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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994

## Text

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.

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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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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.

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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

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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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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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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

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machine by hand. Retailers and employees are permitted to
operate machine terminals for their own purchases of lot-
tery tickets

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0201%3A2. Public record. Not legal advice.