FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL GRONDAL, a Washington 

resident; MILL BAY MEMBERS 

ASSOCIATION, INC., a Washington 

non-profit corporation,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA; U.S.

DEPARTMENT OF THE INTERIOR;

BUREAU OF INDIAN AFFAIRS;

CONFEDERATED TRIBES OF THE 

COLVILLE RESERVATION,

Defendants-Appellees,

v.

WAPATO HERITAGE LLC,

Defendant-Appellant,

and

GARY REYES; FRANCIS ABRAHAM;

PAUL G. WAPATO, JR.; KATHLEEN 

DICK; DEBORAH BACKWELL;

CATHERINE GARRISON; MARY JO 

GARRISON; ENID T. WIPPEL;

LEONARD WAPATO; ANNIE WAPATO;

JUDY ZUNIE; JEFFREY M. CONDON;

No. 21-35507

D.C. No.

2:09-cv-00018-

RMP

OPINION
2 GRONDAL V. UNITED STATES

VIVIAN PIERRE; SONIA W.

VANWOERKOM; ARTHUR DICK;

HANNAH RAE DICK; FRANCIS J.

REYES; LYNN K. BENSON; JAMES 

ABRAHAM; RANDY MARCELLAY;

PAUL G. WAPATO, JR.; CATHERINE L.

GARRISON; MAUREEN M.

MARCELLAY; LEONARD M. WAPATO;

MIKE MARCELLAY; LINDA SAINT;

STEPHEN WAPATO; MARLENE 

MARCELLAY; DWANE DICK; GABE 

MARCELLAY; TRAVIS E. DICK;

HANNAH DICK; JACQUELINE L.

WAPATO; DARLENE MARCELLAYHYLAND; ENID T. MARCHAND;

LYDIA A. ARNEECHER; GABRIEL 

MARCELLAY; MIKE PALMER;

SANDRA COVINGTON,

Defendants.

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted May 18, 2022

Seattle, Washington

Filed June 13, 2022

Before: Kim McLane Wardlaw, Ronald M. Gould, and 

Mark J. Bennett, Circuit Judges.

Opinion by Judge Gould
GRONDAL V. UNITED STATES 3

SUMMARY*

Tribal Matters

In a series of appeals concerning a business lease which 

Defendant-Appellant Wapato Heritage, LLC, once held on 

waterfront land within the Colville Indian Reservation in 

Washington State, the panel affirmed (1) the district court’s 

dismissal of Wapato Heritage cross-claims against the 

Confederated Tribes of the Colville Reservation and the 

Bureau of Indian Affairs; and (2) the district court’s denial 

of Wapato Heritage’s motion to intervene in a trespass 

damages trial between the Bureau of Indian Affairs and other 

parties. 

The parcel of land is known as Moses Allotment 8 (MA8) on Lake Chelan. Wapato Heritage accused the individual 

beneficial owners of this land – the Confederated Tribes of 

the Colville Reservation (the “Tribes”) and the Bureau of 

Indian Affairs (“BIA”) – of misconduct relating to the 

business lease. This court previously concluded that Wapato 

Heritage’s business lease expired in 2009, and the land at 

issue was still Indian land held in trust by the United States.

The district court dismissed Wapato Heritage’s cross 

claims against the Tribes and the BIA because of tribal 

sovereign immunity, lack of subject matter-jurisdiction, and 

failure to state a claim. 

The panel first rejected Wapato Heritage’s contention 

that the Tribes waived their tribal sovereign immunity by 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 GRONDAL V. UNITED STATES

generally participating in this case. The instances where 

tribal participation in litigation will constitute a waiver of 

tribal sovereign immunity must be viewed as very limited 

exceptions to the general rule that preserves tribal sovereign 

immunity absent an unequivocal expression of waiver in 

clear terms. Here, the Tribes did not waive their sovereign 

immunity to Wapato Heritage’s cross-claims as to the 2009 

and 2014 replacement leases. The Tribes invoked their 

immunity from suit in two Fed. R. Civ. P. 12(b)(1) motions 

to dismiss Wapato Heritage’s cross-claims for lack of 

jurisdiction, which were granted. The Tribes retained their 

sovereign immunity to the cross-claims, and the district 

court did not need to rule on the claims’ merits.

Second, Wapato Heritage contended that its cross-claims 

against the BIA were erroneously dismissed for lack of 

subject-matter jurisdiction and failure to state a claim. The 

panel affirmed the district court’s conclusions and held to the 

extent that Wapato Heritage was seeking to recover money 

damages from the United States, the district court lacked 

subject-matter jurisdiction to entertain the relevant crossclaims under the Tucker Act and the Little Tucker Act. 

Although the cross-claims could also be construed as 

requests to compel agency action, Wapato Heritage failed to 

state a claim for a writ of mandamus. Dismissal under Fed. 

R. Civ. P. 12(b)(6) therefore was appropriate and there was 

no reason to transfer the cross-claims to the Court of Federal 

Claims.

Third, Wapato Heritage contended that this appeal did 

not relate to Indian Trust land. The panel rejected this 

contention because this court recently concluded that MA-8 

was still Indian allotment land held in trust by the BIA. See 

Grondal v. United States, 21 F. 4th 1140, 1145 (9th Cir. 

2021).
GRONDAL V. UNITED STATES 5

Finally, the panel held that the district court properly 

denied Wapato Heritage’s motion to intervene in a trespass 

damages trial between Paul Grondal, Mill Bay RV Park, and 

the BIA. The parties agreed that this was a Fed. R. Civ. P. 

24(a)(2) motion to intervene as a matter of right. The panel 

held that the criteria for Rule 24(a)(2) were not met here. As 

a threshold matter, Wapato Heritage lacked intervenor 

standing because its argument for intervention was based on 

Mill Bay’s alleged threats to sue Wapato Heritage for 

indemnification of trespass damages awarded against Mill 

Bay. There was no evidence in the record, however, that any 

such lawsuit had been filed by Mill Bay, and conjectural or 

hypothetical injuries cannot create Article III standing. In 

addition, Wapato Heritage faced no direct liability in this 

trespass damages trial and was not bound by the judgment 

because it was excluded from those proceedings. And Mill 

Bay adequately represented Wapato Heritage’s interests 

because they had the same goal of minimizing the trespass 

damages awarded. The panel concluded that Wapato 

Heritage had not set out any legitimate ground for vacating 

the verdict entered in the trespass damages bench trial.

COUNSEL

Nathan Arnold (argued), Bruce Johnston, and Emanuel 

Jacobowitz, Arnold & Jacobowitz PLLC, Seattle, 

Washington; Tyler D. Hotchkiss and Dale M. Foreman, 

Foreman Hotchkiss Bauscher & Zimmerman PLLC, 

Wenatchee, Washington; for Defendant-Appellant.

John L. Smeltzer (argued), Attorney; Todd Kim, Assistant 

Attorney General; Environment & Natural Resources 

Division, United States Department of Justice, Washington, 

D.C.; Vanesaa R. Waldref, United States Attorney; Joseph 
6 GRONDAL V. UNITED STATES

P. Derrig, Assistant United States Attorney; United States 

Attorney’s Office, Spokane, Washington; for DefendantsAppellees United States of America, U.S. Department of the 

Interior, and Bureau of Indian Affairs.

Anna E. Brady (argued), Brian W. Chestnut, and Brian C. 

Gruber, Ziontz Chestnut, Seattle, Washington, for 

Defendants-Appellees Confederated Tribes of the Colville 

Reservation.

OPINION

GOULD, Circuit Judge:

This is the latest in a series of appeals concerning a 

business lease Defendant-Appellant Wapato Heritage, LLC, 

once held on waterfront land within the Colville Indian 

Reservation in Washington State. Wapato Heritage accuses 

the individual beneficial owners of this land, the 

Confederated Tribes of the Colville Reservation (the Tribes), 

and the United States, specifically the Bureau of Indian 

Affairs (BIA), of misconduct relating to this business lease. 

We have previously concluded that Wapato Heritage’s 

business lease expired in 2009 and the land at issue is still 

Indian land held in trust by the United States. This appeal is 

from the district court’s dismissal of Wapato Heritage’s 

cross-claims against the Tribes and the BIA under Federal 

Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). 

Wapato Heritage makes four challenges to these dismissals. 

First, it argues that the district court misapplied tribal 

sovereign immunity to cross-claims asserted against the 

Tribes. Second, it contends that the district court erred in 

dismissing Wapato Heritage’s cross-claims against the 

United States. Third, it insists that this appeal does not relate 
GRONDAL V. UNITED STATES 7

to Indian trust land. Finally, Wapato Heritage maintains that 

it was wrongly excluded from a damages trial between other 

parties. We have jurisdiction under 28 U.S.C. § 1291, and 

we affirm.

I. FACTS AND PROCEDURAL HISTORY

This case involves a dispute about a parcel of Indian land 

known as Moses Allotment 8 (MA-8) on Lake Chelan in 

Washington State. “In the 1900s, the United States 

originally issued title to this land to American Indian Wapato 

John, a member of the Moses Band of the Columbia Tribe, 

as an ‘allotment’ in trust.” Grondal v. United States, 

21 F.4th 1140, 1145 (9th Cir. 2021). This trust initially 

vested the legal title to MA-8 “in the United States, which 

was to hold the land in trust for ten years to Wapato John’s 

sole use and benefit,” and vested equitable title in Wapato 

John. Id. But the “trust period for MA-8 has repeatedly been 

extended . . . such that to this day the United States continues 

to hold legal title to the land, in trust for Wapato John’s 

heirs.” Id. at 1145.

Today, certain descendants of Wapato John (the 

Landowners) and the Tribes own undivided beneficial 

interests in MA-8, which are held in trust by the United 

States and managed by the BIA. Wapato Heritage, an 

investment vehicle for the heirs of William Wapato Evans, 

Jr., separately holds a partial life estate in MA-8, which will 

expire when Evans’s last grandchild dies. Id. at 1145 & n.1. 

Disputes between the Landowners, the Tribes, Wapato 

Heritage, the BIA, and various MA-8 sublessors led to 

several lawsuits in Washington State court and federal court, 

including the litigation underlying this appeal.

MA-8 was unimproved until 1984. Id. That year, Evans 

acquired a twenty-five-year lease on MA-8 (the Master 
8 GRONDAL V. UNITED STATES

Lease) to build a recreational vehicle park (the Mill Bay RV 

Park) with Landowner and BIA approval. Under the lease 

terms, Evans had to pay the Landowners the greater of: 

(1) $12,000 in annual base rent, $1 per member in monthly 

ground rent, 7.5 percent of cash receipts, and 3.5 percent of 

retail sales; or (2) an alternative minimum rent. The Master 

Lease gave Evans the option to extend the term for another 

twenty-five years, or through 2034, by giving written notice 

to the Landowners and BIA up to twelve months before the 

end of the initial lease term. It also allowed Evans to 

sublease MA-8 with permission from the BIA.

Shortly after signing the Master Lease, Evans subleased 

most of MA-8 to the corporate predecessors of Wapato 

Heritage, developed the Mill Bay RV Park, and sold Mill 

Bay RV Park memberships that ostensibly gave buyers the 

right to use the property until 2034. Evans and the Tribes 

later executed the Casino Sublease, which assigned the rest 

of MA-8 to the Colville Tribal Enterprise Corporation 

(CTEC) for the operation of a tribal casino. The Casino 

Sublease was subject to the Master Lease, ran through 2034, 

and required the Tribes to pay Evans $2,500 in annual base 

rent plus six percent of retail sales made from the subleased 

premises during each year of the sublease term.

The Mill Bay RV Park was financially unsuccessful so, 

in 2001, Evans told members that he would close the park. 

Grondal, 21 F.4th at 1146. Two members, Paul Grondal and 

the Mill Bay Members’ Association, Inc. (Mill Bay), sued 

Evans in Washington State court to prevent closure of the 

park. Evans died testate while this case was pending, and 

his rights under the Master Lease passed to Wapato Heritage. 

After mediation, the parties settled and signed the 2004 

Settlement Agreement, which was subject to the Master 

Lease and by its terms gave Grondal and Mill Bay the right 
GRONDAL V. UNITED STATES 9

to use the Mill Bay RV Park until 2034. The BIA attended 

the mediation but did not intervene as a party.

One year later, the BIA hired an outside firm called the 

Sells Group to perform an accounting review as required by 

the Master Lease and Casino Sublease. The Sells Group set 

out its findings in a written report. This report indicates that 

CTEC underpaid Evans by $866,248 between 1994 and 

1998 due to bookkeeping errors relating to the Casino 

Sublease. It also shows that accounting mistakes with regard 

to the Master Lease caused Evans to overpay the 

Landowners by $751,285 from 1994 to 2005. Per Wapato 

Heritage, CTEC and the Landowners owe it $1,617,533.

Shortly thereafter, the Mill Bay RV Park was the subject 

of a federal lawsuit concerning the Master Lease. In 1985, 

just one year after Evans signed the Master Lease, he mailed 

the BIA a letter seeking to exercise his option to extend the 

Master Lease for twenty-five years through 2034. For the 

next twenty-two years, the Landowners and the BIA 

operated under the assumption that this 1985 letter was 

sufficient to trigger Evans’s option to renew the Master 

Lease. Mill Bay incurred certain financial commitments 

based on this unspoken understanding. Grondal, 21 F.4th at 

1147.

The BIA later came to believe that Evans’s 1985 letter 

was insufficient to exercise his option to extend the Master 

Lease because it was not transmitted to the Landowners as 

required by the Master Lease. In November 2007, the BIA 

sent Wapato Heritage a letter stating that Evans’s 1985 letter 

did not renew the Master Lease. Upon receipt of this BIA 

letter, Wapato Heritage still had two months to validly 

extend the Master Lease by notifying the Landowners in 

writing. But Wapato Heritage instead sent a response letter 

to the BIA disputing its assessment of whether Evans’s 1985 
10 GRONDAL V. UNITED STATES

letter had triggered his option to renew the Master Lease. 

The ensuing litigation confirmed the BIA’s position that the 

Master Lease expired in 2009. See Wapato Heritage, LLC 

v. United States, 637 F.3d 1033, 1040 (9th Cir. 2009).

After the Master Lease expired, the Landowners granted 

the Tribes a short-term Replacement Lease on the MA-8 

casino site in 2009. Five years later, the Colville Tribal 

Federal Corporation (CTFC) obtained from the Landowners 

a new Replacement Lease that rents all of MA-8, including 

its gas station and waterfront, to CTFC for twenty-five years 

in exchange for $100,000 in annual base rent plus 4.5 percent 

of gross casino gaming revenue. CTFC holds a unilateral 

option to renew the 2014 Replacement Lease for twenty-five 

years.

Grondal and Mill Bay contemporaneously responded to 

our decision that the Master Lease expired in 2009 by 

bringing a second federal lawsuit seeking a declaratory 

judgment recognizing their right to use MA-8 through 2034. 

The defendants included the beneficial owners of MA-8, 

Wapato Heritage, and the BIA. The BIA filed a 

counterclaim for ejectment of Grondal and Mill Bay from 

MA-8 and trespass damages. In January 2010, the district 

court denied a request by Grondal and Mill Bay for 

continued access to MA-8 and rejected as potentially 

premature the BIA’s motion for summary judgment on 

ejectment and trespass damages.

In so doing, the district court found that the BIA lacks 

contractual authority to bring a trespass counterclaim 

because it is not a party to the Master Lease but can litigate 

such a counterclaim under its authority as trustee for MA-8. 

This alerted Wapato Heritage that the BIA’s ability to sue 

Grondal, Mill Bay and Wapato Heritage for trespass depends 

on its status as holder of legal title to MA-8. Wapato 
GRONDAL V. UNITED STATES 11

Heritage then brought a cross-complaint challenging the 

BIA’s standing on the basis that MA-8 is no longer Indian 

trust land. This cross-complaint requested a declaration that 

MA-8 is not held in trust, quiet title of MA-8, and partition 

of MA-8. Wapato Heritage also asserted cross-claims 

against the Landowners, the Tribes, and United States vis-àvis the BIA for: (1) cancelation of the 2009 lease of MA-8; 

(2) reinstatement of the Master Lease; (3) ejection of the 

Tribes from MA-8; and (4) an order compelling the BIA to 

recoup sums owed to Wapato Heritage. Concerning 

ejection, Wapato Heritage alternatively requested payment 

of back rent consistent with the Casino Sublease as amended 

in 1994. The BIA responded by pleading a cross-claim 

against Wapato Heritage on behalf of the Landowners for 

rent due on casino revenue for January and February 2009.

The BIA eventually renewed its motion for summary 

judgment on ejectment of Grondal and Mill Bay and trespass 

damages, which the district court addressed in a July 2020 

order. The district court concluded that the BIA had 

standing to pursue this action against Grondal and Mill Bay 

because the United States holds MA-8 in trust. The district 

court also found that Grondal and Mill Bay were trespassing 

on MA-8 and ordered ejectment, leaving the issue of 

damages for trial. This July 2020 order left pending Wapato 

Heritage’s cross-claims but resolved the liability aspect of 

all claims stated against Grondal and Mill Bay, so the district 

court entered a Rule 54(b) final judgment to facilitate their 

immediate appeal. Mill Bay appealed and Wapato Heritage 

joined this appeal because the trust status of MA-8 is 

dispositive of some of its cross-claims. We held that MA-8 

remains Indian allotment land held in trust by the United 

States through the BIA. Grondal, 21 F.4th at 1145.
12 GRONDAL V. UNITED STATES

While that appeal was pending, the BIA moved to 

dismiss Wapato Heritage’s cross-claims. This motion to 

dismiss supplemented the motions to dismiss filed by the 

Tribes in 2011 and 2012. Wapato Heritage moved for partial 

summary judgment or transfer of its cross-claims to the 

Court of Federal Claims, and to compel certain discovery. 

On January 19, 2021, the district court dismissed Wapato 

Heritage’s cross-claims with prejudice. The BIA moved to 

voluntarily dismiss with prejudice its cross-claim against 

Wapato Heritage. Anticipating its termination from this 

case, Wapato Heritage asked the district court for permission 

to participate in the forthcoming trespass damages trial 

between Grondal, Mill Bay, and the BIA under the theory 

that Mill Bay would seek indemnification from Wapato 

Heritage. On February 2, 2021, the district court granted the 

BIA’s motion to voluntarily dismiss with prejudice its crossclaim against Wapato Heritage. The district court also 

denied for lack of standing Wapato Heritage’s request to 

participate in the trespass damages trial pitting Grondal and 

Mill Bay against the BIA and denied as moot Wapato 

Heritage’s motion to compel discovery. This order 

terminated Wapato Heritage from the proceedings, so it 

could not participate in the ensuing trespass damages trial.

The district court then held a bench trial concerning 

whether the BIA could recover trespass damages from 

Grondal and Mill Bay. After weighing the evidence, the 

district court awarded the BIA $1,411,702 in trespass 

damages. But the district court credited Mill Bay’s position 

that pre-judgment interest was improper because delays in 

the case were not attributable to any party. The district court 

further found that Mill Bay’s trespass was caused by Wapato 

Heritage’s misrepresentations that the Mill Bay RV Park 

memberships were valid through 2034 and flowed from the 

failure to renew the Master Lease by Evans and later by 
GRONDAL V. UNITED STATES 13

Wapato Heritage. A final judgment followed and Wapato 

Heritage timely appealed.

II. STANDARDS OF REVIEW

Wapato Heritage’s cross-claims against the Tribes and 

BIA were dismissed because of tribal sovereign immunity, 

lack of subject-matter jurisdiction, and failure to state a 

claim. We review such decisions de novo. See Jamul Action 

Comm. v. Simermeyer, 974 F.3d 984, 991 (9th Cir. 2020) 

(sovereign immunity); Muckleshoot Indian Tribe v. Tulalip 

Tribes, 944 F.3d 1179, 1183 (9th Cir. 2019) (subject-matter 

jurisdiction); Pakootas v. Teck Cominco Metals, 830 F.3d 

975, 980 (9th Cir. 2016) (Rule 12(b)(6)). We can affirm 

these rulings on any basis supported by the record. 

Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008); 

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 

Wapato Heritage’s request to participate in the trespass 

damages trial between Grondal, Mill Bay, and the BIA was 

a motion for intervention as a matter of right under Federal 

Rule of Civil Procedure 24(a)(2). We review de novo district 

court rulings on such motions. Cooper v. Newsom, 13 F.4th 

857, 864 (9th Cir. 2021).

III. ANALYSIS

Wapato Heritage sets out three grounds for revival of its 

cross-claims against the Tribes and the BIA. First, Wapato 

Heritage argues that the Tribes waived their sovereign 

immunity so the district court should have reached the merits 

of Wapato Heritage’s cross-claims against the Tribes. 

Second, Wapato Heritage contends that its cross-claims 

against the BIA were erroneously dismissed for lack of 

subject-matter jurisdiction and failure to state a claim. 

Third, Wapato Heritage insists that MA-8 is not Indian trust 

land. Wapato Heritage finally maintains that it should have 
14 GRONDAL V. UNITED STATES

been allowed to participate in the trespass damages trial 

between Grondal, Mill Bay, and the BIA. We discuss these 

four arguments in turn below.

A. Tribal Sovereign Immunity

“Indian tribes remain separate sovereigns pre-existing 

the Constitution, and, absent congressional action, retain 

their historic sovereign authority” to manage their affairs. 

Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 907 (9th Cir. 

2021) (cleaned up). A fundamental “attribute of tribal 

sovereign immunity is immunity from suit.”1 Id. Lawsuits 

“against Indian tribes are thus barred by sovereign immunity 

absent a clear waiver by the tribe or congressional 

abrogation.” Id. Critically, this “[t]ribal sovereign 

immunity extends to both the governmental and commercial 

activities of a tribe, whether undertaken on or off its 

reservation,” Simermeyer, 974 F.3d at 991. Our circuit 

precedent has held that, by extension, those “tribal 

1 For purposes of this case and the issues it raises, we assume that 

the Tribes have a fulsome and complete sovereign immunity, as that is 

how the issues were presented by the Tribes claiming full immunity and 

Wapato Heritage claiming that sovereign immunity was waived. 

However, when assessing sovereign immunity in other cases, it should 

be noted that sovereign immunity may have a limited scope in view of 

Chief Justice Marshall’s characterization of Indian tribes as “domestic 

dependent nations.” See Okla. Tax Comm’n v. Citizen Band Potawatomi 

Tribe of Okla., 498 U.S. 505, 509 (1991) (quoting Cherokee Nation v. 

Georgia, 30 U.S. (5 Pet.) 1, 18 (1831)). That characterization has had 

echoes over generations in our caselaw. See, e.g., Michigan v. Bay Mills 

Indian Cmty., 572 U.S. 782, 789 (2014) (noting that “the qualified nature 

of Indian sovereignty . . . plac[es] a tribe’s immunity, like its other 

governmental powers and attributes, in Congress’s hands”). Apart from 

waiver, none of the exceptions to tribal sovereign immunity have been 

invoked in this case, and we have no occasion to address them here. See 

id.
GRONDAL V. UNITED STATES 15

corporations acting as an arm of the tribe enjoy the same 

sovereign immunity granted to a tribe itself.” Dine Citizens 

Against Ruining Our Env’t v. Bureau of Indian Affairs, 

932 F.3d 843, 856 (9th Cir. 2019). In addition, there “is a 

strong presumption against waiver of tribal sovereign 

immunity,” and any congressional abrogation of tribal 

sovereign immunity must be unmistakably clear. Deschutes 

River All. v. Portland Gen. Elec. Co., 1 F.4th 1153, 1159, 

1162 (9th Cir. 2021). Although tribal sovereign immunity is 

a quasi-jurisdictional affirmative defense that is forfeited if 

not asserted by a tribe, federal courts lack subject-matter 

jurisdiction “when a defendant to a lawsuit timely and 

successfully invokes tribal sovereign immunity.” Marston, 

17 F.4th at 908 (collecting cases).

Per Wapato Heritage, the Tribes waived their tribal 

sovereign immunity by generally participating in this case 

and the district court should have canceled the Replacement 

Lease for charging below-market rent on MA-8. See 

Quinault Indian Nation v. Pearson for Estate of Comenout, 

868 F.3d 1093, 1097–98 (9th Cir. 2017) (“In rare instances, 

a tribe’s participation in a lawsuit can [waive tribal sovereign 

immunity] for limited purposes. The scope of the waiver 

depends on the particular circumstances, including the 

tribe’s actions and statements as well as the nature and 

bounds of the dispute that the tribe put before the court.” 

(cleaned up)). We reject Wapato Heritage’s contention.

It is the general rule under our precedents that, “[b]y 

consenting to the court’s jurisdiction to determine its own 

claims . . . , a tribe does not automatically waive its 

immunity as to claims that could be asserted against it, even 

as to related matters arising from the same set of underlying 

facts.” Bodi v. Shingle Springs Band of Miwok Indians, 

832 F.3d 1011, 1017 (9th Cir. 2016) (cleaned up). Stated 
16 GRONDAL V. UNITED STATES

another way, “a tribe’s participation in litigation does not 

constitute consent to counterclaims asserted by defendants 

in those actions.” McClendon v. United States, 885 F.2d 

627, 630 (9th Cir. 1989). This doctrine “extends to 

compulsory counterclaims” against a tribe. Quinault Indian 

Nation, 868 F.3d at 1097. Nor does a tribe’s invocation of 

tribal sovereign immunity in a motion to dismiss for lack of 

jurisdiction waive that very defense to the relevant claims. 

See Bodi, 832 F.3d at 1018. This makes sense because “a 

waiver of tribal sovereign immunity cannot be implied but 

must be unequivocally expressed . . . in clear” terms. Id.

at 1016 (cleaned up); see also Santa Clara Pueblo v. 

Martinez, 436 U.S. 49, 56 (1978); Quinault Indian Nation, 

868 F.3d at 1097. The instances where tribal participation 

in litigation will constitute a waiver of tribal sovereign 

immunity must be viewed as very limited exceptions to the 

general rule that preserves tribal sovereign immunity absent 

an unequivocal expression of waiver in clear terms.

Applying these principles, the Tribes did not waive their 

sovereign immunity to Wapato Heritage’s cross-claims as to 

the 2009 and 2014 Replacement Leases. Wapato Heritage 

went on the offensive by asserting these cross-claims against 

the Tribes in answering the complaint filed by Grondal and 

Mill Bay. And the Tribes invoked their immunity from suit 

in two Rule 12(b)(1) motions to dismiss Wapato Heritage’s 

cross-claims for lack of jurisdiction, which were granted. 

Considering this participation of the Tribes in the case, they 

retained their sovereign immunity to Wapato Heritage’s 

cross-claims and the district court did not need to rule on the 

merits of these cross-claims. See Quinault Indian Nation, 

868 F.3d at 1097–98 (explaining that the scope of a tribal 

sovereign immunity waiver is restricted by “the nature and 

bounds of the dispute that the tribe put before the court”); 

Bodi, 832 F.3d at 1016–18 (holding that a tribe did not waive 
GRONDAL V. UNITED STATES 17

its tribal sovereign immunity to certain claims by removing 

a lawsuit to federal court then moving to dismiss those 

claims for lack of subject-matter jurisdiction).

Wapato Heritage urges a contrary conclusion based on 

United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir. 

1989). But that case is distinguishable. There, the Yakima 

Tribe intervened in a civil “action to apportion a fishery 

among competing sovereigns,” then agreed to a settlement 

vesting “continuing jurisdiction in the district court over 

future disputes.” Quinault Indian Nation, 868 F.3d at 1099. 

As a result, the Yakima Tribe, by its own clear and 

unequivocal statement, consented to the submission of 

fishery issues to the district court and waived its sovereign 

immunity to related court orders. Id. The other case on 

which Wapato Heritage relies, United States v. James, 

980 F.2d 1314, 1320 (9th Cir. 1992), is distinguishable on 

the same express waiver basis.

In the alternative, Wapato Heritage contends that its 

challenges to the 2009 and 2014 leases are not moot. This is 

irrelevant to whether tribal sovereign immunity barred crossclaims against the Tribes. See Bodi, 832 F.3d at 1018. We 

also deny Wapato Heritage’s request to cancel these leases 

by a judgment against the BIA. Wapato Heritage’s request 

to void the 2009 lease on procedural grounds became moot 

upon issuance of the 2014 lease, which is not mentioned in 

the cross-complaint. See Bayer v. Neiman Marcus Grp., 

861 F.3d 853, 862 (9th Cir. 2017) (clarifying that issues are 

rendered moot if intervening events prevent courts from 

granting relief). And Wapato Heritage presently disputes 

these leases on a basis not alleged in the cross-complaint, the 

charging of below-market rent on MA-8. This ground for 

relief is forfeited. See Etemadi v. Garland, 12 F.4th 1013, 

1026 (9th Cir. 2021) (“[F]orfeiture is the failure to make a 
18 GRONDAL V. UNITED STATES

timely assertion of a right.”); In re Mercury Interactive 

Corp. Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010). 

Wapato Heritage also did not exhaust its administrative 

remedies for the 2014 lease because it never filed an agency 

appeal from the BIA’s approval of this lease. See 25 C.F.R. 

§§ 2.4, 162.025; Barron v. Ashcroft, 358 F.3d 674, 677 (9th 

Cir. 2004) (“It is a well-known axiom of administrative law 

that if a [party] wishes to preserve an issue for appeal, [it] 

must first raise it in the proper administrative forum.” 

(cleaned up)). For these reasons, we reject Wapato 

Heritage’s arguments regarding mootness.

Wapato Heritage tries to sidestep these problems by 

insisting the district court should have allowed its attack on 

the 2009 lease to proceed with regard to the 2014 lease. But 

no error exists here because Wapato Heritage never moved 

to amend its cross-complaint to dispute issuance of the 2014 

lease or its financial terms. See Fed. R. Civ. P. 15(a)(2); 

Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1218 

(9th Cir. 2012) (“Plaintiffs cannot prevail on an argument 

that the district court should have sua sponte granted a 

motion they never filed.”); Alaska v. United States, 201 F.3d 

1154, 1163 (9th Cir. 2000) (“Where a party never asked for 

permission, its argument that the district court should have 

permitted is without force.” (quotation marks omitted)).

B. Wapato Heritage’s Cross-Claims Against the BIA

A two-part analysis informed the district court’s ruling 

on Wapato Heritage’s cross-claims against the BIA. First, 

to the extent that Wapato Heritage was seeking to recover 

money damages from the United States, the district court 

lacked subject-matter jurisdiction to entertain the relevant 

cross-claims. Second, Wapato Heritage did not state any 

colorable cross-claims against the BIA, so dismissal under 

Rule 12(b)(6) was proper. There was no reason to transfer 
GRONDAL V. UNITED STATES 19

these cross-claims to the Court of Federal Claims. Upon our 

review of the applicable law and the record, we affirm these 

conclusions and reject the contrary arguments made by 

Wapato Heritage.

i.

Under the Tucker Act, the Court of Federal Claims has 

original jurisdiction to “render judgment upon any claim 

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). And the Little Tucker Act gives the 

district courts concurrent jurisdiction over cases not 

exceeding $10,000. 28 U.S.C. § 1346(a)(2). Read in 

conjunction, these two statutes “provide for jurisdiction 

solely in the Court of Federal Claims for Tucker Act claims 

seeking more than $10,000 in damages” against the United 

States. McGuire v. United States, 550 F.3d 903, 910–11 (9th 

Cir. 2008).

The Tucker Act’s counterpart for Native American tribes 

is the Indian Tucker Act, 28 U.S.C. § 1505. It extends the 

original jurisdiction of the Court of Federal Claims to claims 

of identifiable Native American groups in the United States 

“whenever such claim is one arising under the Constitution, 

laws, or treaties of the United States, or Executive orders of 

the President, or is one which otherwise would be cognizable 

in the Court of Federal Claims if the claimant were not an 

Indian tribe, band, or group.” Id.; see Navajo Nation v. U.S. 

Dep’t of the Interior, 26 F.4th 794, 809 (9th Cir. 2022); 

Skokomish Indian Tribe v. United States, 410 F.3d 506, 511 

(9th Cir. 2005) (applying the Indian Tucker Act).
20 GRONDAL V. UNITED STATES

Wapato Heritage’s cross-complaint requested entry of a 

court order requiring the BIA to collect the $866,248 in rent 

CTEC allegedly owed Wapato Heritage under the Casino 

Sublease. This cross-complaint also sought a money 

judgment to recoup $751,285 in overpayments Evans 

purportedly made to the Landowners under the Master 

Lease. To the extent these cross-claims requested money 

damages from the United States, the district court lacked 

subject-matter jurisdiction under the Tucker Act and Little 

Tucker Act. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1); 

McGuire, 550 F.3d at 910–11.

ii.

The above cross-claims can also be construed as requests 

to compel agency action such that the Tucker Act and Little 

Tucker Act are inapplicable. Wapato Heritage regardless 

failed to state a claim against the BIA. The district court 

properly dismissed Wapato Heritage’s cross-claims 

concerning the United States and denied Wapato Heritage’s 

motion to transfer these cross-claims to the Court of Federal 

Claims.

Congress included in the Administrative Procedure Act 

(APA) a waiver of the United States’ sovereign immunity to 

suits involving claims “that an agency or an officer or 

employee thereof acted or failed to act in an official 

capacity” and “seeking relief other than monetary damages.” 

5 U.S.C. § 702. It does not matter that Wapato Heritage 

declined to assert an APA cause of action against the BIA. 

The sovereign immunity waiver in Section 702 extends 

beyond causes of action provided by the APA. See Navajo 

Nation v. U.S. Dep’t of the Interior, 876 F.3d 1144, 1172 

(9th Cir. 2017) (“[T]he second sentence of § 702 waives 

sovereign immunity broadly for all causes of action that 

meet its terms.”).
GRONDAL V. UNITED STATES 21

Apart from the possibility that money damages are at 

issue, the government designates Wapato Heritage’s crossclaims against the BIA as petitions for a writ of mandamus, 

a point Wapato Heritage does not dispute. “Mandamus is an 

extraordinary remedy and is available to compel a federal 

official to perform a duty only if: (1) the individual’s claim 

is clear and certain; (2) the official’s duty is 

nondiscretionary, ministerial, and so plainly prescribed as to 

be free from doubt; and (3) no other adequate remedy is 

available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 

2003).

Wapato Heritage argues that its cross-claims against the 

United States can be treated as a breach of contract action or 

a lawsuit to remedy the BIA’s violation of a trust relationship 

with Wapato Heritage. In addition, Wapato Heritage 

advances a series of contentions that the United States has a 

nondiscretionary duty to enforce the Casino Sublease and 

Master Lease for Wapato Heritage. But Wapato Heritage’s 

cross-complaint never alleges that no other adequate remedy 

is available, and that omission precludes issuance of a writ 

of mandamus against the BIA. Nor do Wapato Heritage’s 

briefs on appeal explain why a writ of mandamus is the only 

way to redress its injuries. Indeed, the opposite is true. 

Regarding the Casino Sublease, Wapato Heritage and CTEC 

agreed that any dispute relating to that contract could be 

redressed in the Colville Tribal Court, and CTEC waived its 

tribal sovereign immunity to such litigation. Wapato 

Heritage can sue CTEC in tribal court for rent due under the 

Casino Sublease. And Wapato Heritage never explains, in 

its cross-complaint or otherwise, why it cannot recover 

Evans’s overpayments to the Landowners under the Master 

Lease by personally suing the Landowners for breach of 

contract, conversion, unjust enrichment, or other causes of 

action to recover funds. See Alhadeff v. Meridian on 
22 GRONDAL V. UNITED STATES

Bainbridge Island, LLC, 220 P.3d 1214, 1223 (Wash. 2009) 

(en banc) (defining the tort of conversion in Washington 

State); Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008) 

(en banc) (reciting the elements of Washington State unjust 

enrichment claims).

In this context, Wapato Heritage did not state a claim for 

a writ of mandamus and dismissal under Rule 12(b)(6) was 

appropriate. See In re Mersho, 6 F.4th 891, 897 (9th Cir. 

2021) (“This court has the authority to issue a writ of 

mandamus under the All Writs Act, 28 U.S.C. § 1651. A 

writ is an extraordinary remedy and Petitioners bear the 

burden of showing that their right to it is clear and 

indisputable.” (cleaned up)). And Wapato Heritage never 

identifies the factual allegations it would add to the 

complaint to cure its failure to plead that no other remedy is 

available. This omission of an element necessary for 

mandamus relief validates the district court’s conclusion that 

leave to amend or transfer of Wapato Heritage’s crossclaims against the United States to the Court of Federal 

Claims would be pointless. See Johnson v. Lucent Techs., 

Inc., 653 F.3d 1000, 1012 (9th Cir. 2011) (“[Plaintiff] failed 

to alert the court as to what new facts [it] would have alleged. 

We fail to see how [Plaintiff] could have amended [its] 

pleadings to cure their deficiencies . . . . Leave to amend 

would have therefore been futile.”). We affirm disposal of 

Wapato Heritage’s cross-claims against the BIA on these 

grounds. See Kildare, 325 F.3d at 1084.

C. The Trust Status of MA-8

Wapato Heritage appeals the district court’s dismissal of 

its cross-claim that MA-8 is not held in trust by the United 

States and its requests for ejectment of the Tribes, quiet title 

to MA-8, and partition of MA-8. This part of Wapato 

Heritage’s appeal must be rejected because we recently 
GRONDAL V. UNITED STATES 23

concluded that MA-8 is still Indian allotment land held in 

trust by the BIA. See Grondal, 21 F.4th at 1145 (“Th[e] trust 

period for MA-8 has been repeatedly extended over the years 

. . . such that to this day, the United States continues to hold 

legal title to the land, in trust for Wapato John’s heirs.”). We 

need go no further on this issue.

D. Wapato Heritage’s Rule 24(a)(2) Motion to 

Intervene

Wapato Heritage maintains that the district court erred in 

denying its motion to participate in the trespass damages trial 

pitting Grondal and Mill Bay against the BIA. The parties 

agree that this request was a Rule 24(a)(2) motion to 

intervene as a matter of right. Under this rule, intervenors as 

of right are any party who “claims an interest relating to the 

property or transaction that is the subject of the action, and 

is so situated that disposing of the action may, as a practical 

matter impair or impede the movant’s ability to protect its 

interest, unless existing parties adequately represent that 

interest.” Fed. R. Civ. P. 24(a)(2). These criteria are not met 

here.

It is true that Wapato Heritage has an interest in MA-8 

via its partial life estate in this Indian allotment land. See 

Grondal, 21 F.4th at 1145 & n.1. But Wapato Heritage did 

not satisfy the other requirements of Rule 24(a)(2). As a 

threshold matter, Wapato Heritage lacks intervenor standing 

because its argument for intervention is based on Mill Bay’s 

alleged threats to sue Wapato Heritage for indemnification 

of trespass damages awarded against Mill Bay. There is no 

evidence in the record that any such lawsuit has been filed 

by Mill Bay, and conjectural or hypothetical injuries cannot 

create Article III standing. See Spokeo, Inc. v. Robins, 

578 U.S. 330, 339 (2016) (“To establish injury in fact, a 

plaintiff must show that he or she suffered an invasion of a 
24 GRONDAL V. UNITED STATES

legally protected interest that is concrete and particularized 

and actual or imminent, not conjectural or hypothetical.” 

(cleaned up)). In addition, Wapato Heritage faced no direct 

liability in this trespass damages trial and is not bound by the 

judgment because it was excluded from those proceedings. 

And Mill Bay adequately represented Wapato Heritage’s 

interests because they had the same goal of minimizing the 

trespass damages awarded. See Arakaki v. Cayetano, 

324 F.3d 1078, 1086 (9th Cir. 2003) (“When an applicant for 

intervention and an existing party have the same ultimate 

objective, a presumption of adequacy of representation 

arises.”). The district court properly denied intervention. 

See id. (affirming denial of intervention as of right because 

the movant did not overcome the presumption of adequate 

representation by a party with parallel interests). We reject 

Wapato Heritage’s assertions to the contrary and we will not 

remand this case for further proceedings on trespass 

damages.

Wapato Heritage urges the opposite conclusion by 

suggesting that the district court’s denial of its motion to 

intervene and the related motion to compel discovery 

deprived Mill Bay of documents and expert testimony 

relevant to trespass damages. This contention is unavailing. 

Wapato Heritage was terminated as a party to this case when 

the district court denied its motion to intervene, rendering its 

motion to compel discovery moot. See Public Utils. 

Comm’n of Cal. v. F.E.R.C., 100 F.3d 1451, 1458 (9th Cir. 

1996) (clarifying that the question of mootness turns on 

whether “there is a substantial controversy, between parties 

having adverse legal interests”). And Wapato Heritage lacks 

standing to litigate the disadvantages Mill Bay may have 

incurred because the district court did not compel certain 

discovery. See Warth v. Seldin, 422 U.S. 490, 499 (1975) 

(emphasizing that a party “generally must assert his own 
GRONDAL V. UNITED STATES 25

legal rights and interests, and cannot rest his claim to relief 

on the legal rights or interests of third parties”). Wapato 

Heritage has not set out any legitimate ground on which we 

could vacate the verdict entered in the trespass damages 

bench trial below.

IV. CONCLUSION

For the above reasons, we affirm the dismissal of Wapato 

Heritage’s cross-claims against the Tribes and the United 

States, and the denial of Wapato Heritage’s motion to 

intervene in the trespass damages trial between Grondal, 

Mill Bay, and the BIA.

AFFIRMED.