PONCA TRIBE OF OKLAHOMA, Plaintiff-Appellant,
v.
STATE OF OKLAHOMA; David Walters, Governor of the State of
Oklahoma, individually and in his official
capacity, Defendants-Appellees.
PUEBLO OF SANDIA, Plaintiff-Appellant,
v.
Bruce KING, Governor, State of New Mexico; State of New
Mexico, Defendants-Appellees,
States of Alabama, Arizona, California, Connecticut,
Florida, Kansas, Michigan, Mississippi, Montana,
Nebraska, Nevada, Oklahoma, Rhode
Island, South Dakota, and
Washington, Amici Curiae.
MESCALERO APACHE TRIBE, The Reservation, Plaintiff-Appellant,
v.
STATE OF NEW MEXICO; Bruce King, Governor of the State of
New Mexico, Defendants-Appellees,
States of Alabama, Arizona, California, Connecticut,
Florida, Kansas, Michigan, Mississippi, Montana,
Nebraska, Nevada, Oklahoma, Rhode
Island, South Dakota, and
Washington, Amici Curiae.
KICKAPOO TRIBE, also known as Kickapoo Nation in Kansas, of
the Kickapoo reservation in Kansas; Steve Cadue, tribal
chairman of the Kickapoo Nation in Kansas; Prairie Band of
Potawatomi Indians, a federally recognized tribe, Plaintiffs-Appellees,
v.
STATE OF KANSAS, Defendant-Appellant.
Nos. 92-6331, 93-2018, 93-2020 and 93-3110.
United States Court of Appeals, Tenth Circuit.
Sept. 2, 1994.
Rehearing Denied Sept. 27, 1994 in No. 93-3110.
As Amended Oct. 28, 1994.
Gary S. Pitchlynn of Pitchlynn, Odom, Morse & Ritter, Norman, OK (Ted Ritter and Patrick A. Morse, of Pitchlynn, Odom, Morse & Ritter, with him on the brief), for plaintiff-appellant Ponca Tribe of Oklahoma.
Neal Leader, Senior Asst. Atty. Gen., Oklahoma City, OK, for defendants-appellees State of Okl. and David Walters, Governor, State of Okl.
L. Lamar Parrish of Ussery & Parrish, Albuquerque, NM, for plaintiff-appellant Pueblo of Sandia.
Gregory M. Quinlan of Fettinger & Bloom, Alamogordo, NM (George E. Fettinger of Fettinger & Bloom, with him on the brief), for plaintiff-appellant Mescalero Apache Tribe.
Paul G. Bardacke of Eaves, Bardacke & Baugh, Albuquerque, NM (Kerry C. Kiernan of Eaves, Bardacke & Baugh and Gerald Velarde, Asst. Atty. Gen., Santa Fe, NM), for defendants-appellees State of N.M. and Bruce King, Governor, State of N.M.
John W. Campbell, Deputy Atty. Gen., Topeka, KS (Robert T. Stephan, Atty. Gen., State of Kan., with him on the brief), for defendant-appellant State of Kan.
Glenn M. Feldman of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, AZ (Lance Burr, Lawrence, Kansas, with him on the brief), for plaintiff-appellee Kickapoo Tribe.
Robert L. Pirtle of Pirtle, Morisset, Schlosser & Ayer, Seattle, WA (C. Bruce Works of Works, Works & Works, Topeka, KS, with him on the brief), for plaintiff-appellee Prairie Band of Potawatomi Indians.
Hans Walker, Jr., Washington, DC, for amicus curiae Nat. Indian Gaming Ass'n.
Thomas F. Gede, Sp. Asst. Atty. Gen., Sacramento, CA (Daniel E. Lungren, Atty. Gen., State of Cal., Jimmy Evans, Atty. Gen., State of Ala., Grant Woods, Atty. Gen., State of Ariz., Richard Blumenthal, Atty. Gen., State of Conn., Robert A. Butterworth, Atty. Gen., State of Fla., Robert T. Stephan, Atty. Gen., State of Kan., Frank J. Kelley, Atty. Gen., State of Mich., Mike Moore, Atty. Gen., State of Miss., Joseph P. Mazurek, Atty. Gen., State of Mont., Don Stenberg, Atty. Gen., State of Neb., Frankie Sue Del Papa, Atty. Gen., State of Nev., Susan B. Loving, Atty. Gen., State of Okl., Jeffery B. Pine, Atty. Gen., State of R.I., Mark Barnett, Atty. Gen., State of S.D., and Christine O. Gregoire, Atty. Gen., State of Wash.), for amici curiae the States of Ala., Ariz., Cal., Conn., Fla., Kan., Mich., Miss., Mont., Neb., Nev., Okl., R.I., S.D. and Wash.
Before ANDERSON, McKAY, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
These appeals arise from the desire of four Indian tribes to develop gaming operations on their lands pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. Sec. 2701, et seq.1 In the wake of failed negotiations to craft tribal-state compacts with Kansas, New Mexico, and Oklahoma--the states in which the gaming would be situated--the tribes seek an injunction under IGRA requiring the states to negotiate compacts. We consider first, whether IGRA abrogates the states' Eleventh Amendment immunity, and second, whether IGRA violates the Tenth Amendment. Because the tribes also seek an order directing the Governors to negotiate compacts, we address whether the tribes have stated a cognizable claim under the doctrine of Ex parte Young,
I. BACKGROUND
In response to the proliferation of Indian gaming operations in the early 1980s, Congress enacted IGRA in 1988 to establish a comprehensive regulatory framework for gaming activities on Indian lands. IGRA seeks to balance the interests of tribal governments, the states, and the federal government. First, IGRA aims "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." 25 U.S.C. Sec. 2702(1). Concurrently, the statute contemplates a regulatory and supervisory role for the states and the federal government to prevent the infiltration of "organized crime and other corrupting influences." 25 U.S.C. Sec. 2702(2). See S.Rep. No. 446, 100th Cong., 2d Sess. 1-3 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3071-73.
IGRA creates a three-tiered classification of gaming operations and provides varying degrees of federal, state, and tribal regulation over each class. Class I gaming, over which Indian tribes exercise exclusive regulatory control, consists of social games for minimal prizes or as part of tribal ceremonies or celebrations. 25 U.S.C. Secs. 2703(6) & 2710(a)(1). Class II gaming includes "bingo ... pull tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo" and non-banking card games. 25 U.S.C. Sec. 2703(7).3 Indian tribes may only engage in, license, and regulate Class II gaming if the state in which the gaming is located permits such forms of gaming. 25 U.S.C. Sec. 2710(b)(1). So long as the state permits such gaming, the Indian tribes maintain regulatory jurisdiction over Class II gaming subject to the supervision of the National Indian Gaming Commission (an entity within the Department of Interior). 25 U.S.C. Secs. 2710(a)(2) & 2704(a).
Class III gaming includes all forms of gaming not named in Classes I and II (e.g. banking card games, slot machines, casinos, horse and dog racing, and jai-alai). 25 U.S.C. Sec. 2703(8); S.Rep. No. 446, 100th Cong., 2d Sess. 7 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3077. Pursuant to Sec. 2710(d)(1), Class III gaming activities are lawful on Indian lands only if the gaming is: (1) authorized by a tribal ordinance approved by the tribe's Chairman; (2) located in a state that permits such gaming; and (3) conducted in conformance with a compact between the Indian tribe and the state. To facilitate this third requirement, Sec. 2710(d)(3)(A) directs the states to "negotiate with the Indian tribe in good faith" to craft a compact governing Class III gaming. The Congress stated that "the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign entities are met...." 1988 U.S.C.C.A.N. at 3083.
As the appeals before us demonstrate, however, tribal-state cooperation has often proved elusive. In contemplation of this occurrence, Congress provided for judicial review of a tribe's allegation that a state has failed to negotiate a tribal-state compact in good faith. Section 2710(d)(7)(A)(i) provides that:The United States district courts shall have jurisdiction 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 compact ... or to conduct such negotiations in good faith.
The state bears the burden of proving that it has negotiated with the tribe in good faith. 25 U.S.C. Sec. 2710(d)(7)(B)(ii). To determine whether a state has failed to negotiate in good faith, the court may consider "the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities," as well as "any demand by the State for direct taxation of the Indian tribe or of any Indian lands." 25 U.S.C. Sec. 2710(d)(7)(B)(iii).
If the district court concludes that the state has failed to negotiate in good faith, IGRA provides a cascade of enforcement mechanisms to authorize Class III gaming on Indian lands. First, the court shall order the tribe and state to develop a compact within sixty days. 25 U.S.C. Sec. 2710(d)(7)(B)(iii). If the parties fail to develop a tribal-state compact within this sixty-day period, the tribe and the state each must submit a proposed compact to a mediator appointed by the district court. 25 U.S.C. Sec. 2710(d)(7)(B)(iv). "The mediator shall select from the two proposed compacts the one which best comports with the terms of [IGRA] and any other applicable Federal law and with the findings and order of the court." Id. Once the mediator submits the selected compact to the state and the tribe, the state has sixty days in which to consent. 25 U.S.C. Secs. 2710(d)(7)(B)(v) & (vi).
If the state consents to the proposed compact selected by the mediator within the sixty-day period, that compact becomes binding on the state and the tribe. 25 U.S.C. Sec. 2710(d)(7)(B)(vi). However, if the state does not consent, the mediator shall notify the Secretary of the Interior, who shall authorize Class III gaming by prescribing governing procedures that "are consistent with the proposed compact selected by the mediator, the provisions of [IGRA] and the relevant provisions of the laws of the State." 25 U.S.C. Sec. 2710(d)(7)(B)(vii).
The tribes in the instant cases allege that Kansas, New Mexico, and Oklahoma have violated Sec. 2710(d)(3)(A) by failing to negotiate in good faith. The suits proceeded individually in the district courts. Each state moved to dismiss under Fed.R.Civ.P. 12(b)(1) on Eleventh Amendment grounds. Additionally, New Mexico and Oklahoma contended that IGRA violates the Tenth Amendment and that the tribes could not obtain injunctive relief against their Governors under the doctrine of Ex parte Young.
The district courts reached conflicting conclusions on the states' defenses. In Ponca Tribe of Oklahoma v. Oklahoma,
In the fourth case, Kickapoo Tribe of Indians v. Kansas,
We review de novo the district courts' Rule 12(b)(1) rulings on the States' Eleventh Amendment claims. Williams v. United States,
II. THE ELEVENTH AMENDMENT
The Eleventh Amendment provides that "[t]he 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 has held that the states' Eleventh Amendment immunity extends as well to suits commenced by Indian tribes. Blatchford v. Native Village of Noatak,
The Court has, however, identified three instances in which the Eleventh Amendment does not deprive an Article III court of jurisdiction to entertain allegations of state governmental wrongdoing. First, Congress may abrogate the states' Eleventh Amendment immunity "by making its intention unmistakably clear" in the text of a federal statute enacted pursuant to a constitutional provision that empowers Congress with abrogation rights. Dellmuth v. Muth,
Our Eleventh Amendment analysis of the tribes' suits consists of two inquiries: whether IGRA expresses an unmistakable Congressional intent to abrogate the states' Eleventh Amendment immunity, and if so, whether the Constitution empowers Congress to abrogate the states' Eleventh Amendment immunity pursuant to the Indian Commerce Clause, Art. I, Sec. 8, cl. 3.
A. Congressional Intent to Abrogate
The Supreme Court adheres to a rigorous test to determine whether Congress has abrogated the States' Eleventh Amendment immunity: Congress must make its intention to abrogate "unmistakably clear in the language of the statute." Dellmuth,
IGRA specifically empowers federal courts to entertain "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe." 25 U.S.C. Sec. 2710(d)(7)(A)(i). Additionally, Section 2710(d)(7)(B) places the burden of proving good faith in such an action on the states. Inasmuch as a state is the only conceivable defendant in such a suit, and it must be contemplated that the state will be a party if a burden of proof is allocated to it, Congress has unmistakably expressed its intent to subject states to suit in federal court under IGRA and thus satisfies the Supreme Court's abrogation test. Seminole Tribe of Florida v. Florida,
Despite IGRA's failure to refer specifically to the Eleventh Amendment, as Congress did, for example, in the Americans with Disabilities Act, 42 U.S.C. Sec. 12202, we do not read the Supreme Court's Eleventh Amendment jurisprudence as imposing any such requirement. Indeed, the Supreme Court has found Congressional abrogation even when federal statutes fail to refer specifically to the Eleventh Amendment or state sovereign immunity. See, e.g., Pennsylvania v. Union Gas Co.,
To be sure, the Court in Dellmuth observed that the Education of the Handicapped Act ("EHA"), 20 U.S.C. Sec. 1400 et seq., "makes no reference whatsoever to either the Eleventh Amendment or the State's sovereign immunity." Dellmuth,
Congress need not express its intent to abrogate in a particular talismanic incantation, but can make its intention unmistakably clear in the text of a statute without specific reference to the Eleventh Amendment or state sovereign immunity. Because IGRA satisfies this test, we affirm the district courts' ruling that Congress intended to abrogate the states' Eleventh Amendment immunity in IGRA.
B. Congressional Power to Abrogate
Having concluded that IGRA authorizes suits against the States, we next must consider whether the Indian Commerce Clause empowers Congress to override the states' Eleventh Amendment immunity.7 This question has sharply divided the courts. Compare Spokane Tribe v. Washington,
The abrogation doctrine is based on the principle that, while the Eleventh Amendment imposes a constitutional limitation on the jurisdiction of Article III courts, Congress may remove the amendment's specific constraint on federal judicial power by a federal statute enacted pursuant to certain constitutional provisions bestowing plenary powers on Congress. See Dellmuth,
The dual rationale underlying the Court's analysis in Fitzpatrick was that the Fourteenth Amendment expanded federal power at the same time that it contracted state power. "When Congress acts pursuant to Sec. 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority." Id. (upholding money award against a state under Title VII of the Civil Rights Act of 1964 because the "Eleventh Amendment, and the principle of state sovereignty which it embodies, ... are necessarily limited by the enforcement provisions of Sec. 5 of the Fourteenth Amendment").
Not until 1989 did the Court recognize a second constitutional source of authority for Congressional abrogation, namely, the Interstate Commerce Clause. Union Gas,
In an attempt to sap Union Gas of any doctrinal significance, the states in the instant cases first make much of the fact that the Court was splintered in Union Gas and that Justice White, the fifth vote on the Commerce Clause abrogation question, stated that he did "not agree with much of [Justice Brennan's] reasoning." Id. at 57,
Also, we find informative the Union Gas plurality opinion's reliance on the dual factors articulated in Fitzpatrick to explain Congress' ability to abrogate: the Commerce Clause "with one hand gives power to Congress while, with the other, it takes power away from the States." Union Gas,
Consistent with our understanding of Congress' plenary powers and the teachings of Fitzpatrick and Union Gas, the Ninth Circuit recently held that IGRA strips the states of their Eleventh Amendment immunity because Congress enacted the statute pursuant to its plenary powers under the Indian Commerce Clause. Spokane Tribe,
The Indian Commerce Clause confers on Congress "the plenary power to legislate in the field of Indian affairs." Cotton Petroleum Corp. v. New Mexico,
The States argue that the disparate purposes of the Indian and Interstate Commerce Clauses render the abrogation analysis in Union Gas inapposite. In so doing, the States cite to Cotton Petroleum,
The obvious differences between the two clauses, however, do not lead us to conclude that Congress lacks the power to abrogate Eleventh Amendment immunity under the Indian Commerce Clause. Indeed, the States' focus is misplaced. What was relevant for the abrogation analysis in both Fitzpatrick and the plurality opinion in Union Gas was not just the subject matter of the constitutional provisions, but also whether the provisions bestowed plenary power on Congress to the exclusion of the states' authority in the field. Fitzpatrick,
Nor do we find convincing the States' contention that the Court's opinion in Blatchford compels us to conclude that Congress lacks the power to abrogate under the Indian Commerce Clause. In Blatchford, the Court held that the Eleventh Amendment bars suits by Indian tribes against states because the states did not consent to such suits when they adopted the Constitution. Blatchford,
The States' reliance on this discussion in Blatchford elides the difference between waiver and abrogation. Indeed, the Court discussed both doctrines and held that, in addition to a lack of waiver, Congress did not satisfy the Dellmuth clear-statement abrogation test in 28 U.S.C. Sec. 1362. Id.
For these reasons, we conclude that the Indian Commerce Clause empowers Congress to abrogate the states' Eleventh Amendment immunity and that IGRA constitutes an unequivocal expression of Congress' intent to do so.12 We therefore affirm the judgment in Kickapoo and reverse the rulings in Ponca, Pueblo of Sandia, and Mescalero.13
III. THE TENTH AMENDMENT
We next address whether IGRA violates the Tenth Amendment by requiring states to negotiate tribal-state compacts in good faith. U.S. Const. amend X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). The Supreme Court recently breathed new vitality into the Tenth Amendment when it observed that "[t]he Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States, --- U.S. ----, ----,
To discern whether IGRA entrenches upon the sovereignty that the Constitution preserves for the states, we must examine the nature of the federal directive in IGRA and its impact on the states' regulatory prerogatives. In this regard, we find most instructive the principles articulated in New York and FERC v. Mississippi,
In New York, the Court reaffirmed that Congress may not exercise its Article I plenary powers to "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Id. at ----,
Inasmuch as Congress lacked the authority to impose either option, the Court in New York concluded that a Congressional directive to the states to choose between these two options was constitutionally impermissible as well. Id. --- U.S. at ----,
Of course, Congress enjoys several options short of imposing a coercive regulatory directive on the states.
First, under Congress' spending power, "Congress may attach conditions on the receipt of federal funds." South Dakota v. Dole,
. . . . .
Second, ... we have recognized Congress' power to offer States the choice of regulating [an] activity according to federal standards or having state law pre-empted by federal regulation. Hodel v. Virginia Surface Mining & Reclamation Ass'n,
New York, --- U.S. at ---- - ----,
If New York teaches that the Tenth Amendment prohibits a federal directive that requires the states to enact or enforce a federal regulatory program, FERC instructs that Congress may require the states to consider, but not necessarily adopt, a federal program. FERC,
Most instructive for our purposes is FERC 's discussion of the statutory requirement that states consider the suggested federal standards. The Court explained that this provision did not impermissibly infringe on state sovereignty because its language merely invited states to take action in a preemptible area, rather than directly compelling them to enact a legislative program. Id. at 765,
Guided by the permissive-mandatory dichotomy established in FERC and New York, we conclude that IGRA does not run afoul of the Tenth Amendment. Because IGRA merely directs the state to negotiate in good faith, and stops well short of imposing a requirement on the states to enact or enforce a federal regulatory program, IGRA is more akin to the permissible statutory scheme in FERC than to the constitutionally infirm provision at issue in New York. In essence, the states' duty under Sec. 2710(d)(3)(A) to negotiate with the Indian tribe in good faith is nothing more than a requirement that the states make a good faith attempt to craft a voluntary agreement with the Indian tribe pertaining to Class III gaming on Indian land that is consistent with state policy. FERC,
Under IGRA, if a state is found to have failed to negotiate in good faith with the Indian tribe to conclude a tribal-state compact, the Secretary of the Interior will ultimately prescribe and enforce regulations to govern Class III gaming.16 See Cheyenne River,
An additional factor that distinguishes IGRA from the unconstitutional provision in New York, and reinforces its similarity to the statute upheld in FERC, is that IGRA preserves state governmental accountability in the field of Indian gaming. As discussed above, the Court in New York identified public accountability as a critical component of the states' Tenth Amendment sovereignty. New York, --- U.S. at ----,
Nor does IGRA impose an onerous burden on state financial resources. The Supreme Court has made clear that the mere fact that a federal statute requires a state to expend resources in compliance therewith, by itself, is not fatal for Tenth Amendment purposes. FERC,
To be sure, IGRA does not fit squarely into the permissive category defined in FERC because the statute does not simply invite the states to consider negotiating with Indian tribes, but rather requires the states to negotiate in good faith. Indeed, standing alone and read literally, the court's power under Sec. 2710(d)(7)(B)(iii) of IGRA to order a state and Indian tribe to conclude a compact could be construed as a Congressional command to regulate. 25 U.S.C. Sec. 2710(d)(7)(B)(iii) ("If ... the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact ... the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period."). However, this language is not susceptible to a literal reading because it is simply not possible to order two parties to enter into an agreement if they do not agree. Congress could, under its Supremacy Clause powers, impose rules on a reluctant state, but it lacks the power to force the state to agree to something voluntarily.
Further, "[w]e do not construe statutory phrases in isolation; we read statutes as a whole." United States v. Morton,
There are some similarities between IGRA and the Interstate Horseracing Act, 15 U.S.C. Sec. 3001 et seq., recently upheld in Kentucky Division, Horsemen's Benevolent & Protective Ass'n, Inc. v. Turfway Park Racing Ass'n,
For the foregoing reasons, we hold that IGRA does not violate the Tenth Amendment. We therefore reverse the judgments to the contrary in Ponca, Pueblo of Sandia, and Mescalero Apache.
IV. THE EX PARTE YOUNG DOCTRINE
The final issue we consider in these appeals is the tribes' request for an order under IGRA directing the Governors of Oklahoma and New Mexico, respectively, to negotiate tribal-state compacts. The district courts in Ponca, Pueblo of Sandia, and Mescalero Apache dismissed this claim as barred by Ex parte Young,
Under the Ex parte Young doctrine, the Eleventh Amendment does not bar a suit in federal court against state officers to enjoin federal law violations. Ex parte Young,
A critical limitation on this doctrine, however, is that a federal court may only order a state officer to perform a ministerial act. Id. at 158,
In light of our Tenth Amendment analysis, IGRA does not require the states to regulate Class III gaming by entering into tribal-state compacts. Instead, the only obligation on the state is to negotiate in good faith. The act of negotiating, however, is the epitome of a discretionary act. How the state negotiates; what it perceives to be its interests that must be preserved; where, if anywhere, that it can compromise its interests--these all involve acts of discretion. Thus, injunctive relief against the governors is barred under Ex parte Young. Seminole Tribe of Florida,
Additionally, the tribes' suits against the Governors are in reality suits against the respective states and thus not authorized under the doctrine of Ex parte Young. "The Eleventh Amendment bars a suit against state officials when 'the state is the real, substantial party in interest.' " Pennhurst State School & Hosp. v. Halderman,
Accordingly, we affirm the judgments in Ponca, Pueblo of Sandia, and Mescalero Apache dismissing the tribes' suit against the Governors of Oklahoma and New Mexico.
V. CONCLUSION
In accordance with the foregoing, we conclude that neither the Tenth nor Eleventh Amendment bars these actions against the States of Oklahoma, New Mexico, and Kansas, and thus the district courts should proceed to consider these claims on the merits. We further conclude that the claims in Ponca, Pueblo of Sandia, and Mescalero Apache against the governors of their respective states are inappropriate under the doctrine of Ex parte Young, and must therefore be dismissed. Accordingly, we AFFIRM the judgment in Kickapoo. We REVERSE IN PART and AFFIRM IN PART the judgments in Ponca, Pueblo of Sandia, and Mescalero Apache, and REMAND for further proceedings consistent with this opinion.
Notes
Although these appeals were not consolidated, we consider them jointly in this opinion because the dispositive issues are identical
Amicus Curiae, The National Indian Gaming Association, argues that IGRA creates a property interest in operating gaming on Indian lands that is entitled to Fourteenth Amendment protection. Because the parties did not raise this issue in the district court, we decline to consider it for the first time in these appeals. Farmers Ins. Co. v. Hubbard,
Excluded from Class II, and therefore included within Class III, are such banking card games as baccarat and blackjack, as well as electronic or electro-mechanical facsimiles of any game of chance, and slot machines. 25 U.S.C. Sec. 2703(7)(B)
Neither an Ex parte Young claim nor the Tenth Amendment question was before the court in Kickapoo
In Union Gas, a majority of the Court read the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") as a clear expression of Congressional intent to abrogate Eleventh Amendment immunity because, inter alia, CERCLA included states within the definition of "person," the term used to describe those who may be held liable for cleanup costs recoverable under CERCLA, and provided that state and local governments are to be considered "owners and operators," except in narrow circumstances. Union Gas,
Indeed, EHA merely contains a general grant of federal court jurisdiction akin to the infirm jurisdictional statutes in Atascadero,
The Indian Commerce Clause provides that "The Congress shall have Power ... To regulate Commerce ... with the Indian Tribes." Art. I, Sec. 8, cl. 3. Because IGRA governs commerce with Indian tribes, we conclude that Congress enacted it under the Indian Commerce Clause, not the Interstate Commerce Clause
Justice White joined Justice Brennan's plurality opinion's conclusion that "Congress has the authority under Article I to abrogate the Eleventh Amendment immunity of the States." Union Gas,
The states additionally assert that Union Gas remains on especially shaky grounds because three of the five Justices who voted to uphold Congress' power to abrogate pursuant to the Commerce Clause have since retired from the Court. Since the States' briefing, a fourth Justice who so voted has now retired. Nonetheless, we are bound by the Court's holdings until the Court overrules them
Although Justice Scalia dissented in Union Gas, he opined that "if the Article I commerce power enables abrogation of state sovereign immunity, so do all other Article I powers." Union Gas,
The Court in Blatchford did not explicitly rule on whether Congress has the power to abrogate Eleventh Amendment immunity for suits commenced by Indian tribes against the states. The Court did not reach this question because 28 U.S.C. Sec. 1362 did not contain an unequivocal Congressional expression of intent to abrogate. Blatchford,
We therefore decline to follow that portion of the Eleventh Circuit's recent ruling in Seminole Tribe of Florida,
We do not read the Supreme Court's Eleventh Amendment jurisprudence as adopting this governmental-proprietary distinction, and take note of the fact that the Court has rejected this dichotomy in at least some in other constitutional law contexts. See, e.g., Garcia v. San Antonio Metro. Transit Auth.,
Because we conclude that Congress has the power to abrogate the states' Eleventh Amendment immunity, we need not reach the Indian tribes' alternative rationale that the States have waived their Eleventh Amendment immunity
We recognize that, on a practical level, a state may find very little difference between a federal statute that compels it to regulate and one that seeks to induce state regulations by conditioning the receipt of federal funds on the adoption of a state law that promotes a federal policy. Nevertheless, the constitutionally cognizable difference between the two is that, whereas the former infringes the states' sovereignty, the latter ultimately reserves to the states the decision to opt out
In FERC, the Supreme Court also observed that the state could avoid any obligation to entertain federal proposals by eliminating its own utility commission entirely. However, that option was not seriously advanced as a viable one and it does not detract from the general distinction, upon which that opinion is based, between requiring a state merely to consider a federal proposal and requiring a state to enact or enforce a program
Under Sec. 2710(d)(7)(B)(vi), if the parties are unable to agree upon a compact, the Secretary of the Interior promulgates procedures--consistent with "the relevant provisions of the laws of the State"--to govern the tribe's Class III gaming under Sec. 2710(d)(7)(B)(vii)
Except of course, if the state prohibits all Class III gaming in the state, the federal government is not authorized to override any such absolute prohibition. 25 U.S.C. Sec. 2710(d)(1)(B)
"We do not, in this opinion, address the extent to which the Secretary of the Interior is restricted by Sec. 2710(d)(7)(B)(vii)(I), which authorizes the Secretary to prescribe procedures "which are consistent with ... the relevant provisions of the laws of the State." The cases before us have not yet reached the stage where the Secretary has attempted to fashion or impose any federal provisions regulating Indian gaming, and thus it is premature to speculate as to the nature of the Secretary's provisions or any restrictions that this provison may place upon the Secretary's response.
25 U.S.C. Sec. 2710(d)(7)(B), provides in pertinent part:
(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact governing the conduct of gaming activities on the Indian lands subject to the jurisdiction of such Indian tribe within the 60-day period provided in the order of a court issued under clause (iii), 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 compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this Act and any other applicable Federal law and with the findings of the court.
(v) The mediator appointed by the court under clause (iv) shall submit to the State and the Indian tribe the compact selected by the mediator under clause (iv).
(vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3).
(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures--
(I) which are consistent with the proposed compact selected by the mediator under clause (vi), the provisions of this chapter and the relevant provisions of the laws of the State, and
(II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction. (emphasis added).