Ninigret Develop. v. Narragansett Indian Housing

Citation32 F.Supp.2d 497
Decision Date07 January 1999
Docket NumberC.A. No. 98-106L.
PartiesNINIGRET DEVELOPMENT CORP., Plaintiff, v. NARRAGANSETT INDIAN WETUOMUCK HOUSING AUTHORITY; and Building Teams Development, Inc., Defendants.
CourtRhode Island Supreme Court

Michael L. Schein, Providence, RI, for plaintiff.

John F. Killoy, Wakefield, RI, for defendants.

DECISION AND ORDER

LAGUEUX, Chief Judge.

Ninigret Development Corporation ("plaintiff") is a Rhode Island corporation in the construction business. It has filed a ninecount Complaint against the Narragansett Indian Wetuomuck Housing Authority ("NIWHA"), an agency of the Narragansett Indian Tribe, and Building Development Teams, Inc. after a protracted dispute over the construction of three projects — the Narragansett Indian Wetuomuck Community Village, the Home Improvement Program and the Four Winds Community Center. In brief, plaintiff alleges that NIWHA hired it to build on Tribe-owned land outside the Tribe's reservation. Then, it ordered plaintiff to stop construction, refused to make further payments, and used the Tribal Council, the governing body of the Tribe, to stonewall the resolution of plaintiff's claims.

NIWHA, an agency of the Narragansett Indian Tribe, a federally recognized sovereign nation, has moved to dismiss the Complaint. Building Development Teams, a Connecticut corporation hired as construction manager, never filed an answer, and it was defaulted on July 6, 1998.

An Indian tribe is not a normal litigant. As a sovereign that predates the United States, the tribe must receive comity or respect similar to that enjoyed by a foreign nation. The Narragansett Tribe has the power to design its own system for resolving disputes, and it enjoys sovereign immunity except where that immunity is waived. NIWHA moves to dismiss the Complaint based on several arguments, including lack of jurisdiction and the existence of an arbitration and forum selection clause. Those arguments defeat seven of plaintiff's claims, and the remaining two are suited for resolution in state, not federal, court. If the Tribe has been "arbitrary and self-serving" as plaintiff alleges, then this case may caution others against relying on NIWHA or the Tribal Council in the future. However, the Tribe's sovereignty — whether used fairly or not — precludes this Court from intervening.

As discussed below, NIWHA's motion to dismiss is granted as to all counts. Seven counts are within the exclusive jurisdiction of the Narragansett Tribal Council. Two should be heard, if at all, in state court.

I. Facts

NIWHA was established in October 1985 by the Narragansett Tribal Council, and the federal government recognizes it as an "Indian Housing Authority." By creating the authority, the Tribe made itself eligible for federal housing money in the same fashion as state or local governments. The Tribal Council's ordinance creating NIWHA included a paragraph that gave the Authority the power to sue or be sued:

The Council hereby gives its irrevocable consent to allowing the Authority to sue or be sued in its corporate name, upon any contract, claim or obligation arising gout (sic) of its activities under this ordinance and hereby authorities (sic) the Authority to decree 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.

HA — 195, An Ordinance To Establish The Narragansett Indian Wetuomuck Housing Authority, at Article V, ¶ 2.

NIWHA undertook three projects that are at issue in this case: the Narragansett Indian Wetuomuck Community Village, the Home Improvement Program and the Four Winds Community Center.

A. The Narragansett Tribe's Justice System

The Narragansett Indian Tribe does not have a standing court system patterned on the federal system such as those created by larger or wealthier tribes. The Mashantucket Pequot Tribe in Connecticut employs full-time judges, and tribes in the West are sophisticated enough to even have joint appellate courts such as the Northern Plains Intertribal Court of Appeals, see Strate v. A-1 Contractors, 520 U.S. 438, 444, 117 S.Ct. 1404, 1405, 137 L.Ed.2d 661 (1997). It is plaintiff's uncontested assertion that the Narragansett Tribe has no permanent Tribal Court; rather the Tribal Council sits as the Tribal Court when necessary. Therefore, for all intents and purposes, the membership of the Council and Court is identical.

B. The Narragansett Indian Wetuomuck Community Village

In March 1996, NIWHA requested bids from contractors to build modular homes on Tribe-owned property in Charlestown, Rhode Island. This land is privately held and is not part of the Narragansett settlement lands (reservation) or Indian Country. See Narragansett Indian Tribe v. Narragansett Electric Co., 89 F.3d 908, 921-22 (1st Cir.1996).

In May 1996, plaintiff, Building Team Development, and NIWHA entered into a contract for site work and the erection of 35 homes (the "Village Contract"). Building Team Development was to be the construction manager, and plaintiff was to be the main subcontractor. The Narragansett Indian Wetuomuck Community Village (the "Village project") was to be funded by federal money, drawn from the United States Department of Housing and Urban Development, the Indian Health Service and the Bureau of Indian Affairs.

The Village Contract included an arbitration and forum selection clause in Article 14, which provided in relevant part:

§ 14.1 All claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof, shall be first presented to the Tribal Council for resolution and in the event of non-resolution, then to the Tribal Court, which will appoint an Arbitration Board.

§ 14.3 The award rendered by the Council or Arbitration Board appointed by the Tribal Court shall be final. Upon exhaustion of final remedy in Tribal Court leading to non-resolution and as a civil option, the Parties may, with written agreement from both, institute a Civil Action in Federal District Court.

The parties signed that contract on May 22, 1996.

Plaintiff received $109,000 from NIWHA as a mobilization fee, and it worked on the site through the summer of 1996. About June 11, 1996, the parties began to disagree. The exact course of events is in dispute, but conflicts arose over pricing, the scope of the contract, and the technical requirements of the construction specifications. Plaintiff received additional payments of $78,213.40 and $44,294.40, but the project ground to a halt by September 1996. Plaintiff submitted further claims to the Tribal Council but it has failed to resolve the matter. Frustrated by these events, plaintiff has sought relief in this Court.

Plaintiff's allegations in seven counts relate to the Village project. It alleges breach of contract against both defendants (Counts I and II); fraud against NIWHA (Counts III and IV); breach of the implied covenant of good faith and fair dealing against both defendants (Count V); conspiracy against both defendants (Count VI); and conversion against NIWHA (Count VII).

C. The Home Improvement Project

The Home Improvement Project (the "HIP project") was a Bureau of Indian Affairs program that provided funds for the renovation of homes of tribe members. In April 1997, plaintiff was the low bidder on a bid request by NIWHA on the HIP project. Plaintiff never received a contract and never began work on the project. Plaintiff alleges that it was "rightfully" awarded the HIP project and suffered damages because it was not allowed to proceed with the work.

Plaintiff alleges that NIWHA was guilty of fraud in this matter (Count VIII).

D. The Four Winds Community Center

In November 1996, NIWHA wanted to build a community center. Plaintiff alleges that it entered into a written contract with NIWHA to construct the Four Winds Community Center. Plaintiff has not provided a copy of that contract, although it attached to the Complaint a November 22, 1996 letter from Tamara Calhoun, Executive Director of NIWHA, that reads:

The Narragansett Indian Wetuomuck Housing Authority intends to award Ninigret Development Corporation a Contract for the completion of the Four Winds Community Center, located on Rte 2 in Charlestion (sic), Rhode Island.

The Scope of Work shall include Site, General Construction, Structural, Mechanical, Plumbing, Electrical, Heating Ventilation and Air Conditioning, as described and authorized by the Narragansett Indian Wetuomuck Housing Authority, and their Architect's and Engineer's Construction Documents.

An initial payment of Thirty Five Thousand Dollars ($35,000) will be forwarded to Ninigret Development Corporation for mobilization of equipment and manpower to secure the Site, to create a safe and orderly use of the Site by the Owner. The initial payment shall be applied to the first Requisition of Payment as a credit to the Owner once the entire project is defined in detail.

NIWHA paid plaintiff the $35,000 mentioned in the letter. Then, plaintiff alleges, without specifies, that NIWHA violated the contract by ordering plaintiff to stop work.

Plaintiff makes a claim for breach of contract against NIWHA on these allegations (Count IX).

II. Standard for a Motion to Dismiss

NIWHA moved to dismiss under Fed.R.Civ.P. 12(b)(1). However, its arguments on Counts I to VII include the claim that a forum selection clause is applicable, and that is a claim founded on Rule 12(b)(6). See Lambert v. Kysar, 983 F.2d 1110, 1112 n. 1 (1st Cir.1993). Although defendant invoked only Rule 12(b)(1) in its papers, this Court is not bound by the label employed. See id. The Court will consider the motion to dismiss as invoking Rule 12(b)(6) as well as 12(b)(1). When faced with motions to dismiss under both 12(b)(1) and 12(b)(6), a district court, absent good reason to do otherwise, should ordinarily decide the 12(...

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2 cases
  • Ninigret Dev. v. Narragansett Indian Wetuomuck Housing Auth.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 8, 2000
    ... ... See Iowa Mut., 480 U.S. at 18 (noting that jurisdiction over such cases "presumptively lies in the tribal courts"). But where, as here, a dispute arises out of activities conducted elsewhere -- the Authority undertook to develop the Village project on land purchased by the Tribe but situated outside the reservation, see Ninigret, 32 F. Supp. 2d at 499 -- an inquiring court must make a particularized examination of the facts and circumstances attendant to the dispute in order to determine whether comity suggests a need for ... ...
  • Barker-Hatch v. Viejas Group Baron Long Capitan
    • United States
    • U.S. District Court — Southern District of California
    • February 8, 2000
    ... ... Defendant argues that, as a federally-recognized Indian tribe, it is immune from suit under the doctrine of ... v. Oglala Sioux Housing Auth., 797 F.2d 668, 673 n. 5 (8th Cir.1986) (same); ... See e.g. Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing ... ...

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