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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1133

## Text

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

e*eeeeeeer#se#e#eeeneee#shieeee#efsee#ee#te#se#shkgeee#e#e#e®

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e*eeeeneegeex eerieeweeneeeeeseseeeee#ee#ee#ee#ee#e#e

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

Gl

H]

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

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0037%3A1. Public record. Not legal advice.