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
Judge Joan Lenard dismissed the case on August 31, 1999, for two reasons. First, the court lacked jurisdiction because Congress had not specifically waived tribal immunity in the False Claims Act. Second, she cited a precedent that "ambiguities in federal laws must be resolved to the Indians' advantage."
As to Braun's actual allegations of fraud, Lerner told New Times, "There's no need to comment on that. The court has thrown out his claim. The court finds that he has no standing or right to bring the claim."
Braun grows agitated when he speaks of the dismissal. "The decision violated every bit of common sense to me," he declares during an interview amid his stacks of legal documents. Back in '99, he railed about common sense to his son Neil and brother Julian, both attorneys. "I spoke with my son and had a very heated argument -- right here in this room," Braun remembers. "He said, 'Pop, your common sense is not the law! Read what [the judge] said: sovereign immunity, best interest of the Indians.' I argued, and he said, 'For Christ sake, you're a stubborn old man!' I told him to get out of the office.
"The next morning, he came in to apologize. I have beautiful children. I told him: 'You did one thing good for me, Neil. You yourself could be the judge. Once I understand how the judge is thinking, I can adjust my thinking.'"
Braun appealed the decision to the 11th Circuit Court of Appeals in Atlanta; a year later, in August 2000, a three-judge panel affirmed Lenard's decision.
"How could they possibly say that the Seminoles could steal from the United States with immunity?" Braun seethes. "Nobody can claim sovereign immunity where the United States government is the principal."
Undaunted, he petitioned the U.S. Supreme Court to review the case. He cited a qui tam case that involved service contracts held by the Menominee Indian Tribe of Wisconsin. The Seventh Circuit Court of Appeals in March 1995, he noted, had allowed the plaintiffs to move forward on the merits of the case. As to whether the Seminoles can interpose their sovereign immunity over the United States, which is in fact the plaintiff in this case, Braun quoted from Article III of the U.S. Constitution: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority... to Controversies to which the United States shall be a Party."
On March 26, 2001, the Supreme Court declined to review the case.
Braun believes the consequences of the failed suit are far-reaching. "Laws are written by Congress, and then the judicial interprets the law," he explains. "Sometimes judges literally make a decision upon a decision of the law. This works its way up the courts. The appellate court of the 11th Circuit -- contrary to all the things that Congress had said -- interpreted the law to give the Indians immunity in the 11th Circuit. Other jurisdictions are not committed to follow that law, but some lawyer in another circuit will quote this decision. If it's carried far enough forward, it becomes law too."
Braun didn't let the Supreme Court's indifference deter him. The idea came to him -- he's not exactly sure from where -- to refile the case in another circuit; he chose the federal court in Minnesota. "I researched the whole country, and I found a few circuits that had qui tam actions against Indians and had ruled in the government's favor," he says.
"We have a word for that here," Lerner rejoins. "We call it forum shopping. You can't simply pick any federal court you want and force a defendant to go traveling 5,000 miles to defend himself. What if he could get a better shot in Alaska? Let's get real."
Federal court rules bar plaintiffs from taking an adjudicated case from one court to another. In his complaint filed in Minnesota in April, Braun argues that the merits of the case have never been argued and that it was dismissed only for jurisdictional reasons.
In early November, however, Minnesota Magistrate Judge Arthur Boylan issued a recommendation to the district judge that the case be dismissed on the grounds that it had already been litigated. Braun quickly mailed off another in a long, long chain of handcrafted arguments.
"You're talking about 12 years of legal work," he brags just a bit while surveying the boxes of pleadings in his office. "But, you know, really, I don't think a lawyer would have had any different results to this point. Of course, he may have done it a bit faster."