United States Court of Appeals

For the Eighth Circuit

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No. 12-2600

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Sandy Lake Band of Mississippi Chippewa

lllllllllllllllllllll Plaintiff - Appellant

v.

United States of America; Ken Salazar, 

Secretary of the Interior; Kevin Washburn,

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Assistant Secretary for Indian Affairs; 

Jodi Gillette, Acting Deputy Assistant

Secretary for Policy and Economic

Development, Indian Affairs; and

Diane Rosen, Regional Director, 

Midwest Regional Office, Bureau of 

Indian Affairs

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: March 14, 2013

 Filed: May 20, 2013

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Kevin Washburn is substituted for his predecessor, Larry Echo Hawk, 1

pursuant to Federal Rule of Appellate Procedure 43(c)(2).
Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES, District

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Judge.

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WOLLMAN, Circuit Judge.

Sandy Lake Band of Mississippi Chippewa (Sandy Lake) requested that the

Secretary of the Interior (Secretary) hold an election so that Sandy Lake’s members

could vote on a proposed constitution. After the request was denied, Sandy Lake

filed suit, seeking an order directing the Secretary to call an election. The district

court dismissed the suit for lack of subject matter jurisdiction because Sandy Lake 3

had not exhausted its administrative remedies. The district court also refused to

accept the proposed amended complaint, which challenged the Secretary’s authority

to promulgate the regulation defining the term “Indian.” Sandy Lake did not appeal

from the first judgment and did not exhaust its administrative remedies. Sandy Lake

later filed a second lawsuit, raising claims that it had alleged in its first complaint and

its proposed amended complaint. Sandy Lake appeals from the adverse grant of

summary judgment on its claims alleged in the second lawsuit. 

We are bound by the district court’s original determination that it lacked

subject matter jurisdiction to hear Sandy Lake’s claims. Issue preclusion thus

disallows us from reaching the merits of this appeal. Accordingly, we affirm the

dismissal of the case, modifying it to be without prejudice. 

The Honorable P.K. Holmes, III, Chief Judge, United States District Court for

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the Western District of Arkansas, sitting by designation.

The Honorable Donovan W. Frank, United States District Judge for the

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District of Minnesota.

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The Indian Reorganization Act of 1934 (IRA) providesthat “[a]ny Indian tribe

shall have the right to organize for its common welfare, and may adopt an appropriate

constitution and bylaws[.]” 25 U.S.C. § 476(a). A tribe may request that the

Secretary hold an election to allow the tribe to vote on a proposed constitution and

bylaws. Should a tribe do so, the Secretary must “call and hold an election . . . within

one hundred and eighty days after the receipt of a tribal request for an election[.]” Id.

§ 476(c)(1)(A). The IRA defines the term “Indian” to include “all persons of Indian

descent who are members of any recognized Indian tribe now under Federal

jurisdiction, and all persons who are descendants ofsuch members who were, on June

1, 1934, residing within the present boundaries of any Indian reservation[.]” Id.

§ 479. The term “tribe” refers to “any Indian tribe, organized band, pueblo, or the

Indians residing on one reservation.” Id. Congress delegated to the Secretary the

authority to promulgate rules and regulations governing secretarial elections. Id.

§ 476(a)(1). 

The Secretary is required to “publish in the Federal Register a list of all Indian

tribes which the Secretary recognizes to be eligible for the special programs and

services provided by the United States to Indians because of their status as Indians.” 

25 U.S.C. § 479a-1(a). Pursuant to authority delegated by the Secretary, the

Department of the Interior (DOI) has promulgated regulations and procedures for

recognizing Indian tribes. See 25 C.F.R. Pt. 83 (entitled “Proceduresfor Establishing

That an American Indian Group Exists As an Indian Tribe”). The regulations define

the term “tribe” to include “[a]ny Indian entity that has not voted to exclude itself

from the [IRA] and is included, or is eligible to be included, among those tribes . . .

listed in the Federal Register[.]” Id. § 81.1(w). An Indian group that is not listed as

a recognized Indian tribe may petition the DOI for acknowledgment, a process that

can take several years. See generally Miami Nation of Indians of Ind., Inc. v. U.S.

Dep’t of the Interior, 255 F.3d 342, 345-46 (7th Cir. 2001) (Twelve years after Miami

Nation filed its petition, the DOI ruled that it did not meet the criteria for

acknowledgment.). 

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Sandy Lake is not included on the list of recognized Indian tribes. In July

2007, Sandy Lake requested an election so that it could vote to adopt a constitution

and bylaws. The Superintendent of the Minnesota Agency of the Bureau of Indian

Affairs (BIA) denied the request. The Midwest Regional Director of the BIA upheld

the decision, finding that Sandy Lake was not eligible to hold an election because it

was not a recognized Indian tribe, and the InternalBoard ofIndian Appeals dismissed

Sandy Lake’s appeal. Sandy Lake later filed suit in federal district court against the

United States and certain federal officials, alleging a number of claims related to the

denial of the request for an election. The defendants moved to dismiss for lack of

subject matter jurisdiction. Thereafter, Sandy Lake filed an amended complaint,

which added claims challenging the Secretary’s authority to promulgate regulations

governing secretarial elections.

In July 2011, the district court dismissed the suit without prejudice for lack of

subject matter jurisdiction. Specifically, the district court found that Sandy Lake had

failed to exhaust its administrative remedy, the DOI acknowledgment process. Sandy

Lake Band of Miss. Chippewa v. United States, No. 10-3801, 2011 WL 2601840, at

*4 (D. Minn. July 1, 2011) (hereinafter Sandy Lake I). In determining that it lacked

jurisdiction, the district court “reject[ed] [Sandy Lake’s] contention that 25 C.F.R.

§ 81.1(w) contradicts the definition of Indian tribe in 25 U.S.C. § 479.” Id. 

Moreover, the district court held that the proposed amended complaint was not timely

filed and noted that the amendments nonetheless “fail[ed] to cure the lack of subject

matter jurisdiction over the Sandy Lake Band’s claims.” Id. at *5 n.4. Sandy Lake

did not petition the DOI for federal recognition and did not appeal from the district

court’s judgment. 

In September 2011, Sandy Lake filed a second lawsuit against the same

defendants (collectively, the government). On the government’s motion, the district

court dismissed three claims (counts two, three, and four) on the basis of resjudicata. 

The government argued that res judicata also barred consideration of the remaining

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three claims (counts one, five, and six), which were raised in the first lawsuit’s

proposed amended complaint. The district court considered the merits of those

claims, however, concluding that its “discussion of subject matter jurisdiction as it

related to the proposed Amended Complaint was brief and noted in a footnote.” D.

Ct. Order of May 4, 2011, at 14 (hereinafter Sandy Lake II). The district court

explained that it had rejected the proposed amended complaint “because it was

untimely filed, and Plaintiffs did not obtain Defendants’ consent or leave of the

Court.” Id. at 13. 

In counts one, five, and six, Sandy Lake challenged the promulgation of 25

C.F.R. § 81.1(w) and alleged that the regulation’s definition of “tribe” conflicted with

the plain meaning of the statutory language “recognized Indian tribe,” in violation of

the IRA (count one) and the Administrative Procedure Act (APA) (count five) and in

breach ofthe government’s fiduciary obligation owed to Sandy Lake (count six). The

district court held that the phrase “recognized Indian tribe” set forth in 25 U.S.C.

§ 479 was ambiguous and that the BIA’s definition of the term “tribe” set forth in 25

C.F.R. § 81.1(w) was based on a permissible construction of the statute. 

On appeal, Sandy Lake argues that the statutory language is unambiguous, that

the regulation is void because it conflicts with the statute, and that Sandy Lake is

entitled to an election because it meets the statutory language set forth in 25 U.S.C.

§ 479. Sandy Lake does not challenge the dismissal of counts two, three, and four. 

The government maintains that the district court should have dismissed counts one,

five, and six on the basis of res judicata because the district court previously had

decided the issue of subject matter jurisdiction. 

“The principles of res judicata apply to questions of jurisdiction as well as to

other issues.” Am. Sur. Co. v. Baldwin, 287 U.S. 156, 166 (1932). Res judicata

incorporates the concepts of both issue preclusion and claim preclusion. Taylor v.

Sturgell, 553 U.S. 880, 892 (2008). “Issue preclusion refers to the effect of a

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judgment in foreclosing relitigation of a matter that has been litigated and decided.”

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). A party

is precluded from litigating such a matter in a subsequent case, “whether or not the

issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S.

742, 748-49 (2001) (citing Restatement (Second) of Judgments §§ 17, 27 (1980); D.

Shapiro, Civil Procedure: Preclusion in Civil Actions 32, 46 (2001)). We have said

that issue preclusion has five elements:

(1) the party sought to be precluded in the second suit must have been

a party, or in privity with a party, to the original lawsuit; (2) the issue

sought to be precluded must be the same as the issue involved in the

prior action; (3) the issue sought to be precluded must have been

actually litigated in the prior action; (4) the issue sought to be precluded

must have been determined by a valid and final judgment; and (5) the

determination in the prior action must have been essential to the prior

judgment. 

Robinette v. Jones, 476 F.3d 585, 589 (8th Cir. 2007) (quoting Anderson v. Genuine

Parts Co., Inc., 128 F.3d 1267, 1273 (8th Cir. 1997)).

Sandy Lake disputes the second element, arguing that its complaint in Sandy

Lake II alleges new theories of relief and a different basis for subject matter

jurisdiction. Accordingly, the argument goes, the determination in Sandy Lake I that

the district court lacked subject matter jurisdiction to hear the claims raised in that

complaint cannot preclude the district court from considering in Sandy Lake II

whether it had jurisdiction to hear the claims raised in this complaint. As set forth

above, counts one, five, and six challenge the Secretary’s authority to promulgate 25

C.F.R. § 81.1(w) and allege that the regulation’s definition of the term “Indian”

conflicts with the statute. 

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The basis for subject matter jurisdiction in this case isthe same asthat in Sandy

Lake I, and thus the second element of issue preclusion is met. Sandy Lake has

characterized its claims as a “direct challenge to the regulation,” but it has not

identified any law that would allow it to bring such a challenge. To the extent counts 4

one, five, and six are cognizable, they must be pursued under the APA. The APA

limits nonstatutory judicial review to “final agency action,” 5 U.S.C. § 704, and the

only possible final agency action here is the denial of a secretarial election. 

Accordingly, the district court decided the precise issue in Sandy Lake I when it held

that Sandy Lake had “failed to exhaust its administrative remedies and this Court

lacks subject matter jurisdiction over [Sandy Lake’s] claims that relate to the

requested IRA election.” Sandy Lake I at *4. 

Sandy Lake also disputesthe fourth element, arguing that the dismissal without

prejudice in Sandy Lake I did not constitute a final judgment on the merits. Although

dismissal for lack of subject matter jurisdiction does not adjudicate the merits of the

claims asserted, it does adjudicate the court’s jurisdiction. See Kulinski v. Medtronic

Bio-Medicus, Inc., 112 F.3d 368, 373 (8th Cir. 1997) (holding that the complaint’s

dismissal without prejudice for lack of subject matter jurisdiction would preclude

plaintiff from bringing another claim on the same jurisdictional basis, but did not

preclude “the same claim under a different theory and jurisdictional basis”); see also

Count one alleges a violation of the IRA. Although the IRA provides that

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“[a]ctions to enforce the provisions of this section may be brought in the appropriate

Federal district court[,]” 25 U.S.C. § 476(d)(2), the IRA does not authorize a facial

challenge to the regulation. Likewise, Sandy Lake has not cited any law that might

allow count six—its breach of trust action—to stand alone. See Gros Ventre Tribe

v. United States, 469 F.3d 801, 809-10 (9th Cir. 2006) (gathering cases and noting

that the government’s obligation of trust in its dealings with Indian tribes “does not

impose a duty on the government to take action beyond complying with generally

applicable statutes and regulations”). 

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McCarney v. Ford Motor Co., 657 F.2d 230, 233 (8th Cir. 1981) (“[A] decision to

dismiss based on any ofthe doctrines under the justiciability heading should preclude

relitigation of the same justiciability issue but not a second suit on the same claim

even if arising out of the identical set of facts.”). Accordingly, Sandy Lake may

reassert the same claims that it alleged in Sandy Lake I, but only after it exhausts its

administrative remedies. The dismissal of the complaint thus constitutes a “valid and

final judgment” sufficient to bar Sandy Lake from relitigating the issue of subject

matter jurisdiction. See Robinette, 476 F.3d at 589 (“‘[F]inality’ in the context of

issue preclusion may mean little more than that the litigation of a particular issue has

reached such a stage that a court sees no really good reason for permitting it to be

litigated again.” (quoting John Morrell & Co. v. Local Union 304A of the United

Food & Commercial Workers, 913 F.2d 544, 563 (8th Cir. 1990))); 18 James Wm.

Moore et al., Moore’s Federal Practice § 132.03[5][c] (3d ed. 2013) (“[A] second

complaint cannot command a second consideration of the same jurisdictional

claim.”).

Because the district court previously had adjudicated the issue ofsubject matter

jurisdiction and Sandy Lake did not appeal from that decision or exhaust its

administrative remedies, we do not reach the merits of Sandy Lake’s appeal. We also

do not pass judgment on whether the district court’s decision in Sandy Lake I was

correct, for “issue preclusion preventsrelitigation of wrong decisions just as much as

right ones.” Ginters v. Frazier, 614 F.3d 822, 830 (8th Cir. 2010) (Colloton, J.,

dissenting) (citing Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993)). We affirm,

modifying the dismissal to be without prejudice. We deny the motion of the Mille

Lacs Band of Ojibwe for leave to file an amicus brief and appendix.

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