Braun had initially invested $50,000, but by the end of 1988, he and Oster had ponied up another $600,000 and assumed control of the company. The demand for fish by would-be buyers surpassed what the company could raise, and the future looked promising. When Braun arrived that Sunday at the farm, however, he discovered thousands of dead fish floating and lying ashore.
"I was completely taken aback," recalls Braun, now 80 years old. "I had no idea what was going on. I couldn't find anybody in the office. I didn't want to make a fuss in front of my wife and friends, so we drove home, and I went back the next day. That's what started the whole investigation." U.S. Fish sued the Seminoles in Broward County Circuit Court, claiming that the tribe knew about hidden defects in the pond that made it impossible to raise fish without extensive and expensive restoration. That case was transferred to federal court, where the judge threw it out, agreeing with the Seminole Tribe that it had sovereign immunity from the civil suit.
But Braun didn't let the matter drop. Claiming the tribe can't account for millions of dollars in federal aid it has received from the Bureau of Indian Affairs (BIA), Braun filed a federal suit in 1998 under the False Claims Act, which allows private citizens to file fraud cases on behalf of the government. Since then, Braun has navigated a legal odyssey that's taken him to federal district court and the court of appeals. The case appeared dead when the U.S. Supreme Court declined to review it. At each stage, he's been stymied by the tribe's sovereign immunity.
This summer, he refiled the case in federal court in Minnesota, a district that has been friendlier toward allowing False Claims Act suits against Indian tribes. The tribe's lawyers are arguing once again that the court does not have jurisdiction over the Seminoles, and their impatience with this dogged octogenarian is evident in a motion filed in September.
"It is clear that Mr. Braun's strategy is to continue to file claims throughout the United States against [the tribe] and its legally chartered tribal corporation until, at some point, a case which has already traveled a torturous route from the United States District Court to the Supreme Court and back will find a forum to hear the case beyond jurisdiction," the motion states. The attorneys are tempted to seek sanctions against Braun for exploiting the courts, they noted, "but it is harsh indeed to seek monetary sanctions from an elderly retiree who has little else to do with his time than to perpetuate what is little more than a personal battle."
"We thought it had ended here in Florida," says Allan M. Lerner, a Fort Lauderdale-based attorney who represents the tribe. "Obviously, we'd like to stop the litigation. We will not settle with an individual who we believe is filing these frivolous lawsuits."
Although the fish farm first led him to court, Braun says his dispute now goes far beyond the concerns of a few retired investors. Indian tribes receive billions of dollars in federal assistance and perhaps as much in gambling proceeds. Two agencies within the U.S. Department of the Interior oversee the proper use of those funds. As federal judges have more broadly embraced the concept of sovereign immunity for tribes, however, the federal government has lost the powerful watchdog force of the False Claims Act. Braun describes such broad immunity as a license to steal from the federal government. Indeed, in all the years Braun has spent challenging the Seminole Tribe, the merits of his case have yet to be addressed.
"I'm pissed off," Braun fumes, "because the judges play with words and avoid the responsibility of making a decision."
During a Wednesday afternoon in late October, Leon Braun is wedged between his work and computer desks at his spacious home in the Emerald Hills area of Hollywood, just west of I-95. He rotates the chair to look through a manila folder of yellowed newspaper clippings, then swivels back slowly to look up the latest court pleading he's written. His bookshelves boast a blend of engineering, computer, and law books. Beside his copier sits a surfeit of three-ring binders containing court rules, BIA regulations, and federal statutes, among other documents.
Braun sometimes refers to himself as a bounty hunter, an appropriate label, he explains, for anyone who files under the False Claims Act. Also known as the qui tam statute, the act allows a citizen to operate as a private attorney general by suing a party who has allegedly committed fraud against the federal government. If the case is successful, the whistleblower then receives a percentage of whatever the government recovers.
Braun doesn't look anything like the rough-and-tumble bounty hunters of the big screen. He wears large, wire-rimmed reading glasses; a horseshoe of white hair frames a bald spot atop his head. He moves slowly and deliberately. At times, when he reaches back mentally for a name or date, his eyes close and his jaw slackens until the data is retrieved. He speaks in an even, sometimes thin voice, but occasionally frustration rises to his throat and he'll spit out invective with youthful force.
His daily schedule for the past few years has gone something like this: He and his wife, Thelma, arise and eat breakfast. If they're not scheduled to play bridge or golf, he'll go into his study and work on his lawsuit or continue to research qui tam, Indian sovereignty, and anything else remotely related to the subject. Lunch. Nap. Then, if they're not scheduled to play bridge or golf, he'll put in a couple more hours of work. Suing the Seminole Tribe of Florida has been, for all intents and purposes, his part-time job for the past four years.
This is not how Braun expected to spend his golden years, though he'd never planned to retire from business entirely, he says. He served as a radio-radar technician in the Navy during World War II and was onboard several ships during the Allied invasion of Sicily. He married in 1945 and completed an engineering degree at Columbia University in New York City a year later. He went into business for himself, founding companies to market products he patented. For example, he invented a long-lasting but inexpensive battery that powers beacons on lifejackets stored on passenger jets.
He adheres to the teachings of Kabbalah, a mystical aspect of Judaism that developed in medieval times. Asked how he got ideas for inventions, Braun describes at length Kabbalah's explanation of inspiration.
In the early 1970s, Braun and his wife moved to South Florida, where he assumed a semiretired lifestyle and maintained an office on North 29th Avenue in Hollywood. Among his projects at that time was a vending machine that would dispense carbonated beverages using spring water.
Some time in 1988, several women from the Better Business Bureau visited his office seeking his support for a local project. During the discussion, they mentioned that a start-up company called U.S. Fish was looking for investors in a fish farm. "I always had believed that the United States needs fish farming for our economic health," Braun says. "In South Florida, we have the best atmosphere and environment for fish farming, but we don't even take advantage of it."
The women put Braun in contact with John Taylor and J. William Shawfield, who were president and vice president of U.S. Fish Corp. They had already entered into a ten-year lease with the Seminoles in April 1987 that the BIA had approved. At the time, the farm had 150 acres of ponds, a hatchery, wells, and a processing plant. "I knew a lot of people, venture capitalists," Braun says. "They came to me for funding. I took a ride to the fish farm, and what I saw there impressed me."
From a storage closet, Braun pulls out enlarged color photographs that were apparently mounted on the wall at one time. In one, a pair of latex-gloved hands cradles a cluster of yellowish fish eggs. Another shows a dozen men, hip-deep in water, gathering up a huge net in one of the farm's ponds to harvest the adult fish. It takes about two years for the fish to grow big enough to sell.
U.S. Fish missed its quarterly lease payment of $16,000 in July 1988. At this point, Braun and his associate, Oster, invested about $600,000, brought the lease payments up to date, assumed control of the company, and started raising tilapia as well as catfish. Then, in May 1989, Braun discovered the big fish kill.
"I brought in the world's leading experts on aeration, because that's what kills the fish -- no air," Braun remembers. "We contracted to redo the whole farm. I had the guys put up more money to do this. We wired the whole farm for electricity to put the aerators in place, and lo and behold, within a few months, we had another fish kill. I'd say half to three-quarters of the full-grown fish were lying on the banks in the morning."
More experts finally found the root of the problem: The mud at the bottom of the ponds was stealing oxygen from the water. Apparently much of the high-protein food fed to the fish in the years before U.S. Fish took over had saturated the mud. "The ponds were so polluted by misuse that they could not be used without resalvaging," Braun says. Upon further investigation, the company discovered that the well water on the farm was toxic to fish and had killed fish during shipping, and that there were defects in the construction of the processing plant. "I knew all this after the company was out of money," Braun laments. U.S. Fish failed to make its quarterly lease payment in October 1990, and the BIA canceled its lease.
In the course of his inquiry, however, Braun had discovered that both the tribe and the BIA were aware of these defects. According to a memo to Braun by Charles S. Harris, who helped launch the fish farm in 1976 and managed it until the end of 1983, pond sludge was a recognized problem, and it had caused massive fish losses.
Moreover, Braun learned from Harris that federal money intended for farm improvements had been diverted by tribal officials. During Harris' tenure, the farm received about $700,000 in federal subsidies. The tribe had also received a $750,000 grant to build a refrigerated processing plant, Harris wrote. When the funds arrived, however, only half went to build the facility, "so it was naturally undersized and not properly equipped," he wrote.
As an entity, the Seminole Indian Tribe of Florida is not even a half century old, but some of its members trace their roots back hundreds of years. Most Florida Seminoles were forced to relocate to Oklahoma in 1838, a migration called the Trail of Tears, during which thousands died. Some Seminoles refused to leave, however, retreating instead into the wilds of the Everglades in the mid-1850s. In 1934, Congress passed the Indian Reorganization Act, which became the basis by which Indian tribes could organize tribal governments and adopt constitutions.
Descendants of the Everglades holdouts formed a charter in 1957 that was approved by the federal government. Howard Tommie was elected chairman of the tribe in 1971 and introduced tobacco shops and high-stakes bingo in Hollywood. Bingo had already been allowed in Florida, but the law limited jackpots to $100. The state sued, but in 1981, the Fifth Circuit Court of Appeals in Atlanta upheld the tribe's right to offer big-bucks bingo. In the late 1980s, the Seminoles broadened their operations with poker and slot machines.
Casinos brought in millions of dollars and gave this tribe of 2,800 people the capital to diversify into other businesses, such as the fish farm and an aircraft factory in Fort Pierce. But managing the tribe's newfound lucre has long been problematic. Says one former management-level employee: "Budgets don't mean that much to them. They pass them because they have to for the [federal aid]. But they've never followed them." Indeed, as far back as the early 1980s, tribal leaders have had problems keeping track of where the money goes.
In 1983, the Federal Election Commission began looking into illegal campaign contributions made by the Florida Seminoles through their lawyer, Stephen H. Whilden. Formerly with the Office of Management and Budget under Richard Nixon, Whilden had been hired as tribal counsel in 1977. In July 1983, the FEC notified Whilden and several members of the tribe -- including then-chairman James Billie -- that it was investigating contributions they had allegedly made to federal candidates and committees under other people's names. According to FEC documents, Howard Tommie had established an account in the late 1970s raised from a nickel levy on each carton of cigarettes sold on the reservation. Although the fund was supposed to be used for litigation, the FEC documents claimed it was used to reimburse tribal members who contributed to political campaigns.
Whilden argued that Indian tribes had sovereign immunity from the Federal Election Campaign Act because Congress did not expressly include them in the law. Although that same immunity argument was to stymie Braun a decade later, Charles Steele, general counsel for the FEC, would have none of it. In a memo to the commission, he wrote that the contributions did not "involve internal tribal self-government, rather they concern the relationship of the tribe with the larger society."
The FEC requested financial documents from the tribe, and when it became clear they would not produce them, the agency filed suit in federal court. The FEC concluded that the tribe had used $119,400 to reimburse 35 individuals from 1979 through 1982 and ordered a civil fine of $32,000.
Whilden, who had been fired by the tribe in 1982, had made $39,000 in contributions with tribal funds. He left the country in 1988; the FEC, unable to locate him, closed the case in 1990.
The tribe has also had lapses in accounting for government aid it receives. A three-part series published by the St. Petersburg Times in December 1997 reported that the tribe had received $39.2 million in federal and state aid in 1995. Auditors from the U.S. Housing and Urban Development agency had found that the Seminole Housing Authority was renting its properties to tribal members far below the rates approved by HUD. As a result, some renters were receiving subsidies they didn't deserve.
That same article reported that in 1992, Federal Emergency Management Agency auditors concluded that the Seminole Tribe had diverted about $60,000 in emergency aid after Hurricane Andrew hit. The money had been used to buy three Chevrolets as door prizes for a tribal meeting. The tribe returned the money after the misuse was discovered.
A struggle over tribal control boiled over last May when the council ousted chairman Billie two weeks after he had been sued in federal court by an employee claiming sexual harassment. (The case was settled out of court.) The council declared its intent to audit business deals in which Billie had been involved, and in September 2001, the tribe filed a civil suit against Billie, along with Timothy W. Cox, who managed the tribe's day-to-day operations, and Peter T. Ripich, who managed the tribe's investment fund. The suit alleged that beginning in late 1999, the three had embezzled gambling revenues and federal grants held in accounts at Merrill Lynch and Morgan Stanley. The men transferred $2.7 million to Virtual Data, a Belize-based company owned by former tribal employee Danny H. Wisher. The judge subsequently dismissed the case against Billie and Cox.
This past June, the tribe filed suit in Broward Circuit Court claiming Cox, Wisher, and two other ex-employees defrauded the tribe out of more than $4 million. Among the suit's allegations are that the men skimmed money by surreptitiously installing software on gambling machines, using tribal credit cards, and embezzling cash to pay for a hotel in Nicaragua and to launch an offshore Internet gambling site. A similar federal criminal case is being tried this week in Fort Lauderdale.
The Seminole purse strings are controlled by both the tribal council and the tribal corporation, two entities that share some members but not necessarily the same goals. As the tribal corporation's business involvement with the non-Indian public has grown, so have the number of lawsuits filed against the tribe involving rights of the disabled, sexual harassment, personal injuries, and construction disputes. The tribe has invoked its sovereign immunity as a defense in these cases; most end either because judges dismiss them or plaintiffs run out of money and patience.
Dan Sasso, a Collier County-based attorney, sued the tribe in the early 1990s on behalf of Dimentional Trade Industries, whose owner claimed the tribe hadn't paid $31,000 for drywall installation. After the tribe invoked immunity as a defense, the case dragged on until the owner decided to drop it, Sasso recalls. "There's just not enough money to proceed," he explains. "[Clients are] going to hit old age before they can finish the process."
Tribal immunity is a principle of Indian law long upheld by many courts across the nation, according to Nell Jessup Newton, dean of the University of Connecticut Law School and one of the top Indian-law experts in the country. "Indian tribes are governments; it's as simple as that," she declares. "Congress can limit their power, which is what makes them different from state governments. It is a principle of Indian law that Congress could enact a law waiving sovereign immunity of tribes, and the judiciary has stated this in several opinions."
One unexpected critic of the Seminoles' immunity defense, however, is the former chairman. "[The tribal corporation] always runs and hides behind something called sovereignty for some damn reason," growls James Billie. "I don't know how long you can keep hiding like that. That's why they could never get business with people. When I come in, I honor my situations when I do business with people. When these other people get in, they hide behind sovereignty. But that's bullshit after a while."
Braun had no inkling of tribal immunity when he dove into the fish-farm venture. With the discovery of the farm's hidden failings in 1990, however, he became convinced that U.S. Fish had been defrauded. Thus, the firm had the right, he believed, to discontinue lease payments until these problems could be investigated and, if possible, resolved. In January 1991, U.S. Fish filed a claim with the Department of Interior's Board of Indian Appeals, asserting that the tribe and the BIA were guilty of misrepresentation because they had not disclosed the defects. In June of that year, the judge issued a decision that the BIA and tribe had the right to cancel the lease because of the missed payments. As to the defects, if they did exist, the judge wrote that the Board of Indian Appeals lacked jurisdiction and authority to award damages against the BIA or Indian tribes.
Braun was incensed that the appeals board didn't care that the BIA knew about the farm's flaws but chose to lease the operation anyway. "We had no choice but to go to court," Braun says, "so we hired a lawyer." The firm filed suit against the BIA and the Seminole Tribe on February 5, 1992, in Broward County Circuit Court; the case was transferred to federal court that June.
In late 1992, Braun contacted U.S. Sen. Connie Mack's office, which forwarded his concerns to the General Accounting Office, the investigative arm of Congress. That agency moved forward with a preliminary assessment of the U.S. Fish lease and BIA management.
Subsequently, Braun claims, an aide in Mack's office told him that if the tribe would agree to a new lease, the senator's office would arrange for more funding through the BIA to fix the problems at the fish farm.
Despite the fact that U.S. Fish had lost about $3 million, Braun believed that the farm could succeed and that it would be to everyone's benefit if it did. "I wrote a letter to the tribal [corporate board], believing that if I could talk with someone of some reason, of good integrity, that we could resolve this. I wanted the fish farm to work." The council granted an audience, which was attended by Braun, his partner Oster, and Tracy Tomlin, their attorney. Braun had intended to present a list of current and past employees who could verify the pre-existing defects at the fish farm. Braun claims that the tribe's attorney, Lerner, didn't allow him to speak. Lerner then told Tomlin that even if he won the case, he couldn't collect any money because the Seminoles would claim sovereign immunity, Braun says.
Lerner recalls otherwise, that Braun addressed the tribe and offered to drop the lawsuit if he was given a new lease. "They simply had no interest in doing business with a guy who filed a lawsuit against them," Lerner says.
"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.
He wrote letters to Hillary Clinton and Leon Panetta, President Clinton's chief of staff, but was simply referred to other agencies.
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.
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."
