The Honorable H. Franklin Waters, United States District Judge for t he Western 1 District of Arkansas. 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 Unite d States v. * District Court for the * District of South Dakota. Yankton Sioux Tribe Housing * Authority, * * Appellee. *

Submitted: March 11, 1998 Filed: May 20, 1998

Befor e BEAM and HEANEY, Circuit Judges, and WATERS, 1 District Judge.

HEANEY, Circuit Judge.

Golman Dillon was terminated by the Yankton Siou x Housing Authority (Authority). Claiming that he wa s fired because he is white, Dillon sued under various2

civil r ights statutes in federal district court. Th e district court determined that it lacked juri sdiction due to tribal sovereign immunity and granted summ ary judgment for the Authority. We affirm.

I.
Dillon worked for the Authority as coordinator o f thei r Comp/Grant Department. He was responsible for , among other things, modernizing Indian housin g deve lopments on the Yankton Sioux Reservation. Dillo n claim s that he was terminated because he is white an d brou ght suit under 42 U.S.C. §§ 1981, 1985, 1986 an d Title V II, 42 U.S.C. §§ 2000e-2(m). Consequently, w e must determine whether the Authority’s motionto dismiss, whic h the district court converted into a summar y judg ment motion, was properly granted due to sovereig n immunity.

Dillon claims that the Yankton Sioux Tribe has waive d sovereign immunity by allowing the Authority to be sue d in its authorizing charter. Tribal Resolutio n No. 77-71, Article V(2) states:

The Committee hereby gives its irrevocabl e consent to allowing the Authority to sue and be sued in its corporate name, upon any contract , cl aimor obligation arising out of it s activities under this ordinance and hereb y authorizes the Authority to ag ree by contract to waive any immunity from suit which it migh t other wise have, but the Tribe shall not b e liabl e for the debts or obligations of th e Authority.3

(J.A. a t 30.) Dillon argues that because the Authorit y receives federal financial assistance from th e Department of Housing and Urban Development (HUD), and thereby must agree to comply with federal civil rights laws, it ha s waived sovereign immunity. Dillon suggests t hat it would be in congruous for the Authority to agree to follo w feder al law, yet shield itself from suit in federa l court. The district court agreed that a contract wit h HUD, under which Dillon receives his salary, could be an effectiveThe July 1995 contract with HUD provided that the Authority: 2 [S]hallcomply with all statutory, regulatory, and executive orde r req uirements pertaining to civil rights, equal opportunity, an d nondi scrimination, as those requirements now exist, or as they may b e enacted, promulgated, or amended from time to time. Th ese requirements include, but shall not be limited to, co mpliance with at least the following authorities: Title VI of the Civil Rights Act . . . the Fair Housing Act . . . section 504 of the Rehabilitati on Act of 1973 . . . the Age Discrimination Act of 1975 . . . the Americans wit h Disabilities Act . . . Executive Order 11063 on Equal Opportunity in Housing . . . Executive Order 11246 on Equal O pportunity in Housing . . . Executive Order 11246 on Equa l Employment Opportunity, as amended by Executive Order 11375 . . . and Executive Order 12892 on Affirmatively Furthering Fair Housing. A n Indian Housing Authority established pursuant to tribal law shall comply with ap plicable civil rights requirements, as set forth in Title 24 of th e Code of Federal Regulations. (J.A. at 149-50.)
4 waiver of sovereign immunity for purposes of interpreting the “sue and be sued” provision quoted above

. Neverthele ss, the court determined that the contract did not expressly waive sovereign immunity. Alternatively, 2 Dill on contends that the Authority was a corporatio n creat ed by the Tribe and should be subject to suit lik e any other corporate entity created by the United States.

II.

We review a district court’s grant of summar y ju dgment de novo. United States ex. rel. Glass v

. Medtr onic, Inc. , 957 F.2d 605, 607 (8th Cir. 1992). I n cons idering whether to grant summary judgment, a cour t exam ines all the “pleadings, depositions, answers t o5

interrogatories . . . admissions on file . . . [and ] affid avits.” Fed. R. Civ. P. 56(c). After viewing th e record in a light most favorable to the nonmoving party,6

summary judgment is appropriate only where there is “n o genuine issue of material fact and . . . the moving party is entitle d to judgment as a matter of law.” Langley v. Alls tate Ins. Co. , 995 F.2d 841, 844 (8th Cir. 1993 ) (citations omitted).

In Weeks Construction, Inc. v. Oglala Sioux Housin g Authori ty , 797 F.2d 668, 670 (8th Cir. 1986), we state d that “[i]t has been held that a housing authority , established by a tribal council pursuant to i ts powers of self -government, is a tribal agency.” Id. (citatio n omitted). In Weeks , the housing authority wa s created in
a si milar fashion to the Authority created here

. Therefore, we must treat the Authority as a t ribal agency rath er than a separate corporate entity created by th e tribe.
Having determined that the Authority is a triba l agen cy, we must decide whether it enjoys sovereig n immuni ty. In Santa Clara Pueblo v. Martinez , 436 U.S

. 39, 58 (1978), the United States Supreme Cour t reaffirmed its long-held view that, as it relates to tribes, “ a waiver of sovereign immunity cannot be implied but mus t be unequivocally expressed.” Id. (internal q uotation and cita tion omitted). Citing this language, the distric t court determined that the Authority did not u nequivocally waive its right to be sued.

Dillon argues that our court has explicitly held tha t the “sue and be sued” provision quoted abov e automatically constitutes a waiver of soverei gn immunity. Dillon cites Weeks for the proposition that “ [a] ‘sue and be sued’ clause such as is set forth in the triba l7

ordina nce . . . has been recognized as constituting a n express waiver of sovereign immunity.” Weeks , 797 F.2 d at 6 71 (citations omitted). Dillon’s argument fails , however, because in Weeks , and the cases cited therein , an exp ress waiver of sovereign immunity was found in a written contract.

The tribal resolution quoted above specificall y states that “the Authority [may] agree by contract t o waiv e any immunity from suit it might otherwise have. ” (J.A. at 30.) In this case, the Authority neve r explicitly waived its sovereign immunity throughEven if we found that the Authority waived sovereign immunity, we still would 3 not have federal que stion 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 o f action under Title VII, 42 U.S.C. §§ 2000e(b) and 2000e-2(i), or under 42 U.S.C. §§ 198 1, 1985, and 1986, see Runs After v. United States , 766 F.2d 347, 354 (8thCir. 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 Week s Construct ion, Inc. v. Oglala Sioux Housing Authority , 797 F.2d 668, 670 (8th Cir

. 1986), we first add

ressed the issue of tribal sovereign immunity; see also Johnson , 21 F.3d at 305 (explaining that in Weeks our court treated “sovereign immunity an d subject matter jurisdiction as separate inquiries”).
8 a written contract. The Authority did not ha ve a written contract with Dillon and could not have waived it s sovereign immunity through an implied agreement.

Di llon suggests that because the Authority entere d int o an agreement with HUD and promised to abide b y various ci vil rights statutes, it effectively waived its
sover eign immunity. In its agreement with HUD, th e contract signed by the Authority specifically provide s that “[a]n Indian Housing Authority established pursuant to tribal law shall comply with applicable civil right s requi rements, as set forth in Title 24 of the Code o f Fe deral Regulations.” (J.A. at 150.) There is n o prov ision in these regulations, however, mandating a waiv er of sovereign immunity when a tribal housin g authority enters into an agreement with HUD.

Because the Authority did not explicitly waive it s sove reign immunity, we lack jurisdiction to hear thi s dispu te. Therefore, as the district court correctl y

3 pointed out, Dillon may pursue in tribal cour t any claims he may hav e against the Authority under the Indian Civil9

Rights Act , 25 U.S.C. §§ 1301-1303, and other applicable law.

III.

For th e reasons set forth above, we affirm th e judgment of the district court.10

A true copy.

Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
.