IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 12-CV-22439-COOKE/Bandstra
MICCOSUKEE TRIBE OF INDIANS
OF FLORIDA, a sovereign nation and
Federally recognized Indian tribe,
BILLY CYPRESS; DEXTER WAYNE
LEHTINEN, ESQUIRE; MORGAN
STANLEY SMITH BARNEY, JULIO
MARTINEZ; MIGUEL HERNANDEZ;
GUY LEWIS, ESQUIRE; MICHAEL
TEIN, ESQUIRE; AND LEWIS TEIN, PL,
A Professional Association,
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA’S RESPONSE IN OPPOSITION TO
DEFENDANT BILLY CYPRESS’ MOTION TO DISMISS SECOND AMENDED
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR
FAILURE TO STATE A CLAIM AND SUPPORTING MEMORANDUM OF LAW AND
JOINDER IN ALL RESPONSES TO MOTIONS TO DISMISS TO ALL OTHER
COMES NOW Plaintiff, the Miccosukee Tribe of Indians of Florida (hereinafter, “the
Miccosukee Tribe”), by and through the undersigned, and files this Response to Defendant Billy
Cypress’ (hereinafter, “Defendant Cypress”) Motion to Dismiss Plaintiff’s Second Amended
Complaint For Lack of Subject Matter Jurisdiction and for Failure to State a Claim and
Incorporated Memorandum of Law. Additionally, the Miccosukee Tribe hereby incorporates by
reference, adopts, and realleges as if set forth fully herein the arguments made in all of the
Miccosukee Tribe’s Responses in Opposition to all Defendants’ Motions to Dismiss. In Support
of its Response the Miccosukee Tribe states:
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Defendant Cypress was the Chairman of the Miccosukee Tribe for over two decades. In
his position as Chairman of the Miccosukee Tribe and one of the members of the Business
Council, he was entrusted with the overall well-being of the Miccosukee Tribe and Tribal
Members. In order to fulfill this intended role, Defendant Cypress oversaw, controlled,
supervised and had access to all the financial funds and records of the Miccosukee Tribe which
are the subject of this lawsuit. See Second Am. Compl, D.E. No. 75 at ¶ 6. The authority that was
vested upon Defendant Cypress was by virtue of his position as Chairman and of being one of
the members of the Business Council, and his actions were to inure to the benefit of the
Miccosukee Tribe. In his role as Chairman, Defendant Cypress had a legal and fiduciary duty to
maintain, protect and preserve the property of the Miccosukee Tribe. Second Am. Compl, D.E.
No. 75 at ¶ 444. Unfortunately, Defendant Cypress converted this trust responsibility into
“unrestricted access” to steal the hard earned money of the Miccosukee Tribe. Contrary to
Defendant Cypress’ contention that all the acts alleged against him in the present lawsuit were
authorized and taken in his “official capacity” as the duly elected Tribal leader, in pursuing this
unlawful course of action by lying, cheating, stealing and embezzling from the Miccosukee Tribe
he went beyond the scope of his authority as Chairman. See Cypress Mtn. to Dismiss, D.E. No.
104 at 3.
On July 1st, 2010, the Miccosukee General Council, which is the governing body of the
Miccosukee Tribe and is composed of adult members 18 years of age and over, acting in its
official capacity at an official meeting, passed General Council Resolution No. MGC- 03-10,
attached herein as Exhibit 1, where it determined that Defendant Cypress’ use of tribal funds was
“improper and unauthorized.” The resolution states in relevant part:
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Whereas, the Miccosukee Tribe conducted a review of its financial records and
found improper and unauthorized use of Tribal funds by former Chairman Billy
Cypress while a member of the Miccosukee Business Council. Whereas, the
Miccosukee Tribe finds former Chairman Billy Cypress’ conduct detrimental and
harmful to the welfare of the Miccosukee Tribe and its members. Whereas, former
Chairman Billy Cypress, shall reimburse the Miccosukee Tribe all unauthorized
and improperly used funds. Whereas, former Chairman Billy Cypress, is forever
barred of holding political office or a position in the Miccosukee Business
Counsel. Whereas, the terms of this Resolution shall apply to any current or future
member of the Miccosukee Tribe that engaged in unauthorized or improper use of
It is farfetched for Defendant Cypress to argue that his misappropriation of funds of the
Miccosukee Tribe was somehow within the exercise of his authority as Chairman. Cypress Mtn.
to Dismiss, D.E. No. 104 at 2. The Miccosukee Tribe never gave Defendant Cypress
“unrestricted access” to these funds. As Chairman, Defendant Cypress’ authority was
unrestricted only in the sense of acting in the best interests of the Miccosukee Tribe. The other
named Defendants, not the Miccosukee Tribe, were the ones who knowingly, willfully, and
improperly enabled Defendant Cypress’ misappropriation of Tribal funds. See generally Second
Am. Compl, D.E. No. 75. The credit card charges and cash withdrawals by Defendant Cypress
served no Tribal purpose, and were specifically for his personal benefit and enjoyment. The
Second Amended Complaint constantly reiterates that Defendant Cypress’ actions forming the
basis of the complaint were unauthorized and without the knowledge and consent of the
Miccosukee Tribe. Second Am. Compl, D.E. No. 75 at ¶¶ 28, 29, 34, 35(c), 39, 40, 49, 106, 107,
108(e), 108(i), 125, 126, 127(e), 127(i), 140, 141, 142(e), 142(i),161, 196, 197, 441, 448 and
458(c). Any act which was not in pursuance of the Miccosukee Tribe’s best interest was clearly
beyond the scope of Defendant Cypress’ authority as Chairman.
Defendant Cypress attempts to characterize this lawsuit as a Tribal political dispute and
as a result, turns this Court into the political arena that he no longer enjoys at the Miccosukee
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Tribe because he is banned from holding elected office within the Miccosukee Tribe.
Mtn. to Dismiss, D.E. No. 104 at 1; see General Council Resolution No. MGC-03-10, Ex. 1.
Defendant Cypress’ utter disdain for the Miccosukee Tribe is reflected by his outrageous
explanation to the Internal Revenue Service, supported and argued by Defendants Guy Lewis,
Michael Tein, and Lewis Tein, P.L. in defending Defendant Cypress, that the $11,508,304.71
withdrawn from ATM machines at various casinos across the United States was due to him
testing the operation of the Class II machines. Tr. of Lucky Jerry Cypress Decl., 45-46, Sept. 26,
2012, attached as Exhibit 2. Mr. Jerry Cypress also confirms that these withdrawals by
Defendant Cypress could not have been loans because the amount for loans was limited. Ex. 2
Defendant Cypress did not have “unrestricted access” to the funds described in this
lawsuit. Mr. Jerry Cypress, the current Treasurer for the Miccosukee Tribe and one of the
members of the Business Council and former Lawmaker, unequivocally refutes this
argument through his recent declaration, under oath, which shows that Defendant Cypress’
expenses, like any other tribal employee, were specifically limited. Ex. 2 12:1-13: 22; 14:1-25.
These specific limitations, which also applied to credit card charges, Ex. 2 14:1-22; 16:23-25;
17:1-2, were in effect during the relevant periods described in the Second Amended Complaint.
Ex. 2 16:23-17:2. Pursuant to tribal policy, the credit card statements would come to the finance
department. Ex. 214:8-24. Mr. Jerry Cypress confirms that it was the Miccosukee Finance
Department to which Defendant Cypress would have to account for expenses. Ex. 2 42:14-24.
Mr. Jerry Cypress also confirms that neither Defendant Cypress’ charge card expenses nor his
1 Defendant Cypress quotes to the Miccosukee Tribe’s Constitution and states that the Constitution is
attached as Exhibit “A” to the Motion to Dismiss. Cypress Mtn. to Dismiss, D.E. No. 104 at 3. The
Miccosukee Tribe would like to make note that there was no attachment to Defendant Cypress’
Motion to Dismiss and that the quotation to the Miccosukee Tribe’s Constitution was inaccurate.
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business expenses were disclosed at the General Council Meetings. Ex. 2 50:23-25; 52:5-22;
54:18-25. The Miccosukee Tribe’s policies that applied to the Miccosukee tribal officers and
members of the tribe, applied equally to Defendant Cypress.. See Ex. 2 24:18-25:10. The
following testimony was provided by Mr. Jerry Cypress on September 26, 2012,
[Direct Examination by I.R.S Agent James Furnas]
Q. And do employees have to account for any advances that they get for
A. They have three days to do the—I can’t remembers what they called it, but
they do have three days to submit the report.
Q. Is that like a travel voucher?
Q. So they have three days—and are they required to account to the tribe for
Q. So they’re required to provide details of lodging?
A. Well it is approved in advance where they’re staying and how much
they’re going to be using.
Q. Okay, and does the tribe advance money for that travel?
Q. Okay, and they’re required to account for how they use those advances?
Q. Do the same policies apply to elected officials?
Ex. 2 12:18-13:17.
This lawsuit is not about an intratribal dispute, as alleged by Defendant Cypress. This
lawsuit is about the Defendants’ violations of federal and state law, corroborated by the Internal
Revenue Service’s finding that Defendant Cypress misappropriated Miccosukee Tribe funds,
which have resulted in millions of dollars worth of damages to the Miccosukee Tribe. See United
States’ Mtn. to Den. Pets. To Quash, Miccosukee Tribe v. United States, No. 10-cv-21332 (S.D.
Fla. June 1, 2010), attached as Exhibit 3.
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STANDARD OF REVIEW
In deciding a motion to dismiss “the Court must view the allegations in the complaint in
the light most favorable to Plaintiff, consider the allegations in the complaint as true, and accept
all reasonable inferences therefrom.” Omar ex rel. Cannon v. Lindsey, 334 F. 3d 1246, 1247
The test for dismissal of a claim based on subject matter jurisdiction “is whether the
cause of action alleged is so patently without merit as to justify… the court’s dismissal for want
of jurisdiction.” Simanonok v. Simanonok, 787 F. 2d 1517, 1519 (11th Cir. 1986) (quoting Duke
Power Co. v. Carolina Envt’l Study Group, 438 U.S. 59, 70, 98 S.Ct. 2620, 2629 (1978)).
This is a facial attack on subject matter jurisdiction. In a facial attack “the challenger
asserts that the allegations contained in [the] complaint are insufficient on their face to invoke
federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F. 3d 1035, 1039 (9th Cir. 2004). A
facial attack to subject matter jurisdiction “require[ ] the court merely to look and see if [the]
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F. 2d
1525, 1529 (11th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F. 2d 507, 511
(5th Cir.1980), cert. denied, 449 U.S. 953, 101 S. Ct. 358.
MEMORANDUM OF LAW
I. THE COURT HAS SUBJECT MATTER JURISDICTION OVER THE
MICCOSUKEE TRIBE’S SECOND AMENDED COMPLAINT
This Court has subject matter jurisdiction over this case as alleged in the Second
Amended Complaint. This case is about whether Defendant Cypress’ abuse of tribal authority
and Defendants Martinez, Hernandez, Lewis, Tein, Lewis Tein P.L., Lehtinen, and Morgan
Stanley’s actions, in concert with Defendant Cypress and each other, constitute a violation of
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RICO, conspiracy to commit RICO, civil theft, fraud, aiding and abetting fraud, Florida RICO,
Florida RICO Conspiracy, embezzlement, breach of fiduciary duty, and fraudulent
misrepresentation. There are no issues presented by the Second Amended Complaint that are
outside this Court’s jurisdiction.
A. The Claims Alleged Against Defendant Cypress Do Not Touch Upon Purely
This Court has subject matter jurisdiction over all the claims alleged as to all Defendants,
including Defendant Cypress. Defendant Cypress alleges that “this is a ‘purely intramural
matter’ which is exclusively governed by the Tribe’s customs and traditions.” Cypress Mtn. to
Dismiss, D.E. No. 104 at 7. An intra tribal dispute is that which involves a matter of tribal self
governance and relates to the control of internal relations. Montana v. United States, 450 U.S.
544, 564 (1981). “Jurisdiction to resolve internal tribal disputes and to interpret tribal
constitutions and laws lies with the Indian tribes and not the district courts.” United States v.
Wheeler, 435 U.S. 313, 323–36, 98 S.Ct. 1079 (1978). This case does not present a matter of
tribal self governance and does not relate to the control of internal relations.
A federal law of general applicability, such as RICO, applies with equal force to Indians
except if: “(1) the law touches ‘exclusive rights of self-governance in purely intramural matters;’
(2) the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties;’ or
(3) there is proof ‘by legislative history or some other means that Congress intended [the law]
not to apply to Indians on their reservations.” Donavan v. Coeur d’Alene Tribal Farm, 751 F. 2d
1113, 1113-16 (9th Cir. 1985) (quoting United States v. Farris, 624 F. 2d 890 (9th Cir. 1980),
cert. denied, 449 U.S. 11, 101 S.Ct. 919 (1981)).
Defendant Cypress argues that his federal RICO violations against the Miccosukee Tribe
are purely intramural matters and therefore the exception to the rule of general applicability
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applies. Cypress Mtn. to Dismiss, D.E. No. 104 at 6 – 8. A tribal official’s misappropriation of
tribal funds does not create a “political question not justiciable by the federal courts.” Cheyenne-
Arapaho Tribes of Okla. v. Beard, 554 F. Supp. 1, 4 (W.D. Okla. 1980).
Defendant Cypress attempts to expand the definition of “purely intramural matters” to
any matters involving an Indian Tribe and a tribal member or tribal official. Cypress Mtn. to
Dismiss, D.E. No. 104 at 7. This is a clearly erroneous interpretation. The tribal self-government
exception has been defined as applying to “conditions of tribal membership, inheritance rules,
and domestic relations.” Donavan, 751 F. 2d at 1116; see Farris, 624 F. 2d at 893. Courts have
also found the following to be intra-tribal disputes: issues regarding an internal controversy
among Indians over tribal government (Motah v. United States, 402 F. 2d 1 (10th Cir. 1968));
issues regarding the right to vote in tribal elections (Harjo v. Kepple, 420 F. Supp. 1110, 1117
(D.C. Dist. 1976); issues regarding which tribal council is rightly in place under the tribal
constitution (In re Sac and Fox Tribe of the Miss. in Iowa v. Bear, 258 F. Supp. 2d 938 (N.D. Ia.
2003); election disputes between competing tribal councils over which council is authorized to
govern tribe and casino (In re Sac and Fox Tribe of Miss. in Iowa, Election Bd. v. Bureau of
Indian Affairs, 439 F. 3d 832 (8th Cir. 2006); issues regarding the appointment of a tribal official
under tribal law (Kaw Nation ex rel. McCauley v. Lujan, 378 F. 3d 1139 (10th Cir. 2004);
dispute between tribal members and members of the tribal council over who controls the
financial assets of the tribe (Wade v. Blue, 369 F. 3d 407 (4th Cir. 2004); issues regarding the
validity of a tribal resolution under tribal law (Potts v. Bruce, 533 F. 2d 527 (10th Cir. 1976); and
criteria to determine if someone is of Indian blood (Groundhog v. Keeler, 442 F. 2d 674 (10th
Cir. 1971). The RICO claims against Defendant Cypress cannot be categorized into any of the
types of matters excluded by the rule of general applicability.
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To accept Defendant Cypress’ argument that the RICO violations against him are
“exclusively governed by the Tribe’s customs and traditions” would bring all acts, including the
illegal ones alleged in the present case, committed by a tribal official, within the embrace of
“tribal self-government.” The Donovan Court did not agree with such a broad interpretation. See
generally Donovan, 751 F. 2d 1113. Therefore, Defendant Cypress’ misappropriation of the
Miccosukee Tribe’s funds which were used for: gambling and other personal expenses not only
in Florida but also across state lines, namely in Mississippi, Nevada, Pennsylvania, Louisiana,
New Mexico, North Carolina, New Jersey, Arizona; his purchases of luxury vehicles for personal
use; and vacations throughout and outside of the United States, is not governed by the tribal self-
government exception. See Donovan, 751 F. 2d at 1116 (The court determined that the operation
of a farm which was selling produce on the open market and in interstate commerce is not an
aspect of tribal self-government.).
In the alternative, if the Court finds that there is some intra tribal issue involved in this
case, it is not purely an intra tribal dispute because the majority of the unauthorized and illegal
conduct of the Defendants took place in non Indian country and the majority of the Defendants
are non Indian. See Goodface v. Grassrope, 708 F. 2d 335 (8th Cir. 1983) (not an intra-tribal
dispute because there were non Indian defendants and it involved the review of agency action by
the federal government). Consequently, this Court’s exercise of subject matter jurisdiction is not
impaired by the tribal self-government exception.
B. Defendant Cypress Cannot Assert Sovereign Immunity Against The
The crux of Defendant Cypress’ Motion to Dismiss is that he is immune from suit under
the doctrine of tribal sovereign immunity. Cypress Mtn. to Dismiss, D.E. No. 104 at 2, 4, 5, 9.
This is a misguided theory because Defendant Cypress is being sued by the sovereign, the
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Miccosukee Tribe. It would lead to an absurd result if tribal officials could pursue a pattern of
misconduct against the tribe, such as the misconduct perpetrated by Defendant Cypress, and
consequently shield themselves from suit by the tribe with tribal sovereign immunity. There is
absolutely no legal authority for the proposition that a tribal official is immune from suit by the
tribe. Defendant Cypress’ claim of sovereign immunity includes a recitation of case law
discussing the history and origins of tribal sovereign immunity. See Cypress Mtn. to Dismiss,
D.E. No. 104 at 4-5. Such background of tribal sovereign immunity would be relevant if the
Miccosukee Tribe or a tribal official were being sued by an individual or corporation, but it
proves meaningless when the suit is being initiated by the tribe itself against a tribal officer
accused of criminal activities.
Defendant Cypress, through his false sense of entitlement, requests that this Court find
that an Indian Tribe cannot sue a former tribal officer for acts it has determined were
unauthorized and beyond the scope of his authority, because that former tribal officer can assert
the tribe’s own sovereign immunity against it. Cypress Mtn. to Dismiss, D.E. No. 104 at 4-5.
This requires this Court to erroneously read Indian law and turn it on its head. Tribal sovereign
immunity cannot be used against the sovereign. Miccosukee Tribe of Indians of Florida v. United
States, 698 F. 3d 1326, 1331 (11th Cir. 2012). An Indian tribe’s immunity only extends to a
tribal officer if that tribal officer’s actions are within his or her official capacity. Tamiami
Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 177 F. 3d 1212, 1225 (11th Cir. 1999);
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, No. 10 Civ. 60483, 2011 WL
1303163 *10 (S.D. Fla. March 31, 2011); Lobo v. Miccosukee Tribe of Indians of Fla., 279 Fed.
Appx. 926, 927, 2008 WL 2222074 * 1 (11th Cir. May 30, 2008); Fletcher v. United States, 116
F. 3d 1315, 1324 (10th Cir. 1997); Teneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F. 2d 572,
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576 (10th Cir. 1984); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir. 1983), cert.
den. 467 U.S. 1214 (1984); Terry v. Smith, No. 09 Civ. 00722, 2011 WL 4915167 * 7 (S.D. Ala.
July 20, 2011); United States v. Menominee Tribal Enterprises, No. 07 Civ. 316, 2008 WL
2273285 *10 (E.D. Wis. June 2, 2008); Catskill Development, L.L.C. v. Park Place
Entertainment Corp., 206 F.R.D. 78, 86 (S.D. N.Y. 2002); Buchanan v. Sokaogon Chippewa
Tribe, 40 F. Supp. 2d 1043, 1048 (E.D. Wis. 1999). It is no surprise that Defendant Cypress fails
to cite to any of the above cases in his recitation of the history and development of tribal
sovereign immunity. See Cypress Mtn. to Dismiss, D.E. No. 104. The above string of cases
demonstrates that Defendant Cypress is clearly not entitled to the protection of tribal sovereign
The Miccosukee Tribe has already determined that Defendant Cypress was not acting in
his official capacity when he pillaged the coffers of the Miccosukee Tribe. See above; General
Council Resolution No. MGC- 03-10, Ex. 1. As a result, tribal sovereign immunity does not
extend to Defendant Cypress’ unauthorized actions. First, Tribal sovereign immunity cannot be
used against the superior sovereign. See Miccosukee Tribe of Indians of Florida v. United States,
698 F. 3d 1326, 1331 (11th Cir. 2012) (citing Fla. Paraplegic Ass'n, 166 F.3d at 1135; Reich v.
Mashantucket Sand & Gravel, 95 F. 3d 174, 182 (2d Cir. 1996); Quileute Indian Tribe v.
Babbitt, 18 F. 3d 1456, 1459–60 (9th Cir. 1994); United States v. Red Lake Band of Chippewa
Indians, 827 F. 2d 380, 382 (8th Cir.1987) and holding that “Indian tribes may not rely on tribal
sovereign immunity to bar a suit by a superior sovereign.”).Thus, it is the next and only logical
conclusion that an employee or tribal officer cannot use tribal sovereign immunity to bar a suit
by the sovereign whom is the holder of the immunity.
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Second, an Indian tribe’s immunity only extends to a tribal officer if that tribal officer’s
actions are within his or her official capacity. Tamiami Partners, Ltd. v. Miccosukee Tribe of
Indians of Fla., 177 F. 3d 1212, 1225 (11th Cir. 1999); Contour Spa at the Hard Rock, Inc. v.
Seminole Tribe of Florida, No. 10 Civ. 60483, 2011 WL 1303163 *10 (S.D. Fla. March 31,
2011); Lobo v. Miccosukee Tribe of Indians of Fla., 279 Fed. Appx. 926, 927, 2008 WL 2222074
* 1 (11th Cir. May 30, 2008); Fletcher v. United States, 116 F. 3d 1315, 1324 (10th Cir. 1997);
Teneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F. 2d 572, 576 (10th Cir. 1984); Snow v.
Quinault Indian Nation, 709 F. 2d 1319, 1321 (9th Cir. 1983), cert. den. 467 U.S. 1214 (1984);
Terry v. Smith, No. 09 Civ. 00722, 2011 WL 4915167 * 7 (S.D. Ala. July 20, 2011); United
States v. Menominee Tribal Enterprises, No. 07 Civ. 316, 2008 WL 2273285 *10 (E.D. Wis.
June 2, 2008); Catskill Development, L.L.C. v. Park Place Entertainment Corp., 206 F.R.D. 78,
86 (S.D. N.Y. 2002); Buchanan v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043, 1048 (E.D.
Wis. 1999). Because the Miccosukee Tribe determined that Defendant Cypress was not acting in
his official capacity when he pillaged the coffers of the Miccosukee Tribe, tribal sovereign
immunity does not extend to Defendant Cypress to protect him from suit by the Miccosukee
Tribe for his unauthorized actions. It seems that Defendant Cypress does not understand that the
purpose of tribal sovereign immunity is to protect the tribe’s sovereignty and not his personal
plundering of the Miccosukee Tribe. Defendant Cypress continues to believe, wrongfully, that he
is the Miccosukee Tribe.
Defendant Cypress relies primarily on Linneen v. Gila River Indian Community, 276
F.3d 489, 492 (9th Cir. 2002) and Hardin v. White Mountain Apache Tribe, 779 F. 2d 476, 479,
480 (9th Cir. 1985) for the proposition that he is protected from suit by the doctrine of tribal
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sovereign immunity. Cypress Mtn. to Dismiss, D.E. No. 104 at 5 – 6. Both cases prove to be
inapposite to Defendant Cypress’ argument.
In Linneen, a non-Indian family drove through reservation land, was allegedly stopped
and detained by a tribal ranger for three hours with a gun to their heads, and the family filed suit
against the tribe and the tribal officials for the alleged unlawful detention. 276 F. 3d at 491. The
court found that it lacked subject matter jurisdiction because the tribe had not waived its tribal
sovereign immunity. Id. at 492. This case does not support Defendant Cypress’ argument
because the actual tribe was a defendant in Linneen and the sovereign immunity enjoyed by an
Indian tribe is superior to that of tribal officials See Miccosukee Tribe of Indians of Florida, 698
F. 3d at 1331 (citing Fla. Paraplegic Ass'n, 166 F. 3d at 1135; Reich, 95 F. 3d at 182; Quileute
Indian Tribe, 18 F. 3d at 1459–60; Red Lake Band of Chippewa Indians, 827 F. 2d at 382 and
holding that “Indian tribes may not rely on tribal sovereign immunity to bar a suit by a superior
sovereign.”). In the case at bar, Defendant Cypress, a former tribal official, is being sued by the
Tribe for improper acts which well exceeded the scope of his authority. Linneen did not involve
a tribe suing a former tribal official for misconduct, nor does it state that a tribe would be barred
from suing a tribal official for misconduct under the doctrine of tribal sovereign immunity and is
inapplicable to the case at bar. See id.
Similarly, in Hardin a nonmember sued a tribe and tribal officials for excluding him from
reservation land to which he had a lease. 779 F. 2d at 478. The Court held that the suit was
barred by the doctrine of tribal sovereign immunity and that the individual defendants, as tribal
officials acting in their official capacity and within the scope of their authority, were also
protected by tribal sovereign immunity. Id. at 479-80. The Hardin Court emphasizes the rights
and powers of the Indian Tribe to exclude whomever they want from reservation land and any
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tribal official exercising that right on behalf of the tribe is protected by the tribe’s sovereign
immunity. See id. Once again, the Hardin case does little to further Defendant Cypress’
argument because it involved a nonmember suing both the tribe and tribal officials acting in their
official capacity and within their authority. In the present case, the Miccosukee Tribe is not being
sued and Defendant Cypress acted outside the scope of his authority.
“[A]s a matter of federal law, an Indian tribe is subject to suit only where Congress has
authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs.
Inc., 523 U.S. 751, 754, 118 S.Ct. 1700 (1998) (emphasis added). The rationale behind cloaking
tribal officials with the sovereign immunity of the tribe was because most times a suit against a
tribal official is equivalent to a suit against the tribe. See United Nuclear Corp. v. Clark, 584 F.
Supp 107, 109 (D.D.C. 1984); Bottomly v. Passamaquoddy Tribe, 599 F. 2d 1061, 1067 (1st Cir.
1979) (“[T]o say that this tribe is exempt from civil suit on its contracts, and yet compel its
principal chief(s), by judicial process, to take funds from its treasury, and turn them over to the
court to be applied in discharge of its contracts, is to destroy in practice the very exemption
which at the outset is conceded as a legal right.”); Larson v. Domestic and Foreign Commerce
Corp., 337 US 682, 687-689, 69 S. Ct. 1457, 1460-61 (1949). Essentially, the purpose of
providing a tribal official with tribal sovereign immunity was to protect the tribe from incurring
the burden of litigation on behalf of the tribal official and to prevent the interruption of the
tribe’s governmental functions. See id. In the present case, since it is the Miccosukee Tribe suing
the former Chairman, Defendant Cypress, there is no need to protect the Miccosukee Tribe
because the Miccosukee Tribe will not incur the burdens of litigating on behalf of Defendant
Cypress and the government functions of the Miccosukee Tribe will not be interrupted.
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Because sovereign immunity is an issue when an Indian tribe is subject to suit, and
because the Miccosukee Tribe’s suit against Defendant Cypress is not equivalent to a suit against
the Miccosukee Tribe, then sovereign immunity is not a privilege that Defendant Cypress can
assert. As repeatedly alleged in the Second Amended Complaint (D.E. No. 75) and as
demonstrated by the Miccosukee General Council Resolution No. 03-10 (Ex. 1), it is clear that
Defendant Cypress’ actions were never authorized, beyond the scope of his authority as a tribal
official, and any claim to tribal sovereign immunity by Defendant Cypress was lost by virtue of
his improper and harmful actions taken against the Miccosukee Tribe, which were not within the
scope of his authority. Allowing Defendant Cypress to invoke tribal sovereign immunity against
the Miccosukee Tribe to prevent adjudication of the case against him would go against existing
legal principles and concepts of justice and fairness.
II. THE SECOND AMENDED COMPLAINT CLEARLY STATES A CAUSE OF
ACTION AGAINST DEFENDANT CYPRESS UNDER RICO
A. Because This Is A Civil Lawsuit, The Law For Criminal Jurisdiction As
Proposed By Defendant Cypress Is Inapplicable
Defendant Cypress relies upon the Indian Major Crimes Act (hereinafter, “IMCA”), 18
U.S.C. § 1153, et seq., for his argument that this Court lacks jurisdiction to hear this matter
because none of the claims against Defendant Cypress are among the sixteen (16) specific
enumerated crimes that may occur within “Indian Country” and are committed by an Indian
giving jurisdiction to a federal court. Cypress Mtn. to Dismiss, D.E. No. 104 at 7 – 8. This
argument is mistaken and a clear misapplication of the law. IMCA governs the primary
apportionment of criminal jurisdiction for crimes committed by Indians in Indian country. United
States v. Jadusingh, 300 Fed. Appx. 721, 722 (11th Cir. 2008) (“the Major Crimes Act limits the
authority of the district court to the prosecution of offenses committed by an Indian on a
reservation.”). This is not a criminal prosecution, therefore IMCA is inapplicable. See id. Neither
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 15 of 22
IMCA nor any other statute or authority bars the exercise of federal court jurisdiction “over civil
causes of action arising between Indians within ‘Indian Country.’” Cheyenne-Arapaho Tribes of
Okla., 554 F. Supp. at 4.
Because this is a federal civil action being brought by an Indian Tribe, this Court has
jurisdiction under both 28 U.S.C. § 1331 and 28 U.S.C. § 1362. Blatchford v. Native Village of
Noatak, 501 U.S. 775, 783, 111 S. Ct. 2578, 2583 (1991) (Indian tribes were given access to
federal courts for civil actions arising under the Constitution, laws, or treaties of the United
States in § 1331. Therefore, 18 U.S.C. § 1362 merely serves to extend “arising under”
jurisdiction to Indian tribes for claims under the required $10,000 amount in controversy.).
Additionally, the federal RICO statute provides a private civil remedy provision.
does not govern the present civil lawsuit against Defendant Cypress and because the claims arise
under the laws of the United States providing a private right of action, this Court’s exercise of
jurisdiction over this lawsuit is not barred.
B. The Indian Gaming Regulatory Act Does Not Bar The Claims Against
Defendant Cypress Nor Does It Provide An Adequate Alternative
Defendant Cypress makes the incoherent and implausible argument that because the
Indian Gaming Regulatory Act (hereinafter, “IGRA”) 25 U.S.C. § 2701, et seq. (1988), which
was intended to regulate gaming within Indian Country and to prevent “criminal activity,
including organized crime” from impacting enterprises operating within Indian Country, was
passed by Congress notwithstanding the existence of RICO, which was passed to deal with
organized crime and racketeering, then Congress must have intended for IGRA to be the sole law
to deal with organized crime and criminal activity within Indian Country. Cypress Mtn. to
“Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue
therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the
cost of the suit, including a reasonable attorney's fee.” 18 U.S.C. § 1964(c).
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 16 of 22
Dismiss, D.E. No. 104 at 8 – 9. This argument is difficult to follow because IGRA is wholly
irrelevant to the issues presented in this lawsuit. It is clear that Congress’ sole purpose for
passing IGRA was not to prevent organized crime within Indian gaming operations, but “to
provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting
tribal economic development, self-sufficiency, and strong tribal governments.” IGRA, 18 U.S.C.
§ 2702(1). Congress specifically “intended to expressly preempt the field in the governance of
gaming activities on Indian lands. Consequently, Federal courts should not balance competing
Federal, State, and tribal interests to determine the extent to which various gaming activities are
allowed.” S. Rep. No. 100-446, at 6 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3076.
Defendant Cypress’ use of IGRA in his argument is amusing. It seems that he erroneously
believes that because he was using some of the misappropriated funds he stole from the
Miccosukee Tribe, for his gaming and gambling habits, that IGRA is somehow the applicable
statute. While the argument is creative and entertaining, it is far from accurate and carries no
legal weight. Additionally, Defendant Cypress should err on the side of caution when discussing
other federal statutes, under which he may have criminal and or civil liability.
IGRA was not intended to usurp the private civil remedies provided by RICO for a
pattern of racketeering activity such as the one carried out by Defendant Cypress and all of the
Defendants in this case. See Fla. v. Seminole Tribe of Fla., 181 F. 3d 1237, 1247 (11th Cir.
1999). It is mystifying how Defendant Cypress would think that IGRA forecloses a private RICO
cause of action against him.
C. Defendant Cypress’ Acts Against The Miccosukee Tribe Were Not
Committed Exclusively In Indian Country
Even if this Court determined that the conduct alleged against Defendant Cypress in this
case falls within the conduct and activities that IMCA and IGRA were intended to govern,
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 17 of 22
Defendant Cypress’ argument suffers from a fatal flaw. Cypress Mtn. to Dismiss, D.E. No. 104
at 7 – 8. Both IMCA and IGRA deal exclusively with acts taking place in Indian Country. See 18
U.S.C. § 1153, et seq.; 25 U.S.C. § 2701, et seq. Defendant Cypress’ improper and unauthorized
acts were not restricted to the Reservation. In fact, Defendant Cypress committed his trespasses
and unlawful acts against the Miccosukee Tribe throughout the entire United States and abroad.
Namely, Defendant Cypress traveled to Mississippi, Nevada, Pennsylvania, Louisiana, New
Mexico, North Carolina, New Jersey and Arizona. Second Am. Compl., D.E. No.75 at ¶ 35(a)-
(c). Defendant Cypress traveled to different states and countries, stayed in luxurious hotels, dined
in expensive restaurants, and gambled in both Indian and non-Indian owned and operated casinos
with tribal funds which he was misappropriating. Id. The Second Amended Complaint is explicit
in its description of Defendant Cypress’ activities off the Reservation which included dozens of
cash withdrawals in numerous and renowned gambling institutions and credit card expenditures
spanning the length of the United States. See Morgan Stanley Smith Barney FMA Account Year
End Summaries for 2006 through 2009 reflecting Defendant Cypress’ ATM withdrawals,
attached as Exhibit 4.
III. LEAVE TO AMEND COMPLAINT IS PROPER SHOULD THIS COURT
FIND THE COMPLAINT DEFECTIVE
Alternatively, if this Court finds that the Miccosukee Tribe’s Second Amended
Complaint is defective, the appropriate remedy is to allow the Miccosukee Tribe to file a Third
Amended Complaint. “When a plaintiff has imperfectly stated what may be an arguable claim,
leave to amend is ordinarily in order.” Alley v. Resolution Trust Corp., 984 F. 2d 1201, 1207
(D.C. Cir. 1993). “Where a more carefully drafted complaint for failure to state a cause of action
might state a claim, the plaintiff must be given at least one chance to amend the complaint…”
Bank v. Pitt, 928 F. 2d 1108, 1112 (11th Cir. 1991)(emphasis added). Should this Court find that
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 18 of 22
the Miccosukee Tribe’s Second Amended Complaint is insufficient, in the interest of justice, as
well as according to relevant and binding authority, the Court should grant the Miccosukee Tribe
leave to amend its Third Amended Complaint.
This Court has already noted that the Miccosukee Tribe “provided great detail of the
alleged pattern of racketeering/criminal activity against Defendant Billy Cypress and Defendant
Julio Martinez.” D.E. 55 at 5. That observation was made as to the Miccosukee Tribe’s First
Amended Complaint, which the Miccosukee Tribe filed as of right. D.E. No. 13. The
Miccosukee Tribe’s Second Amended Complaint provides an even more detailed description of
the plan Defendant Cypress carried out in order to misappropriate the funds of the Miccosukee
Tribe. Firstly, Defendant Cypress cannot shield himself from this lawsuit by claiming tribal
sovereign immunity because the Miccosukee Tribe is the superior sovereign and Defendant
Cypress was acting outside the scope of his authority. Secondly, the claims against Defendant
Cypress do not present matters which are characterized as intra-tribal disputes. Thirdly, neither
IMCA nor IGRA foreclose the Miccosukee Tribe’s lawsuit against Defendant Cypress.
Wherefore, the Miccosukee Tribe respectfully requests this Honorable Court to DENY
the Motion of Defendant, Billy Cypress, to Dismiss Second Amended Complaint for Lack of
Subject Matter Jurisdiction and for Failure to State a Claim and Supporting Memorandum of
Law. In the alternative, should this Court find the Second Amended Complaint deficient, it
should grant the Miccosukee Tribe Leave to Amend its Second Amended Complaint.
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 19 of 22
Respectfully submitted on this 14
day of January 2013.
/s/Bernardo Roman III
Bernardo Roman III, Esquire
Fla. Bar No. 0002739
Tribal Attorney, Miccosukee Tribe of
Indians of Florida
P.O. Box 440021, Tamiami Station
Miami, Florida 33144
Tel: (305) 894-5214
Fax: (305) 894-5212
Yinet Pino, Esquire
Fla. Bar No. 085272
Attorney for the Miccosukee Tribe of
Indians of Florida
1250 SW 27th Avenue, Suite 506
Miami, Florida 33135
Telephone: (305) 643-7993
Facsimile: (305) 643-7995
Yesenia Rey, Esquire
Fla. Bar No. 89577
Attorney for the Miccosukee Tribe of
Indians of Florida
1250 SW 27th Avenue, Suite 506
Miami, Florida 33135
Telephone: (305) 643-7993
Facsimile: (305) 643-7995
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 20 of 22
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 14, 2013 I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List via transmission of Notices of Electronic Filing generated by CM/ECF.
s/Bernardo Roman III
Bernardo Roman III, Esq.
Miccosukee Tribe of Indians of Florida v. Cypress
Case No. 12-22439-COOKE/Bandstra
United States District Court for the Southern District of Florida
Jeffrey M. Cohen, Esquire
Marissel Descalzo, Esquire
Paul A. Calli, Esquire
Charles Short, Esquire
Carlton Fields, P.A.
100 S.E. 2nd Street, Suite 4000
Miami, FL 33131
Telephone: (305) 530-0050
Facsimile: (305) 530-0055
Counsel for Defendants Guy Lewis, Esquire, Michael Tein, Esquire, and Lewis Tein, PL
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 21 of 22
Manuel A. Avila, Esquire
Manuel A. Avila, Esq.
& Associates, P.A.,
11120 N. Kendall Drive
Miami, Florida 33176
Telephone: (305) 249-1111
Facsimile: (305) 647-0686
Counsel for Defendant Julio Martinez
Scott Alan Lazar, Esquire
Koltun & Lazar
7901 SW 67th Ave.
Miami, FL 33143
Counsel for Defendant Miguel Hernandez
Bruce S. Rogow, Esquire
Tara A. Campion, Esquire
Bruce S. Rogow, P.A.
500 E. Broward Blvd., Ste. 1930
Fort Lauderdale, FL 33394
Counsel for Defendant Morgan Stanley
Bryan T. West, Esquire
Tew Cardenas LLP
1441 Brickell Avenue, 15th Floor
Miami, FL 33131
Telephone: (305) 536-1112
Facsimile: (305) 536-1116
Counsel for Defendant Dexter W. Lehtinen,
Robert O. Saunooke, Esq.
Saunooke Law Firm, P.A
18620 SW 39th Court
Miramar, FL 33029
Tel: (561) 302-5297
Fax: (954) 499-0598
Counsel for Defendant Billy Cypress
Steven M. Goldsmith, Esq.
STEVEN M. GOLDSMITH, P.A.
Co-Counsel for Billy Cypress
5355 Town Center Road, Suite 801
Boca Raton, FL 33486
Tel: (561) 391-4900
Fax: (561) 391-6973
Counsel for Defendant Billy Cypress
Case 1:12-cv-22439-MGC Document 128 Entered on FLSD Docket 01/14/2013 Page 22 of 22