Should a court dismiss a lawsuit challenging a federal agency’s action because a tribal authority is a Rule 19 “required party,” Fed. R. Civ. P. 19(a), not subject to mandatory joinder due to tribal sovereign immunity?  This question is raised in a currently pending certiorari petition.  Maverick Gaming LLC v. United States, Dkt. No. 24-1161 (cert. petition filed May 9, 2025). This post discusses the issue in the context of Administrative Procedure Act challenges to federal agency actions and concludes that tribal sovereign immunity should not require dismissal of such litigation.

I. Federal Rule of Civil Procedure 19

Rule 19 The Federal Rules of Civil Procedure provide for mandatory involuntary joinder of parties in certain instances.[1]  A person is a “required party” that must be joined in a lawsuit if absent the person’s participation the court cannot accord complete relief among the existing parties. A person can also have “required party” status if the court’s resolution of the action would either: (a) “as a practical matter” impair or impede the non-party’s ability to protect the its interests or (b) leave an existing party at risk of incurring multiple or inconsistent obligations.  If so, involuntary joinder is effected by Court order. 

If joinder is not feasible, the court must determine whether dismissal of the suit is required “in equity and good conscience,” or, in archaic terminology, whether the non-party is an “indispensable” party.[2]  Rule 19 lays out a four-factor test to govern such determinations. The Court is to consider: (1) the extent any judgment rendered in the non-party’s absence might prejudice the non-party or the existing parties, (2) the extent to the Court can lessen or eliminate any such prejudice, (3) the adequacy of any judgment rendered in the non-party’s absence, and (4) whether the plaintiff would have an adequate remedy were the action dismissed for nonjoinder.  With respect to the second factor, the Court should consider whether it can may lessen the prejudice the non-party or the existing parties might suffer by (a) entering protective provisions in the judgment or (b) shaping any relief granted, inter alia.

An ill-defined “public rights” exception exists to relax the mandatory joinder rule when “public rights,” as opposed to “private rights” are at issue.[3]  While the doctrine might most naturally apply when a governmental entity is seeking to enforce public rights, particularly in administrative proceedings,[4] the doctrine appears to apply outside that context as well.[5]   

The courts of appeal appear to have split regarding whether suits against the federal government with implications for tribal sovereignty must be dismissed if the tribal authority’s assertion of sovereign immunity precludes mandatory joinder.  The D.C. Circuit and the Tenth Circuits generally refuse to dismiss Administrative Procedure Act (“APA”) claims on the basis of tribal sovereign immunity.[6]  Two major Ninth Circuit decisions entrenched an approach in that Circuit that more frequently results in dismissals of APA suits on such grounds.[7]

The “required party” rule assumed a dispositive role in Maverick Gaming LLC v. United States, 123 F.4th 960 (9th Cir. 2024), cert. filed, Maverick Gaming LLC v. United States, Dkt. No. 24-1161 (cert. filed May 9, 2025).  The Ninth Circuit affirmed dismissal of an APA challenge against the Department of Interior on precisely that basis.

II. Maverick Gaming v. United States

After states were relieved of the federal prohibition on sports gambling, Maverick, a Nevada casino gaming company, acquired cardrooms in the State of Washington. Maverick then unsuccessfully lobbied the Washington legislature to allow sports betting.  The legislature declined, but enacted a law allowing Indian tribes to amend their gaming compacts to authorize sports betting on their land.  The Shoalwater Bay Indian Tribe was one of several federally-recognized tribes located in Washington State to take advantage of this opportunity. Maverick Gaming, 123 F.4th at 965.

Indian gaming is governed by the Indian Gaming Regulatory Act (“the IGRA”), which allows a state government and a tribe to enter a compact to permit gaming on its tribal lands. The Compact must be submitted for approval by the United States Secretary of the Interior. The Secretary may disapprove a compact only if it violates (1) any provision of IGRA; (2) any other provision of federal law that does not relate to jurisdiction over gaming on Indian lands; or (3) the trust obligations of the United States to Indians.  The Shoalwater Bay Tribe and the State entered into a gaming compact that became effective with the Secretary’s approval in November 2002.  The most recent amendment to the compact, effective September 15, 2021, authorizes the Tribe to offer sports betting. Maverick Gaming, 123 F.4th at 969 n.12.

All this proved too much for Maverick, which resorted to litigation. The company sued the United States and various federal officials responsible for the approval of the tribal-state gaming compacts, as well as the various Washington state officials involved in the execution and administration of those compacts. Maverick’s first claim, against the Federal Defendants under the APA, alleged that the Secretary’s approval of the Washington tribes’ sports betting compact amendments violated IGRA, the Equal Protection Clause, and the Tenth Amendment’s anticommandeering restrictions.[8] Maverick sought declaratory relief and vacatur of the Secretary’s approval of the sports betting amendments.  Id. at 970.  This claim is the focus of this blogpost.

Maverick’s second claim alleged that the state officials’ execution and administration of the tribal-state compacts and the sports betting amendments violated IGRA and related federal statutes, the Equal Protection Clause, and the Tenth Amendment’s anticommandeering restrictions. Maverick sought declaratory relief and an injunction prohibiting the Washington State Gambling Commission from continuing to administer the Shoalwater Bay Tribe compact’s sports betting amendments.  Id.

In its third claim, Maverick alleged that the state’s exemption of the tribes from its criminal prohibition on offering sports betting violated the Washington State Constitution’s guarantee of equal protection. Maverick sought declaratory relief, and an injunction prohibiting the State Defendants from enforcing those criminal prohibitions on gambling against Maverick.  Id.

The Tribe moved to intervene for the limited purpose of moving to dismiss the suit because it was a “required party” not subject to mandatory joinder. Id. at 971.[9]

The District Court dismissed the suit.  The judge found that the suit might impair the Tribe’s legally protected interest in “the economic and sovereign rights” conferred by its gaming compact, noting “the long history of tribal gaming and associated employment benefits for the tribes and the surrounding community.”  Id.  Nor could the Tribe rely on the federal government to represent its interests given that “the Federal Defendants’ interests in defending their approval of the sports betting compact amendments ‘clearly diverge’ from the Tribe’s sovereign interest in” continuing to offer sports betting.  Id.  The District Court then concluded that the Tribe could not feasibly be joined in the litigation noting the “‘‘wall of circuit authority’ requiring dismissal when a Native American tribe cannot be joined due to its assertion of tribal sovereign immunity.”  Id. Finally, the judge held the “public rights” doctrine inapplicable because Maverick had brought the suit to further his own business interests in “increasing” its market share in the sports gaming industry. Id.

A Ninth Circuit panel affirmed, with one judge concurring separately.  The majority agreed that the Shoalwater Bay Tribe was a required party, at least with respect to Maverick’s first two claims, possessing a legally protected interest in gaming revenue crucial to the Tribe’s financial stability.  Id. at 972-73.  Relying heavily on Klamath Irrigation District and Diné Citizens, the panel agreed that the federal government’s interests sufficiently diverged from the Tribe’s such that the federal government could not be expected to adequately represent the Tribe’s interests.  Id. at 973-78.  The panel refused to address the argument that the Tribe was not a required party for Maverick’s third claim, seeking its own exemption from the state criminal prohibition of gambling, because Maverick had waived the argument in the District Court.  Id. at 973.

The panel concluded that the District Court did not abuse its discretion in concluding that dismissal was required under the Rule 19(b) four-factor test.  The Tribe’s sovereign immunity and the prejudice the Tribe would suffer if the suit proceeded in its absence justified the decision, even though both the third and fourth Rule 19(b) factors weighed in favor of allowing the litigation to proceed.  Maverick Gaming 123 F.4th at 980-82.  Moreover, the panel concluded that Maverick’s suit did not fit within the “public rights” exception allowing litigation to proceed despite the absence of a “required party,” because (1) Maverick’s motivations for pursuing the litigation were gaining a competitive advantage and (2) the resolution of the litigation without the Tribe could “destroy” the Tribe’s “legal entitlements” Id. at 982-83.

Judge Miller concurred.  He agreed that Diné Citizens and Klamath Irrigation District required affirmance of the District Judge’s dismissal of the case, id. at 984, but questioned the validity of those precedents.  Those decisions failed to give adequate weight to the distinctive character of APA litigation.  In an APA case, “the only question to be decided is whether the agency’s action should be set aside,” and the agency’s action must be judged solely “on the rationale articulated by the agency itself.”  Id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196, (1947)).  Moreover, the APA does not authorize relief against any party other than the agency.[10]  He warned that the “required party” approach mandated by Diné Citizens “threatens to ‘sound[ ] the death knell for any judicial review of executive decisionmaking’ in the wide range of cases in which agency actions implicate the interests of Indian tribes.”  Id. at 985. Judge Miller noted the conflict in the Circuits on the approach to Rule 19 dismissal of cases when non-party Tribes assert sovereign immunity.  Id. at 985.  He also briefly addressed Maverick’s third claim, seeking a declaration that would allow Maverick itself to conduct gaming. The Tribe was not even a “required” party with respect to that claim; the Tribe’s interest in being free from competition in the sports betting market did not qualify as a “legally protected interest.”  However, Judge Miller agreed with his colleagues that Maverick had waived that issue.  Id. at 985-86.

The case is now before the U.S. Supreme Court on Maverick’s petition for certiorari.  Maverick argues that because an APA claim challenges only the Department of Interior’s actions, the Tribe is not a required party.[11]  Maverick notes the Circuit split on this issue.  The U.S. takes the same position,[12] but argues that Maverick’s case provides an inappropriate vehicle to use to resolve the Circuit split.  Both the Tribe and the State defendants argue that the Circuit split is illusory, explaining that the results of cases decided in other circuits merely reflect the fact that required joinder issues must be decided on a case-by-case basis, and not by the blanket rule Maverick and the United States advocate.[13]  They also argue, of course, that the Ninth Circuit’s decision was correct.

III. Should A Tribe’s Invocation of Sovereign Immunity Require Dismissal of an APA Suit?

This section presents my analysis on the question presented by Maverick Gaming v. United States.  It will discuss the federal interest in judicial review of agency decisions, manifested in the APA, the insubstantial nature of the intrusion upon tribal authorities in APA suits, and the importance of sovereign authorities’ rights to intervene in litigation the concerns them.

A. The Federal Interest in Judicial Review of the Actions of Federal Officials for Consistency With Federal Law

Judicial review of agency decisions plays a critical structural role in terms of the Constitution.  Judicial review ensures that agencies act consistently with the will of Congress as embodied in statutes.[14]  It also ensures fairness to individuals adversely affected by agency decisions and may be key to the validity of some delegations of adjudicatory powers to administrative agencies.  In short, judicial review ensures that the executive branch is subject to the rule of law. 

Moreover, by enacting the APA’s judicial review provisions Congress expressly waived the sovereign immunity of the United States to claims for declaratory and injunctive relief. 5 U.S.C. §702.[15]  Indeed, so critical is judicial review, that there is a strong presumption that agency decisions are subject to judicial review.[16] 

These compelling federal interests should not be undermined by assertions of tribal or state sovereign immunity.  The federal government has clear sovereignty over tribal and state governments in many respects by virtue of its enumerated powers.[17]  And it often adopts special provisions accommodating state and tribal authorities.  Agencies, or Congress, might issue permissions to state and tribal governments.[18]  These actions must be subject to judicial review for consistency with the U.S. Constitution, federal statues, and other federal legal restraints upon federal actors.[19]  Carving out such policies and their application from the presumption in favor of judicial review would seriously impair the critical role of judicial review.

The first case in which the Ninth Circuit dismissed a case against federal officials on the grounds that the immune tribal authority qualified as required parties under rule 19, Diné Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, 932 F.3d 843 (9th Cir. 2019), illustrates these concerns. There, a coalition of environmental groups asserted challenges under federal environmental statutes to the federal government’s reauthorization of coal-mining activities on land reserved to the Navajo Nation.  Id. at 847-848.  A tribal coal-mining company successfully moved to intervene and dismiss, contending that it “was a required party.”  The Court did so over the objections of the United States.  The Court’s Rule 19 determination (and the tribe’s invocation of sovereign immunity) thus precluded litigation over a federal agency’s adherence to federal environmental laws.

Such solicitude is all the more disturbing because standing doctrine provides yet additional hurdles to those seeking to challenges federal dispensations that favor state and tribal governments in a targeted manner.  Standing doctrine is particularly inhospitable to beneficiaries of agency policies or members of the general public who seek to challenge agency action.[20]  This provides yet additional protection regarding challenges to policies that specifically affect state and tribal governments.[21] 

B. State and Tribal Sovereign Immunity are not Substantially Implicated in APA Challenges

Not only is the federal interest in APA litigation compelling, state and tribal sovereign immunity are not substantially implicated by actions against the federal government for the grant of permissions or dispensations to state and tribal authorities.[22]  Though somewhat distinct,[23] tribal immunity resembles state sovereign immunity reflected in the Eleventh Amendment.[24]

Sovereign immunity protects the dignity of states and tribal authorities from being haled into court to answer for or defend their own actions.  Alden v. Maine, 527 U.S. 706, 748 (1999).[25]  It is not implicated by the existence of litigation against a third party that would adversely affect the state or tribal entity.  States and tribal authorities are free to waive sovereign immunity, and may do so for limited purposes.[26]  It should not be considered an affront to the dignity of states or tribes to offer them the opportunity to participate in litigating the legality of the federal government’s dispensations to them, all the more so given the strong federal interest in broad judicial review of federal agency actions.  Were the rule otherwise, virtually every dispensation to states, as well as to tribes, might well be exempted from judicial review, despite the considerable additional protections offered by the law of standing. 

Moreover, while the federal government is entitled to sovereign immunity, it is equally entitled to waive sovereign immunity for the benefit of its citizens and others aggrieved by agency actions.  Use of sovereign immunity by tribal authorities to gain dismissal of APA actions by means of Rule 19 deprives the federal government of its sovereign choice to decide when government agencies are immune, and when they are not, from challenges to their actions. (Indeed, limiting access to judicial review has significant “separation of power” implications – dramatically increasing agency discretion at the expense of Congress’ powers to control that discretion through legislation.) 

The Court observed in Alden v. Maine that in some ways, “a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum.”  Alden v. Maine, supra, 527 U.S. at 749.  It explained that “the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself.”  Id. Alden v. Maine involved the federal government’s attempted abrogation of a state’s sovereign immunity in the state’s own courts.  But the Alden v. Maine principle should hold in reverse, namely that respect for the federal sovereign precludes state and tribal authorities from possessing the power to frustrate the federal government’s waiver of sovereign immunity to suits in federal court against federal defendants. 

C. The Fact-Sensitive Nature of the Rule 19 Inquiry and the Role of Rule 24 Intervention

The required party joinder inquiry is meant to be a fact sensitive one.  See, Advisory Committee commentary on the 1966 amendment to Rule 19.[27]  There may be circumstances in which the interests of the federal and state governments diverge in APA or similar challenges involving alleging unlawful agency permission or dispensations issued to state or tribal authorities.

One, of course, is when the administration that adopted the dispensation has been replaced by one that is hostile to it.[28]  It may well be easier for the government to enter a settlement with the plaintiff challenging the prior administration’s decision than to go through the process of changing that decision. 

Maverick suggests yet a second circumstance in which federal and tribal interests may diverge.  The Court in Maverick found that there was a historic hostility between the federal government and the Tribe over gambling. Maverick Gaming v. United States, supra, 123 F.4th 960, 969, 977 (discussing the adversarial history between the Shoalwater Bay Tribe on one hand and both the federal and state governments on the other).  

Yet a third divergence might be found in the fiscal implications of a challenged to a federal government action. The heart of sovereign immunity is the concern about the public fisc,[29] and actions that prohibit tribes from accessing the revenues flowing from gambling on their reservations pose a particularly dire threat to their sovereignty,[30] one not critical to the federal government.

However, these concerns about a divergence of interest between federal and tribal authorities can be addressed by permitting tribal authorities to affirmatively intervene in the lawsuit under Federal Rule of Civil Procedure 24, for the limited purpose of defending the federal government’s decision.  Intervention “is the logical counterpart of . . . procedural devices which enable parties to summon nonparties into the proceeding.”  Multiparty Litigation in the Federal Courts, 71 HARV. L. REV. 874, 897 (1958).  “Throughout its development, the primary purpose of intervention was to protect interested nonparties from being unduly prejudiced by the processes of the court.”  Id.

Rule 24 permits intervention “as of right,” by “required parties,” i.e., those “so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest.”  Such voluntary joinder, by intervention of right, can be denied only if a court concludes that an existing party cannot “adequately represent that interest.” Indeed, Rule 19 contemplates advising “required parties” of the litigation and permitting them to join the suit should they wish to do so.[31]    This provides a mechanism for a non-party with a collateral interest in litigation to protect its own interest, and the Advisory Committee to the 1966 Amendments to the Federal Rules of Civil Procedure seemed to contemplate that a judge should take such a possibility for self-help into account in deciding whether to dismiss the action due to the absence of a third party.  The Advisory Committee noted that that “the absentee [required party] may sometimes be able to avert prejudice to himself by voluntarily appearing in the action or intervening on an ancillary basis,” and that the Court should consider that potential in its calculus regarding whether to order dismissal for failure to sue a required party.  Advisory Committee Notes for 1966 Amendment; see also Tobias, supra note 3, 65 N.C. L. REV. at 773 & n.140, 783, 784.[32]

In entering the suit, tribal authorities would not be subjecting themselves to any injunctive or monetary relief. 

Thus, a non-party Tribe can decide for itself whether it needs to intervene in the action; it is not ordered into court involuntarily (as might appear to be the case were involuntary joinder ordered under Rule 19).  Again, it should not offend sovereign immunity to allow a case against the United States to proceed, even if it means confronting the tribal authority with a choice, gain the advantages of waiving sovereign immunity or standing on sovereign immunity.  And indeed, the Tribe has no sovereign right to continue to benefit from an ongoing unlawful federal agency dispensation.  Nothing more is compelled than that tribal authorities be satisfied with what the federal law permits the relevant agency to do.

Indeed, in this way a tribe could litigate the validity of the federal agency’s action with none of the risks to which non-governmental parties subject themselves by intervening in a lawsuit – it can limit its waiver so that it is not subject to counterclaims from the plaintiff.[33]  Even when a tribe has brought an action and there is a legitimate counterclaim, the defendant can receive only a diminution of the amount owed the tribe and not obtain additional damages.  United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 511-12 (1940). And indeed, in the tribal gaming context, a D.C. District Court Judge has held that four tribes’ challenge to the secretarial approval of a class III gaming compact did not waive their immunity from suit with respect to a counterclaim seeking a declaratory judgment that the compact was lawful.  Cherokee Nation v. U.S. Dept. of Interior, 643 F. Supp. 3d 90, 119-20 (D.D.C. 2022); accord, Quinault Indian Nation v. Pearson for Estate of Comenout, 868 F.3d 1093, 1098–99 (9th Cir. 2017).

Finally, one benefit conferred by “party” status is the right to conduct discovery and to present evidence, either for summary judgment or at trial.  In most APA cases discovery is not permitted, precisely because the challenge must be decided on the record compiled by the agency.[34]  For the same reason, even parties generally possess little ability to present additional evidence to a court reviewing the agency action under 5 U.S.C. §706.  Thus, the ability to make amicus submissions may be a more viable option in APA cases than in other types of litigation involving de novo trial of the facts.[35]

Conclusion

The Court will probably refuse to grant certiorari in this case.  Maverick waived some of its arguments, it has declared bankruptcy, and its claims on the merits appear quite weak.  But the Solicitor General notes that more cases raising the same question are on their way to the Court,[36] and the Court may well take one of them to bring uniformity to the courts of appeal on this issue.

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[1] As noted in the Advisory Committee notes to Rule 19, the rule is derived from Rule 39 of the Federal Equity Rules, reprinted in, THE NEW FEDERAL EQUITY RULES  216-21 ((James Love Hopkins ed. 5^th ed. 1925).    See, Brandon R. Coyle, The Proper Standard of Review for Required Party Determinations Under Federal Rule of Civil Procedure 19, 84 FORDHAM L. REV. 1117, 1120-27 (2015)(discussing the origins of Federal Rule 19); see also, 7 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1601 (4th ed. 2019)(observing that Rule 19’s “terminology and practice . . . developed from equity and equitable doctrines”).  The Advisory Committee notes are reprinted along with the text of the rule here.

[2] In Shields v. Barrow, 58 U.S. 130 (1854), the Court coined the phrases “necessary” and “indispensable” parties.  Coyle, supra note 1, at 139.

[3] National Licorice Co. v. NLRB, 309 U.S. 350 (1940); Natural Resources Defense Council v. Tennessee Valley Authority, 340 F. Supp. 400 (S.D.N.Y. 1971), rev’d on other grounds, 459 F.2d 255 (2d Cir. 1972).  See generally, Carl Tobias, Rule 19 and the Public Rights Exception to Party Joinder, 65 N.C. L. REV. 745 (1987).

[4] Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 279 (7th Cir. 1991) (“in administrative hearings where public rights are being adjudicated, private parties do not have the same right they would have in a civil case to insist upon the joinder of third parties”); accord, Ford Motor Co. v. ICC, 714 F.2d 1157, 1169 (D.C. Cir 1983).

[5] In Kickapoo Tribe of Indians v. Babbitt, 43 F.3d 1491 (D.C. Cir. 1995), the D.C. Circuit noted:

the exception generally applies where “what is at stake are essentially issues of public concern and the nature of the case would require joinder of a large number of persons.” Without the exception, public rights litigation would be severely curtailed because it is often infeasible to join all the persons affected by such litigation.

Id. at 1500 (citations omitted).

Ironically, Kickapoo Tribe involved a suit by the Tribe against U.S. Secretary of Interior Babbitt to force the Department to publish a compact in compliance with the Indian Gaming Regulatory Act. The case had been dismissed based on the District Court’s conclusion that Kansas was a “required party” that could not be joined due to state sovereign immunity.

[6] Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338, 1351 (D.C. Cir. 1996); Sac & Fox Nation v. Norton, 240 F.3d 1250, 1258-1259 (10th Cir. 2001), cert. denied, 534 U.S. 1078 (2002). 

[7] Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934, 947 (9th Cir. 2022); Diné Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, 932 F.3d 843, 856 (9th Cir. 2019).

[8] It is not clear that the Secretary was required to, or even free to, entertain such constitutional claims in considering whether to approve the compact.  Yonatan Gelblum, The Myth that Agency Adjudications Cannot Address Constitutional Claims, 32 GEO. MASON L. REV. 224 (2025). The author notes that courts often excuse requirements of exhaustion of administrative remedies with respect to constitutional claims because agencies lack the power or competence to resolve such claims.  Id. at 227-229.  Without the ability to bring an APA challenge, Maverick may be unable to obtain any consideration of the constitutional issues it raised.

[9] The State raised a sovereign immunity defense as well, with the result that venue was transferred to the Western District of Washington.  Maverick Gaming 123 F.4th at 970-71.  Before that occurred, Maverick represented that it was willing to drop the claims against the State of Washington.  Id. at 970.

[10] Additionally, any relief granted would leave non-parties whose interests might be collaterally affected “no worse off than they would be had the agency not taken the challenged action in the first place.”  Maverick Gaming 123 F.4th at 984-85.

[11] It notes that the logic of the Ninth Circuit’s approach is not even limited to tribes but could be “exploited” by states and foreign governments.  Petition for a Writ Of Certiorari, Maverick Gaming LLC v. United States, Dkt. No. 24-1161, 16 (filed May 9, 2025).

[12] It notes another implication even if a person who is a “required party” can be joined and thus the lawsuit need not be dismissed.

Because the motivations of private entities that benefit from federal agency action very frequently are different than the agency’s motivation for defending its own action, the Ninth Circuit’s approach could lead to a practice under which the (potentially numerous) private entities that benefit from a federal agency action must generally be joined as required parties in an APA suit for judicial review of that action.

Brief for the Federal Respondents in Opposition, Maverick Gaming LLC v. United States, Dkt. No. 24-1161, 20 (filed August 27, 2025).

[13] As the State Defendants’ put it: “Maverick attempts to manufacture a legal conflict by citing cases in which courts applied the same legal rule to reach different outcomes.”  Brief of State Respondents in Opposition, Maverick Gaming LLC v. United States, Dkt. No. 24-1161,13 (filed Aug. 27, 2025).  Indeed, the State Defendants cited two pre-Diné Citizens cases in which the Ninth Circuit had held that tribal authorities were not “required parties.”  Id. at 14-15 (citing Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998) (per curiam), and Alto v. Black, 738 F.3d 1111, 1115 (9th Cir. 2013)).  And it noted the “numerous decisions in both [the D.C. and Tenth] circuits that found that absent tribes were necessary and indispensable parties to suits against the federal government.” Id. at 20.  Both the State Defendant’s and the Shoalwater Tribe’s briefs can be access through the Supreme Court’s digital docket sheet.

The “wall of authority” language highlighted by the District Court and the Ninth Circuit panel’s heavy reliance on Diné Citizens and Klamath as dispositive undercuts the Tribe’s and the State’s argument about the nature of the Ninth Circuit’s precedents.

[14] See, INS v. Chadha, 462 U.S. 919, 953 n.16 (1983); E.g., David L. Markell & Emily Hammond, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 HARV. ENVTL. L. REV. 313, 321-27 (2013); John J. Coughlin, The History of the Judicial Review of Administrative Power and the Future of Regulatory Governance, 38 IDAHO L. REV. 89, 92-94 (2001-2002); see generally, Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm’n, 517 P.2d 289, 294 (Ore. Ct. App. 1973)(“[j]udicial review is among the safeguards which serve to legitimatize broad legislative delegations of power to administrative agencies”).

[15] David A. Webster, Beyond Federal Sovereign Immunity: 5 U.S.C. § 702 Spells Relief, 49 OHIO ST. L.J.  725,730-31 (1988)(discussing the 1976 amendment to section 702 to address sovereign immunity).

The Solicitor General in his brief opposing certiorari, argues that because APA actions are litigated on the administrative record, and can be upheld only for the reasons the government cites, viewing non-federal actors as “required parties” is particularly inappropriate.  Brief for the Federal Respondents in Opposition, Maverick Gaming LLC v. United States, supra note 11, at 13. 

[16] See, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)(“judicial review of a final agency action by an aggrieved person will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress”); accord, Department of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 16-19 (2020); Traynor v. Turnage, 485 U.S. 535, 541-45 (1988); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-13 (1971); Webster v. Doe, 486 U.S. 592, 603 (1988)(a “serious constitutional question” would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim).

[17] Congress possesses greater powers over tribes than over states, based upon the Indian Commerce Clause.  Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014); United States v. Lara, 541 U.S. 193, 200, (2004) (“[T]he Constitution grants Congress” powers “we have consistently described as ‘plenary and exclusive’ ” to “legislate in respect to Indian tribes”).

[18] Executive Order 13132—Federalism, 64 Fed. Reg. 43255 (Aug. 4, 1999); Executive Order 13175, 65 Fed. Reg. 67249 (Nov. 6, 2000); Admin. Conf. of the U.S., Recommendation 2025-2, Consultation with State, Local, and Tribal Governments in Regulatory Policymaking, 90 Fed. Reg. 27518 (June 27, 2025).

[19] Pimentel v. Republic of Philippines, 553 U.S. 851 (2008) is distinguishable.  There, plaintiff, who had a judgment against former Philippines President Ferdinand Marcos, sought to collect on the judgment from money held in a bank account.  At the Court’s direction, the Bank filed an interpleader action naming sovereign entities in the Philippines pursing efforts to recapture the funds on behalf of the Philippines.  The Court granted dismissal under Rule 19(b) because of the sovereign immunity enjoyed by those entities.  However, the suit was a dispute over competing claims to funds held by a third party.  Thus, the suit did not contest the lawfulness of the federal government action, as is the case with the Ninth Circuit tribal sovereign immunity cases.  Nor did dismissal implicate Congress’ power to waive federal sovereign immunity to allow aggrieved parties to sue agencies to ensure that such administrative agencies complied with federal law.

[20] Note, Maverick established harm as a competitor to the Tribe’s gambling operations, not as a member of the public or a “beneficiary” of the regulatory regime.

[21] See, Cary Coglianese, Gabriel Scheffler & Daniel E. Walters, Unrules, 73 STAN. L. REV. 885, 955-56 (2021) (“Unrules”); FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 382 (2024) (““when (as here) a plaintiff challenges the government’s ‘unlawful regulation (or lack of regulation) of someone else,’ standing is not precluded, but it is ordinarily substantially more difficult to establish”).

[22] Three professors have coined the term “unrules” for such government action.  Unrules, supra note 20,  (discussing carve outs and dispensations).

[23] For a relatively contemporary discussion of tribal sovereign immunity and some of its unique elements, see  Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788-91 (2014).  Unlike state sovereign immunity, tribal sovereign immunity is based on tribes’ status as “domestic dependent nations.”  Id. at 788.

[24] See generally, John Mixon, Patently Inconsistent: State and Tribal Sovereign Immunity in Inter Partes Review, 93 ST. JOHN’S L. REV. 233. 236-260 (2019)(“Patently Inconsistent”). After a lengthy excursion through the origins and developments of both doctrines, the author concludes that the doctrines a functionally similar.

[25] In Alden v. Maine, the Court observed: “The founding generation thought it ‘neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.’” Alden v. Maine, supra, 527 U.S. at 748 (quoting Ex Parte Ayers, 123 U.S., 443, 505 (1887)). 

The Ayers Court had gone on to explain that:

“In this spirit [Eleventh Amendment immunity] must be held to cover, not only suits brought against a state by name, but those also against its officers, agents, and representatives, where the state, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates.”

Id. at 506 (emphasis added).

[26] 42 C.J.S. INDIANS § 50 (“Waiver of Indian tribal sovereign immunity by tribe”); CONFERENCE OF WESTERN ATTORNEY’S GENERAL, AMERICAN INDIAN LAW DESKBOOK §§7.17, 7:19 (2024 ed.). Both sources are accessible in Westlaw’s “Texts and Treatises” database.

[27] The Advisory Committee noted some courts’ “undue preoccupation with abstract classifications of rights or obligations, as against consideration of the particular consequences of proceeding with the action.” It expressed concern that the then-current version of Rule 19, particular in its use of the terms “indispensable” and “joint interest,” “directed attention to the technical or abstract character of the rights or obligations of the persons whose joinder was in question, and correspondingly distracted attention from the pragmatic considerations which should be controlling.”  Amendments to the Rule were designed to remedy this perceived problem by demoting the significance of the term “indispensable” (which eliminated from Rule 19 altogether by a later amendment) and refraining from defining the persons to be joined “in terms of the abstract nature of their interests—’joint,’ ‘united,’ ‘separable,’ or the like.”

See generally, Katherine Florey, Making Sovereigns Indispensable:  Pimentel and the Evolution of Rule 19, 58 UCLA L. REV. 667, 677 (2011) (observing that Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 118 (1968), made clear that the Rule 19(b) factors “should be examined practically and flexibly”).

[28] For example, in the first Trump Administration, agencies conceded a litigation advantage by purporting to “waive” reliance on Chevron deference.  See Bernard W. Bell, Loper Bright: Resurrecting Skidmore in a New Era,” 55 SETON HALL L. REV. 1577, 1578 n.10 (2025).  In the second Trump Administration, agencies are refusing to pursue positions taken by the FTC in the prior Administration.  See, e.g., Statement of Chairman Andrew N. Ferguson Joined by Commissioner Melissa Holyoak Ryan, LLC v. FTC (Sept. 5, 2025) (withdrawing the FTC;s notice of appeal in Ryan, LLC v. FTC, and acceding to the vacatur of the Commission’s NonCompete Clause Rule)(accessible here); Statement of Chairman Andrew N. Ferguson Joined by Commissioner Melissa Holyoak In the Matter of Non-Alcoholic Beverages Price Discrimination Investigation Matter Number 2210158 (May 22, 2025)(dismissing major Robinson-Patman Act case brought by the Commission in District Court)(accessible here).

[29] See, Alden v. Maine, 527 U.S. 706, 750-51 (1999).  As the Alden v. Maine Court noted: “Private suits against nonconsenting States—especially suits for money damages—may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages.” Cf. South Carolina v. Baker, 485 U.S. 505 (1988)(O’Connor, J., dissenting)(expressing concern about threat to state autonomy arising from Court’s decision to uphold Congress’ power to tax the interest on state indebtedness).

[30] The panel opinion in Maverick Gaming noted Congress’ recognition of the role of gambling revenues in terms of the vigor of tribal governments:

While drafting the legislation, the Select Committee on Indian Affairs acknowledged the importance of gaming to tribal sovereignty, explaining that the income from gaming has enabled tribes “to provide a wider range of government services to tribal citizens and reservation residents than would otherwise have been possible” and often spells “the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.” 

Maverick Gaming, 123 F.4th at 966 (quoting S. Rep. No. 100-446, at 2–3 (1988)).

[31] Indeed, both the federal government and state governments, which also enjoy sovereign immunity, must be advised of litigation implicating the constitutionality of a federal statute or state statute respectively, Fed. R. Civ. P. 5.1; 28 U.S.C. § 2403, and can intervene as of right in the litigation pursuant to Rule 24.  Fed. R. Civ. P.  24(b); 28 U.S.C. § 2403.  Presumably, such litigation need not be dismissed if the federal or state government choose to forgo the opportunity to defend the statute’s constitutionality.

[32]In that regard, the Advisory Committee quoted favorably the following observation in the Harvard Law Review: “if the court is assured that the absentee has notice of the pending action, in deciding whether to deem him indispensable it should consider the availability to him of intervention.”  Multiparty Litigation in the Federal Courts, 71 HARV. L. REV. 874, 882 (March 1958). 

[33] When a state intervenes as of right to defend the constitutionality of a statute, it is liable for court costs, because the intervention statute explicit makes the state liable for court costs, but is not otherwise liable for damages as a party defendant.  Arizona for Official English v. Arizona, 520 U.S. 43, 70 n. 25 (1997).

[34] In considering whether tribal sovereign immunity applied before the Patent Trial and Appeals Board inter partes review proceedings, a student commentator discusses the limited availability of discovery as a factor distinguishing civil litigation from inter partes proceedings before the PTA, which makes recognizing sovereign immunity inappropriate. Patently Inconsistent, supra note 23, at 284-85.  Granted, he makes the comment in the context of discussing whether sovereign immunity applies at all to certain administrative proceedings.  See generally Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).

[35] Maverick suggested that the Shoalwater Tribe could be offered the opportunity to participate as an amicus, thereby mitigating the harm to it of not being a party to the proceeding.  The Ninth Circuit panel peremptorily rejected the suggestion. Maverick Gaming, 123 F.4th at 981.

[36] Brief for the Federal Respondents in Opposition, Maverick Gaming LLC v. United States, supra note 11, at 25 (listing three cases pending in the Ninth Circuit).