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DOCKET NO. 15-12460
United States Court of Appeals
for the
Eleventh Circuit
STANLEY LONGO, an individual,
Plaintiff-Appellant,
v.
SEMINOLE INDIAN CASINO-IMMOKALEE,
Defendant-Appellee.
_____________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA CASE NO: 2:14-cv-00334-SPC-CM (Honorable Sheri Polster Chappell)
BRIEF FOR DEFENDANT-APPELLEE
DONALD ALBERT OLOVSKY FLORIDA BAR NO. #233816 KAMEN & OLOVSKY, PA P.O. Box 19658 West Palm Beach, Florida 33416 (561) 687-8500 Counsel for Defendant-Appellee
Counsel Press, LLC (804) 648-3664 * (800) 275-0668
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United States Court of Appeals for the Eleventh Circuit Appeal No: 15-12460-B
Stanley Longo, Appellant
vs. Seminole Tribe of Florida, d/b/a Seminole Indian Casino Immokalee. Appellee __________________________________
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rule 26.1-2(c), the undersigned counsel for Appellee,
Seminole Tribe of Florida, d/b/a Seminole Indian Casino Immokalee 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. (Brighton Representative, Seminole Tribal
Council) 4. David Carroll (HR Director of HR STOF) 5. Mitchell Cypress (Vice Chairman, Seminole Tribal Council) 6. Hon. Sheri Pollster Chappel, USDC FLMD 7. Kamen & Orlovsky, P.A. (Attorney for Tribe) 8. Michael A. Kamen, Esq. (Attorney for Tribe) 9. LaVonne Kippenberger (Tribal Clerk, STOF)
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10. Stanly Longo (Appellant) 11. Malcolm S. Medley (EEOC District Director - Miami) 12. Donald A. Orlovsky, Esq. (Attorney for Tribe) 13. Christopher Osceola (Hollywood Councilman, Seminole Tribal
Council) 14. Cicero Osceola (Big Cypress Representative, STOF) 15. Seminole Tribe of Florida d/b/a Seminole Indian Casino – Immokalee 16. Jim Shore, Esq. (General Counsel, Seminole Tribe of Florida) 17. Nitza S. Wright, Enforcement Manager (EEOC-Miami) 18. Benjamin Yormak, Esq. (attorney for appellant) 19. 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
Appellee, Seminole Tribe of Florida, 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 jurisdictional bar
imposed by the doctrine of tribal sovereign immunity and the clear intention of
Congress to exclude Indian tribes, by definition, from being considered as
“employers” under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C.§ 2000-e(b)(1).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, has abrogated tribal sovereign immunity with unmistakable clarity as to any of Longo’s state or federal claims against the Tribe.
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 2
STATEMENT OF THE CASE AND FACTS .......................................................... 4
Nature of the Case and Course of Proceedings ............................................... 4
Statement of the Facts ...................................................................................... 4
STANDARD OF REVIEW ..................................................................................... 10
SUMMARY OF THE ARGUMENT ...................................................................... 11
ARGUMENT ........................................................................................................... 13
A. Pleading Standard - Federal Rule of Civil Procedure 12(b)(6) ........... 13
B. Federal Recognition of Indian tribes ................................................... 15
C. Tribal Sovereign Immunity ................................................................. 21
D. Title VII of the Civil Rights Act of 1964 ............................................ 23
CONCLUSION ........................................................................................................ 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Page(s)
Cases:
American Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136 (1st Cir. 2004).......................................................................... 14
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)....................................................................................... 14
Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................... 2, 13, 14, 15
Baker v. Carr, 369 U.S. 186 (1962)....................................................................................... 21
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................... 2, 13, 14, 15
Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997) ..................................................................... 17
Cherokee of Lawrence Cnty, Tennessee v. United States, 06-158L, 2006 WL 5668261 (Fed. Cl. Sept. 1, 2006) .................................. 21
Conley v. Gibson, 355 U.S. 41 (1957)......................................................................................... 13
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012) ..................................................................... 10
Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986) ........................................................................... 23
Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) ..................................................................... 10
In Re: Prairie Island Dakota Sioux, 21 F.3d 302 (8th Cir. 1994) ............................................................................... 23
Kahawaiolaa v. Norton, 386 F.3d (9th Cir. 2004) .............................................................................. 18, 21
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) .......................................................................................... 11
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LaPier v. McCormick, 986 F.2d 305 (9th Cir. 1993) ......................................................................... 20
Mastro v. Seminole Tribe of Florida, Case No. 13866 (11th Cir. Aug. 20, 2014) ....................................................... 23
Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980) ......................................................................... 14
Miami Nation of Indians v. United States Dep’t of the Interior, 255 F.3d 342 (7th Cir. 2001) ................................................................... 17, 21
Michigan v. Bay Mills Indian Community, 134 S. Ct. (2014) ............................................................................................... 11
Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th Cir. 1995), rev’d on other grounds, 520 U.S. 548 (1997)....................................................................................... 19
Samish Indian Nation v. U.S., 419 F.3d 1355 (2005) .................................................................................... 17
Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282 (11th Cir. 2001) ..................................................................... 10
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998)....................................................................................... 16
Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242 (11th Cir. 2005) ..................................................................... 14
Tennessee v. United States, 06-158L, 2006 WL 5668261 (Fed. Cl. Sept. 1, 2006) .................................. 21
United States v. Holliday, 70 U.S. 407 (1865)......................................................................................... 17
United States v. Sandoval, 231 U.S. 28 (1913)......................................................................................... 17
United States v. Zepeda, 738 F.3d (9th Cir. 2013) ................................................................................ 20
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405 (11th Cir. 1999) ....................................................................... 14
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Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir. 1980) ........................................................................... 23
Yamassee Indian Tribe v. Allendale Cnty Govt., (D.S.C. 2014) ................................................................................................. 21
Statutes & Other Authorities:
U.S. Const., art I, § 8, cl. 3 ....................................................................................... 16
25 U.S.C. § 2 ............................................................................................................ 17
25 U.S.C. § 9 ............................................................................................................ 17
25 U.S.C. § 2701 ........................................................................................................ 5
28 U.S.C. § 1291 ........................................................................................................ 1
42 U.S.C. § 2000-e(b)(1) ................................................................................. 1, 3, 23
43 U.S.C. § 1457 ...................................................................................................... 17
25 C.F.R. § 83 ............................................................................................................ 9
25 C.F.R. § 83.3(a) ...................................................................................................... 17
44 Fed. Reg. 7325 (Feb. 6, 1979) ...................................................................... 8, 18, 19
75 Fed. Reg. 38833-38834 (July 6, 2010) ..................................................................... 6
75 Fed. Reg. 38833-38834 (July 10, 2010) ................................................................... 6
Fed. R. Civ. P. 8(a)(2) .......................................................................................... 2, 13
Fed. R. Civ. P. 12(b)(1) .......................................................................................... 2, 7
Fed. R. Civ. P. 12(b)(6) .................................................................................... 2, 7, 13
Fed. R. Evid. 201(b)(2) ............................................................................................ 19
Fed. R. Evid. 201(d) ................................................................................................. 19
Federally Recognized Indian Tribe List Act of 1994, Pub L. 103-454, title 1 §101, Nov. 2, 1994, 108 Stat. 4791 .................... 18, 19
Florida Civil Rights Act of 1992, Fla. Stat. § 760.10 ......................................... 2, 5, 22
Indian Reorganization Act of 1934, as amended, 25 U.S.C. § 476 ......... 2, 4, 12, 15-16
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Procedures for Establishing that an American Indian Group Exists as an Indian Tribe, 25 C.F.R. §§ 83.1 – 83.13 (2004) ............................................ 18
Tribal Sovereign Immunity Ordinance of the Seminole Tribe of Florida, Ordinance C-01-95 (Mar. 16, 1995) ........................................................ 21, 22
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STATEMENT OF JURISDICTION
While the Tribe asserts that Longo’s claims are jurisdictionally barred under
the doctrine of tribal sovereign immunity, the Tribe recognizes that the district
court possesses limited jurisdictional power to examine the issues raised by Longo
in order to determine whether the district court possesses subject matter
jurisdiction over Longo’s claims. In view of the fact that Longo’s claims against
the Tribe arise under Title VII of the Civil Rights Act of 1964, as amended, which
excludes and exempts Indian tribes from its jurisdictional reach, 42 U.S.C. § 2000-
e(b)(1), the district court had the power to make a limited jurisdictional inquiry to
determine the nature and extent of its jurisdictional power over Longo’s claims.
In view of the fact that the district court dismissed Longo’s claims based
upon immunity and the exclusion and exemption of Indian tribe’s under Title VII,
Longo’s claims against the Tribe are jurisdictionally barred under the doctrine of
tribal sovereign immunity based upon the fact that the Seminole Tribe is a
federally recognized tribe, dismissed the case with prejudice, and disposed of the
claims, this Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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STATEMENT OF THE ISSUES
1. Whether, under Rule 8(a)(2) and the pleading construction thereof
standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, and Ashcroft v. Iqbal, 556 U.S. 662 (2009), Longo sufficiently pled
factual allegations in its amended complaint to survive the Tribe’s motion to
dismiss under Rule 12(b)(1) and (6), Fed. R. Civ. P. for lack of subject matter
jurisdiction and failure to state a claim for relief.
2. Whether the district court may properly disregard Longo’s
unsupported conclusions, unwarranted inferences and sweeping legal conclusions
cast in the form of factual allegations.
3. Whether the district court properly considered Longo’s so-called
factual evidence and legal analysis presented in granting the Tribe’s motion to
dismiss under Rule 12(b)(1) and (6), Fed. R. Civ. P. for lack of subject matter
jurisdiction and failure to state a claim for relief based upon the Tribe’s status as a
federally recognized tribe.
4. Whether the Tribe as a federally recognized Indian tribe which
reorganized under Section 16 of the Indian Reorganization Act of 1934, is legally
entitled to be excluded from the definition of “an employer” under Title VII with
respect to this case within the meaning of Title VII, or under the provisions of the
Florida Civil Rights Act of 1992.
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5. Whether Longo’s claims against the Tribe are jurisdictionally barred by
the doctrine of tribal sovereign immunity and the exemption and exclusion of Indian
tribes from Title VII under 42 U.S.C. § 2000-e(b)(1).
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STATEMENT OF THE CASE AND FACTS
Nature of the Case and Course of Proceedings
The Tribe concurs with and adopts that portion of Stanley Longo’s
Statement of the Case, entitled Nature of the Case and Course of Proceedings.
(Appellant’s Brief at 3-4.)
Statement of the Facts
The 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. It has and
maintains a casino and ancillary facilities on its Immokalee Reservation and does
business under the registered fictitious name Seminole Indian Casino-Immokalee,
as evidenced by the copies of the fictitious name documentation taken from the
records of the Florida Secretary of State and attached as an exhibit to the Tribe’s
motion to dismiss Longo’s original complaint (Doc16, Ex. “A” at 1-3). The
fictitious name registrations and renewals reveal that the Tribe, a federally
recognized Indian tribe with its governmental headquarters located at 6300 Stirling
Road in Hollywood, Florida and bearing Taxpayer ID 59-1415030, is the
registered owner of the fictitious name under which the Casino is doing business.
(Doc 16, Ex. “A” at 1-3).
Longo was hired by the Tribe in or about October, 2008 to work at the
Tribe’s Immokalee Casino as a security officer. On April 13, 2013 Longo was
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terminated from his employment with the Tribe for being discourteous to other
tribal employees.
On June 18, 2014, Longo filed a civil action complaint against Seminole
Indian Casino – Immokalee in the district court seeking to recover damages for
alleged unlawful employment practices which he asserts arise under Title VII of the
Civil Rights Act of 1964, as amended, and under Section 760.10 of the Florida Civil
Rights Act of 1992, based upon allegations of sexual harassment/gender
discrimination by a gaming customer and for alleged retaliatory discharge. (Doc 1 at
pg. 1).
Longo’s original employment discrimination claims for sexual
harassment/gender discrimination and for retaliation were asserted against Seminole
Tribe of Florida, Inc., a federally chartered tribal corporation d/b/a Seminole Indian
Casino - Immokalee, as the alleged owner of the Casino. Seminole Indian Casino -
Immokalee is not an entity that employed Appellant. Seminole Tribe of Florida, Inc.
never employed Mr. Longo, has no ownership interest in and has never done business
as Seminole Indian Casino - Immokalee. Seminole Indian Casino-Immokalee is
merely a registered fictitious name for the Tribe’s Immokalee casino which is owned
and operated as an integral part of the sovereign government of the Tribe. The
Casino is wholly owned and solely operated by the Tribe in accordance with the
provisions of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701, et
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seq., which authorizes Tribes to conduct gaming activity on restricted tribal trust
land pursuant to a Gaming Compact between the Tribe and the State of Florida
which has been approved by the National Indian Gaming Commission and
published in the Federal Register, 75 Fed. Reg. 38833 – 38834 (July 10, 2010).
The Tribe’s Immokalee casino is located on restricted tribal trust land in
reservation status, commonly referred to as the Immokalee Seminole Indian
Reservation of the Tribe. The approval of the Gaming Compact between the Tribe
and the State of Florida is one based upon gaming activity conducted by the Tribe
itself and not by any federally chartered tribal corporation or other entity. See, 75
Fed. Reg. 38833-38834 (July 6, 2010); and Gaming Compact Between the
Seminole Tribe of Florida and the State of Florida (Doc 24 Ex. C, at 1).
On December 16, 2014, Longo filed an amended complaint which also
incorrectly named Seminole Indian Casino - Immokalee, rather than the Tribe as
the correct defendant for the same cause of action. (Doc 17 at 1). In its amended
complaint, Longo asserted the following:
(a) The Casino is not a “tribe” as that term is defined by the statutes referenced herein and operates as a separate legal entity organized under the laws of the State of Florida rather than a tribe;
(b) [The Casino] is a commercial business just like any other corporation; and
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(c) The Casino has proffered an unequivocal waiver of its claimed sovereign immunity.
(Doc 17 at 2) Nowhere in the record has Longo shown any facts which reflect a clear and
unmistakable waiver of tribal sovereign immunity by the Seminole Tribal Council
in accordance with the Tribe’s Tribal Sovereign Immunity Ordinance, Ordinance
C-01-95, which is attached to and made a part of the Tribe’s motion to dismiss for
lack of subject matter jurisdiction. (Doc 16, Ex. 4 at 4).
On March 2, 2015, the Tribe filed its motion to dismiss under Rule 12(b)(1)
and (6), Fed. R. Civ. P. for lack of subject matter jurisdiction and failure to state a
claim for relief. (Doc 16). On March 16, 2015, Longo filed his response to the
Tribe’s motion to dismiss arguing, for the first time in the record, inter alia, that:
(A) The members of the Seminole Tribe of Florida are not a federally recognized Indian tribe because (Doc 17 at 2):
(1) The senate has not ratified a treaty that designates the members of the Seminole Tribe of Florida as a federally recognized tribe; (Doc 17 at 5)
(2) Congress has not enacted a statute that designates the members of the Seminole Tribe of Florida as a federally recognized tribe; (Doc 17 at 7)
(3) The Secretary of the Interior has not designated the
members of the Seminole Tribe of Florida as a federally recognized tribe; and (Doc 17 at 8)
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(4) The 73rd Congress did not intend Section 16 of the Indian Reorganization Act to delegate the Secretary of the Interior authority to create new federally recognized tribes;
In support of his claims, Longo attached as Exhibits to the response to the
Tribe’s motion a variety of excerpts from books and historical publications. Longo
further claimed that “the members of the Seminole Tribe of Florida are not an
‘Indian Tribe’ for the purposes of Title VII of the Civil Rights Act of 1964” and
therefore are not entitled to tribal sovereign immunity protection or the exclusion
under Title VII claims. (Doc 17 at 17).
On April 3, 2015 the Tribe filed its reply to Longo’s response to the Tribe’s
dispositive jurisdictional motion addressing Longo’s challenge of the Seminole
Tribe’s status as a “federally recognized Indian tribe.” In its reply, the Tribe
attached clear and unequivocal evidence of the Tribe’s status as a federally
recognized Indian tribe with a government-to-government relationship with the
United States of America by providing the first list of acknowledged tribes
published by the United States Secretary of the Interior in the Federal Register in
1979 (44 FR 7325), as well the most current list of federally recognized tribes,
each of which list the Seminole Tribe of Florida as one of the tribes recognized by
the federal government. (Doc 28, Ex. “A” pg 1-3)
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On April 13, 2015, Longo filed a surreply arguing that the inclusion of the
Seminole Tribe on the Bureau of Indian Affairs annual list of federally recognized
Tribes, pursuant to 25 CFR PART 83, does not have the legal consequences of
transforming the Tribe into a “federally recognized tribe.” (Doc 29 pg. 5) On May
12, 2015 the district court, having determined that the Seminole Tribe is federally
recognized, entered its order granting the Tribe’s motion to dismiss with prejudice.
(Doc 31 pg. 5-6)
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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
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).
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SUMMARY OF THE ARGUMENT
Longo argues that the district court erred by disregarding factual evidence and
legal arguments as to whether the Seminole Tribe is “federally recognized.” Longo
agrees that under Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,
523 U.S. 751 (1998) and Michigan v. Bay Mills Indian Community, 134 S.Ct.
(2014), the Supreme Court of the United States has affirmed that a sovereign tribal
government of a federally recognized tribe is not subject to the jurisdiction of state or
federal courts absent the express, unmistakable consent of the Tribe or the clear,
express and unmistakable consent of Congress. The district court’s order, clearly
states that:
the “United States Bureau of Indian Affairs most recent list of “Indian entities… acknowledged to have the immunities and privileges available to federally recognized Indian tribes’ includes the Seminole Tribe of Florida” Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 80 FR 1942-02 (2015). (Doc 31 at 5).
In determining that the Tribe is federally recognized, the district court further
found that it lacked subject matter jurisdiction over Longo’s Title VII and state-
based claims against the Tribe. (Doc 31 at 5).
In addition, Longo’s amended complaint did not contain factual allegations
sufficient to plead a plausible claim that the Seminole Tribe is not a federally
recognized and a constitutionally constituted sovereign tribal government pursuant
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to 25 U.S.C § 476. Accordingly, the district court was correct in dismissing
Longo’s claim based on the Tribe’s status as a federally recognized Indian tribe
that is exempt from Title VII and its reach.
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ARGUMENT
The final order of dismissal should be affirmed because:
(a) The record on appeal is void of any factual information or rational argument for the allegation that the Seminole Tribe is not a federally recognized Indian tribe.
(b) The record on appeal is void of any factual information or rational
argument that even remotely shows that the Tribe clearly, expressly and unmistakably waived its tribal sovereign immunity.
(c) The record on appeal is void of any legal grounds to support the
contention that a federally recognized Indian tribe is considered an “employer” within the meaning of Title VII or under the provisions of the Florida Civil Rights Act of 1992.
A. Pleading Standard - Federal Rule of Civil Procedure 12(b)(6)
In order to survive a motion to dismiss under Rule 12(b)(6), an appellant
must “plead a short and plain statement of the claim showing that he is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This statement must be sufficient to “give the
defendant fair notice of what [appellant’s] claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41-47 (1957). Under the pleading standards set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), it is not enough that a claim to relief be merely
“possible” or “conceivable;” instead, it must be “plausible on its face.”
The Iqbal Court set out a two-step procedure for evaluating whether a
complaint should be dismissed:
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[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.
Id. at 1950
Although detailed factual allegations are not required, a pleading “that offers
‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of
action will not do.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555
(2007). A court does not have to accept legal conclusions in the complaint as true.
See, Ashcroft v. Iqbal, 556 U.S. at 678 (2009). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679.
As courts of limited jurisdiction, “[f]ederal courts are expected to monitor
their jurisdictional boundaries vigilantly.” American Fiber & Finishing, Inc. v.
Tyco Healthcare Group, LP, 362 F.3d 136, 139 (1st Cir. 2004). Therefore, the
district court was obligated to inquire into whether it had subject matter
jurisdiction over this case. See, Arbaugh v. Y & H Corp., 546 U.S. 500, 507,
(2006); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).
The appellant bears the burden of establishing the existence of subject matter
jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980);
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Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1248 (11th Cir.2005)
(noting that “the burden to establish the existence of federal subject matter
jurisdiction rests with the party bringing the claim”).
To cross the threshold from conceivable to plausible, a complaint must
contain a sufficient quantum of “factual matter” alleged with a sufficient level of
specificity to raise entitlement to relief above the speculative level. Twombly, 550
U.S. at 555 (2007). Longo’s amended complaint failed to cross this legal threshold
in proving that the Tribe is not a federally recognized Indian tribe entitled to
subject matter jurisdiction. The allegations and historical data do not rise to the
level of plausibility required under Iqbal and Twombly. Therefore, the district
court was correct in granting the Tribe’s motion to dismiss with respect to Longo’s
claim.
B. Federal Recognition of Indian tribes
In his brief, Longo claims that he offered “factual evidence and legal
analysis that demonstrated the Seminole Tribe of Florida has never been lawfully
designated as a ‘federally recognized tribe,’” and therefore is not entitled to tribal
sovereign immunity. (Appellees brief pg. 6). However, in 1957, the Seminole
Tribe formally reorganized for the common welfare of its tribal members in
accordance with the provisions of Section 16 of the Indian Reorganization Act of
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1934, as amended, 25 USC § 476, and has since been federally recognized and
designated as an organized Indian tribe. At the time of its formal organization, the
Seminole Tribe adopted a Constitution and a set of Bylaws which were ratified by
the tribal community and approved by the United States Secretary of Interior in full
compliance with the Act. (Doc 24 Ex. C) Up until that time, the Florida Seminoles
had been recognized as an Indian tribe with a sovereign tribal government but
without a written constitution.
By reorganizing under the Act in 1957, the Florida Seminoles did not
terminate the recognition as a Tribe that they had enjoyed for approximately 150
years, but became a new tribe as such. They availed themselves of the benefits of
the Indian Reorganization Act to avoid the Congressional policy of termination and
to allow them to continue to function as a tribal sovereign government capable of
facing the future with a new name and certainty that the Seminole Tribe of Florida
would survive into the future as a sovereign and constitutionally based tribal
government.
Article I, Section 8, Clause 3 of the U.S. Constitution commits to Congress
issues involving Indian affairs: “The Congress shall have Power… to regulate
Commerce with the Indian Tribes.” Congress possesses plenary power over Indian
affairs, including the power to modify or eliminate tribal rights.” South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). Pursuant to its plenary power
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rooted in the Indian Commerce Clause, “Congress has the power both directly and
by delegation to the President to establish the criteria for recognizing a tribe.”
Miami Nation v. United States Dep’t of Interior, 255 F.3d 342 345 (7th Cir. 2001);
accord Samish Indian Nation v. U.S., 419 F.3d 1355, 1374 (2005) (federal
acknowledgement has been committed to the coordinated branches).
Congress has authorized and charged the Department of the Interior with the
responsibility to administer Indian affairs and to clarify and elaborate
Departmental authority by regulation. 25 U.S.C. §§ 2, 9; 43 U.S.C. § 1457. The
authority to recognize Indian tribes lies with Congress. United States v. Sandoval,
231 U.S. 28, 46 (1913) ("questions whether, to what extent, and for what time
[Indian groups] shall be recognized and dealt with as dependent tribes [by the
federal government] . . . are to be determined by Congress, and not by the courts");
see, United States v. Holliday, 70 U.S. 407, 419 (1865) (if executive and other
political departments recognize Indians as a tribe, courts must do the same);
Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1496 (D.C. Cir. 1997 ),
(citing Holliday).
Recognition “is intended to apply to groups that can establish a substantially
continuous tribal existence and which have functioned as autonomous entities
throughout history until the present.” 25 CFR §83.3(a). The Department of the
Interior and the federal Bureau of Indian Affairs applies its expertise to this
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determination and has established the Branch of Acknowledgement and Research
(“BAR”) which staffs historians and anthropologists to determine whether groups
seeking recognition “actually constitute Indian tribes and presumably to determine
which tribes have previously obtained federal recognition.” Kahawaiolaa v. Norton,
386 F.3d (9th Cir. 2004).
During 1978, final acknowledgment regulations were published by the
Department of the Interior representing a compromise of diverse interests
committed to establishing an equitable process for determining whether a group
warranted federal recognition as an Indian tribe. See, Procedures for Establishing
that an American Indian Group Exists as an Indian Tribe, 25 C.F.R. §§ 83.1 –
83.13 (2004). On November 2, 1994, Congress enacted the Federally Recognized
Indian Tribe List Act of 1994 (Pub L. 103-454, title 1 §101, Nov. 2, 1994, 108 Stat.
4791) requiring the Secretary to publish in the Federal Register a list of all Indian
tribes which the Secretary recognizes to be eligible for the special programs and
services provided by the United States to Indians because of their status as Indians.
The Act further required the list to be published annually on or before every
January 30 thereafter.
The first list of acknowledged tribes was published in 1979, 44 FR 7325
(Feb 6, 1979). (DE 28, Ex. “A”). The list used the term “entities” in the preamble
and elsewhere to refer to and include all the various anthropological organizations
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such as bands, pueblos and villages, acknowledged by the Federal Government to
constitute tribes with a government-to-government relationship with the United
States. The Seminole Tribe of Florida was identified as a federally recognized
Tribe on the first list published at 44 FR 7325 in 1979. (Doc 28, Ex. “A”). The
Tribe has been listed on every Federal Register publication since that time.
Since publishing in the Federal Register a list of recognized tribes and the
enactment of the Federally Recognized Indian Tribe List Act of 1994, courts have
consistently looked to the Federal Register to determine if a tribe is federally
recognized. “The government is correct, as a general matter, that the Bureau of
Indian Affairs's list of federally recognized tribes is a proper subject of judicial
notice, even on appeal. The fact of federal recognition is "capable of accurate and
ready determination," the Federal Register is a "source[] whose accuracy cannot
reasonably be questioned," and a court may take judicial notice "at any stage of the
proceeding." Fed. R. Evid. 201(b)(2), (d); Papai v. Harbor Tug & Barge Co., 67
F.3d 203, 207 n.5 (9th Cir. 1995), rev'd on other grounds, 520 U.S. 548 (1997)
("Rule 201 provides for judicial notice of adjudicative facts that are, inter alia,
'capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.' Such '[j]udicial notice may be taken at any stage
of the proceeding,' including on appeal . . . .") Zapada ______
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“Absent evidence of its incompleteness, the BIA list appears to be the best source
to identify federally acknowledged Indian tribes.…,” LaPier v. McCormick, 986
F.2d, 305 (9th Cir. 1993). See also, United States v. Zepeda, 738 F.3d at 211 (9th
Cir. 2013). The fact of federal recognition is “capable of accurate and ready
determination,” the Federal Register is a “source whose accuracy cannot
reasonably be questioned…,”). Id at 26.
Longo is asking this Court for a judicial determination concerning whether
the Seminole Tribe is a federally recognized Indian tribe entitled to continue the
government-to-government relationship that it and its predecessors have had with
the United States. However, federal recognition of an Indian tribe - and the
creation of a government-to-government relationship - may only be conferred by
the political branches of government.
The decision concerning whether an Indian group is a federally recognized
Indian tribe within the meaning of federal law is, a quintessentially non-justiciable
political question. The political question doctrine precludes judicial involvement in
determining the tribal status of the Seminole Tribe for the purpose of federal
recognition in the first instance. The doctrine "identifies a class of questions that
either are not amenable to judicial resolution because the relevant considerations
are beyond the courts' capacity to gather and weigh . . . or have been committed by
the Constitution to the exclusive, unreviewable discretion of the executive and/or
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legislative -- so-called 'political' branches of the federal government." Miami
Nation of Indians v. United States Dep't of the Interior, 255 F.3d 342, 347 (7th Cir.
2001). When a political question is "inextricable from the case at bar," dismissal is
warranted. Baker v. Carr, 369 U.S. 186, 215-217 (1962).
The courts have consistently held that as far as the federal government is
concerned, “an American Indian tribe does not exist as a legal entity unless the
federal government decides that it exists.” Kahawaiolaa v. Norton, 386 F.3d 1271;
Cherokee of Lawrence Cnty., Tennessee v. United States, 06-158L, 2006 WL
5668261 (Fed. Cl. Sept. 1, 2006), Yamassee Indian Tribe v. Allendale Cnty Govt.,
(D.S.C. 2014), quoting, Cherokee of Lawrence Cnty, Tennessee v. United States,
06-158L, 2006 WL 5668261 (Fed. Cl. Sept. 1, 2006).
C. Tribal Sovereign Immunity
The Tribal Sovereign Immunity Ordinance of the Seminole Tribe of Florida,
Ordinance C-01-95, was duly enacted in legal session by the Tribal Council of the
Tribe on March 16, 1995 and was thereafter approved on April 19, 1995, by the
Acting Area Director (now called the Regional Director) of the Eastern Area of the
Bureau of Indian Affairs, United States Department of the Interior, as the delegated
signature authority for the United States Secretary of the Interior. The Ordinance
contains the exclusive method which must be followed for a valid and enforceable
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voluntary and limited waiver of tribal sovereign immunity by the Tribal Council as
the Tribe’s governing body. The Ordinance reads, in pertinent part, 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 enacted 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; (Doc 16, Ex. 4 at 4).
There is nothing in the record which shows that the Tribal Council duly enacted
any resolution, or took any other action in conformity with the Tribal Sovereign
Immunity Ordinance, to waive the Tribe's tribal sovereign immunity from suit with
respect to the claim of any employee arising under Title VII or the Florida Civil
Rights Act, Florida Statutes, § 760.10 in favor of Longo or in favor of any other
person or party purporting to have an employment discrimination or retaliation
claim against the Tribe.
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D. Title VII of the Civil Rights Act of 1964
The law is clear that Title VII does not apply to Indian tribes. The language of
42 USC §2000e (b)(1), specifically excludes Indian tribes from the definition of an
"employer" under the Act which applies to the employer -- employee relationship. It
reads, in pertinent part, as follows:
(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not
include (1) ...an Indian tribe...
Indian tribes are specifically exempted and excluded by Congress from that
definition. Accordingly, it is clear that Congress did not intend Title VII to apply to
Indian tribes such that an Indian tribe may not be properly sued under Title VII or
any similar statute. See, e.g. In Re: Prairie Island Dakota Sioux, 21 F.3d 302 (8th
Cir. 1994); Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir.
1986); Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir. 1980).
In Mastro v. Seminole Tribe of Florida, Case No. 13866 (11th Cir. 8/20/2014),
this Court, affirmed the district court’s dismissal of Mastro’s claims on virtually
identical facts and issues.
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CONCLUSION
Based upon the foregoing, the Tribe would respectfully submit that because
it is a federally recognized Indian Tribe entitled to tribal sovereign immunity; it is
been excluded from the definition under Title VII; Congress did not abrogate the
Tribe’s tribal sovereign immunity and the Tribe did not waive its sovereign
immunity, the final order of dismissal, with prejudice, should be affirmed.
Respectfully Submitted,
Donald Albert Olovsky, Florida Bar No. #233816 Kamen & Olovsky, PA P.O. Box 19658 West Palm Beach, Florida 33416 (561) 687-8500
Counsel for Defendant-Appellee SEMINOLE INDIAN CASINO-IMMOKALEE
By: /s/ Donald A. Orlovsky
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. This brief uses
Times New Roman 14-point typeface and contains 4818 words.
/s/Donald A. Orlovsky
DONALD A. ORLOVSKY
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CERTIFICATE OF SERVICE
I hereby certify that on August 20, 2015, 7 copies of the brief of appellee were dispatched for delivery to the Clerk’s Office of the United States Court of Appeals for the Eleventh Circuit by third-party commercial carrier for overnight delivery at the following address:
Douglas J. Mincher, Clerk of Court U.S. Court of Appeals for the 11th Circuit 56 Forsyth St., N.W. Atlanta, Georgia 30303
On this same date, a copy of the brief of appellee was served on the
following by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to received electronic Notices of Electronic Filing:
Benjamin Harris Yormak 9990 Coconut Road, Suite 206 Bonita Springs, FL 34135 (239) 985-9691
/s/ Stacie J. Venable Counsel Press, LLC 1011 East Main Street Richmond, VA 23219 (804) 648-3664 Filing and service were performed by direction of counsel
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