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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

Case: 15-12460 Date Filed: 08/20/2015 Page: 1 of 35

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)


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.


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


ii

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


iii

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


iv

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


v

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


1

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.


2

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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https://apps.fastcase.com/CaseLawPortal/Pages/Secure/Document.aspx?LTID=oODT%2f2WIj1H0j0wBq2ZhfHjUefj3SZ1lpZ3Gqa3IgqN2K1MXhpNSpvgJlX1HUQSh6PlFaK3GyNJiKXZGR6yel%2bD9RMH%2bYu6UCeKJGp1vHyA0HPEpaESTEIGQmn3r5IQWI6pIGXVp8yvv0MNUqas2AZ3LdBfXQG3AtzpHT8dvnds%3d&ECF=Bell+Atlantic+Corp.+v.+Twombly%2c++550+U.S.+544

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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).


4

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


5

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


6

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


7

(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)


8

(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)


9

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).


11

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


12

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.


13

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:


14

[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);


15

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


16

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


17

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


18

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


19

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 ______


20

“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


21

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


22

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.


23

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.


24

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


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


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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