[Courts] should not intrude into matters that are better left to ongoing

administrative disposition . . . .”).

      B.     The Joint Stipulation Is a Contract and Remedies for Any
             V iolations of It M ust Be Sought in the Court of Claim s



                                         -9-
      The federal government has not waived its sovereign immunity from suit to

compel the enforcement of the Joint Stipulation, and we, therefore, lack

jurisdiction to entertain the Tribe’s equitable argument. The Tribe relies on

statutes conferring general jurisdiction on the federal courts found in 28 U.S.C.

§§ 1331–federal question jurisdiction, 1361–mandamus jurisdiction, and

1362–Indian tribe jurisdiction–to claim jurisdiction in federal court over its

claims. It is the APA ’s waiver of sovereign immunity for injunctive relief, the

Tribe argues, that allows for the Tribe to seek judicial enforcement of the Joint

Stipulation. See 5 U.S.C. § 702. However, in addition to allowing for injunctive

relief, § 702 also states that “[n]othing herein . . . confers authority to grant relief

if any other statute that grants consent to suit expressly or impliedly forbids the

relief which is sought.” W e have held that “the waiver of sovereign immunity in

the APA does not extend to actions founded upon a contract with the United

States. . . . Under the Tucker Act . . . the Claims Court has exclusive jurisdiction

over any suit against the United States which is ‘founded upon any express or

implied contract with the United States.’” Eagle-Picher Indus., Inc. v. United

States, 901 F.2d 1530, 1532 (10th Cir. 1990) (quoting 28 U.S.C. § 1346(a)(2)).

The Joint Stipulation is a settlement agreement and is treated like a contract for

enforcement purposes. See United States v. ITT C ont’l Banking Co., 420 U.S.

223, 238 (1975). Because the Joint Stipulation is a contract, the Tucker Act

precludes the Tribe’s A PA-based sovereign immunity argument and we are

                                           -10-
without jurisdiction to compel specific performance.

      That the Tribe and the federal government have a fiducial relationship does

not alter this sovereign immunity analysis. The federal government’s fiducial

relationship with Indian tribes is well established. See Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1 (1831). The Tribe argues that we should view the

court’s power to intervene in light of this special relationship and afford the

equitable relief the Tribe requests. W e recognize the special, fiducial relationship

that exists between the Tribe and the federal government, but we cannot intervene

in this dispute because the federal government has not waived its sovereign

immunity. Additionally, if the NIGC accepts the 2002 DOI Opinion Letter and

denies the Tribe’s application for a gaming contract–a reviewable final agency

action–the Tribe will have the opportunity to challenge the DOI letter as part of

that agency action in federal court.

                                 III. C ONCLUSION

      The Tribe’s action prematurely challenges the DOI O pinion Letter in its

attempt to enforce the Joint Stipulation. W e lack jurisdiction to hear this

challenge of intermediate agency action. Under the Tucker Act, we also lack the

authority to enforce the Joint Stipulation. W e therefore AFFIRM the district




                                         -11-
court’s dismissal of the Tribe’s claims for lack of subject matter jurisdiction.



                                        Entered for the Court


                                        M onroe G. M cKay
                                        Circuit Judge




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