was a party to the agreement central to this case. Similarly, the United States has interests affected by a determination on the merits. While the United States has not provided argument on this point, it too was a party to the 1904 Agreement, and its jurisdictional interests and obligations are directly implicated. The fact that a sovereign entity could have intervened, but chose not to, cannot be considered as a mitigating factor to weigh against this likelihood of prejudice. See Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 775 (D.C.Cir.1986) (declined to hold that “the de facto opportunity to file position papers with the court on a cross-claim is sufficient to mitigate the prejudice of non-joinder”); Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir.) (<HOLDING>). To do so would invade the province of the
holding that 28 usc  1331 does not constitute a waiver of sovereign immunity holding that the issue of waiver requires an analysis of the specific facts in each case holding that the word waiver is not required to waive a right even when a statute requires clear and unmistakable evidence of waiver holding that if intervention requires waiver of immunity the ability to intervene does not lessen prejudice holding that the ada does not contain a waiver of sovereign immunity and thus does not apply to the federal government