John v. Furry v. Miccosukee Tribe of Indians of Florida , 685 F.3d 1224 ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13673 JUNE 29, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-24524-PAS
JOHN V. FURRY,
as personal representative of the Estate and survivors of Tatiana H. Furry,
Plaintiff - Appellant,
versus
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
d.b.a. Miccosukee Resort & Gaming, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 29, 2012)
Before MARCUS and BLACK, Circuit Judges, and EVANS,* District Judge.
*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
MARCUS, Circuit Judge:
The appeal presents us with tragic facts; it also yields a straightforward
legal resolution. John Furry, as personal representative of the estate of his
daughter Tatiana Furry, appeals the district court’s order granting the Miccosukee
Tribe’s1 motion to dismiss his complaint. Furry complained that the Miccosukee
Tribe violated 18 U.S.C. § 1161 and Florida’s dram shop law by knowingly
serving excessive amounts of alcohol to his daughter, who then got in her car,
drove off while intoxicated, and ended up in a fatal head-on collision with another
vehicle on a highway just outside Miami. The Miccosukee Tribe moved to
dismiss the complaint on the jurisdictional ground that it was immune from suit
under the doctrine of tribal sovereign immunity. In its order granting the tribal
defendants’ motion to dismiss, the district court determined that tribal sovereign
immunity barred it from entertaining the suit.
We agree. The Supreme Court has made clear that a suit against an Indian
tribe is barred unless the tribe has clearly waived its immunity or Congress has
expressly and unequivocally abrogated that immunity. Furry argues that both of
1
Like the district court, we use the term “Miccosukee Tribe” to refer collectively to the
full list of tribal defendants: Miccosukee Tribe of Indians of Florida; Miccosukee Tribe of
Indians of Florida, d.b.a. Miccosukee Resort & Gaming; Miccosukee Resort & Gaming;
Miccosukee Corporation; Miccosukee Indian Bingo; Miccosukee Indian Bingo & Gaming;
Miccosukee Enterprises; and Miccosukee Police Department.
2
these exceptions have been met here, but these arguments are ultimately without
merit. Accordingly, we affirm the judgment of the district court.
I.
The underlying facts of this wrongful death suit, as alleged, are both
straightforward and heartbreaking.2 On the night of January 20, 2009, and into the
early morning hours of January 21, Tatiana Furry was at the Miccosukee Resort &
Gaming, a gambling and resort facility in Miami-Dade County owned and
operated by the tribal defendants. Miccosukee Resort & Gaming also includes
several bars and restaurants that sell or serve alcoholic beverages on the premises.
Pursuant to 18 U.S.C. § 1161,3 the tribal defendants applied for and received a
2
Because this case was decided on a motion to dismiss, we take as true the facts as
alleged in Furry’s complaint and attached exhibits. See Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000) (per curiam).
3
Title 18 U.S.C. § 1161 provides in full:
The provisions of sections 1154, 1156, 3113, 3488, and 3669, of this title, shall
not apply within any area that is not Indian country, nor to any act or transaction
within any area of Indian country provided such act or transaction is in conformity
both with the laws of the State in which such act or transaction occurs and with an
ordinance duly adopted by the tribe having jurisdiction over such area of Indian
country, certified by the Secretary of the Interior, and published in the Federal
Register.
18 U.S.C. § 1161. The statute was enacted with the intent “to remove federal discrimination that
resulted from the imposition of liquor prohibition on Native Americans.” Rice v. Rehner, 463
U.S. 713, 733 (1983). All of the cross-referenced sections of Title 18 of the United States Code
involve federal prohibition in Indian country. In other words, by enacting § 1161 Congress in
large part removed federal prohibition in Indian country while “delegat[ing] a portion of its
authority to the tribes as well as to the States.” Rehner, 463 U.S. at 733.
3
license from the State of Florida Department of Business and Professional
Regulation, Division of Alcoholic Beverages & Tobacco to sell and furnish
alcohol.
According to the complaint, the tribal defendants and their employees
“furnished Tatiana [Furry] with a substantial amount of alcoholic beverages.”
They did so “despite knowing that she was habitually addicted to the use of any or
all alcoholic beverages.” The defendants knew of Ms. Furry’s habitual addiction
to alcohol because, prior to the night in question, they “had served Tatiana a
substantial amount of alcohol on multiple occasions on their premises.” At some
point in the early morning hours of January 21, employees of the defendants
witnessed Ms. Furry get in her car and leave the premises “in an obviously
intoxicated condition.”
A short time later, Ms. Furry was involved in a head-on collision with
another vehicle on U.S. Route 41 (the Tamiami Trail). Ms. Furry was killed as a
result of the collision. After the accident, Ms. Furry’s blood alcohol level was
measured at .32, four times Florida’s legal limit of .08.
On December 17, 2010, Ms. Furry’s father, John Furry, filed an eight-count
complaint in the United States District Court for the Southern District of Florida,
alleging violations of 18 U.S.C. § 1161 and Florida’s dram shop act, codified at
4
Fla. Stat. § 768.125,4 as well as various state law negligence claims. The
Miccosukee Tribe answered by filing a motion to dismiss, contending, among
other things, that the district court lacked subject matter jurisdiction due to tribal
sovereign immunity. After full briefing, the district court entered an order
dismissing Furry’s complaint based on a lack of subject matter jurisdiction
because the Miccosukee Tribe was immune from suit.
II.
“We review de novo the district court’s dismissal of a complaint for
sovereign immunity.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285
(11th Cir. 2001); accord Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1240-
41 (11th Cir. 1999); Fla. Paraplegic, Ass’n v. Miccosukee Tribe of Indians of Fla.,
166 F.3d 1126, 1128 (11th Cir. 1999). Tribal sovereign immunity is a
jurisdictional issue. See Sanderlin, 243 F.3d at 1285; Seminole Tribe, 181 F.3d at
1241.
4
Fla. Stat. § 768.125 provides in full:
A person who sells or furnishes alcoholic beverages to a person of lawful drinking
age shall not thereby become liable for injury or damage caused by or resulting
from the intoxication of such person, except that a person who willfully and
unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful
drinking age or who knowingly serves a person habitually addicted to the use of
any or all alcoholic beverages may become liable for injury or damage caused by
or resulting from the intoxication of such minor or person.
5
The fundamental starting point for the resolution of this appeal is that “[a]s
a matter of federal law, an Indian tribe is subject to suit only where Congress has
authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v.
Mfg. Techs., Inc., 523 U.S. 751, 754 (1998) (emphasis added); accord Okla. Tax
Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509
(1991) (“Indian tribes are domestic dependent nations that exercise inherent
sovereign authority over their members and territories. Suits against Indian tribes
are thus barred by sovereign immunity absent a clear waiver by the tribe or
congressional abrogation.” (internal quotation marks and citation omitted));
Sanderlin, 243 F.3d at 1285; Seminole Tribe, 181 F.3d at 1241.
Furry contends that both of these exceptions to tribal sovereign immunity
have been met here. He claims that Congress abrogated tribal sovereign immunity
in enacting 18 U.S.C. § 1161, which authorizes state regulation (including
licensing) of tribal liquor transactions. See Rice v. Rehner, 463 U.S. 713, 728-29
(1983). Furry also suggests that the Miccosukee Tribe has waived any claim to
tribal sovereign immunity by applying for a state liquor license, which involved
executing an affidavit agreeing that the licensed premises would be subject to
inspection by state authorities for the purpose of monitoring compliance with state
liquor laws. Furry adds that the Miccosukee Tribe’s affidavit and application for a
6
Florida liquor license amounted to a broad agreement to be bound by Florida law
in all respects, including subjecting the Miccosukee Tribe to private actions
sounding in tort.
We address each claim in turn, but first provide a brief overview of the
Supreme Court’s most recent decision addressing the scope of the tribal sovereign
immunity doctrine, because it sets forth the current breadth of the doctrine. The
Court in Kiowa Tribe began by recognizing that the doctrine of tribal immunity is
now settled law and that the Court’s precedents establish that an Indian tribe “is
subject to suit only where Congress has authorized the suit or the tribe has waived
its immunity.” 523 U.S. at 754 (citing Three Affiliated Tribes of the Fort Berthold
Reservation v. Wold Eng’g, 476 U.S. 877, 890 (1986); Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978); United States v. U.S. Fid. & Guar. Co., 309 U.S.
506, 512 (1940)). The Court further recognized that its past precedents did not
draw any distinctions based on whether the tribal activities occurred on or off of
the reservation, or whether the tribal activities were governmental or commercial
in nature. Id. at 754-55 (citing Potawatomi, 498 U.S. 505; Puyallup Tribe, Inc. v.
Dep’t of Game, 433 U.S. 165, 167 (1977)). The Court also noted that “the
immunity possessed by Indian tribes is not coextensive with that of the States” and
that “tribal immunity is a matter of federal law and is not subject to diminution by
7
the States.” Id. at 755-56.
But, as Furry rightly points out, the Supreme Court’s opinion does not stop
there. The Court also observed that the doctrine of tribal immunity “developed
almost by accident” from Justice Brandeis’s opinion for the Court in Turner v.
United States, 248 U.S. 354 (1919). Kiowa Tribe, 523 U.S. at 756. The Court
noted that Turner “simply does not stand for that proposition,” that “[i]t is, at best,
an assumption of immunity for the sake of argument, not a reasoned statement of
doctrine,” and that it “is but a slender reed for supporting the principle of tribal
sovereign immunity.” Id. at 756-57. The Court recognized, however, that
“Turner’s passing reference to immunity” later became “an explicit holding that
tribes had immunity from suit” and that “[l]ater cases, albeit with little analysis,
reiterated the doctrine.” Id. at 757 (citing Puyallup, 433 U.S. at 167, 172-173;
Santa Clara Pueblo, 436 U.S. at 58; Three Affiliated Tribes, 476 U.S. at 890-891;
Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782 (1991); Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 268 (1997)).
The Supreme Court further recognized the tension between its broad
historical recognition of tribal immunity and the much narrower category of cases
in which the doctrine still reflects sound policy today:
There are reasons to doubt the wisdom of perpetuating the doctrine.
8
At one time, the doctrine of tribal immunity from suit might have
been thought necessary to protect nascent tribal governments from
encroachments by States. In our interdependent and mobile society,
however, tribal immunity extends beyond what is needed to safeguard
tribal self-governance. This is evident when tribes take part in the
Nation’s commerce. Tribal enterprises now include ski resorts,
gambling, and sales of cigarettes to non-Indians. In this economic
context, immunity can harm those who are unaware that they are
dealing with a tribe, who do not know of tribal immunity, or who
have no choice in the matter, as in the case of tort victims.
Id. at 758 (citations omitted); see also id. at 766 (Stevens, J., dissenting)
(describing the rule that tribal sovereign immunity broadly applies as “unjust” and
“especially so with respect to tort victims who have no opportunity to negotiate for
a waiver of sovereign immunity”). But, notably, the Court declined to act on these
concerns, reasoning that although “[t]hese considerations might suggest a need to
abrogate tribal immunity, at least as an overarching rule,” it would instead “defer
to the role Congress may wish to exercise in this important judgment.” Id. at 758
(majority opinion). The Court recognized that Congress has the power to limit
tribal immunity and has previously legislated against the backdrop of the Court’s
decisions establishing that tribal immunity applies as a rule. Id. at 758-59. The
Court concluded that “Congress is in a position to weigh and accommodate the
competing policy concerns and reliance interests” and that “[t]he capacity of the
9
Legislative Branch to address the issue by comprehensive legislation counsels
some caution by us in this area.” Id. at 759.
We share these concerns about the broad scope of tribal sovereign
immunity. But at the end of the day, notwithstanding the Supreme Court’s
reservations about the tenuous origins of the tribal immunity doctrine and the
wisdom of the doctrine’s current breadth (both points that Furry emphasizes
heavily), the Court could not have been clearer about placing the ball in
Congress’s court going forward: “[W]e decline to revisit our case law and choose
to defer to Congress.” Id. at 760.
The legal question before us thus remains two-fold: (1) whether Congress
has abrogated tribal immunity or authorized the type of suit at issue; or (2)
whether the tribal defendants have waived their immunity.
A.
Furry claims that 18 U.S.C. § 1161, read in concert with the Supreme
Court’s decision in Rehner, establishes that Congress has subjected the tribes to
private tort actions, at least those arising out of the violation of state liquor laws.5
5
Furry also refers once to Fla. Stat. § 285.16(2), which provides: “The civil and criminal
laws of Florida shall obtain on all Indian reservations in this state and shall be enforced in the
same manner as elsewhere throughout the state.” But this statute cannot factor into the analysis.
Only Congress, and not a state legislature, can abrogate tribal immunity, because “tribal
immunity is a matter of federal law and is not subject to diminution by the States.” Kiowa Tribe,
523 U.S. at 756.
10
Title 18 U.S.C. § 1161 provides that other penal provisions of Title 18 of the
United States Code relating to federal prohibition do not apply in Indian country
so long as a liquor-related “act or transaction is in conformity both with the laws
of the State in which such act or transaction occurs and with an ordinance duly
adopted by the tribe having jurisdiction over such area of Indian country.” 18
U.S.C. § 1161. Essentially, Furry urges us to read the statutory phrase “in
conformity . . . with the laws of the State,” along with the fact that tribal liquor
transactions have long been heavily regulated and are not an area where the tribes
have been left to their own self-governance, in order to establish that the
Miccosukee Tribe is not immune from the instant suit.
Furry claims that Rehner supports this broad reading, in particular the
Supreme Court’s language that “there is no tradition of sovereign immunity that
favors the Indians” with respect to the regulation of liquor transactions and that a
“State has an unquestionable interest in the liquor traffic that occurs within its
borders.” 463 U.S. at 724-25. But accepting the composite of Furry’s argument
would require us to ignore the fact that the Supreme Court was speaking to a
wholly different issue. In Rehner, the Supreme Court interpreted § 1161 in the
context of whether state regulations were preempted by federal law. More
specifically, the precise question before the Court in Rehner was “whether the
11
State of California may require a federally licensed Indian trader, who operates a
general store on an Indian reservation, to obtain a state liquor license in order to
sell liquor for off-premises consumption.” Id. at 715. Rehner was not a case in
which an Indian tribe’s immunity from suit sounding in tort or, for that matter,
based on anything else was even at issue. See id. at 715.
The Supreme Court answered the question before it in the affirmative. The
Court explained that “[t]he role of tribal sovereignty in pre-emption analysis varies
in accordance with the particular notions of sovereignty that have developed from
historical traditions of tribal independence.” Id. at 719 (emphasis added) (internal
quotation marks omitted). The Court examined the history of liquor regulation in
Indian country and observed that there was no tradition of tribal self-governance
in liquor transactions; rather, “[t]he colonists regulated Indian liquor trading
before this Nation was formed, and Congress exercised its authority over these
transactions as early as 1802” and “imposed complete prohibition by 1832.” Id. at
722.
Having established that the tribal sale of liquor was not protected from
regulatory oversight by historical notions of tribal self-governance, the Court then
turned to the proper balance of regulatory authority between the federal
government and the States. The Court noted that there was a “historical tradition
12
of concurrent state and federal jurisdiction over the use and distribution of
alcoholic beverages in Indian country.” Id. at 724. Because of 18 U.S.C. § 1161,
the Court determined that the application of California’s liquor licensing scheme
to a tribal trader was not preempted by federal law. Id. at 725-26. The Court
observed that “[t]he legislative history of § 1161 indicates both that Congress
intended to remove federal prohibition on the sale and use of alcohol imposed on
Indians in 1832, and that Congress intended that state laws would apply of their
own force to govern tribal liquor transactions as long as the tribe itself approved
these transactions by enacting an ordinance.” Id. at 726. The Court thus read
Congress’s enactment of § 1161 as having been “intended to delegate a portion of
its authority to the tribes as well as to the States.” Id. at 733. Therefore, the
application of California’s liquor licensing regulations did not “impair a right
granted or reserved by federal law.” Id. at 734 (internal quotation marks omitted).
1.
Furry first suggests that Rehner completely removed all Indian liquor
transactions from the scope of the tribal immunity doctrine. He claims that “[i]f
there is no tradition of sovereignty in relation to liquor sales and distribution in
Indian Country, and if a Tribe engages in liquor transactions under the aegis of
state laws, which it has accepted and benefited from, then there is no claim to
13
sovereign immunity from a suit in which state liquor laws have been violated.”
Notably absent from Rehner, however, was any analysis of tribal immunity from
suit or any indication that § 1161 brought the area of liquor transactions in Indian
country wholly outside of the sphere of tribal immunity.
Indeed, to accept Furry’s argument on this point would be wholly
inconsistent with subsequent precedent both from the Supreme Court and this
Circuit. While § 1161 requires conformity with state law and tribal ordinance, it
says nothing at all about the means of enforcement if the tribe violates state law.
There is no dispute that substantive state law does govern the tribal sale of liquor,
and that a state can require an Indian tribe that wants to sell alcohol on the
reservation to first obtain a liquor license. Moreover -- although the issue is not
before us -- a state may presumably revoke an Indian tribe’s liquor license if the
tribe fails to conduct its liquor business in conformity with the laws of that state.
Yet the mere applicability of state law (and, therefore, the tribe’s lack of
self-governance in the area) is not sufficient to cast aside a tribe’s immunity from
suit, as the Supreme Court made plain in Kiowa Tribe:
To say substantive state laws apply to off-reservation conduct . . . is
not to say that a tribe no longer enjoys immunity from suit. In
Potawatomi, for example, we reaffirmed that while Oklahoma may
tax cigarette sales by a Tribe’s store to nonmembers, the Tribe enjoys
immunity from a suit to collect unpaid state taxes. There is a
14
difference between the right to demand compliance with state laws
and the means available to enforce them.
Kiowa Tribe, 523 U.S. at 755 (citations omitted). While § 1161 requires liquor
transactions in Indian country to be in conformity with state law (and tribal
ordinance), it does not expressly authorize private citizens to enforce a tribe’s
compliance with the state’s panoply of tort law by going to court.
And in this Circuit, we have repeatedly held that an Indian tribe enjoys
immunity from suit even in areas where the tribe’s conduct is regulated by statute.
Thus, for example, in Fla. Paraplegic, we held that the substantive provisions of
the Americans with Disabilities Act (“ADA”), including the requirement that
public accommodations be accessible to disabled individuals, apply to Indian
tribes, but that the Miccosukee Tribe was nonetheless immune from a private
enforcement action brought under the statute. 166 F.3d at 1128-35. As we plainly
stated, “a statute can apply to an entity without authorizing private enforcement
actions against that entity.” Id. at 1128. We explained, relying on the Supreme
Court’s decision in Kiowa Tribe:
[W]hether an Indian tribe is subject to a statute and whether the tribe
may be sued for violating the statute are two entirely different
questions. As the Supreme Court bluntly stated in Kiowa Tribe,
“[t]here is a difference between the right to demand compliance with
state laws and the means available to enforce them.” This principle,
15
which simply spells out the distinction between a right and a remedy,
applies with equal force to federal laws.
Id. at 1130 (second alteration in original) (citation omitted); see also id at 1134-35
(observing that the “juxtaposition of [the ADA’s] applicability to the Miccosukee
Tribe with the tribe’s sovereign immunity from suit . . . may be troubling,” but
“immunity doctrines inevitably carry within them the seeds of occasional
inequities,” and “Congress could enact a statute with substantive limitations on
Indian tribes without providing any means for most individuals protected by the
law to enforce their rights in federal court” (internal quotation marks and
alteration omitted)).
Similarly, in Seminole Tribe, a panel of this Court held that although an
Indian tribe’s gambling operations are indisputably governed by the Indian
Gaming Regulatory Act (“IGRA”), the Seminole Tribe was nonetheless immune
from a suit brought by the State of Florida seeking a declaration that the tribe was
engaged in unlawful gambling in violation of the federal statute and Florida law
and an injunction preventing such gambling in the absence of a Tribal-State
compact. 181 F.3d at 1239. Absent clear congressional abrogation or a tribe’s
own express waiver, we held that tribal immunity must apply, notwithstanding the
State’s concern that the holding would “effectively nullify its rights under IGRA
16
by leaving it with no forum in which it can prevent the Tribe from violating IGRA
with impunity.” Id. at 1243. As our precedents make clear, a tribe may retain its
immunity from suit even where its conduct is governed by state or federal law.
Accordingly, we have no basis to conclude that Indian tribes’ liquor transactions,
solely by virtue of being subject to state and federal regulation, fall entirely
outside the scope of the tribal immunity doctrine.
2.
Furry also claims that even if tribal immunity applies as a general matter, by
enacting 18 U.S.C. § 1161 Congress has abrogated the tribes’ immunity against
private dram shop actions. But as we have made plain, “Congress may abrogate a
sovereign’s immunity only by using statutory language that makes its intention
unmistakably clear.” Seminole Tribe, 181 F.3d at 1242; accord Sanderlin, 243
F.3d at 1289; Fla. Paraplegic, 166 F.3d at 1131 (“Congress abrogates tribal
immunity only where the definitive language of the statute itself states an intent
either to abolish Indian tribes’ common law immunity or to subject tribes to suit
under the act.”). Moreover, “statutes are to be construed liberally in favor of the
Indians, with ambiguous provisions interpreted to their benefit.” Sanderlin, 243
F.3d at 1285 (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985)); see also Fla. Paraplegic,166 F.3d at 1130 (“Although Indian tribes are
17
domestic dependent nations whose sovereignty is not absolute but may be limited
by Congress, federal encroachment upon Indian tribes’ natural rights is a serious
undertaking, and we should not assume lightly that Congress intended to restrict
Indian sovereignty through a piece of legislation.” (internal quotation marks and
citation omitted)).
Congressional enactment of 18 U.S.C. § 1161 hardly demonstrates an
“unmistakably clear” intention to subject the Indian tribes to private tort suits. See
Sanderlin, 243 F.3d at 1289; Seminole Tribe, 181 F.3d at 1242. As the Supreme
Court explained in Rehner, Congress did two things in enacting 18 U.S.C. § 1161:
it “remove[d] federal discrimination that resulted from the imposition of liquor
prohibition on Native Americans,” and “delegate[d] a portion of its authority to
the tribes as well as to the States, so as to fill the void that would be created by the
absence of the discriminatory federal prohibition.” 463 U.S. at 733. Moreover,
our case law is clear that congressional abrogation must come from “the definitive
language of the statute itself” and that “legislative history and inferences from
general statutory language are insufficient.” Fla. Paraplegic, 166 F.3d at 1131
(internal quotation marks omitted). Nowhere in the text of § 1161 is there any
mention of tribal immunity from suit, much less an express and unequivocal
abrogation of tribal immunity with respect to private lawsuits alleging that an
18
Indian tribe has violated state tort law. Congress well understood how to
expressly subject an Indian tribe to private suit in state or federal court; it simply
did not do so by enacting 18 U.S.C. § 1161. Cf. Santa Clara Pueblo, 436 U.S. at
58-59 (holding that Congress did not abrogate tribal immunity from suit in the
Indian Civil Rights Act of 1968, aside from the sole remedial provision expressly
providing that “the ‘privilege of the writ of habeas corpus’ is made ‘available to
any person, in a court of the United States, to test the legality of his detention by
order of an Indian tribe’” (quoting 25 U.S.C. § 1303)); Fla. Paraplegic, 166 F.3d at
1133 (observing that a provision of the ADA expressly waiving states’ Eleventh
Amendment immunity for actions brought under the statute “demonstrates
Congress’s full understanding of the need to express unambiguously its intent to
abrogate sovereign immunity where it wishes its legislation to have that effect”).6
Although the federal courts have not weighed in on the precise issue of
whether § 1161 abrogates tribal immunity from private tort suits based on state
dram shop acts or other tort law, the parties point us to several state appellate
courts that have addressed this precise issue. Most of these courts have concluded
6
That provision of the ADA, 42 U.S.C. § 12202, has since been held unconstitutional
by the Supreme Court. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
The Supreme Court recognized, however, that 42 U.S.C. § 12202 is an example of Congress
“unequivocally intend[ing]” to “abrogate the States’ Eleventh Amendment immunity.” Id. at
363.
19
that § 1161 does not authorize the kind of suit Furry attempts to commence here,
because neither the text of § 1161 nor the Supreme Court’s decision in Rehner
come close to demonstrating that Congress has clearly authorized private suits
against an Indian tribe based on violations of a state’s liquor laws. See, e.g.,
Foxworthy v. Puyallup Tribe of Indians Ass’n, 169 P.3d 53, 56-57 (Wash. Ct.
App. 2007) (“Foxworthy disregards Rehner’s narrow holding, which by its own
language limits waiver of tribal sovereignty to the states’ regulation of alcohol
licensing and distribution. Rehner does not expand such waiver to private
lawsuits.”); Filer v. Tohono O’Odham Nation Gaming Enter., 129 P.3d 78, 83
(Ariz. Ct. App. 2006) (“A Congressional waiver of tribal immunity must be
unequivocal and explicit. Section 1161, 18 U.S.C., however, does not even
mention tribal immunity, much less waive it for private dram shop actions.”
(citations omitted)); Holguin v. Ysleta del Sur Pueblo, 954 S.W.2d 843, 845 (Tex.
App. 1997) (“[D]espite the public policy function served by private dram shop
suits, tribal sovereign immunity protects the Tribe from private suits for personal
injuries resulting from non-compliance with the [Texas Dram Shop] Act.”).7
7
Furry instead relies on the one state court decision that has gone the other way, Bittle v.
Bahe, 192 P.3d 810 (Okla. 2008), where the Oklahoma Supreme Court, over strong dissent, held
that § 1161, read together with Rehner, abrogated tribal immunity from any suit based on state
laws related to alcohol, including private tort suits. See id. at 823. Notwithstanding the
admonition of the United States Supreme Court in Kiowa Tribe that “[t]here is a difference
between the right to demand compliance with state laws and the means available to enforce
20
Furry’s claim that the combination of 18 U.S.C. § 1161 and Rehner constitutes an
express abrogation of the Miccosukee Tribe’s sovereign immunity from private
tort suits is therefore ultimately without merit.
B.
Also without merit is Furry’s claim that the Miccosukee Tribe waived its
immunity from private tort actions by applying for a state liquor license. As we
have recognized on many occasions, “[t]he Supreme Court has made it plain that
waivers of tribal sovereign immunity cannot be implied on the basis of a tribe’s
actions, but must be unequivocally expressed.” Sanderlin, 243 F.3d at 1286(quoting Seminole Tribe, 181 F.3d at 1243); see Santa Clara Pueblo, 436 U.S. at
58 (noting that waivers of sovereign immunity “cannot be implied but must be
unequivocally expressed” (quoting United States v. Testan, 424 U.S. 392, 399
(1976))). Thus, Furry plainly must establish that the Miccosukee Tribe “expressly
and unmistakably waived its right to sovereign immunity from suit.” Sanderlin,
them,” 523 U.S. at 755, the Oklahoma Supreme Court determined that private tort actions to
enforce compliance with state liquor laws were permissible because the “state law remedy to
recover money damages furthers the legitimate objectives of the state’s liquor laws,” Bittle, 192
P.3d at 823. Although the Oklahoma Supreme Court’s analysis does not bind this Court in any
way, we also find it unpersuasive and inconsistent with precedents from this Court and the
United States Supreme Court, which have established that congressional abrogation of tribal
immunity must be express and unequivocal. Cf. Bittle, 192 P.3d at 829, 833 (Kauger, J.,
dissenting) (observing that the majority opinion “ignores controlling precedents” and that “[i]t
takes a great leap of jurisprudence to determine that Rice v. Rehner is dispositive of the issue of
sovereign immunity as it relates to private dram shop actions”).
21
243 F.3d at 1286.
He has not done so. Furry claims that the Miccosukee Tribe’s application
for a liquor license amounted to a broad promise to be bound by Florida law and
an “acceptance of state law as the quid pro quo for its alcoholic beverage
operation.” The first problem with this argument is that there has not been any
such broad promise to abide by Florida law. Rather, the sum and substance of the
record evidence filed by Furry as an exhibit below to support this claim is an
affidavit submitted with the Miccosukee Tribe’s liquor license application in
which applicants must swear or affirm that they “agree that the place of business,
if licensed, may be inspected and searched during business hours or at any time
business is being conducted on the premises without a search warrant by Officers
of the Division of Alcoholic Beverages and Tobacco, the Sheriff, his Deputies,
and Police Officers for purposes of determining compliance with the beverage and
cigarette laws.”
At no point in the liquor license application or the accompanying affidavit
did the Miccosukee Tribe waive its immunity or consent to be subject to suit of
any kind, much less to a private dram shop action. At most, the Miccosukee
Tribe’s application means that the tribe has acquiesced to the authority of state
regulators by allowing law enforcement to inspect and search its premises. And
22
beyond the affidavit and application, Furry has provided us with no other language
from the Miccosukee Tribe purporting to amount to an express waiver. Moreover,
we are also barred by precedent from implying or inferring waiver from the
Miccosukee Tribe’s conduct, such as the tribe electing to serve alcoholic
beverages with the benefit of a state liquor license. See Seminole Tribe, 181 F.3d
at 1243. Furry’s claim of waiver must fail because there is an insurmountable gap
between an affidavit agreeing that a licensed premises is subject to inspection by
state authorities and an unequivocally expressed waiver of immunity from all
private tort actions.
Our decisions in Sanderlin and Seminole Tribe are instructive, and further
support this straightforward conclusion. In Sanderlin, we affirmed the district
court’s dismissal of a former tribal employee’s disability discrimination suit,
rejecting the employee’s argument that the Seminole Tribe waived its immunity
from lawsuits brought under the Rehabilitation Act by accepting federal funds
under contracts that included a general promise to comply with the Rehabilitation
Act. 243 F.3d at 1286. We held that “[t]he contracts for federal financial
assistance in which [Chief] Billie promised that the Tribe would not discriminate
in violation of federal civil rights laws merely convey[ed] a promise not to
discriminate” and that they “in no way constitute[d] an express and unequivocal
23
waiver of sovereign immunity.” Id. at 1289.
And in Seminole Tribe, a panel of this Court affirmed the district court’s
dismissal of Florida’s lawsuit seeking declaratory and injunctive relief preventing
the Seminole Tribe from engaging in gaming operations not authorized by the
IGRA. 181 F.3d at 1239. In Seminole Tribe, Florida argued that “the Tribe, by
electing to engage in gaming subject to regulation under IGRA, waived its own
immunity from this suit to compel compliance” with the IGRA. Id. at 1242. The
panel rejected this argument, reasoning that to accept it would be “patently
inconsistent” with the rule that “waivers of tribal sovereign immunity cannot be
implied on the basis of a tribe’s actions, but must be unequivocally expressed.”
Id. at 1243. We also noted that a contrary conclusion would be “no more than a
misuse of the word ‘express,’” defined as “[m]anifested by direct and appropriate
language, as distinguished from that which is inferred from conduct.” Id.
(alteration in original) (quoting Black’s Law Dictionary 580 (6th ed. 1990)).
In this case, the analogous situation to Sanderlin would have been if the
Miccosukee Tribe had specifically promised to comply with Florida’s dram shop
statute in the process of applying for its liquor license. It is clear, however, that
the Miccosukee Tribe never made any such promise merely by agreeing that its
premises would be subject to inspection by state authorities. Moreover, our
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holding in Sanderlin suggests that even if the Miccosukee Tribe had made a
specific promise to comply with Florida’s dram shop law, this could not, without
more, constitute an express and unequivocal waiver of its immunity from suit.
Similarly, based on the reasoning underlying our holding in Seminole Tribe that
waiver may not be inferred or implied from a tribe’s conduct, Furry’s argument
that the Miccosukee Tribe has waived its immunity by applying for a state liquor
license and electing to serve alcohol with the benefit of that license fails to
demonstrate an unequivocal and express waiver of tribal immunity. In short, the
Miccosukee Tribe has not waived its sovereign immunity in this case.
C.
Finally, Furry suggests that we should treat the aggregation of his arguments
as amounting to more than the sum of their parts. Even if the individual
abrogation or waiver arguments are not enough to carry the day on their own,
Furry suggests that we should piece together the various components he relies
upon -- 18 U.S.C. § 1161, Rice v. Rehner, the Supreme Court’s language in Kiowa
Tribe expressing reservations about the tribal immunity doctrine, and the
Miccosukee Tribe’s application for a liquor license -- and conclude that, taken
together, these components are enough to subject the Miccosukee Tribe to private
suit.
25
While we are sympathetic to the real equities cutting in Furry’s favor, we
cannot reconcile this claim with binding case precedent. Cobbling together a new
exception to tribal immunity would directly conflict with the Supreme Court’s
straightforward doctrinal statement, repeatedly reiterated in the holdings of this
Circuit, that an Indian tribe is subject to suit in state or federal court “only where
Congress has authorized the suit or the tribe has waived its immunity.” Kiowa
Tribe, 523 U.S. at 754 (emphasis added); Sanderlin, 243 F.3d at 1285; Seminole
Tribe, 181 F.3d at 1241; Fla. Paraplegic, 166 F.3d at 1130-31. We are also
unpersuaded by the suggestion that the two theories can be mixed or added
together, taking a little bit of abrogation and a little bit of waiver to create a
wholesale exception to the doctrine of tribal immunity. Abrogation and waiver are
two entirely different concepts that involve two entirely different actors: Congress
in the case of abrogation, and the Indian tribe itself in the case of waiver. Cf.
Seminole Tribe, 181 F.3d at 1241 & n.5 (noting that although some courts have
“muddled the distinctions” between abrogation and waiver by using the blanket
term “waiver” for both, the two “are actually quite different and will be considered
separately”). Abrogation requires a congressional determination that, as a matter
of federal law, Indian tribes shall be subject to certain kinds of suit. Waiver, on
the other hand, occurs when the tribe itself consents to the jurisdiction of the state
26
or federal courts, through, for example, a provision in a commercial contract. See,
e.g., Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030,
1048 (11th Cir. 1995). Moreover, both abrogation and waiver require the use of
express and unmistakably clear language by either Congress or the tribe, see
Sanderlin, 243 F.3d at 1286, 1289; Seminole Tribe, 181 F.3d at 1241-43; Fla.
Paraplegic, 166 F.3d at 1130-31, which renders implausible the very idea of partial
abrogation or partial waiver. The long and short of it is that we are hard pressed to
see how Congress could half-abrogate a tribe’s immunity or how an Indian tribe
could half-consent to suit, much less how the two could be added together yielding
something more. In short, this claim too provides us with no sound basis to
conclude that the Miccosukee Tribe is subject to private suit sounding in tort.
III.
The doctrine of tribal sovereign immunity may well be anachronistic and
overbroad in its application, especially when applied to shield from suit even the
most sophisticated enterprises of Indian tribes, including commercial activities --
such as the sale of alcohol -- that have obvious and substantial impacts on non-
tribal parties. But it remains the law of the land until Congress or the Supreme
Court tells us otherwise. Accordingly, the district court’s dismissal of Furry’s
complaint for lack of subject matter jurisdiction must be, and is, AFFIRMED.
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