Can Tribal Sovereign Immunity Undermine Judicial Review Under the APA: Maverick Gaming LLC v. United States

Should a court docket dismiss a lawsuit difficult a federal company’s motion as a result of a tribal authority is a Rule 19 “required party,” Fed. R. Civ. P. 19(a), not topic to obligatory joinder attributable to tribal sovereign immunity?  This query is raised in a at the moment pending certiorari petition.  Maverick Gaming LLC v. United States, Dkt. No. 24-1161 (cert. petition filed May 9, 2025). This submit discusses the problem within the context of Administrative Procedure Act challenges to federal company actions and concludes that tribal sovereign immunity shouldn’t require dismissal of such litigation.

I. Federal Rule of Civil Procedure 19

Rule 19 The Federal Rules of Civil Procedure present for obligatory involuntary joinder of events in sure situations.[1]  An individual is a “required party” that should be joined in a lawsuit if absent the individual’s participation the court docket can’t accord full reduction among the many present events. An individual can even have “required party” standing if the court docket’s decision of the motion would both: (a) “as a practical matter” impair or impede the non-party’s potential to guard the its pursuits or (b) go away an present celebration prone to incurring a number of or inconsistent obligations.  If so, involuntary joinder is effected by Court order. 

If joinder will not be possible, the court docket should decide whether or not dismissal of the go well with is required “in equity and good conscience,” or, in archaic terminology, whether or not the non-party is an “indispensable” celebration.[2]  Rule 19 lays out a four-factor check to manipulate such determinations. The Court is to contemplate: (1) the extent any judgment rendered within the non-party’s absence may prejudice the non-party or the present events, (2) the extent to the Court can reduce or remove any such prejudice, (3) the adequacy of any judgment rendered within the non-party’s absence, and (4) whether or not the plaintiff would have an sufficient treatment have been the motion dismissed for nonjoinder.  With respect to the second issue, the Court ought to contemplate whether or not it will possibly could reduce the bias the non-party or the present events may endure by (a) getting into protecting provisions within the judgment or (b) shaping any reduction granted, inter alia.

An ill-defined “public rights” exception exists to calm down the obligatory joinder rule when “public rights,” versus “private rights” are at concern.[3]  While the doctrine may most naturally apply when a governmental entity is searching for to implement public rights, significantly in administrative proceedings,[4] the doctrine seems to use exterior that context as nicely.[5]   

The courts of attraction seem to have cut up relating to whether or not fits in opposition to the federal authorities with implications for tribal sovereignty should be dismissed if the tribal authority’s assertion of sovereign immunity precludes obligatory joinder.  The D.C. Circuit and the Tenth Circuits usually refuse to dismiss Administrative Procedure Act (“APA”) claims on the idea of tribal sovereign immunity.[6]  Two main Ninth Circuit selections entrenched an strategy in that Circuit that extra steadily ends in dismissals of APA fits on such grounds.[7]

The “required party” rule assumed a dispositive position in Maverick Gaming LLC v. United States, 123 F.4th 960 (ninth 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 problem in opposition to the Department of Interior on exactly that foundation.

II. Maverick Gaming v. United States

After states have been relieved of the federal prohibition on sports activities playing, Maverick, a Nevada on line casino gaming firm, acquired cardrooms within the State of Washington. Maverick then unsuccessfully lobbied the Washington legislature to permit sports activities betting.  The legislature declined, however enacted a legislation permitting Indian tribes to amend their gaming compacts to authorize sports activities betting on their land.  The Shoalwater Bay Indian Tribe was one in every of a number of federally-recognized tribes positioned in Washington State to reap the benefits of this chance. Maverick Gaming, 123 F.4th at 965.

Indian gaming is ruled by the Indian Gaming Regulatory Act (“the IGRA”), which permits a state authorities and a tribe to enter a compact to allow gaming on its tribal lands. The Compact should be submitted for approval by the United States Secretary of the Interior. The Secretary could disapprove a compact provided that it violates (1) any provision of IGRA; (2) another provision of federal legislation that doesn’t relate to jurisdiction over gaming on Indian lands; or (3) the belief obligations of the United States to Indians.  The Shoalwater Bay Tribe and the State entered right into a gaming compact that grew to become efficient with the Secretary’s approval in November 2002.  The most up-to-date modification to the compact, efficient September 15, 2021, authorizes the Tribe to supply sports activities betting. Maverick Gaming, 123 F.4th at 969 n.12.

All this proved an excessive amount of for Maverick, which resorted to litigation. The firm sued the United States and numerous federal officers liable for the approval of the tribal-state gaming compacts, in addition to the varied Washington state officers concerned within the execution and administration of these compacts. Maverick’s first declare, in opposition to the Federal Defendants underneath the APA, alleged that the Secretary’s approval of the Washington tribes’ sports activities betting compact amendments violated IGRA, the Equal Protection Clause, and the Tenth Amendment’s anticommandeering restrictions.[8] Maverick sought declaratory reduction and vacatur of the Secretary’s approval of the sports activities betting amendments.  Id. at 970.  This declare is the main focus of this blogpost.

Maverick’s second declare alleged that the state officers’ execution and administration of the tribal-state compacts and the sports activities betting amendments violated IGRA and associated federal statutes, the Equal Protection Clause, and the Tenth Amendment’s anticommandeering restrictions. Maverick sought declaratory reduction and an injunction prohibiting the Washington State Gambling Commission from persevering with to manage the Shoalwater Bay Tribe compact’s sports activities betting amendments.  Id.

In its third declare, Maverick alleged that the state’s exemption of the tribes from its felony prohibition on providing sports activities betting violated the Washington State Constitution’s assure of equal safety. Maverick sought declaratory reduction, and an injunction prohibiting the State Defendants from implementing these felony prohibitions on playing in opposition to Maverick.  Id.

The Tribe moved to intervene for the restricted function of transferring to dismiss the go well with as a result of it was a “required party” not topic to obligatory joinder. Id. at 971.[9]

The District Court dismissed the go well with.  The decide discovered that the go well with may impair the Tribe’s legally protected curiosity 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 might the Tribe depend on the federal authorities to signify its pursuits on condition that “the Federal Defendants’ interests in defending their approval of the sports betting compact amendments ‘clearly diverge’ from the Tribe’s sovereign interest in” persevering with to supply sports activities betting.  Id.  The District Court then concluded that the Tribe couldn’t feasibly be joined within 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 decide held the “public rights” doctrine inapplicable as a result of Maverick had introduced the go well with to additional his personal enterprise pursuits in “increasing” its market share within the sports activities gaming trade. Id.

A Ninth Circuit panel affirmed, with one decide concurring individually.  The majority agreed that the Shoalwater Bay Tribe was a required celebration, at the least with respect to Maverick’s first two claims, possessing a legally protected curiosity in gaming income essential to the Tribe’s monetary stability.  Id. at 972-73.  Relying closely on Klamath Irrigation District and Diné Citizens, the panel agreed that the federal authorities’s pursuits sufficiently diverged from the Tribe’s such that the federal authorities couldn’t be anticipated to adequately signify the Tribe’s pursuits.  Id. at 973-78.  The panel refused to handle the argument that the Tribe was not a required celebration for Maverick’s third declare, searching for its personal exemption from the state felony prohibition of playing, as a result of Maverick had waived the argument within the District Court.  Id. at 973.

The panel concluded that the District Court didn’t abuse its discretion in concluding that dismissal was required underneath the Rule 19(b) four-factor check.  The Tribe’s sovereign immunity and the bias the Tribe would endure if the go well with proceeded in its absence justified the choice, though each the third and fourth Rule 19(b) components weighed in favor of permitting the litigation to proceed.  Maverick Gaming 123 F.4th at 980-82.  Moreover, the panel concluded that Maverick’s go well with didn’t match throughout the “public rights” exception permitting litigation to proceed regardless of the absence of a “required party,” as a result of (1) Maverick’s motivations for pursuing the litigation have been gaining a aggressive benefit and (2) the decision of the litigation with out the Tribe might “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, however questioned the validity of these precedents.  Those selections failed to provide sufficient 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 company’s motion should 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 doesn’t authorize reduction in opposition to any celebration aside from the company.[10]  He warned that the “required party” strategy 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 famous the battle within the Circuits on the strategy to Rule 19 dismissal of circumstances when non-party Tribes assert sovereign immunity.  Id. at 985.  He additionally briefly addressed Maverick’s third declare, searching for a declaration that may enable Maverick itself to conduct gaming. The Tribe was not even a “required” celebration with respect to that declare; the Tribe’s curiosity in being free from competitors within the sports activities betting market didn’t qualify as a “legally protected interest.”  However, Judge Miller agreed together with his colleagues that Maverick had waived that concern.  Id. at 985-86.

The case is now earlier than the U.S. Supreme Court on Maverick’s petition for certiorari.  Maverick argues that as a result of an APA declare challenges solely the Department of Interior’s actions, the Tribe will not be a required celebration.[11]  Maverick notes the Circuit cut up on this concern.  The U.S. takes the identical place,[12] however argues that Maverick’s case supplies an inappropriate car to make use of to resolve the Circuit cut up.  Both the Tribe and the State defendants argue that the Circuit cut up is illusory, explaining that the outcomes of circumstances determined in different circuits merely mirror the truth that required joinder points should be selected a case-by-case foundation, and never by the blanket rule Maverick and the United States advocate.[13]  They additionally argue, in fact, that the Ninth Circuit’s determination was appropriate.

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

This part presents my evaluation on the query introduced by Maverick Gaming v. United States.  It will talk about the federal curiosity in judicial overview of company selections, manifested within the APA, the insubstantial nature of the intrusion upon tribal authorities in APA fits, and the significance of sovereign authorities’ rights to intervene in litigation the issues them.

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

Judicial overview of company selections performs a essential structural position by way of the Constitution.  Judicial overview ensures that businesses act constantly with the desire of Congress as embodied in statutes.[14]  It additionally ensures equity to people adversely affected by company selections and could also be key to the validity of some delegations of adjudicatory powers to administrative businesses.  In quick, judicial overview ensures that the manager department is topic to the rule of legislation. 

Moreover, by enacting the APA’s judicial overview provisions Congress expressly waived the sovereign immunity of the United States to claims for declaratory and injunctive reduction. 5 U.S.C. §702.[15]  Indeed, so essential is judicial overview, that there’s a sturdy presumption that company selections are topic to judicial overview.[16] 

These compelling federal pursuits shouldn’t be undermined by assertions of tribal or state sovereign immunity.  The federal authorities has clear sovereignty over tribal and state governments in lots of respects by advantage of its enumerated powers.[17]  And it usually adopts particular provisions accommodating state and tribal authorities.  Agencies, or Congress, may concern permissions to state and tribal governments.[18]  These actions should be topic to judicial overview for consistency with the U.S. Constitution, federal statues, and different federal authorized restraints upon federal actors.[19]  Carving out such insurance policies and their utility from the presumption in favor of judicial overview would significantly impair the essential position of judicial overview.

The first case through which the Ninth Circuit dismissed a case in opposition to federal officers on the grounds that the immune tribal authority certified as required events underneath rule 19, Diné Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, 932 F.3d 843 (ninth Cir. 2019), illustrates these issues. There, a coalition of environmental teams asserted challenges underneath federal environmental statutes to the federal authorities’s reauthorization of coal-mining actions on land reserved to the Navajo Nation.  Id. at 847-848.  A tribal coal-mining firm efficiently 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 dedication (and the tribe’s invocation of sovereign immunity) thus precluded litigation over a federal company’s adherence to federal environmental legal guidelines.

Such solicitude is all of the extra disturbing as a result of standing doctrine supplies but further hurdles to these searching for to challenges federal dispensations that favor state and tribal governments in a focused method.  Standing doctrine is especially inhospitable to beneficiaries of company insurance policies or members of most of the people who search to problem company motion.[20]  This supplies but further safety relating to challenges to insurance policies that particularly have an effect on state and tribal governments.[21] 

B. State and Tribal Sovereign Immunity aren’t Substantially Implicated in APA Challenges

Not solely is the federal curiosity in APA litigation compelling, state and tribal sovereign immunity aren’t considerably implicated by actions in opposition to the federal authorities for the grant of permissions or dispensations to state and tribal authorities.[22]  Though considerably distinct,[23] tribal immunity resembles state sovereign immunity mirrored within the Eleventh Amendment.[24]

Sovereign immunity protects the dignity of states and tribal authorities from being haled into court docket to reply for or defend their personal actions.  Alden v. Maine, 527 U.S. 706, 748 (1999).[25]  It will not be implicated by the existence of litigation in opposition to a 3rd celebration that may adversely have an effect on the state or tribal entity.  States and tribal authorities are free to waive sovereign immunity, and should accomplish that for restricted functions.[26]  It shouldn’t be thought of an affront to the dignity of states or tribes to supply them the chance to take part in litigating the legality of the federal authorities’s dispensations to them, all of the extra so given the sturdy federal curiosity in broad judicial overview of federal company actions.  Were the rule in any other case, nearly each dispensation to states, in addition to to tribes, may nicely be exempted from judicial overview, regardless of the appreciable further protections provided by the legislation of standing. 

Moreover, whereas the federal authorities is entitled to sovereign immunity, it’s equally entitled to waive sovereign immunity for the advantage of its residents and others aggrieved by company actions.  Use of sovereign immunity by tribal authorities to achieve dismissal of APA actions by way of Rule 19 deprives the federal authorities of its sovereign option to determine when authorities businesses are immune, and when they aren’t, from challenges to their actions. (Indeed, limiting entry to judicial overview has important “separation of power” implications – dramatically growing company discretion on the expense of Congress’ powers to manage that discretion by laws.) 

The Court noticed in Alden v. Maine that in some methods, “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 defined 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 concerned the federal authorities’s tried abrogation of a state’s sovereign immunity within the state’s personal courts.  But the Alden v. Maine precept ought to maintain in reverse, particularly that respect for the federal sovereign precludes state and tribal authorities from possessing the facility to frustrate the federal authorities’s waiver of sovereign immunity to fits in federal court docket in opposition to federal defendants. 

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

The required celebration joinder inquiry is supposed to be a truth delicate one.  See, Advisory Committee commentary on the 1966 modification to Rule 19.[27]  There could also be circumstances through which the pursuits of the federal and state governments diverge in APA or related challenges involving alleging illegal company permission or dispensations issued to state or tribal authorities.

One, in fact, is when the administration that adopted the dispensation has been changed by one that’s hostile to it.[28]  It might be simpler for the federal government to enter a settlement with the plaintiff difficult the prior administration’s determination than to undergo the method of adjusting that call. 

Maverick suggests but a second circumstance through which federal and tribal pursuits could diverge.  The Court in Maverick discovered that there was a historic hostility between the federal authorities and the Tribe over playing. Maverick Gaming v. United States, supra, 123 F.4th 960, 969, 977 (discussing the adversarial historical past between the Shoalwater Bay Tribe on one hand and each the federal and state governments on the opposite).  

Yet a 3rd divergence may be discovered within the fiscal implications of a challenged to a federal authorities motion. The coronary heart of sovereign immunity is the priority concerning the public fisc,[29] and actions that prohibit tribes from accessing the revenues flowing from playing on their reservations pose a very dire risk to their sovereignty,[30] one not essential to the federal authorities.

However, these issues a few divergence of curiosity between federal and tribal authorities will be addressed by allowing tribal authorities to affirmatively intervene within the lawsuit underneath Federal Rule of Civil Procedure 24, for the restricted function of defending the federal authorities’s determination.  Intervention “is the logical counterpart of . . . procedural devices which enable parties to summon nonparties into the proceeding.”  Multiparty Litigation within 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., these “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 proper, will be denied provided that a court docket concludes that an present celebration can’t “adequately represent that interest.” Indeed, Rule 19 contemplates advising “required parties” of the litigation and allowing them to be a part of the go well with ought to they want to take action.[31]    This supplies a mechanism for a non-party with a collateral curiosity in litigation to guard its personal curiosity, and the Advisory Committee to the 1966 Amendments to the Federal Rules of Civil Procedure appeared to ponder {that a} decide ought to take such a chance for self-help into consideration in deciding whether or not to dismiss the motion because of the absence of a 3rd celebration.  The Advisory Committee famous 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 ought to contemplate that potential in its calculus relating to whether or not to order dismissal for failure to sue a required celebration.  Advisory Committee Notes for 1966 Amendment; see additionally Tobias, supra notice 3, 65 N.C. L. REV. at 773 & n.140, 783, 784.[32]

In getting into the go well with, tribal authorities wouldn’t be subjecting themselves to any injunctive or financial reduction. 

Thus, a non-party Tribe can determine for itself whether or not it must intervene within the motion; it’s not ordered into court docket involuntarily (as may seem like the case have been involuntary joinder ordered underneath Rule 19).  Again, it shouldn’t offend sovereign immunity to permit a case in opposition to the United States to proceed, even when it means confronting the tribal authority with a selection, acquire the benefits of waiving sovereign immunity or standing on sovereign immunity.  And certainly, the Tribe has no sovereign proper to proceed to profit from an ongoing illegal federal company dispensation.  Nothing extra is compelled than that tribal authorities be happy with what the federal legislation permits the related company to do.

Indeed, on this approach a tribe might litigate the validity of the federal company’s motion with not one of the dangers to which non-governmental events topic themselves by intervening in a lawsuit – it will possibly restrict its waiver in order that it’s not topic to counterclaims from the plaintiff.[33]  Even when a tribe has introduced an motion and there’s a reputable counterclaim, the defendant can obtain solely a diminution of the quantity owed the tribe and never receive further damages.  United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 511-12 (1940). And certainly, within the tribal gaming context, a D.C. District Court Judge has held that 4 tribes’ problem to the secretarial approval of a category III gaming compact didn’t waive their immunity from go well with with respect to a counterclaim searching for 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 (ninth Cir. 2017).

Finally, one profit conferred by “party” standing is the appropriate to conduct discovery and to current proof, both for abstract judgment or at trial.  In most APA circumstances discovery will not be permitted, exactly as a result of the problem should be selected the report compiled by the company.[34]  For the identical cause, even events usually possess little potential to current further proof to a court docket reviewing the company motion underneath 5 U.S.C. §706.  Thus, the flexibility to make amicus submissions could also be a extra viable choice in APA circumstances than in different kinds of litigation involving de novo trial of the details.[35]

Conclusion

The Court will in all probability refuse to grant certiorari on this case.  Maverick waived a few of its arguments, it has declared chapter, and its claims on the deserves seem fairly weak.  But the Solicitor General notes that extra circumstances elevating the identical query are on their approach to the Court,[36] and the Court could nicely take one in every of them to deliver uniformity to the courts of attraction on this concern.

[1] As famous within 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 additionally, 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 together with the textual content of the rule here.

[2] In Shields v. Barrow, 58 U.S. 130 (1854), the Court coined the phrases “necessary” and “indispensable” events.  Coyle, supra notice 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 different grounds, 459 F.2nd 255 (2nd Cir. 1972).  See usually, 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.2nd 269, 279 (seventh 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.2nd 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 famous:

the exception usually applies the place “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 can be severely curtailed as a result of it’s usually infeasible to affix all of the individuals affected by such litigation.

Id. at 1500 (citations omitted).

Ironically, Kickapoo Tribe concerned a go well with by the Tribe in opposition to U.S. Secretary of Interior Babbitt to power the Department to publish a compact in compliance with the Indian Gaming Regulatory Act. The case had been dismissed primarily based on the District Court’s conclusion that Kansas was a “required party” that might not be joined attributable 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 (tenth Cir. 2001), cert. denied, 534 U.S. 1078 (2002). 

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

[8] It will not be clear that the Secretary was required to, and even free to, entertain such constitutional claims in contemplating whether or not to approve the compact.  Yonatan Gelblum, The Myth that Agency Adjudications Cannot Address Constitutional Claims, 32 GEO. MASON L. REV. 224 (2025). The creator notes that courts usually excuse necessities of exhaustion of administrative cures with respect to constitutional claims as a result of businesses lack the facility or competence to resolve such claims.  Id. at 227-229.  Without the flexibility to deliver an APA problem, Maverick could also be unable to acquire any consideration of the constitutional points it raised.

[9] The State raised a sovereign immunity protection as nicely, with the outcome 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 keen to drop the claims in opposition to the State of Washington.  Id. at 970.

[10] Additionally, any reduction granted would go away non-parties whose pursuits may 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 strategy will not be even restricted to tribes however may very well be “exploited” by states and overseas 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 one other implication even when an individual who’s a “required party” will be joined and thus the lawsuit needn’t be dismissed.

Because the motivations of personal entities that profit from federal company motion very steadily are completely different than the company’s motivation for defending its personal motion, the Ninth Circuit’s strategy might result in a observe underneath which the (doubtlessly quite a few) non-public entities that profit from a federal company motion should usually be joined as required events in an APA go well with for judicial overview of that motion.

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 circumstances through which the Ninth Circuit had held that tribal authorities weren’t “required parties.”  Id. at 14-15 (citing Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (ninth Cir. 1998) (per curiam), and Alto v. Black, 738 F.3d 1111, 1115 (ninth Cir. 2013)).  And it famous 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 will be entry by 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 concerning 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 usually, Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm’n, 517 P.2nd 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 modification to part 702 to handle sovereign immunity).

The Solicitor General in his temporary opposing certiorari, argues that as a result of APA actions are litigated on the executive report, and will be upheld just for the explanations the federal government cites, viewing non-federal actors as “required parties” is especially inappropriate.  Brief for the Federal Respondents in Opposition, Maverick Gaming LLC v. United States, supra notice 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 come up if a federal statute have been construed to disclaim any judicial discussion board for a colorable constitutional declare).

[17] Congress possesses larger powers over tribes than over states, primarily 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 in opposition to former Philippines President Ferdinand Marcos, sought to gather on the judgment from cash held in a checking account.  At the Court’s path, the Bank filed an interpleader motion naming sovereign entities within the Philippines pursing efforts to recapture the funds on behalf of the Philippines.  The Court granted dismissal underneath Rule 19(b) due to the sovereign immunity loved by these entities.  However, the go well with was a dispute over competing claims to funds held by a 3rd celebration.  Thus, the go well with didn’t contest the lawfulness of the federal authorities motion, as is the case with the Ninth Circuit tribal sovereign immunity circumstances.  Nor did dismissal implicate Congress’ energy to waive federal sovereign immunity to permit aggrieved events to sue businesses to make sure that such administrative businesses complied with federal legislation.

[20] Note, Maverick established hurt as a competitor to the Tribe’s playing operations, not as a member of the general 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 time period “unrules” for such authorities motion.  Unrules, supra notice 20,  (discussing carve outs and dispensations).

[23] For a comparatively modern dialogue of tribal sovereign immunity and a few of its distinctive parts, see  Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788-91 (2014).  Unlike state sovereign immunity, tribal sovereign immunity relies on tribes’ standing as “domestic dependent nations.”  Id. at 788.

[24] See usually, 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 prolonged tour by the origins and developments of each doctrines, the creator concludes that the doctrines a functionally related.

[25] In Alden v. Maine, the Court noticed: “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 clarify 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 famous 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 model of Rule 19, explicit in its use of the phrases “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 have been designed to treatment this perceived downside by demoting the importance of the time period “indispensable” (which eradicated from Rule 19 altogether by a later modification) and refraining from defining the individuals to be joined “in terms of the abstract nature of their interests—’joint,’ ‘united,’ ‘separable,’ or the like.”

See usually, 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) components “should be examined practically and flexibly”).

[28] For instance, within the first Trump Administration, businesses conceded a litigation benefit 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, businesses are refusing to pursue positions taken by the FTC within 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 discover of attraction 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 main Robinson-Patman Act case introduced 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 famous: “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 risk to state autonomy arising from Court’s determination to uphold Congress’ energy to tax the curiosity on state indebtedness).

[30] The panel opinion in Maverick Gaming famous Congress’ recognition of the position of playing revenues by way of the vigor of tribal governments:

While drafting the laws, the Select Committee on Indian Affairs acknowledged the significance of gaming to tribal sovereignty, explaining that the revenue 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 sometimes 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, each the federal authorities and state governments, which additionally get pleasure from sovereign immunity, should be suggested 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 may intervene as of proper within the litigation pursuant to Rule 24.  Fed. R. Civ. P.  24(b); 28 U.S.C. § 2403.  Presumably, such litigation needn’t be dismissed if the federal or state authorities select to forgo the chance to defend the statute’s constitutionality.

[32]In that regard, the Advisory Committee quoted favorably the next statement within 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 within the Federal Courts, 71 HARV. L. REV. 874, 882 (March 1958). 

[33] When a state intervenes as of proper to defend the constitutionality of a statute, it’s answerable for court docket prices, as a result of the intervention statute express makes the state answerable for court docket prices, however will not be in any other case answerable for damages as a celebration defendant.  Arizona for Official English v. Arizona, 520 U.S. 43, 70 n. 25 (1997).

[34] In contemplating whether or not tribal sovereign immunity utilized earlier than the Patent Trial and Appeals Board inter partes overview proceedings, a pupil commentator discusses the restricted availability of discovery as an element distinguishing civil litigation from inter partes proceedings earlier than the PTA, which makes recognizing sovereign immunity inappropriate. Patently Inconsistent, supra notice 23, at 284-85.  Granted, he makes the remark within the context of discussing whether or not sovereign immunity applies in any respect to sure administrative proceedings.  See usually Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).

[35] Maverick advised that the Shoalwater Tribe may very well be provided the chance to take part as an amicus, thereby mitigating the hurt to it of not being a celebration to the continuing.  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 notice 11, at 25 (itemizing three circumstances pending within the Ninth Circuit).