Amicus Curiae Brief — Oklahoma v. Ponca Tribe of Oklahoma

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No. 94-1029 JAR 15 1986

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In The

Supreme Court of the United States

October Term, 1994

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THE STATE OF OKLAHOMA, et al.,

Petitioners,

PONCA TRIBE OF OKLAHOMA,

Respondent.

+

On Petition For Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

+

BRIEF OF AMICUS CURIAE STATES OF

CALIFORNIA, ARIZONA, ARKANSAS,

CONNECTICUT, FLORIDA, IDAHO, LOUISIANA,

MAINE, MASSACHUSETTS, MICHIGAN,

MISSISSIPPI, MONTANA, NEBRASKA, NEVADA,

PENNSYLVANIA, RHODE ISLAND, TEXAS,

VERMONT AND WYOMING IN SUPPORT OF

PETITIONERS

+

Daniet E. LUNGREN

Attorney General of

the State of California

THomas F. Gepe

Special Assistant Attorney General

Counsel of Record for Amici States

1515 K Street

Sacramento, CA 95814

Telephone: (916) 323-7355

Additional Counsel Listed Inside

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

GRANT Woops

Attorney General

State of Arizona

WINSTON BRYANT

Attorney General

State of Arkansas

RicHARD BLUMENTHAL

Attorney General

State of Connecticut

Rosert A. BUTTERWORTH

Attorney General

State of Florida

ALAN G. LANCE

Attorney General

State of Idaho

RicHarpD P. levous

Attorney General

State of Louisiana

ANDREW KETTERER

Attorney General

State of Maine

Scott HARSHBARGER

Attorney General

State of Massachusetts

FRANK J. KELLEY

Attorney General

State of Michigan

Mike Moore

Attorney General

State of Mississippi

JoserpH P. Mazurek

Attorney General

State of Montana

Don STENBERG

Attorney General

State of Nebraska

Frankie Sut Det Papa

Attorney General

State of Nevada

Ernest D. PRreate Jr.

Attorney General

State of Pennsylvania

Jerrrey B. Pine

Attorney General

State of Rhode Island

Dan MORALES

Attorney General

State of Texas

Jerrrey L. Amestoy

Attorney General

State of Vermont

JoserpH B. Meyer

Attorney General

State of Wyoming

oe eee -

__ at SPO

wees

QUESTIONS PRESENTED

Does Congress have the power to abrogate the States’

Eleventh Amendment immunity when legislating

under its plenary powers in the Indian Commerce

Clause, subjecting States to suits by Indian tribes to

compel the States to perform acts to benefit the

tribes?

Has Congress impermissibly compelled the States in

the Indian Gaming Regulatory Act to exercise their

discretion and perform solely federal regulatory

functions in violation of the Tenth Amendment?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......---ceccceeceesceees i

INTEREST OF AMICI STATES ...........-0000eeees l

SUMMARY OF ARGUMENT..........-.-0500ee 000s 4

ARGUMENE Biiicscccccccossctocncocnbipeavecestees 5

THE STATES HAVE A VITAL INTEREST IN THIS

COURT RESOLVING THE CONFLICT IN THE

FEDERAL CIRCUITS ON THE POWER OF CON-

GRESS TO ABROGATE STATE SOVEREIGN

IMMUNITY WHEN USED TO COMPEL THE

STATES’ PERFORMANCE .........--- + ee eeeeeees 5

A. Plenary Power Alone Does Not Give Congress

the Power to Abrogate State Sovereign Immu-

NITY... ccc cc eccevererrccceseresvesccsscecess 7

B. The States Did Not Contemplate in the Plan of

the Convention that Article | Powers Include

the Ability of Congress to Abrogate State Sov-

ereign Immunity. ....... 6.660 e eee reece ee eees 11

ARGUMENT [b...cccccvccccctcovecssessvecsesiocsoes 13

THE TENTH AMENDMENT PROHIBITS APPLI-

CATION OF THE COERCIVE PROVISIONS OF

THB NERA 65 oe cccsvcvcecvccseevssessecsececcoses 13

CONCLUGION oo ccccccctecctescvescbbeceneebeesdnc 20

-

'

'

ili

TABLE OF AUTHORITIES

Page

Cases

Atascadero State Hosp. & California Dep’t of Mental

Health v. Scanlon 473 U.S. 234 (1985)............... 7

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

DREN Savckauseeeruvcvectayenad secs cx'etkae & 7,4, 38

Cheyenne River Sioux v. State of South Dakota, 3 F.3d

Dass nas dad ¢s0 0s 6) CaEbtACe Chet conares’ ees 11

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

DC eT RAD ccavdélen ss coeedvacevsvenvetacy sede: 10

County of Oneida v. Oneida Indian Nation, 470 US.

NS RT re i oe ee 7

Delmuth v. Muth, 491 U.S. 223 (1989)................ 13

FERC v. Mississippi, 456 U.S. 742 (1982)............. 16

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)......... 7, 9, 13

Green v. Mansour, 474 U.S. 64 (1985), reh’g denied

ee cae Guu weee de 00s 6) 6-6 érce nes 6

Hodel v. Virginia Surface Mining & Reclamation

Pe is Te We SOO. CHPGED cc vcocccveséeceseses 15

New York v. United States, a... Bae a oo

WE UES dca bbi uses decds viondecavnes 5, 14, 16, 17

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

Ponca Tribe of Oklahoma v. State of Oklahoma, 37 F.3d

TL BU 6 auc cccceconctnceswecers 4,7, 17

Red Lake Band of Chippewa v. Brown, 928 F.2d 467

Pent arvecesceethasdewtundceeesesces 15

Red Lake Band of Chippewa v. Swimmer, 740 F.Supp.

PG MS ver cvvewsdtveyde wba Jasdcetecvives 15

iv

TABLE OF AUTHORITIES —- Continued

Page

Seminole Tribe of Florida v. Florida, 11 F.3d 1016

CINE 6 <in.0 0 6ceenae kus caaeeismiekaren 4,5, 7, 10, 11

South Dakota v. Dole, 483 U.S. 203 (1936)............ 15

Spokane Tribe of Indians v. State of Washington, 28

ROS SPP COU Cie. TSG si oc ve ccsbectterscvcediccces 7

United States v. Bekins, 304 U.S. 27 (1938)............ 17

Welch v. Texas Dep't of Highways & Public Transp.,

GBS UES. GOR GH 66 bias cae ea Sire Ciba Seta wkens tein 6

CONSTITUTIONAL PROVISIONS

U.S. Const., Article, I, § 8, clause 3............ i toe

U.S. Const., Tenth Amendment.......... yoy ty passim

U.S. Const., Eleventh Amendment............... passim

U.S. Const., Fourteenth Amendment, § 5........ 2, 8, 9

STATUTES

18 USC. § 1166, OC OOGs 6c cc ciicticdeccecvcssvccses 3

2S UB... & TGR, GE GO 00s vcvascvccscvetsuccsssususs 3

TD UG. BAP Ge mec ccccccsctensescsancivacecdaaas 3

UB. & BPA vin 0 5 0:bs Kccdvtic a cencsannass 13

ZS UBL, O Fy i ei on 000 ahces ccc siekeaseeneai 14

2S UBS S Eye oes bacdnevecncisens 14, 15, 17

2B UGS TE Tr eve tciccccsucncecessochavesens 15

BS WAC. Bar MT a bc bcecctvccpecccectsvecdns 17

25 U.S.C. § 2710(d)(7)(B)(ili)-(iv) ............. 10, 17, 18

v

TABLE OF AUTHORITIES — Continued

Page

Bee UBS Se eT OUD cia hove ccecayscitshensieces 17

ae CA. Bes Ris n5h 02 ep Ober iawe>vlausanoecs 16

BD UO... B- Sn es aes vie 6 5 Virvewicie reac axe teadas 15

OTHER AUTHORITIES

Civil Rights Act of 1964 Title VII.................... 9

Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980 (CERCLA)..... 9

Low-Level Radioactive Waste Policy Amendments

Pet OE SO x8:0'9savn ass toda use Caen eacer ceo esanns 17

RuLes

U.S. Supreme Court Rete 1O.2(8) . 2 ic ccscccccscvseces 6

U.S. Supreme Court Rule 10.1(c)..............seeee- 13

No. 94-1029

In The

Supreme Court of the United States

October Term, 1994

+

THE STATE OF OKLAHOMA, et al.,

Petitioners,

PONCA TRIBE OF OKLAHOMA,

Respondent.

S

On Petition For Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

S

BRIEF OF AMICUS CURIAE STATES OF

CALIFORNIA, ARIZONA, ARKANSAS,

CONNECTICUT, FLORIDA, IDAHO, LOUISIANA,

MAINE, MASSACHUSETTS, MICHIGAN,

MISSISSIPPI, MONTANA, NEBRASKA, NEVADA,

PENNSYLVANIA, RHODE ISLAND, TEXAS,

VERMONT AND WYOMING IN SUPPORT OF

PETITIONERS

¢

INTEREST OF AMICI STATES

This case goes to the heart of our federal system of

government - the relationship of States of the Union and

the Federal Government. At issue is the ability of the

federal Congress directly to mandate that the States exer-

cise their legislative discretion in a certain way and com-

pel them to perform solely federal regulatory functions.

1

2

Congress has done so by displacing and dismissing the

States’ sovereign interests — firstly, by commanding the

States to negotiate with Indian tribes to regulate gam-

bling activities, and secondly, by subjecting States to suit

in federal court without their consent in order to compel

these negotiations. Only this Court is poised to protect

vital interests of state sovereignty.

This Court is presented here and in related cases for

the first time with the question whether Congress has the

power to abrogate the states’ Eleventh Amendment

immunity under the Indian Commerce Clause, article I,

section 8, clause 3 of the United States Constitution.

While the power to abrogate has been found in Section 5

of the Fourteenth Amendment and in the Interstate Com-

merce Clause, this Court has not uncovered to date any

other provision that permits the Congress to annul the

judicial sovereign immunity of the states found in the

Eleventh Amendment.

Moreover, the sovereign interests of the majority of

the States — those with Indian lands as defined by Con-

gress — are seriously jeopardized by the method chosen

by the Congress to implement this legislation. The con-

gressional mandate here subjects the States to the raw

dictates of the federal government, enforced by the fed-

eral courts, and treats the States as mere subdivisions of a

national government in violation of the Tenth Amend-

ment. No choice, incentive or acceptable alternative is

given a State under this legislation. States must comply or

face federal court orders. The interest of amici States is

thus obvious and paramount.

Amici States share an immediate and profound con-

cern with the difficult and irregular implementation of an

over-reaching Act of Congress and the corresponding

proliferation of conflicting federal appellate and district

court decisions interpreting that Act. Only this Court can

resolve these conflicts. These cases arise under the provi-

sions of the Indian Gaming Regulatory Act, Pub.L. No.

3

100-497, 102 Stat. 2467 (codified at 18 U.S.C. §§ 1166-1168

and 25 U.S.C. §§ 2701-2721) (hereinafter IGRA). Each

amicus state has lands (or may have lands taken in the

future by the federal government) that fall within the

definition of “Indian lands” under 25 U.S.C. § 2703(4).

Each of these states allows or may allow in the future

some form of gaming to be operated within its respective

borders. The forms of gaming that are permitted, prohib-

ited or regulated differ from state to state, as these are

matters solely of state law. Most amici states have been or

may become involved in negotiations for tribal-state com-

pacts for gaming to be operated on such lands, as

required by IGRA.! These negotiations have resulted in

highly divergent results from state to state — including, in

some states, compacts for Indian gaming operations

which are prohibited to the citizens of the state at large.

More commonly, the result is lawsuits filed against states

in federal court by Indian tribes demanding the states

compact for casino gambling even where it is criminally

prohibited. While it is in the latter category that this

particular suit arises — in the State of Oklahoma - other

states similarly situated fear the same federal court com-

pulsion to permit that which they criminally prohibit.

This Court already has before it the petitions and cross-

petitions of the States of Alabama, Florida, Kansas and

Washington, in independent cases, but all arising from

demands by Indian tribes to negotiate for forms of gam-

bling criminally prohibited in those states. Under this Act

of Congress, all the States are witnessing a grave degra-

dation of their jurisdiction and possess a vital interest in

having this Court protect their state sovereignty.

1 Amici states Maine and Massachusetts contend they are

not subject to IGRA, based on their respective Indian land

claims settlement acts.

4

Each of the amici States now faces the prospect in

certain federal circuits that they may be subjected to suit

in federal court without their consent and against their

will by Indian tribes in violation of the Eleventh Amend-

ment to the United States Constitution, compelling them

to perform acts which the Congress can not lawfully

require under the Tenth Amendment.

SUMMARY OF ARGUMENT

The Tenth Circuit’s holding that Congress has the

power to abrogate the state’s Eleventh Amendment

immunity when legislating pursuant to the Indian Com-

merce Clause is at odds with the holding of the Eleventh

Circuit in Seminole Tribe of Florida v. Florida, 11 F.3d 1016

(1994), that Congress has no such power. Ponca Tribe of

Oklahoma v. State of Oklahoma, 37 F.3d 1422, 1430 (10th Cir.

1994). Certiorari should be granted to resolve conflicts

between the Eighth, Ninth, Tenth and Eleventh Circuits,

as the varying and disparate interpretation and applica-

tion of the Indian Gaming Regulatory Act of 1988

(“IGRA”) by the federal courts has left states with no

guidance with respect to the Act. Resolution of these

questions is of profound consequence to the states con-

cerned.

The federal circuits have differed sharply on their

reading of and the arguable application of Pennsylvania v.

Union Gas, 491 U.S. 1 (1989), to cases involving federal

legislation under the Indian Commerce Clause. In that

case, this Court held that Congress may abrogate state

sovereiyzn immunity based on its power under the Inter-

state Commerce Clause; the Tenth Circuit, however, read

the two commerce clauses as having equal value, and

thus, applied Union Gas to Indian Commerce Clause leg-

islation. The States have a vital interest in protecting their

sovereign immunity against further encroachment by fed-

eral legislation that subjects them to suit in federal court,

5

and argue that this Court should grant certiorari in order

to settle the question whether Congress can freely abro-

gate Eleventh Amendment immunity under the Indian

Commerce Clause.

The States also argue that this Court has only upheld

the congressional abrogation of state sovereign immunity

where Congress’ power to enact legislation under the

Constitution would be incomplete without subjecting

states to suit in federal court. IGRA presents no such

necessity to subject states to suit by Indian tribes in order

to accomplish its regulation of Indian gambling, a matter

under its complete and plenary authority over Indian

affairs in the Constitution. As argued, Congress side-

stepped federal regulation of these matters and instead

enacted a scheme that directly coerces the States to carry

out a federal regulatory scheme as if the States were mere

subdivisions of the national government, in violation of

the Tenth Amendment and the principles of New York v.

United States, __ U.S. __, 112 S. Ct. 2408 (1992). IGRA’s

compulsion of the States to negotiate tribal-state gam-

bling compacts and its sanction of a lawsuit in federal

court to compel the negotiations and compacting is a

definitive example of a Tenth Amendment violation

enforced by an Eleventh Amendment violation.

ARGUMENT

I.

THE STATES HAVE A VITAL INTEREST IN THIS

COURT RESOLVING THE CONFLICT IN THE FED-

ERAL CIRCUITS ON THE POWER OF CONGRESS TO

ABROGATE STATE SOVEREIGN IMMUNITY WHEN

USED TO COMPEL THE STATES’ PERFORMANCE

The holding by the Tenth Circuit that Congress has

the power to abrogate the state’s Eleventh Amendment

immunity under the Indian Commerce Clause is at odds

with the holding of the Eleventh Circuit in Seminole Tribe

6

of Florida v. Florida, 11 F.3d 1016 (1994), that Congress has

no such power. That disparity gives three states —- Ala-

bama, Georgia and Florida - the benefit of a rule that bars

Indian tribes from suing these states under IGRA in fed-

eral court without their consent, while the six states with

Indian tribes in the Tenth Circuit -- Colorado, Kansas,

New Mexico, Utah and Wyoming - live under a different

rule established in this case and stand subject to suit

under the provisions of IGRA without their consent. The

consequences of a state being subject to suit in federal

court under IGRA is significant, as it may lead to secre-

tarial adoption of a proposed tribal-state compact not

agreed to by the state or federal regulations that may

require the state to conduct or regulate activities against

its will. Additionally, states in the Eighth and Ninth

federal appellate circuits are subject to the same rule now

found in the Tenth Circuit. This disparity in the applica-

tion of the same federal law is of profound consequence

to the states concerned. Such a conflict among the circuits

is within the scope and character of the reasons for grant-

ing certiorari in Supreme Court Rule 10.1(a). Indeed, the

conflict can only be resolved by this Court.

This Court has recognized that the Eleventh Amend-

ment generally bars suits against a state by an Indian

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

111 S. Ct. 2578, 2581-83 (1991). The Eleventh Amendment

is only emblematic of the states’ sovereign immunity,

which is itself “part of the understood background

against which the Constitution was adopted, ...” Penn-

sylvania v. Union Gas, 491 U.S. 1, 32 (1989)(Scalia, J.,

concurring in part and dissenting in part); see also Welch v.

Texas Dep’t of Highways & Public Transp., 483 U.S. 468, 487

(1987). Before Congress can effectively abrogate a State’s

immunity, it must have constitutional authority to do so.

Green v. Mansour, 474 U.S. 64, reh’g denied 474 U.S. 1111

7

(1985) (“States may not be sued in federal court

unless .. . Congress, pursuant to a valid exercise of its power,

unequivocally expresses its intent to abrogate the immu-

nity.” Emphasis added.); Blatchford, 111 S. Ct. at 2584; see

also Atascadero State Hosp. & California Dep't of Mental

Health v. Scanlon, 473 U.S. 234 (1985); County of Oneida v.

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

Here, the Tenth Circuit followed the conclusion of the

Ninth Circuit in finding that the power of Congress to

abrogate state sovereign immunity under the Interstate

Commerce Clause, as found in the plurality decision in

Union Gas, 491 U.S. 1, is equally applicable under the

Indian Commerce Clause, found in article I, section 8,

clause 3 of the U.S. Constitution. Ponca Tribe, 37 F.3d at

1430; see Spokane Tribe of Indians v. State of Washington, 28

F.3d 991, 996 (9th Cir. 1994). The Ninth Circuit went

further and suggested that the Union Gas plurality framed

its analysis in terms of the Commerce Clause as a whole,

and did not limit it to the interstate Commerce Clause.

This application of Union Gas to the Indian commerce

prong differs sharply from that of the Eleventh Circuit in

Seminole, where the court noted that the Union Gas Court

in each of its opinions - plurality, concurrences and dis-

sents — addressed only the interstate prong, and that its

rationale goes only to the regulation of commerce among

the states. 11 F.3d at 1027.

A. Plenary Power Alone Does Not Give Congress

the Power to Abrogate State Sovereign Immu-

nity.

The Tenth Circuit rests its application of Union Gas to

the Indian Commerce Clause on the notion that that

clause embodies a plenary power of the Congress that

limits the power of the states, citing Fitzpatrick v. Bitzer,

427 U.S. 445, 456 (1976)(finding congressional power to

8

abrogate under § 5 of the Fourteenth Amendment), and

Union Gas, 491 U.S. at 19 (plurality opinion)(like the

Fourteenth Amendment, the “Commerce Clause with-

holds power from the States at the same time as it confers

it on Congress.”) Under this reasoning, any Article I

power granted to the Congress by the States in the Con-

stitution, which power in some way withholds power

from the States, serves as a basis for congressional power

to abrogate state sovereign immunity - rendering the

Eleventh Amendment superfluous.?

In fact, without conceding the wisdom of Union Gas,

the plurality in that case provided an important limita-

tion on the power of Congress to summarily override a

state’s Eleventh Amendment immunity, found in the con-

tinuation of the sentence that refers to the withholding of

power from the States while conferring it on Congress.

Thus, where

. the congressional power thus conferred

would be incomplete without the authority to ren-

der the States liable in damages, it must be, that

to the extent that the States gave Congress the

authority to regulate commerce, they also relin-

quish their immunity where Congress found it

necessary, in the exercise of this authority to

render it liable.

Union Gas, 491 U.S. at 12-20. In other words, the power to

abrogate was found to exist only because Corigress’

2 As Justice Scalia noted in Union Gas:

[I]f the Article I commerce power enables abrogation

of state sovereign immunity, so do all the other Arti-

cle I powers. An interpretation of the original Consti-

tution which permits Congress to eliminate sovereign

immunity only if it wants to renders the doctrine a

practical nullity and is therefore unreasonable.

Pennsylvania v. Union Gas, 491 U.S. at 42 (Scalia, J., concurring in

part and dissenting in part).

9

power would be incomplete without rendering the states

liable in federal court - all in order to accomplish the

purpose of its legislation under the Interstate Commerce

Ciause. Union Gas considered Congress’ enactment of the

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (“CERCLA”), providing means

to clean up hazardous waste sites throughout the country.

The Act provided who would be liable for the cost of

remedial action, and Congress, legislating under the

Interstate Commerce Clause, found it was necessary to

hold the states financially accountable for certain costs of

this remedial action. The remedial action would be

incomplete without making the states liable in federal

court.

Similarly, in Fitzpatrick, as in Union Gas, Congress’

power to enforce Title VII of the Civil Rights Act of 1964

was incomplete without the power to make the states, as

employers, liable in federal court for damages and attor-

neys fees for unlawful employment discrimination.

Fitzpatrick, 427 U.S. at 456 (“Congress may .. . provide for

private suits against States or state officials which are

constitutionally impermissible in other contexts.”). Thus,

the power to abrogate arises only where Congress's

power, when legislating pursuant to Section 5 of the

Fourteenth Amendment or the Interstate Commerce

Clause, is incomplete without subjecting states to suit for

damages in federal court.

In both Fitzpatrick and Union Gas, this Court has

permitted the abrogation of state sovereign immunity

only to the extent it permitted suits for damages. To date,

3 While the States may be of the view that Union Gas is

flawed in upholding an Article I congressional power to abro-

gate state sovereign immunity, it is nonetheless clear that inter-

state commerce power standing alone does not confer power to

abrogate the states’ Eleventh Amendment immunity.

10

this Court has not sanctioned congressional abrogation of

a state’s Eleventh Amendment immunity under any

prong of the Commerce Clause permitting the state to be

sued in federal court simply to compel it to perform an

act mandated by Congress. Yet, that is precisely what

IGRA attempts to do:

If, in any action described in subparagraph

(A)(i), the [district] court finds that the State has

failed to negotiate in good faith with the Indian

tribe to conclude a Tribal-State compact govern-

ing the conduct of gaming activities, the court

shall order the State and the Indian Tribe to conclude

such a compact within a 60-day period. . . . If a State

and Indian tribe fail to conclude a Tribal State

compact .. . within the 60-day period provided

in the order of the court... , the Indian tribe

and the State shall submit to a mediator appointed

by the court a proposed compact . . .

25 U.S.C. § 2710(d)(7)(B)(iii)-(iv). While the plenary

power of the Congress with respect to Indian affairs may

displace the power of the States with respect to Indians,

the Indian Commerce Clause does not allow Congress to

abrogate state sovereign imraunity solely to compel a

State to perform an act otherwise within the scope of the

federal government to perform. This use of the federal

courts to compel the States’ performance offends not only

the Eleventh Amendment, but also the Tenth Amend-

ment, as discussed in Argument II, below.

Further, the Tenth Circuit lightly dismissed the anal-

ysis of the Eleventh Circuit in Seminole of the important

distinctions in the respective purposes of Interstate Com-

merce Clause and the Indian Commerce Clause, noting

the analysis was not on point as to the power to abrogate.

However, the Seminole court aptly noted

In [Cotton Petroleum Corp. v. New Mexico, 490

U.S. 163, 192], the Court acknowledged the

plenary powers under the Interstate Commerce

11

Clause that allow Congress to place limits on the

states [was] in order to “maintain{] free trade

among the States.” Id. By contrast, “the central

function of the Indian Commerce Clause is to

provide Congress with power to legislate in the

field of Indian affairs. Id. Although Congress

has the power to limit the states under the

} Indian Commerce Clause as well, the different

purposes underlying the two clauses mandate

they be treated distinctly.

11 F.3d at 1027. These sharply different readings of the

Union Gas opinion and the diametrically opposed conclu-

sions as to abrogation power under the Indian Commerce

Clause leave the states with no guidance as to whether

suits by tribes against the states, without the consent of

the states, are jurisdictionally barred or not.*

B. The States Did Not Contemplate in the Plan of

the Convention that Article I Powers Include

the Ability of Congress to Abrogate State Sov-

ereign Immunity.

Finally, the Tenth Circuit also lightly dismissed this

Court’s analysis of states’ Eleventh Amendment immu-

nity from suits by an Indian tribe in Blatchford v. Native

Village of Noatak, 111 S. Ct. at 2581-83. It is true that the

4 The Eighth Circuit also presents a conflict with the Elev-

enth Circuit on this same issue. In Cheyenne River Sioux v. State of

South Dakota, 3 F.3d 273 (1993), the Eighth Circuit relied on the

decision of the district court in Seminole Tribe of Florida, reversed

by the Eleventh Circuit, for the notion that the Indian Com-

merce Clause provided the congressional power to abrogate the

states’ sovereign immunity. 3 F.3d at 280-81.

|

12

Blatchford court had no occasion to consider whether Con-

gress had the power to abrogate under the Indian Com-

merce Clause, as it found no statutory expression of clear

and unequivocal intent to abrogate; the Court did not

need to reach the question of the existence of the congres-

sional power. 111 S. Ct. at 2584. Blatchford, however, did

conclude there was no waiver of state sovereign immunity

“inherent in the plan of the convention,” noting

What makes the States’ surrender of immu-

nity from suit by sister States plausible is the

mutuality of that concession. There is no such

mutuality with either foreign sovereigns or

Indian tribes. We have repeatedly held that

Indian tribes enjoy immunity against suits by

States [citation omitted], 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 surren-

der 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.

Blatchford, 111 S. Ct. at 2582-83, emphasis in original.

While this holding on waiver does not answer directly

whether Congress has the power to abrogate state sover-

eign immunity under its plenary powers in the Indian

Commerce Clause, it is a compelling indirect answer that

Congress does not have that power. When the States

compacted with a federal government and gave certain

powers over to it, reserving others, how could the States

have contemplated Congress nullifying that immunity

which they did not surrender for the benefit of Indian

tribes? Obviously, abrogation comes into play only where

there is no waiver, but this Court's reasoning in Blatchford

demonstrates the States did not contemplate that grant-

ing power to Congress for Indian commerce would sub-

ject the States to suit in federal court by Indian tribes to

13

compel the States to perform certain acts for the benefit of

Indians tribes.

In sum, amici States have a vital) inierest in the reso-

lution of the question presented by the Tenth Circuit, as it

goes to the fundamental relationship of the States with

the Federal Government, presenting important questions

of federalism. To date, this Court has found Congress’

power to abrogate only in Section 5 of the Fourteenth

Amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, and in the

Interstate Commerce Clause, Union Gas, 491 U.S. 1. The

significance of finding yet another constitutional provi-

sion that gives the Congress power to abrogate state

sovereign immunity, one that permits the courts to com-

pel States to perform certain acts, cannot be understated —

it would lead to a critical undermining of our federal

system of government and further strengthen the power

of the federal government at the expense of the states.

Delmuth v. Muth, 491 U.S. 223, 227-28 (1989). The resolu-

tion of this question, then, falls within the scope and

character of the reasons for granting certiorari under

Supreme Court Rule 10.1(c), as an important question of

federal law not settled by this court.

Il.

THE TENTH AMENDMENT PROHIBITS APPLICA-

TION OF THE COERCIVE PROVISIONS OF THE

IGRA

In IGRA, Congress directly commands the States to

negotiate and implement a tribal-state scheme that

deprives the States of their sovereign role, in violation of

the Tenth Amendment. Under the Act, an Indian tribe

retains the sovereign prerogative to request state partici-

pation in the regulation of gaming activities on Indian

lands. 25 U.S.C. § 2710(d)(1)(C). If an Indian tribe

requests a State to negotiate for a compact concerning

14

class III gaming, the State “shall negotiate with the Indian

tribe in good faith to enter into such a compact.” 25

U.S.C. § 2710(d)(3)(A) (emphasis added). The federal gov-

ernment, while it has plenary authority for Indian affairs,

assumes little or no responsibility for the formulation or

implementation of a regulatory scheme for this Indian

gaming.

The coercive elements of 25 U.S.C. § 2710(d)(3), requir-

ing states to negotiate, under pain of federal court com-

pulsion, reduce the States to mere administrative

subdivisions of the Federal Government and do injury to

their sovereignty. IGRA requires the States to exercise

their sovereign discretion and carry out duties which the

federal government refuses to do itself. As this Court

most recently reaffirmed in New York v. United States, ___

U.S. __, 112 S. Ct. 2408 (1992):

States are not mere political subdivisions of

the United States. State governments are neither

regional offices nor administrative agencies of

the Federal Government. . . . The Constitution

instead leaves to the several States a residuary

and inviolable sovereignty, reserved explicitly to

the States by the Tenth Amendment.

112 S. Ct. at 2434 (citations omitted).

The federal government may not compel a State to

regulate in an area of federal responsibility. Indeed,

“[w]here a federal interest is sufficiently strong to cause

Congress to legislate, it must do so directly; it may not

conscript state governments as its agents.” 112 S. Ct. at

2429 (emphasis added). When it comes to handling cer-

tain affairs, the States expressly vested in Congress

responsibility for regulating commerce “with foreign

nations, and among the several states, and with the

Indian tribes.” U.S. Const., art. I, § 8, cl. 3. Amici do not

——_— ~—s-

15

believe that article I of the Constitution authorized Con-

gress to avoid its obligation by forcing the several States

to in effect enter into treaties with Indian tribes.

Instead, Congress chose to compel a state to negoti-

ate a tribal-state compact under 25 U.S.C. § 2710(d)(3)(A),

at the request of a tribe; to subject that state to being

hauled into federal court under a claim that it failed to

negotiate in good faith under 25 U.S.C. § 2710(d)(7); to

subject the state to the compulsion of a federal court

order to further negotiate; to subject the state to compul-

sion to submit a last best offer to a court-appointed

mediator; and to require the state to make a selection

from the mediator. 25 U.S.C. § 2710(d)(7).

Congress may, of course, pursuant te its plenary

authority over Indian affairs, encourage the aid of the

States in regulating the conduct of gaming activities on

Indian lands. Red Lake Band of Chippewa v. Swimmer, 740 F.

Supp. 9, 13-14 (D.D.C. 1990), aff'd, Red Lake Band of Chip-

pewa v. Brown, 928 F.2d 467 (D.C. Cir. 1991). Congress

may, of course, encourage a state to regulate in a certain

way, short of outright coercion. Under its spending

power, “Congress may attach conditions on the receipt of

federal funds.” South Dakota v. Dole, 483 U.S. 203, 206

(1936). Where Congress has the authority to regulate

private activity under the Commerce Clause, Congress

may offer States the choice of regulating that activity

according to federal standards or having state law pre-

empted by federal regulation. Hodel v. Virginia Surface

Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981).

Neither such incentive is present under IGRA.°

5 In Hodel, the Court considered whether the “steep slope”

provisions of the Surface Mining Control and Reclamation Act,

30 U.S.C. §§ 1201-1328 (1988), commandeered the states’ sover-

eign ability to regulate land use. There, unlike this case, the Act

16

When Congress conscripts states into fashioning and

implementing a regulatory scheme to achieve federal

ends, congressional representatives avoid political

accountability. In IGRA, the scheme created by Congress

minimizes the accountability of federal officials to the

public. The legislation mandates that the States “work it

out” with the tribes. It is thus the State officials who must

bear the brunt of public disapproval, while congressional

representatives — and, of course, the Secretary of the

Interior, who ultimately approves the regulatory scheme,

25 U.S.C. § 2710(d)(8) —- remain insulated from the politi-

cal consequences of the conduct of gaming on Indian

lands.

provided for a federal regulatory scheme that could be imple-

mented in full force by the Federal Government; if States did not

wish to participate, the full regulatory burden would then be

borne by the Federal Government. See New York v. United States,

112 S. Ct. 2408, 2420 (1992). States are free to choose whether to

consider the incentives to participate or to not participate; they

are always free under the Act to enact and administer their own

regulatory programs within limits established by federal mini-

mum standards. Similarly, in FERC v. Mississippi, 456 U.S. 742

(1982), the Congress passed the Public Utilities Regulatory Poli-

cies Act (PURPA) of 1978, to encourage States in various ways to

develop programs to combat the then so-called energy crisis.

This Court found no “command” to the States in the statute: the

States were offered the choice of regulating activity according to

federal standards or have state law preempted by federal regu-

lation. “By [these] methods, as by any other permissible method

of encouraging a State to conform to federal policy choices, the

residents of the State retain the ultimate decision as to whether

or not the State will comply. ... Where Congress encourages

state regulation rather than compelling it, state governments

remain responsive to the local electorate’s preferences; state

officials remain accountable to the people.” New York v. United

States, 112 S. Ct. at 2424.

17

As with the coercive “take title” provision in the

Low-Level Radioactive Waste Policy Amendments Act of

1985, Public Law 99-240, 99 Stat. 1842, 42 U.S.C. § 2021b

et seq., struck down by the Court in New York v. United

States, 112 S. Ct. at 2408, IGRA’s scheme unconstitu-

tionally coerces States into participation in IGRA by hold-

ing out two impermissible choices, two coercive

applications of federal law: “the State shall negotiate with

the Indian tribe,” 25 U.S.C. § 2710(d)(3)(A), or else face

litigation in federal court, 25 U.S.C. § 2710(d)(7)(A) - with

the additional coercive processes of forced negotiations,

25 U.S.C. § 2710(d)(7)(B)(iii); mediation, 25 U.S.C.

§ 2710(d)(7)(B)(iv); and ultimately, of imposition of a

federally prescribed regulatory system which may even

compel the state to create a system for regulating a game

that is illegal within that state, 25 U S.C.

§ 2710(d)(7)(B)(vii).

The Tenth Circuit, however, found IGRA does not

run afoul of the Tenth Amendment because it “merely

directs the state to negotiate in good faith, and stops well

short of imposing a requirement on the states to enact or

enforce a federal regulatory program, ...” Ponca Tribe, 37

F.3d at 1434. The court likened this to “encouragement,”

not a mandate, to achieve “cooperative rulemaking” with

the tribe. Ibid. In so saying, the Circuit Court overlooks

the plain language and reality of IGRA. IGRA, by its own

terms, imposes a requirement on the states to fashion,

implement and enforce a regulatory program which the

federal government refuses to do itself. This constitutes a

direct interference with the states’ sovereign reserved

powers to contract, United States v. Bekins, 304 U.S. 27

(1938), in violation of the Tenth Amendment. It is a direct

commandment to the states to engage in a regulatory

18

process or face the penalty of being hauled into federal

court.®

The Tenth Circuit also ignores the “alternative” faced

by a state if, for any reason, a state is accused of lack of

good faith in negotiations. The history of this and the

other cases before this Court illustrates the reality of

IGRA. In each of the cases before this Court from the

Ninth, Tenth and Eleventh Circuits, Indian tribes

demanded the states negotiate for casino gambling activ-

ities that were criminally prohibited by the states. When

the states, in good faith reliance upon the language of

IGRA and their legal interpretation of it, refused to nego-

tiate for illegal gaming activities, tribes brought suit,

claiming the states were negotiating in bad faith. Had the

states not brought constitutional defenses, they would be

subject to court-ordered continuation of negotiations,

court-ordered mediation and/or a submission of a media-

tor’s selection of a last best offer compact to the Secretary

of Interior. 25 U.S.C. § 2710(d)(7)(B)(iii)-(vii). If the matter

reaches the Secretary, the Secretary must prescribe pro-

cedures consistent with the compact selected by the

mediator, including, presumably, regulatory obligations

placed upon the state. The state must then countenance

* Additionally, if IGRA only “encourages” “cooperative

rulemaking,” and compliance with IGRA’s good faith negotia-

tion provisions is truly voluntary, then there is no Article III

“case or controversy” in IGRA cases. If the Governors and the

States do not negotiate in a voluntary arrangement, that is the

end of the matter - there is no controversy for the court to

adjudicate, no need for orders to negotiate and mediate, and no

reason for Article III courts to declare the rights of tribes to

negotiate with an unwilling partner. The entire basis of the

court’s jurisdiction is the existence of a case or controversy over

a legal duty purportedly established by IGRA. if there is no duty,

and the state’s participation under IGRA is voluntary, the fed-

eral courts have no jurisdiction to hear these cases.

19

gaming activities, procedures, locations and facilities that

may run contrary to the state’s public policy or negotiat-

ing position.

What the Tenth Circuit calls a “default provision,”

then, is no “choice” for the States. The State’s mere

“choosing” to not negotiate must necessarily result in a

court finding that the State is in bad faith before the

mediational procedures ensue to the Tribes’ benefit. Then,

the State must ignore at its peril a court order to negotiate

within a 60-day period. States submitting themselves to

being adjudged to be in bad faith and ignoring federal court

orders at their own peril is not an acceptable means for appro-

priate decision-making on major matters of public policy. This

is coercion at its worst.

In sum, the States did not authorize Congress to

impose upon them responsibility for determining the con-

ditions under which casino gambling will be conducted

on Indian lands within the State. Congress may either

regulate such gambling directly, or Congress may permit

the tribes to regulate such gambling exclusively; within

either option, Congress may invite the States to undertake

regulation of the activity in lieu of direct federal or tribal

regulation. Such a scheme ensures the electoral accoun-

tability of federal and state officials, as the case may be,

for the decisions made concerning the regulation of

casino gambling on Indian lands. But Congress may not

shield itself and federal officials from accountability for

the conduct of casino gambling on Indian lands by mak-

ing state officials responsible for fashioning the regula-

tory scheme — under threat of suit by Indian tribes who

have no accountability to the state electorate.

The States are presented with a perplexing and

unpalatable set of conditions: if the Tenth Circuit ruling is

upheld, states will continue to be subjected to lawsuits by

20

Indian tribes they may not sue themselves, which law-

suits are solely to compel the states to perform acts that

are not within their scope of affairs and which are wholly

within the scope of the federal government's plenary

powers. Because subjecting the States_to suit by Indian

tribes in federal court is not essential to the power of the

Congress to provide for Indian gaming, Congress has no

power to abrogate the state’s Eleventh Amendment

immunity. Under the Tenth Circuit’s reasoning that any

plenary power in the Congress gives rise to a power to

abrogate Eleventh Amendment immunity, a constitu-

tional wall has been reduced to a statutory hurdle and the

Eleventh Amendment is rendered superfluous.

CONCLUSION

For the reasons stated above, the Petition for Writ of

Certiorari filed by the State of Oklahoma should be

granted.

Respectfully submitted,

DanieEL E. LUNGREN

Attorney General of the

State of California

THomas F. Gepe

Special Assistant Attorney

General

Counsel of Record for Amici States

1515 K Street

Sacramento, CA 95814

Telephone: (916) 323-7355