Duke v. Absentee Shawnee Tribe of Oklahoma Hous. Auth., 199 F.3d 1123 (10th Cir. 1999). · Go Syfert
Duke v. Absentee Shawnee Tribe of Oklahoma Hous. Auth., 199 F.3d 1123 (10th Cir. 1999). Cases Citing This Book View Copy Cite
“he mere organization 23 of such an entity under state law does not preclude its characterization as a tribal 24 organization as well.”
30 citation events (26 in the last 25 years) across 10 distinct courts.
Strongest positive: Manzano v. Southern Indian Health Council, Inc. (casd, 2021-07-07)
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Manzano v. Southern Indian Health Council, Inc.
S.D. Cal. · 2021 · quote attribution · 1 verbatim quote · confidence high
he mere organization 23 of such an entity under state law does not preclude its characterization as a tribal 24 organization as well.
discussed Cited as authority (verbatim quote) Vicky Hagen v. Sisseton-Wahpeton
8th Cir. · 2000 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
housing authority's creation under state statute did not preclude characterization as a tribal organization
discussed Cited as authority (rule) Jim v. Shiprock Associated Schools
10th Cir. · 2020 · confidence medium
Auth., 199 F.3d 1123, 1125 (10th Cir. 1999) (quoting Dille, 801 F.2d at 375 ). 2 The Navajo Nation’s creation and control of the corporation In this context, we have not said how we’d decide whether to characterize a corporation as an Indian tribe.
discussed Cited as authority (rule) Frederick v. Hillyer
D.D.C. · 2015 · confidence medium
Housing Auth., 199 F.3d 1123, 1123 (10th Cir.1999) (affirming dismissal of federal claims for lack of jurisdiction and subsequent dismissal of state claims under § 1367(c)); Baltin v. Alaron Trading Corp., 128 F.3d 1466 , 1473 n.18 (11th Cir.1997) ("Because the district court did not have subject matter jurisdiction over the federal claim, we also hold that the district court properly declined to exercise supplemental jurisdiction over this state law claim [under] 28 U.S.C. § 1367 (c)(3).”); Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir.1997) (same); Logan v. …
discussed Cited as authority (rule) Dye v. Choctaw Casino of Pocola (2×)
Okla. · 2009 · confidence medium
Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir.1999), cert denied, 529 U.S. 1134, 120 S.Ct. 2014 , 146 L.Ed.2d 963 (2000). .
discussed Cited as authority (rule) Griffith v. Choctaw Casino of Pocola (2×)
Okla. · 2009 · confidence medium
They are a creation of federal law, and IGRA prescribes `the permissible scope of a Tribal-State compact.'" [5] Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir.1999), cert denied 529 U.S. 1134 , 120 S.Ct. 2014 , 146 L.Ed.2d 963 (2000). [6] As the majority notes, the compact is a state statute.
discussed Cited as authority (rule) James R. Smith v. Salish Kootenai College Court of Appeals of the Confederated Salish and Kootenai Tribes of the Flathead Reservation (2×)
9th Cir. · 2006 · confidence medium
Auth., 199 F.3d 1123, 1125, 1126 (10th Cir.1999) (housing authority was “an enterprise designed to further the economic interests of the Absentee Shawnee tribe, and the tribe has exclusive control over the appointment and removal of its decisionmakers”; holding that the housing authority was exempt under Title VII); Dillon v. Yankton Sioux Tribe Hous.
discussed Cited as authority (rule) Smith v. Salish Kootenai College
9th Cir. · 2006 · confidence medium
Auth., 199 F.3d 1123, 1125, 1126 (10th Cir. 1999) (housing authority was “an enterprise designed to further the economic interests of the Absentee Shawnee tribe, and the tribe has exclusive control over the appointment and removal of its decisionmakers”; holding that the housing authority was exempt under Title VII); Dillon v. Yankton Sioux Tribe Hous.
examined Cited as authority (rule) Johnson v. Choctaw Management/Services Enterprise (3×) also: Cited "see", Cited "see, e.g."
10th Cir. · 2005 · confidence medium
Auth., 199 F.3d 1123, 1124 (10th Cir.1999).
cited Cited as authority (rule) Lewis v. Four B Corp.
10th Cir. · 2005 · confidence medium
Housing Auth., 199 F.3d 1123, 1124-26 (10th Cir. 1999).
cited Cited as authority (rule) Curtis v. Sandia Casino
10th Cir. · 2003 · confidence medium
Auth., 199 F.3d 1123, 1126 (10th Cir.1999), cert, denied, 529 U.S. 1134 , 120 S.Ct. 2014 , 146 L.Ed.2d 963 (2000).
discussed Cited as authority (rule) Falvo v. Owasso Independent School District No. 1-011
10th Cir. · 2000 · confidence medium
Auth., 199 F.3d 1123, 1126 (10th Cir.1999) (“Federal question jurisdiction exists when a cause of action ‘aris[es] under the Constitution, laws, or treaties of the United States.’ ” (quoting 28 U.S.C. § 1331 )), cert. denied, — U.S. -, 120 S.Ct. 2014 , 146 L.Ed.2d 963 (2000); see also Ackerley Communications of Fla., Inc. v. Henderson, 881 F.2d 990 , 993 (11th Cir.1989) (dismissing for lack of subject matter jurisdiction a claim premised on the violation of a federal statute because § 1983 does not provide a remedy for a violation of that particular statute); Bel anger, 856 F.Supp.…
discussed Cited as authority (rule) Stevens v. Arco Management of Washington D.C., Inc.
D.C. · 2000 · confidence medium
Housing Auth., 199 F.3d 1123, 1123 (10th Cir.1999) (affirming dismissal of federal claims for lack of jurisdiction and subsequent dismissal of state claims under § 1367(c)); Baltin v. Alaron Trading Coi'p., 128 F.3d 1466 , 1473 n. 18 (11th Cir.1997) (“Because the district court did not have subject matter jurisdiction over the federal claim, we also hold that the district court properly declined to exercise supplemental jurisdiction over this state law claim [under] 28 U.S.C. § 1367 (c)(3).”); Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir.1997) (same); Logan…
discussed Cited as authority (rule) Vicky Hagen Colin L. Harris v. Sisseton-Wahpeton Community College
8th Cir. · 2000 · signal: cf. · confidence medium
In Dillon , this court held that “ ‘a housing authority, established by a tribal council pursuant to its powers of self-government, is a tribal agency.’ ” 144 F.3d at 583 (quoting Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 670 (8th Cir.1986)); cf. Duke v. Absentee Shawnee Tribe of Oklahoma Housing Auth., 199 F.3d 1123, 1125 (10th Cir.1999) (“housing authority’s creation under state statute did not preclude characterization as a tribal organization”); EEOC v. Fond du Lac Heavy Equip. & Constr.
cited Cited "see" McNally CPA's & Consultants, S.C. v. DJ Hosts, Inc.
Wis. Ct. App. · 2004 · signal: see · confidence high
See Duke, 199 F.3d at 1124 . 4 *809 ¶ 11.
discussed Cited "see" Tenney v. Iowa Tribe of Kansas (2×)
D. Kan. · 2003 · signal: see · confidence high
See Duke v. Absentee Shawnee Tribe Of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir.1999) (housing authority designed to further Tribe’s economic interest was deemed Tribe under Title VII even though created as state agency under Oklahoma law rather than by tribal ordinance); Dille v. Council of Energy Resource Tribes, 801 F.2d 373, 375-76 (10th Cir.1986) (council formed by 39 tribes to collectively manage energy resources was Indian tribe under Title VII); see also Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1043 (8th Cir.2000) (community college chartered by In…
discussed Cited "see, e.g." Hartman v. Golden Eagle Casino, Inc.
D. Kan. · 2003 · signal: see, e.g. · confidence medium
See, e.g., Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir.1999) (housing authority designed to further Tribe’s economic interest was deemed Tribe under Title VII even though created as state agency under Oklahoma law rather than by tribal ordinance); see also Thomas v. Choctaw Management/Services Enterprise, 313 F.3d 910 , 2002 WL 31680819 (5th Cir.2002) (unincorporated business venture owned 100% by Tribe is an “Indian Tribe” expressly exempted from being employer under Title VII).
Retrieving the full opinion text from the archive…
Lynnette M. DUKE, Plaintiff-Appellant,
v.
ABSENTEE SHAWNEE TRIBE OF OKLAHOMA HOUSING AUTHORITY, Defendant-Appellee
Jeffrey P. Feuquay of Fisher & Feu-quay L.L.P., Perry, Oklahoma, for Plaintiff-Appellant., Gary S. Pitchlynn and David Morse of Pitchlynn, Morse, Ritter & Morse, Norman, Oklahoma, for Defendant-Appellee.
Tacha, Kelly, Briscoe.
Cited by 21 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: Tenth Circuit (1)
TACHA, Circuit Judge.

Plaintiff Lynnette M. Duke appeals the disti'ict coui't’s order dismissing her race and sex discrimination claims for lack of jurisdiction and declining to exercise supplemental jurisdiction over her remaining state claims. We affirm. [1]

Plaintiff, a Creek Indian, brought this action against the Absentee Shawnee Housing Authority (ASHA), raising race and sex discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17, and several state law claims. The district court held that ASHA was an Indian tribe and was therefore excluded from Title VII’s definition of an “employer.” See 42 U.S.C. § 2000e(b). Because the Title VII claims were the sole basis for the court’s original jurisdiction, the district court declined to exercise jurisdiction over plaintiffs state law claims, dismissing them without prejudice pursuant to 28 U.S.C. § 1367(c). This appeal followed.

Plaintiff argues that the district court erred in viewing ASHA as a tribe and thus the court had federal-question jurisdiction, pursuant to Title VII, to decide her claims. We review de novo a dismissal for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1165 (10th Cir.1999).

ASHA was created to provide and maintain low-income housing for members of the Absentee Shawnee Tribe. Regulations implementing the Housing Act of 1937 provided that Indian housing authorities such as ASHA could be created either by tribal ordinance or pursuant to state law. See 24 C.F.R. §§ 905.125, 905.126 (1995) (now repealed). In this case, ASHA was created pursuant to section 1057 of title 63 of the Oklahoma Statutes. Plaintiff argues that by choosing this method, the tribe created a state agency that was subject to the provisions of state and federal law including Title VII.

[*1125] It is true that the Oklahoma statute under which ASHA was organized defines the housing authority as a state agency. See Okla. Stat. Ann. tit. 63, § 1057 (West 1997). We have held, however, that the mere organization of such an entity under state law does not preclude its characterization as a tribal organization as well. See, e.g., United States v. Crossland, 642 F.2d 1113, 1114-15 (10th Cir.1981) (holding-housing authority’s creation under state statute did not prelude characterization as a tribal organization); United States v. Logan, 641 F.2d 860, 862 (10th Cir.1981) (rejecting contention that incorporation under state law precluded characterization of corporation as a tribal organization).

In Dille v. Council of Energy Resource Tribes, 801 F.2d 373, 375-76 (10th Cir.1986), we held that an organization representing the energy resource interests of thirty-nine Indian tribes was a “tribe” for purposes of the Title VII exemption. We noted that the council was an economic enterprise of the type intended to be protected by the exemption, that it was entirely comprised of tribal members, and that its decisions were made by designated tribal representatives. See id.

Here, as in Dille, ASHA is an enterprise designed to further the economic interests of the Absentee Shawnee tribe, and the tribe has exclusive control over the appointment and removal of its decisionmak-ers. As we noted when considering the status of a similar housing authority created under the same Oklahoma statute:

[Although the Authority was organized pursuant to state lawT, its members were selected by the tribe, its function was to serve the needs of the tribe, and its activities were supervised by the tribe. Thus appellant’s argument that the Authority’s creation by virtue of state statute precludes its character as an Indian tribal organization is unfounded.

Crossland, 642 F.2d at 1114.

Because “the definition of an In-dian tribe changes depending upon the purpose of the regulation or statutory provision under consideration,” Dille, 801 F.2d at 376, we must interpret the Title VII exemption in light of its purpose of “promoting] the ability of sovereign Indian tribes to control their own economic enterprises,” id. at 375. Given the canon that we construe all ambiguities in favor of Indian sovereignty, see EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir.1989), we conclude the district court did not err in finding ASHA was a “tribe” entitled to the Title VII exemption.

Our decision in Housing Authority of the Kaw Tribe v. City of Ponca City, 952 F.2d 1183 (10th Cir.1991), does not require a contrary result. There, we concluded that an Oklahoma Indian housing authority, as a state agency, lacked standing to bring a Fourteenth Amendment constitutional challenge against a political subdivision.of the state, but did have standing to sue under the Fair Housing Act. We did not consider whether the housing authority was a “tribe” for purposes of Title VII, or in any way disapprove of the above-cited language in Crossland, See Housing Auth. of the Kaw Tribe, 952 F.2d at 1191 (noting Crossland rationale that characterizations as state agency and tribal organization were not mutually exclusive). In fact, the decision supports our conclusion that under federal law, ASHA may be deemed a “tribe” for purposes of Title VII, despite its characterization as a state agency. See Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 629-30 (10th Cir.1998) (describing Housing Authority of the Kaw Tribe as standing for the proposition that a federal statute “trumps any contradictory state law through the operation of the Supremacy Clause”), cert. denied, - U.S. -, 119 S.Ct. 1461, 143 L.Ed.2d 546 (1999).

Plaintiff argues that because the Absentee Shawnee Tribe elected under the regulations to create a state agency rather than a tribal organization, it made a sovereign choice to subject ASHA to all state and federal laws. In the absence of an[*1126] express declaration to this effect, we are reluctant to impute such an intent to the tribe. More importantly, even assuming the tribe intended to subject ASHA to the dictates of Title VII, this intent could not unilaterally create subject matter jurisdiction in the federal court. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (holding parties cannot confer subject matter jurisdiction by consent, estoppel, or waiver); Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 671 (8th Cir.1986) (holding “the Housing Authority’s waiver of sovereign immunity under the tribal ordinance ... does not by fiat confer jurisdiction on the federal courts”).

Here, the only asserted basis for jurisdiction is the presence of a federal question. Federal question jurisdiction exists when a cause of action “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Because Congress expressly exempted In-dian tribes from Title VII and ASHA qualifies as a tribe under our case law, the statute does not create a cause of action against the housing authority so as to invoke the court’s jurisdiction. Cf. United States ex. rel. General Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1493-95 (10th Cir.1995) (finding no federal question in suit involving Indian housing project because statute exempted tribal contracts from Miller Act requirements). The district court did not err, therefore, in dismissing plaintiffs Title VII claims for lack of subject matter jurisdiction or in refusing to consider her state law claims.

The judgment is AFFIRMED.

1

. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.