By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
"I had a meeting with Chief Billie himself," Braun remembers. "He was very rude to me and turned me out. He met with me three, five minutes, and he terminated it."
Although at the time he was vice president of the corporate board, Billie says he always deferred to decisions made by the president, Fred Smith, even if he disagreed. Billie describes Braun's inability to discuss the matter with tribal officials as "sort of a bullshit shuffle around." He adds: "I didn't have any knowledge of the [fish farm] contract because it was the board that did it. Even though I was the vice president, I didn't stick my nose in it." Billie says he eventually used tribal council funds and converted the farm to raise turtles. It's now called Seminole Aquaculture.
As the U.S. Fish lawsuit languished, Braun contacted other federal agencies, hoping for intervention. In October 1995, he received a letter back from Janet Reno's office, which noted that "the U.S. Department of Justice is precluded from offering legal advice to, or conducting an investigation for, a private citizen." In fact, if the DOJ got involved in a case like this, the letter noted, the BIA would be its client.
Braun contacted the Inspector General's Office for the Department of the Interior. That investigative office responded to Braun by citing the administrative judge's earlier decision. In turn, Braun complained to the President's Council on Integrity and Efficiency, which is empowered to review allegations of administrative misconduct against IG offices. The council's chairman notified him by letter that Braun "did not provide sufficient details to warrant" action.
Meanwhile, the GAO notified Braun that its investigation, with the concurrence of Mack's office, had been transferred to the Senate Indian Affairs Committee, which apparently took the matter no further.
Braun's attorney, Tomlin, told him that because of the sovereign immunity hurdle, the likelihood of a Florida court ordering a judgment against the Seminole Tribe was small and that he intended to withdraw from the case. Braun began looking for another attorney, but none was interested in taking a case that wasn't likely to pay out. He contacted a retired judge who had his own practice. "He didn't say he wouldn't take the case, but he said he was concerned that if he won, the Indians wouldn't have the money to pay," Braun recalls. "Nobody realized at that time how well the casinos were doing." Tomlin did eventually withdraw from the civil suit in 1997, which effectively ended the case: A corporation must be represented by an attorney, and Braun could find no replacement.
In the meantime, Braun had followed up on the retired judge's passing comment about the Seminole Tribe's finances. Under Title 25, the portion of the federal statutes that deals with Indians, tribes are held to certain accounting procedures for federal funds. Title 25 also outlines audit requirements by the National Indian Gaming Commission, which oversees casinos. Among the provisos are fiscal control and accounting procedures that "permit the tracing of contract funds to a level of expenditure adequate to establish that they have not been used in violation of any statute..." Braun had learned from former fish-farm employees and other tribal members that BIA funding had not always ended up where it was intended. Through a Freedom of Information Act request to the gaming commission, Braun learned that the tribe hadn't submitted many of the required audits. The agency denied him copies of the audits it did possess, saying they contained privileged data.
Braun had also learned about the Lincoln Law, so named because it was enacted at the behest of that president to curtail Civil War contractors who fleeced the feds. In essence, it empowered private citizens to be paid for reporting fraud. The original False Claims Act (FCA), however, contained numerous technicalities, and most cases were thrown out. Congress eliminated many of those obstacles in 1986 and also increased the whistleblower's share to a maximum of 30 percent. The FCA has since been routinely used in cases of Medicaid and Medicare fraud.
Braun filed his false-claims suit in South Florida federal court, naming the United States of America as plaintiff and himself as the "relator." The suit named both the tribe and its corporate entity as defendants. The tribe had "failed to account, or account accurately, its expenditures," the suit stated. "As such, Defendant has made and used false records in order to obtain approval for additional funding from the Government with actual knowledge, or reckless disregard of the truth or falsity, of the false records."
The suit remained sealed until December 8, 1998, when the government declined to participate. As was his option, Braun continued the legal battle on his own.
The tribe's attorney, Donald Orlovsky of West Palm Beach, responded that the case should be dismissed because the charges of fraud lacked specificity. The core defense, however, was that the tribe had sovereign immunity from a qui tam suit because there exists "no resolution, ordinance, or other official document or record evidencing any voluntary consent or waiver on the part of the Seminole Tribe to be sued in any civil or other action by the United States..." In addition, Congress did not specifically waive Indian sovereignty in the False Claims Act, Orlovsky wrote. "The doctrine of tribal sovereign immunity is essential to guard against the unwarranted exercise of state and federal jurisdiction over tribal affairs which would impinge on tribal self-government and threaten its limited asset and revenue base," he concluded.