Petition for Writ of Certiorari — Alabama v. Poarch Band of Creek Indians

PILED -

9 4- 35 JUL - 1 i994

OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1993

STATE OF ALABAMA and

JAMES E. FOLSOM, Governor,

State of Alabama, Petitioners,

Vv.

POARCH CREEK INDIANS and POARCH BAND OF

CREEK INDIANS, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES H. EVANS

Attorney General

CAROL JEAN SMITH *

Assistant Attorney

General

Counsel of Record *

11 South Union Street

Montgomery, AL 36130

Telephone: 205/242-7416

Counsel for Petitioners

Of Counsel:

KENNETH A. DOWDY

Deputy Legal Advisor

State Capitol

Montgomery, AL 36130

Telephone: 205/242-7191 July, 1994

‘QUESTIONS PRESENTED FOR REVIEW

as Do Article tii, § 2 and the

Eleventh Amendment preclude substantive

judicial interpretation of the Indian

Gaming Regulatory Act after the case has

been dismissed for lack of subject matter

jurisdiction?

y - Does the exercise by a state of its

Eleventh Amendment immunity, standing

alone, constitute a failure to negotiate

in good faith as required by the Indian

Gaming Regulatory Act?

3. Was the Eleventh Circuit correct

that an Indian tribe may bypass statutory

requirements, including a judicial finding

of lack of good faith by a state, and go

directly to the Secretary of the Interior

for a gaming compact, or was the Eighth

Circuit correct in adhering to the

language of the Indian Gaming Regulatory

Act?

a rn

4. Does the creative bypass designed

by the Eleventh Circuit violate the Tenth

Amendment?

PARTIES

The caption contains the names of

€@ll parties to the proceeding in the court

below in Poarch Band.

Parties in the case consolidated on

appeal with this case in the Eleventh

Circuit were:

Seminole Tribe of Florida,

Appellant-Plaintiff

State of Florida,

Lawton Chiles, Governor of Florida,

Appellees-Defendants

Amici Curiae appearing in the

Eleventh Circuit were:

The National Indian Gaming

Association

The Tunica-Biloxi Tribe

The States of:

California Nevada

Connecticut Oklahoma

Kansas South Dakota

Mississippi Washington

Montana Wyoming

Nebraska

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW....... i

WON kash dc ckess Pe eras eae eas . oes

TABLE OF CONTENTS... .ccccccccccccsecs iv

TABLE OF AUTHORITIES..........ccccees vii

CEE I a 5k nn oa ce ivceessaass 1

Rc rr aaa et 2

CONSTITUTIONAL PROVISIONS AND

ee See ere 2

STATEMENT UNDER RULE 29.4(b)....... oli 3

STATEMENT OF THE CASE............0<- 4

NATURE OF THE CONTROVERSY......... 4

THE DISTRICT COURT

PROCSNDUNEIB ES. C6208. 6 cee ads CKD 5

THE CIRCUIT COURT

PROCEEDINGS. 6 cc. ccscce eidcsty ek, 4

REASONS FOR GRANTING THE WRIT........ 9

I. INTERPRETATION OF THE

INDIAN GAMING REGULATORY

ACT PRESENTS QUESTIONS OF

GREAT IMPORTANCE.............. 9

iv

TABLE OF CONTENTS

II. SECTION V. OF THE

ELEVENTH CIRCUIT DECISION

NOT

ONLY CONTRAVENES THE

CONSTITUTION OF THE

UNITED STATES, ARTICLE III,

§ 2

AND THE ELEVENTH

AMENDMENT, BUT IS IN

CONFLICT WITH DECISIONS

OF THIS HONORABLE COURT.......

ItI. THE

ELEVENTH CIRCUIT

DECIDED IMPORTANT QUESTIONS

OF FEDERAL LAW WHICH HAVE

NOT

BEEN, BUT SHOULD BE,

DECIDED-BY-THIS HONORABLE

oe ar ee ae

IV. THE

DECISION OF THE

ELEVENTH CIRCUIT IS

eect stacn LEE UTC REECE Eee

V. THE

CONFLICT IN THE

CIRCUITS SHOULD BE

RESOLVED BY THIS

HONORABLE COURT..........2002-

VI. BOTH THE INDIAN GAMING

REGULATORY ACT AND THE

CREATIVE BYPASS DESIGNED

BY THE ELEVENTH CIRCUIT

VIOLATE THE TENTH

EP TE eee

CONCLUSION

TPPeeeeeoeee CR eee e eee ens eb 66 66

PAGE

13

17

21

26

27

30

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

TABLE OF CONTENTS

APPENDICES

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*“eeeseeseeeteesfeeeerteese#seee#ee#e#e#e#se#e#s *#

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vi

TABLE OF AUTHORITIES

PAGE(S}

Cases

Alabama v. Pugh,

438 U.S. 781, 57 L.Ed.2d 1114,

FS B.CEs JOST CISTS) occcvcecccsvces

Apache Tribe of the Mescalero

Reservation v ew Mexico,

CIV 92-076-JC, Slip Op.,

(D.C.H.M. Dec. 22, 1992)......0. 14,

Cabazon Band of Mission Indians

v. Naticnal Indian Gaming Commission,

827 F.Supp 26 (D.DC. 1993)........

Cheyenne River Sioux Tribe

v. South Dakota,

3 F.3rd 273 (8th Cir. 1993).......

Landgraf v. USI Film Products,

U.S. P , 62 U.S.L.W.

SSGo. CHELE Bee See yowoceddececces

Lauro Lines S.R.L. v. Chasser,

SPO Uele Ge BAe oe aes ek occ swes

Montana-Dakota Utilities Company v.

Northwestern Public Service Commission,

341 U.S. 246, 71 S.Ct. 692,

SD Tied: ae Cee baa’ ob ecaec cee

New York v. United States,

Ai U.S. , 120 L.Ed.2d

120, 112 S.Ct. 2405 (1992)....... 28,

18

19

26

25

15

24

vii

TABLE OF AUTHORITIES

PAGE(S)

Cases

The News-Journal Corporation v.

Foxman,

939 F.2d 1499 (llth Cir.

BBP EP eS ec eeeeeseseceesesececrseeses 16

Northwest Airlines, Inc., v.

Transportation Workers,

Be Wolke. 22. CREED 0.660 06 bN 0 ocecves 25

Poarch Creek Indians v. Alabama,

776 F.Supp. 550 (S.D.Ala. 1991)

(POGEGCR. ZT) cccemecescencceedstbevcec 1

Poarch Creek Indians v. Alabama,

CIV 91-0757-H, Slip op.

(S.D. Ala. Jan. 24, 1992)

(Poarch IT) .cccccsccvccccsccccseces 1

Poarch Creek Indians v. Alabama,

784 F.Supp. 1549 (S.D. Ala. 1992)

(Poarch TIT) .ccccccccscccccccccses 1

Puerto Rico Aqueduct and Sewer

Authority v. Metcalf & Eddy, Inc.,

506 U.S. , 113 S.Ct. 684,

121 L.Ed.2d 605 (1993)...... jeeewae, 29

Seminole Tribe of Florida v. Florida and

Poarch Creek Indians v. Alabama,

11 F.2rd 1016 (llth Cir.

1994), consolidated on

SHMOGL . oc cccciscccecsc ke Sp D9, Bi, 13, 18

viii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Seminole Tribe v. State of Florida,

1993 WL 475999 (S.D.Fla. 1993,

es. ee Sad widevldbiduece dvcee- 20

Siiver v. Baggiano,

804 F.2d 1211 (11th Cir.

Re 4 Oi eth nine oud dee ce oh ocax 19

United States v. Sisson,

399 U.S. 267, 26 L.Ed.2d 608,

SO S.CE.. Z157. (ABTG) cn vecvcces 15, 16, 25

Constitutional Provisions

cnstitution of the United States,

Article III, § 2...i,.v, vi, 13, Bu, an

Constitution of the United States,

Tenth Amendment....ii, v, 2, 18, 27, 28

Constitution of the United States,

Eleventh Amendment .. ..i,.v, 2, i@,.13

Bu, 17; 18, 20, 21, 27, 29

Constitution of Alabama 1901,

DB BPs CC ee Ch bee ese bbw e bs bubs eb cece 18

Statutes

Oe Oe ag ae ee, ee 3, 4

ge Se | ee ee ee 15

Se Weare Oe base i eee eb everew sane 8

25 U.S.C. § 2701, et seq............. 3, 4

ix

TABLE OF AUTHORITIES

PAGE(S)

Statutes

25.U.8.0. § 27GS(B) cciaciancnctsapeses 3, 4

25 U.S.C. §$ 271O(A)~-cccceccvcccscsens a

25 U.S.C. § 2710(A) (1). ccccccccccces 26

25 U.S.C. § 2710(d)(1)(B)..---- eee 5

25 GU... BS DIIGO Os ok nc 6 SO ee 5

25 U.S.C. § 2710(A) (7) ec cccccccccsees ri

25 U.6.C6 B BILOCE) (7) 1 A 5 ieee es 4

Sections 2710(d)(7A)(ii) through

PISOCRS AWE a oe on 5 eo ee es 24

Section 2710(d)(7)(B)(iii)........ 5, 9, 17

25-U.8.C.—S 27012164) (7) (B) (49) coc cee -

25 U.S.C. § 2710(d)(7)(B)(vii)....... 6

25 U.S.C. § 2710 (d)(7)(B) (vii) (I)... 24

28 U.S.C. § TA2SEC1) csvccccccesscasees 2

28 U.S.C. § 2403(a). cece eres eveeces 3

Rules of Supreme Court

Oe Me! Pear ewe tT ee eee a crs 2 eee 1

Rule ZO. 41D) ccccdvcccecsseseserssecses iv, 3

TABLE OF AUTHORITIES

PAGE(S)

Other Authority

S.Rep. No. 100-446, 100th Congress,

lst Sess. 1-5, 1988 U.S. Code Cong.

& Admin. NewS 3071-3076.....-seeeeees 4, 25

Xi

OPINIONS BELOW

1. The opinion and judgment of the

Eleventh Circuit is reported as Seminole

Tribe of Florida v. State of Fiorida, et

al. and Poarch Creek Indians v. State of

Alabama, et al., 11 F.3rd 1016 (1lith Cir.

1994), consolidated on appeal, and is

submitted as Appendix A.

yo The opinions of the United

States District Court for the Southern

District of Alabama, dismissing this cause

for lack of subject matter jurisdiction,

are reported as_ follows: Poarch Creek

Indians, et al. v. State of Alabama, et

al., 776 F.Supp. 550 (S.D.Ala. 1991) and

784 F.Supp. 1549 (S.D.Ala. 1992)" and are

submitted as Appendices B and D. A third

order is unpublished and is submitted as

Appendix c.}

lithe appendices to this petition are

separately bound pursuant to Rule 14.

JURISDICTION

The opinion and judgment of the

United States Court of Appeals for the

Eleventh Circuit sought to be reviewed

here was entered on January 18, 1994.

Appendix A. On April 6, 1994, the

Eleventh Circuit entered an order denying

a timely application for rehearing.

Appendix _E. On April 28, 1994, the

mandate was stayed. Appendix F.

The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States,

Tenth Amendment states:

The powers not delegated to

the United States by the

Constitution, nor prohibited by

it to the states, are reserved

to the states respectively, or

to the people.

Constitution of the United States,

Eleventh Amendment states:

The judicial power of the

United States shall not be

construed to extend to any suit

2

in law or equity, commenced or

prosecuted against one of the

United States by citizens of

another state, or by citizens or

subjects of any foreign state.

Constitution of the United States,

Article iid, § 2 is set forth in

Appendix H.

245 U.S.C. §§ 2703(8) and 2710(d)

of the Indian Gaming Regulatory Act, the

most relevant here, are set forth in

Appendix G.

STATEMENT UNDER RULE 29.4(b)

Since the constitutionality of IGRA,

an Act of Congress affecting the public

interest, may be drawn into question, 28

U.S.C. § 2403(a) may be applicable and

this document will be served on the

Solicitor General.

The Court of Appeals certified to the

Attorney General that the

constitutionality of an Act of Congress

might be drawn into question and the

Attorney General declined to appear below.

STATEMENT OF THE CASE

NATURE OF THE CONTROVERSY

The Indian Gaming Regulatory Act

( IGRA) establishes a comprehensive

Statutory scheme for the regulation of

gambling on Indian lands. 25 U.S.C.

§ 2701, et seq., and 18 U.S.C. 1166-68.

It is the result of years of legislative

debate and prior judicial decisions.

S.Rep. No. 100-446, 100th Congress, list

sess. 1-5, 1988 U.S. Code Cong. & Admin.

News 3071-3076.

Under IGRA Congress created three

categories of gaming. The issues before

this Court relate to Class III gaming,

which includes all forms of gambling other

than traditional Indian games and bingo.

25 U.S.C. § 2703(8). Class III

2a11 cited provisions of IGRA are

contained in Appendix G.

gaming is lawful only in a state which

permits such gambling for any purpose by

any person, entity or organization. 25

U.S.C. § 2710(d)(1)(B).

A tribe desiring to conduct Class III

gambling must request the State in which

the Indian lands are located to negotiate

a tribal-state compact governing Class III

gambling. The State, according to IGRA,

is directed to negotiate with the Indian

tribe in good faith. 25 U.S.C.

§ 2710(d)(3)A.

If a State fails to negotiate or

negotiate in good faith, IGRA provides

that a tribe may initiate suit in federal

district court. § 2710(d)(7)(A)(i).

If the court finds that the State has

not acted in good faith, the court directs

the State and the Tribe to conclude a

compact. § 2710(d)(7)(B)(iii). If the

compact is not completed within sixty

days, the court appoints a mediator.

§ 2701(d)(7)(B)(iv). The compact

proposal selected by the mediator is then

sent to the Secretary of the Interior for

implementation. § 2710(d)(7)(B)(vii).

Contrary to the Eleventh Circuit

opinion, there is no provision in the

statute for an Indian Tribe to apply

directly to the Secretary of the Interior

for a compact. Nor are there any

provisions authorizing the Secretary to

create a compact or to permit gambling on

Indian lands without a state-tribal

compact.

THE DISTRICT COURT PROCEEDINGS

Alabama offered to compact with the

Poarch Band for pari-mutuel wagering on

horse, dog and simul-cast races, the only

forms of Class IIi gaming permitted under

Alabama law. (Rl-1-11; R1-1-14 through

-16). The Tribe alleged that Alabama

permits all types of gambling, other than

a lottery, and that the Governor had

negotiated in bad faith by not agreeing to

conclude a compact for casino gambling

which is not allowed anywhere in Alabama.

(R1l-1-4 through -13) Negotiations having

ended, the Poarch Band of Creek Indians

filed suit against Alabama and its

Governor on September 11, 1991, seeking a

determination of the scope of-gaming and a

compact. Appendix B6-B9; (R1l-1). All

allegations of bad faith were denied by

Alabama and the Governor. (R1-4 and

R1-5) Jurisdiction was asserted primarily

under § 2710(d)(7)(A)(i) of IGRA.

Appendix A15.

The State answered and filed a motion

to dismiss under the Eleventh Amendment.

Appendix B8. On October 30, 1991, Alabama

was dismissed. Appendix B70. After the

Poarch Band's complaint was amended,

Alabama was again dismissed. Appendix C7.

The Governor filed a motion to

Gismiss on Eleventh Amendment grounds and

the motion was granted on February 20,

1992. Appendix Dl and D17. All

defendants having been dismissed, the

Poarch Band's suit was terminated without

reaching the merits of the matter,

including whether negotiations were

conducted in good faith. Appendices B, C

and D.

THE CIRCUIT COURT PROCEEDINGS

On appeal, the Eleventh Circuit,

having jurisdiction under 25 U.S.C.

& 129d. consolidated Seminole Tribe of

Florida v. State of Florida and Lawton

Chiles, Governor (No. 92-4652) and Poarch

Creek Indians, et al. v. State of Alabama

and James E. Folsom, Governor (No.

92-6244), reported at 11 F.3rd 1016 (llth

Cir. 1994). Appendix A, infra. In each

of these cases the states asserted

immunity from suit by Indian Tribes by

virtue of the Eleventh Amendment. The

Eleventh Circuit affirmed the dismissal of

the suit against Alabama in Poarch Band

and reversed the district court in

Seminole Tribe holding that both cases

were to be dismissed for lack of subject

matter jurisdiction. Appendix A66 and A69.

Section 2710(d)(7)(B)(iii) of IGRA

mandates a threshold judicial finding that

a state has failed to negotiate in good

faith before’ relief can be granted.

However, after ordering dismissal of the

action, the Eleventh Circuit while

"analyzing its holding” in Section V. of

its decision, designed a bypass for the

Tribes, permitting them to go directly to

the Secretary of the Interior for gaming

regulations. Seminole Tribe, 11 F.3rd at

1019, 1029. Appendix A66-A68.

REASONS FOR GRANTING THE WRIT

)

INTERPRETATION OF THE INDIAN GAMING

REGULATORY ACT PRESENTS QUESTIONS

OF GREAT IMPORTANCE.

Rarely does a state who prevailed

below seek review.> However, the

importance of interpretation of the Indian

Gaming Regulatory Act (IGRA), not only for

the states, but also for Indian Tribes and

the Secretary of the Interior, calls for

review by this Honorable Court.

The Eleventh Circuit, interpreting

IGRA, after having dismissed the action

under the Eleventh Amendment, assumed

jurisdiction and devised a remedy for the

Poarch Band not found in IGRA. In order

to do this, the Eleventh Circuit had to

determine that raising a valid

constitutional bar to a suit by a Tribe

constitutes a lack of good faith by a

3while it may appear on the face of

the judgment that the State of Alabama and

the Governor are prevailing parties, the

result of the written opinion is that the

Tribes may have won by losing.

10

state. Seminole Tribe, 11 F.3rd at 1029;

Appendix A66-A68.

The Secretary, not a party below, has

been empowered to prescribe gaming

regulations for Indian gaming operations

in Alabama even though there is. no

statutory basis for doing so. The

Eleventh Circuit did not limit such gaming

to that authorized by state law, as IGRA

does. Even with a finding of bad faith

this procedure is improper.

While Alabama recognizes that

economic development is very important to

the Poarch Band of Creek Indians and other

Tribes, Alabama and other States also have

important interests in Indian gaming,

4 although judicial interpretation

by the Eleventh Circuit is arguably dicta,

the Attorney General has been informed by

the Department of the Interior that it has

taken preliminary steps toward prescribing

gaming regulations pursuant to the

Eleventh Circuit opinion.

11

including but not limited to, a strong

public policy in Alabama against Class III

casino gambling as evidenced by

constitutional prohibitions and statutes

making it a crime. The State of Alabama,

its citizens, the Attorney General, and

the Governor have a legitimate interest in

these matters of public policy, as well as

a duty to defend these interests by all

lawful means, including asserting the

defense of sovereign immunity.

As matters stand today, the circuit

and district courts and Tribes and states

currently in the negotiating process are

in a quandary. In the circuit and

district courts conflicting decisions are

proliferating rapidly and the need for

guidance from this Court is acute. This

case presents a timely and unique

Opportunity for this Court to _ provide

guidance, where none has been given.

12

Because the questions presented are

important and for the reasons set out

hereafter, this Court should grant the

petition, vacate Section Vv. of the

Eleventh Circuit decision and permit the

Congress to address the issue.

Il.

SECTION V. OF THE ELEVENTH CIRCUIT

DECISION NOT ONLY CONTRAVENES THE

CONSTITUTION OF THE UNITED STATES,

ARTICLE III, § 2 AND THE EL™VENTH

AMENDMENT, BUT IS IN CONFLICT WITH

DECISIONS OF THIS HONORABLE COURT.

Despite holding that the court below

lacked jurisdiction over the merits, the

Eleventh Circuit assumed jurisdiction, and

in Section V. of the decision interpreted

the Indian Gaming Regulatory Act (IGRA).

Seminole Tribe, 11 F.3rd at 1029.

Appendix A66-A68. Such judicial

=a

interpretation on the merits is

inappropriate and inconsistent with the

district court's obligation to dismiss

without reaching the merits.

13

Where a court, trial or appellate, is

required to dismiss for lack of subject

matter jurisdiction under the Eleventh

Amendment, reaching the merits of a claim,

even in what is arguably dicta, is itself

a violation of the Eleventh Amendment.

Apache Tribe of the Mescalero Reservation

v. New Mexico, CIV 92-076-JC, Slip Op. at

p. 2, (D.C.N.M. Dec. 22, 1992).

Judicial interpretation was also

inappropriate here because once the matter

was dismissed, there ceased to be a case

or controversy. Constitution of the

United States, Article III, § 2. In

Section V. of its decision the Eleventh

Circuit interpreted IGRA in violation of

Article III and the Eleventh Amendment and

in conflict with decisions of this Court.

In Puerto Rico Aqueduct and Sewer

Authority v. Metcalf & Eddy, Inc., 506

U.S. , 113 S.Ct. 684, 121 L.Ed.2d 605

(1993), this Court found that the denial

14

of a claim by a state entity to Eleventh

Amendment immunity could be appealed under

the collateral order doctrine. In making

this finding, this Court wrote:

Moreover, a motion by a State or

its agents to dismiss on

Eleventh Amendment grounds

involves a claim to a

fundamental constitutional

protection, cf. Lauro Lines

S.R.L. v. Chasser, 490 U.S. 495,

502-03 (1989) (Scalia, Joe

concurring), whose resolution

generally will have no bearing

on the merits of the underlying

action.

Puerto Rico Aqueduct, 506 U.S. at

’

121 L.Ed.2d at 613 (emphasis added).

In United States v. Sisson, 399

267 (1970), this Court dismissing for

of jurisdiction under 18 U.S.C. §

held:

Consequently, this appeal must

be dismissed for lack of

jurisdiction without our

considering the merits of this

case.

U.S.

lack

SF |

Sisson, 399 U.S. at 270 (emphasis added).

Additionaily, this Court said:

We have today granted

certiorari in Gillette v. United

States . . . and Negre v. Larsen

. in order to consider the

"selective" conscientious

objector issue that underlies

the case now before us but which

we cannot reach because of our

conclusion that we have no

jurisdiction to entertain this

direct appeal.

399 U.S. at 613, n. 1 £=(emphasis

In The News-Journal Corporation

V.

Foxman, 939 F.2d 1499 (llth Cir. 1991)

Eleventh Circuit wrote the following:

Foxman,

with these decisions,

In denying the

News -J@f:rnal's motion for

reconsideration based on

Younger, the district court also

commented upon the substance,

particularly the scope, of the

restrictive order. In essence,

the district court analyzed the

restrictive order under the

First Amendment, although it

abstained under Younger. Any

substantive commentary and

analysis is inconsistent with

abstention for lack of

jurisdiction based on Younger.

the

939 F.2d at 1511 (emphasis added).

In contrast to and in direct conflict

16

the Eleventh Circuit

in Section V. of the decision judicially

interpreted IGRA providing substantive

commentary and analysis directly affecting

the rights and duties of the parties.

Both Younger abstention and Eleventh

Amendment immunity are jurisdictional.

Both depend on federalism as their

source. If a federal court lacks

jurisdiction to entertain a suit, it must

be dismissed and the matter concluded.

Iil.

THE ELEVENTH CIRCUIT DECIDED

IMPORTANT QUESTIONS OF FEDERAL LAW

WHICH HAVE NOT BEEN, BUT SHOULD BE,

DECIDED BY THIS HONORABLE COURT.

The Indian Gaming Regulatory Act, in

Section 2710(d)(7)(B)(iii), requires a

threshold judicial finding that a state

has failed to negotiate in good faith

before any succeeding provisions become

operative. The district court made no

finding that Alabama had failed to

negotiate in good faith, as the matter was

resolved on motions to dismiss without

17

reaching the merits. Appendices B, C and

D, infra. Yet, in order to reach the

merits, the Eleventh Circuit had to assume

jurisdiction and either turn a disputed

factual allegation into an adjudicated

fact or find that raising the Eleventh

Amendment as a defense constitutes a lack

of good faith or both.

Despite the fact that the Eleventh

Circuit specifically declined to address a

critical Tenth Amendment argument, crucial

to a resolution of the issue, see Appendix

A2-A3, n. 2, the Eleventh Circuit stated:

Nevertheless, we are left with

the question as to what

procedure is left for an Indian

tribe faced with a state that

not only will not negotiate in

good faith, but also will not

consent to suit.

Seminole Tribe, 11 F.3rd at 1029 (emphasis

added). Appendix A67-A68.

Alabama cannot consent to suit.

Constitution of Alabama 1901, § 14;

Alabama v. Pugh, 438 U.S. 781, 782 (1978),

18

Silver v. Baggiano, 804 F.2d 1211, 1214

(llth Cir. 1986); and Cabazon Band of

Mission Indians v. National Indian Gaming

Commission, 827 F.Supp 26, 34 (D.DC. 1993)

(~~ 7.300... , 1994 Wi 19995 (DC Cir.

1994), cert. denied).

Moreover, failing to accept all terms

put forth by a Tribe is not, in and of

itself, a failure to negotiate in good

faith. The Governor of Alabama offered to

negotiate a compact for horse, dog and

simul-cast races, the only Class aaa

gaming permitted in Alabama. (Rl-1-11;

R1-1-14 through 16). The Poarch Band

demanded casino gambling. Appendix

B6-B9. (R1-1-5 through -13) It is one

thing to assume that an allegation of bad

faith is true for the purpose of testing

an affirmative defense. It is another

matter entirely to treat an allegation as

a finding of fact or assume that it has

been adjudicated.

19

Once the Eleventh Circuit found that

it was without subject matter

jurisdiction, the matter should have been

concluded. Nevertheless, the Eleventh

Circuit assumed jurisdiction. Since it

tried to turn a disputed factual

allegation not decided below into an

adjudicated fact, but cannot, the

remaining result of its "dicta" is that

raising a valid Eleventh Amendment defense

to a suit by a Tribe, standing alone,

constitutes a lack of good faith and

empowers the Eleventh Circuit to design a

bypass for the Tribes.>

>In subsequent proceedings in

Seminole Tribe v. State of Florida, 1993

WL 475999, page 13 (S.D.Fla.) (Sept. 22,

1993), currently stayed on appeal,

(Eleventh Circuit No. 93-5256), the

district court found that the State of

Florida had, in fact, negotiated in good

faith.

20

The Eleventh Circuit reached beyond

the issue before it to make a finding

which the Court below was without

jurisdiction to entertain. Such judicial

declarations violate Article III and the

Eleventh Amendment.

The unsupported conclusion that a

state who raises an Eleventh Amendment

defense to suit by a Tribe has shown a

lack of good faith not only raises an

important question of initial impression,

but is also a departure from the usual

course of judicial proceedings calling for

the supervisory powers of this Court.

IV.

THE DECISION OF THE ELEVENTH

CIRCUIT IS ERRONEOUS.

The Eleventh Circuit, after

determining that the court below correctly

dismissed because it lacked jurisdiction,

assumed jurisdiction and in Section V. of

its~decision also ignored other provisions

of IGRA. The Eleventh Circuit remedy

21

permitting the Tribe to go directly to the

Secretary of the Interior for a gaming

compact is not found in IGRA.

While such a statutory scheme might

be enacted by Congress in the future, it

has not yet been done, nor was the issue

addressed by the district court. Finding

that the Tribe's remedy of suing an

unconsenting state in federal court is

unavailable does not open the door for the

Eleventh Circuit to create a remedy not

existing in the statute itself.

In The Apache Tribe of the Mescalero

Reservation v. New Mexico, CIV 92-076-JC,

Slip Op., (D.C.N.M. Dec. 22, 1992), the

court stated:

As in my order denying the

Pueblo of Sandia's motion to

amend or alter the dismissal

Order in CIV 92-613JC, I further

determine that it would be

improper for this Court to

address the severability issue

raised by the Apache Tribe of

the Mescalero Reservation. I

have already found that’ the

Eleventh Amendment precludes

this action in federal court

22

absent waiver by the State of

its immunity in a federal forum.

Apache Tribe, CIV 92-076-JC, Slip Op. at 2

(emphasis added).

IGRA contains a process for

negotiating and concluding a compact

between a Tribe and a State. IGRA

provides for suit, and after a judicial

finding of either failure to negotiate or

to negotiate in good faith, court-enforced

negotiation, appointment of a mediator,

where necessary, and implementation by the

Secretary of the Interior of the compact

chosen by the mediator. Succeeding

provisions are intertwined with preceding

provisions. § 2710(d)(7). Appendix

G1-Gl14.

Congress set forth no procedure for a

Tribe to go directly to the Secretary for

a compact. In fact, under IGRA, only the

mediator's compact is sent directly to the

Secretary and that is for implementation

of the chosen compact, not for creation of

23

a compact. § 2710(d)(7)(B)(vii)(I).

Most importantly, the Secretary's only

authority to prescribe procedures is _ not

independent of, but tied to, the process

set forth in Sections 2710(d) (7A) (ii)

=r 2710(d)(B)(vi) of IGRA. Appendix

When a court lacks subject matter

jurisdiction to act directly, that court

cannot, as did the Eleventh Circuit,

confer authority on an administrative

agency such as the Department of the

Interior to do indirectly what Congress

has not empowered that agency to do

directly. See, e.g., Montana-Dakota

Utilities Company v. Northwestern Public

Service Commission, 341 U.S. 246 (1951).

This Court stated:

[W]e know of no case _ where

the court has ordered reference

of an issue which the

administrative body would not

itself have jurisdiction to

determine in a proceeding for

that purpose.

24

Montana-Dakota, 341 U.S. at 254.

Congress intended IGRA to be a means

by which the varied public policies of

tribal, state and Federal governments

could be accommodated and reconciled.

S.Rep.No. 100-446, 100th Congress, lst

Sess. 1-5, 1988 U.S. Code Cong. & Admin.

News 3076. In Landgraf v. USI Film

Products, La P ’ ; Re 36: 62

U.S.L.W. 4255, 4267, n. 36 (April 26,

1994), this Court noted that "[w]le are

not free to fashion remedies that Congress

has specifically chosen not to. extend.

See Northwest Airlines, a Vv.

Transportation Workers, 451 U.S. 77, 97

(1981)."

In Sisson, 399 U.S. at 298, this

Court noted that a court must respect the

limits up to which Congress was prepared

to enact a particular policy, particularly

when the statute was enacted as a

compromise. Under IGRA Indian gaming is

25

lawful on Indian lands only if: (1)

authorized by tribal ordinance; (2)

located in a state which permits such

gambling for any purpose by any person,

entity or organization; and (3) conducted

in conformance with a state-tribal

compact. A process which totally

eliminates state involvement was not

intended by Congress. § 2710(d)(1).

Wu

THE CONFLICT IN THE CIRCUITS SHOULD

BE RESOLVED BY THIS COURT.

The Eighth Circuit, in Cheyenne River

Sioux Tribe v. South Dakota, 3 F.3rd 273

(8th Cir. 1993) taced the same issues as

the Eleventh Circuit, but reached a

different conclusion. Following the

Statutory provisions of IGRA, the Eighth

Circuit held that a state is required to

negotiate with a Tribe only over those

games authorized by state law. Cheyenne

River, 3 F.3rd at 279.

26

Although Alabama offered to negotiate

a compact for horse, dog and simul-cast

races, the Poarch Band filed suit seeking

full casino gambling. (R1-1-5 through

-13) If Alabama were in the Eighth

Circuit, Alabama would now be negotiating

over those forms of gaming, as those are

the only Class III games permitted under

Alabama law.

Under the Eleventh Circuit decision,

Alabama would be precluded from any

participation in the formulation of

regulations under which Indian Gaming is

conducted in Alabama, if it has raised an

Eleventh Amendment defense.

The results of these circuit court

decisions interpreting IGRA constitute a

conflict in the circuits which should be

resolved by this Court.

VI.

BOTH THE INDIAN GAMING REGULATORY

ACT AND THE CREATIVE BYPASS

DESIGNED BY THE ELEVENTH CIRCUIT

VIOLATE THE TENTH AMENDMENT.

27

After declining to address the Tenth

Amendment argument presented in original

briefs in this appeal, the Eleventh

Circuit proposed a remedy that is

foreclosed by the argument the Court

failed to consider. The Eleventh Circuit

could have addressed the Tenth Amendment

argument on the basis that New York v.

United States, U.g. P 120

L.Ed.2d 120, 112 S.Ct. 2405 (1992), was an

intervening decision addressing the issue

raised and dispositive of the matter

before the Court or that the decision in

New York provided an alternate ground for

sustaining the judgment of the district

court. ° Si -e the Eleventh Circuit

Smenth Amendment challenges to IGRA

are currently pending in the Ninth and

Tenth Circuits.

28

addressed a question not considered by the

district court -- the remedy -- it should

have been considered in its entirety.

Not only does IGRA violate the Tenth

Amendment, the Eleventh Circuit remedy

violates the Tenth Amendment. Under this

Suggested remedy, states have two coercive

choices -- be sued by the Tribe or assert

your immunity and have the Secretary of

the Interior prescribe the manner in which

Indian gaming will be conducted in your

state. This is precisely that which is

forbidden in New York v. United States,

yet what the Eleventh Circuit declined to

address.

29

CONCLUSION

The petition for a writ of certiorari

should be granted and Section V. of

Eleventh Circuit decision vacated.

Respectfully submitted,

JAMES H. EVANS

Attorney General

CAROL JEAN SMITH *

Assistant Attorney

General

Counsel of Record *

11 South Union Street

Montgomery, AL 36130

Telephone: 205/242-7416

Counsel for Petitioners

Of Counsel:

KENNETH A. DOWDY

Deputy Legal Advisor

State Capitol

Montgomery, AL 36130

Telephone: 205/242-7191

the

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