Furry v. Miccosukee Tribe of Ind. of Fla.

• Decision Date: 29 June 2012
• Docket Number: No. 11–13673.,11–13673.
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: John V. FURRY, as personal representative of the Estate and survivors of Tatiana H. Furry, Plaintiff–Appellant, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Miccosukee Tribe of Indians of Florida, d.b.a. Miccosukee Resort & Gaming, et al., Defendants–Appellees.

685 F.3d 1224

23 Fla. L. Weekly Fed. C 1234

John V. FURRY, as personal representative of the Estate and survivors of Tatiana H. Furry, Plaintiff–Appellant,

v.MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Miccosukee Tribe of Indians of Florida, d.b.a. Miccosukee Resort & Gaming, et al., Defendants–Appellees.

No. 11–13673.

United States Court of Appeals,Eleventh Circuit.

June 29, 2012.

Recognized as Unconstitutional

42 U.S.C.A. § 12202

Bruce Stephen Rogow, Bruce S. Rogow, PA, Fort Lauderdale, FL, Sean M. Cleary, Sean M. Cleary Law Offices, Miami, FL, for Plaintiff–Appellant.

Bernardo Roman, III, Yinet Pino, Law Offices of Bernardo Roman III, Miami, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and BLACK, Circuit Judges, and EVANS,^* District Judge.

MARCUS, Circuit Judge:

The appeal presents us with tragic facts; it also yields a straightforward legal resolution. John Furry, as personal representative of the estate of his daughter Tatiana Furry, appeals the district court's order granting the Miccosukee Tribe's ¹ motion to dismiss his complaint. Furry complained that the Miccosukee Tribe violated 18 U.S.C. § 1161 and Florida's dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who then got in her car, drove off while intoxicated, and ended up in a fatal head-on collision with another vehicle on a highway just outside Miami. The Miccosukee Tribe moved to dismiss the complaint on the jurisdictional ground that it was immune from suit under the doctrine of tribal sovereign immunity. In its order granting the tribal defendants' motion to dismiss, the district court determined that tribal sovereign immunity barred it from entertaining the suit.

We agree. The Supreme Court has made clear that a suit against an Indian tribe is barred unless the tribe has clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity. Furry argues that both of these exceptions have been met here, but these arguments are ultimately without merit. Accordingly, we affirm the judgment of the district court.

I.

The underlying facts of this wrongful death suit, as alleged, are both straightforward and heartbreaking.² On the night of January 20, 2009, and into the early morning hours of January 21, Tatiana Furry was at the Miccosukee Resort & Gaming, a gambling and resort facility in Miami–Dade County owned and operated by the tribal defendants. Miccosukee Resort & Gaming also includes several bars and restaurants that sell or serve alcoholic beverages on the premises. Pursuant to 18 U.S.C. § 1161, ³ the tribal defendants applied for and received a license from the State of Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages & Tobacco to sell and furnish alcohol.

According to the complaint, the tribal defendants and their employees “furnished Tatiana [Furry] with a substantial amount of alcoholic beverages.” They did so “despite knowing that she was habitually addicted to the use of any or all alcoholic beverages.” The defendants knew of Ms. Furry's habitual addiction to alcohol because, prior to the night in question, they “had served Tatiana a substantial amount of alcohol on multiple occasions on their premises.” At some point in the early morning hours of January 21, employees of the defendants witnessed Ms. Furry get in her car and leave the premises “in an obviously intoxicated condition.”

A short time later, Ms. Furry was involved in a head-on collision with another vehicle on U.S. Route 41 (the Tamiami Trail). Ms. Furry was killed as a result of the collision. After the accident, Ms. Furry's blood alcohol level was measured at .32, four times Florida's legal limit of .08.

On December 17, 2010, Ms. Furry's father, John Furry, filed an eight-count complaint in the United States District Court for the Southern District of Florida, alleging violations of 18 U.S.C. § 1161 and Florida's dram shop act, codified at Fla. Stat. § 768.125,⁴ as well as various state law negligence claims. The Miccosukee Tribe answered by filing a motion to dismiss, contending, among other things, that the district court lacked subject matter jurisdiction due to tribal sovereign immunity. After full briefing, the district court entered an order dismissing Furry's complaint based on a lack of subject matter jurisdiction because the Miccosukee Tribe was immune from suit.

II.

“We review de novo the district court's dismissal of a complaint for sovereign immunity.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.2001); accord Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1240–41 (11th Cir.1999); Fla. Paraplegic, Ass'n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1128 (11th Cir.1999). Tribal sovereign immunity is a jurisdictional issue. See Sanderlin, 243 F.3d at 1285;Seminole Tribe, 181 F.3d at 1241.

The fundamental starting point for the resolution of this appeal is that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (emphasis added); accord Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (“Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.” (internal quotation marks and citation omitted)); Sanderlin, 243 F.3d at 1285;Seminole Tribe, 181 F.3d at 1241.

Furry contends that both of these exceptions to tribal sovereign immunity have been met here. He claims that Congress abrogated tribal sovereign immunity in enacting 18 U.S.C. § 1161, which authorizes state regulation (including licensing) of tribal liquor transactions. See Rice v. Rehner, 463 U.S. 713, 728–29, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983). Furry also suggests that the Miccosukee Tribe has waived any claim to tribal sovereign immunity by applying for a state liquor license, which involved executing an affidavit agreeing that the licensed premises would be subject to inspection by state authorities for the purpose of monitoring compliance with state liquor laws. Furry adds that the Miccosukee Tribe's affidavit and application for a Florida liquor license amounted to a broad agreement to be bound by Florida law in all respects, including subjecting the Miccosukee Tribe to private actions sounding in tort.

We address each claim in turn, but first provide a brief overview of the Supreme Court's most recent decision addressing the scope of the tribal sovereign immunity doctrine, because it sets forth the current breadth of the doctrine. The Court in Kiowa Tribe began by recognizing that the doctrine of tribal immunity is now settled law and that the Court's precedents establish that an Indian tribe “is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” 523 U.S. at 754, 118 S.Ct. 1700 (citing Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940)). The Court further recognized that its past precedents did not draw any distinctions based on whether the tribal activities occurred on or off of the reservation, or whether the tribal activities were governmental or commercial in nature. Id. at 754–55, 118 S.Ct. 1700 (citing Potawatomi, 498 U.S. 505, 111 S.Ct. 905;Puyallup Tribe, Inc. v. Dep't of Game, 433 U.S. 165, 167, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977)). The Court also noted that “the immunity possessed by Indian tribes is not coextensive with that of the States” and that “tribal immunity is a matter of federal law and is not subject to diminution by the States.” Id. at 755–56, 118 S.Ct. 1700.

But, as Furry rightly points out, the Supreme Court's opinion does not stop there. The Court also observed that the doctrine of tribal immunity “developed almostby accident” from Justice Brandeis's opinion for the Court in Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919). Kiowa Tribe, 523 U.S. at 756, 118 S.Ct. 1700. The Court noted that Turner “simply does not stand for that proposition,” that “[i]t is, at best, an assumption of immunity for the sake of argument, not a reasoned statement of doctrine,” and that it “is but a slender reed for supporting the principle of tribal sovereign immunity.” Id. at 756–57, 118 S.Ct. 1700. The Court recognized, however, that “Turner 's passing reference to immunity” later became “an explicit holding that tribes had immunity from suit” and that “[l]ater cases, albeit with little analysis, reiterated the doctrine.” Id. at 757, 118 S.Ct. 1700 (citing Puyallup, 433 U.S. at 167, 172–173, 97 S.Ct. 2616;Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670;Three Affiliated Tribes, 476 U.S. at 890–891, 106 S.Ct. 2305;Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 268, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)).

The Supreme Court further recognized the tension between its broad historical recognition of tribal immunity and the much narrower category of cases in which the doctrine still reflects sound policy today:

There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal...