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Tamiami Partners, Ltd., by and Through Its General Partner, Tamiami Development Corporation v. Miccosukee Tribe of Indians of Florida Business Council of Miccosukee Tribe of Indians of Florida Miccosukee Tribal Gaming Agency Miccosukee Tribal Court, Tamiami Partners, Ltd., by and Through Its General Partner, Tamiami Development Corporation v. Miccosukee Tribe of Indians of Florida Business Council of Miccosukee Tribe of Indians of Florida Miccosukee Tribal Gaming Agency Miccosukee Tribal Court, Billy Cypress, Jasper Nelson, Jimmie Bert, Max Billie, Henry Bert, Andy Buster, Minnie Bert, Tamiami Partners, Limited v. Miccosukee Tribe of Indians of Florida, Business Council of the Miccosukee Tribe of Indians, Miccosukee Tribal Gaming Agency, Miccosukee Tribal Court, Billy Cypress, Jasper Nelson
Citation: 63 F.3d 1030Docket: 94-4403
Court: Court of Appeals for the Eleventh Circuit; August 16, 1995; Federal Appellate Court
A contractual dispute arose between the Miccosukee Tribe of Indians of Florida and Tamiami Partners, Ltd., which was contracted to manage the Tribe's bingo gaming facility. Tamiami filed a lawsuit after unsuccessful settlement attempts against the Tribe, its Business Council, and Gaming Agency, citing lack of sovereign immunity waiver by the Tribe. The district court dismissed all claims against the Tribe and its agencies due to this sovereign immunity but allowed the case against individual tribal officers to proceed. Following this, Tamiami appealed the dismissal, while the individual defendants also appealed, claiming entitlement to tribal immunity under the collateral order doctrine.
The Eleventh Circuit affirmed the district court's dismissal of Tamiami's claims against the Tribe, the Business Council, and the Gaming Agency, finding the complaint inadequate for relief. The court also upheld the lower court's decision that the individual defendants were not protected by tribal sovereign immunity. The case's history includes a previous appeal that led to a remand for repleading, which was followed by ongoing disputes among the parties. The court planned to review the federal laws governing the Tribe's gaming operations and the litigation's background before addressing Tamiami's claims and the individual defendants' immunity status.
On October 17, 1988, Congress enacted the Indian Gaming Regulatory Act (IGRA), which governs gaming facilities on Indian lands. The statute was developed following Congress's recognition of the need for federal oversight in the rapidly growing field of Indian gaming. The purpose of IGRA is to promote economic development, protect tribes from organized crime, ensure fairness for operators and players, and establish federal regulatory authority over Indian gaming. It affirms tribal sovereignty by prohibiting the imposition of state jurisdiction on tribal lands unless a tribe chooses otherwise. Furthermore, IGRA explicitly preempts state laws in governing gaming activities on Indian lands.
IGRA established the National Indian Gaming Commission (NIGC), a three-member body within the Department of the Interior, with extensive regulatory powers. The Chairman, appointed by the President, has authority to close gaming facilities, impose fines, and approve tribal ordinances and management contracts. The Commission can issue regulations, authorize subpoenas, conduct inspections, and oversee compliance with IGRA’s provisions.
Before a tribe can operate a gambling facility, it must adopt a tribal ordinance or resolution approved by the Chairman. The ordinance must ensure that the tribe retains sole proprietary interest and responsibility for gaming operations, and the tribe is required to conduct annual outside audits of its gaming activities. Additionally, class II gaming is permitted only in states where such gaming is allowed for any entity, in accordance with federal law.
Section 2710(b)(2)(F) of the Indian Gaming Regulatory Act (IGRA) outlines the requirements for tribes concerning the licensing of management contractors and their employees, which is central to the dispute between the Tribe and Tamiami. Key requirements include conducting background investigations of primary management officials and key employees, maintaining ongoing oversight, and establishing a licensing system that requires notification to the National Indian Gaming Commission (NIGC) of investigation results prior to licensing. Licenses cannot be issued to individuals deemed a threat to public interest or effective gaming regulation. The NIGC has thirty days to object to a license issuance, and if a non-compliant license is issued, it can be suspended or revoked following a notice and hearing. Importantly, the right to a hearing regarding licensing arises only if a license has been issued; no provisions exist for the NIGC to review a tribe's decision to withhold a license. Additionally, tribal ordinances must outline procedures for resolving disputes between the gaming public and the tribe or management contractor, though the regulations do not mandate dispute resolution mechanisms between the tribe and the contractor. Ordinances submitted to the Chairman for approval must comply with IGRA, and tribes can appeal rejection of ordinances or amendments to the full Commission, while third parties may only submit one written statement during such appeals. Decisions made by the Commission under sections 2710 and 2712 are final agency decisions, subject to appeal in federal district courts under the Administrative Procedure Act.
The Chairman is responsible for approving management contracts between Indian tribes and contractors for class II gaming, which includes contracts previously approved by the Secretary of the Interior. Approval of management contracts requires detailed disclosures from those forming the management entity, including personal data, gaming experience, and financial statements, as mandated by 25 U.S.C. Sec. 2711(a)(1). The Chairman can approve fee structures based on a percentage of net revenues if deemed reasonable, but must adhere to restrictions outlined in section 2711(e). Additionally, contracts not pre-approved by the Secretary as of January 22, 1993, must include mechanisms ensuring compliance with the Indian Gaming Regulatory Act (IGRA) and addressing dispute resolution, per 25 C.F.R. Sec. 531.1(a)(k). The Chairman has 180 days to approve or disapprove contracts, and if no action is taken, tribes can seek judicial intervention in federal district court, as stated in 25 U.S.C. Sec. 2711(d). The Chairman also has the authority to impose fines and close gaming facilities under section 2713, with the right to a hearing for affected parties and the possibility of appeal to federal court.
On September 25, 1985, the Tribe enacted Ordinance 85-3, allowing bingo gaming on its lands and stipulating that revenues support the community's welfare. Following this, the Tribe selected Tamiami Development Corporation (TDC) as a contractor to operate a bingo facility. On April 7, 1989, the Tribe formalized a Management Agreement with TDC, which included provisions for TDC to acquire land, design, construct, and manage the facility in exchange for a fixed percentage of the bingo revenues. The agreement has a seven-year term with an option for a three-year renewal.
Article 12 of the Agreement mandates that all disputes related to the Agreement or its breach will be resolved through arbitration, outlining the selection of arbitrators and procedural guidelines, with the American Arbitration Association's Commercial Arbitration Rules governing the proceedings. Article 23 entails the Tribe's waiver of sovereign immunity for suits initiated by Tamiami to compel arbitration or enforce an arbitration award, granting jurisdiction to the United States District Court for the Southern District of Florida in specific scenarios, such as the Tribe’s non-participation in arbitration or failure to comply with an arbitration award. This waiver is contingent upon the Manager providing written notice to the Miccosukee Tribal Business Council about the complaint, allowing the Tribe 30 days to address the issue before the waiver takes effect.
As required by the Indian Gaming Regulatory Act (IGRA), the Tribe secured approval from the Secretary of the Interior for the Management Agreement, subsequent to which TDC purchased and improved a 25-acre site in Dade County, Florida, investing approximately $6.5 million. On January 23, 1990, with the Secretary's approval, Tamiami Partners, Ltd. replaced TDC under the Agreement, while TDC remained the general partner. Miccosukee Indian Bingo ("MIB") commenced operations in September 1990.
On August 9, 1991, the Tribe adopted Ordinance No. 08-09-91 to align with IGRA requirements, establishing a framework for the registration and licensing of gaming managers and key employees. This ordinance created a Tribal Gaming Agency responsible for overseeing gaming operations and conducting background checks, with the Chief of Police tasked with reporting findings and recommending licensing decisions. Individuals denied licenses could appeal to the Gaming Agency and further to the Tribal Court if necessary.
The Tribe made two offers to purchase Tamiami's interest in the MIB bingo facility, with the first offer being $2 million less than Tamiami's initial investment and the second matching the investment. Both offers were rejected by Tamiami. On January 28, 1992, the Tribe notified Tamiami that the Agreement was terminated due to alleged violations, including Tamiami's refusal to allow inspections of records, obstruction of audits, unauthorized expenditures, failure to register managers as required, and not providing a preferential employment plan for Tribal members. Tamiami responded on February 4, 1992, disputing the allegations and claiming the termination was ineffective. The Tribe acknowledged receipt of Tamiami's response and reaffirmed the termination effective February 28. On February 25, Tamiami initiated arbitration proceedings to challenge the termination, urging the Tribe to defer further action until arbitration was resolved. The Tribe did not respond to the arbitration request and instead filed a "Statement of Claim" in Miccosukee Tribal Court on February 26, asserting that Tamiami violated laws and ordinances and seeking declarations and orders against Tamiami, including control of MIB and attorney's fees. Tamiami countered by filing a lawsuit in the U.S. District Court for the Southern District of Florida on February 27, seeking to compel arbitration and maintain the status quo. The district court issued a temporary restraining order on February 28 to prevent any changes until arbitration was completed.
On March 5, 1992, the district court issued an interim "omnibus order" addressing its subject matter jurisdiction, concluding it had jurisdiction over the case involving tribal court power over non-Indians due to a contractual agreement that included a waiver of sovereign immunity and arbitration provisions. The court noted that determining the Indian tribe's authority to compel a non-Indian property owner to submit to tribal court jurisdiction required federal law references, classifying it as a 'federal question' under Sec. 1331. However, in line with prior case law, the court stayed proceedings pending exhaustion of remedies in Tribal Court, vacating a temporary restraining order.
The stay would be lifted if the Tribe attempted self-help actions against Tamiami or failed to provide two business days' notice for any actions ordered by the Tribal Court. Subsequently, on July 3 and July 20, 1992, the Tribe denied 17 license applications from Tamiami employees. On July 16, the Miccosukee Tribal Court confirmed its jurisdiction over civil disputes with non-Indians and directed the parties to initiate arbitration under the Agreement while retaining jurisdiction to hear non-arbitrable claims.
Following further license denials, Tamiami filed an "Emergency Motion" on July 21, alleging the Tribe's actions were an attempt to terminate their management contract. On July 24, the district court lifted the stay, issuing a temporary injunction against further license denials pending its review of the Tribe's licensing process. On August 5, during an evidentiary hearing, the Tribe filed notice of compliance with the Tribal Court's arbitration order.
On August 19, 1992, the district court issued a ruling stating that the Tribe's licensing process was "arbitrary and capricious." However, the court determined that the Indian Gaming Regulatory Act (IGRA) did not permit management contractors, like Tamiami, to contest a tribe's licensing procedures in court. Consequently, the court ruled that Tamiami could not challenge the Tribe’s refusal to license its managers and key employees in arbitration and denied Tamiami's emergency request for injunctive relief.
The court maintained jurisdiction to provide Tamiami protective relief against the Tribe's self-help actions while awaiting the arbitration's outcome, emphasizing Tamiami's aim to enforce the Management Agreement's arbitration provisions and prevent the Tribe from seizing control of the gaming enterprise.
On August 21, Tamiami sought permission to file an amended complaint for two coercive orders: to compel arbitration of the licensing dispute and to prevent the Tribe from obstructing Tamiami's operations at MIB. Tamiami requested these orders as a preliminary injunction, but before the court could respond, Hurricane Andrew caused a temporary closure of MIB, delaying the dispute.
On September 15, 1992, the district court denied Tamiami's request to amend its complaint and for a preliminary injunction. Tamiami subsequently filed interlocutory appeals regarding the court's August 19 and September 15 orders. While these appeals were pending, the Tribe took actions to expel Tamiami from MIB, including the denial of licenses to Tamiami and its officers on April 13, 1993, and the appointment of a conservator to operate MIB. The Tribal Court ratified this appointment, leading to the expulsion of Tamiami's officers and the seizure of MIB's financial records and bank accounts by Tribal officials.
On April 13, Tamiami sought an injunction in district court to prevent the Tribe from taking self-help actions after being ousted. Following an evidentiary hearing on April 15, the court issued an omnibus order declaring that the Tribal Court exceeded its jurisdiction in ratifying the Gaming Agency's appointment of a conservator, rendering that order null and void. The court also determined that the Tribe improperly rejected Tamiami and others' license applications, viewing these actions as attempts to bypass ongoing arbitration and terminate the Management Agreement. Consequently, the court invalidated the Tribe's actions from April 13 and restored the status quo as of April 12.
The Tribe requested certification of the April 15 order for appeal under 28 U.S.C. Sec. 1292(b), which the court granted. The appeal was subsequently consolidated with two other interlocutory appeals from Tamiami. The district court’s order was stayed pending the appeal's resolution.
On August 16, 1993, the appellate court ruled on the three appeals. It concluded that Tamiami's complaint did not present a federal question under 28 U.S.C. Sec. 1331, instead indicating merely a contract dispute. Although acknowledging that a claim regarding unlawful tribal court actions could invoke federal law, Tamiami failed to assert such a right. The panel noted evidence suggesting potential jurisdiction but ultimately reversed the district court's April 15 order, instructing the district court to dismiss the case unless a proper jurisdictional complaint was filed within thirty days. The panel essentially invited Tamiami or the Tribe to initiate a new lawsuit.
On September 14, 1993, Tamiami filed an amended complaint, naming the Tribe, the tribal Business Council, the Gaming Agency, the Tribal Court, and eight individual members as defendants. The complaint asserted federal question jurisdiction based on the Tribe's alleged violations of the Indian Gaming Regulatory Act (IGRA) in terminating the Management Agreement and denying gaming licenses, as well as claims that individual members acted beyond their authority and that the Tribal Court exceeded its jurisdiction. Tamiami sought declaratory and injunctive relief, including invalidation of the Tribal Court's order from April 13, 1993, restoration of the status quo prior to that date, an injunction against the Tribe's interference with Tamiami's management, and recovery of Tamiami's 40% share of net gaming revenues.
On September 15, the Tribe sought a stay of arbitration proceedings, arguing that Tamiami's claim of non-Indian status undermined the Tribal Court's jurisdiction. The Tribal Court granted the stay on September 16. However, the arbitration panel, asserting its authority under the Agreement, proceeded with the final hearing on September 23, despite the Tribal Court's order, and the Tribe did not participate. On October 6, the panel ruled in favor of Tamiami, offering the Tribe the option to reinstate Tamiami as manager or pay $9.5 million to terminate the Agreement, along with awarding fees and costs to Tamiami.
Subsequently, the Tribal Court vacated its April 13 order on October 12 and dismissed the tribal suit on October 25, citing a lack of justiciable controversy. The Business Council, Gaming Agency, and individual defendants also moved for dismissal based on subject matter jurisdiction and sovereign immunity. On October 26, the district court froze funds in the MIB reserve account upon Tamiami's request. On February 28, 1994, the district court issued an order regarding the defendants' motions to dismiss.
The court dismissed Tamiami's claims against the Tribal Court as moot due to a lack of jurisdiction. Tamiami's claims against the Tribe, the Business Council, and the Gaming Agency were dismissed with prejudice, as the Tribe had not waived its sovereign immunity and Congress had not abrogated it regarding federal common law. However, the individual defendants were not protected by the Tribe's sovereign immunity. Citing Ex Parte Young, the court ruled that the individual defendants could be sued since Tamiami claimed they acted beyond their authority. Tamiami was not required to exhaust Tribal Court remedies against these defendants due to allegations of bad faith, which established an exception to the exhaustion requirement. Tamiami appealed the dismissal of its claims against the Tribal entities, while the individual defendants appealed the rejection of their sovereign immunity claim. The court sought clarification on the appeal's finality, leading Tamiami to request a final judgment from the district court, which was granted. This final judgment allowed Tamiami's appeal to proceed, superseding the earlier appeal. The current consolidated appeals are now under consideration, with the court needing to determine its subject matter jurisdiction over Tamiami's claims as of February 28, 1994.
Tamiami is involved in multiple legal disputes with the Tribe, the Business Council, the Gaming Agency, and individual defendants. Key claims include:
1. **Breach of Contract**: Tamiami alleges that the Tribe, through its Business Council and Gaming Agency, breached the Management Agreement by removing Tamiami from the MIB premises and taking control of the gaming operation. Tamiami seeks an injunction to restore its position as the MIB operator and to receive its 40% share of net gaming revenues.
2. **IGRA Violations**: Tamiami claims that the Tribe and Gaming Agency have abused their licensing authority under the Indian Gaming Regulatory Act (IGRA) and the regulations set by the National Indian Gaming Commission (NIGC) by refusing to license Tamiami and its associates. Tamiami requests a declaration of this abuse and an injunction for the Gaming Agency to issue the necessary licenses, arguing that an implicit right of action exists under IGRA.
3. **Individual Defendants' Liability**: Tamiami asserts that individual tribal members of the Business Council and Gaming Agency are executing a plan to permanently control the gaming enterprise by denying licenses to Tamiami's personnel. Tamiami seeks an injunction requiring these individuals to grant the licenses, restore Tamiami's presence at the MIB, and provide its share of net gaming revenues.
Each of Tamiami's claims arises under federal law, specifically under IGRA and NIGC regulations, establishing the district court's subject matter jurisdiction. Tamiami's breach of contract claim hinges on the Tribe's obligation to process licensing applications in good faith, which Tamiami contends has been violated.
IGRA does not explicitly or implicitly provide a cause of action for Tamiami's second claim, which did not challenge the district court's jurisdiction under 28 U.S.C. Sec. 1331. A failure to state a proper cause of action leads to a judgment on the merits rather than a jurisdictional dismissal. The district court correctly determined it had subject matter jurisdiction over Tamiami's claims. Tamiami's claims against the Tribe were dismissed based on sovereign immunity. The court agreed that the breach of contract claim was barred by this doctrine but disagreed regarding the second claim under IGRA and NIGC regulations, which was dismissed because IGRA does not grant Tamiami a right of action.
For the breach of contract claim to proceed, there needs to be a clear waiver of sovereign immunity by the Tribe or congressional abrogation, neither of which is present in IGRA. Although IGRA does not eliminate tribal immunity, Congress acknowledged the potential for disputes between tribes and management contractors, leading to a requirement for management contracts to include mechanisms for dispute resolution. In this case, the Management Agreement stipulated that all disputes would be resolved through arbitration, with the Tribe waiving its sovereign immunity to allow Tamiami to initiate action in federal court to enforce arbitration and any resulting awards.
Tamiami’s first claim is a breach of contract seeking monetary damages and injunctive relief, without pursuing arbitration or enforcement of an arbitration award, which is not covered by Article 23. Consequently, the district court correctly dismissed this claim. Tamiami's second claim alleges that the Tribe, through its Gaming Agency, failed to issue licenses in violation of statutes and regulations; however, it lacks a right to relief under the Indian Gaming Regulatory Act (IGRA). The Supreme Court has established that a violation of a federal statute does not inherently create a private cause of action. The language of IGRA does not grant management contractors the right to compel an Indian tribe to issue licenses for designated employees. The only explicit right given to management contractors is to seek judicial review of certain Commission decisions under the Administrative Procedure Act. Legislative history and the statute itself do not imply the right of action Tamiami claims. Congress has expressly provided rights of action for other parties, such as tribes seeking to compel action from the NIGC Chairman regarding contract approval. Given these specific remedies outlined in IGRA, courts should not expand the statute's coverage to include unprovided remedies. Therefore, Tamiami's assertion of a private right of action is rejected. The document then transitions to address a separate interlocutory appeal related to members of the Tribe’s Business Council and Gaming Agency.
The appeal challenges the district court's order from February 28, 1994, which rejected the tribal officers' claim of tribal sovereign immunity and denied their motion to dismiss the lawsuit against them. Tamiami seeks injunctive relief against these officers in their official capacities to compel compliance with the Indian Gaming Regulatory Act (IGRA) and National Indian Gaming Commission (NIGC) regulations regarding employee licensing at the MIB facility. Tamiami alleges that the officers have intentionally disregarded these regulations to facilitate the Tribe's takeover of the gaming operation.
The appeal raises the question of whether the district court correctly applied the Ex Parte Young doctrine in denying the dismissal of the tribal officers. A preliminary determination must be made regarding the appealability of the district court's denial of immunity under the Cohen collateral order doctrine. For an order to be immediately appealable under Cohen, it must: (i) conclusively determine the disputed issue, (ii) resolve an important issue separate from the merits, and (iii) be effectively unreviewable post-final judgment.
The Supreme Court has clarified that qualified immunity is an immunity from suit rather than a mere defense to liability, which is critical in assessing tribal sovereign immunity. The appeal hinges on whether tribal sovereign immunity under federal law constitutes immunity from suit or merely a defense to liability. The Supreme Court has established that tribal sovereign immunity provides robust protection from suit unless there is explicit congressional abrogation or tribal waiver. Therefore, tribal sovereign immunity must be upheld; allowing the lawsuit to proceed would undermine its effectiveness. Consequently, the analysis confirms that the Cohen collateral order doctrine is satisfied, granting jurisdiction to review the tribal officers' appeal based on the district court's denial of their motion to dismiss.
Jurisdiction has been established to consider the appeal of tribal officers regarding the district court's refusal to dismiss them from the lawsuit. The district court appropriately rejected the tribal officers' claim of immunity based on the Ex Parte Young doctrine, which pertains to official capacity suits against tribal authorities. This doctrine is applicable to tribal sovereign immunity similarly to state sovereign immunity, as established in prior case law. The assertion of tribal sovereign immunity does not prevent state courts from adjudicating the rights of individual defendants over whom they have personal jurisdiction. Consequently, the court affirms that the individual defendants are not protected by the Tribe's sovereign immunity. The appeal No. 94-4403 is dismissed for lack of jurisdiction, while in appeal No. 94-4578, the court affirms the dismissal of Tamiami's claims against the Tribe and its associated entities. In appeal No. 94-4405, the court upholds the district court's denial of the individual defendants' motion to dismiss based on sovereign immunity. The ruling is issued by a quorum under 28 U.S.C. Sec. 46(d). The Tribe is federally recognized under the Indian Reorganization Act of 1934, and the litigation's context involves the Indian Gaming Regulatory Act, which categorizes gaming into three classes, with the current appeal focusing on class II gaming.
Numerous Indian tribes have initiated or licensed gaming activities on tribal lands to generate revenue for their governments. Federal courts mandate Secretarial review of management contracts related to Indian gaming under section 81 of Title 25, though no specific approval standards are outlined. Current federal law lacks clear regulations for gaming on Indian lands. A key objective of federal Indian policy is to foster tribal economic growth, self-sufficiency, and governance. Indian tribes have exclusive regulatory authority over gaming on their lands unless prohibited by federal law and permitted by state law. Class I gaming is solely under tribal jurisdiction and is not subject to federal provisions. Tribes can opt to be governed by state law through Tribal-State compacts for Class III gaming. The Chairman has the authority to temporarily close gaming operations for significant violations, with the affected tribe or management contractor entitled to a hearing within thirty days to contest the closure. Civil fines up to $25,000 per violation can be imposed by the Chairman on tribal operators or management contractors for breaches of regulations, with an appeals process established by the Commission. The Chairman's approval of ordinances and management contracts is subject to detailed regulations. The Commission can subpoena witnesses and documents during investigations, and noncompliance may lead to contempt charges. Additionally, net revenues from gaming must benefit the tribe, its members, government, economic development, charitable organizations, or local agencies.
An exception to the "sole proprietary interest" requirement under Section 2710(b)(2)(A) allows a tribe to license non-tribal entities if the licensee agrees to allocate net revenues to fund tribal government operations or programs, as stipulated in Section 2710(b)(2)(B)(i). The Indian Gaming Regulatory Act (IGRA) mandates independent audits for contracts exceeding $25,000 related to gaming. It also requires that the construction and operation of gaming facilities must not pose environmental or public health risks. Approval of a tribal ordinance by the National Indian Gaming Commission (NIGC) Chairman is dependent on the existence of procedures for adequate background investigations. If reliable information arises indicating that a primary management official or key employee fails to pass a background investigation, the tribe must suspend the gaming license and may revoke it after a hearing. The Commission is responsible for notifying the tribe of any unsuitable licensee based on criminal history or reputation, and the tribe must then take action regarding the license. The revocation decision rests solely with the tribe, which must inform the Commission of its decision. A right to a hearing on license revocation only exists if the license was granted under an ordinance approved by the Chairman. If the Chairman does not act within ninety days, the ordinance is deemed approved if compliant with statutory provisions. Tribes must submit any ordinances adopted prior to October 17, 1988, for the Chairman's review within sixty days of notification. The Chairman has ninety days to approve or request modifications, with tribes given 120 days to comply if modifications are needed. Amendments to existing ordinances also require submission to the Chairman for a compliance determination within ninety days. Section 2714 governs Commission decisions related to Sections 2711 and 2713, and similar review processes apply to management contracts established before the statute's effective date.
Under Section 2712, a tribe or management contractor must submit their contract for review to the Chairman following notification. The Chairman will approve the contract if it meets the requirements specified in Section 2711; otherwise, modifications must be made within a specified timeframe. Notably, management agreements approved by the Secretary of the Interior prior to the establishment of the Commission are exempt from Section 2712 requirements. The National Indian Gaming Commission (NIGC) regulations clarify that management contracts approved by the Secretary must be submitted to the Chairman within 60 days upon his request, while other contracts should be submitted upon execution.
The Chairman's approval of management contracts under Section 2711(b) is contingent on several criteria, including adequate accounting procedures, tribal access to daily operations, guaranteed minimum payments, a cap on repayment of development costs, adherence to maximum contract terms, and defined grounds for termination. The regulations stipulate that the maximum percentage for management contracts can be no more than 40% of net revenues if justified by capital investment and income projections.
Disapproval criteria for contracts include any involvement of elected tribal members or individuals with felony or gaming offenses in the management group, attempts to unduly influence tribal government decisions, significant non-compliance with contract terms or tribal ordinances, and failure to meet standards expected of a prudent trustee. These disapproval standards are mirrored in the NIGC regulations. Additionally, the regulations mandate that contracts outline responsibilities for gaming functions, as well as guidelines for assignments and subcontracts.
Ownership changes require approval from the Chairman for the contract to be effective, as stipulated in 25 C.F.R. Sec. 531.1(b. l. n). The Chairman may extend the approval or disapproval period by 90 days if a written reason is provided to the tribe, according to 25 U.S.C. Sec. 2711(d). Following the enactment of the Indian Gaming Regulatory Act (IGRA) in 1988, the Tribe amended its 1985 Ordinance to align with IGRA, though it is unclear whether this amendment occurred before or after the management agreement in question was executed. Indian tribes enjoy sovereign immunity from lawsuits unless waived by the tribe or abrogated by Congress, as established in Santa Clara Pueblo v. Martinez and further clarified in Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering. The Tribe and TDC entered into their agreement before the formation of a three-member Commission, which was fully established in April 1991. The Secretary of the Interior had the authority to approve the Agreement at that time. In Fall 1991, the Tribe sought guidance from the National Indian Gaming Commission (NIGC) regarding the 1991 Ordinance's compliance with IGRA, but the NIGC could not provide a definitive analysis due to the absence of promulgated regulations. Nonetheless, the NIGC indicated that the Tribe's information requirements seemed appropriate and aligned with IGRA's standards for background investigations and employment suitability determinations.
The Tribe was required to submit the 1991 Ordinance for approval by the Secretary of the Interior per 25 U.S.C. Sec. 2709. However, due to the Commission's response, the 1991 Ordinance appears valid under Section 2710(e), which deems an ordinance approved if not acted upon within 90 days, provided it aligns with the Indian Gaming Regulatory Act (IGRA). Tamiami alleged two offers from the Tribe in its amended complaint, which the Tribe denied. Evidence suggests the offers were made, but this does not affect the current decision. Tamiami withdrew its request to compel arbitration when it filed its amended complaint on September 14, 1993. The district court misinterpreted Tamiami's claim, confusing it with National Farmers, where a tribal court's jurisdiction was contested. In National Farmers, the Supreme Court ruled that the district court, while having jurisdiction, should have allowed the tribal court to determine its jurisdiction first. Tamiami's case did not involve a challenge to a tribal court judgment, but rather claimed a breach of arbitration obligations under the Agreement. Tamiami sought a declaratory judgment asserting the Tribe's obligation under the arbitration clause and an injunction to prevent the Tribe from acting against the Enterprise pending arbitration. Consequently, the National Farmers precedent was not applicable in this case.
The Tribal Court acknowledged the Tribe's waiver of sovereign immunity and submission to the jurisdiction of the U.S. District Court for the Southern District of Florida to enforce any arbitration award in favor of Tamiami. Tamiami learned of the Tribal Court's July 16, 1992 order only on July 23, 1992, after filing an emergency motion. The district court noted that Tamiami's workforce was severely impacted, creating a precarious working environment. The arbitration panel convened on December 17, 1992. The district court clarified that it could not declare a licensing process unlawful without a statutory grant of jurisdiction. The panel had jurisdiction over two appeals: one regarding the denial of Tamiami’s request for injunctive relief, while it lacked jurisdiction over the denial of Tamiami's leave to amend its complaint. The responsibility for identifying federal questions rested with the plaintiff, not the panel. Although the Tribe's arbitrator did not participate in the final hearing, he submitted a formal dissent to the panel’s decision. The individual defendants asserted they could not be held liable as they acted outside their authority, despite the amended complaint containing specific allegations against them. They also claimed adherence to federal law was mandatory under Miccosukee law. The defendants subsequently sought a stay of proceedings, which was granted by the court, which also reaffirmed a previous order freezing an account while denying Tamiami's request for a preliminary injunction. Tamiami's claims against the Tribal Court were dismissed as moot, and the amended complaint was characterized as a "shotgun pleading," lacking specificity.
Claims in the amended complaint by Tamiami arise from the Business Council's role in managing the Tribe's affairs and seek to restore Tamiami's status as the MIB operator to what it was on April 12, 1993. The Business Council and Gaming Agency are not parties to the Management Agreement, and thus, Tamiami's allegations do not seek relief against them for the Tribe's breach of the Agreement. Any potential relief granted would be ancillary to support the district court's jurisdiction over Tamiami's breach of contract claim against the Tribe. Tamiami does not allege that the Tribe, via the Business Council, misused its licensing authority, as such a statutory claim would need to be implied under the Indian Gaming Regulatory Act (IGRA).
In the amended complaint, Tamiami has named two Tribal Court judges and the conservator for MIB as individual defendants. However, claims against the Tribal Court and its judges are moot, leading to the declaration that appeal No. 94-4405 is also moot regarding them. The conservator's dismissal from the case was appropriate as the Tribal Court vacated his appointment. The remaining defendants in the appeal are the Business Council and Gaming Agency members. Tamiami has not identified any basis in IGRA that would allow it to bring claims against these individual defendants. Even if there were violations of IGRA, plaintiffs cannot sue unless a cause of action is implicitly provided by IGRA.
The Agreement mandates compliance with IGRA provisions, acknowledging Congress's preemption in regulating gaming on Indian lands. Tamiami alleges that the Tribe circumvented IGRA’s licensing requirements to terminate the Agreement, yet it cannot pursue its breach of contract claim due to the Tribe's assertion of sovereign immunity. Tamiami's IGRA claims are not deemed frivolous or insubstantial, and the district court also dismissed Tamiami's claims against the Business Council and the Gaming Agency.
Claims against the Tribe and certain entities are treated as identical, with the case involving the defendant members of the Tribal Court deemed moot. Article 12 allows for arbitration awards to be enforceable in any competent court, but the Tribe's waiver of sovereign immunity under Article 23 restricts lawsuits against it to the Southern District of Florida. Despite this, the parties have agreed that the Tribe could waive its immunity to enforce arbitration awards in other jurisdictions, such as the Circuit Court of Dade County, Florida.
Tamiami initially sought an order for the Tribe to submit to arbitration in its original complaint, but the amended complaint no longer requests this relief. Tamiami is still permitted to enforce the October 6, 1993 arbitration award in district court and compel arbitration for other contract disputes. The amended complaint acknowledges that binding arbitration is the exclusive method for resolving disputes related to the Agreement.
Additionally, a management contractor may seek district court review of the Commission's final approval of fines or orders for permanent closures under 25 U.S.C. Sec. 2713(c). It may also challenge disapproval of management contracts under Sec. 2714, although the standing of the management contractor under the Administrative Procedure Act is not determined here.
The document does not resolve whether Tamiami can assert claims against individual defendants despite their amenability to suit. It also notes that the district court must consider whether claims against tribal officers can be found within the Indian Gaming Regulatory Act (IGRA), depending on whether those officers have acted outside the authority granted by the Tribe.