### FILED U.S.COURT OF APPEALS ELEVENTH CIRCUIT 06/07/99 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 96-5262

D.C. Docket No. 92-CV-489-SH TAMIAMI PARTNERS, LTD. by and through TAMIAMI DEVELOPMENT CORP., its general partner, Plaintiff-Appellee,

versus MICCOSUKEE TRIBE OF INDIANS OF FLORIDA; BILLY CYPRESS; JASPER NELSON; JIMMIE BERT; MAX BILLIE; HENRY BERT; and DEXTER LEHTINEN, Defendants-Appellants.

Appeals from the United States District Court for the Southern District of Florida

(June 7, 1999)
Before TJOFLAT and BIRCH, Circuit Judge s, and RONEY, Senior Circuit Judge. TJOFLAT, Circuit Judge: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 basi s of sovereign immunity); Mandel v. Miccosukee Tribal Gaming Agency , No. CV 93-18, 22 Indian L. Rep. 6148 (Miccosukee Tribal Ct. Jan. 31, 1994) (affirm ing 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).
2 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 mo st recent incarnation of this dispute is Tamiami’s second ame nded 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 de fendants”). In the district court, all of the defendants filed motions to dism iss 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 part III.B., we affirm the di strict court’s order on these issues with respect to the Tribe. As to the individual defendants, however, we hold2 Most of the facts we recite in part I are drawn from the reco rd 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 o ccasionally draw upon the allegations in Tamiami’s second amended complaint, wh ich we accept as true in reviewing the defendants’ motions to dismiss. See Jackson v. Okaloosa County , 21 F.3d 1531, 1534 (11th Cir. 1994).
3 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 Ec onomic 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-y ear 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 purchas e a parcel of real estate (outside the4 Miccosukee reservation), convey the parcel to the United States intrust for the Tribe, and then design, construct, and manage a bingo facility on that parcel. Two provisions of the Agreement are part icularly relevant here. Article 12 provides that “[a]ll disputes, controversies and/or claims arising out of or relating to this Agreement, or the breachthereof, shall be settled by arbitration . . . .” Under Article 23 of the Agreement, the Tribe wa ived its common-law immunity from a suit brought by TDC either to compel arbitr ation 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, sha ll have jurisdiction over the parties hereto in order to enforce the term s 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 12, or (ii) failure by [the Tribe] to abide by the terms of an arb itration award. . . . This waiver of sovereign immunity shall not beco me effective until [TDC] has given written notice to the Miccosukee Tribal Business Council, detailing the nature of the complaint and the [T ribe] 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 approva l, 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 facility5 and began operating it as Miccosukee Indi an Bingo (“MIB”) in September 1990. On August 9, 1991, the Tribe adopted an ordi nance 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 intere st 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 Tr ibe 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 repeatedand flagrant violations of the letter and spirit of that Ag reement.” On February 25, pursuant to Article 12 of the Agreement, Tamiami formallydemanded arbitration “to determine the validity of the Tribe’s purported notice of termination.” The Tribe responded by filing a “Statement of Claim” in Miccosukee Trib al Court to obtain a declaration that the Agreement had been terminated. On February 27, Tamiam i 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 that6 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 pe nding the completion of such arbitration. On March 5, 1992, the district court issuedits first “omnibus order” in the case. As a threshold matter, the court determin ed 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, howev er, 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 issueda ruling that directed the parties to initiate arbitration proceedings in accordan ce 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 allege d in its motion that the Tribe, under the pretext of issuing legitimate license denial s, was engaging in se lf-help in order to prevent Tamiami from operating MIB and thus effectively termin ate the Agreement. In its second omnibus order, issued on August 19, the district court addressed this7 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 ma de 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 proce ss. 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 pre liminary 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 prin cipal officers – Cye Mandel and John Sisto. The Gaming Agency also appointed a conservator to take control of MIB and to8 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, Florid a. The Tribal Court ratified the conservator’s appointment the same day. The Tribal po lice then forced Mandel and Sisto to leave the MIB premises, the MI B 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 th e license applications of Tamiami, TDC, Mandel, and Sisto. In its vi ew, these rejections were simply an attempt to circumvent the ongoing arbitration and to terminate th e Agreement. Accordingly, the court declared that all of the Tr ibe’s April 13 actions were voi d 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 app eal. We permitted the Tribe’s appeal and consolidated it with Tamiami’s two pending interlocutory appeals.3 Under the well-pleaded complaint ru le, a case does not raise an issue of federal law “unless a federa l question is presented on the face of the plaintiff’s complaint.” Kemp v. Intern ational Bus. Machs. Corp. , 109 F.3d 708, 712 (11th Cir. 1997).
9 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 fe deral question within the meaning of 28 U.S.C. § 1331 (1994). See Tamiami I , 999 F.2d at 506-07. Th e panel recognized that “[t]he right to be protected against an unlaw ful 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 distri ct 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 withdirections 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 508.4 This court gleaned these three claims fro m 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 ha d 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 Tr ibal Court and its j udges to be moot, see id

. at 1044, 1046 n.57, we do not discuss them further here.
10 B. On remand, Tamiami accepted the pane l’s invitation by filing an amended complaint on September 14, 1993. This comp laint 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 th e 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 author ity conferred by IGRAand its associated regulations by refusing to license Tamiam i, TDC, Mandel, and Sisto. Tamiami therefore sought an order declaring that su ch abuses had occurred and enjoining the Gaming Agency to issue the requested licen ses. Tamiami’s third claim, which also11 pertained to the licensing authority conf erred by IGRA and its regulations, was brought against individual members of the Tribe’s Business Council and Gaming Agency. According to Tamiam i, because these individuals were executing the Tribe’s plan to assume control of MIB by refusi ng to license Tamiami’s key personnel, they were subject to suit under IGRA in the districtcourt. 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 schedul ed a final hearing for Sept ember 23. On September 15, the Tribe filed a motion in Tribal Court re questing 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 authorityfrom Article 12 of th e Agreement and that the Miccosukee Tribal Court had no jurisdic tion to enforce that article. The panel therefore proceeded to hold its final h earing as scheduled, albeit without the participation of the Tribe or its chosen arbi trator. On October 6, a majority of the panel issued a decision in which it found th at 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 a12 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 re structured the management of MIB by terminating the conservator. At the Tr ibe’s direction, the conservator withdrew Tamiami’s share of net revenues from the trust account at Je fferson 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 f iled 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 – “n amely, 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 Agencywere barred because the Tribe had not13 clearly waived its immunity and Congress had not abrogated it. Accordingly, the court dismissed these claims with prejudice. With regard to th e 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 Tr ibe’s sovereign immunity did not shield the individual defendants given Tamiami’s a llegation that they had “acted beyond the authority that the Tribe is capable of be stowing upon them under fe deral 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 agains t 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 th e district court, the panel held that each of Tamiami’s three claims presented a fede ral question. Tamiam i’s claim that the Tribe had breached the Agreemen t, according to the panel, was essentially a claim that the Tribe – acting through its Gaming Agency – had violated IGRA and its associated14 regulations (which the Agreement incor porated) by failing to process Tamiami’s license applications in good faith with th e 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 th is 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 cl aims 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 C ongress had not abrogated and the Tribe had not clearly waived. Although Article 23 of the Agreem ent did provide a waiver for the limited purposes of compelling the Trib e to arbitrate or enforcing an arbitration award, the panel found that Tamiami’s first claim – “sim ply 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 wa iver. 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 co mplaint, however, does not seek that relief. Tamiami remains free, of c ourse, 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.15 Id . at 1048 n.66. As to Tamiami’s second cl aim 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 Tami ami’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 Cohencollateral 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 proceededto 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 dec lined to decide, however, whether Tamiami could state a claim for relief agains t 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 Tamiami16 filed on November 17, 1995, c ontains 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 firs t 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 Agr eement – including the licensing dispute – are arbitrable; and (b) a declaration against a ll 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 w ith the October 1993 arbitration award and compelling the Tribe to arbitrat e certain other disputes arisi ng 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 Ap ril 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 De xter Lehtinen. In this count, Tamiami contends that Cypress and Lehtinen caused to be converted to the Tribe certain sums rightfully belonging to Tamiami, includi ng the $1.5 million in the frozen Jefferson5 Certain defendants included a fourthground 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.
17 National Bank trust account and a $50,000 advance that was in the custody of the conservator as of April 13, 1993. As a re sult of this conversion, Tamiami requests compensatory damages “in excess of $1.5 m illion.” The sixth count requests that the court order all defendants to make an acc ounting to Tamiami for the funds taken from the frozen account and for MIB’s revenues si nce October 1993. In addition, Tamiami seeks a judgment imposing a constructive trus t over its forty percent share of MIB’s net revenues, the funds in the frozen acc ount, 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 date d September 27, 1996. In its brief opinion, the court found that th e first three counts of Tamiami’s complaint were predicated on the arbitration clause of the Agreement. Ref erring to the Tamiami
II panel’s comments in footno te 66, it concluded that the Eleventh Circuit had contemplated the assertion of such arbitration claims on remand. The court therefore18 rejected the defendants’ arguments as to those claims. Turning to counts four through six, the court found that it had supplementa l jurisdiction to consider the state law claims asserted therein. The court also re jected “the individual defendants’ invocation of sovereign immunity as to the claims a sserted 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 c ourt’s denial of the defendants’ motions, however, we must exercise care in determ ining which of these three issues are presently before us for review. We have no doubt that the issue of subjectmatter jurisdiction is before us. As a threshold matter, we have a special oblig ation 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 Better6 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)).
19 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 co rrecting 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 c onsider whether the district court erred in finding that it had subject matter jurisd iction over Tamiami’s complaint. Cf . In re Sealed Case , 131 F.3d 208, 210-12 (D.C. Cir. 1997) (considering issue of subject matter jurisdiction before addressing issue th at qualified for interlocutory appeal under collateral order doctrine). The issue of sovereign immunity is al so properly before us. Under 28 U.S.C. § 1291 (1994), we have “jurisdic tion of appeals from all final decisions of the district courts . . . , except where a direct reviewmay be had in the Supreme Court.” The Cohencollateral order doctrine gi ves a “practical constructi on” to this final decision rule by permitting appeals “from a small cat egory of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’” Swint v. Chambers7The defendants do not – and could not – re ly upon either Cohenor 28 U.S.C. § 1292 (1994) as a basis for their contention th at we have jurisdiction to consider the issue of whether Tamiami has failed to state a claim.
20 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 sm all category of immediately appealable decisions “includes only decisions that are conclusive, that resolve important questions separate from the merits, and th at 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 Tamiam i has failed to state a claim, the defendants ask us to exercise pendent appe llate 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 meaningf ul 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,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 th at 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 di d not view these issues as inextricably intertwined.
21 however, a brief overview of the defe ndants’ specific contentions suffices to demonstrate that the issue of whether Tamiam i has failed to state a claim is not in fact inextricably intertwined with th e issue of sovereign immunity. 8 The defendants argue that Tamiami has failed to state a clai m 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 eith er federal or state law. Plainly, these arguments are wholly unrelated to the defe ndants’ contentions that Tamiami’s claims against the Tribe do not fall within the Trib e’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 pe ndent appellate jurisd iction 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.22 III.
A. The issue of whether the district court had subject matter jurisdiction over Tamiami’s complaint is a ques tion 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 Agreem ent. They argue that such disputes do not raise a federal question and that the statement in Artic le 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 f act that a dispute concerns a contract or an agreement to arbitrate, without more , does not raise a fede ral question. See Tamiami I , 999 F.2d at 507 (holding that the presentation of facts establishing a breach of contract claim does not state a federal question); Merrill Lynch, Pierce,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 Agr eement regarding the licensing of [Tamiami] and its principals [are] arbitrable.” Th e 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 Tr ibe 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 li censing authority and rejected [Tamiami] applications for the sole purpose of taking over MIB.”
23 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 arbitr ate. Each of these counts – at least in part – concerns the arb itration of Tamiami’s claims that the Tribe had an obligation under the Agreement to pr ocess 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 a pplications for the sole purpose of taking
over MIB. 10 These very same claims were before this court in Tamiami II , albeit in11 The Federal Arbitration Act empowers a district court to issue an order compelling arbitration if the court, “save fo r [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” Tamiam i’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) comp laint asks for the same re lief that was held not to provide a basis for federal ques tion 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. Becau se the subsequent licensing dispute between the parties ha d not yet arisen when the ve rified complaint was filed, that complaint understandably made no alle gations and requestedno relief regarding the licensing dispute. It is this licensing dispute – not the earlier termination dispute – that provides a basis for exercising fe deral question jurisdiction over Tamiami’s current complaint. We are aware that Tamiami’s “supplemen tal” 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.
24 the context of a direct breach of contractsuit against the Trib e. The Tamiami II panel concluded that these claims arose unde r 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 impli cated when these clai ms are presented in the arbitration context, 11 we must follow the Tamiami II panel’s conclusion here. 1225 We hold, therefore, that th e first three counts of Tamiam i’s complaint state a federal question insofar as they relate to the Trib e’s rejection of gaming license applications. The portions of these counts that do not re late to gaming licenses are plainly within the supplemental jurisdiction of the distri ct court; the defendants do not contend otherwise. The defendants do contend, however, that the district court lacked the power to exercise supplemental jurisdiction ove r 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 s upplemental 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 contr oversy under Article III of the United States Constitution.” In other words, a district c ourt 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.26 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 Tribe while its re maining 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 suprapart I.C. In addition, it is clear from section 1367 itsel f that the parties to the federal and supplemental claims need not be identical inorder for supplemental jurisdiction to lie.
See 28 U.S.C. § 1367(a) (“Such supplemental jurisdiction shall include claims that involve the joinder or interven tion of additional parties.”). Second, defendant Lehtinen argues thata 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 th e 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 f unds (such as those in the frozen account),27 while the facts necessary to the resolution of Tamiami’s federal claims concern the arbitration provisions of the Agreement be tween 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 jurisdicti on over the state-law claims is unavailable. We find Lehtinen’s conception of supplem ental 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 termin ated the Agreement through a series of actions by the indivi dual 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 federa l 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 Trib e and the individual defendants. This strategic decision, however, did not catalyze some mysterious fissile process that split the sphere of operative facts surrounding th e 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.28 B. We now turn to the district court’s ru ling that the Tribe’s sovereign immunity does not shield the Tribe and the individua l defendants from suit. The issue of a sovereign’s immunity from suit is a que stion 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 th e 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, wa ived its immunity from suit by Tamiami or Congress, by enacting IGRA, abrogate d that immunity.” Tamiami II , 63 F.3d at 1048. Although we concluded in Tamiami II that IGRA did not pur port to abrogate the sovereign immunity of tribes that engage in bingo gaming, we also found that the Tribe partially waived its immunity inArticle 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. See13 Count five of the complaint is not di rected against the Tribe; it seeks only to hold Cypress and Lehtinen indi vidually liable for conversion.

14 We read count one (a) as requesting only that the district court, prior to ordering the Tribe to arbitrate a given disput e as requested in count three, determine that Tamiami has properly invoked an arbitr ation 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 perm its the district court to “enforce the terms [of the Agreement] speci fically, [in the event that the Tr ibe] fails to participate in an arbitration proceeding invoked as provided in Article 12.”
29 suprapart I.A. (quoting Article 23). To the ex tent that counts one (b), four, and six of the second amended complaint – which s eek, respectively, a declaration that the frozen funds belong to Tamiami, an injunc tion compelling the return of these funds, and an accounting and the imposition of a cons tructive trust – are directed against the Tribe, 13 we agree that these counts do not fa ll 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 di sputes 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 outof or relating to the Agreement. Plainly, these counts seek the type of relief expressly contemplated by Article 23. 14 Thus, the15 Each of the individual defendants clai ms tribal officer status; Tamiami does not dispute this claim. We therefore a ssume, without deciding, that all of the individual defendants – including attorney Le htinen – were officer s of the Tribe who undertook the complained-of actions intheir 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); Tenn eco 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); c f . 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 s overeign immunity from a suit to enjoin enforcement of a tribal or dinance that allegedly violated a federal statute).
30 district court correctly refused to dismiss these counts on the ground of sovereign immunity. Turning to the individual defendants’ cl aims 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 de fendants from Tamiami’s suit. Our holding pertained to the third c ount of Tamiami’s amended complaint, which was brought31 under IGRA and its regulations. This count essentially alleged that the individual defendants, by abusing the licensing authority conferred by IG RA, had acted beyond the authority that the Trib e was capable of bestowing upon them. Tamiami’s claims against the individual defendants in its pr esent (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 theo ries under which the individual defendants must pay it forty percent of MI B’s net revenues. In our vi ew, these claims against the individual defendants are si mply 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 Youngdoes not permit individual officers of a sovereign to be sued when the relief requestedwould, 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 defe ndants’ claims of sovereign immunity under the doctrine of Ex parte Young

.32 IV. For the foregoing reasons, the defendant s’ request that we exercise pendent appellate jurisdiction over th e issue of whether Tamiami’ s second amended complaint fails to state a claim is DENIED. On th e 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), tw o, and three, and REVERSED as to counts one (b), four, and six. The districtcourt’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.