Tamiami Partners, Ltd. By and Through Tamiami Development Corp. v. Miccosukee Tribe of Indians of Florida

• Decision Date: 16 August 1995
• Docket Number: Nos. 94-4403,94-4405 and 94-4578,s. 94-4403
• Citation: 63 F.3d 1030
• Parties: TAMIAMI PARTNERS, LTD., By and Through its general partner, TAMIAMI DEVELOPMENT CORPORATION, Plaintiffs-Appellants, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Business Council of Miccosukee Tribe of Indians of Florida; Miccosukee Tribal Gaming Agency; Miccosukee Tribal Court; et al., Defendants-Appellees, TAMIAMI PARTNERS, LTD., By and Through its general partner, TAMIAMI DEVELOPMENT CORPORATION, Plaintiffs-Appellees, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Business Council of Miccosukee Tribe of Indians of Florida; Miccosukee Tribal Gaming Agency; Miccosukee Tribal Court, Defendants, Billy Cypress, Jasper Nelson, Jimmie Bert, Max Billie, Henry Bert, Andy Buster, Minnie Bert, Defendants-Appellants. TAMIAMI PARTNERS, LIMITED, Plaintiff-Appellant, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Business Council of the Miccosukee Tribe of Indians, Miccosukee Tribal Gaming Agency, Miccosukee Tribal Court, Defendants-Appellees, Billy Cypress, Jasper Nelson, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1030

63 F.3d 1030

TAMIAMI PARTNERS, LTD., By and Through its general partner, TAMIAMI DEVELOPMENT CORPORATION, Plaintiffs-Appellants, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Business Council of

Miccosukee Tribe of Indians of Florida;

Miccosukee Tribal Gaming Agency;

Miccosukee Tribal Court; et

al., Defendants-Appellees, TAMIAMI PARTNERS, LTD., By and Through its general partner, TAMIAMI DEVELOPMENT CORPORATION, Plaintiffs-Appellees, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Business Council of

Miccosukee Tribe of Indians of Florida;

Miccosukee Tribal Gaming Agency;

Miccosukee Tribal Court, Defendants,

Billy Cypress, Jasper Nelson, Jimmie Bert, Max Billie, Henry

Bert, Andy Buster, Minnie Bert, Defendants-Appellants.

TAMIAMI PARTNERS, LIMITED, Plaintiff-Appellant, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Business Council of

the Miccosukee Tribe of Indians, Miccosukee Tribal

Gaming Agency, Miccosukee Tribal Court,

Defendants-Appellees,

Billy Cypress, Jasper Nelson, et al., Defendants.

Nos. 94-4403, 94-4405 and 94-4578.

United States Court of Appeals Eleventh Circuit.

Aug. 16, 1995.

Sanford L. Bohrer, Miami, FL, F. Lee Bailey, West Palm Beach, FL, for appellants.

Dexter W. Lehtinen, Samuel B. Reiner, Sonia Escobio O'Donnell, Miami, FL, for appellees.

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

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and YOUNG ^*, Senior District Judge. ^**

TJOFLAT, Chief Judge:

This case arises out of a contractual dispute between the Miccosukee Tribe of Indians of Florida ("the Tribe") ¹ and Tamiami Partners, Ltd., the management contractor selected by the Tribe to manage the bingo gaming facility. When efforts to settle the dispute failed, Tamiami brought this action against the Tribe, the Tribe's Business Council and Gaming Agency, and the officers of these tribal entities who are responsible for overseeing the gaming operation (the "individual defendants" or "tribal officers"). The district court dismissed all claims against the Tribe, the Business Council, and the Gaming Agency on the ground that, because the Tribe has not waived its sovereign immunity, these tribal entities are not subject to suit. The court refused to extend the Tribe's sovereign immunity to the individual defendants, however, and denied their motion to dismiss the case.

After making these rulings, the district court granted the Tribe, the Business Council, and the Gaming Agency final judgment, pursuant to Fed.R.Civ.P. 54(b), and Tamiami appealed. The individual defendants also appealed asserting that they are entitled to immediate appellate review of their claim to tribal immunity under the collateral order doctrine established by Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

We affirm the district court's dismissal of Tamiami's complaint against the Tribe, the Business Council, and the Gaming Agency because the complaint fails to state a claim for relief against them. Furthermore, we affirm the district court's determination that the individual defendants are not shielded by the Tribe's sovereign immunity.

This case has a convoluted history. In an earlier appeal, Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 999 F.2d 503 (11th Cir.1993), we remanded the case to the district court with the admonition that, if one of the parties did not replead its case within thirty days, the district court must dismiss the case. Id. at 508. Tamiami repleaded its case, and, in the aftermath of bitter infighting among the parties, the case is here once again.

To place the issues presented by these appeals in proper context, we first review the federal statutory scheme under which the Tribe established and currently operates its bingo facility ² and then review the history of this litigation. Next, we address the questions whether Tamiami has stated a claim for relief against the Tribe, the Business Council, and the Gaming Agency and whether the tribal officers, if they have presented a cognizable appeal under the Cohen doctrine, are entitled to sovereign immunity.

I.

A.

On October 17, 1988, Congress enacted the Indian Gaming Regulatory Act, 25 U.S.C. Secs. 2701-2721 (1988) ("IGRA" or "the statute"), a comprehensive statute governing the operation of gaming facilities on Indian lands. ³ For several years prior to the enactment of IGRA, Congress had considered the need for federal legislation to govern the rapidly expanding field of Indian gaming. ⁴ As stated in the Senate Report submitted with the statute at the time of its passage, "[t]he purpose of the act is to provide a statutory basis for operating Indian gaming to promote economic development, to shield tribes from organized crime, to assure fairness to operators and players, and to establish a Federal regulatory authority for Indian gaming to meet congressional concerns." S.Rep. No. 446, 100th Cong., 2d Sess. 15-16 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3085-86. The legislative history makes clear the purpose and effect of the statute: to protect the Indian gaming industry from corruption and to provide for extensive federal oversight of all but the most rudimentary forms of Indian gaming. ⁵

The statute affirms tribal sovereignty by noting that "unless a tribe affirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congress will not unilaterally impose or allow State jurisdiction on Indian lands for the regulation of Indian gaming activities." Id. at 5-6, 1988 U.S.C.C.A.N. at 3075 (emphasis added). ⁶ The Senate report unequivocally states, however, that IGRA "is intended to expressly preempt the field in the governance of gaming activities on Indian lands." Id. at 6, 1988 U.S.C.C.A.N. at 3076. The occupation of this field by federal law is evidenced by the broad reach of the statute's regulatory and enforcement provisions and is underscored by the comprehensive regulations promulgated under the statute.

B.

IGRA established the National Indian Gaming Commission (the "NIGC" or "Commission"), a three-member body within the Department of the Interior consisting of a Chairman appointed by the President and two associate members appointed by the Secretary of the Interior. See 25 U.S.C. Sec. 2704(a), (b)(1). The statute confers extensive powers upon the Chairman and the Commission.

The Chairman's powers, outlined in section 2705 of the statute, include the power to close a gaming facility temporarily, ⁷ to fine, ⁸ to approve tribal ordinances and resolutions, ⁹ and to approve management contracts. ¹⁰ The Commission's discretionary powers, outlined in sections 2706(a) and (b), include the power to adopt regulations governing fines, ¹¹ to authorize the Chairman to issue subpoenas, ¹² to close a gaming facility permanently, ¹³ ] to inspect the books and records of a class II gaming facility, and to hold hearings. The Commission must monitor class II gaming continuously, inspect class II gaming premises, promulgate regulations necessary to implement IGRA, and conduct background investigations of, among others, management contractors, such as Tamiami, and their employees. 25 U.S.C. Sec. 2706(b). Pursuant to its mandate to issue regulations, the Commission did so comprehensively. See 25 C.F.R. Secs. 501.1-577.15 (1994).

C.

1.

Before a tribe may begin to operate an organized gambling facility, IGRA requires that the tribe adopt a tribal ordinance or resolution authorizing and governing gaming on the tribe's reservation. A tribe may "engage in, or license and regulate" class II gaming only if:

(A) such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law), and

(B) the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman.

25 U.S.C. Sec. 2719(b)(1). The Chairman's approval of a tribal ordinance or resolution is contingent upon several factors set forth in the statute and the regulations. For example, the tribe must have "the sole proprietary interest and responsibility for the conduct of any gaming activity," id. Sec. 2710(b)(2)(A), ¹⁴ and must provide annual outside audits of the gaming enterprise. Id. Sec. 2710(b)(2)(C). ¹⁵

2.

Section 2710(b)(2)(F) of IGRA, which governs a tribe's licensing of a management contractor and its employees, lies at the center of this controversy between the Tribe and Tamiami. Thus, we examine this statutory provision, and the NIGC's implementing regulations, in detail. The statute requires that the tribe conduct background investigations of "primary management officials and key employees of the gaming enterprise" and maintain ongoing oversight of these officials and employees. ¹⁶ 25 U.S.C. Sec. 2710(b)(2)(F)(i). Furthermore, the tribe must institute a system for licensing these individuals and must notify the Commission of the results of background investigations prior to licensing. Id. Sec. 2710(b)(2)(F)(ii). A license may not be issued to any individual who presents "a threat to the public interest or to the effective regulation of gaming." Id. The Commission has "thirty days to notify the Indian tribe of any objections to the issuance of such license." Id. Sec. 2710(c)(1). If the Commission finds that a license has been issued to an official who fails to satisfy the standards set forth in the statute, the Commission "shall suspend such license and, after notice and hearing, may revoke such license." Id. Sec. 2710(c)(2). Significantly, as strongly implied by the statute ¹⁷ and expressly stated in the regulations, ¹⁸ the right to a hearing concerning licensing vests only upon the receipt of a license. Neither the statute nor the regulations provides for Commission review of a tribe's refusal to issue a license.

Furthermore, under the regulations, a tribal ordinance must provide "[a]...