UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THE KICKAPOO TRIBE OF INDIANS,

Plaintiff-Appellant,

v.	No. 00-3095
ADA E. DEER, Assistant Secretary of the Interior for Indian Affairs; JIMMIE FIELDS, Area Director of the Bureau of Indian Affairs for the Muskogee Area Office; MITCHELL CHOUTEAU, Area Director of the Bureau of Indian Affairs for the Anadarko Area Office; GALE A. NORTON,1 Secretary of the Interior; ROBERT T. ANDERSON, Associate Solicitor for the United States Department of the Interior; UNITED STATES OF AMERICA,

Defendants-Appellees.

(D.C. No. 96-CV-4130)

(D. Kan.)

ORDER AND JUDGMENT2

Before HENRY, BRISCOE, Circuit Judges, and JENKINS, District Judge3.

Plaintiff Kickapoo Tribe in Kansas appeals the district court's dismissal of its action on the grounds that the Wyandotte Tribe of Oklahoma was a necessary and indispensable party. We exercise jurisdiction over the Kickapoo Tribe's appeal pursuant to 28 U.S.C. § 1291, reverse the district court's dismissal of the action, and remand for further proceedings.

I.

The relevant factual history of this case is recounted in detail in our opinion disposing of a companion appeal, Sac and Fox Nation of Missouri et al. v. Babbitt, No. 00-3063 (10th Cir. Feb. 27, 2001). For purposes of brevity, that history will not be repeated here.

The Kickapoo Tribe filed this action on July 12, 1996, challenging (1) the Secretary's decision to acquire, pursuant to Pub. L. 98-602, a tract of land in downtown Kansas City, Kansas (the Shriner Tract) in trust for the Wyandotte Tribe; and (2) the Secretary's conclusion that the Wyandotte Tribe could lawfully conduct gaming on the Shriner Tract under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-19. The complaint also asserted claims for monetary damages against the Wyandotte Tribe. After more than two years of litigation, a consent order was filed on September 2, 1998, stating that the Kickapoo Tribe acceded in the sovereign immunity of the Wyandotte Tribe. As a result of the sovereign immunity finding, the Wyandotte Tribe was dismissed as a party defendant in this action. Approximately two months later, the Kickapoo Tribe filed a motion for judgment on the merits of its claims against the Secretary. The district court rejected the motion and dismissed the action on the grounds that the Wyandotte Tribe was a necessary and indispensable party under Federal Rule of Civil Procedure 19.

II.

The sole question in this appeal is whether the district court erred in dismissing the Kickapoo Tribe's action against the Secretary on the grounds that the Wyandotte Tribe was a necessary and indispensable party to the action.4 In Section II of our opinion disposing of the companion appeal, Sac and Fox Nation of Missouri et al. v. Babbitt, we addressed an identical issue and concluded that the Wyandotte Tribe was not a necessary and indispensable party to an action challenging the Secretary's determination regarding the Shriner Tract. Because the actions are substantially similar, we reach the same conclusion here, incorporating by reference our discussion disposing of the issue in the companion appeal. We reverse the district court's order of dismissal and remand this case to the district court for further proceedings.

III.

REVERSED and REMANDED for further proceedings.

Entered for the Court

Mary Beck Briscoe

Circuit Judge