Post on 24-Jun-2020
DOCKET NO. 13-13886-A
United States Court of Appeals
for the
Eleventh Circuit
STEPHANIE MASTRO, an individual,
Plaintiff-Appellant,
v.
SEMINOLE TRIBE OF FLORIDA,
d/b/a/ Seminole Indian Casino-Immokalee,
Defendant-Appellee.
_____________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
IN CIVIL DOCKET FOR CASE #: 2:12-cv-00411-SPC-UAM
(Hon. Sherri Polster Chappell)
BRIEF OF APPELLEE
DONALD A. ORLOVSKY, Esq.
FBN 0223816
KAMEN & ORLOVSKY, PA
P.O. Box 19658
West Palm Beach, Florida 33416
T: (561) 687-8500
Email: dao4law@aol.com
Counsel for Appellee
Counsel Press, LLC (804) 648-3664 * (800) 275-0668
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Stephanie Mastro v. Seminole Tribe of Florida Case No. 13-13886-A
Page C-1 of 2
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rule 26.1-1, the undersigned counsel for
Appellee, Seminole Tribe of Florida (Tribe) hereby certifies that the following
is a list of persons and entities who may have an interest in the outcome of this
case:
INTERESTED PERSONS
1. James F. Allen (CEO, Seminole Gaming)
2. James E. Billie (Chairman, Seminole Tribal Council)
3. Andrew J. Bowers, Jr. (Seminole Tribal Council member)
4. Patrick Cain (Former HR Director – Seminole Indian Casino –
Immokalee)
5. David Carroll (HR Director of HR STOF)
6. Hon. Sheri Pollster Chappel, USDC FLMD
7. Timothy W. Davis (EEOC Investigator)
8. Florida Commission on Human Relations
9. Juan Gonzalez (EEOC Enforcement Supervisor)
10. Kamen & Orlovsky, P.A. (Attorney for Tribe)
11. Michael A. Kamen, Esq. (Attorney for Tribe)
12. LaVonne Kippenberger (Tribal Clerk)
13. Malcolm S. Medley (EEOC District Director)
14. Hon. James S. Moody, USDC FLMD
15. Louis Mastro (appellant’s spouse/former spouse)
16. Stephanie Mastro (appellant)
17. Donald A. Orlovsky, Esq. (Attorney for Tribe)
18. Marcellus W. Osceola, Jr. (Former Tribal Council Member)
19. Christopher Osceola (Seminole Tribal Council member)
20. Tony Sanchez (Vice Chairman, Seminole Tribal Council)
21. Priscilla D. Sayen (Tribal Secretary)
22. Seminole Tribe of Florida d/b/a Seminole Gaming and d/b/a Seminole
Indian Casino – Immokalee (Appellee)
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Stephanie Mastro v. Seminole Tribe of Florida Case No. 13-13886-A
Page C-2 of 2
23. Robin Serpas (alleged perpetrator of sexual harassment)
24. Jim Shore, Esq. (General Counsel of Tribe)
25. Manuel Mondo Tiger (Seminole Tribal Council member)
26. US Equal Employment Opportunity Commission – Miami District
Office
27. Benjamin Yormak, Esq. (attorney for appellant)
28. Yormak Employment & Disability Law Firm (attorney for appellant)
CORPORATE DISCLOSURE
In this regard to “corporate disclosure,” there are no publicly traded
companies with an interest in the outcome of this matter.
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 34(a), Appellee, Seminole
Tribe of Florida, does not oppose Appellant’s request for oral argument; however,
the Tribe does not believe that oral argument is necessary or that it will materially
assist the Court with respect to the issues raised and discussed in the briefs filed by
the parties based upon the fact that Mastro’s claims are jurisdictionally barred
under the doctrine of tribal sovereign immunity and Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e(b)(1) (Title VII) excludes Indian
tribes, by definition, from being considered as an employer under the statute.1
1 There is nothing in the Record that shows that the Tribe has clearly, expressly
and unmistakably waived its tribal sovereign immunity from suit, or that
Congress, in the exercise of its plenary power over Indian tribes and Indian
Commerce, has abrogated tribal sovereign immunity with unmistakable clarity
as to any of Mastro’s state or federal claims against the Tribe. Moreover, in
view of the fact that the Seminole Indian Casino-Immokalee is and has always
been owned and operated by the Tribe—not through a state or federally
chartered tribal corporation or other entity, but as an arm and instrumentality of
the Tribe itself, which directly owns and operates the Casino and ancillary
facilities, under a fictitious name, pursuant to the Indian Gaming Regulatory
Act of 1988 (the IGRA), 25 U.S.C§ 2701, et seq, the Tribe is excluded, by
definition, from being considered an “Employer” under Title VII, legislation
which is based solely and exclusively upon the Employer-Employee
relationship.
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TABLE OF CONTENTS
Certificate of Interested Persons and Corporate Disclosure Statement ...... C-1
Statement Regarding Oral Argument .............................................................. i
Table of Contents ............................................................................................ ii
Table of Authorities ....................................................................................... iii
Statement of Jurisdiction ................................................................................ vi
Statement of the Issues .................................................................................... 1
Statement of the Facts and Case ..................................................................... 1
Standard of Review ......................................................................................... 4
Summary of the Argument .............................................................................. 5
Argument......................................................................................................... 8
A. Tribal Sovereign Immunity-Background ............................................. 8
B. Title VII Claim Against Seminole Casino .......................................... 11
C. Ordinance C-01-95: The Tribal Sovereign Immunity Ordinance ...... 12
D. Kiowa as Dicta? .................................................................................. 16
Conclusion .................................................................................................... 18
Certificate of Compliance
Certificate of Service
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TABLE OF AUTHORITIES
Cases
American Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux
Tribe,
780 F.2d 1374 (8th Cir. 1985) ...............................................................................10
Beers v. Arkansas,
61 U.S. (20 How.) 527 (1857) ..............................................................................15
Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831) .......................................................................................... 9
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida,
692 F. 3d 1200 (11th
Cir. 2012) .............................................................................. 4
Dawavendewa v. Salt River Project Agr. Imp. and Power Dist.,
276 F.3d 1150 (9th Cir. 2002) ..........................................................................7, 11
Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida,
166 F. 3d 1126 (11th
Cir. 1999) .............................................................................. 5
Furry v. Miccosukee Tribe of Indians of Florida,
685 F.3d (11th Cir. 2012) .....................................................................................6, 7
Kiowa Tribe of Oahoma v. Manufacturing Technologies, Inc.,
523 U.S. 751 (1998) ..................................................................................... passim
Mader v. United States,
654 F.3d 794 (8th Cir. 2011) ................................................................................15
Memphis Biofuels v. Chickasaw Nation Industries, Inc.,
583 F.3d 917 (6th Cir. 2009) ................................................................................14
Namekagon Development Company v. Bois Forte Reservation Housing Authority,
517 F.2d 508 (8th Cir. 1975) .................................................................................10
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iv
Nanomantube v. Kickapoo Tribe in Kansas,
631 F.3d 1150 (10th Cir. 2011) ........................................................................7, 11
Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of
Oklahoma,
498 U.S. 505 (1991) ................................................................................................ 6
Price v. United States and Osage Indians,
174 U.S. 373 (1899) .............................................................................................15
Ramey Construction Company, Inc. v. Apache Tribe of Mescalero Reservation,
673 F.2d 315 (10th Cir. 1982) ...............................................................................10
Sanderlin v. Seminole Tribe of Florida,
243 F. 3d 1282 (11th Cir. 2001) ...........................................................................5, 6
Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978) ....................................................................................... 6, 8, 10
State of California v. Queschan Tribe of Indians,
595 F.2d 1153 (9th Cir. 1979) ...............................................................................11
Taylor v. Alabama Intertribal Council,
Title IV J.T.P.A., 261 F.3d 1032 (11th Cir. 2001) ................................................. 7
U.S v. United States Fidelity & Guaranty Company,
309 U.S. 506 (1940) .............................................................................................14
United States v. Kagama,
118 U.S. 375 (1886) ................................................................................................ 9
United States v. Sandoval,
231 U.S. 28 (1913) .................................................................................................. 9
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v
Rules, Statutes, and Other Authorities
25 U.S.C. § 476 ......................................................................................................1, 8
25 U.S.C. § 477 .......................................................................................................... 3
25 U.S.C. § 2701 ........................................................................................................ 2
42 U.S.C. 2000e(b) .......................................................................................... passim
75 Fed. Reg. 38833-38834 ......................................................................................... 3
Florida Civil Rights Act of 1992 .............................................................................1, 6
Tribal Sovereign Immunity Ordinance, Ordinance C-01-95 ........................... passim
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vi
STATEMENT OF JURISDICTION
While the Tribe asserts that Mastro’s claims are jurisdictionally barred under
the doctrine of tribal sovereign immunity, the Tribe recognizes that the District
Court possesses the judicial power to examine the jurisdictional issues raised by
Plaintiff in order to determine whether subject matter jurisdiction exists and
whether the District Court possessed the jurisdictional power to proceed. In view
of the fact that two of Mastro’s claims were pled and allegedly arose under Title
VII, the District Court arguably had federal question jurisdiction under 28
U.S.C.§ 1331.
In view of the fact that the District Court determined in a final order that
each of Mastro’s claims against the Tribe were jurisdictionally barred, and
dismissed the case, with prejudice, thereby disposing of the claims of all parties,
this Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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STATEMENT OF THE ISSUES
1. Whether 42 U.S.C. §2000e(b)(1) excludes, by definition, the Seminole
Tribe of Florida, a federally recognized Indian tribe organized under Section 16 of
the Indian Reorganization Act of 1934, as amended, 25 U.S.C. §476, doing business
as Seminole Indian Casino-Immokalee, from being considered “an employer” within
the meaning of Title VII, or under the provisions of the Florida Civil Rights Act of
1992, Section 760.10, et seq., Florida Statutes.
2. Whether the Seminole Indian Casino-Immokalee, which is owned and
operated by the Tribe itself, is a subordinate instrumentality of the Seminole Tribe
of Florida entitled to the same sovereign immunity protection afforded to the Tribe
in its governmental affairs?
STATEMENT OF THE CASE AND FACTS
The Tribe concurs with and adopts that portion of Appellant’s Statement of
the Case, entitled “Nature of the Case” and “Course of Proceedings Below”
(Mastro Principal Brief @ 3-4), but would add the following:
The Seminole Tribe of Florida (Tribe) is a federally recognized Indian tribe
organized under Section 16 of the Indian Reorganization Act of 1934, as amended,
25 U.S.C. § 476, doing business as Seminole Indian Casino-Immokalee, as
evidenced by the fictitious name documentation obtained from the records of the
Florida Secretary of State which are attached as Exhibit “B” to the Tribe’s motion
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to dismiss Mastro’s original complaint (Docket Entry (DE) 1 and 12, Ex. “B”)
which incorrectly named Seminole Hard Rock International, a Florida Limited
Liability Corporation as the defendant. Among the Florida Secretary of State
documentation attached to the Tribe’s motion to dismiss and contained in the
record of this case are Fictitious Name Registrations and Renewals, (signed by
James E. Billie, as the Chairman of the Tribal Council) and associated transmittal
correspondence (signed by Jim Shore, the Tribe’s General Counsel) which reveal
that the registered owner of the fictitious name for the casino on the Immokalee
Seminole Indian Reservation is the Seminole Tribe of Florida, a federally
recognized Indian tribe located at the Tribe’s Governmental Headquarters at 6300
Stirling Road in Hollywood, Florida with Taxpayer ID 59-1415030. (See, DE 12;
Tribe’s Appendix @ Ex. “A”).
Plaintiff, Stephanie Mastro, was hired by the Tribe in or about November
2008, to work on the Tribe’s Immokalee Reservation as a card dealer at the
Seminole Indian Casino-Immokalee. (DE20@2; DE 40@1)
The Tribe’s Immokalee Casino is wholly owned and operated by the Tribe
in accordance with the provisions of the IGRA, 25 U.S.C. § 2701, et seq. which
authorizes Indian Tribes to conduct gaming activity on restricted tribal trust land
pursuant to a Gaming Compact between the Tribe and the State which has been
approved by the National Indian Gaming Commission and published in the Federal
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Register. The Tribe’s Immokalee Casino in this case is located on restricted tribal
trust land in reservation status, commonly referred to as the Immokalee Seminole
Indian Reservation, within the geographical confines of Collier County in the State
of Florida. The approval of the Gaming Compact between the Tribe and the State
of Florida is one based upon gaming activity wholly conducted by the Tribe itself
and not by any state or federally chartered tribal corporation or other entity. The
approval of the Gaming Compact between the State of Florida and the Tribe is 75
Fed. Reg. 38833-38834 (July 6, 2010).
The Tribe partially agrees with Mastro’s Statement of the Facts on pages 4
and 5 of Appellant’s Principal Brief, but would add the following:
On November 21, 2012, Mastro filed an amended complaint which
incorrectly named Seminole Tribe of Florida, Inc. as the party defendant. (DE 20).
Seminole Tribe of Florida, Inc. is a federally chartered tribal corporation organized
pursuant to Section 17 of the Indian Reorganization Act of 1934, as amended, 25
U.S.C. § 477. Not long thereafter, Mastro learned that this federally chartered
tribal corporation has never held any ownership or operational interest in tribal
gaming of the Tribe. Accordingly, on or about January 7, 2013, Mastro filed a
further Amended Complaint (DE 25) naming Seminole Tribe of Florida dba
Seminole Indian Casino-Immokalee as the proper party defendant and real party-
in-interest.
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Throughout her principal brief, Mastro refers to the Appellee as the
“Casino” and suggests that it is somehow commercially different from the
sovereign tribal government of the Tribe. The Casino, however, is an integral
part of the tribal government which has, since its inception, funded a large
portion of the tribal treasury. Mastro makes this point, in large part, by
correctly naming the Tribe in the caption of the case: “SEMINOLE TRIBE
OF FLORIDA d/b/a Seminole Immokalee Casino.”
Based upon the Tribe’s ownership and operation of its Immokalee and other
Casinos, each of which are located on restricted the Tribe’s tribal trust land,
Mastro’s claims are jurisdictionally barred by the doctrine of tribal sovereign
immunity. Nowhere in the Record has Mastro pled or shown any concise
statement of facts which reflect a clear and unmistakable waiver of tribal sovereign
immunity by the Tribal Council in accordance with the exclusive method for
doing so, as set forth in the the Tribe’s Tribal Sovereign Immunity Ordinance,
Ordinance C-01-95,which is attached and made a part of the Tribe’s Motion to
Dismiss for Lack of Subject Matter Jurisdiction. (DE 28, Ex. “B”).
STANDARD OF REVIEW
The standard of review for an order dismissing a complaint for lack of
subject matter jurisdiction based upon the jurisdictional bar of tribal sovereign
immunity is de novo. Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of
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Florida, 692 F. 3d 1200, 1203 (11th Cir. 2012); Sanderlin v. Seminole Tribe of
Florida, 243 F.3d 1282, 1285 (11th Cir. 2001); Florida Paraplegic Association v.
Miccosukee Tribe of Indians of Florida, 166 F. 3d 1126, 1128 (11th
Cir. 1999).
SUMMARY OF THE ARGUMENT
Mastro’s Principal Brief contains a glaring omission; that is, a candid
disclosure to the Court that what Mastro really seeks in this appeal is a change,
extension or modification of existing law to permit an employment discrimination
claim for relief against an Indian tribe which survives the jurisdictional bar of tribal
sovereign immunity in cases involving commercial rather than governmental activity
of the Tribe. Such a disclosure would at least provide context to statements
contained in the Brief that seem fanciful and far-fetched when considered in the face
of well settled legal principles that guided the District Court to dismiss the underlying
action on tribal sovereign immunity grounds. (DE 40 and 41)
There are three basic reasons why the final order of dismissal should
respectfully be affirmed. First, the Record on appeal is void of any information
which suggests a clear, express and unmistakable waiver of tribal sovereign
immunity by the Tribe. Secondly, the Record on appeal is void of any information
which suggests a clear, express and unmistakable abrogation of tribal sovereign
immunity by an Act of Congress as to Mastro’s claims or the type of claims involved.
Despite the clear language contained in Title VII’s exclusion of Indian tribes from the
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definition of an “Employer” under the Act, Mastro seeks to have this Court read into
the clear and straight-forward language of the definitional exclusion contained in 42
U.S.C.§ 2000e(b)(1), restrictive considerations which Congress did not see fit to
include.
As a sovereign tribal government, the Tribe, and all of its instrumentalities
and subordinate governmental and economic units are immune from suit and are not
subject to the jurisdiction of state or federal courts absent the clear and unmistakable
consent of the Tribe or a clear, express and unmistakable abrogation of tribal
sovereign immunity by Congress, neither of which exist in this case. Kiowa Tribe of
Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), Oklahoma Tax
Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505
(1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Sanderlin v.
Seminole Tribe of Florida, 243 F. 3d 1282 (11th Cir. 2001) ; Furry v. Miccosukee
Tribe of Indians of Florida 685 F.3d 1224 (11th Cir. 2012).
In this case, the Tribe is also excluded, by definition, from being considered an
employer under Title VII, an employment discrimination statute which is solely
applicable to the Employer-Employee relationship, which does not exist in this case
Moreover, at no time has the Tribe waived its tribal sovereign immunity from suit
under either Title VII or under the provisions of the Florida Civil Rights Act of 1992,
section 760.10 et seq., Florida Statutes.. In fact, the Tribe’s sovereign immunity
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ordinance, C-01-95, prescribes that tribal sovereign immunity may only be waived by
resolution or ordinance duly enacted by the elected Seminole Tribal Council while
sitting in legal session, a power and authority reposed in the Tribe’s elected
governing body, which is not delegable.
Title VII specifically excludes “Indian tribe[s]” from the definition of
“employer” 42 U.S.C. 2000e(b) and Congress has unequivocally expressed that
Indian tribes are not subject to the mandates of Title VII. Taylor v. Alabama
Intertribal Council, Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001). No
part of the statute evidences any intent to abrogate tribal immunity under any
circumstance.
Courts have consistently held that “Congress did not abrogate tribal
immunity with regard to Title VII.” Nanomantube v. Kickapoo Tribe in Kansas,
631 F.3d 1150, 1152 (10th Cir. 2011); Dawavendewa v. Salt River Project Agr.
Imp. and Power Dist., 276 F.3d 1150, 1159 (9th Cir. 2002). In fact, the Eleventh
Circuit has repeatedly reiterated the Supreme Court’s straightforward doctrinal
statement that an Indian tribe is subject to suit in state or federal court “only where
Congress has authorized the suit or the tribe has waived its immunity.” Furry, 685
F.3d at 1236 (emphasis added).
In urging this Court to change the law, as Mastro suggests in her Principal
Brief, Mastro appears to overlook the fact that such a vast and sweeping change in
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the clear and unambiguous language of Title VII and more than a century of
American Jurisprudence at its highest level is not a request properly directed to the
Courts. Rather, it is a request that must, of necessity, involve the exercise of the
plenary power over Indian tribes and Indian commerce that is reposed solely in
Congress and nowhere else.
ARGUMENT
A. Tribal Sovereign Immunity-Background.
It is well-established that “Indian tribes are distinct, independent political
communities, retaining their original natural rights in matters of local self-
government. Although no longer possessed of the full attributes of sovereignty,
they remain a separate people, with the power of regulating their internal and
social relations.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (citations
and quotations omitted).
Section 16 of the Indian Reorganization Act of 1934, as amended, 25 USC §
476, clearly establishes the right of an Indian tribe to organize for its common
welfare by adopting a constitution and a set of by-laws in accordance with the
provisions of the Act. By adoption of its constitution, the Seminole Tribe became a
fully recognized Constitutionally based Indian tribe under the laws of the United
States. As such, this recognition vested in the tribal government certain powers in
addition to its pre-existing sovereign powers. One of the long standing powers that
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the Seminole Tribe has always had and retained is its right as a sovereign government
to tribal sovereign immunity. The federally recognized tribal sovereignty of Indian
tribes lies at the heart of the special and unique relationship that exists between the
United States and Indian tribes: that of a dominant sovereign to a subordinate
sovereign. This relationship has been defined as being most akin to that of a
guardian and ward, as described by Chief Justice John Marshall in Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831):
Meanwhile, they are in a state of pupilage; their
relationship to the United States resembles that of a ward
to his guardian.
Fifty years later, the United States Supreme Court redefined the relationship between
the United States and Indian tribes in the same vein when it stated:
These Indian tribes are the wards of the nation. They are
communities dependent on the United States, --dependent
largely for their daily food; dependent for their political
rights. They owe no allegiance to the states, and receive
from them no protection. Because of the local ill feeling,
the people of the states where they are found are often their
deadliest enemies. From their very weakness and
helplessness, so largely due to the course of treaties in
which it has been promised, there arises the duty of
protection, and within it the power. This has always been
recognized by the executive, and by Congress, and by this
court, whenever the question has arisen. (emphasis
added).
United States v. Kagama, 118 U.S. 375, 384-385 (1886); see also, United States v.
Sandoval, 231 U.S. 28 (1913).
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It is firmly established that Indian tribes are regarded by the United States as
dependent sovereign governmental entities which possess all aspects and attributes of
sovereignty except where they have been expressly taken away by Congressional
action. As an aspect of their sovereignty, Indian tribes and all of their governmental
subdivisions and agencies are immune from suit, either in federal or state courts,
without the clear, express unmistakable Tribal waiver or Congressional authorization
pursuant to the plenary power of Congress over Indian tribes. Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978). Indian tribes have always been considered to
have an immunity from suit similar to that enjoyed by the federal government.
Namekagon Development Company v. Bois Forte Reservation Housing Authority,
517 F.2d 508 (8th Cir. 1975). Moreover, since an Indian tribe's sovereign immunity
is co-extensive with that of the United States, a party cannot maintain a claim against
an Indian tribe or any of its subordinate economic units absent a firm showing of an
effective waiver which is expressed with unmistakable clarity. Ramey Construction
Company, Inc. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir.
1982). A waiver of tribal sovereign immunity may never arise by inference or by
implication. Santa Clara Pueblo v. Martinez, supra, 426 U.S. 49, 58-59 (1978).
In American Indian Agricultural Credit Consortium, Inc. v. Standing Rock
Sioux Tribe, 780 F.2d 1374 (8th Cir. 1985), the court was clear in its recognition of
an Indian tribe's right to sovereign immunity absent an express waiver: Indian tribes
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long have structured their many commercial dealings upon the justified expectation
that absent an express waiver, their sovereign immunity stood fast. In applying the
well settled law of tribal sovereign immunity, Courts have refused to distinguish
whether the Tribe was engaged in a private enterprise or governmental function or
whether the conduct in question arose on or off of reservation land. Kiowa Tribe,
supra.
Sovereign immunity is the right of a sovereign. The doctrine goes to the
power of the court to exercise its jurisdiction, and not to the subject matter of the
dispute. As the Ninth Circuit stated in State of California v. Queschan Tribe of
Indians, 595 F.2d 1153 (9th Cir. 1979), "Sovereign immunity involves a right
which courts have no choice, in the absence of a waiver, but to recognize. It is not
a remedy..." Id. at 1155.
B. Title VII Claim Against Seminole Casino:
Indian tribes have been specifically excluded from the statutory definition of
an employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
(b)(1), thereby reflecting the clear intent of Congress that Tribes not be governed by
Title VII, and related statutes. Courts have consistently held that “Congress did not
abrogate tribal immunity with regard to Title VII.” Nanomantube v. Kickapoo
Tribe in Kansas, 631 F.3d 1150, 1152 (10th Cir. 2011); see also Dawavendewa v.
Salt River Project Agr. Imp. and Power Dist., 276 F.3d 1150, 1159 (9th Cir. 2002).
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C. Ordinance C-01-95: The Tribal Sovereign Immunity Ordinance
On March 16, 1995, the Tribal Council of the Tribe enacted Tribal
Ordinance C-01-95, which is otherwise known as the Tribal Sovereign Immunity
Ordinance of the Seminole Tribe of Florida. This Ordinance establishes the tribal
law of the Tribe relating to its sovereign immunity from suit under the doctrine of
tribal sovereign immunity. It also prescribes the exclusive method that must be
followed under tribal law in order for a waiver of tribal sovereign immunity to be
valid and effective. In this regard, the Tribal Sovereign Immunity Ordinance states
that it is applicable to all tribal acts and operations, whether the Tribe or any of its
subordinate economic or governmental units are engaged in a private enterprise or
agovernmental function. The Ordinance then prescribes on page 4, the following
exclusive procedure which must be followed for a valid and effective waiver of the
tribal sovereign immunity of the Tribe. It reads as follows:
BE IT FURTHER ORDAINED: that the consent of the
Seminole Tribe of Florida to waive its immunity from suit in any state
or federal court may only be accomplished through the clear, express
and unequivocal consent of the Seminole Tribe of Florida pursuant to
a resolution duly and acted by the Tribal Council of the Seminole
Tribe of Florida sitting in legal session. Any such resolution
purporting to waive sovereign immunity as to the Seminole Tribe of
Florida, any of its subordinate economic or governmental units or any
of its tribal officials, employees or authorized agents shall specifically
acknowledge that the Seminole Tribe of Florida is waiving its
sovereign immunity [on] a limited basis and describe the purpose and
extent to which such waiver applies. The failure of the Tribal Council
resolution to contain such language shall render it ineffective to
constitute a waiver of tribal sovereign immunity…
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Page 6 of the Ordinance indicates that the Ordinance it was unanimously
approved by all elected members of the Tribal Council in legal session on March
16, 1995. It was signed by James E Billie, the duly elected Chairman of the Tribal
Council at the time and was attested to by the Secretary/Treasurer of the Tribal
Council, Priscilla D. Sayen.
Following the enactment of Ordinance C-01-95, the Tribal Sovereign
Immunity Ordinance of the Tribe was signed and approved in writing on April 19,
1995 by Franklin Keel, the Area Director of the United States Department of the
Interior, Bureau of Indian Affairs, Eastern Area Office, as the delegated signature
authority for the Secretary of the Interior pursuant to the government--to--
government relationship that exists between the United States of America and the
Tribe.
It is the Tribe’s position that the Tribal Sovereign Immunity Ordinance of
the Seminole Tribe of Florida, Ordinance C-01-95 is applicable to and dispositive
of the issue of the Tribe’s entitlement to tribal sovereign immunity from suit and
any alleged waiver thereof regarding each of Mastro’s claims. In view of the fact
that there is no evidence of any kind that a waiver of the tribal sovereign immunity
of the Tribe was authorized in any manner by the Tribal Council or effectuated in
conformity with the requirements of the exclusive procedure contained in the
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Ordinance, the tribal sovereign immunity of the Tribe and the jurisdictional bar
flowing from it remains intact and each and every one of plaintiff’s claims are
jurisdictionally barred under the doctrine of tribal sovereign immunity.
Tribal sovereign immunity is necessary to promote federal policies, as well
as the economic and cultural autonomy of Indian tribes. Its purpose, in part, is to
protect the Tribe and its members against the improvident governmental action
taken by tribal officials and agents which exceeds or oversteps their authority. The
doctrine of tribal sovereign immunity is created and governed exclusively by
federal law and is not subject to diminution by nuances of state law. Kiowa Tribe
of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 756 (1998).
Under governing federal law construing the doctrine of tribal sovereign immunity,
courts are required, as a matter of federal law, to follow any tribal law addressing
the subject and in the absence of any such tribal law concerning the application and
waiver of tribal sovereign immunity, the federal common law, rather than state
law, will govern. Memphis Biofuels v. Chickasaw Nation Industries, Inc., 583 F.3d
917, 921-922 (6th Cir. 2009). Indian tribes enjoy the type of immunity that they do
because they are governmental entities which predate the ratification of the U.S.
Constitution. U.S v. United States Fidelity & Guaranty Company, 309 U.S. 506,
512-513 (1940).
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The law is clear and well settled that tribal sovereign immunity of a
sovereign tribal government may only be surrendered by an express and
unmistakable waiver of the Tribe only at its highest level. Price v. United States
and Osage Indians, 174 U.S. 373, 375-376 (1899), Beers v. Arkansas, 61 U.S. (20
How.) 527, 529 (1857). Crucial to the outcome of this case and of ancient
pedigree is the time honored principle that since a waiver of sovereign immunity,
including a waiver of tribal sovereign immunity by a sovereign tribal government
is entirely voluntary, it follows that the tribe alone may prescribe the terms and
conditions under which it consents to be sued. Id.; see also, Mader v. United
States, 654 F.3d 794 (8th Cir. 2011). What the Seminole Tribe prescribed for itself
was that waivers of tribal sovereign immunity would need to be in strict
compliance with the exclusive procedure set forth in the Ordinance.
What plaintiff seeks to do here is to circumvent or remove altogether the
sovereign prerogatives of the Tribe. In this case, there is no waiver or even a
competent suggestion of a waiver of tribal sovereign immunity by the Tribe that
exists that complies with the exclusive procedure prescribed by Ordinance C-01-95
and hence, there can be no tribal waiver. In analyzing the applicability of
Ordinance C-01-95, the following considerations are important: (a) the fact that a
waiver of tribal sovereign immunity is a voluntary act; (b) the Tribe and not
Mastro is entitled to prescribe the terms and conditions of any such immunity
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waiver; and (c) the failure of any alleged waiver of tribal immunity claimed by
Mastro to strictly comply with requirements prescribed by the Tribe for a valid and
effective waiver. These considerations will and must result in the claims asserted
against the Tribe being jurisdictionally barred by the doctrine of tribal sovereign
immunity.
D. Kiowa as Dicta?
Mastro appears to suggest that the holding in Kiowa amounts to mere dicta
which this Court should disregard in order to reverse the order of dismissal entered
by the District Court. Kiowa Tribe of Oahoma v. Manufacturing Technologies,
Inc., 523 U.S. 751 (1998) is significant for its definition of the applicable scope of
the doctrine of tribal sovereign immunity. In Kiowa, the Tribe refused to pay on a
promissory note and asserted tribal sovereign immunity as a jurisdictional bar to
the action. A lawsuit in Oklahoma state court followed which resulted in a
judgment being rendered against the Tribe. The judgment was affirmed by the
Oklahoma Supreme Court.
The United State Supreme Court reversed. In doing so, the Supreme Court
declined to restrict the doctrine of tribal sovereign immunity and instead deferred
to Congress to take the lead in “drawing the bounds of tribal immunity.” Id. at
759. The Supreme Court held that tribal sovereign immunity would apply and
would operate as a jurisdictional bar to an action brought against a tribe that had
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not clearly and expressly waived its immunity regardless of whether the tribe’s
actions involved governmental or commercial activity or whether such activities
occurred on or off of a reservation. Id. at 760. In addition, the Court also held that
since tribal sovereign immunity is governed by federal law, tribal immunity was
not subject to being diminished by nuances of state law.
Under Kiowa, the fact that Mastro worked as a card dealer in the Trtibe’s
Immokalee Casino makes no difference in the Tribe’s entitlement to tribal
sovereign immunity with respect to the claims asserted by Mastro.
As the owner and operator of the Casino, the Tribe, by definition, was not an
employer under Title VII. Under Kiowa, the fact the Tribe’activity was
commercial and arose on the reservation, made no difference in the sovereign
immunity analysis since the Court would not be required to draw such distinctions
as a condition to the Tribe’s entitlement to tribal sovereign immunity from suit.
The Tribe was entitled to tribal sovereign immunity because there was no clear,
express and unmistakable tribal waiver or Congressional abrogation of tribal
sovereign immunity.
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CONCLUSION
Based upon the foregoing, the Tribe would respectfully submit that under
the authority of Kiowa and the plain language of 42 U.S.C.§ 2000e(b) (1), which
excludes the Tribe from being considered an “Employer” under Title VII,
Mastro’s claims against the Tribe are jurisdictionally barred under the doctrine of
tribal sovereign immunity. Based upon a complete lack of anything in the
Record which suggests a clear, express and unmistakable tribal waiver or
Congressional abrogation of tribal sovereign immunity, it is respectfully
submitted that the final order of dismissal should be affirmed.
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APPENDIX A
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