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Seminole immunity is argued

Published Oct. 12, 2005

A Tampa woman who says she was injured at a Seminole bingo hall is trying to sue the Indian tribe, which claims immunity because of its status as an independent nation.

"It is not a corporation. It is not a person," said Donald Orlovsky, attorney for the Hollywood-based Seminole Tribe of Florida. "It is an Indian nation and is sovereign. It is Indian country."

The Florida Supreme Court heard arguments Tuesday in Carole Francis Houghtaling's case against the Seminoles for back injuries she said she sustained when she tripped at the tribe's bingo parlor in Hillsborough County in 1990.

Ms. Houghtaling said negligence by the Seminoles led to her accident, which left her unable to work. The tribe, however, said she can't sue in Florida circuit court because the Seminoles are protected by the same kind of immunity as any other government.

Her lawyer, Irene Higginbotham, acknowledged the protections granted to Seminole land and assets by Congress but said they didn't apply to a private lawsuit involving a commercial gambling enterprise.

"It's the tribe who operates the venture and earns the revenue. The tribe has to be held accountable for its actions," she said. "There's a greater policy of protecting the citizens when they are on Indian lands."

A state law says all civil suits "between Indians or other persons" can be heard by Florida circuit courts, but Orlovsky said that applies only to individuals, not to the tribe itself unless there is a clear waiver of the right to immunity.

Asked Chief Justice Rosemary Barkett: "No matter how negligent they may be, no matter how commercial the enterprise might be?"

Orlovsky responded, "That is correct. Sometimes it operates harshly."

Only Congress can change the immunity protections for a tribe, and it has not chosen to do so, he said.

"It is a very unique relationship of a conquering sovereign to a conquered sovereign," he said.

Florida courts have never diaddressed the issue directly. In this case, the circuit judge refused the Seminoles' request to dismiss the claim, but the 2nd District Court of Appeal ruled the tribe was entitled to immunity protections.

In Florida, the state can be sued for a maximum of $200,000, but anyone who wants more damages can file a claims bill with the Legislature. Orlovsky said a similar procedure exists within the Seminole Tribal Council, but Ms. Higginbotham disagreed.

"There's nothing in the record to indicate there is any remedy available," she said.

It's particularly important for the Supreme Court to address the issue now because the Seminoles want to expand their gambling ventures into casinos that could lure thousands of tourists onto Indian land, she added.