Amicus Curiae Brief — Seminole Tribe of Fla. v. Florida

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No. 94-12

In the Supreme Court of the

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA, PETITIONER

STATE OF FLORIDA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

DREW S. DAYys, III

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

EDWARD J. SHAWAKER

ANNES. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

The Indian Gaming Regulatory Act, 25 U.S.C. 2710

(d)(7)(A)(i), provides federal courts with jurisdiction over

claims by Indian Tribes that States have failed to

negotiate gaming compacts in good faith. The questions

presented are:

1. Whether Ex parte Young, 209 U.S. 123 (1908),

permits a suit against the Governor of a State arising

from the State’s failure to negotiate (through the

Governor) an Indian gaming compact in good faith.

2. Whether Congress has authority under the

Constitution to abrogate a State’s immunity from a suit by

a Tribe for declaratory and ancillary injunctive relief

arising from the State’s failure to negotiate in good faith.

(I)

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‘ 1 28

TABLE OF CONTENTS

Page

Interest of the United States . . . . ... 1

rr 2

Summary of argument . . . . . . . e. 8

Argument:

The Eleventh Amendment does not preclude a suit by

an Indian Tribe against a State or its Governor under

the Indian Gaming Regulatory Act arising from the

State’s failure to negotiate a gaming compact in good

1111 11

A. The Tribe's suit against the Governor i is

permissible under Ex parte lung. .. 12

B. Congress has the power u. der the Constitution

to provide for a suit by an Indian Tribe against a

State for prospective relief arising from the State’s

failure to negotiate in good faith . ...... . 20

„ 30

TABLE OF AUTHORITIES

Cases:

Alabama v. Pugh, 438 U.S. 781 (1978) ...... . . . . 4. 25

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

6 . . . . . 20

Blatchford v. Native Village of Noatak, 501 U.S. 775

. 12, 26, 27, 28

California v. Cabazon Band of Mission Indians,

Dee 2

Cheyenne River Sioux Tribe v. South Dakota,

3 F.3d 273 (Sth Cir. 1993) . .. ... . . . .... . . . . . . 14

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163

81961 —.—ů—&'—«))— —ô . 7, 22, 29

County of Oneida v. Oneida Indian Nation,

e 23, 30

Edelman v. Jordan, 415 U.S. 651 (1974). 13

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ............ 20, 21, 29

(II

Cases—Continued: Page

Garcia v. San Antonio Metro. Transit Auth.,

OR EEL Ss a ae 29-30

Green v. Mansour, 474 U.S. 64 (1985) .. . . . . 13

Hans v. Louisiana, 134 U.S. 1 (1890) . 12

Hess v. Port Authority Trans-Hudson Corp.,

0, 25, 26

Home Tel. & Tel. Co. v. City of Los Angeles,

CI ae eee a aD 18

Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis.

1991), appeal dismissed, 957 F.2d 515 (7th Cir.),

cert. denied, 113 S. Ct. 91 (1992) . . 14

Mashantucket Pequot Tribe v. Connecticut, 913 F.2d

1024 (2d Cir. 1990), cert. denied, 499 U.S. 975

0 ⁰ —— wꝛỸ A 14

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

. — . ‚—g 27

Milliken v. Bradley, 433 U.S. 267 (1977) . 13

NLRB v. Insurance Agents’ Int! Union, 361 U.S. 477

. — ̃ m— —ä—— 16

Papasan v. Allain, 478 U.S. 265 (1986) . 13

Pennhurst State School & Hosp. v. Halderman,

GD UE GD Ge centlictedeieteertemsibtanniiedicetcion 13, 18, 25

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

1K A 7, 9, 22, 23, 26

Principality of Monaco v. Mississippi,

Dee. / xxx 12, 16

Puerto Rico v. Brunstad, 483 U.S. 219 (1987) ............... 13

Quern v. Jordan, 440 U.S. 332 (1979) . . . 13, 17

Rumsey Indian Rancheria of Wintun Indians v. Wilson,

een 14

Sault Ste. Marie Tribe of Chippewa Indians v. Michigan,

800 F. Supp. 1484 (W.D. Mich. 1992), appeal dismissed,

LLL cccciccsiinciititiprecpanstiidiincetenocdintitin 14

Spokane Tribe of Indians v. Washington, 28 F.3d 991

nn 22

Cases—Continued: Page

United States v. Kagama, 118 U.S. 375 (1886) .............. 22, 24

Verlinden B. V. v. Central Bank of Nigeria,

e ...... 26

Will v. Michigan Dept of State Police, 491 U.S. 58

0 — ——0ͤ ͤ —— 18

Williams v. Lee, 358 U.S. 217 (1959) ... . . . . . . 22

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)....... 23, 27

Yavapai-Prescott Indian Tribe v. Arizona, 796 F. Supp.

A —— 14

Young, Ex parte, 209 U.S. 123 (1908) ................. 8, 11, 13, 16

Constitution, statutes and regulation:

e ũ ⁵«u mri: . —.— 23

Ie . 23

U.S. Const. :

Art. I, 88, Cl. 1 (Spending Clause . 17

Art. I, 88, Cl. 3:

, 2 ̃ ͤ—ͤ ———— 22, 24, 26

Indian Commerce Clause . 7, 10, 22, 23, 28

Interstate Commerce Clause 7, 9, 21, 23, 28

ITT TF deidctacccnsnmnintbinnssgnpsenentinessesseacinumnens 22

. 22, 30

neee /... 12

Amend. VI, Cl. 2 (Supremacy Clause 13

. 11, 29

. passim

D %. 18, 21

„ 21

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (Public Law

11 —ů—ůů—ů———————— 2

r 2

. 2

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 20006 1

1 ————————————j—ß5r—Ä

* Environmental Response, Compensation,

and Liability Act of 1980, 42 U.S.C. 9601 et seq. ............ 21

Foreign Sovereign Immunities Act of 1976,

K 26

Statutes and regulation—Continued: Page In the Supreme Court of the United States

Indian Gaming Regulatory Act, Pub. L. No. 100-497, OcTOBER TERM, 1994

102 Stat. 2467 (1988), 25 U.S.C. 2701 et 8e. 2

LI deccccccdncsecccccsttnssusenitlbidtiinientiindinentsons 2

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25 U.S.C. •2ꝛ‚ſrvu f — «0 2 IBE OF FLORIDA, PETITIONER

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ON WRIT OF CERTIORARI

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SED dc ccicrnnsicnntesndcinempeseninaiesiness 4, 9, 15

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II - 1, 4, 11, 20 BRIEF FOR THE UNITED STATES

III 6a cnc ccccistunccusdneneesiinnsabonuness 4, 20

25 U.S. C. 2710(d)(7)(B) (iii) .. . 4. 16, 20 AS AMICUS CURIAE SUPPORTING PETITIONER

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25 U.S.C. 2710(d)(7)(B)GII)CID) «2.2... .cecccceeereeeeeeeeeeeeeees 4

Oe Tee BD 5, 16 E ITED STATES

25 U.S. C. 27100 C TMB ꝰ 5 INTEREST OF THE UN .

Seon . sgsmniieuniveniniel 5 This case involves a challenge to the constitutionality

III cccnnccncensccccnnanscnscsussettanes 1, 5, 16 of a section of the Indian Gaming Regulatory Act (IGRA)

. r ͤ %0˙0»]Ä 2. 4 that provides for suits in federal court by an Indian Tribe

National Labor Relations Act, § 8(d), 29 U.S.C. 158(d) ones 16 arising from the failure by a State to negotiate in good

— * a 4 993 : faith concerning a tribal-state compact governing certain

} F. R. . ˙ a a ing on Indian land. See 25 U.S.C. 2710(d TXAM). The

Miscellaneous: Secretary of the Interior has substantial responsibilities

8. Rep. No. 446, 100th Cong., 2d Sess. (1988) — 28 under IGR A, including the authority to approve all tribal-

The Fedevalict Ne. 48 . Madioen) (C, Measiter of. state gaming compacts, to disapprove them in certain

0 ͤ 23 3 — when

a Tribe and a State are unable to conclude a compact. 25

U.S.C. 2T 100d) D) B)(vii), 2710(d)(8). In response to this

(1)

Court’s invitation, the Solicitor General filed a brief at the

petition stage expressing the views of the United States.

STATEMENT

1. In 1987, this Court held that neither Public Law 280

(Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, codified as

amended at 18 U.S.C. 1162 and 28 U.S.C. 1360) nor the

Organized Crime Control Act of 1970 (18 U.S.C. 1955)

authorized California to enforce its gaming laws against

Indian Tribes operating bingo and poker games on their

reservations, because the relevant state gaming laws were

“civil/regulatory” rather than “criminal/prohibitory” in

nature. California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987). That decision left much Indian gaming

unregulated by the States. Pet. App. 3a. At the same

time, federal law did not provide “clear standards or

regulations for the conduct of gaming on Indian lands.” 25

U.S.C. 2701(8). In an attempt to fill that void, Congress in

1988 enacted the Indian Gaming Regulatory Act (IGRA),

Pub. L. No. 100-497, 102 Stat. 2467, 25 U.S.C. 2701 et seq.

IGRA’s purpose is “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.” 25 U.S.C. 2702(1).

Congress simultaneously sought to “shield [Indian

gaming] from organized crime and other corrupting

influences, 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.” 25 U.S.C. 2702(2). To fulfill those

See also 25 U.S.C. 2701(5) (finding that “Indian tribes have the

exclusive right to regulate 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.”).

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purposes, IGRA divides gaming into three classes, each of

which is regulated differently.

Class I gaming, over which Indian Tribes exercise

exclusive regulatory control, consists of social games for

prizes of minimal value and traditional games engaged in

as part of tribal ceremonies. 25 U.S.C. 2703(6), 2710(a)(1).

Class II gaming consists of bingo, other games similar to

bingo (when played in the same location), and non-banking

card games. 25 U.S.C. 2703(7). Indian Tribes maintain

regulatory jurisdiction over class II gaming, see 25 U.S.C.

2710(a)(2), subject to the supervision of the National Indian

Gaming Commission (an entity within the Department of

the Interior). 25 U.S.C. 2704. An Indian Tribe may engage

in class II gaming if: (1) the State in which the gaming is

located “permits such gaming for any purpose by any

person, organization or entity,” (2) such gaming is not

prohibited on Indian lands by federal law, and (3) the

gaming is conducted pursuant to a tribal ordinance that

satisfies specified statutory requirements and is approved

by the Chairman of the Commission. 25 U.S.C. 2710(b).

Class III gaming, at issue here, is gaming that does not

fall within class I or class II, and includes banking card

games, casino games, slot machines, horse racing, dog

racing, jai alai, and lotteries. 25 U.S.C. 2703(8); 25 C. F. R.

502.4. Class III gaming is lawful only if it is located in a

State that permits such gaming, is authorized by a tribal

ordinance that satisfies the requirements for a class II

ordinance, and is “conducted in conformance with a Tribal-

State compact.” 25 U.S.C. 2710(d)(1). A tribal-state

compact may address such matters as standards for the

conduct of the gaming, the application of state or tribal

criminal and civil laws, assessments to defray the costs of

state regulation, taxation by the Tribe, and remedies for

breach of contract. 25 U.S.C. 2710(d)(3)(C). The Secretary

of the Interior is authorized to approve any tribal-state

compact and may disapprove such a compact only if it

violates IGRA, any other provision of federal law, or the

trust obligations of the United States to Indians. 25

U.S.C. 2710(d)(8).

To facilitate the formation of a tribal-state compact,

IGRA provides that, upon request by the Tribe, “the State

shall negotiate with the Indian tribe in good faith to enter

into such a compact.” 25 U.S.C. 2710(d)(3)(A). Congress

also provided for judicial consideration of a Tribe’s

allegation that a State has failed to fulfill that responsi-

bility. Specifically, “(t]he United States district courts

shall have jurisdiction 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

[regulating class III gaming] * * * or to conduct such

negotiations in good faith.” 25 U.S.C. 2710(d)(7A)(i). In

such a suit, the Tribe must initially introduce evidence

that a tribal-state compact has not been concluded and that

the State did not respond to the Tribe’s request to

negotiate or did not respond in good faith. 25 U.S.C.

2710(d)(7)(BXii). Once such evidence is introduced, “the

burden of proof shall be upon the State to prove that the

State has negotiated with the Indian tribe in good faith.”

Ibid. In determining whether a State has negotiated in

good faith, the district court may consider such factors as

the public interest, public safety, criminality, financial

integrity, and adverse economic impacts on existing

gaming. 25 U.S.C. 2710(d)(7)(B)\(iii 1). A State’s demand

for taxing authority is evidence of bad faith. 25 U.S.C.

2710(d)(7B)Gii)(ID.

If the district court finds that the State has failed to

negotiate in good faith, “the court shall order the State

and the Indian tribe to conclude such a compact within a

60-day period.” 25 U.S.C. 2710(d)(7)(BXiii). If they do not

do so, the Tribe and the State each must submit to a

mediator appointed by the district court a proposed

compact that represents “their last best offer.” 25 U.S.C.

2710(d)(7)(B)(iv). The mediator then must select the

compact “which best comports with the terms of [IGRA]

and any other applicable Federal law and with the findings

and order of the court.” Jbid. Once the mediator submits

the selected compact to the State and the Tribe, the State

has 60 days in which to consent to that compact. 25 U.S.C.

27 100dq)⁰ E) and (vi).

If the State consents to the compact selected by the

mediator, it is treated as a tribal-state compact entered

into by agreement. 25 U.S.C. 2710(d)(7(B)(vi). If the State

does not consent, “the mediator shall notify the Secretary

{of the Interior] and the Secretary shall prescribe, in

consultation with the Indian tribe, procedures [for class

III gaming] * * * which are consistent with the proposed

compact selected by the mediator * * *, the provisions of

[IGRA], and the relevant provisions of the laws of the

State.” 25 U.S.C. 2710(d)(7)(B (vii).

2. In January 1991, the Seminole Tribe of Florida

wrote to the Governor of Florida requesting the State to

commence negotiations for a compact governing class III

gaming operations proposed by the Tribe. Pet. App. 44a.

The State was willing to negotiate concerning the forms

of class III gaming specifically permitted by state law:

ecard games, raffles, and pari-mutuel wagering on dog

racing, horse racing, and jai alai. The State refused,

however, to negotiate over forms of gaming prohibited

by state law, such as casino gambling. For that reason,

negotiations broke down. Id. at 45a-46a.

In December 1991, the Tribe filed suit in the United

States District Court for the Southern District of Florida

against the State and its Governor, alleging that they had

failed to conduct good faith negotiations as required by

IGRA. J.A. 18a. The Tribe specifically alleged that by

refusing to negotiate concerning casino gambling, the

State had breached its duty under IGRA to negotiate

concerning “such gaming” as the State “permits * * *

for any purpose by any person, organization or entity.” 25

U.S.C. 2710(d)(1)(B). The Tribe asserted that the phrase

“such gaming” should be interpreted generically rather

than in a game-specific way, so that the State’s allowance

of some forms of class III gaming required the State

to negotiate concerning all forms of class III gaming,

including casino gambling. Pet. App. 54a-55a. The Tribe

also asserted that Florida “permits” casino gambling

because it fails to enforce its gaming laws against

charities that hold casino nights. Jd. at 6la. The Tribe

sought a declaratory judgment that IGRA requires the

State to negotiate concerning casino gambling; an order

requiring the State, acting through the Governor, to

conclude a tribal-state compact within 60 days; and

appointment of a mediator to resolve any impasse. J.A.

18a-19a.

The State and the Governor filed a motion to dismiss the

complaint on the ground that the Eleventh Amendment

barred the Tribe’s suit. Pet. App. 26a, 28a. The district

court denied the motion to dismiss. It held that “Congress

did in fact abrogate the States’ immunity when it enacted

IGRA” and that “pursuant to the Indian Commerce

Clause, Congress plainly had the constitutional power to

abrogate.” Id. at 30a.

3. The court of appeals reversed the district court’s

order denying the motion to dismiss. Pet. App. 1a-25a.

The court agreed with the district court that “Congress

intended to abrogate the states’ sovereign immunity,”

reasoning that “unless Congress intended to abrogate the

states’ immunity,” IGRA’s grant of jurisdiction over

claims that a State has not negotiated in good faith “would

be of no effect.” Id. at 14a-15a.

The court of appeals went on to hold, however, that

Congress lacks power under the Indian Commerce Clause

of the Constitution (Art. I, § 8, Cl. 3) to abrogate a State’s

immunity from suit. The court acknowledged that

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), held

that Congress has the power under the Interstate

Commerce Clause to abrogate a State’s immunity from

suit. Pet. App. 18a-20a. The court concluded, however,

that Union Gas was distinguishable for two reasons. Id.

at 20a-22a.

First, the court noted that although Congress’s

“plenary powers under the Interstate Commerce Clause

* * * allow Congress to place limits on the states in order

to maintain] free trade among the States[,]’ * * * ‘the

central function of the Indian commerce clause is to

provide Congress with plenary power to legislate in the

field of Indian affairs.’” Pet. App. 2la (quoting Cotton

Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)).

For that reason, the court concluded, “the unique abro-

gation power afforded Congress under the Interstate

Commerce Clause in Union Gas cannot be extended to the

Indian Commerce Clause.” Pet. App. 21a. Second, the

court of appeals observed that “the Court has allowed

federal jurisdiction over states only when the states

partake in an activity typical of private individuals.” Id. at

22a. Viewing the negotiations contemplated by IGRA as

within “the typical realm of state authority,” the court

concluded that “the principles of federalism and sovereign

immunity exemplified in the Eleventh Amendment prevent

Congress from abrogating the states’ immunity.” Ibid.

The court of appeals next held that Ex parte Young,

209 U.S. 123 (1908), does not permit a suit against the

Governor of a State to require good faith negotiations

under IGRA. The court believed that, under IGRA, a

State has discretion over the terms of a compact as well as

the decision whether to negotiate, and that the Ex parte

Young doctrine “cannot be used to compel an executive

official to undertake a discretionary task.” Pet. App. 23a-

24a. The court also concluded that Ex parte Young was

inapplicable because the Tribe’s suit “is, in reality,

against the state.” Pet. App. 23a, 24a. The court explained

that 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.).” Jd. at 24a. The court therefore re-

manded with directions to dismiss the suit. Id. at 25a.”

SUMMARY OF ARGUMENT

A. The Tribe’s suit against the Governor is permissible

under Ex parte Young, 209 U.S. 123 (1908). In Ex parte

Young, the Court held that a federal court could award

prospective relief to require a state official to comply with

federal law. The Court has repeatedly reaffirmed that

holding. In this case, the Tribe alleged that the Governor

has failed to negotiate a gaming compact in good faith as

2 While the appeal from the order denying the motion to dismiss the

complaint was pending in the court of appeals, the district court

rejected the Tribe’s claims on the merits and entered final judgment in

favor of the State and its Governor. Pet. App. 43a-83a. The district

court held that IGRA’s duty to negotiate is game-specific, and that the

State’s operation of a lottery and its allowance of pari-mutuel

wagering therefore did not require the State to bargain concerning

casino gambling. Id. at 55a-58a. The court also held that the exercise

of prosecutorial discretion not to enforce gaming laws against charities

that hold casino nights does not mean that the State “permits” such

gaming within the meaning of IGRA. Id. at 69a-75a. The Seminole

Tribe has appealed that judgment, but that appeal has been stayed

pending the decision by this Court on the Eleventh Amendment issue.

Pet. App. 84a.

required by the Indian Gaming Regulatory Act (IGRA),

and it sought declaratory and injunctive relief to require

the Governor to comply with that obligation. If a federal

court were to agree that the Governor had failed to

negotiate in good faith as required by federal law, an award

of declaratory relief to that effect and an order requiring

the Governor to participate in IGRA’s narrowly tailored

remedial procedures would reflect a straightforward

application of Ex parte Young.

The court of appeals failed to rely on Ex parte Young on

the ground that its rationale cannot be invoked to compel a

discretionary act. Under IGRA, however, once a Tribe

requests a State to negotiate, “the State shall negotiate

with the Indian tribe in good faith.” 25 U.S.C. 2710(d)

(3)(A) (emphasis added). That language creates a manda-

tory duty to negotiate in good faith.

The court also concluded that Ex parte Young was

inapplicable because the Tribe’s suit is really against the

State. But the Tribe named the Governor as a defendant

and has sought relief against him. And while the State is

the real party in interest, that is true in all Eæ parte

Young suits. Because a State can only negotiate through

its officials, the obligation under IGRA to negotiate must

be understood to fall upon the state officials who have

authority under state law to negotiate. In this case, the

Governor has such authority. Accordingly, under Ex

parte Young, a suit for prospective relief may be brought

against the Governor if he has not complied with his

obligation to negotiate in good faith.

B. The Tribe’s suit against the State is not precluded

by the Eleventh Amendment because Congress consti-

tutionally abrogated the State’s immunity from suit. In

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), the

Court held that Congress has the power under the

Interstate Commerce Clause to authorize federal courts

to award monetary relief against the States. Congress’s

power to regulate Indian commerce is rooted in the same

Clause as its power to regulate interstate commerce, and

it is at least as broad in scope. Congress therefore also

has the power under the Indian Commerce Clause to

abrogate a State’s immunity from suit.

The IGRA provision at issue here stands on an even

firmer constitutional footing than the provision at issue in

Union Gas. First, Congress’s powers are augmented in

this context by its special responsibility and authority

with respect to the Indian Tribes. Second, IGRA does not

authorize monetary relief. Instead, it does no more than

authorize the kind of relief against the State that Ex parte

Young authorizes against a state official. Third, IGRA

affords a cause of action only to Indian Tribes. Suits

brought by another sovereign do not implicate the values

underlying the Eleventh Amendment to the same extent

as suits by individuals. Finally, the provision at issue

here is part of a broader scheme that is designed in part to

enhance the States’ power to regulate Indian gaming.

Congress believed that granting additional authority to

the States would be inequitable to the Tribes, unless the

Tribes could enforce the States’ obligation to negotiate in

good faith.

The court of appeals sought to distinguish Union Gas

on the ground that Congress’s power to regulate Indian

commerce serves different purposes than does Congress’s

power to regulate interstate commerce. The critical point

in Union Gas, however, was that the States ceded a

portion of their sovereignty when they gave Congress

plenary power to regulate interstate commerce. In

adopting the Constitution, States also ceded whatever

authority they had over Indian affairs.

The court of appeals also sought to limit Union Gas to

activities that do not fall within the traditional sphere of

state authority. But the Court in Union Gas did not

mention that factor in its analysis, and this Court has

squarely rejected such an approach in the Tenth

Amendment context. In any event, negotiating a compact

with a Tribe is not a traditional state activity. Histori-

cally, States have reached agreements with Tribes under

federal auspices, and IGRA is consistent with that

tradition.

ARGUMENT

THE ELEVENTH AMENDMENT DOES NOT

PRECLUDE A SUIT BY AN INDIAN TRIBE AGAINST

A STATE OR ITS GOVERNOR UNDER THE INDIAN

GAMING REGULATORY ACT ARISING FROM THE

STATE’S FAILURE TO NEGOTIATE A GAMING

COMPACT IN GOOD FAITH

The Indian Gaming Regulatory Act (IGRA) provides

that “(t]he United States district courts shall have

jurisdiction 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 [regulating class III

gaming] * * * or to conduct such negotiations in good

faith.” 25 U.S.C. 2710(d)(7)(A)(i). Relying on that pro-

vision, the Seminole Tribe filed suit against the State of

Florida and its Governor alleging that they had not

engaged in good faith negotiations. The Tribe sought

declaratory relief and an order directing the State,

through its Governor, to enter into good faith negoti-

ations. The court of appeals held that the Eleventh

Amendment precludes the Tribe’s suit. That holding is

incorrect. The Tribe’s suit against the Governor is

permissible under the doctrine of Ex parte Young, 209

U.S. 123 (1908), and its suit against the State is

permissible because Congress has authority to abrogate

the State’s immunity from suit by a Tribe under IGRA.

A. The Tribe's Suit Against The Governor Is Permissible

Under Ex Parte Young

1. The Eleventh Amendment to the Constitution pro-

vides:

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.

This Court has not interpreted the Eleventh Amendment

in accordance with its literal terms. Instead, the Court

has viewed the Amendment as confirmation of a broader

principle: that States entered the Union with their

immunity from suit intact, and the grant of judicial power

in Article III to adjudicate claims against the States did

not eliminate that immunity. See Blatchford v. Native

Village of Noatak, 501 U.S. 775, 779 (1991). Thus, notwith-

standing the absence of a textual basis in the Eleventh

Amendment, the Court has applied the principle that a

State is immune from suit absent its consent in suits by

citizens against their own State arising under federal law,

Hans v. Louisiana, 134 U.S. 1 (1890), and in suits brought

by sovereigns like Indian Tribes and foreign nations.

Blatchford, supra; Principality of Monaco v. Mississippi,

292 U.S. 313 (1934).

When a suit is brought against a state official, a

question arises whether it should be treated as a suit

against the State itself. The general rule is that a suit

against a state official must be treated as a suit against a

State when the State is the real party in interest, i. e.,

when the relief would operate against the State.

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 107, 109 n.17 (1984). An important exception to that

rule is that sovereign immunity does not preclude a suit

against a state official to secure compliance with federal

law. That exception was first announced in Ex parte

Young, 209 U.S. 123 (1908). There, the Court held that a

federal court could enjoin a state Attorney General from

enforcing an unconstitutional state statute. The theory of

Ex parte Young was that an unconstitutional statute is

void and therefore cannot immunize a state official from

suit. Jd. at 159-160. Because the State could not authorize

the action, the officer was “stripped of his official or

representative character and [was] subjected in his person

to the consequences of his individual conduct.” Id. at 160.

In Edelman v. Jordan, 415 U.S. 651, 663 (1974), the

Court declined to extend the holding of Ex parte Young

to suits for retroactive monetary relief. The Court

reaffirmed in Edelman, however, that a federal court may

enter an injunction that governs an official’s future

conduct. Id. at 667-668. Since Edelman, the Court has

continued to maintain that distinction: prospective relief

to secure future compliance with federal law is per-

missible, while retroactive monetary relief to remedy past

wrongs is not. See, ¢.g., Puerto Rico v. Brunstad, 483 U.S.

219, 227-228 (1987); Papasan v. Allain, 478 U.S. 265, 276-

279 (1986); Green v. Mansour, 474 U.S. 64, 68 (1985);

Quern v. Jordan, 440 U.S. 332, 337 (1979); Milliken v.

Bradley, 433 U.S. 267, 289 (1977). The rationale for that

approach is that while both prospective and retroactive

relief implicate Eleventh Amendment concerns, pro-

spective relief is necessary to give life to the Supremacy

Clause. Green, 474 U.S. at 68. Thus, Irlemedies designed

to end a continuing violation of federal law are necessary

to vindicate the federal interest in assuring the

supremacy of that law.” Ibid. On the other hand, com-

pensatory or deterrence interests are insufficient to

overcome the dictates of the Eleventh Amendment.” Ibid.

2. The Tribe’s suit against the Governor fits squarely

within the rationale of Ex parte Young. The Tribe has

alleged that the Governor has failed to negotiate in good

faith as required by IGRA, and the Tribe has sought

declaratory and injunctive relief to require the Governor

to comply with that obligation. J.A. 18a-19a. Resolution of

the Tribe’s claim on the merits turns entirely on an issue

of statutory construction. IGRA requires a State to

bargain over “such gaming” as the State “permits” * * *

for any purpose by any person, organization, or entity.” 25

U.S.C. 2710(d)(1)(B). The Tribe contends that the phrase

“such gaming” should be construed generically rather

than in a game-specific way, so that Florida’s operation of

a lottery, which is a class III game, requires the Governor

to bargain over all forms of class III gaming, including

casino gambling. Pet. App. 54a-55a.* The Tribe also

contends that Florida “permits” casino gambling within

8 Other suits by a Tribe against a State under IGRA have also

involved a legal issue concerning the proper construction of IGRA’s

requirement that the State negotiate about “such gaming” as state law

“permits.” E. ., Rumsey Indian Rancheria of Wintun Indians v.

Wilson, 41 F.3d 421, 425-426 (9th Cir. 1994); Cheyenne River Sioux

Tribe v. South Dakota, 3 F.3d 273, 278-279 (8th Cir. 1993);

Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1029 (2d Cir.

1990), cert. denied, 499 U.S. 975 (1991); Sault Ste. Marie Tribe of

Chippewa Indians v. Michigan, 800 F. Supp. 1484, 1486 (W.D. Mich.

1992), appeal dismissed, 5 F.3d 147 (6th Cir. 1993); Yavapai-Prescott

Indian Tribe v. Arizona, 796 F. Supp. 1292, 1294, 1296 (D. Ariz. 1992);

Lac du Flambeau Band of Lake Superior Chippewa Indians v.

Wisconsin, 770 F. Supp. 480, 484-488 (W.D. Wis. 1991), appeal

dismissed, 957 F. 2d 515 (7th Cir.), cert. denied, 113 S. Ct. 91 (1992). The

courts of appeals that have squarely addressed the issue have agreed

with the game-specifie position of Florida in this case. Rumsey, 41

F.3d at 425-426; Cheyenne River Sioux Tribe, 3 F.3d at 278-279.

the meaning of IGRA because it fails to enforce its gaming

laws against charities that hold casino nights. Id. at 6la.

If a federal court were to agree with the Tribe’s inter-

pretation of IGRA, a declaratory judgment to that effect

and an order requiring the Governor to negotiate on the

basis of such a legal interpretation would reflect a

straightforward application of Ex parte Young.‘

3. The court of appeals nevertheless concluded that Ex

parte Young is inapplicable here. In the court’s view, Ex

parte Young does not apply if a suit seeks “to compel an

executive official to undertake a discretionary task” or if

the suit “is, in reality, against the state.” Pet. App. 23a.

The Tribe’s suit, the court concluded, “fit{[s] into both

categories.” Ibid. That reasoning is unpersuasive.

a. The court of appeals concluded that the relief sought

in this case would require the Governor to perform a

discretionary act because IGRA permits the State to

exercise discretion in proposing the terms of any tribal-

state compact. Pet. App. 23a. IGRA limits the State’s

discretion, however, in one significant respect. Once a

Tribe requests a State to negotiate, “the State shall

negotiate with the Indian tribe in good faith.” 25 U.S.C.

2710(d)(3)(A) (emphasis added). That statutory language

4 In many instances, it might not be necessary for a district court to

go beyond an award of declaratory relief, especially where the basis of

the dispute between the State and the Tribe concerns an interpretation

of IGRA itself. If (as in this case), the district court agrees with the

State’s interpretation of IGRA that underlies its failure to negotiate

about particular games, the court would have no occasion to order the

State (or its Governor) to negotiate. On the other hand, if the court

agrees with the Tribe’s interpretation of IGRA, the Governor might

then agree to negotiate under IGRA as so construed, without any need

for a judicial order directing him to do so. Such declaratory relief

against a Governor regarding the scope of IGRA would be particularly

far removed from the concerns that underlie the Eleventh Amendment.

creates a mandatory duty to negotiate in good faith. A

State’s refusal to fulfill that duty is a violation of federal

law. Thus, although a federal court has no authority to

interfere with the State’s discretion to propose or agree to

particular terms of a compact, it may, under Ez parte

Young, order the Governor to negotiate in good faith.

Such an order does not interfere with the Governor’s

discretion, because the Governor has no discretion under

IGRA to negotiate other than in good faith. See Ex parte

Young, 209 U.S. at 159 (“An injunction to prevent [a state

officer] from doing that which he has no legal right to do is

not an interference with the discretion of [that] officer.” );

ef. NLRB v. Insurance Agents’ Int! Union, 361 U.S. 477,

487-488 (1960) (obligation under Section 8(d) of National

Labor Relations Act, 29 U.S.C. 158(d), to “confer in good

faith” creates mandatory “duty” to bargain).

As the court of appeals noted (Pet. App. 23a), IGRA

prescribes remedial procedures if the district court finds

that the Governor has failed to negotiate (or to do so in

good faith). The first step is for the court to order the

State and the Tribe to conclude a compact within a 60-day

period. 25 U.S.C. 2710(d)(7)(B)(iii). If they fail to do so, a

mediator appointed by the court is authorized to choose

between proposals submitted by the Tribe and the State; if

the State submits no proposal, the mediator presumably

would chocse the Tribe’s proposal by default. 25 U.S.C.

2710(d)(7) (B)(iv). Finally, if the State refuses to consent

to the mediator’s choice, the Secretary has authority to

prescribe rules governing class III gaming on the Tribe’s

lands, subject to conditions prescribed by IGRA. See 25

U.S.C. 2710(d)(7)(B)(vii). Contrary to the court of appeals’

view (Pet. App. 23a), the existence of those back-up

remedial procedures does not mean that the decision

whether to negotiate in the first instance is discretionary.

Moreover, a Governor’s refusal to participate in IGRA’s

remedial procedures would have substantial consequences

for the State, because the State would thereby lose its

statutory right and practical ability under IGRA to shape

the scope of gaming that will be permitted.

The federal duty under IGRA to negotiate about gaming

is thus best understood as a conditional one: If the State

wishes to preserve its opportunity to shape the scope of

gaming, it must negotiate with the Tribe in good faith

concerning a compact. Nothing in Ex parte Young pre-

cludes a federal court from ascertaining whether a

Governor has complied with such a conditional duty and

from invoking IGRA’s narrowly tailored remedial

procedures if the Governor has not done so. Indeed, such

relief is far less intrusive on state prerogatives—and

therefore poses far less of a threat to the values

underlying the Eleventh Amendment—than relief granted

in suits under Ex parte Young to enforce substantive and

continuing legal obligations imposed on state officials

under federal laws.

Duties imposed under the Spending Clause provide a

useful analogy. A State is obliged to fulfill federal

statutory requirements enacted pursuant to the Spending

Clause only if the State opts to receive federal money.

Accordingly, a State willing to forgo receipt of federal

money can avoid complying with the federal requirements.

The conditional nature of the State’s duty, however, does

not serve as a barrier to the award of prospective relief

under Ea parte Young in Spending Clause cases so long

as the State continues to receive funding. See Quern, 440

U.S. at 346-349 (approving prospective relief under Ex

parte Young in Spending Clause case). There likewise is

no reason why the conditional nature of the duty should

serve as a barrier under IGRA.

b. The court of appeals’ view (Pet. App. 24a) that Ex

parte Young is inapplicable because the Tribe’s suit is

really against the State is also without merit. The Tribe

named the Governor as a defendant and sought relief

against him. And while the State is the real party in

interest, that is true in all Ex parte Young suits.

Pennhurst, 465 U.S. at 107-109 & n.17; see also Will v.

Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The

whole point of Ex parte Young is that relief nevertheless

may be ordered against a state official to comply with

federal law. As explained in Pennhurst, if a suit seeks

prospective relief against a state official to vindicate

federal law, it is permitted under Ex parte Young,

“notwithstanding the obvious impact on the State itself.”

465 US. at 104.

As the court of appeals noted, IGRA, by its terms,

imposes obligations on the State, and not on any particular

state official. Pet. App. 24a. States, however, can act only

through their officials. See Pennhurst, 465 U.S. at 114

n.25. The obligations that IGRA places on the States

therefore must be understood to fall not only upon the

States but also upon those officials vested with authority

under state law to negotiate on behalf of the States.

In that respect, IGRA is similar to the Fourteenth

Amendment, which imposes duties directly upon the

States und does not specifically refer to state officials.

This Court long ago held that the duties of the Fourteenth

Amendment nonetheless fall upon state officials as well.

As the Court explained in Home Tel. & Tel. Co. v. City of

Los Angeles, 227 U.S. 278, 286 (1913), “the provisions of the

[Fourteenth] Amendment * * * are addressed, of course,

to the States, but also to every person whether natural or

juridical who is the repository of state power.” See also

Pennhurst, 465 U.S. at 105 (“an official’s unconstitutional

conduct constitutes state action under the Fourteenth

Amendment”).

In this case, there is no dispute that the Governor is the

state official vested with authority under the constitution

and laws of Florida to negotiate on behalf of the State with

the Seminole Tribe. The duty that IGRA imposes on the

State to negotiate in good faith therefore falls upon the

Governor. A determination by a federal court that the

Governor has failed to fulfill that federal obligation,

thereby triggering the remedial provisions of IGRA, is

permissible under Ex parte Young.®

s Should this Court hold that judicial relief focused on the alleged

failure by the Governor to negotiate in good faith is permissible under

Ex parte Young, there may be no need to resolve the question whether

Congress may abrogate the immunity of the State itself in this setting.

A judicial determination that the Governor has failed to negotiate in

good faith on behalf of the State—and a resulting order directed to the

Governor under IGRA’s special remedial procedures of further

negotiation, mediation, and (if necessary) the promulgation of rules by

the Secretary—would presumably provide complete relief to the Tribe.

Thus, if this Court makes clear that a suit against the Governor is

permissible under Ex parte Young, the Tribe might be willing to forgo

seeking relief directly against the State, and the Court (or the courts

below on remand) might in any event conclude that relief against the

State should be denied as a matter of equitable discretion.

Accordingly, if the Court concludes that a suit against the Governor is

permissible under Ex parte Young, it may be appropriate to reverse

the judgment of the court of appeals on that basis alone, without

reaching the question whether the Eleventh Amendment forecloses

Congress from providing for a suit for prospective relief against the

State itself.

B. Congress Has The Power Under The Constitution To

Provide For A Suit By An Indian Tribe Against A

State For Prospective Relief Arising From The

State’s Failure To Negotiate In Good Faith

Congress may abrogate a State’s immunity from suit

“only by making its intention unmistakably clear in the

language of the statute.” Atascadero State Hosp. v. Scan-

lon, 473 U.S. 234, 242 (1985). Congress did that here.

IGRA provides that a federal court shall have jurisdiction

over any cause of action arising from “the failure of a

State to enter into negotiations with the Indian tribe.” 25

U.S.C. 2710(d)(7(A)(i). IGRA further provides that once

the Tribe introduces evidence that the State has not

negotiated in good faith, “the burden of proof shall be upon

the State to prove that the State has negotiated with the

Indian tribe in good faith.” 25 U.S.C. 2710(d)(7)(B)(ii).

Finally, IGRA provides that if “the court finds that the

State has failed to negotiate in good faith * * *, the court

shall order the State and the Indian Tribe to conclude such

a compact within a 60-day period.” 25 U.S.C. 2710(d)

(Ib) (iii). Those repeated textual references to the State

are sufficient to show that Congress clearly intended to

abrogate the State’s immunity from suit.

The court of appeals agreed that Congress had clearly

expressed its intent to abrogate the State’s immunity

from suit. Pet. App. 14a-15a. It held, however, that

Congress lacked authority to effect such a waiver. Id. at

15a-22a. That holding is incorrect.

1. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), this

Court held for the first time that Congress possesses

power in some circumstances to abrogate a State’s im-

munity from suit. At issue in Fitzpatrick was the

constitutionality of Congress’s grant of jurisdiction to

federal courts to award retroactive monetary relief

against States that discriminate in their employment

practices in violation of Title VII of the Civil Rights Act

of 1964. 427 U.S. at 447-448. This Court held that Con-

gress has the power under Section 5 of the Fourteenth

Amendment to authorize federal courts to award such

relief against the States. The Court explained that

when Congress acts pursuant to § 5, not only is it

exercising legislative authority that is plenary within the

terms of the constitutional grant, it is exercising that

authority under one section of a constitutional Amend-

ment whose other sections by their own terms embody

limitations on state authority.” 427 U.S. at 456.

In Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989),

the Court rejected an Eleventh Amendment challenge to

the Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980 (CERCLA), 42 U.S.C.

9601 et seq., which subjects States to liability for the

clean-up costs of hazardous waste sites they have

contaminated. The Court held that Congress has the

power under the Interstate Commerce Clause to authorize

federal courts to award such relief against the States. A

plurality of the Court reasoned that, “[lJike the

Fourteenth Amendment, the Commerce Clause with one

hand gives power to Congress while, with the other, it

takes power away from the States.” 491 U.S. at 16. “It

cannot be relevant,” the plurality continued, “that the

Fourteenth Amendment accomplishes this exchange in

two steps (§§ 1-4, plus § 5), while the Commerce Clause

does it in one.” Jd. at 16-17. According to the plurality,

“(t]he 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 17. Because the States ceded plenary power over

interstate commerce to Congress, the plurality concluded,

the States also “relinquished their immunity where

Congress found it necessary, in exercising this authority,

to render them liable.” Id. at 19-20.°

2. It follows a fortiori from Union Gas that Congress

may provide for a suit by an Indian Tribe against a State.

The United States’ power over Indian affairs derives from

the Indian Commerce Clause (a component of Art. I, § 8,

Cl. 3), the Clauses giving the President and the Senate

exclusive power to make treaties (Art. II, § 2, Cl. 2; Art. I,

§ 10, Cl. 1), and “from the necessity of giving uniform

protection to a dependent people.” Williams v. Lee, 358

U.S. 217, 219 n.4 (1959) (citing United States v. Kagama,

118 U.S. 375 (1886)). Congress’s power to regulate Indian

commerce is rooted in the same Clause as its power to

regulate interstate commerce. And like the interstate

component of that Clause, the Indian component is a

plenary grant of authority. Cotton Petroleum Corp. v.

New Merico, 490 U.S. 163, 192 (1989). Accordingly,

Congress’s power to provide for suits against States under

the Indian Commerce Clause “cannot be less than its

authority [to do so] under the Interstate Commerce

Clause.” Spokane Tribe of Indians v. Washington, 28

F.3d 991, 997 (9th Cir. 1994).

The background and history of the Indian component of

the Commerce Clause confirm that Congress’s power

under that component is at least as broad as its power

under the Interstate component. One of the key deficien-

cies of the Articles of Confederation was that they divided

authority over Indian affairs between the States and the

6 Justice White expressed his agreement with the conclusion

reached by the plurality “that Congress has the authority under Article

I to abrogate the Eleventh Amendment immunity of the States,”

but stated that he dlid] not agree with much of [the plurality’s]

reasoning.” 491 U.S. at 57 (White, J., concurring in the judgment in

part and dissenting in part). Justice White did not offer any additional

reasoning.

central government. Article IX of the Articles of Con-

federation provided that “(t]he United States in Congress

assembled” shall have the “sole and exclusive right” of

“regulating the trade and managing all affairs with the

Indians, not members of any of the States, provided that

the legislative right of any State within its own limits be

not infringed or violated.” James Madison viewed that

attempted division of sovereign authority as an

“endeavor[] to accomplish impossibilities,” because it

sought “to reconcile a partial sovereignty in the Union,

with complete sovereignty in the States.” The Federalist

No. 42, at 268-269 (C. Rossiter ed. 1961). Georgia and

North Carolina relied upon the proviso giving States

authority within their own limits to treat with Indians

regarding their land and other matters. The effect of that

construction of the proviso was “to annul the power

itself.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559

(1832). That construction of the proviso also created the

potential for individual States to undermine the States’

collective commitments to the Indians and the security of

the United States.

In response to those difficulties, the States, in the

Constitution, ceded to the United States all authority

to manage affairs with the Indian Tribes. Accordingly,

“(with the adoption of the Constitution, Indian relations

became the exclusive province of federal law.” County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 (1985)

(Oneida II); see also Worcester, 31 U.S. (6 Pet.) at 561

(“The whole intercourse between the United States and

this [Indian] nation, is, by our constitution and laws,

vested in the government of the United States.”).

Thus, the Indian Commerce Clause, perhaps even more

than the Interstate Commerce Clause, grants broad power

to Congress over a specified domain of public affairs and

simultaneously takes power away from the States. It

follows that under Union Gas, the authority of Congress

to abrogate state sovereignty under the former Clause, as

under the latter, is rooted in the plan of the Constitutional

Convention. See 491 U.S. at 19-20.

3. Several considerations support the conclusion that

the provision for suits by Tribes against States under

IGRA stands on even firmer constitutional footing than

the provision at issue in Union Gas. First, Congress’s

power over Indian affairs does not stem from the Com-

merce Clause alone. It stems as well from the historical

recognition that the Indian Tribes, though sovereign, “are

the wards of the nation,” and that from “the course of

dealing of the Federal Government with them and the

treaties in which it has been promised, there arises the

duty of protection, and with it the power.“ Kagama, 118

U.S. at 383-384. The United States (on behalf of all the

States) has a special responsibility to the Tribes to

further their economic well-being and amicable dealings

with the States. That special responsibility reinforces the

authority of Congress to provide for a Tribe, as a

dependent sovereign, to bring an action against a State

arising out of the State’s failure to negotiate in good faith

with the Tribe about a compact governing gaming on the

Tribe’s land—a matter frequently of central importance to

the Tribe and its members.

Second, there is an important difference in the scope of

relief authorized under the statute at issue in Union Gas

and that authorized under IGRA. The provision at issue in

Union Gas subjected the States to suit for money

damages. In contrast, a suit under IGRA cannot result in

the imposition of monetary relief; only prospective relief is

authorized. This Court recently identified protection of

state treasuries from federal court decrees as both “the

impetus for the Eleventh Amendment” and “the most

important consideration in resolving an Eleventh

Amendment immunity issue.” Hess v. Port Authority

Trans-Hudson Corp., 115 S. Ct. 394, 404, 406 (1994) (in-

ternal quotation marks omitted). Thus, IGRA does not

threaten the core value underlying the Eleventh

Amendment.

Moreover, the effect of IGRA is simply to authorize a

suit against a State in circumstances in which Ex parte

Young would authorize a suit against a state official.

Whatever the precise scope of Congress’s power to

abrogate a State’s immunity from suit, it must include at

least that much. After all, the State is already the real

party in interest in an Ex parte Young suit. Pennhurst,

465 U.S. at 101-102, 104. The notion that an Ex parte

Young suit is not against the State is a legal “fiction.”

Id. at 105. There is no constitutional impediment to

Congress’s dispensing with that legal fiction and

authorizing what would otherwise be an Ex parte Young

suit against the State in its own name.

That is particularly true given the limited nature of the

relief authorized by IGRA. While IGRA provides for a

court to order a State and a Tribe to conclude a compact

within 60 days as a remedy for the State’s failure to

negotiate in good faith, there is no indication that the

State’s failure to agree to a compact (or even to participate

in negotiations) during that period was intended to expose

the State to any more intrusive order or to contempt.

Compare Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per

curiam). Instead, as already noted, should the State decide

not to participate in the remedial process of negotiation

and mediation, the statutorily specified consequence is

that the Secretary of the Interior will ultimately

determine the scope of gaming on the Tribe’s lands, taking

into account the compact that is proposed by the Tribe

(and presumably recommended by the mediator).

Yet another difference between Union Gas and this case

is that the statu y provision upheld in that case grants a

cause of action aguinst the State to any individual, while

the provision at issue here affords a cause of action only to

Indian Tribes. Indian Tribes are sovereigns, Blatchford,

501 U.S. at 780, and a suit by a sovereign against a State

does not implicate a State’s dignity to the same extent as a

suit by an individual against a State. See Hess, 115 S. Ct.

at 400, 406 (one purpose of the Eleventh Amendment is to

protect a State’s integrity and dignity). There is also

considerable historical evidence that the primary purpose

of sovereign immunity was to protect States from suits

brought by individuals rather than sovereigns. Blatch-

ford, 501 U.S. at 780 n.1.

It is true that the Court held in Monaco that the

Eleventh Amendment applies in a suit brought by a foreign

nation against a State. And the Court similarly held in

Blatchford that the Eleventh Amendment applies in a suit

brought by « Tribe. But neither case involved the power of

Congress to authorize a suit by enother sovereign. The

“plan of the convention,” Monoco, 292 U.S. at 322-323,

would provide Congress a firm basis for authorizing a

foreign government to sue a State in federal court if it

determined that such action was necessary to the conduct

of foreign relations and commerce—e.g., to conform the

practice in suits involving foreign sovereigns to

international norms. Compare Verlinden B. V. v. Central

Bank of Nigeria, 461 U.S. 480, 486-487 (1983) (Foreign

Sovereign Immunities Act of 1976 codifies restrictive

theory of foreign sovereign immunity that had been

adopted by other nations). The parallel structure of the

Commerce Clause—vesting in Congress the power to

regulate Commerce “with foreign Nations” and “with the

Indian Tribes”—indicates that the Framers contemplated

bilateral relations between the United States and the

Indian Tribes as distinct sovereign entities, just as they

contemplated such relations with foreign nations.

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 153 &

n.19 (1982); see also Worcester, 31 U.S. (6 Pet.) at 559.

That parallel structure also reflects the fact that, just as

it was important to the security of the United States to

vest authority in the national government over relations

with foreign governments, so too it was important to the

security of the United States to vest authority in the

national government over relations with the Indians. For

those reasons, Congress should have no less authority to

authorize Indian Tribes to sue the States than it would

have to authorize such suits by foreign nations.

The rationale of Monaco and Blatchford is inapplicable

in this context in any event. Those cases declined to find

an abrogation of the State’s immunity from suit implicit in

the Constitution itself because the Constitution could not

be understood to have waived either a foreign govern-

ment’s or a Tribe’s immunity from a suit brought by a

State. Blatchford, 501 U.S. at 781-782. The absence of

“mutuality” made it inappropriate to treat the States as

having waived their immunity from a suit brought by a

foreign government or a Tribe. Id. at 782. Congress,

however, does have the authority to subject foreign

governments and Tribes to suits by States. If mutuality is

to be preserved, Congress should also have the power to

authorize suits by foreign governments and Tribes

against States.

Finally, unlike the situation in Union Gas, the ab-

rogation of sovereign immunity in IGRA is part of a

broader statutory scheme that is designed in part to

enhance state authority. The Senate Report accompany-

ing IGRA explained the reasons for including a provision

that would waive the State’s immunity from suit as

follows:

This section is the result of the Committee balancing

the interests and rights of tribes to engage in gaming

against the interests of States in regulating such

gaming. Under this act, Indian tribes will be required

to give up any legal right they may now have to engage

in class III gaming if: (1) they choose to forgo gaming

rather than to opt for a compact that may involve State

jurisdiction; or (2) they opt for a compact and, for

whatever reason, a compact is not successfully

negotiated. In contrast, States are not required to

forgo any State governmental rights to engage in or

regulate class III gaming except whatever they may

voluntarily cede to a tribe under a compact. Thus,

given this unequal balance, the issue before the

Committee was how best to encourage States to deal

fairly with tribes as sovereign governments. The

Committee elected, as the least offensive option, to

grant tribes the right to sue a State if a compact is not

negotiated and chose to apply the good faith standard

as the legal barometer for the State’s dealings with

tribes in class III gaming negotiations.

S. Rep. No. 446, 100th Cong., 2d Sess. 14 (1988). The

Constitution should not be interpreted to preclude such

innovative solutions to what otherwise might be intract-

able problems.

4. The court of appeals acknowledged that Union Gas

is the closest precedent for this case. But instead of

viewing Congress’s authority to provide for suits by

Tribes against States as following a fortiori from Union

Gas, the court sought to distinguish Union Gas on two

grounds. Neither distinction is substantial.

First, the court noted that the Interstate Commerce

Clause and the Indian Commerce Clause have different

purposes: Whereas the Interstate Commerce Clause

allows Congress to place limits on the States to

“‘maintain{] free trade among the States, * * * ‘the

central function of the Indian Commerce Clause is to pro-

vide Congress with plenary power to legislate in the field

of Indian affairs.’” Pet. App. 21a (quoting Cotton

Petroleum, 490 U.S. at 192). Those different purposes,

however, have no bearing on the question whether

Congress has the power under the Constitution to

abrogate a State’s immunity from suit. The critical point

in Union Gas was that the States had ceded a portion of

their sovereignty when they gave Congress the power to

regulate interstate commerce. As we have already

explained, the States, in adopting the Constitution, also

unequivocally ceded whatever authority they previously

had to regulate Indian affairs.

The court of appeals also sought to limit Union Gas to

situations in which a State engages in an activity “typical

of private individuals” and “outside the typical realm of

state authority.” Pet. App. 22a. That limitation cannot be

reconciled with this Court’s decisions. In Fitzpatrick, the

activity engaged in by the State—employing workers to

carry out governmental functions—was within the

traditional sphere of state authority. In rejecting the

State’s claim of immunity from suit in that case, the Court

made clear that the nature of the State’s activity was

irrelevant to the constitutional inquiry. 427 U.S. at 452.

The nature of the State’s activity in Union Gas—owning a

hazardous waste site—was not mentioned as a factor in

the decision. In the Tenth Amendment context, this Court

has rejected as “unsound in principle and unworkable in

practice, a rule of state immunity from federal regulation

that turns on a judicial appraisal of whether a particular

governmental function is * * * ‘traditional.’” Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 546-547

(1985). A traditional governmental function test is no

more appropriate in the Eleventh Amendment context.

In any event, the court of appeals erred in character-

izing negotiations by a State with an Indian Tribe as

within the traditional sphere of state authority. Pet. App.

22a. The Constitution assigns the power to make Treaties

(including those with Indian Tribes) to the national

government (Art. II, § 2, Cl. 2), and agreements by States

with Tribes historically were accomplished under federal

auspices. See, e.g., Oneida II, 470 U.S. at 232-233. IGRA

is consistent with that constitutional arrangement.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER