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IN THE COURT OF APPEALS OF IOWA No. 6-293 / 04-1917 Filed October 25, 2006 WASKER, DORR, WIMMER & MARCOUILLER, P.C., MICHAEL D. MASON, d/b/a MICHAEL D. MASON LAW OFFICE, JORDAN MAHONEY, JORDAN & QUINN, P.C., IOWA MANAGEMENT & CONSULTANTS, INC., JOHN R. HEARN, d/b/a JOHN R. HEARN LAW OFFICES, JAMES DEMASSEO, AND THE CONCEPT WORKS, LLC, Plaintiffs-Appellees, vs. HOMER BEAR, JR., HARVEY DAVENPORT, JR., WAYNE PUSHETONEQUA, KEITH DAVENPORT, DERON WARD, FRANK BLACKCLOUD, AND RAY YOUNGBEAR, Individually, and in any claimed capacity as Tribal Council for the Sac & Fox Tribe of the Mississippi in Iowa, Defendants-Appellants. ________________________________________________________________ Appeal from the Iowa District Court for Tama County, Thomas M. Horan, Judge. The defendants appeal the denial of their motion to dismiss. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Steven F. Olson and Jeffrey S. Rasmussen of Olson, Allen & Rasmussen, Bloomington, Minnesota, and Wilford Stone of Lynch Dallas, PC, Cedar Rapids, for appellants. Fred L. Dorr, West Des Moines, for appellees Wasker, Dorr, Wimmer & Marcouiller, P.C., Iowa Management & Consultants, Inc., James Demasseo and the Concept Works, LLC. John Hearn, Des Moines, pro se. Michael Mason, Portland, Oregon, pro se.

Heard by Vogel, P.J., and Zimmer and Vaitheswaran, JJ.

2 VOGEL, P.J. The defendants appeal from the district court's order that denied their motion to dismiss. For the reasons discussed below, we affirm the district court's denial of the motion, but conclude the joinder of the Tribe necessary as an indispensable party and remand for further proceedings. I. Background Facts and Proceedings. This case is another in a long string of state and federal litigation stemming from a tribal leadership dispute within the Meskwaki Settlement near Tama, Iowa. In September 2002, a dissident faction led by Homer Bear Jr., challenged the authority of the elected council chaired by Alex Walker. The plaintiffs (hereinafter collectively referred to as Wasker), having done business with the Walker Council, found themselves caught in the middle of this tribal leadership dispute. Consequently, Wasker filed a petition for declaratory

judgment in Tama County on March 16, 2004, naming as defendants Homer Bear Jr. and others, "individually and in any claimed capacity as Tribal Council for the Sac & Fox Tribe of the Mississippi in Iowa," (hereinafter collectively referred to as the Bear defendants). Wasker and the other plaintiffs allege

certain contracts for legal services, arbitration/litigation settlements, and other agreements (hereinafter referred to generally as agreement[s]) exist between the plaintiffs and the Tribe as all were properly approved by the Tribe, as then governed by the Walker Council, the Bureau of Indian Affairs of the Interior Department, and/or reduced to judgment or dismissed by an Iowa or federal court. Wasker seeks a declaration of the parties' rights under the agreements upon allegations that the Bear defendants have attempted to reject or invalidate

3 the agreements and nullify prior state and federal court action. The Bear

defendants filed a motion to dismiss the petition on April 6, 2004, asserting: 1) failure to join the Tribe as an indispensable party and tribal sovereign immunity; 2) failure to state a claim upon which relief may be granted; 3) lack of subject matter jurisdiction; and 4) failure to comply with Iowa Rule of Civil Procedure 1.411(2). The district court denied the motion to dismiss in its entirety,

concluding it did have subject matter jurisdiction as Wasker stated a proper claim for relief and an equitable, declaratory action on contracts does not interfere with tribal sovereignty. The Bear defendants appealed the denial of the motion to dismiss on the first three grounds numerated above, to which our supreme court granted interlocutory review. II. Scope of Review. We review motions to dismiss for correction of errors at law. Davis, 714 N.W.2d 616, 619 (Iowa 2006). III. Issues on Appeal. The Bear defendants argue that the district court erred by denying dismissal of the declaratory judgment action against them for several reasons. A. Indispensable Party. The first ground for dismissal urged by the Bear defendants before the district court and on appeal is failure to join the Tribe as an indispensable party. The district court's ruling does not specifically address Crall v.

whether the Tribe is an "indispensable party" for purposes of this dispute, and the Bear defendants did not file a motion to enlarge under Iowa rule 1.904(2). Nonetheless the district court implicitly rejected the claim by denying the motion to dismiss, "in its entirety for the reasons stated in the resistance." We conclude

4 there was minimally adequate error preservation for our review. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002). The Bear defendants' motion to dismiss was a pre-answer motion pursuant to rule 1.421. Even in this utmost preliminary stage of the case, the Wasker plaintiffs' petition on its face seeks to bind the Tribe to a declaratory judgment ruling as a party to the various agreements. While there is no claim the Tribe is attempting to undo what had been done by the Walker Council, each count of the petition contains a prayer of relief asking that, "the court confirm and declare the [agreement] as valid and binding on the parties to it including the Tribe. . . . " (emphasis added). The Tribe is clearly indispensable to a declaratory judgment suit involving agreements to which it is a signatory party. See Irwin v. Keokuk Sav. Bank & Trust Co., 218 Iowa 961, 964, 256 N.W. 681, 683 (1934) (holding that some privity must be shown between parties in order to bring them into an action). At this early stage of this declaratory judgment action, we

conclude that the Tribe is indispensable. The district court was correct in not dismissing the case as dismissal, is not the appropriate remedy for failing to join an indispensable party. See Iowa R. Civ. P. 1.234(3) (providing proper remedy and procedure for joining indispensable parties). Rather, the district court should order the Tribe be brought in. We therefore remand to the district court for

joinder of the Tribe as an indispensable party to this declaratory judgment action. B. Sovereign Immunity. The Bear defendants next argue that sovereign immunity bars prosecution of this case against the Tribe itself, thereby warranting dismissal once the Tribe is joined. Although generally, sovereign immunity will foreclose litigation for damages against a tribe, an exception exists in equitable

5 actions, such as declaratory judgment suits. See Comstock Oil & Gas Inc. v. Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567, 571-72 (5th Cir. 2001) (holding that neither the tribe nor individually-named tribal council members hold sovereign immunity from an equitable suit for declaratory or injunctive relief), cert. denied by Alabama and Coushatta Indian Tribes of Texas v. Comstock Oil & Gas Inc., 535 U.S. 971, 122 S. Ct. 1438, 152 L. Ed. 2d 382 (2002); Big Horn County Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 954 (9th Cir. 2000) (holding suits for prospective injunctive relief are permissible against Indian tribal officers and do not violate tribal sovereign immunity). Because this declaratory judgment action seeks equitable relief and not damages, we conclude the case may go forward without dismissal on sovereign immunity grounds even after the Tribe is joined as an indispensable party. C. Justiciable Controversy. The Bear defendants next assert the

district court erred by concluding the plaintiffs "have not failed to state claims upon which relief can be granted." `Since the advent of notice pleading under Iowa Rule of Civil Procedure 69(a), it is a rare case which will not survive a [motion to dismiss]. As a result, disposition of unmeritorious claims in advance of trial must now ordinarily be accomplished by other pretrial procedures which permit narrowing of the issues and piercing of the bare allegations contained in the petition.' Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001) (quoting Am. Nat'l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986)). Therefore, very little is required in a petition to survive a motion to dismiss on the failure to state a claim ground. Id. at 292. One is not required to plead ultimate facts that support the elements of the claimed cause of action. But facts sufficient to apprise the defendant of the

6 incident must be included in the petition in order to provide "fair notice" of the claim asserted. Id. A motion to dismiss is properly granted only if a plaintiff's petition "on its face shows no right of recovery under any state of facts." Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997). The petition is assessed in the light most favorable to the plaintiff, and all doubts and ambiguities are resolved in plaintiff's favor. Below v. Skarr, 569 N.W.2d 510, 511 (Iowa 1997); Treimer v. Lett, 587 N.W.2d 622, 625 (Iowa Ct. App. 1998). Wasker requests equitable relief upon agreements alleged in the petition that the Bear defendants have in some manner sought to dishonor or invalidate. Declaring the rights of parties under contractual agreements is a proper avenue of relief in an equitable declaratory judgment action. See IMT Ins. Co. v. Crestmoor Golf Club, 702 N.W.2d 492, 495-96 (Iowa 2005). Therefore, we affirm denial of the motion to dismiss on this ground. D. The Jurisdictional Question. The Bear defendants' pre-answer

motion challenging subject matter jurisdiction relies on facts outside of the pleadings. To resolve the jurisdictional issue, the district court was required to look beyond the pleadings, as: Where there is a conflict between the parties as to the existence of a jurisdictional fact, the court should not decide the question on affidavits, even with the consent of the parties; in such case the dispute should be determined by the taking of evidence, either at a hearing on that issue or at the trial of the case. Tigges v. City of Ames, 356 N.W.2d 503, 511 (Iowa 1984) (citing 21 C.J.S. Courts

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