adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(l)-(2) hereof who are not joined, and the reasons why they are not joined.”
Thus, under Rule 19(a), we determine whether or not it is feasible to join the Hopi Indian Tribe, and under Rule 19(b) we apply the standards as to whether or not the Tribe is an indispensable party.
At the outset it should be noted that the Hopi Tribe, as a dependent, political, quasi-sovereign nation (Groundhog v. Keeler, 442 F.2d 674, 678 (10th Cir. 1971)), enjoys sovereign immunity and cannot be sued without its consent or the consent of the Congress. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940). In the case at bar, the plaintiffs, the traditional Hopis, have never suggested that Congress or the Hopi Tribe has consented to this suit against the Tribe. So, if it is determined that the Hopi Tribe is an indispensable party, the suit terminates because it cannot be sued without its consent, which it has not given.
We turn now to a consideration of the standards set forth in Rule 19(b) as to whether the Hopi Tribe is an indispensable party.
The first three factors to be considered by the Court in the application of Rule 19 all relate to the nature of the judgment which would be granted in the absence of the alleged indispensable party. The Court must consider first whether a person’s absence might be prejudicial to him; second, the extent to which such prejudice can be lessened or avoided; and, third, whether a judgment rendered in the person’s absence will be adequate. It seems perfectly obvious that a judgment rendered in the absence of the Hopi Tribe most surely would be prejudicial to it, for the royalties to be paid under the lease still amount to more than $20 million and cancellation of the lease would eliminate the employment of many of the Hopis. Furthermore, those who are already parties to this litigation will find themselves saddled with an obligation to make royalty payments under the lease notwithstanding the fact that as to them the lease has been held invalid so that they are not entitled to any benefits under it.
The second factor, “the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided”, is simply not present in this case. The traditional Hopi are attempting to deprive the Hopi Tribe of benefits under the lease on the order of tens of millions of dollars. They are attempting to do so in the absence of the Tribe. There is, thus, no way that the prejudice to the Tribe “can be lessened or avoided” by protective provisions in the judgment shaping relief or, indeed, any other measure.
The third factor is “whether a judgment rendered in the person’s absence will be adequate”. It is perfectly apparent that any judgment rendered in the Tribe’s absence would not be adequate. The lease under attack is between the Hopi Tribe, as lessor, and the Peabody Coal Company, as assignee of the original lease. The Peabody Coal Company has been joined as a party defendant whereas the Hopi Tribe has not. The adverse effects of the invalidation of the lease will be visited upon the Hopi Tribe.
Finally, the fourth factor, “whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder” is a factor weighing in the favor of the plaintiffs. If the Tribe is held to be an indispensable party, it still cannot be brought into the action by reason of its sovereign immunity, and the plaintiff thus does not have any forum to which it can resort in such event.
Thus, it becomes the duty of the Court to weigh the four prescribed factors and to make a judgment balancing the re