DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.,

Appellants,

v.

SEMINOLE TRIBE OF FLORIDA, INC., d/b/a TRIBE, INC., TONY 

SANCHEZ, JR., individually, LARRY HOWARD, individually,

SALLY TOMMIE, individually, ANDREW BOWERS, individually,

MIKE ULIZIO, individually, STEVEN OSCEOLA, individually and

CHRIS OSCEOLA, individually,

Appellees.

No. 4D15-235

[June 15, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE-14-

00419 (14).

Gary S. Phillips and Jeffrey B. Shalek of Phillips, Cantor, Shalek, Rubin 

& Pfister, P.A., Hollywood, for appellant.

Edward G. Guedes and Alicia H. Welch of Weiss Serota Helfman Cole & 

Bierman, P.L., Coral Gables for appellee, Seminole Tribe of Florida, Inc. 

d/b/a Tribe, Inc.

GROSS, J.

MMMG, LLC and Mobile Mike Promotions, Inc. appeal the involuntary 

dismissal of their complaint against a federal tribal corporation affiliated 

with the Seminole Tribe. We affirm the dismissal because the tribal 

corporation enjoyed sovereign immunity from suit, which was not 

effectively waived according to the procedure required in the corporation’s 

charter and bylaws.

Given the long history of exploitation of Native Americans, Congress 

has enacted statutes designed to protect tribes and tribal corporations. 

These statutes have been construed by federal and Florida courts as 

placing the onus on the non-tribal party to ensure that any waiver of 

sovereign immunity be executed in strict compliance with applicable tribal 
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operating documents; common law doctrines such as apparent authority 

do not override the protection provided by federal law.

The History Between Mobile Mike and The Seminole

Tribe of Florida, Inc.

Mobile Mike, a South Florida radio personality, owns Mobile Mike 

Promotions, Inc. (the “Production Company”). In 2011, the Production 

Company and the Seminole Tribe of Florida, Inc. (“STOFI”), a corporate 

entity of the Seminole Tribe (the “Tribe”), entered into an advertising joint 

venture called MMMG, LLC (the “Joint Venture”). STOFI later broke the 

Joint Venture agreement. The Production Company and the Joint Venture 

together filed a ten-count complaint against STOFI and other tribal 

members individually (collectively the “Defendants”). STOFI moved to 

dismiss, asserting the trial court lacked jurisdiction due to STOFI’s 

sovereign immunity. After a five-day evidentiary hearing, the trial court 

found that STOFI was protected by sovereign immunity, which it had not 

waived pursuant to STOFI’s charter and bylaws, and dismissed STOFI as 

a party.

The Seminole Tribe and STOFI

The Tribe is a federally recognized Native American tribe governed by a

Tribal Council, which is duly chartered and recognized by the U.S. 

Department of the Interior, pursuant to section 161 of the Indian 

Reorganization Act of 1934 (“the Act”).2 STOFI is a tribal corporation, also 

chartered and approved by the U.S. Department of the Interior, pursuant 

to section 17 of the Act.3 STOFI’s purpose is to engage in commercial 

enterprises for the economic betterment of its tribal members. However, 

STOFI has no control over any aspect of the Tribe’s other endeavors, 

including Seminole Gaming, the Tribe’s gaming operations. 

STOFI’s ownership is vested in the approximately 4,000 registered 

members of the Tribe and a board of directors controls its operations. With 

respect to STOFI’s sovereign immunity, STOFI’s Charter had previously 

contained “sue and be sued” language which was removed in 1996 and 

replaced with Article VI, Section 9, which allows a waiver of STOFI’s

1 25 U.S.C. § 476 (2012). 2 25 U.S.C. §§ 461-94 (2012). 3 25 U.S.C. § 477 (2012). Most of the case law relevant to these provisions refer 

to Section 16 and 17 entities, which is how they will be referred to for consistency. 

A Section 16 entity is defined in 25 U.S.C. § 476 and a Section 17 entity is defined 

in 25 U.S.C. §477.
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sovereign immunity from suit, but only if expressly stated by 

contract that such is the case and that such waiver shall not 

be deemed a consent by the said corporation or the United 

States to the levy of any judgment, lien or attachment upon 

the property of [STOFI], other than income or chattels 

especially pledged or assigned pursuant to such contract.

Pursuant to STOFI’s Bylaws, any delegation of authority to an officer, 

such as waiving sovereign immunity, must be effected by a written Board 

resolution and must specify the nature of the authority granted and any 

imposed limitations. Additionally, in matters that have not been 

specifically ordered by the Board, the president should call these matters 

to the Board’s attention so that it has the opportunity to decide the issues, 

set the policy, or establish the procedure the corporation is to follow.

While the Tribe and its Council are a separate entity from STOFI, the 

rules governing how the Tribe waives sovereign immunity are relevant to 

issues raised in this appeal. The Tribe enacted a 1995 Ordinance 

addressing how immunity could lawfully be waived on behalf of the Tribe 

and “its subordinate economic and governmental units, its tribal officials, 

employees and authorized agents.” To waive immunity, the Ordinance 

requires clear, express and unequivocal consent by the Tribe or the United 

States Congress. While STOFI does not claim on appeal that the 

Ordinance applies to STOFI’s process for waiving sovereign immunity, it 

would apply to any waiver on the part of the Tribe or Seminole Gaming, 

and the contract at issue purports to grant rights belonging to those 

entities. 

The Joint Venture

In late 2011, STOFI entered into a non-binding Letter of Intent with the 

Production Company to create the Joint Venture, which would provide 

promotional, advertising, and marketing services. Although STOFI did not 

have authority to contract for advertising rights with respect to the Tribe 

or Seminole Gaming, STOFI did agree to make a good faith effort to have 

the Joint Venture designated as the agency of record not just for STOFI 

but also, subject to the Tribe’s approval, the Tribe and “all other Seminole 

related entities.” The Letter of Intent would be reduced to a “Definitive 

Agreement” after approval was obtained from STOFI’s Board. The 

Agreement would be governed by the laws of the State of Florida and the 

venue would be in Broward County, Florida. The Letter of Intent was

signed by STOFI’s board president and Mobile Mike.

The Board passed a resolution in December 2011, which ratified the 

Letter of Intent. The resolution states the purpose of the Joint Venture is 

to provide promotional activities “to Tribal entities and events as well as to 
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parties not affiliated with [STOFI].” The resolution reiterated the Letter of 

Intent’s essential terms and stated that STOFI’s “sole financial exposure 

will be to contribute the organizational expenses of the venture.” STOFI’s 

president was authorized to take all necessary steps to execute the 

Definitive Agreement. 

Neither the Letter of Intent nor the Board’s Resolution addressed waiver 

of sovereign immunity. 

In January 2012, the Production Company and STOFI entered into a 

Regulations and Operating Agreement for the Joint Venture, which was 

signed by STOFI’s president and Mobile Mike. Article VIII, Section 1 of the 

Agreement is the only provision relevant to this appeal. It confirms that 

the Operating Agreement is governed by the laws of the State of Florida, 

without regard to conflict of law principles.

The parties submitted two different versions of the Agreement to the 

trial court. Mobile Mike’s version states that “[t]he parties waive any rights 

pursuant to any available sovereign or governmental immunity.” STOFI’s 

version contained no such immunity waiver.

The Complaint

Mobile Mike, on behalf of the Production Company and the Joint 

Venture, filed a ten-count complaint against STOFI and individual tribal 

members involved with the Agreement, asking for injunctive relief and 

damages. 

Mobile Mike claimed to have invested hundreds of thousands of dollars 

into the Joint Venture. By July 2012, Mobile Mike asserted that STOFI, 

the Tribe, and Seminole Gaming had ceased sending work to the Joint 

Venture, diverting the work to a tribal member who owned a competing 

advertising agency. No further payments pursuant to the Operating 

Agreement were made to the Joint Venture and in June 2013 Mobile Mike

was officially “advised” that the Operating Agreement would not be 

honored. 

The Motion to Dismiss

The Defendants moved to dismiss the complaint for lack of subject 

matter jurisdiction, asserting the claims were barred by sovereign 

immunity, pursuant to section 17 of the Act. According to the motion, the 

sovereign immunity waiver found in Mobile Mike’s version of the Operating 

Agreement was a “single boilerplate sentence that Mobile Mike 

fraudulently introduced into the Agreement after execution and without 

STOFI’s or [the president’s] knowledge.”
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In the alternative, the motion contended that any waiver of immunity 

was “unauthorized and ineffectual” because the Board had not expressly 

waived immunity. The motion pointed out that during the current 

president’s tenure, STOFI had never waived immunity in connection with 

any commercial dealing without a Board resolution, which must be 

enacted at a public Board meeting and specify the nature and scope of the 

waiver. The motion claimed the Board did not authorize the president to 

execute an agreement waiving immunity.

Motion to Dismiss Hearing and Circuit Court Order

A five-day evidentiary hearing was held on STOFI’s Motion to Dismiss. 

Much of the testimony focused on which version of the Operating 

Agreement was authentic. This testimony is largely irrelevant to this

appeal because the trial court treated Mobile Mike’s version of the 

Operating Agreement as true. The trial court decided the case as a matter 

of law, focusing on whether the waiver in Mobile Mike’s version was 

sufficient to eliminate STOFI’s sovereign immunity. 

The trial court issued an extensive order granting in part STOFI’s 

motion to dismiss. The order noted that the trial court could properly 

consider evidence outside the four corners of the complaint when 

considering a motion to dismiss on sovereign immunity grounds. As 

conclusions of fact, the trial court found that STOFI’s Charter and Bylaws

provide that the Board alone can waive sovereign immunity and the 

president does not have authority to waive [immunity], absent explicit 

authorization from the Board. No immunity waiver was ever approved by 

the Tribal Council, pursuant to the Tribal Ordinance, or by STOFI Board 

resolution. The Letter of Intent was the only written agreement ratified by 

the Board, and it did not contain a sovereign immunity waiver. 

As a conclusion of law, the order determined that courts draw no 

distinction between the Tribe and the commercial activity of STOFI;

therefore, “STOFI is entitled to sovereign immunity absent a waiver in their 

charter, valid waiver in the contract or through an Act of Congress waiving 

immunity.” 

Once STOFI demonstrated it was entitled to sovereign immunity, the 

burden shifted to Mobile Mike to prove immunity had been waived. The 

court reasoned that a “proper and enforceable waiver of sovereign 

immunity is dependent on compliance with the sovereign entity’s rules for 

waiving immunity.” STOFI’s Bylaws provide that immunity can be waived 

only with Board authority and nothing submitted showed such approval. 

The court determined the purported immunity waiver in Mobile Mike’s 

version of the Agreement also violated STOFI’s Charter, which requires a 

waiver to pledge income or chattels in the event a judgment, lien or 
- 6 -

attachment is levied against STOFI. The immunity waiver contained no 

such pledge.

While the court made no finding as to which version of the Agreement 

was the actual contract signed by the parties, it determined as a matter of 

law that the purported waiver of immunity was “void and ineffective 

against STOFI and the STOFI defendants acting within the scope of their 

duties on the council.” The order concluded that the trial court lacked 

subject matter jurisdiction, based on STOFI’s sovereign immunity, and 

dismissed all counts against STOFI.

Sovereign Immunity Protects a Section 17 entity such as STOFI, 

Absent a Valid Contractual Waiver

Native American sovereign immunity is a “consideration [which] 

determines whether a court has jurisdiction to hear an action.” Taylor v. 

Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 

2001). The United States Supreme Court has held that Native American 

“tribes enjoy immunity from suit on contracts, whether those contracts 

involve governmental or commercial activities and whether they were made 

on or off a reservation.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 

751, 760 (1998). “As a matter of federal law, [a Native American] tribe is 

subject to suit only where Congress has authorized the suit or the tribe 

has waived its immunity.” Id. at 754. 

The Indian Reorganization Act of 1934 was Congress’s first attempt to 

incorporate Native American tribes into the United States’ legal and 

political systems as separate political entities. Alex Tallchief Skibine, 

Redefining the Status of Indian Tribes Within “Our Federalism”: Beyond the 

Dependency Paradigm, 38 CONN. L. REV. 667, 675 (2006). The Act 

authorized the tribes to adopt constitutions, with the Secretary of the 

Department of the Interior’s approval, and one of the Act’s key purposes 

was to encourage tribal economic development. Matthew L.M. Fletcher, 

The Supreme Court and Federal Indian Policy, 85 NEB. L. REV. 121, 144 

(2006).

Under sections 16 and 17, the Act provides two different ways for Native 

American tribes to organize and operate. Houghtaling v. Seminole Tribe of 

Fla., 611 So. 2d 1235, 1236 (Fla. 1993). “Section 16 prescribes how tribes 

are to operate as a government” while “section 17 prescribes their 

authority to operate as a business entity.” Id. at 1237. It is settled law 

that Section 16 entities are granted sovereign immunity unless the tribe 

or Congress waives such immunity. See Md. Cas. Co. v. Citizens Nat’l Bank 

of W. Hollywood, 361 F.2d 517, 520 (5th Cir. 1966) [hereinafter Maryland 

Casualty] (citing United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 

(1940)). 
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Section 17 of the Act provides:

The Secretary of the Interior may, upon petition by any tribe, 

issue a charter of incorporation to such tribe: Provided, That 

such charter shall not become operative until ratified by the 

governing body of such tribe. Such charter may convey to the 

incorporated tribe the power to purchase, take by gift, or 

bequest, or otherwise, own, hold, manage, operate, and 

dispose of property of every description, real and personal, 

including the power to purchase restricted Indian lands and 

to issue in exchange therefor interests in corporate property, 

and such further powers as may be incidental to the conduct 

of corporate business, not inconsistent with law; but no 

authority shall be granted to sell, mortgage, or lease for a 

period exceeding twenty-five years any trust or restricted 

lands included in the limits of the reservation. Any charter so 

issued shall not be revoked or surrendered except by Act of 

Congress.

25 U.S.C. § 477 (2012). Notably, this section does not address sovereign 

immunity.

The Florida Supreme Court has recognized that the purpose of section 

17 is to create a separate entity from the tribal political body that is “more 

capable of obtaining credit and otherwise expediting the business of the 

tribe, while removing the possibility of federal liability for activities of that 

nature. As a result, the powers, privileges and responsibilities of these 

tribal organizations materially differ [from Section 16 entities].” 

Houghtaling, 611 So. 2d at 1237-38 (quoting the Solicitor of the 

Department of the Interior in opinion M-36515, 65 I.D. 483, 484 (1958)). 

In Florida, state courts lack subject matter jurisdiction over a Section 16 

entity unless that entity has waived sovereign immunity or it has been 

rescinded by Congress. Id. at 1239. Additionally, a Section 17 entity can 

be sued only if allowed by its corporate charter. Id. As will be discussed 

below, this last statement makes sense only if the Houghtaling court 

presumed that Section 17 entities are entitled to sovereign immunity

under the Act.

STOFI’s Sovereign Immunity

“There are three ways [a Native American] tribe may incorporate: Under 

the federal statute, 25 U.S.C. § 477 [section 17 of the Act]; under state law; 

and under tribal law.” Inglish Interests, LLC v. Seminole Tribe of Fla., Inc., 

No. 2:10-CV-367-Ftm-29DNF, 2011 WL 208289, *3 (M.D. Fla. Jan. 21, 

2011). The Tribe incorporated STOFI under section 17 of the Act and was 
- 8 -

granted a corporate charter in 1957 to form a “Federal corporation” with 

perpetual succession. Id. at *1-*2 (quoting Art. III, § 1 of STOFI’s charter). 

STOFI possesses only those powers granted by the Secretary of the 

Interior by the terms of its charter; the Act itself grants no powers to 

corporate tribal entities. Id. at *1 (citing Maryland Casualty, 361 F.2d at 

520). The Department of the Interior issued a corporate charter to STOFI 

“in order to further the economic development of the Tribe, secure an 

assured economic independence for Tribe members, and provide for the 

proper exercise of various functions by the Tribe which had previously 

been performed by the Department of the Interior.” Id. at *2. 

Mobile Mike asserts it is well established that corporate tribal entities 

have no inherent immunity of their own. While several jurisdictions have 

found that certain corporate tribal entities were not protected by sovereign 

immunity, Mobile Mike’s assertion is an overstatement of the law. See 

Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 69 (1999); Veeder 

v. Omaha Tribe of Neb., 864 F. Supp. 889 (N.D. Iowa 1994); Wippert v. 

Blackfeet Tribe, 859 P.2d 420, 427 (Mont. 1993), overruled on other 

grounds, Green v. Gerber, 303 P.3d 729 (Mont. 2013). These cases are 

distinguishable because they either involve Section 17 entities that waived 

immunity in their corporate charter, or, like the tribal casino in Trudgeon, 

were governmental entities not incorporated under section 17 of the Act. 

In fact, it is more accurate to say that the jurisdictions confronting Section 

17 entities have found they were protected by sovereign immunity, unless 

that immunity was expressly waived by the corporate charter or by 

agreement.

Federal Precedent Supporting Section 17 Immunity

No Florida state court has directly addressed whether STOFI has 

sovereign immunity. We find persuasive the analyses of several federal 

courts that have held Section 17 entities have immunity, unless such 

immunity was waived by contract. 

Courts should construe statutes liberally in favor of Native American

tribes, so ambiguous provisions should be interpreted to their benefit. 

Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 921

(6th Cir. 2009) (citing Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 

766 (1985)); see also Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 

1285 (11th Cir. 2001). The Sixth and Ninth Circuits have held that section 

17’s silence regarding sovereign immunity should not be construed as 

abrogating such immunity. See Memphis Biofuels, 585 F.3d at 920-21; 

see also Am. Vantage Cos., Inc. v. Table Mountain Rancheria, 292 F.3d 

1091, 1099 (9th Cir. 2002) (“A tribe that elects to incorporate does not 

automatically waive its tribal sovereign immunity by doing so.”). 
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The Sixth Circuit concluded “that the better reading of Section 17 is 

that it creates ‘arms of the tribe’ that do not automatically forfeit tribalsovereign immunity.” Memphis Biofuels, 585 F.3d at 921. However, a tribe 

may choose to expressly waive its sovereign immunity either in the Section 

17 entity’s charter or by agreement. Id. The Tenth circuit agrees, holding 

that immunity for subordinate economic tribal entities is necessary 

because it “directly protects the sovereign Tribe's treasury, which is one of 

the historic purposes of sovereign immunity in general.” Breakthrough 

Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1183 

(10th Cir. 2010) (quoting Allen v. Gold Country Casino, 464 F.3d 1044, 

1047 (9th Cir. 2006)).

In 1966, the Fifth Circuit held that STOFI was immune from a 

garnishment proceeding. Maryland Casualty, 361 F.2d at 522. The court 

presumed STOFI had immunity and looked to its charter to see if that 

immunity had been waived. Id. at 521. At that time, the charter contained 

a “sue and be sued”4 clause, which, significantly, contained qualifying 

language still found in the current charter provision. Id. Section 9

provided STOFI could 

sue or be sued; but the grant or exercise of such power to sue 

and to be sued shall not be deemed a consent by the said 

corporation or the United States to the levy of any judgment, 

lien or attachment upon the property of the Seminole Tribe of 

Florida, Inc., other than income or chattels especially pledged 

or assigned.

Id. 

This limiting language was written into the charter by the Secretary of 

the Interior to protect Tribal property that was not pledged or assigned, so 

the provision should be liberally construed and “all doubtful expressions 

therein resolved in favor of the Seminole Tribe.” Id. “To construe the 

immunity to suit as not applying to suits on liabilities arising out of private 

transactions would defeat the very purpose of Congress in not relaxing the 

immunity. . . .” Id. at 521-52. Because garnishment is akin to attachment, 

the court found that even with the “sue and be sued” language, STOFI was 

immune from the garnishment proceeding. Id. at 522.

In 2011, the Middle District of Florida also concluded that Section 17 

entities, and STOFI specifically, were entitled to sovereign immunity. 

Inglish, 2011 WL 208289, at *5. The opinion relied on Eleventh Circuit 

precedent that found the Tribe does not lose its sovereign immunity simply 

4 As is indicated above, this “sue and be sued” language was removed from 

STOFI’s Charter in 1996, well before the Operating Agreement was signed.
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by incorporating under Section 17 and Native American sovereign 

immunity has been extended by case law “to entities other than the literal 

‘tribe.’” Id. (citing Taylor, 261 F.3d at 1036). The court acknowledged that 

Congress knows how to abrogate sovereign immunity when that is its 

intent, so failure to expressly grant immunity in section 17 does not mean 

that such immunity is waived. Id. 

Inglish observed that while a Section 17 entity is protected by sovereign 

immunity, its corporate charter may waive that immunity. Id. at *6. 

STOFI’s charter presumes STOFI has sovereign immunity and does not 

waive or consent to suit. Id. A tribal corporation may also expressly waive 

immunity by agreement, which STOFI did not do, so the court determined 

it lacked subject matter jurisdiction over the case. Id. (citing Tamiami 

Partners Ltd. ex rel Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of 

Fla., 63 F.3d 1030, 1048 (11th Cir. 1995)).

The Southern District of Florida has reached the same conclusion as 

Inglish. See Lujen Brands, LLC v. Seminole Tribe of Fla., Inc. No. 0:14-cv60679 (Sept. 18, 2014). In Lujen, the court considered whether STOFI had 

sovereign immunity and if so, what impact that would have on the merits 

discovery in the case. Id. STOFI argued that “because it has sovereign 

immunity unless it waives such immunity in its Charter or by contract, 

the only proper jurisdictional discovery against it concerning sovereign 

immunity goes to waiver, not to whether it is a subordinate economic entity 

of the [Tribe].” Id. Agreeing, the court found that based on binding federal 

precedent, STOFI was “entitled to sovereign immunity unless and until it 

waives such immunity.” Id. (citing Maryland Casualty, 361 F.2d at 520-

22 and Inglish, 2011 WL 28289 at *5-*6). 

Florida Precedent Addressing STOFI’s Immunity

This Court has held that STOFI was entitled to sovereign immunity 

from the state’s attempt to collect taxes. Askew v. Seminole Tribe of Fla., 

Inc., 474 So. 2d 877 (Fla. 4th DCA 1985). We found the fact that STOFI 

was engaged in a commercial enterprise, as opposed to governmental, was 

“not material,” because “[i]t is in such enterprises and transactions that 

the [Native American] tribes and the [Native Americans] need protection.” 

Id. at 880. It stands to reason that if STOFI had sovereign immunity 

protection against state taxes then STOFI has immunity in all commercial 

endeavors, unless otherwise waived by contract. 

Additionally, the Florida Supreme Court’s holding in Houghtaling would 

be illogical if STOFI did not have sovereign immunity. The court 

acknowledged that the purpose of section 17 is to remove the possibility 

of federal liability for tribal economic activities. Houghtaling, 611 So. 2d 

at 1237-38. The court held that a Section 17 entity could be sued only if 
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allowed by its corporate charter. Id. at 1240. This statement presupposes 

that such an entity is granted immunity by the Act.

To summarize, it is undisputed that STOFI’s Charter contains no “sue 

and be sued” clause or other waiver of sovereign immunity. We agree with 

those courts concluding that absent such waiver, Section 17 entities like

STOFI are protected by sovereign immunity, a position that coincides with 

the policy behind granting immunity to tribal organizations. 

The Circuit Court Correctly Concluded That There Was No Valid 

Waiver of STOFI’s Sovereign Immunity

A motion to dismiss is a proper procedural vehicle to challenge 

jurisdiction based on sovereign immunity. See Houghtaling, 611 So. 2d at 

1236; Seminole Police Dep’t v. Casadella, 478 So. 2d 470 (Fla. 4th DCA 

1985); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 503 

(Fla. 1989) (recognizing the necessity of a “limited evidentiary hearing in 

order to determine the jurisdiction issue,” in case involving question of 

personal jurisdiction). The burden was on Mobile Mike to establish a 

waiver of STOFI’s immunity. See Seminole Tribe of Fla. v. McCor, 903 So. 

2d 353, 360 (Fla. 2d DCA 2005) (stating once the Tribe demonstrated 

through affidavits that it was entitled to sovereign immunity, the burden 

shifted to the other party to rebut those affidavits); Cupo v. Seminole Tribe, 

860 So. 2d 1078, 1079 (Fla. 1st DCA 2003) (affirming dismissal of claim 

against Tribe for lack of subject matter jurisdiction where claimant “failed 

to show a clear, express and unmistakable waiver of sovereign immunity”).

We agree with STOFI that Florida and federal case law supports the 

requirement that a proper and enforceable waiver of sovereign immunity 

comply with the sovereign entity’s rules for waiving immunity. See 

Houghtaling, 611 So. 2d at 1239-40; Seminole Tribe of Fla. v. Ariz, 67 So. 

3d 229 (Fla. 2d DCA 2010); Memphis Biofuels, 585 F.3d at 921. 

We follow the Sixth Circuit’s approach in Memphis Biofuels, which

looked to the entity’s charter to determine whether there had been a waiver 

of sovereign immunity. Memphis Biofuels, 585 F.3d at 922. The charter 

required board approval and, without such approval, immunity remained 

intact. Id. Similar to the present situation, a provision in the signed 

contract purported to waive all immunities for both parties, but it was 

undisputed that the board did not pass a resolution waiving immunity, so 

the waiver was found invalid. Id. As discussed above, courts look to a 

Section 17 entity’s charter to determine if the entity has agreed to sue and 

be sued; it follows that a court should also look to the charter to determine 

how immunity may be waived by contract. 
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STOFI’s Bylaws require that a sovereign immunity waiver be properly 

authorized by the Board through a resolution. Thus, STOFI’s president 

did not have the actual authority to waive immunity on his own. In 

addition, STOFI’s Charter requires not only a clear and express waiver in 

a contract, but also that “such waiver shall not be deemed a consent by 

the said corporation or the United States to the levy of any judgment, lien 

or attachment upon the property of [STOFI], other than income or chattels 

especially pledged or assigned pursuant to such contract.” No such 

language was included in Mobile Mike’s version of the Agreement. As 

noted by the Fifth Circuit in Maryland Casualty, this limiting language was 

written into the Charter by the Secretary of the Interior to protect Tribal 

property that was not pledged or assigned. 361 F.2d at 521-22. For this 

reason, the provision should be liberally construed and “all doubtful 

expressions therein resolved in favor of the Seminole Tribe.” Id. 

Conclusion

Even assuming the validity of the waiver provision in Mobile Mike’s 

version of the operating agreement, we agree with the trial court that 

waiver was insufficient as a matter of law because it failed to comply with 

STOFI’s Charter and Bylaws.

Based on the foregoing, we affirm the circuit court’s order granting the 

motion to dismiss.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.