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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 44

## Text

No. 94-12

In the Supreme Court of the

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA, PETITIONER
5.

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)

ee ge ee Le ene 4
‘ 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

IV
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

Vv
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

VI
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
iS 8! & ee eee en 2
ome PP 2 No, 9-15
25 U.S.C. •2ꝛ‚ſrvu f — «0 2 IBE OF FLORIDA, PETITIONER
Oe FE a ED cccecnssccccdesctintbdiabttenahaimmnmmeadbemeipeedentn 3 SEMINOLE TRIB
0h Oe cc ⁰ͥ¶½e! nn 3 9
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ILE 3 STATE OF FLORIDA, ET AL.
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ON WRIT OF CERTIORARI
ZF tk, ae 3 TO THE UNITED STATES COURT OF APPEALS
II bcs ciccccrccenicndeertdninbidinerenergennntge 6, 14 FOR THE ELEVENTH CIRCUIT
SED dc ccicrnnsicnntesndcinempeseninaiesiness 4, 9, 15
III EEC nee 3
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
Pik te, — ö:ʃT?—]—C— 4
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)

2

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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Ae TR . r ~ eee ee |

3

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

4

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

5

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

6

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

7

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

8

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.

9

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

10

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

11

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

12

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.

13

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-

14

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.

15

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.

16

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

17

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

18

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”).

19

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.

20

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

21

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

22

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.

23

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

24

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

25

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).

26

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

27

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:

28

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

30

(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

Assistant Attorney General
EDWIN S. KNEEDLER

Deputy Solicitor General
IRVING L. GORNSTEIN

Assistant to the Solicitor
General

EDWARD J. SHAWAKER
ANNE S. ALMY

Attorneys

MARCH 1995

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0546%3A13. Public record. Not legal advice.