Court: Court of Appeals for the Eleventh Circuit; January 17, 1994; Federal Appellate Court
The consolidated cases address whether Congress effectively abrogated states’ Eleventh Amendment sovereign immunity through the Indian Gaming Regulatory Act (IGRA). The district courts agreed that IGRA aimed to abrogate this immunity but disagreed on Congress's constitutional power to do so. The ruling holds that while Congress can abrogate Eleventh Amendment immunity in certain contexts, it lacked that power under the Indian Commerce Clause when enacting IGRA. Consequently, states maintain their sovereign immunity, and federal courts lack jurisdiction over IGRA-related suits, necessitating dismissal of the cases.
The summary of IGRA reveals it was enacted to regulate Indian gaming, which had become largely unregulated following the Supreme Court's 1987 decision in California v. Cabazon Band of Mission Indians. IGRA's primary aim is to facilitate Indian tribes' economic development and self-sufficiency. It categorizes Indian gaming into three classes: Class I (tribal regulation), Class II (federal regulation for certain games), and Class III (all other gaming forms), which generates the most revenue for tribes and is where states seek more oversight. Class III gaming is permitted only when it is authorized by the tribe, permitted by state law, and conducted per a Tribal-State compact.
IGRA established a framework to prevent state actions from obstructing Indian gaming by outlining a negotiation process for Tribal-State compacts. Tribes can initiate negotiations by requesting the state to enter compact discussions, with the requirement that states negotiate in good faith. If successful, the compact must be approved by the Secretary of the Interior and published in the Federal Register. If negotiations are unsuccessful, tribes can seek federal court remedies. U.S. district courts have jurisdiction over cases where a state fails to negotiate in good faith, allowing tribes to file actions after a 180-day negotiation request period. If a court finds a state has not negotiated in good faith, it can mandate the negotiation of a compact within 60 days. If this fails, both parties submit their proposals to a mediator, who selects one for approval. If the state rejects the proposal, the Secretary of the Interior will regulate the tribe’s class III gaming.
In two specific cases, the Seminole Tribe of Florida and the Poarch Band of Creek Indians filed lawsuits against their respective states for failing to negotiate in good faith. The Seminole Tribe's case asserted jurisdiction under IGRA and was filed in 1991, with the state moving to dismiss based on Eleventh Amendment sovereign immunity. The district court denied this motion. The Poarch Band's case, filed shortly after, presents a similar situation against Alabama and its governor.
Jurisdiction is asserted under 25 U.S.C. 2710(d)(7)(A)(i) to resolve issues related to the Indian Gaming Regulatory Act (IGRA) and class III gaming definitions between the State of Alabama and the Tribe. The State claimed sovereign immunity under the Eleventh Amendment, leading the district court to dismiss the Tribe's suit on October 30, 1991, and again on February 20, 1992, which resulted in the termination of the Poarch Band's case. The Poarch Band now appeals these dismissals, and appellate jurisdiction is established under 28 U.S.C. 1291 due to the finality of the district court's orders. In another case, the district court denied a motion to dismiss based on sovereign immunity, which allows for an immediate interlocutory appeal. The issue of sovereign immunity is subject to de novo review.
The Eleventh Amendment's judicial interpretation has evolved beyond its limited textual scope, which restricts federal jurisdiction in cases against states by citizens of other states or foreign entities. The Supreme Court's decision in Hans v. Louisiana established that sovereign immunity is a fundamental principle that predates the Constitution. However, states do not enjoy absolute immunity; they can be sued if there is consent, abrogation, or under the Ex parte Young doctrine. If none of these exceptions apply, the Eleventh Amendment serves as a jurisdictional barrier to the suit. The excerpt indicates that these exceptions to sovereign immunity will be examined in detail.
The Supreme Court has established that states cannot invoke sovereign immunity if they have consented to lawsuits, with consent recognized in three scenarios: 1) express consent through legislative enactment; 2) ratification of the Constitution, which implies an agreement to certain legal suits; and 3) participation in specific congressional programs that require consent to suit. The Court indicates that Alabama and Florida have not consented to a lawsuit under the Indian Gaming Regulatory Act (IGRA). Express waivers of sovereign immunity must be explicitly stated in state constitutions, statutes, or decisions, and Alabama's constitution explicitly reserves its sovereign immunity. Florida has not raised a similar defense, but plaintiffs have not shown that either state has provided express consent for the suit. The "plan of the convention" does not undermine state sovereign immunity, as recent Supreme Court rulings clarified that states have not waived this immunity regarding lawsuits from Indian tribes. The Court's decision in Blatchford reinforces that states did not surrender their immunity under the convention. Lastly, the tribes' argument that Alabama and Florida consented to the suit by engaging in IGRA negotiations, drawing on the Parden case, is rejected, indicating that the states cannot be compelled to accept federal jurisdiction over the current lawsuits simply by participating in IGRA.
In Parden, the Supreme Court established a precedent where a state waives its immunity from suit by participating in a federal program that requires such consent. However, Parden is deemed inapplicable to the current appeals due to significant factual distinctions and subsequent Supreme Court rulings. The case involved Alabama operating a for-profit, state-owned railroad, which placed it in a competitive market subject to federal regulations, thereby necessitating consent to suit similar to private entities. The current cases, involving state negotiations with sovereign tribes, do not present the same private market concerns.
Subsequent Supreme Court decisions have further limited the applicability of Parden. In Employees v. Missouri Dep’t of Public Health and Welfare, the Court declined to extend Parden to a non-profit state activity. In Edelman v. Jordan, the Court also refused to recognize consent in the context of a state administering federal funds. This limitation was reiterated in Atascadero State Hospital v. Scanlon and Welch v. Texas Dep’t of Highways and Public Transp. The Court has not found consent under Parden in any case beyond the initial ruling.
The states, facing a dilemma of either refusing negotiations with tribes (exposing them to suit under IGRA) or negotiating (which the tribes argue constitutes consent to suit), did not engage in the same type of voluntary, for-profit activity as in Parden. Consequently, it is concluded that neither Florida nor Alabama consented to suit under IGRA.
Additionally, the Supreme Court has recognized that states cannot invoke sovereign immunity when Congress has expressly abrogated that defense under its plenary powers, as seen in Fitzpatrick v. Bitzer and Pennsylvania v. Union Gas Co. However, the Court has not yet determined that Congress has the authority to abrogate state sovereign immunity under any other constitutional provisions.
The tribes argue that Congress abrogated states’ Eleventh Amendment immunity by granting jurisdiction to district courts under 25 U.S.C. 2710(d). While some courts support this position, the current court disagrees, asserting that Congress lacked the constitutional power to abrogate states' sovereign immunity when enacting the Indian Gaming Regulatory Act (IGRA) under the Indian Commerce Clause. The assessment involves a two-part inquiry: first, determining if there is unequivocal evidence of congressional intent to abrogate states’ immunity, and second, whether Congress had the constitutional authority to do so.
The court acknowledges that several other courts have found Congress's intent to abrogate to be clear, but it emphasizes that the Supreme Court requires explicit language for such abrogation. It notes that IGRA merely grants jurisdiction without specifically abrogating immunity, which raises concerns about its sufficiency. However, upon further analysis, the court concludes that IGRA's provisions indicate an intent to abrogate states' immunity, particularly because the statute allows for lawsuits against states for failing to negotiate with tribes regarding Tribal-State compacts.
The court affirms that the first prong of the inquiry—evidence of congressional intent—is satisfied but recognizes that the more complex second prong involves assessing Congress's constitutional power to abrogate states' immunity, which requires examining the constitutional provisions under which IGRA was enacted.
Congress can only enact legislation when authorized by the Constitution. The Supreme Court has ruled that Congress's abrogation powers exist under (1) Section 5 of the Fourteenth Amendment or (2) the Interstate Commerce Clause. Plaintiff tribes argue that the Indian Gaming Regulatory Act (IGRA) was enacted under both the Indian Commerce Clause and Section 5, but this claim is rejected. The tribes cite Fitzpatrick v. Bitzer to argue that Congress can abrogate state sovereign immunity under Section 5, claiming IGRA creates both liberty and property interests for tribes. However, these interests lack support in Supreme Court precedent, as the claimed liberty interest is tied to a licensing requirement, which does not establish a legitimate claim of entitlement. IGRA does not guarantee the right to conduct gambling but outlines the process and standards for it, thus failing to create any entitlement under the Fourteenth Amendment.
Regarding the Interstate Commerce Clause, the tribes assert that Congress’s concerns about organized crime, noted in IGRA, imply it was enacted under this authority. However, the text of IGRA indicates that Congress aimed to protect tribal interests and ensure fair gaming, not to address a burden on interstate commerce. Consequently, it is concluded that IGRA was enacted solely under the Indian Commerce Clause, which grants Congress broad authority over Indian affairs, as supported by the Supreme Court's interpretation in Cotton Petroleum.
Congress enacted the Indian Gaming Regulatory Act (IGRA) under the Indian Commerce Clause. However, it does not permit Congress to abrogate states’ Eleventh Amendment immunity. The Supreme Court case Pennsylvania v. Union Gas Co. is pivotal, as a four-member plurality concluded Congress could abrogate this immunity when legislating under the Interstate Commerce Clause. The plurality argued that states, by ratifying the Constitution, consented to Congress's authority to regulate commerce and thus relinquished their immunity. Pennsylvania was unable to invoke sovereign immunity in a suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Superfund Amendments.
Justice White concurred but expressed disagreement with much of the plurality's reasoning, leaving the validity of Union Gas uncertain. Subsequent courts have identified weaknesses in Union Gas’ holding and suggested that a current majority may not support it. Nevertheless, this analysis does not disregard Union Gas entirely.
The conclusion that Congress lacks the power to abrogate states’ immunity under IGRA rests on two main arguments. First, the tribes’ assumption that Union Gas governs all Commerce Clause cases, including Indian Commerce, is rejected. Union Gas specifically addressed the Interstate Commerce Clause, and its ruling should not be broadly applied. Therefore, as IGRA was enacted under the Indian Commerce Clause, the Union Gas precedent does not apply to this case.
The analysis emphasizes the distinct roles of the Interstate Commerce Clause and the Indian Commerce Clause, asserting that precedents from Cotton Petroleum Corp. v. New Mexico do not apply to the current case regarding state immunity. The Interstate Commerce Clause permits Congress to limit states to support free trade, while the Indian Commerce Clause allows Congress to legislate in Indian affairs. Consequently, Congress's power to abrogate state immunity under the Interstate Commerce Clause, as discussed in Union Gas, does not extend to the Indian Commerce Clause.
Moreover, federal jurisdiction over states has historically been permitted only when states engage in activities typical of private individuals, as seen in cases like Parden and Union Gas. In contrast, negotiations with tribes fall within the states' inherent authority, thus not justifying federal jurisdiction. The principles of federalism and sovereign immunity, particularly under the Eleventh Amendment, prevent Congress from abrogating state immunity in this context. Therefore, even if Congress had general abrogation power under the Indian Commerce Clause, it cannot apply to areas traditionally reserved for states, such as negotiations with tribes.
Lastly, the excerpt notes a separate exception to sovereign immunity where the Eleventh Amendment may not protect government officials from lawsuits in certain scenarios. This principle, established in Ex parte Young, allows individuals to seek federal injunctions against state officers to enforce compliance with federal law.
Tribes argue they can sue the governors of Alabama and Florida to compel negotiations under the Indian Gaming Regulatory Act (IGRA). However, the Ex parte Young doctrine, which allows suits against state officials for federal law compliance, does not apply here for two reasons: (1) it cannot compel discretionary actions, and (2) it cannot be used if the suit effectively targets the state. Courts have generally found that the tribes' claims fall into both categories.
Firstly, IGRA allows for negotiations that involve state discretion, meaning the governors have no obligation to act in a non-discretionary manner. Since IGRA outlines a process for negotiations and does not guarantee outcomes, the governors maintain their Eleventh Amendment sovereign immunity. Secondly, IGRA addresses the state as a whole, not individual officials, indicating that these suits are against the states for failing to negotiate in good faith rather than against specific officials.
Without applicable exceptions to the Eleventh Amendment—consent, abrogation, or Ex parte Young—federal courts lack jurisdiction over these suits, leading to their dismissal. Furthermore, while the tribes suggest that all state involvement in Class III gaming should fail due to these jurisdictional issues, the court notes that IGRA includes a severability clause, meaning not all provisions are invalidated by the refusal of a state to consent to suit. The court concludes that the statute provides a straightforward procedure for tribes facing states that refuse to negotiate in good faith or consent to suits.
After 180 days of requesting negotiations with the state, a tribe may file a lawsuit in district court. If the state invokes an Eleventh Amendment defense, the court will dismiss the suit, allowing the tribe to notify the Secretary of the Interior about the unsuccessful negotiations. The Secretary may then establish regulations for class III gaming on the tribe's lands, aligning with the Indian Gaming Regulatory Act (IGRA) and Congress's intentions outlined in sections 2701-02. The U.S. District Court for the Southern District of Florida's decision in Seminole Tribe of Florida v. Florida is reversed and remanded for dismissal, while the decisions in Poarch Band of Creek Indians v. Alabama are affirmed.
The defendants raised a new argument concerning the Tenth Amendment, claiming IGRA forces states to negotiate with tribes, which they argue violates state powers. However, the court declines to consider this issue since it was not presented in the lower court proceedings. Non-banking card games involve players competing against each other, not the house. The State of Alabama was previously dismissed from the Poarch Band's complaint.
In related cases, some courts have ruled that Congress did not have the authority to abrogate state immunity under IGRA, with references to the Eighth Circuit's decisions. The Eighth Circuit's argument regarding the waiver of state sovereign immunity based on negotiation participation is contested. Other courts have similarly concluded that Congress lacked the power to abrogate sovereign immunity when enacting IGRA, supported by Justice Scalia's concurrence in a related case.
Congress enacted the Indian Gaming Regulatory Act (IGRA) to subject states to lawsuits under 2710(d)(7), drawing from both the Indian Commerce Clause and the Interstate Commerce Clause, which share a constitutional basis in Article I. Despite their common origin, the two clauses serve different purposes and have distinct legal interpretations. The Supreme Court case Cotton Petroleum Corp. v. New Mexico highlights these differences. The author of the opinion, Justice Brennan, along with Justices Marshall, Blackmun, and Stevens, argued that Congress had authority under the Interstate Commerce Clause to pass CERCLA and SARA.
Criticism of Justice Brennan's opinion points to three main weaknesses: it mischaracterizes Parden v. Terminal Railway as an abrogation case rather than a waiver case; it misinterprets Employees v. Missouri Dep’t of Public Health and Welfare by overlooking its focus on consent to suit; and it improperly attributes precedential weight to Welch v. Texas Dep’t and County of Oneida v. Oneida Indian Nation, both of which did not definitively support Congress's abrogation power.
The tribes argue that the Union Gas Court’s reference to the "Commerce Clause" implies broader abrogation powers under any Commerce Clause, but the court’s discussion primarily pertains to the Interstate Commerce Clause. The Spokane case is noted as a dissenting opinion, emphasizing the need for a forum for tribes without granting federal courts authority to bypass state sovereign immunity, as constrained by the Eleventh Amendment. A state may waive its immunity, as illustrated in Rumsey Indian Rancheria of Wintun Indians v. Wilson.
