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

OF THE

United States

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA,

Petitioner,

VS.

STATE OF FLORIDA, ET AL..,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

Brief of Amici Curiae San Manuel Band of Mission

Indians, Rumsey Indian Rancheria of Wintun Indians,

Jackson Rancheria Band of Miwuk Indians, Table

Mountain Rancheria of California, Table Bluff Reserva-

tion of Wiyot Indians of California, Guidiville Band of

Pomo Indians of the Guidiville Rancheria and Viejas

Band of Kumeyaay Indians

DICKSTEIN & MERIN

HOWARD L. DICKSTEIN

2001 P Street, Suite 100

Sacramento, CA 95814

(916) 443-6911

Counsel of Record

LEVINE & ASSOCIATES

JEROME L. LEVINE

FRANié. R. LAWRENCE

2049 Century Park East, Suite 710

Los Angeles, California 90067

(310) 553-8400

March 31, 1995 d

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Bowne of Los Aneeies. Inc. Law Printers (213) 627-2200 ;

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TABLE OF CONTENTS

Ce cd ecececnvecescccooce

I.

II.

ITI.

Summary of Argument .........................

MCCA Ce edb eee Seanedeccecossesccesceces

A. IGRA Unmistakably Subjects States to Suit in

ET SE UC CUE 4 s'yc Kaviesscrcccccccces

B. The Eleventh Amendment Reflects The States’

Common Law Sovereign Immunity But Creates

No New Substantive Rights .................

C. The States Surrendered Their Sovereignty Over

Indian and Interstate Commerce to the Federal

Government Under the Plan of the Convention

D. Congress Clearly Had the Power to Abrogate

State Immunity in IGRA in Order to Effectuate

Its Indian and Interstate Commerce Clause

Authority ......... °F ee er ee eee TT ETE eee

E. Any Balancing of Federal and State Interests to

Determine Whether Congress Has the Power to

Abrogate the States’ Sovereign Immunity Must

be Concluded in Petitioner’s Favor............

Nee i es ee cbeeecccsecocs

10

13

17

aa

ii

TABLE OF AUTHORITIES

Cases

Page

A&P Tea Co., Inc. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923

TT 16

Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382 (1983) 26

Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305 (1984) 28

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105

B.Ce. 3142 (1968) 20506 cs000ss cus eee 6, 9, 18, 19, 27

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497

(>) 16

Blatchford v. Native Village of Noatak and Circle Village,

501 U.S. 775, 111 S.Ct. 2578 (1991) ..... 3, 9, 12, 15, 25, 27

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 107 S.Cs. 1683 (1SGT) ..... ccccesdvcsvsubesesens 4, 28

Cheyenne River Sioux Tribe v. South Dakota, 830 F. Supp.

523 (D. S.D. 1993) aff'd 3 F.3d 273 (8th Cir. 1993) .. 29

Chisholm v. Georgia, 2 U.S. (Dall.) 419 (1973) ... 2, 10, 11, 14

Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878 (1883) ...... 19

County of Oneida v. Oneida Indian Nation of New York

State, 470 U.S. 226, 105 S.Ct. 1245 (1985) ........... 28

Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295

(IDS) ..cccccccccccsccsecuas se eun eee heen 16

Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397 (1989) 6,9, 12

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

(1DPE) ....0ccncecsesnscunnenneeeee 11, 19, 20, 21, 28

Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629 (1982) 16

Employees of the Dept. of Public Health and Welfare v.

Department of Public Health and Welfare, 411 U.S. 279,

93 S.Ct. 1614 (1973)... cccsccnccscsenan 6, 9, 11, 15, 21, 28

Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908) .. 19, 20, 21

Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976) 19

Fox v. Morton, 505 F.2d 254 (9th Cir. 1974) ........... 26

TABLE OF AUTHORITIES

CASES

Page

Garcia v. San Antonio Metropolitan Transit Authority, 469

eG . ) 28

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........ 14, 15

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970) ... 21

Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848 (1971) 21

Great Northern Life Ins. Co. v. Read, 322 US. 47, 64 S.Ct.

SEES Ce 10

Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423 (1986) ...19, 20

Hagen v. Utah, U.S. —_—, 114 S.Ct. 958 (1994)... 26

Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504 (1890)..... 11, 13

Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376 (1981)... 16

Hunt v. Washington Apple Advertising Commission, 432

a 16

Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565 (1978) ..... 19

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct.

EEE 16

Kickapoo Tribe of Indians v. Kansas, 818 F. Supp. 1423

EES ELE ELE ILI 8,9

Larson Domestic & Foreign Commerce Corp., 337 U.S.

IE OUD occ ccc cccccccccccccces 10

Lewis v. B.T. Investment Managers, Inc., 447 U.S. 27, 100

Nee oc ccc cc encccncccecs 16

Moe v. Confederated Salish and Kootenai Tribes, 425 U.S.

re 5, 25, 26

Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745 (1934) 3,14

Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474 (1974) .. 16

Nance v. Envt'l Protection Agency, 645 F.2d 701 (9th Cir.

ESS ELE EEE IFO EEE 26

Navajo Tribe of Indians v. United States, 624 F.2d 981 (Ct.

OT 26

iv

TABLE OF AUTHORITIES

CASES

Page

Parden v. Terminal Railway of the Alabama State Docks

Dept., 377 U.S. 184, 84 S.Ct. 1207 (1964) . . 10, 14, 15, 19, 27

Pennhurst State School and Hospital v. Halderman, 465

U.S. 89, 104 S.Ct. 900 (1984) .......... ce eee ees 12, 19, 28

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

(TBI <5 witch be bene nneunssceneeaas 10, 13, 14, 19, 23, 27

Poarch Band of Creek Indians v. Alabama, 776 F. Supp. 550

CRD. Alle, IGPR) onccccccccscusenqeicsecsncesteres 8

Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422 (10th

Che. BBD div cccccennesccdesawGtdvesescscpephsnewi 8

Ponca Tribe of Oklahoma v. Oklahoma, 834 F. Supp. 1341

CA 5 B.A eer 8

Port Authority Trans-Hudson Corporation v. Feeney, 495

U.S. 299, 110 S.Ct. 1868 (1990) ........ 2 cece eee eee 3, 28

Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 423 (1985) ....12, 28

Quill Corp. v. North Dakota, U.S. —.., 112 S.Ct.

1ODO, SUED CITED bc ccdcsccnnccevsscceneceesovtsncs 15

Sault Ste. Marie Tribe of Chippewa Indians v. State, 800

F. Supp. 1484 (W.D. Mich. 1992) ..............-55- 8

Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct.

10D CIDER ... cvccccccvcs vecvconncccscsewnesteses 26

Seminole Tribe of Florida, 11 F.3d 1016 (11th Cir. 1994) 8

Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515

HOOD 6 ik 6 vans Uhce b4 Gs Chee etiedees 16

CIGBGD. .. ov vcnnavecdegeencnne seebeusGneeee ee aves 8,9

Sycuan v. Roache, 788 F. Supp. 1498 (S.D. Ca 1992), aff'd

at 38 F.3d 402 (9th Cir. 1994). ....... 2. cece eee eens 24

Table Mountain Band of Indians of the Table Mountain

Rancheria v. Magarian, No. 91-600 (E.D. Cal. Nov. 9,

LOBED no vcvoccvvnsscsedecndetesdesansses Queenan 24

A i enti:

v

TABLE OF AUTHORITIES

CASES

Page

United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298

SE Riis ba Ga Rela B ies dabluileide de cocsecceecene 25

United States v. Texas, 143 U.S. 621, 12 S.Ct. 488 (1892) 25

United States v. Wright, 53 F.2d 300 (4th Cir. 1931) ..... 24

Welch v. Texas Dept. of Highways and Public Transporta-

tion, 483 U.S. 468, 107 S.Ct. 2941 (1987) ....... 3, 6, 18, 28

Willis v. Fordice, 850 F.Supp. 523 (S.D. Miss. 1994)... .. 8

CONSTITUTION

U.S. Constitution

TEE UN Eh 5c ds GUUE he énkveccdiccecccsdcces 23

EN 5s A hdd CGUiin ds oud Sub okS vcsc cedececeie 16

I Tee G Ue das ke bode 65 éccbidccecccecec 10

STATUTES

United States Code

I ob cock ccbundcccavccvcccccee 9

Title 25

A 2

EE 25

Section 2710(d)(3)(C) (1)... 0... ccc cc ccc cece. 29

Bestia ZIIOCE (7) 2... ccc cccccccccccces 4, 7,9, 17, 26

vi

TABLE OF AUTHORITIES

STATUTES

Page

Tite 2B, Gestion ASGB: «6. bss cvccccesnc cvcsncotepss 9

Title 29

Dostian BIGIS) . .. cccvrcesvecccccsseee ve Ute eee 9

Section TO4a(E) ....sccccceccccccscccccssccccese 9

OTHER AUTHORITIES

S. Rep. No. 446, 100th Cong., 2d Sess. 1 (1988), reprinted

in 1988 U.S. Code Cong. & Admin.

Plow SOPR . é..cvcwcswave dé Guwewds ccs dessvitebe csi 8, 14, 24

F. Cohen, Handbook of Federal Indian Law, at 39 (1941) 24

The Federalist No. 6, at 59-60 (A. Hamilton) Rossiter

Fe See rer Pere r S e rT 23

The Federalist No. 3, at 44 (J. Jay) ........2- eee eeueee 23

Lile, Some Views on the Rule of Stare Decisis, 4 VaL.Rev.

it. | Peter res ee Le 28

<. Stak a on Ce eee

No. 94-12

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA,

Petitioner,

VS.

STATE OF FLORIDA, ET AL.,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

Brief of Amici Curiae San Manuel Band of Mission Indians,

Rumsey Indian Rancheria of Wintun Indians, Jackson

Rancheria Band of Miwuk Indians, Table Mountain Rancheria

of California, Table Bluff Reservation of Wiyot Indians of

California, Guidiville Band of Pomo Indians of the Guidiville

Rancheria, and Viejas Band of Kumeyaay Indians

I.

Interest of Amici Curiae

This brief of amici curiae San Manuel Band of Mission

Indians, Rumsey Indian Rancheria of Wintun Indians,

Jackson Rancheria Band of Miwuk Indians, Table Moun-

tain Rancheria of California, Table Bluff Reservation of

Wiyot Indians of California, Guidiville Band of Pomo Indi-

ans of the Guidiville Rancheria, and Viejas Band of

Kumeyaay Indians (hereinafter collectively the “Tribes”’),

2

is filed in support of petitioner Seminole Tribe of Florida

pursuant to the written consent of all parties. The Tribes are

all federally recognized Indian tribes whose reservations are

located within the geographical boundaries of the State of

California. Many of the amici Tribes depend on gaming on

their reservations for tribal governmental revenue and to

promote tribal economic development, tribal self-suffi-

ciency, and strong tribal governments. Several other amici

Tribes are in the process of developing gaming on their

reservations to achieve these benefits. If states are permitted

to assert a sovereign immunity defense to actions brought to

enforce tribes’ rights under the Indian Gaming Regulatory

Act, 25 U.S.C. sections 2701-21 (hereinafter “IGRA” or

the “Act”), the Tribes believe they will be prevented from

realizing the tribal self-sufficiency and economic develop-

ment Congress intended IGRA to afford.

Il.

Summary of Argument

This brief examines Congress’ power to abrogate the

states’ sovereign immunity when legislating under the In-

dian and interstate commerce clauses, and argues that

Congress clearly and successfully exercised such power in

IGRA.

In Chisholm v. Georgia, 2 U.S. (Dall.) 419 (1793), the

Court misconstrued Article III as providing a blanket waiver

of the states’ immunity. The Eleventh Amendment cor-

rected Chisholm’s error, instructing federal courts that Arti-

cle III was not to be construed as waiving the states’

immunity. In doing so, the Eleventh Amendment necessa-

rily recognized the existence of that immunity, which is an

inherent component of the states’ common law sovereignty.

The Amendment did not, however, render the states’

immunity inviolable. A state’s assertion of immunity in any

given instance is still open to challenge, requiring a determi-

Pe ee ee

3

nation of whether it can be overcome by a meritorious claim

of consent, which may be manifested either directly, by

means of a waiver, or, as in the case of Congress’ abrogation

pursuant to the exercise of its plenary powers, through the

plan of the convention. See, e.g., Blatchford v. Native Village

of Noatak and Circle Village, 501 U.S. 775, 779, 111 S.Ct.

2578, 2581 (1991); Port Authority Trans-Hudson Corpora-

tion v. Feeney, 495 U.S. 299, 310-11, 110 S.Ct. 1868, 1875

(1990) (Brennan, J., concurring); Welch v. Texas Dept. of

Highways and Public Transportation, 483 U.S. 468, 474,

107 S.Ct. 2941, 2946 (1987) (Powell, J.). While the states

did not cede their sovereignty — or its corollary immu-

nity — to tribes under the plan of the convention, Blatch-

ford, 501 U.S. at 775, 11 S.Ct. at 2578, the states did cede

their sovereignty to the federal government to the extent

necessary for Congress to effectuate its constitutional pow-

ers. See, e.g., Monaco v. Mississippi, 292 U.S. 313, 322-23,

54 S.Ct. 745, 747-48 (1934). The existence and recognition

of those powers — here, the Indian and interstate commerce

clauses — supports the conclusion that Congress success-

fully abrogated state immunity in IGRA to either: (1) im-

plement a court-supervised scheme to move IGRA’s

class III compact process into a meaningful negotiating

environment between tribes and states; or (2) to determine

that a state has no interest in further participation and direct

the tribe to seek class III rules from the Secretary of the

Interior.

When Congress clearly states its intent to abrogate state

immunity — as it unmistakably did in IGRA — and legis-

lates pursuant to its plenary powers over Indian and inter-

state commerce, the claim of abrogation overcomes a state’s

immunity defense. This is particularly true where, as in

IGRA, the statute only abrogates the states’ immunity to

determine the posture of the parties or, at best, to provide

equitable relief with respect to prospective federal proce-

dures. Nothing in the text, history, or this Court’s interpre-

4

tation of the Eleventh Amendment suggests that under

those circumstances the states’ immunity would have invio-

lable constitutional protection.

Prior to IGRA, states played virtually no role in regulat-

ing Indian gaming. See California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 210-11, 107 S.Ct. 1083,

1089 (1987). After forcefully and successfully lobbying

Congress, states won the right in IGRA to participate,

through good faith negotiations with tribes, in regulating

Indian gaming under the mechanism of Tribal-State com-

pacts. Congress recognized, however, the virtual veto power

IGRA could give to states over class III gaming if compacts

are required without some safeguards against negotiating

impasses. Federal court supervision in the event the negoti-

ating process stalled — or worse, was never begun — was

the reasonable answer Congress chose. That way, if a state

elected not to negotiate, or did so on a basis which was

determined to be overreaching or unreasonable, and pev-

sisted in maintaining that posture, the tribe could be freed of

the compact requirement and could turn to the Secretary of

the Interior for compact-equivalent procedures. See 25

U.S.C. § 2710(d) (7) (B).

Under IGRA, states are under no obligation to regulate

Indian gaming or appear in federal court to defend against a

tribal claim of failure to negotiate, or bad faith negotiation,

if the state does not wish to do so. The availability of a

federal forum under IGRA is solely for the state's protection

to determine, in a way that assures due process to the state

but obviously provides nothing to the Tribe except further

delay, whether in fact the state desires to negotiate a

compact with the Tribe. GRA provides no penalty whatso-

ever for states that decline the Act’s regulatory or judicial

invitations. The compact process represents an opportunity

for the states to expand the scope of their sovereign powers

rather than an intrusion on those powers as the Eleventh

5

Circuit held. The lack of such an intrusion and the para-

mount need for Congress to be able to move its chosen

process along — and in doing so to fulfill its mandate to

regulate Indian gaming — sufficiently supports congres-

sional authority to abrogate state immunity.

Moreover, even if the Court were to balance federal and

state interests to determine whether Congress had the power

to abrogate the states’ sovereign immunity in IGRA, Con-

gress’ abrogation power must be upheld. First, the federal

government's interest in preserving peace among the sover-

cigns existing within its borders requires IGRA’s abrogation

of state immunity. Second, the federal government's interest

in promoting Indian self-sufficiency, and the rationale of

Moe v. Confederated Salish and Kootenai Tribes, 425 U.S.

463, 96 S.Ct. 1634 (1976), also compels abrogation of state

immunity. Third, the federal government's trust responsibil-

ity to Indian tribes demands that any abrogation of immu-

nity in IGRA apply equally to states and tribes. Fourth, no

special justification exists in this case to deviate from this

Court’s numerous decisions which have both held and

assumed that Congress’ plenary Article I powers are suffi-

cient to overcome the states’ sovereign immunity, given a

clear expression of congressional intent. Finally, the states’

minimal interest, if any, in regulating activities in Indian

country were more than adequately protected in this case by

the national political process.

For all of these reasons, amici curiae Tribes submit that

the Indian and interstate commerce clauses empower Con-

gress to subject the states to suit in federal court for the

limited purpose of determining which forum — negotiations

with states or consultations with the Secretary of the Inte-

rior — tribes will be directed to in pursuing the gaming

activities Congress envisioned under the Act. Amici respect-

fully request that the Court reverse the Eleventh Circuit's

6

opinion and judgment, which is reported at 11 F.3d 1016

(11th Cir. 1994).

Il.

Argument

A. IGRA Unmistakably Subjects States to Suit in

Federal Court

ginning with Employees of the Dep't of Pub. Health

aa Welfare v. Dep't of Pub. Health and Welfare, 411 ware

279, 93 S.Ct. 1614 (1973), this Court has consistently

applied the “clear statement” rule to determine whether or

not Congress intended to abrogate state sovereign immunity

in a particular statute. The Court has required that Congress

express its intention to abrogate state immunity in —

takable language in the statute itsell. Atascadero a

Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. “

3148 (1985). See also Welch v. State nos ag. 4 gp

Pub. Transp., 483 U.S. 468, 474, 107 S.Ct. 2941, re

(1987). Without such a clear statement of congressio

intent, questions concerning the validity of Congress exer-

cise of its abrogation power are moot. While Congress

intent must be unmistakably clear, it need not use magic

words — that is, the standard “does not preclude congres-

sional elimination of sovereign immunity in statutory text

that clearly subjects states to suit for monetary damages,

though without explicit reference to state sovereign ~ an

nity or the Eleventh Amendment.” Dellmuth v. Mut i, ;

U.S. 223, 233, 109 S.Ct. 2397, 2403 (1989) (Scalia, J.,

concurring).

7

IGRA unmistakably provides Tribes with a federal claim

for equitable relief against states that have cither failed to

participate in class III negotiations or have done so in bad

faith:

The United States district court shall have jurisdiction

over — (i) any cause of action initiated by an Indian

tribe arising from the failure of a state to enter into

negotiations with the Indian tribe for the purpose of

entering into a Tribal-State compact under para-

graph (3) or to conduct such negotiations in good faith.

25 U.S.C. § 2710 (d)(7)(A)(i).' The Act also provides

evidentiary thresholds relating to (1) failing to reach a

compact within 180 days, or (2) failing to respond to a

request for compact negotiations, or not responding in good

faith. See 25 U.S.C. § 2710(d) (7) (B). Upon showing any

of the fi ing, the burden shifts to the state to prove its

good faith. Jd.“ Thus, IGRA provide: not only federal

‘Section 2710(d)(7)(A) provides for federal jurisdiction over three

types of lawsuits:

The United States district court shall have jurisdiction over —

(i) any cause of action initiated by an Indian tribe arising from

the failure of a state to enter into negotiations with the Indian tribe

for the purpose of entering into a Tribal-State compact under

paragraph (3) or to conduct such negotiations in good faith,

(ii) any cause of action initiated by a state or Indian tribe to

enjoin a class III gaming activity located on Indian lands and

conducted in violation of any Tribal-State compact entered into

under paragraph (3) that is in effect, and

(iii) any cause of action initiated by the Secretary to enforce

the procedures prescribed under subparagraph (B) (vii).

25 U.S.C. § 2710 (d)(7)(A).

7IGRA's Senate Report provides Congress’ rationale for subjecting

states to suit:

Section 11(d)(7) grants a tribe the right to sue a state if compact

negotiations are not concluded. This section is the result of the

Committee balancing the interests and rights of tribes to engage in

jurisdiction over actions against states, but sets forth the

elements of, and evidentiary standards for, such suits. See 25

U.S.C. § 2710(d) (7).

The court below correctly recognized that Congress

clearly intended to subject the states to suit in federal court

under IGRA. See Seminole Tribe of Florida, 11 F.3d 1016,

1024 (11th Cir. 1994). Every other federal court to address

the issue has reached the same conclusion. See Ponca Tribe

of Oklahoma v. Oklahoma, 37 F.3d 1422, 1428 (10th Cir.

1994); Spokane Tribe of Indians v. Washington, 28 F.3d

991, 994-95 (1994); Ponca Tribe of Oklahoma v.

Oklahoma, 834 F. Supp. 1341, 1345 (W.D. Okla. 1992);

Kickapoo Tribe of Indians v. Kansas, 818 F. Supp. 1423,

1427 (D. Kan. 1993); Sault Ste. Marie Tribe of Chippewa

Indians v. State, 800 F. Supp. 1484, 1488-89 (W.D. Mich.

1992); Poarch Band of Creek Indians v. Alabama, 776

F. Supp. 550, 558 (S.D. Ala. 1991). See also Willis v.

Fordice, 850 F. Supp. 523, 530 (S.D. Miss.1994) (assuming

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 govern-

ments. 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 Long., 2d Sess., 1, 14 (1988) reprinted in 1988

U.S. Code Long & Admin. News 3071, 3084 (hereinafter “Senate

Report”).

9

validity of IGRA’s provisions for federal jurisdiction over

suits against the states).

The unmistakable clarity with which Congress expressed

its intent in IGRA to submit the states to federal court

jurisdiction is distinguishable from the statutes which have

been at issue in many of the leading Eleventh Amendment

cases. Cf. Blatchford, 501 U.S. 775, 111 S.Ct. 2578 (inter-

preting 28 U.S.C. § 1362); Dellmuth, 491 U.S. 223, 109

S.Ct. 2397 (interpreting the Education of the Handicapped

Act, 20 U.S.C. § 1400, et seg.); Atascadero, 473 U.S. at

245, 105 S.Ct. at 3149 (interpreting the Rehabilitation Act,

29 U.S.C. § 794a(a)(2)); Employees, 411 U.S. 279, 93

S.Ct. 1614 (interpreting the Fair Labor Standards Act, 29

U.S.C. § 216(b)).

In Spokane Tribe, the Ninth Circuit explained that:

The tribe’s suit and the federal court’s jurisdiction are

triggered under [section 2710(d)(7)(A)(i)] by the

particular state’s failure to negotiate in good faith. The

state is the only possible defendant to such a suit, and it

is the only other party to the compact negotiations.

Congress fully contemplated and expressed its desire to

give the tribes a federal forum by which they could

compel the states to negotiate fairly with them. This is

not just a permissible inference; it is the only reasona-

ble inference.... Short of mentioning the Eleventh

Amendment or sovereign immunity, a clearer statement

of the intent to abrogate is difficult to envision.

Spokane Tribe of Indians, 28 F.3d at 995 (quoting Kickapoo

Tribe, 818 F. Supp. at 1427) (emphasis added). Given the

clarity of Congress’ intention to abrogate state sovereign

immunity, the question is whether, in enacting IGRA, it was

empowered to do so.

10

Amendment Reflects The States’ Com-

= i ae Immunity But Creates No New

Substantive Rights

The immunity at issue here is fundamen pattem

of states as political entities: “[A] state's ena fr: *

suit by a citizen without its consent has been xy?

rooted in ‘the inherent nature of sovereignty . * Page

y. Terminal Railway of the Alabama State Doc a

U.S. 184 191, 84 S.Ct. yg Ri R ona | i

Northern Life Ins. Co. v. R S. 47, 51, A

873, 875 (1944)). “[T]he doctrine of rotoadaagd ramp cig

for states as well as for the Federal Governmen nog tend the

the understood background against which ee

was adopted...” Pennsylvania v. Union Gas “ ‘

USS. 1, 31-32, 109 S.Ct. 2273, 2297 (1989) (Scalia, J.,

concurring in part and dissenting in part).

Article II's pant of Jet ct” tally riod Gol

tate and Citizens of an ’ ;

about the continued existence of state sovereign immunity

See U.S. Const., art. III, § 2." In Chisholm, oe no hac

Article III as if it wang rr? a cu waiver wegen

ereign immunity. m reversed

iia speed” by the Eleventh Amendment.‘ Larson v. Do-

’ Article III, section 2 provides:

Article A, all

different states, and between a state, or the citi -

foreign states, Citizens or Subjects.

U.S. Const., art. III, § 2.

11

mestic & Foreign Commerce Corp., 337 U.S. 682, 708, 69

S.Ct. 1457, 1470 (1949). Having been misinterpreted by

Chisholm, Article III’s original meaning was restored by the

Eleventh Amendment: “The Eleventh Amendment served

effectively to reverse the particular holding in Chisholm,

and, more generally to restore the original understanding,”

namely, that the states retained their sovereignty in those

areas not delegated to the federal government. Employees,

411 U.S. 279, 291-92, 93 S.Ct. 1614, 1621 (1973) (Mar-

shall, J., concurring). See also Edelman v. Jordan, 415 U.S.

651, 662, 94 S.Ct. 1347, 1355 (1974) (“Sentiment for

passage of a constitutional amendment to override the

decision rapidly gained momentum, and five years after

Chisholm the Eleventh Amendment was Officially an-

nounced by President John Adams”).

Article III — both before Chisholm and after the Elev-

enth Amendment — merely allows federal courts to hear

suits involving a state when such suits are otherwise cogni-

zable. But in determining the scope of what is cognizable,

arguments that the classifications of cases enumerated in

either Article III or the Eleventh Amendment are limiting

factors generally have been rejected. See Hans v. Louisiana,

134 US. 1, 14, 10 S.Ct. 504, 507 (1890) (Article III,

section 2 “ ‘can have no operation but this: to give a citizen a

right to be heard in the federal courts, and, if a state should

condescend to be a party, this court may take cognizance of

it’) (quoting Madison in 3 Elliot, Debates, 533). Thus the

Court has recognized that:

Despite the narrowness of its terms, since Hans vy.

Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.2 842

(1890), we have understood the Eleventh Amendment

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

presupposition of our constitutional structure which it

equity, commenced or prosecuted against one of the United States by

citizens of another state, or by Citizens or subjects of any foreign state.”

12

confirms: that the States entered the federal system

with their sovereignty intact; that the judicial authority

in Article III is limited by this sovereignty (cita-

tions) ... and that a State will therefore not be subject

to suit in federal court unless it has consented to suit,

either expressly or in the “plan of the convention.

Blatchford, 501 U.S. at 799, 111 S.Ct. at 2581 (emphasis

added).

Indeed, this Court has consistently held that: Gow

Eleventh Amendment “confirms,”* “exemplifi{es],’

“affirm[s],”” the fundamental principle that state » Rion

immunity survived the states’ ratification of the Constitu-

tion; (2) Article III’s grant of judicial authority is limited by

that immunity; and (3) the immunity cannot be overcome

unless the state has consented to suit or Congress has

abrogated state immunity in unmistakenly clear language.

Union Gas, 491 U.S. at 7, 109 S.Ct. at 2277 (Brennan, J.,

plurality). Those are the fundamentals “reflected” in,

though not created by, the Eleventh Amendment. Jd. In-

deed, because the Eleventh Amendment itself may be

viewed as simply reflecting the states’ common law immu-

nity, rather than giving birth to a new immunity, it therefore

may be a misnomer to refer, as is common, to an “Eleventh

Amendment immunity” or an “Eleventh Amendment de-

fense.” See, e.g, Quern v. Jordan, 440 U.S. 332, 343, 99

S.Ct. 423, 425 (1985); Delmuth, 491 U.S. at 225, 109 S.Ct.

at 2398. All that is really meant by such references is that

the state has asserted its common law immunity from suit

under its sovereign powers reflected in the Eleventh Amend-

ment; no more, no less. The Eleventh Amendment thus

* Blatchford, 501 U.S. at 799, 111 S.Ct. at 2581.

SEx Parte New York, 256 U.S. 490, 497, 41 S.Ct. 588, 589 (1921).

’ Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98,

104 S.Ct. 900, 906-07 (1984).

13

serves as a shorthand reference to the states’ traditional

defense of sovereign immunity. Put another way, the Elev-

enth Amendment only addresses a subset of the entire set of

cases in which states may have a sovereign immunity

defense. For this reason, Hans and its progeny do not rely

solely on the Eleventh Amendment’s narrow terms, but

instead rest on the broad concept of common law sovereign

immunity of which the Amendment is but a reflection:

[I]n the landmark case of Hans v. Louisiana, the

Court unanimously rejected this “comprehensive” ap-

proach to the [Eleventh] Amendment, finding sover-

cign immunity where not only a nondiversity basis of

jurisdiction was present, but even where the parties did

not fit the description of the Eleventh Amendment, the

plaintiff being a citizen not of another state or country,

but of Louisiana itself. What we said in Hans was,

essentially, that the Eleventh Amendment was impor-

tant not merely for what it said but for what it reflected:

a consensus that the doctrine of sovereign immunity,

for states as well as for the Federal Government, was

part of the understood background against which the

Constitution was adopted, and which its jurisdictional

provisions did not mean to sweep away.

Union Gas, 491 U.S. at 31-32, 109 S.Ct. at 2297 (Scalia, J.,

a in part and dissenting in part) (emphasis

Thus, while the Eleventh Amendment reflects the states’

common law sovereign immunity, it does create any new

substantive rights.

C. The States Surrendered Their Sovereignty Over Indian

and Interstate Commerce to the Federal Government

Under the Plan of the Convention

It is well-settled that by ratifying the Constitution the

states surrendered their common law sovereignty in areas

14

where Congress was granted express plenary powers. “States

of the Union, still possessing attributes of sovereignty, shall

be immune from suits, without their consent, save where

there has been ‘a surrender of this immunity in the plan of

the convention.’” Monaco v. Mississippi, 292 U.S. 313,

322-323, 54°S.Ct. 745, 747-48 (1934) (quoting The Feder-

alist, No. 81) (emphasis added). See also, Union Gas, 491

USS. at 33, 109 S.Ct. at 2298 (Scalia, J., concurring in part

and dissenting in part) (quoting Monaco); Parden, 377 U.S.

at 191, 84 S.Ct. at 1212 (1964) (“the states surrendered a

portion of their sovereignty when they granted Congress the

power to regulate commerce”).*

In his famous dissent in Chisholm, Justice Iredell drew

the line demarcating the portion of sovereignty the states

surrendered from that which they retained:

Every state in the Union in every instance where its

sovereignty has not been delegated to the United States,

I consider to be as completely sovereign, as the United

States are in respect to the powers surrendered. The

United States are sovereign as to all the powers of

Government actually surrendered. Each state in the

Union is sovereign as to all the powers reserved.

Chisholm, 2 U.S. at 435 (Iredell, J., dissenting) (emphasis

added). Thus Justice Iredell recognized that the states

surrendered their sovereignty as to those powers expressly

delegated to the Federal Government. Thirty years after

Chisholm, the Court confirmed Justice Iredell’s view. Gib-

bons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). In Gibbons,

the Court recognized that the states’ surrender of sover-

‘Similarly, IGRA’s Senate Report “recognize[d) and affirm[ed) the

principle that by virtue of their original tribal sovereignty, tribes reserved

certain rights when entering into treaties with the United States, and

that today, tribal governments retain all rights that were not expressly

relinquished.” Senate Report at 5 (Additional Views of Mr. McLain).

15

cignty specifically encompassed the interstate commerce

power:

If, as has always been understood, the sovereignty of

Congress, though limited to specified objects is plenary

as to those objects, the power over commerce...

among the several states, is vested in Congress as

absolutely as it would be in a single government, having

in its constitution the same restrictions on the exercise

of the power as are found in the Constituti

United States. perme

Gibbons, 22 US. at 197. Similarly, in Parden, the Court

recognized that “[b]y empowering Congress to regulate

commerce . . . the states necessarily surrendered any portion

of their sovereignty that would stand in the way of such

regulation.” Parden, 377 U.S. at 192, 84 S.Ct. at 1212. And

in Employees, Justice Marshall noted that:

The common-law doctrine of sovereign immunity in its

crigiaal Scans atoed o0 en sheskete bec $0 exit ancinst «

state by one of its citizens, absent consent. But that

doctrine was modified pro tanto in 1788 to the extent

that the states relinquished their sovereignty to the

Federal Government. At the time our Union was

formed, the states, for the good of the whole, gave

certain powers to Congress, including power to regulate

commerce, and by so doing, they simultaneously sub-

jected to congressional control that portion of their pre-

existing common-law sovereignty which conflicted with

those supreme powers given over to Congress.

Employees, 411 U.S. at 288, 93 S.Ct. at 1620 (Marshall, J.,

concurring).

It is well-settled that Congress has plenary

' power over

both Indian and interstate commerce. See Quill Corp. v.

North Dakota, — US. —_, 112 S.Ct. 1904, 1909

(1992) (interstate); Blatchford, 501 U.S. at 791, 111 S.Ct.

16

at 587 (Indian); Hodel v. Indiana, 452 U.S. 314, 324, 101

S.Ct. 2376, 2383 (1981) (interstate); Morton v. Mancari,

417 U.S. 535, 551-52, 94 S.Ct. 2474, 2483-84 (1974)

(Indian). The totality of the states’ surrender of sovereignty

over Indian and interstate commerce is apparent in light of

the so-called “dormant” commerce clause. Article I, sec-

tion 8, clause 3 of the Constitution is phrased as an affirma-

tive grant of power to the federal government over

commerce: it does not express any limitations whatsoever on

the states’ power to regulate commerce concurrently with

the federal government. Cf U.S. Const., art. I, § 9, cl. 5

(flatly prohibiting states from imposing export duties). Most

of Congress’ powers do not preclude concurrent state regula-

tion, absent conflicting federal regulation. See, e.g., Kewanee

Oil Co v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879 (1974)

(Congress’ power to issue patents does not bar states from

granting different protection to inventors). In the area of

commerce, however, the Court has often stricken state

statutes regulating commerce even absent a conflicting fed-

eral statute. See, e.g, Edgar v. MITE Corp., 457 U.S. 624,

102 S.Ct. 2629 (1982); Lewis v. B.T. Investment Managers,

Inc., 447 U.S. 27, 100 S.Ct. 2009 (1980); Hunt v. Washing-

ton Apple Advertising Commission, 432 U.S. 333, 97 S.Ct.

2434 (1977); A&P Tea Co., Inc. v. Cottrell, 424 U.S. 366,

96 S.Ct. 923 (1976); Dean Milk Co. v. Madison, 340 U.S.

349, 71 S.Ct. 295 (1951); Southern Pacific Co. v. Arizona,

325 U.S. 761, 65 S.Ct. 1515 (1945); Baldwin v. G.A.F.

Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497 (1935).

In sum, there can be little doubt that by ratifying the

Constitution the states surrendered their common law sover-

cign powers to the Federal Government in the areas of

Indian and interstate commerce.

17

D. Congress Clearly Had the Power to Abrogate State

Immunity in IGRA in Order to Effectuate Its Indian

and Interstate Commerce Clause Authority

IGRA authorizes federal courts to hear three types of

actions: (1) suits by Indian tribes against states for failing to

negotiate a Tribal-State compact, or for failing to negotiate

in good faith, see 25 U.S.C. § 2710(d) (7) (A) (i); (2) suits

by states or tribes to enjoin class III gaming activity con-

ducted in violation of a Tribal-State compact, see id. at

§ 2710(d) (7) (A) (ii); and (3) suits by the Secretary of the

Interior to enforce procedures for class III gaming where

the state has declined to consent to a Tribal-State compact

selected through IGRA’s mediation process, see id. at

§ 2710(d) (7) (A) (iii). Only the first category of suits is in

issue here.

in light of Congress’ unmistakable intent to abrogate state

immunity in IGRA, and given the states total surrender of

sovereignty over Indian and interstate commerce, discussed

supra at sections III(A) and (C) of this brief, the question

of Congress’ power to authorize such suits becomes simply

one of whether Congress’ Article I powers are sufficient to

support the statute. Although the Eleventh Circuit held that

Congress only enacted IGRA under its Indian Commerce

Clause power, and not its Interstate Commerce Clause

power, the amici Tribes believe that both powers support the

Act. See Brief of Amici Curiae National Indian Gaming

Association, Minnesota Indian Gaming Association and

California-Nevada Indian Gaming Association (interstate).

See also Brief of Amici Curiae Stockbridge-Munsee Indian

Community and the Oneida Nation of Wisconsin (Indian).

Given Congress’ plenary powers over Indian and interstate

commerce, there can be little doubt that Congress had the

authority to promulgate IGRA and impose its unique judi-

cial remedies, particularly since those remedies are critical

to the successful operation of gaming under the Act. More-

18

over, those remedies — which are limited to prospective

equitable relief, see Brief of Amicus Poarch Band of Creek

Indians — are designed primarily, if not solely, for the

states’ protection: that is, IGRA ensures that the states are

afforded every opportunity to negotiate for regulatory au-

thority over class III gaming which may impact commerce

within their borders.

IGRA demonstrates congressional action in furtherance

of its plenary powers over Indian and interstate commerce,

which alone is sufficient to support the abrogation invoked

under the Act. However, a more moderate approach to

determining whether or not the exercise of congressional

plenary powers is sufficiently compelling to overcome a

state’s inherent immunity — by weighing and balancing

competing state and federal interests, see, e.g, Union Gas,

491 U.S. at 25-29, 109 S.Ct. 2287-89 (Stevens, J., concur-

ring) — also leads to the conclusion that Congress had

sufficient authority to abrogate state immunity under the

Act. The amici Tribes submit that under IGRA there can

be no doubt about Congress’ power to abrogate state immu-

nity even if a balancing test is imposed.

E. Any Balancing of Federal and State Interests to Deter-

mine Whether Congress Has the Power to Abrogate the

States’ Sovereign Immunity Must be Concluded in

Petitioner’s Favor

This Court has acknowledged that sovereign immunity

under the Eleventh Amendment is not an absolute bar to

federal court jurisdiction over suits against the states: “The

Court has recognized certain exceptions to the reach of the

Eleventh Amendment.” Welch, 483 U.S. at 473, 107 S.Ct.

at 2946 (Powell, J., plurality). See also Atascadero State

Hospital, 473 U.S. at 238, 105 S.Ct. at 3145 (noting “well-

established exceptions” to the Eleventh Amendment).

These exceptions include cases involving: (1) waiver by a

19

State; see, e.g., Atascadero State Hospital, 473 U.S. at

238-39, 105 S.Ct. at 3145-46; Parden, 377 U.S. at 186, 84

S.Ct. at 1210; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct.

878, 883 (1883); (2) prospective equitable relief; see Ex

parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908); Edelman,

415 USS. at 663-64, 94 S.Ct. at 1356; Green v. Mansour, 474

U.S. 64, 106 S.Ct. 423 (1986); and (3) congressional

abrogation in clear, unmistakable language; see Union Gas,

491 U.S. at 14-23, 109 S.Ct. at 2281-86 (Brennan, J.,

plurality); Fitzpatrick v. Bitzer, 427 U.S. 445, 459, 96 S.Ct.

2666, 2673 (1976).

Because the Eleventh Amendment “implicates the funda-

mental constitutional balance between the Federal Govern-

ment and the states,” Atascadero Staie Hospital, 473 US.

at 238, 105 S.Ct. at 3146, the Court has often weighed and

balanced competing federal and state interests. See Union

Gas, 491 U.S. at 25-29, 109 S.Ct. 2287-89 (Stevens, J.,

concurring). See also Hutto v. Finney, 437 U.S. 678, 691, 98

S.Ct. 2565, 2573-74 (1978). Thus the Court has recognized

that the fiction of Ex parte Young “rests on the need to

promote the vindication of federal rights...” Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89,

104-106, 104 S.Ct. 900, 910-11 (1984). Similarly, Edelman

involved an effort to “accommodate” the need for vindica-

tion of federal rights to the competing interest in the

“immunity of the states.” Pennhurst, 465 U.S. at 105, 104

S.Ct. at 910. And in Green, the Court explained:

Both prospective and retrospective relief implicate

Eleventh Amendment concerns, but the availability of

prospective relief of the sort awarded in Ex parte Young

gives life to the Supremacy Clause. Remedies designed

to end a continuing violation of federal law are neces-

sary to vindicate the federal interests in assuring the

supremacy of that law. But compensatory or deterrence

20

interests are insufficient to overcome the dictates of the

Eleventh Amendment.

Green, 474 U.S. at 68, 106 S.Ct. at 426 (citations omitted).

A brief review of the facts in Edelman may help illustrate

the amici Tribes’ point. Edelman was a class action against

the state officials who administered federally-funded pro-

grams of Aid to the Aged, Blind or Disabled (“AABD”).

The complaint charged that the state defendants improperly

omitted certain eligibility months for which applicants were

entitled to aid under federal law, and that the defendants did

not timely process applications as required by federal regula-

tions. While the complaint purportedly sought only declara-

tory and injunctive relief, that relief in effect included

retroactive damages, for the prayer sought “‘a permanent

injunction enjoining the defendants to award to the entire

class of plaintiffs all AABD benefits wrongfully withheld.’ ”

415 USS. at 656, 94 S.Ct. at 1352 (quoting complaint). The

district court found for plaintiffs, issued “a permanent in-

junction requiring compliance with the federal time limits

for processing and paying AABD applicants,” and also

ordered the defendants to retroactively pay the wrongfully-

withheld benefits. 415 U.S. at 656, 94 S.Ct. at 1352. The

Seventh Circuit affirmed. 472 F.2d 985 (7th Cir. 1973).

This Court recognized that prospective equitable relief

was properly granted under Ex parte Young, but reversed

the grant of retroactive payment of benefits. Edelman, 415

USS. at 659, 94 S.Ct. at 1354. The Court found that “[t]he

funds to satisfy the award in this case must inevitably come

from the general revenues of the state of Illinois, and thus

the award resembles far more closely the monetary award

against the state itself, Ford Motor Co. v. Department of

Treasury, supra, than it does the prospective injunctive

relief awarded in Ex parte Young.” Id. at 665, 94 S.Ct. at

1357.

21

The Court candidly acknowledged that the “the differ-

ence between the type of relief barred by the Eleventh

Amendment and that permitted under Ex parte Young will

not in many instances be that between day and night.” Jd. at

667, 94 S.Ct. at 1357. The relief approved in Ex parte

Young itself had an “effect on the state’s revenues... [and]

[I]ater cases from this Court have authorized equitable

relief which has probably had greater impact on state

treasuries than did that awarded in Ex parte Young.” Id. at

667, 94 S.Ct. at 1357-58 (citing Graham v. Richardson, 403

U.S. 365, 91 S.Ct. 1848 (1971); Goldberg v. Kelly, 397 U.S.

254, 90 S.Ct. 1011 (1970)). These impacts on the states’

treasures were acceptable because they were ancillary con-

sequences of federal supremacy:

[T]he fiscal consequences to state treasuries in these

cases were the necessary result of compliance with

decrees which by their terms were prospective in na-

ture. State officials, in order to shape their official

conduct to the mandate of the Court’s decrees, would

more likely have to spend money from the state trea-

sury than if they had been left free to pursue their

previous course of conduct. Such an ancillary effect on

the state treasury is a permissible and often an inevita-

ble consequence of the principle announced in Ex parte

Young, supra.

Edelman, 415 U.S. at 667-68, 94 S.Ct. at 1358.

Finally, the Court also employed this balancing approach

in Employees, which was a suit by state employees against

the Missouri Department of Public Health & Welfare for

overtime compensation under the Fair Labor Standards Act

of 1938, 29 U.S.C. section 216(b). The Court recognized

that Congress intended to “bring under the Act employees

of [state] hospitals and related institutions.” Employees,

411 U.S. at 283, 93 S.Ct. at 1617. Yet the Court also found

no evidence that Congress intended “to make it possible for

22

a citizen of that state or another state to sue the state in the

federal courts.” Jd. at 285, 93 S.Ct. at 1618. The Court was

thus unwilling “to infer that Congress in legislating pursuant

to the Commerce Clause, which has grown to vast propor-

tions in its applications, desired silently to deprive the states

of an immunity they have long enjoyed under another part

of the Constitution.” Jd. at 285, 93 S.Ct. at 1618.

Even absent clear statutory language submitting the states

to suit in federal court, the Court nevertheless carefully

balanced the competing federal and state interests in reach-

ing its conclusion. Significantly, the Court noted that “[b]y

holding that Congress did not waive the sovereign immunity

of the states under the FLSA, we do not make the extension

of coverage to state employees meaningless.” Jd. The Court

explained that the section 16(c) of the FLSA “gives the

Secretary of Labor authority to bring suit for unpaid mini-

mum wages or unpaid overtime compensation under the

FLSA ...The policy of the Act so far as the states are

concerned is wholly served by allowing the delicate federal-

state relationship to be managed through the Secretary of

Labor.” Jd. at 285-86, 93 S.Ct. at 1618-19. In other words,

since Congress did not clearly state its intent to allow citizen

suits against the states in federal court, and because the

Secretary of Labor could fully effectuate the federal pur-

poses behind the statute, federalism and federal supremacy

did not require abrogation.

When we weigh the competing federal and state interests

at stake in the area regulated by IGRA, however, there can

be no doubt that the federal interests predominate, requiring

abrogation of the states’ immunity.

23

1. The Federal Government’s Fundamental Interest in

Preserving Peace Among the Sovereigns Existing

Within Its Borders Requires the Abrogation of the

States’ Immunity in IGRA

A central function of our federal system is ensuring peace

among the numerous sovereigns existing within the United

States’ borders. See U.S. Const., preamble (“We the People

of the United states, in Order to... insure domestic tran-

quility”). See also The Federalist No. 6, at 59-60

(A. Hamilton) (Rossiter ed. 1961).° As Justice Scalia

observed in Union Gas, there is an “inherent necessity of a

tribunal for peaceful resolution of disputes between the

Union and the individual states, and between the individual

states themselves...” Union Gas, 491 U.S. at 33, 109 S.Ct.

at 2298 (Scalia, J., concurring in part and dissenting in

part). This federal function applies with equal force to

disputes between Indian tribes and the states. See The

Federalist No. 3 at 44 (J. Jay) (“Not a single Indian war

has yet been produced by aggressions of the present federal

government, feeble as it is; but there are several instances of

Indian hostilities having been provoked by the improper

*Hamilton wrote that:

So far is the general sense of mankind from corresponding with the

tenets of those who endeavor to lull asleep our apprehensions of

discord and hostility between the states, in the event of disunion,

that it has from long observation of the progress of society become a

sort of axiom in politics that vicinity, or nearness of situation,

constitutes nations natural enemies. An intelligent writer expresses

himself on this subject to this effect: “Neighboring nations [says

he] are naturally enemies of each other, unless their common

weakness forces them to league in a confederate republic, and their

constitution prevents the differences that neighborhood occasions,

extinguishing that secret jealousy which disposes all states to

aggrandize themselves at the expense of their neighbors.” This

passage, at the same time, points out the evil and suggests the

remedy.

The Federalist No. 6, at 59-60 (A. Hamilton).

24

conduct of individual states, who, either unable or unwilling

to restrain or punish offenses, have given occasion to the

slaughter of many innocent inhabitants”). Maintaining

peace with Indian tribes has long been a goal of the Federal

Government. See F. Cohen, Handbook of Federal Indian

Law, at 39 (1941) (“Most of the very early treaties were

treaties of peace and friendship”).

This federal interest is particularly strong given the states’

traditional hostility to Indian tribes. See, e.g., United States

v. Wright, 53 F.2d 300 (4th Cir. 1931) (discussing North

Carolina’s pernicious anti-Indian discrimination).'° Indeed,

in enacting IGRA, Congress expressly “[r]ecogniz[ed] that

the extension of state jurisdiction on Indian lands has

traditionally been inimical to Indian interests...” Senate

Report at 5. The states’ hostility to Indian tribes has

continued through the present day, and has appeared in the

very area at issue in this case. For example, in Sycuan v.

Roache, 788 F. Supp. 1498 (S.D. Ca 1992), affd at 38 F.3d

402 (9th Cir. 1994) (petition for rehearing under submis-

sion), state law enforcement officers, completely lacking in

jurisdiction, conducted illegal raids on Indian lands to dis-

rupt Tribal gaming operations. Amicus Curiae Table Moun-

tain Rancheria suffered a similar illegal raid. See Table

Mountain Band of Indians of the Table Mountain Ranche-

ria v. Magarian, No. 91-600 (E.D. Cal. Nov. 9, 1991)

'° As the Fourth Circuit noted:

[T]he State of North Carolina has afforded [Indians] few of the

privileges of citizenship. It has not furnished them schools, and

forbids their attendance upon schools maintained for the white and

colored people of the State. It will not receive their unfortunate

insane or their deaf, dumb, or blind in State institutions. It makes

no provision for their instruction in the arts of agriculture or for the

care of their sick or destitute. It supervises their roads; but until

comparatively recent years these were maintained by their own

labor.

53 F.2d at 304-05.

25

(order granting temporary restraining order against Fresno

County Sheriff and order to show cause re preliminary

injunction).

Given the long and unfortunate history of animosity and

mistrust between Tribes and states, neither group of sover-

eigns are likely to submit to the judicial jurisdiction of the

other. Hence, if Tribal-State disputes regarding Indian gam-

ing under IGRA are to be resolved peacefully, they must be

resolved in the federal courts. Nowhere is the United States’

peace-making role more significant. Thus this factor weighs

heavily in favor of finding Congressional power to abrogate

state immunity in IGRA.

2. The Federal Government’s Interest in Promoting In-

dian Self-Sufficiency, and Moe v. Confederated Salish

and Kootenai Tribes of the Flathead Reservation,

Requires the Abrogation of the States’ Immunity In

IGRA

It is long-settled that the states are not immune from suit

by the United States. See United States v. Texas, 143 U.S.

621, 12 S.Ct. 488 (1892). Nor are states immune from suits

by the United States brought on behalf of Indian Tribes. See

United States v. Minnesota, 270 U.S. 181, 195, 46 S.Ct. 298,

301 (1926).

In Moe v. Confederated Salish and Kootenai Tribes, 425

U.S. 463, 96 S.Ct. 1634 (1976), this Court held that Indian

Tribes’ access to federal court to obtain equitable relief from

state taxation was “as broad as that of the United States

suing as the tribe’s trustee.” Jd. at 473, 96 S.Ct. at 1641. See

also Blatchford, 111 S.Ct. at 2583. Indian Tribes’ ability to

repel states’ intrusions on tribal sovereignty by representing

themselves furthers the federal policy of promoting tribal

self-sufficiency — a goal which Congress expressly stated in

IGRA. See 25 U.S.C. § 2701(4). As noted supra, IGRA

authorizes Indian tribes to bring, and federal courts to

26

entertain, suits for equitable relief against the states for this

very purpose. See 25 U.S.C. § 2710(d)(7). Thus Moe's

holding appears to authorize the type of suit IGRA autho-

rizes Tribes to bring against the states. This factor also

weighs heavily in favor of Congress’ abrogation power in

IGRA.

3. The Federal Government’s Trust Responsibility to

Indian Tribes Requires That Any Abrogation of Im-

munity in IGRA Apply to the States as Well as to the

Tribes

The Federal Government “has an overriding duty of

fairness when dealing with Indians, one founded upon a

relationship of trust for the benefit of’ Indians. Fox v.

Morton, 505 F.2d 254, 255 (9th Cir. 1974). See Hagen v.

Utah, U.S. —~, 114 S.Ct. 958, 971 nl (1994);

Arizona v. California, 460 U.S. 605, 650, 103 S.Ct. 1382,

1407 (1983) (Brennan, J., concurring in part and dissenting

in part); Seminole Nation v. United States, 316 U.S. 286,

296, 62 S.Ct. 1049, 1054 (1942). The Federal Govern-

ment’s actions toward Indian Tribes must meet the highest

standards of fiduciary duty. Nance v. Envt'l Protection

Agency, 645 F.2d 701, 710 (9th Cir. 1981).

The duty to protect Indian property rights inheres in the

trust relationship between the Federal Government and

Indians. Navajo Tribe of Indians v. United States, 624 F.2d

981, 987 (Ct. Cl. 1980). In IGRA, Congress recognized

that Indian tribes have property rights in Indian gaming:

“Indian tribes have the exclusive right to regulate gaming

activity on Indian lands if the gaming activity is not specifi-

cally prohibited by Federal law and is conducted within a

state which does not, as a matter of criminal law and public

policy, prohibit such gaming activity.” 25 U.S.C. § 2701 (5).

Given the federal government’s trust relationship with

Indian tribes, for it to submit the Tribes to suit by the

27

States, without reciprocally submitting the States to suit by

the Tribes, would constitute a breach of the trust

relationship.

The Court’s sensitivity to the importance of reciprocity in

this area is evidenced in Blatchford, in which the Court was

motivated, in part, by the fact that “[w]e have repeatedly

held that Indian tribes enjoy immunity against suits by

states, Potawatomi Indian Tribe, supra, 498 U.S., at ___,

111 S.Ct., at ___, as it would be absurd to suggest that the

tribes surrendered immunity in a convention to which they

were not even parties. But if the convention could not

surrender the tribes’ immunity for the benefit of the states,

we do not believe that it surrendered the states’ immunity

for the benefit of the tribes.” Jd. 501 U.S. at __., 111 S.Ct.

at 2583.

This factor also weighs heavily in favor of Congress’

abrogation power in IGRA.

4. This Court’s Precedents, and The Doctrine of Stare

Decisis, Weigh in Favor of Congress’ Abrogation

Power in IGRA

For the Court to affirm the Eleventh Circuit in this case

and hold that Congress lacks the power to abrogate the

states’ sovereign immunity when legislating under the In-

dian Commerce Clause, would require the Court to make a

radical departure from its precedents. Specifically, it would

require overruling Union Gas and Parden, 377 U.S. at 192,

84 S.Ct. at 1212 (“[b]y empowering congress to regulate

commerce ... the states necessarily surrendered any portion

of their sovereignty that would stand in the way of such

regulation”). And it would require disapproving of numer-

ous decisions that have recognized, or assumed, that Con-

gress may abrogate the states immunity when legislating

under its Article I powers. Atascadero, 473 U.S. at 242, 105

S.Ct. at 3147 (affirming that Congress may abrogate by

28

making its intention unmistakably clear); Employees, 411

U.S. at 285, 93 S.Ct. at 1618 (assuming Congress has power

under the Commerce Clause to abrogate); Quern, 140 U.S.

at 343, 19 S.Ct. at 1146; Edelman, 415 U.S. at 673, 94 S.Ct.

at 1360; Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Port

Authority Trans-Hudson Corporation v. Feeney, 495 U.S.

299, 305, 110 S.Ct. 1868, 1872-73 (1990); Welch, 483 U.S.

at 475, 107 S.Ct. at 2947; County of Oneida v. Oneida

Indian Nation of New York State, 470 U.S. 226, 252, 105

S.Ct. 1245, 1261 (1985).

“The rule of law depends in large part on adherence to the

doctrine of stare decisis. Indeed, the doctrine is ‘a natural

evolution from the very nature of our institutions.’ ” Welch,

483 U.S. at 479, 107 S.Ct. at 2948-49 (quoting Lile, Some

Views on the Rule of Stare Decisis, 4 Va.L.Rev. 95, 97

(1916)). Thus “any departure from the doctrine of stare

decisis demands special justification.” Arizona v. Rumsey,

467 U.S. 203, 212, 104 S.Ct. 2305, 2311 (1984). There is no

such “special” justification for reversing the cases cited

supra. Thus, this factor also weighs in favor of Congress’

abrogation power in IGRA.

5. The States’ Minimal Interest in Regulating Activities

on Indian Lands Are Adequately Protected by the

National Political Process

The theory of protection for states articulated in Garcia v.

San Antonio Metropolitan Transit Authority, 469 U.S. 528,

105 S.Ct. 1005 (1985), proved more than adequate in the

case of IGRA. As noted above, prior to IGRA’s enactment,

the states had little or no regulatory jurisdiction over Indian

gaming. See Cabazon, 480 U.S. at 208-211, 107 S.Ct. at

1087-89. Through the legislative process, the states effec-

tively presented their concerns to Congress. See Senate

Report at 1-2, 13, 33, 36. The result of this process, IGRA,

provides the states with an unprecedented opportunity to

expand their civil regulatory jurisdiction over gaming into

29

Indian country. See 25 U.S.C. § 2710(d)(3)(C)(I) (Tri-

bal-State compacts governing class III gaming on Indian

lands may include provisions applying state criminal and

civil laws and regulations).

There is no down side for the states in the process

prescribed by IGRA: Under the IGRA, no penalties

can be assessed against a state for failing to negotiate.

What the state would lose by such a stance would be

possible input into a Tribal-State gaming compact. If a

state fails to negotiate, the Secretary of the Interior,

after consultation with the Tribe, could then prescribe

the procedures under which the Tribe could conduct

Class III gaming on the Indian lands over which the

Tribe has jurisdiction, and the state would lose its input

into the process.

Cheyenne River Sioux Tribe v. South Dakota, 830 F. Supp.

523, (D. S.D. 1993), affd 3 F.3d 273 (8th Cir. 1993).

Thus, even this factor also weighs in favor of Congress’

power to abrogate state immunity in IGRA.

30

IV.

CONCLUSION

For the reasons set forth herein, the amici Tribes respect-

fully request that the Court reverse the opinion and judg-

ment of the Eleventh Circuit Court of Appeal that

respondent State of Florida is entitled to a judgment of

dismissal on the basis of sovereign immunity, and remand

the case for further proceedings.

Respectfully submitted,

DICKSTEIN & MERIN

HOWARD L. DICKSTEIN

2001 P Street, Suite 100

Sacramento, CA 95814

(916) 443-6911

Counsel of Record

LEVINE & ASSOCIATES

JEROME L. LEVINE

FRANK R. LAWRENCE

2049 Century Park East, Suite 710

Los Angeles, California 90067

(310) 553-8400

March 31, 1995

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