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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: [email protected] Counsel for Appellee Counsel Press, LLC (804) 648-3664 * (800) 275-0668 Case: 13-13886 Date Filed: 05/05/2014 Page: 1 of 36

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Page 1: United States Court of Appeals - Turtle Talk › 2014 › 05 › seminole-tribe-brief… · SEMINOLE TRIBE OF FLORIDA, d/b/a/ Seminole Indian Casino-Immokalee, Defendant-Appellee

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: [email protected]

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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ii

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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iii

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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1

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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2

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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