### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.
, Appellant s ,

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

, Appellee s

.

No. 4D 15

- 235

[ June 15, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward Count y ; 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 &

Bier man, P.L., Coral Gables for appellee, Seminole Tribe of Florida, Inc. d/b/a Tribe, Inc.

G ROSS
, 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 waiv ed according to the procedure required in the corporation’s

charter and bylaws

.

Given the long history of exploita tion of Native Americans, Congress has enacted statutes designed to protect tribes and tribal corporations. These statutes have been construed by f ederal 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- 2

- operating documents; common law doctrines such as apparent authority do not override the protection provided by f ederal law.

The History Between Mobile Mike and The Seminole Tribe of Florid a, 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

me mbers individually (collectively the “Defendants”) . S TOFI 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 rec ognized by the U.S. Department of the Interior, pursuant to section 16 1 of the Indian Reorganization Act of 1934 (“the Act”). 2 STOFI is a t ribal 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 t ribal members. However, STOFI has no control over any aspect of the Tribe’s other endeavors, including Seminole Gaming, the Tribe’s gaming operations.

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

members of the Tribe and a b oard of d irectors controls its operations. With respect to STOFI’s sovereign immunity, STOFI’s Charter had previously contained “sue and be sued” language which wa s 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.- 3

- 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 corporat ion 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 B ylaws, any delegation of authority to an off icer, 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 p resident 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 t o 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 Lett er 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 sign ed by STOFI’s b oard p resident and Mobile Mike.

The Board passed a r esolution 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- 4

- parties not affiliated with [STOFI].” The resolution reiterated the Letter of

Intent ’s essential terms and stat ed that STOFI’s “sole financial exposure will be to contribute the organizational expenses of the venture.” STOFI’s

p resident was authorized to take all necessary steps to execute the Definitive Agreement.

Neither the Letter of Intent nor the Board’s Resolution addressed wa iver 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 p resident and Mobile Mike. Article VIII, Section 1 of the Agreement is th e only provision relevant to this appeal. It confirms that the Operating Agreement is governed by the laws of the State of Florida,

without re gard to conflict of law princip l e s.

The parties submitted two different versions of the Agreement to the

trial co urt. 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 h undreds 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 age ncy. 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 th e 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 m otion, the sovereign immunity waiver found in Mobile Mike’s version of the Operating Agreemen t was a “ single boilerplate sentence that Mobile Mike fraudulently introduced into the Agreement after execution and without STOFI’s or [the p resident’s] knowledge.”- 5

- 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

p resident’s tenure, STOFI had never waived immunity in connection with any commercial dealing without a Board resolution, which must be

enact ed at a public Board meeting and specify the nature and scope of the

waiver. The motion claimed the Board did not authorize the p resident 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 th is 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 grant ing in part STOFI’s

m otion to d ismiss. 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 t rial court found that STOFI’s Charter and By laws provide that the Board alone can waive sovereign immunity and the

p resident 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 d id not contain a sovereign immunity waiver.

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

distinction between the Tribe and t he 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 “prope r and enforceable waiver of sovereign immunity is dependent on compliance with the sovereign entity’s rules for waiving immunity.” STOFI’s B ylaws provide that immunity can be waived only with Board authority and nothing submitted showed such approval.

Th e 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 immunit y waiver contained no such pledge

.

While t he court made no finding as to which version of the Agreement was the actual contract signed by the partie s , 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.” T he order concluded that the trial court lacked subject matter jurisdiction, based on STOFI’s sovereign immunity, and dismissed all counts against STOFI.

Sovereign Immunity Protect s a S ection 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.

Al a

. 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 ma de

on or off a reservation.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc ., 523 U.S. 751, 760 (1998). “As a matter of f ederal 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’ lega l and political systems as separate political entities. Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within “ Our Federalism ” : Beyond the Dependency Paradigm , 38 C ONN

. L. R EV

. 667, 675 (2006). The Act authorized the tribes to adopt const itutions, 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 N EB

. L. R EV

. 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)).- 7

- Section 17 of the Act provides:

The Secretary of the Interior may, upon petition by any tr ibe, 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 beques t, 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 reserv ation. Any charter so issued shall not be revoked or surrendered except by Act of Congress.

25 U.S.C. § 477 (201 2 ). Notably, this section does not address sovereign immunity.

The Florida Supreme Court has recognized that the purpose of section

17 is to cr eate 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 S ection 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 Flo rida, 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 12 39 . Additionally, a Section 17 entity can

be sued only if allowed by its corporat e charter. Id . As will be discussed below, this last statement makes sense only if the Houghtaling court

presum ed 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 incorporate d 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 c harter).

STOFI possesses only those powers granted by the Secretary of the Interior by the terms of its c harter; the Act itself grants no powers to corporate tribal entities. Id . at *1 (citing Maryland Casualty , 361 F. 2d at 520). The Depar tment of the Interior issued a corporate c harter 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 entitie s 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. Blackf eet Tribe , 859 P.2d 420, 427 (Mont. 1993), overruled on other grounds

, Green v. Gerber

, 303 P.3d 729 (Mont. 2013)

. The se cases are distinguishable because they either involve Section 17 entities that waived immunity in their corporate charter, or, like th e tribal casino in Trudgeon

, were governmental entities not incorporated under s ection 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

t hat 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 analys e s of several feder al

courts that have held S ection 1 7 entities have immunity, unless such immunity was waived by contract.

C ourts should construe statutes liberally in favor of Native American tribes, so ambiguous provisions should be interpreted to their benefit.

M emphis 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 Sixt h and Ninth Circuit s 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 s overeign immunity by doing so.” ).- 9

- The Sixth Circuit conclud ed “that the better reading of Section 17 is

that it creates ‘arms of the tribe’ that do n ot automatically forfeit tribal

sovereign 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 agree s , 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. Chukchans i 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 5 2 2 . The court presumed STOFI had immunity and looked to its c harter to see if that immunity had been waived. Id

. at 521. At that time

, the c harter contained

a “sue and be sued” 4 clause, which, significantly, contained qualifying langu age still found in the current c harter 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 c harter 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 priva te 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 f ound 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.- 10

- 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 T aylor , 261 F.3d at 1036 ) . The cou rt acknowledged that Congress knows how to abrogate sovereign immunity when that is its intent, so failure to expressly grant immunity in s ection 17 does not mean that such immunity is waived. Id

. Inglish observed that w hile a Section 17 entity is protected by sovereign immunity, its corporate charter may waive that immunity. Id

. at *6.
STOFI’s c harter 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)).

T he Southern District of Florida has reached the same conclusion as Inglish

. See Lujen Brands, LLC v. Seminole Tribe of Fla., Inc. N o. 0: 14

- cv

60679 (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 juris dictional discovery against it concerning sovereign immunity goes to waiver, not to whether it is a subordinate economic entity

of the [Tribe] .” Id

. Agreeing, the c ourt found that based on binding federal precedent, STOFI was “entitled to sovereign immun ity 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 s tate’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

, a s 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
prote ction 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

a cknowledged 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- 11

- allowed by its corporate charte r. Id. at 1240. This statement presupposes that such an entity is granted immunity by the Act

. To summarize, i t 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 C orrectly 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 questio n 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, 3 60 (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 ru les for waiving immunity. See Houghtaling, 611 So. 2d at 123 9

- 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 92 2. 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

S ection 17 entity’s charter to determine if the entity h as 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.- 12

- STOFI’s B ylaws require that a sovereign immunity waiver be properl y authorized by the Board throug h a resolution. Thus, STOFI’s p resident

d id not have the actual authority to waive immunity on his own. In addition, STOFI’s C harter requires not only a clear and express waiver in a contract, but also that “such wa iver 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 as signed. 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.

D AMOORGIAN and K LINGENSMITH
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.