the judgment of the court vacating the dismissal on tribal exhaustion grounds, but would reach this result in a different way. Similarly, I agree with the court’s reasoning and conclusions regarding the alleged sovereign immunity waiver in the ordinance creating the tribal housing authority, but write separately to express some concerns arising from the particular facts of this case. I concur fully in the thoughtful majority opinion in all other respects. With regard to the tribal exhaustion issue, I would hold that the plaintiff should not have to exhaust her claims in Tribal Court because the defendants have not asserted that a Tribal Court as such exists. Exhaustion would thus be futile. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 n. 12, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (<HOLDING>). The defendants seek remand to the Tribal
recognizing the futility exception to the tribal exhaustion rule recognizing futility exception to doctrine of exhaustion where agency was powerless to grant relief sought recognizing futility exception in context of  2241 petition recognizing that a plaintiff could present evidence of futility recognizing exception