TAMIAMI PARTNERS, LTD. by and through TAMIAMI DEVELOPMENT CORP., its general partner,
Plaintiff-Appellee,

                                                      v.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; Billy Cypress; Jasper Nelson; Jimmie Bert; Max
Billie; Henry Bert; and Dexter Lehtinen, Defendants-Appellants.

                                                No. 96-5262.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                                June 7, 1999.

Appeals from the United States District Court for the Southern District of Florida. (No. 92-489-CV-SH),
Shelby Highsmith, Judge.

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

        TJOFLAT, Circuit Judge:

        This case, which is making its third appearance before our court,1 is the result of a protracted

contractual dispute between the Miccosukee Tribe of Indians of Florida ("the Tribe") and Tamiami Partners,

Ltd. ("Tamiami"). The most recent incarnation of this dispute is Tamiami's second amended complaint

against the Tribe as well as against the Tribe's attorney and several officers of the Tribe's Business Council

and Gaming Agency (collectively, the "individual defendants"). In the district court, all of the defendants

filed motions to dismiss Tamiami's second amended complaint on the following grounds: lack of subject

matter jurisdiction, sovereign immunity, and failure to state a claim. The defendants bring this interlocutory

appeal from the district court's order denying their motions. Because of this procedural posture, we consider

only the issues of subject matter jurisdiction and sovereign immunity. With one minor exception, see infra


         1
            The dispute between these parties has not been confined solely to federal court. See, e.g.,
Cypress v. Tamiami Partners, Ltd., 662 So.2d 1292 (Fla. 3d DCA 1995) (quashing discovery order on
basis of sovereign immunity); Mandel v. Miccosukee Tribal Gaming Agency, No. CV 93-18, 22 Indian L.
Rep. 6148 (Miccosukee Tribal Ct. Jan. 31, 1994) (affirming denial of gaming license applications by
Gaming Agency); In re Conservatorship for Miccosukee Indian Bingo, No. CV 93-11 (Miccosukee
Tribal Ct. Apr. 13, 1993) (enforcing Gaming Agency order appointing conservator); Miccosukee Tribe of
Indians v. Tamiami Partners, Ltd., No. CV 92-07 (Miccosukee Tribal Ct. July 16, 1992) (directing parties
to arbitrate their disputes).
part III.B., we affirm the district court's order on these issues with respect to the Tribe. As to the individual

defendants, however, we hold that the doctrine of Ex parte Young does not allow Tamiami to defeat their

claims of sovereign immunity.

                                                       I.

                                                       A.

        Because our prior opinions discuss the facts and initial procedural history of this case in detail, we

provide only a summary here.2 On April 7, 1989, the Tribe entered into a Management and Economic

Development Agreement (the "Agreement") with Tamiami Development Corporation ("TDC") to operate a

bingo gaming facility on Tribal lands under a gaming scheme authorized by the Indian Gaming Regulatory

Act ("IGRA"), 25 U.S.C. §§ 2701-2721 (1994), and a 1985 tribal ordinance. The Agreement had a

seven-year term and was renewable by TDC, at its option, for an additional three years. In exchange for forty

percent of the facility's monthly "net revenues," TDC agreed to purchase a parcel of real estate (outside the

Miccosukee reservation), convey the parcel to the United States in trust for the Tribe, and then design,

construct, and manage a bingo facility on that parcel.

        Two provisions of the Agreement are particularly relevant here. Article 12 provides that "[a]ll

disputes, controversies and/or claims arising out of or relating to this Agreement, or the breach thereof, shall

be settled by arbitration...." Under Article 23 of the Agreement, the Tribe waived its common-law immunity

from a suit brought by TDC either to compel arbitration under Article 12 or to enforce an arbitration award.

Article 23 states:

        The [Tribe] waives its sovereign immunity from suit as expressly provided in this Article. The
        United States District Court for the Southern District of Florida, shall have jurisdiction over the
        parties hereto in order to enforce the terms hereof specifically, upon one or both of the following
        events (i) [the Tribe] fails to participate in an arbitration proceeding invoked as provided in Article


          2
           Most of the facts we recite in part I are drawn from the record in this case and from our prior
opinions. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030 (11th Cir.1995);
Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 999 F.2d 503 (11th Cir.1993). We occasionally
draw upon the allegations in Tamiami's second amended complaint, which we accept as true in reviewing
the defendants' motions to dismiss. See Jackson v. Okaloosa County, 21 F.3d 1531, 1534 (11th
Cir.1994).
            12, or (ii) failure by [the Tribe] to abide by the terms of an arbitration award.... This waiver of
            sovereign immunity shall not become effective until [TDC] has given written notice to the
            Miccosukee Tribal Business Council, detailing the nature of the complaint and the [Tribe] shall have
            failed after 30 days following such notice to cure such complaint.

            After the Agreement was approved by a designee of the Secretary of the Interior, TDC purchased the

parcel and began to construct the bingo facility. On January 23, 1990, with the Secretary's approval, the

parties effected a novation of the Agreement in order to substitute Tamiami—a Florida limited partnership

of which TDC was the general partner—for TDC. Thereafter, Tamiami completed the facility and began

operating it as Miccosukee Indian Bingo ("MIB") in September 1990. On August 9, 1991, the Tribe adopted

an ordinance establishing a Tribal Gaming Agency to oversee the registration and licensing of the managers

and key employees of its gaming enterprises, including the facility managed by Tamiami. Under this

ordinance, the denial of a license would result in termination of employment and eviction from the gaming

facility.

            During the first sixteen months of MIB's operation, the Tribe made two separate offers to purchase

Tamiami's interest in the facility. The highest offer was for an amount equal to Tamiami's initial investment

in the facility. Tamiami rejected both offers. On January 28, 1992, the Tribe notified Tamiami by letter that

the Agreement had been "terminated by action of the [Tribe's] Business Council ... effective 30 days from

the date hereof, because of repeated and flagrant violations of the letter and spirit of that Agreement." On

February 25, pursuant to Article 12 of the Agreement, Tamiami formally demanded arbitration "to determine

the validity of the Tribe's purported notice of termination." The Tribe responded by filing a "Statement of

Claim" in Miccosukee Tribal Court to obtain a declaration that the Agreement had been terminated. On

February 27, Tamiami initiated this lawsuit by filing its original verified complaint against the Tribe in the

United States District Court for the Southern District of Florida. This complaint sought a declaratory

judgment that Article 12 of the Agreement bound the Tribe to settle all disputes by arbitration, as well as an

injunction compelling the Tribe to arbitrate the termination dispute and preventing it from taking control of

MIB pending the completion of such arbitration.
        On March 5, 1992, the district court issued its first "omnibus order" in the case. As a threshold

matter, the court determined that it had subject matter jurisdiction because the case presented the question of

Tribal Court power over a non-Indian. It stayed further proceedings in the case, however, pending either the

parties' exhaustion of their remedies in the Tribal Court or any action by the Tribe to evict or otherwise

impede Tamiami from operating MIB. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 788

F.Supp. 566 (S.D.Fla.1992).

        On July 16, 1992, the Tribal Court issued a ruling that directed the parties to initiate arbitration

proceedings in accordance with the Agreement. During that same month, the Tribe denied seventeen license

applications that Tamiami employees had submitted to the Tribal Gaming Agency. Tamiami responded by

filing a motion asking the district court to enjoin the Tribe from exercising self-help in order to terminate the

Agreement. Tamiami alleged in its motion that the Tribe, under the pretext of issuing legitimate license

denials, was engaging in self-help in order to prevent Tamiami from operating MIB and thus effectively

terminate the Agreement. In its second omnibus order, issued on August 19, the district court addressed this

motion. The court found that the Tribe's licensing process was arbitrary and capricious under the

Administrative Procedure Act. Nevertheless, the court concluded that Congress, in enacting IGRA, had made

no provision for suits by management contractors (such as Tamiami) to challenge a Tribe's licensing

procedures. Moreover, it held that the Tribe's narrow waiver of sovereign immunity did not constitute

consent to federal court suits challenging its licensing process. For these reasons, the court denied Tamiami's

motion. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 803 F.Supp. 401 (S.D.Fla.1992).

        On August 21, Tamiami moved the district court for leave to file a "supplemental" complaint and for

a preliminary injunction that would compel arbitration of the licensing dispute and prevent the Tribe from

using the licensing process to frustrate Tamiami's operation of MIB. The court denied this motion on

September 15. Thereafter, Tamiami took interlocutory appeals from the district court's August 19 and

September 15 orders.
        An arbitration panel eventually was convened on December 17, 1992. On April 13, 1993, while the

interlocutory appeals and arbitration were pending, the Tribe took several steps to oust Tamiami from MIB.

The Tribal Gaming Agency denied licenses to Tamiami, TDC, and two of TDC's principal officers—Cye

Mandel and John Sisto. The Gaming Agency also appointed a conservator to take control of MIB and to

operate the facility; the conservator was instructed to pay the Tribe its share of MIB's net revenues and to

deposit Tamiami's forty percent share into a trust account at Jefferson National Bank in Miami, Florida. The

Tribal Court ratified the conservator's appointment the same day. The Tribal police then forced Mandel and

Sisto to leave the MIB premises, the MIB accountant surrendered MIB's financial records to the Tribe, and

the Tribe began the process of obtaining control of MIB's bank accounts.

        Tamiami immediately returned to the district court seeking an injunction to prevent the Tribe from

exercising self-help. In its third omnibus order, issued on April 15, the district court found that the Tribal

Court had exceeded its jurisdiction in ratifying the conservator's appointment. The court also concluded that

the Tribe had exceeded its sovereign powers in rejecting the license applications of Tamiami, TDC, Mandel,

and Sisto. In its view, these rejections were simply an attempt to circumvent the ongoing arbitration and to

terminate the Agreement. Accordingly, the court declared that all of the Tribe's April 13 actions were void

and ordered the parties to return to the status quo ante of April 12. The court certified its order under 28

U.S.C. § 1292(b) (1994) to allow the Tribe to appeal. We permitted the Tribe's appeal and consolidated it

with Tamiami's two pending interlocutory appeals.

         On August 16, 1993, a panel of this court decided these three appeals. See Tamiami Partners, Ltd.

v. Miccosukee Tribe of Indians, 999 F.2d 503 (11th Cir.1993) [hereinafter Tamiami I ]. Addressing the subject

matter jurisdiction of the district court, the panel applied the "well-pleaded complaint rule"3 and held that

Tamiami's complaint failed to state a federal question within the meaning of 28 U.S.C. § 1331 (1994). See

Tamiami I, 999 F.2d at 506-07. The panel recognized that "[t]he right to be protected against an unlawful


         3
           Under the well-pleaded complaint rule, a case does not raise an issue of federal law "unless a
federal question is presented on the face of the plaintiff's complaint." Kemp v. International Bus. Machs.
Corp., 109 F.3d 708, 712 (11th Cir.1997).
exercise of tribal court judicial power is ... a claim arising under federal law," id. at 507, but stated that

Tamiami's complaint failed to assert such a right. Instead, the complaint merely invoked section 1331 and

then "present[ed] facts establishing a breach of contract claim." Id. Accordingly, the panel reversed the

district court's third omnibus order and remanded the case with the following instructions:

        Because we are now aware of facts which suggest that the district court could have [subject matter]
        jurisdiction if the case arose today, we remand the case to the district court with directions that the
        district court dismiss this action unless one of the present parties files a complaint or other pleading
        which properly alleges jurisdiction.

Id. at 508.

                                                      B.

        On remand, Tamiami accepted the panel's invitation by filing an amended complaint on September

14, 1993. This complaint essentially presented three claims.4 First, Tamiami asserted a breach of contract

claim against the Tribe. It alleged that the Tribe, operating through its Business Council and Gaming Agency,

breached the Agreement by taking control of MIB and ousting Tamiami from the premises. Such actions,

according to Tamiami, violated IGRA and exceeded the sovereign powers accorded to the Tribe under federal

law. As a remedy for these violations, Tamiami sought an injunction restoring its position as the MIB

operator and requiring the Tribe to pay Tamiami its forty percent share of MIB's net revenues.

        In its second claim, Tamiami contended that the Tribe, acting through its Gaming Agency, abused

the licensing authority conferred by IGRA and its associated regulations by refusing to license Tamiami,

TDC, Mandel, and Sisto. Tamiami therefore sought an order declaring that such abuses had occurred and

enjoining the Gaming Agency to issue the requested licenses. Tamiami's third claim, which also pertained

to the licensing authority conferred by IGRA and its regulations, was brought against individual members

of the Tribe's Business Council and Gaming Agency. According to Tamiami, because these individuals were


          4
            This court gleaned these three claims from a fair reading of the complaint. See Tamiami
Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1046-47 (11th Cir.1995). In addition to
these claims, Tamiami further contended that the Miccosukee Tribal Court and its judges had exceeded
their jurisdiction and sought to have the Tribal Court's actions of April 13, 1993, declared invalid.
Because this court later declared these claims against the Tribal Court and its judges to be moot, see id. at
1044, 1046 n. 57, we do not discuss them further here.
executing the Tribe's plan to assume control of MIB by refusing to license Tamiami's key personnel, they

were subject to suit under IGRA in the district court. As to these defendants, Tamiami sought an injunction

ordering them to grant the licenses at issue, restore Tamiami to the MIB premises, and turn over its share of

the net revenues.

        Meanwhile, the arbitration between the parties was proceeding and the arbitration panel had

scheduled a final hearing for September 23. On September 15, the Tribe filed a motion in Tribal Court

requesting a stay of arbitration proceedings. The court granted the stay on the following day. On September

21, the arbitration panel concluded that it derived its authority from Article 12 of the Agreement and that the

Miccosukee Tribal Court had no jurisdiction to enforce that article. The panel therefore proceeded to hold

its final hearing as scheduled, albeit without the participation of the Tribe or its chosen arbitrator. On October

6, a majority of the panel issued a decision in which it found that the Tribe had violated the Agreement by

terminating Tamiami's MIB program director after denying his application for a gaming license. The panel

awarded Tamiami fees and costs, and gave the Tribe a choice between reinstating Tamiami as manager of

MIB or paying Tamiami $9.5 million in satisfaction of the Tribe's obligations under the Agreement.

        On October 12, 1993, the Tribe again restructured the management of MIB by terminating the

conservator. At the Tribe's direction, the conservator withdrew Tamiami's share of net revenues from the trust

account at Jefferson National Bank; he received those funds in the form of a cashier's check for

approximately $1,566,000 that was made payable to "Dexter Lehtinen, trustee." Lehtinen, the Tribe's legal

counsel, then endorsed the check over to the Tribe for deposit in a separate account at Jefferson National

Bank entitled "Miccosukee Indian Bingo Reserve Account." The district court froze this separate account

on October 27.

        Also on October 12, the defendants filed motions to dismiss Tamiami's amended complaint on the

grounds of lack of subject matter jurisdiction, sovereign immunity, and failure to state a claim. The district

court ruled on these motions on February 28, 1994. See Tamiami Partners, Ltd. v. Miccosukee Tribe of

Indians, 898 F.Supp. 1549 (S.D.Fla.1994). The court began by holding that Tamiami's amended complaint
raised a federal question—"namely, whether these defendants exceeded tribal powers in their actions towards

[Tamiami]." Id. at 1560. Turning to the issue of sovereign immunity, the court concluded that Tamiami's

claims against the Tribe and its Business Council and Gaming Agency were barred because the Tribe had not

clearly waived its immunity and Congress had not abrogated it. Accordingly, the court dismissed these

claims with prejudice. With regard to the individual defendants, however, the court—applying the doctrine

of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)—held that the Tribe's sovereign

immunity did not shield the individual defendants given Tamiami's allegation that they had "acted beyond

the authority that the Tribe is capable of bestowing upon them under federal laws defining the sovereign

powers of Indian tribes." Id. at 1561-62. The court therefore denied the individual defendants' motions to

dismiss.

           The individual defendants appealed the portion of the district court's order rejecting their claims of

tribal sovereign immunity. After the district court entered final judgment on Tamiami's claims against the

Tribe and its associated entities, Tamiami appealed that judgment. A second panel of this court consolidated

these appeals and issued an opinion on August 16, 1995. See Tamiami Partners, Ltd. v. Miccosukee Tribe

of Indians, 63 F.3d 1030 (11th Cir.1995) [hereinafter Tamiami II ].

           As to the subject matter jurisdiction of the district court, the panel held that each of Tamiami's three

claims presented a federal question. Tamiami's claim that the Tribe had breached the Agreement, according

to the panel, was essentially a claim that the Tribe—acting through its Gaming Agency—had violated IGRA

and its associated regulations (which the Agreement incorporated) by failing to process Tamiami's license

applications in good faith with the sole purpose of taking over MIB. Thus, Tamiami's arguments that IGRA

imposed an obligation to process license applications in good faith and that the Tribe violated this obligation

presented a federal question. The panel also concluded that Tamiami's second and third claims, which were

based directly on IGRA and the regulations, presented federal questions. See id. at 1047.

           Turning to the issues of sovereign immunity and failure to state a claim, the panel examined

Tamiami's first and second claims against the Tribe. It agreed with the district court's conclusion that
Tamiami's first claim was barred by the Tribe's sovereign immunity, which Congress had not abrogated and

the Tribe had not clearly waived. Although Article 23 of the Agreement did provide a waiver for the limited

purposes of compelling the Tribe to arbitrate or enforcing an arbitration award, the panel found that

Tamiami's first claim—"simply a breach of contract claim for which it seeks money damages and injunctive

relief," id. at 1048—did not seek the type of relief contemplated by that waiver. In footnote 66, which

appeared at the end of its discussion of Tamiami's first claim, the panel offered the following comment:

        Tamiami's original complaint sought an order compelling the Tribe to submit to arbitration; its
        amended complaint, however, does not seek that relief. Tamiami remains free, of course, to seek
        enforcement in the district court of the October 6, 1993 arbitration award and to seek an order in the
        district court compelling arbitration of any remaining contract disputes.

Id. at 1048 n. 66. As to Tamiami's second claim alleging violations of IGRA and the regulations, however,

the panel did not agree that it was barred by the Tribe's sovereign immunity. Rather, it "dispose[d] of that

claim on the separate ground that, because IGRA provides Tamiami no right of action, Tamiami has failed

to state a claim for relief." Id. at 1048.

        Finally, the panel considered Tamiami's claim against the individual defendants. It found that the

district court's denial of the individual defendants' motions to dismiss on the ground of Tribal sovereign

immunity was immediately appealable under the Cohen collateral order doctrine. See id. at 1050; see also

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

The panel then proceeded to affirm the district court's ruling, under the doctrine of Ex parte Young, that the

individual defendants were not shielded by the Tribe's sovereign immunity. It declined to decide, however,

whether Tamiami could state a claim for relief against the individual defendants. See id. at 1051 & n. 72.

                                                     C.

        On remand, the district court granted Tamiami's motion to file a second amended complaint—the

pleading now before us. This complaint, which Tamiami filed on November 17, 1995, contains six counts

and names as defendants the Tribe, individual members of the Tribe's Business Council and Gaming Agency

(Billy Cypress, Jasper Nelson, Jimmie Bert, Max Billie, and Henry Bert), and the Tribe's legal counsel,

Dexter Lehtinen. The first count essentially requests two types of declaratory relief: (a) a declaration 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. The second and third counts request a judgment requiring the Tribe

to comply with the October 1993 arbitration award and compelling the Tribe to arbitrate certain other disputes

arising out of or related to the Agreement.

        In the fourth count, Tamiami seeks an injunction against the Tribe in the form of an order directing

the individual members of the Business Council and Gaming Agency to rescind their orders of April 13 and

October 12, 1993—which converted Tamiami's share of MIB's net revenues to the Tribe—and return the

funds in the frozen account to Tamiami. The fifth count is a conversion claim against Billy Cypress,

Chairman of the Tribe, and Dexter Lehtinen. In this count, Tamiami contends that Cypress and Lehtinen

caused to be converted to the Tribe certain sums rightfully belonging to Tamiami, including the $1.5 million

in the frozen Jefferson National Bank trust account and a $50,000 advance that was in the custody of the

conservator as of April 13, 1993. As a result of this conversion, Tamiami requests compensatory damages

"in excess of $1.5 million." The sixth count requests that the court order all defendants to make an accounting

to Tamiami for the funds taken from the frozen account and for MIB's revenues since October 1993. In

addition, Tamiami seeks a judgment imposing a constructive trust over its forty percent share of MIB's net

revenues, the funds in the frozen account, and the $50,000 advance, as well as an order requiring the

defendants immediately to pay these sums to Tamiami.

        On December 4 and 5, all of the defendants filed motions to dismiss Tamiami's second amended

complaint on the following three grounds: lack of subject matter jurisdiction, sovereign immunity, and failure

to state a claim.5 The district court denied these motions in a memorandum opinion and order dated

September 27, 1996. In its brief opinion, the court found that the first three counts of Tamiami's complaint




         5
           Certain defendants included a fourth ground for dismissal, namely that Tamiami had waived its
contractual right to arbitration under the Agreement. This waiver argument, however, is an affirmative
defense, see Fed.R.Civ.P. 8(c); it is not a ground upon which Tamiami's complaint could be dismissed.
Therefore, we do not consider the issue of waiver here.
were predicated on the arbitration clause of the Agreement. Referring to the Tamiami II panel's comments

in footnote 66, it concluded that the Eleventh Circuit had contemplated the assertion of such arbitration claims

on remand. The court therefore rejected the defendants' arguments as to those claims. Turning to counts four

through six, the court found that it had supplemental jurisdiction to consider the state law claims asserted

therein. The court also rejected "the individual defendants' invocation of sovereign immunity as to the claims

asserted against them, pursuant to its prior analysis under the doctrine of Ex parte Young, which was affirmed

by the Eleventh Circuit." This appeal followed.

                                                         II.

        The defendants urge us to find that the district court erred in rejecting each of the three grounds upon

which they based their motions to dismiss. Because this is an interlocutory appeal from the district court's

denial of the defendants' motions, however, we must exercise care in determining which of these three issues

are presently before us for review.

         We have no doubt that the issue of subject matter jurisdiction is before us. As a threshold matter,

we have a special obligation to satisfy ourselves not only that we have jurisdiction over this appeal, but also

that the district court had jurisdiction over the various counts of Tamiami's complaint. See Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, ----, 118 S.Ct. 1003, 1012-13, 140 L.Ed.2d 210 (1998).6 "[When the

lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the

purpose of correcting the error of the lower court in entertaining the suit." Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (alterations in original) (quoting

United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 832, 80 L.Ed. 1263 (1936)). Thus, it is appropriate

for us initially to consider whether the district court erred in finding that it had subject matter jurisdiction over

Tamiami's complaint. Cf. In re Sealed Case, 131 F.3d 208, 210-12 (D.C.Cir.1997) (considering issue of




          6
           This obligation applies to every appeal; it is "inflexible and without exception." Id. at ----, 118
S.Ct. at 1012 (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28
L.Ed. 462 (1884)).
subject matter jurisdiction before addressing issue that qualified for interlocutory appeal under collateral order

doctrine).

         The issue of sovereign immunity is also properly before us. Under 28 U.S.C. § 1291 (1994), we

have "jurisdiction of appeals from all final decisions of the district courts ..., except where a direct review may

be had in the Supreme Court." The Cohen collateral order doctrine gives a "practical construction" to this

final decision rule by permitting appeals "from a small category of decisions that, although they do not end

the litigation, must nonetheless be considered 'final.' " Swint v. Chambers County Comm'n, 514 U.S. 35, 42,

115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)). This small category of immediately appealable

decisions "includes only decisions that are conclusive, that resolve important questions separate from the

merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action."

Id. As the panel recognized in Tamiami II, 63 F.3d at 1050, the district court's denial of sovereign immunity

to the defendants falls within this category.

         Regarding the issue of whether Tamiami has failed to state a claim, the defendants ask us to exercise

pendent appellate jurisdiction on the theory that this issue is "inextricably intertwined" with the issue of

sovereign immunity.7 In accordance with the Supreme Court's suggestion in Swint, 514 U.S. at 51, 115 S.Ct.

at 1212, we have previously recognized that pendent appellate jurisdiction over related claims "may be

appropriate when a nonappealable decision is 'inextricably intertwined' with an appealable decision or when

'review of the former decision [is] necessary to ensure meaningful review of the latter.' " United States v.

Lopez-Lukis, 102 F.3d 1164, 1167 n. 10 (11th Cir.1997) (exercising such jurisdiction). In this case, however,

a brief overview of the defendants' specific contentions suffices to demonstrate that the issue of whether

Tamiami has failed to state a claim is not in fact inextricably intertwined with the issue of sovereign




          7
            The defendants do not—and could not—rely upon either Cohen or 28 U.S.C. § 1292 (1994) as
a basis for their contention that we have jurisdiction to consider the issue of whether Tamiami has failed
to state a claim.
immunity.8 The defendants argue that Tamiami has failed to state a claim because counts one through three

of its complaint rely on certain provisions of IGRA that do not apply to the Agreement and provide no cause

of action, and because counts four through six are duplicative prayers for relief that state no claim under either

federal or state law. Plainly, these arguments are wholly unrelated to the defendants' contentions that

Tamiami's claims against the Tribe do not fall within the Tribe's waiver of sovereign immunity and that the

individual defendants are not amenable to suit under the doctrine of Ex parte Young. Therefore, we decline

to exercise pendent appellate jurisdiction over the issue of failure to state a claim; we consider only whether

the district court had subject matter jurisdiction and whether the Tribe and the individual defendants were

shielded by sovereign immunity.

                                                       III.

                                                       A.

         The issue of whether the district court had subject matter jurisdiction over Tamiami's complaint is

a question of law subject to de novo review. See Tamiami I, 999 F.2d at 506. We begin our review with the

defendants' contention that the first three counts of Tamiami's complaint do not state a federal question. See

28 U.S.C. § 1331 (1994). According to the defendants, these counts merely address contract and arbitration

disputes arising under the Agreement. They argue that such disputes do not raise a federal question and that

the statement in Article 23 of the Agreement that the district court "shall have jurisdiction" over the parties

cannot change this result.

         The defendants are correct in part. It is well-settled that parties cannot create subject matter

jurisdiction by agreement. See Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984). In addition, the

mere fact that a dispute concerns a contract or an agreement to arbitrate, without more, does not raise a federal

question. See Tamiami I, 999 F.2d at 507 (holding that the presentation of facts establishing a breach of


          8
           We are aware of, and unimpressed by, the defendants' assertion that the Tamiami II panel has
inextricably intertwined these issues. According to the defendants, the panel did so by deciding that the
individual defendants were amenable to suit under Ex parte Young and then refusing to reach the issue of
whether Tamiami could state a claim against them. See Tamiami II, 63 F.3d at 1051 n. 72. If anything,
this discussion indicates that the panel did not view these issues as inextricably intertwined.
contract claim does not state a federal question); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637

F.2d 391, 395 (5th Cir. Unit B Feb.1981)9 (noting that the Federal Arbitration Act alone is insufficient to

confer federal jurisdiction over disputes involving arbitration agreements, and that an independent basis of

jurisdiction—such as diversity or a federal question—is required). In this case, however, we find that the first

three counts of Tamiami's complaint present more than a mere dispute concerning a contract or an agreement

to arbitrate. Each of these counts—at least in part—concerns the arbitration of Tamiami'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, and that the Tribe breached its obligation when it rejected these license

applications for the sole purpose of taking over MIB.10 These very same claims were before this court in

Tamiami II, albeit in the context of a direct breach of contract suit against the Tribe. The Tamiami II panel

concluded that these claims arose under federal law because the Agreement incorporated—by operation of

law if not by reference—the provisions of IGRA and its associated regulations regarding licensing

procedures. See Tamiami II, 63 F.3d at 1047. Because federal law is equally implicated when these claims

are presented in the arbitration context,11 we must follow the Tamiami II panel's conclusion here.12 We hold,


          9
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,
1981.
          10
             Specifically, one portion of the first count requests a declaration "that disputes between the
parties to the Agreement regarding the licensing of [Tamiami] and its principals [are] arbitrable." The
second count requests enforcement of the October 1993 arbitration award, which addressed the
termination of Tamiami's MIB program director following the denial of his gaming license application by
the Tribe. The third count seeks to compel the Tribe to arbitrate certain additional disputes, including
Tamiami's claims "that the Tribe breached the Agreement by failing to process the applications of
[Tamiami's] managers and key employees in good faith; [and] that the Tribe ... abused its licensing
authority and rejected [Tamiami] applications for the sole purpose of taking over MIB."
          11
              The Federal Arbitration Act empowers a district court to issue an order compelling arbitration
if the court, "save for [the arbitration] agreement, would have jurisdiction under title 28, in a civil action
... of the subject matter of a suit arising out of the controversy between the parties." 9 U.S.C. § 4 (1994).
Thus, it is appropriate for us to "look through" Tamiami's arbitration request at the underlying licensing
dispute in order to determine whether Tamiami's complaint states a federal question.
          12
          Rather than looking to Tamiami II, the defendants assert that Tamiami's current (second
amended) complaint asks for the same relief that was held not to provide a basis for federal question
therefore, 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 applications. The portions of these counts that do not relate to gaming

licenses are plainly within the supplemental jurisdiction of the district court; the defendants do not contend

otherwise.

          The defendants do contend, however, that the district court lacked the power to exercise

supplemental jurisdiction over counts four through six of Tamiami's complaint. Under 28 U.S.C. § 1367(a)

(1994), a district court that has original jurisdiction in a civil action "shall have supplemental jurisdiction over

all other claims that are so related to claims in the action within such original jurisdiction that they form part

of the same case or controversy under Article III of the United States Constitution." In other words, a district

court has the power to exercise supplemental jurisdiction over all claims that "arise out of a common nucleus

of operative fact with a substantial federal claim." Lucero v. Trosch, 121 F.3d 591, 597 (11th Cir.1997).

         We readily conclude that Tamiami's federal claims regarding the Tribe's gaming license denials are

sufficiently substantial to support supplemental jurisdiction. Neither we nor the defendants have discovered

any "prior decisions [that] inescapably render the claims frivolous." See L.A. Draper & Son v. Wheelabrator-

Frye, Inc., 735 F.2d 414, 427 (11th Cir.1984) (quoting Jackson v. Stinchcomb, 635 F.2d 462, 471 (5th Cir.

Jan.1981)). As to whether these substantial federal claims share a common nucleus of operative fact with

Tamiami's claims in counts four through six, the defendants offer two reasons why they do not. First, the

Tribe and its officials argue that no common nucleus exists because Tamiami's federal claims are against the



jurisdiction in Tamiami I. This assertion is simply incorrect. The original verified complaint that was
before the Tamiami I panel sought, inter alia, an injunction compelling the Tribe to arbitrate the dispute
arising from its initial attempt to terminate the Agreement by letter. Because the subsequent licensing
dispute between the parties had not yet arisen when the verified complaint was filed, that complaint
understandably made no allegations and requested no relief regarding the licensing dispute. It is this
licensing dispute—not the earlier termination dispute—that provides a basis for exercising federal
question jurisdiction over Tamiami's current complaint.

                 We are aware that Tamiami's "supplemental" complaint, which the district court declined
        to entertain on September 15, 1992, included allegations regarding the Tribe's initial license
        denials and requested an order compelling the Tribe to arbitrate the licensing dispute. The
        Tamiami I panel, however, had no jurisdiction to consider this version of Tamiami's complaint.
        See Tamiami II, 63 F.3d at 1043 n. 44.
Tribe while its remaining claims are against the individual defendants. This argument is both factually and

legally incorrect. As a factual matter, our discussion of Tamiami's second amended complaint reveals that

counts four and six are against both the Tribe and the individual defendants. See supra part I.C. In addition,

it is clear from section 1367 itself that the parties to the federal and supplemental claims need not be identical

in order for supplemental jurisdiction to lie. See 28 U.S.C. § 1367(a) ("Such supplemental jurisdiction shall

include claims that involve the joinder or intervention of additional parties.").

         Second, defendant Lehtinen argues that a common nucleus is lacking as to counts five and six

because the facts that bear upon the state-law claims asserted in those counts are separate and distinct from

the facts that are relevant to the resolution of Tamiami's federal claims. Specifically, Lehtinen asserts that

the facts necessary to prove conversion and constructive trust under state law concern the actions of the

individual defendants regarding certain funds (such as those in the frozen account), while the facts necessary

to the resolution of Tamiami's federal claims concern the arbitration provisions of the Agreement between

Tamiami and the Tribe. Because the success of Tamiami's federal claims does not depend on the success of

its state-law claims, he argues, supplemental jurisdiction over the state-law claims is unavailable. We find

Lehtinen's conception of supplemental jurisdiction to be unduly narrow. In our view, both Tamiami's federal

claims and its claims in counts four through six seek to remedy the injury that Tamiami suffered when the

Tribe terminated the Agreement through a series of actions by the individual defendants. In its second

amended complaint, Tamiami made a strategic decision to attack this termination in two ways: (1) in the first

three counts, Tamiami attacked the Tribe's method of terminating the agreement by seeking to arbitrate its

federal claim that the Tribe denied its license applications in bad faith in order to take over MIB; and (2) in

counts four through six, Tamiami attacked the result of this termination by seeking to recover its forty percent

share of MIB's net revenues from the Tribe and the individual defendants. This strategic decision, however,

did not catalyze some mysterious fissile process that split the sphere of operative facts surrounding the

termination dispute into two separate nuclei. Thus, the district court had the power to exercise supplemental

jurisdiction over counts four through six of Tamiami's complaint.
                                                      B.

         We now turn to the district court's ruling that the Tribe's sovereign immunity does not shield the

Tribe and the individual defendants from suit. The issue of a sovereign's immunity from suit is a question

of law that we review de novo. See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir.1996).

        "Indian tribes have long been recognized as possessing the common-law immunity from suit

traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670,

1677, 56 L.Ed.2d 106 (1978). Tamiami's claims against the Tribe itself are therefore "barred by the doctrine

of sovereign immunity unless the Tribe, by the very act of entering into the [Agreement] and engaging in the

gaming enterprise, waived its immunity from suit by Tamiami or Congress, by enacting IGRA, abrogated that

immunity." Tamiami II, 63 F.3d at 1048. Although we concluded in Tamiami II that IGRA did not purport

to abrogate the sovereign immunity of tribes that engage in bingo gaming, we also found that the Tribe

partially waived its immunity in Article 23 of the Agreement. See id. The Tribe contends that Tamiami's

claims against it in the second amended complaint do not fall within the scope of this waiver.

         Under Article 23 of the Agreement, the Tribe waived its immunity from a suit brought by Tamiami

to compel arbitration or to enforce an arbitration award. See supra part I.A. (quoting Article 23). To the

extent that counts one (b), four, and six of the second amended complaint—which seek, respectively, a

declaration that the frozen funds belong to Tamiami, an injunction compelling the return of these funds, and

an accounting and the imposition of a constructive trust—are directed against the Tribe,13 we agree that these

counts do not fall within the scope of the Article 23 waiver. These counts are therefore barred and the district

court erred in refusing to dismiss them as to the Tribe. Counts one (a), two, and three of the complaint,

however, seek only a declaration that the disputes between Tamiami and the Tribe that arise out of or relate

to the Agreement are arbitrable, a judgment requiring the Tribe to comply with the October 1993 arbitration

award, and a judgment compelling the Tribe to arbitrate certain disputes arising out of or relating to the




          13
           Count five of the complaint is not directed against the Tribe; it seeks only to hold Cypress
and Lehtinen individually liable for conversion.
Agreement. Plainly, these counts seek the type of relief expressly contemplated by Article 23.14 Thus, the

district court correctly refused to dismiss these counts on the ground of sovereign immunity.

         Turning to the individual defendants' claims of immunity as tribal officers,15 we begin with the

proposition that tribal officers are protected by tribal sovereign immunity when they act in their official

capacity and within the scope of their authority; however, they are subject to suit under the doctrine of Ex

parte Young when they act beyond their authority.16 In Tamiami II, 63 F.3d at 1050-51, we relied on Ex parte

Young in affirming the district court's ruling that the Tribe's sovereign immunity did not shield the individual

defendants from Tamiami's suit. Our holding pertained to the third count of Tamiami's amended complaint,

which was brought under IGRA and its regulations. This count essentially alleged that the individual

defendants, by abusing the licensing authority conferred by IGRA, had acted beyond the authority that the

Tribe was capable of bestowing upon them. Tamiami's claims against the individual defendants in its present

(second amended) complaint, however, do not mention IGRA or licensing at all. Instead, in counts one (b)

and four through six, Tamiami merely offers various theories under which the individual defendants must pay




          14
             We read count one (a) as requesting only that the district court, prior to ordering the Tribe to
arbitrate a given dispute as requested in count three, determine that Tamiami has properly invoked an
arbitration proceeding as to that dispute under Article 12 of the Agreement. So read, we find that count
one (a) clearly falls within the portion of the Article 23 waiver that permits the district court to "enforce
the terms [of the Agreement] specifically, [in the event that the Tribe] fails to participate in an arbitration
proceeding invoked as provided in Article 12."
          15
            Each of the individual defendants claims tribal officer status; Tamiami does not dispute this
claim. We therefore assume, without deciding, that all of the individual defendants—including attorney
Lehtinen—were officers of the Tribe who undertook the complained-of actions in their official capacities.
Cf. Stock West Corp. v. Taylor, 942 F.2d 655, 664-65 (9th Cir.1991), modified on reh'g, 964 F.2d 912
(9th Cir.1992) (en banc) (citing cases and discussing issue of when tribal attorney is acting as tribal
official).
          16
            See Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997); Tamiami II, 63 F.3d at
1050-51; Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d
458, 460 (8th Cir.1993); Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271
(9th Cir.1991); Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572, 574-75 (10th Cir.1984);
Thompson v. Crow Tribe of Indians, 962 P.2d 577, 581-82 (Mont.1998); cf. Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978) (citing Ex parte Young and
finding that a tribal officer was not protected by tribal sovereign immunity from a suit to enjoin
enforcement of a tribal ordinance that allegedly violated a federal statute).
it forty percent of MIB's net revenues. In our view, these claims against the individual defendants are simply

a thinly-disguised attempt by Tamiami to obtain specific performance of the Tribe's obligations under the

Agreement, which allocates forty percent of MIB's net revenues to Tamiami. The doctrine of Ex parte Young

may not be used in this fashion. It is well established that Ex parte Young does not permit individual officers

of a sovereign to be sued when the relief requested would, in effect, require the sovereign's specific

performance of a contract. See, e.g., Ex parte Young, 209 U.S. 123, 151, 28 S.Ct. 441, 450, 52 L.Ed. 714

(1908) (citing Ex parte Ayers, 123 U.S. 443, 504, 8 S.Ct. 164, 182, 31 L.Ed. 216 (1887); Hagood v.

Southern, 117 U.S. 52, 67-68, 6 S.Ct. 608, 615, 29 L.Ed. 805 (1886)); MSA Realty Corp. v. Illinois, 990 F.2d

288, 294-95 (7th Cir.1993). We hold, therefore, that the district court erred in rejecting the individual

defendants' claims of sovereign immunity under the doctrine of Ex parte Young.

                                                     IV.

        For the foregoing reasons, the defendants' request that we exercise pendent appellate jurisdiction over

the issue of whether Tamiami's second amended complaint fails to state a claim is DENIED. On the issue

of subject matter jurisdiction, the district court's denial of the defendants' motions to dismiss is AFFIRMED.

On the issue of sovereign immunity, the district court's denial of the Tribe's motion to dismiss is AFFIRMED

as to counts one (a), two, and three, and REVERSED as to counts one (b), four, and six. The district court's

denial of the individual defendants' motions to dismiss on the ground of sovereign immunity is REVERSED.

We REMAND this case to the district court for further proceedings consistent with this opinion.

        IT IS SO ORDERED.
