PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2775

 

UNALACHTIGO BAND OF THE NANTICOKE LENNI

LENAPE NATION; HON. JAMES BRENT THOMAS, SR.,

Tribal Chairman and War Chief Unalachtigo Band of

Nanticoke-Lenni Lenape Nation a/k/a KSCHUPPEHELLEN, 

 

v.

JON S. CORZINE, Governor of the State of New Jersey in

his individual capacity; STATE OF NEW JERSEY,

Defendants-Appellees,

POWHATAN INDIANS OF DELAWARE VALLEY d/b/a

Powhatan Renape Nation; STOCKBRIDGE-MUNSEE

COMMUNITY

 (Intervenors in D.C.)

STOCKBRIDGE-MUNSEE COMMUNITY,

 Appellant

 
 The Honorable Paul R. Michel, Chief Judge of the *

United States Court of Appeals for the Federal Circuit, sitting by

designation.

2

On Appeal from a Final Order of 

the United States District Court

for the District of New Jersey

District Court No. 05-cv-05710

District Judge: The Honorable Joseph H. Rodriguez

 

Argued March 8, 2010

Before: AMBRO, SMITH, 

and MICHEL , Circuit Judges *

(Filed: May 25, 2010)

Don B. Miller, Esq. (argued)

Don B. Miller, PC

1305 Cedar Avenue

Boulder, CO 80304

Donald B. Veix, Jr., Esq.

Anthiel Maslow & MacMill, LLP

131 West State Street

Doylestown, PA 18901

Howard Bichler

Stockbridge-Munsee Community
3

N8476 Moh He Con Nuck Rd.

Bowler, WI 54416

Michael Coren, Esq.

Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, PC

Ten Melrose Avenue

Woodcrest Pavilion

Suite 450

Cherry Hill, NJ 08003

Counsel for Appellant

Anne Milgram

Lewis A. Scheindlin

Ellen M. Hale (argued)

Attorney General of New Jersey

R.J. Hughes Justice Complex

P.O. Box 112, 25 Market Street

Trenton, NJ 08625

Counsel for Appellee

Harris N. Feldman, Esq.

Schnader, Harrison, Segal & Lewis LLP

Woodland Falls Corporate Park

220 Lake Drive East

Suite 200

Cherry Hill, NJ 08002

 Counsel for Intervenor-Appellee Powhatan

 Indians of DE Valley

Michael J. Fasano (argued)

Edward C. Eastman, Jr.
4

Lomurro, Davison, Eastman and Munoz, P.A.,

Monmouth Executive Center

100 Willow Brook Road, Building 1

Freehold, NJ 07728

Counsel for Amicus, New Jersey Land Title

Association

 

OPINION OF THE COURT

 

MICHEL, Circuit Judge

Plaintiff Unalachtigo Band of Nanticoke-Lenni Lenape

Nation (“Unalachtigo”) filed a complaint in District Court,

based on the Nonintercourse Act, 25 U.S.C. § 187, seeking

possession of land in New Jersey that previously constituted the

Brotherton Indian reservation. Intervenor-appellant

Stockbridge-Munsee Community (“Stockbridge”) moved to

dismiss Unalachtigo’s complaint under Rule 19 of the Federal

Rules of Civil Procedure, claiming a non-frivolous interest in

the property. In a single order, the District Court dismissed

Unalachtigo’s complaint sua sponte for lack of standing and also

denied Stockbridge’s Rule 19 motion to dismiss, finding that

Stockbridge did not have a non-frivolous interest in the property

because it had failed to demonstrate that it was a successor-ininterest to the Brotherton Indians. Stockbridge appeals to this
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court, arguing that the District Court opinion should be vacated

because that court lacked jurisdiction to rule on Stockbridge’s

motion once it determined that Unalachtigo’s complaint should

be dismissed for lack of standing. We agree with Stockbridge

and will vacate-in-part the portion of the District Court’s order

and opinion denying Stockbridge’s Rule 19 motion. 

I. 

During the French and Indian War, the Colonies faced

enemies in the form of France and its Delaware Indian allies,

some of whom had migrated west from New Jersey decades

earlier. Within the Colony of New Jersey, small bands of

Delaware Indians remained. Fearing an alliance between those

remaining Delaware Indians and those to the west, New Jersey

entered into a treaty with those remaining Delawares in 1758.

In return for giving up their claims to lands, the Delaware

Indians who wished to remain in New Jersey were settled on a

reservation called Brotherton, in an area that today is located

within Shamong Township. These Indians formed a tribal

government known as the Brotherton Indians. Aft e r t h e

French and Indian War ended, New Jersey grew less concerned

about the welfare of the Brotherton Indians. Government

financial assistance was withdrawn, and in 1801 the povertystricken tribe asked the State of New Jersey to sell its

reservation and help it move to central New York, where the

Mohican Indians on the New Stockbridge reservation had

invited them to live. The State legislature obliged, and the
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majority of the Brotherton moved to New York, where State

agents ensured that the formal merger agreement between the

Stockbridge and Brotherton tribes granted full membership

rights to the Brotherton Delaware. The State then sold the

reservation and held the proceeds, which the combined tribe

later used to purchase land in Wisconsin after it was forced out

of New York in the 1820s and 30s.

In 1823, the Brothertons and Stockbridge again executed

a formal tribal agreement to ensure they would receive equal

right in the newly purchased Wisconsin lands. In 1832, the

Stockbridge Brothertons appeared before the New Jersey

legislature seeking compensation for off-reservation treaty

hunting and fishing rights not included in the 1802 cession. The

legislature appropriated $2,000 and the Indians signed a transfer

agreement, purportedly relinquishing the last of Brotherton’s

tribal rights in New Jersey.

According to Stockbridge, New Jersey’s purchase of the

Brotherton reservation did not comply with federal law. Since

1789, federal law has required Congress to approve the sale of

any Indian lands. Because the State failed to get Congressional

approval, the 1801 sale violated federal law and failed to

extinguish Indian property rights in the tract. 

In the 1990s, a tribe of Delaware Indians in Oklahoma

sought to pursue this claim. It asked the legal office for the

Bureau of Indian Affairs (“BIA”), as its trustee, to develop and
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prosecute the claim on its behalf. The federal lawyers, with the

help of a BIA historian, investigated the history of the

Brotherton reservation and concluded that, while there probably

was a meritorious claim to be pursued, this tribe of Delawares

from Oklahoma was not the one to do it because it was not the

successor-in-interest to the Brotherton Delaware Tribe. Instead,

it appeared that the Stockbridge-Munsee Tribe (the intervenorappellant “Stockbridge”) in Wisconsin was the likely successor

and, in 2000, the Interior Department’s top Indian-affairs lawyer

advised Stockbridge of its potential claim. Stockbridge then

retained counsel and an expert historian to investigate the claim.

Before Stockbridge acted on its claim, the Unalachtigo,

an Indian group in southern New Jersey not recognized by the

United States or the State of New Jersey, filed this 2005 action

claiming to be the rightful owners of the Brotherton reservation

and seeking its possession. Asserting its claim through the

Nonintercourse Act (“Act”), the Unalachtigo alleged that New

Jersey’s sale of the reservation in 1802 violated the Act because

the sale of Indian lands is void if it is without Congressional

consent.

 Stockbridge determined that this suit likely would result

in judicial interpretation of the same treaties and statutes that

should necessarily form the basis of its own claim if it later

decided to pursue it. But Stockbridge did not want to litigate

these matters in the context of the Unalachtigo suit. Concerned

that its interests could be impaired if the action proceeded in its
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absence, Stockbridge moved to intervene as a defendant for the

sole purpose of seeking dismissal of the Unalachtigo’s

complaint under Rule 19 for failure to join it as an indispensable

party claiming sovereign immunity. Stockbridge claimed that it

was the successor-in-interest to the Brotherton Indians.

However, it did not claim an interest in the land of the

Brotherton reservation or otherwise move to address its interests

on the merits.

Before the District Court rendered a decision on

Stockbridge’s Rule 19 motion, Unalachtigo amended the

Complaint to name the State of New Jersey and Governor Jon S.

Corzine (“State defendants”) and dismissed as to the other,

Burlington County defendants. The State defendants filed a

motion to dismiss based on Eleventh Amendment immunity as

well as other defenses. The State defendants later withdrew

their motion to dismiss without prejudice for the District Court

to resolve Stockbridge’s motion. 

On May 20, 2008, the District Court denied

Stockbridge’s motion under Rule 19 and dismissed

Unalachtigo’s case for lack of standing sua sponte. Both

Unalachtigo and Stockbridge appealed the court’s order.

Unalachtigo was unable to obtain counsel and its appeal was

therefore dismissed.

In its opening brief, Stockbridge did not challenge the

District Court’s dismissal of Unalachtigo’s complaint, but
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instead requested that this court reverse the District Court’s

ruling that, because Stockbridge is not Brotherton’s successor,

it was not an indispensable party pursuant to Rule 19(a).

Stockbridge argued that it was the successor-in-interest to the

Brotherton. In response, the State of New Jersey argued that the

decision should be affirmed because there was no case or

controversy as a result of the dismissal of Unalachtigo’s

amended complaint. On reply, Stockbridge abandons its

original argument that the District Court erred in denying its

Rule 19 motion. Stockbridge instead argues that the District

Court opinion should be vacated because the District Court

lacked jurisdiction to rule on the Rule 19 motion once it

determined that Unalachtigo’s complaint should be dismissed

for lack of standing. 

II.

Article III extends the Judicial Power of the United States

only to “cases” and “controversies.” The Supreme Court has

held that “federal courts are without power to decide questions

that cannot affect the rights of litigants in the case before them.”

North Carolina v. Rice, 404 U.S. 244, 246 (1971). As the

Supreme Court emphasized, “Without jurisdiction the court

cannot proceed at all in any cause. Jurisdiction is power to

declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and

dismissing the cause.” Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94 (1998) (internal quotation marks omitted).
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In New Jersey v. Heldor Indus., Inc., 989 F.2d 702, 705

(3d Cir. 1993), this court vacated an opinion entered by a lower

court after it lost jurisdiction. The State of New Jersey initially

objected to Heldor’s bankruptcy settlement agreement, but later

advised the bankruptcy judge that it would withdraw its

objection. Id. at 704. Despite being aware of the withdrawal,

the bankruptcy judge still issued a memorandum opinion

concluding that the State’s objection was overruled. See id. at

704-05. After the District Court affirmed the bankruptcy

judge’s opinion, Heldor appealed to this court, arguing that the

bankruptcy judge lacked the jurisdiction to issue its opinion.

See id. at 705. This court agreed, reasoning, “[s]ince from the

time of the Framers to the present federal courts have been

limited in their power to decide only ‘cases’ or ‘controversies’

and not render advisory opinions, it is apparent that the

bankruptcy judge could not exercise ‘the judicial Power of the

United States’ over a non-existent dispute[.]” Id. at 709. The

controversy was moot after the State’s withdrawal of its

objection and, thus, the bankruptcy judge’s memorandum was

an improper “advisory” opinion. See id. at 707.

The Ninth Circuit analyzed the issue similarly in

Environmental Protection Information Center, Inc. v. Pacific

Lumber Co., 257 F.3d 1071 (9th Cir. 2001). In that case, the

appellant asked the Ninth Circuit to vacate an order, filed after

the case had become moot, outlining the District Court’s reasons

for granting a preliminary injunction. Id. at 1073. The appellee

agreed that the District Court lost jurisdiction, but argued that
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the appellant lacked standing to appeal because the final

judgment was in the appellant’s favor. Id. The Ninth Circuit

acknowledged that the appeal “d[id] not qualify for prudential

standing in the most used settings (reformation of judgment,

future economic loss or collateral estoppel)[.]” Id. at 1076.

Nevertheless, the court, like the majority in Heldor, held that the

District Court’s decision to “flout the dictates of Article III and

render an opinion in spite of knowing the cause was moot did

render [the appellant] an ‘aggrieved party.’” Id. at 1077. The

court explained, “[w]hile it is true that all dicta ‘have no

preclusive effect,’ dicta entered after a court has lost jurisdiction

over a party inflicts a wrong on that party of a different order

than that which exists in the usual case of extraneous judicial

pronouncement.” Id. (internal citation omitted). The Ninth

Circuit therefore vacated the District Court’s order and

remanded. Id. 

In this case, the District Court dismissed Unalachtigo’s

amended complaint for lack of standing. Because intervention

is ancillary to a main cause, once the District Court determined

that Unalachtigo’s cause of action should be dismissed for lack

of standing, there no longer was a live case or controversy. See

Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965) (holding that

intervention contemplates an existing suit and is ancillary to the

main cause of action); see also Littlejohn v. BIC Corp., 851 F.2d

673, 677 n.7 (3d Cir. 1988) (“[I]ntervention is ancillary and

subordinate to a main cause and whenever an action is

terminated, for whatever reason, there no longer remains an
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action in which there can be an intervention.”) (internal

quotation marks omitted). Thus, as in Heldor and Pacific

Lumber, the District Court issued an opinion on Stockbridge’s

Rule 19 motion when it lacked jurisdiction. This “advisory”

opinion ignores the dictates of Article III and renders

Stockbridge an “aggrieved party” such that it is entitled to

appellate relief. 

III.

For the foregoing reasons, we will vacate the portion of

the District Court’s order and opinion denying Stockbridge’s

Rule 19 motion.