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

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## Record

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

## Text

No. 94-12 ")

In THE
Supreme Court of the United States

OCTOBER TERM, 1994

SEMINOLE TRIBE OF FLORIDA,

< Petitioner,

STATE OF FLORIDA and LAWTON CHILES,
GOVERNOR OF FLORIDA,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF OF THE NATIONAL GOVERNORS’
ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,
NATIONAL CONFERENCE OF STATE
LEGISLATURES, NATIONAL ASSOCIATION OF
COUNTIES, INTERNATIONAL CITY/COUNTY
MANAGEMENT ASSOCIATION, NATIONAL LEAGUE

OF CITIES, AND U.S. CONFERENCE OF MAYORS
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

RICHARD G. TARANTO RICHARD RUDA *
FARR & TARANTO Chief Counsel
2445 M Street, N.W. LEE FENNELL
Washington, D.C. 20037 STATE AND LOCAL LEGAL CENTER
(202) 775-0184 444 North Capitol Street, N.W.
Washington, D.C. 20001
(202) 434-4850
* Counsel of Record for the
Amici Curiae

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QUESTION PRESENTED

Whether an Indian Tribe may sue a State or its Gov-
ernor in a federal court under the Indian Gaming Regu-
latory Act, 25 U.S.C. § 2710(d)(7), notwithstanding the
inability of the court under the Act to issue an enforce-
able judgment vindicating the Tribe’s interests and not-
withstanding the States’ general sovereign immunity from
suit in federal court.

(i)

TABLE OF CONTENTS

GTR PUTED cececcccnctesscsccncsccesnprecscnsnveneeee
TABLE OF AUTHORITIES. ..................:0-:c-:csseesceeseeessees
INTEREST OF THE AMICI CURIAE .....................
IIT senda chiscsidicieenerittecliciihsancnescnprecnstsivennstnerstabctatneian
SUMMARY OF ARGUMENT. ..............22..-..-ccccceeseeseeeeesees
a Sc ee nT eR

I,

II.

JURISDICTION OVER THE TRIBE’S SUIT
IS INCONSISTENT WITH ARTICLE III BE-
CAUSE THE FEDERAL COURT CANNOT
ISSUE AN ENFORCEABLE JUDGMENT
VINDICATING THE TRIBE’S INTERESTS...

THE FEDERAL COURT’S EXERCISE OF
JURISDICTION OVER THE TRIBE’S SUIT
VIOLATES THE CONSTITUTION’S PRO-
TECTION OF THE STATES’ SOVEREIGN

A. Ex Parte Young Does Not Remove The
Tribe’s Claim Against The Governor From
The Coverage Of Eleventh Amendment

B. Congress Did Not Clearly Intend In IGRA
To Abrogate The States’ Eleventh Amend-
Ii aA I AE SE

C. Congress Lacked Power To Abrogate The
States’ Eleventh Amendment Immunity........

1. Even If Union Gas Is Correct, Congres-
sional Power Is Lacking Under the Indian
ee sesumenmienseunen

2. Union Gas Should Be Overruled .............. :

STITT sccisisusincsgentidsanpsnnipsanntncbanebeniessnpiaregerenensessesesen

Page

15

15

19

22

22
25

30

iv

TABLE OF AUTHORITIES

Cases Page
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227
IIIT -<ioeuitsinainnicidtichedseendaetanseaiaaeanseiciaidakamd aii iaiahiitiadiiaeiaia 12,13
Arizona v. California, 460 U.S. 605 (1983) —.......... 25
Atascadero State Hosp. v. Scanlon, 473 U.S. 234
TIED scscasbiih cbtmmbenaddstuneatandinsieimadaaumiammaiaimiiaiianineiiiaii 19
Baldwin v. G.A.F. Seelig, Inc., 294 US. 511
IY sie hehehe aoe aN a as 25
Blatchford v. Native Village of Noatak, 501 U.S.
TIE MITTEE vcicecicscssecsassentsinbastinadebiiisssdanmbenieseimaniiiabiiialids passim
Chicago & Southern Air Lines v. Waterman S.S.
is ee ie Be CID citaieiertciecsetricctiectntnsniiesine &
Cory v. White, 457 U.S. 85 (1982) ........................... 18
Delimuth v. Muth, 491 U.S. 223 (1989) —............... 5,19
Dept. of Revenue v. ACF Industries, Inc., 114
2 2 FRR eee) ee 26
Edelman v. Jordan, 415 U.S. 651 (1974) ............. 15, 16, 17
Ex Parte Young, 209 U.S. 123 (1908) -~.................. passim
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) -........... 29
Gordon v. United States, 117 U.S. 697 (decided
f — - ane 4,8,9,13
Green v. Mansour, 474 U.S. 64 (1985) ~............... 4, 16,17
Gregory v. Ashcroft, 501 U.S. 452 (1991) -............. 26
Hafer v. Melo, 502 U.S. 21 (1991) ........................... 16
Hans v. Louisiana, 134 U.S. 1 (1890) ~......00.... 6, 28
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)........ passim
Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303
SSR er ern ee prior Sven eee Sana 27
ICC v. Brimson, 154 U.S. 447 (1894) ...............--..... 8,9
In re Sanborn, 148 U.S. 222 (1893) -.........0.-0... 8
Katzenbach v. McClung, 379 U.S. 294 (1964)........ 12
Kentucky v. Graham, 473 U.S. 159 (1985) ............ 16
Kickapoo Tribe v. Babbitt, 43 F.3d 1491 (D.C. Cir.
TERE NEIL ESE rere e e SRE we eee 20
Kline v. Burke Construction Co., 260 U.S. 226
aE COT AA ore 27
La Abra Silver Mining Co. v. United States, 175
We MEE CIID csviretcninsateiicnsatenenteveerensiniapincdiamnianaieiiandi 9
Marbury v. Madison, 5 U.S. (1 Cranch) 137
I cehaiiasicancth linet electra a cae 6, 27

ON EE a es

Vv

TABLE OF AUTHORITIES—Continued

Page
Missouri v. Fiske, 290 U.S. 18 (1933) -................... 18
Mistretta v. United States, 488 U.S. 361 (1989) .... 27
Monaco v. Mississippi, 292 U.S. 313 (1934) .......... 22
Morrison v. Olson, 487 U.S. 654 (1988) -............... 12

Muskrat v. United States, 219 U.S. 346 (1911) ..7, 8, 9, 13
NLRB v. Warren Co., Inc., 350 U.S. 107 (1956) .... 14

National Mut. Ins. Co. v. Tidewater Transfer Co.,

Uy eet 9, 27
Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249

UII siccetbaliniicsitihatintiaiidinchtaditinatadieetilt he diiesscdtathlsgessiakaadeags 12,13
New York v. United States, 112 S. Ct. 2408

RRR REET ES ane nD Sener rere passim
Oneida County v. Oneida Indian Nation, 470 U.S.

I 22
Oklahoma Tax Comm’n v. Potawatomi Indian

Tribe, 498 U.S. 505 (1991) ....................2..---.000.--+. 24
Payne v. Tennessee, 502 U.S. 808 (1991) -.............. 25
Pennhurst State School & Hosp. v. Halderman,

te § £7 ers sa passim

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ..passim
Plaut v. Spendthrift Farm, Inc., 63 U.S.L.W. 4243

I Wi I i cccrinsetementernitiabiniciitiaiateitinmmesientuds 8,9
Powell v. McCormack, 395 U.S. 486 (1969) —........... 13
Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237

I lethal attend alti eae bitin atincaiatiaes 13
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 113 S. Ct. 684 (19938) —............. 16, 18, 26
Quern v. Jordan, 440 U.S. 3382 (1979) —.................. 20, 21
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.)

ie tn FR, Tae A 24
Steffel v. Thompson, 415 U.S. 452 (1974) -............. 14
United States v. Ferreira, 54 U.S. (18 How.) 40

aa ELS PA En 9
United States v. Jefferson Elec. Mfg. Co., 291 U.S.

9 lt eA re SAL IES AS aa a nn 9
United States v. Klein, 80 U.S. (13 Wall.) 128

AP eB 18005 PINE, IR SS Te 9
United States v. Lopez, 638 U.S.L.W. 4843 (Apr.

EERIE RRS 2S AWS 02, EE Sie ree 26

vi

TABLE OF AUTHORITIES—Continued

Page

Verlinden B.V. v. Central Bank of Nigeria, 461
es A CI eis leecinmndiiiepibbintcinnnssditasttianatinabidiats 27
Wooley v. Maynard, 430 U.S. 705 (1977) ...00..0000..... 14

Statutes
Indian Gaming Regulatory Act,
inn 2
EE AE TT 2
I i 2
al passim
gy SR A a ae 21
RS EEE A ORT 12,13
A LE I Pear a IPERS 13, 14
I ee RE ROC, ONO TNO ED 14
it SETAE PLEO IL aI Ne LoD OE 14
Other Materials

Implementation and Enforcement of the Indian

Gaming Regulatory Act, Oversight Hearings

before the House Comm. on Interior and In-
sular Affairs, 102d Cong., 2d Sess. (1992)........ 21
134 Cong. Rec. 25,877 (1988) ....................eeeeeeeeeeeees 14
S. Rep. No. 446, 100th Cong., 2d Sess. (1988) ........ 11, 14
G. Gunther, Constitutional Law (12th ed. 1991).... 23

Santoni, The Indian Gaming Regulatory Act:

How Did We Get Here? Where Are We Going?,
26 Creighton L. Rev. 387 (1998) 0.000.000. 14, 20

IN THE
Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-12

SEMINOLE TRIBE OF FLORIDA,

- Petitioner,

STATE OF FLORIDA and LAWTON CHILES,
GOVERNOR OF FLORIDA,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

BRIEF OF THE NATIONAL GOVERNORS’
ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,
NATIONAL CONFERENCE OF STATE
LEGISLATURES, NATIONAL ASSOCIATION OF
COUNTIES, INTERNATIONAL CITY/COUNTY
MANAGEMENT ASSOCIATION, NATIONAL LEAGUE
OF CITIES, AND U.S. CONFERENCE OF MAYORS
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state and
local governments and officials throughout the United
States, have a compelling interest in legal issues that af-
fect state and local governments. This case raises just
such issues: whether a Tribe may sue a State or its Gov-
ernor in a federal court under the Indian Gaming Regu-
latory Act (IGRA), 25 U.S.C. § 2710(d)(7), notwith-
standing the inability of the court under the Act to issue

2

an enforceable judgment vindicating the Tribe’s interests
and notwithstanding States’ general sovereign immunity
from suit in federal court. The Court’s decision in this
case will affect a significant number of suits under IGRA
itself and, more generally, clarify the amenability of
States and state officials to suit in federal court. Amici
have a strong interest in the correct resolution of the
issues presented.’
STATEMENT

The Seminole Tribe of Florida brougft this suit against
the State of Florida and its Governor under the Indian
Gaming Regulatory Act (IGRA), 25 U.S.C. § 2710
(d)(7)(A), (B), alleging a violation of the statutory
duty to negotiate in good faith for the purpose of entering
into a Tribal-State compact governing the conduct of
“Class III” gaming activities, a category that includes
casino gambling, lotteries, and other forms of gaming.
25 U.S.C. §$§ 2703(8), 2710(d)(3)(A). The Tribe's
complaint rested specifically on the State’s refusal to ne-
gotiate about casino gaming, which Florida viewed as
outside the IGRA duty because Florida law generally
does not permit anyone to engage in casino gaming. See
25 U.S.C. § 2710(d)(1)(B) (Class III gaming activities
are lawful, and hence subject to the negotiation duty,
only if the State “permits such gaming” by others (em-
phasis added)). The Tribe’s suit alleged that IGRA ap-
plies here because Florida law permits non-casino types
of Class III gaming (and because Florida did not en-
force its gaming laws against charities that hold casino
nights). See Pet. App. 54a-55a, 6la. The parties dis-
agreed, at bottom, about whether IGRA applies to each
type of Class III game separately or whether States must
negotiate about all types of Class III games if they allow
any type.

The defendants moved to dismiss the suit, asserting
sovereign immunity as recognized by the Eleventh

1 The parties have consented to the filing of this brief amicus
curiae. Letters indicating their consent have been filed with the
Clerk of the Court.

3

Amendment. The district court denied the motion, hold-
ing that Congress abrogated, and had the constitutional
power to abrogate, such immunity in IGRA. Pet. App.
26a, 30a. On an interlocutory appeal, the Eleventh Cir-
cuit reversed. Jd. at la-25a. Although the court of ap-
peals agreed with the district court that Congress in-
tended to abrogate States’ immunity in IGRA (id. at
14a-15a), it concluded that Congress lacked constitu-
tional authority under the Indian Commerce Clause to
effect such abrogation. /d. at 18a-22a. The court of
appeals also held that the Tribe’s claim against the Gov-
ernor was in reality one against the State and could not
be brought within the exception to Eleventh Amendment
immunity recognized in Ex Parte Young, 209 U.S. 123
(1908). Pet. App. 23a-24a. The court accordingly
ordered the case dismissed.’

SUMMARY OF ARGUMENT

The Tribe’s suit was correctly ordered dismissed be-
cause allowing federal-court jurisdiction over the suit
would violate two distinct constitutional constraints. The
first constraint is the Article III prohibition on federal
courts’ performance of adjudicatory roles inconsistent
with the historically accepted notion of “judicial” power.
The second constraint is the constitutional prohibition,
implicit in Article III and recognized in the Eleventh
Amendment, on federal courts’ entertaining suits against
States where sovereign immunity has not been waived or
validly abrogated.

I. IGRA assigns a non-judicial task to the federal
courts in violation of Article III. IGRA does not pro-
vide for a judicially enforceable judgment that itself vin-

2 While the interlocutory appeal was pending, the district court
decided the merits of the case, granting summary judgment to the
state defendants by adopting, in accord with other courts’ deci-
sions, the State’s game-specific view of the scope of the IGRA
duty. Pet. App. 43a-83a. The Tribe’s appeal from that judgment
is pending in the Eleventh Circuit. /d. at 84a.

4

dicates the Tribe’s asserted interests. Rather, the federal
court under IGRA can do no more than pronounce a
federal-law violation; it cannot carry that judgment into
effect so as to secure relief for the Tribe, which must
proceed to a non-Article III process (first a mediator,
then the Executive Branch) in order to obtain actual
relief. The unenforceability of the court’s judgment and
the dependency on subsequent discretionary Executive
Branch action both render IGRA’s assignment of juris-
diction to the federal courts inconsistent with long-
established principles defining the essential nature of the
judicial power under Article III. See, e.g., Gordon v.
United States, 117 U.S. 697, 702-03 (decided 1864,
printed 1886) (opinion of Taney, C.J.); Hayburn’s Case,
2 U.S. (2 Dall.) 409 (1792). Congress, in its effort to
avoid independent federalism problems presented by
greater intrusions on state sovereignty (see New York
v. United States, 112 S. Ct. 2408 (1992)), has created
a scheme that asks the Article III courts to play an im-
properly non-judicial role.

II. Independently of that Article III problem, the
Tribe’s suit was correctly ordered dismissed because both
defendants, the Governor and the State, are protected
from the suit by the sovereign immunity recognized in
the Eleventh Amendment. As to the Governor, the doc-
trine of Ex Parte Young, 209 U.S. 123 (1908), should
be held inapplicable. Young states a doctrine of federal
necessity, generally allowing federal courts to enjoin
State officers to conform their future conduct to federal-
law standards; even then, because Young displaces an
otherwise-available constitutional immunity, the doctrine
has been carefully limited so as itself to accommodate
States’ interests. See, e.g., Green v. Mansour, 474 U.S.
64, 68 (1985); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 105 (1984). Under IGRA,
however, the federal court does not issue an injunction
compelling compliance with any federal-law standards;
and any claim of “necessity” for the federal courts’ role
in vindicating federal standards (which Congress has re-

5

fused to set) is utterly hollow. At the same time, apply-
ing Young to IGRA would involve an extraordinary (if
not novel) intrusion on States’ sovereign interests, since
the object of the IGRA suit is to produce an affirmative
exercise of state lawmaking authority (rules for tribal
gaming) as a substitute for federal policy choice on the
subject. Cf. New York v. United States, supra. For each
of those reasons, the Young exception to the otherwise-
fundamental sovereign-immunity principle of our federal-
ist structure should not apply here.

Eleventh Amendment immunity therefore bars this suit
unless the immunity has been validly abrogated. But
IGRA should not be read as providing a sufficient basis
for concluding that the immunity has been abrogated.
The Court has made clear that, to find abrogation, it
must have “perfect confidence that Congress in fact in-
tended” to override States’ sovereign immunity. Dellmuth
v. Muth, 491 U.S. 223, 231 (1989) (emphasis added).
IGRA’s reference to “State[s]” (25 U.S.C. § 2710(d)(7))
is the sole asserted basis for finding abrogation, but that
reference should not by itself be deemed sufficient to
demonstrate—in the absence of any other evidence of
congressional consideration of the constitutionally signifi-
cant matter of displacing States’ immunity—that Congress
actually intended abrogation. Rather, the statute is much
more plausibly understood as reflecting a congressional
assumption (mistaken, as we have argued) that Ex Parte
Young made any abrogation unnecessary.

If IGRA is nevertheless read to reflect an intent to
abrogate States’ immunity, Congress should be held to
lack the constitutional power to do so under the Indian
Commerce Clause and, indeed, more generally under
Article I. As to the narrower point, even if this Court
continues to adhere to the holding of Pennsylvania v.
Union Gas Co., 491 U.S. 1 (1989), that Congress has
abrogation authority under the Interstate Commerce
Clause, no such authority should be found under the
Indian Commerce Clause. The mutuality of interests
among the States in legislative power to regulate interstate

6

commerce (power that is intrinsically concerned with
protecting States against each other) is at least a con-
ceptually plausible starting point for inferring a structur-
ally implicit “surrender of [sovereign] immunity in the
plan of the convention.” Union Gas, 491 U.S. at 19
(plurality opinion) (internal quotation marks omitted).
That starting point is unavailable for congressional au-
thority under the Indian Commerce Clause, because no
comparable mutuality inheres in such authority. Indeed,
this distinction is mirrored in the Court’s decisions in a
closely analogous context: although the Eleventh Amend-
ment does not protect States against suits by other States,
it does protect States against suits by Tribes. Blatchford
v. Native Village of Noatak, 501 U.S. 775 (1991).

In any event, this Court should overrule Union Gas
and find abrogation authority generally lacking under
Article I. Fresh consideration of the Article I issue is
warranted because there was no rationale of the Court in
Union Gas (the fifth vote was wholly unexplained) and
federalism interests have acquired greater recognition in
constitutional doctrine since Union Gas was decided. On
reconsideration, the issue should be decided in accord
with the fundamental principle that Congress has no
power under Article I to assign the federal courts judicial
power outside the limits set by Article III—a principle
recognized in Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803), in Hayburn’s Case, supra, and often since.
Allowing abrogation under Article I would violate that
principle because States’ sovereign immunity is an implicit
limit on the judicial power created by Article III. See
Pennhurst, 465 U.S. at 98; Hans v. Louisiana, 134 U.S.
1 (1890). This principle preventing Article I authority
from expanding Article III power has special force as ap-
plied to an Article III limit, like sovereign immunity, that
gives effect to a basic component of our federalist struc-
ture. And on the other side of the federal-state balance,
there is no sound reason to conclude that a newly broad
Article I abrogation authority is peculiarly necessary to
vindicate the supremacy of federal law. Finally, the

oe ewe

7

authority of Congress to abrogate States’ immunity under
the Fourteenth Amendment—which modified pre-existing
constitutional limits on federal power over States on a
specifically defined set of subjects—furnishes no basis for
inferring that States broadly surrendered their right to
insist On sovereign immunity in the plan of the original
convention.
ARGUMENT
I, JURISDICTION OVER THE TRIBE’S SUIT IS IN-
CONSISTENT WITH ARTICLE III BECAUSE THE
FEDERAL COURT CANNOT ISSUE AN ENFORCE-
ABLE JUDGMENT VINDICATING THE TRIBE’S
INTERESTS

The cause of action created by IGRA assigns a novel
and dramatically limited role to the federal court hearing
the claim. Even if the court agrees with the Tribe’s com-
plaint that the State is acting unlawfully (i.e., is failing to
negotiate in good faith), the court cannot issue an en-
forceable order that vindicates the interests asserted in
the suit; indeed, real relief for the Tribe ultimately is
available only from the Executive Branch. The issu-
ance of an unenforceable judgment declaring a defend-
ant’s conduct unlawful, backed by no ability on the
part of the judiciary to award any concrete relief, retro-
spective or prospective, is not a function within the
“judicial power” of the federal courts as it has long been
understood. Accordingly, the Tribe’s suit should be held
to exceed the bounds set by Article III and for that rea-
son be dismissed.*

A. It has been clear for 200 years that Congress may
not assign to the federal courts adjudicatory tasks outside
the scope of the “judicial power” contemplated by Article
III of the Constitution. See Hayburn’s Case, 2 U.S. (2
Dall.) 409 (1792); Muskrat v. United States, 219 U.S.
346, 352-56 (1911). And, as this Court has recently

* This issue, though not previously raised and not among the
questions on which certiorari was granted, is properly raised in
this Court because it is jurisdictional.

8

reiterated, the “judicial power” created by Article III
encompasses certain historically understood essential com-
ponents, including the power to decide a case conclusively.
Plaut v. Spendthrift Farm, Inc., 63 U.S.L.W. 4243 (Apr.
18, 1995). The task assigned to the federal court by
IGRA implicates two aspects of the “judicial power” that
are closely related to, and equally well-founded in accepted
understanding as, those underlying the decision in Plaut.

First, numerous decisions of this Court have explained
that the judicial power necessarily includes the power to
render a judgment, enforceable by the judiciary, that vin-
dicates the legal interest of the plaintiff. “The award of
execution is a part, and an essential part of every judg-
ment passed by a court exercising judical power. It is
no judgment, in the legal sense of the term, without it.
Without such an award the judgment would be inopera-
tive and nugatory, leaving the aggrieved party without a
remedy.” Gordon v. United States, 117 U.S. 697, 702-03
(decided 1864, printed 1886) (opinion of Taney, C.J.)
(cited with approval in Plaut, 63 U.S.L.W. at 4248); see
In re Sanborn, 148 U.S. 222, 224 (1893) (following
Gordon's holding that “as the so-called judgments . . .
were not obligatory upon Congress or upon the execu-
tive department of the government, but were merely opin-
ions which might be acted upon or disregarded by Con-
gress or the departments, and which this court has no
power to compel the court below to execute, such judg-
ments could not be deemed an exercise of judicial power”) ;
ICC v. Brimson, 154 U.S. 447, 484 (1894) (quoting
Gordon, 117 U.S. at 702); Muskrat, 219 U.S. at 356,
362 (“ ‘Judicial power,’ says Mr. Justice Miller in his
work on the Constitution, ‘is the power of a court to
decide and pronounce a judgment and carry it into effect
between persons and parties who bring a case before it for
decision.’”; holding assignment of power invalid because
“[iJn a legal sense the judgment could not be executed,
and amounts in fact to no more than an expression of
opinion upon the validity of the acts in question”); Chi-

9

cago & Southern Air Lines v. Waterman S.S. Corp., 333
U.S. 103, 113 (1948) (“if the President may completeiy
disregard the judgment of the court, it would be only
because it is one the courts were not authorized to
render”). See also National Mutual Ins. Co. v. Tidewater
Transfer Co., 337 U.S. 582, 630 (1949) (Vinson, C.J.,
dissenting) (Court’s decisions “clearly condition the power
of a constitutional court to take cognizance of any cause
upon . . . the power to pronounce a judgment and carry
it into effect between persons and parties who bring a
case before it for decision”) (citing Muskrat and
Gordon).

Second, and relatedly, the Court has made clear in
a long line of decisions growing out of Hayburn’s Case
that actual vindication of the plaintiff's interest must *be
provided by the court’s judgment and cannot be made
contingent on the subsequent discretionary decision of
another branch of the federal government. See Chicago
& Southern Air Lines, 333 U.S. at 113-14 (“It has also
been the firm and unvarying practice of Constitutional
Courts to render no judgments not binding and conclu-
sive on the parties and none that are subject to later
review or alteration by administrative action.”), citing
Hayburn’s Case; United States v. Ferreira, 54 U.S. (13
How.) 40 (1851); Gordon; Brimson; La Abra Silver
Mining Co. v. United States, 175 U.S. 423 (1899);
Muskrat; United States v. Jefferson Elec. Mfg. Co., 291
U.S. 386 (1934). Because it is the judgment awarding
relief that is the essential component of the judicial func-
tion, not the factual or legal determinations made by the
court on the way to entering the judgment,‘ this Article
III problem is present whenever the court’s ability to

* The Court confirmed this in its recent decision in Plaut, where
the reopening of the final judgment by another Branch did not
repudiate any factual or legal determinations underlying the re-
opened judgment, but changed the substance of the law that was
the sole basis for the judgment. 63 U.S.L.W. at 4245 (statute
presented no problem under United States v. Klein, 80 U.S. (13
Wall.) 128 (1872), because it changed the law).

10

award relief is made dependent on subsequent non-
ministerial Executive Branch action, even if the Executive
is bound to follow component findings of fact or conclu-
sions of law. Non-judicial discretion subsequently to deny
the relief sought in the suit creates the Hayburn’s Case
problem.

B. The function assigned to the court by IGRA is
incompatible with each of these deeply entrenched under-
standings defining the Article III concept of judicial
power, because of “the limited nature of the relief” (U.S.
Br. 25) that IGRA authorizes the judiciary to provide.
The statute carefully “prescribes remedial procedures if
the district court finds” that the State did not engage in
good faith negotiation (U.S. Br. 16). See 25 U.S.C.
§ 2710(d)(7)(B). But those procedures do not allow
the district court’s judgment to vindicate the Tribe’s in-
terests. Worse, concrete vindication of the Tribe’s inter-
ests ultimately is available, not through the courts, but
only by subsequent discretionary action of the Executive
Branch.

The Tribe has some interest simply in having the State
negotiate in good faith, whether or not they conclude a
compact on Class III gaming. But that interest is not
vindicated by the federal court under IGRA, because
IGRA, by its terms, does not provide for an order direct-
ing the State to negotiate—much less a judicially enforce-
able order. Rather, the statute expressly prescribes that
the court, if it finds lack of good faith negotiation toward
a compact, issue an order to “conclude such a compact”
within 60 days. Paragraph (iii).° Even then, the court
has no power to compel compliance with that order: if
the State violates it, by not concluding a compact, IGRA
expressly provides that the court merely appoints a medi-
ator—and the court plays no further role. Paragraph
(iv). As the Tribe indicates, “[t]he relief sought by
the Tribe is an order either to conclude a compact within

5 We refer here, and in the next several paragraphs in text, to
paragraphs of 25 U.S.C. § 2710(d) (7) (B).

11

sixty days, or to invoke the alternative procedure of medi-
ation.” Pet. Br. 29. The State is at no point judicially
forced to negotiate.

Although IGRA gives Tribes no more than a legal
right to have the State negotiate in good faith, the Tribe’s
ultimate interest, of course, is in securing a compact from
the State or otherwise gaining permission for Class III
gaming. And the district court under IGRA, upon find-
ing lack of good faith negotiation, does direct the Tribe
to enter a compact. Paragraph (iii). But that order,
while on its face seeming to vindicate the Tribe’s interest,
is only a paper vindication, because it is in no way en-
forceable by the courts, such as through the usual means
applicable to prospective relief, i.e., contempt. Rather,
as just noted, if the State fails to conclude a compact, the
statute specifies that the court drops out of the picture
after referring the entire matter to a mediator. Paragraph
(iv). Again, the Tribe cannot, in its lawsuit, judicially
secure a compact or other authority for Class III gaming.

In fact, the Tribe cannot, under IGRA, secure any agree-
ment from the State at all. The mediator appointed under
IGRA, like any “mediator,” cannot impose an agreement:
after choosing between the Tribe’s and State’s proposals
“the one which best comports with the terms of [IGRA]
and any other applicable Federal law and with the find-
ings and order of the court” (paragraph (iv)), the medi-
ator asks the parties to agree to the choice. Paragraph
(v). If no agreement is forthcoming, the Secretary of
the Interior takes over the process and, rather than order-
ing any Tribe-State compact, adopts federal regulations
for Class III gaming. Paragraph (vii). Ultimately, then,
it is only the Secretary, necessarily exercising a substantial
range of discretion, who can provide the Tribe the gaming
authority it seeks.°

® The decision of the Secretary, who is directed to adopt regula-
tions “consistent with” the mediator’s choice (paragraph (vii) ),
at a minimum incorporates the range of discretion exercised by
the mediator in choosing the “best” proposal. See paragraph (iv) ;
S. Rep. No. 446, 100th Cong., 2d Sess. 19 (1988) (describing range

12

The Tribe and the United States agree that the judiciary
when applying IGRA lacks authority actually to issue an
enforceable award of concrete relief. Thus, the Tribe
acknowledges that the court’s order is “an order which
the state can disregard” (Pet. Br. 26) without judicial
sanction. And the United States observes that “there is
no indication that the State’s failure to agree to a compact
(or even to participate in negotiations) during [the 60-
day] period was intended to expose the State to any
more intrusive order or to contempt.” U.S. Br. 25.

What IGRA provides for, in short, is a wholly unen-
forceable judicial pronouncement. This Court has long
made clear that Article III does not allow the federal
courts to perform such a role. That is enough to invali-
date IGRA’s assignment of jurisdiction to the federal
courts. Worse still, IGRA treats the federal court as
merely the first step in a process under which real relief
is available only through the subsequent discretionary
act of the Executive Branch. That, too, violates long-
standing Article III principles.

C. This problem cannot be solved by treating the
judgment under IGRA as if it were a declaratory judg-
ment under 28 U.S.C. § 2201, whose general validity
under Article III this Court has upheld. See Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227 (1937); Nashville,
C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). For
one thing, IGRA by its terms does not provide for a
declaratory judgment, but for a carefully defined form of
limited relief, and thus occupies the remedial field to the
exclusion of 28 U.S.C. § 2201. See Katzenbach v. Mc-

of relevant factors). In fact, the statute surely must be read to
authorize the Secretary to exercise the full range of available dis-
cretion. Against the background of the Constitution’s separation
of powers, Congress cannot be assumed to have conferred discre-
tionary executive power over States on a “mediator,” an inferior
officer in Appointments Clause terms, appointed by a court and
not apparently accountable to the Secretary. See Morrison v.
Olson, 487 U.S. 654, 675-77 (1988) (“incongruity” standard for
cross-Branch appointments).

13

Clung, 379 U.S. 294, 296 (1964).’ In any event, no
decision of this Court suggests that an action for a declar-
atory judgment would be consistent with Article III if, as
under IGRA, the judgment provides no judicially enforce-
able relief or, worse, requires subsequent discretionary
Executive Branch action to be effective.

To the contrary, the federal declaratory judgment stat-
ute has long provided that the judicial declaration of
rights is backed by the court’s power to enforce the declar-
atory judgment, if necessary, through further appropriate
relief. See 28 U.S.C. § 2202; Powell v. McCormack, 395
U.S. 486, 499 (1969) (“A declaratory judgment can
then be used as a predicate to further relief, including
an injunction.”). That enforcement power was present
in the seminal decisions of this Court holding, contrary
to earlier decisions, that Article III does not bar ail actions
for a declaratory judgment. Aetna, 300 U.S. at 236 n.1;
Nashville, 288 U.S. at 260. And those decisions pointedly
stressed, in finding no Article III problem, that the judg-
ments were not subject to executive revision (Nashville,
288 U.S. at 262, citing Gordon, supra) and produced
“specific relief through a decree of a conclusive character”
(Aetna, 300 U.S. at 241, citing Muskrat, supra). See
also Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237
(1952). It is these fundamental Article III requirements,

7 Although the Tribe here pleaded 28 U.S.C. § 2201 in its com-
plaint (J.A. 13a), neither the Tribe nor the United States relies
on that provision in their briefs—presumably because any such
reliance would be incompatible with their firm insistence, in trying
to minimize concern on the Eleventh Amendment issues, that the
State is free to “disregard” the district court’s judgment in this
suit (Pet. Br. 26; see also Pet. Br. 29) and that the district court’s
order under IGRA cannot be enforced by injunction (U.S. Br. 25).
As noted below, declaratory judgments under 28 U.S.C. § 2201 are
enforceable under 28 U.S.C. § 2202.

The same problem of inconsistency with IGRA would plague any
invocation of other remedies (in federal or state court) that go
beyond the carefully prescribed remedial procedures of IGRA.

14

which must be met even for a declaratory judgment ac-
tion to be valid, that IGRA fails to meet.*

The Article III problems with IGRA likewise cannot
be solved by analogy to the judicial role in certain labor-
law cases. Under the National Labor Relations Act, for
example, a federal court can hear a suit alleging a lack
of good faith bargaining and render a judgment ordering
good faith bargaining. 29 U.S.C. §§ 158(d), 160(a),
(c), (e). The federal court’s order, however, is clas-
sically judicial: an injunction backed by the power of
contempt for its violation. See NLRB v. Warren Co.,
Inc., 350 U.S. 107, 112-13 (1956). The judicial role
in that situation thus furnishes no precedent for the non-
judicial role assigned to federal courts by IGRA.

D. The Article III problem with IGRA cannot prop-
erly be avoided by a judicial construction of the statute
that would ignore “the limited nature of the relief au-
thorized by IGRA” (U.S. Br. 25) by expanding the
courts’ remedial authority. As a matter of congressional
intent, the “innovative” jurisdictional scheme set up by
IGRA (U.S. Br. 28) must be understood as an essen-
tial element of Congress’s careful balancing of competing
tribal and state interests, achieved after years of effort.
See S. Rep. 446, supra, at 13-14; see generally Santoni,
The Indian Gaming Regulatory Act: How Did We Get
Here? Where Are We Going?, 26 Creighton L. Rev. 387,
395-403 (1993). Construing IGRA to authorize greater
judicial power than the text allows “would destroy the
delicate federal/tribal/state balance sought by the Act.”
Pet. Br. 14. See also 134 Cong. Rec. 25,377 (1988)

8 These basic requirements were not repudiated by Steffel v.
Thompson, 415 U.S. 452 (1974), which nowhere held that a federal
court may issue a declaratory judgment that the defendant is free
to disregard (as under IGRA) without any judicial sanction (fed-
eral or state). It seems clear, in fact, that a declaratory judgment
issued under Steffel, like other declaratory judgments, may be
enforced, if necessary, under 28 U.S.C. § 2202. See Wooley v.
Maynard, 430 U.S. 705, 710-12 (1977) (injunction allowed if

necessary ).

15

(remarks of Rep. Udall) (“S. 555 is a delicately bal-
anced compromise.” ).

A more intrusive remedy would also raise other con-
stitutional concerns, which Congress gave no indication
it intended to raise. As this Court made clear in New
York v. United States, 112 S. Ct. 2408 (1992), given
the structure of federalism embodied in the Constitution
and reflected in the Tenth Amendment, a serious question
is presented when Congress, rather than itself making
and administering policy in an area at the federal level,
forces States to exercise the States’ own sovereign gov-
ernmental authority. Id. at 2420-21. A reading of IGRA
that would authorize federal court compulsion of States
to negotiate a legislative deal with Tribes, as a substitute
for a federal policy determination of the scope of any
authority for Class III gaming, would raise precisely that
constitutional question. The Article III problem with
IGRA, created by an attempt to avoid federalism diffi-
culties, cannot be solved by a judicial rewriting of IGRA
that would raise those difficulties.

II. THE FEDERAL COURTS EXERCISE OF JURIS-
DICTION OVER THE TRIBE’S SUIT VIOLATES
THE CONSTITUTION’S PROTECTION OF THE
STATES’ SOVEREIGN IMMUNITY

A. Ex Parte Young Does Not Remove The Tribe's
Claim Against The Governor From The Coverage
Of Eleventh Amendment Immunity

The Tribe and the United States suggest that the prin-
cipal Eleventh Amendment question at issue here—
whether IGRA validly abrogates States’ immunity—may
be avoided, at least as a practical matter, by invocation
of Ex Parte Young, 209 U.S. 123 (1908). See Pet. Br.
23-31; U.S. Br. 12-19 & n.5. Under that theory, the
Tribe’s claim against the Governor is not truly a suit
against the State within the meaning of the Eleventh
Amendment (see, e.g., Edelman v. Jordan, 415 U.S. 651
(1974) ), so that no immunity question would arise with
respect to the Tribe’s claim against the Governor. This

16

invocation of Ex Parte Young should be rejected, because
the Tribe’s suit under IGRA presents a radically different
balance of federal and state interests from the balance
justifying application of the Young doctrine.

The starting point is the basic principle that a suit
against a state official seeking relief that runs against
the office holder in that person’s official capacity is in
reality a suit against the State. See Hafer v. Melo, 502
U.S. 21, 25-27 (1991); Kentucky v. Graham, 473 US.
159, 165-66 (1985); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 101 (1984). This Court in
Ex Parte Young, however, created a legal “fiction” carv-
ing out an exception to that basic principle. See Penn-
hurst, 465 U.S. at 105; U.S. Br. 25 (Young creates
“ ‘fiction’” where State is real party in interest). Under
that exception, a suit against a state officer seeking an
injunction against future violations of federal law gen-
erally is deemed not to be a suit against the State for
purposes of States’ Eleventh Amendment immunity. See,
e.g., Pennhurst; Edelman.

This doctrine rests on a judgment about constitutional
“necessity” as a justification for overriding the otherwise-
applicable constitutional immunity of States in a particu-
lar class of cases. Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993)
(Young “is regarded as carving out a necessary exception
to Eleventh Amendment immunity”); see Green v. Man-
sour, 474 U.S. 64, 68 (1985); Pennhurst, 465 U.S. at
105. In our federalist system, Young makes clear, the
supremacy of federal law requires that federal courts be
able to enjoin state officers’ future non-compliance with
federal-law standards in order “to vindicate federal rights
and hold state officials responsible to ‘the supreme au-
thority of the United States.’” Pennhurst, 465 U.S. at
105 (quoting Young, 209 U.S. at 160). Even so, as an
exception to fundamental structural constitutional prin-
ciples, the Young doctrine has been carefully confined
to apply only where necessary to vindicate federal inter-
ests; beyond that, the Court has explained “that the need

17

to promote the supremacy of federal law must be accom-
modated to the constitutional immunity of the States.”
Pennhurst, 465 U.S. at 105.

The first, sufficient reason why the Tribe’s suit under
IGRA is outside the ambit of Young is that there is little
if any “federal necessity” for allowing the IGRA claim.
As we have explained, and the Tribe and the United
States vigorously insist, “the limited nature of the relief
authorized by IGRA” (U.S. Br. 25) means that the
federal court under IGRA issues no injunction or other
enforceable order that compels the Governor to adhere
to federally established standards. The federal court can-
not enforce compliance with the federal duty asserted, i.e.,
cannot compel negotiation (or agreement). Even if the
court’s role under IGRA is permitted by Article III (but
see Argument I, supra), it is decidedly beyond the reach
of the Ex Parte Young doctrine. Cf. Green v. Mansour,
474 U.S. at 73 (declaratory relief would threaten Edel-
man limit on Young if not related to injunctive relief).
There can be no plausible claim that any structural need
to vindicate the supremacy of federal law, on which
Young rests, requires that state officials be subject to a
judicial order that “the state can disregard” (Pet. Br.
26), for such an order does not “secure compliance with
federal law” (U.S. Br. 13 (emphasis added)). Because
the entire justification for Young is absent, the doctrine

should not apply to the peculiar cause of action created
by IGRA.®

Ex Parte Young should, if necessary, be held inappli-
cable for a second reason as well: the interests on the
State side of the constitutional balance are distinctively

* The Eleventh Circuit, in finding Young inapplicable, alluded to
the unenforceability of the judicial order under IGRA as follows:
“since IGRA provides a procedure should the state decide not to
negotiate, even the mere question of whether the state should
negotiate at all is subject to discretion.” Pet. App. 28a-24a, quoted
at Pet. Br. 29. As noted above, the limited character of the federal
intrusion cannot be disregarded, because it reflects federalism prin-
ciples that are an essential aspect of IGRA.

18

strong. In the ordinary Young situation, a state official
is enjoined to refrain from executive or administrative
actions that violate substantive federal standards govern-
ing such actions (set by the Constitution or by federal
statute or regulation). Under IGRA, by contrast, the
suit seeks ultimately to require an affirmative exercise of
state legislative authority (setting rules for tribal gam-
ing), essentially as a substitute for federal policy choice
in the area. See Pet. App. 23a. The intrusion on state
sovereignty is categorically extraordinary, if not wholly
unprecedented, in this circumstance. Cf. New York v.
United States (special category of federalism problems
with federal directives requiring the exercise of state leg-
islative authority). Holding the Young doctrine inap-
plicable in this unusual situation would appropriately
“accommodate[]” the doctrine to reflect States’ constitu-
tional interests (Pennhurst, 465 U.S. at 105) while leav-
ing unimpaired the federal government’s power to make
needed policy choices, and set enforceable federal stand-
ards, itself. In short, Young should not apply to IGRA
because, in addition to the federal interest being distinc-
tively weak, the State’s interest—in being treated as a
State when its most sovereign function is at stake—is
distinctively strong.

It is no answer to say that Eleventh Amendment im-
munity is chiefly concerned with money judgments. This
Court has often held that the Eleventh Amendment's
“jurisdictional bar applies regardless of the nature of the
relief sought.” Pennhurst, 465 U.S. at 100; see Cory v.
White, 457 U.S. 85, 90-91 (1982); Missouri v. Fiske,
290 U.S. 18 (1933). Moreover, the principle of sov-
ereign immunity, protecting States’ dignity and indepen-
dence (Puerto Rico Aqueduct & Sewer Auth., 113 S. Ct.
at 689), is centrally implicated by federal intrusions into
the exercise of state lawmaking power. What is distinc-
tive about injunctive claims, under Young, is not that the
States’ interest is weaker, but that the necessity justifica-
tion for overriding the States’ immunity is stronger.
Where no such justification is present, however, the con-

19

stitutional protection of States’ immunity retains its full
force. Accordingly, the Tribe’s suit should be recognized
as one entirely against the State, subject to dismissal
under the Eleventh Amendment unless Congress has
validly abrogated States’ immunity.

B. Congress Did Not Clearly Intend In IGRA To

Abrogate The States’ Eleventh Amendment Im-
munity

The question of congressional power to abrogate
States’ Eleventh Amendment immunity need not be
reached unless IGRA is construed as effecting such an
abrogation. On this threshold issue of statutory interpre-
tation, this Court has laid down “a simple but stringent
test: ‘Congress may abrogate the States’ constitutionally
secured immunity from suit in federal court only by mak-
ing its intention unmistakably clear in the language of the
statute.” Dellmuth v. Muth, 491 U.S. 223, 228 (1989),
quoting Atascadero State Hosp. v. Scanlon, 473 USS.
234, 242 (1985). This Court should hold that IGRA
does not meet this standard.

The entirety of the argument for finding that IGRA
effects an abrogation—unavoidably, because there is no
other evidence of congressional consideration of the im-
munity question—is that the statute refers several times
to the “State” in describing the Tribe’s cause of action.
See U.S. Br. 20. These references are indubitably a very
important fact in the analysis, but to deem them utterly
conclusive in the present circumstances would mistakenly
treat the demand for clear textual statement as somehow
an end in itself. In fact, the textual requirement is im-
posed, not for its own sake, but as a guarantor of the
underlying congressional intent to take the constitution-
ally extraordinary step of overriding States’ immunity:
congressional intent to abrogate remains the test, and
that intent must be proved with “certainty.” Atascadero,
473 U.S. at 243°; see Dellmuth, 491 U.S. at 231 (“the

10 “(I]t is incumbent upon the federal courts to be certain of
Congress’ intent before finding that federal law overrides the guar-

20
salient point in our view is that it cannot be said with
perfect confidence that Congress in fact intended ... to

abrogate sovereign immunity, and imperfect confidence
will not suffice given the special constitutional concerns
in this area” (emphasis added)). In IGRA, the refer-
ences to the “State” are not enough to show “that Con-
gress considered and firmly decided to abrogate the
Eleventh Amendment immunity of the States.” Quern
v. Jordan, 440 U.S. 332, 345 (1979).

The United States’s discussion of Ex Parte Young (see
U.S. Br. 18) effectively explains why the statutory lan-
guage cannot carry the required weight. Because States
“can act only through their officials” (U.S. Br. 18, citing
Pennhurst, 465 U.S. at 114 n.25), the United States cor-
rectly insists that, when Congress used the word ‘State,
it undoubtedly was contemplating that the negotiating
obligation imposed by IGRA would fall on, and the suits
invoking that obligation would be brought against, those
officials vested with authority under state law to negotiate
on behalf of the States” (U.S. Br. 18).” Surely that is
the natural congressional understanding behind the enact-
ment of a statute that does not provide for retrospective
relief, since the established doctrine of Ex Parte Young
generally makes it unnecessary for a plaintiff suing under
such a statute to name the State itself as a defendant and
hence unnecessary for Congress to consider the question
of, or decide to abrogate, Eleventh Amendment immunity.

antees of the Eleventh Amendment. The requirement that Con-
gress unequivocally express this intention in the statutory language
ensures such certainty.” Atascadero, 473 U.S. at 243.

11 Congress likely assumed that in each State a particular official
(particularly, the Governor) would have authority to conduct the
negotiations required by IGRA. See Santoni, supra, at 424. The
article just cited contains a list of compacts under IGRA as of
1998. Except for Kansas, we are aware of no evidence casting
doubt on the complete authority of the Governor in each State, not
only to negotiate, but to enter into compacts under IGRA. (With
respect to Kansas, see Kickapoo Tribe v. Babbitt, 43 F.3d 1491
(D.C. Cir. 1995).)

aa

21

The text of IGRA is for that reason fully, and most
naturally, understood as indicating only a congressional
intent to authorize suits against state officials, for which
Congress assumed that no abrogation of Eleventh Amend-
ment immunity was required. And the relevant legislative
history is, apparently, devoid of any evidence that Con-
gress actually thought about the subject of Eleventh
Amendment immunity and decided to abrogate it. That
silence is telling in itself, because abrogation is, at a
minimum, an extraordinary action in our federal system.
See Quern v. Jordan, 440 U.S. at 343 (silence significant
under 42 U.S.C. § 1983). It is even more significant
against the background of grave uncertainty about Con-
gress’s constitutional authority to abrogate States’ im-
munity under Article I. It would be surprising if Con-
gress meant to exercise this disputed authority when it
left no record of its consideration of the issue and almost

surely assumed that it had no need to exercise the au-
thority.

These compelling reasons to conclude that Congress
did not make a decision to abrogate States’ immunity
are not altered by the fact, as we have argued, that Con-
gress was mistaken in thinking that Ex Parte Young ap-
plies and makes abrogation unnecessary."2 Whether or
not Congress’s assumption was erroneous, there is no in-
dication that Congress intended to take away States’ con-
stitutional immunity. And, in a statute reflecting so deli-
cate a balance of state, federal, and tribal interests, it
cannot be assumed that Congress would have enacted the
same scheme had it recognized that doing so would com-
pel stripping States of their Eleventh Amendment im-
munity. For these reasons, the Court should find that

* Congress may also have thought that 28 U.S.C. § 1362 abro-
gated immunity (see Implementation and Enforcement of the
Indian Gaming Regulatory Act, Oversight Hearings before the
House Comm. on Interior and Insular Affairs, 102d Cong., 2d Sess.
146, 149 (1992) )—though that assumption has turned out to be

incorrect. See Blatchford v. Native Village of Noatak, 501 U.S.
775 (1991).

22

IGRA does not embody a clearly intended abrogation
of Eleventh Amendment immunity.

C. Congress Lacked Power To Abrogate The States’
Eleventh Amendment Immunity

This Court in Union Gas held that Congress has power
to abrogate States’ Eleventh Amendment immunity, but
the plurality opinion was carefully limited to the question
of power under the Interstate Commerce Clause. 491
U.S. at 13-23. Elsewhere, the Court has left open the
question of abrogation authority under the Indian Com-
merce Clause. Oneida County v. Oneida Indian Nation,
470 U.S. 226, 252 (1985). This Court should, at a
minimum, decide that no such authority exists under the
Indian Commerce Clause. More broadly, Union Gas
should be overruled and Article I authority to override
States’ sovereign immunity denied.”

1. Even If Union Gas Is Correct, Congressional
Power Is Lacking Under the Indian Commerce
Clause

Even if this Court declines to disturb the holding of
Union Gas that Congress has abrogation authority under
the Interstate Commerce Clause, the Court nevertheless
should hold that abrogation authority is lacking under
the Indian Commerce Clause. The plurality opinion in
Union Gas accepted that, in order to find congressional
authority to abrogate States’ sovereign immunity under
Article I, the Court has to find that “there has been ‘ “a
surrender of this immunity in the plan of the conven-
tion.”’” Union Gas, 491 U.S. at 19 (plurality), quoting
Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934)
(quoting Federalist No. 81). And in explaining why it
found an implicit surrender with respect to the Inter-

18 The lack of abrogation authority under Article I as a whole
is a ground for answering the first question presented in the peti-
tion: does Congress have abrogation authority under the Indian
Commerce Clause? Pet. i. The petition does not, however, encom-
pass any claim that abrogation authority exists for IGRA solely
under the Interstate Commerce Clause.

23

state Commerce Clause, the plurality relied centrally on
the role played by that provision in solving problems of
an inherently interstate character, where single-State solu-
tions often affirmatively harm other States. Jd. at 20-22
(discussing protectionist state environmental laws). That
crucial starting point for the Union Gas inference of in-
trinsic surrender, however, is inapplicable to the Indian
Commerce Clause.

As the example of state protectionist legislation dis-
cussed in Union Gas indicates, the congressional power
to regulate interstate commerce rests, at least in large
part, on the need for a national authority to protect the
interests of the States themselves. Particularly in the
early days of the federal government, when the Interstate
Commerce Clause was used for the more focused purpose
of protecting the commercial aspects of interstate com-
merce (see G. Gunther, Constitutional Law 97-98 (12th
ed. 1991)), it would have been plausible for States to
view legislation that imposed a duty on States’ roles in
certain interstate commerce as generally serving to pro-
tect the interests of other States in that commerce. In a
constitutional sense, therefore, the States forming the
Constitution might naturally have viewed themselves as
having an inherent mutuality of interest in national legis-
lative authority under the Interstate Commerce Clause.
And that mutuality of interest lends some conceptual
support to the notion that States, in the Convention, may
have implicitly surrendered to Congress the power to hail
States into federal court, ultimately for their reciprocal
protection against each other.

No such concept of inherent mutuality, or reciprocity,
applies under the Indian Commerce Clause. The interests
served by statutes enacted under this provision, though
they might include various States’ interests, have no neces-
sary or intrinsic connection to States’ interests. The In-
dian Commerce Clause thus lacks a core feature under-
girding any inference of implicit surrender of the full
scope of sovereign immunity—i.e., of unabrogable im-

24

munity, protected even against congressional override—
under the Interstate Commerce Clause.

This distinction gains powerful support from this
Court’s decisions making an analogous distinction with
respect to the basic Eleventh Amendment immunity itself.
Whereas the Court has long held that States, by entering
the Union, necessarily surrendered their entire immunity
from suits by other States (Rhode Island v. Massachu-
setts, 37 U.S. (12 Pet.) 657, 720 (1838)), the Court
recently has held that States did not surrender their im-
munity from suits by Tribes, because the intrinsic “mu-
tuality” was lacking. Blatchford, 501 U.S. at 782. The
same principle supports excluding the Indian Commerce
Clause from any doctrine finding in the Interstate Com-
merce Clause an implicit surrender by States of part
of their sovereign immunity.* Indeed, the Tribe recog-
nizes that “Blatchford precludes the Seminole Tribe from
arguing state consent in the ‘plan of the convention’ ”
(Pet. Br. 16)—the very standard applied by the plurality
in Union Gas.

The Indian Commerce Clause is for the foregoing cen-
tral reason a less plausible basis for abrogation authority
than the Interstate Commerce Clause. Not surprisingly,
therefore, there is little basis for the countervailing sug-
gestions that this case is actually a more plausible candi-
date for finding an implicit surrender of partial immunity

14 This point is not affected by the power of Congress to abrogate
Tribes’ sovereign immunity. See Oklahoma Tax Comm'n v. Pota-
watomi Indian Tribe, 498 U.S. 505, 509 (1991). That authority is
not based on any voluntary surrender of immunity by Tribes, which,
unlike the States, did not join together to form the Constitution.
Blatchford, 501 U.S. at 782. Any congressional authority to
diminish the full protection of immunity enjoyed by States, in
contrast, must come from a voluntary surrender in the Convention,
as the plurality in Union Gas accepted. 491 U.S. at 19. The States,
as the “parties” to the Constitution, could have a mutuality of
concession in forming the Constitution that Indian tribes cannot.
Cf. Blatchford, 501 U.S. at 782 (differences between States and
foreign governments, in suing States, based on the different “role
of each in the convention’’).

25

than Union Gas. Thus, although the Tribe heavily em-
phasizes the “plenary” nature of congressional power
under the Indian Commerce Clause and the troubled pre-
1787 experience that gave rise to that power (Pet. Br.
17-21), the United States properly avoids such an argu-
ment (U.S. Br. 24-28), because both parts of the Tribe’s
contention are equally true of the Interstate Commerce
Clause. See Union Gas, 491 U.S. at 17 (plurality);
Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522
(1935). Likewise, we fail to understand how the ab-
sence of direct tribal representation in Congress (Pet. Br.
21) suggests an inference of greater state surrender of
control over immunity under the Indian Commerce Clause
than under the Interstate Commerce Clause. Finally, the
“special responsibility” of the United States toward In-
dian tribes (U.S. Br. 24) tends, if anything, to confirm
the lack of any distinct need for abrogation authority:
that special responsibility should make it particularly
easy for the United States itself to bring suits to protect
tribal interests, as it long has done without Eleventh
Amendment impediment (Blatchford, 501 U.S. at 783;
Arizona v. California, 460 U.S. 605, 614 (1983)).

2. Union Gas Should Be Overruled

If the Court concludes that the Indian Commerce
Clause cannot meaningfully be distinguished from the In-
terstate Commerce Clause for purposes of assessing con-
gressional abrogation authority, then the Court should
overrule Union Gas and hold that Congress lacks power
under Article I to override States’ sovereign immunity
from suit in federal court. This Court has overruled
numerous decisions, particularly in constitutional cases,
where no strong reliance on the precedent had been built
up, where the stable development of legal principles was
not threatened, and where the reasoning of the precedent
was out of step with related law and had been subject
to persuasive criticism. See Payne v. Tennessee, 502 U.S.
808, 827-30 (1991). The Court’s decision in Union Gas
is a proper candidate for departure from stare decisis.

26

To begin with, we are aware of no substantial pattern
of congressional reliance on the authority announced in
Union Gus. Moreover, Union Gas has become ever more
aberrational, in light of subsequent decisional law on re-
lated aspects of the protection of state authority against
federal power, in its attribution of relatively little im-
portance to state sovereignty in our federalist structure.
See, e.g., United States v. Lopez, 63 U.S.L.W. 4343 (Apr.
26, 1995); New York v. United States; Gregory v. Ash-
croft, 501 U.S. 452 (1991); Puerto Rico Aqueduct &
Sewer Auth.; Dept. of Revenue v. ACF Industries, Inc., 114
S. Ct. 843, 850-51 (1994). Most strikingly, Union Gas
comes with a special, perhaps unique, reason why the
Court should undertake a fresh reconsideration of the
merits of the question of congressional power: there is
no rationale of the Court, or even of five Justices, sup-
porting the holding in Union Gas, because Justice White,
who provided the fifth vote for the result but did not join
the plurality, specifically said that he disagreed with much
of the plurality’s reasoning and yet stated no rationale of
his own. 491 U.S. at 56-57 (White, J., concurring in rele-
vant part). The other four Justices, moreover, leveled
severe criticisms at the plurality’s reasoning. 491 U.S.
at 30-42 (Scalia, J., joined by Rehnquist, C.J., O’Con-
nor, J., and Kennedy, J., dissenting in relevant part).
The central value supporting stare decisis—stability of
legal principles—carries little weight where a case estab-
lishes no legal principles that could reasonably be relied
on.

On reconsideration of the issue, congressional abroga-
tion authority under Article I should be found lacking.
As explained above, the notion of mutuality of state in-
terests in the power to regulate interstate commerce lends
some support to an inference of a structurally implicit
surrender of immunity. But that notion is not in the end
a sound enough basis for the suggested inference. For
reasons set out in the dissent in Union Gas, there are
much stronger considerations weighing against finding a

27

ceded power to Congress in Article I to override the sov-
ereign immunity of States in Article III courts.

Perhaps most fundamentally, as a historical and struc-
tural matter, the outer limits of the “judicial power” have
always been defined by Article III and have never been
subject to expansion by Congress through its Article I
power. That fundamental principle was established by
this Court in Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803), and in the long line of decisions growing
out of Hayburn’s Case. This Court has consistently ad-
hered to the same fundamental principle that Article III
sets the limits of the judicial power—limits that Con-
gress was not authorized, by Article I, to expand. See,
e.g., Mesa v. California, 489 U.S. 121, 136 (1989);
Verlinden B.V. v. Central Bank of Nigeria, 461 US.
480, 491 (1983); National Mutual Ins. Co. v. Tidewater
Transfer Co., 337 U.S. 582, 607, 615-16 (1949) (opin-
ion of Rutledge, J., joined by Murphy, J.); id. at 626-38
(opinion of Vinson, C.J., joined by Douglas, J.); id. at
646-55 (opinion of Frankfurter, J., joined by Reed, J.);
Kline v. Burke Construction Co., 260 U.S. 226, 234
(1922); Hodgson v. Bowerbank, 9 U.S. (5 Cranch)
303, 304 (1809).*

18 Congress, in exercising its Article I power to create federal
law, may bring a case within Article III limits by making it one
properly “arising under” federal law. See Verlinden B.V., 461
U.S. at 496. Although the quantum of substantive federal law
Congress must create to achieve that result has been debated
(e.g., in discussing “protective jurisdiction”), see Mesa, 489 U.S.
at 137-38, the very premise of that debate is the lack of any
Article I power to expand Article III limits.

Similarly, the Court’s decision in Mistretta v. United States,
488 U.S. 361 (1989), leaves undisturbed the longstanding recogni-
tion that Congress may not assign adjudicatory powers to the
federal courts outside the limits set by Article III. The Court in
Mistretta upheld an assignment of certain rulemaking functions
to the Sentencing Commission, but only after taking care to stress
that the Commission, though “located in the Judicial Branch,” is

not a court and does not purport to exercise the judicial power.
Id. at 398.

28

This basic principle applies to the sovereign immunity
at issue here. That immunity, this Court has held since
Hans v. Louisiana, 134 U.S. 1 (1890), defines a limit
on the reach of the “judicial power” granted by Article
III. See Pennhurst, 465 U.S. at 98 (“this Court has
recognized that [the Eleventh Amendment’s] greater sig-
nificance lies in its affirmation that the fundamental prin-
ciple of sovereign immunity limits the grant of judicial
authority in Art. III”) (quoting and citing prior decisions
to same effect). Reading Article I to allow Congress to
exceed that limit is no more justified than reading Ar-
ticle I to allow Congress to exceed other limitations on
Article III power, including the limitation of subject mat-
ter jurisdiction to the categories enumerated in Article
III or the limitation of power to “cases” or “controver-
sies” or the limitation to the “judicial” function reflected
in the Article III doctrine discussed in Argument I of
this brief. See Union Gas, 491 U.S. at 39-40 (Scalia,
J., dissenting in part).”

Adherence to this bedrock understanding of the rela-
tion of Article I and Article III authority is particularly
important in the present context. After all, the (implied)
Article III limit that the Tribe and the United States seek
to allow Congress to override is one that, ever since Hans
was decided, has been recognized as helping to define
the essential structure of federalism under our Constitu-
tion. See Pennhurst, 465 U.S. at 99-100. That structure
would be seriously weakened if protection of States’ sov-
ereign immunity were turned into a mere default rule,
freely alterable by the federal government. Union Gas,
491 U.S. at 38 (Scalia, J., dissenting in part).

16 The plurality in Union Gas thought it significant that the
Eleventh Amendment restricts only the “judicial power,” not con-
gressional authority. 491 U.S. at 18. But because Congress has
no authority under Article I to expand the judicial power con-
ferred by Article III, a limit on the judicial power implicit in
Article I1]—such as sovereign immunity, as reflected in the Elev-
enth Amendment—automatically limits congressional authority
under Article I.

29

Nor does the federal-state balance established by the
Constitution require broad congressional abrogation au-
thority under Article I for the vindication of the suprem-
acy of federal law. Apparently, Congress did without
Article I abrogation power until Union Gas. And the
unquestioned doctrine of Ex Parte Young already ensures,
without need of abrogation authority, that federal law
can be vindicated against States on a prospective basis.
Certainly, our constitutional system has not historically
demanded the amenability of the federal government itself
to suit (even for constitutional violations, substantively
beyond congressional control). See Union Gas, 491 U.S.
at 33-34 (Scalia, J., dissenting). Indeed, many if not all
uniquely strong federal interests that might “require”
suits against States in federal court can be protected
through the ability of the United States itself to sue
States in federal court, without impediment from the
Eleventh Amendment. See Blatchford, 501 U.S. at 783.

Finally, Article I authority to abrogate States’ im-
munity does not follow, logically or practically, from the
holding of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976),
that Congress may abrogate such immunity under Section
5 of the Fourteenth Amendment. As a _ subsequent
amendment, of course, the Fourteenth Amendment can
alter pre-existing law and confer abrogation authority
without remotely suggesting that the original Constitution
conferred such power. And in inferring that the Four-
teenth Amendment should be construed as adding a
previously lacking power to Congress, it is powerfully
relevant that the alteration at issue is a narrow one, re-
Stricted to specific topics where federal limits on state
authority were peculiarly necessary. The alteration of
the basic balance of state and federal authority reflected
in the original preservation of States’ sovereign immunity
is accordingly a limited one, not the sweeping transforma-
tion of federal-state relations that would be wrought by a
finding of broad abrogation authority under Article I.
See Union Gas, 491 U.S. at 41-42 (Scalia, J., dissenting

in part).

30

CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted,

RICHARD G. TARANTO RICHARD RUDA *
FARR & TARANTO Chief Counsel
2445 M Street, N.W. LEE FENNELL
Washington, D.C. 20037 STATE AND LOCAL LEGAL CENTER
(202) 775-0184 444 North Capitol Street, N.W.
Washington, D.C. 20001
(202) 434-4850
* Counsel of Record for the

May 3, 1995 Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0546%3A21. Public record. Not legal advice.