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

0) \ Supreme Court, U.S.

gd / FiL ED

94 219 JUL 28 19%,

NO. grrice oF THE CLERK

IN THE

Supreme Court of the Hnited States

October Term, 1994

STATE OF FLORIDA and LAWTON CHILES, Governor,

Cross-Petitioners

V

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-PETITIONER’S APPENDIX TO

CROSS-PETITION FOR WRIT OF CERTIORARI

APPENDICES

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

INDEX TO APPENDICES

Page

APPENDIX A

Opinion of the Court of Appeals for the

I © i 5<k BhE CRs Kee oo A-1

APPENDIX B

Order of the District Court for the Southern

District of Florida denying the State of Florida’s

re Se eee eo a A-—27

APPENDIX C

Order of the Court of Appeals for the

Eleventh Circuit denying rehearing and

SN 5 3 6g 84d eee we eek A-—45

APPENDIX D

Order of the Court of Appeals for the Eleventh

Circuit staying the mandate........... A-47

APPENDIX E

Order of the District Court for the Southern

District of Florida granting defendant’s motion for

summary judgment and denying plaintiff’s motion

gg | a ee A-50

APPENDIX F

Portions of 25 U.S.C. §270l,etseg ....... A-89

APPENDIX A

SEMINOLE TRIBE OF FLORIDA,

Plaintiff-Appellee,

v.

STATE OF FLORIDA, Lawton Chiles,

Governor of the State of Florida,

Defendants-Appellants.

POARCH CREEK INDIANS,

Poarch Band of Creek Indians,

Plaintiff-Appellant,

Vv.

STATE OF ALABAMA, James E. Folsom,

Governor, State of Alabama

Defendants-Appellees.

Nos. 92-4652, 92-6244.

United States Court of Appeals

Eleventh Circuit

Jan. 18, 1994.

Appeal from the United States District Court for the

Southern District of Florida.

Appeal from the United States District Court for the

Southern District of Alabama.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge,

and JOHNSON, Senior Circuit Judge.

TJOFLAT, Chief Judge:

These two consolidated cases present the following issue:

whether Congress successfully abrogated the states’ Eleventh

Amendment sovereign immunity from suit by enacting the

en

Indian Gaming Regulatory Act (“IGRA”), Pub.L. No. 100-

497, 102 Stat. 2467(1988) (codified at 25 U.S.C. §§ 2701-

21).' The two district court judges below agreed that IGRA

manifested Congress’ attempt to abrogate the states’ Eleventh

Amendment immunity; they disagreed, however, as to

whether Congress possesses the power under the Constitution

to accomplish that abrogation.

We hold that, although decisions of the Supreme Court

demonstrate that Congress does possess the power to abro-

gate the states’ Eleventh Amendment sovereign immunity

in certain cases, Congress did not possess that power when

enacting IGRAunder the Indian Gaming 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.

Accordingly, these cases must be dismissed.

In part I, we provide a brief summary of the Indian

Gaming Regulatory Act here at issue. In part II, we set forth

the facts relevant to these cases. After establishing our

jurisdiction and the appropriate standard of review in part

III, we exariine the Eleventh Amendment issues in part IV

and then analyze the effect of our holding in part V.

1 Unless so indicated, all cited sections refer to Title 25 of the United

States Code.

2 Defendants raise one issue for the first time on appeal: the Tenth

Amendment. Citing the Supreme Court’s decision in New York v.

United States, __ U.S. ___, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), in

which the Court held that Congress could not coercively interfere with

the reserved powers of the states, defendants contend that IGRA

coercively forces the states to negotiate with Indian tribes in violation

of the Tenth Amendment.

“It is not the practice of this court to consider issues on appeal that

were not raised in the district court.” Allen v. Alabama, 728 F.2d 1384,

1387 (11th Cir. 1984); Moore v. Morgan, 922 F.2d 1553, 1556 n. 3 (11th Cir.

1991). Accordingly, we decline to address defendant’s contention.

A-2

| y |

r

I.

In 1987, the Supreme Court held that a state could not

enforce its “civil/regulatory” gaming laws in a manner that

would prohibit gaming on Indian lands within its borders.

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). That decision

left Indian gaming largely unregulated by the states; simi-

larly, “existing federal law did] not provide clear standards

or regulations for the conduct of gaming on Indian lands.”

25 U.S.C. § 2701(3). In an attempt to supply some much-

needed regulation, and after contentious debate concerning

the appropriate state role in the regulation of Indian gam-

ing, Congress enacted the Indian Gaming Regulatory Act.

IGRA’s primary purpose was “to provide a statutory basis

for the operation of gaming by Indian tribes as a means of

promoting tribal economic development, self-sufficiency,

and strong tribal governments.” § 2702(1). In order to ac-

complish this goal, Congress defined classes of Indian gam-

ing, § 2703(6)-(8); established the National Indian Gaming

Commission to monitor and regulate some forms of Indian

gaming; §§ 2704-08; and provided a compacting procedure

by which states might participate in the regulation for

certain forms of Indian gaming, § 2710(d).

Briefly summarized, Congress divided Indian gaming into

three “classes.” Class I gaming, which is governed and

regulated solely by individual Indian tribes, includes little

more than “social games solely for prizes of minimal

value....” § 2703(6). Class II gaming, which is subject to

certain federal regulations, includes bingo and comparable

games as well as non-banking card games where not prohib-

ited by law.’ § 2703(7\A). Neither of these classes is relevant

to the cases on appeal.

3 Non-banking card games are those in which the gamblers compete

against each other rather than against the house.

A-3

These cases address the third class of gaming. Class III

gaming is defined residually: it includes “all forms of gaming

that are not class I gaming or class II gaming.” § 2703(8).

Specifically excluded from class II, and therefore within the

parameters of class III, are banking card games and “elec-

tronic or electromechanical facsimiles of any game of chance

or slot machines of any kind.” § 2703(7XB). Class III gaming

is the type of gaming most profitable to the tribes; it also is

the gaming in which the states desire the eaiaeul reguia-

tory oversight.

In order to achieve a compromise between the interests of

the sta 2s and the interests of the Indian tribes, Congress

mandated that class III gaming activities would be lawful on

Indian lands only when those activities are (a) authorized by

the tribe; (b) located in a state that permits such gaming; and,

most importantly, (c) “conducted in conformance with a Tribal-

State compact entered into by the Indian tribe and the

State...that is in effect.” § 2710(dX1). To ensure that dilatory

actions by the state could not preclude or unreasonably delay

Indian gaming, IGRA also delineated a negotiating process

designed to culminate in the Tribal-State compact and pro-

vided mechanisms to remedy state misconduct.

Under the statute, the tribe initiates the compacting

process by requesting that the state enter into negotiations

for the purpose of concluding a Tribal-State compact govern-

ing the conduct of gaming activities; in IGRA, Congress

mandated that the state “shall negotiate with the Indian

tribe in good faith to enter into a compact.” § 2710(dX3)A).

If these negotiations bear fruit, the compact must be ap-

proved by the Secretary of the Interior and published in the

Federal Register. § 2710(d)(8).

Congress also anticipated that Tribal-State negotiations

would not always produce a mutually satisfactory compact;

it thus provided tribes with a remedy in the federal courts:

(A) The United States district courts shall have

jurisdiction over —

(i) any cause of action initiated by an Indian tribe

arising from the failure of a State to enter into negotia-

tions with the Indian tribe for the purpose of entering

into a Tribal-State compact under paragraph (3) or to

conduct such negotiations in good faith...

* * * *

(B)G) An Indian tribe may initiate a cause of action

described in

subparagraph (A\i) only after the close of the 180-day

period beginning on the date on which the Indian tribe

requested the State to enter into negotiations under

paragraph (3XA).

Section 2710(dX7XAXi) & (BXi). If the district court finds that

the state indeed has failed to negotiate in good faith, that court

“shall order the State and the Indian Tribe to conclude such a

compact within a 60-day period.” § 2710(dX7)(BXiii). If

that fails, “the Indian tribe and the State shall each

submit to a mediator appointed by the court a proposed

compact that represents their last best offer for a com-

pact.” § 2710(d)(7)(B)(iv). The mediator then selects the

better of the two proposals and submits it to the tribe and

the state. The states then either may consent to the compact

within sixty days, in which case the compact is treated as

if it were the product of negotiations; or may refuse to

consent, in which case the Secretary of the Interior pro-

vides procedures to regulate the tribe’s class III gaming.

§ 2710(.dX7)(BXvi) & (vii).

Defendants in these two cases assert that the federal

jurisdiction granted by § 2710(d)(7) is contrary to their

Eleventh Amendment sovereign immunity and demand

that the tribes’ cases be dismissed.

II.

The facts of these cases are few and easily summarized. The

first case, Seminole Tribe of Florida v. Florida, No. 92-4652,

was filed by the Seminole Tribe, federally recognized as a tribe

under Section 16 of the Indian Reorganization Act, 25 U.S.C.A.

§ 476 (West 1983 & Supp. 1993). The complaint, filed in the

Southern District of Florida on September 19, 1991, asserted

jurisdiction largely under 25 U.S.C. § 2710(dX7XAXi) and

alleged that the State of Florida and its governor, Lawton

Chiles, had “failed to respond in good faith to the Tribe’s

request for compact negotiations and have not conducted those

negotiations in good faith.” Defendants moved to dismiss the

complaint for lack of subject-matter jurisdiction based on the

sovereign immunity enjoyed by the State of Florida and the

Governor of Florida under the Eleventh Amendment. On June

18, 1992, the district court denied the motion, 801 F.Supp.

655 (S.D.Fla.1992) (“Seminole”), and this interlocutory ap-

peal ensued.

The second case, Poarch band of Creek Indians v.

Alabama, No. 92-6244, presents a similar initial fact pat-

tern. The Poarch Band, also a federally recognized tribe,

filed suit against the State of Alabama and its governor, Guy

Hunt (for whom the current governor, James E. Folsom, Jr.,

has been substituted), on September 11, 1991. Also assert-

ing jurisdiction largely under 25 U.S.C. § 2710(dX7XA)(i),

the complaint is designed to resolve for the State and the

Tribe various questions regarding IGRA’s definition of class

III gaming. The State of Alabama’s answer claimed a de-

fense of sovereign immunity under the Eleventh Amendment;

the district court granted the State’s subsequent motion to

dismiss based upon this defense on October 30, 1991. 776

F.Supp. 550(S.D. Ala. 1991) (“Poarch I”).* The governor also

4 The district court dismissed the State of Alabama from the Poarch

Band’s amended Complaint in an unpublished order dated January 24, 1992.

A-6

filed an Eleventh-Amendment-based motion to dismiss; the

district court granted it on February 20, 1992, thus dismiss-

ing the final defendant and terminating the Poarch Band’s

suit. 784 F.Supp. 1549 (S.D.Ala. 1992) (“Poarch II”). It is

from these orders that the Poarch Band appeals.

ITI.

We have jurisdiction over these consolidated cases pursu-

ant to 28 U.S.C. § 1291. In Poarch I and Poarch II, the

district court granted defendants’ sovereign-immunity-

based motions to dismiss, thus terminating the tribe’s suit

and giving rise to our appellate jurisdiction over final orders.

Our jurisdiction in Seminole arises from the district court’s

denial of defendants’ motion to dismiss based on sovereign

immunity; such a denial grants defendants the right of an

immediate, interlocutory appeal. See Griesel v. Hamlin, 963

F.2d 338, 340 (11th Cir. 1992).

The granting or denial of a sovereign immunity defense is

an issue of law subject to de novo review by this court.

McDonald v. Hillsborough County School Bd., 821 F.2d

1563, 1554 (11th Cir. 1987).

IV.

For more than a century, judicial interpretation of the

Eleventh Amendment has far exceeded the apparent scope of

the amendment’s actual provisions. The scope of the “textual”

amendment is rather limited and serves only to restrict the

Article III diversity jurisdiction of the federal courts:

The Judicial power of the United States shall not

be construed to extend 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.

U.S. Const. amend. XI.

In 1890, however, the Supreme Court rejected this facial

reading. In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33

L.Ed. 842 (1890), the Court recognized that the Eleventh

Amendment “reflected... a consensus that the doctrine of

sovereign immunity, for States as well as for the Federal

Government, was part of the understood background

against which the Constitution was adopted, and which its

jurisdictional provisions did not mean to sweep away.”

Pennsylvania v. Union Gas Co., 491 U.S. 1, 31-32, 109 S.Ct.

2273, 2297, 105 L.Ed.2d 1 (1989) (Scalia, J., concurring in

part and dissenting in part). Thus, the Court determined

that the principle of sovereign immunity, although omitted

from the text of the Constitution, survived the Constitutional

Convention.

It did not survive untarnished, however; the Court sub-

sequently has held that the states’ immunity is not absolute.

More specifically, the states are not immune from suit if the

circumstances indicate consent, abrogation, or the fiction of

Ex parte Young. If none of these three exceptions applies,

however, the Eleventh Amendment serves as a jurisdic-

tional bar to the suit. See Pennhurst State School & Hosp.

v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67

(1984). We address each exception to Eleventh Amendment

immunity in turn.

A.

First, the Supreme Court has held that the states may not

rely on the defense of sovereign immunity if they have

consented to suit. Acourt may find consent in three circum-

stances. The clearest of the three, known as express consent,

usually takes the form of legislative enactment. The second

form of consent derives from the states’ ratification of the

Constitution. This “plan of the convention” consent assumes

that, by ratifying the Constitution and joining the republic,

each state ceded certain powers to the federal system;

A-8

implicit in this cession is the understanding that the state

necessarily also consented to suit in certain cases. Thus, the

Court has held that, by ratifying the Constitution, the states

waived their immunity to suits by the United States, see,

e.g., United States v. Texas, 143 U.S. 621, 641-46, 12 S.Ct. 488,

492-94, 36 L.Ed. 285 (1892); and by sister states, see, eg.,

South Dakota v. North Carolina, 192 U.S. 286, 24 S.Ct. 269,

48 L.Ed. 448 (1904). Finally, the Court has created a third,

extremely limited category of consent. This consent is prem-

ised on the state’s participation in a congressional program

which, as a prerequisite for participation, mandates that the

state consent to suit. The Court has found this form of consent

to exist in only one case: Parden v. Terminal Railway of

Alabama, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964).

We find that neither Alabama nor Florida has consented

to a suit under IGRA.

1.

Express waivers of a state’s Eleventh Amendment sover-

eign immunity must be explicitly authorized by the state “in

its Constitution, statutes and decisions.” Silver v. Baggiano,

804 F.2d 1211, 1214 (11th Cir. 1986) (quoting Ford Motor Co.

v. Department of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347,

352, 89 L.Ed. 389 (1945)). See also Edelman v. Jordan, 415

U.S. 651, 94S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Alabama

defendants cite Article I, section 14 of the Alabama

Constitution, which specifically reserves Alabama’s sover-

eign immunity, and claim that Alabama therefore could not

have consented to a suit under IGRA. Even though Florida has

not raised a similar defense, plaintiffs have failed to demon-

strate that either state has given express consent to this suit.

Therefore, we find that the states have not expressly waived

their Eleventh Amendment sovereign immunity.

2.

Nor does “plan of the convention” consent imperil the

states’ sovereign immunity. Three terms ago, the Supreme

Court addressed the question whether the states, by ratify-

ing the Constitution, had surrendered their sovereign im-

munity to suits by Indian tribes. The court compared suits

brought by sister states to suits brought by Indian tribes

and held that the states had not waived their sovereign

immunity to suits brought by Indian tribes under the “plan

of the convention”:

What makes the States’ surrender of immunity

from suit by sister States plausible is the mutual-

ity of the concession. There is not such mutuality

with either foreign sovereigns or Indian tribes....

[Ilf the convention could not surrender the tribes’

immunity for the benefit of the States, we do not

believe that it surrendered the States’ immunity

for the benefit of the tribes.

Blatchford v. Native Village of Noatak, ____ U.S.___,_

— ___, 111 S.Ct. 2578, 2582-83, 115 L.Ed.2d 686 (1991)

(emphasis in original). The Court’s holding in Blatchford

governs our resolution of this issue. Thus, we hold that the

states cannot be said to have surrendered their sovereign

immunity under the “plan of the convention.”

3.

Finally, the tribes assert that both Florida and Alabama

have consented to this suit by participating in negotiations

under IGRA. Invoking Parden, 377 U.S. 184, 84 S.Ct. 1207

(1964), the tribes assert that the states have attempted to

reap the benefits of IGRA and therefore should be held to

have consented to the downside of the statute, specifically,

federal jurisdiction over the present suits. We disagree.

In Parden, the Supreme Court for the first — and, to date,

last — time found that a state had waived its immunity to

suit by participating in a federal program mandating that

participants consent to suit. The facts of that case, as well

as subsequent Supreme Court decisions, render Parden

inapplicable to the appeals at hand.

First, it is apparent that Parden was decided largely on

its facts. In that case, the State of Alabama had operated a

for-profit, state-owned railroad for twenty years. By operat-

ing the railroad in interstate commerce, Alabama effectively

had transcended the typical realm of state authority by

entering the private market, a market in which all employ-

ers were subject to the strictures passed by Congress. The

limited holding of the Court was that, based on these facts,

Alabama should be subject to the same requirements as the

other (private) participants in the private market; one of

those requirements was that all market actors consent to

suit. These cases involve state governments negotiating

with sovereign tribes located within the states’ borders —

hardly a “private” activity — and thus do not raise the same

concerns that prompted the Supreme Court’s unique deci-

sion in Parden.

Second, later decisions of the Supreme Court limit Parden

and indicate that Alabame and Florida cannot be said to

have consented to suit in this case. First, in Employees v.

Missouri Dep’t of Public Health and Welfare, 411 U.S. 279,

93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the Court declined to

extend Parden to circumstances in which a state was oper-

ating a non-profit hospital facility, a traditional state activ-

ity. The next year, in Edelman v. Jordan, 415 U.S. 651, 94

S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court refused to find

Parden-style consent when Illinois participated in a federal

program by agreeing to administer federal and state funds

in accordance with federal law. The Court reiterated this

holding a decade later in Atascadero State Hospital v. Scanlon,

A-11

473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 121 (1985). Finally,

the Court further limited Parden in Welch v. Texas Dep’t of

Highways and Public Transp., 483 U.S. 468, 107 S.Ct. 2941,

97 L.Ed.2d 389 (1987). In fact, in no other case has the Court

found consent pursuant to its Parden décision.

When Parden and its progeny are examined closely, it is

apparent that, although Parden may not be entirely dead,

it certainly is not quick enough to breath life into the

Indian tribes’ claims in these cases. In these cases, the

states were faced with a Hobson’s choice: refuse to nego-

tiate with the tribes, and therefore be subject to suit under

IGRA; or negotiate with the tribes, and therefore (accord-

ing to the tribes’ argument) consent to suit under IGRA.

Thus, we cannot find the same voluntary, for-profit, pri-

vate-enterprise operation involved in Parden and decline

to hold that Alabama and Florida consented to suit.°

Thus, we find that neither Florida nor Alabama con-

sented, either expressly, implicitly, or by conduct under

Parden, to suit in federal court under IGRA.

5 One sister circuit, in determining that the Eleventh Amendment did

not bar suits under IGRA, mentioned that the state had “actively engaged

in negotiating tribal-State compacts and ha[d] reaped the benefits from

these negotiations.” See Cheyenne River Sioux Tribe v. State of South

Dakcta, 3 F.3d 273 (8th Cir 1993) (“Cheyenne II”) aff'd 830 F.Supp. 523

(D.S.D. 1993) (“Cheyenne I”). As the Eighth Circuit Court of Appeals

primarily rested its decision on the fact that Congress had abrogated the

state’s Eleventh Amendment immunity, and argument we discuss (and

reject) in part III.B., below, it is not clear how much weight the court gave

to the state’s participation in negotiations. To the extent that the Eighth

Circuit relied on South Dakota’s negotiations as a basis for finding a waiver

of sovereign immunity, we respectfully disagree.

A- 12

B.

In defining the second sovereign immunity exception, the

Supreme Court has held that states also may not rely on the

defense of sovereign immunity if Congress has specifically

abrogated that defense when legislating pursuant to certain

ofits plenary powers. See, e.g., Fitzpatrick v. Bitzer, 427 U.S.

445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (finding abroga-

tion in legislation passed pursuant to § 5 of the Fourteenth

Amendment), and Pennsylvania v. Union Gas Co., 491 U.S.

1, 109 S.Ct. 2273, 105 L.Ed.2d (1989) (finding abrogation in

legislation passed pursuant to the Congress’ Article I, § 8

plenary power over commerce). The Court has not yet found

that Congress possesses the power to abrogate the states’

sovereign immunity when legislating under any other pro-

visions of the Constitution.

The tribes’ most significant argument is that Congress ab-

rogated the states’ Eleventh Amendment immunity when it

granted jurisdiction to the district courts in 25 U.S.C. § 2710(d).

The district court in Seminole, as well as one sister court of

appeals and a handful of district courts, have adopted the

tribes’ position.® We disagree, believing that Congress, when

it enacted IGRA pursuant to the Indian Commerce Clause,

lacked the power to abrogate the states’ sovereign immunity

When determining whether Congress has abrogated the

states’ Eleventh Amendment immunity, we must conduct a

two-part inquiry. We first must determine that the “evidence

of congressional intent [to abrogate the states’ immunity is]

6 See Cheyenne II, supra; Kickapoo Tribe of Indians v. Kansas, 818

F.Supp. 1423 (D.Kan. 1993); Cheyenne I, supra; Seminole, supra.

7 Other courts all have held that Congress lacked abrogation power

when it enacted IGRA. See Sault Ste. Marie Tribe of Chippewa Indians v.

Michigan, 800 F.Supp. 1484 (W.D.Mich. 1992); Ponca Tribe of Oklahoma v.

Oklahoma, 834 F.Supp. 1341 (W.D.Okla. 1992) Spokane Tribe of Indians v.

Washington, 790 F.Supp. 1057 (E.D. Wash. 1991), Poarch I, supra.

A-13

both unequivocal and textual.” Dellmuth v. Muth, 491 U.S.

223, 230, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989)

(citing Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147). We

also must find that Congress possessed the power under the

Constitution to abrogate the states’ Eleventh Amendment

sovereign immunity. We hold that Congress expressed its

intent sufficiently to survive the first prong of this inquiry.

That intent can not be given effect, however, as Congress

did not possess the power to abrogate the states’ immunity

when it enacted IGRA.

1.

Several courts have addressed the question whether

Congress unequivocally intended to abrogate the states’

immunity when it enacted IGRA. Those courts have had

little difficulty concluding that Congress’ intent was suffi-

ciently clear. See, e.g., Cheyenne II, supra; Kickapoo, 818

F.Supp. at 1427 (“(A] clearer statement of the intent to

abrogate is difficult to envision.”); Seminole, 801 F.Supp. at

658; Sault Ste. Marie, 800 F.Supp. at 1489 (“clear statement

of waiver”); Poarch I, 776 F.Supp. at 557; Ponca, supra. We

believe the question not so easily resolved.

In Dellmuth, the Supreme Court reiterated its earlier

holdings that a Congressional declaration abrogating the

states’ Eleventh Amendment sovereign immunity must be

explicit: “As we made plain in Atascadero, {a] general

authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the

Eleventh Amendment.’ 473 U.S. at 246, 105 S.Ct. at 3149.”

491 U.S. at 231, 109 S.Ct. at 2402. At first glance, it would

appear that IGRA fails that test: Instead of specifically

abrogating the states’ immunity, section 2710(d)\7)(A)

states only that “(t]he United States district courts shall

have jurisdiction....” The mere granting of jurisdiction is not

equivalent to the abrogation of a defense.

A-14

A closer examination of IGRA, however, reveals that,

despite Congress’ omission of a specific abrogation clause,

Congress nonetheless manifested its intent to abrogate the

states’ immunity. IGRA gives the federal district courts

jurisdiction over three types of cases, the first of which is

“any cause of action initiated by an Indian tribe arising from

the failure of a State to enter into negotiations with the

Indian tribe for the purpose of entering into a Tribal-State

compact under paragraph (3) or to conduct such negotia-

tions in good faith.” § 2710(dX7XAXi). The only possible

defendant to such a suit is a state (see part IV(C), below).

Thus, unless Congress intended to abrogate the states’ im-

munity, this portion of IGRA would be of no effect. Charged

as we are with the task of giving effect to each portion of a

statute, we must conclude that Congress intended to abro-

gate the state’s sovereign immunity.® Thus, we hold that the

first prong of our inquiry is satisfied.

2.

More important, and less easily met, is the second prong

of our inquiry: whether Congress possessed the constitu-

tional power to abrogate the states’ immunity when it en-

acted IGRA. To resolve this issue, we initially must

determine under which provision(s) of the Constitution

Congress enacted IGRA (see sub-part a). Only then can we

determine whether Congress possessed the power to abro-

gate the states’ immunities (see sub-part b).

8 This conclusion is bolstered by Justice Scalia’s opinion in Dellmuth.

Concurring with the Court’s majority opinion, Justice Scalia noted that

the majority's “reasoning does not preclude congressional elimination of

sovereign immunity in statutory text that clearly subjects States to suit

for monetary damages, though without explicit reference to State sover-

eign immunity or the Eleventh Amendment.” 491 U.S. at 233, 109 S.Ct.

at 2403 (Scalia, J., concurring). Although the facts of that case differ

slightly from the case before us, it is clear that Congress in enacting IGRA

“clearly subject{[ed] States to suit” in § 2710(dX7).

A-15

a.

Congress may pass legislation only when the Constitution

gives it the authority to do so. As we mentioned earlier, the

Supreme Court has held that Congress possesses abroga-

tion powers only when it enacts legislation under the aus-

pices of (1) Section 5 of the Fourteenth Amendment or (2) the

Interstate Commerce Clause. Plaintiff tribes urge us to find

that IGRA was passed not only pursuant to the Indian

Commerce Clause, but also pursuant to Section 5 and the

Interstate Commerce Clause.” We cannot so find.

First, as to the Fourteenth Amendment, plaintiff tribes

claim that Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666,

49 L.Ed.2d 614 (1976) (holding that Congress may abrogate

states’ sovereign immunity when legislating pursuant to

Section 5 of the Fourteenth Amendment), controls, thus

granting Congress the authority to abrogate the states’

immunity in IGRA. To justify this contention, the tribes

assert that IGRA creates both a liberty interest and a

property interest in the tribes and their members. Neither

of these claimed interests, however, find support in the

Supreme Court’s Fourteenth Amendment jurisprudence.

The alleged liberty interest, the tribes claim, arises from the

Supreme Court’s holding in Board of Regents v. Roth, 408 U.S.

564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Stating that the

states’ input in IGRA is akin to a licensing requirement, the

9 Both the so-called Commerce Clause and the so-called Interstate

Commerce Clause derive from the same constitutional grant of plenary

power to Congress in Article I: “The Congress shall have Power... To

regulate Commerce with foreign Nations, and among the several States,

and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Although the

Interstate and Indian Commerce Clauses are contained in the same

textual provision, the purposes that prompted their inclusion in their

subsequent legal interpretations, are distinct. See, e.g., Cotton Petroleum

Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1716, 104 L.Ed.2d

209 (1989) (“It is also well established that the Interstate Commerce and

Indian Commerce Clauses have very different applications.”).

A- 16

tribes assert that the states’ failure to enter a compact

operates exactly as an unconstitutional denial of a license.

The alleged property interest likewise is derived from Roth.

What the tribes fail to recognize, however, is that these

interests are created only when the claimant has “a legiti-

mate claim of entitlement.” Jd. at 577, 92 S.Ct. at 2709. The

tribes’ bald assertion that IGRAcreates such a claim ignores

the discretionary nature of the compacting process envi-

sioned by IGRA. IGRA does not create an entitlement to

operate gambling operations; rather, it establishes the proc-

ess and standards be which gambling may be conducted on

Indian lands. Thus, IGRA creates no liberty or property

interests and cannot implicate the Fourteenth Amendment.

Second, the tribes, noting that Congress’ goals in enacting

IGRA included “shield{ing] [Indian gaming] from organized

crime and other corrupting influences,” § 2702(2), assert that

Congress necessarily enacted IGRA pursuant to the Interstate

Commerce Clause. The tribes look to the legislative history of

the Organized Crime Control Act of 1970, Pub.L. No. 91-452,

84 Stat. 922 (1970), to find Congressional reasoning that

organized crime burdens interstate commerce. 84 Stat. at 923.

The tribes thus conclude that, since Congress meant to ad-

dress organized crime by enacting IGRA, it passed IGRA

under the Interstate Commerce Clause.

We disagree. As § 2702(2) makes clear, Congress’ concern

with organized crime was not that such activities would

burden interstate commerce, but rather that prohibition of

organized crime would “ensure that the Indian tribe is the

primary beneficiary of the gaming operation, and...assure

that gaming is conducted fairly and honestly by both the

operator and the players.” § 2702(2). In addition, Congress

wanted to criminalize the involvement of organized crime

in order to “promote[] tribal economic development, self-

sufficiency, and strong tribal government.” § 2702(1). In

analyzing Congress’ goals, it is clear that alleviating a

A-17

supposed burden on interstate commerce was not among

them.

Having excluded the possibility that Congress enacted IGRA

under either the Interstate Commerce Clause or Section 5 of

the Fourteenth Amendment, we must conclude that Congress

enacted IGRA solely under the Indian Commerce Clause. The

Supreme Court’s jurisprudence on the Indian Commerce

Clause bolsters our conclusion that Congress enacted IGRA

solely under that authority. See Cotton Petroleum, 490 U.S. at

192, 109 S.Ct. at 1716 (“{'T]he central function of the Indian

Commerce Clause is to provide Congress with plenary power

to legislate in the field of Indian affairs.”).

b.

Having determined that Congress enacted ICRA solely

under the Indian Commerce Clause, we now must deter-

mine whether the Indian Commerce Clause permits

Congress to abrogate the states’ Eleventh Amendment im-

munity. We conclude that it does not.

The Supreme Court case most relevant to this issue is

Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273,

105 L.Ed.2d 1 (1989). In that case, involving a badly frac-

tured Court, a four-member plurality’ held that Congress

had the power to abrogate the states’ Eleventh Amendment

immunity when enacting legislation pursuant to the

I, rstate Commerce Clause. The plurality stated that,

since the Interstate Commerce Clause

withholds power from the States at the same time

as it confers it on Congress, and because the congres-

sional power thus conferred would be incomplete

without the authority to render States liable in

10 Justice Brennan authored the opinion; Justices Marshall, Blackmun,

and Stevens joined.

A-18

damages, it must be that, to the extent that the

States gave Congress the authority to regulate

commerce, they also relinquished their immunity

where Congress found it necessary, in exercising

this authority, to render them liable. The States

held liable under such a congressional enactment

are thus not “unconsenting”; they gave their con-

sent all at once, in ratifying the Constitution con-

taining the Commerce Clause, rather than on a

case-by-case basis.

Id. at 19-20, 109 S.Ct. at 2284. Thus, the Court held that

the State of Pennsylvania could not invoke sovereign im-

munity in defending a suit for money damages under the

Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (“CERCLA”) and the Superfund

Amendments and Reauthorization Act of 1986 (“SARA”), 42

U.S.C. § 9601 et seg."

In a cryptic concurring cpinion, Justice White agreed with

Justice Brennan’s conclusion that Congress had the author-

ity to abrogate the states’ immunity; however, he also stated

that he did not “agree with much of [Justice Brennan’s]

1l Congress passed both CERCLA and SARA pursuant to the Interstate

Commerce Clause.

reasoning,” id. at 57, 109 S.Ct. at 2295 (White, J., concur-

ring). It is regrettable that Justice White failed to provide

any reasoning of his own to support his conclusion that

Congress had abrogation power as his vague concurrence

renders the continuing validity of Union Gas in doubt. The

other four justices fervently opposed the plurality’s holding.

Some courts have noted not only that there are weak-

nesses in the Union Gas Court’s holding, but also that

changes in the composition of the Court make it likely that

a majority of the present Court would disagree with Union

Gas and find that Congress was not empowered to abrogate

the states’ immunity. Unlike those courts, we refuse to

disregard Union Gas merely on these bases. Nonetheless,

when examined in the proper light, Union Gas is distin-

guishable from the cases before us and does not govern our

disposition of this issue. Our conclusion that Congress did

not have the power, when enacting IGRA, to abrogate the

states’ Eleventh Amendment sovereign immunity is sup-

ported by two lines of argument.

12 Justice White’s uneasiness is understandable given the questionable

foundation on which Justice Brennan built his argument. His plurality

opinion contains three significant weaknesses: (1) it disregards the

Supreme Court’s statements that Parden v. Terminal Railway of

Alabama, 377 U.S. 184, 84S.Ct. 1207, 12 L.Ed.2d 233 (1964), was a waiver

case, not an abrogation case; (2) it misconstrues Employees v. Missouri

Dep't of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d

251 (1973), by ignoring that it too, solely addressed whether Congress had

mandated that Missouri consent to suit before operating a hospital. (Thus,

it also was not an abrogation case.); and, (3) it appeared to afford prece-

dential value to two cases, Welch v. Texas Dept. of Highways and Public

Transp., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987), and County

of Oneida v. Oneida Indian Nation, 470 U.S. 226, 105 S.Ct. 12145, 84

L.Ed.2d 169 (1985), in which the Court assumed that Congress had

abrogation power, but specifically denied “deciding, or intimating a view

of the question.” Welch, 483 U.S. at 475, 107 S.Ct. at 2947.

A - 20

First, the tribes begin their argument by assuming that

Union Gas controls all Commerce Clause cases, Indian as

well as Interstate; thus, they assert, we are obligated to hold

that Congress successfully abrogated the states’ immunity

when it passed IGRA.'* We believe it appropriate, however,

to limit Union Gas to the factual situation before that Court:

the exercise of Congress’ power to legislate under the Inter-

state Commerce Clause. CERCLA and SARA were passed

pursuant to the Interstate Commerce Clause, not the Indian

Commerce Clause. In addition, each of the opinions —

addressed only the Interstate Commerce Clause. Moreover,

the opinions do not suggest that the Union Gas holding

should be broadly construed. Thus, a fair reading of Union

Gas is one that limits Congress’ abrogation powers to laws

passed under the Interstate Commerce Clause. As we al-

ready have determined that IGRA was passed pursuant to

the Indian Commerce Clause, the Union Gas holding does

not control our disposition of this case.

This conclusion is bolstered by the unique qualities that

distinguish the Interstate Commerce Clause and the Indian

Commerce Clause. In an attempt to demonstrate this point,

defendants suggest that Cotton Petroleum Corp. v. New

Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1716, 104 L.Ed.2d

209 (1989) (explaining that “the Interstate Commerce and

Indian Commerce Clauses have different applications”),

governs our disposition of these cases. That case, which

dealt solely with preemption and multiple taxation issues,

13 The tribes assert that the Union Gas Court used the term “Commerce

Clause,” not “Interstate Commerce Clause,” thus evidencing its inten-

tion to grant Congress abrogation powers whenever it acted pursuant

to any of the Commerce Clauses, Interstate, Indian, or Foreign. The

Court’s entire discussion, as weli as every case it cited, focused solely

on the Interstate Commerce Clause. We therefore conclude that the

Court’s discussion, although imprecise, implicated only the Interstate

Commerce Clause.

A-21

plainly is distinguishable from the facts before us; thus, the

Cotton Petroleum Court’s conclusion that the Commerce

Clause distinguishes between states and Indian tribes is

neither surprising nor controlling precedent. Although not

directly on point, however, much of the reasoning that

supported Cotton Petroleum sheds light on the present is-

sue. In that case, the Court acknowledged the plenary

powers under the Interstate Commerce Clause that allow

Congress to place limits on the states in order to “maintain[]

free trade among the States.” Jd. By contrast, “the central

function of the Indian Commerce Clause is to provide

Congress with plenary power to legislate in the field of

Indian affairs.” Jd. Although Congress has the power to limit

the states under the Indian Commerce Clause as well, the

different purposes underlying the two clauses mandate that

they be treated distinctly. As a result, the unique abrogation

power afforded Congress under the Interstate Commerce

Clause in Union Gas cannot be extended to the Indian

Commerce Clause.

Asecond argument supporting our conclusion that Congress

did not possess the power to abrogate the states’ immunity

is that a proper reading of Union Gas and the cases cited

therein demonstrates that the court has allowed federal

jurisdiction over states only when the states partake in an

activity typical of private individuals. For instance, in

Parden, a case on which the Union Gas plurality primarily

relied, the State of Alabama was operating a for-profit

railroad in interstate commerce. Likewise, in Union Gas

itself, the State of Pennsylvania was an “owner or operator”

of land and therefore, like private citizens, was subject to

liability under SARA. On the contrary, when the State of

Missouri operated a non-proprietary, not-for-profit hospital

(a non-private activity “wholly within [the states’] sphere of

authority”) the Court refused to find that Congress man-

dated federal jurisdiction. Employees, 411 U.S. at 282, 93

S.Ct. at 1617 (1973).

A - 22

In this case, the tribes seek to impose jurisdiction over the

States of Alabama and Florida for their failure to negotiate

a compact with the tribes. Rather than being a typically

private activity, such negotiations are “wholly within [the

states’] sphere of authority.” We believe the Supreme Court’s

jurisprudence clearly evinces an intent to allow federal

jurisdiction over states only when the state’s conduct is

outside the typical realm of state authority. As negotiations

with tribes certainly are not outside that realm of authority,

the principles of federalism and sovereign immunity exem-

plified in the Eleventh Asnendment prevent Congress from

abrogating the states’ immunity. Thus, even if Union Gas’

reasoning were to give Congress abrogation power under the

Indian Commerce Clause in general, we would hold that

Congress may not abrogate when it legislates in an area

typically reserved to the states (such as negotiating regula-

tions with Indian tribes).

For these reasons, we conclude that Congress did not

possess the power to abrogate the states’ Eleventh

Amendment immunity when it enacted IGRA.

C.

Third, the Supreme Court has created a third exception

to the doctrine of sovereign immunity by holding that the

Eleventh Amendment does not always provide immunity to

government officials; in certain circumstances, those offi-

cials may be subject to suit, despite the Eleventh Amendment,

under the “fiction” of Ex parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908). Briefly, the fiction allows an

individual to obtain a federal injuction against a state officer

to force the officer to comply with federal law. Id. at 160, 28

S.Ct. at 454. Under the fiction, the tribes assert that they

may sue the governors of Alabama and Florida to compel

negotiations under IGRA.

The Ex parte Young doctrine does not apply in two cases:

(1) it cannot be used to compel an executive official to

undertake a discretionary task; and (2) it cannot be used if

the suit is, in reality, against the state. As most of the courts

that have addressed this issue have found, however, the

tribes’ claims fit into both categories. See, e.g., Poarch II, 784

F.Supp. at 1551-52; Poarch I, 776 F.Supp. at 562; and Ponca,

supra.'*

First, the Ex parte Young doctrine cannot compel discre-

tionary acts. Ex parte Young, 209 U.S. at 158, 28 S.Ct. at

453. IGRAdoes not allot merely ministerial acts to the state,

however; rather, it provides for the negotiation of a contract,

the terms of which are left to the discretion of the state and

the tribe. Likewise, since IGRA provides a procedure should

the state decide not to negotiate even the mere question of

whether the state should negotiate at all is subject to dis-

cretion. Thus, both of these facets of IGRA’s compacting

process demonstrate that the governors must use their

discretion; accordingly, under the first exception to the

Ex parte Young doctrine, the governors retain their Eleventh

Amendment sovereign immunity.

Second, if a suit in reality is against the state itself, the

Ex parte Young doctrine is inapplicable. Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 101-02, 104

S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984). IGRA uniformly

addresses itself to “the State”; not once does it impose duties

or responsibilities on a particular officer of the state (e.g.,

the governor, the legislature, etc.). Even the district court’s

14 The only case to disagree is Spokane, 790 F.Supp. at 1062-63. There,

the court focused on the need for a forum in which the tribe could air its

grievances. The need for a forum, however, does not provide a federal court

with the power to override state officials’ constitutionally mandated sov-

ereign immunity. Federal court jurisdiction is subject to and limited by the

dictates of the Eleventh Amendment, and one judge’s desire to give an

aggrieved party a remedy does not enlarge it.

A - 24

injunctive relief powers are limited to ordering “the State and

the Indian Tribe to conclude” a compact. § 2710(dX7XB)(iii)

(emphases added). In addition, IGRA mandates that the

State negotiate, conclude, and abide by the Tribal-State

compact. It is apparent that these suits are not against

officials in an attempt to force them to follow federal law;

rather, the suits are against the states for failing to negotiate

a compact in good faith. As a result, the doctrine of Ex parte

Young does not apply.

Unless one of the three exceptions — consent, abrogation,

or Ex parte Young — applies, the Eleventh Amendment

serves as a jurisdictional bar and precludes federal court

adjudication over these suits. As we have found that none of

the exceptions is applicable to IGRA, these cases must be

dismissed for lack of subject-matter jurisdiction.

V.

As a result of our holding that the federal courts do not have

jurisdiction to reach the issues brought by the tribes in these

two suits, the procedures found in §§ 2710(dX7XAXi) and

(BXi)4vi) necessarily fail when an unconsenting state refuses

to consent to suit.”

The final question we must resolve is whether all provi-

sions for state involvement in class III gaming also fail, as

the tribes contend. We hold that they do not. IGRA contains

an explicit severability clause. § 2721; and we find no “strong

evidence” to ignore that plain congressional directive. See

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct.

1476, 1481, 94 L.Ed.2d 661 (1987). Nevertheless, we are left

with the question as to what procedure is left for an Indian

15 Astate may consent to suit, in which case these provisions remain in

full force. See, e.g., Rumsey Indian Rancheria of Wintun Indians v. Wilson,

No. Civ-S-92-812 GEB, 1993 WL 360652 (E.D. Cal. July 20, 1993), in

which defendants waived their Eleventh Amendment immunity.

A - 25

tribe faced with a state that not only will not negotiate in good

faith, but also will not consent to suit. The answer, gleaned

from the statute, is simple. One hundred and eighty days after

the tribe first requests negotiations with the state, the tribe

may file suit in district court. If the state pleads an Eleventh

Amendment defense, the suit is dismissed, and the tribe,

pursuant to 25 U.S.C. § 271d 7XByXvii), then may notify

the Secretary of the Interior of the tribe’s failure to negotiate

a compact with the state. The Secretary then may prescribe

regulations governing class III gaming on the tribe’s lands.

This solution conforms with IGRA and serves to achieve

Congress’ goals, as delineated in §§ 2701-02.

VI.

The decision of the United States District Court for the

Southern District of Florida in Seminole Tribe of Florida v.

Florida, No. 92-4652, is reversed; the case is remanded so

that the district court may dismiss the suit. The decisions

of the United States District Court for the Southern District

of Alabama in Poarch Band of Creek Indians v. Alabama,

No. 92-6244, are affirmed.

IT IS SO ORDERED.

BLACK, Circuit Judge, specially concurring.

I concur in the result.

APPENDIX B

SEMINOLE TRIBE OF FLORIDA,

Plaintiff,

STATE OF FLORIDA, Lawton Chiles,

Governor of the State of Florida,

Defendants.

No. 91-6756-CIV

United States District Court,

S.D. Florida

June 18, 1992

ORDER

MARCUS, District Judge.

THIS CAUSE is before the Court on Defendant’s Motion

to Dismiss on Eleventh Amendment Grounds, filed

December 16, 1991. For the following reasons, the motion

is denied.

A - 27

I. BACKGROUND

Plaintiff, the Seminole Tribe of Florida (the “Tribe”) is a

federally recognized Indian tribe whose headquarters are

located in Broward County, Florida. The Tribe commenced

this action pursuant to the Indian Gaming Regulatory Act,

25 U.S.C.§ 2701 et seg. (“IGRA”), to remediate the alleged

failure of the State of Florida to conduct good faith negotia-

tions regarding certain gaming activities to be conducted on

the Tribe’s land, after State-Tribe compact negotiations

failed to yield an agreement. According to the Tribe, “the

State and its Governor have refused to enter into any

negotiation for inclusion of such gaming in a tribal-state

compact, [and have accordingly] violated [IGRA’s] require-

ment of good faith negotiation.” Compl. at J 24. The

Defendants assert that they have in fact entered into good

faith negotiations with the Tribe, but maintain that those

negotiations were unavailing since the gaming activities at

issue are prohibited under Florida law. In addition, the

Defendants have moved to dismiss the action pursuant to

the Eleventh Amendment to the United States Constitution,

arguing that Congress does not have the power constitution-

ally to enforce the “good faith” requirement of the compact

process by explicitly providing the Tribe a judicial remedy

against the State.

II. LEGAL FRAMEWORK

A. Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act was enacted by

Congress primarily “to provide a statutory basis for the

operation of gaming by Indian tribes as a means of promot-

ing tribal economic development, self-sufficiency, and strong

tribal governments...” 25 U.S.C. § 2702(1). IGRA divides

Indian gaming into three distinct classes. Class I gaming

“means social games solely for prizes of minimal value or

traditional forms of Indian gaming engaged in by individuals

A - 28

as a part of, or in connection with, tribal ceremonies or

celebrations.” Id. at § 2703(6). “Class I gaming on Indian

lands is within the exclusive jurisdiction of the Indian

tribes” and is not subject to the provisions of IGRA. Id. at

§ 2710(a)(1). Class II gaming includes bingo, pull-tabs,

lotto, punch boards, tip jars and other similar games, id.

at § 2703(7XAXi), and certain non-banking card games (not

including blackjack and baccarat), id. at §§ 2703(7XA)(ii);

2703(B)(i). Class II gaming on Indian lands shall continue

to be within the jurisdiction of the Indian tribes," but is

subject to the provisions of IGRA, id. at § 2710(a)(2), includ-

ing oversight by National Indian Gaming Commission, es-

tablished within the Department of Interior. Id. at § 2704(a).

Class III gaming is “all other forms of gaming that are not

class I gaming or class II.” Id. at § 2703(8). “Class III gaming

activities shall be lawful on Indian lands only if such activi-

ties are...located in s State that permits such gaming for

any purpose by any person, organization, or entity...” Jd. at

§ 2710(dX 1). IGRA further provides that

[aJny Indian tribe having jurisdiction over the

Indian lands upon which a class III gaming activ-

ity is being conducted, or is to be conducted, shall

request the State in which such lands are located

to enter into negotiations for the purpose of enter-

ing into a Tribal-State compact governing the con-

duct of gaming activities. Upon receiving such a

request, the State shall negotiate with the Indian

tribe in good faith to enter into such a compact.

Id. at §2710(d3XA) (emphasis added). Finally, IGRA man-

dates that

[t]he United Sates district courts shall have juris-

diction over...any cause of action initiated by an

Indian tribe arising from the failure of a State to

enter into negotiations with the Indian tribe for

A - 29

the purpose of entering into a Tribal-State com-

pact under paragraph (3) or to conduct such nego-

tiations in good faith...

Id. at §2710(dX7XAXi). Notwithstanding the express terms

of Section 2710, Defendants argue that any such suits

brought to remediate a State’s alleged failure to negotiate

in food faith are barred by the Eleventh Amendment.

B. Eleventh Amendment

The Eleventh Amendment to the United States Constitution

provides:

The Judicial power of the United States shall not

be construed to extend 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.

U.S. Const. amend. XI. The scope of the Amendment has

been extended beyond the literal text to also bar suits

against a State brought but one of its own citizens. Hans v.

Louisiana, 134 U.S. 1, 21, 10S.Ct. 504, 33 L.Ed. 842 (1890).

Thus, as the United States Supreme Court has recently

observed:

Despite the narrowness of its terms since Hans v.

Louisiana we have understood the Eleventh

Amendment to stand not so much for what it

says, but for the presupposition of our constitu-

tional structure which it confirms: that the

States entered the federal system with their

sovereignty intact; [and] that the judicial author-

ity in Article ITI is limited by this sovereignty...

Blatchford v. Native Village of Noatak,__ U.S. , ;

111 S.Ct. 2578, 2581 115 L.Ed.2d 686 (1991) (citation

A- 30

omitted). Three exceptions to the Amendment exist: (1) a

State may consent to suit in federal court, or waive its

immunity to such suits, either expressly or impliedly; see

id. ; (2) Congress may, when it possesses the power, abrogate

the States’ immunity; see Pennsylvania v. Union Gas Co.,

491 U.S. 1, 13-23, 109 S.Ct 2273, 2280-86, 105 L.Ed.2d 1

(1989); and (3) state officials may under certain circum-

stances be sued, in their official capacities, to obtain pro-

spective relief. See Ex Parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908). Against this framework, we pro-

ceed to evaluate Defendant’s Motion to Dismiss.

III. ANALYSIS

A. Abrogation

The Tribe’s central argument in opposition to the Motion

to Dismiss is that Congress, in enacting IGRA, abrogated

the State’s Eleventh Amendment immunity.! We hold that

Congress did in fact abrogate the States’ immunity when

it enacted IGRA, and, despite case authority to the con-

trary,” further hold that, pursuant to the Indian Commerce

1 The Tribe also argues that the State has implicitly waived its immu-

nity, either inherently in the “plan of convention”, see Blatchford, _ U.S.

at__, 111 S.Ct. at 2581, or constructively by the State’s acceptance of the

benefits of IGRA, see Parden v. Terminal Railway, 377 U.S. 184, 192-93,

84 S.Ct. 1207, 1212-13,12 L.Ed.2d 233 (1964). Since the tribe has not

strenuously pursued either “waiver” theory, and since we reach our deci-

sion on purely “abrogation” principles, we need not address the issues

raised by these arguments except insofar as they may bear upon Congress’

power to abrogate.

2 See Sault St. Marie Tribe of Chippewa Indians, et al. v. State of

Michigan, No. 90-611, 1992 WL 71384, at *4-5 (W.D.Mich. Mar. 27, 1992);

Spokane Tribe of Indians v. State of Washington, 790 FSupp. 1057,

1059-61 (E.D.Wash. 1991); Poarch Band of Creek Indians v. State of

Alabama, 776 F.Supp. 550, 557 (S.D.Ala.1991).

A-31

Clause, Congress plainly had the constitutional power to

abrogate.®

1. Statutory Language

At the outset, the United States Supreme Court

has held that

Congress may abrogate the States’ constitution-

ally secured immunity from suit in federal court

only by making its intention unmistakably clear

in the language of the statute.

See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242,

105S.Ct.3142,___ , 87 LEd.2d 171 (1985); see also Blatchford,

__ U.S. at __, 111 S.Ct. at 2584; Dellmuth v. Muth, 491

U.S. 223, 226, 109 S. Ct. 2397, 2399, 105 L.Ed.2d 181 (1989).

In the instant case, the relevant portion of IGRA provides:

The United States district court shall have juris-

diction over...any cause of action initiated by an

Indian tribe arising from the failure of a State to

enter into negotiations with the Indian tribe for

the purpose of entering into a Tribal-State com-

pact under paragraph (3) or to conduct such nego-

tiations in good faith....

25 U.S.C. § 2710 (dX 7XA)(i). It is beyond peradventure that,

in expressly providing for federal jurisdiction over claims

brought by Indian tribes against States to compel good faith

negotiations under IGRA (or to remedy the lack of such

negotiations), Congress made its intention to abrogate the

States’ immunity in this context “unmistakably clear in the

language of the statute.” See Atascsadero, 473 US. at 242,

3 Both the Indian and Interstate Commerce Clauses are found in the

same delegation of legislative authority, which gives Congress the power

“To regulate Commerce with foreign Nations, and among the several

States, and with the Indian tribes...” U.S. Const. art. I, § 8, cl. 3.

A - 32

105 S. Ct. at 3147. Indeed, the State of Florida concedes as

much. See Def.Mem. at 14 (There is little doubt by that

IGRA’s attempted abrogation of state immunity is clear

enough to do so if Congress has the power to abrogate in this

situation.). Moreover, every court to squarely consider this

precise issue has concluded that the language in Section

2710 is “unmistakably clear.” See Sault St. Marie tribe of

Chippewa Indians, et al. v. State of Michigan, No. 90-611,

1992 WL 71384, at *4 (W.D.Mich. Mar. 27,1992) (“IGRA

demonstrates specific Congressional intent that state be

subject to suit in federal courts based upon vjolations of

IGRA. This Court finds that the Act is a clear statement of

waiver of sovereign immunity.” (emphasis in original));

Poarch Band of Creek Indians v. State of Alabama, 776

F.Supp. 550, 557 (S.D.Ala. 1991) (“{T]his Court has little

doubt but that IGRA’s attempted abrogation of state immu-

nity is clear enough to do so if Congress has the power to

abrogate in this situation.... It is difficult to imagine a

clearer statement of Congress’ intent to subject states to

lawsuits in the federal courts.”). Accordingly, we find that

IGRA, on its face, abrogates the States’ Eleventh Amendment

immunity. That does not end the inquiry, however.

2. Congressional Power to Abrogate

Amore difficult question is whether, notwithstanding its

manifest intent to do so, Congress had the power to abrogate

the States’ immunity in the context at issue here. Given

Congress’ plenary authority over Indian relations, explicitly

noted in the text of the Constitution at Article I, § 8, cl. 3,

and the uniquely federal issues raised when such authority

is exercised, considered in conjunction with the principles

enunciated by the Supreme Court in Pennsylvania v. Union

Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989),

we conclude that Congress, when acting pursuant to the

Indian Commerce Clause, has the power to abrogate the

States’ immunity.

We begin by observing that the Indian Commerce Clause

of the Constitution provides that “Congress shall have

power...to regulate Commerce...with the Indian Tribes.”

U.S. Const. art I, § 8, cl.3. Congressional power over Indian

affairs is plenary. Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 192, 109 S. Ct. 1698, 1715-16, 104 L.Ed.2d 209

(1989) (“[T]he central function of the Indian Commerce

Clause is to provide Congress with plenary power to legis-

late in the field of Indian affairs....”); Oneida County, N.Y. v.

Oneida Indian Nation of N.Y., 470 U.S. 226, 234-35, 105

S.Ct. 1245, 1251-52, 84 L.Ed.2d 169 (1985) (“With the adop-

tion of the Constitution, Indian relations became the exclu-

sive province of federal law.”(citing The Federalist No. 42));

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142,

100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980) (“Congress has

broad power to regulate tribal affairs under the Indian

Commerce Clause....”); Lac Courte Oreilles Band of Lake

Superior Chippewa Indians, et al., v. Voigt, 700 F.2d 341, 361

(7th Cir.) (“Congress has plenary authority over Indian

affairs. This power is rooted in...the Indian commerce

clause....” (citation omitted)), cert. denied, 464 U.S.805, 104

S.Ct.53, 78 L.Ed.2d 72 (1973); Agua Caliente Band of

Mission Indians v. County of Riverside,306 F.Supp. 279, 282

(C.D.Cal.1969) (“The nature of Congressional power in Indian

matters is paramount and plenary.”), aff'd, 442 F.2d 1184

(9th Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30

L.Ed.2d 809 (1972).

In Worcester v. Georgia, 31 U.S. (6 Per.) 515, 8 L.Ed. 483

(1832), Chief Justice Marshall, writing for the High Court,

observed that

[the Articles of Confederation] gave the United

States in congress assembled the sole and exclusive

A - 34

right of “regulation the trade and managing all the

affairs with the Indians, not members of any of the

states; provided, that the legislative power of any

state within its own limits be not infringed or

violated.”

* * x

The correct exposition of this [section of the Articles

of Confederation] is rendered unnecessary by the

adoption of our existing constitution. That instru-

ment confers on congress the powers of war and

peace; of making treaties, and of regulating com-

merce with foreign nations, and among the several

states, and with the Indian tribes. These powers

comprehend all that is required for the regulation

of our intercourse with the Indians. They are not

limited by any restriction on their free actions; the

shackles imposed on this power, in the [Article of

Confederation], are discarded.

31 U.S. at 558-59. See also United States v. City of

Salamanca, 27 F.Supp. 541, 543 (W.D.N.Y.1939) (“Any

doubt as to whether under the Articles of Confederation

certain rights over the Indians were reserved to the states

was removed by the adoption of the Constitution.”); The

Federalist No. 42, at 268 (James Madison) (Clinton Rossiter

ed., 1961) (“The regulation of commerce with the Indian

tribes is very properly unfettered from two limitations in the

Articles of Confederation....”). And in Morton vw. Mancari,

417 US. 535, 94 S.Ct. 2474, 41 L.Ed2d 290 (1974), a

unanimous Supreme Court opined:

Resolution of the instant issue [of whether an

Indian employment preference violates the Due

Process Clause of the Fifth Amendment] turns on

the unique federal status of Indian tribes under

federal law and upon the plenary power of

A- 35

Congress, based on a history of treaties and the

assumption ofa “guardian-ward” status, to legislate

on behalf of federally recognized Indian tribes. The

plenary power of Congress to deal with the special

problems of Indians is drawn both explicitly and

implicitly from the Constitution itself.

417 U.S. at 551-52, 94 S.Ct. at 2483. It is thus abundantly

clear that issues pertaining to Indian affairs are uniquely

federal, and that in regulating such affairs vis-a-vis the

States, congressional authority is plenary.

Moreover, it has repeatedly been observed that Congress

may abrogate the States’ immunity when it acts pursuant to

a plenary grant of authority plainly embodied in the textual

framework of the Constitution. See, e.g., Pennsylvania v.

Union Gas Co., 491 U.S. at 15, 109 S.Ct. at 2281-82; Hutto v.

Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2574-75, 57

L.Ed.2d 522 (1978); Richard Anderson Photography v. Brown,

852 F.2d 114, 123-24 (4th Cir.1988) (Boyle, J., concurring in

4 Still other courts, and a number of commentators, have acknow-

ledged the uniquely federal nature of Indian relations, and the breadth

of congressional power in that area. See McClanahan v. State Tax Comm'n

of Arizona, 411 U.S. 164, 168, 93 S.Ct. 1257, 1260, 36 L.Ed.2d 129 (1973)

(“ The policy of leaving Indians free from state jurisdiction and control is

deeply rooted in the Nation’s history.’ ” (quoting rice v. Olson, 324 U.S.

786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945))); James v. Watt, 716

F.2d 71, 73-77 (1st Cir.1983) (undertaking analysis of dormant effect of

Indian Commerce Clause), cert. denied, 467 U.S. 1209, 104 S.Ct. 2397, 81

L.Ed.2d 354 (1984); see also Williams, The Borders of the Equal Protection

Clause: Indians as Peoples, 38 U.C.L.A.L.Rev. 759 (1991) (acknowledging

that “the grant of power to Congress over the Indians may be ‘plenary ’...in

the sense that its power over interstate commerce is plenary,” but arguing

that both are equally restricted by the equal protection element of the

Fifth Amendment); Ainsworth, The Negative Foreign Commerce Clause:

An Analysis of the Reserved Unitary Tax Issue in Container Corporation

of America v. California Franchise Tax Board, 8 B.U.J.Tax L. 65 (1990)

(“it is Congress, not the states, which must fairly regulate commerce ‘with

the Indian tribes’ ”).

A - 36

part and dissenting in part), cert. denied, 489 U.S. 1033, 109

S.Ct. 1171, 103 L.Ed.2d 229 (1989); United States v. Union

Gas Co., 832 F.2d 1343, 1356 (3d Cir.1987), aff’d, 491 U.S.

1 (1989); Matter of McVey Trucking, Inc., 812 F.2d 311, 323

(7th Cir.), cert. denied, 484 U.S. 895, 108 S.Ct. 227, 98

L.Ed.2d 186 (1987); Malone v. Schenk, 638 F.Supp. 423, 426

(C.D.111.1985).° Congress’ paramount and plenary authority

over Indian affairs is therefore a substantial basis upon

which to find congressional power to abrogate when legisla-

tion pursuant to that authority.

[5] We next turn to a consideration of Pennsylvania v.

Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1

(1989). In Union Gas, the Supreme Court held that the

plain language of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (“CER-

CLA”), 42 U.S.C. §9601 et seq., permits a suit for monetary

damages against a state in federal court. 491 U.S. at 5, 109

S.Ct. at 2276. Further, a majority of the Court concluded that

Congress has the power to abrogate the States’ immunity

when legislating pursuant to the Interstate Commerce

Clause. Jd. at 13-23, 57, 109 S.Ct. at 2280-86, 2295. Justice

Brennan authored the plurality opinion of the Court on the

abrogation issue, in which Justices Marshall, Blackmun, and

Stevens joined. Justice White filed a separate opinion in which

he concurred in the judgment and noted his agreement “that

Congress has the authority under Article I to abrogate the

Eleventh Amendment immunity of the States...” 491 U.S. at

57, 109 S.Ct. at 2295. Justice Brennan’s plurality opinion

5 We note that, in the Bankruptcy Clause context, the United States

Court of Appeals for the Eleventh Circuit has expressly left open the

question of congressional power to abrogate. TEW v. Arizona State

Retirement System, 873 F.2d 1400, 1401 (11th Cir.1989) (per curiam)

(“Because we hold that Congress has not expressly abrogated sovereign

immunity here, we do not reach the constitutional question of whether it

would have the authority to do so."(citation omitted)).

A - 37

reasoned that Congress possessed such power principally

by virtue of “the plenary powers granted it by the

Constitution” to regulate interstate commerce, id. at 14-19,

109 S.Ct. at 2281-84 (citing Fitzpatrick v. Bitzer, 427 U.S.

445, 456, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614 (1976)

(holding that Congress may abrogate States’ immunity

when legislating under § 5 of the Fourteenth Amendment,

since its powers under that amendment are plenary)), and

also, to a lesser extent, by virtue of the States’ surrender of

immunity in the “plan of convention” regarding matters

within the ambit of the Interstate Commerce Clause.® Id.,

6 Defendants argue that the applicability of the Union Gas to the

instant case is undermined by the Tribe’s inability to satisfy the “plan of

convention” prong of that decision since no State-Tribe “mutuality” was

represented in the “plan convention.” We cannot agree. The plurality’s

“plan of convention” #iscussion in Union Gas is, in our view, more a

natural extension ef the “plenary power” basis of the decision than a

separate requirement of mutuality, since, even when discussing the “plan

of convention”, the Court was primarily concerned with Congress’ plenary

powers in the area of interstate commerce, observing:

It would be difficult to overstate the breadth and depth of the

commerce power. It is not the vastness of this power, however,

that is so important here: it is its effect on the power of the States.

491 US. at 20, 109 S.Ct. at 2284. (citations omitted). This is precisely the

same observation advanced by the Court when analyzing Congress’ ple-

nary power in the area:

[TJhe Commerce Clause with one hand gives power to Congress

while, with the other, it takes power away from the States...

The important point...is that the provision both expands

federal power and contracts state power; that is the meaning,

in fact, of a “plenary” grant of authority...

Id. at 16-17, 109 S. Ct. at 228-83.

We thus rest today’s decision primarily on Congress’ plenary power over

Indian affairs, rather than on a “mutuality in the plan of convention” theory,

for a number of reasons. First, an explication of plenary congressional power

is, in our view, the central thrust of Union Gas, and is a proper basis on which

to find congressional power to abrogate. In addition, the latter theory seem-

ingly begs the question by presuming that the states have already ceded their

sovereignty. Finally, we think, “plan of convention” ceasion is more properly a

“waiver” argument than an “abrogation” argument, and, in the Indian affairs

context, was rejected in Blatchford, U.S. at__-__, 111 S.Ct. at 2581-83.

A-38

491 US. at 19-23, 109 S.Ct. at 2284-86. Since Congress

clearly possesses complete and plenary authority in the area

of indian affairs, which is at least as broad as Congress’

interstate commerce power, see note 8 infra, we hold that

Congress has the power to abrogate the States’ immunity

pursuant to the Indian Commerce Clause.

Defendants have rested their Eleventh Amendment argu-

ment on three recent district court opinions, Sault Ste.

Marie Tribe of Chippewa Indians, et al. v. State of Michigan,

No. 90-611, 1992 WL 71384 (W.D.Mich. 1992); Spokane Tribe

of Indians v. State of Washington, 790 F.Supp. 1057

(E.D.Wash.1991); and Poarch Band of Creek Indians v. State

of Alabamc, 776 F.Supp 550 (S.D Ala. 1991). First,

Defendants observe that the district courts in both the Sault

Ste. Marie and the Poarch cases expressed misgivings as to

the continuing vitality of Union Gas, with the court in

Poarch going so far as to conclude that,

[blecause Union Gas is not directly on point, and

with aneye toward the shaky ground on which it

stands, this Court does not find the decision to be

controll:ng. The weakness of the plurality opinion

leads this Court to believe that it should not be

given an expansive application...

776 F.Supp. at 558.’ We are unpersuaded. As already noted,

a majority o the Supreme Court in Union Gas held that

7 See also Sailt Ste. Marie, 1992 WL 71384, at *i(district court settles

on a “narrow wading of Union Gas”); Mississippi Band of Choctaw

Indians v. Stat of Mississippi, No. 90-386, 1991 WL 255614, at *6

(S.D.Miss. Apr. §, 1991) (4 Tyhe Court notes that is does not consider the

Union Gas decison itself controlling precedent upon which the eleventh

amendment questions at issue here could be decided. Union Gas dealt with

congressional alrogation of state immunity through an exercise of author-

ity under the intrstate commerce clause. The instant matter involves the

Indian commere clause.”).

A- 39

Congress had the power to abrogate the States’ immunity

under the Interstate Commerce Clause; Union gas is bind-

ing authority on this Court. It is a mistake to simply dismiss

Union Gas as being inapposite, especially since congres-

sional power over both interstate and Indian commerce

derives from precisely the same Constitutional clause,

Article 1, § 8, cl. 3, and since its power in both areas is

plenary. See Matter of McVey Trucking, 812 F.2d at 323

(holding that “Congress may abrogate state immunity to

suit pursuant to any of its plenary powers,” including the

Bankruptcy Clause of Article 1, § 8, cl 4); Peel v. Florida

Department of Transp., 600 F.2d 1070, 1080 (5th Cir.1979)

(finding authority to abrogate pursuant to Congress’ war

powers, and observing that “nothing in the history of the

eleventh amendment, the doctrine of sovereign immunity,

or the case law indicates that Congress, when acting under

an [AJrticle 1, section 8 delegated power, lacks the authe .ty

to provide for federal court enforcement of private damage

actions against the states”); BV Engineering v. University of

Cla., Los Angeles, 657 F.Supp. 1246, 1248 (C.D.Cal.1987)

(finding congressional power to abrogate pursuant to

Article 1, § 8,cl. 8 (copyright powers), and observing that

“Congress ’may abrogate state immunity to suit pursuant to

any ofits plenary powers” (quoting Matter of McVey Trucking,

812 F.2d at 315-23)), aff'd 858 F.2d 1394 (9th Cir.1988), cert

denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 859 (1989).

The Defendants also attempt to draw important distinc-

tions between the Interstate and Indian Commerce Clauses,

citing principally to Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 192, 109 S.Ct. 1698, 1715-16, 104 L.Ed.2d 209

(1989), where Supreme Court observed that “i]t is also well

established that the Interstate Commerce and Indian

Commerce Clauses have very different applications.”

Indeed, the courts both Spokane Tribe of Indians v. State of

Washington, 790 F.Supp at 1059-61, and Poarch, 776 F.Supp

at 559, concluded from this language that it would be

A-40

inappropriate to apply theories based on one clause to the

other. Again, we do not find the argument persuasive. As we

noted above, congressional power over both interstate and

Indian commerce derives from the same clause in the

Constitution; and we are hard pressed to conclude that the

congressional authority to abrogate the States’ immunity in

the area of interstate commerce is greater than in Indian

Commerce. Indeed, Defendants here acknowledge as much

at oral argument:

THE COURT: Let me ask you a question. Is

congressional authority under Article I, Section 8,

dealing with the power to regulate commerce with

the Indian tribes any less sweeping than the power

to regulate commerce with foreign nations and

among the several States?

MR. GLOGAU: No, it is not.

Transcr. of Hrng. of Jan 13, 1992, at 10. Defendants none-

theless argue that Congress’ power over Indian commerce is

of a “very different specie” than the power over interstate

commerce, and that Union Gas is therefore readily distin-

guishable, since the Indian commerce power lacks an ele-

ment of “mutuality” found in the area of interstate

commerce. See id. 491 U.S.at 10-16, 109 S.Ct. at 2278-82.

This argument is unconvincing, and we conclude that, based

on its paramount and plenary authority over Indian affairs,

Congress’ power to act pursuant to the Indian Commerce

Clause is at least as great, if not greater, than its powers

under the Interstate Commerce Clause. 8 Moreover, Cotton

8 Accord Howard v. Illinois Central R. Co., 207 U.S. 463, 521, 28

S.Ct.141, 154-55, 52 LEd. 297 (1908) (Moody J. dissenting) (“There is

nothing in the word of the grant [of commerce power to Congress] that

permits the belief that the power is not coextensive over foreign, inter-

state, and Indian trade, or is anything less than the whole power which

any government may properly exercise over either....”); Wabash R. Co. v.

United States, 168 F.-1, 4 (7th Cir.1909) (“When the Declaration of

Independence ripened into fact, the several states could have taken their

separate places in the family of nations as absolutely sovereign powers,

and the commerce among them would have been on the same footing as

commerce "with foreign nations” and “with Indian tribes.” On abandoning

their “firm league of friendship” and adopting the Constitution, the states

divested themselves of the power to regulate interstate commerce as

completely as they did of the power to regulate foreign commerce, and

transferred to the nation in equal terms the powerto regulate both. To the

extent that there is a difference between the power of Congress over

interstate commerce and over foreign commerce, it comes not from any

difference in the grants, but from the fact that other provisions of the

Constitution which may limit the exercise of power over interstate com-

merce may have no application to foreign commerce."); Ainsworth, supra

note 4 (“First, Indian Commerce Clause analysis is structured differently

than Interstate Commerce Clause analysis. It proposes a tripartite bal-

ancing of unequal interests (tribal, state, and federal) rather than a binary

balancing of constitutionally equal interest (two similarly situated taxpay-

ers in the same or different states). Second, under the Indian Commerce

Clause, there is a presumption against state authcrity to tax Indian-value

without express Congressional approval; wherees under the Interstate

Commerce Clause, there is a presumption in favor of any non-discriminatory

state taxing scheme which has not been expressly disapproved of by

Congress. Finally, under the Indian Commerce Chuse, it is the quantita-

tive weight of the burden imposed on Indian Commerce that is the

significant question; whereas under the Interstate Commerce Clause, it

is the equal distribution of tax burdens among taxpayers, regardless of

the absolute amount of the overall burden, that matters.”); Resnick,

Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56

U.Chi.L Rev. 671 (1989) (“[The ‘Indian commerceclause could be read as

expansively as the Interstate commerce clause.’ Under such a reading, the

power over Indian tribes may be more formal thanreal.” (quoting Clinton,

Isolated in Their Own Country: A Defense of Fedeal Protection of Indian

Autonomy and Self Government, 33 Stan.L.Rev. 979, 997 (1981))).

A-42

Petroleum does not undercut this conclusion, since that

decision goes on to note:

In particular, while the Interstate Commerce

Clause is concerned with maintaining free trade

among the States even in the absence of imple-

menting federal legislation, the central function of

the Indian Commerce Clause is to provide

Congress with plenary power to legislate in the

field of Indian affairs.

490 U.S. at 192, 109 S.Ct. at 1715-16 (emphasis added).?

Finally, Defendants rely on Blatchford in concluding that

Congress lacked the power to abrogate.’ This reliance is

misplaced, we think, since Blatchford is primarily a

“waiver” case, and its concerns over a lack of “mutuality

of...concession,” _ U.S. at___ -__, 111 S.Ct. at 2581-83,

are properly limited to that context. But evenif, as Defendants

assert, the “waiver” principles enunciated in Blatchford can

be said to speak to Congress’ power to abrogate-and we think

they do not-the lack of State-Indian mutuality is a matter

of relatively minor importance. First, Congress’ plenary

power over the uniquely federal area of Indian affairs is the

primary basis on which we rest today’s decision. Second, we

are not persuaded that a lack of mutuality between the

States and the Indian nations is a compelling deficiency,

since there did in fact exist a mutuality between the federal

government-in which plenary power to regulate Indian af-

fairs was vested-and the States. And although the lack of

State-Indian mutuality may undercut the argument that

9 Atall events, Cotton Petroleum is of limited help here since the issue

there was whether Indian Tribes could be treated as States for tax

apportionment purposes.

10 TheSpokane Tribe and Saulte Ste. Marie courts also relied on Blatchford

in reaching the same conclusion.

A-43

the States waived their immunity to any and all suits by

Indian tribes, the importance of that want of mutuality is

diminished when a suit is brought pursuant to explicit con-

gressional authorization, since the linchpin of abrogation

must be the nature of the power pursuant to which Congress

raised the Eleventh Amendment barrier. Furthermore, to the

extent that Blatchford does expressly discuss abrogation,

that discussion never reaches the issue of congressional

power, since the Court concluded that Section 1362 of Title

28 did not contain “unmistakably clear” language evincing

Congress’ intent to abrogate." __—* U.S. at ___,111 S.Ct. at

2586. Thus, Blatchford is wholly silent on the principal issue

raised here of congressional power to abrogate, and as such

is readily distinguishable. Accordingly, it is

ORDERED AND ADJUDGED that Defendants’ Motion to

Dismiss is DENIED.

DONE AND ORDERED.

11 That Section provides:

The district courts shall have original jurisdiction of all civil

actions, brought by any Indian tribe or band with a governing

body duly recognized by the Secretary of the Interior, wherein

the matter in controversy arises under the Constitution, laws,

or treaties of the United States.

28 U.S.C. § 1362. Notably absent from Section 1362 is language specifi-

cally referencing the States, as is present in the statute conferring juris-

diction in the instant case, 25 U.S.C. § 2710(dX 7X AXi).

A-44

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-4652

SEMINOLE TRIBE OF FLORIDA,

Plaintiff-Appellee,

versus

STATE OF FLORIDA; LAWTON CHILES,

Governor of the State of Florida,

Defendants-Appellants.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

Before: TJOFLAT, Chief Judge, BLACK, Circuit Judge, and

JOHNSON, Senior Circuit Judge.

PER CURIAM: ,

( X ) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), The

Suggestion(s) of Rehearing En Banc and DENIED.

( ) The Petition(s) for Rehearing are DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

A-45

regular active service not having voted in favor of it (Rule

35, Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 35-5), the Suggestion(s) of Rehearing En Banc are also

DENIED.

( )Amember of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in

favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

s/ Gerald B. Tjoflat

CHIEF JUDGE

Filed: U.S. Court of Appeals

Eleventh Circuit

April 6, 1994

Miguel J. Cortez, Clerk

APPENDIX D

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

| In Replying Give

Miguel J. Cortez Number of Case

Clerk and Names of

Parties

Apnil 28, 1994

MEMORANDUM TO COUNSEL OR PARTIES:

RE: 92-6244 Poarch Band of Creek Indians

v. State of AL

DC DKT No.: 91-00757 CA-AH-M

MANDATE STAYED TO AND INCLUDING July 5, 1994

The court has this day granted a stay of the mandate to the

date shown above. If during the period of the stay there is

filed in this court a Notice from the Clerk of the Supreme

Court that the party who has obtained the stay has filed a

petition for writ of certiorari in the Supreme Court, the stay

shall continue until final disposition by the Supreme Court.

Upon the filing of a copy of an order of the Supreme Court

denying the petition for writ of certiorari, the mandate shall

issue forthwith. See Fed.R.App.P.41.

The Clerk of the Supreme Court has requested the clerks of

the federal courts of appeal to retain the record on appea!

until the Supreme Court requests that it be transmitted.

Parties will be advised when this occurs. Accordingly, please

refrain from routinely requesting transmittal of the record.

See Supreme Court Rule 19.1.

A copy of this court’s opinion (or Rule 36-1 decision), the

judgment, and any order on rehearing should be attached

as an appendix to any petition for writ of certiorari (or

jurisdictional statement) filed. See Supreme Court Rules

21(k), 15(@).

Sincerely,

s/ Miguel J.Cortez

MIGUEL J. CORTEZ, Clerk

Reply to: Wardell Lovelace

(404)331-6147

This letter also applies to consolidated case no. 92-4652.

EE as aes

Ee —

- ltl

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CiRCUIT

No. 92-4652

SEMINOLE TRIBE OF FLORIDA,

Plaintiff- Appellee,

versus

STATE OF FLORIDA; LAWTON CHILES,

Governor of the State of Florida,

Defendants-Appellants.

On Appeal from the United States District Court for the

Southern District of Florida

ORDER:

Appellee’s motion to stay issuance of the mandate pending

petition for writ of certiorari is granted.

s/ Gerald B. Tijoflat

CHIEF JUDGE

Filed: U.S. Court of Appeals

Eleventh Circuit

April 28, 1994

Miguel J. Cortez, Clerk

A-49

APPENDIX E

SEMINOLE TRIBE OF FLORIDA, Plaintiff,

v.

STATE OF FLORIDA, Lawton Chiles, Governor of

the State of Florida, Defendants.

No. 91-6756-CIV-MARCUS.

United States District Court, S.D. Florida.

Sept. 22, 1993.

Bruce Rogow, Ft. Lauderdale, FL, for plaintiff.

Jonathan Glogau, Tallahassee, FL, for defendant.

ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT AND DENYING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT AND

PLAINTIFF’S SUPPLEMENTAL MOTION FOR

SUMMARY JUDGMENT

MARCUS, District Judge.

THIS MATTER comes before the Court pursuant to the

Plaintiff, SEMINOLE TRIBE OF FLORIDA’ (“the Tribe”),

Motion for Summary Judgement and the Defendants, the

STATE OF FLORIDA and LAWTON CHILES’s (“the

State”), Motion for Summary Judgement, both of which

were filed on October 9, 1992, and pursuant to the Tribe’s

Supplemental Motion for Summary Judgment, filed on

March 19, 1993.

The Tribe brought this action under the Indian Gaming

Regulatory Act, 28 U.S.C. §§ 2701-21, 18 U.S.C. §§ 1166-68

(“IGRA”). The Tribe alleges that the State has failed to

A - 50

ee

prema rye om

negotiate in good faith by refusing to include the Tribe’s

request to conduct certain forms of machine or computer-

assisted gaming and casino type gaming in the negotiation

of a Tribal-State compact governing gambling on Tribal

lands. The Tribe claims that such gaming is permitted by

the State and is therefore a mandatory subject of negotia-

tions under the IGRA. The State maintains, however, that,

while it has agreed to negotiate for other types of gaming, it

need not negotiate for machine or computer-assisted gaming

or casino type gaming precisely because those specific types

of gaming are not permitted by the State. The Court heard

oral argument on the cross-motions for summary judgment

on December 11, 1992. In addition, by Order of January 5,

1993, the Court granted the Tribe’s Motion to Re-Open

Discovery on the issue of the State’s treatment of foreign flag

vessels which operate gambling cruises from Florida ports.

The Tribe filed its Supplemental Motion for Summary

Judgment based on the additional discovery on March 19,

1993, the State filed its response on April 6, 1993, and the

Tribe filed its reply on April 12, 1993, at which time the

issues were fully joined. Based on our thorough review of

the case and the record, it is hereby

ORDERED AND ADJUDGED that the State’s Motion for

Summary Judgment is GRANTED and the Tribe’s Motion

for Summary Judgment and Supplemental Motion for

Summary Judgment are DENIED for the reasons detailed

at some length below.

«

The following facts have been stipulated to by the parties

in their Joint Pretrial Stipulation. On January 29, 1991, the

Tribe asked the State to commence negotiations pursuant

to the IGRA for a compact governing the Tribe’s proposed

operation of certain forms of gambling on Tribal lands. On

March 4, 1991, the Tribe submitted a proposed contract

A-51

providing for Tribal operation of poker, and machine or

computer-assisted games which duplicate poker, bingo,

pull-tabs, lotto, punch boards, tip jars, instant bingo, and

other games similar to bingo. By letter of May 24, 1991, the

State, through the Governor’s General Counsel, J. Hardin

Peterson, Jr., agreed to negotiate poker and other games

allowed by Fla.Stat.Anno. § 849.085 (West Supp.1993), but

rejected all of the Tribe’s other compact requests. The letter

set forth the State’s preliminary legal position on the scope

of games believed by the State to be subject to compact

negotiations and also contained suggestions for issues to be

negotiated related to regulatory matters. On June 18, 1991,

Seminole Chairman James Billie requested Florida Governor

Lawton Chiles’s personal involvement in compact negotia-

tions. The Chairman submitted additional games that the

Tribe asserted met the objections set forth in the May 24

letter from Peterson, and, at the same time, requested

expansion of negotiations to include casino gambling. On

June 25, 1991, the Tribe submitted a ten-page legal memo-

randum to the State in support of the lawfulness of the

proposed compact. (Joint Pretrial Stipulation at 4, PP 1-5).

On August 22, 1991, representatives of the Tribe met with

State representatives to discuss the Tribe’s compact request.

The State agreed to negotiate concerning poker and other

card games, raffles, and parimutuel wagering on dog and

horse racing and jai alai. In response to questions from the

State representatives, there was some discussion of how the

Tribe would conduct these games if a compact were ap-

proved. The State, however, refused to negotiate a compact

covering any machine or computer-assisted gaming which

the State contended would violate Fla.Stat.Anno. §§ 849.15

and 849.16 (West 1976 & Supp.1993). Specifically, the State

refused to negotiate a compact covering any form of casino

gambling. (Joint Pretrial Stipulation at 4-5, P 6).

Fr Wee en err

tbs

On September 17, 1991, the State and the Tribe met to

continue discussions. The State expressed its willingness to

negotiate a compact for games permitted under the inter-

pretation of IGRA set forth in its September 13 letter. The

Tribe decided not to continue negotiations at that time and

subsequently filed the instant lawsuit. By letter dated

September 14, 1992, the Tribe contacted the State request-

ing that negotiations be resumed. (Joint Pretrial Stipulation

at 5, PP 6.1-6.2).

Il.

The standard to be applied in reviewing a summary judg-

ment motion is stated unambiguously in Rule 56(c) of the

Federal Rules of Civil Procedure: The judgment sought shall

be rendered forthwith if the pleading, depositions, answers

to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled toa

judgment as a matter of law. Fed.R.Civ.P. 56(c). Thus, sum-

mary judgment may be entered only where there is no

genuine issue of material fact. Moreover, the moving party

has the burden of meeting this exacting standard. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970).

In applying this standard, the Eleventh Circuit has ex-

plained: In assessing whether the movant has met this

burden, the courts should view the evidence and all factual

inferences therefrom in the light most favorable to the party

opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at

1608; Marsh, 651 F.2d at 991. All reasonable doubts about

the facts should be resolved in favor of the non-movant.

Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co.,

655 F.2d 598, 602 (5th Cir.1981). If the record presents

factual issues, the court must not decide them; it must deny

the motion and proceed to trial. Marsh, 651 F.2d at 991;

Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co.,

A- 53

420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may

be inappropriate even where the parties agree on the basic

facts, but disagree about the inferences that should be

drawn from these facts. Lighting Fixture & Elec. Supply Co.,

420 F.2d at 1213. If reasonable minds might differ on the

inferences arising from undisputed facts, then the court

should deny summary judgment. Impossible Electronics,

669 F.2d at 1031; Croley v. Matson Navigation Co., 434 F.2d

73, 75 (5th Cir.1970). Moreover, the party opposing a motion

for summary judgment need not respond to it with any

affidavits or other evidence unless and until the movant has

properly supported the motion with sufficient evidence.

Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at

1609-10; Marsh, 651 F.2d at 991. The moving party must

demonstrate that the facts underlying all the relevant legal

questions raised by the pleading or otherwise are not in

dispute, or else summary judgment will be denied notwith-

standing that the non-moving party has introduced no evi-

dence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d

605, 611-12 (5th Cir.1967). See Dalke v. Upjohn Co., 555 F.2d

245, 248-49 (9th Cir.1977). Clemons v. Dougherty County,

Ga., 684 F.2d 1365, 1368-69 (11th Cir.1982). See also Amey,

Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th

Cir.1985), cert. denied, 475 U.S. 1107 (1986).

The United States Supreme Court has provided signifi-

cant additional guidance as to the evidentiary standard

which trial courts should apply in ruling on a motion for

summary judgment: [The summary judgment] standard

mirrors the standard for a directed verdict under Federal

Rule of Civil Procedure 50(a), which is that the trial judge

must direct a verdict if, under the governing law, there can

be but one reasonable conclusion as to the verdict. Brady v.

Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88

L.Ed. 239 (1943). Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986). The Court further stated that “[t]he mere

existence of a scintilla of evidence in support of the position

A- 54

will be insufficient; there must be evidence on which the jury

could reasonably find for the [non-movant].” Id. at 252. In

determining whether this evidentiary threshold has been

met, the trial court “must view the evidence presented

through the prism of the substantive evidentiary burden”

applicable to the particular cause of action before it. Id. at

254. If the non-movant in a summary judgment action fails

to adduce evidence which would be sufficient, when viewed

in a light most favorable to the non-movant, to support a

jury finding for the non-movant, summary judgment may

be granted. Id. at 254-55.

In another case, the Supreme Court has declared that a

non-moving party’s failure to prove an essential element of

a claim renders all factual disputes as to that claim imma-

terial and requires the granting of summary judgment: In

our view, the plain language of Rule 56(c) mandates the

entry of summary judgment...against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that

party will bear the burden of proof at trial. In such a

situation, there can be “no genuine issue as to any material

fact,” since a complete failure of proof concerning an essen-

tial element of the nonmoving party’s case necessarily ren-

ders all other facts immaterial. The moving party is

“entitled to judgment as a matter of law” because the non-

moving party has failed to make a sufficient showing on an

essential element of her case with respect to which she has

the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986) (emphasis added).

The parties agree that there are no genuine issues of

material fact in dispute and that the matter may properly

be disposed of on cross-motions for summary judgment.

(Joint Pretrial Stipulation at 13). The parties’ respective

claims will be evaluated against this standard.

II.

Congress enacted the IGRA in 1988. In its opening text,

Congress recognized that: (1) numerous Indian tribes

have become engaged in or have licensed gaming activi-

ties on Indian lands as a means of generating tribal

governmental revenue;...(3) existing Federal law does not

provide clear standards or regulations for the conduct of

gaming on Indian lands; (4) a principal goal of Federal

Indian policy is to promote tribal economic development,

tribal self-sufficiency, and strong tribal government; and

(5) Indian tribes have the exclusive right to regulate gaming

activity on Indian lands if the gaming activity is not specifi-

cally prohibited by Federal law and is conducted within a

State which does not, as a matter of criminal law and public

policy, prohibit such gaming activity. 25 U.S.C. § 2701. The

purpose of the IGRA is: (1) to provide a statutory basis for

the operation of gaming by Indian tribes as a means of

promoting tribal economic development, self-sufficiency,

and strong tribal governments; (2) to provide a statutory

basis for the regulation of gaming by an Indian tribe ade-

quate to shield it from organized crime and other corrupting

influences, to ensure that the Indian tribe is the primary

beneficiary of the gaming operation, and to assure that

gaming is conducted fairly and honestly by both the operator

and players; and (3) to declare that the establishment of

independent Federal authority for gaming on Indian lands,

the establishment of Federal standards for gaming on

Indian lands, and the establishment of a National Indian

Gaming Commission are necessary to meet congressional

concerns regarding gaming and to protect such gaming as a

means of generating tribal revenue. 25 U.S.C. § 2702.

Basically, the IGRA divides gaming into three classes.

Class I gaming “means social games solely for prizes of

minimal value or traditional forms of Indian gaming en-

gaged in by individuals as a part of, or in connection with,

A - 56

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OL Natit A eds) WR Sv tal net CAS ARNG 0d eis

tribal ceremonies or celebrations.” 25 U.S.C. § 2703(6).

Class I gaming is subject to the exclusive jurisdiction of the

Indian tribes and is not subject to the regulatory provisions

of the IGRA. 25 U.S.C. § 271a 1).

Class II gaming “means the game of chance commonly

known as bingo (whether or not electronic, computer, or other

technologic aids are used in connection therewith)...including

(if played at the same location) pull-tabs, lotto, punch boards,

tip jars, instant bingo, and games similar to bingo, and card

games that (I) are explicitly authorized by the laws of the State

or (II) are not explicitly prohibited by the laws of the State and

are played at any location in the State,” provided those card

games are played under the State laws and regulations gov-

erning hours of operation and limitations on wagers or pot

sizes. 25 U.S.C. § 2703(7XA). Congress explicitly excluded

“any banking card games, including baccarat, chemin de fer,

or blackjack, or...electronic or electromechanical facsimiles of

any game of chance or slot machines of any kind” from

Class II. 25 U.S.C. § 2703(7XB). The tribes have jurisdiction

over Class II gaming, subject to the requirements of the IGRA

and the oversight of the National Indian Gaming Commission.

25 U.S.C. § 2710(b).

Class III gaming “means forms of gaming that are not

class I gaming or class II gaming.” 25 U.S.C. § 2703(8).

The parties agree that the games at issue here (i.e., casino

gaming and machine or computer-assisted games) are

Class III games. The IGRAstates: Class III gaming activi-

ties shall be lawful on Indian lands only if such activities

are — (A) authorized [by an approved Tribal] ordinance or

resolution...,(B) located in a State that permits such gaming

for any purpose by any person, organization, or entity, and

(C) conducted in conformance with a Tribal-State compact

entered into by the Indian tribe and the State under para-

graph (3) that is effect. 25 U.S.C. § 2710(d). In order to

engage in Class III gaming activities on tribal land, a tribe

A -57

must first “request the State in which such lands are located

to enter into negotiations for the purpose of entering into a

Tribal-State compact governing the conduct of gaming ac-

tivities.” 25 U.S.C. § 27143XA). The IGRA requires the

State to negotiate with the Indian tribe in good faith upon

receipt of the tribe’s request. Id.

Immediately before passage of the IGRA, in the case of

California v. Cabazon Band of Mission Indians, 480 U.S.

202, 107 S.Ct. 1083 (1987) the Supreme Court established

the standard for evaluating requests by Indian tribes to

conduct gaming activities on tribal lands. In Cabazon, the

State of California objected to the Indian tribe’s operation

of bingo games on tribal property. The state argued that the

tribe’s bingo operations violated a state penal statute which,

while it did not prohibit bingo, imposed prize limits and

required the games to be “operated and staffed by members

of designated charitable organizations who may not be paid

for their services.” Cabazon, 480 U.S. 205, 107 S.Ct. at 1086.

As noted by the Supreme Court, California was a “Public

Law 280" state, meaning that Congress had granted

California jurisdiction over specified areas of Indian country

within its borders. Section 2 of Pub.L. 280 granted California

"broad criminal jurisdiction over offenses committed by or

against Indians within all Indian country” within California,

but Section 4 of Pub.L. 280 granted the state a more limited

form of civil jurisdiction. Cabazon, 480 U.S. at 207-08, 107

S.Ct. at 1087. Based on this difference in the congressional

grant of jurisdiction, the Supreme Court held: when a State

seeks to enforce a law within an Indian reservation under

the authority of Pub.L. 280, it must be determined whether

the law is criminal in nature, and thus fully applicable to

the reservation under § 2, or civil in nature, and applicable

only as it may be relevant to private civil litigation in state

court. Cabazon, 480 U.S. at 208, 107 S.Ct. at 1088.

ihittan tad aah ELA

(taRs

A

In Cabazon, the Supreme Court adopted a prohibi-

tory/regulatory distinction to determine whether the state

law governing the conduct at issue fell within Pub.L. 280’s

grant of criminal jurisdiction or not. The Court cautioned

that the mere fact that “an otherwise regulatory law is

enforceable by criminal as well as civil means does not

necessarily convert it into a criminal law within the mean-

ing of Pub.L. 280.” 480 U.S. at 211, 107S.Ct. at 1089. Rather,

the touchstone is “whether the conduct at issue violates the

State’s public policy.” 480 U.S. at 209, 107 S.Ct. at 1088.

After reviewing the scope of legally permissible gambling

activities within California, the Court concluded that

“California regulates rather than prohibits gambling in

general and bingo in particular.” 480 U.S. at 211, 107 S.Ct.

at 1089. The Court was not presented with, and thus did not

address, the situation where a state adopted a regulatory

attitude toward some forms of gambling which would fall

under the IGRA’s rubric of Class III gaming (e.g., parimutuel

betting and a state lottery), but prohibited the specific

Class III activities proposed by a tribe.

Review of the Cabazon decision is basic when interpreting

the IGRA, as Congress incorporated the Cabazon decision into

both the statutory language and legislative history of the

IGRA. The Senate Report accompanying the IGRA makes

explicit reference to the Cabazon decision in discussing 25

U.S.C. § 2710(bX1XA/Ys requirement that Class II gaming on

Indian property take place only if “located within a State that

permits such gaming for any purpose by any person, organi-

zation, or entity.” The Senate Report offered the following

guidance to courts construing that phrase: the Committee

anticipates that Federal courts will rely on the distinction

between State criminal laws which prohibit certain activities

and the civil laws of a State which impose a regulatory scheme

upon those activities to determine whether class II games are

allowed in certain States. This distinction has been discussed

by the Federal courts many times, most recently and notable

A-59

by the Supreme Court in Cabazon.... The phrase “for any

purpose by any person, organization or entity” makes no

distinction between State iaws that allow class II gaming for

charitable, commercial, or governmental purposes, or the

nature of the entity conducting the gaming. If such gaming is

not criminally prohibited by the State in which tribes are

located, then tribes, as governments, are free to engage in such

gaming. S.Rep. No. 446, 100th Cong., 2d Sess., reprinted in

1988 U.S.C.C.A.N. 3076, 3082. While the Senate Report re-

ferred to the phrase as found at 25 U.S.C. § 2710(bX1XA), the

identical phrase is repeated at 25 U.S.C. § 2710(dX1XB)

regarding Class III activities. It is a general principle govern-

ing statutory construction that when a word or phrase is used

in more than one section of an act, and the meaning is clear

as used in one place, “ it will be construed to have the same

meaning in the next place’.” United States v. Nunez, 573 F.2d

769, 771 (2nd Cir.) (citation omitted), cert. denied, 98 S.Ct.

2828 (1978). We therefore agree with the Tribe that the

legislative history relating to the phrase as found in the

provision governing Class II gaming is instructive regarding

the meaning of the language found in the provision governing

Class III gaming. See also, Mashantucket Pequot Tribe v. State

of Conn., 913 F.2d 1024 (2nd Cir. 1990) (reaching same conclu-

sion regarding applicability of legislative history). Coupling

the Senate Report with the express language of 25 U.S.C.

§ 2701(5) supra, we conclude that Congress intended the

prohibitory/regulatory analysis found in Cabazon to be consis-

tent with and to be applied to the IGRA provisions covering both

Class II and Class III gaming.

In the instant case, the Tribe argues that the “permits

such gaming” provision of the IGRA(i.e., the phrase incor-

porating Cabazon’s regulatory/prohibitory distinction) re-

fers to the “generic class of gaming permitted in the State.”

(Plaintiff’s Motion for Summary Judgment at 18) (emphasis

in original). Under the Tribe’s theory, by allowing one form

of Class III gaming, the State has evinced a public policy

A - 60

+ a wrrttnn tals dees

nb Pine Shite

which is regulatory in nature toward all forms of Class III

gaming. Following the Tribe’s argument, because the State

allows parimutuel facilities and the state lottery, all other

forms of Class III gaming, such as casinos and machine and

computer-assisted games, become mandatcry subjects for

negotiation of the Tribe-State compact. The State’s admitted

refusal to include those forms of Class III activities in the

compact negotiation would therefore -onstitute a violation

of the good faith requirement impos. u upon the State by the

IGRA. While we agree that the Cabazon standard should be

used in the interpretation of the IGRA Class III provisions,

we cannot accept the Tribe’s broad assertion that the State’s

permission of specific Class III gaming activities places all

Class III activities on the table as subject to negotiation.

In support of its position, the Tribe primarily relies on three

recent cases interpreting the IGRA: United States v. Sisseton-

Wahpeton Sioux Tribe, 897 F.2d 358 (8th Cir.1990);

Mashantucket Pequot Tribe v. State of Connecticut, 913 F.2d

1024 (2nd Cir.), cert. denied, 111 S.Ct. 1620 (1991); and Lac du

Flambeau Band of Lake Superior Chippewa Indians v. State

of Wisconsin, 770 F.Supp. 480 (W.D.Wis.1991) (Lac du

Flambeau II ). Contrary to the Tribe’s argument, a close

reading of these cases does not support its position. Each court

considering the Cabazon regulatory/prohibitory distinction in

relation to the IGRA has conducted a broad review of the

state’s public policy toward gambling, and, in each case, the

court has determined that the specific gaming activity pro-

posed by the Indian tribe was in fact permitted by the state.

The Sisseton-Wahpeton case arose in the context of Class

II gaming. The Indian tribe in that case opened a blackjack

enterprise on its South Dakota reservation. The tribe ar-

gued, first, that its blackjack operation was grandfathered

in as a Class II activity by specific IGRA provisions not

relevant to the instant case. The tribe further argued that

its operations satisfied the IGRA requirement that the

A- 61

activities take place in a state “that permits such gaming

for any purpose by any person, organization or entity.” This

is the precise phrase in both the Class I] and Class III

provisions which is at issue in the instant case. In interpret-

ing that phrase, the court stated that it revealed a congres-

sional intent to permit a “particular gaming activity...if the

state law merely regulated, as opposed to completely barred,

that particular gaming activity.” 897 F.2d at 365 (emphasis

added). After concluding that South Dakota permitted com-

mercial card games including blackjack, albeit with wage

limits and other constraints, the court found thet the IGRA’s

requirement was met and the Indian tribe could lawfully

conduct its blackjack operation pursuant to the IGRA.

In Mashantucket, the United States Court of Appeals for

the Second Circuit addressed a similar issue in the context

of the IGRA provisions governing Class III activities. The

Indian tribe sought to operate casino-type games of chance

on its reservation in Connecticut. The state refused to nego-

tiate a compact for these gaming activities. The district

court found that Connecticut statute specifically authorized

certain nonprofit organizations to hold Las Vegas nights.

Base . \ this, the district court granted summary judgment

in fave» of the tribe. In upholding the district court’s deci-

sion, the Court of Appeals for the Second Circuit stated: the

district court concluded, after a careful review of pertinent

Connecticut law regarding “Las Vegas nights,” that

Connecticut “permits games of chance, albeit in a highly

regulated form. Thus such gaming is not totally repugnant

to the State’s public policy....”. This ruling means only that

the State must negotiate with the Tribe concerning the

conduct of casino-type games of chance at the Reservation.

913 F.2d at 1031-32. (emphasis added).

Finally, in Lac du Flambeau II, the court found that the

Wisconsin electorate amended their state’s constitution to

allow the state to operate a lottery. Based in part on an

A - 62

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NS iG A in Lael te LGR SPIE MAE has della a eh a alice ae

hed Vg hates

opinion by the Wisconsin Attorney General, the court con-

cluded that Wisconsin no longer prohibited games involving

prize, chance, and consideration, and ruled that all games

falling within that category must be included in the compact

negotiation. Thus, the court’s ruling was limited to the

specific category of games, albeit a broad category, no longer

prohibited by Wisconsin. To some extent, the court in Lac du

Flambeau II utilized a different interpretation of Cabazon

than the one outlined above. For example, the court observed:

If the policy is to prohibit all forms of gambling by anyone,

then the policy is characterized as criminal-prohibitory and

the state’s criminal laws apply to tribal gaming activity. On

the other hand, if the state allows some forms of gambling,

even subject to extensive regulation, its policy is deemed to

be civil-regulatory and it is barred from enforcing its gam-

bling laws on the reservation. This approach is broader than

the one employed by the Supreme Court in Cabazon and

other courts which have faced the same question and, to the

extent the court in Lac du Flambeau II based its conciusion

on that analysis, we decline to follow its lead.?

1 = The Tribe has also argued that the Lac du Flambeau II decision control-

led the ultimate outcome of the instant case. The Tribe asserted that the

electorate’s amendment of the Florida Constitution to permit a state-run

lottery converted the State’s public policy toward all forms of Class ITI gaming

to one which is wholly regulatory in nature. We disagree. First, the Tribe’s

argument is premised on the notion that the Court may look only to the State’s

Constitution, and not to its statutory law or expressions by its populace, to

discern the State’s public policy toward gambling. The Tribe has cited nothing

and we can find no support for that proposition. Second, as ncted above, the

thrust of Cabazon and its progeny requires a particularized inquiry into the

proposed gambling activity (in this case, casino gambling and machine or

computer-assisted gaming). For example, in Cabazon, where California ran

a state lottery and permitted parimutuel betting, the lower courts and the

Supreme Court looked at the state’s public policy regarding bingo, the specific

gambling activity at issue. Thus, we do not agree that Lac du Flambeau I!

dictates the outcome of the instant case, without a review of the State’s public

policy toward gambling in general and its public policy toward the specific

gaming activities in question.

A - 63

In sum, we can find no convincing support in these cases

for the Tribe’s suggestion that a state’s public policy per-

mitting individual Class III activities is somehow equiva-

lent to permitting all Class III gaming activities. Indeed,

two other courts recently reached the same conclusion

regarding the “permits such gaming” language and Class

IIIf gaming activities. See, Cheyenne River Sioux Tribe v.

State of South Dakota, et. al., 1993 WL 316042, No.

93-1224/1521 (8th Cir. August 23, 1993) (Court upheld

district court’s ruling that state need not include tradi-

tional keno in compact negotiations when state only per-

mitted video keno because the “ ‘such gaming’ language of

25 U.S.C. § 2710dX1)(B) does not require the state to

negotiate with respect to forms of gaming it does not

presently permit.”) and Rumsey Indian Rancheria of Wintun

Indians, et al. v. Governor Pete Wilson, et al., Case No.

CIV-S-92-812-GEB at 16, n. 16 (E.D.Cal. July 16, 1993)

(“This court has found no authority for the proposition

that a state’s public policy construed as permitting a

single Class III game must be found to permit all Class

III gaming activities.”) Thus, we look at the state’s public

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Bab isis satis PARSER eps SOengn denn are ae rr

policy toward the specific gaming activities proposed by the

tribes.

The Tribe has argued alternatively that Florida in fact

permits precisely those types of Class III gaming activities

which it proposes to operate on Tribal lands. The parties

agree that the State explicitly permits parimutuel betting

and the state lottery, both of which are Class III games. The

Joint Pretrial Stipulatior. describes in detail these games.

For example, there are thirty-five parimutuel facilities

throughout the State, including dog and horse racing tracks

and jai alai frontons. The State also permits simulcast and

intertrack betting at the parimutuel facilities. Simulcast

involves the transmission of an out-of-state race into Florida

or an in-state race out of Florida for betting purposes.

2 _Inits motion for summary judgment, the State argued that the different

language prefacing the Class II and Class III provisions should be the focus

of the Court’s analysis of the IGRA. The relevant portions of the IGRA state:

An Indian tribe may engage in, or license and regulate, class II gaming on

Indian lands within such tribe’s jurisdiction, if — ...(A) such Indian gaming

is located within a State that permits such gaming for any purpose by any

person, organization or entity,...and: Class III gaming activities shall be

lawful on Indian lands only if such activities are — ...(B) located in a State

that permits such gaming for any purpose by any person, organization, or

entity,...25 U.S.C. § 2710(bX1) and (dX 1) (emphasis added). The State argues

that the use of the term “gaming activities” rather than “gaming” indicates a

congressional intent that courts treat Class III as a particularized, rather

than a generic group of activities, thereby requiring an activity-by-activity

review of the proposed tribal gaming. At least one court has concluded that

this difference in prefatory language does not create a meaningful distinction

between Class II and Class III under the IGRA. See, Mashantucket Pequot

Tribe v. State of Connecticut, 913 F.2d 1024, 1030 n. 6 (No significance should

be accorded to the “modest difference” between the two introductory sections).

Because we have concluded that the application of the Cabazon standard

requires a court to examine the State’s public policy regarding the specific

activities proposed by the Tribe, we need not address the State’s argument

that the prefatory language creates an important distinction between the

IGRA’s Class II and Class III provisions. We add, however, that the purported

distinction the State would draw between “gaming” and “gaming activities”

appears illusory.

A - 65

Intertrack betting involves the transmission of a race from

one Florida parimutuel facility to another for betting pur-

poses. The total amount bet at the State’s thirty-five facili-

ties bas been 1.6 billion dollars for the past several years.

(Joint Pretrial Stipulation at 5-6, PP 7- 11).

In addition to accepting bets placed at parimutuel facility

windows staffed by facility employees, fifteen facilities use

SAMS. SAMS are automated machines which permit a

bettor to enter his bet by inserting money, vouchers, or credit

cards into the machine, thereby enabling him to select the

number or combination he wishes to purchase. A ticket is

issued showing those numbers. Those numbers may be

selected by bettors who handicap races or those who choose

numbers or combinations without handicapping the race. A

ticket showing a winning number or combination of num-

bers will entitle the holder to receive money in exchange for

the ticket. (Joint Pretrial Stipulation at 6, P 12).

Florida’s state-wide lottery has a total in annual ticket

sales of approximately two billion dollars. There are ap-

proximately 12,000 retail lottery sites throughout the State,

and each retail site is operated by one or more persons

trained by the State to operate the machine terminals which

are installed at the sites. The on-line lottery games are Cash

3, Play 4, Fantasy 5, and Lotto. Each of these games uses

machine terminals installed at the retail site. To play, a

player selects his numbers either by marking the numbers

of his choice or by marking the Quick Pick box on the play

slip, a three by nine inch card which is inserted in the

machine terminal. If Quick Pick is marked, the machine

selects the numbers. In either event, the chosen numbers

are transmitted to and recorded by the lottery’s main com-

puter in Tallahassee and the retail terminal prints out the

lottery ticket containing the selected numbers. Alterna-

tively, a player can verbally select either the numbers of his

choice or the Quick Pick option to be entered into the

A - 66

ee

machine by hand. Retailers and employees are permitted to

operate machine terminals for their own purchases of lot-

tery tickets. The winning numbers are chosen by an air

blowing device which ensures the random selection of white

numbered balls. A ticket showing a winning combination of

numbers entitles the holder to receive money in exchange

for the ticket. (Joint Pretrial Stipulation at 6- 7, PP 13-16).

It is clear, therefore, that some Class III gaming is “not

totally repugnant to” Florida’s public policy, Mashantucket,

913 F.2d at 1031, as the State allows, although with regula-

tions, parimutuel betting and the Florida lottery. The Tribe,

however, argues that the State already permits precisely

those Class III activities in which it wishes to engage.

Specifically, the Tribe points to the State’s alleged permis-

sion of charity casino nights, gambling cruises operated by

foreign flag vessels out of Florida ports, and the use of

computer or machine-assisted gaming in conjunction with

parimutuel betting and the State lottery. The Tribe asserts

that the State’s permission of these activities indicates a

regulatory, rather than a prohibitory, public policy toward

these games, thereby making them mandatory subjects of

negotiation between the Tribe and the State. Before ad-

dressing these arguments, it is helpful to examine Florida’s

public policy toward other types of Class III activities in

order to place the Tribe’s argument in its proper context.

The Florida penal code prohibits now, and has for many

years barred a broad range of gambling activities.

Fla.Stat.Anno. § 849.08 (West 1976) prohibits gambling in

general, and provides: Whosoever plays or engages in any

game at cards, keno, roulette, faro or other game of chance,

at any place, by any device whatever, for money or other

thing of value, shall be guilty of a misdemeanor of the second

degree, punishable as provided in § 775.082 or § 775.083.

Other sections of the Florida penal code prohibit various

activities associated with or attendant to gambling. For

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example, § 849.01 prohibits the keeping of a gambling

house,” § 849.02 makes an individual acting as a “servant,

clerk, agent, or employee” of a person in violation of § 849.01

guilty of the same offense,* § 849.03 prohibits the renting of

a house or room for gambling purposes,” § 849.11 prohibits

plays at games of chance by lot,® § 849.14 prohibits betting

on the outcome of contest of skill,’ and § 849.04 makes it

3 FilaStat.Anno. § 849.01 (West 1976) states: Whoever by himself, his

servant, clerk or agent, or in any other manner has, keeps, exercises or

maintains a gaming table or room, or gaming implements or apparatus, or

house, booth, tent, shelter or other place for the purpose of gaming or

gambling or in any place of which he may directly or indirectly have charge,

control or management, either exclusively or with others, procures, suffers

or permits any person to play for money or other valuable thing at any game

whatever, whether heretofore prohibited or not, shall be guilty of a felony of

the third degree, punishable as provided in § 775.082, or § 775.084.

4 Fla.Stat.Anno. § 849.02 (West 1976) states: Whoever acts as servant,

clerk, agent, or employee of any person in the violation of § 849.01 shall

be punished in the manner and to the extent therein mentioned.

5 Fla.Stat.Anno. § 849.03 (West 1976) states: Whoever, whether as

owner or agent, knowingly rents to another a house, room, booth, tent,

shelter or place for the purpose of gaming shall be punished in the manner

and to the extent mentioned in § 849.01.

6 FlaStat.Anno. § 849.011 (West 1976) states: Whoever sets up, promotes

or plays at any game of chance by lot or with dice, cards, numbers, hazards

or any other gambling device whatever for, or for the disposal of money or

other thing of value or under the pretext of a sale, gift, or delivery thereof, or

for any right, share or interest therein, shall be guilty of a misdemeanor of

the second degree, punishable as provided in § 775.082 or § 775.083.

7 #Fila.Stat.Anno. § 849.14 (West 1976) states: Whoever stakes, bets or

wagers any money or other thing of value upon the result of any trial or

contest of skill, speed or power or endurance of man or beast, or whoever

receives in any manner whatsoever any money or other thing of value

staked, bet or wagered, or offered for the purpose of being staked, bet or

wagered, by or for any other person upon any such result, or whoever

knowingly becomes the custodian or depositary of any money or other

thing of value so staked, bet, or wagered upon any such result, or whoever

aids, or assists, or abets in any manner in any of such acts all of which are

hereby forbidden, shall be guilty of a misdemeanor of the second degree,

punishable as provided in § 775.082 or § 775.083.

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ig Re ery Oa Sey erate

illegal to allow a minor or mentally incompetent individual to

gamble.® Section 849.05 makes the discovery of gambling

devices prima facie evidence that the location where they were

found is kept for the purposes of gambling.® Section 849.07

prohibits the use of billiards tables for gambling purposes.”

In addition, § 849.231(1) prohibits the manufacture, sale,

8 Fila.Stat.Anno. § 849.04 (West Supp.1993) states: Whoever being

the proprietor, owner or keeper of any E.O., keno or pool table, or

billiard table, wheel of fortune, or any other game of chance, kept for

the purpose of betting, willfully and knowingly allows any minor or any

person who is mentally incompetent or under guardianship to play at

such game or to bet on such game of chance or whoever aids or abets

or otherwise encourages such playing or betting of any money or other

valuable thing upon the result of such game of chance by any minor or

any person who is mentally incompetent or under guardianship shall

be guilty of a felony of the third degree, punishable as provided in § 775.082,

§ 775.083, or § 775.084. For the purpose of this section, a “mentally

incompetent person” is one who because of mental illness, mental

retardation, senility, excessive use of drugs or alcohol, or other mental

incapacity is incapable of either managing his property or caring for

himself or both.

9 Fla.Stat.Anno. § 849.05 (West Supp.1993) states: If any of the imple-

ments, devices or apparatus commonly used in games of chance in gam-

bling houses or by gamblers, are found in any house, room, booth, shelter

or other place it shall be prima facie evidence that the said house, room,

booth, shelter or other place where the same are found is kept for the

purpose of gambling.

10 Fila.Stat.Anno. § 849.07 (West 1976) states: If any holder of a license

to operate a billiard or pool table shall permit any person to play billiards

or pool or any other game for money, or any other thing of value, upon such

tables, he shall be deemed guilty of a misdemeanor of the second degree,

punishable as provided in § 775.082 or § 775.083.

A - 69

purchase, or possession of gambling devices,!! § 849.26

provides that all gambling debts or contracts are void,’

ll Fla.Stat.Anno. § 849.231(1) (West 1976) states: Except in instances

when the following described implements or apparatus are being held or

transported by authorized persons for the purpose of destruction, as

hereinafter provided, and except in instances when the following de-

scribed instruments or apparatus are being held, sold, transported, or

manufactured by persons who have registered with the United States

Government pursuant to the provisions of Title 15 of the United States

Code, sections 1171 et seq., as amended, so long as the described imple-

ments or apparatus are not displayed to the general public, sold for use

in Florida, or held or manufactured in contravention of the requirements

of 15 U.S.C. § 1171 et seq., it shall be unlawful for any person to

manufacture, sell, transport, offer for sale, purchase, own, or have in his

possession any roulette wheel or table, faro layout, crap table or layout,

chuck-a-luck wheel, bird cage such as used for gambling, bolita balls,

chips with house markings, or any other device, implement, apparatus,

or paraphernalia ordinarily or commonly used or designed to be used in

the operation of gambling houses or establishments, excepting ordinary

dice and playing cards.

12 Fila.Stat.Anno. § 849.26 states: All promises, agreements, notes,

bills, bonds or other contracts, mortgages or other securities, when the

whole or part of the consideration if for money or other valuable thing

won or lost, laid, staked, betted or wagered in any gambling transaction

whatsoever, regardless of its name or nature, whether heretofore prohib-

ited or not, or for the repayment of money lent or advanced at the time of

a gambling transaction for the purpose of being laid, betted, staked or

wagered, are void and of no effect; provided, that this acts shall not apply

to wagering on pari-mutuels or any gambling transaction expressly

authorized by law.

A-70

:

4

4

3

and § 849.12 provides for the forfeiture to the State of money

and prizes won through illegal gambling.”

13. Fia.Stat.Anno. § 849.12 (West 1976) states: All sums of money and

every other valuable thing drawn and won as a prize, or as a share of a

prize, or as a share, percentage or profit of the principal promoter or

operator, in any lottery, and all money, currency or property of any kind to

be disposed of, or offered to be disposed of, by chance or device in any scheme

or under any pretext by any person, and all sums of money or other thing

of value received by any person by reason of his being the owner or holder

of any ticket or share of a ticket in a lottery, or pretended lottery, or of a

share or right in any such schemes of chance or device and all sums of money

and other thing of value used in the setting up, conducting or operation of

a lottery, and all money or other thing of value at stake, or used or displayed

in or in connection with any illegal gambling shall be forfeited, and may be

recovered by civil proceedings, filed, or by action for money had and

received, to be brought by the Department of Legal Affairs or any state

attorney, or other prosecuting officer, in the circuit courts in the name and

on behalf of the state; the same to be applied when collected as all other

penal forfeitures are disposed of.

A-71

Certain games which would otherwise be Class III games

are exempted from this statutory scheme. These are limited,

however, to games played in residences for less than $10,'4

14 Fla.Stat.Anno. § 849.085 (West Supp.1993) states: (1) Notwith-

standing any other provision of law, it is not a crime for a person to

participate in a game described in this section if such game is con-

ducted strictly in accordance with this section. (2) As used in this

section: (a) “Penny-ante game” means a game or series of games or

poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-

jongg in which the winnings of any player in a single round, hand, or

game do not exceed $10 in value. (b) “Dwelling” means residential

premises owned or rented by a participant in a penny-ante game and

occupied by such participant or the common elements or recreational

areas or a condominium or mobile home park of which a participant in a

penny-ante game is a unit owner, or the facilities of an organization which

is tax exempt under § 501(cX7) of the Internal Revenue Code. The term

“dwelling” also includes a college dormitory room or the common recrea-

tional area of a college dormitory or a publicly owned community center

owned by a municipality or county. (3) A penny-ante game is subject to the

following restrictions: (a) The game must be conducted in a dwelling.

(b) Aperson may not receive any consideration or commission for allowing

a penny-ante game to occur in his dwelling. (c) A person may not directly

or indirectly charge admission or any other fee for participation in the

game. (d) A person may not solicit participants by means of advertising in

any form, advertise the time or place of any penny-ante game, or advertise

the fact that he will be © participant in any penny-ante game. (e) A

penny-ante game may not be conducted in which any participant is under 18

years of age. (4) A debt created or owed as a consequence of any penny-ante

game is not legally enforceable. (5) The conduct of any penny-ante game

within the common elements or recreation area of a condominium of mobile

home park or the conduct of any penny-ante game within the dwelling of an

eligible organization as defined in subsection (2) or within a publicly owned

community center owned by a municipality or county creates no civil

liability for damages arising from the penny-ante game on the part of a

condominium association, mobile home owner’s association, dwelling

owner, or municipality or county or on the part of a unit owner who was

not a participant in the game.

drawings by chance held by charitable organizations, !° and

15 FilaStat.Anno. § 849.0935 (West Supp.1993) states: (1) As used in this

section, the term: (a) “Drawing by chance” or “drawing” means an enterprise

in which, from the entries submitted by the public to the operator of the

drawing, one or more entries are selected by chance to win a prize. The term

“drawing” does not include those enterprises commonly known as “matching,”

“instant winner,” or “preselected sweepstakes,” which involve the distribution

of winning numbers, previously designated as such, to the public. (b) “Operator”

means an organization qualified under 26 U.S.C. § 501(cX3), and its agents,

officers, or employees, which promotes, operates, or conducts a drawing by

chance. (2) The provision of § 849.09 shall not be construed to prohibit an

organization qualified under 26 U.S.C. § 506(cX3) from conducting drawings

by chance, provided the operator has complied with all applicable provisions

of chapter 496. (3) All brochures, advertisements, notices, tickets, or entry

blanks used in connection with a drawing by chance shall conspicuously

disclose: (a) The rules governing the conduct and operation of the drawing. (b)

The full name of the organization or operator, and its principal place of

business. (c) The source of funds used to award cash prizes or to purchase

prizes. (d) The date, hour, and place where the winner will be chosen, unless

the brochures, advertisements, notices, tickets, or entry blanks are not offered

to the public more than 3 days prior to the drawing. (4) It is unlawful for any

operator who, pursuant to the authority granted by this section, promotes,

operates, or conducts a drawing by chance: (a) To design, engage in, promote,

or conduct any drawing in which the winner is predetermined by means of

matching, instant win, or preselected sweepstakes or otherwise or in which

the selection of the winners is in any way rigged; (b) To require an entry fee,

payment, proof of purchase, or contribution as a condition of entering the

drawing or of being selected to win a prize; (c) To arbitrarily remove, disqualify,

disallow, or reject any entry or to discriminate in any manner between

entrants who gave contributions to the operator and those who did not give

such contributions; (d) To fail to promptly notify, at the address set forth on

the entry blank, any person whose entry is selected to win, of the fact that he

has won; (e) To fail to award all prizes offered in the manner and at the time

stated; and (f) To print, publish, or circulate literature or advertising material

used in connection with the drawing which is false, deceptive, or misleading.

(5) Any operator who engages in any act or practice in violation of this section

is guilty of a misdemeanor of the second degree, punishable as provided in §

775.082 or § 775.083. However, any operator or other person who sells or offers

for sale in this state a ticket or entry blank for a raffle or other drawing by

chance, without complying with the requirements of paragraph (3d), is guilty

of a misdemeanor of the second degree, punishable by fine only as provided

in § 775.083. (6) This section does not apply to the state lottery operated

pursuant to chapter 24.

promotions in connection with the sale of consumer goods. ”

These wide-ranging statutory prohibitions are not the

only evidence of the State’s public policy toward gambling.

The State’s voters have twice rejected referenda which

would have legalized casino gambling. In 1986, the most

recent referendum, the Florida electorate approved the

State lottery by a two-to-one margin but rejected casino

gambling by the same margin. (Defendants’ Motion for

Summary Judgment, Ex. # 3). In addition, the Florida

Legislature has failed to pass several bills over the past

few years which would have permitted charity casino

night activities. (Joint Pretrial Stipulation at 9, P 20).

As noted above, the permission of parimutuel betting and

the operation of the State lottery indicates that some Class III

activities are not repugnant to the State. However, both the

Legislature and the State electorate have evinced their

unwillingness to allow all but a few forms of Class III

16 Fla.Stat-Anno. § 849.094 (West Supp.1993) states in pertinent part:

(1) As used in this section, the term: (a) “Game promotion” means, but is not

limited to, a contest, game of chance, or gift enterprise, conducted within or

throughout the state and other states in connection with the sale of consumer

products or services, and in which the elements of chance and prize are

present. However, “game promotion” shall not be construed to apply to bingo

games conducted pursuant to § 849.0931. (b) “Operator” means any person,

firm, corporation, or association or agent or employee thereof who promotes,

operates, or conducts a game promotion, except any charitable nonprofit

organization. (2) It is unlawful for any operator: (a) Tb design, engage in,

promote, or conduct such a game promotion, in connection with the promotion

or sale of consumer products or services, wherein the winner may be prede-

termined or the game may be manipulated or rigged so as to: 1. Allocate a

winning game or any portion thereof to certain lessees, agents, or franchises;

or 2. Allocate a winning game or any part thereof to a particular period of the

game promotion or to a particular geographic area; (b) Arbitrarily to remove,

disqualify, disallow, or reject any entry; (c) To fail to award prizes offered;

(d) To print, publish, or circulate literature or advertising material used in

connection with such game promotions which is false, deceptive, or mislead-

ing; or (e) To require an entry fee, payment, or proof of purchase as a condition

of entering a game promotion.

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activities and those which are allowed are subject to strict

regulation. With this in mind, we turn now to the Tribe’s

argument that the State in fact permits precisely those Class

III activities about which the State refused to negotiate.

The Tribe first argues that the failure to prosecute casino

nights held by some Florida charities reflects the State’s

permission of casino gambling. The following facts are not

in dispute. Over the past three years, certain Florida chari-

ties have conducted casino or Las Vegas nights. These events

include the use of blackjack tables, roulette wheels, crap

tables, and other casino-like equipment. The events’ patrons

make a contribution to the sponsoring charitable organiza-

tion and are given casino-like chips to be used to play the

available casino-style games. At the end of the evening, the

players may then use their chips to purchase or bid on gifts

which have been donated to or purchased by the charity.

(Joint Pretrial Stipulation at 8, P 17). The Tribe submitted

a list under seal of twenty-nine casino nights held during

the period 1990-1992. Of these events, fifteen were held in

Broward County, four in Dade County, six in Palm Beach

County, and one in both Collier and Martin Counties.!” On

March 23, 1993, the Tribe submitted a list of four more such

events held in Broward County.

Additionally, The Florida Attorney General’s office has

had ten to fifteen calls about charitable casino nights within

the past four years, asking about events where there would

be casino-like gambling. The Attorney General’s ffice re-

ceived information regarding names of firms offering to

sponsor these events and passed that information to the

appropriate local states’ attorneys offices. The Attorney

General’s office never learned if any action was taken at the

local level and did not follow up to determine if anything

illegal was discovered. (Joint Pretrial Stipulation at 8, P 18).

On July 22, 1991, the Florida Attorney General wrote to

each of the twenty State Attorneys informing them of the

Tribe’s compact request and stating: [The Tribe] may also

attempt to establish full fledged gambling casinos. The

Seminoles justify these proposed activities in part on the

17 ‘Tboobtain this list, the Tribe initially filed a motion to compel, and later

a renewed motion to compel, against the promoter of these events. The Court

referred these motions to United States Magistrate Judge Ted E. Bandstra

to resolve. On November 6, 1992, Magistrate Judge Bandstra granted the

Tribe’s renewed motior to compel. Subsequently, the Tribe and the events’

promoter reached an agreement whereby the list of the events was filed under

seal with the Court on November 27, 1992, pursuant to the Joint Stipulation

of Resolution of Seminole Tribe of Florida’s Motion to Compel and Plaintiff’s

Renewed Motion to Compel Testimony and Production from [the Promoter]

and Withdrawal of Motion. In the Tribe’s Notice of Filing Under Seal a List

of 29 Charitable Las Vegas Night Events accompanying the actual list, the

Tribe indicated that in his order of November 6, 1992, Magistrate Judge

Bandstra’s found that the promoter faced no threat of prosecution based on

the disclosure of the list of casino night events. We assume that the Tribe

points this out to support its contention that a State Attorney’s failure to

prosecute casino night events constitutes permission of casino gambling. The

promoter filed an objection to the characterization of Magistrate Judge

Bandstra’s order. We specifically disregard any suggestions in the Tribe’s

Notice, and take notice only of the contents of the list filed under seal.

A - 76

fact that “casino nights” or “Las Vegas nights” are openly

conducted by various charitable and non-profit organiza-

tions in Florida despite the clear prohibition against such

activity outlined in Chapter 849, Florida Statutes (1989). Of

great concern to me is the perception among some members

of the law enforcement community, including prosecutors,

that Casino Night or Las Vegas Night activities are lawful.

This is simply not true. The people of Florida have repeat-

edly rebuffed attempts to legitimize casino type gambling.

On at least two occasions prior to the State Attorney

General’s letter, State Attorneys had written letters provid-

ing opinions that permit casino or Las Vegas nights under

certain circumstances. The above quoted letter from the

Attorney General was prompted by one of those State Attorney

letters. The Attorney General received responses from three

other State Attorneys agreeing with and supporting the

letter’s statement that casino night activities are illegal.

(Joint Pretrial Stipulation at 8, P 18). The Attorney General’s

office, both present and past, has consistently taken the

position, through formal and informal opinions, that casino

night activities are illegal. (Joint Pretrial Stipulation at 8,

P 18.1). The parties have stipulated that the casino night

activities described above are not generally prosecuted due

to budgetary and manpower constraints and the exercise of

prosecutorial discretion on the part of state attorneys. (Joint

Pretrial Stipulation, P 21).

The Tribe has argued that the failure to prosecute chari-

table casino nights by local state attorneys is analogous to

the situation in Mashantucket supra. We disagree. The

Tribe is correct that the Mashantucket case centered on the

operation of casino night activities by charitable organiza-

tions in Connecticut. However, in that case, Connecticut,

unlike Florida, officially sanctioned the operation of casino

nights by way of statute. In contrast, the Tribe relies only

on the discretionary decision not to prosecute sporadic

casino night activities to evince the State’s permission of

A-77

casino gambling activities, notwithstanding the State legis-

lature’s clear prohibitory declaration in the promulgation of

its penal code.

The prosecutorial discretion involved in the enforcement

of crimes is certainly one component in a state’s public

policy. The capacity to discern public policy, however, from

the discretionary exercise of prosecutorial power is exceed-

ingly difficult. The undisputed facts evidencing a strong

public policy against casino-type activities cannot be sub-

stantially undermined by occasional and sporadic decisions

made on a local level not to prosecute a discrete casino night

conducted by a charity, due to manpower, financial con-

straints, and higher criminal priorities. First, the State

Attorney General has emphasized repeatedly and over ex-

tended periods of time, in formal and informal opinions, that

these activities remain illegal,’ and the Florida penal code

is plain and unambiguous on its face prohibiting these

activities. Indeed, the parties have stipulated that the

“Attorney General’s office, both present and past, has

18 For example, in response to the question of whether a “Law Vegas”

party staged by a fraternal organization for the benefit of a crippled

children’s home was legal, the State Attorney General responded: The

gambling laws make no exceptions in favor of fraternal orders of persons

who participate in gambling schemes operated by such orders, even when

the ultimate beneficiary is a worthy one. Said laws bear upon everybody

equally and take no cognizance of who is to benefit from the operation of

gambling schemes. Therefore your question is answered in the negative

because in my opinion the described “Las Vegas” party would violate the

criminal laws of Florida. Op.Att’y.Gen. 056-20 (1956). (Exh. I, Defendants’

Motion for Summary Judgment). As noted above, the State Attorney

General recently reaffirmed this position in a letter sent out to all State

Attorneys. This letter, written in reaction to two opinions from local state

attorneys that such activities were legal, states: Of great concern to me is

the perception among some members of the law enforcement community,

including prosecutors, that Casino Night or Las Vegas Night activities are

lawful. This is simply not true. The people of Florida have repeatedly

rebuffed attempts to legitimize casino type gambling. (Joint Pretrial

Stipulation at 9, P 18).

A-78

Ayer Tee htecta

consistently taken the position through formal and informal

opinions that casino night activities are illegal.” (Joint

Pretrial Stipulation at p. 9, P 18.1).

Second, the State electorate and its representatives have

continuously rejected attempts to legalize casino gambling.

(Joint Pretrial Stipulation at 9, P 20). For example, the

State’s voters twice rejected referenda to legalize casino

gambling. Most recently, in 1986, a proposed amendment to

the Florida Constitution to allow casino gambling in hotels

of 500 rooms or more was defeated by a two-to-one margin.

(Defendant’s Motion to Summary Judgment, Ex. 9). In ad-

dition, charity casino nights have also been the subject of

several bills in the Florida legislature, and none of the bills

have passed. (Joint Pretrial Stipulation at 9, P 20).

Finally, desuetude has been rejected as a general theory

of legislation by the Florida Supreme Court. In State v.

Egan, 287 So.2d 1 (Fla.1973), the defendant was charged

with the common-law offense of nonfeasance. The defendant

was indicted pursuant to a Florida statute which explicitly

adopted English common law in relation to crimes, with

certain exceptions, as the law of the State. The trial court

ruled that the statute in question was unconstitutional on

the grounds of vagueness and obsolescence, and the Florida

Supreme Court reversed. It is the Florida Supreme Court’s

discussion of the argument regarding the obsolescence of the

state statute which is relevant to the instant case. In reject-

ing the argument that the infrequent use of common law

crimes to prosecute individuals had caused those crimes to

cease to exist, the Florida Supreme Court observed: Our

answer to this line of argument is that a legislative enact-

ment may be repewled only by further legislation and not by

time or changed conditions.... Simply stated, the general

rule is that a statute is not repealed by nonuse. The argu-

ment set forth in the order of the lower court may be a cogent

one when addressed to the legislature, yet courts of justice

A- 79

cannot and do not recognize such a policy as a basis for their

decision. 287 So.2d at 7. The Tribe’s argument that the

failure of local prosecutors to prioritize and prosecute spo-

radic and apparently infrequent casino night activities con-

verts an activity expressly prohibited by the penal code of

the State into one which is permitted by the public policy of

the State resembles the argument presented to and rejected

by the Florida Supreme Court.

The record before the Court consists of a total of some

thirty-three events held in four counties over a three year

period. In a state with sixty-seven counties and more than

thirteen million inhabitants, we do not believe that this

evinces a public policy permitting casino gambling, espe-

cially when contrasted with the State’s unambiguous penal

statutes, the consistent prohibitory opinions of the State

Attorney General over time, and the repeated votes of the

State’s electorate and its legislators prohibiting and reject-

ing casino gambling. The most that can be said regarding

charitable casino night activities in Florida is that some

State Attorneys in some counties on some occasions have

chosen to prosecute other crimes as having higher priority,

rather than the sporadic casino night event, based on the

resources available to them. Based on the record before us,

and viewing the evidence in the light most favorable to the

Tribe, we do not believe that the sporadic decision to decline

to prosecute the occasional casino night in a handful of

Florida counties can be said to constitute the State’s permis-

sion of casino gambling. The Florida Legislature has plainly

pronounced the public policy of the State, the people of the

State have recently spoken twice, and the State Attorney

Generals have repeatedly and consistently pronounced in

formal and informal opinions that such casino night activi-

ties are illegal. The overwhelming weight of the evidence

presented does not support the Tribe’s position.

a ak LAO MC YC ts ie ME SEA Ta NUN Vie ay ENT ONT EERE ives RLS Rana ial bens st.

2 iil nag

The Tribe also points to the fact that cruise ships docked

in Florida possess gambling devices and embark passengers

from Florida ports for the purpose of providing casino gam-

ing for those passengers and that this too evinces a public

policy toward casino gambling which is regulatory, rather

than prohibitory, in nature. Several of these ships provide

only day cruises with no destination other than the high seas

for gambling purposes. It is these cruises on which the Tribe

grounds its argument. While Fla.Stat.Anno. § 849.231(1)

(West 1976) prohibits the possession of gambling parapher-

nalia, the ships at issue are expressly exempted from the

prohibition by Fla.Stat.Anno. § 849.231(3) (West

Supp.1993). (Joint Pretrial Stipulation at 9, P 19). However,

notably no gambling occurs nor is it permitted within the

territorial bounds of the State.

The Tribe argues nevertheless that the State’s collection

of a tax on these cruises manifests a public policy of permit-

ting casino gambling. The State collects the tax pursuant to

Fla.Stat.Anno. § 212.02(1) (West Supp.1993). That statute

provides in pertinent part: The term “admissions” means

and includes the net sum of money after deduction of any

federal taxes for admitting a person or vehicle or persons to

any place of amusement, sport, or recreation or for the

privilege of entering or staying in any place of amusement,

sport, or recreation, including, but not limited to, theaters,

outdoor theaters, shows, exhibitions, games, races, or any

place where charge is made by way of sale of tickets, gate

charges, seat charges, greens fees, participation fees, en-

trance fees, or other fees or receipts of anything of value

measured on an admission or entrance or length of stay or

seat box accommodations in any place where there is any

exhibition, amusement, sport, or recreation... Section

212.04 provides, in pertinent part: (1Xa) It is hereby de-

clared to be the legislative intent that every person is

exercising a taxable privilege who sells or receives anything

of value by way of admissions. (b) For the exercise of such

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privilege, a tax is levied at the rate of 6 per cent of sales

price, or the actual value received from, such admissions,

which 6 per cent shall be added to and collected with all such

admissions from the purchaser thereof... Thus, the State

collects a tax on these cruises pursuant to its broadly appli-

cable admissions tax, a tax which applies to the many forms

of amusement, sport, or recreation based in the State. The

admissions tax is charged to customers of these cruises

because these excursion tours are not considered “a trans-

portation service.” (Plaintiff's Supplemental Motion for

Summary Judgment at 6). It should be observed, however,

that the tax is not leveled at the gambling enterprise per se,

i.e., the amount of tax collected is wholly independent of the

amount of gambling, if any, done on the high seas by an

individual passenger. Indeed, a passenger who does not

participate in the gambling activities offered onboard pays

the same admissions tax as the passenger who does partici-

pate. Moreover, the Tribe’s interpretation of this tax in

relation to the IGRA’s requirements is overly broad. Each

case interpreting the IGRA which found state permission of

a Class III gaming activity presented some form of explicit

legislative approval of the activity within the state’s terri-

tory. The Tribe’s theory would seem to place an affirmative

duty on a state to eradicate means by which its citizens could

legally gamble in other jurisdictions in order to demonstrate

a public policy prohibiting Class III activities.1® For the

same reason, the Tribe’s argument that the State’s contin-

ued allowance of these cruises to use its ports must fail,

19 Ahypothetical may be illustrative. Imagine that an individual who

owns casinos in New Jersey operated an airline with scheduled flights

from Miami to Atlantic City for the sole purpose of bringing players to his

halls. Passengers who bought their airplane tickets in Florida would pay

the applicable sales tax to the State. Under the Tribe’s theory, this would

constitute the State’s permission of gambling under the IGRA, a conclu-

sion which is supported by neither the language of the IGRA nor the cases

interpreting that statute.

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especially in light of the fact that no gambling occurs within

the State’s boundaries. Thus, even when viewing the evi-

dence before the Court in the light most favorable to the

Tribe, we conclude that these cruises by foreign flag vessels

cannot be fairly said to constitute permission of casino

gambling by the State within the State and within the ambit

of the IGRA.

Finally, we turn to the Tribe’s argument that the State

permits machine and computer-assisted gaming. The

State’s position is that Fla.Stat.Anno. §§ 849.15 and 849.16

(West & Supp.1993) outlaw certain machines commonly

known as slot machines. Therefore, this type of machine and

computer-assisted gaming need not by included in the Tribe-

State compact negotiations. The Tribe asserts that the ma-

chines used at some parimutuel facilities and in the

operation of the Florida Lottery fall within the definition of

Fla.Stat.Anno. § 849.16 (West Supp.1993), and therefore

the State “permits such gaming for any purpose by any

person, organization or entity” within the meaning of 25

U.S.C. § 2710(dX 1XB). The relevant statutes state in perti-

nent part: 849.16 machines or devices which come within in

provisions of law defined. — (1) Any machine or device is a

slot machine or device within the provisions of this chapter

if it is one that is adapted for use in such a way that, as a

result of the insertion of any piece of money, coin, or other

object, such machine or device is caused to operate or may

be operated and if the user, by reason of any element of

chance or of any other outcome of such operation unpre-

dictable to him, may: (a) Receive or become entitled to

receive any piece of money, credit, allowance, or thing of

value, or any check, slug, token, or memorandum, whether

of value or otherwise, which may be exchanged for any

money, credit, allowance, or thing of value or which may be

given in trade;...849.15 Manufacture, sale, possession, etc.,

of coin-operated devices prohibited. — It is unlawful: (1) To

manufacture, own, store, keep, possess, sell, rent, lease, let

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on shares, lend or give away, transport, or expose for sale or

lease, or to offer to sell, rent, lease, let on shares, lend or give

away, or permit the operation of, or for any person to permit

to be placed, maintained, or used or kept in any room, space,

or building owned, leased or occupie

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