Cross Petition — Florida v. Seminole Tribe of Florida (Nos. 94-219, 94-35, 94-189)

Supreme Court, U.S.

94 219 JUL 28 1994

No. :

es stereo MS

IN THE

Supreme Court of the United States

October Term, 1994

STATE OF FLORIDA and LAWTON CHILES, Governor,

Cross-Petitioners

Vv.

SEMINOLE TRIBE OF FLORIDA,

Cross-Respondents

ON CROSS-PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

CROSS-PETITION FOR WRIT OF CERTIORARI

ROBERT A. BUTTERWORTH

Attorney General of Florida

JONATHAN A. GLOGAU

Assistant Attorney General

Fla. Bar No. 371823

(Counsel of Record)

DEPARTMENT OF LEGAL AFFAIRS

PL-01, The Capitol

Tallahassee, FL 32399-1050

(904) 488-5899

Counsel for Cross-Petitioners

se

QUESTIONS PRESENTED FOR REVIEW

Whether the Court should have engaged in comment

affecting the duties and responsibilities of the parties in

part V of the opinion after holding that there was no subject

matter jurisdiction?

Whether the remedy created by the Court in part V of its

opinion can be found within IGRA and whether it is consis-

tent with the intent of Congress in the passage of IGRA?

Whether the Court below improperly engaged in sever-

ability analysis creating a new remedy for the Tribe, where

the court merely addressed the validity of a jurisdictional

bar to the instant suit?

|

PARTIES

The caption contains the names of all parties to this action

in the court below in the captioned case.

Parties in the case consolidated on appeal with this case

in the Eleventh Circuit were:

Poarch Creek Indians and Poarch Band of Creek

Indians,

Plaintiffs/Appellants

State of Alabama and James E. Folsom, Governor, |

Defendants/Appellees.

Amici curiae in the Eleventh Circuit were: )

National Indian Gaming Association

The Tunica Biloxi Tribe

The States of:

California Nevada

Connecticut Oklahoma

Kansas South Dakota

Mississippi Washington

Montana Wyoming

Nebraska

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.......

ee ee ge es 5c we ko us 6 8 4 8

COURSE OF PROCEEDINGS AND

BPE MEE OP CADE 2... wt tt ee

REASONS FOR GRANTING CERTIORARI ......

WHEN ACOURT DISMISSES A CASE FOR

LACK OF SUBJECT MATTER JURISDICTION

IT IS INAPPROPRIATE TO MAKE

SUBSTANTIVE DECISIONS CONCERNING

THE RIGHTS AND RESPONSIBILITIES OF

I Pe ey Ans hw ie wie ee «

THE REMEDY SUGGESTED IN PART V OF THE

APPELLATE COURT'S OPINION IS NOT

FOUND IN IGRA AND IS INCONSISTENT

WITH THE INTENT OF CONGRESS

REGARDING THE ROLE OF THE STATES IN

THE COMPACT PROCESS .............

iil

Page

THE COURT BELOW ERRONEOUSLY

ENGAGED IN SEVERABILITY ANALYSIS

WHERE IT MERELY ADDRESSED THE

VALIDITY OF THE JURISDICTIONAL BAR OF

THE ELEVENTH AMENDMENT.......... 21

fo TRE Pea ere ere 24

iv

TABLE OF AUTHORITIES

Cases Page(s)

American Federation of Gov. Employees v. Pierce,

697 F. 2d 303 (D.C. Cir. 1982) ........... 13

Apache Tribe of the Mescalero Reservation v.

New Mexico, slip op. CIV 92-076-JC

ee | 22

Board of Regents v. Roth, 408 U.S. 564 (1972). .... 12

Cheyenne River Sioux Tribe v. South Dakota,

oF. OG Bre Geeta 60 5 seek ek 8

Landgraf v. U.S.I. Film Products, ___ U.S. __,

62 U.S.L.W. 4255 (April 26,1994). ........ 16

Mistretta v. U.S., 488 U.S. 361(1989) ......... 13

Northwest Airlines, Inc. v. Transportation Workers,

Gee Uh 44 GHD) oc ae eee 16

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) .. 13

Puerto Rico Aqueduct and Sewer Auth. v. Metcalf

and Eddy, 506 U.S. ___, 121 L.Ed.2d 605 (1993). . 9

Rodriguez v. United States, 480 U.S. 522 (1987) ... 15

Seminole Tribe of Florida v. State of Florida, et al.,

ab F. 36 1036 (itt Cie 1900) > 2 2 ww Sk fe 1,9

Seminole Tribe of Florida v. State of Florida, et al.,

801 F.Supp. 655 (S.D. Fla. 1992). .......... 1

Cases Page(s)

Spokane Tribe of Indians v. Washington State,

___ F 3d __, 1994 WL 316443

Coe Ga ee os ke eee wee kee eK 8, 9, 20, 23

The News Journal v. Foxman, 939 F. 2d 1499

+ le | ie a rn ee ll

United States v.Sisson, 399 U.S. 267(1970)...... 10

Statutes and Constitutional Provisions

keh CoG) | | rr eer ee 16

SD Ua BE, 6. 0 oc 2 6 0s ea eee 5

- pis tee | || Pe 6, 12, 19

ik CR tf) ere ere re 12, 18

Pre toe | .¢ 9 5) | rr 5

BS UBAd Cates 6-0 e682 a wees 12, 18

26 US.GC. SST oc te eee ee tee 5,15

, Ries tek | 2 | rr ese 12

y Pio Cee’ 5 |, | re ee 5, 21

95 US.C. SSIES oc Ce tec cee es 12, 14, 21

25 U.S.C. § 271QdKX7XBMin) .. 2. 2 2 ee ee ee 5,13

25 U.S.C. § 2710(d)(7KBXMiv) ........ 5, 6, 13, 14, 23

25 U.S.C. § 2710(d7XBXvii). 2... 2. 2... 13, 14, 23

SE U.S.C. SETS Os ade cc's ade 62 eee 21

Art. 1.33846. 2 US. Cok... «.0's 6250 616> aw ee 7

Other Authorities

S.Rep. 100-446, 100th Cong, 2d Sess.,

ROOS ULC aaee een sb hh 6 ea ee 15, 18

S.Rep. 99-493, 99th Cong., 2d Sess.(1986) ...... 17

S.Hrg. no. 341, 100th Cong, Ist sess (1987) ...... 18

OPINIONS BELOW

The opinion and judgment of the Eleventh Circuit is re-

ported as Seminole Tribe of Florida v. State of Florida, et all,

and Poarch Creek Indians v. State of Alabama, et al, 11 F

3d 1016 (11th Cir. 1994) and is submitted as appendix A.

The opinion of the District Court in this case is found at

Seminole Tribe _ lorida v. State of Florida, et al., 801 F.Supp.

655 (S.D. Fla. 1992) and is submitted as appendix B.

Se eS ea ae eae

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Eleventh Circuit, review of which is sought

here, was entered on January 18, 1994. On April 6, 1994,

the Eleventh Circuit entered an order denying timely mo-

tions for rehearing and suggestions for rehearing en banc.

By order of April 28, 1994, the mandate was stayed.

Jurisdiction of this court is invoked under 28 U.S.C.

§ 1254(1) and Rule 12.3 of the Rules of the Supreme Court.

The date of receipt of the Petition for Certiorari in connec-

tion with which this cross-petition is filed was July 1, 1994,

docket number 94-12.

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution of the United States, Eleventh Amendment

states:

The judicial power of the United States shall not

be construed to extent to any suit 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.

Relevant portions of 25 U.S.C. § 2701, et seq, are set forth

in the appendix, separately bound, at Appendix F.

STATEMENT UNDER RULE 29.4(b)

Since the constitutionality of the Indian Gaming Regulatory

Act, 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 Soliciter 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 gam-

bling on Indian lands. 25 U.S.C. § 2701 et seg. and 18 U.S.C.

§ 1166-68. It is the result of years of legislative debate and

prior judicial decisions. S.Rep. 100-446, 100th Cong., 1st

Sess. 1-5, 1988 U.S.C.C.A.N. 3071-3076.

Under IGRA, Congress created three categories of gam-

bling. The issues before this Court relate to class III gam-

bling, which includes all forms of gambling other than

traditional Indian social games and bingo. 25 U.S.C. § 2703(8).

Class III gambling is lawful only in a state which permits

such gambling for any purpose, by any person, entity or

organization. 25 U.S.C. § 2710(dX1XB).

A Tribe desiring to conduct class III gambling must re-

quest the State in which the Indian lands are located to

negotiate a Tribal-State compact governing such gambling.

The State, pursuant to IGRA, must negotiate in good faith

with the Tribe. 25 U.S.C. § 2710(d)(3)A).

If the State fails to negotiate or fails to negotiate in good

faith, the IGRA provides that a Tribe can initiate a suit in

federal district court. 25 U.S.C.§ 2710(dX 7X AXi)

If the court finds that the state has not acted in good faith,

then the court will direct the state and the Tribe to conclude

a compact within 60 days. 25 U.S.C. § 2710(dX7XBXiii) If a

compact is not completed within that time, the court can then

appoint a mediator. 25 U.S.C. § 2710(dX7XBXiv) The State

and the Tribe are directed to propose their last best offer and

the mediator is required to select the one of the two submitted

compacts which best comports with the IGRA, other applica-

ble federal law, and the findings and order of the court. Id.

The State and the Tribe then have 60 days to agree to

the selected compact. 25 U.S.C. § 2710d7)(BXv)-(vii) If

the parties still cannot agree to execute a compact within

that time, then the mediator transmits the selected com-

pact to the Secretary of the Interior. Only at this point is

the Secretary empowered to prescribe regulations for the

implementation of class III gambling consistent with the

terms of the chosen compact, IGRA, and State law. 25

U.S.C. § 2710(d)(7)(BX vii)

After finding that the States could validly interpose a de-

fense of the Eleventh Amendment to a suit by a Tribe under

2F T1.S.C. §2710(d), the Circuit Court below went on to discuss

the effect of its ruling and fashion a remedy for the Tribes that

is not otherwise found in the IGRA and which is contrary to

the clear intention of Congress for State participation. This

discussion violates the dictates of precedents of this Court and

implicates important issues regarding gambling on Indian

Reservations governed by the processes in IGRA.

COURSE OF PROCEEDINGS AND

DISPOSITION OF CASE

On September 19, 1991, Plaintiff, Seminole Tribe filed

its complaint in the District Court alleging that the State

of Florida had failed to negotiate in good faith for the

completion of a Tribal-State compact for gambling opera-

tions pursuant to the Indian Gaming Regulatory Act

(IGRA), 25 U.S.C. § 2701, et seq. [Vol. 1, Doc. 1] The State

defendants moved to dismiss the case based on the immu-

nity afforded in the Eleventh Amendment on December

16, 1991. [Vol. 1, Doc. 14] Oral argument was heard by the

Court on January 13, 1992 and the Court issued its order

denying the motion on June 18, 1992. [Vol. 2, Doc. 46] A

timely notice of appeal was filed July 9, 1992. [Vol. 2, Doc.47]

By motion dated August 22, 1992, Plaintiff Tribe moved

to consolidate this case with Poarch Band of Creek Indians

v. Alabama, case no. 92-6244 and that motion was granted

by order dated October 1, 1992.

Briefs were filed by all parties in November and Decem-

ber, 1992 and oral argument was held before the Court on

January 4, 1993. By opinion dated January 18, 1994, the

11th Circuit Court of Appeals reversed the lower Court’s

denial of Florida’s motion, remanding with instructions to

dismiss the case, and affirmed the Alabama District Court’s

dismissal of the Poarch Band case. The Appeals Court held

that the Eleventh Amendment immunity of the States could

not be abrogated by Congress pursuant to its authority

under the Indian Commerce Clause, Art. I, § 8, cl. 3, U.S.

Const., and that none of the established exceptions to the

State’s Eleventh Amendment Immunity were applicable.

Therefore, the Court found that it lacked subject matter

jurisdiction.

During the pendency of the appeal in the Seminole case,

the State of Florida and the Seminole Tribe agreed to pro-

ceed with cross-motions for summary judgment on the mer-

its in the Court below. After extensive briefing and oral

argument, the District Court issued an order and opinion

defining the proper scope of negotiations for Florida and the

Seminole Tribe. The Court below also specifically found

that Florida had not violated IGRA because it had nego-

tiated in good faith for the completion of a compact with

the Seminoles.!

1 That case is currently on appeal to the 11th Circuit, docket number

93-5256. That case has been abated pending the outcome of the Seminole

Tribe’s Petition for Certiorari to this Court, docket number 94-12. Acopy

of the district court’s final order on summary judgment is provided in

appendix E.

REASONS FOR GRANTING CERTIORARI

This Court should exercise its powers of supervision over

the 11th Circuit because that court ignored binding prece-

dent and went forward with the creation of a remedy for the

Tribes in the face of an assertion of a valid 11th Amendment

defense after holding that the case should be dismissed for

lack of subject matter jurisdiction.

The addition of part V of the lower court’s opinion created

a split among the circuits on the issue of remedies. The 8th

Circuit made no comment. See Cheyenne River Sioux Tribe

v. South Dakota, 3 F. 3d 273 (8th Cir. 1993). The court below

in this case created a remedy for a tribe faced with a state

which asserts its 1lth Amendment immunity and the 9th

circuit stated that the remedy created by the 11th circuit

“pervert[s] the Congressional plan.” Spokane Tribe of

Indians v. Washington State,__ F. 3d ___, 1994 WL 316443,

*6 (9th Cir. 1994).

Finally, the remedy provided by the court below is not

found in the statute and is inconsistent with the intent of

Congress which involved the careful balancing of the inter-

ests of the Federal, State, and Indian governments. The 11th

Circuit’s attempt to legislate a new remedy is inappropriate

and it should be left to Congress to reevaluate the balance

of interests and purposes of this act in fashioning a new

remedy, if one is needed.

WHEN ACOURT DISMISSES A CASE FOR LACK OF

SUBJECT MATTER JURISDICTION IT IS

INAPPROPRIATE TO MAKE SUBSTANTIVE

DECISIONS CONCERNING THE RIGHTS AND

RESPONSIBILITIES OF THE PARTIES

The Court below determined that:

the States retain their sovereign immunity and

the federal Courts do not have subject-matter ju-

risdiction over suits brought under IGRA.

Seminole Tribe of Florida v. State of Florida, et al., 11 F. 3d

1016, 1019 (11th Cir. 1994). The Court went on to hold that

absent one of the accepted exceptions:

(The Eleventh Amendment serves as a jurisdic-

tional bar and precludes federal Court adjudica-

tion over these suits.... [T]hese cases must be

dismissed for lack of subject matter jurisdiction.

Id. at 1029. While the Eleventh Amendment is often re-

ferred to in terms of sovereign immunity, the Court below

correctly characterized the amendment’s bar as jurisdic-

tional. Once the Court determines that subject matter

jurisdiction is lacking, it is inappropriate to make substan-

tive decisions, in this case creating a remedy, concerning the

rights and responsibilities of the parties.”

This Court has noted that when considering a jurisdic-

tional question, analyzing and commenting on the substan-

tive aspects of the case is inappropriate. Puerto Rico

Aqueduct and Sewer Auth. v. Metcalf and Eddy, 506 U.S. __,

2 Although arguably dicta, part V of the 11th Circuit’s opinion has

generated applications to the Secretary of the Interior pursuant to the

language of that section. Part V has also generated a conflicting

opinion from the 9th Circuit. Spokane Tribe of Indians v. Washington

State,___ F.3d ___, 1994 WL 316443, *6 (9th Cir. 1994)

9

121 L.Ed.2d 605 (1993) addressed the appealability of de-

nial of an Eleventh Amendment defense. The Court there

found that such a denial could be appealed and remanded

the case for further proceedings, stating:

Moreover, a motion by a State or its agents to

dismiss on Eleventh Amendment grounds involves

a claim to a fundamental constitutional protec-

tion...whose resolution will generally have no

bearing on the merits of the underlying action.

Id., 121 L.Ed.2d at 613 (citation omitted, emphasis

added). Addressing the specific question raised herein,

this Court stated:

Because the Court of appeals dismissed the appeal

on jurisdictional grounds, it did not consider the

merits of PRASA’s Eleventh Amendment defense

and [took] no view as to whether PRASA is actually

entitled to the claimed immunity.... We likewise

express no view on the merits of the immunity claim.

Id., 121 L.Ed.2d at 611 (citation omitted, emphasis added).

In another case where jurisdiction was the question, this

Court also declined to address the merits of the claims,

holding:

Consequently, this appeal must be dismissed for

lack of jurisdiction without our considering the

merits of the case.

United States v.Sisson, 399 U.S. 267, 270 (1970). Recogniz-

ing its inability to reach the merits because of the lack of

jurisdiction, this Court stated:

We have today granted certiorari in Gillette v.

United States...and Negre v. Larsen...in order to

consider the “selective” conscientious objector is-

sue that underlies the case now before us but

10

which we cannot reach because of our conclusion

that we have no jurisdiction to entertain this

direct appeal.

Id. at 270n.1 (citations omitted, emphasis added).

Finally, the 11th Circuit itself recognized the impropriety

of making substantive comment where jurisdiction is lack-

ing in The News Journal v. Foxman, 939 F. 2d 1499 (11th

Cir. 1991), holding:

In denying the News-Journal’s motion for recon-

sideration based on Younger, the district Court also

commented upon the substance, particularly the

scope, of the restrictive order. In essence, the dis-

trict Court analyzed the restrictive order under

the First Amendment, although it abstained un-

der Younger. Any substantive commentary and

analysis is inconsistent with abstention for lack of

jurisdiction based on Younger.

Id. at 1511 (emphasis added). Foxman involved abstention

under Younger; this case involves lack of subject matter

jurisdiction under the Eleventh Amendment. It was even

more important for the Court below to refrain from “ana-

lyz[ing] the effect of [its] holding”? when the jurisdictional

bar of the Eleventh Amendment is involved.

This Court should exercise its power of supervision over

the actions of the 11th Circuit and remove the discussion of

the effect of the court’s holding that the case should be

dismissed for lack of jurisdiction. That discussion flies in the

face of the clear dictates of this Court and the 11th Circuit

itself that where subject matter jurisdiction is lacking, the

case should be dismissed without any substantive comment.

3 Seminole Tribe, 11 F. 3d at 1019.

11

THE REMEDY SUGGESTED IN PART V OF THE

LOWER COURT'S OPINION IS NOT FOUND IN IGRA

AND IS INCONSISTENT WITH THE INTENT OF

CONGRESS REGARDING THE ROLE OF THE STATES

IN THE COMPACT PROCESS

As the Court below recognized in its analysis of the Tribes’

alleged “liberty interest” arising from Board of Regents v.

Roth, 408 U.S. 564 (1972), the compacting process envi-

sioned by IGRA is discretionary.

IGRA does not create an entitlement to operate

gambling operations; rather, it establishes the

process and standards by which gambling may be

conducted on Indian lands.

Seminole v. Florida, 11 F. 3d at 1025. That process is set

forth in 25 U.S.C. § 2710(d).

The process for class III gambling under IGRA can be

outlined briefly as follows:

1. Class III activities are lawful only under a Tribal

ordinance, in a state that permits such gaming, and under

the terms of a Tribal State compact. § 2710(dX1)

2. The Tribe must request that the State enter into nego-

tiations for the completion of a compact. The State is re-

quired to negotiate in good faith. § 2710(dX3)

3. Compacts must be approved by the Secretary of the

Interior. § 2710(d)(3)(B)

4. If the State fails to enter into negotiations or fails to

negotiate in good faith, the Tribe can, after 180 days from

the initial compact request, file suit in the United States

District Court. § 2710(d)(7BXi)

12

5. The Court shall order the Tribe and the State to con-

clude a compact within 60 days, if and only if it finds that

the State has not negotiated in good faith. § 2710(d)(7B\iui)

6. If a compact is not completed within the 60 day period,

then the Court shall appoint a mediator who shall pick a

compact from the last best offers of the State and the Tribe.

The compact selected must be the one which best comports

with the terms of the Act (IGRA), other applicable federal law

and the findings and order of the Court. § 2710(dX7XBXiv)

7. The State and the Tribe then have 60 days in which to

accept the mediator’s choice. Absent that consent, the

mediator shall inform the Secretary (of Interior) and the

Secretary shall prescribe regulations for class III gambling

which are consistent with the proposed compact chosen by

the mediator, the provisions of IGRA, and the relevant

provisions of the laws of the state. § 27 10(dX7XB)(vii)

The process set forth in part V of the lower Court’s opinion

is not found in these provisions of IGRA. The Court would

delegate to the Secretary of the Interior both the determi-

nation of good faith and of the scope of gambling permitted

in the State. Congress, however, granted the Secretary

limited regulatory discretion in § 2710(d(7)(B)(vii) — the

power to prescribe regulations consistent with a media-

tors choice of compact. This subsection does not grant the

Secretary the legislative discretion to decide what class II

gambling to permit or not permit. See American Federation

of Gov. Employees v. Pierce, 697 F. 2d 303, 306 (D.C. Cir.

1982). While a such a broad delegation might be upheld, see

Mistretta v. U.S., 488 U.S. 361, 373-74 (1989), IGRA, by

contrast, grants only a limited regulatory discretion. See

Panama Refining Co. v. Ryan, 293 U.S. 388, 415-30 (1935).

It is inappropriate for a federal executive official to make

these determinations where Congress left them to the

States and Tribes as equal partners at the bargaining table.

13

Also under part V, there is no need for a finding of lack of

good faith on the part of the state, which is the condition

precedent for all of the mediation and Secretarial involve-

ment under the terms of the IGRA. All subsections after

§ 2710(d)(7BXi) are inextricably entwined with the preced-

ing subsections. Clause (vii), upon which the court below

depended for its remedy, by its very terms depends on the

preceding clauses for its meaning, to wit:

If a State does not consent during the 60 day

period described in clause (vi) to a proposed

compact submitted by a mediator under clause

(v), the mediator shall notify the Secretary and

the Secretary shall prescribe, in consultation

with the Indian Tribe, procedures —

(I) which are consistent with the proposed compact

selected by the mediator under clause (iv), the provi-

sions of this Act, and the relevant provisions of the

laws of the State, and [] (II) under which class III

gaming may be conducted on the Indian lands over

which the Indian tribe has jurisdiction.

25 U.S.C. § 2710d\7\B)vii) (emphasis added). The

Secretary's only authority to prescribe regulations is not

independent of, but is inextricably tied to, the process set

forth in §§ 2710(dX7XAXii) through 2710(dX7XB)(vi).

Furthermore, it is the mediator who approaches the

Secretary of the Interior and the Secretary is constrained

by the terms of the compact chosen by the mediator and

State law. 25 U.S.C. §2710(dX 7X BX vii) The process outlined

by the Court below ignores these constraints and, as a

practical matter, removes the State from the process en-

tirely. The Tribe need only request a compact and file suit

after 180 days regardless of the behavior of the State.

Missing from the Court’s proposed remedy and essential to

the statutory process is the finding of bad faith and the

14

eerie se 0

intercession of a mediator who presents a compact to the

Secretary. Under no provision of the Act can the Tribes

petition the Secretary and under no provision of the Act can

the Secretary prescribe regulations when the State has been

negotiating in good faith.*

The Court’s dicta in part V creates a remedy inconsistent

with the plain language of the statute in an effort to grant

a remedy to the Tribes.° The Court then goes on to say that

the new remedy is consistent with the intent of Congress.

In doing so, the Court has sacrificed the States’ role in an

effort to effectuate its notion of the broad intent of Congress.

Deciding what competing values will or will not be

sacrificed to the achievement of a particular objec-

tive is the very essence of legislative choice — and

it frustrates rather than effectuates legislative in-

tent simplistically to assume that whatever furthers

the statutes primary objective must be the law.

Rodriguez v. United States, 480 U.S. 522, 526 (1987). The

process and the remedy set forth in § 27 10(dX7) was:

[T]he result of the Committee balancing the inter-

ests and rights of the tribes to engage in gaming

against the interests of the States in regulating

such gaming.

S.Rep. 100-446, S. 555, 100th Cong., 2d Sess., 14. The

Eleventh Circuit even recognized that IGRA was passed:

4 The State of Florida had negotiated in good faith but, under part V of

the opinion, could be faced with regulations imposed by the Secretary of the

Interior for class III gambling. This is not what Congress intended for a state

which has complied with the dictates of IGRA, 25 U.S.C. § 27 10(dX3XA).

5 It is ironic that the court below, in footnote 14, criticized the

Washington District Court in the Spokane case for doing exactly that.

15

[Alfter contentious debate concerning the appropri-

ate state role in the regulation of Indian gaming.

Seminole Tribe, 11 F. 3d at 1019. The 11th Circuit’s attempi to

legislate a new remedy is inappropriate and it should be left

to Congress to reevaluate the balance of interests and pur-

poses of this act in fashioning a new remedy, if one is needed.

The Court of Appeals is not free to fashion remedies that

Congress has specifically chosen not to extend. Landgraf v.

U.S.I. Film Products, ___ U.S. __, n. 36, 62 U.S.L.W. 4255,

4267 n.36 (April 26, 1994); see Northwest Airlines, Inc. v.

Transportation Workers, 451 U.S. 77, 97 (1981).

The fallacy of this process can be shown by the facts of the

case before this Court. The Seminole Tribe requested a

compact and proceeded to file suit against the State of

Florida. The Court below found that the State had not failed

to negotiate in good faith.® See Seminole Tribe v. Florida,

order on summary judgment, found at appendix E. The

Tribe would not, under IGRA as written by Congress, be

entitled to mediation or Secretarial involvement. However,

under part V of the lower court’s opinion, even in the face of

a finding of good faith on the part of the State, the Seminole

Tribe can apply to the Secretary for procedures. This locks

6 The Court below thought it was faced with the question of what

remedy was left to a 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. 3d at 1029. That is clearly not the case. A Tribe may be faced with a

state which is negotiating in good faith without reaching an agreement

within the 180 day period. Under IGRA, such a Tribe (like the Seminoles

herein) is granted no relief. The instant case proves the point. Under the

process envisioned by the 11th Circuit, Florida is placed in the position of

negotiating in good faith (see appendix E), asserting its sovereign immu-

nity, but seeing the Tribe apply to the Secretary of the Interior for

regulations for gambling which is criminally prohibited in this State and

contrary to its public policy. That is an end not envisioned by IGRA, which

allows for gambling on Indian lands only when consistent with the

criminal laws and public policy of the State. 25 U.S.C. § 2701(5).

16

the State out of the process, contrary to the intent of

Congress.

Congress did not treat all forms of gaming equally in the

passage of the IGRA. Class III gaming is generally barred

by the Act. Some of the specific language chosen by Congress

in enacting IGRA, and statements made by its principal

sponsor, illustrate the understanding Congress had of its

intended effect on class III gaming.

In criticizing H.R. 1920, the leading bill of the 99th

Congress, Senator Inouye, the prime sponsor of S. 555, and

Senator Gorton, stated:

We oppose H.R. 1920 as reported. The bill allows

Indian tribes to engage in, or to allow other per-

sons to engage in, high stakes commercial gaming

free from any meaningful control by the states or

federal government.

It is a dangerously deceptive bill because, while it

may appear to some to set out meaningful federal

supervision over tribal gaming, it actually merely

ratifies the status quo and leaves the tribes free to

do about what they are already doing in this area.

S. Rep. No. 493, 99th Cong., 2d Sess,. pp. 28-29 (1986).

The bill which Senator Inouye introduced the following

year corrected that perceived deficiency. As Senator Inouye

stated in opening hearings on S. 555, June 18, 1987:

In S. 555, which I introduced prior to the Supreme

Court’s decision in the Cabazon case, class III

would be banned unless the tribe requests the

Secretary to consent to a transfer of jurisdiction to

a State for the regulation and enforcement of State

laws governing class III gaming.

17

S. HRG. No. 341,100th Cong., 1st Sess., p. 1 (1987).’

The final version of S. 555 contains a similar ban, al-

though it is worded somewhat differently to accommodate

IGRA’s provision for a negotiated Tribal-State compact. 25

U.S.C. § 2710(d 1). As the Senate Report indicates, “S. 555

does not contemplate and does not provide for the conduct

of class III gaming activities on Indian lands in the absence

of a tribal-State compact.” Senate Report 100-446, S.555,

100th Cong. 2d Sess., 6.

The reason that Congress deemed it necessary to restrict

tribal authority to conduct class III gaming in the absence

of State jurisdiction, rather than leave it to a federal over-

sight agency, is also found the Act, 25 U.S.C. § 2701(3), and

in the Senate Report:

[T]he Committee notes that there is no adequate

Federal regulatory system in piace for class III

gaming, nor do tribes have such systems for the

regulation of class III gaming currently in place.

Thus a logical choice is to make use of existing

State regulatory systems.

7 §&. 555, as originally introduced (February 19, 1987), defined class III

gaming as it appears in the IGRA. However, Section 11(d) of the original

bill provided:

(1) Except as provided in paragraph (2) of this subsection,

class III gaming shall be unlawful on any Indian lands under -

section 1166 of title 18, United States Code.

(2) A gaming activity on Indian lands that is otherwise legal

within the State where such lands are located may be exempt

from the operation of paragraph (1) of this subsection where

the Indian Tribe requests the Secretary to consent to the

transfer of all civil and criminal jurisdiction. ...to the State

within which such gaming enterprises is to be located and the

Secretary so consents.

S. HRG. No. 341, 100th Cong., 1st Sess., p. 21 (1987) (emphasis added).

18

zy ee

Senate Report 100-446, S.555, 100th Cong. 2d Sess., 13-14

Senator Inouye expanded upon this issue in introducing the

legislation on the Senate floor:

The issue has been how to resolve the clash

between States and tribes with respect to

sophisticated forms of gaming such as casinos and

parimutuel wagering....

[I]t is simply not realistic for any but a few tribes

to set up regulatory systems. Nor did the Select

Committee on Indian Affairs view as meritorious

any suggestions for the establishment of a Federal

regulatory mechanism to duplicate what already

exists at the State level....

Thus, the best option available is the approach

taken by the committee on S. 555 and that is the

tribal-State compact approach.

Congressional Record, September 15, 1988, S. 12650, col. 2.

(Emphasis added.)

Thus, the legislative history of the IGRA, and the final

provisions which were adopted into the Act make clear that

with regard to the class III gambling at issue in this case

the principle function of the IGRA was to eliminate such

operations, unless certain restrictive conditions were met.

State participation in the compacting and regulatory proc-

esses was key to Congress. Neither the federal government

nor the Tribes have the ability to regulate this type of

gambling.

In IGRA, Congress attempted to provide a process which

protected the significant interests of all of the parties, the

State, Federal, and Tribal governments. Indeed, Congress

noted that the entire § 271d) was:

19

...the result of the Committee balancing the inter-

ests and rights of the tribes to engage in gaming

against the interests of the States in regulating

such gaming.

Senate Report 100-446, S.555, 100th Cong. 2d Sess. 14. The

Committee noted that the provision permitting the tribe to

sue the state on the basis of a lack of good faith negotiation

was designed as the least offensive option “to encourage the

states to deal fairly with the tribes as sovereign govern-

ments,” id, but also noted that the state had legitimate

governmental interests to protect. Congress made no provi-

sion for the Secretary of Interior to substitute his discretion

for that of the state regarding difficult issues of state gam-

bling law. Spokane Tribe of Indians v. Washington State, __

F. 3d___, 1994 WL 316443, *6 (9th Cir. 1994)

Against this background, it is clear that it was critical for

Congress to have the States involved in the compacting and

regulatory process. The procedure suggested by the Court

below in part V ofits opinion, by effectively taking the States

out of the process, leaves the Secretary with the choice of

having the federal government regulate class III gambling

or allowing the Tribes to self-regulate; both of these alter-

natives are contrary to the intent of Congress. Therefore,

even if it was proper for the Court to reach the issues in part

V of its opinion, the resulting process is inconsistent with

the intent of Congress in crafting the delicate compromise

which became IGRA.

20

THE COURT BELOW ERRONEOUSLY ENGAGED IN

SEVERABILITY ANALYSIS WHERE IT MERELY

ADDRESSED THE VALIDITY OF THE

JURISDICTIONAL BAR OF THE ELEVENTH

AMENDMENT

. The question presented to the Appeals Court (in its own

/ words) was:

eSB A ne torte rs

[W]hether Congress successfully abrogated the

States’ Eleventh Amendment sovereign immu-

nity from suit by enacting the Indian Gaming

Regulatory Act[.]

Seminole v. Florida, 11 F. 3d at 1018. The answer to that

question was:

Congress did not possess that power when enact-

ing IGRA under the Indian Commerce Clause,

U.S. Const art. I, § 8, cl. 3. Thus, the States retain

their sovereign immunity and the federal Courts

do not have subject matter jurisdiction over suits

brought under IGRA.

Id. at 1019. Both the question posed, and the answer given,

address the validity of the jurisdictional bar of the 11th

Amendment. In part V of the opinion, the court, discussing

the effect of its ruling, states that:

One hundred and eighty days after the tribe first

requests negotiations with the state, the tribe may

file suit in district Court.

Id. at 1029. This procedure outlined by the Court must

necessarily envision the continuing validity of 25

; U.S.C. §§ 2710(d)(7A)(i) and (Bi). These sections main-

tain their viability where a state consents to suit. Id. at

1029n.15. Engaging in severability analysis under 25

U.S.C. § 2721 is inappropriate where the court merely

21

4

i fl

addresses the validity of a jurisdictional bar.® All of the

cases involving questions of severability which could be

found involved a section of an act which was declared

unconstitutional, not the case here.

All the court below did was validate a defense available

to the States. If Congress mistakenly assumed that that

defense was unavailable to the States, then it is up to

Congress to reevaluate the compromise which became

IGRA in light of this defense. It is not appropriate for the

Court below to rewrite the statute and fashion a remedy

which, as has been shown, supra, is nowhere to be found

in the statute as written and is inconsistent with the

8 In Apache Tribe of the Mescalero Reservation v. New Mexico, slip op.

CIV 92-076-JC (12-22-92XKDCNM), the district 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.

22

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intent of the law to include the states as participants in

the process of approving Indian gambling within the re-

spective States.

9

In arecently decided case, the Ninth Circuit Court of Appeals found

that Congress could abrogate the States’ 11th Amendment immunity in

IGRA and, in doing so, commented on the remedy addressed in this

Cross-Petition, stating:

Spokane Tribe of Indians v. Washington State, __ F. 3d __, 1994 WL

The Eleventh Circuit reasoned that a void was not necessary

because the provisions of the statute authorizing the Secretary

of the Interior to impose regulations would come into effect

once a state asserted immunity from suit. When that occurred

the Secretary of the Interior would, in the Eleventh Circuit’s

view, remain authorized to impose regulations for Class III

gaming. Seminole Tribe, 11 F. 3d at 1029. In our view, how-

ever, such a result would pervert the Congressional

plan. This is because the Secretary of the Interior under the

statute is to act only as a matter of last resort, and then only

after consulting with the court appointed mediator who has

become familiar with the positions and interests of both the

tribes and the states in court directed negotiations. 25 U.S.C.

§ 2710(d)(7)(B)iv)-(vii). The Eleventh Circuit’s solution

would turn the Secretary of the Interior into a federal czar,

contrary to the Congressional aim of state participation.

316443, *6 (9th Cir. 1994) (emphasis added).

23

CONCLUSION

This court should grant certiorari in this cross petition and

remand this case to the appeals court below with instruc-

tions to revise its opinion, excising the discussion in part V.

This court should grant certiorari because the court below

has sufficiently departed from the accepted and usual

course of judicial proceedings by commenting on and decid-

ing the merits of a case after holding that there was not

subject matter jurisdiction; for creating a remedy which is

inconsistent with Congress’ clearly stated intent to protect

the interests of the states by requiring their participation in

the regulation of class III gambling; and for engaging in

severability analysis creating a remedy for the Tribe where

the court merely addressed a jurisdictional bar.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General of Florida

JONATHAN A. GLOGAU

Assistant Attorney General

Fla. Bar No. 371823

(Counsel of Record)

DEPARTMENT OF LEGAL AFFAIRS

PL-01, The Capitol

Tallahassee, FL 32399-1050

(904) 488-5899

Counsel for Cross-Petitioners

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