Tamiami Partners, Ltd. ex rel. Tamiami Development Corp. v. Miccosukee Tribe of Indians of Fla.

• Decision Date: 07 June 1999
• Docket Number: No. 96-5262,96-5262
• Citation: 177 F.3d 1212
• Parties: TAMIAMI PARTNERS, LTD. by and through TAMIAMI DEVELOPMENT CORP., its general partner, Plaintiff-Appellee, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Billy Cypress; Jasper Nelson; Jimmie Bert; Max Billie; Henry Bert; and Dexter Lehtinen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1212

177 F.3d 1212

TAMIAMI PARTNERS, LTD. by and through TAMIAMI DEVELOPMENT

CORP., its general partner, Plaintiff-Appellee, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Billy Cypress;

Jasper Nelson; Jimmie Bert; Max Billie; Henry

Bert; and Dexter Lehtinen, Defendants-Appellants.

No. 96-5262.

United States Court of Appeals, Eleventh Circuit.

June 7, 1999.

Sonia Escobio O'Donnell, Dexter Lehtinen, Lehtinen, O'Donnell, Vargas & Reiner, Miami, FL, for Defendants-Appellants.

Richard J. Suarez, Hardeman & Suarez, Miami, FL, for Dexter Lehtinen.

Joseph Matthews, Colson, Hicks, Eidson, Colson & Matthews, Miami, FL, for Plaintiff-Appellee.

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

Before TJOFLAT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

This case, which is making its third appearance before our court, ¹ is the result of a protracted contractual dispute between the Miccosukee Tribe of Indians of Florida ("the Tribe") and Tamiami Partners, Ltd. ("Tamiami"). The most recent incarnation of this dispute is Tamiami's second amended complaint against the Tribe as well as against the Tribe's attorney and several officers of the Tribe's Business Council and Gaming Agency (collectively, the "individual defendants"). In the district court, all of the defendants filed motions to dismiss Tamiami's second amended complaint on the following grounds: lack of subject matter jurisdiction, sovereign immunity, and failure to state a claim. The defendants bring this interlocutory appeal from the district court's order denying their motions. Because of this procedural posture, we consider only the issues of subject matter jurisdiction and sovereign immunity. With one minor exception, see infra part III.B. we affirm the district court's order on these issues with respect to the Tribe. As to the individual defendants, however, we hold that the doctrine of Ex parte Young does not allow Tamiami to defeat their claims of sovereign immunity.

I.

A.

Because our prior opinions discuss the facts and initial procedural history of this case in detail, we provide only a summary here. ² On April 7, 1989, the Tribe entered into a Management and Economic Development Agreement (the "Agreement") with Tamiami Development Corporation ("TDC") to operate a bingo gaming facility on Tribal lands under a gaming scheme authorized by the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721 (1994), and a 1985 tribal ordinance. The Agreement had a seven-year term and was renewable by TDC, at its option, for an additional three years. In exchange for forty percent of the facility's monthly "net revenues," TDC agreed to purchase a parcel of real estate (outside the Miccosukee reservation), convey the parcel to the United States in trust for the Tribe, and then design, construct, and manage a bingo facility on that parcel.

Two provisions of the Agreement are particularly relevant here. Article 12 provides that "[a]ll disputes, controversies and/or claims arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration...." Under Article 23 of the Agreement, the Tribe waived its common-law immunity from a suit brought by TDC either to compel arbitration under Article 12 or to enforce an arbitration award. Article 23 states:

The [Tribe] waives its sovereign immunity from suit as expressly provided in this Article. The United States District Court for the Southern District of Florida, shall have jurisdiction over the parties hereto in order to enforce the terms hereof specifically, upon one or both of the following events (i) [the Tribe] fails to participate in an arbitration proceeding invoked as provided in Article 12, or (ii) failure by [the Tribe] to abide by the terms of an arbitration award.... This waiver of sovereign immunity shall not become effective until [TDC] has given written notice to the Miccosukee Tribal Business Council, detailing the nature of the complaint and the [Tribe] shall have failed after 30 days following such notice to cure such complaint.

After the Agreement was approved by a designee of the Secretary of the Interior, TDC purchased the parcel and began to construct the bingo facility. On January 23, 1990, with the Secretary's approval, the parties effected a novation of the Agreement in order to substitute Tamiami--a Florida limited partnership of which TDC was the general partner--for TDC. Thereafter, Tamiami completed the facility and began operating it as Miccosukee Indian Bingo ("MIB") in September 1990. On August 9, 1991, the Tribe adopted an ordinance establishing a Tribal Gaming Agency to oversee the registration and licensing of the managers and key employees of its gaming enterprises, including the facility managed by Tamiami. Under this ordinance, the denial of a license would result in termination of employment and eviction from the gaming facility.

During the first sixteen months of MIB's operation, the Tribe made two separate offers to purchase Tamiami's interest in the facility. The highest offer was for an amount equal to Tamiami's initial investment in the facility. Tamiami rejected both offers. On January 28, 1992, the Tribe notified Tamiami by letter that the Agreement had been "terminated by action of the [Tribe's] Business Council ... effective 30 days from the date hereof, because of repeated and flagrant violations of the letter and spirit of that Agreement." On February 25, pursuant to Article 12 of the Agreement, Tamiami formally demanded arbitration "to determine the validity of the Tribe's purported notice of termination." The Tribe responded by filing a "Statement of Claim" in Miccosukee Tribal Court to obtain a declaration that the Agreement had been terminated. On February 27, Tamiami initiated this lawsuit by filing its original verified complaint against the Tribe in the United States District Court for the Southern District of Florida. This complaint sought a declaratory judgment that Article 12 of the Agreement bound the Tribe to settle all disputes by arbitration, as well as an injunction compelling the Tribe to arbitrate the termination dispute and preventing it from taking control of MIB pending the completion of such arbitration.

On March 5, 1992, the district court issued its first "omnibus order" in the case. As a threshold matter, the court determined that it had subject matter jurisdiction because the case presented the question of Tribal Court power over a non-Indian. It stayed further proceedings in the case, however, pending either the parties' exhaustion of their remedies in the Tribal Court or any action by the Tribe to evict or otherwise impede Tamiami from operating MIB. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 788 F.Supp. 566 (S.D.Fla.1992).

On July 16, 1992, the Tribal Court issued a ruling that directed the parties to initiate arbitration proceedings in accordance with the Agreement. During that same month, the Tribe denied seventeen license applications that Tamiami employees had submitted to the Tribal Gaming Agency. Tamiami responded by filing a motion asking the district court to enjoin the Tribe from exercising self-help in order to terminate the Agreement. Tamiami alleged in its motion that the Tribe, under the pretext of issuing legitimate license denials, was engaging in self-help in order to prevent Tamiami from operating MIB and thus effectively terminate the Agreement. In its second omnibus order, issued on August 19, the district court addressed this motion. The court found that the Tribe's licensing process was arbitrary and capricious under the Administrative Procedure Act. Nevertheless, the court concluded that Congress, in enacting IGRA, had made no provision for suits by management contractors (such as Tamiami) to challenge a Tribe's licensing procedures. Moreover, it held that the Tribe's narrow waiver of sovereign immunity did not constitute consent to federal court suits challenging its licensing process. For these reasons, the court denied Tamiami's motion. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 803 F.Supp. 401 (S.D.Fla.1992).

On August 21, Tamiami moved the district court for leave to file a "supplemental" complaint and for a preliminary injunction that would compel arbitration of the licensing dispute and prevent the Tribe from using the licensing process to frustrate Tamiami's operation of MIB. The court denied this motion on September 15. Thereafter, Tamiami took interlocutory appeals from the district court's August 19 and September 15 orders.

An arbitration panel eventually was convened on December 17, 1992. On April 13, 1993, while the interlocutory appeals and arbitration were pending, the Tribe took several steps to oust Tamiami from MIB. The Tribal Gaming Agency denied licenses to Tamiami, TDC, and two of TDC's principal officers--Cye Mandel and John Sisto. The Gaming Agency also appointed a conservator to take control of MIB and to operate the facility; the conservator was instructed to pay the Tribe its share of MIB's net revenues and to deposit Tamiami's forty percent share into a trust account at Jefferson National Bank in Miami, Florida. The Tribal Court ratified the conservator's appointment the same day. The Tribal police then forced Mandel and Sisto to leave the MIB premises, the MIB accountant surrendered MIB's financial records to the Tribe, and the Tribe began the process of obtaining control of MIB's bank accounts.

Tamiami immediately returned to the district court seeking an injunction to prevent the Tribe from exercising self-help. In its third omnibus order, issued on April 15, the district court found that the Tribal Court had exceeded its jurisdiction in ratifying the conservator's appointment. The court also concluded that the Tribe had exceeded its sovereign powers in rejecting the license applications of Tamiami, TDC, Mandel, and Sisto. In its view,...