Case No.: 13-10566

Date: May 5, 2014

Case type: State taxation, Indian sovereignty

Court: U.S. Court of Appeals for the Eleventh Circuit

Author of opinion: Judge William H. Pryor Jr.

Lawyers for petitioner: Glen A. Stankee, William S. Spencer and Katherine E. Giddings, Akerman, Fort Lauderdale; Michael J. Larson and Kristen Marie Fiore, Akerman, Tallahassee

Lawyers for respondents: Pam Bondi, Jonathan Glogau and Rachel Nordby, Office of the Attorney General, Tallahassee

Panel: Circuit Judges Pryor and Adalberto Jordan and U.S. District Judge Paul L. Friedman of the District of Colombia

Originating court: Southern District of Florida


Case No.: 3D13-3180

Date: April 23, 2014

Case type: Child custody, Indian sovereignty

Court: Third District Court of Appeal

Author of opinion: Judge Richard J. Suarez

Lawyers for petitioner: Paul Morris, Paul Morris P.A., Miami, and Elisa T. Terraferma, Walton Lantaff Schroeder & Carson, Miami

Lawyers for respondent: William Brady Jr., Law Offices of William Brady, and Jay M. Levy, Jay M. Levy P.A., Miami

Panel: Judges Suarez, Kevin Emas and Thomas Logue

Originating court: Miami-Dade Circuit Court

A state tax ruling by a federal appellate court and a child custody ruling by a state appellate court have something in common: Indian tribes made, or tried to make, arguments based on sovereignty. And they lost.

The decisions are notable for a dissent in the tax case and an unusual footnote to the opinion that decided the custody dispute.

In Layla Billie v. Kevin Stier, the Third District Court of Appeal held on April 23 that Miami-Dade Circuit Court—not Miccosukee Tribal Court—has jurisdiction over a custody battle between a mother of two who is a member of the Miccosukee Tribe and a father who is not.

The decision was dictated by the tribe’s treatment of the father, giving him insufficient notice and little opportunity to be heard. The tribal court proceedings that extended the mother’s temporary custody were conducted mostly in the Miccosukee language, which the father doesn’t understand, and no interpreter was provided.

The court targeted an obvious unfairness, said Jay Levy, an attorney for the father, Kevin Stier.

“This was so far from the bounds of acceptance that it wasn’t flying here,” he said.

Parting Footnote

Judge Richard Suarez wrote for a unanimous panel that the circuit judge was correct; the tribal court flouted procedures of the Uniform Child Custody, Jurisdiction and Enforcement Act.

Then, in a footnote, he shared a personal response:

“I write further, on my own and not on behalf of the majority, to express my concerns over jurisdictional issues in cases like this. I am concerned that the statutes in question appear to almost ignore the authority of Native American tribes over their citizens and seem to ignore the explicit federal statutes and case law setting forth strong tribal interest in determinations regarding custody of Native American children.”

Suarez goes on to spotlight rulings in custody cases calling for the concurrent jurisdiction of state and tribal courts, both focused on children’s best interests.

“I think he was stating a general concern about tribal welfare,” said Levy, Stier’s lawyer.

He said the Miccosukee Tribe could have intervened to assert an interest in the circuit court custody case his client filed, but didn’t.

“The tribe is entirely uncooperative and unresponsive when it comes to civil litigation in state court,” Levy said.

Attorneys for the tribe could not be reached for comment by deadline.

Tax Ruling

The May 5 federal appellate court opinion in Seminole Tribe of Florida v. State of Florida Department of Revenue doesn’t address tribal sovereignty. Instead, the issue hovers in the background.

The U.S. Court of Appeals for the Eleventh Circuit held that Florida’s sovereign immunity bars a complaint by a tribe against the Department of Revenue and its director.

The Seminoles had asked for a declaratory judgment that the tribe is exempt from paying Florida gasoline taxes and for an injunction requiring the refund of $393,247 in taxes already paid. Though purchased off tribal lands, the fuel was used on tribal lands to perform the tribe’s functions as a sovereign government, its lawyers wanted to argue.

They never got the chance.

“An Indian tribe can sue a state and its departments in federal court only if Congress has validly abrogated the immunity of the state or if the state has waived its immunity, but neither of those conditions has occurred here,” Judge William Pryor wrote for the court.

The tribe’s attempt to tap the state treasury is discussed, and rejected, throughout.

“This suit is not to enjoin an individual officer from committing a violation of federal law; it is instead a suit for monetary relief to be financed by the Florida fisc,” the opinion states.

“Here, the expenditure of state funds is the goal in itself.”

In a partial dissent, Judge Adalberto Jordan agrees there should be no refund. However, he would revive the part of the suit seeking a declaratory judgment against imposing future fuel taxes on the Seminoles.

That argument turns on the Indian Commerce Clause of the U.S. Constitution, which gives Congress the power to deal with Indian affairs—and defines its scope and limitations.

Jordan says he isn’t expressing any views on the constitutional issue. Still, his message is clear: The tribe has the right to pursue such a challenge, and concerns about draining state coffers should not get in the way.

An attorney who led a symposium on Indian sovereignty cautions against generalizing from the two decisions. Longtime tribal counsel Jerry Straus of Hobbs, Straus, Dean & Walker in Washington was not involved with either case, though he knew about the Eleventh Circuit ruling.

“Tribes have sovereign status. They are governments and that special attribute of tribes has been reaffirmed by courts and Congress,” he said.

“They’re part of our political system. That hasn’t really changed.”