FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CACHIL DEHE BAND OF WINTUN  No. 06-16145

INDIANS OF THE COLUSA INDIAN D.C. No.

COMMUNITY, a federally recognized CV-04-02265-FCD

Indian Tribe,

Plaintiff-Appellant, ORDER

AMENDING

v. OPINION AND

STATE OF CALIFORNIA; CALIFORNIA DENYING THE

GAMBLING CONTROL COMMISSION,  PETITION FOR

an agency of the State of PANEL

California; and ARNOLD REHEARING AND

SCHWARZENEGGER, Governor of the PETITION FOR

State of California, REHEARING

Defendants-Appellees. EN BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

April 9, 2008—Pasadena, California

Filed August 8, 2008

Amended October 24, 2008

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Canby

14913
COUNSEL

George Forman, Forman & Associates, San Rafael, California, for the plaintiff-appellant. 

Christine M. Murphy, Deputy Attorney General, Sacramento,

California (briefs); Peter H. Kaufman, Deputy Attorney General, San Diego, California (oral argument); for the

defendants-appellees. 

ORDER

The opinion filed in this case on August 8, 2008, slip op.

at 10159, to appear at 536 F.3d 1034 (9th Cir. 2008), is

amended as follows: 

At slip op. at 10166, first full paragraph, line 6: Insert “by

the tribe on September 1, 1999,” after “number of gaming

devices operated.” 

At slip op. at 10169, lines 3-4: delete “for the issuance of

up to 22,500 additional gaming device licenses” and substitute therefor: “for the operation of up to 22,500 additional

gaming devices.” 

At slip op. 10174, lines 11-12: delete “for the issuance of

up to 22,500 additional licenses” and substitute therefor: “for

the operation of up to 22,500 additional gaming devices.” 

With these amendments, the panel has voted to deny the

petition for panel rehearing. Judges Kleinfeld and Bybee have

CACHIL DEHE BAND v. CALIFORNIA 14917
voted to deny the petition for rehearing en banc, and Judge

Canby has so recommended. 

The petition for en banc rehearing, together with these

amendments, has been circulated to the full court, and no

judge of the court has requested a vote on the petition for

rehearing en banc. Fed. R. App. P. 35(b). 

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing

or rehearing en banc may be filed. No other petitions for panel

or en banc rehearing remain pending.

OPINION

CANBY, Circuit Judge: 

This appeal concerns the joinder requirements of Rule 19

of the Federal Rules of Civil Procedure and their effect on litigation brought by an Indian tribe engaged in casino gaming.

The Cachil Dehe Band of Wintun Indians of the Colusa

Indian Community (“Colusa”), a federally recognized Indian

tribe, entered into a gaming compact with the State of California in 1999. Colusa brought this action for declaratory and

injunctive relief against the State, its Governor and the California Gambling Control Commission (collectively, “the

State”). Colusa challenges the Commission’s interpretation of

the compact and the Commission’s assumption of authority to

administer unilaterally the licensing of electronic gaming

devices. The district court concluded that the many other

Indian tribes that had entered into identical gaming compacts

with the State in 1999, as well as California’s non-gaming

tribes, were required parties to this action. Because Indian

tribes enjoy sovereign immunity and the action could not proceed in their absence, the district court granted the State’s

motion for judgment on the pleadings. Colusa appeals.

14918 CACHIL DEHE BAND v. CALIFORNIA
Because we conclude that the absent tribes are not required

parties to this action, we reverse the district court’s judgment

(with one minor exception) and remand for further proceedings. 

BACKGROUND

In 1988, Congress enacted the Indian Gaming Regulatory

Act (“IGRA”) “to provide a statutory basis for the operation

of gaming by Indian tribes as a means of promoting tribal

economic development, self-sufficiency, and strong tribal

governments.” 25 U.S.C. § 2702(1). IGRA recognizes three

classes of gaming. 25 U.S.C. § 2703(6)-(8). Slot machines

and equivalent gaming devices, which are the exclusive subject of this litigation, are Class III games. See 25 U.S.C.

§ 2703(7)(B)(ii), (8). Under the statute, a tribe may conduct

Class III gaming activities only “in conformance with a

Tribal-State compact entered into by the Indian tribe.” 25

U.S.C. § 2710(d)(1)(C). 

In September 1999, Colusa entered into a gaming compact

(the “Compact”) with the State of California, which sets forth

various provisions relating to the operation of Class III gaming devices. See Tribal-State Gaming Compact Between the

Colusa Indian Community and the State of California (Oct. 8,

1999). At the same time, sixty-two other tribes (the “Compact

Tribes”) executed virtually identical bilateral compacts with

the State (the “1999 Compacts”).1See Artichoke Joe’s Cal.

Grand Casino v. Norton, 353 F.3d 712, 717-18 (9th Cir.

2003). The 1999 Compacts limit the number of gaming

devices operated by each tribe to 2,000. See 1999 Compacts,

§ 4.3.2.2(a). They also establish a formula setting a statewide

maximum number of gaming devices that all Compact Tribes

may license in the aggregate under the 1999 Compacts. Id.

§ 4.3.2.2(a)(1). 

1A generic copy of a 1999 Compact is available at

http://www.cgcc.ca.gov/enabling/tsc.pdf (last visited July 31, 2008). 

CACHIL DEHE BAND v. CALIFORNIA 14919
A Compact Tribe, however, is not free to choose unilaterally how many gaming devices to operate, even if it wishes

to operate fewer devices than the 2,000 limit. The Compacts

establish a threshold number of devices that tribes may operate without a license. Id. § 4.3.1. In Colusa’s case, that number was set at the number of gaming devices, 523, operated

by the Tribe on September 1, 1999. For each additional gaming device, Colusa is required to obtain a license. Id.

§ 4.3.2.2(a). These licenses are distributed among the Compact Tribes who apply to obtain them pursuant to a detailed

draw process. See id. § 4.3.2.2(a)(3). Under this process, a

Compact Tribe’s likelihood of being awarded a license hinges

on its placement in one of five priority tiers. Id. Placement in

a particular tier depends in part—though not exclusively—

upon the number of gaming devices already operated by the

tribe; the fewer gaming devices a tribe operates, the higher its

priority tier. Id. If, in any given round, more licenses are

requested in aggregate by the Compact Tribes than the Commission is distributing, the license draw process is structured

to award the bulk of those licenses to the Compact Tribes who

have not yet developed large gaming operations. Id.

In 2001, then-Governor Gray Davis issued an executive

order requiring the California Gambling Control Commission

(“Commission”) to take control of the licensing of gaming

devices. Exec. Order No. D-29-01 (Mar. 8, 2001). Previously,

a tribal administrator had conducted gaming device license

draws. As soon as the Commission assumed control, it

declared the licenses issued in previous draws invalid and

replaced them with licenses issued by the Commission. 

The 1999 Compacts also envision a revenue-sharing mechanism for the benefit of California’s non-gaming tribes. See

1999 Compacts, § 4.3.2.1. In order to acquire licenses for

gaming devices in excess of their initial allowance, Compact

Tribes must pay “a non-refundable one-time pre-payment fee”

of $1,250 for each gaming device being licensed. Id.

§ 4.3.2.2(e). In addition, in order to keep their licenses cur14920 CACHIL DEHE BAND v. CALIFORNIA
rent, Compact Tribes must pay annual fees for each licensed

device in accordance with a pre-determined fee schedule. Id.

§ 4.3.2.2(a)(2). The fees are to be deposited in the Revenue

Sharing Trust Fund (“Revenue Fund”), a fund created by the

California State Legislature and administered by the Commission as trustee. Id. Each Non-Compact Tribe2

 is entitled to

receive a distribution of $1.1 million per year from the Revenue Fund, unless the funds therein are insufficient, in which

case the available funds are distributed in equal shares among

the Non-Compact Tribes. Id. § 4.3.2.1(a). The Commission

has interpreted the 1999 Compacts as providing that the nonrefundable, one-time pre-payment fee may be used as a credit

toward annual license fees, and that no annual fees would be

required for the first 350 licenses issued to a tribe. 

Pursuant to the 1999 Compacts, the Legislature also created

the Indian Gaming Special Distribution Fund (“Distribution

Fund”). Cal. Gov’t Code § 12012.85. The 1999 Compacts

direct each gaming tribe to contribute to the Distribution Fund

a portion of its revenues calculated according to the number

of gaming devices operated by the tribe on September 1,

1999, and the “net wins” of those devices. 1999 Compacts

§ 5.1(a). The Legislature may then appropriate funds from the

Distribution Fund to make up for “shortfalls that may occur

in the . . . Revenue . . . Fund. This shall be the priority use

of moneys in the . . . Distribution Fund.” Cal. Gov’t Code

§ 12012.85(d). 

In 2002, the Commission notified Colusa and other Compact Tribes that it would conduct a round of gaming device

license draws that September. Prior to the draw, Colusa was

operating its threshold number of 523 gaming devices for

2For purposes of revenue sharing, the 1999 Compacts define a Compact

Tribe as a tribe having a compact with the State authorizing Class III

Gaming; Non-Compact Tribes are defined as federally recognized tribes

that are operating fewer than 350 gaming devices, whether or not such a

tribe has a compact with the State. 

CACHIL DEHE BAND v. CALIFORNIA 14921
which it did not need licenses. Colusa notified the Commission of its intent to draw 250 licenses and tendered a $312,500

check as its non-refundable one-time pre-payment fee. Colusa

was placed in the third priority tier and received 250 licenses.

In November 2003, the Commission notified Colusa that it

would conduct another round of draws in December 2003.

Colusa requested 377 licenses and submitted a pre-payment of

$471,250. Colusa was assigned to the fourth priority tier, a

classification that Colusa challenges in this litigation. Colusa

alleges that it was assigned to the fourth tier because it had

previously drawn some licenses in the third tier, even though

the number of gaming devices it operated after the earlier

drawing should have continued to place it in the third tier. The

December drawing was held with Colusa in the fourth tier and

it received no licenses. The Commission refunded the prepayment for those requested licenses in full. In October 2004,

the Commission conducted a third draw. Colusa advanced

fees for 341 licenses and was again placed in the fourth priority tier. It received only 73 licenses. Colusa anticipates receiving a refund of the pre-payment on the licenses that it did not

receive in the draw. 

Immediately after the December 2003 draw, Colusa

requested that the Governor meet and confer with the Tribe

with regard to (1) Colusa’s assignment to the fourth priority

tier in the December 2003 draw; (2) the Commission’s determination of the statewide aggregate number of licenses available to all tribes for issuance under the 1999 Compacts; (3)

the Commission’s role and authority in the draw process; and

(4) the Commission’s retention of the $312,500 tendered by

the Tribe in connection with its draw of 250 licenses in September 2002. After an unsuccessful meeting, the State formally rejected each of Colusa’s positions. Colusa then

initiated this litigation. 

In its complaint, Colusa asserts that the State, through the

actions of the Commission, breached the Compact by: (1)

excluding Colusa from the third priority tier in the December

14922 CACHIL DEHE BAND v. CALIFORNIA
2003 and October 2004 draws; (2) unilaterally determining

the aggregate number of licenses authorized by the Compact;

(3) refusing to refund Colusa’s non-refundable one-time prepayment fee in conjunction with the licenses Colusa obtained

in September 2002 and October 2004; (4) conducting rounds

of draws of licenses without authority; and (5) failing to negotiate in good faith. The State filed a motion for judgment on

the pleadings, seeking to dismiss Colusa’s first, second, third,

and fourth claims for failure to join necessary and indispensable parties and its fifth claim for failure to exhaust nonjudicial remedies.3

 The district court granted the State’s

motion to dismiss and entered judgment in its favor. Colusa

appeals. 

While Colusa’s appeal was pending, the State negotiated

and executed amendments to the 1999 Compacts individually

with at least five Indian tribes, not including Colusa.4 These

3Colusa lists its fifth cause of action—failure to negotiate in good faith

—among its grounds for appeal. It does not, however, advance any argument in support of reversing the district court’s judgment with respect to

that claim. Accordingly, we deem the claim abandoned. See Fed. R. App.

P. 28(a)(9)(A); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992)

(“Issues raised in a brief which are not supported by argument are deemed

abandoned.”) (quoting Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.

1988)). We therefore affirm the district court’s dismissal of that claim. 

4Amendment to the Tribal-State Compact Between the State of California and the Agua Caliente Band of Cahuilla Indians (Aug. 8, 2006);

Amendment to the Tribal-State Compact Between the State of California

and the Morongo Band of Mission Indians (Aug. 29, 2006); Amendment

to the Tribal-State Compact Between the State of California and the

Pechanga Band of Luiseno Mission Indians (Aug. 28, 2006); Amendment

to the Tribal-State Compact Between the State of California and the Sycuan Band of the Kumeyaay Nation (Aug. 30, 2006); Amendment to the

Tribal-State Compact Between the State of California and the San Manuel

Band of Serrano Mission Indians of the San Manuel Reservation (Aug. 28,

2006); see also Indian Gaming, 72 Fed. Reg. 71,939-02–71,939-04 (Dec.

19, 2007) (notices); Indian Gaming, 73 Fed. Reg. 3,480-01 (Jan. 18, 2008)

(notice); California Gambling Control Commission, Tribal-State Gaming

Compacts, http://www.cgcc.ca.gov/compacts.asp (last visited July 31,

CACHIL DEHE BAND v. CALIFORNIA 14923
amended compacts, which became effective between December 2007 and January 2008 (“2007 Amended Compacts”),

provide for the operation of up to 22,500 additional gaming

devices outside the limits established by the 1999 Compacts.5

See 2007 Amended Compacts § II.B (amended § 4.3.1(a)). In

addition, four of the five 2007 Amended Compacts provide

that, if a shortfall occurs in the Revenue Fund, “the State

Gaming Agency shall direct a portion of the revenue contribution” made by each of the 2007 Compact Tribes “to increase

the revenue contribution to the [Revenue Fund] in an amount

sufficient to ensure the [Revenue Fund] has sufficient

resources for each eligible recipient Indian tribe to receive

quarterly payments pursuant to Government Code Section

12012.90.” E.g., Amendment to the Tribal-State Compact

Between the State of California and the Morongo Band of

Mission Indians § II.B (Aug. 29, 2006) (amended § 4.3.1.(l)),

available at http://www.cgcc.ca.gov/compacts.asp (last visited July 31, 2008). The aggregate revenue contribution made

by these four tribes, which is therefore available to fill any

shortfall in the Revenue Fund, exceeds $140 million per year.

See 2007 Amended Compacts § II.B (amended § 4.3.1(b)(i)).

2008). We take judicial notice of these amended compacts pursuant to

Federal Rule of Evidence 201, which “permits us to ‘take judicial notice

of the records of state [entities] and other undisputed matters of public

record,’ [including] executed Compact[s] . . . not in the district court

record.” Wilbur v. Locke, 423 F.3d 1101, 1112 (9th Cir. 2005) (quoting

Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,

866 n.1 (9th Cir. 2004)). We note and overrule the State’s objection to our

consideration of these materials. 

5The 2007 Amended Compacts allow the amending tribes to continue

operating machines pursuant to licenses previously issued under the pool

provision as well as machines which were operated on September 1, 1999.

The pool provision licenses remain in force even though the 2007

Amended Compacts repeal the pool provision itself. 

14924 CACHIL DEHE BAND v. CALIFORNIA
DISCUSSION

In addressing the State’s Rule 19 motion to dismiss Colusa’s claims for failure to join required parties, “the proper

approach is first to decide whether the tribes are . . . ‘[required]’ parties who should normally be joined under the

standards of Rule 19(a).” Am. Greyhound Racing, Inc. v. Hull,

305 F.3d 1015, 1022 (9th Cir. 2002).6 If, as the district court

concluded in this case, the tribes are required parties, “the

court must determine whether, in equity and good conscience,

the action should proceed among the existing parties or

should be dismissed.”

7

 Fed. R. Civ. P. 19(b). On appeal, we

review the district court’s Rule 19 determinations for an abuse

of discretion. Am. Greyhound Racing, 305 F.3d at 1022; cf.

Republic of the Philippines v. Pimentel, 128 S. Ct. 2180, 2189

(2008) (declining to address the standard of review for Rule

19(b) decisions). To the extent that in its inquiry the district

court “decided a question of law, we review that determination de novo.” Am. Greyhound Racing, 305 F.3d at 1022. 

The issue that we find dispositive of all contested portions

of this appeal is whether the absent tribes are “required” parties to the adjudication of Colusa’s first, second, third and

fourth claims within the meaning of Rule 19(a). We conclude

6The language of Federal Rule of Civil Procedure 19 has been amended

since the district court’s dismissal of this action. The Rules Committee

advised that the changes were “stylistic only,” see Fed. R. Civ. P. 19 advisory comm. nn. (2008), and the Supreme Court has agreed, see Republic

of the Philippines v. Pimentel, 128 S. Ct. 2180, 2184 (2008). Two changes

are relevant to this case. First, the word “required” replaced the word

“necessary” in subparagraph (a). Second, the word “indispensable” is

deleted from the current text of subparagraph (b). All quotations hereinafter to materials predating the 2007 amendment are altered, with brackets,

to reflect the current language of Rule 19. 

7The parties do not dispute that the absent tribes enjoy sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Accordingly, because they have not consented to suit, they cannot be joined in

this action. 

CACHIL DEHE BAND v. CALIFORNIA 14925
that they are not, and that the district court abused its discretion in finding that the absent tribes were required parties to

the disposition of these claims. We accordingly reverse the

district court’s judgment with respect to those claims and

remand for further proceedings. Our conclusion that the

absent tribes are not required parties under Rule 19(a) makes

inapplicable the provisions of Rule 19(b) governing the decision whether to proceed with litigation when a required party

cannot be joined; we therefore do not address the district

court’s determination of that issue.8

[1] The absent tribes are “required” parties to this action if

they “claim[ ] an interest relating to the subject of the action

and [are] so situated that disposing of the action in [their]

absence may: (i) as a practical matter impair or impede [their]

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.”

Fed. R. Civ. P. 19(a)(1)(B) (emphases added).9 A crucial

premise of mandatory joinder, then, is that the absent tribes

possess an interest in the pending litigation that is “legally

protected.” Makah Indian Tribe v. Verity, 910 F.2d 555, 558

(9th Cir. 1990). We have developed few categorical rules

informing this inquiry. At one end of the spectrum, we have

held that the interest at stake need not be “property in the

sense of the due process clause.” Am. Greyhound Racing, 305

F.3d at 1023. At the other end of the spectrum, we have recognized that the “interest must be more than a financial stake,

8For the same reason, our analysis is not affected by the Supreme

Court’s recent holding in Pimentel, 128 S. Ct. at 2190. In Pimentel, the

Supreme Court reversed the decision of a panel of this court because it had

not “giv[en] full effect to sovereign immunity” in its Rule 19(b) calculus.

Id. Because in our case the absent tribes are not required parties under

Rule 19(a), we are unaffected by the Rule 19(b) analysis set forth in

Pimentel. 

9The State does not contend that, in the absence of the other Compact

(or Non-Compact) Tribes, “the court cannot accord complete relief among

existing parties.” Fed. R. Civ. P. 19(a)(1)(A). 

14926 CACHIL DEHE BAND v. CALIFORNIA
and more than speculation about a future event.” Makah, 910

F.2d at 558 (citations omitted); see also N. Alaska Envtl. Ctr.

v. Hodel, 803 F.2d 466, 468-69 (9th Cir. 1986) (holding that

miners who had submitted mining plans to National Park Service were not necessary parties to an action to enjoin mining

in parks until environmental impact statements were prepared). Within the wide boundaries set by these general principles, we have emphasized the “practical” and “fact-specific”

nature of the inquiry. Makah, 910 F.2d at 558; see also Bakia

v. County of Los Angeles, 687 F.2d 299, 301 (9th Cir. 1982)

(per curiam) (“There is no precise formula for determining

whether a particular nonparty should be joined under Rule

19(a) . . . . The determination is heavily influenced by the

facts and circumstances of each case.”). Accordingly, an

interest that “arises from terms in bargained contracts” may

be protected, but we have required that such an interest be

“substantial.” Am. Greyhound Racing, 305 F.3d at 1023. An

interest in a fixed fund or limited resource that the court is

asked to allocate may also be protected. Makah, 910 F.2d at

558-59. At the same time, an absent party has no legally protected interest at stake in a suit merely to enforce compliance

with administrative procedures. See N. Alaska, 803 F.2d at

469; Makah, 910 F.2d at 559 (“The absent tribes would not

be prejudiced because all of the tribes have an equal interest

in an administrative process that is lawful.”). 

The Size of the License Pool 

Colusa challenges the Commission’s computation of the

statewide maximum number of licences that may be issued

under the 1999 Compacts. The district court dismissed Colusa’s claim, concluding that the other Compact Tribes are

required parties in the absence of which the action should be

dismissed. Although we agree with the district court that some

absent tribes may prefer that the State issue fewer licenses, we

reverse its dismissal of Colusa’s claim because the absent

tribes’ only interest relevant for Rule 19(a) purposes is freeCACHIL DEHE BAND v. CALIFORNIA 14927
dom from competition. We hold that this interest, without

more, is not “legally protected” for Rule 19 purposes. 

[2] It is important to identify clearly the Compact Tribes’

interest at stake. Those Compact Tribes that currently enjoy

a dominant position in the gaming industry will likely prefer

to maintain a low statewide maximum number of licenses

available under the 1999 Compacts. On the other hand, those

who intend to expand their gaming operations and compete

with the dominant gaming tribes will gladly accept an

increase in the size of the license pool created by the 1999

Compacts. Indeed, the State itself repeatedly characterizes the

absent tribes’ interest at stake as the preservation of their

“market share” within California’s gaming industry. Properly

framed, then, the respective advantages that various tribes

may enjoy under a more generous or restrictive interpretation

of the pool provision are an economic incident of their market

positions under a common licensing regime. 

[3] The mere fact that the outcome of Colusa’s litigation

may have some financial consequences for the non-party

tribes is not sufficient to make those tribes required parties,

however. See, e.g., Makah, 910 F.2d at 558 (“[The] interest

must be more than a financial stake.”). The absent tribes must

have a legally protected interest and, on this record, the only

potential protection lies in the 1999 Compacts themselves.

The interest could be protected if it actually “arises from

terms in bargained contracts.” Am. Greyhound Racing, 305

F.3d at 1023. We conclude that it does not.10 The 1999 Com10We do not decide the broader question whether avoiding competition

ever qualifies as a legally protected interest under Rule 19(a) in the context of Indian gaming. We note, however, that the legislative history of

IGRA casts considerable doubt on a state’s assertion of any such interest

in the context of Indian gaming; the Senate’s Select Committee on Indian

Affairs reported its intent that the states not use IGRA’s Class III gaming

compact requirement as a protectionist measure, although that concern

was directed at the protection of non-tribal operators, not absent tribes as

in this case. See S. Rep. No. 100-446, at 13 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3083. 

14928 CACHIL DEHE BAND v. CALIFORNIA
pacts do not purport to establish, through the license pool provision or otherwise, an overarching limit on the number of

gaming licenses generally available in California. Rather, they

place a limit only on the smaller universe of licenses that may

be issued under the 1999 Compacts.

11 This limit alone is

insufficient to determine the competitive landscape of California’s gaming industry, for it leaves the State at liberty to issue

an unlimited number of licenses outside the pool created by

the 1999 Compacts. Indeed, the State has recently negotiated

amendments, now in effect, to the 1999 Compacts with several tribes. These amendments provide for the operation of up

to 22,500 additional gaming devices outside the pool created

by the 1999 Compacts. These actions reflect the reality that

the 1999 Compacts afford no express or implied protection

against competition per se. The interest of some of the absent

tribes in avoiding competition does not “arise[ ] from terms in

bargained contracts,” id., and is accordingly not “legally protected” under the circumstances of this case. The absent 1999

Compact tribes thus are not required parties for litigation of

Colusa’s claim seeking to raise the aggregate limit on licenses

under the 1999 Compacts. 

In reaching this conclusion, we reject the State’s contention

that its licensing scheme is comparable to the system for the

allocation of limited resources at issue in Makah. In Makah,

we held that absent tribes had a protected interest that made

them necessary parties to a claim for amendment of a preexisting allocation of a finite resource—a particular year’s

off-shore salmon harvest—because an allocation to one tribe

necessarily entailed the parallel deprivation of another.

Makah, 910 F.2d at 556-57. The resource at issue was finite:

ocean fishing of salmon in excess of the total permitted harvest would jeopardize the survival of the species’ population

in the region’s weakest runs. Id. at 557. In contrast, the gam11The 1999 Compacts establish a formula for a limit on the “number of

machines that all Compact Tribes in the aggregate may license pursuant

to this Section . . . .” 1999 Compacts § 4.3.2.2(a)(1) (emphasis added). 

CACHIL DEHE BAND v. CALIFORNIA 14929
ing licensing scheme at issue here rations a resource—

licenses for gaming devices—that is, if not for purely economic considerations, effectively unlimited. Thus, for the reasoning of Makah to be at all relevant to this case, the State

would need to show that, despite not being inherently finite,

the resource of licenses for gaming devices is rendered at least

legally finite by operation of the terms of the 1999 Compacts.

As we have already explained, however, the statewide cap put

in place by the 1999 Compacts does not, without more, constrain the number of gaming licenses generally available in

California. Thus, the absent tribes have no legally protected

interest in the determination of the license pool that may be

issued under the 1999 Compacts. 

[4] Finally, we also find it significant that, unlike the plaintiff in American Greyhound Racing, Colusa does not seek to

invalidate compacts to which it is not a party; this litigation

is not “aimed” at the other tribes and their gaming. Am. Greyhound Racing, 305 F.3d at 1026. On the contrary, Colusa

seeks to enforce a provision of its own Compact which may

affect other tribes only incidentally. Under the specific circumstances of this case, the Compact Tribes are not required

parties to the adjudication of Colusa’s challenge to the size of

the 1999 Compact license pool.12

Colusa’s Placement in Priority Tier IV

Colusa next challenges its placement in the fourth priority

tier since the December 2003 draw. The district court dismissed Colusa’s claim on the ground that the absent Compact

Tribes “would be deprived of th[eir gaming] licenses or the

12We also are not persuaded by the State’s unexplained contention that

adjudication of Colusa’s challenge to the Commission’s determination of

the statewide cap would expose the State to a significant risk of “inconsistent obligations” within the meaning of Rule 19. Should different district

courts reach inconsistent conclusions with respect to the size of the license

pool created under the 1999 Compacts, such inconsistencies could be

resolved in an appeal to this court. 

14930 CACHIL DEHE BAND v. CALIFORNIA
opportunity to obtain those licenses.” This ruling was error,

for it misconstrues both the nature of the absent tribes’ interest in the licenses that may be issued in the future and the

consequences of litigating Colusa’s challenge to its placement

in the fourth tier. It is true that, if one assumes that the license

pool is finite, an order to issue new licenses to Colusa may

render those licenses unavailable to the absent tribes, thereby

depriving them of their “opportunity” to obtain them. Nonetheless, we conclude that the absent tribes’ interest in their

“opportunity” to obtain future licenses is insufficient to render

them “required” parties for Rule 19(a) purposes. 

[5] Once again, it is necessary carefully to identify the

absent parties’ interest at stake. To the extent that the “opportunity” to obtain licenses means the entitlement to participate

in future rounds of draws, the litigation of Colusa’s tier

assignment will not “as a practical matter impair or impede

the [absent tribes’] ability to protect the interest.” Fed. R. Civ.

P. 19(a)(1)(B)(i). The absent tribes remain free to enter future

draws. The possible complaint of the absent tribes, however,

is that assignment of Colusa to a higher priority tier may

dilute the probability that the absent tribes will obtain the

licenses they apply for. But the absent tribes have no guarantee against having to compete with any particular number of

tribes in their tier or a higher-priority tier. Nor can it be said

that any particular degree of likelihood of receiving licenses

“arises from terms in bargained contracts” and, more specifically, from the 1999 Compacts. Am. Greyhound Racing, 305

F.3d at 1023. Under IGRA, entering into a compact with state

authorities is, of course, a threshold requirement for Indian

tribes wishing to develop Class III gaming operations. See 25

U.S.C. § 2710(d)(1)(C). In that sense, if it were not for the

1999 Compacts, the absent tribes would have no likelihood of

ever obtaining any licenses. In our “practical” and “factspecific” Rule 19 inquiry, however, we require more than

mere “but-for” causation before recognizing a legally protected interest. Makah, 910 F.2d at 558; see also Bakia, 687

F.2d at 301. Here, in addition to the threshold requirement of

CACHIL DEHE BAND v. CALIFORNIA 14931
a compact, a number of other factors determine the actual

likelihood that any given tribe will receive any licenses. As

the facts of this litigation demonstrate, crucial among these

factors is the past, present and future demand for new licenses

by other tribes placed in higher or equal priority tiers. A tribe

wishing to obtain additional licenses has absolutely no control

over the overall demand for new licenses, or over the number

of tribes that may be placed in the same or a higher priority

tier. Thus, the causal connection between the terms of the

1999 Compacts and an absent tribe’s likelihood of obtaining

future licenses is attenuated indeed. See Makah, 910 F.2d at

558 (“speculation about a future event” does not give rise to

a legally protected interest). We therefore conclude that no

particular degree of likelihood of obtaining licenses “arises

from terms in bargained contracts,” Am. Greyhound Racing,

305 F.3d at 1023. As a consequence, the opportunity to obtain

licenses does not qualify as a legally protected interest for

Rule 19 purposes. 

The interest of the absent tribes in Colusa’s tier assignment

is therefore quite different from the interest of the absent

tribes in American Greyhound Racing. In that case, we

emphasized that the gaming compacts between Arizona and

the Indian tribes, which were the subject of that litigation,

“provide[d] for automatic renewal if neither party gives the

requisite notice of termination. [That] provision [was] an integral part of the existing compacts, and was part of the bargain

that the tribes entered with the State.” Am. Greyhound Racing,

305 F.3d at 1023. We reversed the district court’s injunction

because it modified the compacts of the absent tribes and

stripped those tribes of the very object of their bargain—

automatic renewal unless the parties affirmatively terminated

the compacts. Id. Here, Colusa’s tier claim does not negate

any absent tribe’s right to its place in any tier, or its right to

participate in the manner guaranteed by the Compacts. Colusa’s claim at most increases the competition for licenses to be

drawn but, as we have explained, the 1999 Compacts do not

guarantee freedom from competition, nor do they grant an

14932 CACHIL DEHE BAND v. CALIFORNIA
entitlement to draw any specific license or number of licenses

or even a predetermined place in line that may entail a particular likelihood of obtaining new licenses. Thus, American

Greyhound Racing does not control, because litigation of

Colusa’s claim for placement in a higher tier cannot impair

any Compact rights that were the object of the bargain of the

absent tribes. 

[6] Different considerations apply to the interest of the

absent tribes in the licenses that they have already received.

We do not question that the Compact Tribes which requested

and obtained licenses in the December 2003 and subsequent

draws by placing ahead of Colusa have a legally protected

interest in those licenses. In order for the absent tribes to be

“required” parties under Rule 19, however, the State must

also show that their ability to protect their interest “may . . .

as a practical matter [be] impair[ed]” by the litigation of Colusa’s claim to a higher tier placement. Fed. R. Civ. P. 19(a)(1)

(B)(i). To the extent that Colusa seeks prospective relief in the

form of a declaration that may place it in the third priority tier

in future draws, such relief, if granted, would not prejudice

the absent tribes’ legally protected interest in their existing

licenses.13 It was therefore an abuse of discretion for the district court to prohibit Colusa from litigating the legality of the

Commission’s interpretation of the tier system. Like the

Makah court, however, we emphasize that “the scope of the

relief available [to Colusa] . . . is narrow.” Makah, 910 F.2d

at 559. Accordingly, to the extent Colusa seeks injunctive

relief requiring the Commission to restore Colusa to the position it would have occupied under its claimed interpretation

of the Compact by issuing new licenses, such relief may be

13The State’s contention that prospective relief is inapposite because

Colusa’s tier placement would be determined by a formula not available

to the other Compact Tribes is unavailing. As we explained, the 1999

Compacts do not create a legally protected interest in either freedom from

competition, see supra p. 14927-28, or a specific place in line in future

draws, see supra p. 14932-33. 

CACHIL DEHE BAND v. CALIFORNIA 14933
granted only insofar as it does not interfere with the validity

or distribution of the licenses already assigned to the other

Compact Tribes.14

Colusa’s Pre-payment Fees

In its next claim, Colusa seeks restitution of the $403,750

it tendered to the Commission as pre-payment for the 323

licenses it has obtained in the draws thus far. The Commission, as trustee of the Revenue Fund, is holding the prepayment as a credit against future annual fees. Colusa argues

that the pre-payment should be refunded because Colusa will

not owe any annual fees until it draws at least 350 licenses—

an illusory prospect so long as the tribe is assigned to the

fourth priority tier.15 The district court dismissed the claim

because Colusa’s non-refundable pre-payment is deposited in

the Revenue Fund and, “to the extent that there is insufficient

money to pay each Non-Compact Tribe $1.1 million per year,

an award to plaintiff will lessen the amount of money distributed to each other tribe.” Thus the district court held that the

claim could not be litigated in the absence of the nonCompact tribes eligible for distributions from the Fund. 

14We reject the State’s argument that, if Colusa prevailed on its first

claim that it was entitled to a higher tier placement, the entire license draw

process would have to be retroactively undone. Colusa does not seek this

remedy and we see no reason why a court of equity would be compelled

to grant it. 

We also reject the State’s contention that “the other 1999 Compact

tribes, which have been placed in tiers based on the Commission’s interpretation of the tier process, would nevertheless have suffered prejudice.”

The licenses that have already been issued comprise the absent tribes’ only

legally protected interest at stake. As we have made clear, however, none

of those licenses may be invalidated at the remedial stage. 

15The Tribe drew 250 licenses in September 2002, and another 73 in

October 2004, for a total of 323 licenses. Colusa represents that it will not

be permitted to draw any more licenses so long as it remains in a lowpriority tier. 

14934 CACHIL DEHE BAND v. CALIFORNIA
[7] We need not decide whether the district court’s Rule

19(a) determination was correct. The State’s intervening

amendment and ratification of its 1999 Compacts with several

gaming tribes, which is memorialized in the 2007 Amended

Compacts, have significantly altered the financing of the Revenue Fund. Four of the 2007 Amended Compacts that are now

in effect contain the following provision:

If it is determined that there is an insufficient amount

in the Indian Gaming Revenue Sharing Trust Fund

in a fiscal year to distribute the quarterly payments

pursuant to Government Code Section 12012.90 to

each eligible recipient Indian tribe, then the State

Gaming Agency shall direct a portion of the revenue

contribution in Section 4.3.1(b)(i) to increase the

revenue contribution to the Indian Gaming Revenue

Sharing Trust Fund in Section 4.3.2.2 in an amount

sufficient to ensure the Indian Gaming Revenue

Sharing Trust Fund has sufficient resources for each

eligible recipient Indian tribe to receive quarterly

payments pursuant to Government Code Section

12012.90. 

E.g., Amendment to the Tribal-State Compact Between the

State of California and the Morongo Band of Mission Indians

§ II.B (Aug. 29, 2006), (amended § 4.3.1(l)). The “revenue

contribution” specified in amended section 4.3.1(b)(i) of these

four 2007 Amended Compacts, in turn, guarantees an annual

aggregate inflow to the State in excess of $140 million. See

2007 Amended Compacts § II.B (amended § 4.3.1(b)(i)).

Should a shortfall develop in the Revenue Fund, the Commission “shall” direct a sufficient portion of this amount to the

Revenue Fund to make up for the shortfall. The potential

backfill of more than $140 million per year guaranteed by the

2007 Amended Compacts appears as a practical matter to be

more than sufficient to make up for any shortfall in the Revenue Fund.16 We therefore conclude that the refund of Colusa’s

16As of September 20, 2007, 71 Indian tribes were eligible to receive the

$1.1-million annual distribution from the Revenue Fund. See, e.g., CaliforCACHIL DEHE BAND v. CALIFORNIA 14935
$403,750 pre-payment fee, if appropriate under the Compact,

will not “as a practical matter impair or impede [the NonCompact Tribes’] ability to protect [their] interest” in receiving their annual $1.1-million distribution as required by California state law. Fed. R. Civ. P. 19(a)(1)(B)(i).17

In the alternative, the State contends that the Compact

Tribes are also required parties to the pre-payment fee claim.

It argues that Colusa’s success in obtaining its refund would

impair the Compact Tribes’ ability to protect their interest in

“the 1999 Compact’s interpretation and the fulfillment of its

terms by all 1999 Compact tribes.” The State’s argument

sweeps much too broadly. Nothing in the Compact establishes

any obligation towards the other Compact Tribes insofar as

the payment or refundability of Colusa’s advance fees into the

Revenue Fund are concerned.18 With respect to the prepayment provision, the 1999 Compacts are quintessentially

bilateral. Accordingly, the Compact Tribes’ relevant Rule 19

interest must arise, if at all, from the bare fact that the Compact Tribes are simultaneously parties to identical bilateral

compacts with the State. We have never held that the mere

coincidence of parallel and independent contractual obligations vis-a-vis a common party requires joinder of all siminia Gambling Control Commission, Revenue Sharing Trust Fund Recipients (Sept. 20, 2007), available at http://www.cgcc.ca.gov/

rstfi/2008/DistribFundReport020503%20% 20-%2 003312008.pdf (last

visited July 31, 2008). 

17We reject the State’s argument that “actual implementation (which is

not described in [the 2007 Compacts]) could result in delayed reimbursement” to the Non-Compact Tribes. Rule 19 requires “more than speculation about a future event.” Makah, 910 F.2d at 558 (citations omitted). 

18It is true that, under the Compact, Colusa “agree[d] with all other

Compact Tribes . . . that each Non-Compact Tribe in the State shall

receive the sum of $1.1 million per year.” 1999 Compacts, § 4.3.2.1(a)

(emphasis added). No reciprocal obligation to contribute any specific

amount or forgo otherwise legitimate claims to the pre-payment fees, however, arises from this joint commitment. 

14936 CACHIL DEHE BAND v. CALIFORNIA
larly situated parties. Cf. Dawavendewa v. Salt River Project

Agric. Improvement & Power Dist., 276 F.3d 1150, 1157 (9th

Cir. 2002) (“[A] party to a contract is necessary, and if not

susceptible to joinder, indispensable to litigation seeking to

decimate that contract.”) (emphasis added). The mutuality-ofparty requirement of res judicata and defensive collateral

estoppel ensures that the similarly situated absent tribes will

not be prejudiced if and when they decide to challenge the

Commission’s interpretation of the refund provision of the

1999 Compacts.19 On the facts of this case, we decline the

State’s invitation to extend the scope of mandatory joinder. 

[8] Finally, we reject the State’s argument that failure to

join the Compact Tribes may expose the State to inconsistent

obligations. As the First Circuit has cogently explained, 

“[i]nconsistent obligations” are not . . . the same as

inconsistent adjudications or results. Inconsistent

obligations occur when a party is unable to comply

with one court’s order without breaching another

court’s order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when

a defendant successfully defends a claim in one

forum, yet loses on another claim arising from the

same incident in another forum. 

Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir.

1998) (per curiam) (footnote and citations omitted); see also

4 James Wm. Moore et al., Moore’s Federal Practice-Civil

19We also note that the State’s contention that Colusa’s success would

impair “the fulfillment of [the 1999 Compacts’] terms by all Compact

tribes” is vitiated by its circular reasoning. If Colusa succeeds in its claim,

it will obtain relief that will, by definition, “fulfill” the pre-payment term

of the Compact. In other words, the only “fulfillment” that Colusa’s claim,

if successful, would impair is that of the Commission’s current interpretation of the provision. The Compact Tribes, however, have no “legally protected” interest in the “fulfillment” of the Commission’s particular

interpretation of the Compact. 

CACHIL DEHE BAND v. CALIFORNIA 14937
§ 19.03[4][d] (2008). We adopt the approach endorsed by the

First Circuit. Accordingly, the possibility that the State may

have to refund Colusa’s pre-payment fees while adhering to

a different interpretation of the Compact in its dealings with

some other tribes does not, without more, rise to the level of

creating a “substantial risk” of incurring “inconsistent obligations.” Fed. R. Civ. P. 19(a)(1)(B)(ii). 

The Commission’s Authority to Conduct Rounds of

Draws

Colusa finally argues that the Commission lacks authority

under the compact unilaterally to conduct draws of gaming

device licenses. As relief, Colusa requests a declaration that

the Commission “has no authority under the Compact unilaterally to administer the system established under the Compact

for the issuance of Gaming device licenses, but only to do so

in consultation with the Tribe.” The district court concluded

that, if Colusa “prevailed, the relief would deprive absent parties of their legal entitlements to the licenses awarded pursuant to an invalid process.” We reverse the district court’s

determination because it is contrary to our decision in Makah.

[9] In Makah, we held that the absent tribes were not

required parties to the adjudication of the plaintiff tribe’s

“procedural claims”—its claim that the harvest quotas

imposed by the Secretary of Commerce “were the product of

commitments made outside the administrative process.”

Makah, 910 F.2d at 557 (internal quotation marks omitted).

We reasoned that “[t]he absent tribes would not be prejudiced

because all of the tribes have an equal interest in an administrative process that is lawful.” Id. at 559. In so holding, we

also made clear that Rule 19 required “the scope of the relief

available to the Makah on their procedural claims [to be] narrow” and limited to prospective relief. Id. We find this reasoning dispositive in this case as well. Much like their

counterparts in Makah, the absent tribes “have an equal interest in an administrative process that is lawful,” id.—that is,

14938 CACHIL DEHE BAND v. CALIFORNIA
that the Commission not conduct the draws of licenses ultra

vires. Moreover, as we have already made clear, Rule 19 necessarily confines the relief that may be granted on Colusa’s

claims to remedies that do not invalidate the licenses that have

already been issued to the absent Compact Tribes. See Makah,

910 F.2d at 559. Thus, we reverse the district court’s dismissal of Colusa’s fourth claim, albeit with the proviso that,

were Colusa to prevail on the merits, no existing license may

be invalidated at the remedial stage.20

CONCLUSION

We affirm the district court’s judgment dismissing Colusa’s

claim for failure to negotiate in good faith. We reverse the

district court’s judgment dismissing Colusa’s other claims on

the pleadings, and remand for further proceedings consistent

with this opinion. Colusa is entitled to its costs on appeal. 

AFFIRMED IN PART; REVERSED AND

REMANDED IN PART.

20We reject the State’s contention that, if Colusa prevailed in establishing its fourth claim, the existing licenses would necessarily be void ab initio. It is true that, in Lockyer v. City and County of San Francisco, the

Supreme Court of California held that marriage licenses issued by the City

of San Francisco to same-sex couples in violation of state law were “void

and of no legal effect from their inception.” 33 Cal. 4th 1055, 1113

(2004). In that case, however, the Supreme Court of California emphasized the “unusual, perhaps unprecedented, set of circumstances” surrounding the invalidation of the marriage licenses in question. Id.

Moreover, in reaching its conclusion, the court relied exclusively on the

relevant provisions of California’s Family Code and on case law addressing specifically marriages celebrated in violation of state law. Id. at 1113-

14. Thus, Lockyer is not controlling. The parties have directed our attention to no other case—and we could find none—in support of the proposition that, under California law, the district court may not limit relief to

future conduct if Colusa prevailed on the merits of its claim. 

CACHIL DEHE BAND v. CALIFORNIA 14939