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Seminole Tribe of Florida v. McCor6/15/2005
The Seminole Tribe of Florida seeks certiorari review of the trial court's order denying the Tribe's motion to dismiss or for summary judgment. The Tribe's motion was based on the assertion that the Tribe was, by virtue of its status as a federally recognized Indian tribe, immune from the suit for negligence brought by Angela McCor for injuries she allegedly suffered at the gaming facility located on the Tribe's Tampa reservation. Because the trial court's denial of the Tribe's motion was a clear departure from the essential requirements of law resulting in injury to the Tribe which cannot be remedied on appeal, we grant the Tribe's petition.
I. Background
McCor's action against the Tribe-which was initiated in August 2002-seeks damages for injuries she allegedly sustained from being struck by a chair while she was at the Tribe's gaming facility in Tampa. In November 2002, the Tribe filed a motion to dismiss for lack of subject matter jurisdiction-based on tribal sovereign immunity-along with supporting affidavits.
In December 2003, McCor filed an amended complaint. The amended complaint-like the initial complaint-alleged that at the time of the incident at issue the Tribe was insured by St. Paul Fire and Marine Insurance Company for $1,000,000 in liability coverage. The complaint further alleged that by possessing the insurance coverage the Tribe had waived its sovereign immunity to the extent of the policy coverage. After answering the amended complaint and further asserting its tribal sovereign immunity by way of an affirmative defense, the Tribe, in May 2004, filed its motion to dismiss or, in the alternative, for summary judgment. In its motion, the Tribe asserted that it "is entitled to immunity from suit in all state and federal courts under the doctrine of tribal sovereign immunity," that the Tribe "has not waived sovereign immunity for any of McCor's claims in this litigation," and that the circuit court therefore "lacks subject matter jurisdiction over this suit."
In support of this motion, the Tribe relied on the same affidavits that had been filed in November 2002. These affidavits were executed by Max B. Osceola, Jr., a member of the Tribal Council, and by Mary Jane Willie, the "Official Tribal Clerk." The Osceola affidavit states that the Tribe "was formally organized for the common welfare of its tribal members in accordance with the provisions of section 16 of the Indian Reorganization Act of 1934 and has since been federally recognized and designated as an organized Indian tribe." The affidavit also recites: "At no time, and under no circumstances, have any claims or a waiver of tribal sovereign immunity respecting [a claim such as McCor's] been approved by the Tribal Council." Attached to the Osceola affidavit are copies of the amended constitution and bylaws of the Tribe and of Tribal Ordinance C-01-95. As the affidavit states, the constitution-the Tribe's charter-"describes the rights of the [Tribe] as a body politic to determine its destiny through self-government" and provides that the "Tribe conducts its governmental business through an elected governing council-The Tribal Council of the Seminole Tribe of Florida." The Tribal Ordinance, which was adopted March 16, 1995, by the Tribal Council, recites that the Tribe was "formally organized . . . in accordance with the provisions of Section 16 of the Indian Reorganization Act of 1934." The ordinance states "that the Seminole Tribe of Florida . . . immune from suit brought by any third-party in any state or federal court without the clear 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
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