Petition for Writ of Certiorari — Ysleta del Sur Pueblo v. Texas

Supreme Court, u.s.

FILED

No.8 91608 apr5-2000

tt Ur THE CLERK

IN THE

Supreme Court of the Anited States

YSLETA DEL SUR PUEBLO,

Petitioner,

aS

STATE OF TEXAS,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS M. DIAMOND, JR.

DIAMOND RASH GORDON &

JACKSON, P.C.

300 East Main Drive, Seventh Floor

El Paso, Texas 79901

(915) 533-2277

Attomeys for Ysleta del Sur Pueblo

| rena vee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Did the States, by adopting the Fourteenth Amendment, waive

their Eleventh Amendment immunity by consenting under the

“plan of Convention” to suits based on the takings clause of

the Fifth Amendment?

(i)

IN THE

Supreme Court of the United States

No.

eS

YSLETA DEL SUR PUEBLO,

Petitioner,

Vv.

STATE OF TEXAS,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Comes now Ysleta del Sur Pueblo, a federally recognized

Indian tribe, seeking certiorari to review the opinion of the

United States Court of Appeals for the Fifth Circuit, and

would respectfully show unto the honorable Court as follows:

STATEMENT OF JURISDICTION

The opinion of the Fifth Circuit was entered on J anuary 6,

2000, Appendix at Sa. The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1254(1).

7

OPINIONS BELOW

Neither the Order of the United States District Court for the

Western District of Texas dismissing the case on jurisdic-

tional grounds, nor the opinion of the Court of Appeals for the

Fifth Circuit affirming dismissal, Appendix at 5a, are re-

ported.

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V: [No] Private property shall be taken

for public use, without just compensation.

U.S. Const. amend. XI: 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 another State, or by Citizens or Subjects of a For-

eign State.

U.S. Const. amend. XIV § 1: [No] State [shall] deprive any

person of life, liberty, or property, without due process of

law[.]}

STATEMENT OF THE CASE

The Pueblo seeks a money judgment against the State of

Texas for a Fifth Amendment taking by the State of the

Pueblo’s lands at a time subsequent to the adoption of the

Fourteenth Amendment. The Pueblo argued that the remedy

provided by the Constitution for a Fifth Amendment taking is

self-executing, First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 315 n. 9 (1987); that

sovereign immunity is no bar to an action for damages

brought under the takings clause of the Fifth Amendment,

United States v. Testan, 424 U.S. 392, 400-401 (1976); and

that the Fourteenth Amendment incorporates the Fifth

Amendment's taking clause and applies it against the Stutes,

Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S. 155

(1980). The Court of Appeals for the Fifth Circuit affirmed

ce meat TOLLS

3

the district court's dismissal of the case based on the Eleventh

Amendment.

ARGUMENT

This is a property rights case. Federalism is implicated

only to this extent: has Eleventh Amendment jurisprudence

evolved to the point that the takings clause of the Fifth

Amendment is no longer applicable to States? Has this Court,

in effect, granted States a license to retain property regardless

of the manner in which it was acquired, with no duty to pro-

vide compensation for a public taking? Florida Department

of State v. Treasure Salvors, Inc., 458 U.S. 670, 696 (1982).

The decision in Hans yv. Louisiana, 134 U.S. 1 (1890),

established modern Eleventh Amendment jurisprudence by

refusing to construe the amendment in a literal fashion and,

out of deference for state sovereignty, extending its prohibi-

tion to a suit for the specific performance of a contract

brought against a state by its own citizen. In the same opin-

ion, however, the Supreme Court addressed the issue that has

constantly bedeviled application of the Eleventh Amendment

bar: what to do with thieving States. The Court added an

important caveat to its decision:

While a state cannot be compelled by suit to

perform its contracts, any attempt on its part to

violate property or rights acquired under its

contracts may be judicially resisted and any

law impairing the obligation of contracts un-

der which such property or rights are held is

void and powerless to affect their enjoyment.

Hans, at 20-21. Until recently, Ex parte Young officer-suits

were used to judicially resist such deprivation of property

4

rights.' Several Courts of Appeals have held that the Elev-

enth Amendment bars officer-suits to recover by characteriz-

ing the requested relief as retroactive, not prospective.

In Ysleta del Sur Pueblo v. Laney, 199 F.3d 281 (Sth Cir.

2000), the Pueblo brought an officer-suit to recover real prop- |

erty based on the same factual allegations that form its Fifth

Amendment taking claim in this action. The Court, character-

izing the relief as retroactive, held that the Eleventh Amend-

ment barred the suit.> See also John G. and Marie Stella

Kenedy Memorial Foundation v. Mauro, 21 F.3d 667, 672

(Sth Cir.), cert. denied, 513 U.S. 1016 (1994); Fitzgerald v.

Unidentified Wrecked and Abandoned Vessel, 866 F.2d 16

(1st Cir. 1989); Toledo, Peoria & Western R.R. vy. Illinois De- |

partment of Transportation, 744 F.2d 1296 (7th Cir. 1994),

cert. denied, 470 U.S. 1051 (1985). This Court held Jdaho v.

Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) that the

Eleventh Amendment barred those officer-suits to recover

real property which implicate special sovereignty issues.

In the absence of an officer-suit to recover property taken

by the State in violation of the takings clause of the Fifth

Amendment, the Pueblo is denied all relief for this serious

violation of its Constitutional rights unless it can bring this

action for a money judgment against the State. Several fed-

eral decisions indicate that the Eleventh Amendment bars

such an action. In every case, however, the courts possessed

some assurance that no such taking occurred. In John G. and |

Marie Stella Kenedy Memorial Foundation v. Mauro, 21 F.3d |

667, 668 (Sth Cir.), cert. denied, 513 U.S. 1016 (1994), the |

' Officer-suits cannot be used to compel a state to perform its con-

tracts. See North Carolina v. Temple, 134 U.S. 22 (1890) (decided the

same day as Hans).

> The Laney case is subject to a petition for certiorari filed contempo-

raneously with this petition.

eee

5

district court remanded plaintiff s claims under state common

law and the Texas Constitution. The availability of a suit for

compensation defeats a Fifth Amendment takings claim. See

Larson v. Domestic & Foreign Commerce Corporation, 337

U.S. 682, 703 n. 27 (1949). The court stated in McMurtray v.

Holladay, 11 F.3d 499, 504 (Sth Cir. 1993), ““we do not con-

clude” that the state act in question constituted a Fifth

Amendment taking. In Harrison v. Hickel, 6 F.3d 1347, 1353

(9th Cir. 1993), the court noted that plaintiffs have not dem-

onstrated that they do not have a suitable forum for their

takings claim. In Robinson v. Georgia Department of Trans-

portation, 966 F.2d 637 (11th Cir. 1992), the court cited two

State court proceedings involving the plaintiffs which respec-

tively held (1) plaintiffs could not appeal a condemnation

award to others where they failed to intervene in the condem-

nation proceeding of which they had notice, and (2) statute of

limitations barred takings claim in state court. In Southern

Pacific Transportation Co. v. City of Los Angeles, 922 F.2d

498 (9th Cir. 1990), the court dismissed all takings claims as

unripe; the court held that the Eleventh Amendment barred

the plaintiff's other claims against the state. The same oc-

curred in Suarez-Cestero v. Pagan-Rosa, 996 F. Supp. 133,

141 (D P.R. 1998), in which the taking claims were dismissed

as premature.

No such assurance exists in this case. It is a Fifth Amend-

ment takings case and, for the first time, a federal court of

appeals has held that the Eleventh Amendment bars such

suits. Unless this Court grants this petition and reverses the

decision of the lower courts, henceforth, “all property rights

exist only at the whim of the sovereign.” Treasure Salvors,

458 U.S. at 696.

CONCLUSION

The Pueblo respectfully requests that this Court grant its

petition for a writ of certiorari.

6

Respectfully submitted,

THOMAS M. DIAMOND, JR.

DIAMOND RASH GORDON &

JACKSON, P.C.

300 East Main Drive, Seventh Floor

E] Paso, Texas 79901

(915) 533-2277

Attorneys for Ysleta del Sur Pueblo

APPENDICES

la

APPENDIX A

[Filed Jan 6, 2000]

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50656

Summary Calendar

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellant,

V;

STATE OF TEXAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-99-CV-98-Pp

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:!

Ysleta del Sur Pueblo ( Pueblo”), an Indian Tribe, appeals the

dismissal of its claims pursuant to F.R.C.P 12(b)(1). Because the

district court erroneously granted dismissal with prejudice, we

’ Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion

should not be published and is not precedent except under the limited cir-

cumstances set forth in 5th Cir. R. 47.5.4.

2a

modify the dismissal to render it without prejudice and affirm as

modified. i

A state may be subject to suit in federal court under two cir-

cumstances. One is waiver of immunity and the other is con-

gressional abrogation of 11th Amendment immunity. Florida

Prepaid Postsecondary Education Expense Board y. College

Savings Bank, (Florida Prepaid I) 119 S. Ct. 2199, 2204-5

(1999). It is not contended that the State of Texas expressly con-

sented to this lawsuit, and implied waiver under Parden v. Ter-

minal Railway of Alabama State Docks Dept., 377 U.S. 184, 84

S. Ct 1207 (1964) has been overruled. College Savings Bank v.

Florida Prepaid Postsecondary Education Expense Board,

(Florida Prepaid II) 119 S. Ct. 2219, 2228 (1999), Because

there is no viable argument for express or implied waiver,

Pueblo must establish abrogation under Seminole Tribe of Flor-

ida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996).

Two tests must be satisfied for congressional abrogation of

11th Amendment immunity. The first is that Congress must un-

equivocally express its intent to abrogate State immunity. Semi-

nole Tribe, 116 S. Ct. at 1114. The second is that the abrogation

must be pursuant to a valid exercise of constitutional power. Jd.

Pueblo argues that the Indian Non-Intercourse Act (“INA”)

abrogates State immunity. The act as amended in 1834 and now

codified at 25 U.S.C. § 177, provides:

No purchase, grant, lease, or other conveyance of lands,

or any title or claim thereto, from any Indian nation or

tribe of Indians, shall be of any validity in law or equity,

unless the same be made by treaty or convention entered

into pursuant to the Constitution. Every person who, not

being employed under the authority of the United States,

attempts to negotiate such treaty or convention, directly

or indirectly, or to treat with any such nation or tribe of

Indians for the title or purchase of any lands by them

held or claimed, is liable to a penalty of $1,000. The

3a

agent of any State who may be present at any treaty held ©

with Indians under the authority of the United States, in

the presence and with the approbation of the commis-

sioner of the United States appointed to hold the same,

may. however, propose to, and adjust with, the Indians

the compensation to be made for their claim to lands

within such State, which shall be extinguished by treaty.

Neither this language nor the language of the prior versions

meets the “unequivocally expressed intent” test. Even if a less

stringent test were applied, this statute does not address state

immunity at all and provides no basis to find congressional in-

tent to abrogate immunity.

Furthermore, the INA was not passed under any constitutional

power permitting abrogation of | 1th Amendment immunity. Ar-

ticle I powers are not a valid source of congressional abrogation

authority. Seminole Tribe, 116 S. Ct. 1132; Florida Prepaid I,

119 S. Ct. at 2205. Neither the Commerce Clause, the Indian

Commerce Clause nor the War Powers Clause provides abroga-

tion authority. Congress did not pass the INA pursuant to the

14th Amendment because the last amendment of the INA oc-

curred before adoption of the 14th Amendment. Even if such a

claim were credible, Congress must identify conduct transgress-

ing the 14th Amendment's substantive provisions, and must

tailor its legislative scheme to remedying or preventing such

conduct. Florida Prepaid I, 119 S. Ct. at 2207.

Pueblo alternatively contends that the self-executing remedy

of the takings clause of the Sth Amendment provides independ-

ent abrogation by virtue of incorporation into the 14th Amend-

ment. The 14th Amendment only provides Congress with power

to enforce the Amendment through legislation, which provides

the basis for congressional abrogation. Remedies against states

under the 14th Amendment are created by legislation, not by

other constitutional amendments.

4a

This court has rejected Sth Amendment takings claims on

11th Amendment immunty grounds in two prior cases. John G.

and Marie Stella Kenedy Memorial Foundation. Mauro, 21

F.3d 667, 674 (Sth Cir. 1993); McMurtray v. Holladay, 11 F.3d

499, 505 (Sth Cir. 1993). First Evangelical Lutheran Church v.

County of Los Angeles, 107 S. Ct. 2378, 2386 (1987), was a

state court action brought against a county in which the | Ith

Amendment was completely inapplicable, therefore it has no

precedental effect on our application of state immunity in fed-

eral court.

The district court erroneously dismissed with prejudice for

lack of jurisdiction. F.R.C.P. 41(b). Alden v. Maine, 119 S. Ct.

2240 (1999) may bar a state court action; However this question

was never briefed, argued or decided in the district court and we

will not consider matters raised for the first time on appeal. The

only issue decided by the district court is that the 1 1th Amend-

ment bars this claim against the State of Texas in federal court,

which has no effect on claims Pueblo may bring in state court.

Accordingly, the judgment of the district court is modified to be

dismissal without prejudice. :

AFFIRMED AS MODIFIED.

Sa

[Filed Jan. 6, 2000]

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50656

Summary Calendar

D.C. DOCKET No. EP-99-CV-98-P

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellant,

V.

STATE OF TEXAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas, El Paso.

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal and

was taken under submission on the briefs on file.

ON CONSIDERATION WHEREOF, it is now here ordered

and adjudged by this Court that the judgment of the District

Court in this cause is affirmed as modified.

6a

IT IS FURTHER ORDERED that plaintiff-appellant pay to

defendant-appellee the costs on appeal to be taxed by the Clerk

of this Court.

Issued as Mandate: Jan. 28, 2000

7a

APPENDIX B

[Filed Jul. 2, 1999]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

Civil No. EP-99-CA-98-EP

YSLETA DEL SUR PUEBLO,

Plaintiff,

Vv.

STATE OF TEXAS,

Defendant.

ORDER

On this date the Court considered the defendant's motion to

dismiss, filed May 5, 1999, the plaintiff's response, filed May

17, 1999, and the defendant's reply, filed June 4, 1999 in the

above-styled and numbered cause. After careful consideration

the Court is of the opinion that the motion should be granted.

FACTUAL BACKGROUND

An Indian Tribe, Ysleta del Sur Pueblo, has sued the State of

Texas for four billion dollars ($4,000,000,000), claiming an un-

constitutional taking of the land by the State. The Tribe has in-

voked this court's jurisdiction pursuant to 28 U.S.C. §§1331 and

1362; the Indian Non-Intercourse Act, codified at 25 U.S.C.

$177; the Fifth and the Fourteenth Amendments; the Treaty of

Guadalupe Hidalgo, 9 Stat. 922; and federal Indian common

law. The State has filed a motion seeking to dismiss this action

pursuant to Rules 12(b) (1) and 12(b) (6). The State claims that

8a

under the Eleventh Amendment it is immune from suit by its

own Citizens in the federal court.

ANALYSIS

The Eleventh Amendment state: “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 Supreme Court,

in Hans v, Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842

(1890), broadened the States’ Eleventh Amendment immunity

in federal courts and interpreted the Amendment in such a way

as to also make States immune from federal suits by their own

citizens. However, the immunity of the states may be circum-

vented in certain instances. In the present case, the immunity

may be averted if either the State has consented to the suit or if

Congress, in express and unequivocal language and under

proper constitutional authority, has abrogated the State's Elev-

enth Amendment immunity. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 54-56, 116 S.Ct. 1114, 134 L.Ed.2d 252

(1996). Since the State of Texas has clearly not consented to the

suit, the only exception that may apply in this case is the abroga-

tion exception. We will now analyze whether Congress has ab-

rogated Texas’ Eleventh Amendment immunity either in the In-

dian Non-Intercourse Act, or under the Fifth and the Fourteenth

Amendments of the Constitution.

In Delimuth v. Muth, 493 U.S. 223, 109 S.Ct. 2397, 105

L.Ed.2d 181 (1989), the Supreme Court set forth a standard for

congressional abrogation of Eleventh Amendment immunity.

The court explained that Congress” intent to abrogate must be

“unmistakably clear’’ and plainly stated “in the language of the

statute.” Jd. at 227-228. The Tribe is asking us to extend our

jurisdiction over this case because the Indian Non-Intercourse

Act involves a federal question and under §1331 it must be

heard in a federal court. However, as the State contends, the

Eleventh Amendment gives Texas immunity from suit by its

9a

Own citizens in the federal court; therefore, unless Congress has

abrogated the State's immunity by clearly stating its intent in the

language of the Indian Non-Intercourse Act, the Tribe may not

sue the State in federal court. /d.

A study of the text of the Indian Non-Intercourse Act (“INA”)

reveals that Congress did not abrogate the State’s immunity in

the Act. There is no language in the Act which expressly, or

even impliedly, abrogates the State’s Eleventh Amendment im-

munity. See Indian Trade and Intercourse Acts, Act of June 30,

1834, ch. 161, §12, 4 Stat. 730, codified at 25 U.S.C. §177.

The Tribe contends that since the States’ immunity from suit

by their own citizens was not inferred from the Eleventh

Amendment until about 2 hundred years after the Indian Non-

Intercourse Act was enacted, Congress could not have foreseen

this later interpretation of the Eleventh Amendment and thus did

not provide for the abrogation of immunity in the language of

the statute. Hence, since the INA predated the Eleventh

Amendment, the Tribe is asking us to relax the express language

requirement. However, the Supreme Court has stated that abro-

gation must be unequivocally stated in the language of the Act.

See Dellmuth, 491 U.S. at 227. The Indian Non-Intercourse Act

does not contain such unequivocal language. The Tribe is asking

us to ease this unequivocal language requirement and yet cites

no authority where the express language requirement was re-

laxed because the statute pre-dated the Constitutional Amend-

ment. The Supreme Court has made it clear that unless abroga-

tion is clearly stated in the statute, it will not suffice to abrogate

the Eleventh Amendment immunity. See id. Therefore, the In-

dian Non-Intercourse Act does not provide the sufficient basis

for abrogation of the States’ immunity.

Furthermore, arguing in the alternative, the Tribe claims that

although Congress did not expressly abrogate the States’ immu-

nity in the Indian Non-Intercourse Act, it did intend to hold the

States liable to the Indians and to abrogate their immunity. Con-

10a

trary to the Tribe's contentions, Congress in the passage of the

INA did not seem to have contemplated States” liability to the

Indian Tribes and it also did not intend to abrogate the States’

sovereign immunity. Neither the language nor the history of the

Indian Non-Intercourse Act reflects Congress’ intent to impose

liability and to abrogate the States’ immunity. The original ver-

sion of the Act did mention the States, but it was only to declare

that the sale of Indian land without the authorization of the fed-

eral government “to any person, or persons, or any State” was

invalid. See Indian Trade and Intercourse Acts, Act of July,

1790, ch.33, 1 Stat. 137 . Clearly, this language does not impose

liability nor does it abrogate the States’ immunity. Similarly, the

current text of the INA does not allude to the liability of the

States. The only instance the word “State” is mentioned in the

Act, it is in reference to “agent of any State” and “land within

such State” and not the State as an entity. See 25 U.S.C.°§177.

As for abrogating immunity, the current version of the INA con-

tains no language abrogating the States’ sovereign immunity.

See id. The INA states that every “person” who, without the au-

thority of the United States government, negotiates for the title

or purchase of the Indian land, is liable to a penalty of $1000.00.

Id. Thus, the INA imposes a penalty on a “person,” and not on a

“State” for unlawful conveyance of Indian land. Accordingly,

neither the original version nor the current version of the Act

give any indication that Congress intended to make the States

liable to the Indians or to abrogate the States’ sovereign immu-

nity.

Moreover, if Congress had intended to make the States liable

and to abrogate their immunity, it could have either expressly

stated that in the text of the INA or it*could have later amended

the Act to reflect its intent. However, although the Act has been

amended several times since its original passage, none of the

amended versions contains any language which indicates Con-

gress’s intent to hold the States liable to the Indians or to abro-

gate the States’ immunity. Even after the Hans decision, where

sitesi

lla

the Supreme Court broadened the scope of the Eleventh

Amendment to also grant States immunity from suit by their

own citizens, Congress still did not amend the INA to expressly

provide for abrogation of the States’ Eleventh Amendment im-

munity. As the State of Texas pointed out, although Congress

has amended other statutes to adhere to the unequivocal lan-

guage requirement, it did not do so with the INA. See e.g., Col-

lege Sav. Bank v. Florida Prepaid Post Secondary Educ. Ex-

pense Bd., 131 F.3d 353, 357-58 (3rd Cir. 1997). The INA was

last amended in 1834 and has remained unchanged since that

time. Congress’ inaction in amending the Act refutes the Tribe's

argument that Congress contemplated the liability of the States

and intended to abrogate their sovereign immunity. Since the

Indian Non-Intercourse Act does not implicitly abrogate the

States’ immunity, it fails to meet the first requirement of the ab-

rogation test set forth in Seminole. Accordingly, the Eleventh

Amendment prohibits this court from asserting jurisdiction over

this claim based on the INA.

The second prong of the abrogation test requires that Con-

gress pass the statute giving rise to the abrogation claim, pursu-

ant to a constitutional power authorizing such abrogation. See

Seminole at 54-56. The INA also fails to meet the second re-

quirement. In Seminole, the Supreme Court explained that the

Fourteenth Amendment was the only constitutional provision

granting Congress the power to abrogate. See id. at 59. The

Tribe asserts that the INA was passed pursuant to the Article I,

War Powers Clause, and the Fourteenth Amendment of the

Constitution. Neither of these provisions are valid Constitu-

tional powers allowing Congress to abrogate the States’ immu-

nity. The Supreme Court has held that Congress cannot use Ar-

ticle I power to abrogate the States’ immunity. See id. at 72-73.

Similarly, the Fourteenth Amendment cannot be used to abro-

gate the States’-immunity in the present case. The Fourteenth

Amendment was not ratified until 1868, several decades after

the last Amendment to the INA in 1834; thus, Congress did not

12a

have abrogation powers under the Fourteenth Amendment at the

time of the enactment and amendment of the INA. Therefore,

since the INA was not passed pursuant to a constitutional power

which would grant Congress the authority to abrogate the

States’ immunity, it fails the second prong of the abrogation test

set forth in Seminole.

The Tribe also asserts that this court can exercise jurisdiction

over the State based on the Taking Clause of the Fifth Amend-

ment and §5 of the Fourteenth Amendment. The Tribe reasons

that the Taking Clause of the Fifth Amendment is self-executing

and the United States is not immune from suits brought under

that provision, and it cites First Lutheran Church. v. Los Ange-

les County, 482 U.S. 304, 314-16, 107 S. Ct. 2378, 96 L.Ed.2d

250 (1987), as its authority. The Tribe then contends that §5 of

the Fourteenth Amendment applies the Taking Clause of the

Fifth Amendment and its waiver of sovereign immunity to the

States. The Tribe insists that just as the United States govern-

ment has no defense of sovereign immunity in suits arising un-

der the Taking Clause of the Fifth Amendment, the States, also,

have no immunity in suits arising under the Taking Clause or

the Fifth Amendment as applied to the States by the Fourteenth

Amendment. The Tribe has cited no authority that has held and

applied this position. Additionally, in a “taking” action brought

under the Fifth Amendment, the Fifth Circuit held that the for-

mer employees’ claims for monetary remuneration was barred

by the Eleventh Amendment. See McMurtray v. Holladay, \\

F.3d 499, 504-05 (5th Cir. 1993). Consequently, since the Tribe

has cited no authority supporting its position that under the Fifth

and the Fourteenth Amendment States” immunity is abrogated,

we will follow the Fifth Circuit's ruling and hold that in this

case the Tribe's Fifth and Fourteenth Amendment claims

against the State are barred by the Eleventh Amendment.

The Tribe has also invoked this court's jurisdiction based on

28 U.S.C. §§1362 and §1331. As the Supreme Court has stated,

§ 1362 does not abrogate the State's Eleventh Amendment im-

orn

—_-

I3a

munity because it does not contain language which clearly re-

flects Congress’ intent to do so. See Blatchford vy. Native Vil-

lage of Noatak, 501 U.S. 775, 786, 111 S. Ct. 2578, 115

L.Ed.2d 686 (1991). The Supreme Court has further explained

that neither § 1362 nor §1331 contain language which reflects a

plain and clear congressional intent to abrogate the States’ Elev-

enth Amendment immunity in all cases. See id. Thus, the States’

Eleventh Amendment immunity prevents this court from exer-

cising jurisdiction over this case pursuant §1362 and §1331.

Additionally, the Tribe claims there is federal jurisdiction

over this case based on the Treaty of Guadalupe Hidalgo, 9 Stat.

922, and the federal Indian common law. As previously stated,

the States are immune from federal suits by their own citizens

unless Congress has abrogated the States’ Eleventh Amendment

immunity. See Dellmuth, 491 U.S. at 227-228. The Tribe has

cited no authority holding that there is congressional abrogation

under the Treaty of Guadalupe Hidalgo or the federal Indian

common law. Absent congressional abrogation in either the

Treaty of Guadalupe Hidalgo or federal Indian common law.

Texas has Eleventh Amendment immunity.

CONCLUSION

For the reasons discussed above, this action is barred by the

Eleventh Amendment. This court cannot exercise jurisdiction

over this claim.

Accordingly, it is hereby ORDERED that the State of Texas’

Motion to Dismiss pursuant to Rule 12(b) (1) is GRANTED and

this case is DISMISSED.

SIGNED and ENTERED this 30th, of June 1999

/s/ Edward C. Prado

EDWARD C. PRADO

United States District Judge

Ida

{Filed Jul.2, 1999]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

Civil No. EP-99-CA-98-EP

YSLETA DEL SUR PUEBLO,

Plaintiff.

V.

STATE OF TEXAS,

Defendant.

JUDGMENT

On this date the Court considered the judgment to be entered

in the above-styled and numbered cause. Consistent with the

Order filed in this cause on this same date, it is hereby OR-

DERED, ADJUDGED and DECREED this case is DISMISSED

WITH PREJUDICE,

SIGNED and ENTERED this 30th day of June, 1999.

/s/ Edward C. Prado

EDWARD C. PRADO

United States District Judge