SHUBERT CONST. v. SEMINOLE TRIBAL HOUSING

• Decision Date: 09 June 1980
• Docket Number: No. 79-6706-Civ-JAG.,79-6706-Civ-JAG.
• Citation: 490 F. Supp. 1008
• Court: U.S. District Court — Southern District of Florida
• Parties: SHUBERT CONSTRUCTION COMPANY, INC., Plaintiff, v. The SEMINOLE TRIBAL HOUSING AUTHORITY, the Seminole Tribe of Florida, and the United States Department of Housing and Urban Development, Defendants.

490 F. Supp. 1008

SHUBERT CONSTRUCTION COMPANY, INC., Plaintiff, v. The SEMINOLE TRIBAL HOUSING AUTHORITY, the Seminole Tribe of Florida, and the United States Department of Housing and Urban Development, Defendants.

No. 79-6706-Civ-JAG.

United States District Court, S. D. Florida, N. D.

June 9, 1980.

Joel D. Kenwood, Baskin & Sears, Palm Beach, Fla., for plaintiff.

Stephen H. Whilden, Hollywood, Fla., for Seminole Tribal Housing Authority and Seminole Tribe of Florida.

Felice Weiner, Atlanta, Ga., Kathy Olesker, Asst. U.S. Atty., Miami, Fla., for defendants.

ORDER OF DISMISSAL

GONZALEZ, District Judge.

THIS CAUSE is before the Court on the respective Motions to Dismiss of the Defendants, Seminole Tribe of Florida, and Department of Housing and Urban Development.

Plaintiff alleges that this court has jurisdiction pursuant to 25 U.S.C. § 1302, 28 U.S.C. § 1343, and 28 U.S.C. § 1346(b).

The Court finds that Counts I and II of Plaintiff's complaint shall be dismissed for lack of federal jurisdiction; and that Count III should be dismissed by reason of Plaintiff's failure to exhaust administrative remedies.

Plaintiff, Shubert Construction Company, Inc., contracted with the Seminole Tribal Housing Authority to build a 50-unit community housing project funded by the Department of Housing and Urban Development (HUD) on the Hollywood Seminole Indian Reservation. Plaintiff alleges that $117,274.88 remains due and owing under its original contract, plus an additional sum in excess of $100,000.00 for extra work performed.

Count I is a breach of contract claim asserted against the Seminole Tribal Housing Authority. Count II is an action for unjust enrichment against both the Housing Authority, and the Seminole Tribe of Florida. Count III alleges negligence on the part of HUD because of its failure to promptly approve or disapprove change orders. Plaintiff performed the requested changes but has never been compensated or reimbursed.

The Tribe has moved to dismiss the complaint based upon its sovereign immunity from suit. See Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919). Although plaintiff argues that the Tribe has waived immunity, that issue need not be determined.

Regardless of the existence or non-existence of immunity, plaintiff must first meet the initial requirement of alleging a sufficient basis for federal jurisdiction. See Enterprise Electric Co. v. Blackfeet Tribe of Indians, 353 F.Supp. 991 (D.Mont.1973).

Plaintiff's assertion of 25 U.S.C. § 1302 as grounds for federal jurisdiction is incorrect. Section 1302, the focal point of The Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1302-03, lists certain individual civil rights which are to be protected from violation by any Indian tribe exercising powers of self-government. The Act's correct application and interpretation has been a source of confusion from the very beginning.

In determining the correct application of the Act, several courts found that an allegation of section 1302 together with an allegation of 28 U.S.C. § 1343(4) was sufficient to state a basis for federal jurisdiction. Section 1343(4) provides the federal courts with original jurisdiction in cases brought pursuant to an act of Congress protecting civil rights. Therefore, these courts reasoned, § 1343 permits federal courts to hear cases involving The Indian Civil Rights Act (ICRA).

In Jacobson v. Forest County Potawatomi Community, 389 F.Supp. 994 (E.D.Wis.1974) the court recognized that the interests protected by ICRA were not as broad as those found in the United States Constitution, and, therefore, held that federal district courts had jurisdiction under 28 U.S.C. § 1343, and 25 U.S.C. § 1302 in Indian Civil Rights cases only to protect those limited rights enumerated in the Act. See also Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz. 1968).

Other courts apparently agreed with this reasoning. For example,

In our opinion, 28 U.S.C. § 1343(4) gives the district court jurisdiction to determine, in a proper case, whether an Indian Tribe has denied to one of its members any of the rights given to the members under the Indian Bill of Rights. Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698, 700 (8th Cir. 1972).

Having assumed that §§ 1343 and 1302 provide federal jurisdiction, the courts then turned their attention to such additional issues as whether the plaintiff must exhaust tribal remedies before bringing suit, see e. g. Necklace Tribal Court of Three Affiliated Tribes of Fort Berthold Reservation, 554 F.2d 845 (8th Cir. 1977); and whether plaintiff's claim fell within those rights specifically protected by the ICRA. Hickey v. Crow Creek Housing Authority, 379 F.Supp. 1002 (S.D.S.D.1974) for example, held that a basic breach of contract claim does not present the kind of constitutional deprivation addressed by the Act.

Here, as in Hickey, the plaintiff alleges that defendants' failure to pay money owed on a contract constitutes an unconstitutional deprivation of property without due process of law under the federal constitution. Were that argument to be accepted as correct every breach of contract case would involve a federal constitutional question and thereby find its way into a federal court.

The judicial consideration of these additional issues eventually proved unnecessary. In 1978 the United States Supreme Court's clarified the effect of section 1302 in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). There the Court clearly stated that the only type of action authorized by the ICRA was a writ of habeas corpus as provided in § 1303. "Creation of a federal cause of action for the enforcement of rights created in Title I, however useful it might be in securing compliance with § 1302, plainly would be at odds with the congressional goal of protecting tribal self-government." Id. 98 S.Ct. at 1680. The Court further explained that although section 1302 does establish guidelines for tribal forums to follow, it does not authorize suits to enforce those guidelines— other than by writ of habeas corpus.

Although Congress has the power to authorize civil rights actions to redress all constitutional violations, it elected instead to honor the quasi-sovereignty of the Indian nations. Because the culture and structure of the tribes differ greatly from those of state and federal governments, the tribes were deemed to be in the best position to evaluate their members' rights in accordance with tribal custom. Id. at 1684. Accordingly, the Court held that §...