                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2124
                                   ___________

Vicky Hagen; Colin L. Harris,           *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States District
                                        * Court for the District of South Dakota.
Sisseton-Wahpeton Community             *
College,                                *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 22, 1999

                                  Filed: March 6, 2000

                                   ___________

Before WOLLMAN, ROSS and LOKEN, Circuit Judges.
                           ___________

ROSS, Circuit Judge.

      Sisseton-Wahpeton Community College (the College) appeals from a judgment
entered by the district court in favor of Vicki Hagen and Colin L. Harris on their
consolidated race discrimination cases. Because we hold that the College was a tribal
agency immune from suit, we reverse.

BACKGROUND
       In 1979, pursuant to its constitution, the Sisseton-Wahpeton Sioux Tribe (the
Tribe) chartered the College as a nonprofit corporation to provide post-secondary
education to tribal members on the Lake Traverse Reservation. The College's board
of trustees is comprised of one enrolled member from each of the Tribe's seven
districts. In 1994, Hagen and Harris, non-Native Americans, entered into one-year
contracts with the College. After their contracts were not renewed, they filed race
discrimination charges with the Equal Employment Opportunity Commission and the
state human rights commission. Both commissions dismissed the charges for lack of
jurisdiction over Indian tribes.

       Hagen and Harris then filed discrimination complaints in district court. Although
the College's president, Dr. John Derby, was served, the College did not answer the
complaints. In April 1997, appellees filed a "motion for a judgment by default." In
June 1997, the court granted the motion and referred the matter to a magistrate judge
to hold a jury trial on damages.

       On July 3, 1997, after the jury awarded damages but before judgment was
entered, the College entered an appearance and filed a motion to dismiss under Fed. R.
Civ. P. 12(b)(1), raising subject matter jurisdiction and immunity arguments. In March
1998, the district court denied relief, stating that a "Rule 60(b)(4) motion need not be
granted because of a belated finding no jurisdiction existed." The court also stated
"[w]hether or not the College might have been immune from suit in this Court is not the
issue." In any event, the court stated it had reviewed the materials the College had
submitted in support of its motion, but found that they did not show the College was
entitled to tribal sovereign immunity. The court then referred the matter of fees and
costs to the magistrate judge.

       After the award of fees and costs, in June 1998, the College filed a motion to set
aside the default under Fed. R. Civ. P. 55(c), again raising lack of subject matter
jurisdiction and sovereign immunity arguments. In February 1999, the district court




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again denied relief, stating it was "too late" to consider the College's immunity
argument.

DISCUSSION
       The College first argues that the district court erred in treating its Rule 12(b)(1)
motion to dismiss as a Rule 60(b)(4) motion for relief from a judgment. We agree.
At the time the College filed the motion, judgment had not yet been entered. As the
College notes, Rule 12(h)(3) provides "[w]henever it appears by suggestion of the
parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action." In addition, the district court's order granting appellees' "motion
for a judgment of default" was erroneous "because a default judgment cannot be
entered until the amount of damages has been ascertained." Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 97 (2d Cir. 1993). Although in its March 1998 opinion, the
court acknowledged at the time it granted the motion, it only had authority to enter an
order of default, see Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.
1998) ("entry of default under Rule 55(a) must precede grant of a default judgment
under Rule 55(b)"), nonetheless throughout the opinion the court referred to its "order
for default judgment" and imposed Rule 60(b)(4) standards for relief from a void
judgment.1

       Because the facts are undisputed, we address the College's argument that it is
immune from suit. Initially, we note in this circuit, "[s]overeign immunity is a
jurisdictional question." Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir.
1995); see also Brown v. United States, 151 F.3d 800, 804 (8th Cir. 1998) (since
sovereign immunity is a jurisdictional issue court erred in treating Rule 12(b)(1) motion


       1
       Although we question the court's authority to refer the case to the magistrate
judge for a damages trial, see J. C. Henry v. Tri-Serv., Inc., 33 F.3d 931, 933 (8th Cir.
1994), because of our disposition of the case on immunity grounds, we need not
address the issue or other issues the College raises on appeal.

                                            -3-
as a Rule 12(b)(6) motion). It is undisputed that an Indian tribe enjoys sovereign
immunity. See Kiowa Tribe of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751, 754
(1998). It is also undisputed that a tribe's sovereign immunity may extend to tribal
agencies. Dillon v. Yanton Sioux Tribe Housing Auth., 144 F.3d 581, 583 (8th Cir.
1998).

        The College argues because it is chartered, funded, and controlled by the Tribe
to provide education to tribal members on Indian land, it is a tribal agency. The
College relies on Dillon and Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th
Cir.1998), cert. denied, 120 S. Ct. 185 (1999). 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., 1999 WL 1244478, at *1 (10th Cir. Dec.
20, 1999) ("housing authority's creation under state statute did not preclude
characterization as a tribal organization"); EEOC v. Fond du Lac Heavy Equip. &
Constr. Co., 986 F.2d 246, 248 (8th Cir. 1993) (age discrimination act did not apply
to a construction company wholly-owned and chartered by a tribe). In Pink, the Ninth
Circuit held that a nonprofit health corporation created and controlled by Indian tribes
is entitled to tribal immunity, noting it "served as an arm of the sovereign tribes, acting
as more than a mere business." 157 F.3d at 1188. Likewise, here the College serves
as an arm of the tribe and not as a mere business and is thus entitled to tribal sovereign
immunity.

      Hagen and Harris argue that even if the College enjoys immunity, it waived
immunity by failing to answer their complaints. We disagree. "In Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58 (1978), the United States Supreme Court reaffirmed its
long-held view that, as it relates to tribes, 'a waiver of sovereign immunity cannot be
implied but must be unequivocally expressed.'" Dillon, 144 F.3d at 583; see also Rupp,
45 F.3d at 1245 ("'nothing short of an express and unequivocal waiver can defeat the

                                           -4-
sovereign immunity of an Indian nation'") (quoting American Indian Agric. Credit
Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1379 (8th Cir. 1985)).
"Thus, a waiver of sovereign immunity cannot be implied from a . . . failure to appear."
MCI Telecomm. Corp. v. Alhadhood, 82 F.3d 658, 662 (5th Cir.), cert. denied, 519
U.S. 1007 (1996); see also Pit River Home & Agric. Co-op. Ass'n v. United States, 30
F.3d 1088, 1100 (9th Cir. 1994) (tribal "Council's failure to appear specifically does
not waive its sovereign immunity").

       Contrary to appellees' suggestion, neither In re Prairie Island Dakota Sioux, 21
F.3d 302 (8th Cir. 1994) (per curiam) nor A-1 Contractors v. Strate, 76 F.3d 930 (8th
Cir.1996) (en banc), aff'd, 520 U.S. 438 (1997), holds that sovereign immunity is an
affirmative defense that unless raised in an answer is waived. In Prairie Island, this
court likened sovereign immunity to an affirmative defense, but did so only in the
context of explaining in dicta that while "sovereign immunity is jurisdictional in nature,"
unlike subject matter jurisdiction, immunity may be waived. 21 F.3d at 304. In Strate,
we only mentioned that a party who had "initially raised the affirmative defense of
sovereign immunity" later consented to suit. 76 F.3d at 933. Indeed, this court has
held that because "[s]overeign immunity . . . is a jurisdictional threshold matter . . . [it]
can be raised for the first time on appeal." Harmon Indus., Inc. v. Browner, 191 F.3d
894, 903 (8th Cir. 1999). In addition, we have indicated that the scope of a waiver of
sovereign immunity is a jurisdictional issue. See Brown , 151 F.3d at 804.

        We also reject appellees' argument that the College waived its immunity because
of a "sue-and-be-sued" clause in the College's charter in effect at the time their
contracts were not renewed. The charter provided that the College could "sue and be
sued in its corporate name in a competent court to the extent allowed by law." It also
provided that the Tribe gave its "consent to allowing the [College] to sue and be sued
upon any contract" and "authorize[d] the [College] to waive any immunity from suit
which it might otherwise have." Appellees acknowledge that in Dillon this court held
that a similar clause did not waive immunity, but argue the case was wrongly decided.

                                            -5-
In Dillon, this court distinguished Weeks Constr., Inc. , 797 F.2d at 670,which held
that a sue-and-be-sued clause in a tribal ordinance waived immunity on the ground that
in Weeks "an express waiver of sovereign immunity was found in a written contract,"
whereas in Dillon the tribal agency had "never explicitly waived its sovereign immunity
through a written contract." Dillon, 144 F.3d at 583-84. Appellees not only assert that
Dillon misread Weeks, noting in Weeks there was no mention of an explicit contractual
waiver of immunity, but argue Dillon conflicts with Rosebud Sioux Tribe v. A&P Steel,
Inc., 874 F.2d 550, 552 (8th Cir. 1989). In A&P Steel, this court noted that "[o]ne
method in which express waiver may be made is by virtue of a provision allowing the
tribe 'to sue or be sued,' found in the tribe's corporate charter" and held that a tribe had
"waived its sovereign immunity in such a fashion." Id. at 552.

       The College argues that, except for Dillon, the cases are distinguishable. It is
true that Weeks was a breach of contract case and in A&P Steel the immunity issue
arose in the context of a contract counterclaim. Although we are inclined to believe the
differences are immaterial and our cases are in conflict, see also Rosebud Sioux Tribe
v. Val-U Constr. Co. of South Dakota, Inc., 50 F.3d 560, 563 (8th Cir.) ("'sue and be
sued clause' in the Tribe's corporate charter does not operate as a general waiver of the
Tribe's immunity" from contract counterclaim), cert. denied, 516 U.S. 819 (1995), we
need not resolve the issue. Even if there is a conflict, we would follow Dillon. We
find compelling that Dillon is the only prior case squarely on point. In Dillon, as here,
a non-Native American sued a tribal agency alleging his termination was on account
of race discrimination in violation of several civil rights statutes.2 144 F.3d at 582.


       2
       Nor did the College waive its immunity by executing a certificate of assurance
with the Department of Health and Human Services in which it agreed to abide by Title
VI of the Civil Rights Act of 1964. See Dillon, 144 F.3d at 584 (tribal agency's
agreement with Department of Housing and Urban Development to abide by civil rights

                                            -6-
Moreover, Dillon is consistent with the EEOC's dismissal for lack of jurisdiction.
Thus, we hold that the district court erred in failing to grant the College's motion to
dismiss.


      Despite our holding, we note the College's failure to raise the motion earlier has
resulted in delay, expense to appellees, and waste of judicial resources. Nonetheless,
because "[s]overeign immunity . . . is a jurisdictional prerequisite which may be
asserted at any stage of the proceedings, . . . [a] Court simply cannot ignore arguments,
however belated, that call into doubt the Court's authority to exercise jurisdiction over
[a] matter." Resolution Trust Corp. v. Miramon, 935 F. Supp. 838, 841 (E.D. La.
1996) (internal quotation omitted).


      Accordingly, we reverse the judgment and remand with directions to dismiss the
complaints.


      A true copy.


              Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




statutes did not waive immunity for discrimination suit by terminated employee).

                                          -7-
