* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case therefore is ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 25 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAW NATION, a federally recognized Indian Tribe, Plaintiff - Appellant, v. MARYLN SPRINGER; MARCIE MEYER; JULIA LOGSDON; and WANDA STONE, Defendants - Appellees. No. 02-6169

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-02-0332-R)

Submitted on the briefs: * Michael Minnis and David McCullough, Michael Minnis & Associates, P.C., Oklahoma City, Oklahoma for Plaintiff-Appellant. Dena L. Silliman, Attorney at Law, Denver, Colorado for Defendants-Appellees.

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.- 2 -

EBEL , Circuit Judge.

Plaintiff-Appellant, Kaw Nation, appeals the dismis sal of its complaint from federal district court for lack of subject matter jurisdiction. The tribe attempted to bring suit in district court against i ts former officials and other individuals under a federal criminal statute, 18 U. S.C. § 1163, but failed to establish that a private cause of action existed un der the statute. On appeal, the tribe reasserts its argument for a private civil ca use of action in the criminal statute, and proffers for the first time an alternate basis of jurisdiction in the Native American Housing Assistance and Self-Determi nation Act (“NAHASDA”), which appropriates money to Indian tri bes for affordable housing. NAHASDA, codified at25 U.S.C. § 4101 et seq. The former officials of the tribe defending suit assert that they should be entitled to qualified immunity because they acted on behalf of the tribe over the course of events at issue. We AFFIRM the district court’s dismissal of the tri be’s suit for lack of subject matter jurisdiction, and do not reach the r emaining issues raised. We do not consider whether the NAHASDA might provide an a lternate basis of jurisdiction because the tribe failed to raise the argument below. See Walker v.- 3 -

Mather , 959 F.2d 894, 896 (10th Cir. 1992) (holding that this court will not consider an issue not properly raised below). We d o not consider the merits of the former tribal officials’ defense of qualified i mmunity because we affirm the district court’s dismissal of the tribe’s suit on t he ground that § 1163 does not provide for a private cause of action, and the defe nse of qualified immunity is therefore moot. See Griffin v. Davies , 929 F.2d 550, 554 (10th Cir. 1991) (holding that this court will not “undertake to dec ide issues that do not affect the outcome of a dispute”).

BACKGROUND Because we dismiss the tribe’s suit for lack of sub ject matter jurisdiction, we describe the facts of its claim only briefly. Under the Native American Housing Assistance and Se lf-Determination Act (“NAHASDA”), 25 U.S.C. § 4101 et seq., Congress app ropriated monies to provide affordable housing in Indian areas for low- income Indian families. Block grants under the Act were to be controlled by the S ecretary of Housing and Urban Development (HUD), see, e.g. , 25 U.S.C. § 4111(a), and paid directly to a recipient for the tribe, see, e.g. , id .; 24 C.F.R. § 1000.56. During the events relevant to this case, the Kaw Nation’s tribally de signated housing entity (TDHE)1 The tribe does not cite the government source fro m which it draws these

figures. Defendants, however, do not contest the a ccuracy of the numbers. - 4 - eligible to disburse funds under the Act was the Ho using Authority of the Kaw Tribe of Indians of Oklahoma (the Housing Authority ). Defendant Maryln Springer was Executive Director of the Housing Authority; Defendants Marcie Meyer and Julia Logsdo n were recipients of housing funds through the Housing Authority. The f ormer Chairman of the Kaw Nation tribe, defendant Wanda Stone, was also alleg edly implicated in the misuse of NAHASDA federal housing monies. In its complaint, the tribe alleged that these indi viduals violated clear rules regarding the use of the federal housing monies. U nder NAHASDA, HUD established maximum spending limits for dwelling co nstruction and equipment costs for each Indian area. See 24 C.F.R. § 1000.156 (requiring moderate design for affordable housing, considering factors such as size, cost and amenities). For the Kaw housing area, the HUD-established maximum amount of federal money that could be expended on a three-bedroom house foran eligible low-income Indian family was $74,908. 1 According to the tribe’s complaint, Executive Director Springer authorized the expenditure of $10 8,000 in federal monies to build a three-bedroom house for her daughter Marcie Meyer. Meyer allegedly knowingly received and retained the benefit of thes e misapplied federal housing- 5 -

funds. The complaint also alleged that Springer au thorized the expenditure of $121,000 in federal funds to build a three-bedroom house for her niece Julia Logsdon. Similarly, Logsdon allegedly knowingly re ceived and retained the benefit of these misapplied federal housing funds. The tribe’s complaint additionally alleged that Spr inger violated HUD maximums on the amount of money that could be used to build a third house, but the complaint did not name the recipients of those monies as defendants. The HUD cap for a four-bedroom house was $85,846. The complaint alleged that Springer authorized $131,000 to build a four-bedroo m house for Chris and Debbie Vap. The tribe’s complaint further alleged that Springermisused federal housing funds in other ways. NAHASDA funds were only to be expended on affordable housing or on the reasonable administrative and pla nning expenses of the tribe related to affordable housing projects. 25 U.S.C. § 4111 (g)-(h). On or about February 15, 2002, Springer allegedly used a Housin g Authority credit card to purchase airline tickets costing $937 for herself a nd her daughter Brandy Springer to attend a wedding in Seattle, Washington that was unrelated to official business. The tribe asserted that additional investigation of Springer’s misuse of small amounts would uncover improper expenditures totalin g more than $10,000.- 6 -

Finally, the tribe alleged that Springer and Chairm an Stone misused $10,000 in federal monies to hire Jess Green, an attorney and agent for Ram Jack of Oklahoma, Inc., a vendor to the Housing Authority, for the purpose of “suing the Kaw Nation to keep Defendant Springer employed and to harass . . . Defendant Stone’s political opposition.” Chairman Stone, however, characterized her action in signing this check for Springer’s exp enditure as entirely within her official capacity as an alternate signer of checks for the Housing Authority.

Procedural History The district court below dismissed the tribe’s suitfor lack of subject matter jurisdiction. In its complaint, the tribe attempte d to invoke federal jurisdiction under 28 U.S.C. §§ 1331 and 1362. Section 1331 grants federal courts original jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States.” Section 1362 grants federal di strict courts jurisdiction over “all civil actions, brought by any Indian tribe . . ., wherein the matter in controversy arises under the Constitution, laws, ortreaties of the United States.” Both statutes are thus restricted to conveying juri sdiction over civil actions. The tribe, however, attempted to bring its civil cl aims pursuant to a criminal statute, 18 U.S.C. § 1163. Under 18 U.S.C . § 1163, it is a violation of federal law to “embezzle[], steal[], knowingly conv ert[] to his use or the use of2 If the value of the property misused was less tha n $1,000, the penalty is a

fine, imprisonment for not more than one year, or b oth. 18 U.S.C. § 1163. - 7 - another, willfully misappl[y], or willfully permit[ ] to be misapplied, any of the moneys, funds, credits, goods, assets, or other pro perty belonging to any Indian tribal organization or intrusted to the custody or care of any officer, employee, or agent of an Indian tribal organization.” The penal ty under 18 U.S.C. § 1163 is a fine, imprisonment for a term not more than five ye ars, or both. 2 Id. In reaching its decision, the district court found no private c ivil right of action in this criminal

statute. The district court refused to follow the case of Ch eyenne-Arapahoe Tribes of Oklahoma v. Beard , 554 F. Supp. 1, 4 (W.D. Okla. 1980), in which the Western District of Oklahoma had held that 18 U.S.C. § 1163 could confer a private right of action for damages upon an Indian tribe. Cheyen ne-Arapahoe had been decided on the basis of the Supreme Court’s 1975 de cision in Cort v. Ash , 422 U.S. 66, 79-80 (1975). But Cort ’s original multiple-factor test for the presence o f a private right of action has since been consolidat ed into a single inquiry: whether Congress, expressly or by implication, intended to create a private right of action for civil parties in the statute. Schmeling v. Nor dam , 97 F.3d 1336, 1343-44 (10th Cir. 1996); Transamerica Mortgage Advisors, I nc. v. Lewis , 444 U.S. 11, 15-16 (1979); see also Sonnenfeld v. City and County of Denver , 100 F.3d 744,- 8 -

747 (10th Cir. 1996), cert. denied , 520 U.S. 1228 (1997) (“Cort's four factors have been effectively condensed into one--whether C ongress, expressly or by implication, intended to create a private cause of action.”) (citations omitted). Applying this modern test, the district court here found that, although the language and legislative history of § 1163 showed t hat Congress intended generally to protect Indian tribal organizations th rough its enactment, the statute did not contain a private civil right of action bec ause there is no indication that Congress intended to provide the tribes with such an enforcement mechanism. For this analysis, the district court relied on the decision in Chilkat Indian Village v. Johnson , 643 F. Supp. 535 (D. Alaska 1986), aff’d , 870 F.2d 1469 (9th Cir. 1989). As the district court here observed, Chilkatexplained that “[n]othing in the language or structure of § 1163 suggests that C ongress intended to create anything more than criminal liability.” 643 F. Sup p. at 536. The statute’s legislative history was instead “quite brief, and s tates that its purpose was ‘to provide a [federal] criminal penalty’ for theft or conversion of Indian property, owing to difficulties that had been encountered in bringing criminal prosecutions for such offenses in tribal courts.” (Slip op. at 4 (citing Chilkat , 643 F. Supp. at 536).) Accordingly, the district court concluded that it h ad no subject matter jurisdiction over the suit brought by the Kaw Natio n, and it dismissed the case.- 9 -

(Id . at 4-5.) We affirm the district’s court’s decisi on.

DISCUSSION We review questions of law de novo . Elder v. Holloway , 510 U.S. 510, 516 (1994); Dang v. UNUM Life Ins. Co. of Am. , 175 F.3d 1186, 1189 (10th Cir. 1999). We agree that no private right of action for civil parties exists under 18 U.S.C. § 1163. In reaching this conclusion, we fin d the Ninth Circuit’s reasoning in rejecting a similar attempt to bring a civil cla im under 18 U.S.C. § 1163 to be persuasive. In Chilkat Indian Village v. Johnson , 870 F.2d 1469 (9th Cir. 1989), the defendants removed from an Indian village carve d wooden posts and a wooden partition described as “the finest example o f Native art, either Tlingit or Tsimshian, in Alaska.” Id. at 1471 (citation omitted). The State of Alaska b egan a criminal investigation, located the artifacts in a warehouse in Seattle, and took custody of them. Id. The village filed suit, seeking return of the art ifacts as well as monetary damages for their removal under § 1163. Id. The Alaskan federal district court found that the tribe had no private right of action under the criminal statute and dismissed for lack of federal subject m atter jurisdiction. Id. The Ninth Circuit affirmed, agreeing that § 1163 pr ovided no private right of action. Id. at 1472. Quoting the Supreme Court, the Ninth Cir cuit emphasized3 The full text of the appellate court’s analysis o f § 1163’s legislative

history is as follows: The legislative history suggests that Congress was wholly concerned with criminal, rather than civil, objectives. The Senate Report accompanying section 1163 consists primarily of a l etter from Assistant Secretary of the Interior Andaahl, who de scribed problems attending the expansion of fiduciary responsibiliti es of tribal officials: “[I]n most instances the creation of fiduciary posi tions has not been paralleled by corresponding safeguards in the law a nd order codes under which the tribes operate. Even in those inst ances where criminal sanctions are provided in the tribal codes , the tribal members have been extremely reluctant to bring acti ons in the tribal courts against apparently faithless tribal official s. . . . In these circumstances, it is important that adequtae [sic] penal safeguards be established to protect the tribal members from acti ons of dishonest or corrupt tribal officials and other types of peculat ion.” (continued...) - 10 - that the “central inquiry remain[ed] whether Congre ss intended to create, either expressly or by implication, a private cause of act ion.” Id. (quoting Touche Ross & Co. v. Redington , 442 U.S. 560, 575 (1979)). Turning first to the statute’s language and structure, the appellate court found i t devoid of inference that Congress intended to create a private right of acti on. Id. (“Nothing in the language or statutory structure of § 1163 gives ris e to an inference that Congress intended to create a private right of action.”). An analysis of the brief history of the statute also revealed no suggestion that Congre ss intended a private right of action. 3 The decision examined a letter from an Assistant Secretary of the3 (...continued)

Sen. Rep. No. 2723 (1956), reprinted at1956 U.S. Code Cong. & Admin. News 3841, 3842. In light of these difficul ties in “obtaining the prosecution of persons who misused tribal prope rty [,]” the Committee recommended passage. Id. The clear congressional emphasis seems to have been upon replacing a defect ive tribal criminal penalty with an effective federal one; a c ivil remedy cannot be fit easily into the picture. Finally, the same legislative history recites that section 1163 is modeled after 18 U.S.C. §§ 641, 656 and 660. Id. As the district court noted, Chilkat , 643 F. Supp. at 536-37, none of those sections has been held to give rise to a private right of ac tion. In the absence, then, of any basis for inferring an intent on the p art of Congress to create a private remedy, we are not free to fashion one. See Thompson v. Thompson , 484 U.S. 174, 108 S. Ct. 513 at 520 (1988); Touche Ross , 442 U.S. at 576, 99 S. Ct. at 2489. We therefore affirm the district court's dismissal of the Villag e's section 1163 claim. Chilkat , 870 F.2d at 1472. - 11 - Interior, which described the need for the law sole ly in terms of providing “penal safeguards,” as opposed to a civil remedy, and note d that § 1163 was modeled after other criminal statutes (18 U.S.C. §§ 641, 65 6, and 660), none of which have been found to give rise to private civil rights of action. Id. The Ninth Circuit thus concluded that, “[i]n the absence . . . of any basis for inferring an intent on the part of Congress to create a private remedy, we are not free to fashion one.” Id. (citing Thompson v. Thompson , 484 U.S. 174, 108 S. Ct. 513, 520; Touche
Ross , 442 U.S. at 576).- 12 -

On appeal, the tribe, nevertheless, makes three arg uments that it should have a private right of action under § 1163 despite the Ninth Circuit’s analysis. None of the tribe’s arguments have merit. First, the tribe contends that Chilkatshould be distinguished on its facts because that decision concerned a suit against indi viduals who had removed artifacts from a tribe’s control, rather than offic ials who had misused funds entrusted to a tribe. We reject this argument beca use this distinction does not affect the legal reasoning of Chilkat

. Second, the tribe argues that the Ninth Circuit in Chilkatgave insufficient weight to language in the Supreme Court case of Tho mpson v. Thompson , 484 U.S. 174 (1988), which acknowledged that a private right of action could be inferred from congressional language, as well as explicitly stated. The sentence the tribe refers to in Thompsonwas “Our focus on congressional intent does not mean that we require evidence that Members of Congr ess, in enacting the statute, actually had in mind the creation of a private righ t of action.” 484 U.S. at 179. The rest of the paragraph in Thompson , however, puts the sentence in context. The ThompsonCourt concluded that “[t]he intent of Congress rem ains the ultimate issue, . . . and ‘unless this congression al intent can be inferred from the language of the statute, the statutory structure, o r some other source, the essential predicate for implication of a private remedy simpl y does not exist.’” Thompson ,4 Presumably the tribe may have state or tribal rem edies available against

these defendants. - 13 - 484 U.S. at 179 (quoting Northwest Airlines, Inc. v . Transport Workers , 451 U.S. 77, 94 (1981)). The Chilkatcourt then correctly focused on whether the langua ge or history of § 1163 explicitly or implicitly demon strated that Congress intended to create a private right of action. It properly c oncluded that they did not. Third, the tribe makes a policy argument that it sh ould not be at the mercy of the U.S. Attorney’s Office to prosecute cases of criminal wrongdoing, but cites no new law or legislative history to suggest that C ongress has recognized, or sought to remedy, reliance on the services of the U .S. Attorney’s Office as a problem in the implementation of § 1163. Whatever the merits may be of creating a mechanism for tribes to enforce laws against the misuse of federal funds, § 1163 does not provide such a federal mechanism and we ar e not free to rewrite the statute to include one. 4 Accordingly, we find the Ninth Circuit’s analysis o f the question in Chilkat to be persuasive, and we AFFIRM the district court’ s dismissal of the Kaw Nation’s case for lack of subject matter jurisdicti on.- 14 - CONCLUSION For the reasons stated above, we find no private ci vil cause of action in 18 U.S.C. § 1163. We AFFIRM the dismissal of the Kaw Nation’s suit under the statute for lack of subject matter jurisdiction.