The Honorable H. Franklin Waters, United States District Judge for the 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 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
2

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.
3

(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
The July 1995 contract with HUD provided that the Authority: 2

[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.)

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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. Alternatively, 2

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
5

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,
6

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
7

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
Even if we found that the Authority waived sovereign immunity, we still would 3

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

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. Therefore, as the district court correctly

3

pointed out, Dillon may pursue in tribal court any claims

he may have against the Authority under the Indian Civil
9

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.
10

A true copy.

Attest.

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