IOWA MANAGEMENT & CONSULTANTS, INC., Appellant, v. SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, Meskwaki Nation, Appellee, 207 F.3d 488

FAGG, Circuit Judge. The Sac & Fox Tribe of the Mississippi in Iowa, Meskwaki Nation (Tribe) moved successfully to dismiss Iowa Management & Consultants, Inc.’s (IMCI) complaint. IMCI appeals, and we affirm. IMCI contracted to provide certain gaming-related services to the Tribe, but the relationship ultimately soured and the Tribe suspended the agreement.

After IMCI sought arbitration under the agreement’s binding arbitration clause, the Tribe requested dismissal of the arbitration proceedings, claiming the agreement was a management contract that required approval by the National Indian Gaming Council (NIGC), see 25 U.S.C. § 2711 (1994); 25 C.F.R. § 533.1 (1999), that the required approval had not been obtained, and that the agreement was thus void, see id. § 533.7. The arbitration panel concluded that it did not have jurisdiction over the matter and that the contract issues had to be resolved elsewhere.

IMCI then filed a complaint in federal district court, alleging the agreement “was breached when the Tribe ‘suspended’ it” (Comply 4) and requesting an order compelling both arbitration and the establishment of an escrow account under the terms of the agreement. IMCI also alleged: The Tribe’s contention is, apparently, that the [agreement] is void as between the parties and therefore [the Tribe] cannot be forced to continue with arbitration ....

The [agreement], contrary to the Tribe’s contention, is a binding and valid Consulting Agreement, not a management contract, which did not need NIGC approval and is otherwise enforceable against the Tribe in every respect....

A federal question (i.e., is the [agreement] the type of contract which needs NIGC approval) has now been raised by the Tribe which must first be resolved before arbitration can continue. (Compl.lffl 7, 8, 11.) The district court granted the Tribe’s motion to dismiss the complaint for lack of subject matter jurisdiction, concluding IMCI did not present a federal question in its affirmative allegations and instead impermissibly relied on the Tribe’s anticipated defense to create federal question jurisdiction.

On appeal, IMCI contends the district court improperly concluded IMCI’s complaint failed to state a federal question creating subject matter jurisdiction under 28 U.S.C. § 1331. We disagree. “The presence or absence of federal [ ] question jurisdiction is governed by the ‘well-pleaded complaint’ rule,” which provides that the plaintiffs claim itself must present a federal question “ ‘unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.’ ” Oklahoma Tax Comm’n v.

Graham, 489 U.S. 838, 840-41, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) (citation omitted); accord Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Here, IMCI alleges a routine contract action involving the Tribe, a matter over which federal courts do not have jurisdiction, see TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir.1999), and IMCI’s anticipatory, contention that the Tribe may invoke the provisions of IGRA as a defense is insufficient to confer federal question jurisdiction on this court, see id.

IMCI’s allegation that it is entitled to arbitration under the Federal Arbitration Act (FAA) also fails to present a federal question because the FAA “does not create ... federal [ ] question jurisdiction [absent] ... some other independent basis for federal jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). We thus affirm the district court’s dismissal of IMCI’s complaint for lack of subject matter jurisdiction.