Goldman A. Dillon v. Yankton Sioux Tribe ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 97-3107
Golman A. Dillon, Jr., also *known
as Bill A. Dillon, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* District of South Dakota.
Yankton Sioux Tribe Housing *
Authority, *
*
Appellee. *
Submitted: March 11, 1998
Filed: May 20, 1998
Before BEAM and HEANEY, Circuit Judges, and WATERS,1
District Judge.
HEANEY, Circuit Judge.
Golman Dillon was terminated by the Yankton Sioux
Housing Authority (Authority). Claiming that he was
fired because he is white, Dillon sued under various
1
The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas.
civil rights statutes in federal district court. The
district court determined that it lacked jurisdiction due
to tribal sovereign immunity and granted summary judgment
for the Authority. We affirm.
I.
Dillon worked for the Authority as coordinator of
their Comp/Grant Department. He was responsible for,
among other things, modernizing Indian housing
developments on the Yankton Sioux Reservation. Dillon
claims that he was terminated because he is white and
brought suit under 42 U.S.C. §§ 1981, 1985, 1986 and
Title VII, 42 U.S.C. §§ 2000e-2(m). Consequently, we
must determine whether the Authority’s motion to dismiss,
which the district court converted into a summary
judgment motion, was properly granted due to sovereign
immunity.
Dillon claims that the Yankton Sioux Tribe has waived
sovereign immunity by allowing the Authority to be sued
in its authorizing charter. Tribal Resolution No. 77-71,
Article V(2) states:
The Committee hereby gives its irrevocable
consent to allowing the Authority to sue and be
sued in its corporate name, upon any contract,
claim or obligation arising out of its
activities under this ordinance and hereby
authorizes the Authority to agree by contract to
waive any immunity from suit which it might
otherwise have, but the Tribe shall not be
liable for the debts or obligations of the
Authority.
2
(J.A. at 30.) Dillon argues that because the Authority
receives federal financial assistance from the Department
of Housing and Urban Development (HUD), and thereby must
agree to comply with federal civil rights laws, it has
waived sovereign immunity. Dillon suggests that it would
be incongruous for the Authority to agree to follow
federal law, yet shield itself from suit in federal
court. The district court agreed that a contract with
HUD, under which Dillon receives his salary, could be an
effective
3
waiver of sovereign immunity for purposes of interpreting
the “sue and be sued” provision quoted above.
Nevertheless, the court determined that the contract did
not expressly waive sovereign immunity.2 Alternatively,
Dillon contends that the Authority was a corporation
created by the Tribe and should be subject to suit like
any other corporate entity created by the United States.
II.
We review a district court’s grant of summary
judgment de novo. United States ex. rel. Glass v.
Medtronic, Inc., 957 F.2d 605, 607 (8th Cir. 1992). In
considering whether to grant summary judgment, a court
examines all the “pleadings, depositions, answers to
2
The July 1995 contract with HUD provided that the Authority:
[S]hall comply with all statutory, regulatory, and executive order
requirements pertaining to civil rights, equal opportunity, and
nondiscrimination, as those requirements now exist, or as they may be
enacted, promulgated, or amended from time to time. These requirements
include, but shall not be limited to, compliance with at least the following
authorities: Title VI of the Civil Rights Act . . . the Fair Housing Act . . .
section 504 of the Rehabilitation Act of 1973 . . . the Age Discrimination
Act of 1975 . . . the Americans with Disabilities Act . . . Executive Order
11063 on Equal Opportunity in Housing . . . Executive Order 11246 on
Equal Opportunity in Housing . . . Executive Order 11246 on Equal
Employment Opportunity, as amended by Executive Order 11375 . . . and
Executive Order 12892 on Affirmatively Furthering Fair Housing. An
Indian Housing Authority established pursuant to tribal law shall comply
with applicable civil rights requirements, as set forth in Title 24 of the
Code of Federal Regulations.
(J.A. at 149-50.)
4
interrogatories . . . admissions on file . . . [and]
affidavits.” Fed. R. Civ. P. 56(c). After viewing the
record in a light most favorable to the nonmoving party,
5
summary judgment is appropriate only where there is “no
genuine issue of material fact and . . . the moving party
is entitled to judgment as a matter of law.” Langley v.
Allstate Ins. Co., 995 F.2d 841, 844 (8th Cir. 1993)
(citations omitted).
In Weeks Construction, Inc. v. Oglala Sioux Housing
Authority, 797 F.2d 668, 670 (8th Cir. 1986), we stated
that “[i]t has been held that a housing authority,
established by a tribal council pursuant to its powers of
self-government, is a tribal agency.” Id. (citation
omitted). In Weeks, the housing authority was created in
a similar fashion to the Authority created here.
Therefore, we must treat the Authority as a tribal agency
rather than a separate corporate entity created by the
tribe.
Having determined that the Authority is a tribal
agency, we must decide whether it enjoys sovereign
immunity. In Santa Clara Pueblo v. Martinez, 436 U.S.
39, 58 (1978), the United States Supreme Court reaffirmed
its long-held view that, as it relates to tribes, “a
waiver of sovereign immunity cannot be implied but must
be unequivocally expressed.” Id. (internal quotation and
citation omitted). Citing this language, the district
court determined that the Authority did not unequivocally
waive its right to be sued.
Dillon argues that our court has explicitly held that
the “sue and be sued” provision quoted above
automatically constitutes a waiver of sovereign immunity.
Dillon cites Weeks for the proposition that “[a] ‘sue and
be sued’ clause such as is set forth in the tribal
6
ordinance . . . has been recognized as constituting an
express waiver of sovereign immunity.” Weeks, 797 F.2d
at 671 (citations omitted). Dillon’s argument fails,
however, because in Weeks, and the cases cited therein,
an express waiver of sovereign immunity was found in a
written contract.
The tribal resolution quoted above specifically
states that “the Authority [may] agree by contract to
waive any immunity from suit it might otherwise have.”
(J.A. at 30.) In this case, the Authority never
explicitly waived its sovereign immunity through
7
a written contract. The Authority did not have a written
contract with Dillon and could not have waived its
sovereign immunity through an implied agreement.
Dillon suggests that because the Authority entered
into an agreement with HUD and promised to abide by
various civil rights statutes, it effectively waived its
sovereign immunity. In its agreement with HUD, the
contract signed by the Authority specifically provides
that “[a]n Indian Housing Authority established pursuant
to tribal law shall comply with applicable civil rights
requirements, as set forth in Title 24 of the Code of
Federal Regulations.” (J.A. at 150.) There is no
provision in these regulations, however, mandating a
waiver of sovereign immunity when a tribal housing
authority enters into an agreement with HUD.
Because the Authority did not explicitly waive its
sovereign immunity, we lack jurisdiction to hear this
dispute.3 Therefore, as the district court correctly
pointed out, Dillon may pursue in tribal court any claims
he may have against the Authority under the Indian Civil
3
Even if we found that the Authority waived sovereign immunity, we still would
not have federal question jurisdiction to resolve this dispute. Johnson v. Prarie Island
Dakota Sioux, 21 F.3d 302, 304-05 (8th Cir. 1994) (per curiam). Dillon failed to allege
a cause of action under Title VII, 42 U.S.C. §§ 2000e(b) and 2000e-2(i), or under 42
U.S.C. §§ 1981, 1985, and 1986, see Runs After v. United States, 766 F.2d 347, 354
(8th Cir. 1985); Wardle v. Ute Indian Tribe, 623 F.2d 670, 672-73 (10th Cir. 1980).
Neither party raised this issue on appeal; and, similar to our approach in Weeks
Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668, 670 (8th Cir.
1986), we first addressed the issue of tribal sovereign immunity; see also Johnson, 21
F.3d at 305 (explaining that in Weeks our court treated “sovereign immunity and
subject matter jurisdiction as separate inquiries”).
8
Rights Act, 25 U.S.C. §§ 1301-1303, and other applicable
law.
III.
For the reasons set forth above, we affirm the
judgment of the district court.
9
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
10