PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

ALABAMA-QUASSARTE TRIBAL 

TOWN, 

 Plaintiff - Appellant,

v.

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.

No. 17-7003

_________________________________

Appeal from the United States District Court 

for the Eastern District of Oklahoma

(D.C. No. 6:06-CV-00558-RAW)

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Eugene K. Bertman, Talley, Turner & Bertman, Norman, Oklahoma for PlaintiffAppellant.

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.

FILED

United States Court of Appeals

Tenth Circuit

August 13, 2018

Elisabeth A. Shumaker

Clerk of Court
2

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.

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LUCERO, Circuit Judge.

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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.
3

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 crossmotions 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 
4

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 
5

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. 
6

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 
7

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.
8

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 
9

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.