                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 11, 2008
                      UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                  TENTH CIRCUIT                   Clerk of Court



 HADASSAH MARA COHEN,

          Plaintiff-Appellant,

 v.                                                   No. 07-6241
                                              (D.C. No. 5:07-CV-00645-HE)
 DR. C. KIM WINKELMAN,                                (W.D. Okla.)
 Comanche Nation College President; *
 COMANCHE NATION COLLEGE,

          Defendants-Appellees.


                             ORDER AND JUDGMENT **


Before LUCERO, EBEL, and HARTZ, Circuit Judges.


      Hadassah Mara Cohen appeals the district court’s dismissal of her

complaint against the Comanche Nation College and its President, Dr. C. Kim




      *
       Both Cohen and the district court spelled Winkelman’s last name as
“Winkleman” and, as a result, the appeal was docketed with that spelling. It
appears from the record, however, that the correct spelling is “Winkelman.”
Accordingly, we have corrected the caption and use the correct spelling
throughout this order and judgment.
      **
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Winkelman (collectively “the tribal defendants”). 1 Cohen alleges that the tribal

defendants violated her procedural due process and equal protection rights in

violation of § 1302 of the Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301-

03, by terminating her employment contract. The district court dismissed the

complaint on the basis of issue preclusion because it had previously concluded, in

a prior case between the same parties, that it lacked subject matter jurisdiction.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm on the alternative

ground that the district court lacked jurisdiction to entertain Cohen’s second

lawsuit because of tribal sovereign immunity.

                                          I

      The Comanche Nation (“the Nation”) is a federally-recognized Indian tribe

located in Oklahoma. See Indian Entities Recognized & Eligible to Receive

Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18553,

18554 (Apr. 4, 2008). In 2002, the Nation chartered the Comanche Nation

College (“the College”) to “provide educational opportunities for Comanche tribal

members, members of other tribal nations, and others to learn the necessary

knowledge and skills to be successful in a multicultural society.” Charter,

Comanche Nation College, Art. II. The College was designated as a tribal


      1
         As the substance and caption of Cohen’s complaint make clear, and as the
district court indicated, Cohen is suing Winkelman in his official capacity as the
College’s president. Cohen v. Winkleman (“Cohen II”), No. CIV-07-645-HE,
2007 WL 2746913, at *1 n.1 (W.D. Okla. Sep. 20, 2007).

                                         -2-
enterprise pursuant to the Nation’s “sovereign right of self-government and its

authority to foster the general welfare and education of the Comanche citizens.”

Charter, Comanche Nation College, Pmbl.

      On June 17, 2005, Cohen and the tribal defendants entered into the

employment agreement giving rise to this lawsuit. 2 Under the terms of the

contract, Cohen was to serve for three years as the Director of Planning,

Operations, and Assessments of the College beginning on August 15, 2005. If the

employment agreement were terminated without cause, the tribal defendants

agreed to buy out Cohen’s contract. Despite this commitment, on September 9,

2005, the tribal defendants terminated Cohen’s employment without cause yet

refused to buy out the contract.

      In November 2005, Cohen sued the tribal defendants in federal court

alleging that they had (1) breached the employment agreement and, in so doing,

(2) violated ICRA. Cohen v. Winkleman (“Cohen I”), 428 F. Supp. 2d 1184,

1186 (W.D. Okla. 2006). 3 On April 17, 2006, the district court granted the tribal

defendants’ motion to dismiss for lack of subject matter jurisdiction and, in the

alternative, for failure to state a claim. Id. at 1189. Dismissal was predicated on

      2
       Because this case reaches us following the tribal defendants’ successful
motion to dismiss, we accept as true all the allegations in Cohen’s complaint.
Ordinance 59 Ass’n v. U.S. Dep’t of the Interior, 163 F.3d 1150, 1152 (10th Cir.
1998).
      3
        No copy of the complaint in Cohen I appears in the record, so we rely on
the district court’s summary of the claims from its order dismissing that case.

                                        -3-
the conclusion that the sovereign immunity of the Comanche Nation, which

extended to Winkelman and the College, barred Cohen’s breach of contract claim

and deprived the court of jurisdiction. Id. at 1186. As to the ICRA claim, the

court concluded that it did not fall within the narrow exception to tribal sovereign

immunity we announced in Dry Creek Lodge, Inc. v. Arapahoe and Shoshone

Tribes, 623 F.2d 682, 685 (10th Cir. 1980), and the court therefore lacked subject

matter jurisdiction, Cohen I, 428 F. Supp. 2d at 1188-89. Cohen failed to meet

the Dry Creek exception because she did not establish (1) that a tribal forum was

unavailable or (2) that the allegations were outside internal tribal affairs. Id. at

1187-89.

      On the basis of the Dry Creek exception, the district court found that Cohen

failed to demonstrate unavailability of a tribal forum because “she ha[d] not yet

filed suit or otherwise formally pursued this matter” in a tribal court. Id. at 1188;

see White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984) (“In

addition, to adhere to the principles of Santa Clara [Pueblo v. Martinez, 436 U.S.

49 (1978)], the aggrieved party must have actually sought a tribal remedy, not

merely have alleged its futility.”). Presumably prompted by this language, Cohen

sought to establish unavailability by filing her claim in a tribal forum, the Court

of Indian Offenses. That court dismissed Cohen’s claim on May 17, 2007,

because the Comanche Nation had not expressly waived its sovereign immunity.

That decision was not appealed.

                                          -4-
      On June 6, 2007, Cohen once again sued Winkelman and the College in

federal court seeking money damages for alleged violations of procedural due

process and equal protection in violation of ICRA. 4 Cohen II, 2007 WL 2746913,

at *1. The tribal defendants moved to dismiss for failure to state a claim, see Fed.

R. Civ. P. 12(b)(6), and for lack of subject matter jurisdiction, see Fed. R. Civ. P.

12(b)(1). Cohen II, 2007 WL 2746913, at *1. Cohen failed to state a claim, the

tribal defendants argued, because she was precluded by the decision in Cohen I

from relitigating the lack of subject matter jurisdiction. Even if the issue were

not precluded, the tribal defendants contended that the district court lacked

subject matter jurisdiction because the Dry Creek exception to tribal sovereign

immunity did not apply.

      On September 20, 2007, the district court dismissed Cohen II because

Cohen I precluded Cohen from establishing jurisdiction under Dry Creek. 2007

WL 2746913, at *2. This appeal follows.

                                         II

      We review questions of tribal sovereign immunity de novo. Walton v.

Tesuque Pueblo, 443 F.3d 1274, 1277 (10th Cir. 2006). “It is well established

that Indian tribes possess the common law immunity from suit traditionally

enjoyed by sovereign powers.” Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th

Cir. 2006) (citing Santa Clara, 436 U.S. at 58); see also Kiowa Tribe of Okla. v.

      4
          In this second lawsuit, Cohen abandoned her breach of contract claim.

                                         -5-
Mfg. Techs., Inc, 523 U.S. 751, 754 (1998); Puyallup Tribe, Inc. v. Dep’t of

Game of the State of Wash., 433 U.S. 165, 172-73 (1977). Tribal sovereign

immunity extends to subdivisions of the tribe, Native Am. Distrib. v. Seneca-

Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir. 2008), and to tribal

officials, so long as the officials are acting within the scope of their permissibly

delegated official powers, see Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.

2006). Yet, Congress retains plenary power to authorize a lawsuit against an

Indian tribe, Santa Clara, 436 U.S. at 58, and a tribe may always waive sovereign

immunity and consent to suit, Kiowa Tribe, 523 U.S. at 754; Native Am. Distrib.,

546 F.3d at 1293; Walton, 443 F.3d at 1277; E.F.W. v. St. Stephen’s Indian High

Sch., 264 F.3d 1297, 1304 (10th Cir. 2001); Ute Distrib. Corp. v. Ute Indian

Tribe, 149 F.3d 1260, 1263 (10th Cir. 1998). Absent congressional abrogation or

an express waiver by the tribe, sovereign immunity deprives the federal courts of

jurisdiction to entertain lawsuits against an Indian tribe, its subdivisions, or its

officials acting within their official capacities. See Native Am. Distrib., 546 F.3d

at 1293; see also FDIC. v. Meyer, 512 U.S. 471, 475 (1994).

      In this case, Cohen has sued both the College and its president, Winkelman.

Neither party disputes that the College, as a chartered tribal enterprise of the

Comanche Nation, constitutes a subdivision of the tribe for the purposes of

sovereign immunity. See Native Am. Distrib., 546 F.3d at 1293-95 (holding that

a commercial venture of the Seneca-Cayuga Tribe constituted a tribal enterprise

                                           -6-
protected by sovereign immunity). Nor do the parties dispute that Winkelman is a

tribal official acting in his official capacity and within the scope of his official

duties. See id. at 1297 (“[T]he general rule is that relief sought nominally against

an officer is in fact against the sovereign if the decree would operate against the

latter.” (quotation omitted)). Thus, we have no reason to question the district

court’s determination that, absent abrogation or waiver, the sovereign immunity

of the Comanche Nation extends both to the College and to Winkelman. Because

the tribal defendants have not expressly waived their sovereign immunity,

Cohen’s case may proceed in federal court only if Congress has abrogated that

immunity. See id. at 1293.

      In Santa Clara, the Supreme Court held that ICRA abrogated the sovereign

immunity of tribes only for habeas corpus actions brought under 25 U.S.C.

§ 1303. 5 436 U.S. at 70. Two years later, in Dry Creek, this court recognized a

limited exception to Santa Clara’s seemingly absolute holding that ICRA did not

abrogate tribal sovereign immunity outside the habeas context. 623 F.2d at 685.

According to Dry Creek, a federal court has jurisdiction pursuant to § 1302 to

entertain an ICRA lawsuit against an Indian tribe if: (1) the dispute involves a

non-Indian, (2) a tribal forum is unavailable, and (3) the dispute involves issues


      5
         In relevant part, 25 U.S.C. § 1303 provides: “The privilege of the writ of
habeas corpus shall be available to any person, in a court of the United States, to
test the legality of his detention by order of an Indian tribe.” Cohen does not
argue that her claim is cognizable under this section.

                                           -7-
outside internal tribal affairs. Walton, 443 F.3d at 1278; Ordinance 59 Ass’n, 163

F.3d at 1156. In the nearly thirty years since that decision, we have applied the

Dry Creek exception in only one case—Dry Creek itself. See Walton, 443 F.3d at

1278 (collecting cases). We have repeatedly emphasized its “minimal

precedential value,” Ordinance 59 Ass’n, 163 F.3d at 1158, reasoning that “the

Dry Creek opinion must be regarded as requiring narrow interpretation in order to

not come into conflict with the decision of the Supreme Court in Santa Clara,”

White, 728 F.2d at 1312.

      Despite Dry Creek’s “minimal precedential value,” Cohen maintains that

the federal district court had jurisdiction to hear her claim against the tribal

defendants, arguing that she meets all three prongs. The tribal defendants,

however, contest whether Cohen meets Dry Creek’s second prong—unavailability

of a tribal forum. In response, Cohen urges that a tribal forum was unavailable

because the Court of Indian Offenses dismissed her claim as having been barred

by sovereign immunity. Walton squarely forecloses Cohen’s argument.

      In Walton, we held that “[a] tribal court’s dismissal of a suit as barred by

sovereign immunity is simply not the same thing as having no tribal forum to hear

the dispute.” 443 F.3d at 1279. A contrary holding, we concluded, would

directly conflict with Santa Clara. Id. As in Walton, Cohen cannot establish

federal court jurisdiction under Dry Creek on the mere claim that the Court of

Indian Offenses dismissed her case based on sovereign immunity. Because Cohen

                                          -8-
cannot satisfy Dry Creek’s narrow exception, the Comanche Nation’s sovereign

immunity bars her claims against both tribal defendants. Thus, the district court

lacked jurisdiction to entertain Cohen’s lawsuit. 6

                                          III

      For the foregoing reasons, the judgment of the district court is

AFFIRMED. The tribal defendants’ motion for sanctions is DENIED.


                                        ENTERED FOR THE COURT


                                        Carlos F. Lucero
                                        Circuit Judge




      6
        Although the district court found the issue of subject matter jurisdiction
precluded by its decision in Cohen I, we need not resolve the case on that basis
and may affirm the district court’s ruling on alternative grounds. United States v.
Lott, 310 F.3d 1231, 1242 n.7 (10th Cir. 2002).

                                          -9-
