FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAIUTE-SHOSHONE INDIANS OF THE 

BISHOP COMMUNITY OF THE BISHOP

COLONY, CALIFORNIA, a federally No. 07-16727 recognized Indian tribe,

Plaintiff-Appellant, D.C. No.  CV-06-00736-OWW

v.

OPINION CITY OF LOS ANGELES, a California

municipal corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, Senior District Judge, Presiding

Argued August 10, 2010;

Resubmitted March 7, 2011

San Francisco, California

Filed March 14, 2011

Before: Susan P. Graber, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber

3483
COUNSEL

Randolph H. Barnhouse, Luebben Johnson & Barnhouse LLP,

Los Ranchos de Albuquerque, New Mexico, for the plaintiffappellant.

3486 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
Lisa S. Berger, Deputy City Attorney, Los Angeles, California, for the defendant-appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California, an Indian tribe formally

recognized by the United States, filed this action against

Defendant City of Los Angeles for an order restoring Plaintiff

to possession of land that the City took long ago in a deal with

the United States. The district court dismissed the action

under Federal Rule of Civil Procedure 12(b)(7) because it

ruled that, under Rule 19 of the Federal Rules of Civil Procedure, the United States was a required party that Plaintiff

could not join. The district court certified the appealability of

its order under 28 U.S.C. § 1292(b). Upon Plaintiff’s timely

request, we agreed to hear this interlocutory appeal, and we

now affirm. 

I. Background1

For centuries, Plaintiff’s members lived in the area now

called the Owens Valley in Inyo County, California. After

non-Indian settlers began to move into that area in the late

Nineteenth Century, Congress moved to protect Plaintiff by

acquiring land in the area and setting it aside for Plaintiff’s

benefit. By 1924, the United States had acquired and set aside

five tracts of land totaling approximately 1,030 acres (the

“Bishop Tribal Land”). Pursuant to the usual custom, the

1On review of an order dismissing an action under Rule 12(b)(7), we

accept as true the allegations in Plaintiff’s complaint and draw all reasonable inferences in Plaintiff’s favor. Transmission Agency of N. Cal. v.

Sierra Pac. Power Co., 295 F.3d 918, 923 (9th Cir. 2002). 

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3487
United States held the title to the Bishop Tribal Land in trust

for Plaintiff.

In the Act of April 20, 1937, 50 Stat. 70, Congress authorized the Secretary of the Interior to exchange federal land

and water rights in the Owens Valley for other land and water

rights owned by the City. The Act placed several conditions

on any such exchange. Among them, a majority of Plaintiff’s

adult members had to consent to an exchange; an exchange

had to include the water rights appurtenant to the exchanged

lands; and the value of the rights conveyed in an exchange

had to equal the value of the rights received.

In 1937, the United States set out to exchange 3,126 acres

of federal land, which included the Bishop Tribal Land, for

1,511 acres of land in the Owens Valley held by the City.

Plaintiff alleges that the United States engaged in several

improprieties in conducting that exchange. Agents of the Federal Bureau of Indian Affairs canvassed Plaintiff’s members,

going house-to-house and gathering signatures. Plaintiff

alleges that, of the 211 signatures gathered, 187 were written

on blank pieces of paper. Plaintiff further alleges that the

remaining 24 signatures were written on term sheets bearing

a “grossly insufficient description” of the particulars of the

exchange.

On May 18, 1938, the United States effected the exchange

with the City by a written agreement. The agreement reserved

to each party all water rights appurtenant to the exchanged

lands, and the appraisals on which both parties relied did not

include the value of those water rights. Plaintiff alleges that

the agreement violated the Act’s requirement that an

exchange include the water rights appurtenant to the land

exchanged. Plaintiff further alleges that the parties had insufficient evidence from which to conclude that they were

exchanging rights of equivalent value because the appraisals

did not include the value of the water rights.

3488 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
In July 1941, the United States formally conveyed the

Bishop Tribal Land to the City by an executed deed. Since

that time, the City has excluded Plaintiff’s members from

occupying and using the Bishop Tribal Land.

Plaintiff filed this action against the City in 2006, asking

the district court mainly “for an order ejecting [the City] from

the Bishop Tribal Land and restoring [Plaintiff] to possession.” Plaintiff did not name the United States as a party.

Eventually, the City moved to dismiss the action under Rule

12(b)(7), arguing that the United States was a required party

under Rule 19 and that it could not be joined. The district

court agreed and dismissed the suit with leave to amend.

Rather than amend its complaint, however, Plaintiff decided

to pursue an interlocutory appeal under 28 U.S.C. § 1292(b).

Finding this case “exceedingly close,” the district court

granted a certificate of appealability. Upon Plaintiff’s timely

request, we agreed to hear this appeal.

II. Discussion

[1] Our review of a dismissal under Rule 12(b)(7) has

three parts. EEOC v. Peabody W. Coal Co., 400 F.3d 774,

779-80 (9th Cir. 2005). First, guided by the provisions of Rule

19(a), we must decide whether it is “desirable in the interests

of just adjudication” to join the United States. Id. at 779

(internal quotation marks omitted). If so, we must determine

next whether a court feasibly could order that the United

States be joined. Id. Finally, if a court cannot so order, then,

guided by the provisions of Rule 19(b), we must decide

whether “in equity and good conscience” the case may proceed in the absence of the United States. Id. at 779-80. 

We review for abuse of discretion the district court’s decision to dismiss this action for failure to join the United States.

Dawavendewa v. Salt River Project Agric. Improvement &

Power Dist., 276 F.3d 1150, 1154 (9th Cir. 2002). To the

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3489
extent that the district court’s decision involves questions of

law, we review de novo. Id.

A. The United States is a “required party” under Rule

19(a).

[2] We have interpreted Rule 19(a)2 to provide for a twopart analysis. Yellowstone County v. Pease, 96 F.3d 1169,

1172 (9th Cir. 1996). We first examine whether the district

court could award complete relief to the parties present without joining the non-party. Id. at 1172. Alternatively, we ask

whether the non-party has a “legally protected interest” in this

action that would be “impaired or impeded” by adjudicating

the case without it. Id. at 1172-73. If we answer either of

those questions in the affirmative, then the United States is a

“required party” under Rule 19(a). Id. at 1172.

We have no doubt that the United States is a required party.

The district court could not award the relief that Plaintiff

seeks in the absence of the United States. Plaintiff’s theory of

this case involves three steps that it claims lead to its

requested relief, which is to eject the City from the Bishop

2

In its recently amended form, Rule 19(a) provides: 

Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subjectmatter jurisdiction must be joined as a party if: 

(A) in that person’s absence, the court cannot accord complete

relief among existing parties; or 

(B) 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: 

(i) as a practical matter impair or impede the person’s ability

to protect the interest; or 

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations

because of the interest. 

3490 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
Tribal Land and to restore Plaintiff to possession of it. First,

Plaintiff alleges that the United States violated the conditions

in the Act when it exchanged the Bishop Tribal Land without

proper consent from a majority of Plaintiff’s adult members,

without transferring the water rights appurtenant to the

exchanged land, and without obtaining sufficient appraisals of

the exchanged land. Second, because of those violations,

Plaintiff theorizes that the “purported transfer” of the Bishop

Tribal Land “was null and void.” Finally, because the City has

never lawfully held title to the Bishop Tribal Land, Plaintiff

asks the district court to take the land from the City and give

it to Plaintiff.

[3] But Plaintiff’s theory skips a crucial fourth step. As

Plaintiff’s complaint acknowledges, the United States, not

Plaintiff, conveyed the Bishop Tribal Land to the City. Even

if a finder of fact were to decide that the United States violated the Act and that those violations render the land

exchange null and void, the title to the Bishop Tribal Land

would revert to the United States, not to Plaintiff. To achieve

the relief that it seeks, Plaintiff would require an additional

order, apart from an order ejecting the City, requiring the

United States either to cede title to Plaintiff or to hold the land

in trust for Plaintiff’s benefit. Without such an order, we see

nothing stated in Plaintiff’s complaint that would require the

United States to give the Bishop Tribal Land back to Plaintiff.

And, before a court could bind the United States by such an

order, the United States must be a party. See Provident

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,

110 (1968) (recognizing that an “outsider . . . not before the

court . . . cannot be bound by the judgment rendered”). 

[4] Because we conclude that the district court could not

accord complete relief to Plaintiff in the absence of the United

States, the United States is a required party under Rule 19(a).

We therefore need not answer the alternative question

whether the United States has a legally protected interest in

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3491
this action that would be impaired or impeded by adjudicating

the case without it. 

B. The United States cannot be joined.

[5] We turn to the second part of the analysis, whether the

United States feasibly could be joined in this action. Because

the United States has sovereign immunity, no one, including

Indian tribes, may sue the United States without first obtaining permission from Congress. Sisseton-Wahpeton Sioux

Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990). We

therefore examine whether Congress has given Plaintiff permission to join the United States here.

[6] As it turns out, Congress waived its sovereign immunity over Plaintiff’s claim many years ago, but Plaintiff failed

to take advantage of that waiver. In 1946, Congress enacted

the Indian Claims Commission Act (“ICCA”), formerly codified at 25 U.S.C. §§ 70 to 70n-2. The ICCA created an executive tribunal, the Indian Claims Commission, to hear and

determine all tribal claims against the United States that

accrued before August 13, 1946. 28 U.S.C. § 1505 (1982).

Tribes had five years within which to file claims with the

Commission. 25 U.S.C. § 70k (1976). Any claim not filed by

that deadline could not “thereafter be submitted to any court

or administrative agency for consideration.”

3

Id.

3

In 1978, Congress abolished the Indian Claims Commission and transferred the Commission’s pending cases to the Court of Federal Claims. 28

U.S.C. § 1505. Congress also gave the Court of Federal Claims jurisdiction to hear actions for money damages brought against the United States

“founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). We note that, even if

Plaintiff could now file a claim against the United States in the Court of

Federal Claims, that court has no jurisdiction to award the injunctive relief

that Plaintiff would require to achieve its desired result—an order requiring the United States to turn over the Bishop Tribal Land to Plaintiff. E.

Enters. v. Apfel, 524 U.S. 498, 520 (1998). 

3492 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
[7] We hold that the United States cannot feasibly be

joined in this action because the ICCA provided the exclusive

remedy for Plaintiff’s claim but Plaintiff failed to avail itself

of that remedy. According to Plaintiff’s complaint, it had a

ripe claim against the United States by 1941, when the United

States finalized its land exchange with the City, yet Plaintiff

failed to file a claim with the Commission before 1951, the

year in which the ICCA’s statute of limitations expired. In

those circumstances, the ICCA states unequivocally that no

court may adjudicate Plaintiff’s claim. The district court

therefore lacks jurisdiction over Plaintiff’s untimely claim

against the United States. 

Our holding finds support from our sister circuits. In Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1457

(10th Cir. 1987), the Navajo Tribe asserted that the United

States improperly transferred tribal lands to the State of New

Mexico and several individuals. The Navajo Tribe named the

United States, New Mexico, and the individual grantees as the

defendants. Id. at 1462. The Tenth Circuit held that the Navajo Tribe’s claim against the United States could not go forward because it fell within the exclusive jurisdiction of the

Indian Claims Commission and the statute of limitations contained in the ICCA had run. Id. at 1464. 

The Eighth Circuit arrived at a similar conclusion in Oglala

Sioux Tribe of Pine Ridge Indian Reservation v. United

States, 650 F.2d 140 (8th Cir. 1981). An Indian tribe brought

an action in district court to quiet title to the Black Hills of

South Dakota, alleging an unconstitutional taking under the

Fifth Amendment. Id. at 141. The alleged taking arose from

an 1877 statute that abrogated a treaty between the United

States and the Sioux Nation. Id. at 142. The Eighth Circuit

affirmed the district court’s dismissal of the action, holding

that the remedy provided in the ICCA negated any implied

cause of action arising under the Constitution for taking of

Indian land by the United States. Id. at 143.

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3493
Notwithstanding that body of precedent, Plaintiff argues

that Oregon Department of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753 (1985), and Swim v. Bergland, 696 F.2d

712 (9th Cir. 1983), stand for the proposition that the ICCA

does not exclude other avenues for litigating its claim against

the United States. Those cases are irrelevant to the issue

involved here. The United States was not a required party in

Klamath Indian Tribe because the plaintiff tribe could have

obtained complete relief without joining the United States as

a party. The tribe filed suit against the State of Oregon, claiming that its treaties and subsequent agreements with the

United States protected the tribe from state regulation. The

tribe sought only to enjoin Oregon from enforcing certain

state regulations that would prohibit the tribe from hunting

and fishing outside its reservation. Nothing about the relief

requested in Klamath Indian Tribe required any action by the

United States. 

In Swim, 696 F.2d at 714-15, we addressed a situation in

which two tribes defended a declaratory judgment action

brought by non-Indians who wanted to obtain grazing permits

for property owned by the United States and reserved for the

tribes. The tribes were not seeking to be restored to land that

they formerly inhabited; rather, they wanted only to keep the

land that they already had. Thus, the ICCA had no application

in Swim because the tribes were not suing anyone; they were

defending their interests in an action filed by non-Indians.

Plaintiff also argues that 28 U.S.C. § 1362 provides an

independent waiver of sovereign immunity over actions

brought by Indian tribes against the United States.4 We

4Title 28 U.S.C. § 1362 provides: 

The district courts shall have original jurisdiction of all civil

actions, brought by any Indian tribe or band with a governing

body duly recognized by the Secretary of the Interior, wherein

the matter in controversy arises under the Constitution, laws, or

treaties of the United States. 

3494 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
decline Plaintiff’s sweeping invitation to read § 1362 as waiving sovereign immunity over every action brought by an

Indian tribe against the United States when the statute says

nothing about either sovereign immunity or actions against

the United States. Section 1362 merely grants jurisdiction to

the district courts to adjudicate civil actions by Indian tribes

so long as no other jurisdictional bar prohibits the courts from

hearing those actions. 

[8] In summary, we agree with our sister circuits that the

ICCA provided the exclusive remedy for claims accrued by

Indian tribes against the United States before 1946. Because

Plaintiff had such a claim but failed to present it to the Indian

Claims Commission within the statute of limitations prescribed by the ICCA, Plaintiff has lost its opportunity to litigate its dispute with the United States. Accordingly, the

United States cannot feasibly be joined in this suit.

C. This case cannot proceed in equity and good 

conscience without the United States.

[9] We turn to the last part of the analysis, whether this

case may proceed in the absence of the United States under

Rule 19(b).5 The Supreme Court has interpreted Rule 19(b) as

5Rule 19(b) provides: 

When Joinder Is Not Feasible. If a person who is required to

be joined if feasible cannot be joined, the court must determine

whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: 

(1) the extent to which a judgment rendered in the person’s

absence might prejudice that person or the existing parties; 

(2) the extent to which any prejudice could be lessened or

avoided by: 

(A) protective provisions in the judgment; 

(B) shaping the relief; or 

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3495
requiring us to consider at least four interests: (1) the plaintiff’s interest in having a forum; (2) the defendant’s interest

in not proceeding without the required party; (3) the interest

of the non-party by examining “the extent to which the judgment may as a practical matter impair or impede [its] ability

to protect [its] interest in the matter”; and (4) the interests of

the courts and the public in “complete, consistent, and efficient settlement of controversies.” Patterson, 390 U.S. at 109-

11 (internal quotation marks omitted). That list is not exclusive of other considerations, however. At all events, Rule

19(b) requires us to undertake a “practical examination of

[the] circumstances” to determine whether an action may proceed “in equity and good conscience” without the absent

party. Id. at 119 n.16.

[10] Plaintiff argues that all of the Patterson factors favor

allowing this case to proceed in the absence of the United

States. We disagree. First, Plaintiff claims a “strong interest”

in having this forum because it has no other avenue available

for establishing its right to the Bishop Tribal Land. That is a

dilemma of Plaintiff’s own making. Congress gave Plaintiff

an opportunity to adjudicate its dispute with the United States

but Plaintiff missed that opportunity. Even accepting Plaintiff’s claim that it cannot obtain relief in any other forum

today, the fact that Plaintiff at one time had a “satisfactory

alternative forum” but failed to take advantage of it significantly lessens the strength of Plaintiff’s interest in having this

action go forward. Id. at 109.

Second, because the City does not face the possibility of

multiple litigation, inconsistent relief, or sole responsibility

(C) other measures; 

(3) whether a judgment rendered in the person’s absence

would be adequate; and 

(4) whether the plaintiff would have an adequate remedy if the

action were dismissed for nonjoinder. 

3496 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
for a liability that it shares with someone else, Plaintiff argues

that the second Patterson factor favors it, too. Plaintiff interprets that factor too narrowly. Rule 19(b) tells us to consider

the extent to which a judgment rendered in the United States’

absence might prejudice the existing parties. In Patterson, the

Supreme Court interpreted that directive to mean that we must

consider a defendant’s “interest” in whether a case should

proceed without a required party. Id. at 110. As examples of

interests a defendant might have, the Court observed that a

defendant “may properly wish to avoid multiple litigation, or

inconsistent relief, or sole responsibility for a liability he

shares with another.” Id. We do not take that observation to

mean that those are the only interests a defendant might have

in not wanting to proceed with an action in the absence of a

required party who could not be joined.

[11] Here, even if we agree with Plaintiff that the City

does not face the possibility of multiple litigation, inconsistent

relief, or responsibility for liability that it would share with

the United States, the City still has a significant interest in not

wanting to proceed with this case. To achieve the relief that

Plaintiff seeks, Plaintiff must prove that agents of the United

States violated the 1937 Act when they gave the Bishop

Tribal Land to the City. The City cannot reasonably be

expected to defend the actions of an entirely different entity

over which the City had no control. Proceeding with this suit

in the absence of the United States therefore would prejudice

the City because the City by itself cannot defend effectively

against the crux of Plaintiff’s allegations, even though those

allegations may be untrue. Accordingly, we conclude that the

second Patterson factor weighs against allowing Plaintiff to

proceed with its suit.

[12] The third factor militates against allowing this case to

proceed as well. Plaintiff has accused federal agents of

wrongdoing. The United States is therefore the proper party

to defend itself against Plaintiff’s accusations. If a jury were

to agree with Plaintiff—perhaps because the City could not

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3497
mount an adequate defense—a judgment in Plaintiff’s favor

“may as a practical matter impair or impede” the United

States’ ability to protect its interest. Patterson, 390 U.S. at

110. Plaintiff would have an argument that such a judgment

would estop the United States from relitigating the legality of

its actions if the United States chose to do so in a future case.

Montana v. United States, 440 U.S. 147, 155-62 (1979).

[13] There remains the interests of the courts and the public in “complete, consistent, and efficient settlement of controversies.” Patterson, 390 U.S. at 111. Because it has no other

forum for litigating this dispute, Plaintiff argues that the public’s interest in the settlement of controversies favors letting

Plaintiff proceed with its action in the absence of the United

States. But, as the Supreme Court instructed in Patterson, the

courts and the public have an interest in the complete and efficient settlement of controversies. Id. Even if we allowed

Plaintiff to proceed here, the best Plaintiff could do would be

to undo the 1938 exchange agreement between the City and

the United States. The controversy regarding what to do with

the Bishop Tribal Land after such an order would remain alive

and incapable of resolution in the absence of the United

States. Because Plaintiff’s action only gets Plaintiff part of the

way to the relief that it wants, the interest of the courts and

the public in a complete and efficient settlement does not support Plaintiff’s position.

[14] Accordingly, we hold that the Rule 19(b) analysis

does not favor allowing Plaintiff to proceed with this action

in the absence of the United States. We therefore hold that the

district court did not abuse its discretion by dismissing this

action under Rule 12(b)(7).

As a final matter, we reject Plaintiff’s argument that our

holding in Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d

1251 (9th Cir. 1983), which we recently reaffirmed in Lyon

v. Gila River Indian Community, 626 F.3d 1059 (9th Cir.

2010), provides an exception to Rule 19(b) into which this

3498 PAIUTE-SHOSHONE INDIANS v. LOS ANGELES
case fits. As we explained in Lyon, 626 F.3d at 1070, we held

in Puyallup that, “in a suit by an Indian tribe to protect its

interest in tribal lands, regardless of whether the United States

is a [required] party under Rule 19(a), it is not [a] party in

whose absence litigation cannot proceed under Rule 19(b).”

(Internal quotation marks omitted.)

At first blush, that holding appears to support Plaintiff’s

position. But, in Lyon, we expressly observed that the United

States’ interests were “shared and adequately represented” by

the plaintiff tribes. Id. at 1071. Similarly, in Puyallup, 717

F.2d at 1254, the plaintiff tribe’s position was not adverse to

the interests of the United States, which simply held the title

to the disputed land in trust for the benefit of the tribe. The

central dispute in Puyallup, as in Lyon, involved the plaintiff

tribe and the named defendant. It did not involve the United

States. See also Fort Mojave Tribe v. Lafollette, 478 F.2d

1016, 1018 (9th Cir. 1973) (allowing a suit by an Indian tribe

to proceed without the United States when “[i]t [did] not

appear that failure to join the United States would radically

and injuriously affect its interest” (internal quotation marks

omitted)).

Here, by contrast, the lawfulness of the United States’

actions forms the central issue. In these circumstances, the

Puyallup exception to Rule 19(b) does not apply. 

AFFIRMED.

PAIUTE-SHOSHONE INDIANS v. LOS ANGELES 3499