v. Miccosukee Tribe of Indians of Florida et al

Filing 59

ORDER denying as moot 41 Motion to Stay; denying as moot 45 Motion to Strike ; granting 17 Motion to Dismiss for Lack of Jurisdiction 1 Complaint; denying as moot 29 Motion for Hearing; Closing Case. Signed by Judge Patricia A. Seitz on 7/13/2011. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. lO-24524-CIV-SEITZ/SIMONTON
JOHN V. FURRY,
Plaintiff,

v.
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, et al.,
Defendants.
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ORDER GRANTING MOTION TO DISMISS AND CLOSING CASE
THIS CAUSE is before the Court on the Miccosukee Tribe'sl Motion to Dismiss
Plaintiffs Complaint [DE-17]. Plaintiff brings this action as Personal Representative of the
Estate of Tatiana Furry, who died in a car crash after being sold substantial amounts of alcohol
on Tribal property on multiple occasions such that Defendants knew that she was habitually
addicted to alcoho1. 2 Plaintiffs eight count Complaint alleges: (1) a violation of 18 U.S.c. §
1161 against all Defendants, except the Miccosukee Police Department; (2) a violation of Florida
Statute § 768.125 (Florida's Dram Shop Act) against all Defendants, except the Miccosukee
Police Department; (3) negligence against all Defendants, except the Miccosukee Police
Department; (4) negligence against the Miccosukee Police Department for its investigation of the
accident; (5) negligent hiring and retention against all Defendants; (6) negligent training and

lWhile titled the "Miccosukee Tribe's Motion," the Motion is brought on behalf of all
Defendants and Plaintiff does not assert that the other Defendants should be considered
separately for purposes of this Motion.
2Plaintiff filed a similar action is state court prior to filing this action. However,
Defendants would not accept service of process in the state court action. Subsequently, Plaintiff
filed this action.

supervision against all Defendants; (7) punitive damages; and (8) declaratory relief under 28
U.S.C. § 2201, et seq. Defendants seek to dismiss the Complaint based on tribal sovereign
immunity. Because Defendants' sovereign immunity has not be waived, by Congress or by
Defendants, Plaintiffs claims are barred by sovereign immunity and Defendants' Motion to
Dismiss must be granted.

I. Facts Alleged in the Complaint
Defendants own and operate the Miccosukee Resort & Gaming, a facility for gambling
and a resort located in Miami-Dade County. As part of the Miccosukee Resort & Gaming,
Defendants also own several bars and restaurants which sell or serve alcoholic beverages and
which are part of the Miccosukee Resort & Gaming. On the night of January 20-21,2009,
Tatiana Furry was at the Miccosukee Resort & Gaming. Defendants furnished Tatiana with a
substantial amount of alcoholic beverages, which she consumed on Defendants' premises.
Defendants furnished the alcohol despite knowing that Tatiana was habitually addicted to
alcoholic beverages. Defendants witnessed an obviously intoxicated Tatiana get in her car and
leave the premises. Shortly after leaving the Miccosukee Resort & Gaming and Tribal property,
Tatiana was involved in a head-on collision with another vehicle. Tatiana was killed as a result
of the collision.
Pursuant to 18 U.S.C. § 1161, Defendants applied for and became licensed to sell and
furnish alcohol by the State of Florida Department of Business and Professional Regulation,
Division of Alcoholic Beverages & Tobacco. 3 Section 1161 states:

3Plaintiff has filed a copy of the liquor license issued by Florida and Defendants'
application affidavit, and a blank application form. Both the Defendants' executed affidavit and
the application form contain language stating that "the place of business, if licensed, may be
2

The provisions of sections 1154, 1156, 3113, 3488, and 3669,4 ofthis 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. As a result of section 1161, Plaintiff asserts that Defendants have waived
their sovereign immunity and agreed to be governed by Florida law regulating the sale and
furnishing of alcoholic beverages. Plaintiff alleges jurisdiction is proper in this Court pursuant to
28 U.S.C. §§ 1331 and 2201, 18 U.S.C. § 1161, and 25 U.S.c. § 2701 and that the Court has
supplemental jurisdiction under 28 U.S.C. § 1367.

II. Analysis
Defendants seek to dismiss Plaintiffs claims because (1) tribal sovereign immunity bars
suit in federal court; (2) the Court lacks jurisdiction because there is no diversity or federal
question jurisdiction; and (3) the Complaint fails to state a cause of action under 28 U.S.C. §
1161. Plaintiff asserts that tribal sovereign immunity does not apply because there is no tradition
of tribal sovereign immunity regarding liquor regulation and because Defendants' liquor
transactions have a substantial impact beyond tribal property. Because neither Congress nor
Defendants have waived Defendants' sovereign immunity, Plaintiffs suit must be dismissed.
"As a matter of federal law, an Indian tribe is subject to suit only if Congress has
authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Oklahoma v.

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 the purposes of determining
compliance with the beverage and retail tobacco laws."
4These sections deal with prohibition in Indian country.
3

Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998). Because tribal immunity is a
matter of federal law, it is not subject to diminution by the States. Id. at 756. Tribal sovereign
immunity protects an Indian tribe from suit regardless of whether the suit arises from the tribe's
governmental activities or its commercial activities. Id. at 754-55. A Congressional abrogation
of tribal immunity occurs "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."

Florida v. Seminole Tribe of Florida, 181 F.3d 1237,1241-42 (lIth Cir. 1999) (citation omitted).
Furthermore, Congress may abrogate a tribe's sovereign immunity "only by using statutory
language that makes its intention unmistakably clear and ... any ambiguities in federal laws
implicating Indian rights must be resolved in the Indian's favor." Id. at 1242. Similarly, a tribe's
waiver of its sovereign immunity must be unequivocally expressed; a waiver will not be implied
based on tribal actions. Id. at 1243.
The Eleventh Circuit has strictly applied these principles when determining whether
sovereign immunity has been abrogated or waived. In Seminole, the Eleventh Circuit held that
the state of Florida could not sue the Seminole Tribe for conducting unauthorized gaming
operations in violation of the Indian Gaming Regulatory Act (IGRA) and state law. 5 Florida had
argued that Congress had abrogated sovereign immunity from suits brought by states that seek
relief for tribal violations of the IGRA and that by electing to engage in gaming under the IGRA
the Seminole Tribe had waived its immunity. Id. at 1241. The IGRA expressly permitted suit by
a state to enjoin gaming activity conducted in violation of a Tribal-State compact. Id. at 1242.

5Plaintiff argues that the Seminole case has been distinguished and that the statute was
too narrowly read. However, the cases Plaintiff relies on are not from the Eleventh Circuit. This
Court must follow Eleventh Circuit case law, unlike the district courts Plaintiff cites.
4

The Eleventh Circuit held that because there was no Tribal-State gaming compact between
Florida and the Seminole Tribe, the statutory waiver did not apply, even though the gaming
violated the IGRA. Id. The Court further held that the Seminole Tribe had not waived its
sovereign immunity by choosing to engage in gaming under the IGRA because its actions did not
constitute an express, unequivocal waiver. Id. at 1243. In Sanderlin v. Seminole Tribe of

Florida, 243 F.3d 1282, 1289 (1Ith Cir. 2001), the Eleventh Circuit held that when the Seminole
Tribe signed contracts for federal financial assistance, in which the Tribe agreed not to
discriminate in violation of federal law, the Tribe did not waive its sovereign immunity or
consent to be sued in federal court on the specific claim brought by the plaintiff for
discrimination in violation of the federal Rehabilitation Act. The Sanderlin Court also held that
Congress had not generally abrogated tribal sovereign immunity in the Rehabilitation Act when it
made "an agency of ... an Indian tribe ... which has an agreement with the designated State
agency to conduct a vocational rehabilitation program" subject to the Act. Id. at 1290.

A.

Congress Has Not Abrogated Sovereign Immunity to Permit Private Tort Suits
Arising From Violations ofState Liquor Laws

Plaintiff argues that when read in conjunction, 18 U.S.C. § 1161 and Rice v. Rehner, 463
U.S. 713 (1983) establish that there is no tribal sovereign immunity to private suits arising out of
violations of state liquor laws. Plaintiffs argument overlooks a few steps in the analysis. The
Supreme Court addressed § 1161 in Rehner. However, the issue in Rehner was whether a
federally licensed Indian trader was exempt from California's state liquor licensing requirements,
not whether an individual could bring a private suit against an Indian tribe for violation of a state
law. The Supreme Court looked at the history of sovereign immunity and liquor regulation in

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Indian country and found that there is no history of sovereign immunity in the area of liquor
regulation. Jd. at 722. Instead, history establishes a tradition of concurrent state and federal
jurisdiction over the use and distribution of alcoholic beverages in Indian country. Jd. at 724.
Further, the Court found that states have "an unquestionable interest in the liquor traffic that
occurs within [their] borders." Jd. Thus, the Court concluded that, under § 1161, "Congress has
delegated authority to the States as well as Indian tribes to regulate the use and distribution of
alcoholic beverages in Indian country." Jd. at 715. Consequently, the Supreme Court held that
application of California's licensing requirements did not "impair a right granted or reserved by
federal law." Jd. at 734.
Thus, Rehner addressed the narrow issue of whether an Indian trader had to comply with
state liquor licensing requirements. It did not address the issue before this Court - whether §
1161 has abrogated tribal sovereign immunity to permit private tort suits arising from the sale of
liquor to individuals. Because of the narrow issue resolved in Rehner, its guidance is limited in
resolving the issue before the Court. Nothing in Rehner suggests that § 1161 should be read to
have abrogated tribal sovereign immunity to private lawsuits arising from violations of state
dram shop laws.
While neither the Supreme Court nor any federal Circuit Courts appear to have addressed
the exact issue before this Court - whether § 1161 constitutes an abrogation of tribal sovereign
immunity for purposes of individual suits against tribes for injuries resulting from the violation
of state alcohol laws - several state courts have. In Filer v. Tohono 0 'Odham Nation Gaming

Enterprise, 129 P.3d 78, 83 (Ariz. Ct. App. 2006), the Arizona Court of Appeals, noting that a
"Congressional waiver of tribal immunity must be unequivocal and explicit," found that § 1161

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"does not even mention tribal immunity, much less waive it for private dram shop actions."
Similarly, in Foxworthy v. Puyallup Tribe ofIndians Association, 169 P.3d 53, 57 (Wash. Ct.
App. 2007), the Court of Appeals of Washington held that Rehner limited § 1161 's "waiver of
sovereign immunity to the states' regulation of alcohol licensing and distribution" and its narrow
holding "does not apply here to establish waiver of tribal sovereign immunity from private tort
lawsuits ... based on Dram Shop Act violations." Likewise, the Court of Appeals of Texas, in

Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 845, 854 (Tex. Ct. App. 1997), held that
tribal sovereign immunity protects Indian tribes from private suits for personal injuries resulting
from non-compliance with the Texas Dram Shop Act because private causes of action do not
constitute "enforcement" of an alcohol related law that falls within the waiver of tribal immunity
set out in Rehner.

Filer and Foxworthy applied the same principles for determining whether tribal sovereign
immunity has been abrogated that the Supreme Court used in Kiowa and the Eleventh Circuit set
out in Seminole and Sanderlin. Applying those principles here, there is nothing in § 1161 that
indicates that Congress intended to abrogate tribal sovereign immunity to allow suits by
individuals injured as a result of a tribe's sale or distribution of alcohol to the public. While the
statute requires that alcohol transactions be 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," the statute
does not expressly provide for any remedies, by a state or individual, if such transactions are not
in conformity with state laws. Thus, nothing in § 1161 's language definitively indicates "an
intent either to abolish Indian tribes' common law immunity or to subject tribes to suit under the
act." Seminole, 181 F.3d at 1242. Moreover, the Supreme Court has noted that "[t]here is a

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difference between the right to demand compliance with state laws and the means available to
enforce them." Kiowa, 523 U.S. at 755 (citing to Oklahoma Tax Commission v. Citizen Band

Potwatomi Indian Tribe o/Oklahoma, 498 U.S. 505, 514 (1991), in which the Court found that
while Oklahoma may tax cigarette sales by a Tribe's store to nonmemebers, the Tribe had
immunity from suit to collect any unpaid state taxes). See also Squaxin Island Tribe v. State

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Washington, 781 F.2d 715 (9th Cir. 1986) (holding that state had right to regulate and tax tribal
liquor sales to non-Indians but that tribe was immune from suit by state to collect taxes due).
Thus, while § 1161 requires compliance with State law, it does not expressly provide a means to
enforce State law.
Plaintiff urges the Court to follow Bittle v. Bahe, 192 P.3d 810 (Okla. 2008), in which the
Oklahoma Supreme Court found that § 1161 abrogated any tribal sovereign immunity from suit
in the area of alcoholic beverage laws, including private tort suits. Bittle, reading Rehner
broadly, found that Indians did not have the inherent attributes of sovereignty to regulate in the
area of alcoholic beverages and that it is only such sovereignty that gives rise to immunity from
private suit. Id at 819. The Bittle court further found that the "words 'laws of the State' in §
1161 are comprehensive and under Rice v. Rehner, include state authority over alcoholic
beverages whether it is legislative, executive, or adjudicative in nature." Id. at 823. Thus, the
Oklahoma court found that an individual could maintain a negligence action against an Indianowned dram shop. Id
The Bittle court's broad reading of Rehner and § 1161, however, does not comport with
the principles set out above, requiring that a Congressional abrogation of tribal immunity must
use definitive language in the statute to state "an intent either to abolish Indian tribes' common

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law immunity or to subject tribes to suit under the act." Seminole, 181 F.3d at 1242. Nor does it
comport with the principle that any abrogation of immunity must be clear and unequivocal. Id. at
1242-43. Consequently, this Court cannot adopt the reasoning in Bittle.
Plaintiff also relies on 25 U.S.C. § 1747(b)(2) and Florida Statute § 285.16(2) to support
his arguments that Defendants do not have tribal sovereign immunity from this suit. Section
1747(b)(2) states:
The laws of Florida relating to alcoholic beverages (chapters 561, 562, 563, 564, and 565,
Florida Statutes) ... shall have the same force and effect within said transferred lands as
they have elsewhere within the State and the State shall have jurisdiction over offenses
committed by or against Indians under said laws to the same extent the State has
jurisdiction over said offenses committed elsewhere within the State.
Plaintiff argues that § 1747 demonstrates the importance Congress places on applying Florida's
liquor laws on Miccosukee land. Plaintiff notes that this statute is lacking any mention of
"immunity." However, Plaintiff has it backwards. Under the principles set out above, a statute
need not mention "immunity" in order to preserve it; instead, a statute must clearly set out that it
is waiving immunity. Section 1747(b)(2) contains no such statement of waiver. Plaintiffs
reliance on Florida Statute § 285.16(2) is also misplaced. Section 285.16(2) states: "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." However, Florida cannot waive
tribal sovereign immunity; only Congress or the tribe itself can do that. See Kiowa, 523 U.S. at

756; Miccosukee Tribe of Indians v. Napoieoni, 890 So. 2d 1152, 1153 (Fla. 1st DCA 2004).
Furthermore, the Florida Supreme Court has interpreted § 285.16 to give Florida courts
jurisdiction over suits between Indians and other persons but not over a suit by other persons
against a tribe. Houghtaling v. Seminole Tribe of Florida, 611 So. 2d 1235,1238 (Fla. 1993).

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Thus, § 285.16 provides no support for Plaintiffs arguments.
Finally, Plaintiff also argues that he should be permitted to discover the nature of
Defendants' casino activities in order to determine whether sovereign immunity applies because
there is a "general reluctance to extend immunity to tribal business enterprises." However,
Plaintiff has provided no binding authority to support this proposition. Furthermore, as noted
above, the Supreme Court has stated that "Tribal sovereign immunity protects an Indian tribe
from suit regardless of whether the suit arises from the Tribe's governmental activities or its
commercial activities." Kiowa, 523 U.S. at 754-55.
While the Supreme Court has noted that tribal sovereign immunity is "founded upon an
anachronistic fiction" and has questioned the wisdom of continuing to extend it to off-reservation
commercial activities, it has deferred to Congress to draw any such limitations. Kiowa, 523 U.S.
at 758 (citation omitted). In questioning the wisdom of the doctrine's continued broad
application the Supreme Court has said that in today's interdependent economies, "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.

Such would

appear to be the case presently before this Court. However, thus far, Congress has not abrogated
tribal sovereign immunity to permit private lawsuits arising from violations of state dram shop
acts.

2.

Defendants Have Not Waived Their Sovereign Immunity

As an alternative to statutory abrogation of sovereign immunity, Plaintiff asserts that
Defendants waived their sovereign immunity by applying and paying for their Florida liquor
licenses. Plaintiff argues that by executing the affidavit attached to the license Defendants

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waived their sovereign immunity because they agreed to be bound by Florida law. The only
language to this effect in both the affidavit and application is language which states: "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 the
purposes of determining compliance with the beverage and retail tobacco laws." Under
Eleventh Circuit law, a tribe's waiver of its sovereign immunity must be unequivocally
expressed; a waiver will not be implied based on tribal actions. Seminole, 181 F.3d at 1243.
Nothing in the language of the affidavit and application constitutes an unequivocal, express
waiver of sovereign immunity. First, contrary to Plaintiffs assertion, neither the application nor
the affidavit contain a broad agreement to be bound by Florida law. Second, the language quoted
does not address private suits by individuals. Thus, nothing in this language even implies a
waiver of tribal immunity, let alone equivocally expresses a waiver. Moreover, the Eleventh
Circuit expressly rejected such an argument in Seminole, when it held that the Seminole Tribe
had not waived its sovereign immunity by electing to engage in gaming subject to regulation
under the IGRA. ld. at 1242-43. Consequently, Defendants have not waived their sovereign
immunity, either expressly or through their actions.
Accordingly, it is hereby
ORDERED that:
1. The Miccosukee Tribe's Motion to Dismiss Plaintiffs Complaint [DE-I7] is
GRANTED.
2. All pending motions not otherwise ruled upon are DENIED as moot.
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3. This case is CLOSED.
DONE and ORDERED in Miami, Florida, this

/3

te-day of July, 2011.

O~~

PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
cc: All counsel of record

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