NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

KLAMATH CLAIMS COMMITTEE,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

______________________ 

2012-5130

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 09-CV-00075, Judge Francis M. Allegra.

______________________ 

Decided: August 23, 2013

______________________ 

MATTHEW J. KELLY, Fredericks Peebles & Morgan, 

LLP, of Washington, DC, argued for plaintiff-appellant. 

With him on the brief was THOMAS W. FREDERICKS. 

KATHERINE W. HAZARD, Attorney, Appellate Section, 

Environment & Natural Resources Division, United 

States Department of Justice, of Washington, DC, argued 

for defendant-appellee. With her on the brief was IGNACIA 

S. MORENO, Assistant Attorney General. 
2 KLAMATH CLAIMS COMMITTEE v. US

MELODY L. MCCOY, Native American Rights Fund, 

Boulder, Colorado, argued for amicus curiae the Klamath 

Tribes. 

______________________ 

Before PROST, BRYSON, and TARANTO, Circuit Judges.

PROST, Circuit Judge, 

The Klamath Claims Committee (“KCC”) appeals two 

judgments of the United States Court of Federal Claims. 

The first is the court’s decision to dismiss the third and 

fourth claims of the KCC’s first amended complaint 

pursuant to Rule 19 of the Court of Federal Claims. We 

affirm that judgment on the basis of the court’s wellreasoned opinion. See FED. CIR. R. IOP 9 (10)(a) (We may 

affirm “on the basis of” a trial tribunal’s opinion in a 

nonprecedential disposition.). The second is the court’s 

dismissal of the KCC’s motion seeking leave to amend its 

complaint for the second time. We also affirm that decision, but write briefly to address our reasoning for doing 

so. 

I 

The Klamath and Modoc Tribes and the Yahooskin 

Band of Snake Indians comprise one federally-recognized 

tribal government (the “Tribes”).1 Pursuant to its constitution and by-laws, the Tribes passed a resolution in 1952 

to create the KCC.2 At that time, the Tribes anticipated 

the termination of its federal recognition, which later 

1 We use “Tribes” to refer to the single federallyrecognized tribal entity.

2 Since its origin, the KCC has had different forms 

and names. Because the historical structure and previous 

names of the KCC are not relevant to our decision, we 

refer to the Klamath Claims Committee and its progeny 

as simply the “KCC.” 

 
KLAMATH CLAIMS COMMITTEE v. US 3

occurred through the Klamath Termination Act of 1954.3 

The KCC’s purpose was to represent the interests of the 

Tribes’s final enrollees (the “1954 Enrollees”) in claims

against the United States filed before and after termination. A “reserve of necessary funds for prosecution” of 

such claims (the “Litigation Fund”) was created in 1958 

from monies due under the Termination Act. J.A. 734.4

In the years following its loss of federal recognition, 

the Tribes continued to exist as a self-governed organization and retained certain water and fishing rights. See 25 

U.S.C. § 564r (“[The] termination shall not affect the 

power of the tribe to take any action under its constitution and bylaws that is consistent with [the Termination 

Act]”); 25 U.S.C. § 564m (stating that the Termination Act 

would not affect “any water rights” or “fishing rights or 

privileges”). Those rights were the foundation for several 

post-termination lawsuits that involved the Tribes and its 

members. As a result of those suits, the Ninth Circuit

issued several opinions that detailed the scope of the 

Tribes’s right to self-governance and to natural resources

following termination. See Kimball v. Callahan, 493 F.2d 

564 (9th Cir. 1974), cert. denied, 419 U.S. 1019 (1974) 

(explaining that the Tribes’s hunting, fishing, and water 

rights survived the Termination Act); Kimball v. Callahan, 590 F.2d 768, 770-71 (9th Cir. 1979) (discussing 

which members of the Tribes could exercise tribal fishing 

rights after termination); United States v. Adair, 723 F.2d 

1394, 1418 (9th Cir. 1983), cert. denied, 467 U.S. 1252 

3 Termination did not officially occur until 1961, 

when the United States had fulfilled all of its obligations 

under the Termination Act. 

4 The KCC refers to the fund as the “Litigation 

Trust Fund.” The government asserts that the proper 

name is the “Litigation Expense Fund.” We make no 

judgment on whether the funds are held in trust. We 

therefore use the term “Litigation Fund.” 

 
4 KLAMATH CLAIMS COMMITTEE v. US

(1984) (addressing how the Tribes could effect a transfer 

of the hunting and fishing rights it retained after termination). 

In 1986, the Tribes regained federal recognition under 

the Klamath Indian Tribe Restoration Act. After the 

federally-recognized sovereignty of the Tribes was restored, the KCC continued to exist. The Tribal Council

(the elected governmental body for the Tribes) appears to 

have supervised the KCC’s post-restoration activities, 

including the disbursement of money from the Litigation 

Fund. For example, in 1996, unused monies in the Litigation Fund were distributed by the KCC to the 1954 Enrollees and their descendants under the supervision of the 

Tribal Council. See J.A. 227-28 (resolution authorizing 

the Bureau of Indian Affairs to distribute money from the 

Litigation Fund to the 1954 Enrollees). And in 2008, the 

Tribal Council authorized payments from the Litigation 

Fund for litigation expenses incurred by the KCC. See

J.A. 234-35 (resolution authorizing the distribution of 

money from the Litigation Fund to pay litigation costs). 

II

The present suit began with a complaint filed by the 

KCC in February 2009. That complaint was amended 

once, as a matter of right, the following month. 

The amended complaint included four claims. The 

first two alleged wrongdoings by the government related 

to funds payable to the Tribes and its members under 

Section 13 of the Termination Act. The third and fourth 

claims asserted a taking of private property and breach of 

fiduciary duty arising from the removal of the Chiloquin

Dam—an act that allegedly affected water flow and 

fishing in waterways used by the Tribes. 

Shortly after the amended complaint was filed, the 

government moved to dismiss all four claims. As part of 

its motion, the government argued that the KCC lacked 

standing to bring its claims. It asserted that the KCC did 

not have a legally cognizable interest in the Section 13 
KLAMATH CLAIMS COMMITTEE v. US 5

funds, the Chiloquin Dam, or the tribal water and fishing 

rights that were apparently affected by the dam’s removal. According to the government, the KCC failed to show 

that “it, instead of the Tribes, [was] the proper entity to 

assert [its] claims.” Def.’s Mot. to Dismiss 19 n.9, Klamath Claims Comm. v. United States, No. 09-cv-75, (Fed. 

Cl. May 7, 2009), ECF No. 9.

After briefing and a hearing on the motion to dismiss, 

the Court of Federal Claims ordered the KCC to file “an 

affidavit or resolution from an appropriate Tribal official 

or officials directly addressing [the KCC’s] authority to 

file a claim in this matter.” J.A. 328. In June 2010, the 

KCC submitted a letter from the Chairman of the Tribal 

Council that stated that neither he nor the Council was 

“in a position to lend support to litigation over which the 

Klamath Tribes have no control, particularly when the 

litigation may potentially affect Tribal rights.” J.A. 331. 

Following the KCC’s inability to obtain the Tribal 

Council’s approval, the Court of Federal Claims ruled in 

February 2011 that the Tribes was a required party under 

Rule 19.5 Klamath Claims Comm. v. United States, 97 

Fed. Cl. 203, 212-13 (Fed. Cl. 2011). The court reasoned, 

in part, that the Tribes “claimed an interest in the remaining subject matter of th[e] lawsuit” and “disposing of 

th[e] case in the Tribes’ absence may, as a practical matter, impede the Tribes’ ability to protect that interest.” 

Id. at 213-14. Because it found the Tribes to be a necessary party to the litigation, the court formally invited it to 

intervene. Id. at 214.

In April 2011, the Tribes declined the court’s invitation. It agreed that it had an interest in the suit and that 

5 The Court of Federal Claims also dismissed the 

first and second claims of the amended complaint on 

statute of limitation grounds. The KCC has not appealed 

the dismissal of those claims.

 
6 KLAMATH CLAIMS COMMITTEE v. US

further adjudication may “impede [its] ability to protect 

that interest.” J.A. 361. The Tribes also informed the 

court that the KCC “ha[d] no authority to speak for or 

represent the Tribes.” Id.

In response to the Tribes’s refusal to intervene, the 

court ordered briefing on whether the Tribes was an 

indispensable party. After the parties filed their briefs, 

the Tribes submitted an amicus brief to the court. In it, 

the Tribes “expressly reserve[d] its sovereign immunity 

from suit” and again asserted that the KCC had no authority to represent it. It also argued that the rights at 

issue “belong to the Tribes” and that the KCC was “acting 

hostilely to the Tribes, asserting control over tribal rights, 

and inviting th[e] Court to de-legitimize the Tribes.” 

Klamath Claims Comm. v. United States, 106 Fed. Cl. 87, 

92 (Fed. Cl. 2012) (internal quotation marks omitted). 

In April 2012, months after the Rule 19 briefing concluded (and years after the suit began), the KCC filed a 

motion for leave to amend its complaint. That proposed 

second amended complaint included new facts related to 

the third and fourth claims of the first amended complaint and added three new claims against the government. All of those new claims related to the Litigation 

Fund. One demanded an order directing the government 

to pay the KCC’s attorney from monies in the Fund. The 

other two requested damages for breach of trust and 

mismanagement of the Fund. 

Shortly after the KCC filed its motion to amend, the 

Court of Federal Claims ruled that dismissal under Rule 

19 was appropriate because the Tribes was an indispensable party for the third and fourth claims of the amended 

complaint. In addition to citing concerns and respect for 

the Tribes’s sovereignty and the risk of “multiple and 

conflicting claims” against the government, the court

reasoned that the resolution of the third and fourth 

claims in the amended complaint required adjudication of 

substantial tribal interests in water and fishing rights 

that “might be impaired by an adverse ruling.” Klamath 
KLAMATH CLAIMS COMMITTEE v. US 7

Claims Comm., 106 Fed. Cl. at 96. In light of its Rule 19

decision, the court dismissed the KCC’s motion to amend 

as moot. Id. at 97 n.22.

The KCC filed a timely appeal. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3).

III

The KCC raises two points on appeal. First, the KCC 

believes that the Court of Federal Claims erred in dismissing the third and fourth claims of its amended complaint under Rule 19. We see no such error and affirm the 

court’s judgment on the basis of its well-reasoned opinion.6 Second, the KCC argues that the court erroneously 

dismissed its motion to amend as moot. It asserts that 

the motion was not mooted by the Rule 19 dismissal of the 

third and fourth claims in its amended complaint. 

We also affirm the dismissal of the KCC’s motion to 

amend. Although the Court of Federal Claims characterized the motion to amend as “moot” in light of its ruling 

on the Rule 19 issue, we do not interpret the court’s 

statement as holding that the dispute relating to the 

motion was moot in the formal sense, but rather as a 

statement that it was unnecessary for the court to address that issue. Because, given the facts here, the Tribes 

was unquestionably an indispensable party under Rule 19 

for all of the new claims the KCC desired to add in its 

proposed second amended complaint, we uphold the 

denial of that motion on the ground that the amendment 

would have been futile in light of the Rule 19 problem 

that would have required dismissal of those claims.7 See

6 None of the new facts in the proposed second 

amended complaint present any basis for reversing the 

Rule 19 dismissal of the third and fourth claims of the 

first amended complaint. 

7 Because of the facts here, we do not decide whether the Rule 19 dismissal of some of the KCC’s claims itself 

 
8 KLAMATH CLAIMS COMMITTEE v. US

A123 Sys., Inc. v. Hydro-Quebec, 626 F.3d 1213, 1221 

(Fed. Cir. 2010) (reviewing de novo a Rule 19 issue “in the 

first instance on appeal” based on facts in the record);

Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1332-

33 (Fed. Cir. 2000) (affirming a district court’s denial of a 

motion to amend on the basis that any amendment would 

have been futile). 

Rule 19 explains that a party may be a “required” party if it “claims an interest relating to the subject of the 

action and is so situated that the disposition of the action 

in [its] absence may . . . as a practical matter impair or 

impede [its] ability to protect that interest.” RCFC 

19(a)(1)(B). If joinder of a required party is not feasible, 

the Court of Federal Claims must determine if the absent 

party is an indispensable one without whom the action 

should not proceed. RCFC 19(b). That analysis generally 

turns on several factors specified in the rule, including

“the extent to which a judgment rendered in the [required 

party’s] absence might prejudice that [party]”; “the extent 

to which any prejudice could be lessened or avoided”; 

“whether a judgment rendered in the [required party’s]

absence would be adequate”; and “whether the plaintiff 

would have an adequate remedy if the action were dismissed.” RCFC 19(b)(1)-(4). 

Applying those Rule 19 factors here, we hold that the 

Tribes is an indispensable party for the claims the KCC 

sought to add in its motion to amend. The Tribes is 

clearly a required party for those claims, and the first 

Rule 19 factor weighs quite heavily in favor of dismissal. 

required dismissal of the whole action. See, e.g., RCFC 19 

(“If a person who is required to be joined . . . cannot be 

joined, the court must determine whether . . . the action

should proceed . . . or should be dismissed) (emphasis 

added); Molinos Valle Del Cibao, C. por A. v. Lama, 633 

F.3d 1330, 1343 (11th Cir. 2011) (“If the party is indispensable, then we must dismiss the entire case.”).

 
KLAMATH CLAIMS COMMITTEE v. US 9

The resolution of the KCC’s new claims would necessarily 

implicate significant sovereign interests of the Tribes and 

risk substantial prejudice to it. As the Court of Federal 

Claims recognized, adjudication of claims by the KCC 

would require the court to resolve whether the KCC has 

standing. Klamath Claims Comm., 97 Fed. Cl. at 212. 

For the new claims, the standing inquiry would compel

the court to determine which past and current members of 

the Tribes the KCC represents and whether the KCC has 

the authority to represent those individuals’ interest in

the Litigation Fund. Those determinations would require 

the court to decide the extent of the KCC’s power and 

authority pursuant to, not only several acts of Congress, 

but also the legislative acts, laws, and constitution of the 

Tribes. Any such decision could have a significant prejudicial effect on the Tribes’s sovereign power of selfgovernance and its ability to effectively protect its interests—and its members’ interests—in the Litigation Fund. 

That risk of substantial prejudice has been made clear 

by events that transpired after the Court of Federal 

Claims issued its decision. In July 2012, the Tribes 

formally dissolved the KCC pursuant to its constitution 

and created a new committee to represent the 1954 Enrollees’ interests in the Litigation Fund (the “1954 Final 

Enrollees Committee”). Resp’t’s Addendum 12-14.8 That 

8 The government appended to its brief pertinent 

resolutions of the Tribes’s government that were passed 

after the Court of Federal Claims issued its decision here. 

In its reply brief, the KCC moved to strike those documents from the government’s brief and asked us not to 

take judicial notice of them. The KCC’s motion to strike 

is denied. We take judicial notice of the resolutions the 

government appended to its brief, which are publically 

available records of the Tribes’s government whose accuracy cannot be reasonably questioned. See Massachusetts 

v. Westcott, 431 U.S. 322, 323 n.2 (1977) (explaining that 

government records may be “judicially noticed”); The 

 
10 KLAMATH CLAIMS COMMITTEE v. US

new committee held an open meeting in August 2012 at 

which an almost unanimous number of the present 1954 

Enrollees (or their representative heirs) voted to distribute all of the money in the Litigation Fund to themselves. 

Id. at 16. In November 2012, that vote was ratified by the 

Tribes, and the Tribal Council was directed to distribute 

the funds. Id. 

The KCC’s standing directly depends upon its authority to bring claims on behalf of the 1954 Enrollees that 

accord with the interests of those individuals. It is now 

apparent that the same sovereign that created the KCC 

has dissolved it and formed a new government committee

to represent the interests of the 1954 Enrollees in the

Litigation Fund. And, even though the 1954 Enrollees 

have voted to disburse all the monies in the Fund to 

themselves, the KCC demands as relief under its first new

claim that proceeds from the Fund be paid to its attorneys—not the 1954 Enrollees.9 Thus, there are significant 

questions here regarding the KCC’s authority to bring its 

new claims and the true identity of the tribal members 

(and their interests) that the KCC represents. To determine if the KCC has standing, the Court of Federal 

Claims would be forced to resolve those issues by, in large 

part, interpreting the Tribes’s laws and constitution. 

Such a decision could undoubtedly impinge upon the 

Tribes’s sovereignty and substantially prejudice its ability 

Klamath Tribes General Council Resolution #2012-003, 

available at http://www.klamathtr

ibes.org/claims/CC_2012-003%20GCR%20Litigation%20

Fund.pdf; The Klamath Tribes General Council Resolution #2012-002, available at http://www.klamathtribes

.org/claims/Z_2012%2007%2014%20Resolution%202012%

20002.pdf. 

9 The existence of competing claims to the same pot 

of money is a classic reason for dismissing under Rule 19 

when one of the claimants is not a party.

 
KLAMATH CLAIMS COMMITTEE v. US 11

to self-govern, regulate the activities of its agents under 

its laws, and protect the interests of the 1954 Enrollees in 

the Litigation Fund—which it appears to have historically 

done without objection by the KCC.10 Thus, the first Rule 

19 factor overwhelmingly favors dismissal. Accord Republic of Philippines v. Pimentel, 553 U.S. 851, 869 (2008)

(finding error in a court’s analysis of the first Rule 19(b) 

factor by “not accord[ing] proper weight to the compelling 

claim of sovereign immunity”).

The remaining Rule 19 factors also point to dismissal. 

Although the KCC might be able to obtain adequate relief 

in absence of the Tribes, there is no practical way for the 

court to lessen the potential prejudice to the Tribes by 

shaping the relief it grants or including protective provisions in its judgment. Furthermore, the KCC is not 

without remedy if its new claims are dismissed: it is free 

to seek a resolution or declaration under tribal law regarding its right to represent the 1954 Enrollees and then 

refile its suit if successful. 

10 The KCC believes that it has authority to bring its 

claims solely pursuant to the Termination Act. But that 

view is overly simplistic and discounts the relevance of 

tribal law here. We cannot simply ignore that the sovereign which created and empowered the KCC under its 

laws has now dissolved the KCC using that very same 

power and created a new government committee to represent the interests of the 1954 Enrollees in the Litigation 

Fund. It seems axiomatic that the sovereign Tribes may 

choose which of its branches or agents can bring suit on 

its behalf to vindicate its rights or the rights of its members. If certain members of the Tribes disagree with that 

choice, they should seek relief in tribal court or through 

the Tribal Council. Federal courts are generally not the 

proper forum to settle such disputes, especially in absence 

of a relevant sovereign tribe. See Marceau v. Blackfeet 

Hous. Auth., 540 F.3d 916, 920-21 (9th Cir. 2008).

 
12 KLAMATH CLAIMS COMMITTEE v. US

Therefore, applying the standards of Rule 19 to the 

particular facts of this case, we conclude that the Tribes 

are clearly a required and an indispensable party to the 

claims the KCC sought to add in its motion to amend. 

Adjudicating those claims in the absence of the Tribes 

would be an abuse of discretion. Accordingly, we affirm 

the dismissal of the KCC’s motion to amend along with 

the Rule 19 dismissal of the third and fourth claims of the 

KCC’s amended complaint. 

AFFIRMED