# 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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0546%3A16. Public record. Not legal advice.