Opposition Brief — Miccosukee Tribe of Indians of Florida v. Tamiami Partners, Ltd.

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No. 02}-49QRRICS OF THE CLERE |

INTHE

Supreme Court of the Gnited States

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

Petitioner,

V.

TAMIAMI PARTNERS, LIMITED,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

JOSEPH M. MATTHEWS JOHN G. ROBERTS, JR.*

MARC COOPER CATHERINE E. STETSON

COLSON HICKS EIDSON, P.A. HOGAN & HARTSON L.L.P.

255 Aragon Avenue 555 Thirteenth Street, N.W.

Second Floor Washington, D.C. 20004

Coral Gables, Florida 33134 (202) 637-5810

(305) 476-7400

*Counsel of Record Counsel for Respondent

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

1. Whether this Court should grant certiorari to review

dictum in a footnote in a 1999 Eleventh Circuit opinion.

2. Whether this Court should grant certiorari to review the

question whether a nonmember seeking to compel an arbitral

remedy must first “exhaust tribal remedies,” when that

question was not pressed or passed upon below.

3. Whether this Court should grant certiorari to review the

question under what circumstances a tribal court may exer-

cise jurisdiction over claims brought by an Indian tribe

against nonmembers, when the question is not presented on

the facts of this case.

li

RULE 29.6 STATEMENT

Respondent Tamiami Partners, Ltd. (“Tamiamy’’) is a lim-

ited partnership. Tamiami has no parent corporation, and no

publicly held company owns 10% or more of Tamiami’s

stock.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......sssssssssssssscssssecesseesesnees

RULE 29.6 STATEMENT .cccscsscssccossssssssscssensseosesee

TABLE OF AUTHORITIES. .ccsssscocssssocsssssenssessesse

ee LL

COUNTERSTATEMENT onccsecscssscosssssssscossssssssessee

REASONS FOR DENYING THE WRIT....sssssssssses

I. THIS COURT SHOULD DECLINE TO

GRANT REVIEW OF DICTUM IN A

FOOTNOTE IN TAMIAMI IIL .......cccscccsceeseeseesreees

II. PETITIONER’S CHALLENGES TO THE

CONFIRMATION OF THE ARBITRAL

' AWARD WERE EITHER NOT RAISED

BELOW OR NOT PRESENTED IN THE

A. The Question Whether Tamiami Was Obli-

gated To “Exhaust Tribal Remedies” Was

Not Pressed Or Passed Upon Below. ..............

B. The Question To What Extent A Tribal

Court May Adjudicate A Tribe’s Claims

Against Non-Members Is Not Presented In

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Ie cies vaivecnsssisisconccisensssscossnsessesovesessnessveney

(iii)

Page

24

iv

TABLE OF AUTHORITIES

Page

CASES:

Abdo v. Fort Randall Casino, 957 F. Supp.

REET Cs BED vencbiiceresnciesdsanclansssviedivsicanine 23

Barnard v. Commercial Carriers, Inc., 863

Fe Gr Cs CE rsisienaticensecnevnniovens 26

Becenti v. Vigil, 902 F.2d 777 (10th Cir.

PPT insescdichsslaieeksniesiiaieietabbcisiabaisaia seiidartbienaitenaadit 25

_ Bruce H. Lien Co. v. Three Affiliated Tribes,

93 F.3d 1412 (Sth Cir. 1996)..............ccccssssssseseees 19,22

C & L Enters., Inc. v. Citizen Band Potawa-

tomi Indian Tribe of Okla., 532 U.S. 411

EIT © isssisiss'bincesdiesipecedecieias inimedsath niesie enlace stanaliaiabiaas 27

Cabazon Band of Mission Indians v. Wilson,

124 F.3d 1050 (9th Cir. 1997), cert. de-

pede, S24 U.S. FIG CAG sss vxivccssstesnresvarvenbsseevetes 23

Calvello v. Yankton Sioux Tribe, 899 F.

oo Me Go 2 os... | RRR PRN neem morenmeanone 23

Casino Res. Corp. v. Harrah's Entm’t, Inc.,

243 F.3d 435 (Sth Cir. 2001)......cccrcsssscocovosssrcssees +

Caterpillar Inc. v. Williams, 482 U.S. 386 -

(RDB TP siiiininsadiavriiithavnshiicicsiocnk be visiabciicsithece vials 9

Columbia Gas Trans. Corp. v. Drain, 191

ope Le | een seees 22

Continental Materials Corp. v. Gaddis

Mining Co., 306 F.2d 952 (10th

Oe FEE ainessnisnhirvssiencengnabbiaenesiensieieiainestiddbiiieadiintss 26

Vv

TABLE OF AUTHORITIES—Continued

Dean Witter Reynolds, Inc. v. Sanchez

Espada, 959 F. Supp. 73 (D.P.R. 1997).........

Diamond Game Enters., Inc. v. Reno, 9 F.

Supp. 2d 13 (D.D.C. 1998), rev'd on

other grounds, 230 F.3d 365 (D.C. Cir.

Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ................

FW/PBS, Inc. v. City of Dallas, 493 US.

Pe RMA Ma Retirees, Fnrehe Wars

Gaming Corp. of Am. v. Dorsey & Whitney,

SB F368 S36 CR Cat. 1FPG) ocicscesercsesnisnsecieneess

Gibraltar, P.R., Inc. v. Otoki Group., Inc.,

104 F.3d 616 (4th Cir. 1997)... eeeeseeeeees

Johnson v. University of Wisconsin-

’ Milwaukee, 783 F.2d 59 (7th Cir. 1986)........

Juidice v. Vail, 430 U.S. 327 (1977).........ceeseeees

Lindy v. Lynn, 501 F.2d 1367 (3d Cir. 1974).......

McDonald v. City of West Branch, 466 U.S.

ye a CEPT ae arr

Merrell Dow Pharms. v. Thompson, 478

17600410 a

Merrill, Lynch, Pierce, Fenner & Smith, Inc.

v. Haydu, 637 F.2d 391 (Sth Cir. Unit B

A Psi sists ccsieiicisiccdimseorencatres

Page

21

vi

TABLE OF AUTHORITIES—Continued

Page

Milan Express Co. v. Western Surety Co.,

886 F.2d 783 (6th Cir. 1989).............ccccsscssssereeees 22

Mirson v. Corradino Group., Inc., 751 So.

2d 699 (Fla. 3d Dist. Ct. App 2000).................04. 17

Missouri River Servs., Inc. v. Omaha Tribe

of Neb., 267 F.3d 848 (8th Cir. 2001),

cert. denied, 122 S. Ct. 1909 (2002) ...:............... 4

National Farmers Union Ins. Cos. v. Crow

FHIBe, 471 VB i BAS (iG Ga hh ckscsccsonsestasvioveevevensitens 25,26

Nevada v. Hicks, 533 U.S. 353 (2001)...........:ccc000000 27,28

Platzer v. Sloan-Kettering Inst. for Cancer

Research, 787 F. Supp. 360 (S.D.N.Y.),

aff'd, 983 F.2d 1086 (Fed. Cir. 1992),

cert. denied, 507 U.S. 1006 (1993) ..........c cece “Se

Pueblo of Santa Ana v. Kelly, 104 F.3d 1546

(10th Cir.), cert. denied, 522 U.S. 807

CID TP inercsiiashovinshensanadapeldiaabaestiteidasdemidiaiadlieshiasisias 22

Rita, Inc. v. Flandreau Santee Sioux Tribe,

798 F. Supp. 586 (D.S.D. 1992)............sccccssscceses 23

Rogers v. United States, 522 U.S. 252

CGY sa insvossccucesscshistentntibiiciemid daaibiaaalald ated ices, 27

Ross v. Flandreau Santee Sioux Tribe, 809

P, UMD, FW Cer le BP Pccsinkeenicvshiinstteewsienesvees 23

Smith v. Kansas City Title & Trust Co., 255

UG. BD CEB R ED vikiseecoicessessomsanbsencutaticabannsenutanitias 21

vii

TABLE OF AUTHORITIES—Continued

Page

New Mexico v. Pueblo of Pojoaque, 30 Fed.

Appx. 768 (10th Cir. 2002) .........sccsccsesseseseeseeees 23

T. B. Harms Co. v. Eliscu, 339 F.2d 823 (2d

Cir. 1964), cert. denied, 381 U.S. 915

En iakseiscehaiioshatiisctndbingenpecebieniinsesietelbntatladiernaenntes 18,22

Tamiami Partners, Ltd. v. Miccosukee Tribe

of Indians of Fla., 999 F.2d 503 (11th

CR: FI ive vescecnssonosisscsesoninenvssesnensoennesssorenoveevenenes 4

Tamiami Partners, Ltd. v. Miccosukee Tribe

of Indians of Fla., 63 F.3d 1030 (11th ‘

CE, BIB cccscesezesncscenrsctontnrnsnepnonnapenesnenneesaseiese ™ +

Tamiami Partners, Ltd. v. Miccosukee Tribe

of Indians of Fla., 177 F.3d 1212 (11th

Cir. 1999), cert. denied, 529 U.S. 1018

IED esiciacntienncecinaninistenmsenenveencountbieninabeestnieionsy 4

The Monrosa v. Carbon Black Export, Inc.,

Se is SUE erittintticinieactsepbceieintensnnesnncone 27

Tom's Amusement Co. v. Cuthbertson, 816

F. Supp. 403 (W.D.N.C. 1993)......cccceseeseeereeeees 23

West 14th Street Commercial Corp. v. $

West 14th Owners Corp., 815 F.2d 188

(2d Cir.), cert. denied, 484 U.S. 850

CREED icensecscosssosunsnensessthandvecsetenicintonbssnsvcsonseoneneses 22

Willis v. Fordice, 850 F. Supp. 523 (S.D.

Miss. 1994), aff'd, 55 F.3d 633 (Sth Cir.

PO a iaiaiici tin satteseenrevsrctiiatncnsteneetervececkeoenapiesapensecs 23

Vili

TABLE OF AUTHORITIES—Continued

STATUTES:

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IN THE

Supreme Court of the Anited States

No. 02-491

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

Petitioner,

v.

TAMIAMI PARTNERS, LIMITED,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

BRIEF IN OPPOSITION

Respondent Tamiami Partners, Limited (“Tamiami”) re-

spectfully requests that the Court deny the petition for a writ

of certiorari seeking review of the decision of the United

States Court of Appeals for the Eleventh Circuit in this case.

INTRODUCTION

This marks petitioner’s second petition for certiorari in this

case, this time from the fourth opinion the Eleventh Circuit

Court of Appeals has rendered in the course of this decade-

long litigation. The petition should be denied, just as the first

one was, and this case brought to a long-overdue conclusion.

An understanding of the particular facts underlying this

dispute and the “lengthy procedural history of this case,” Pet.

App. 2a, is essential to a proper appreciation of what the

2

court below decided and what questions are properly before

this Court. Respondent Tamiami, along with its partner

Tamiami Development Corporation, entered into an agree-

ment with petitioner Miccosukee Tribe of Indians of Florida

(the “Tribe”) under which Tamiami would buy a parcel of

land, deed it to the Tribe, and build and operate a bingo

facility there, in exchange for a share of the facility’s reve-

nues. The parties’ management agreement was governed by

the Indian Gaming Regulation Act (“IGRA”), a federal

statute that preempts the field of Indian gaming. See 25

U.S.C. § 2701 et seq. IGRA’s detailed implementing regula-

tions similarly governed the procedures for issuing licenses

necessary for the operation of the bingo facility. See 25

C.F.R. §§ 501-577.15.

After Tamiami bought the land, deeded it to the Tribe, and

built the gaming facility, the Tribe twice attempted to pur-

chase Tamiami’s interest in the operation, first offering less

than, and then the same amount as, Tamiami’s initial invest-

ment. When Tamiami rejected those offers, the Tribe

declared Tamiami to be in breach of the parties’ management

agreement and purported to terminate the agreement; it

subsequently denied Tamiami the gaming licenses it needed

to operate Miccosukee Indian Bingo and evicted it from the

facility. Asserting that the Tribe had denied its applications

for gaming licenses in bad faith in order to gain control of the

bingo facility, Tamiami sued the Tribe in federal district

court to enforce the terms of the parties’ management agree-

ment, which required the parties to arbitrate their claims.

The Eleventh Circuit unanimously concluded that Tami-

ami’s claims presented a federal question because they arose

under IGRA and its implementing regulations. The Court of

Appeals denied rehearing en banc without recorded dissent.

The Tribe filed a petition for writ of certiorari, which this

Court denied. The Tribe sought rehearing from this Court’s

denial of certiorari, which was also denied. On remand, the

District Court enforced a $9.5 million arbitral award in favor

3

of Tamiami, plus prejudgment interest, in satisfaction of

Tamiami’s claims against the Tribe. The Eleventh Circuit

affirmed in an unpublished, per curiam opinion and again

unanimously denied rehearing en banc. The Tribe again

seeks certiorari review.

Nothing has changed since the Tribe’s last petition. The

Eleventh Circuit has not decided an “important question of

federal law” in a way that “conflicts with relevant decisions

of this Court” or of the courts of appeal. S. Ct. Rule 10. To

the contrary: in each of its decisions in this case, the Elev-

enth Circuit faithfully applied this Court’s precedents to the

specific facts and evolving claims before it. See id. (“A

petition for writ of certiorari is rarely granted when the

asserted error consists of *** the misapplication of a

properly stated rule of law.”). Nor did the Eleventh Circuit

precipitate a conflict with this Court’s case law or that of any

other circuit—much less err—in declining to recognize a

tribal court’s authority to “stay” the arbitration proceedings.

Nor does the case present an opportunity to resolve a ques-

tion this Court has declined to take up in the past—the extent

to which tribal courts may generally exercise jurisdiction

over non-members—because that issue simply is not pre-

sented on the facts of this case. The petition should be

denied and an end put to the “contentious litigation conduct”

of the Tribe. Pet. App. 6a.

COUNTERSTATEMENT

A. Statutory and Regulatory Background.

~ The Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C.

§ 2701 et seq., regulates gaming operations on Indian lands.

The Act declares that “the establishment of independent

Federal regulatory authority for gaming on Indian lands [and]

the establishment of Federal standards for gaming on Indian

~ lands * * * are necessary to meet Congressional concerns

regarding gaming and to protect such gaming as a means of

generating tribal revenue.” 25 U.S.C. § 2702(3).

4

In keeping with Congress’s intent to provide federal “stan-

dards or regulations for the conduct of gaming on Indian

lands,” 25 U.S.C. §2701(3), IGRA is a comprehensive

statute, designed to “expressly preempt the field” of law

governing Indian gaming. S. Rep. No. 446 at 6 (1988); see

also Casino Res. Corp. v. Harrah’s Entm't, Inc., 243 F.3d

435, 437 (8th Cir. 2001); Gaming Corp. of Am. v. Dorsey &

Whitney, 88 F.3d 536, 544 (8th Cir. 1996) (IGRA completely

preempts the field of Indian gaming); Tamiami Partners, Ltd.

v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030, 1033

(11th Cir. 1995) (“Tamiami IT’) (IGRA “provide[s] for

extensive federal oversight of all but the most rudimentary

forms of Indian gaming”).

The Act regulates two types of gaming activities. “Class

II” gaming—the type involved in this case—includes games

of chance like bingo. See 25 U.S.C. § 2703(7).' The Na-

tional Indian Gaming Commission, an entity created by

IGRA, monitors Class II gaming conducted on Indian lands

“on a continuing basis.” Jd. § 2706(b)(1); see id. § 2704

(establishing Commission and enumerating its powers).

Before a Tribe contracts with a gaming operator to manage a

Class II gaming facility, the Tribe must submit the contract to

the Chairman of the Gaming Commission for approval. Jd.

§ 2705(a)(4); see Missouri River Servs., Inc. v. Omaha Tribe

of Nebraska, 267 F.3d 848, 850 (8th Cir. 2001), cert. denied,

122 S. Ct. 1909 (2002). The Act conditions approval of

|

|

' IGRA does not apply to “Class I” gaming, which encompasses

“social games solely for prizes of minimal value or traditional

forms of Indian gaming.” 25 U.S.C. §§ 2703(6), 2710(a)(1); see

Diamond Game Enters., Inc. v. Reno, 230 F.3d 365, 367 (D.C. Cir.

2000). “Class III” gaming, which is regulated by IGRA, includes

all forms of gaming not covered by the first two designations,

including slot machines, parimutuel wagering, roulette, and

blackjack. See Diamond Game Enters., 230 F.3d at 367; 25 C.F.R.

§ 502.4(a)-(d).

ae ener em MMOLE rn Rina eee

5

Class II management contracts on satisfaction of a number of

detailed prerequisites. Jd. § 2711.2

The Act also governs a Tribe’s licensing of a Class IIT man-

agement contractor and its employees. Section 2710 requires

that a Tribe conduct background investigations of the “pri-

mary management officials and key employees of the gaming

enterprise” and maintain ongoing oversight of those officials

and employees. /d. § 2710(b)(2)(F)(i). Tribes are required to

institute procedures for licensing managers and key employ-

ees, and to notify the Commission of the results of all back-

ground investigations before issuing gaming licenses. Jd.

§ 2710(b)(2)(F) (ii).

Pursuant to IGRA’s mandate, see 25 U.S.C. § 2706(b)(10),

the Commission promulgated extensive regulations to

implement the Act. See 25 C.F.R. §§ 501-577.15. The

regulations include detailed specifications governing, among

other things, procedures for approval of management con-

tracts for Class II gaming enterprises, and procedures for

licensing Class II managers and employees. See 25 C.F.R.

§§ 531, 533, 535, 537, 556, 558.

B. Factual Background.

Because petitioner’s current arguments directly implicate

the Eleventh Circuit’s prior decisions in this lengthy case, the

factual and procedural background of this case warrant

detailed treatment. j

1. The Lawsuit. The Miccosukee Tribe of Indians of

Florida (the “Tribe”) is a federally-recognized Indian tribe.

In April 1989, the Tribe entered into a Management Agree-

2 To be approved by the Chairman, a proposed management

contract must include provisions for, among other things, “ade-

quate accounting procedures” and “verifiable financial reports,”

minimum guaranteed payments to the Tribe, and “grounds and

mechanisms for terminating [the] contract.” Jd. § 2711(b)(1), (6).

6

ment with Tamiami Development Corporation (“Tamiami

Development”) to build and operate a bingo facility. In

exchange for a fixed percentage of the facility’s revenues,

Tamiami Development agreed that it would purchase a parcel

of land outside the Miccosukee reservation, convey the real

estate to the United States in trust for the Tribe, and design,

construct, and manage the gaming facility.

Article 12 of the Agreement provided that “[a]ll disputes,

controversies and/or claims arising out of or relating to this

Agreement, or the breach thereof, shall be settled by arbitra-

tion.” Pet. App. 130a. Article 23 of the Agreement waived

the Tribe’s sovereign immunity from suit in the United States

District Court for the Southern District of Florida to enforce

the terms of the Management Agreement “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 (it) failure by [the Tribe] to abide by the terms of an

arbitration award.” /d. at 131a.

The Tribe submitted the Agreement to the Secretary of the

Interior for approval, as IGRA required. See 25 U.S.C.

§ 2709. Following the Secretary’s approval, and pursuant to

the Agreement, Tamiami Development purchased a large

parcel of land, deeded it to the United States in trust for the

Tribe, and built a bingo facility on the land. Tamiami

Development invested approximately $6.5 million in the land

and its improvements.

The Miccosukee bingo enterprise, called Miccosukee In-

dian Bingo, began operating in September 1990.3 In August

1991, again as IGRA required, the Tribe passed an ordinance

3 In January 1990, the parties effected a novation of the Man-

agement Agreement, substituting respondent Tamiami for Tami-

ami Development. Tamiami Development remained associated

with the enterprise as Tamiami’s general partner. The Secretary of

the Interior approved the novation, as IGRA requires.

7

establishing a Tribal Gaming Agency to oversee the Tribe’s

gaming enterprises, including Miccosukee Indian Bingo. See

25 U.S.C. §2710(b). The ordinance governed the back-

ground investigation, registration, and licensing of the

gaming enterprises’ managers and employees, and required

the Tribal Gaming Agency to notify the National Indian

Gaming Commission of the results of each background

investigation. Under the Tribal ordinance, the denial of a

license application resulted in termination of employment

and eviction from the Tribe’s gaming facility.

From September 1990—when Miccosukee Indian Bingo

opened its doors—through January 1992, the Tribe twice

attempted to buy out Tamiami’s interest in the facility. The

Tribe’s first offer was for two million dollars Jess than

Tamiami had invested in the project; the second was for the

same amount as Tamiami’s investment. Tamiami refused

both offers. See Pet. App. 134a-135a.

In late January 1992, after the rejection of its second offer

to buy out Tamiami, the Tribe notified Tamiami that the

Management Agreement would be terminated in thirty days,

purportedly because Tamiami had committed various un-

specified “ ‘violations of the letter and spirit of the Agree-

ment.’” Jd. at 135a (quoting termination letter). Invoking

the Management Agreement, Tamiami formally requested

arbitration of the dispute to determine the validity of the

Tribe’s notice of termination. The Tribe did not respond to

Tamiami’s request; instead, it filed suit in Miccosukee Tribal

Court against Tamiami, seeking, among other things, a

declaration that it had validly terminated the Management

Agreement and an order directing Tamiami to vacate the

bingo facility. See id. at 135a-136a.

The day before the Tribe was to terminate the Management

Agreement, Tamiami sued the Tribe in federal district court

for the Southern District of Florida, challenging the impend-

ing termination. Tamiami’s original complaint sought a

8

declaratory judgment that the Agreement required the parties

to settle disputes by arbitration and an injunction compelling

the Tribe to arbitrate the termination dispute and preventing

the Tribe from taking control of Miccosukee Indian Bingo

before arbitration had run its course. See Pet. App. 202a &

n.4. The District Court concluded that it had jurisdiction

over Tamiami’s claims but stayed them pending resolution of

the parallel tribal court proceeding, warning that it would lift

the stay if the Tribe attempted to impede Tamiami’s opera-

tions or to evict Tamiami from the facility. Jd. at 203a-204a.

After the District Court stayed Tamiami’s suit, the parties

proceeded to arbitration, as the Management Agreement

provided. An arbitration panel was convened in late 1992.

See Pet. App. 147a.

Several months after the District Court stayed Tamiami’s

action, the Tribal Gaming Agency denied a number of license

applications filed by Tamiami managers and other key

employees and evicted those employees from the Micco-

sukee Indian Bingo facility. Because the Tribe’s denial of

the license applications violated IGRA and its implementing

regulations and effectively precluded Tamiami from operat-

ing Miccosukee Indian Bingo, Tamiami moved in the District

Court to lift the stay and for injunctive relief to prohibit the

Gaming Agency from denying licenses to additional employ-

ees. See id. at 140a-141a.

The District Court concluded that the Tribe’s licensing

process was “arbitrary and capricious” but denied Tamiami’s

motion for injunctive relief, finding that IGRA did not

provide for contractors like Tamiami to directly challenge a

tribe’s licensing procedures, and that in any event, the

Tribe’s waiver of sovereign immunity in the Management

Agreement did not extend to federal suits challenging its

licensing procedures. Jd. at 142a. Tamiami took an inter-

locutory appeal to the Eleventh Circuit from the District

Court’s order.

9

While Tamiami’s appeal was pending, the Tribe again

resorted to self-help in its attempt to take over the bingo

facility. In April 1993, the Tribal Gaming Agency denied

gaming licenses to Tamiami, Tamiami Development, and

two of Tamiami’s principal officers, evicted Tamiami from

- the bingo facility, and appointed a conservator, who began

withholding Tamiami’s share of revenues from the gaming

operation. /d. at 144a. Tamiami again sought emergency

relief in the District Court from the Tribe’s tactics; this time,

the District Court granted Tamiami’s motion and ordered the

parties to return to the status quo that had existed before the

Tribe denied the licenses and appointed a conservator. Jd. at

144a-145a. The Tribe appealed the District Court’s ruling.

Its appeal was consolidated with Tamiami’s.

2. Tamiami I. The Eleventh Circuit concluded that the

District Court lacked jurisdiction over Tamiami’s complaint

because the complaint did not state a federal question. Pet.

App. 200a-213a (“Tamiami I’). Quoting this Court’s deci-

sions in Merrell Dow Pharmaceuticals Ic. v. Thompson,

478 U.S. 804, 808 (1986) and Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 9-10

(1983), the Eleventh Circuit explained that “the question

whether a claim ‘arises under’ federal law must be deter-

mined by reference to the ‘well-pleaded complaint.’” Pet.

App. 208a. Under the “well-pleaded complaint rule,” federal

question jurisdiction “ ‘exists only when a federal question is

presented on the face of the plaintiff's properly pleaded

complaint.’ ” Jd. (quoting Caterpillar Inc. v. Williams, 482

U.S. 386, 392 (1987)).

The Court of Appeals concluded that Tamiami’s complaint

on its face did not establish the existence of a federal ques-

tion, because the complaint, grounded on the Tribe’s attempt

to terminate its Management Agreement with Tamiami,

presented only “facts establishing a breach of contract

claim.” Pet. App. 209a. The Eleventh Circuit observed,

however, that “events had occurred” after the filing of

10

Tamiami’s complaint—namely, the Tribe’s subsequent

denial of Tamiami’s gaming licenses in violation of IGRA

and its regulations—“that suggested a basis for district court |

jurisdiction.” Jd. at 212a. Because those more recent “facts

* * * suggestfed] that the district court could have jurisdic-

tion,” the Court of Appeals remanded the case with directions

to dismiss the action unless either party filed a complaint

properly alleging federal jurisdiction. Jd. at 212a-213a.

3. The Amended Complaint. On remand, Tamiami

filed an amended complaint against the Tribe and several

individual members of the Tribe’s Business Council and

Gaming Agency. See Pet. App. 147a. The amended com-

plaint stated three basic claims: one claim that the Tribe had

breached the Management Agreement by evicting Tamiami

from Miccosukee Indian Bingo and taking control of the

enterprise, and two claims brought directly under IGRA

alleging that the Tribe and the individual defendants had

abused their licensing authority under the statute by refusing

to license Tamiami and its officials. Jd. at 153a-154a.

4. TheArbitration Award. Tamiami filed _ its

amended complaint in September 1993, shortly before the

arbitration panel was to hold its final hearing. See id. at

147a. One day after Tamiami filed its amended complaint,

the Tribe moved in tribal court to stay the arbitration pro-

ceedings, and the tribal court granted the motion. Jd. at 147a-

148a. Concluding that it derived its authority from the

Management Agreement—not from the tribal court—the

arbitration panel held a final hearing in which the Tribe’s

arbitrator chose not to participate. Jd. at 148a; see Ct. App.

J.A. Doc. 311, Ex. 5 (Order Declining To Postpone Final

Hearing) at 1 (“ ‘The authority of an arbitration tribunal is |

derived exclusively from the contract or document creating |

the panel.’ ”)(quoting Miccosukee Tribe Pre-Hearing Memo-

randum at 3).

|

——EE

11

In October 1993, a majority of the arbitration panel issued

a decision in favor of Tamiami, concluding that the Tribe had

violated the Management Agreement by denying the license

application of the Program Director of Miccosukee Indian

Bingo, a Tamiami official. Pet. App. 148a. The panel gave

the Tribe a choice: it could reinstate Tamiami’s Program

Director as manager of Miccosukee Indian Bingo, or it could

pay Tamiami $9.5 million. /d.4 The Tribe refused to recog-

nize the arbitrators’ decision and award.

5. The Second Motion to Dismiss. Meanwhile, back in

District Court, the Tribe and the individual defendants moved

to dismiss Tamiami’s amended complaint, again claiming

lack of jurisdiction and sovereign immunity. See id. at 149a.

The District Court granted the Tribe’s motion to dismiss,

finding Tamiami’s action barred on sovereign immunity

grounds. Id. at 150a. It concluded, however, that the indi-

vidual defendants were not entitled to claim immunity from

suit and denied their motion to dismiss. Jd. Tamiami ap-

pealed the District Court’s dismissal of its claims against the

Tribe, and the individual defendants appealed the District

Court’s order refusing to dismiss the claims against them.

6. TamiamilI. In a comprehensive and meticulous

opinion, the Eleventh Circuit affirmed the District Court in

part and reversed in part. Pet. App. 110a-166a (“Tamiami

Ir’). The Court of Appeals first addressed whether the

District Court had subject matter jurisdiction over the claims

4 The Tribe persists in characterizing the arbitration award as

having found in favor of Tamiami on only one claim alleging that

“an employee of [Miccosukee Indian Bingo] was improperly

terminated.” Pet. 5; see id. at 16. Its characterization of the award

is, to say the least, disingenuous; that “one employee” was the

director of the entire Miccosukee Indian Bingo program; his

reinstatement thus would have reestablished Tamiami as the

manager of Miccosukee Indian Bingo. See Ct. App. J.A. Doc. 213,

Ex. 1, at 11 (Management Agreement § 3.3.2).

12

in Tamiami’s amended complaint, and concluded that it did:

“each of Tamiami’s claims *** ‘ar[ose] under the

*** laws * * * of the United States.’” Jd. at 155a (quoting

28 U.S.C. § 1331).

Tamiami’s first claim—that the Tribe had breached its

Management Agreement—presented a federal question

because “(t]he Agreement incorporates—by operation of law

if not by reference—the provisions of IGRA and the [Gam-

ing Commission’s] regulations that govern [Miccosukee

Indian Bingo’s] operations,” including those relating to

licensing of Tamiami’s managers and employees. Pet. App.

155a-156a; see also id. n.59. As the Court of Appeals

explained, the “gravamen of Tamiami’s contract claim” was

that the Tribe failed to act in good faith and abused its

licensing authority when it denied Tamiami’s applications, in

violation of IGRA. /d. at 156a. Those claims, the court

concluded, are “claims arising under federal law; hence the

district court had subject matter jurisdiction over Tamiami’s

breach of contract claim against the Tribe.” Jd.

The Court of Appeals also held that the District Court had

subject matter jurisdiction over Tamiami’s second and third

claims, which were based directly on IGRA and its imple-

menting regulations. Jd.

Having found that the District Court had properly exercised

jurisdiction over Tamiami’s claims, the Eleventh Circuit next

examined whether the District Court had properly dismissed

them. The Eleventh Circuit agreed with the lower court that

sovereign immunity barred Tamiami’s breach-of-contract

claim against the Tribe; while the Tribe had waived its

immunity from suits to enforce the parties’ arbitration

agreement, its waiver did not embrace a contract claim

requesting money damages and injunctive relief. Jd. at 159a-

160a. The Court of Appeals noted, however, that Tamiami

did not seek an order compelling the Tribe to submit to

arbitration in its Amended Complaint, as it had in its original

=

aoe

13

complaint.5 Thus, Tamiami “remain[ed] free, of course, :.

seek enforcement in the district court of the October 6, 1° 3

arbitration award and to seek an order in the district court

compelling arbitration of any remaining contract dispute: . ’

Id. at 160a n.66 (emphasis added).

The Eleventh Circuit also concluded that Tamiami’s sec-

ond claim against the Tribe, brought directly under IGRA

and its implementing regulations, was properly dismissed,

because IGRA provided no private right of action against the

Tribe. Jd. at 162a. The Court of Appeals affirmed the

District Court’s conclusion that the individual defendants

were not entitled to immunity from suit, leaving for the

District Court the question whether Tamiami similarly was

barred from stating claims under IGRA against the individual

defendants. Jd. at 164a-166a & n.72.

7. The Second Amended Complaint. Back in the

District Court for a third time—and again at the Eleventh

Circuit’s direction, see Pet. App. 160a n.66—Tamiami filed a

Second Amended Complaint. Only three of its claims are

relevant at this point. The first claim requested “(a) a decla-

ration that all disputes between Tamiami and the Tribe that

arise out of or relate to the Agreement—including the

licensing dispute—are arbitrable; and (b) a declaration

against all of the defendants that the funds in the frozen

account belong solely to Tamiami.” Pet. App. 87a. The

complaint’s second and third claims requested judgments

compelling the Tribe to comply with the October 1993

arbitration award and to arbitrate other disputes related to the

Agreement. Jd.

The Tribe again moved to dismiss the second amended

complaint on grounds of sovereign immunity, lack of subject

5 Tamiami had not included a claim to compel arbitration in its

Amended Complaint because at the time the Amended Complaint

was filed, the parties were in arbitration. See supra at 10.

14

matter jurisdiction, and failure to state a claim. The District

Court denied the motions. The Tribe took another interlocu-

tory appeal.

8. Tamiami III. In June 1999, the Eleventh Circuit

issued its third decision. Pet. App. 74a-10la (“Tamiami

lif’). The Tribe argued on appeai that the first three counts

of Tamiami’s second amended complaint did not state a

federal question, because they “merely address contract and

arbitration disputes arising under the Agreement.” Jd. at 92a.

The Court of Appeals agreed with the Tribe, to a point:

“(t]he mere fact that a dispute concerns a contract or an

agreement to arbitrate, without more, does not raise a federal

question.” Jd. at 93a (citing Tamiami I, Pet. App. at 208a,

and Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Haydu,

637 F.2d 391, 395 (Sth Cir. Unit B Feb. 1981)). But the

court rejected the Tribe’s argument that Tamiami’s second

amended complaint failed to present a federal question:

[W]e find that the first three counts of Tamiami’s com-

plaint present more than a mere dispute concerning a con-

tract or an agreement to arbitrate. Each of these

. counts—at least in part—concerns the arbitration of Ta-

miami’s claims that the Tribe had an obligation under the

Agreement to process the gaming license applications of

Tamiami and its key employees in good faith, ynd that

the Tribe breached its obligations when it rejected these

license applications for the sole purpose of taking over

[Miccosukee Indian Bingo]. [Pet. App. 93a; see also id.

at 93a-94a n.10.]

The Zamiami III court observed that Tamiami had pre-

sented the same claims in its first amended complaint, “albeit

in the context of a direct breach of contract suit against the

Tribe” rather than a request to compel arbitration, and that

the Tamiami II panel had concluded those claims presented a

federal question “because the Agreement incorporated—by

operation of law if not by reference—the provisions of IGRA

~

15

and its associated regulations regarding licensing proce-

dures.” Pet. App. 94a (citing Tamiami II, Pet. App. at 155a).

Finding federal law “equally implicated when these claims

are presented in the arbitration context” as when presented as

part of a contract claim for damages, the Tamiami III court ~

held that it was required to “follow the Tamiami II panel’s

conciusion here.” Jd.®

Accordingly, because it found that the “‘first three counts of

Tamiami’s complaint state a federal question insofar as they

relate to the Tribe’s rejection of gaming license applica-

tions,” the Eleventh Circuit allowed Counts One(a), Two,

and Three of Tamiami’s second amended complaint—the

claims against the Tribe for enforcement of the arbitration

clause, for enforcement of the arbitration panel’s award, and

for further arbitration of disputes—to proceed. Jd. at 94a-

95a.

The Tribe sought certiorari of the Eleventh Circuit’s deci-

sion in Tamiami JII, asking:

. 1. Whether the federal courts have subject matter juris-

diction over a contract dispute between the management

contractor and the Miccosukee Tribe: (a) Does [IGRA]

provide management contractors with a private cause of

action against Indian Tribes; (b) Did the Eleventh Circuit

err in finding that the district court had subject matter ju-

risdiction over the arbitration alleged to have been con-

ducted pursuant to that contract, and should the Tribe be

subjected to litigation when it is clear both on the face of

the statute and in the legislative history that no _ private

cause of action exists under IGRA for management con-

© The court was also careful to explain that its decision did not

conflict with its prior ruling that Tamiami’s original complaint did

not state a federal question: it was the subsequent licensing

dispute, “not the earlier termination dispute[,] that provides a basis

for exercising federal question jurisdiction over Tamiami’s current

complaint.” Pet. App. 94a-95a n.12.

16

tractors? [Pet. for Cert., Miccosukee Tribe of Indians of

Florida v. Tamiami Partners, Ltd., No. 99-1013.]

Tamiami opposed the petition. It observed, among other

things, that the question whether IGRA created a private right

of action had been resolved in the Tribe’s favor by the

Eleventh Circuit in Tamiami II, and that the Court of Ap-

peals’s decision in Tamiami III that Tamiami’s second

amended complaint presented a viable federal question

comported with this Court’s teachings. Opp. 17-20, 21-26.

This Court denied certiorari and denied the Tribe’s subse-

quent petition for rehearing from the denial of certiorari. 529

U.S. 1018 (2000); 529 U.S. 1125 (2000).

On remand to the District Court, both Tamiami and the

Tribe moved for summary judgment. The District Court

entered judgment for Tamiami, requiring the Tribe to comply

with the arbitrators’ ruling by paying Tamiami $9.5 million,

plus prejudgment interest. Pet. App. 7a-45a.

Once again the Tribe appealed. And once again it raised

the arguments it had raised so many times before—that

IGRA provided no private right of action and that the Tribe

had not waived its immunity from suit. The Tribe also

claimed that the arbitral award was unenforceable for a

panoply of reasons, including that the tribal court had pur-

portedly “stayed” the final arbitration hearing before it went

forward, rendering the subsequent award void under Florida

law.

In addition, in one paragraph of its brief, the Tribe for the

first time on appeal introduced a new twist on its old subject-

matter-jurisdiction refrain: that “a federal court does not

have subject matter jurisdiction over an action to compel or

stay arbitration merely because the underlying claim raises a

federal question.” Appellant’s Br. 42. It drew inspiration for

this new argument from dicta in one footnote in the Eleventh

Circuit’s 1999 Tamiami III opinion, which opined without

17

elaboration that a court could “look through” arbitration

claims to the underlying dispute to discern whether federal-

question jurisdiction was available. See Pet. App. 94a n.11.

9. Tamiami IV. The Eleventh Circuit affirmed in an un-

published opinion. Pet. App. la-6a (“Tamiami IV”). It

rejected—again—the Tribe’s contention that the District

Court lacked jurisdiction to hear the case: “This Court has

twice ruled that the district court ha{d] jurisdiction to hear the

case because it implicates the Indian Gaming Regulatory

Act.” Id. at 3a (citing Tamiami II and Tamiami III). Finding

‘a0 changes to this case which would divest the district court

of jurisdiction,” the Court of Appeals held, “for the third

time, that the district court had jurisdiction to hear the case.”

Pet. App. 3a. t

The Court of Appeals made equally short work of the

Tribe’s other contentions, including the Tribe’s argument that

the arbitration award was void because the arbitration hearing

had been “stay[ed]” by the Miccosukee tribal court. Jd. at 4a.

The Eleventh Circuit observed—just as the Tribe itself had

previously, see supra at 10—that “the arbitration panel’s

authority came from the parties’ agreement, not from the

courts. Even Florida courts do not have the power to stay

arbitration unless they determine that no arbitration agree-

ment exists.” Jd. at 3a-4a (citing Fla. Stat. § 682.03 and

Mirson v. Corradino Group, Inc., 751 So. 2d 699 (Fla. 3d

Dist. Ct. App. 2000)). _

The Tribe petitioned for rehearing and rehearing en banc of

the Eleventh Circuit’s decision in Tamiami IV. The Court of

Appeals denied the petition without dissent. Pet. App. 246a-

247a.

REASONS FOR DENYING THE WRIT

Compared to the long procedural history of this case, the

merits of the Tribe’s petition warrant mercifully briefer

treatment. The first question presented in the Tribe’s_peti-

18

tion—to the extent it is not a rehash of its earlier unsuccess-

ful attempt to seek certiorari—asks the Court to grant certio-

rari to review dictum in a footnote in the Eleventh Circuit’s

1999 Tamiami III decision. The second question presented

in the Tribe’s petition asks the Court to take up issues that

are not present in this case and were not pressed or passed

upon below.

I. THIS COURT SHOULD DECLINE TO GRANT

REVIEW OF DICTUM IN A FOOTNOTE IN

TAMIAMI III.

1. From Tamiami I through Tamiami IV, the Eleventh

Circuit consistently applied the appropriate standard for

determining whether federal-question jurisdiction exists to

the particular facts of this complicated case. In each of its

decisions the Court of Appeals examined whether the com-

plaint on its face sought a remedy expressly granted by a

federal statute or, alternatively, asserted a claim requiring

construction of a federal statute. See Franchise Tax Bd., 463

U.S. at 9-10; 7. B. Harms Co. v. Eliscu, 339 F.2d 823, 828

(2d Cir. 1964) (Friendly, J.), cert. denied, 381 U.S. 915

(1965). The Court of Appeals concluded in Tamiami / that

Tamiami’s original complaint on its face did not present a

federal question, because it challenged only the Tribe’s

purported termination of the Management Agreement in

breach-of-contract terms. Pet. App. 208a (citing Merrell

Dow, 478 U.S. at 808, and Franchise Tax Board, 463 U.S. at

9-10). At the Eleventh Circuit’s invitation, Pet. App. 212a,

_ Tamiami remedied that deficiency in its subsequent com-

plaint, which the Court of Appeals found in Tamiami II

sufficiently implicated IGRA as to create a federal question.

Id. at 155a-156a.

When the next iteration of Tamiami’s complaint, based on

the same nucleus of facts and involving the same federal

statute, again came before the Court of Appeals in Tamiami

IIT, the Court of Appeals correctly concluded that Tamiami’s

iii)

19

request for an arbitral remedy did not alter the fact that the

complaint still sufficiently implicated IGRA as to pose a

federal question. Jd. at 94a-95a. And the Court of Appeals

reaffirmed that holding in Tamiami IV, concluding that the

District Court properly exercised jurisdiction over Tamiami’s

complaint “because it implicates the Indian Gaming Regula-

tory Act.” Id. at 3a. See Bruce H. Lien Co. v. Three Affili-

ated Tribes, 93 F.3d 1412, 1421-22 (8th Cir. 1996) (finding

federal-question jurisdiction over suit to compel arbitration

of management agreement between Indian tribe and non-

tribal operator, on grounds that “the entire association

between the parties (and their various disputes) arise under

IGRA, and * * * the management agreement at issue, once

approved, remains so until disapproved by [the National

Indian Gaming Commission]”).

The Tribe sought review of Tamiami IIIs jurisdictional

ruling in its first petition for certiorari, and review was

denied. 529 U.S. 1018. Now, after Tamiami IV, the Tribe

has returned with a second petition for certiorari, challenging

a footnote in Tamiami III. In that footnote, the Eleventh

Circuit opined that the Federal Arbitration Act permitted the

court to “ ‘look through’ Tamiami’s arbitration request at the

underlying licensing dispute in order to determine whether

Tamiami’s complaint states a federal question.” Pet. App.

94a n.11 (citing 9 U.S.C. § 4). Elevating that 1999 footnote

to the “holding{]” of what it has collectively dubbed the

“Tamiami decisions,” Pet. 9, the Tribe now claims that that

statement brings the Eleventh Circuit into sharp conflict with

some other courts of appeal, which—when confronted with

complaints which on their face seek only arbitration of

disputes with a federal flavor—have concluded that federal

question jurisdiction does not exist. /d. at 11-12.

That is meritless. To begin with, the 1999 footnote is dic-

tum. As we observed in our opposition to the Tribe’s first

petition for certiorari, the Eleventh Circuit reached the

conclusion it did in Tamiami III for the same reason it had in

20

Tamiami II: it concluded that Tamiami’s complaint on its

face presented a federal question because on the facts of this

particular case the complaint sufficiently implicated IGRA.

Pet. App. 94a-95a; see id. at 155a-156a (Tamiami II). To

conclude that the Eleventh Circuit based its jurisdictional

holding not on the complaint, but solely on unspecified

federal claims lurking “behind” the complaint—as the Tribe

now alleges—this Court would have to find that the Eleventh

Circuit in Tamiami II] abandoned, without acknowledgment,

the line of precedent on which it had previously consistently

relied, requiring courts to examine complaints on their face to

determine whether a federal question exists. The Court of

Appeals plainly did not depart from a proper application of

the subject-matter jurisdiction standard. The fact that the

Tribe did not in any way raise the Tamiami III footnote in its

prior petition for certiorari from that decision goes far to

undermine its present claim that the footnote actually repre-

sents the holding below.

The Tribe also argues that the footnote in the Eleventh

Circuit’s 1999 decision created a “circuit split” warranting

certiorari treatment. Pet. 12-13. That is wrong again. First,

as we have already observed, the footnote with which peti-

tioner now takes issue does not constitute the holding of the

Court of Appeals; it is dicta, and it does not suffice to create

a conflict with the holdings of other courts of appeal. See

Robert L. Stern, et al., Supreme Court Practice 225 (8th ed.

2002) (“{T]}here must be a real or ‘intolerable’ conflict on the

same matter of law or fact, not merely an inconsistency in

dicta”).

Even aside from that, the “split” the Tribe posits does not

exist. The 1997 Fourth Circuit case to which the Tribe points

to justify the “split,” Gibraltar, P.R., Inc. v. Otoki Group,

Inc., 104 F.3d 616 (4th Cir. 1997), did not find federal-

question jurisdiction based on disputes underlying a claim for

arbitration; it concluded that the disputes did not pose a

federal question at all. See Stern, supra, at 225 (splits should

21

not be predicated on “inconsistency in dicta”). The only

other case the Tribe identifies as contributing to the “split” is

a District of Puerto Rico case, Dean Witter Reynolds, Inc. v.

Sanchez Espada, 959 F. Supp. 73, 76 (D.P.R. 1997). This

decision obviously does not demonstrate a conflict among

the circuits. See S. Ct. Rule 10(a) (Court will consider

granting certiorari when “a United States court of appeals has

entered a decision in conflict with the decision of another

United States court of appeals”). And, perhaps most tell-

ingly, the Tribe identifies no cases relying on Tamiami III's

footnote “holding” to find subject-matter jurisdiction over a

complaint that on its face fails to state a federal question.

Nor, finally, should this Court leap at the chance to resolve

the purported “circuit split” when the Tribe below aired this

issue in just one paragraph in its most recent appeal brief.

The Court should decline to grant certiorari on what the Tribe

labels an “important question{]},” Pet. 8, until a case arrives in

which the parties have fully aired the issue, and the lower

court has actually rested its holding—not just dropped a

footnote—on it.

2. The next portion of the Tribe’s petition for certiorari is a

point-for-point rehash of its prior petition. Compare id. at

17-20 & n.7 with Pet. for Cert. (No. 99-1013) 13-15. In its

first petition, the Tribe challenged the Eleventh Circuit’s

decision finding subject-matter jurisdiction based on IGRA

on grounds that IGRA provided for no private right of action.

See Pet. for Cert. (No. 99-1013) 12-19. The Tribe now

argues again that “no federal question is present here because

the federal statute invoked, IGRA, does not give [Tamiami] a

private right of action against the Tribe.” Pet. 17; see id. at

18, 19, 20.

Petitioner’s arguments again should be rejected. Federal

question jurisdiction lies not just when “federal law creates

the cause of action,” but also when “the plaintiff's mght to

relief necessarily depends on resolution of a substantial

22

question of federal law.” Franchise Tax Board, 463 U.S. at

27-28. See also Smith v. Kansas City Title & Trust Co., 255

U.S. 180, 199 (1921) (“where it appears from the [complaint]

that the right to relief depends upon the construction or

application of the Constitution or laws of the United States,

and that such federal claim is not merely colorable, and rests

upon a reasonable foundation, the District Court has jurisdic-

tion”); Columbia Gas Trans. Corp. v. Drain, 191 F.3d 552,

559 (4th Cir. 1999) (complaint poses federal question if it

“turn[s] on some construction of federal law”) (quotation

omitted); Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974)

(noting that “[a]n action arises under the laws of the United

States if * * * it requires the construction of a federal stat-

ute”); 7. B. Harms, 339 F.2d at 828. The fact that the federal

statute itself may not provide a private right of action is thus

not determinative of jurisdiction. See, e.g., West 14th Street

Commercial Corp. v. 5 West 14th Owners Corp., 815 F.2d

188, 196 (2d Cir.) (although federal statute conferred no

private right of action, the “federal ingredient” in plaintiff's

complaint was “still * * * sufficiently substantial to confer _

[§ 1331] jurisdiction”), cert. denied, 484 U.S. 850 (1987).’ -

We noted in our opposition to the Tribe’s first petition that

other courts of appeal have concluded, like the Eleventh

Circuit, that claims requiring interpretation of IGRA and its

implementing regulations present a federal question. Opp.

1 See also Platzer v. Sloan-Kettering Inst. for Cancer Research,

787 F. Supp. 360, 366-367 (S.D.N.Y.) (finding subject-matter

jurisdiction over breach-of-contract claim requiring interpretation

of federal statute: “even where no private right of action exists for

the underlying federal issue, if the nature of the federal issue is

sufficiently substantial, subject matter jurisdiction may still exist”),

aff'd, 983 F.2d 1086 (Fed. Cir. 1992), cert. denied, 507 U.S. 1006

(1993); cf: Milan Express Co. v. Western Surety Co., 886 F.2d 783,

786-787 (6th Cir. 1989) (claim “ar[o]se[] under an act of Congress

regulating commerce” and created jurisdiction under 28 U.S.C.

§ 1337(a), although act created no private right of action).

23

(No. 99-1013) at 24-25 (citing Bruce H. Lien Co., 93 F.3d at

1416; Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1557

(10th Cir. 1997) (“IGRA is a federal statute, the interpreta-

tion of which presents a federal question suitable for deter-

mination by a federal court.”), cert. denied, 522 U.S. 807

(1997); and Cabazon Band of Mission Indians v. Wilson, 124

F.3d 1050, 1055-56 (9th Cir. 1997) (although “federal courts

do not have jurisdiction over run-of-the-mill contract claims

brought by Indian tribes,” claim based on tribal-state com-

pact, “a creation of federal law” with its scope prescribed by

IGRA, presented federal question), cert. denied, 524 US.

926 (1998)). Nothing has changed since the Tribe’s first

petition. See New Mexico v. Pueblo of Pojoaque, 30 Fed.

Appx. 768, 769 (10th Cir. 2002) (affirming district court’s

determination that IGRA _ provided a “foundation

for * * * federal question jurisdiction”). This Court should

8 See also Diamond Game Enters., Inc. v. Reno, 9 F. Supp. 2d

13, 16 (D.D.C. 1998) (controversy requiring “interpretation and

application of the IGRA” presented federal question), rev’d on

other grounds, 230 F.3d 365 (D.C. Cir. 2000); Abdo v. Fort

Randall Casino, 957 F. Supp. 1111, 1114 (D.S.D. 1997) (finding

federal question jurisdiction over contract dispute because the

dispute “involve[d] the manager of an IGRA regulated Indian

gaming casino” and an Indian tribe); Calvello v. Yankton Sioux

Tribe, 899 F. Supp. 431, 435 (D.S.D. 1995) (finding federal

question jurisdiction where parties disputed whether management

contract was governed by IGRA); Willis v. Fordice, 850 F. Supp.

523, 530 (S.D. Miss. 1994) (suit requiring court to “interpret the

provisions of the IGRA” presented federal question), aff'd, 55 F.3d

633 (Sth Cir. 1995); Tom’s Amusement Co. v. Cuthbertson, 816 F.

Supp. 403, 406 (W.D.N.C. 1993) (finding federal question

jurisdiction over a contract dispute between a supplier of gaming

machines and a management contractor, where the contracts were

governed by IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F.

Supp. 738, 741 (D.S.D. 1992) (finding federal question jurisdiction

where “primary focus” of litigation “relates to an interpretation of

[IGRA]”); Rita, Inc. v. Flandreau Santee Sioux Tribe, 798 F.

Supp. 586, 587-588 (D.S.D. 1992) (finding federal question

24

decline to grant certiorari on the same issue it correctly

rejected once before—whether the particular facts of this

case pose a federal question—when there has been no sea

change in the interim warranting a second look at the ques-

tion. ;

II. PETITIONER’S CHALLENGES TO THE

CONFIRMATION OF THE ARBITRAL

AWARD WERE EITHER NOT RAISED

BELOW OR NOT PRESENTED IN THE CASE.

A. The Question Whether Tamiami Was Obligated

To “Exhaust Tribal Remedies” Was Not Pressed

Or Passed Upon Below.

1. The Tribe repeatedly argued in the District Court and

the Eleventh Circuit that Florida law permitted the Micco-

sukee tribal court to stay arbitration, and that the arbitrators’

award, which issued after the tribal court had ordered a

“stay” of the arbitration proceedings, accordingly was void.

See Mot. for J. on the Pleadings 8-12; Appellant’s Br. 24-27.

Citing Fla. Stat. § 682.03, the Tribe argued on appeal that the

arbitral hearing “had no validity as a matter of Florida law,

because a court which orders arbitration can stay arbitration.”

Appellant’s Br. 24; see also id. at 26 (citing Fla. Stat.

§ 682.03); id. (citing Fla. Stat. § 682.03(4)); id. at 27 (argu-

ing that “the Tribal Court properly stayed the arbitration

pursuant to Fla. Stat. § 682.03(4)”). Section 682.03 of the

Florida statutes permits a court, on application, to stay an

arbitral proceeding if it concludes “that no agreement or

provision for arbitration subject to this law exists.” Fla. Stat.

§ 682.03(4).

In its responsive brief below, Tamiami explained that Sec-

tion 682.03 did not authorize the tribal court to stay the

jurisdiction over contract dispute between casino operator and

tribe, because the “action involves construing federal laws and the

[management] agreement between the parties”).

25 .

arbitration proceedings. Appellee’s Br. 28-36. That statute

applies only in situations where “no agreement [to arbitrate]

* * * exists,” Tamiami explained, and the Tribe had never

contended that no agreement to arbitrate existed.? Agreeing

with Tamiami, the Eleventh Circuit held that “Florida courts

do not have the power to stay arbitration unless they deter-

mine that no arbitration agreement exists.” Jd. at 4a (citing

Fla. Stat. § 682.03). And rejecting the Tribe’s contention

that the Miccosukee tribal court could stay the arbitration

because it had “ordered” the arbitration to commence, the

Court of Appeals further noted that the arbitrators’ authority

sprang not from the tribal court, but solely “from the parties’

agreement.” Pet. App. 3a-4a.

In its petition for certiorari, the Tribe has understandably

abandoned its argument that Florida law permitted the tribe

to stay the arbitration and rendered any subsequent award

void. It now argues something quite different than it did

below: that Tamiami should have been required to “exhaust

its tribal court remedies” before it was permitted to sue the

Tribe in federal court to enforce the arbitrators’ award. Pet.

24-25. Relying on National Farmers Union Insurance Cos.

v. Crow Tribe, 471 U.S. 845 (1985)—a case it did not cite

once below—the Tribe argues that the lower courts should

have invoked the judge-made “tribal exhaustion requirement”

and refrained from taking jurisdiction over Tamiami’s

9 Tamiami also observed in its appeal brief that Section 682.03

applies only to state courts, not tribal courts, under the definitional

statute governing that provision. /d. at 31 (citing Fla. Stat.

§ 682.18(1)). When the Florida legislature intends to include tribal

courts within the ambit of a statute, it makes that intent clear.

Appellee’s Br. 31 (citing Fla. Stat. § 741.315 (defining “courts of a

foreign state” to include tribal courts)); see also Becenti v. Vigil,

902 F.2d 777, 780 (10th Cir. 1990) (noting that “statutory lan-

guage referring to actions commenced in ‘State court’ does not

extend to * * * Tribal Court”).

26

claims until the tribal court had an opportunity to pass on its

own jurisdiction. Pet. 24-25.

This Court should decline to entertain an argument that was

neither pressed nor passed on below. See FW/PBS, Inc. v.

City of Dallas, 493 U.S. 215, 224 (1990) (“It is this Court's

practice to decline to review those issues neither pressed nor

passed upon below’). The Tribe never once made reference,

either in the District Court or on appeal, to a “tribal exhaus-

tion requirement.” Indeed, only in passing did the Tribe

advance the far more general notion that tribal courts in some

circumstances may exercise authority over the activities of

non-Indians on tribal lands. See Mot. for J. on the Pleadings

11 n.8; Appellant’s Br. 27; infra at 27.

2. In any event, even if the Tribe adequately raised the

issue below that it now presses here, the Eleventh Circuit’s

ruling was plainly right: the tribal court had no authority to

“stay” the arbitration proceedings. The Tribe itself argued in

a pre-hearing submission to the arbitral panel that the panel’s

authority was “derived exclusively from the contract or

document creating the panel.” See Ct. App. J.A. Doc. 311,

Ex. 5, at 1 (emphasis added). The Eleventh Circuit was

correct to reach the same conclusion. See McDonald v. City

of West Branch, 466 U.S. 284, 290 (1984). (“an arbitrator’s

authority derives solely from the contract”); Barnard v.

Commercial Carriers, Inc., 863 F.2d 694, 697 (10th Cir.

1989) (recognizing “well-settled rule” that “the jurisdiction

of arbitrators ‘to make awards is derived from the agreement

of submission’ ”) (quoting Continental Materials Corp. v.

. Gaddis Mining Co., 306 F.2d 952, 954 (10th Cir.1962));

Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59,

62 (7th Cir. 1986) (arbitrator’s authority is derived solely

from arbitration agreement). Because the authority of the

arbitration panel sprang exclusively from the parties’ Man-

_

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27

agement Agreement, the tribal court had no power to order

arbitration, much less to stay it.!°

The fact that the arbitrators were hearing a challenge in-

volving an Indian tribe does not change this result, as the

Eleventh Circuit correctly noted. Pet. App. 3a. The Tribe

agreed to arbitrate claims relating to or arising under the

Management Agreement, and it waived its immunity from

suit in federal district court to compel such arbitration or

enforce the terms of any award. See id. (citing C & L En-

ters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla.,

532 U.S. 411 (2001)).

C. The Question To What Extent A Tribal Court May

Adjudicate A Tribe’s Claims Against Non-Members

Is Not Presented In This Case.

Nor, finally, does this case present a “excellent opportu-

nity” to examine the extent to which a tribal court “has

jurisdiction to adjudicate tribal members’ claims against non-

members” arising out of consensual business transactions.

Pet. 27, 28. That question is simply not at issue in this case.

See The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180

(1959) (certiorari dismissed as improvidently granted when

question presented in petition turned out not to be presented

in case). The Tribe sued Tamiami in tribal court back when

this saga first began, raising claims related to Tamiami’s

purported breach of the Management Agreement. See Pet.

App. 136a. But in October 1993, the Tribe itself asked the

tribal court to dismiss its action against Tamiami. See Pet.

10 This Court has also observed that an exception to the tribal

“exhaustion” requirement exists when “an assertion of tribal

jurisdiction is ‘motivated by a desire to harass or is conducted in

bad faith.’ National Farmers Union Ins. Cos., 471 U.S. at 856-

857 (quoting Juidice v. Vail, 430 U.S. 327, 338 (1977)). That is

exactly what the arbitral panel concluded was going on in this

case. See Ct. App. J.A. Doc. 311, Ex. 5b 2-3.

sects 28

App. 148a-149a (Tamiami I). At no time since have there

been claims pending against Tamiami in a tribal court.

This Court should not grant certiorari to address what peti-

tioner claims is an “important question,” Pet. 29, when the

question has been extinct in this case for nine years. See

Rogers v. United States, 522 U.S. 252, 259 (1998) (dismiss-

ing writ of certiorari as improvidently granted where “the

record does not fairly present the question that we granted

certiorari to address”). This Court has more than once

declined to address “whether tribes may generally adjudicate

against nonmembers claims arising from on-reservation

transactions”—a question that presents unique and compli-

cated issues of sovereignty and jurisdiction. Nevada v.

Hicks, 533 U.S. 353, 358 n.2 (2001); see id. (noting that

Court “avoided the question” in National Farmers Union Ins.

Cos., 471 U.S. at 855-856); id. at 376 (Souter, J., concurring)

(agreeing with petitioners in Hicks that “[t]ribal adjudicatory

jurisdiction over non-members is ‘ill-defined’ ”). This Court

should again decline to take up that complex issue on these

tenuous facts, and wait instead for a case in which the issue is

ripe and was fully aired below, and which squarely presents

the question left open in Hicks.

* * *

As the court below explained in its most recent opinion,

“Tamiami was awarded $9.5 million in a valid, enforceable

arbitration ruling over eight years ago.” Pet. App. 6a. Since

that time, “the contentious litigation conduct of Micco-

sukee * * * has delayed payment of this award.” Jd. The

time to put a stop to that delay has come.

29

CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

JOSEPH M. MATTHEWS JOHN G. ROBERTS, JR.*

MARC COOPER CATHERINE E. STETSON

COLSON HICKS EIDSON, P.A. HOGAN & HARTSON L.L.P.

255 Aragon Avenue 555 Thirteenth Street, N.W.

Second Floor Washington, D.C. 20004

Coral Gables, Florida 33134 (202) 637-5810

(305) 476-7400

*Counsel of Record Counsel for Respondent