Appendix — Seminole Tribe of Fla. v. Florida

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Supreme Court, U.&, ;

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In THE OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA,

™ Petitioner,

STATE OF FLORIDA, and LAWTON CHILES,

Governor of Florida,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Bruce S. Rocow *

BEVERLY A. POHL

BRucE S. Rocow, P.A.

Suite 200

350 S.E. Second Street

Ft. Lauderdale, FL 33301

(305) 767-8909

JERRY C. STRAUS

JUDITH A. SHAPIRO

HAROLD P. GREEN

Hosss, STRAUS, DEAN & WALKER

1819 H St. N.W., Suite 800

Washington, DC 20006

(202) 783-5100

Of Counsel:

EUGENE GRESSMAN

JOHN J. GIBBONS * Counsel of Record

WILSON - Epes PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Appendices

Opinion, Seminole Tribe of Florida v. Florida,

11 F.8d 1016 (11th Cir. 1994), Jan. 18, 1994 ......

Opinion, Seminole Tribe of Florida v. Florida,

801 F. Supp. 655 (S.D. Fla. 1992), June 18,

REI RE SAL ee

Order, Seminole Tribe of Florida v. Florida,

91-6756-CIV-MARCUS (S.D. Fla. Sep. 22, 1993),

Order on Summary Judgment Motions ..............

Order Seminole Tribe of Florida v. Florida,

Apr. 28, 1994, 11th Cir., Granting Motion to

TE SR co ee

Order, Seminole Tribe of Florida v. Florida,

Apr. 28, 1994, 11th Cir., Granting Stay ............

Order, Seminole Tribe of Florida v. Florida,

Apr. 6, 1994, 11th Cir., Denying Petitions for

ERASER AL ACE Cae 70) Oe nc

Page

26a

43a

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

Nos. 92-4652, 92-6244

SEMINOLE TRIBE OF FLORIDA,

Plaintiff-A ppellee,

Vv.

STATE OF FLORIDA, LAWTON CHILES,

Governor of the State of Florida,

Defendants-A ppellants.

POARCH CREEK INDIANS,

POARCH BAND OF CREEK INDIANS,

Plaintiff-A ppellant,

STATE OF ALABAMA, JAMES E. FoLsom,

Governor, State of Alabama,

Defendants-A ppellees.

Appeal from the United States District Court

for the Southern District of Florida

Appeal from the United States District Court

for the Southern District of Alabama

Jan. 18, 1994

Before TJOFLAT, Chief Judge, BLACK, Circuit

Judge, and JOHNSON, Senior Circuit Judge.

TJOFLAT, Chief Judge:

These two consolidated cases present the following is-

sue: whether Congress successfully abrogated the states’

Eleventh Amendment sovereign immunity from suit by

enacting the Indian Gaming Regulatory Act (“IGRA”),

Pub.L. No. 100-497, 102 Stat. 2467 (1988) (codified at

25 U.S.C. §§ 2701-21). The two district court judges

below agreed that IGRA manifested Congress’ attempt to

abrogate the states’ Eleventh Amendment immunity; they

disagreed, however, as to whether Congress possesses the

power under the Constitution to accomplish that abroga-

tion.

We hold that, although decisions of the Supreme Court

demonstrate that Congress does possess the power to ab-

rogate the states’ Eleventh Amendment sovereign immu-

nity in certain cases, Congress did not possess that power

when enacting IGRA under the Indian Commerce Clause,

U.S. Const. art. I, § 8, cl. 3. Thus, the states retain their

sovereign immunity and the federal courts do not have

subject-matter jurisdiction over suits brought under IGRA.

Accordingly, these cases must be dismissed.

In part I, we provide a brief summary of the Indian

Gaming Regulatory Act here at issue. In part II, we set

forth the facts relevant to these cases. After establishing

our jurisdiction and the appropriate standard of review

in part III, we examine the Eleventh Amendment issues

in part ITV and then analyze the effect of our holding in

part V.?

1 Unless so indicated, all cited sections refer to Title 25 of the

United States Code.

2 Defendants raise one issue for the first time on appeal: the

Tenth Amendment. Citing the Supreme Court’s decision in New

York v. United States, —— U.S. ——, 112 S.Ct. 2408, 120 L.Ed.2d

120 (1992), in which the Court held that Congress could not

In 1987, the Supreme Court held that a state could

not enforce its “civil/regulatory” gaming laws in a manner

that would prohibit gaming on Indian lands within its

borders. California v. Cabazon Band of Mission Indians,

480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987).

That decision left Indian gaming largely unregulated by

the states; similarly, “existing federal law d[{id] not pro-

vide clear standards or regulations for the conduct of

gaming on Indian lands.” 25 U.S.C. § 2701(3). In an

attempt to supply some much-needed regulation, and af-

ter contentious debate concerning the appropriate state

role in the regulation of Indian gaming, Congress enacted

the Indian Gaming Regulatory Act. IGRA’s primary

purpose was “to provide a statutory basis for the opera-

tion of gaming by Indian tribes as a means of promoting

tribal economic development, self-sufficiency, and strong

tribal governments.” § 2702(1). In order to accomplish

this goal, Congress defined classes of Indian gaming,

§ 2703(6)-(8); established the National Indian Gaming

Commission to monitor and regulate some forms of In-

dian gaming, §§ 2704-08; and provided a compacting pro-

cedure by which states might participate in the regula-

tion of certain forms of Indian gaming, § 2710(d).

: Briefly summarized, Congress divided Indian gaming

into three “classes.” Class I gaming, which is governed

and regulated solely by individual Indian tribes, includes

little more than “social games solely for prizes of mini-

mal value... .” § 2703(6). Class II gaming, which is

subject to certain federal regulations, includes bingo and

coercively interfere with the reserved powers of the states, de-

fendants contend that IGRA coercively forces the states to nego-

tiate with Indian tribes in violation of the Tenth Amendment.

“It is not the practice of this court to consider issues on appeal

that were not raised in the district court.” Allen v. Alabama, 728

F.2d 1884, 1387 (11th Cir. 1984) ; Moore v. Morgan, 922 F.2d 1558,

1556 n. 3 (11th Cir. 1991). Accordingly, we decline to address

defendants’ contention.

comparable games as well as non-banking card games

where not prohibited by state law.* § 2703(7)(A). Nei-

ther of these classes is relevant to the cases on appeal.

These cases address the third class of gaming. Class

III gaming is defined residually; it includes “all forms

of gaming that are not class I gaming or class II gaming.”

§ 2703(8). Specifically excluded from class II, and there-

fore within the parameters of class III, are banking card

games and “electronic or electromechanical facsimiles of

any game of chance or slot machines of any kind.”

§ 2703(7)(B). Class III gaming is the type of gaming

most profitable to the tribes; it also is the gaming in

which the states desire the greatest regulatory oversight.

In order to achieve a compromise between the interests

of the states and the interests of the Indian tribes, Con-

gress mandated that class III gaming activities would be

lawful on Indian lands only when those activities are

(a) authorized by the tribe; (b) located in a state that

permits such gaming; and, most importantly, (c) “con-

ducted in conformance with a Tribal-State compact en-

tered into by the Indian tribe and the State . . . that is in

effect.” § 2710(d)(1). To ensure that dilatory actions

by the state could not preclude or unreasonably delay

Indian gaming, IGRA also delineated a negotiating proc-

ess designed to culminate in the Tribal-State compact and

provided mechanisms to remedy state misconduct.

Under the statute, the tribe initiates the compacting

process by requesting that the state enter into negotiations

for the purpose of concluding a Tribal-State compact gov-

erning the conduct of gaming activities; in IGRA, Con-

gress mandated that the state “shall negotiate with the In-

dian tribe in good faith to enter into a compact.” §2710

(d)(3)(A). If these negotiations bear fruit, the com-

pact must be approved by the Secretary of the Interior

and published in the Federal Register. § 2710(d) (8).

8 Non-banking card games are those in which the gamblers com-

pete against each other rather than against the house.

Congress also anticipated that Tribal-State negotiations

would not always produce a mutually satisfactory com-

pact; it thus provided tribes with a remedy in the federal

courts:

(A) The United States district courts shall have ju-

risdiction over—

(i) any cause of action initiated by an Indian

tribe arising from the failure of a State to enter

into negotiations with the Indian tribe for the

purpose of entering into a Tribal-State compact

under paragraph (3) or to conduct such ne-

gotiations in good faith. . . .

(B) (i) An Indian tribe may initiate a cause of ac-

tion described in subparagraph (A)(i) only after

the close of the 180-day period beginning on the

date on which the Indian tribe requested the State

to enter into negotiations under paragraph (3) (A).

§ 2710(d)(7)(A)(i) & (B)(i). If the district court

finds that the state indeed has failed to negotiate in good

faith, that court “shall order the State and the Indian

Tribe to conclude such a compact within a 60-day period.”

§ 2710(d)(7)(B) (iii). If that fails, “the Indian tribe

and the State shall each submit to a mediator appointed

by the court a proposed compact that represents their

last best offer for a compact.” § 2710(d)(7)(B) (iv).

The mediator then selects the better of the two proposals

and submits it to the tribe and the state. The state then

either may consent to the compact within sixty days, in

which case the compact is treated as if it were the product

of negotiations; or may refuse to consent, in which case

the Secretary of the Interior provides procedures to regu-

late the tribe’s class III gaming. § 2710(d)(7)(B) (vi)

& (vii).

, Defendants in these two cases assert that the federal

jurisdiction granted by § 2710(d)(7) is contrary to their

Eleventh Amendment sovereign immunity and demand

that the tribes’ cases be dismissed.

Il.

The facts of these cases are few and easily summarized.

The first case, Seminole Tribe of Florida v. Florida, No.

92-4652, was filed by the Seminole Tribe, federally recog-

nized as a tribe under Section 16 of the Indian Reor-

ganization Act, 25 U.S.C.A. § 476 (West 1983 & Supp.

1993). The complaint, filed in the Southern District of

Florida on September 19, 1991, asserted jurisdiction

largely under 25 U.S.C. § 2710(d)(7)(A)(i) and al-

leged that the State of Florida and its governor, Lawton

Chiles, had “failed to respond in good faith to the Tribe’s

request for compact negotiations and have not conducted

those negotiations in good faith.” Defendants moved to

dismiss the complaint for lack of subject-matter jurisdic-

tion based on the sovereign immunity enjoyed by the

State of Florida and the Governor of Florida under the

Eleventh Amendment. On June 18, 1992, the district

court denied the motion, 801 F. Supp. 655 (S.D. Fla.

1992) (“Seminole”), and this interlocutory appeal en-

sued.

The second case, Poarch Band of Creek Indians v.

Alabama, No. 92-6244, presents a similar initial fact pat-

tern. The Poarch Band, also a federally recognized tribe,

filed suit against the State of Alabama and its governor,

Guy Hunt (for whom the current governor, James E.

Folsom, Jr., has been substituted), on September 11,

1991. Also asserting jurisdiction largely under 25 U.S.C.

§ 2710(d)(7)(A)(i), the complaint is designed to re-

solve for the State and the Tribe various questions regard-

ing IGRA’s definition of class III gaming. The State of

Alabama’s answer claimed a defense of sovereign im-

munity under the Eleventh Amendment; the district court

granted the State’s subsequent motion to dismiss based

upon this defense on October 30, 1991. 776 F. Supp. 550

(S.D. Ala. 1991) (“Poarch I”).* The governor also filed

an Eleventh-Amendment-based motion to dismiss; the dis-

trict court granted it on February 20, 1992, thus dis-

missing the final defendant and terminating the Poarch

Band’s suit. 784 F. Supp. 1549 (S.D. Ala. 1992)

(“Poarch II”). It is from these orders that the Poarch

Band appeals. :

Il.

We have jurisdiction over these consolidated cases pur-

suant to 28 U.S.C. § 1291. In Poarch I and Poarch II,

the district court granted defendants’ sovereign-immunity-

based motions to dismiss, thus terminating the tribe’s suit

and giving rise to our appellate jurisdiction over final

orders. Our jurisdiction in Seminole arises from the dis-

trict court's denial of defendants’ motion to dismiss based

on sovereign immunity; such a denial grants defendants

the right of an immediate, interlocutory appeal. See

Griesel v. Hamlin, 963 F.2d 338, 340 (11th Cir. 1992).

The granting or denial of a sovereign immunity de-

fense is an issue of law subject to de novo review by this

court. McDonald v. Hillsborough County School Bd., 821

F.2d 1563, 1554 (11th Cir. 1987).

IV.

For more than a century, judicial interpretation of the

Eleventh Amendment has far exceeded the apparent scope

of the amendment’s actual provisions. The scope

of the “textual” amendment is rather limited and serves

only to restrict the Article III diversity jurisdicti

federal courts: wit pmiigien

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

*The district court dismissed the State of Alabama from the

Poarch Band’s amended complaint in an unpublished

January 24, 1992. " tS aa

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

U.S. Const. amend. X1.

In 1890, however, the Supreme Court rejected this

facial reading. In Hans v. Louisiana, 134 U.S. 1, 10

S.Ct. 504, 33 L.Ed.2d 842 (1890), the Court recognized

that the Eleventh Amendment “reflected . . . a consensus

that the doctrine of sovereign immunity, for States as

well as for the Federal Government, was part of the un-

derstood background against which the Constitution was

adopted, and which its jurisdictional provisions did not

mean to sweep away.” Pennsylvania v. Union Gas Co.,

491 U.S. 1, 31-32, 109 S.Ct. 2273, 2297, 105 L.Ed.2d 1

(1989) (Scalia, J., concurring in part and dissenting in

part). Thus, the Court determined that the principle of

sovereign immunity, although omitted from the text of

the Constitution, survived the Constitutional Convention.

It did not survive untarnished, however; the Court

subsequently has held that the states’ immunity is not

absolute. More specifically, the states are not immune

from suit if the circumstances indicate consent, abroga-

tion, or the fiction of Ex parte Young. If none of these

three exceptions applies, however, the Eleventh Amend-

ment serves as a jurisdictional bar to the suit. See Penn-

hurst State School & Hosp. v. Halderman, 465 U.S. 89,

104 S.Ct. 900, 79 L.Ed.2d 67 (1984). We address each

exception to Eleventh Amendment immunity in turn.

First, the Supreme Court has held that the states may

not rely on the defense of sovereign immunity if they

have consented to suit. A court may find consent in

three circumstances. The clearest of the three, known as

express consent, usually takes the form of legislative enact-

ment. The second form of consent derives from the states’

ratification of the Constitution. This “plan of the conven-

tion” consent assumes that, by ratifying the Constitution

and joining the republic, each state ceded certain powers

to the federal system; implicit in this cession is the under-

standing that the state necessarily also consented to suit

in certain cases. Thus, the Court has held that, by ratify-

ing the Constitution, the states waived their immunity to

suits by the United States, see, e.g., United States v.

Texas, 143 U.S. 621, 641-46, 12 S.Ct. 488, 492-94, 36

L.Ed. 285 (1892); and by sister states, see, e.g., South

Dakota v. North Carolina, 192 U.S. 286, 24 S.Ct. 269,

48 L.Ed. 448 (1904). Finally, the Court has created a

third, extremely limited category of consent. This consent

is premised on the state’s participation in a congressional

program which, as a prerequisite for participation, man-

dates that the state consent to suit. The Court has found

this form of consent to exist in only one case: Parden v.

Terminal Railway of Alabama, 377 U.S. 184, 84 S.Ct.

1207, 12 L.Ed.2d 233 (1964).

We find that neither Alabama nor Florida has consented

to a suit under IGRA.

Express waivers of a state’s Eleventh Amendment sov-

ereign immunity must be explicitly authorized by the state

“in its Constitution, statutes and decisions.” Silver v.

Baggiano, 804 F.2d 1211, 1214 (11th Cir. 1986) (quot-

ing Ford Motor Co. v. Department of Treasury, 323 U.S.

459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945)).

See also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347,

39 L.Ed.2d 662 (1974). The Alabama defendants cite

Article I, section 14 of the Alabama Constitution, which

specifically reserves Alabama’s sovereign immunity, and

claim that Alabama therefore could not have consented

to a suit under IGRA. Even though Florida has not

raised a similar defense, plaintiffs have failed to demon-

strate that either state has given express consent to this

suit. Therefore, we find that the states have not expressly

waived their Eleventh Amendment sovereign immunity.

10a

Nor does “plan of the convention” consent imperil the

states’ sovereign immunity. Three terms ago, the Supreme

Court addressed the question whether the states, by rati-

fying the Constitution, had surrendered their sovereign

immunity to suits by Indian tribes. The court compared

suits brought by sister states to suits brought by Indian

tribes and held that the states had not waived their sov-

ereign immunity to suits brought by Indian tribes under

the “plan of the convention”:

What makes the States’ surrender of immunity from

suit by sister States plausible is the mutuality of the

concession. There is no such mutuality with either

foreign sovereigns or Indian tribes. . . . [I]f the

convention could not surrender the tribes’ immunity

for the benefit of the States, we do not believe that

it surrendered the States’ immunity for the benefit

of the tribes.

Blatchford v. Native Village of Noatak, U.S. ——.,

- , 111 S.Ct. 2578, 2582-83, 115 L.Ed.2d 686

(1991) (emphasis in original). The Court’s holding in

Blatchford governs our resolution of this issue. Thus, we

hold that the states cannot be said to have surrendered

their sovereign immunity under the “plan of the con-

vention.”

Finally, the tribes assert that both Florida and Alabama

have consented to this suit by participating in negotiations

under IGRA. Invoking Parden, 377 U.S. 184, 84 S.Ct.

1207 (1964), the tribes assert that the states have at-

tempted to reap the benefits of IGRA and therefore should

be held to have consented to the downside of the statute,

specifically, federal jurisdiction over the present suits. We

disagree.

In Parden, the Supreme Court for the first—and, to

date, last—time found that a state had waived its im-

~ ee ee eee

lla

munity to suit by participating in a federal program man-

dating that participants consent to suit. The facts of that

case, as well as subsequent Supreme Court decisions, ren-

der Parden inapplicable to the appeals at hand.

First, it is apparent that Parden was decided largely

on its facts. In that case, the State of Alabama had op-

erated a for-profit, state-owned railroad for twenty years.

By operating the railroad in interstate commerce, Ala-

bama effectively had transcended the typical realm of

state authority by entering the private market, a market

in which all employers were subject to the strictures passed

by Congress. The limited holding of the Court was that,

based on these facts, Alabama should be subject to the

same requirements as the other (private) participants in

the private market; one of those requirements was that all

market actors consent to suit. These cases involve state

governments negotiating with sovereign tribes located

within the states’ borders—hardly a “private” activity—

and thus do not raise the same concerns that prompted

the Supreme Court’s unique decision in Parden.

Second, later decisions of the Supreme Court limit

Parden and indicate that Alabama and Florida cannot

be said to have consented to suit in this case. First, in

Employees v. Missouri Dep’t of Public Health and Wel-

fare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251

(1973), the Court declined to extend Parden to circum-

stances in which a state was operating a non-profit hos-

pital facility, a traditional state activity. The next year,

in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

L.Ed.2d 662 (1974), the Court refused to find Parden-

style consent when Illinois participated in a federal pro-

gram by agreeing to administer federal and state funds

in accordance with federal law. The Court reiterated this

holding a decade later in Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 121

(1985). Finally, the Court further limited Parden in

Welch v. Texas Dep’t of Highways and Public Transp.,

483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).

12a

In fact, in no other case has the Court found consent

pursuant to its Parden decision.

When Parden and its progeny are examined closely,

it is apparent that, although Parden may not be entirely

dead, it certainly is not quick enough to breathe life into

the Indian tribes’ claims in these cases. In these cases,

the states were faced with a Hobson’s choice: refuse to .

negotiate with the tribes, and therefore be subject to suit

under IGRA; or negotiate with the tribes, and therefore

(according to the tribes’ argument) consent to suit under >

IGRA. Thus, we cannot find the same voluntary, for-

profit, private-enterprise operation involved in Parden and

decline to hold that Alabama and Florida consented to

suit.

Thus, we find that neither Florida nor Alabama con-

sented, either expressly, implicitly, or by conduct under

Parden, to suit in federal court under IGRA.

In defining the second sovereign immunity exception,

the Supreme Court has held that states also may not rely

on the defense of sovereign immunity if Congress has

specifically abrogated that defense when legislating pur-

suant to certain of its plenary powers. See, e.g., Fitz-

5 One sister circuit, in determining that the Eleventh Amend-

ment did not bar suits under IGRA, mentioned that the state had

“actively engaged in negotiating tribal-State compacts and ha[d]

reaped the benefits from these negotiations.” See Cheyenne River

Sioux Tribe v. State of South Dakota, 3 F.8d 273 (8th Cir. 1993)

(“Cheyenne II’), aff’'g 830 F. Supp. 528 (D.S.D. 1993) (“Cheyenne

I”). As the Eighth Circuit Court of Appeals primarily rested its

decision on the fact that Congress had abrogated the state’s

Eleventh Amendment immunity, an argument we discuss (and

reject) in part III.B., below, it is not clear how much weight the

court gave to the state’s participation in negotiations. To the

extent that the Eighth Circuit relied on South Dakota’s negotia-

tions as a basis for finding a waiver of sovereign immunity, we

respectfully disagree.

“oN. we . een

& me a4

laa Mowe nd ore wae

— a nas:

13a

patrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.

2d 614 (1976) (finding abrogation in legislation passed

pursuant to §5 of the Fourteenth Amendment); and

Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct.

2273, 105 L.Ed.2d 1 (1989) (finding abrogation in legis-

lation passed pursuant to the Congress’ Article I, § 8

plenary power over commerce). The Court has not yet

found that Congress possesses the power to abrogate the

states’ sovereign immunity when legislating under any

other provisions of the Constitution.

The tribes’ most significant argument is that Congress

abrogated the states’ Eleventh Amendment immunity when

it granted jurisdiction to the district courts in 25 U.S.C.

§ 2710(d). The district court in Seminole, as well as one

sister court of appeals and a handful of district courts,

have adopted the tribes’ position. We disagree, believing

that Congress, when it enacted IGRA pursuant to the In-

dian Commerce Clause, lacked the power to abrogate the

states’ sovereign immunity.’

When determining whether Congress has abrogated the

states’ Eleventh Amendment immunity, we must conduct

a two-part inquiry. We first must determine that the “evi-

dence of congressional intent [to abrogate the states’ im-

munity is] both unequivocal and textual.” Dellmuth v.

Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2401, 105

L.Ed.2d 181 (1989) (citing Atascadero, 473 U.S. at

242, 105 S.Ct. at 3147). We also must find that Con-

gress possessed the power under the Constitution to abro-

gate the states’ Eleventh Amendment sovereign immunity.

6 See Cheyenne II, supra; Kickapoo Tribe of Indians v. Kansas,

818 F. Supp. 1423 (D. Kan. 1993); Cheyenne I, supra; Seminole,

supra.

7Other courts also have held that Congress lacked abrogation

power when it enacted IGRA. See Sault Ste. Marie Tribe of

Chippewa Indians v. Michigan, 800 F. Supp. 1484 (W.D. Mich.

1992); Ponca Tribe of Oklahoma v. Oklahoma, 834 F. Supp. 1341

(W.D. Okla. 1992); Spokane Tribe of Indians v. Washington, 790

F. Supp. 1057 (E.D. Wash. 1991); Poarch I, supra.

l4a

We hold that Congress expressed its intent sufficiently to

survive the first prong of this inquiry. That intent can not

be given effect, however, as Congress did not possess the

power to abrogate the states’ immunity when it enacted

IGRA.

Several courts have addressed tne question whether -

Congress unequivocally intended to abrogate the states’

immunity when it enacted IGRA. Those courts have had -

little difficulty concluding that Congress’ intent was suf-

ficiently clear. See, e.g., Cheyenne Il, supra; Kickapoo,

818 F. Supp. at 1427 (“[A] clearer statement of the intent

to abrogate is difficult to envision.”); Seminole, 801 F.

Supp. at 658; Sault Ste. Marie, 800 F. Supp. at 1489

(“clear statement of waiver”); Poarch I, 776 F. Supp.

at 557; Ponca, supra. We believe the question not so

easily resolved.

In Dellmuth, the Supreme Court reiterated its earlier

holdings that a Congressional declaration abrogating the

states’ Eleventh Amendment sovereign immunity must

be explicit: “As we made plain in Atascadero, ‘[a]

general authorization for suit in federal court is not the

kind of unequivocal statutory language sufficient to abro-

gate the Eleventh Amendment.’ 473 U.S. at 246, 105

S.Ct. at 3149.” 491 U.S. at 231, 109 S.Ct. at 2402.

At first glance, it would appear that IGRA fails that test:

Instead of specifically abrogating the states’ immunity,

section 2710(d)(7)(A) states only that “[t]he United

States district courts shall have jurisdiction. . . .” The

mere granting of jurisdiction is not equivalent to the ab-

rogation of a defense.

A closer examination of IGRA, however, reveals that,

despite Congress’ omission of a specific abrogation clause,

Congress nonetheless manifested its intent to abrogate the

States’ immunity. IGRA gives the federal district courts

jurisdiction over three types of cases, the first of which

is “any cause of action initiated by an Indian tribe arising

ee ee oe.

15a

from the failure of a State to enter into negotiations with

the Indian tribe for the purpose of entering into a Tribal-

State compact under paragraph (3) or to conduct such

negotiations in good faith.” § 2710(d)(7)(A)(i). The

only possible defendant to such a suit is a state (see part

IV(C), below). Thus, unless Congress intended to abro-

gate the states’ immunity, this portion of IGRA would be

of no effect. Charged as we are with the task of giving

effect to each portion of a statute, we must conclude that

Congress intended to abrogate the states’ sovereign im-

munity.* Thus, we hold that the first prong of our inquiry

is satisfied.

More important and less easily met, is the second

prong of our inquiry: whether Congress possessed the

constitutional power to abrogate the states’ immunity

when it enacted IGRA. To resolve this issue, we initially

must determine under which provision(s) of the Constitu-

tion Congress enacted IGRA (see sub-part a). Only then

can we determine whether Congress possessed the power

to abrogate the states’ immunities (see sub-part b).

Congress may pass legislation only when the Constitu-

tion gives it the authority to do so. As we mentioned

earlier, the Supreme Court has held that Congress pos-

seses abrogation powers only when it enacts legislation

under the auspices of (1) Section 5 of the Fourteenth

8 This conclusion is bolstered by Justice Scalia’s opinion in

Dellmuth. Concurring with the Court’s majority opinion. Justice

Scalia noted that the majority’s “reasoning does not preclude

congressional elimination of sovereign immunity in statutory text

that clearly subjects States to suit for monetary damages, though

without explicit reference to State sovereign immunity or the

Eleventh Amendment.” 491 U.S. at 238, 109 S.Ct. at 2403 (Scalia,

J., concurring). Although the facts of that case differ slightly

from the case before us, it is clear that Congress in enacting IGRA

“clearly subject[ed] States to suit” in § 2710(d) (7).

l6a

Amendment or (2) the Interstate Commerce Clause.

Plaintiff tribes urge us to find that IGRA was passed not

only pursuant to the Indian Commerce Clause, but also

pursuant to Section 5 and the Interstate Commerce

Clause.® We cannot so find.

First, as to the Fourteenth Amendment, plaintiff tribes

claim that Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct.

2666, 49 L.Ed.2d 614 (1976) (holding that Congress

may abrogate states’ sovereign immunity when legislating .

pursuant to Section 5 of the Fourteenth Amendment),

controls, thus granting Congress the authority to abrogate

the states’ immunity in IGRA. To justify this contention,

the tribes assert that IGRA creates both a liberty interest

and a property interest in the tribes and their members.

Neither of these claimed interests, however, find support

in the Supreme Court’s Fourteenth Amendment jurispru-

dence.

The alleged liberty interest, the tribes claim, arises from

the Supreme Court’s holding in Board of Regents v. Roth,

408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Stating that the states’ input in IGRA is akin to a licensing

requirement, the tribes assert that the states’ failure to en-

ter a compact operates exactly as an unconstitutional de-

nial of a license. The alleged property interest likewise

is derived from Roth. What the tribes fail to recognize,

* Both the so-called Indian Commerce Clause and the so-called

Interstate Commerce Clause derive from the same constitutional

grant of plenary power to Congress in Article I: “The Congress

shall have Power . . . To regulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes.” U.S.

Const., art. I, § 8, cl. 3. Although the Interstate and Indian Com-

merce Clauses are contained in the same textual provision, the

purposes that prompted their inclusion in the Constitution, as

well as their subsequent legal interpretations, are distinct. See,

e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 1638, 192,

109 S.Ct. 1698, 1716, 104 L.Ed.2d 209 (1989) (“It is also well

established that the Interstate Commerce and Indian Commerce

Clauses have very different applications.”).

an ew pa ae ee o~ —

l7a

however, is that these interests are created only when the

claimant has “a legitimate claim of entitlement.” Jd. at

577, 92 S.Ct. at 2709. The tribes’ bald assertion that

IGRA creates such a claim ignores the discretionary na-

ture of the compacting process envisioned by IGRA.

IGRA does not create an entitlement to operate gambling

operations; rather, it establishes the process and standards

by which gambling may be conducted on Indian lands.

Thus, IGRA creates no liberty or property interests and

cannot implicate the Fourteenth Amendment.

Second, the tribes, noting that Congress’ goals in enact-

ing IGRA included “shield[ing] [Indian gaming] from or-

ganized crime and other corrupting influences,” § 2702

(2), assert that Congress necessarily enacted IGRA pur-

suant to the Interstate Commerce Clause. The tribes look

to the legislative history of the Organized Crime Control

Act of 1970, Pub.L. No. 91-452, 84 Stat. 922 (1970),

to find Congressional reasoning that organized crime bur-

dens interstate commerce. 84 Stat. at 923. The tribes

thus conclude that, since Congress meant to address or-

ganized crime by enacting IGRA, it passed IGRA under

the Interstate Commerce Clause.

We disagree. As § 2702(2) makes clear, Congress’

concern with organized crime was not that such activities

would burden interstate commerce, but rather that pro-

hibition of organized crime would “ensure that the Indian

tribe is the primary beneficiary of the gaming operation,

and .. . assure that gaming is conducted fairly and hon-

estly by both the operator and the players.” § 2762(2).

In addition, Congress wanted to criminalize the involve-

ment of organized crime in order to “promote[] tribal

economic development, self-sufficiency, and strong tribal

government.” § 2702(1). In analyzing Congress’ goals,

it is clear that alleviating a supposed burden on interstate

commerce was not among them.

Having excluded the possibility that Congress enacted

IGRA under either the Interstate Commerce Clause or

18a

Section 5 of the Fourteenth Amendment, we must con-

clude that Congress enacted IGRA solely under the In-

dian Commerce Clause. The Supreme Court’s jurispru-

dence on the Indian Commerce Clause bolsters our

conclusion that Congress enacted IGRA solely under that

authority. See Cotton Petroleum, 490 U.S. at 192, 109

S.Ct. at 1716 (“[T]he central function of the Indian Com-

merce Clause is to provide Congress with plenary power

to legislate in the field of Indian affairs.” ).

Having determined that Congress enacted IGRA solely

under the Indian Commerce Clause, we now must deter-

mine whether the Indian Commerce Clause permits Con-

gress to abrogate the states’ Eleventh Amendment im-

munity. We conclude that it does not.

The Supreme Court case most relevant to this issue is

Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct.

2273, 105 L.Ed.2d 1 (1989). In that case, involving a

badly fractured Court, a four-member plurality held

that Congress had the power to abrogate the states’

Eleventh Amendment immunity when enacting legislation

pursuant to the Interstate Commerce Clause. The plural-

ity stated that, since the Interstate Commerce Clause

withholds power from the States at the same time

at its confers it on Congress, and because the con-

gressional power thus conferred would be incomplete

without the authority to render States liable in dam-

ages, it must be that, to the extent that the States

gave Congress the authority to regulate commerce,

they also relinquished their immunity where Congress

found it necessary, in exercising this authority, to

render them liable. The States held liable under such

a congressional enactment are thus not “unconsent-

—_—-——_ —.-

10 Justice Brennan authored the opinion; Justices Marshall,

Blackmun, and Stevens joined.

>< Gew <

19a

ing”; they gave their consent all at once, in ratifying

the Constitution containing the Commerce Clause,

rather than on a case-by-case basis.

Id. at 19-20, 109 S.Ct. at 2284. Thus, the Court held

that the State of Pennsylvania could not invoke sovereign

immunity in defending a suit for money damages under

the Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980 (“CERCLA”) and the

Superfund Amendments and Reauthorization Act of 1986

(“SARA”), 42 U.S.C. § 9601 et seq.”

In a cryptic concurring opinion, Justice White agreed

with Justice Brennan’s conclusion that Congress had the

authority to abrogate the states’ immunity; however, he

also stated that he did not “agree with much of [Justice

Brennan’s] reasoning,” id. at 57, 109 S.Ct. at 2295

(White, J., concurring).” It is regrettable that Justice

White failed to provide any reasoning of his own to sup-

port his conclusion that Congress had abrogation power as

his vague concurrence renders the continuing validity of

11 Congress passed both CERCLA and SARA pursuant to the

Interstate Commerce Clause.

12 Justice White’s uneasiness is understandable given the ques-

tionable foundation on which Justice Brennan built his argument.

His plurality opinion contains three significant weaknesses: (1) it

disregards the Supreme Court’s statements that Parden v. Ter-

minal Railway of Alabama, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d

233 (1964), was a waiver case, not an abrogation case; (2) it

misconstrues Employees v. Missouri Dep’t of Public Health and

Welfare, 411 U.S. 279, 93 S.Ct. 1614, 86 L.Ed.2d 251 (1973), by

ignoring that it too, solely addressed whether Congress had man-

dated that Missouri consent to suit before operating a hospital.

(Thus, it also was not an abrogation case.); and, (3) it appeared

to afford precedential value to two cases, Welch v. Texas Dept. of

Highways and Public Transp., 483 U.S. 468, 107 S.Ct. 2941, 97

L.Ed.2d 389 (1987), and County of Oneida v. Oneida Indian Nation,

470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985), in which

the Court assumed that Congress had abrogation power, but spe-

cifically denied “deciding, or intimating a view of the question.”

Welch, 483 U.S. at 475, 107 S.Ct. at 2947.

20a

Union Gas in doubt. The other four justices fervently

opposed the plurality’s holding.

Some courts have noted not only that there are weak-

nesses in the Union Gas Court’s holding, but also that

changes in the composition of the Court make it likely

that a majority of the present Court would disagree with

Union Gas and find that Congress was not empowered

to abrogate the states’ immunity. Unlike those courts, we

refuse to disregard Union Gas merely on these bases.

Nonetheless, when examined in the proper light, Union

Gas is distinguishable from the cases before us and does

not govern our disposition of this issue. Our conclu-

sion that Congress did not have the power, when enact-

ing IGRA, to abrogate the states’ Eleventh Amendment

sovereign immunity is supported by two lines of argu-

ment.

First, the tribes begin their argument by assuming that

Union Gas controls all Commerce Clause cases, Indian

as well as Interstate; thus, they assert, we are obligated

to hold that Congress successfully abrogated the states’

immunity when it passed IGRA.” We believe it appro-

priate, however, to limit Union Gas to the factual situa-

tion before that Court: the exercise of Congress’ power

to legislate under the Interstate Commerce Clause.

CERCLA and SARA were passed pursuant to the Inter-

state Commerce Clause, not the Indian Commerce Clause.

In addition, each of the opinions—plurality, concurrences,

and dissents—addressed only the Interstate Commerce

Clause. Moreover, the opinions do not suggest that the

Union Gas holding should be broadly construed. Thus,

18 The tribes assert that the Union Gas Court used the term

“Commerce Clause,” not “Interstate Commerce Clause,” thus evi-

dencing its intention to grant Congress abrogation powers when-

ever it acted pursuant to any of the Commerce Clauses, Interstate,

Indian, or foreign. The Court’s entire discussion, as well as every

case it cited, focused solely on the Interstate Commerce Clause.

We therefore conclude that the Court’s discussion, although im-

precise, implicated only the Interstate Commerce Clause.

2la

a fair reading of Union Gas is one that limits Congress’

abrogation powers to laws passed under the Interstate

Commerce Clause. As we already have determined that

IGRA was passed pursuant to the Indian Commerce

Clause, the Union Gas holding does not control our dispo-

sition of this case.

This conclusion is bolstered by the unique qualities

that distinguish the Interstate Commerce Clause and the

Indian Commerce Clause. In an attempt to demonstrate

this point, defendants suggest that Cotton Petroleum

Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct.

1698, 1716, 104 L.Ed.2d 209 (1989) (explaining that

“the Interstate Commerce and Indian Commerce Clauses

have different applications”), governs our disposition of

these cases. That case, which dealt solely with preemp-

tion and multiple taxation issues, plainly is distinguish-

able from the facts before us; thus, the Cotton Petro-

leum Court’s conclusion that the Commerce Clause dis-

tinguishes between states and Indian tribes is neither sur-

prising nor controlling precedent. Although not directly

on point, however, much of the reasoning that supported

Cotton Petroleum sheds light on the present issue. In

that case, the Court acknowledged the plenary powers

under the Interstate Commerce Clause that allow Con-

gress to place limits on the states in order to “maintain[]

free trade among the States.” Jd. By contrast, “the cen-

tral function of the Indian Commerce Clause is to pro-

vide Congress with plenary power to legislate in the field

of Indian affairs.” Jd. Although Congress has the power

to limit the states under the Indian Commerce Clause as

well, the different purposes underlying the two clauses

mandate that they be treated distinctly. As a result, the

unique abrogation power afforded Congress under the

Interstate Commerce Clause in Union Gas cannot be ex-

tended to the Indian Commerce Clause.

A second argument supporting our conclusion that

Congress did not possess the power to abrogate the states’

immunity is that a proper reading of Union Gas and the

22a

cases cited therein demonstrates that the Court has al-

lowed federal jurisdiction over states only when the states

partake in an activity typical of private individuals. For

instance, in Parden, a case on which the Union Gas

plurality primarily relied, the State of Alabama was oper-

ating a for-profit railroad in interstate commerce. Like-

wise, in Union Gas itself, the State of Pennsylvania was

an “owner or operator” of land and therefore, like pri-

vate citizens, was subject to liability under SARA. On .

the contrary, when the State of Missouri operated a non-

proprietary, not-for-profit hospital (a non-private activity

“wholly within [the states’] sphere of authority”), the

Court refused to find that Congress mandated federal

jurisdiction. Employees, 411 U.S. at 282, 93 S.Ct. at

1617 (1973).

In this case, the tribes seek to impose jurisdiction over

the States of Alabama and Florida for their failure to

negotiate a compact with the tribes. Rather than being a

typically private activity, such negotiations are “wholly

within [the states’] sphere of authority.” We believe the

Supreme Court’s jurisprudence clearly evinces an intent

to allow federal jurisdiction over states only when the

state’s conduct is outside the typical realm of state au-

thority. As negotiations with tribes certainly are not out-

side that realm of authority, the principles of federalism

and sovereign immunity exemplified in the Eleventh

Amendment prevent Congress from abrogating the states’

immunity. Thus, even if Union Gas’ reasoning were to

give Congress abrogation power under the Indian Com-

merce Clause in general, we would hold that Congress

may not abrogate when it legislates in an area typically

reserved to the states (such as negotiating regulations

with Indian tribes).

For these reasons, we conclude that Congress did not

possess the power to abrogate the states’ Eleventh

Amendment immunity when it enacted IGRA.

ee ee ee ee ee ee ee ee ee ee Cee ee Meee le ee ee ee) en er

23a

Third, the Supreme Court has created a third excep-

tion to the doctrine of sovereign immunity by holding

that the Eleventh Amendment does not always provide

immunity to government officials; in certain circum-

stances, those officials may be subject to suit, despite the

Eleventh Amendment, under the “fiction” of Ex parte

Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714

(1908). Briefly, the fiction allows an individual to ob-

tain a federal injunction against a state officer to force

the officer to comply with federal law. Jd. at 160, 28

S.Ct. at 454. Under the fiction, the tribes assert that they

may sue the governors of Alabama and Florida to com-

pel negotiations under IGRA.

The Ex parte Young doctrine does not apply in two

cases: (1) it cannot be used to compel an executive offi-

cial to undertake a discretionary task; and (2) it cannot

be used if the suit is, in reality, against the state. As most

of the courts that have addressed this issue have found,

however, the tribes’ claims fit into both categories. See,

e.g., Poarch II, 784 F. Supp. at 1551-52; Poarch I, 776

F. Supp. at 562; and Ponca, supra.“

First, the Ex parte Young doctrine cannot compel dis-

cretionary acts. Ex parte Young, 209 U.S. at 158, 28

S.Ct. at 453. IGRA does not allot merely ministerial acts

to the state, however; rather, it provides for the negotia-

tion of a contract, the terms of which are left to the dis-

cretion of the state and the tribe. Likewise, since IGRA

provides a procedure should the state decide not to nego-

tiate, even the mere question of whether the state should

14 The only case to disagree is Spokane, 790 F. Supp. at 1062-63.

There, the court focused on the need for a forum in which the

tribe could air its grievances. The need for a forum, however,

does not provide a federal court with the power to override state

officials’ constitutionally mandated sovereign immunity. Federal

court jurisdiction is subject to and limited to the dictates of the

Eleventh Amendment, and one judge’s desire to give an aggrieved

party a remedy does not enlarge it.

24a

negotiate at all is subject to discretion. Thus, both of

these facets of IGRA’s compacting process demonstrate

that the governors must use their discretion; accordingly,

under the first exception to the Ex parte Young doctrine,

the governors retain their Eleventh Amendment sovereign

immunity.

Second, if a suit in reality is against the state itself, the

Ex parte Young doctrine is inapplicable. Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 101-02, .

104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984). IGRA

uniformly addresses itself to “the State”; not once does it

impose duties or responsibilities on a particular officer of

the state (e.g., the governor, the legislature, etc.). Even

the district court’s injunctive relief powers are limited to

ordering “the State and the Indian Tribe to conclude”

a compact. § 2710(d)(7)(B)(iii) (emphasis added).

In addition, IGRA mandates that the State negotiate,

conclude, and abide by the Tribal-State compact. It is

apparent that these suits are not against officials in an

attempt to force them to follow federal law; rather, the

suits are against the states for failing to negotiate a com-

pact in good faith. At a result, the doctrine of Ex parte

Young does not apply.

Unless one of the three exceptions—consent, abroga-

tion, or Ex parte Young—applies, the Eleventh Amend-

ment serves as a jurisdictional bar and precludes federal

court adjudication over these suits. As we have found

that none of the exceptions is applicable to IGRA, these

cases must be disriissed for lack of subject-matter jurisdic-

tion.

As a result of our holding that the federal courts do

not have jurisdiction to reach the issues brought by the

tribes in these two suits, the procedures found in §§ 2710

(d)(7)(A)(i) and (B)(i)-(vi) necessarily fail when an

unconsenting state refuses to consent to suit.”

15 A state may consent to suit, in which case these provisions

remain in full force. See, e.g., Rumsey Indian Rancheria of Wintun

— | 4%

tt Gay

25a

The final question we must resolve is whether all provi-

sions for state involvement in class III gaming also fail,

as the tribes contend. We hold that they do not. IGRA

contains an explicit severability clause, § 2721; and we

find no “strong evidence” to ignore that plain congres-

sional directive. See Alaska Airlines, Inc. v. Brock, 480

U.S. 678, 686, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661

(1987). Nevertheless, we are left with the question as to

what procedure is left for an Indian tribe faced with a

state that not only will not negotiate in good faith, but

also will not consent to suit. The answer, gleaned from

the statute, is simple. One hundred and eighty days after

the tribe first requests negotiations with the state, the tribe

may file suit in district court. If the state pleads an Elev-

enth Amendment defense, the suit is dismissed, and the

tribe, pursuant to 25 U.S.C. § 2710(d) (7) (B) (vii), then

may notify the Secretary of the Interior of the tribe’s fail-

ure to negotiate a compact with the state. The Secretary

then may prescribe regulations governing class III gaming

on the tribe’s lands. This solution conforms with IGRA

and serves to achieve Congress’ goals, as delineated in

§§ 2701-02.

VI.

The decision of the United States District Court for the

Southern District of Florida in Seminole Tribe of Florida

v. Florida, No. 92-4652, is reversed; the case is remanded

so that the district court may dismiss the suit. The deci-

sions of the United States District Court for the Southern

District of Alabama in Poarch Band of Creek Indians v.

Alabama, No. 92-6244, are affirmed.

IT IS SO ORDERED.

BLACK, Circuit Judge, specially concurring:

I concur in the result.

Indians v. Wilson, No. Civ-S-92-812 GEB, 1993 WL 360652 (E.D.

Cal. July 20, 1993), in which defendants waived their Eleventh

Amendment immunity.

26a

APPENDIX B

UNITED STATES DISTRICT COURT

S.D. FLORIDA

No. 91-6756-CIV

SEMINOLE TRIBE OF FLORIDA.

Plaintiff,

Vv.

STATE, OF FLoripDA, LAWTON CHILES,

Governor of the State of Florida,

Defendants.

June 18, 1992

ORDER

MARCUS, District Judge.

THIS CAUSE is before the Court on Defendants’ Mo-

tion to Dismiss on Eleventh Amendment Grounds, filed

December 16, 1991. For the following reasons, the mo-

tion is Denied. .

I. BACKGROUND

Plaintiff, the Seminole Tribe of Florida (the “Tribe” )

is a federally recognized Indian tribe whose headquarters

are located in Broward County, Florida. The Tribe com-

menced this action pursuant to the Indian Gaming Regu-

latory Act, 25 U.S.C. § 2701 et seq. (“IGRA”), to re-

mediate the alleged failure of the State of Florida to con-

duct good faith negotiations regarding certain gaming

activities to be conducted on the Tribe’s land, after

State-Tribe compact negotiations failed to yield an agree-

— =

pie:

ee a

27a

ment. According to the Tribe, “the State and its Gover-

nor have refused to enter into any negotiations for inclu-

sion of such gaming in a tribal-state compact, [and have

accordingly] violated [IGRA’s] requirement of good faith

negotiation.” Compl. at 4 24. The Defendants assert that

they have in fact entered into good faith negotiations with

the Tribe, but maintain that those negotiations were un-

availing since the gaming activities at issue are prohibited

under Florida law. In addition, the Defendants have

moved to dismiss the action pursuant to the Eleventh

Amendment to the United States Constitution, arguing

that Congress does not have the power constitutionally

to enforce the “good faith” requirement of the compact

process by explicitly providing the Tribe a judicial remedy

against the State.

Il. LEGAL FRAMEWORK

A. Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act was enacted by

Congress primarily “to provide a statutory basis for the

operation of gaming by Indian tribes as a means of pro-

moting tribal economic development, self-sufficiency, and

strong tribal governments. . . .” 25 U.S.C. § 2702(1).

IGRA divides Indian gaming into three distinct classes.

Class I gaming “means social games solely for prizes of

minimal value or traditional forms of Indian gaming en-

gaged in by individuals as a part of, or in connection

with, tribal ceremones or celebrations.” Id. at § 2703(6).

“Class I gaming on Indian lands is within the exclusive

jurisdiction of the Indian tribes” and is not subject to the

provisions of IGRA. Id. at § 2710(a)(1). Class II gam-

ing includes bingo, pull-tabs, lotto, punch boards, tip jars

and other similar games, id. at § 2703(7)(A)(i), and

certain non-banking card games (not including blackjack

and baccarat), id. at §§ 2703(7)(A) (ii); 2703(7) (B)

(i). “Class II gaming on Indian lands shall continue to

28a

be within the jurisdiction of the Indian tribes,” but is sub-

ject to the provisions of IGRA, id. at § 2710(a)(2), in-

cluding oversight by National Indian Gaming Commission,

established within the Department of the Interior. Jd. at

§ 2704(a).

Class III gaming is “all other forms of gaming that are

not class I gaming or class II gaming.” Id. at § 2703(8).

“Class III gaming activities shall be lawful on Indian

lands only if such activities are . . . located in a State

that permits such gaming for any purpose by any person,

organization, or entity... .” Id. at § 2710(d)(1). IGRA

further provides that

{aJny Indian tribe having jurisdiction over the Indian

lands upon which a class III gaming activity is being

conducted, or is to be conducted, shall request the

State in which such lands are located to enter into

negotiations for the purpose of entering into a Tribal-

State compact governing the conduct of gaming ac-

tivities. Upon receiving such a request, the State

shall negotiate with the Indian tribe in good faith to

enter into such a compact.

Id. at §2710(d)(3)(A) (emphasis added). Finall

IGRA mandates that : sang

[t]he United States district courts shall have jurisdic-

tion over . . . any cause of action initiated by an

Indian tribe arising from the failure of a State to

enter into negotiations with the Indian tribe for the

purpose of entering into a Tribal-State compact un-

der paragraph (3) or to conduct such tiati

in good faith. ... negotiations

Id. at §2710(d)(7)(A)(i). Notwithstanding the ex-

press terms of Section 2710, Defendants argue that any

such suits brought to remediate a State’s alleged failure

to negotiate in good faith are barred the

Amendment. 7 pein

29a

B. Eleventh Amendment

The Eleventh Amendment to the United States Consti-

tution provides:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

U.S. Const. amend. XI. The scope of the Amendment

has been extended beyond the literal text to also bar suits

against a State brought by one of its own citizens. Hans

v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 33 L.Ed. 842

(1890). Thus, as the United States Supreme Court has

recently observed:

Despite the narrowness of its terms, since Hans v.

Louisiana we have understood the Eleventh Amend-

ment to stand not so much for what it says, but for

the presupposition of our constitutional structure

which it confirms: that the States entered the fed-

eral system with their sovereignty intact; [and] that

the judicial authority in Article III is limited by this

sovereignty. ...

Blatchford v. Native Village of Noatak, U.S. ——,

, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991)

(citation omitted). Three exceptions to the Amendment

exist: (1) a State may consent to suit in federal court,

or waive its immunity to such suits, either expressly or

impliedly; see id.; (2) Congress may, when it possesses

the power, abrogate the States’ immunity; see Pennsyl-

vania v. Union Gas Co., 491 U.S. 1, 13-23, 109 S.Ct.

2273, 2280-86, 105 L.Ed.2d 1 (1989); and (3) state

officials may under certain circumstances be sued, in their

official capacities, to obtain prospective relief. See Ex

Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714

(1908). Against this framework, we proceed to evaluate

Defendant’s Motion to Dismiss.

30a

Ill. ANALYSIS

A. Abrogation

The Tribe’s central argument in opposition to the Mo-

tion to Dismiss is that Congress, in enacting IGRA, abro-

gated the State’s Eleventh Amendment immunity.’ We

hold that Congress did in fact abrogate the States’ im-

munity when it enacted IGRA, and, despite case authority

to the contrary,? further hold that, pursuant to the In-

dian Commerce Clause, Congress plainly had the con-

stitutional power to abrogate.*

1. Statutory Language

At the outset, the United States Supreme Court has

held that

Congress may abrogate the States’ constitutionally

secured immunity from suit in federal court only by

making its intention unmistakably clear in the lan-

guage of the statute.

1 The Tribe also argues that the State has implicitly waived its

immunity, either inherently in the “plan of convention”, see Blatch-

ford, —— U.S. at ——,, 111 S.Ct. at 2581, or constructively by the

State’s acceptance of the benefits of IGRA, see Parden v. Terminal

Railway, 377 U.S. 184, 192-98, 84 S.Ct. 1207, 1212-18, 12 L.Ed.2d

233 (1964). Since the Tribe has not strenuously pursued: either

“waiver” theory, and since we reach our decision on purely “abro-

gation” principles, we need not address the issues raised by these

arguments except insofar as they may bear upon Congress’ power

to abrogate.

2 See Sault Ste. Marie Tribe of Chippewa Indians, et al. v. State

of Michigan, No. 90-611, 1992 WL 71384, at *4-5 (W.D. Mich. Mar.

27, 1992) ; Spokane Tribe of Indians v. State of Washington, 790

F. Supp. 1057, 1059-61 (E.D. Wash. 1991); Poarch Band of Creek

Indians v. State of Alabama, 776 F. Supp. 550, 557 (S.D. Ala. 1991).

% Both the Indian and Interstate Commerce Clauses are found

in the same delegation of legislative authority, which gives Congress

the power “To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes... .” U.S.

Const. art. I, § 8, cl. 3.

3la

See Atascadero State Hospital v. Scanlon, 473 U.S. 234,

242, 105 S.Ct. 3142, , 87 L.Ed.2d 171 (1985);

see also Blatchford, U.S. at . 1211 SC. ot

2584; Dellmuth v. Muth, 491 U.S. 223, 226, 109 S.Ct.

2397, 2399, 105 L.Ed.2d 181 (1989). In the instant

case, the relevant portion of IGRA provides:

The United States district courts shall have jurisdic-

tion over . . . any cause of action initiated by an

Indian tribe arising from the failure of a State to

enter into negotiations with the Indian tribe for the

purpose of entering into a Tribal-State compact un-

der paragraph (3) or to conduct such negotiations

in good faith. ...

25 U.S.C. § 2710(d)(7)(A) (i). It is beyond preadven-

ture that, in expressly providing for federal jurisdiction

over claims brought by Indian tribes against States to

compel faith negotiations under IGRA (or to rem-

edy the lack of such negotiations), Congress made its in-

tention to abrogate the States’ immunity in this context

“unmistakably clear in the language of the statute.” See

Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147. In-

deed, the State of Florida concedes as much. See Def.

Mem. at 14 (“There is little doubt but that IGRA’s at-

tempted abrogation of state immunity is clear enough to

do so if Congress has the power to abrogate in this situa-

tion.”). Moreover, every court to squarely consider this

precise issue has concluded that the language in Section

2710 is “unmistakably clear.” See Sault Ste. Marie Tribe

of Chippewa Indians, et al. v. State of Michigan, No.

90-611, 1992 WL 71384, at *4 (W.D. Mich. Mar. 27,

1992) (“IGRA demonstrates specific Congressional in-

tent that states be subject to suit in federal courts based

upon violations of IGRA. This Court finds that the Act

is a clear statement of waiver of sovereign immunity.”

(emphasis in original) ); Poarch Band of Creek Indians

v. State of Alabama, 776 F. Supp. 550, 557 (S.D. Ala.

1991) (“[{T]his Court has little doubt but that IGRA’s

attempted abrogation of state immunity is clear enough

32a

to do so if Congress has the power to abrogate in this

Situation. . . . It is difficult to imagine a clearer state-

ment of Congress’ intent to subject states to lawsuits in

the federal courts.”). Accordingly, we find that IGRA,

on its face, abrogates the States’s Eleventh Amendment

immunity. That does not end the inquiry, however.

2. Congressional Power to Abrogate

A more difficult question is whether, notwithstanding

its manifest intent to do so, Congress had the power to

abrogate the States’ immunity in the context at issue here.

Given Congress’ plenary authority over Indian relations,

explicitly noted in the text of the Constitution at Article

I, § 8, cl. 3, and the uniquely federal issues raised when

such authority is exercised, considered in conjunction with

the principles enunciated by the Supreme Court in Penn-

sylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273,

105 L.Ed.2d 1 (1989), we conclude that Congress, when

acting pursuant to the Indian Commerce Clause, has the

power to abrogate the States’ immunity.

We begin by observing that the Indian Commerce

Clause of the Constitution provides that “Congress shall

have power . . . To regulate Commerce . . . with the

Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Congres-

sional power over Indian affairs is plenary. Cotton Pe-

troleum Corp. v. New Mexico, 490 U.S. 163, 192, 109

S.Ct. 1698, 1715-16, 104 L.Ed.2d 209 (1989) (“[T]he

central function of the Indian Commerce Clause is to

provide Congress with plenary power to legislate in the

field of Indian affairs. . . .”); Oneida County, N.Y. v.

Oneida Indian Nation of N.Y., 470 U.S. 226, 234-35,

105 S.Ct. 1245, 1251-52, 84 L.Ed.2d 169 (1985) (“With

the adoption of the Constitution, Indian relations became

the exclusive province of federal law.” (citing The Fed-

eralist No. 42)); White Mountain Apache. Tribe v.

Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65

L.Ed.2d 665 (1980) (“Congress has broad power to reg-

ulate tribal affairs under the Indian Commerce Clause.

33a

. . .'); Lae Courte Oreilles Band of Lake Superior

Chippewa Indians, et al., v. Voigt, 700 F.2d 341, 361

(7th Cir.) (“Congress has plenary authority over Indian

affairs. This power is rooted in . . . the Indian com-

merce clause... .” (citation omitted)), cert. denied, 464

U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1973); Agua

Caliente Band of Mission Indians v. County of Riverside,

306 F. Supp. 279, 282 (C.D. Cal. 1969) (“The nature of

Congressional power in Indian matters is paramount and

plenary.”); aff'd, 442 F.2d 1184 (9th Cir. 1971), cert.

denied, 405 U.S. 938, 92 S.Ct. 930, 30 L.Ed.2d 809

(1972).

In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8

L.Ed. 483 (1832), Chief Justice Marshall, writing for

the High Court, observed that

[the Articles of Confederation] gave the United

States in congress assembled the sole and exclusive

right of “regulating the trade and managing all the

affairs with the Indians, not members of any of the

states; provided, that the legislative power of any

state within its own limits be not infringed or vio-

lated.”

* * * *

The correct exposition of this [section of the Articles

of Confederation] is rendered unnecessary by the

adoption of our existing constitution. That instru-

ment confers on congress the powers of war and

peace; of making treaties, and of regulating com-

merce with foreign nations, and among the several

states, and with the Indian tribes. These powers

comprehend all that is required for the regulation

of our intercourse with the Indians. They are not

limited by any restriction on their free actions; the

shackles imposed on this power, in the [Articles of

Confederation], are discarded.

31 U.S. at 558-59. See also United States v. City of

Salamanca, 27 F. Supp. 541, 543 (W.D.N.Y. 1939)

34a

(“Any doubt as to whether under the Articles of Con-

federation certain rights over the Indians were reserved

to the states was removed by the adoption of the Con-

stitution.” ); The Federalist No. 42, at 268 (James Madi-

son) (Clinton Rossiter ed., 1961) (“The regulation of

commerce with the Indian tribes is very properly unfet-

tered from two limitations in the Articles of Confedera-

tion. .. .”). And in Morton v. Mancari, 417 U.S. 535,

94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), a unanimous

Supreme Court opined:

Resolution of the instant issue [of whether an In-

dian employment preference violates the Due Process

Clause of the Fifth Amendment] turns on the unique

federal status of Indian tribes under federal law and

upon the plenary power of Congress, based on a

history of treaties and the assumption of a “guardian-

ward” status, to legislate on behalf of federally rec-

ognized Indian tribes. The plenary power of Con-

gress to deal with the special problems of Indians

is drawn both explicitly and implicitly from the Con-

stitution itself.

417 U.S. at 551-52, 94 S.Ct. at 2483.* It is thus abun-

dantly clear that issues pertaining to Indian affairs are

* Still other courts, and a number of commentators, have acknowl-

edged the uniquely federal nature of Indian relations, and the

breadth of congressional power in that area. See McClanahan v.

State Tax Comm’n of Arizona, 411 U.S. 164, 168, 93 S.Ct. 1257,

1260, 36 L.Ed.2d 129 (1973) (“ ‘The policy of leaving Indians free

from state jurisdiction and control is deeply rooted in the Nation’s

history.’” (quoting Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989,

991, 89 L.Ed. 1367 (1345))); James v. Watt, 716 F.2d 71, 73-77

(1st Cir. 1983) (undertaking analysis of dormant effect of Indian

Commerce Clause), cert. denied, 467 U.S. 1209, 104 S.Ct. 2397, 81

L.Ed.2d 354 (1984); see also Williams, The Borders of the Equal

Protection Clause: Indians as Peoples, 38 U.C.L.A. L. Rev. 759

(1991) (acknowledging that “the grant of power to Congress

over the Indians may be ‘plenary’ . . . in the sense that its power

over interstate commerce is plenary,” but arguing that both are

equally restricted by the equal protection element of the Fifth

35a

uniquely federal, and that in regulating such affairs vis-

a-vis the States, congressional authority is plenary.

Moreover, it has repeatedly been observed that Con-

gress may abrogate the States’ immunity when it acts

pursuant to a plenary grant of authority plainly embodied

in the textual framework of the Constitution. See, e.g.,

Pennsylvania vy. Union Gas Co., 491 U.S. at 15, 109

S.Ct. at 2281-82; Hutto v. Finney, 437 U.S. 678, 693-

94, 98 S.Ct. 2565, 2574-75, 57 L.Ed.2d 522 (1978);

Richard Anderson Photography v. Brown, 852 F.2d 114,

123-24 (4th Cir. 1988) (Boyle, J., concurring in part and

dissenting in part), cert. denied, 489 U.S. 1033, 109

S.Ct. 1171, 103 L.Ed.2d 229 (1989); United States v.

Union Gas Co., 832 F.2d 1343, 1356 (3d Cir. 1987),

affd, 491 U.S. 1 (1989); Matter of McVey Trucking,

Inc., 812 F.2d 311, 323 (7th Cir.), cert. denied, 484

U.S. 895, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); Malone

v. Schenk, 638 F. Supp. 423, 426 (C.D. Ill. 1985).° Con-

gress’ paramount and plenary authority over Indian af-

fairs is therefore a substantial basis upon which to find

congressional power to abrogate when legislating pursuant

to that authority.

We next turn to a consideration of Pennsylvania v.

Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d

1 (1989). In Union Gas, the Supreme Court held that

the plain language of the Comprehensive Environmental

Amendment); Ainsworth, The Negative Foreign Commerce Clause:

An Analysis of the Reserved Unitary Tax Issue in Container Cor-

poration of America v. California Franchise Tax Board, 8 B.U.J.

Tax L. 65 (1990) (“it is Congress, not the states, which must

fairly regulate commerce ‘with the Indian tribes’ ”).

5 We note that, in the Bankruptcy Clause context, the United

States Court of Appeals for the Eleventh Circuit has expressly

left open the question of congressional power to abrogate. TEW

v. Arizona State Retirement System, 873 F.2d 1400, 1401 (11th

Cir. 1989) (per curiam) (“Because we hold that Congress has not

expressly abrogated sovereign immunity here, we do not reach the

constitutional question of whether it would have the authority to

do so.” (citation omitted) ).

36a

Response, Compensation, and Liability Act of 1980

(“CERCLA”), 42 U.S.C. § 9601 ef seq., permits a suit

for monetary damages against a state in federal court.

491 U.S. at 5, 109 S.Ct. at 2276. Further, a majority

of the Court concluded that Congress has the power to

abrogate the States’ immunity when legislating pursuant

to the Interstate Commerce Clause. Jd. at 13-23, 57, 109

S.Ct. at 2280-86, 2295. Justice Brennan authored the.

plurality opinion of the Court on the abrogation issue,

in which Justices Marshall, Blackmun, and Stevens joined.

Justice White filed a separate opinion in which he con-

curred in the judgment and noted his agreement “that

Congress has the authority under Article I to abrogate

the Eleventh Amendment immunity of the States... .”

491 U.S. at 57, 109 S.Ct. at 2295. Justice Brennan’s

plurality opinion reasoned that Congress possessed such

power principally by virtue of “the plenary powers granted

it by the Constitution” to regulate interstate commerce,

id. at 14-19, 109 S.Ct. at 2281-84 (citing Fitzpatrick v.

Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2670-71, 49

L.Ed.2d 614 (1976) (holding that Congress may ab-

rogate States’ immunity when legislating under § 5 of the

Fourteenth Amendment, since its powers under that

amendment are plenary) ), and also, to a lesser extent, by

virtue of the States’ surrender of immunity in the “plan

of convention” regarding matters within the ambit of the

Interstate Commerce Clause.’ /d., 491 U.S. at 19-23, 109

* Defendants argue that the applicability of Union Gas to the

instant case is undermined by the Tribe’s inability to satisfy the

“plan of convention” prong of that decision since no State-Tribe

“mutuality” was represented in the “plan of convefition.” We

cannot agree. The plurality’s “plan of convention” discussion in

Union Gas is, in our view, more a natural extension of the “plen-

ary power” basis of the decision than a separate requirement of

mutuality, since, even when discussing the “plan of convention,”

the Court was primarily concerned with Congress’ plenary powers

in the area of interstate commerce, observing:

It would be difficult to overstate the breadth and depth of the

commerce power. It is not the vastness of this power, however,

37a

S.Ct. at 2284-86. Since Congress clearly posseses com-

plete and plenary authority in the area of Indian affairs,

which is at least as broad as Congress’ interstate com-

merce power, see note 8, infra, we hold that Congress

has the power to abrogate the States’ immunity pursuant

to the Indian Commerce Clause.

Defendants have rested their Eleventh Amendment ar-

gument on three recent district court opinions, Sault Ste.

Marie Tribe of Chippewa Indians, et al. v. State of Mich-

igan, No. 90-611, 1992 WL 71384 (W.D. Mich. 1992);

Spokane Tribe of Indians v. State of Washington, 790

F. Supp. 1057 (E.D. Wash. 1991); and Poarch Band of

Creek Indians v. State of Alabama, 776 F. Supp. 550

(S.D. Ala. 1991). First, Defendants observe that the dis-

trict courts in both the Sault Ste. Marie and the Poarch

cases expressed misgivings as to the continuing vitality

of Union Gas, with the court in Poarch going so far as

to conclude that,

that is so important here: it is its effect on the power of the

States.

491 U.S. at 20, 109 S.Ct. at 2284 (citations omitted). This is pre-

cisely the same observation advanced by the Court when analyzing

Congress’ plenary power in this area:

[T]he Commerce Clause with one hand gives power to Congress

while, with the other, it takes power away from the States... .

The important point . . . is that the provision both expands

federal power and contracts state power; that is the meaning,

in fact, of a “plenary” grant of authority... .

Id. at 16-17, 109 S.Ct. at 2282-83.

We thus rest today’s decision primarily on Congress’ plenary

power over Indian affairs, rather than on a “mutuality in the plan

of convention” theory, for a number of reasons. First, an explica-

tion of plenary congressional power is, in our view, the central

thrust of Union Gas, and is a proper basis on which to find con-

gressional power to abrogate. In addition, the latter theory seem-

ingly begs the question by presuming that the states have already

ceded their sovereignty. Finally, we think, “plan of convention”

cession is more properly a “waiver” argument than an “abrogation”

argument, and, in the Indian affairs context, was rejected in Blatch-

ford, —— USS. at - , 111 S.Ct. at 2581-83.

38a

[blecause Union Gas is not directly on point, and

with an eye toward the shaky ground on which it

stands, this Court does not find the decision to be

controlling. The weakness of the plurality opinion

leads this Court to believe that it should not be

given an expansive application. . . .

776 F. Supp. at 558." We are unpersuaded. As already

noted, a majority of the Supreme Court in Union Gas

held that Congress had the power to abrogate the States’

immunity under the Interstate Commerce Clause; Union

Gas is binding authority on this Court. It is a mistake

to simply dismiss Union Gas as being inapposite, es-

pecially since congressional power over both interstate and

Indian commerce derives from precisely the same Con-

stitutional clause, Article I, § 8, cl. 3, and since its power

in both areas is plenary. See Matter of McVey Trucking,

812 F.2d at 323 (holding that “Congress may abrogate

state immunity to suit pursuant to any of its plenary

powers,” including the Bankruptcy Clause of Article I,

§ 8, cl. 4); Peel v. Florida Dep’t of Transp., 600 F.2d

1070, 1085 (Sth Cir. 1979) (finding authority to abrogate

pursuant to Congress’ war powers, and observing that

“nothing in the history of the eleventh amendment, the

doctrine of sovereign immunity, or the case law indicates

that Congress, when acting under an [AJrticle I, section

8 delegated power, lacks the authority to provide for

federal court enforcement of private damage actions

against the states”); BV Engineering v. University of

Cal., Los Angeles, 657 F. Supp. 1246, 1248 (C.D. Cal.

7 See also Sault Ste. Marie, 1992 WL 71384, at *5 (district court

settles on a “narrow reading of Union Gas”); Mississippi Band of

Choctaw Indians v. State of Mississippi, No. 90-386, 1991 WL

255614, at *6 (S.D. Miss. Apr. 9, 1991) (“[T]he Court notes that

it does not consider the Union Gas decision itself controlling prece-

dent upon which the eleventh amendment questions at issue here

could be decided. Union Gas dealt with congressional abrogation

of state immunity through an exercise of authority under the

interstate commerce clause. The instant matter involves the Indian

commerce clause.”’).

39a

1987) (finding congressional power to abrogate pursuant

to Article I, § 8, cl. 8 (copyright powers), and observing

that “Congress ‘may abrogate state immunity to suit pur-

suant to any of its plenary powers’” (quoting Matter of

McVey Trucking, 812 F.2d at 315-23)), affd, 858 F.2d

1394 (9th Cir. 1988), cert. denied, 489 U.S. 1090, 109

S.Ct. 1557, 103 L.Ed.2d 859 (1989).

The Defendants also attempt to draw important dis-

tinctions between the Interstate and Indian Commerce

Clauses, citing principally to Cotton Petroleum Corp. v.

New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1715-

16, 104 L.Ed.2d 209 (1989), where the Supreme Court

observed that “[i]t is also well established that the In-

terstate Commerce and Indian Commerce Clauses have

very different applications.” Indeed, the courts in both

Spokane Tribe of Indians v. State of Washington, 790

F. Supp. at 1059-61, and Poarch, 776 F. Supp. at 559,

concluded from this language that it would be inappropri-

ate to apply theories based on one clause to the other.

Again, we do not find the argument persuasive. As we

noted above, congressional power over both interstate and

Indian commerce derives from the same clause in the

Constitution; and we are hard pressed to conclude that

the congressional authority to abrogate the States’ im-

munity in the area of interstate commerce is greater than

in Indian commerce. Indeed, Defendants here acknowl-

edged as much at oral argument:

THE COURT: Let me ask you a question. Is

congressional authority under Article I, Section 8,

dealing with the power to regulate commerce with

the Indian tribes any less sweeping than the power

to regulate commerce with foreign nations and among

the several States?

MR. GLOGAU: No, it is not.

Transcr. of Hrng. of Jan. 13, 1992, at 10. Defendants

nonetheless argue that Congress’ power over Indian com-

merce is of a “very different specie” than the power over

40a

interstate commerce, and that Union Gas is therefore

readily distinguishable, since the Indian commerce power

lacks an element of “mutuality” found in the area of inter-

state commerce. See id. 491 U.S. at 10-16, 109 S.Ct. at

2278-82. This argument is unconvincing, and we con-

clude that, based on its paramount and plenary authority

over Indian affairs, Congress’ power to act pursuant to_

the Indian Commerce Clause is at least as great, if not

greater, than its powers under the Interstate Commerce

Clause.® Moreover, Cotton Petroleum does not undercut

this conclusion, since that decision goes on to note:

8 Accord Howard v. Illinois Central R. Co., 207 U.S. 468, 521,

28 S.Ct. 141, 154-55, 52 L.Ed. 297 (1908) (Moody, J., dissenting)

(“There is nothing in the words of the grant [of commerce power

to Congress] that permits the belief that the power is not coex-

tensive over foreign, interstate, and Indian trade, or is anything

less than the whole power which any government may properly

exercise over either. . . .”); Wabash R. Co. v. United States, 168

F. 1, 4 (7th Cir. 1909) (“When the Declaration of Independence

ripened into fact, the several states could have taken their separate

places in the family of nations as absolutely sovereign powers, and

the commerce among them would have been on the same footing

as commerce “with foreign nations” and “with Indian tribes.” On

abandoning their “firm league of friendship” and adopting the

Constitution, the states divested themselves of the power to regulate

interstate commerce as completely as they did of the power to

regulate foreign commerce, and transferred to the nation in -equal

terms the power to regulate both. To the extent that there is a

difference between the power of Congress over interstate commerce

and over foreign commerce, it comes not from any difference in

the grants, but from the fact that other provisions of the Consti-

tution which may limit the exercise of power over interstate com-

merce may have no application to foreign commerce.”) ; Ainsworth,

supra note 4 (“First, Indian Commerce Clause analysis is struc-

tured differently than Interstate Commerce Clause analysis. It

proposes a tripartite balancing of unequal interests (tribal, state,

and federal) rather than a binary balancing of constitutionally

equal interests (two similarly situated taxpayers in the same

or different states). Second, under the Indian Commerce Clause,

there is a presumption against state authority to tax Indian-value

without express Congressional approval; whereas under the Inter-

state Commerce Clause, there is a presumption in favor of any

4la

In particular, while the Interstate Commerce Clause

is concerned with maintaining free trade among the

States even in the absence of implementing federal

legislation, the central function of the Indian Com-

merce Clause is to provide Congress with plenary

power to legislate in the field of Indian affairs.

490 U.S. at 192, 109 S.Ct. at 1715-16 (emphasis added).°

Finally, Defendants rely on Blatchford in concluding

that Congress lacked the power to abrogate.” This re-

liance is misplaced, we think, since Blatchford is pri-

marily a “waiver” case, and its concerns over a lack of

“mutuality of . . . concession,” U.S. at - :

111 S.Ct. at 2581-83, are properly limited to that con-

text. But even if, as Defendants assert, the “waiver”

principles enunciated in Blatchford can be said to speak

to Congress’ power to abrogate—and we think they do

not—the lack of State-Indian mutality is a matter of rela-

tively minor importance. First, Congress’ plenary power

over the uniquely federal area of Indian affairs is the

non-discriminatory state taxing scheme which has not been ex-

pressly disapproved of by Congress. Finally, under the Indian

Commerce Clause, it is the quantitative weight of the burden im-

posed on Indian Commerce that is the significant question; whereas

under the Interstate Commerce Clause, it is the equal distribution

of tax burdens among taxpayers, regardless of the absolute amount

of the overall burden, that matters.”); Resnick, Dependent Sov-

ereign: Indian Tribes, States, and the Federal Courts, 56 U. Chi.

L. Rev. 671 (1989) (“[T]he ‘Indian commerce clause could be read

as expansively as the Interstate commerce clause.’ Under such

a reading, the constitutional limits on congressional power over

Indian tribes may be more formal than real.” (quoting Clinton,

Isolated in Their Own Country: A Defense of Federal Protection

a at, Autonomy and Self Government, 33 Stan. L. Rev. 979, 997

1981) )).

® At all events, Cotton Petroleum is of limited help here since

the issue there was whether Indian tribes could be treated as

States for tax apportionment purposes.

10 The Spokane Tribe and Sault Ste. Marie courts also relied on

Blatchford in reaching the same conclusion.

42a

primary basis on which we rest today’s decision. Second,

we are not persuaded that a lack of mutuality between the

States and the Indian nations is a compelling deficiency,

since there did in fact exist a mutuality between the fed-

eral government—in which plenary power to regulate In-

dian affairs was vested—and the States. And although

the lack of State-Indian mutality may undercut the argu-

ment that the States waived their immunity to any and all

suits by Indian tribes, the importance of that want of

mutuality is diminished when a suit is brought pursuant

to explicit congressional authorization, since the linchpin

of abrogation must be the nature of the power pursuant

to which Congress raised the Eleventh Amendment bar-

rier. Furthermore, to the extent that Blatchford does ex-

pressly discuss abrogation, that discussion never reaches

the issue of congressional power, since the Court con-

cluded that Section 1362 of Title 28 did not contain

“unmistakably clear” language evincing Congress’ intent

to abrogate.” US. at , 111 S.Ct. at 2586.

Thus, Blatchford is wholly silent on the principal issue

raised here of congressional power to abrogate, and as

such is readily distinguishable. Accordingly, it is

ORDERED AND ADJUDGED that Defendants’ Mo-

tion to Dismiss is DENIED.

DONE AND OP DERED.

11 That section provides:

The district courts shall have original jurisdiction of all civil

actions, brought by any Indian tribe or band with a governing

body duly recognized by the Secretary of the Interior, wherein

the matter in controversy arises under the Constitution, laws,

or treaties of the United States.

28 U.S.C. § 1862. Notably absent from Section 1862 is language

specifically referencing the States, as is present in the statute con-

ferring jurisdiction in the instant case, 25 U.S.C. § 2710(d) (7)

(A) (i). |

43a

APPENDIX C

[Filed Sep. 22, 1993]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case 91-6756-CIV-MARCUS

SEMINOLE TRIBE OF FLORIDA,

Plaintiff,

STATE OF FLORIDA, LAWTON CHILES,

Governor of the State of Florida,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT AND DENYING

PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT AND PLAINTIFF'S SUPPLEMENTAL

MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court pursuant to

the Plaintiff, SEMINOLE TRIBE OF FLORIDA’s (“the

Tribe”), Motion for Summary Judgement and the De-

fendants, the STATE OF FLORIDA and LAWTON

CHILES’s (“the State”), Motion for Summary J udge-

ment, both of which were filed on October 9, 1992, and

pursuant to the Tribe’s Supplemental Motion for Sum-

mary Judgment, filed on March 19, 1993.

The Tribe brought this action under the Indian Gam-

ing Regulatory Act, 28 U.S.C. §§ 2701-21, 18 U.S.C.

§§ 1166-68 (“IGRA”). The Tribe alleges that the State

has failed to negotiate in good faith by refusing to in-

44a

clude the Tribe’s request to conduct certain forms of

machine or computer-assisted gaming and casino type

gaming in the negotiation of a Tribal-State compact gov-

erning gambling on Tribal lands. The Tribe claims that

such gaming is permitted by the State and is therefore

a mandatory subject of negotiations under the IGRA.

The State maintains, however, that, while it has agreed

to negotiate for other types of gaming, it need not nego-

tiate for machine or computer-assisted gaming or casino

type gaming precisely because those specific types of

gaming are not permitted by the State. The Court heard

oral argument on the cross-motions for summary judg-

ment on December 11, 1992. In addition, by Order of

January 5, 1993, the Court granted the Tribe’s Motion

to Re-Open Discovery on the issue of the State’s treat-

ment of foreign flag vessels which operate gambling

cruises from Florida ports. The Tribe filed its Supple-

mental Motion for Summary Judgment based on the ad-

ditional discovery on March 19, 1993, the State filed its

response on April 6, 1993 (and the Tribe filed its reply

on April 12, 1993, at which time the issues were fully

joined. Based on our thorough review of the case and

the record, it is hereby

ORDERED AND ADJUDGED that the State’s Mo-

tion for Summary Judgment is -—GRANTED and the

Tribe’s Motion for Summary Judgment and Supplemental

Motion for Summary Judgment are DENIED for the

reasons detailed at some length below.

The following facts tiave been stipulated to by the

parties in their Joint Pretrial Stipulation. On January

29, 1991, the Tribe asked the State to commence nego-

tiations pursuant to the IGRA for a compact governing

the Tribe’s proposed operation of certain forms of gam-

bling on Tribal lands. On March 4, 1991, the Tribe

submitted a proposed contract providing for Tribal oper-

ation of poker, and machine or computer-assisted games

45a

which duplicate poker, bingo, pull-tabs, lotto, punch

boards, tip jars, instant bingo, and other games similar to

bingo. By letter of May 24, 1991, the State, through

the Governor’s General Counsel, J. Hardin Peterson, Jr.,

agreed to negotiate poker and other games allowed by

Fla. Stat. Anno. § 849.085 (West Supp. 1993), but re-

jected all of the Tribe’s other compact requests. The

letter set forth the State’s preliminary legal position on

the scope of games believed by the State to be subject

to compact negotiations and also contained suggestions

for issues to be negotiated related to regulatory matters.

On June 18, 1991, Seminole Chairman James Billie re-

quested Florida Governor Lawton Chiles’s personal in-

volvement in compact negotiations. The Chairman sub-

mitted additional games that the Tribe asserted met the

objections set forth in the May 24 letter from Peterson,

and, at the same time, requested expansion of negotia-

tions to include casino gambling. On June 25, 1991,

the Tribe submitted a ten-page legal memorandum to

the State in support of the lawfulness of the proposed

compact. (Joint Pretrial Stipulation at 4, 44 1-5).

On August 22, 1991, representatives of the Tribe met

with State representatives to discuss the Tribe’s compact

request. The State agreed to negotiate concerning poker

and other card games, raffles, and parimutual wagering

on dog and horse racing and jai alai. In response to

questions from the State representatives, there was some

discussion of how the Tribe would conduct these games

if a compact were approved. The State, however, re-

fused to negotiate a compact covering any machine or

computer-assisted gaming which the State contended

would violate Fla. Stat. Anno. §§ 849.15 and 849.16

(West 1976 & Supp. 1993). Specifically, the State re-

fused to negotiate a compact covering any form of casino

gambling. (Joint Pretrial Stipulation at 4-5, 4 6).

On September 17, 1991, the State and the Tribe met

to continue discussions. The State expressed its willing-

46a

ness to negotiate a compact for games permitted under

the interpretation of IGRA set forth in its September 13

letter. The Tribe decided not to continue negotiations

at that time and subsequently filed the instant lawsuit.

By letter dated September 14, 1992, the Tribe contacted

the State requesting that negotiations be resumed. (Joint

Pretrial Stipulation at 5, 44 6.1-6.2).

II.

The standard to be applied in reviewing a summary

judgment motion is stated unambiguously in Rule 56(c)

of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith if

the pleading, depositions, answers to interrogatories

and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.

Fed. R. Civ. P. 56(c). Thus, summary judgment may

be entered only where there is no genuine issue of ma-

terial fact. Moreover, the moving party has the burden

of meeting this exacting standard. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970).

In applying this standard, the Eleventh Circuit has

explained:

In assessing whether the movant has met this bur-

den, the courts should view the evidence and all

factual inferences therefrom in the light most favor-

able to the party opposing the motion. Adickes, 398

U.S. at 157, 90 S.Ct. at 1608; Marsh, 651 F.2d at

991. All reasonable doubts about the facts should

be resolved in favor of the non-movant. Casey En-

terprises, Inc. v. American Hardware Mut. Ins. Co.,

655 F.2d 598, 602 (5th Cir. 1981). If' the record

presents factual issues, the court must not decide

them; it must deny the motion and proceed to trial.

Ss pragen ye “aS Reease? fa

47a

Marsh, 651 F.2d at 991; Lighting Fixture & Elec.

Supply Co. v. Continental Ins. Co., 420 F.2d 1211,

1213 (Sth Cir. 1969). Summary judgment may be

inappropriate even where the parties agree on the

basic facts, but disagree about the inferences that

should be drawn from these facts. Lighting Fixture

& Elec. Supply Co., 420 F.2d at 1213. If reason-

able minds might differ on the inferences arising

from undisputed facts, then the court should deny

summary judgment. Impossible Electronics, 669

F.2d at 1031; Croley v. Matson Navigation Co., 434

F.2d 73, 75 (Sth Cir. 1970).

Moreover, the party opposing a motion for sum-

mary judgment need not respond to it with any affi-

davits or other evidence unless and until the movant

has properly supported the motion with sufficient

evidence. Adickes v. S.H. Kress & Co., 398 US.

at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at

991. The moving party must demonstrate that the

facts underlying all the relevant legal questions

raised by the pleading or otherwise are not in dis-

pute, or else summary judgment will be denied not-

withstanding that the non-moving party has intro-

duced no evidence whatsoever. Brunswick Corp. v.

Vineberg, 370 F.2d 605, 611-12 (Sth Cir. 1967).

See Dalke v. Upjohn Co., 555 F.2d 245, 248-49

(9th Cir. 1977).

Clemons‘ v. Dougherty County, Ga., 684 F.2d 1365,

1368-69 (11th Cir. 1982). See also Amay, Inc. v. Gulf

Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th Cir.

1985), cert. denied, 475 U.S. 1107 (1986).

The United States Supreme Court has provided sig-

nificant additional guidance as to the evidentiary standard

which trial courts should apply in ruling on a motion

for summary judgment:

[The summary judgmert] standard mirrors the stand-

ard for a directed verdict under Federal Rule of

48a

Civil Procedure 50(a), which is that the trial judge

must direct a verdict if, under the governing law,

there can be but one reasonable conclusion as to the

verdict. Brady v. Southern R. Co., 320 U.S. 476,

479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).

Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 250.

(1986). The Court further stated that “[t]he mere ex-

istence of a scintilla of evidence in support of the posi-

tion will be insufficient; there must be evidence on which

the jury could reasonably find for the [non-movant].”

Id. at 252. In determining whether this evidentiary

threshold has been met, the trial court “must view the

evidence presented through the prism of the substantive

evidentiary burden” applicable to the particular cause of

action before it. Jd. at 254. If the non-movant in a sum-

mary judgment action fails to adduce evidence which

would be sufficient, when viewed in a light most favor-

able to the non-movant, to support a jury finding for the

non-movant, summary judgment may be granted. /d.

at 254-55.

In another case, the Supreme Court has declared that

a non-moving party’s failure to prove an essential ele-

ment of a claim renders all factual disputes as to that

claim immaterial and requires the granting of summary

judgment:

In our view, the plain language of Rule 56(c) man-

dates the entry of summary judgment . . . against

a party who fails to make a showing sufficient to

establish the existence of an element essential to

that party’s case, and on which that party will bear

the burden of proof at trial. In such a situation,

there can be “no genuine issue as to any material

fact,” since a complete failure of proof concerning

an essential element of the nonmoving party's case

necessarily renders all other facts immaterial. The

moving party is “entitled to judgment as a matter

of law” because the nonmoving party has failed to

08 A etese ee Be

;

49a

make a sufficient showing on an essential element of

her case with respect to which she has the burden

of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)

(emphasis added).

The parties agree that there are no genuine issues of

material fact in dispute and that the matter may properly

be disposed of on cross-motions for summary judgment.

(Joint Pretrial Stipulation at 13). The parties’ respective

claims will be evaluated against this standard.

IIL.

Congress enacted the IGRA in 1988. In its opening

text, Congress recognized that:

(1) numerous Indian tribes have become engaged

in or have licensed gaming activities on Indian lands

as a means of generating tribal governmental reve-

nue; ...

(3) existing Federal law does not provide clear

standards or regulations for the codnuct of gaming

on Indian lands;

(4) a principal goal of Federal Indian policy is

to promote tribal economic development, tribal self-

sufficiency, and strong tribal government; and

(5) Indian tribes have the exclusive right to reg-

ulate gaming activity on Indian lands if the gaming

activity is not specifically prohibited by Federal law

and is conducted within a State which does not, as a

matter of criminal law and public policy, prohibit

such gaming activity.

25 U.S.C. § 2701. The purpose of the IGRA is:

(1) 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;

50a

(2) to provide a statutory basis for the regulation

of gaming by an Indian tribe adequate to shield it

from organized crime and other corrupting influ-

ences, to ensure that the Indian tribe is the primary

beneficiary of the gaming operation, and to assure

that gaming is conducted fairly and honestly by both

the operator and players; and

(3) to declare that the establishment of independ-

ent Federal authority for gaming on Indian lands,

the establishment of Federal standards for gaming

on Indian lands, and the establishment of a National

Indian Gaming Commission are necessary to meet

congressional concerns regarding gaming and to pro-

tect such gaming as a means of generating tribal

revenue.

25 U.S.C. § 2702.

Basically, the IGRA divides gaming into three classes.

Class I gaming “means social games solely for prizes of

minimal value or traditional forms of Indian gaming en-

gaged in by individuals as a part of, or in connection

with, tribal ceremonies or celebrations.” 25 U.S.C.

§ 2703(6). Class I gaming is subject to the exclusive

jurisdiction of the Indian tribes and is not subject to the

regulatory provisions of the IGRA. 25 U.S.C. § 2710

(a)(1).

Class II gaming “means the game of chance commonly

known as bingo (whether or not electronic, computer,

or other technologic aids are used in connection there-

with) . . . including (if played at the same location)

pull-tabs, lotto, punch boards, tip jars, instant bingo,

and games similar to bingo, and card games that (1)

are explicitly authorized by the laws of the State or (II)

are not explicitly prohibited by the laws of the State and

are played at any location in the State,” provided those

card games are played under the State laws and regula-

tions governing hours of operation and limitations on

wagers or pot sizes. 25 U.S.C. § 2703(7)(A). Congress

S5la

explicitly excluded “any banking card games, including

baccarat, chemin de fer, or blackjack, or . . . electronic

or electromechanical facsimilies of any game of chance

or slot machines of any kind” from Class II. 25 U.S.C.

§ 2703(7)(B). The tribes have jurisdiction over Class

If gaming, subject to the requirements of the IGRA and

the oversight of the National Indian Gaming Commis-

sion. 25 U.S.C. § 2710(b).

Class III gaming “means forms of gaming that are not

class [ gaming or class II gaming.” 25 U.S.C. § 2703(8).

The parties agree that the games at issue here (i.e., casino

gaming and machine or computer-assisted games) are

Class III games. The IGRA states:

Class III gaming activities shall be lawful on Indian

lands only if such activities are—

(A) authorized [by an approved Tribal] ordi-

nance or resolution... ,

(B) located in a State that permits such gaming

for any purpose by any person, organization, or

entity, and

compact entered into by the Indian tribe and the

State under paragraph (3) that is effect.

25 U.S.C. §2710(d). In order to engage in Class III

gaming activities on tribal land, a tribe must first “re-

quest the State in which such lands are located to enter

into negotiations for the purpose of entering ito a Tribal-

State compact governing the conduct of gaming activities.”

25 U.S.C. § 2710(3)(A). The IGRA requires the State

to negotiate with the Indian tribe in good faith upon re-

ceipt of the tribe’s request. Id.

Immediately before passage of the IGRA, in the case

of California v. Cabazon Band of Mission Indians, 480

U.S. 202, 107 S.Ct. 1083 (1987) the Supreme Court

established the standard for evaluating requests by Indian

52a

tribes to conduct gaming activities on tribal lands. In

Cabazon, the State of California objected to the Indian

tribe’s operation of bingo games on tribal property. The

state argued that the tribe’s bingo operations violated a

state penal statute which, while it did not prohibit bingo,

imposed prize limits and required the games to be “op-

erated and staffed by members of designated charitable -

organizations who may not be paid for their services.”

Cabazon, 480 U.S. 205, 107 S.Ct. at 1086. As noted

by the Supreme Court, California was a “Public Law 280”

state, meaning that Congress had granted California ju-

risdiction over specified areas of Indian country within

its borders. Section 2 of Pub.L. 280 granted Califor-

nia “broad criminal jurisdiction over offenses committed

by or against Indians within all Indian country” within

California, but Section 4 of Pub.L. 280 granted the state

a more limited form of civil jurisdiction. Cabazon, 480

U.S. at 207-08, 107 S.Ct. at 1087. Based on this differ-

ence in the congressional grant of jurisdiction, the Su-

preme Court held:

when a State seeks to enforce a law within an Indian

reservation under the authority of Pub.L. 280, it

must be determined whether the law is criminal in

nature, and thus fully applicable to the reservation

under § 2, or civil in nature, and applicable only

as it may be relevant to private civil litigation in

state court.

Cabazon, 480 U.S. at 208, 107 S.Ct. at 1088.

In Cabazon, the Supreme Court adopted a prohibitory/

regulatory distinction to determine whether the state law

governing the conduct at issue fell within Pub.L. 280’s

grant of criminal jurisdiction or not. The Court cautioned

that the mere fact that “an otherwise regulatory law is

enforceable by criminal as well as civil means does not

necessarily convert it into a criminal law within the mean-

ing of Pub.L. 280.” 480 U.S. at 211, 107 S.Ct. at 1089.

Rather, the touchstone is “whether the conduct at issue

53a

violates the State’s public policy.” 480 U.S. at 209, 107

S.Ct. at 1088. After reviewing the scope of legally per-

missible gambling activities within California, the Court

concluded that “California regulates rather than prohibits

gambling in general and bingo in particular.” 480 U.S.

at 211, 107 S.Ct. at 1089. The Court was not pre-

sented with, and thus did not address, the situation where

a state adopted a regulatory attitude toward some forms

of gambling which would fall under the IGRA’s rubric

of Class III gaming (e.g., parimutuel betting and a state

lottery), but prohibited the specific Class III activities

proposed by a tribe.

Review of the Cabazon decision is basic when inter-

preting the IGRA, as Congress incorporated the Cabazon

decision into both the statutory language and legislative

history of the IGRA. The Senate Report accompanying

the IGRA makes explicit reference to the Cabazon de-

cision in discussing 25 U.S.C. § 2710(b)(1)(A)’s re-

quirement that Class II gaming on Indian property take

place only if “located within a State that permits such

gaming for any purpose by any person, organization, or

entity.” The Senate Report offered the following guid-

ance to courts construing that phrase:

the Committee anticipates that Federal courts will

rely on the distinction between State criminal law

which prohibit certain activities and the civil laws

of a State which impose a regulatory scheme upon

those activities to determine whether class IIT games

are allowed in certain States. This distinction has

been discussed by the Federal courts many times,

most recently and notable by the Supreme Court in

Cabazon.

The phrase “for any purpose by any person, organ-

ization or entity” makes no distinction between State

laws that allow class II gaming for charitable, com-

mercial, or governmental purposes, or the nature of

54a

the entity conducting the gaming. If such gaming

is not criminally prohibited by the State in which

tribes are located, then tribes, as governments, are

free te engage in such gaming.

S. Rep. No. 446, 100th Cong., 2d Sess., reprinted in 1988

U.S.C.C.A.N. 3076, 3082. While the Senate Report re- .

ferred to the phrase as found at 25 U.S.C. § 2710(b)

(1)(A), the identical phrase is repeated at 25 U.S.C.

§ 2710(d)(1)(B) regarding Class Ill activities. It is

a general principle governing statutory construction that

when a word or phrase is used in more than one section

of an act, and the meaning is clear as used in one place,

“t will be construed to have the same meaning in the

next place’.” United States v. Nunez, 573 F.2d 769, 771

(2nd Cir.) (citation omitted), cert. denied, 98 S.Ct. 2828

(1978). We therefore agree with the Tribe that the legis-

lative history relating to the phrase as found in the pro-

vision governing Class II gaming is instructive regarding

the meaning of the language found in the provision gov-

erning Class III gaming. See also, Mashantucket Peguot

Tribe v. State of Conn., 913 F.2d 1024 (2nd Cir. 1990)

(reaching same conclusion regarding applicability of leg-

islative history). Coupling the Senate Report with the

express language of 25 U.S.C. § 2701(5) supra, we con-

clude that Congress intended the prohibitory/regulatory

analysis found in Cabazon to be consistent with and to

be applied to the IGRA provisions covering both Class

II and Class III gaming.

In the instant case, the Tribe argues that the “permits

such gaming” provision of the IGRA (i.e., the phrase

incorporating Cabazon’s regulatory/prohibitory distinc-

tion) refers to the “generic class of gaming permitted in

the State.” (Plaintiff's Motion for Summary Judgment at

18) (emphasis in original). Under the Tribe’s theory,

by allowing one form of Class III gaming, the State has

evinced a public policy which is regulatory in nature to-

ward all forms of Class III gaming. Following the Tribe’s

argument, because the State allows parimutuel facilities

2 bee ee

55a

and the state lottery, all other forms of Class III gaming,

such as casinos and machine and computer-assisted games,

become mandatory subjects for negotiation of the Tribe-

State compact. The State’s admitted refusal to include

those forms of Class III activities in the compact negotia-

tion would therefore constitute a violation of the good

faith requirement imposed upon the State by the IGRA.

While we agree that the Cabazon standard should be used

in the interpretation of the IGRA Class III provisions,

we cannot accept the Tribe’s broad assertion that the

State’s permission of specific Class III gaming activities

places all Class III activities on the table as subject to

negotiation.

In support of its position, the Tribe primarily relies on

three recent cases interpreting the IGRA: United States

v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358 (8th

Cir. 1990); Mashantucket Peguot Tribe v. State of Con-

necticut, 913 F.2d 1024 (2nd Cir.), cert. denied, 111

S.Ct. 1620 (1991); and Lac du Flambeau Band of Lake

Superior Chippewa Indians v. State of Wisconsin, 770

F. Supp. 480 (W.D. Wis. 1991) (Lac du Flambeau 11).

Contrary to the Tribe’s argument, a close reading of these

cases does not support its position. Each court consider-

ing the Cabazon regulatory/prohibitory distinction in rela-

tion to the IGRA has conducted a broad review of the

state’s public policy toward gambling, and, in each case,

the court has determined that the specific gaming activity

proposed by the Indian tribe was in fact permitted by the

State.

The Sisseton-Wahpeton case arose in the context of

Class II gaming. The Indian tribe in that case opened a

blackjack enterprise on its South Dakota reservation. The

tribe argued, first, that its blackjack operation was grand-

fathered in as a Class II activity by specific IGRA pro-

visions not relevant to the instant case. The tribe further

argued that its operations satisfied the IGRA requirement

that the activities take place in a state “that permits such

gaming for any purpose by any person, organization or

56a

entity.” This is the precise phrase in both the Class Il

and Class III provisions which is at issue in the instant

case. In interpreting that phrase, the court stated that it

revealed a congressional intent to permit a “particular

gaming activity . . . if the state law merely regulated, as

opposed to completely barred, that particular gaming ac- .

tivity.” 897 F.2d at 365 (emphasis added). After con-

cluding that South Dakota permitted commercial card

games including blackjack, albeit with wage limits and

other constraints, the court found that the IGRA’s re-

quirement was met and the Indian tribe could lawfully

conduct its blackjack operation pursuant to the IGRA.

In Mashantucket, the United States Court of Appeals

for the Second Circuit addressed a similar issue in the con-

text of the IGRA provisions governing Class III activities.

The Indian tribe sought to operate casino-type games of

chance on its reservation in Connecticut. The state re-

fused to negotiate a compact for these gaming activities.

The district court found that Connecticut statute specifi-

cally authorized certain nonprofit organizations to hold

Las Vegas nights. Based on this, the district court granted

summary judgment in favor of the tribe. In upholding the

district court’s decision, the Court of Appeals for the

Second Circuit stated:

the district court concluded, after a careful review

of pertinent Connecticut law regarding “Las Vegas

nights,” that Connecticut “permits games of chance,

albeit in a highly regulated form. Thus such gaming

is not totally repugnant to the State’s public policy,

This ruling means only that the State must ne-

gotiate with the Tribe concerning the conduct of

casino-type games of chance at the Reservation.

913 F.2d at 1031-32. (emphasis added).

Finally, in Lac du Flambeau II, the court found that

the Wisconsin electorate amended their state’s constitu-

57a

tion to allow the state to operate a lottery. Based in part

On an opinion by the Wisconsin Attorney General, the

court concluded that Wisconsin no longer prohibited

games ivolving prize, chance, and consideration, and ruled

that all games falling within that category must be in-

cluded in the compact negotiation. Thus, the court’s rul-

ing was limited to the speciic category of games, albeit

a broad category, no longer prohibited by Wisconsin.

To some extent, the court in Lac du Flambeau II utilized

a different interpretation of Cabazon than the one out-

lined above. For example, the court observed:

If the policy is to prohibit all forms of gambling by

anyone, then the policy is characterized as criminal-

prohibitory and the state’s criminal laws apply to

tribal gaming activity. On the other hand, if the

state allows seme forms of gambling, even subject

to extensive regulation, its policy is deemed to be

civil-regulatory and it is barred from enforcing its

gambling laws on the reservation.

This approach is broader than the one em

ployed by the

Supreme Court in Cabazon and other courts which ai

bp! . Bas ee and, to the extent the court in

u eau ased its conclusion on th i

we decline to follow its lead.” ewes

1The Tribe has also argued that the Lac du Flamb

sion controlled the ultimate outcome of the gp 4

Tribe asserted that the electorate’s amendment of the Florida

Constitution to permit a state-run lottery converted the State’s

public policy toward all forms of Class III gaming to one which is

wholly regulatory in nature. We disagree. First, the Tribe’s

argument is premised on the notion that the Court may look only to

the State’s Constitution, and not to its statutory law or expressions

by its populace, to discern the State’s public policy toward gam-

bling. The Tribe has cited nothing and we can find no support for

on = — as noted above, the thrust of Cabazon

progeny requires a particularized inquiry into the

gambling activity (in this case, casino ey i and aa

computer-assisted gaming). For example, in Cabazon, where Cali-

fornia ran a state lottery and permitted parimutuel betting, the

58a

In sum, we can find no convincing support in these

cases for the Tribe’s suggestion that a state’s public policy

permitting individual Class III activities is somehow

equivalent to permitting all Class III gaming activities.

Indeed, two other courts recently reached the same con-

clusion regarding the “permits such gaming” language and

Class III gaming activities. See, Cheyenne River Sioux

Tribe v. State of South Dakota, et. al., 1993 WL 316042,

No. 93-1224/1521 (8th Cir. August 23, 1993) (Court

upheld district court’s ruling that state need not include

traditional keno in compact negotiations when state only

permitted video keno because the “‘such gaming’ lan-

guage of 25 U.S.C. § 2710(d)(1)(B) does not require

the state to negotiate with respect to forms of gaming it

does not presently permit.”) and Rumsey Indian Ranch-

eria of Wintun Indians, et al. v. Governor Pete Wilson,

et al., Case No. CIV-S-92-812-GEB at 16, n.16 (E.D.

Cal. July 16, 1993) (“This court has found no authority

for the proposition that a state’s public policy construed

as permitting a single Class III game must be found to

permit all Class III gaming activities.”) Thus, we look

at the state’s public policy toward the specific gaming

activities proposed by the tribes.*

lower courts and the Supreme Court looked at the state’s public

policy regarding bingo, the specific gambling activity at issue.

Thus, we do not agree that Lac du Flambeau II dictates the out-

come of the instant case, without a review of the State’s public

policy toward gambling in general and its public policy toward the

specific gaming activities in question.

2In its motion for summary judgment, the State argued that

the different language prefacing the Class II and Class III pro-

visions should be the focus of the Court’s analysis of the IGRA.

The relevant portions of the IGRA state:

An Indian tribe may engage in, or license and regulate, class

II gaming on Indian lands within such tribe’s jurisdiction,

if—...

(A) such Indian gaming is located within a State that

permits such gaming for any purpose by any person, or-

ganization or entity, ...

and:

59a

The Tribe has argued alternatively that Florida in fact

permits precisely those types of Class III gaming activities

which it proposes to operate on Tribal lands. The parties

agree that the State explicitly permits parimutuel betting

and the state lottery, both of which are Class III games.

The Joint Pretrial Stipulation describes in detail these

games. For example, there are thirty-five parimutuel fa-

cilities throughout the State, including dog and horse

facing tracks and jai alai frontons. The State also per-

mits simulcast and intertrack betting at the parimutuel

facilities. Simulcast involves the transmission of an out-

of-state race into Florida or an in-state race out of Flor-

ida for betting purposes. Intertrack betting involves the

transmission of a race from one Florida parimutuel fa-

cility to another for betting purposes. The total amount

bet at the State’s thirty-five facilities has been 1.6 billion

dollars for the past several years. (Joint Pretrial Stipula-

tion at 5-6, 44 7-11).

Class III gaming activities shall be lawful on Indian lands only

if such activities are—...

(B) located in a State that permits such gaming for any

purpose by any person, organization, or entity, .. .

25 U.S.C. §2710(b) (1) and (d)(1) (emphasis added). The State

argues that the use of the term “gaming activities” rather than

“gaming” indicates a congressional intent that courts treat Class

III as a particularized, rather than a generic group of activities,

thereby requiring an activity-by-activity review of the proposed

tribal gaming.

At least one court has concluded that this difference in prefatory

language does not create a meaningful distinction between Class

II and Class III under the IGRA. See, Mashantucket Peguot Tribe

v. State of Connecticut, 913 F.2d 1024, 1030 n.6 (No significance

should be accorded to the “modest difference” between the two

introductory sections). Because we have concluded that the appli-

cation of the Cabazon standard requires a court to examine the

State’s public policy regarding the specific activities proposed by

the Tribe, we need not address the State’s argument that the

prefatory language creates an important distinction between the

IGRA’s Class II and Class III provisions. We add, however, that

the purported distinction the State would draw between “gaming”

and “gaming activities” appears illusory.

60a

In addition to accepting bets placed at parimutuel fa-

cility windows staffed by facility employees, fifteen facili-

ties use SAMS. SAMS are automated machines which

permit a bettor to enter his bet by inserting money, vouch-

ers, or credit cards into the machine, thereby enabling

him to select the number or combination he wishes to

purchase. A ticket is issued showing those numbers.

Those numbers may be selected by bettors who handicap

races or those who choose numbers or combinations with-

out handicapping the race. A ticket showing a winning

number or combination of numbers will entitle the holder

to receive money in exchange for the ticket. (Joint Pre-

trial Stipulation at 6, 4 12).

Florida’s state-wide lottery has a total in annual ticket

sales of approximately two billion dollars. There are

approximately 12,000 retail lottery sites throughout the

State, and each retail site is operated by one or more

persons trained by the State to operate the machine ter-

minals which are installed at the sites. The on-line lot-

tery games are Cash 3, Play 4, Fantasy 5, and Lotto.

Each of these games uses machine terminals installed at

the retail site. To play, a player selects his numbers either

by marking the numbers of his choice or by marking the

Quick Pick box on the play slip, a three by nine inch

card which is inserted in the machine terminal. If Quick

Pick is marked, the machine selects the numbers. In

either event, the chosen numbers are transmitted to and

recorded by the lottery’s main computer in Tallahassee

and the retail terminal prints out the lottery ticket con-

taining the selected numbers. Alternatively, a player can

verbally select either the numbers of his choice or the

Quick Pick option to be entered into the machine by hand.

Retailers and employees are permitted to operate machine

terminals for their own purchases of lottery tickets. The

winning numbers are chosen by an air blowing device

which ensures the random selection of white numbered

balls. A ticket showing a winning combination of num-

bers entitles the holder to receive money in exchange for

the ticket. (Joint Pretrial Stipulation at 6-7, 44 13-16).

6la

It is clear, therefore, that some Class III gaming is

“not totally repugnant to” Florida’s public policy, Mashan-

tucket, 913 F.2d at 1031, as the State allows, although

with regulations, parimutuel betting and the Florida lot-

tery. The Tribe, however, argues that the State already

permits precisely those Class III activities in which it

wishes to engage. Specifically, the Tribe points to the

State’s alleged permission of charity casino nights, gam-

bling cruises operated by foreign flag vessels out of Flor-

ida ports, and the use of computer or machine-assisted

gaming in conjunction with parimutuel betting and the

State lottery. The Tribe asserts that the State’s permission

of these activities indicates a regulatory, rather than a

prohibitory, public policy toward these games, thereby

making them mandatory subjects of negotiation between

the Tribe and the State. Before addressing these argu-

ments, it is helpful to examine Florida’s public policy

toward other types of Class III activities in order to place

the Tribe’s argument in its proper context.

The Florida penal code prohibits now, and has for

many years barred a broad range of gambling activities.

Fla. Stat. Anno. § 849.08 (West 1976) prohibits gam-

bling in general, and provides:

Whosoever plays or engages in any game at cards,

keno, roulette, faro or other game of chance, at any

place, by any device whatever, for money or other

thing of value, shall be guilty of a misdemeanor of

the second degree, punishable as provided in

§ 775.082 or § 775.083.

Other sections of the Florida penal code prohibit various

activities associated with or attendant to gambling. For

example, § 849.01 prohibits the keeping of a gambling

house,* § 849.02 makes an individual acting as a “serv-

3 Fla. Stat. Anno. § 849.01 (West 1976) states:

Whoever by himself, his servant, clerk or agent, or in any other

manner has, keeps, exercises or maintains a gaming table or

room, or gaming implements or apparatus, or house, booth,

62a

ant, clerk, agent, or employee” of a person in violation

of § 849.01 guilty of the same offense,* § 849.03 pro-

hibits the renting of a house or room for gambling pur-

poses,® § 849.11 prohibits plays at games of chance by

lot,® § 849.14 prohibits betting on the outcome of con-

test of skill,’ and § 849.04 makes it illegal to allow a

tent, shelter or other place for the purpose pf gaming or gam-

bling or in any place of which he may directly or indirectly

have charge, control or management, either exclusively or with

others, procures, suffers or permits any person to play for

money or other valuable thing at any game whatever, whether

heretofore prohibited or not, shall be guilty of a felony of the

third degree, punishable as provided in § 775.082, or § 775.084.

‘Fla. Stat. Anno. § 849.02 (West 1976) states:

Whoever acts as servant, clerk, agent, or employee of any

person in the violation of § 849.01 shall be punished in the

manner and to the extent therein mentioned.

5 Fla. Stat. Anno. § 849.03 (West 1976) states:

Whoever, whether as owner or agent, knowingly rents to

another a house, room, booth, tent, shelter or place for the

purpose of gaming shall be punished in the manner and to

the extent mentioned in § 849.01.

® Fla. Stat. Anno. § 849.11 (West 1976) states:

Whoever sets up, promotes or plays at any game of chance

by lot or with dice, cards, numbers, hazards or any other

gambling device whatever for, or for the disposal of money

or other thing of value or under the pretext of a sale, gift,

or delivery thereof, or for any right, share or interest therein,

shall be guilty of a misdemeanor of the second degree, punish-

able as provided in § 775.082 or § 775.083.

7 Fla. Stat. Anno. § 849.14 (West 1976) states:

Whoever stakes, bets or wagers any money or other thing of

value upon the result of any trial or contest of skill, speed

or power or endurance of man or beast, or whoever receives

in any manner whatsoever any money or other thing of value

staked, bet or wagered, or offered for the purpose of being

staked, bet or wagered, by or for any other person upon any

such result, or whoever knowingly becomes the ‘custodian or

depositary of any money or other thing of value so staked,

bet, or wagered upon any such result, or whoever aids, or

63a

minor or mentally incompetent individual to gamble.*

Section 849.05 makes the discovery of gambling devices

prima facie evidence that the location where they were

found is kept for the purposes of gambling.’® Section

849.07 prohibits the use of billiards tables for gambling

purposes.” In addition, § 849.231(1) prohibits the man-

ufacture, sale, purchase, or possession of gambling de-

assists, or abets in any manner in any of such acts all of which

are hereby forbidden, shall be guilty of a misdemeanor of the

second degree, punishable as provided in § 775.082 or § 775.083.

5 Fla. Stat. Anno. § 849.04 (West Supp. 1993) states:

Whoever being the proprietor, owner or keeper of any E.O.,

keno ar pool table, or billiard table, wheel of fortune, or any

other game of chance, kept for the purpose of betting, will-

fully and knowingly allows any minor or any person who is

mentally incompetent or under guardianship to play at such

game or to bet on such game of chance or whoever aids or

abets or otherwise encourages such playing or betting of any

money or other valuable thing upon the result of such game

of chance by any minor or any person who is mentally incom-

petent or under guardianship shall be guilty of a felony of the

third degree, punishable as provided in § 775.082, § 775.083, or

§ 775.084. For the purpose of this section, a “mentally incom-

petent person” is one who because of mental illness, mental

retardation, senility, excessive use of drugs or alcohol, or

other mental incapacity is incapable of either managing his

property or caring for himself or both.

* Fla. Stat. Anno. § 849.05 (West Supp. 1993) states:

If any of the implements, devices or apparatus commonly used

in games of chance in gambling houses or by gamblers, are

found in any house, room, booth, shelter or other place it shall

be prima facie evidence that the said house, room, booth,

shelter or other place where the same are found is kept for the

purpose of gambling.

10 Fla. Stat. Anno. § 849.07 (West 1976) states:

If any holder of a license to operate a billiard or pool table

shall permit any person to play billiards or pool or any other

game for money, or any other thing of value, upon such tables,

he shall be deemed guilty of a misdemeanor of the second

degree, punishable as provided in § 775.082 or § 775.083.

64a

vices,"’ § 849.26 provides that all gambling debts or con-

tracts are void,” and § 849.12 provides for the forfeiture

to the State of money and prizes won through illegal

gambling.”

Fla. Stat. Anno. § 849.231(1) (West 1976) states:

Except in instances when the following described implements

or apparatus are being held or transported by authorized per-

sons for the purpose of destruction, as hereinafter provided,

and except in instances when the following described instru-

ments or apparatus are being held, sold, transported, or manu-

factured by persons who have registered with the United States

Government pursuant to the provisions of Title 15 of the

United States Code, sections 1171 et seq., as amended, so long

as the described implements or apparatus are not displayed

to the general public, sold for use in Florida, or held or manu-

factured in contravention of the requirements of 15 U.S.C.

§ 1171 et seq., it shall be unlawful for any person to manu-

facture, sell, transport, offer for sale, purchase, own, or have

in his possession any roulette wheel or table, faro layout, crap

table or layout, chuck-a-luck wheel, bird cage such as used for

gambling, bolita balls, chips with house markings, or any

other device, implement, apparatus, or paraphernalia ordinarily

or commonly used or designed to be used in the operation of

gambling houses or establishments, excepting ordinary dice

and playing cards.

Fla. Stat. Anno. § 849.26 states:

All promises, agreements, notes, bills, bonds or other contracts,

mortgages or other securities, when the whole or part of the

consideration if for money or other valuable thing won or lost,

laid, staked, betted or wagered in any gambling transaction

whatsoever, regardless of its name or nature, whether hereto-

fore prohibited or not, or for the repayment of money lent or

advanced at the time of a gambling transaction for the pur-

pose of being laid, betted, staked or wagered, are void and of no

effect; provided, that this acts shall not apply to wagering on

pari-mutuels or any gambling transaction expressly authorized

by law.

Fla. Stat. Anno. § 849.12 (West 1976) states:

All sums of money and every other valuable thing, drawn and

won as a prize, or as a share of a prize, or as a share, per-

centage or profit of the principal promoter or operator, in any

lottery, and all money, currency or property of any kind to

65a

Certain games which would otherwise be Class III

games are exempted from this statutory scheme. These

are

limited, however, to games played in residences for

less than $10,"* drawings by chance held by charitable or-

be disposed of, or offered to be disposed of, by chance or de-

vice in any scheme or under any pretext by any person, and

all sums of money or other thing of value received by any

person by reason of his being the owner or holder of any

ticket or share of a ticket in a lottery, or pretended lottery,

or of a share or right in any such schemes of chance or device

and all sums of money and other thing of value used in the

setting up, conducting or operation of a lottery, and all money

or other thing of value at stake, or used or displayed in or

in connection with any illegal gambling shall be forfeited, and

may be recovered by civil proceedings, filed, or by action for

money had and received, to be brought by the Department

of Legal Affairs or any state attorney, or other prosecuting

officer, in the circuit courts in the name and on behalf of the

state; the same to be applied when collected as all other penal

forfeitures are disposed of.

Fla. Stat. Anno. § 849.085 (West Supp. 1993) states:

(1) Notwithstanding any other provision of law, it is not a

crime for a person to participate in a game described in this

section if such game is conducted strictly in accordance with

this section.

(2) As used in this section:

(a) “Penny-ante game” means a game or series of games or

poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or

mah-jongg in which the winnings or any player in a single

round, hand, or game do not exceed $10 in value.

(b) “Dwelling” means residential premises owned or rented

by a participant in a penny-ante game and occupied by such

participant or the common elements or recreational areas or a

condominium or mobile home park of which a participant in

a penny-ante game is a unit owner, or the facilities of an

organization which is tax exempt under §501(c)(7) of the

Internal Revenue Code. The term “dwelling” also includes a

college dormitory room or the common recreational area of a

college dormitory or a publicly owned community center owned

by a municipality or county.

(3) A penny-ante game is subject to the following restrictions:

66a

ganizations,“ and promotions in connection with the sale

(a) The game must be conducted in a dwelling.

(b) A person may not receive any consideration or commission

for allowing a penny-ante game to occur in his dwelling.

or any other fee for participation in the game.

(d) A person may not solicit participants by means of adver-

tising in any form, advertise the time or place of any penny-

ante game, or advertise the fact that he will be a participant

in any penny-ante game.

(e) A penny-ante game may not be conducted in which any

participant is under 18 years of age.

(4) A debt created or owed as a consequence of any penny-

ante game is not legally enforceable.

(5) The conduct of any penny-ante game within the common

elements or recreation area of a condominium or mobile home

park or the conduct of any penny-ante game within the dwell-

ing of an eligible organization as defined in subsection (2)

or within a publicly owned community center owned by a

municipality or county creates no civil liability for damages

arising from the penny-ante game on the part of a condo-

minium association, mobile home owner’s association, dwelling

owner, or municipality or county or on the part of a unit

owner who was not a participant in the game.

15 Fla. Stat. Anno. § 849.0935 (West Supp. 1993) states:

(1) As used in this section, the term:

(a) “Drawing by chance” or “drawing” means an enterprise

in which, from the entries submitted by the public to the

operator of the drawing, one or more entries are selected

by chance to win a prize. The term “drawing” does not in-

clude those enterprises commonly known as “matching,” “in-

stant winner,” or “preselected sweepstakes,” which involve the

distribution of winning numbers, previously designated as such,

to the public.

(b) “Operator” means an organization qualified under 26

U.S.C. §501(c) (3), and its agents, officers, or employees,

which promotes, operates, or conducts a drawing by chance.

(2) The provision of § 849.09 shall not be construed to pro-

hibit an organization qualified under 26 U.S.C. § 506(c) (3)

67a

from conducting drawings by chance, provided the operator

has complied with all applicable provisions of chapter 496.

(3) All brochures, advertisements, notices, tickets, or entry

blanks used in connection with a drawing by chance shall

conspicuously disclose:

(a) The rules governing the conduct and operation of the

drawing.

(b) The full name of the organization or operator, and its

principal place of business.

(ec) The source of funds used to award cash prizes or to pur-

chase prizes,

(d) The date, hour, and place where the winner will be chosen,

unless the brochures, advertisements, notices, tickets, or entry

blanks are not offered to the public more than 8 days prior

to the drawing.

(4) It is unlawful for any operator who, pursuant to the

authority granted by this section, promotes, operates, or con-

ducts a drawing by chance:

(a) To design, engage in, promote, or conduct any drawing

in which the winner is predetermined by means of matching,

instant win, or preselected sweepstakes or otherwise or in

which the selection of the winners is in any way rigged;

(b) To require an entry fee, payment, proof of purchase, or

contribution as a condition of entering the drawing or of

being selected to win a prize;

any entry or to discriminate in any manner between entrants

who gave contributions to the operator and those who did not

give such contributions;

(d) To fail to promptly notify, at the address set forth on

the entry blank, any person whose entry is selected to win,

of the fact that he has won;

(e) To fail to award all prizes offered in the manner and at

the time stated; and

(f) To print, publish, or circulate literature or advertising

material used in connection with the drawing which is false,

deceptive, or misleading.

(5) Any operator who engages in any act or practice in vio-

lation of this section is guilty of a misdemeanor of the second

degree, punishable as provided in § 775.082 or § 775.083. How-

68a

of consumer goods.”

These wide-ranging statutory prohibitions are not the

only evidence of the State’s public policy toward gam-

ever, any operator or other person who sells or offers for sale

in this state a ticket or entry blank for a raffle or other draw-

ing by chance, without complying with the requirements of

paragraph (8) (d), is guilty of a misdemeanor of the second

degree, punishable by fine only as provided in § 775.083.

(6) This section does not apply to the state lottery operated

pursuant to chapter 24.

16 Fla. Stat. Anno. § 849.094 (West Supp. 1993) states in pertinent

part:

(1) As used in this section, the term:

(a) “Game promotion” means, but is not limited to, a con-

test, game of chance, or gift enterprise, conducted within or

throughout the state and other states in connection with the

sale of consumer products or services, and in which the ele-

ments of chance and prize are present. However, “game pro-

motion” shall not be construed to apply to bingo games con-

ducted pursuant to § 849.0931.

(b) “Operator” means any person, firm, corporation, or asso-

ciation or agent or employee thereof who promotes, operates,

or conducts a game promotion, except any charitable nonprofit

organization.

(2) It is unlawful for any operator:

(a) To design, engage in, promote, or conduct such a game

promotion, in connection with the promotion or sale of -con-

sumer products or services, wherein the winner may be pre-

determined or the game may be manipulated or rigged so as to:

1. Allocate a winning game or any portion thereof to

certain lessees, agents, or franchises; or

2. Allocate a winning game or any part thereof to a

particular period of the game promotion or to a particular geo-

graphic area;

(b) Arbitrarily to remove, disqualify, disallow or reject any

entry;

(d) To print, publish, or circulate literature or advertising

material used in connection with such game promotions which

is false, deceptive, or misleading; or

(e) To require an entry fee, payment, or proof of purchase

as a condition of entering a game promotion.

69a

bling. The State’s voters have twice rejected referenda

which would have legalized casino gambling. In 1986,

the most recent referendum, the Florida electorate ap-

proved the State lottery by a two-to-one margin but re-

jected casino gambling by the same margin. (Defend-

ants’ Motion for Summary Judgment, Ex. #3). In ad-

dition, the Florida Legislature has failed to pass several

bills over the past few years which would have permitted

charity casino night activities. (Joint Pretrial Stipulation

at 9, § 20).

As noted above, the permission of parimutuel betting

and the operation of the State lottery indicates that some

Class III activities are not repugnant to the State. How-

ever, both the Legislature and the State electorate have

evinced their unwillingness to allow all but a few forms

of Class III activities and those which are allowed are

subject to strict regulation. With this in mind, we turn

now to the Tribe’s argument that the State in fact permits

precisely those Class III activities about which the State

refused to negotiate.

The Tribe first argues that the failure to prosecute

casino nights held by some Florida charities reflects the

State’s permission of casino gambling. The following

facts are not in dispute. Over the past three years, cer-

tain Florida charities have conducted casino or Las Vegas

nights. These events include the use of blackjack tables,

roulette wheels, crap tables, and other casino-like equip-

ment. The events’ patrons make a contribution to the

sponsoring charitable organization and are given casino-

like chips to be used to play the available casino-style

games. At the end of the evening, the players may then

use their chips to purchase or bid on gifts which have

been donated to or purchased by the charity. (Joint Pre-

trial Stipulation at 8, 4 17). The Tribe submitted a list

under seal of twenty-nine casino nights held during the

period 1990-1992. Of these events, fifteen were held in

Broward County, four in Dade County, six in Palm Beach

70a

County, and one in both Collier and Martin Counties.”

On March 23, 1993, the Tribe submitted a list of four

more such events held in Broward County.

Additionally, The Florida Attorney General’s office has

had ten to fifteen calls about charitable casino nights _

within the past four years, asking about events where

there would be casino-like gambling. The Attorney Gen-

eral’s office received information regarding names of firms

offering to sponsor these events and passed that informa-

tion to the appropriate local states’ attorneys offices. The

Attorney General’s office never learned if any action

was taken at the local level and did not follow up to

determine if anything illegal was discovered. (Joint Pre-

trial Stipulation at 8, 4 18).

On July 22, 1991, the Florida Attorney General wrote

to each of the twenty State Attorneys informing them

of the Tribe’s compact request and stating:

17 To obtain this list, the Tribe initially filed a motion to compel,

and later a renewed motion to compel, against the promoter of

these events. The Court referred these motions to United States

Magistrate Judge Ted E. Bandstra to resolve. On November 6,

1992, Magistrate Judge Bandstra granted the Tribe’s renewed

motion to compel. Subsequently, the Tribe and the events’ pro-

moter reached an agreement whereby the list of the events was

filed under seal with the Court on November 27, 1992, pursuant

to the Joint Stipulation of Resolution of Seminole Tribe of Florida’s

Motion to Compel and Plaintiff’s Renewed Motion to Compel Testi-

mony and Production from [the Promoter] and Withdrawal of

Motion.

In the Tribe’s Notice of Filing Under Seal a List of 29 Charitable

Las Vegas Night Events accompanying the actual list, the Tribe

indicated that in his order of November 6, 1992, Magistrate Judge

Bandstra’s found that the promoter faced no threat of prosecution

based on the disclosure of the list of casino night events. We as-

sume that the Tribe points this out to support its contention that

a State Attorney’s failure to prosecute casino night events consti-

tutes permission of casino gambling. The promoter filed. an objec-

tion to the characterization of Magistrate Judge Bandstra’s order.

We specifically disregard any suggestions in the Tribe’s Notice,

and take notice only of the contents of the list filed under seal.

Tila

{The Tribe] may also attempt to establish full

fledged gambling casinos. The Seminoles justify

these proposed activities in part on the fact that

“casino nights” or “Las Vegas nights” are openly

conducted by various charitable and non-profit or-

ganizations in Florida despite the clear prohibition

against such activity outlined in Chapter 849, Flor-

ida Statutes (1989). Of great concern to me is the

perception among some members of the law enforce-

ment community, including prosecutors, that Casino

Night or Las Vegas Night activities are lawful. This

is simply not true. The people of Florida have re-

peatedly rebuffed attempts to legitimize casino type

gambling.

On at least two occasions prior to the State Attorney

General’s letter, State Attorneys had written letters pro-

viding opinions that permit casino or Las Vegas nights

under certain circumstances. The above quoted letter

from the Attorney General was prompted by one of those

State Attorney letters. The Attorney General received

responses from three other State Attorneys agreeing with

and supporting the letter’s statement that casino night ac-

tivities are illegal. (Joint Pretrial Stipulation at 8, 4 18).

The Attorney General’s office, both present and past, has

consistently taken the position, through formal and in-

formal opinions, that casino night activities are illegal.

(Joint Pretrial Stipulation at 8, 4 18.1). The parties have

stipulated that the casino night activities described above

are not generally prosecuted due to budgetary and man-

power constraints and the exercise of prosecutorial dis-

cretion on the part of state attorneys. (Joint Pretrial Stip-

ulation, 4 21).

The Tribe has argued that the failure to prosecute

charitab'e casino nights by local state attorneys is analo-

gous to the situation in Mashantucket supra. We disagree.

The Tribe is correct that the Mashantucket case centered

on the operation of casino night activities by charitable

72a

organizations in Connecticut. However, in that case, Con-

necticut, unlike Florida, officially sanctioned the opera-

tion of casino nights by way of statute. In contrast, the

Tribe relies only on the discretionary decision not to

prosecute sporadic casino night activities to evince the

State’s permission of casino gambling activities, notwith--

standing the State Legislature’s clear prohibitory declara-

tion in the promulgation of its penal code.

The prosecutorial discretion involved in the enforce-

ment of crimes is certainly one component in a state’s

public policy. The capacity to discern public policy, how-

ever, from the discretionary exercise of prosecutorial

power is exceedingly difficult. The undisputed facts evi-

dencing a strong public policy against casino-type activi-

ties cannot be substantially undermined by occasional and

sporadic decisions made on a local level not to prosecute

a discrete casino night conducted by a charity, due to

manpower, financial constraints, and higher criminal pri-

orities. First, the State Attorney General has emphasized

repeatedly and over extended periods of time, in formal

and informal opinions, that these activities remain il-

legal **, and the Florida penal code is plain and unam-

18 For example, in response to the question of whether a “Law

[sic] Vegas” party staged by a fraternal organization for the bene-

fit of a crippled children’s home was legal, the State Attorney Gen-

eral responded:

The gambling laws make no exceptions in favor of fraternal

orders of persons who participate in gambling schemes oper-

ated by such orders, even when the ultimate beneficiary is a

worthy one. Said laws bear upon everybody equally and take

no cognizance of who is to benefit from the operation of gam-

bling schemes.

Therefore your question is answered in the negative because

in my opinion the described “Las Vegas” party would violate

the criminal laws of Florida.

Op. Att’y. Gen. 056-20 (1956). (Exh. I, Defendants’ ‘Motion for

Summary Judgment). As noted above, the State Attorney General

recently reaffirmed this position in a letter sent out to all State

73a

biguous on its face prohibiting these activities. Indeed,

the parties have stipulated that the “Attorney General’s

office, both present and past, has consistently taken the

position through formal and informal opinions that casino

night activities are illegal.” (Joint Pretrial Stipulation at

p. 9, 4 18.1).

Second, the State electorate and its representatives have

continuously rejected attempts to legalize casino gambling.

(Joint Pretrial Stipulation at 9, 4 20). For example, the

State’s voters twice rejected referenda to legalize casino

gambling. Most recently, in 1986, a proposed amend-

ment to the Florida Constitution to allow casino gambling

in hotels of 500 rooms or more was defeated by a two-to-

one margin. (Defendant’s Motion to Summary Judgment,

Ex. 9). In addition, charity casino nights have also been

the subject of several bills in the Florida legislature, and

none of the bills have passed. (Joint Pretrial Stipulation

at 9, 4 20).

Finally, desuetude has been reejected as a general theory

of legislation by the Florida Supreme Court. In State

v. Egan, 287 So.2d 1 (Fla. 1973), the defendant was

charged with the common-law offense of nonfeasance. The

defendant was indicted pursuant to a Florida statute which

explicitly adopted English common law in relation to

crimes, with certain exceptions, as the law of the State.

The trial court ruled that the statute in question was

unconstitutional on the grounds of vagueness and obsoles-

cence, and the Florida Supreme Court reversed. It is the

Florida Supreme Court’s discussion of the argument re-

Attorneys. This letter, written in reaction to two opinions from

local state attorneys that such activities were legal, states:

Of great concern to me is the perception among some mem-

bers of the law enforcement community, including prosecu-

tors, that Casino Night or Las Vegas Night activities are

lawful. This is simply not true. The people of Florida have

repeatedly rebuffed attempts to legitimize casino type gambling.

(Joint Pretrial Stipulation at 9, 7 18).

74a

garding the obsolescence of the state statute which is rele-

vant to the instant case. In rejecting the argument that

the infrequent use of common law crimes to prosecute in-

dividuals had caused those crimes to cease to exist, the

Florida Supreme Court observed:

Our answer to this line of argument is that a legisla-

tive enactment may be repealed only by further legis-

lation and not by time or changed conditions. .. .

Simply stated, the general rule is that a statute is

not repealed by nonuse. The argument set forth in

the order of the lower court may be a cogent one

when addressed to the legislature, yet courts of jus-

tice cannot and do not recognize such a policy as

a basis for their decision.

287 So.2d at 7. The Tribe’s argument that the failure of

local prosecutors to prioritize and prosecute sporadic and

apparently infrequent casino night activities converts an

activity expressly prohibited by the penal code of the

State into one which is permitted by the public policy

of the State resembles the argument presented to and

rejected by the Florida Supreme Court.

The record before the Court consists of a total of some

thirty-three events held in four countries over a three

year period. In a state with sixty-seven counties and

more than thirteen million inhabitants, we do not believe

that this evinces a public policy permitting casino gam-

bling, especially when contrasted with the State’s unam-

biguous penal statutes, the consistent prohibitory opinions

of the State Attorney General over time, and the repeated

votes of the State’s electorate and its legislators prohibit-

ing and rejecting casino gambling. The most that can

be said regarding charitable casino night activities in

Florida is that some State Attorneys in some counties

on some occasions have chosen to prosecute other crimes _

as having higher priority, rather than the sporadic casino

night event, based on the resources available to them.

75a

Based on the record before us, and viewing the evidence

in the light most favorable to the Tribe, we do not be-

lieve that the sporadic decision to decline to prosecute

the occasional casino night in a handful of Florida coun-

ties can be said to constitute the State’s permission of

casino gambling. The Florida Legislature has plainly

pronounced the public policy of the State, the people of

the State have recently spoken twice, and the State At-

torney Generals have repeatedly and consistently pro-

nounced in formal and informal opinions that such casino

night activities are illegal. The overwhelming weight of

the evidence presented does not support the Tribe’s posi-

tion.

The Tribe also points to the fact that cruise ships

docked in Florida possess gambling devices and embark

passengers from Florida ports for the purpose of provid-

ing casino gaming for those passengers and that this too

evinces a public policy toward casino gambling which

is regulatory, rather than prohibitory, in nature. Several

of these ships provide only day cruises with no destina-

tion other than the high seas for gambling purposes. It

is these cruises on which the Tribe grounds its argument.

While Fla. Stat. Anno. §$ 849.231(1) (West 1976) pro-

hibits the possession of gambling paraphernalia, the ships

at issue are expressly exempted from the prohibition by

Fla. Stat. Anno. § 849.231(3) (West Supp. 1993). (Joint

Pretrial Stipulation at 9, 419). However, notably no

gambling occurs nor is it permitted within the territorial

bounds of the State.

The Tribe argues nevertheless that the State’s collec-

tion of a tax on these cruises manifests a public policy

of permitting casino gambling. The State collects the

tax pursuant to Fla. Stat. Anno. § 212.02(1) (West Supp.

1993). That statute provides in pertinent part:

The term “admissions” means and includes the net

sum of money after deduction of any federal taxes

for admitting a person or vehicle or persons to any

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place of amusement, sport, or recreation or for the

privilege of entering or staying in any place of

amusement, sport, or recreation, including, but not

limited to, theaters, outdoor theaters, shows, exhibi-

tions, games, races, or any place where charge is

made by way of sale of tickets, gate charges, seat

charges, greens fees, participation fees, entrance fees,

or other fees or receipts of anything of value meas-

ured on an admission or entrance or length of stay

or seat box accommodations in any place where

there is any exhibition, amusement, sport, or recre-

ation...

Section 212.04 provides, in pertinent part:

(1)(a) It is hereby declared to be the legislative

intent that every person is exercising a taxable privi-

lege who sells or receives anything of value by way

of admissions.

(b) For the exercise of such privilege, a tax is levied

at the rate of 6 per cent of sales price, or the actual

value received from, such admissions, which 6 per

cent shall be added to and collected with all such

admissions from the purchaser thereof. . .

Thus, the State collects a tax on these cruises pursuant

to its broadly applicable admissions tax, a tax which

applies to the many forms of amusement, sport, or recre-

ation based in the State. The admissions tax is charged

to customers of these cruises because these excursion

tours are not considered “a transportation service.”

(Plaintiff's Supplemental Motion for Summary Judgment

at 6). It should be observed, however, that the tax is

not leveled at the gambling enterprise per se, i.e., the

amount of tax collected is wholly independent of the

amount of gambling, if any, done on the high seas by an

individual passenger. Indeed, a passenger who does not

participate in the gambling activities offered onboard

pays the same admissions tax as the passenger who does

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participate. Moreover, the Tribe’s interpretation of this

tax in relation to the IGRA’s requirements is overly

broad. Each case interpreting the IGRA which found

state permission of a Class III gaming activity presented

some form of explicit legislative approval of the activity

within the state’s territory. The Tribe’s theory would

seem to place an affirmative duty on a state to eradicate

means by which its citizens could legally gamble in other

jurisdictions in order to demonstrate a public policy pro-

hibiting Class III activities.® For the same reason, the

Tribe’s argument that the State’s continued allowance

of these cruises to use its ports must fail, especially in

light of the fact that no gambling occurs within the State’s

boundaries. Thus, even when viewing the evidence before

the Court in the light most favorable to the Tribe, we

conclude that these cruises by foreign flag vessels cannot

be fairly said to constitute permission of casino gambling

by the State within the State and within the ambit of the

IGRA.

Finally, we turn to the Tribe’s argument that the State

permits machine and computer-assisted gaming. The

State’s position is that Fla. Stat. Anno. §§ 849.15 and

849.16 (West & Supp. 1993) outlaw certain machines

commonly known as slot machines. Therefore, this type

of machine and computer-assisted gaming need not by

[sic] included in the Tribe-State compact negotiations. The

Tribe asserts that the machines used at some parimutuel

facilities and in the operation of the Florida Lottery

fall within the definition of Fla. Stat. Anno. § 849.16

19 A hypothetical may be illustrative. Imagine that an individual

who owns casinos in New Jersey operated an airline with sched-

uled flights from Miami to Atlantic City for the sole purpose of

bringing players to his halls. Passengers who bought their air-

plane tickets in Florida would pay the applicable sales tax to the

State. Under the Tribe’s theory, this would constitute the State’s

permission of gambling under the IGRA, a conclusion which is

supported by neither the language of the IGRA nor the cases

interpreting that statute.

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(West Supp. 1993), and therefore the State “permits

such gaming for any purpose by any person, organization

or entity” within the meaning of 25 U.S.C. § 2710(d)

(1)(B). The relevant statutes state in pertinent part:

849.16 Machines or devices which come within in

provisions of law defined.—

(1) Any machine or device is a slot machine or

device within the provisions of this chapter if it is

one that is adapted for use in such a way that, as

a result of the insertion of any piece of money, coin,

or other object, such machine or device is caused to

operate or may be operated and if the user, by rea-

son of any element of chance or of any other out

come of such operation unpredictable to him, may:

(a) Receive or become entitled to receive any

piece of money, credit, allowance, or thing of value,

or any check, slug, token, or memorandum, whether

of value or otherwise, which may be exchanged for

any money, credit, allowance, or thing of value

or which may be given in trade;.. .

849.15 Manufacture, sale, possession, etc., of coin-

operated devices prohibited.—

It is unlawful:

(1) To manufacture, own, store, keep, possess,

sell, rent, lease, let on shares, lend or give away,

transport, or expose for sale or lease, or to offer to

sell, rent, lease, let on shares, lend or give away, or

permit the operation of, or for any person to perinit

to be placed, maintained, or used or kept in any

room, space, or building owned, leased or occupied

by him or under his management or control, any

slot machine or device of any part hereof; or

(2) To make or to permit to be made with any

person any agreement with reference to any slot

machine or device, pursuant to which the user

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thereof, as a result of any element of chance or other

outcome unpredictable to him, may become entitled

to receive any money, credit, allowance, or thing of

value or additional chance or right to use such ma-

chine or device, or to receive any check, slug, token

or memorandum entitling the holder to receive any

money, credit, allowance or thing of value.

In Eccles v. Stonz, 183 So. 628 (Fla. 1938) and Deeb

v. Stoutamira, 53 So.2d 873 (Fla. 1951), the Florida

Supreme Court offered some guidance in the interpre-

taiton of these statutes. In Eccles, the Florida Supreme

Court reviewed the history of the two statutes. In 1935,

the Florida Legislature legalized “all sorts of slot ma-

chines or coin-operated gambling devices,” with the pro-

vision that the vote by the majority of a county’s elec-

torate could prohibit their use within that county. 183

So. at 631. As noted by the Court,

Within two years the operation of slot machines in

Florida had become so obnoxious to the citizens of

this State that the people of a great. majority of the

counties in the State had voted overwhelmingly to

prohibit the operation of all slot machine devices

licensed under the 1935 Act being operated there-

after in their respective counties, and a great ma-

jority of the members of the legislature of 1937 were

pledged to their constituency to enact laws which

would abolish the operation of slot machines in

Florida. The opposition to slot machines was the

direct result of the baneful and destructive effect

which the operation of those machines had had upon

the morals of the people of Florida of all ages and

classes. It is a matter of common knowledge, of

which we must take judicial cognizance, that the

lure to play the slot machine had become so great

as to undermine the morals of many and to lead to

the commission of or the indulgence in vices and

crimes to procure the coins with which to play the

machines.

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So the legislature of 1937 carried out the mandate

of the majority of the people of the State, and the

members their pledges to their constituency, to pass

acts which would prohibit the operation of coin-

operated gambling devices in this State and enacted

Chapter 18143 [i.e., the instant statutes].

It is also a matter of common knowledge that

pursuant to the passage of that act the popular slot

machine with its set of pictured wheels, its alluring

jackpot and its pull lever, generally known as the

one-armed bandit, faded away from the publi

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