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The Ultimate Tourist Trap
By Janet Leiser
Managing Editor
Jeffrey "Jack" Gordon has an unusual legal niche: He's taking on the Seminole Indian Tribe, trying to poke holes in the tribe's long-
held sovereign immunity.
In the past five years, Gordon has filed about six personal injury lawsuits against the tribe, which has Hard Rock casinos in Tampa and Hollywood.
His reasoning: The tribe should be treated the same as its competitors. If a person is hurt on Seminole property, the tribe should be held legally liable.
Many lawyers concede the tribes can't be sued - at least not unless it waives immunity. Not Gordon.
"The reality is they're no longer a tribe," Gordon, managing partner of Maney & Gordon, says from his 31st floor office in the downtown Tampa Bank of America building.
"They are a business, a huge business," Gordon adds. "They're the most successful business in the state, arguably except for the tobacco and pharmaceutical industries, one of the most successful businesses in the country."
The tribe makes millions through its casinos. And that amount is expected to increase dramatically with the introduction of Las Vegas-style slot machines following last year's voter approval of slots for South Florida. Tribal officials are in talks with Gov. Jeb Bush to decide how the new slots will be implemented.
The new Indian Gaming Industry Report by Alan Meister, an economist with the Analysis Group, Los Angeles, says the Florida tribes netted $862 million in revenue, or $71.8 million monthly, in 2004. This year, the tribe's gambling revenue is expected to top $1 billion.
Nationally, Indian gaming, operated by 228 tribes, generated about $19 billion in revenue in 2004, a 12% increase from the previous year, according to Meister.
Sovereign immunity
Legal experts say the federal Indian Reorganization Act of 1934 makes it clear that tribes are sovereign nations. A tribe can only be sued if it willingly waives its sovereign immunity.
"You're not on U.S. lands so the law doesn't apply," Gordon says. "Not that there are any signs up saying that."
Do visitors realize that?
"Are you kidding? No," Gordon says. "It's like Vegas. They're thinking it's the greatest thing since sliced bread. It's miserable. It's unfair."
West Palm Beach attorney Donald Orlovsky, who has represented the Seminoles for about 16 years, says there's a good reason for the legal protection that dates back as much as 170 years. Tribes were given special considerations to provide reparations for their suffering at the hands of conquerors.
Gordon doesn't dispute the tragedy of the Trail of Tears or the senseless murder of Indians.
As for reparations, Gordon says, they had to be made.
"There's a good reason for having reparation acts and statutes to protect people who otherwise have been prejudiced against," he says. "It's clear that they have. At the same time, there has to come a point where reparations have been made. I don't think it's dissimilar from the affirmative action type of argument."
He quoted a U.S. Supreme Court opinion that states: "Indian Tribes are wards of the nation, they are dependent on the United States, 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 local ill feeling, the people of the states, where they are found, are often their deadliest enemies."
That reasoning is no longer true, he says.
The Seminole Tribe doesn't rely on the government for its food and the people of the states are no longer the Indian's enemy, he says.
"I wish I had enemies so good that they're daily going to bring me wheelbarrows full of cash," Gordon says.
Faulty arguments
Orlovsky says Gordon's arguments are flawed, and he says it would take a new federal law for the tribes to be held accountable in court.
He cites a June 15 opinion by the 2nd District Court of Appeal that ruled a lawsuit by Gordon, on behalf of a woman injured by a chair at the Tampa casino, must be dismissed.
The three-judge panel rejected Gordon's argument that the tribe's purchase of $1 million in liability insurance amounted to a waiver of sovereign immunity.
For the suit to continue, the court ruled, the tribe must expressly waive its immunity.
Still, 2nd DCA Chief Judge Chris Altenbernd raised questions.
In Altenbernd's concurrence, he wrote the "Seminole Tribe has created a large tourist attraction along Interstate 4 known as Seminole 'Hard Rock' Casino. It is adjacent to the state fairgrounds and advertises itself as a casino and hotel on Orient Road in Tampa, Florida. But this casino is not legally in Florida.
"The average tourist has no idea that her Florida constitutional rights to access to the courts and to trial by jury do not apply to any claims that may arise while she visits the hotel and casino. The Tribe itself does not post warnings that its tourist attraction is exempt from these basic Florida constitutional protections.
"In this case, the Seminole Tribe and, indirectly its commercial insurance company, are raising the jurisdictional bar to prevent jurisdictional resolution of a relatively minor and defensible personal injury claim. However, they could raise the same bar for a serious wrongful death action. ... The rule of law requires this court to reach this outcome, but hopefully the Seminole Tribe of Florida will eventually conclude that this litigation tactic is not the best policy to promote a profitable business."
Orlovsky says what Altenbernd didn't know, and the tribe couldn't tell him, was that it does settle claims if they're meritorious.
The lawyer says the appellate court's prior warning in '91 was taken to heart. In that decision, Altenbernd, then a new member of the court, said Indian reservations were the ultimate "tourist trap."
The tribe has even settled cases with Gordon, Orlovsky says. But its insurer decides whether a claim is legitimate.
That's another bug in Gordon's craw.
"I think denying liability is pretty egregious," he says. "I think hand selecting which cases you're going to settle, and which you're not going to settle, is egregious. It violates due process."
Not so, Orlovsky says.
"How Mr. Gordon can criticize the tribe for exercising its sovereign rights is beyond me," Orlovsky says. "Perhaps he doesn't understand the tribe's history."
While it's true that state government is no longer a deadly enemy of the Seminoles, Orlovsky says, there's still a "dynamic tension between the two governments," and the Seminoles remain dependent on the federal government, the "dominant sovereign."
In 1990, when Orlovsky began his representation of the Seminoles, he says, some still lived in "abject poverty," in huts without running water. Even today, few tribal members are college educated. Most adults have little education.
The tribe, which now numbers 3,000, descended from a group of 200 that refused orders to go to Oklahoma, Orlovsky says, adding: "They fought to a standstill, until the federal government just decided to leave. This is a very proud and brave tribe."
Each member receives a stipend based on profits.
As for the tribe's recent prosperity, Orlovsky says that could end at anytime "with the stroke of a pen by Congress."
Not that Orlovsky expects it to happen any time soon. "There's a long way to go before tribal society and non-tribal society are equalized," he says. He cites the tribe's need to improve elder care, education, infrastructure and health care. The Seminoles suffer from a high rate of diabetes and kidney failure.
"Gaming monies the tribe is able to put away today may be necessary for tomorrow," says Orlovsky.
He calls Indians the closest thing to an endangered human species.
"It's a very fragile society," Orlovsky says. "Even though they're doing well now. That wasn't the case 20 years ago, and it may not be the case 10 years from now."
New lawsuit
Once the Hillsborough court follows the 2nd DCA's order and dismisses the case of the woman hurt by a chair, Gordon, a self-described maverick, plans to refile it.
But he'll have to find a new legal tack. He has not yet decided how he'll argue it next time. He might question whether the casino is truly on tribal land. The Orient Road property was given to the tribe by Hillsborough County in the 1980s after Indian artifacts were found at what is now the downtown Fort Brooke parking garage.
"Does the county have the ability to give what becomes arguably federal protected land?" he says. "Probably not."
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