SC04-67 Cupo Vs. Seminole Tribe of Florida, Etc

IN THE FLORIDA SUPREME COURT

CASE NO: SC04-67 LT. No: 1D02-3048 JOSEPH CUPO, ) ) Petitioner ) vs. ) ) SEMINOLE TRIBE OF FLORIDA ) a federally recognized Indian tribe. ) ) Respondent ) ______)

ON PETITION TO INVOKE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL, FIRST DISTRICT OF FLORIDA PURSUANT TO RULE 9.030(a)(2)(A)(ii) Fla.R.App.P.

RESPONDENT’S BRIEF ON JURISDICTION

Donald A. Orlovsky, Esq. Florida Bar No. 223816 Kamen & Orlovsky, P.A. Counsel for Respondent 1601 Belvedere Road # 402-S West Palm Beach, FL 33406 (561) 687-8500 (561) 687-7892 (Fax) TABLE OF CONTENTS

Designations and References ...... -ii-

Table of Authorities ...... -iii-

Statement of Case and Facts ...... -1-

Summary of Argument …………………………………………………………….-4-

Argument ...... -4-

THE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT SHOULD NOT BE INVOKED UNDER RULE 9.030 (a)(2)(A)(ii) Fla. R. App. P. AS THE DECISION OF THE DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY CONSTRUE A PROVISION OF THE STATE OR FEDERAL CONSTITUTION.

Conclusion ...... -9-

Certificate of Service ...... -10-

Certificate of Compliance as to Font Size ...... -11-

i DESIGNATIONS AND REFERENCES

Respondent, Seminole Tribe of Florida will utilize the following designations and references in its brief:

Petitioner, Joseph Cupo will be referred to herein as Cupo.

Respondent, Seminole Tribe of Florida, a federally recognized Indian tribe will be referred to herein as Seminole Tribe.

The Judge of Compensation Claims which granted the order appealed from will be referred to by name or by the Judge of Compensation Claims.

ii TABLE OF AUTHORITIES

Cases

Askew v. Seminole Tribe of Florida, Inc., 474 So.2d 877 (Fla. 4th DCA 1985) ...... 6

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, (1831) ...... 5

Cupo v. Seminole Tribe of Florida 860 So.2d 1078 (Fla. 1st DCA 2003 ...... 1, 9

Houghtaling v. Seminole Tribe of Florida 611 So.2d 1235 (Fla. 1993) aff’g 589 So.2d 1030 Fla. 2d DCA (1991) ...... 4, 6

Kimel v. State of Florida Board of Regents, 139 F.2d 1426, (11th Cir. 1998) aff’d 528 U.S. 62 (2000) ...... 8

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) ...... 4, 5

iii Middletown Rancheria of Pomo Indians v. Workers’ Compensation Appeals Board, 60 Cal. App. 4th 1340 ...... 9

Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991) ...... 5

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ...... 4, 6, 8

Seminole Police Department v. Cassadella, 478 So.2d 470 (Fla. 4th DCA 1985) ...... 6

United States v. Dion 476 U.S. 734 (1986) ...... 6

Statutes

25 U.S.C. § 476 ...... 1

28 U.S.C. § 1360 ...... 4

Florida Statutes, Chapter 440 ...... 1, 7

iv Tribal Law

Tribal Ordinance C-01-95 (Tribal Sovereign Immunity) ...... 3, 4

Tribal Ordinance C-01-98 (Workers' Compensation Ordinance) ...... 7

v STATEMENT OF CASE AND FACTS

Seminole Tribe would respectfully submit that the statement of the facts and of the case set forth in Petitioner’s Brief on Jurisdiction is so truncated that important facts and details bearing on jurisdiction have been omitted.

Cupo seeks discretionary review by this Court of a decision rendered by the

Court of Appeal, First District of Florida, on December 11, 2003. This decision affirms, per curium (with opinion), a final order entered on June 24, 2002, by the

Honorable Judith Brechner, Judge of Compensation Claims, granting the Seminole

Tribe’s motion to dismiss for lack of subject matter jurisdiction based upon the doctrine of tribal sovereign immunity. For all intents and purposes, the decision of the

First District Court of Appeal, and the final order that it affirms, hold that a federally recognized Indian tribe, as a separate sovereign tribal government which has a functioning workers’ compensation system and set of laws of its own, is not subject to Chapter 440, Florida Statutes, based upon the well settled law of tribal sovereign immunity. Cupo v. Seminole Tribe of Florida, 860 So.2d 1078 (Fla. 1st DCA 2003).

The Seminole Tribe is a federally recognized Indian tribe under the Indian

Reorganization Act of 1934, as amended, 25 U.S.C. § 476. The Seminole Tribe is

1 the beneficial owner of certain reservation lands located in the State of Florida, the legal title to which is held by the United States of America in trust for the Seminole

Tribe under a protective government-to-government trust relationship. As a separate sovereign tribal government, the Seminole Tribe has its own workers’ compensation legal system which was duly enacted by the Tribal Council of the Seminole Tribe, as the Tribe’s constitutionally constituted governing body, to administer workers’ compensation claims relative to employment related injuries sustained by employees of the Seminole Tribe. At all times material hereto, Cupo was an employee of the

Seminole Tribe.

On or about June 23, 2000--after first proceeding in the worker’s compensation forum of the Seminole Tribe--Cupo filed a petition for benefits with the State of Florida, Department of Labor and Employment Security, Division of Workers’ Compensation, seeking compensation for an alleged work related injury that occurred on or about November 28, 1998, approximately 8 months after the Tribal Council of the Seminole Tribe duly enacted its own worker’s compensation law. On December 7, 2000, Seminole Tribe filed its motion to dismiss for lack of subject matter jurisdiction together with the unrefuted affidavits of the Tribal Clerk and a member of the Tribal Council. Following an evidentiary hearing on the Tribe’s motion to dismiss for lack of subject matter jurisdiction, Judge Brechner entered a final order granting the Tribe’s

2 motion for lack of subject matter jurisdiction based upon the doctrine of tribal sovereign immunity. All evidence submitted by the Tribe was and remains completely unrefuted.

In addition to the well settled law on the issue of tribal sovereign immunity,

Judge Brechner based her order on Tribal Ordinance C-01-95 which is the Tribe’s sovereign immunity law. This tribal ordinance restates, as a matter of binding law, the circumstances under which the Tribe is immune from suit in state and federal courts based upon the claims of third parties asserted against the Tribe and its subordinate governmental units as well as tribal officials, employees and authorized tribal agents.

It reads, in pertinent part, as follows:

NOW THEREFORE BE IT ORDAINED: that the Seminole Tribe of Florida, its subordinate economic and governmental units as well as its tribal officials, employees and authorized agents are immune from suit brought by any third-party in any state or federal court absent the clear, express and unequivocal consent of the Seminole Tribe of Florida or the clear, express and unequivocal consent of the United States Congress. This immunity shall apply whether the Tribe or any subordinate economic or governmental unit is engaged in private enterprise or governmental function; and

SUMMARY OF ARGUMENT

3 The decision of the District Court of Appeal sought to be reviewed, like the final order it affirms, does not expressly construe any provision of the state or federal constitution. Rather, it is based upon the well settled law of sovereign immunity as well as Tribal Ordinance C-01-95 which constitutes tribal law on the subject and is binding upon state courts pursuant to 28 USC § 1360 (c). For this reason discretionary jurisdiction should not be invoked.

ARGUMENT

As a sovereign Indian tribe, the Seminole Tribe and all of its subordinate governmental units are not subject to the jurisdiction of state or federal courts absent the clear, express and unmistakable consent of the Tribe through the act of its constitutionally constituted governing body, or the clear, express and unequivocal consent of Congress. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,

523 U.S. 751 (1998); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978);

4 Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (Fla. 1993); aff’g 589

So.2d 1030 Fla. 2d DCA (1991). In this case, neither the Tribal Council of the

Seminole Tribe of Florida, as the Tribe’s constitutionally constituted governing body, nor the United States Congress, has given its permission for tribal sovereign immunity to be waived or abrogated with regard to state workers’ compensation laws.

Contrary to Petitioner’s mistaken belief, the doctrine of tribal sovereign immunity is not a statutorily created right. The federally recognized 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 conquering sovereign to a conquered sovereign. This relationship has been defined as most akin to that of a guardian to its ward. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).

It is firmly established that Indian tribes are regarded by the United States as dependant political sovereign governments which possess all aspects and attributes of sovereignty except where they have been taken away by congressional action. As an aspect of their sovereignty, Indian tribes--such as the Seminole Tribe--are immune from suit either in state or federal courts, without express and equivocal congressional authorization which does not exist in this case. Kiowa Tribe of Oklahoma v.

5 Manufacturing Technologies, 523 U.S. 751 (1998); Oklahoma Tax Commission v.

Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509 (1991); Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978); Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (Fla. 1993), aff'g 589 So.2d 1030 (Fla. 2d DCA 1991).

Tribal sovereign immunity from suit does not derive from any state or federal statute.

It derives from congressional recognition of the Tribe’s sovereign status which, in this case, pre-dates colonial America.

A waiver of tribal sovereign immunity may never arise by implication. Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978). If a waiver of immunity exists -- by act of Tribe or Congress -- the waiver or abrogation of immunity must be clear, express and unmistakable. United States v. Dion, 476 U.S. 734, 738-739 (1986). This doctrine is well settled in Florida. Houghtaling v. Seminole Tribe of Florida, 611

So.2d 1235 (Fla. 1993); Seminole Police Department v. Cassadella, 478 So.2d 470

(Fla. 4th DCA 1985); Askew v. Seminole Tribe of Florida, Inc., 474 So.2d 877 (Fla.

4th DCA 1985).

It is clear that Florida's workers' compensation laws cannot apply to the

Seminole Tribe or to any other federally recognized Indian tribe unless the claimant is

6 able to conclusively demonstrate either a tribal waiver of sovereign immunity and a tribal acceptance of Florida workers' compensation laws through the deliberative act of its Tribal Council, in legal session, or the clear and unmistakable abrogation of immunity on the part of Congress with respect to workers' compensation issues.

Neither exists in this case – facts which are unrefuted.

At no time and under no circumstances has the Tribal Council of the Seminole

Tribe enacted an ordinance or resolution accepting state jurisdiction under Chapter

440, Florida Statutes. As a sovereign tribal government, matters of tribal employment are within the exclusive jurisdiction of the Tribal Council which possesses plenary authority to deal with employment issues affecting the Seminole Tribe. In fact, the

Seminole Tribe has enacted Tribal Ordinance C-01-98 dealing with workers' compensation as a matter of tribal law. It is respectfully submitted that Florida courts have no jurisdiction over sovereign tribal governments regarding their employment relationships with tribal employees.

It is likewise clear from federal law that no congressional legislation exists which abrogates tribal sovereign immunity in connection with tribal workers' compensation claims. Nowhere can there be found any exercise of Congress' plenary authority over

7 Indian tribes which enables states to make federally recognized Indian tribes subject to state workers' compensation laws. Accordingly, the clear failure on the part of

Congress to subject tribal governments to workers' compensation laws must be read as the purposeful decision of Congress to reserve to Indian tribes their full preexisting sovereign powers in connection with workers' compensation issues. Had Congress intended to abrogate tribal sovereign immunity relative to state workers' compensation laws, it would have been required to say so in clear and unmistakable terms.

In order for a state or federal law to be applicable to a federally recognized

Tribe, it must be clear on the face of an applicable statute that Congress intended to abrogate immunity to Indian tribes in the legislation by providing a clear legislative statement of its intent and by making its intention unmistakably clear in the language of the statute. See, Kimel v. State of Florida Board of Regents, 139 F.2d 1426, 1430

(11th Cir. 1998) aff’d 528 U.S. 62 (2000). In describing the level of clarity necessary to determine whether a congressional abrogation exists, the Eleventh Circuit has stated:

For abrogation to be unmistakably clear, it should not first be necessary to fit together various sections of the statute to create an expression from which one might infer an intent to abrogate. Although we make no definite rule about it, the

8 need to construe one section with another, by its very nature, hints that no unmistakable or unequivocal declaration is present. Id. at 1431.

This analysis highlights the well settled rule that a waiver or abrogation of tribal

immunity may never arise by implication. Santa Clara Pueblo v. Martinez, 436 U.S.

49, 58-59 (1978).

On January 20, 1998, the California First District Court of Appeal decided the case of Middletown Rancheria of Pomo Indians v. Workers' Compensation Appeals Board, 60 Cal. App. 4th 1340; 71 Cal. Rptr. 2d 105; 63 Cal. Comp. Cas. 15; and 1998 Cal. App. LEXIS 50 (Cal. 1st DCA 1998) in which the California First District held -- in a case that is virtually identical in all important respects to the case now before this Court -- that state workers' compensation laws are inapplicable to Indian tribes and that state compensation courts lack subject matter jurisdiction over Indian tribes in connection with state workers compensation claims. CONCLUSION

In view of the fact that the decision of the First District Court of Appeal in Cupo v. Seminole

Tribe of Florida, 860 So.2d 1078 (Fla. 1st DCA 2003) does not expressly construe

a provision of the state or federal constitution, it is respectfully submitted that the

petition to invoke discretionary jurisdiction pursuant to Rule 9.030(a)(2)(A)(ii),

Fla.R.App.P., should be denied.

9 CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by first class mail, this day of February, 2004 to Joseph

Hackney, Esq., 1099 LeJune Road Miami, FL 33134, ATTORNEY FOR

PETITIONER and to Leopoldo Garcia, Jr., Esq., Angones, Hunter, McClure, Lynch

& Williams, P.A., 66 West Flagler Drive, Ninth Floor, Concord Building, Miami, FL

33130, CO-COUNSEL FOR RESPONDENT.

Donald A. Orlovsky, Esq. Kamen & Orlovsky, P.A. Attorney for Respondent 1601 Belvedere Road Suite 402 - South West Palm Beach, FL 33406 (561) 687-8500 (561) 687-7892 Facsimile

By:______Donald A. Orlovsky Florida Bar No. 223816

10 CERTIFICATION OF COMPLIANCE AS TO FONT SIZE

Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), I hereby certify that the foregoing brief has been prepared and is in compliance with the font size of

Times New Roman 14-point font as required by this Rule.

Donald A. Orlovsky, Esq. Kamen & Orlovsky, P.A. Attorney for Respondent 1601 Belvedere Road Suite 402 - South West Palm Beach, FL 33406 (561) 687-8500 (561) 687-7892 Facsimile

By:______Donald A. Orlovsky Florida Bar No. 223816

1617-Cupo/eln/dao27716.brief

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