R.J. Williams Co. v. Fort Belknap Housing Authority

• Citation: 719 F.2d 979
• Decision Date: 31 October 1983
• Docket Number: No. 82-3636,82-3636
• Parties: R.J. WILLIAMS COMPANY, Richard J. Williams and Fireman's Fund Insurance Company, Plaintiffs-Appellees, v. FORT BELKNAP HOUSING AUTHORITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 979

719 F.2d 979

R.J. WILLIAMS COMPANY, Richard J. Williams and Fireman's Fund Insurance Company, Plaintiffs-Appellees, v. FORT BELKNAP HOUSING AUTHORITY, Defendant-Appellant.

No. 82-3636.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 7, 1983.

Decided Oct. 31, 1983.

Bruce P. Babbitt, Ferguson & Burdell, Seattle, Wash., for plaintiffs-appellees.

Francis X. Lamebull, Lamebull Law Firm, Harlem, Mont., for defendant-appellant.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, CHOY, and NELSON, Circuit Judges.

CHOY, Circuit Judge:

The Fort Belknap Housing Authority ("Housing Authority") is an entity created by tribal law of the Fort Belknap Indian community and established in accordance with 42 U.S.C. Sec. 1437 et seq. and 24 C.F.R. pt. 805. Its purpose is to administer housing projects for the tribe. In connection with a contract dispute, a contractor sued the Housing Authority and was awarded damages in excess of $98,000. The Housing Authority now appeals, claiming the district court had no subject matter jurisdiction over the case. We find that resolution of this question involves a matter not for us to decide, and accordingly reverse and remand.

I. Statement of Facts

R.J. Williams Construction Company is a partnership of two Washington residents, Tom Williams and Richard J. Williams. Williams Brothers Building Contractors ("Williams Brothers") is a joint venture between two Montana corporations. Richard Williams serves as president of Williams Brothers.

In October 1976, Williams Brothers contracted with the Housing Authority to build 50 single-family houses. As part of the contract, Williams Brothers agreed to complete or correct deficiencies in its work or materials that appeared within one year of completion of the project.

The project was completed in early 1978. Shortly afterward, the Housing Authority presented Williams Brothers with lists detailing deficiencies it claimed Williams Brothers was obligated to correct under the contract. Williams Brothers corrected some of these deficiencies but refused to fix others that it contended were due to defective specifications, tenant abuse, or other causes that relieved it of its obligation to repair. Negotiations failed to resolve the conflict, and those alleged deficiencies remained uncorrected.

On March 24, 1980, on application of the Housing Authority, a tribal court judge issued a writ of attachment leading to the seizure of approximately $50,000 worth of equipment, materials, and supplies belonging to Richard J. Williams, R.J. Williams Co., and Williams Brothers. The seized items had been stored in a tribal warehouse and were being used to complete work on other contracts with the Housing Authority.

At the time of the attachment, the jurisdictional ordinance applicable to the tribal court read:

The Fort Belknap Community Court shall have jurisdiction of all Civil suits wherein the defendant is a member of the Fort Belknap Indian Community, and of all other Civil suits between members and non-members which are brought before the Court by stipulation of both parties.

Fort Belknap Law and Order Code ch. I, Sec. 14.1 (1970). ¹ Richard Williams and R.J. Williams Co. challenged the tribal court's jurisdiction, but the court has never ruled on the challenges.

In September 1980, appellees filed the present action in federal district court seeking return of their property and damages arising out of the alleged wrongful attachment. The appellees named the tribal court as well as the Housing Authority as a party defendant, but the tribal court was subsequently dismissed from the suit. The Housing Authority counterclaimed, alleging breach of contract.

The district court held that it had both diversity and federal question jurisdiction over the subject matter. It then turned to the merits and found that the tribal court had no jurisdiction over Richard Williams and R.J. Williams Co., and that the attachment denied appellees due process of law. The court awarded damages for conversion, which included appellees' expenses of pursuing their property, the cost of procuring substitute materials, and attorneys' fees. The award exceeded $98,000. The court also awarded the Housing Authority $5,000 on its counterclaim for breach of contract.

II. Federal Question Jurisdiction

The general rule is that a court may take jurisdiction if it must make determinations of law in order to determine the existence of a federal claim. Bell v. Hood, 327 U.S. 678, 682-85, 66 S.Ct. 773, 776-77, 90 L.Ed. 939 (1946); Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983). We note that appellees' asserted federal claims are all challenges to tribal government action, but the tribal court is not party to the suit. To reach the merits of appellees' claims, we assume without deciding that the Housing Authority, as an agency of the tribal government, can be attacked under the statutes which appellees urge are applicable. We conclude that, although the district court properly exercised jurisdiction under 28 U.S.C. Sec. 1331, appellees have stated no federal claim for which relief can be granted.

A. Constitution of the United States

The district court awarded damages to the appellees because the attachment and seizure of their property occurred "without the constitutional requirements of due process." However, Indian tribes are "separate sovereigns pre-existing the Constitution," and are thus unconstrained by constitutional limitations on federal or state authority. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 & n. 7, 98 S.Ct. 1670, 1675 & n. 7, 56 L.Ed.2d 106 (1978). Appellees' claims therefore cannot arise under the Constitution.

B. The Indian Civil Rights Act

Congress does have "plenary authority to limit, modify or eliminate the powers of local self-government which tribes otherwise possess." Santa Clara Pueblo, 436 U.S. at 56-57, 98 S.Ct. at 1675-1676. Congress has exercised that authority by enacting the Indian Civil Rights Act of 1968, 25 U.S.C. Secs. 1301-1341. Although Sec. 202(8) of the Act, 25 U.S.C. Sec. 1302(8), provides that no Indian tribe in exercising powers of self-government shall deprive any person of liberty or property without due process of law, we have recognized that the Santa Clara Pueblo holding "foreclosed any reading of the [Act] as authority for bringing civil actions in federal court to request ... forms of relief [other than habeas corpus]." Snow v. Quinault Indian Nation, 709 F.2d 1319, 1323 (9th Cir.1983), petition for cert. filed, 52 U.S.L.W. 3310 (U.S. Oct. 11, 1983) No. 83-595; accord Boe v. Fort Belknap Indian Community, 642 F.2d 276, 278-79 (9th Cir.1981); Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 477 (9th Cir.1980). Contra Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981).

C. 42 U.S.C. Sec. 1983

Appellees argue that they have stated a claim under 42 U.S.C. Sec. 1983, and therefore that the district court had jurisdiction under 28 U.S.C. Sec. 1343(3). This argument has no merit.

First, no action under 42 U.S.C. Sec. 1983 can be maintained in federal court for persons alleging deprivation of constitutional rights under color of tribal law. Indian tribes are separate and distinct sovereignties, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978); see United States v. Wheeler, 435 U.S. 313, 331, 98 S.Ct. 1079, 1090, 55 L.Ed.2d 303 (1978), and are not constrained by the provisions of the fourteenth amendment. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 533 (8th Cir.1967); see Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Martinez v. Southern Ute Tribe, 249 F.2d 915, 919 (10th Cir.1957), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958). As the purpose of 42 U.S.C. Sec. 1983 is to enforce the provisions of the fourteenth amendment, Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961); Thompson v. New York, 487 F.Supp. 212, 220 (N.D.N.Y.1979), it follows that actions taken under color of tribal law are beyond the reach of Sec. 1983, and may only be examined in federal court under the provisions of the Indian Civil Rights Act.

Appellees, however, seek to characterize the seizure as occurring under color of Montana law by pointing to a tribal ordinance which reads:

In all civil cases, the [tribal] Court shall apply any laws of the United States, any regulations of the Interior Department, any ordinance of the Community not prohibited by such Federal laws, or customs of the Fort Belknap Indian Community which might be applicable. Any matters that are not covered by the applicable ordinances or Federal laws and regulations, shall be decided by the court in accordance with the laws of the State or the customs of the Reservation in which the matter in dispute may lie.

Fort Belknap Law and Order Code ch. I, Sec. 14.5 (1970). This argument is unmeritorious. The tribe has chosen to adopt the framework of state law to cover gaps in the tribal code. In doing so, however, it has not relinquished its own sovereignty, and it has not involved the state in any way in the enforcement or interpretation of tribal law. Nelson v. Dubois, 232 N.W.2d 54, 57-58 (N.D.1975); see Wauneka v. Campbell, 22 Ariz.App. 287, 291, 526 P.2d 1085, 1089 (1974).

III. Diversity Jurisdiction

In order for a federal court to have diversity jurisdiction under 28 U.S.C. Sec. 1332, the parties must be of diverse citizenship under 28 U.S.C. Sec. 1332(a), and the courts of the state in which the federal court sits must be able to entertain the action, Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949). In addition, in cases involving Indians diversity jurisdiction is precluded when state...