* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estop pel. The court generally disfavors the citation of orders and judgments; nev ertheless, an order and judgment may be cited under the terms and conditions of 10 TH C IR
. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 29, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM S. FLETCHER, CHARLES A. PRATT, JUANITA W. WEST, CORA JEAN JECH, BETTY WOODY and JOHN BERREY, Individually, and as members of the OSAGE DEVELOPMENT COUNCIL, Plaintiffs-Appellants,

v. No. 04-5112 UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; GAIL NORTON, Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and NEAL A. McCALEB, Assistant Secretary of the Interior-Indian Affairs, Defendants-Appellees. (N. D. Oklahoma) (District Court No. 02-CV-427-E)

ORDER AND JUDGMENT *

Before HENRY , MCWILLIAMS , and MURPHY , Circuit Judges.
The plaintiffs William S. Fletcher, Charles A. Pratt, Juanita W. West, Cora2

Jean Jech, Betty Woody, and John Berrey appeal the district court’s dismissal of their complaint for failure to join the Osage Triba l Council as a necessary and indispensable party. Because of the unique posture of this case, the district court did not address two of the plaintiffs’ claims for r elief. We therefore vacate the order of dismissal as to those claims and remand fo r further proceedings.

I. BACKGROUND The plaintiffs are descendants of Osage Indians lis ted on the tribal rolls at the time of the Osage Allotment Act of 1906, Pub. L . No. 59-321, 34 Stat. 539. As the district court explained, the 1906 act direc ted the preparation of a final membership roll of the Osage Tribe. Each individua l on the final roll received an interest in the tribal mineral estate. The Osage A llotment Act further provided that the mineral estate would be managed by a triba l council selected at periodic tribal elections in the manner prescribed by the Co mmissioner of Indian Affairs. The Bureau of Indian Affairs then promulgated regul ations limiting voting and holding office to those adult members of the tribe who possessed mineral interests. See 90 C.F.R. pt. 90 (2005). The regulations providedthat each ballot cast had exactly the same proportional value as the voter’s mineral interest. See 90 C.F.R. § 90.21 (2005). The plaintiffs filed this action in federal distric t court in March 2002.1 The plaintiffs’ voting rights challenges had been unsuccessfully prosecuted in

two prior federal cases. See Fletcher v. United States , 116 F.3d 1315 (10th Cir. 1997); Logan v. Andrus , 640 F.2d 269 (10th Cir. 1981).

3 Their complaint asserts four causes of action: (1) a claim that the defendants violated their right to political association and p articipation in the Osage government; (2) a claim that the defendants breache d their trust responsibilities by (a) eliminating the plaintiffs’ right to partici pate or vote in Osage tribal elections, and (b) allowing mineral royalties to be alienated to non-members of the Osage Tribe; (3) a Fifth Amendment takings clai m; and (4) a claim that the federal regulations regarding the Osage Tribe violated their right to participate in their government and the defendants’ trust responsi bilities. See Aplts’ App. at 65-78 (Complaint filed May 31, 2002). 1 In their request for relief, the plaintiffs sought: (a) an order holding that the federal regulations pertaining to Osage tribal elec tions violated their constitutional rights; (b) an order holding that th e defendants breached their trust responsibilities by restricting the plaintiffs’ rig ht to participate in tribal elections and by allowing Osage mineral interests to be alien ated to non-Osages; (c) an order holding that, by allowing the alienation of m ineral interest to non-Osages, the defendants effected an unconstitutional taking of a protected property interest. The defendants moved to dismiss the complaint for f ailure to join the4

principal governing body of the Osage Tribe, the Os age Tribal Council, as a necessary and indispensable party under Fed. R. Civ . P. 19. The district court granted the motion and dismissed the complaint. The court first concluded that the Tribal Council w as a necessary party under Fed. R. Civ. P. 19(a), reasoning that “it is clear that granting the remedy requested by the Plaintiffs would require a signifi cant change in voting procedures and result in a significant change in th e government and membership of the tribe, even if there is no specific proposal to accomplish either of those things in the Complaint.” Aplts’ App. doc. C, at 4 -5 (Order, filed July 6, 2004). Thus, the court stated, “[w]hat Plaintiffs are aski ng for affects a substantial interest of the Tribal Council, and granting such r elief could directly compromise those interests.” Id. at 5 (internal quotation marks omitted). The district court then concluded that the Council was an indispensable party under Fed. R. Civ. P. 19(b). It considered: (1) the plaintiffs’ interest in having a forum; (2) the defendants’ interest in avo iding inconsistent relief; (3) the interests of the party alleged to be indispensable; and (4) the interests of the courts and the public in complete and efficient settlement of controversies. See id. at 6 (citing Provident Tradesmens Bank & Trust Co. v. Patterson , 390 U.S. 102, 109-111 (1968)). The court found that “a judg ment rendered in the Tribal Council’s absence has the potential of being prejud icial to both the Tribal Council5

and the Defendants” and noted that it was not convi nced that the defendants would adequately represent the Council’s interests. Id. Significantly, in applying Fed. R. Civ. P. 19 to th e plaintiffs’ complaint, the district court discussed only the plaintiffs’ alleg ations regarding the denial of their voting rights. Thus, the dismissal order doe s not explain why the Council is a necessary and indispensable party as to the plaintiffs’ other claims.

II. DISCUSSION On appeal, the plaintiffs do not challenge the dist rict court’s dismissal of those parts of their claims that concern their voti ng rights. They note that on December 3, 2004, after the district court dismisse d their complaint, Congress passed the Reaffirmation of Certain Rights of the O sage Tribe, Public Law 108- 431, 118 Stat. 2609. That statute maintains the sy stem for assigning mineral interests but grants the Osage Tribe the right to d etermine membership for other purposes. Pub. L No. 108-431, § 1(b)(1). Accordin g to the plaintiffs, “[their] first request–that they obtain the right to partici pate in the affairs of the Osage Nation as members–appears to have been obtained.” Aplts’ Br. at 4 n.1. However, the plaintiffs do challenge the district c ourt’s dismissal of their breach of trust and Fifth Amendment takings claims insofar as those claims concern the alleged wrongful transfer of mineral in terests to non-Osages. They6

note that the district court did not discuss that p art of those claims at all: its discussion of why the Osage Tribal Council was a ne cessary and indispensable party was based entirely on the Tribal Council’s authority over determinations of membership and governmental structure. See Aplts’ App. doc. C, at 4-5. However, the plaintiffs argue, as to the breach of trust and takings claims, the Tribal Council is not a necessary or indispensable party. The plaintiffs maintain that the Council does not hold the royalti es of the Osage mineral estate for members of the Tribe and that it does not distr ibute those royalties. Further, the plaintiffs reason, the Tribal Council is not th e beneficiary of the royalties resulting from the oil and gas development. Instea d, the royalties are held by the federal officials and are paid directly to individu al Osages, as mandated by the 1906 act. Aplts’ Br. at 11-12 (discussing The Osag e Allotment Act of 1906, Pub. L. No. 59-321, 34 Stat 539, § 4) “At most,” the pl aintiffs state, “the Tribal Council could assert that it is ‘interested’ in see ing that members of the Tribe are paid what they are due, or perhaps that the Osage N ation holds the headrights and desires payment of royalties to itself.” Aplts’ B r. at 12. However, the plaintiffs assert, any such interests of the Tribal Council ar e aligned with the plaintiffs’ own interests. In any event, the plaintiffs conclu de, the district court made no findings about the Tribal Council’s interest in the payment of royalties. Thus, a remand for further findings is warranted.7

The defendants respond that the district court prop erly dismissed the breach of trust and takings claims for a reason not discus sed in the order—because the district court lacks jurisdiction over claims again st the United States. Here, the defendants note, the plaintiffs asserted jurisdicti on under section 702 of the federal Administrative Procedures Act, 5 U.S.C. § 7 02, which provides:

An action in a court of the United States seeking r elief other than money damages and stating a claim that an agency or an officer or employee thereof acted or f ailed to act in an official capacity or under color of legal author ity shall not be dismissed nor relief therein be deniedon the ground that it is against the United States or thatthe United States is an indispensable party. 5 U.S.C. § 702 (emphasis added). The defendants argue that the plaintiffs’ breach of trust and takings claims are for money damages, and that, as a result the Un ited States has not waived its sovereign immunity through § 702. In the alternati ve, the defendants argue that even if the district court had jurisdiction, the Os age Tribal Council is still a necessary and indispensable party under Fed. R. Civ . P. 19 such that the court’s dismissal of those claims is warranted. We will first address the jurisdictional issue regarding 5 U.S.C. § 702. Then, we turn to the question of whether the Osage Tribal Council is a necessary and indispensable party under Fed. R. Civ. P. 19. We consider the first issue de
novo. See Shaw v. United States , 213 F.3d 545, 548 (10th Cir. 2000). We review8

the district court’s determinations under Fed. R. C iv. P. 19 for an abuse of discretion. Davis ex rel. Davis v. United States , 343 F.3d 1282, 1289 (10th Cir. 2003). However, we consider de novo any legal conc lusions underlying those rulings. Id.

A. Waiver of Immunity under 5 U.S.C. § 702 The defendants’ jurisdictional challenge requires u s to construe § 702. In Bowen v. Massachusetts , 487 U.S. 879 (1988), the Supreme Court held that a district court had jurisdiction under § 702 to revi ew a Health and Human Services order refusing to reimburse a state for a category of Medicaid expenditures. The Court distinguished between (a) “money damages” and(b) judicial remedies that may require one party to pay money to another party but are nevertheless not “money damages.” Id. at 894. As examples of the latter category, the C ourt listed “an equitable action for specific relief--wh ich may include an order for the reinstatement of an employee with backpay, or for t he recovery of specific property or monies, ejectment from land, or injunct ion either directing or restraining the defendant officer’s actions.” Id. at 893 (internal quotation marks and emphasis omitted). The Court cited Judge Bork’ s explanation in a D.C. Circuit opinion:9 The term ‘money damages,’ 5 U.S.C. § 702, we think, normally refers to a sum of money used as compensat ory relief. Damages are given to the plaintiff to subst itute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled. Thus, whi le in many instances an award of money is an award of damages, occasionally a money award is also a speci e remedy.

Id. at 895 (quoting Maryland Dep’t of Human Res. v. De p’t of Health and Human Servs. , 763 F.2d 1441, 1446 (D.C. Cir. 1985) (internal qu otation marks and citations omitted)). The Supreme Court concluded that the state’s suit t o enforce a provision of the Medical Act, which provided that the Secretary of Health and Human Services “shall pay” certain amounts for services, see 42 U.S.C. § 1396b(a), was “not a suit seeking money in compensationfor the damage sustained by the failure of the Federal Government to pay as mandated.” Bowen , 487 U.S. at 900. Rather, the Court stated, the state had sought “to enforce the statutory mandate itself, which happens to be one for the payment of money.” Id. Here, the plaintiffs argue, their breach of trust a nd takings claims resemble the state’s claim in Bowen : they allege that the federal defendants have viol ated a statutory duty under the 1906 act to pay royalties only to tribal members, and they seek an order declaring that the statute has been v iolated. In contrast, the defendants do not address Bowen . Instead, they cite Tenth Circuit decisions10

holding that, “when the prime objective or essentia l purpose of the complaining party is to obtain money from the federal governmen t, (in an amount of in excess of $10,000), the Court of Claims exclusive jurisdic tion is triggered.” Aples’ Br. at 9-10 (citing Eagle-Picher Indus. v. United State s , 901 F.2d 1530, 1532-33 (10th Cir. 1990); New Mexico v. Regan , 745 F.2d 1318, 1320-22 (10th Cir. 1984); Alamo Navajo Sch. Bd., Inc. v. Andrus , 664 F.2d 229, 233 (10th Cir. 1981)). The defendants contend that the plaintiffs’ “primary pu rpose” is obtaining money from the federal government and that they are therefore seeking “money damages.” Id.
at 11. We are not persuaded by the defendants’ contention. Notably, two of the cases applying the “prime objective test” (Regan and Alamo Navajo School Board ) predate Bowen . Moreover, the one post-Bowencase cited by the defendants acknowledges that the Tenth Circuit’s “p rime objective” test may be inconsistent with Bowen . Eagle-Picher , 901 F.2d at 1532 n.1. However, that decision proceeds to distinguish Bowenon the grounds that the Supreme Court case did not involve a government contract. See id. (stating that “[u]nlike the cases discussed above and the present action, howev er, the claim in Bowendid not relate to a government contract” and that “[s]u ch cases must be filed in the Claims Court”). Here, unlike the claims in Eagle-Picher , the plaintiffs’ breach of trust and11

takings claims do not relate to a government contra ct. Moreover, like the state plaintiff in Bowen , the plaintiffs here contend that the defendants h ave failed to perform a statutory duty to pay them money, specifi cally royalties from oil and gas production to which they are entitled pursuant to the 1906 statute. Cf. Cobell
v. Norton , 240 F.3d 1081, 1094-95 (D.C. Cir. 2001) (noting that (a) “section 702 of the Administrative Procedure Act waives federal officials’ sovereign immunity for actions ‘seeking relief other than money damage s’ involving a federal official’s action or failure to act[;]” (b) “[i]nso far as the plaintiffs seek specific injunctive and declaratory relief--and, in particul ar, seek the accounting to which they are entitled--the government has waived its so vereign immunity under this provision[;]” (c) “plaintiffs[’] rel[iance] upon co mmon law trust principles in pursuit of their claim is immaterial, as here they seek specific relief other than money damages[;] and [d] federal courts have jurisd iction to hear such claims under the APA”); Southeast Kansas Cmty. Action Prog ram Inc. v. Sec’y of Agric. , 967 F.2d 1452, 1456 (10th Cir. 1992) (concluding th at the plaintiffs’ claims, which sought, in part, an order requiring funding o f child nutrition program until a hearing could be held, did not seek “money damage s” under § 702). Additionally, we note that at oral argument, the pl aintiffs’ counsel explained that his clients did not seek the paymentof royalties that had been withheld in the past. Instead, he explained, the p laintiffs sought an order12

directing the defendants to comply with the require ments of the 1906 act from the date of the filing of the complaint in this case. The prospective nature of the relief sought by the plaintiffs further supports th eir argument that they have not sought “money damages.” See United States v. Testan , 424 U.S. 392, 403 (1976) (distinguishing “between prospective reclassificati on [of a government employee], on the one hand, and retroactive reclassification r esulting in money damages, on the other”). Accordingly, we conclude that the breach of trust a nd takings claims at issue here do not seek “money damages” under § 702. As a result, the district court has jurisdiction over these claims.

B. Necessary and Indispensable Party Under Rule 19 In the alternative, the defendants argue that, even if the district court has jurisdiction, dismissal of the plaintiffs’ breach o f trust and takings claims is still proper. According to the defendants, the Osage Tri be’s ownership of mineral interests establishes that the Tribal Council is a necessary and indispensable party with regard to those claims. We decline the defendants’ invitation to apply Fed. R. Civ. P. 19 to the plaintiffs’ breach of trust and takings claims with out the benefit of the district court’s analysis. The Rule 19 inquiry is case-spec ific. See United States ex rel.13

Hall v. Tribal Development Corp. , 100 F.3d 476, 481 (7th Cir. 1996). Thus, “[w]ithout factual findings this court cannot deter mine whether an analysis of the . . . Rule 19(b) factors compels dismissal as a matter of law.” Davis v. United
States , 192 F.3d 951, 961 (10th Cir. 1999). Because the district court did not apply Rule 19 to the plaintiffs’ breach of trust an d takings claims, we must remand the case to the district court to undertake the Rule 19 analysis in the first instance. See id.

III. CONCLUSION Accordingly, we conclude that the district court ha s jurisdiction over the plaintiffs’ breach of trust and takings claims at i ssue here, and that, as to those claims, the district court should determine in the first instance whether the Osage Tribal Council is a necessary and indispensable party under Fed. R. Civ. P. 19. We therefore VACATE the district court’s order of d ismissal and REMAND the case for further proceedings consistent with this o rder and judgment.

Entered for the Court
Robert H. Henry Circuit Judge