FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 28, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13039

________________________

D. C. Docket No. 04-22774-CV-UU

MICCOSUKEE TRIBE OF INDIANS 

OF FLORIDA, 

Plaintiff-Counter 

Defendant-Appellant, 

versus

KRAUS-ANDERSON CONSTRUCTION 

COMPANY, 

Defendant-Counter 

Claimant-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 28, 2010)

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN, District Judge. *

 Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District *

of Georgia, sitting by designation.
TJOFLAT, Circuit Judge:

In 2004, Kraus-Anderson Construction Company (“Kraus-Anderson”) sued

the Miccosukee Tribe of Indians of Florida (the “Tribe”) for breach of contract in

the Miccosukee Tribal Court. The Tribe denied liability and counterclaimed,

alleging that Kraus-Anderson was the breaching party. Following a trial on the

merits, the Tribal Court denied Kraus-Anderson’s claims and, finding for the Tribe

on its counterclaim, awarded the Tribe a judgment of $1.65 million. KrausAnderson petitioned the Tribe’s Business Council for leave to appeal the judgment

to the Tribe’s General Council, which acts as the Tribal Court of Appeals. The 1

Council denied Kraus-Anderson’s petition. 

Kraus-Anderson refused to satisfy the Tribal Court’s judgment, so the Tribe

brought suit against Kraus-Anderson in the United States District Court for the

Southern District of Florida to enforce it. As an affirmative defense, KrausAnderson alleged that, in denying its petition for leave to appeal the Tribal Court’s

judgment, the Business Council denied it due process of law, thereby rendering the

judgment void. On cross-motions for summary judgment, the district court,

 We refer to the Tribe’s General Council as the Tribal Court of Appeals. Under the 1

Miccosukee Criminal and Civil Code, the Business Council has discretion to determine whether

to allow the Tribal Court of Appeals to hear an appeal of a Tribal Court judgment. 

2
relying on principles of comity, held the judgment unenforceable and granted

Kraus-Anderson summary judgment. The Tribe now appeals. We reverse and

remand the case to the district court with the instruction that it dismiss the case for

lack of subject matter jurisdiction. 

I.

A.

The Tribe, a federally recognized Indian tribe, has approximately 550

members and maintains its reservation in Miami-Dade County, Florida. KrausAnderson is a large Minnesota-based construction company that specializes in

building casino properties for Indian tribes. 

2

Kraus-Anderson and the Tribe negotiated and signed three contracts from

1997 to 1998 for the construction of several buildings on the Tribe’s reservation,

including a resort hotel and halfway house. The parties agreed to base the three 3

contracts on the American Institute of Architects Standard Form of Agreement

 From 1993 to 2003, Kraus-Anderson completed more than $400 million in construction 2

projects for Indian tribes. 

 The contracts were signed on the following dates: August 26, 1997, for the construction 3

of a resort hotel and convention center; September 13, 1997, for the construction of a halfway

house, clinic, and judicial building; and September 18, 1998, for the construction of a school.

3
Between Owner and Design/Builder (the “AIA Form”). Some of the AIA Form 4

provisions were amended by interlineation; one provision, “Article 10

Arbitration,” was eliminated altogether. Although Kraus-Anderson preferred that 5

claims be resolved pursuant to the arbitration procedures of that article, the Tribe

asserted that it would waive its sovereign immunity only if Kraus-Anderson

agreed to use the Tribal Court as the forum for resolving contract disputes. KrausAnderson relented and, in lieu of Article 10, the parties inserted the following

section in Article 14:

14.4.1.2 Waiver of Sovereign Immunity. The [Tribe] hereby waives

any defense of sovereign immunity from suit in Miccosukee Tribal

Court in connection with any action or proceeding, including any

claim, cross-claim or counterclaim, brought by or against it in

connection with this [contract] or any of the transactions

contemplated in this [contract] . . . for and only with respect to actions

brought in Miccosukee Tribal Court. [The Tribe] does not waive

immunity in any form for actions in any court (including Miccosukee

Tribal Court) not in connection with this [contract] or any of the

transactions contemplated in this [contract].

The AIA Form’s choice of law provision, “Article 11 Miscellaneous Provisions,” 

 The parties used the 1985 edition of the AIA Form, specifically the “Part 2 4

Agreement—Final Design and Construction.”

 Article 10 contained five sections. Section 10.1 stated that: 5

Claims, disputes and other matters in question between the parties to this Part 2

arising out of or relating to Part 2 shall be decided by arbitration in accordance

with the Construction Industry Arbitration Rules of the American Arbitration

Association then in effect unless the parties agree otherwise.

4
states, in section 11.1, that “[t]his Part 2 shall be governed by the law of the place

where the Work is located.” The parties amended section 11.1 so that it provided

that Part 2 would be governed by “substantive contract laws of the State of Florida

and other substantive laws of the Miccosukee Tribe.” 

In mid-1999, the parties began to disagree as to the amounts due under the

contracts. The Tribe refused to honor certain invoices submitted by KrausAnderson, contending that the company had overcharged for the work it had

performed and had failed to remedy several construction defects. Settlement

negotiations ensued, but the parties were unable to resolve their differences, and

the invoices remained unpaid.

B.

On May 24, 2001, Kraus-Anderson filed a complaint against the Tribe in the

Tribal Court alleging that $7,077,604.70 was due under the contracts. The Tribe

responded with a counterclaim and set-off, neither of which specified a monetary

amount, based on Kraus-Anderson’s allegedly improper overcharges and

construction defects. On June 18, 2004, following discovery and a sixteen-day

bench trial, the Tribal Court issued its “Trial Decision,” a 166-page document that

summarized the evidence and set forth the court’s findings and conclusions. In it,

5
the Tribal Court denied Kraus-Anderson’s claims and awarded the Tribe judgment

in the sum of $1,654,998.88 on its counterclaim.

Kraus-Anderson filed a notice of appeal to the Miccosukee Business

Council on July 1, 2004, asserting the following claims of error: the Tribal Court

(1) exceeded its powers; (2) rendered a decision based on mathematical errors; (3)

excluded material evidence and prejudiced Kraus-Anderson’s ability to present its

case; and (4) was generally prejudiced against Kraus-Anderson. The Business

Council considered these asserted errors and reached a “consensus” that the Tribal

Court committed no procedural error in reaching its decision. On July 15, 2004, 

the Business Council notified Kraus-Anderson that it had “disallowed” its appeal

because the company “raise[d] no issues meriting review” by the Tribal Court of

Appeals.

C.

Kraus-Anderson did not pay any portion of the judgment entered against it. 

On November 2, 2004, the Tribe commenced this action to enforce the Tribal

Court’s judgment. The Tribe’s complaint alleged that the district court had federal

question jurisdiction under 28 U.S.C. § 1331, diversity jurisdiction under 28

U.S.C. § 1332, and “federal common law of comity jurisdiction” under 28 U.S.C.

§ 1738. After reciting the contractual events that led to the Tribal Court judgment,

6
the complaint requested the court to “find that the Trial Decision (final judgment)

is entitled to recognition, registration, and enforcement in accordance with the

applicable federal law and [to] enter [an] order recognizing, registering and

enforcing the Tribal Court’s Trial Decision (final judgment).” 

In its answer, Kraus-Anderson asserted, as an affirmative defense, that the

Tribal Court judgment was unenforceable because the Business Council’s refusal

to allow the appeal denied Kraus-Anderson due process of law. Addressing the

complaint’s assertion of subject matter jurisdiction, Kraus-Anderson disagreed

that the district court had jurisdiction under §§ 1332 and 1738 but admitted that

the court had jurisdiction under § 1331 because its answer contained a defense

based on the Due Process Clause. 

The parties having joined issue, Kraus-Anderson moved the court for

summary judgment based on its affirmative defense. The court granted its motion

in an order entered on May 23, 2007. After stating that the complaint failed to

disclose a basis for jurisdiction under §§ 1332 or 1738, the court concluded that

“subject matter jurisdiction over this action, which seeks the enforcement of a

tribal court judgment against a non-Indian party, is based on federal common

law,” and therefore presented a federal question embraced by § 1331. The court

then turned to the question of whether full faith and credit or comity was the

7
appropriate framework for analyzing the enforceability of the Tribal Court’s

judgment. The court opted for the latter approach and held that the judgment

should not be afforded comity because the Business Council was an interested

party in the litigation and its disallowance of Kraus-Anderson’s appeal constituted

a denial of due process. After the court entered a final judgment for KrausAnderson in accordance with its May 23 order, the Tribe took this appeal. 

II.

We begin, as in all appeals, by asking whether the district court had subject

matter jurisdiction. See Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453,

20 S. Ct. 690, 692, 44 L. Ed. 842 (1900) (“On every writ of error or appeal, the

first and fundamental question is that of jurisdiction, first, of this court, and then

of the court from which the record comes.”). In the complaint, the Tribe asserted

6

three bases for jurisdiction: 28 U.S.C. §§ 1331, 1332, and 1738. The district court

concluded that jurisdiction lay under § 1331. We therefore consider that

jurisdictional basis first, then address §§ 1332 and 1738. 

A.

 We have jurisdiction under 28 U.S.C. § 1291, which provides that “courts of appeals . . 6

. shall have jurisdiction of appeals from all final decisions of the district courts of the United

States.”

8
Although the parties agree with the district court that jurisdiction lies under

§ 1331, we nonetheless have the obligation to inquire sua sponte into whether the

7

district court was correct. See Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986) (“[E]very federal

appellate court has a special obligation to ‘satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under review,’ even though

the parties are prepared to concede it.”) (quoting Mitchell v. Maurer, 293 U.S.

237, 244, 55 S. Ct. 162, 165, 79 L. Ed. 338 (1934)); Fitzgerald v. Seaboard Sys.

R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985).

Pursuant to § 1331, district courts have original jurisdiction over “all civil

actions arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331. “[F]ederal question jurisdiction does not exist merely because an 8

 A finding of jurisdiction under § 1331 is a conclusion of law. 7

 Under the “well-pleaded complaint rule,” 8

“[A] suit arises under the Constitution and laws of the United States only when the

plaintiff’s statement of his own cause of action shows that it is based upon those laws or

that Constitution. It is not enough that the plaintiff alleges some anticipated defense to

his cause of action and asserts that the defense is invalidated by some provision of the

Constitution of the United States.”

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 2062, 156 L. Ed. 2d 1 (2003)

(quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L.

Ed. 126 (1908)) (alteration in original). Thus, in determining the presence of federal question

jurisdiction, we may not, as Kraus-Anderson implied in framing its answer to the Tribe’s

complaint, consider its affirmative defense based on the Due Process Clause.

9
Indian tribe is a party or the case involves a contract with an Indian tribe,” Stock 9

West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221,

1225 (9th Cir. 1989); a plaintiff’s complaint still must “claim a right to recover

under the Constitution and laws of the United States,” Bell v. Hood, 327 U.S. 678,

681, 66 S. Ct. 773, 775, 90 L. Ed. 939 (1946). Although this is not a stringent

standard, a mere incantation that the cause of action involves a federal question is

not always sufficient. Murphy v. Inexco Oil Co., 611 F.2d 570, 573 (5th Cir.

1980); see generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice 10

and Procedure § 1209 (3d ed. 2004). Bearing in mind this standard, we examine

whether the Tribe has sufficiently identified a Constitutional provision or federal

law under which it can recover.

1.

Despite the complaint’s lack of reference to any discernible federal law, the

district court invoked its § 1331 jurisdiction on the theory that a case that “seeks

the enforcement of a tribal court judgment against a non-Indian party[ ] is based

on federal common law.” On appeal, in supplemental briefing that we requested

 As noted in part I.A., supra, the contract here specified it would be governed by Florida 9

and Tribal law.

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this 10

court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

10
following oral argument, the Tribe and Kraus-Anderson similarly rely upon

federal common law to support federal question jurisdiction. The Tribe argues

that the district court had jurisdiction based on the “quintessentially federal

character of Native American law” and that its “claim for enforcement of a tribal

judgment on non-tribal land relied exclusively on ‘the Federal Government’s

longstanding policy of encouraging tribal self-government.’” Kraus-Anderson

agrees that “the existence of abundant federal common law pertaining to Indian

Tribes is sufficient to invoke federal question jurisdiction.” We therefore begin by

examining the possibility that federal common law created jurisdiction pursuant to

§ 1331. We conclude that it did not.

“‘[C]laims founded upon federal common law as well as those of a statutory

origin’” may give rise to federal question jurisdiction. Nat’l Farmers Union Ins.

Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850, 105 S. Ct. 2447, 2450–52, 85 L.

Ed. 2d 818 (1985) (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S.

Ct. 1385, 1391, 31 L. Ed. 2d 712 (1972)). The Supreme Court has made clear,

however, that vague assertions by Indian-tribe plaintiffs regarding federal common

law to support federal question jurisdiction will not suffice. In Inyo County v.

Paiute-Shoshone Indians, 538 U.S. 701, 123 S. Ct. 1887, 155 L. Ed. 2d 933

(2003), the Court explained that merely relying on the “federal common law of

11
Indian affairs” does not clarify “what federal law, if any, the Tribe’s case ‘aris[es]

under.’” Id. at 712, 123 S. Ct. at 1894 (quoting 28 U.S.C. § 1331)(alteration in

original). See also Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 11

668, 672 (8th Cir. 1986) (“[T]he fact that the Housing Authority is created by and

operates on behalf of an Indian tribe is not alone sufficient to find the existence of

a federal question.”). Likewise, here, the Tribe has failed to explain the specific

prescription of federal common law that enables it to maintain an action to enforce

a judgment handed down by a tribal court in a proceeding to which the defendant

consented by contract.

12

2.

Although the Tribe has failed to identify any federal law or constitutional

provision that its suit arises under, we proceed to consider another way that federal

question jurisdiction may be conferred. Whether a tribal court has adjudicative

 In Inyo County, the Court remanded the case for “focused consideration” as to “what 11

prescription of federal common law enables a tribe to maintain an action for declaratory and

injunctive relief establishing its sovereign right to be free from state criminal processes.” 538

U.S. at 712, 123 S. Ct. at 1894. Here, remand would be futile, because we explore all of the

possibilities based on the complaint’s allegations.

 The district court concluded that it had jurisdiction under § 1331 based on National 12

Farmers and a “persuasive” Ninth Circuit case, Wilson v. Marchington, 127 F.3d 805 (9th Cir.

1997). Wilson discussed the “quintessentially federal character of Native American law.” Id. at

813. Under our view of National Farmers, other Supreme Court precedent, and circuit precedent,

the allegations in the complaint and the nature of Indian law are insufficient to confer federal

jurisdiction for the reasons articulated in this opinion.

12
authority over nonmembers presents a federal question based on federal common

law. Plains Commerce Bank v. Long Family Land & Cattle Co., __ U.S. __, 128

S. Ct. 2709, 2716–17, 171 L. Ed. 2d 457 (2008); Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9, 15, 107 S. Ct. 971, 976, 94 L. Ed. 2d 10 (1987); Nat’l Farmers, 471

U.S. at 852–53, 105 S. Ct. at 2452. In this section, we explain why this case is not

a challenge regarding the reach of Indian power and that subject matter

jurisdiction does not exist on that basis.

In National Farmers, the Supreme Court commented that it “has frequently

been required to decide questions concerning the extent to which Indian tribes

have retained the power to regulate the affairs of non-Indians.” 471 U.S. at 851,

105 S. Ct. at 2451. There, a tribal court entered a default judgment against a state

school district, and the school district sought and received an injunction from a

federal district court preventing further proceedings in the tribal court. Id. at 847,

105 S. Ct. at 2449. The Supreme Court held that in order to invoke federal

question jurisdiction, the school district had to contend that the tribe had been

divested of its sovereign authority to enter a judgment—in essence, that a dispute

existed over the extent of tribal powers. Id. at 852, 105 S. Ct. at 2452. Because

the school district contended that federal law “divested the tribe of this aspect of

sovereignty,” it satisfied this federal question requirement. Id. at 852–853, 105 S.

13
Ct. at 2452. In particular, “[t]he question whether an Indian tribe retains the

power to compel a non-Indian property owner to submit to the civil jurisdiction of

a tribal court” had to “be answered by reference to federal law and is a ‘federal

question’ under § 1331.” Id. at 852, 105 S. Ct. at 2452. “[A] federal court may 13

determine under § 1331 whether a tribal court has exceeded the lawful limits of its

jurisdiction.” Id. at 853, 105 S. Ct. at 2452.

In sum, National Farmers dictates that a dispute over tribal court jurisdiction

is considered a dispute over tribal sovereignty, and therefore—like a dispute over 

tribal sovereignty—is a matter of federal law to which § 1331 applies. This case,

however, does not involve a dispute over the Tribal Court’s jurisdiction. That is,

the Tribe has not asked for a declaratory decree to resolve a dispute over whether 

the Tribal Court had jurisdiction to entertain Kraus-Anderson’s claim for payment

and the Tribe’s set off and counterclaim. Both sides agree that the Tribal Court

possessed such jurisdiction. What the Tribe asks is that the federal district court

14

 Tribal sovereign immunity was not at issue because the school district was 13

undisputedly non-Indian and a subdivision of the state of Montana. Nat’l Farmers Union Ins.

Cos. v. Crow Tribe of Indians, 560 F. Supp. 213, 215 (D. Mont. 1983). 

 A district court cannot entertain a suit for a declaratory judgment unless there is a 14

“definite and concrete” controversy, Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S. Ct.

461, 464, 81 L. Ed. 617 (1937), and, stated above, there is no controversy over the Tribal Court’s

jurisdiction in this case. Further, under Montana v. United States, 450 U.S. 544, 564–65, 101 S.

Ct. 1245, 1258, 67 L. Ed. 2d 493 (1981), no controversy could exist; Montana plainly states that

a nonmember, such as Kraus-Anderson, can consent to tribal court jurisdiction by contract. 

14
domesticate its judgment against Kraus-Anderson so that it can obtain execution

of the judgment pursuant to Federal Rule of Civil Procedure 69. A suit to

domesticate a tribal judgment does not state a claim under federal law, whether

statutory or common law. Thus, the district court lacked § 1331 jurisdiction 

under National Farmers to entertain the Tribe’s complaint. 

3.

Finally, we note that although Rule 8(a) of the Federal Rules of Civil

Procedure requires a complaint to include a “short and plain statement of the

grounds for the court’s jurisdiction,” courts have saved some complaints even

though they lacked a jurisdictional statement because they made references to

federal law sufficient to permit the court to find § 1331 jurisdiction. Cf. Gardner

v. First Am. Title Ins. Co., 294 F.3d 991, 994 (8th Cir. 2002) (“Rule 8(a)(1) is

satisfied if the complaint say[s] enough about jurisdiction to create some

reasonable likelihood that the court is not about to hear a case that it is not

supposed to have the power to hear.”) (alteration in original) (internal quotation

omitted). Here, the complaint is devoid of a single citation to a Constitutional

provision, a federal statute, or a recognized theory of common law as the basis for

the allegation that the Tribe’s cause of action arises under federal law. The barren

complaint provided by the Tribe gives us no indication of how the Tribe expected

15
the district court to recognize, register, and enforce the Tribal judgment. See Pan

Am. Petroleum Corp. v. Superior Court, 366 U.S. 656, 663, 81 S. Ct. 1303, 1307,

6 L. Ed. 2d 584 (1961) (finding it “immaterial . . . that the plaintiff could have

elected to proceed on a federal ground. . . . If the plaintiff decides not to invoke a

federal right, his claim belongs in a state court.”) (internal citation omitted). 

Therefore, we find no other ascertainable basis for jurisdiction under § 1331.

B.

Having concluded that § 1331 does not provide a basis for federal

jurisdiction in this case, we now turn to the other bases for federal jurisdiction

asserted in the complaint, §§ 1332 and 1738. We can quickly reject both

possibilities.

First, as the district court found regarding the possibility of diversity

jurisdiction, “[t]he majority view—followed by every court of appeals that has

addressed the issue—is that unincorporated Indian tribes cannot sue or be sued in

diversity under 28 U.S.C. § 1332(a)(1) because they are not citizens of any state”

(citing cases). Turning to § 1738, the Tribe asserted in its complaint that this

statute—the full faith and credit statute—provided an independent basis for

16
subject matter jurisdiction. We are accordingly faced with the question of

15

whether, under the circumstances presented here, a cause of action seeking the

enforcement of a tribal court judgment creates an independent basis of subject

matter jurisdiction. The clear answer is no.

 Under circuit precedent, it is long established that § 1738 does not,

standing alone, confer jurisdiction on a federal district court to domesticate a

judgment rendered by a court of another jurisdiction. Hazen Research, Inc. v.

Omega Minerals, Inc., 497 F.2d 151, 153 n.1 (5th Cir. 1974). Similarly, an appeal

to comity does not, standing alone, create federal question jurisdiction under 28

U.S.C. § 1331. 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 4473 (2d ed. 2002 & Supp. 2009). As the Sixth

Circuit has noted, an argument that comity brings about federal question

jurisdiction “puts the proverbial cart before the horse. . . . [W]hen an action

already rests on federal question jurisdiction, the theory of comity can serve as a

discretionary basis for a court to determine whether a foreign country court’s

 28 U.S.C. § 1738 provides, in relevant part, that the authenticated 15

records and judicial proceedings of any court of any such State, Territory or

Possession . . . shall have the same full faith and credit in every court within the

United States and its Territories and Possessions as they have by law or usage in

the courts of such State, Territory or Possession from which they are taken.

17
judgment should be given preclusive effect.” Taveras v. Taveraz, 477 F.3d 767,

783 (6th Cir. 2007). Furthermore, the Tribe no longer asserts § 1738 as a basis for

federal jurisdiction; in its supplemental briefing, the tribe states, “As we pointed

out at oral argument, . . . the Tribe did not rely upon § 1738 . . . .” Therefore, we

conclude that none of the provisions cited in the Tribe’s complaint—§§ 1331,

1332, and 1738—confer subject matter jurisdiction to the district court and thus

the Tribe cannot enforce its monetary judgment in federal court.16

III.

A federal court must have subject matter jurisdiction to grant a party the

relief it seeks. Contrary to the district court’s holding, the parties here have not

presented any basis for subject matter jurisdiction. Accordingly, the judgment of

the district court is REVERSED, and the case is REMANDED with direction to

the district court to dismiss for lack of subject matter jurisdiction. 

SO ORDERED.

 Although we hold that the Tribe cannot sue in federal court to enforce the Tribal Court 16

judgment it obtained against Kraus-Anderson, the Tribe is not without a remedy—there are other

possible ways for the Tribe to enforce the judgment. The Tribe can use tribal law procedures to

obtain execution of the judgment, seizing Kraus-Anderson’s assets, if any, in the reservation. 

The Tribe can also seek enforcement of the judgment in state court and will prevail if the state

court elects to grant comity to the Tribal Court’s judgment.

18