                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       August 13, 2018
                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

ALABAMA-QUASSARTE TRIBAL
TOWN,

      Plaintiff - Appellant,

v.                                                         No. 17-7003

UNITED STATES OF AMERICA; RYAN
ZINKE, Secretary of the United States
Department of the Interior; JAMES
CASON, Associate Deputy of the
Department of the Interior; STEVEN
MNUCHIN, Secretary of the Treasury;
MUSCOGEE (CREEK) NATION,

      Defendants - Appellees.
                      _________________________________

                     Appeal from the United States District Court
                        for the Eastern District of Oklahoma
                          (D.C. No. 6:06-CV-00558-RAW)
                       _________________________________

Eugene K. Bertman, Talley, Turner & Bertman, Norman, Oklahoma for Plaintiff-
Appellant.

Brian C. Toth, Environment & Natural Resources Division, Department of Justice,
Washington D.C. (Jeffrey H. Wood, Eric Grant, Anthony P. Hoang, and Jody H.
Schwarz, Environment & Natural Resources Division, Department of Justice; Kenneth A.
Dalton and Shani N. Walker, Office of the Solicitor, Department of the Interior; Thomas
Kearns, Office of the Chief Counsel, Bureau of the Fiscal Service, Department of the
Treasury, with him on the brief), for Defendants-Appellees United States of America,
Ryan Zinke, James Cason, and Steven Mnuchin.
Keith B. Bartsch, Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, Tulsa
Oklahoma (Galen L. Brittingham, Atkinson, Haskins, Nellis, Brittingham, Gladd &
Fiasco, with him on the brief), for Defendant-Appellee Muscogee (Creek) Nation.
                        _________________________________

Before LUCERO, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

LUCERO, Circuit Judge.
                    _________________________________

      Alabama-Quassarte Tribal Town (“AQTT”) appeals several orders entered in

favor of the United States, the Secretary and Associate Deputy Secretary of the U.S.

Department of the Interior (“DOI”), the Secretary of the U.S. Department of the

Treasury, and the Muscogee (Creek) Nation (the “Creek Nation”). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      AQTT is a federally recognized Indian Tribe organized under the Oklahoma

Indian Welfare Act (“OIWA”). It is part of a confederacy of autonomous tribal

towns that form the Creek Nation. In December 2006, AQTT filed a complaint

against the United States and several federal officials (collectively, the “Federal

Defendants”). AQTT alleged that certain property known as the Wetumka Project

lands were purchased under OIWA for the benefit of AQTT. It requested a

declaratory judgment and an order compelling the government to assign the Wetumka

Project lands to AQTT and provide AQTT with a full and complete accounting of

related trust funds and assets.




                                           2
       On the Federal Defendants’ motion for judgment on the pleadings, the district

court dismissed AQTT’s claim for land assignment and denied the motion as to an

accounting of trust assets. The parties then promptly filed cross-motions for

summary judgment. All were denied. The case was remanded to the Interior Board

of Indian Appeals (“IBIA”) for further development of the trust accounting issue.

After the IBIA decided that the government did not hold any funds in trust for AQTT,

the case returned to district court.

       AQTT filed an amended complaint, now adding the Creek Nation as a

defendant and arguing that the IBIA’s decision was arbitrary and capricious. The

Creek Nation filed a motion to dismiss. That motion was granted on sovereign

immunity grounds. In the amended complaint, AQTT also attempted to revive its

land assignment claim based on newly discovered evidence. The district court again

dismissed the claim. AQTT and the Federal Defendants then renewed their cross-

motions for summary judgment. The district court upheld the IBIA’s decision. The

matter is now before us on appeal.

                                          II

       In granting the government’s motion for partial judgment on the pleadings, the

district court dismissed AQTT’s claims for assignment of the Wetumka Project lands

for failure to join the Creek Nation, an indispensable party. “[W]hether an absent

party is necessary and/or indispensable is resolved by applying Rule 19 of the

Federal Rules of Civil Procedure.” Davis v. United States, 192 F.3d 951, 957 (10th

Cir. 1999). Although we review a district court’s Rule 19 determinations for abuse

                                          3
of discretion, “[u]nderlying legal conclusions supporting” those determinations are

reviewed de novo. Id. Whether an absent party is indispensable involves a two-part

analysis. Rishell v. Jane Phillips Episcopal Mem’l Med. Ctr., 94 F.3d 1407, 1411

(10th Cir. 1996). Initially, we consider “whether the party is necessary to the suit.”

Id. If “the absent party is necessary but cannot be joined, the court must then

determine under Rule 19(b) whether the party is indispensable.” Id.

      An absent party is necessary to a suit if: (1) “in that person’s absence, the

court cannot accord complete relief among the existing parties” or (2) “that person

claims an interest relating to the subject of the action and is so situated that disposing

of the action in the person’s absence may” either “as a practical matter impair or

impede the person’s ability to protect the interest” or “leave an existing party subject

to a substantial risk of incurring double, multiple, or otherwise inconsistent

obligations because of the interest.” Fed. R. Civ. P. 19(a).

      We adopt the district court’s view that the Creek Nation was a necessary party.

AQTT sought an order compelling the government to assign it the Wetumka Project

lands, property in which the Creek Nation holds a beneficial interest. See Davis, 192

F.3d at 958 (“Rule 19 . . . only requires the movant to show that the absent party

claims an interest relating to the subject of the action.” (quotation and emphasis

omitted)). 1 The Creek Nation’s claimed interest in the Wetumka Project lands could


      1
         AQTT appears to have conceded that the Creek Nation claims such an
interest. AQTT’s first amended complaint alleges that “Defendant Muscogee (Creek)
Nation may claim some right, title or interest in and to the [Individual Indian Monies]
or the Wetumka Project lands.” And as explained more fully in Part III, infra, the
                                            4
plainly be impaired by disposition of this action in the Nation’s absence. 2

Additionally, the Federal Defendants “would be subjected to a substantial risk of

multiple or inconsistent obligations in the absence of the” Creek Nation, given that

the Creek Nation could subsequently bring an action against the government arguing

that the transfer of interest to AQTT was unlawful. Sac & Fox Nation of Mo. v.

Norton, 240 F.3d 1250, 1259 (10th Cir. 2001).

      We also adopt the district court’s view that the Creek Nation cannot be joined

as a party due to sovereign immunity. “Indian tribes have long been recognized as

possessing the common-law immunity from suit traditionally enjoyed by sovereign

powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). A waiver of tribal

sovereign immunity “cannot be implied but must be unequivocally expressed.” Id.

(quotation omitted). AQTT argues that the Creek Nation waived its immunity by

appearing before the IBIA and requesting affirmative relief. But “a tribe[]’s

participation in an administrative proceeding does not waive tribal immunity in an

action filed by another party seeking review of [an IBIA] decision.” Quileute Indian




deeds of conveyance for the Wetumka Project lands placed the land in trust for the Creek
Nation.
      2
        AQTT alleges that the Creek Nation disclaimed its interest in the property,
pointing to a 1980 resolution directing the Federal Defendants to transfer title to
certain properties, including the Wetumka Project lands, to tribal towns. However,
AQTT has not alleged that title was so transferred. And after the Creek Nation
passed the 1980 resolution, it passed another resolution opposing any such
assignment.
                                           5
Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994). Moreover, the Creek Nation

did not seek affirmative relief, but merely urged maintenance of the status quo. 3

       Because the Creek Nation cannot be joined, we would ordinarily proceed to

consider “whether in equity and good conscience, the action should proceed among

the existing parties or should be dismissed” under Rule 19(b). Thlopthlocco Tribal

Town v. Stidham, 762 F.3d 1226, 1236 (10th Cir. 2014) (quotation omitted).

However, AQTT does not advance before us any analysis under the Rule 19(b)

factors or otherwise address the indispensable party issue. We accordingly consider

the issue waived. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199,

1205 (10th Cir. 1997) (“Issues not raised in the opening brief are deemed abandoned

or waived.”). 4

                                          III

       Our review of a district court’s decision upholding an agency’s determination

is de novo. 5 Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1142 (10th Cir.



       3
        Having concluded that the Creek Nation possesses tribal sovereign immunity,
we necessarily hold that the district court was correct in granting the Creek Nation’s
motion to dismiss AQTT’s first amended complaint.
       4
         The district court provided several alternative reasons for dismissing AQTT’s
land assignment claim: (1) jurisdiction under the Administrative Procedure Act is
precluded by the Indian Claims Commission Act; (2) the six-year statute of
limitations bars the claim; and (3) the Quiet Title Act precludes jurisdiction. We do
not comment further on these grounds because even if AQTT is correct with respect
to each of them, our resolution of the Rule 19 issue requires us to affirm.
       5
        Although our rationale with respect to AQTT’s land assignment claim could
apply to its trust accounting claim, the district court did not dispose of the latter
                                           6
2011). The IBIA’s decision may be set aside if it was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An

action qualifies as arbitrary and capricious if:

       the agency has relied on factors which Congress has not intended it to
       consider, entirely failed to consider an important aspect of the problem,
       offered an explanation for its decision that runs counter to the evidence
       before the agency, or is so implausible that it could not be ascribed to a
       difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983). “[I]nformal agency action will be set aside as arbitrary if it is unsupported by

substantial evidence.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th

Cir. 1994) (quotation omitted). “Evidence is substantial . . . if it is enough to justify, if

the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is

one of fact.” Id. (quotation omitted).

       After a thorough review, the IBIA determined that the Creek Nation, not AQTT, is

the legal beneficiary of funds related to the Wetumka Project lands known as the Surface

Lease Income Trust (the “Trust”). The IBIA recognized that DOI originally intended to

assign the lands to AQTT at some future date. Title was conveyed to:

       the United States in trust for the Creek Tribe of Oklahoma until such time
       as the use of the land is assigned by the Secretary of the Interior to a tribe,
       band, or cooperative group organized under [OIWA], or to an individual
       Indian, then in trust for such tribe, band, group or individual.




claim under Fed. R. Civ. P. 19. We therefore review the district court’s decision with
respect to the trust accounting claim on the merits.
                                               7
The record does not demonstrate that an assignment to AQTT has ever occurred, and thus

the IBIA properly concluded that the lands remain in trust for the Creek Nation—not

AQTT.

       We conclude that the IBIA’s determination was supported by substantial evidence

and was not arbitrary or capricious. The deeds of conveyance for the Wetumka Project

lands plainly placed the land in trust for the Creek Nation. They did not create a vested

beneficial interest in any other entity. Citing general trust law principles on settlor intent,

AQTT unpersuasively argues that it is the beneficial owner of the funds at issue. See,

e.g., In re Dimick’s Will, 531 P.2d 1027, 1030 (Okla. 1975) (“In construing the terms of

an instrument creating a trust, the intention of the settler of the trust should control when

such intention is not in conflict with established principles of law.”). But the deeds of

conveyance do not evince intent for AQTT to beneficially own the funds in the first

instance. Rather, the deeds contemplate a two-step process under which the lands are

first held in trust for the Creek Nation, and second assigned by the Secretary of the

Interior to another tribe. AQTT fails to present any evidence that the Wetumka Project

lands and the income derived therefrom were ever actually assigned to AQTT.

       AQTT’s reliance on historical evidence that DOI treated the lands as if AQTT

held a beneficial interest in them is misplaced. The IBIA acknowledged three DOI

historical practices on which AQTT places great significance: (1) DOI’s decision to

allow AQTT to benefit from the Wetumka Project lands and the Trust; (2) DOI’s multiple

references to the Trust as belonging to AQTT; and (3) DOI’s inclusion of AQTT’s name

on the Trust account. But the record did not reveal the existence of a trust instrument

                                               8
transferring interest in the lands from the Creek Nation to AQTT. Relying on substantial

evidence, the IBIA soundly reasoned that the practice of allowing lands and income to be

used for the benefit of AQTT could be explained by DOI’s historical view that AQTT

was a subordinate band within the Creek Nation. See Kepler v. Chater, 68 F.3d 387, 388-

89 (10th Cir. 1995) (“Substantial evidence is adequate relevant evidence that a reasonable

mind might accept to support a conclusion.”). This case does not turn on the legal

relationship between AQTT and the Creek Nation. We neither answer that question, nor

do we consider it controlling.

                                           IV


       For the foregoing reasons, we AFFIRM.




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