UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 92-6331
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.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-92-988-T)
PUEBLO OF SANDIA, )
Plaintiff-Appellant, )
) No. 93-2018
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, )
) No. 93-2020
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. )
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-92-613-JC)
(D.C. No. CIV-92-76-JC/WWD)
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, )
) No. 93-3110
v. )
STATE OF KANSAS, )
Defendant-Appellant. )
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 92-4233-SAC)
(D.C. No. 92-4234-SAC)
ORDER
Filed October 28, 1994
Before ANDERSON, McKAY, and EBEL, Circuit Judges.
IT IS HEREBY ORDERED that the opinion previously entered in
this case is amended as follows:
1. The first sentence of the first complete paragraph on
page 27 should be amended to read as follows (with brackets
indicating deleted material and the new material indicated by
underlining, but it is not intended that the new material be
underlined in the final text):
"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."
2. The following additional material should be added to the
end of footnote 17 on page 28 as follows:
"We do not, in this opinion, address the extent to which
the Secretary of the Interior is restricted by
2710(d)(1)(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
provision may place upon the Secretary's response.
Entered for the Court
David M. Ebel
Circuit Judge
UNITED STATES COURT OF APPEALS
Tenth Circuit
Office of the Clerk
C404 United States Courthouse
Denver, Colorado 80294
(303) 844-3157
Patrick Fisher
Chief Deputy
September 15, 1994
TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: 92-6331, 93-2018, 93-2020, 93-3110
Ponca Tribe of Oklahoma v. State of Oklahoma, et al
Filed September 2, 1994 by Judge Ebel
Please be advised of the following correction to the
captioned opinion:
Page 3, counsel for the defendants-appellees Kerry C.
Kiernan's name was incorrectly listed as Kelly C. Kiernan.
Please make this correction to your copy.
Very truly yours,
ROBERT L. HOECKER, Clerk
By:
Barbara Schermerhorn
Deputy Clerk
PUBLISH
FILED 9/2/94
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PONCA TRIBE OF OKLAHOMA, )
Plaintiff-Appellant, )
) No. 92-6331
v. )
STATE OF OKLAHOMA; DAVID )
WALTERS, Governor of the State )
of Oklahoma, individually and in )
his official capacity, )
Defendants-Appellees. )
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-92-988-T)
PUEBLO OF SANDIA, )
Plaintiff-Appellant, )
) No. 93-2018
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, )
) No. 93-2020
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. )
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-92-613-JC)
(D.C. No. CIV-92-76-JC/WWD)
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, )
) No. 93-3110
v. )
STATE OF KANSAS, )
Defendant-Appellant. )
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 92-4233-SAC)
(D.C. No. 92-4234-SAC)
Gary S. Pitchlynn of Pitchlynn, Odom, Morse & Ritter, Norman,
Oklahoma (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 Assistant Attorney General, Oklahoma City,
Oklahoma, for Defendants-Appellees State of Oklahoma and David
Walters, Governor, State of Oklahoma.
L. Lamar Parrish of Ussery & Parrish, Albuquerque, New Mexico, for
Plaintiff-Appellant Pueblo of Sandia.
Gregory M. Quinlan of Fettinger & Bloom, Alamogordo, New Mexico
(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, New
Mexico (Kerry Kiernan of Eaves, Bardacke & Baugh and Gerald
Velarde, Assistant Attorney General, Santa Fe, New Mexico), for
Defendants-Appellees State of New Mexico and Bruce King, Governor,
State of New Mexico.
John W. Campbell, Deputy Attorney General, Topeka, Kansas (Robert
T. Stephan, Attorney General, State of Kansas, with him on the
brief), for Defendant-Appellant State of Kansas.
Glenn M. Feldman of O'Connor, Cavanagh, Anderson, Westover,
Killingsworth & Beshears, Phoenix, Arizona (Lance Burr, Lawrence,
Kansas, with him on the brief), for Plaintiff-Appellee Kickapoo
Tribe.
Robert L. Pirtle of Pirtle, Morisset, Schlosser & Ayer, Seattle,
Washington (C. Bruce Works of Works, Works & Works, Topeka,
Kansas, with him on the brief), for Plaintiff-Appellee Prairie
Band of Potawatomi Indians.
Hans Walker, Jr., Washington, D.C., for amicus curiae National
Indian Gaming Association.
Thomas F. Gede, Special Assistant Attorney General, Sacramento,
California (Daniel E. Lungren, Attorney General, State of
California; Jimmy Evans, Attorney General, State of Alabama; Grant
Woods, Attorney General, State of Arizona; Richard Blumenthal,
Attorney General, State of Connecticut; Robert A. Butterworth,
Attorney General, State of Florida; Robert T. Stephan, Attorney
General, State of Kansas; Frank J. Kelley, Attorney General, State
of Michigan; Mike Moore, Attorney General, State of Mississippi;
Joseph P. Mazurek, Attorney General, State of Montana; Don
Stenberg, Attorney General, State of Nebraska; Frankie Sue Del
Papa, Attorney General, State of Nevada; Susan B. Loving, Attorney
General, State of Oklahoma; Jeffery B. Pine, Attorney General,
State of Rhode Island; Mark Barnett, Attorney General, State of
South Dakota; and Christine O. Gregoire, Attorney General, State
of Washington), for amici curiae the States of Alabama, Arizona,
California, Connecticut, Florida, Kansas, Michigan, Mississippi,
Montana, Nebraska, Nevada, Oklahoma, Rhode Island, South Dakota,
and Washington.
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. 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, 209 U.S. 123 (1908).2
1 Although these appeals were not consolidated, we consider
them jointly in this opinion because the dispositive issues are
identical.
2 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, 869 F.2d 565, 570 (10th
Cir. 1989).
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.
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. 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. 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. 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.
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. 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. 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 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,
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.
3 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. 2703(7)(B).
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. 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. 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. 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. 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. 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. 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. 2710(d)(7)(B)(vii).
The tribes in the instant cases allege that Kansas, New
Mexico, and Oklahoma have violated 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, 834
F. Supp. 1341 (W.D. Okla. 1992) ("Ponca"), Pueblo of Sandia v.
King, slip. op. No. CIV-92-0613-JC (D. N.M. 1992) ("Pueblo of
Sandia"), and Mescalero Apache Tribe v. New Mexico, slip. op.
No.CIV-92-076-JC (D. N.M. 1992) ("Mescalero Apache"), the courts
held that the Eleventh Amendment barred the tribes' suits because
Congress lacked the authority to abrogate the states' Eleventh
Amendment immunity. The courts thus dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1). The courts also held
that the suits against the Governors of Oklahoma and New Mexico
fell outside the parameters of the Ex parte Young doctrine because
a court order to negotiate a tribal-state compact would infringe
upon executive discretion. Lastly, the courts ruled that IGRA
violates the Tenth Amendment because it requires states to
negotiate tribal-state compacts, does not afford states the option
to refuse to regulate Class III gaming, and allows the Secretary
of the Interior to commandeer state governments to regulate Class
III gaming. We have jurisdiction under 28 U.S.C. 1291 to
entertain the tribes' appeals of these rulings.
In the fourth case, Kickapoo Tribe of Indians v. Kansas, 818
F. Supp. 1423 (D. Kan. 1993) ("Kickapoo"), the district court held
that Congress does have the power to abrogate the states' Eleventh
Amendment immunity pursuant to IGRA and that Kansas may therefore
be sued in federal court for failing to negotiate a tribal-state
compact in good faith.4 We have jurisdiction over Kansas' appeal
under the collateral order doctrine. Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 113 S. Ct. 684 (1993)
(permitting an immediate appeal of a court's denial of Eleventh
Amendment immunity because the state's purported right to be free
from suit cannot be effectively vindicated on appeal after trial).
4 Neither an Ex parte Young claim nor the Tenth Amendment
question was before the court in Kickapoo.
We review de novo the district courts' Rule 12(b)(1) rulings
on the States' Eleventh Amendment claims. Williams v. United
States, 957 F.2d 742, 743 (10th Cir. 1992). We also review de
novo the courts' legal conclusions that IGRA violates the Tenth
Amendment and that the Ex parte Young doctrine is inapplicable.
Estate of Holl v. Commissioner of Internal Revenue, 967 F.2d 1437,
1438 (10th Cir. 1992).
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, 111 S. Ct. 2578, 2583 (1991). Thus, the Eleventh
Amendment imposes a constitutional limitation on the jurisdiction
of Article III courts. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 98 (1984).
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, 491 U.S. 223, 227-28 (1989). Second, a state may
expressly waive Eleventh Amendment immunity. Edelman v. Jordan,
415 U.S. 651, 673 (1974). And third, we may consider a suit
against a state official to enjoin a non-discretionary violation
of federal law. Ex parte Young, 209 U.S. 123, 159-160 (1908).
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, 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,
491 U.S. at 228 (quoting Atascadero State Hospital v. Scanlon, 473
U.S. 234, 242 (1985)). It is not sufficient generally that
Congress has given jurisdiction to federal courts to consider
certain kinds of claims. The mere "fact that Congress grants
jurisdiction to hear a claim does not suffice to show Congress has
abrogated all defenses to that claim." Blatchford, 111 S. Ct. at
2585 n.4; Atascadero, 473 U.S. at 246 ("A general authorization
for suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment.").
Rather, to abrogate the states' Eleventh Amendment immunity,
Congress must clearly express its intent that states may be
brought into federal court to answer to the particular charge at
issue.
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. 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, 11
F.3d 1016, 1024 (11th Cir. 1994); Cheyenne River Sioux Tribe v.
South Dakota, 3 F.3d 273, 281 (8th Cir. 1993). Indeed, every
court that has considered this question has concluded that IGRA
embodies a clear expression of Congressional intent to abrogate
state sovereign immunity. Neither the states nor amici in the
instant case has cited any authority to the contrary.
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. 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., 491 U.S. 1, 13 (1989); Fitzpatrick
v. Bitzer, 427 U.S. 445, 449 (1976).5
To be sure, the Court in Dellmuth observed that the Education
of the Handicapped Act ("EHA"), 20 U.S.C. 1400 et seq., "makes
no reference whatsoever to either the Eleventh Amendment or the
State's sovereign immunity." Dellmuth, 491 U.S. at 231. However,
the Court's conclusion in Dellmuth that the EHA did not abrogate
the states' Eleventh Amendment turned not on the absence of any
specific mention of the Eleventh Amendment, but rather on the
determination that the statute's structure merely created a
"permissible inference" that Congress intended to subject the
States to damage actions for violations of the EHA and it did not
compel such a conclusion. Id. at 231-32.6 In contrast, the only
inference that can be drawn from IGRA's language is that Congress
meant to strip the states of their Eleventh Amendment immunity for
5 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, 491 U.S. at 7-10. And in Fitzpatrick, the Court held that Title
VII of the Civil Rights Act of 1964 satisfies the clear-statement
rule because 42 U.S.C. 2000e(a) expressly defines "person" to
include "government" and "government agencies"; and 2000e(f)
includes within the definition of "employee" those individuals
"subject to the civil service laws of a State government,
governmental agency or political subdivision." Fitzpatrick, 427
U.S. at 449 n.2.
6 Indeed, EHA merely contains a general grant of federal court
jurisdiction akin to the infirm jurisdictional statutes in
Atascadero, 473 U.S. at 245-46, and Blatchford, 111 S. Ct. at
2584-86, that failed to identify States as potential defendants.
failing to negotiate a tribal-State compact in good faith. 25
U.S.C. 2710(d)(7)(A)(i).
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, 28 F.3d 991 (9th Cir. 1994)
(upholding Congress' authority to abrogate Eleventh Amendment
immunity pursuant to the Indian Commerce Clause), Cheyenne River
Sioux Tribe, 3 F.3d at 281 (same), with Seminole Tribe of Florida,
11 F.3d at 1028 (concluding that Congress lacks the power to
abrogate Eleventh Amendment immunity under IGRA).
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
7 The Indian Commerce Clause provides that "The Congress shall
have Power . . . To regulate Commerce . . . with the Indian
Tribes." Art. I, 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.
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,
491 U.S. at 227. The Court first articulated the concept of
abrogation in Fitzpatrick, holding that Congress may abrogate
Eleventh Amendment immunity in legislation enacted pursuant to 5
of the Fourteenth Amendment. Fitzpatrick, 427 U.S. at 456.
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 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 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, 491 U.S. at
13-23 (plurality opinion).8 Anchored on the dual principles
8 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, 491 U.S. at 57 (White, J., concurring in the judgment in part
and dissenting in part).
articulated in Fitzpatrick, Justice Brennan's plurality opinion in
Union Gas explained that, like the Fourteenth Amendment, the
"Commerce Clause withholds power from the States at the same time
as it confers it on Congress." Id. at 19. The plurality added
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." Id. at 19-20. As in Fitzpatrick, the
plurality in Union Gas observed that the Commerce Clause reflected
a shift in the balance of power between the states and the federal
government under our constitutional structure, a logical
consequence of which is that Congress may exercise its plenary
powers by subjecting the states to suit in federal court. This
theory of structural federalism pervades the Court's Eleventh
Amendment jurisprudence. See Alex E. Rogers, Note, Clothing State
Governmental Entities with Sovereign Immunity: Disarray in the
Eleventh Amendment Arm-of-the-State Doctrine, 92 Colum. L. Rev.
1243, 1253-64 (1992).
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 57.9 However, we are unwilling to sweep aside Union Gas as
9 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.
lacking precedential value or guidance for our analysis. "When a
fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, `the holding of the
Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds. . . . '"
Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart,
Powell, and Stevens, J.J.)). It is beyond dispute that five
Justices in Union Gas held that Congress possesses the power to
abrogate Eleventh Amendment immunity pursuant to the Interstate
Commerce Clause of Article I.
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, 491 U.S. at 16. Thus, for purposes
of Congress' abrogation authority, and "the Eleventh Amendment's
role as an essential component of our constitutional
[federal-state] structure," Dellmuth, 491 U.S. at 228, we
perceive no constitutional distinction between the plenary powers
bestowed in the Fourteenth Amendment, the Interstate Commerce
Clause, and the Indian Commerce Clause.
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, 28 F.3d 991, 1994 WL 316433 at *4-5. "[T]he analysis
developed by the Supreme Court in both Union Gas and Fitzpatrick
v. Bitzer is equally applicable to the Indian Commerce
Clause . . . . [A]s in Union Gas and Fitzpatrick, Congress is
acting under one of its plenary powers." Id. at *5. See also
Cheyenne River Sioux Tribe, 3 F.3d at 280 ("[g]iven Congress'
plenary authority over Indian relations . . . Congress, when
acting pursuant to the Indian Commerce Clause, has the power to
abrogate the States' [eleventh Amendment] immunity") (quoting with
approval Seminole Tribe of Florida v. Florida, 801 F. Supp. 655,
658 (S.D. Fla. 1992), rev'd, Seminole Tribe of Florida, 11 F.3d at
1028)).
The Indian Commerce Clause confers on Congress "the plenary
power to legislate in the field of Indian affairs." Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989). Just as
the Interstate Commerce Clause shifts the balance of state-federal
power to Congress to regulate commerce among the states, so too
does the Indian Commerce Clause render "Indian relations . . . the
exclusive province of federal law." County of Oneida v. Oneida
Indian Nation of New York State, 470 U.S. 226, 234 (1985); Spokane
Tribe, 28 F.3d 991, 1994 WL 316433 at *5 ("Congressional power
pursuant to the Indian Commerce Clause . . . cannot be less than
its authority under the Interstate Commerce Clause.").
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, 490 U.S. at 192, that explained that whereas "the
Interstate Commerce Clause is concerned with maintaining free
trade among the States . . . the central function of the Indian
Commerce Clause is to provide Congress with plenary power to
legislate in the field of Indian affairs." Because the
jurisprudence under "Interstate Commerce Clause [] is premised on
a structural understanding of the unique role of the States in our
constitutional system," it "is not readily imported to cases
involving the Indian Commerce Clause." Id.
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, 427 U.S. at 456; Union Gas, 491 U.S. at
19-20.10 Moreover, Cotton Petroleum's discussion of the disparate
applications of the two clauses considered only whether Indian
tribes could be treated as states under the Interstate Commerce
Clause for purposes of tax apportionment. 490 U.S. at 191-193.
10 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,
491 U.S. at 42. Justice White made the same observation in his
concurrence. Id. at 57. Of course, for our purposes, we need not
speak so broadly and we concern ourselves only with Congressional
power to abrogate under the Indian Commerce Clause.
The case did not address Congress' ability to abrogate Eleventh
Amendment immunity and therefore is not controlling precedent for
our analysis. Spokane Tribe, 28 F.3d 991, 1994 WL 316433 at * 4
(The Cotton Petroleum observation "that Interstate Commerce Clause
doctrine cannot always readily be applied to cases involving the
Indian Commerce Clause . . . does not speak to the scope of
congressional power under either [clause]."). Accord Seminole
Tribe of Florida, 11 F.3d at 1027 (Cotton Petroleum is "not
directly on point" for whether the Indian Commerce Clause allows
Congress to abrogate Eleventh Amendment immunity.).
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, 111
S. Ct. at 2583. There, the tribes argued that, just as the states
are deemed to have waived their immunity against suits by sister
states, so had the states waived their immunity against suits by
tribes. The Court in Blatchford rejected this argument, noting
that the states' waiver of immunity against suits by sister states
arises from a "mutuality of . . . concession" between the states
that is inherent in the "constitutional compact." Id. at 2582
Because the constitutional compact does not embody an analogous
mutuality of concession between the states and the tribes,
Blatchford held that the states have not waived Eleventh Amendment
immunity to suits brought by tribes. Id. at 2583.
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. 1362. Id. at 2585.11 The Indian
tribes in the cases before us advance only an abrogation claim,
not a state waiver theory. The Blatchford Court's historical
analysis about waiver in no way undermines Union Gas, which only
considered Congress' abrogation powers. Union Gas, 491 U.S. at 23
n.5 ("Since Union Gas itself eschews reliance on the theory of
waiver . . . we neither discuss this theory here nor understand
why Justice Scalia feels the need to do so."). Blatchford's only
abrogation analysis was under 28 U.S.C. 1362, and, as pointed
out above, that analysis is not instructive for us because the
court found no unequivocal Congressional statement of intent to
abrogate in that statute. However, the fact that the Court in
Blatchford proceeded to consider the tribe's separate abrogation
theory demonstrates that the historical analysis of waiver does
not undermine the conclusion that Congress may abrogate Eleventh
Amendment immunity pursuant to its Article I plenary powers.
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
11 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. 1362 did not
contain an unequivocal Congressional expression of intent to
abrogate. Blatchford, 111 S. Ct. at 2585.
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
12 We therefore decline to follow that portion of the Eleventh
Circuit's recent ruling in Seminole Tribe of Florida, 11 F.3d at
1028, which concluded that Congress lacks the power to abrogate
Eleventh Amendment immunity in IGRA. In Seminole Tribe of
Florida, the court held that Congress lacked the power to abrogate
Eleventh Amendment immunity when "it legislates in an area
typically reserved to the states (such as negotiating regulations
with Indian tribes)." Id. The court discerned a distinction
between governmental and proprietary functions, concluding that
the Supreme Court has allowed federal jurisdiction over states
only when the states "partake in an activity typical of private
individuals." Id.
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.,
469 U.S. 528, 546-47 (1985) (denouncing dichotomy in Tenth
Amendment jurisprudence as "unsound in principle and unworkable in
practice" and thus overruling "traditional [state] governmental
functions" test in National League of Cities v. Usery, 426 U.S.
833 (1976)). Rather than focusing on the nature of the state
governmental activity, cases arising under Congress' authority to
abrogate have looked solely to the constitutional source of power
under which the federal statute was enacted.
13 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.
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, 112 S. Ct. 2408, 2418 (1992).
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, 456 U.S. 742 (1982), a case discussed in New York as
marking a critical line in the Constitution's division of
authority between the federal government and the states. New
York, 112 S. Ct. at 2420-21.
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 2420
(quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n,
Inc., 452 U.S. 264, 288 (1981)). The unconstitutional exercise of
Congressional power in New York was the so-called "take-title"
mandate in the Low-Level Radioactive Waste Policy Act, which gave
states an option: either accept ownership of (and thus liability
for) low-level radioactive waste generated by private operators
within their borders or regulate such waste pursuant to Congress'
instructions. Id. at 2427-28 (interpreting 42 U.S.C.
2021e(d)(2)(C)).
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. at 2428 ("A choice
between two unconstitutionally coercive regulatory techniques is
no choice at all."). Writing for the majority, Justice O'Connor
explained that "[t]he Federal Government may not compel the States
to enact or administer a federal regulatory program" because the
states are neither "political subdivisions," "regional offices,"
nor "administrative agencies of the Federal Government." Id. at
2434-35. When the federal government compels state regulation,
rather than merely encouraging it, state and federal
accountability is diminished because the state can no longer
regulate "in accordance with the views of the local electorate,"
while the "federal officials who devised the regulatory program
may remain insulated from the electoral ramifications of their
decision." New York, 112 S. Ct. at 2424.
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, 483 U.S. 203, 206 (1987)
[upholding Congress' authority to condition federal
highway funds on the States' adoption of a minimum
drinking age of 21 years old].
. . .
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, 452 U.S. at 288.
New York, 112 S. Ct. at 2423-24. And third, the Supremacy Clause
permits Congress to preempt an entire field of regulation and
thereby deprive the states of any regulatory role. See Fidelity
Federal Savings & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153
(1982).14
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, 456 U.S. at 761-64. In FERC, the Court
upheld three provisions of the Public Utility Regulatory Policies
Act of 1978 ("PURPA") against a Tenth Amendment challenge. The
provisions required state regulatory commissions to adjudicate
disputes arising under PURPA; directed the state commissions to
consider adopting federal rate structures and regulatory
standards; and required the commissions to follow specified notice
and comment procedures in considering the suggested federal rate
structures.
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.
14 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.
at 765 (noting that "[t]here is nothing in PURPA `directly
compelling' the States to enact a legislative program"). Indeed,
it is this distinction between a permissive and mandatory
statutory directive that separates the provision in FERC from the
statute in New York: Congress may not usurp state discretion by
commanding the states to enact or enforce a federal program, but
it may direct a state to consider implementing a federal program
so long as the states retain the prerogative to decline Congress'
invitation. New York, 112 S. Ct. at 2420-24.15
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 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,
456 U.S. at 765-66 (underscoring that PURPA did not require the
states to adopt a legislative program). IGRA reflects Congress'
15 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.
attempt to encourage, but not mandate, cooperative rulemaking
between the Indian tribes and the states.
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, 3 F.3d at 281 ("IGRA does not force states to compact with
Indian tribes regarding Indian gaming and does not violate the
tenth amendment."); Yavapai-Prescott Indian Tribe v. Arizona, 796
F. Supp. 1292, 1297 (D. Ariz. 1992) ("IGRA's terms do not force
the State to enter into a compact, it only demands good faith
negotiation in order to meet state, as well as tribal and federal,
interests."). By permitting the states ultimately to abstain from
exercising a regulatory role, IGRA's default provision stands in
marked contrast to the statute in New York, which strictly
confined the states' options to either enacting the federal
program or taking title to radioactive waste generated within
their borders that could subject them to future liability.
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
16 Under 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
2710(d)(7)(B)(vii).
Amendment sovereignty. New York, 112 S. Ct. at 2424. Whereas a
Congressional command to the states to enact or enforce a federal
program ignores whether the state's citizens approve of such
actions, IGRA permits the states to negotiate tribal-state
compacts in accordance with the views of the local electorate. If
a state has a policy prohibiting all Class III gaming, then Indian
Class III gaming is also automatically prohibited. 25 U.S.C.
2710(d)(1)(B). If it has any other less restrictive policy or
preference regarding Class III gaming in particular, or Class III
gaming on Indian lands specifically, nothing in IGRA requires the
state to surrender or compromise those policies or preferences in
attempting to negotiate a compact with the Indian tribe. Of
course, the federal government may ultimately override state
policy by regulation17 imposed by the Secretary of the Interior, but
that action would not implicate the Tenth Amendment.
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, 456 U.S. at 770 n.33 ("[I]n a Tenth Amendment
17 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. 2710(d)(1)(B). We do
not, in this opinion, address the extent to which the Secretary of
the Interior is restricted by 2710 (d) (1) (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 provision may place upon the Secretary's
response.
challenge to congressional activity, `the determinative
factor . . . [is] the nature of the federal action, not the
ultimate economic impact on the States.'") (quoting Hodel, 452
U.S. at 292 n.33). In FERC, for example, the Court rejected the
claim that the Tenth Amendment prohibited PURPA from imposing a
financial burden on state utility commissions by requiring them to
comply with certain reporting requirements and to adjudicate
federal disputes through their state mechanism. Id. at 760, 770
n.33. In any event, the states offer no evidence that IGRA
requires them to devote excessive resources to negotiate in good
faith.
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
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. 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,
467 U.S. 822, 828 (1984). IGRA's directive to the states to
conclude a compact must be read in the context of the sections
that immediately follow in 2710(d)(7), which contemplate that a
state and tribe may fail to agree to a compact. In that event,
the states are not required to do anything further, and instead
the Secretary of the Interior takes over. Had Congress intended
to mandate that the states enter into compacts with Indian tribes,
it would not have included these latter sections in 2710(d)(7).18
Cf. Edward J. DeBartolo Corp. v. Florida Gulf
18 25 U.S.C. 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).
Coast Building & Construction Trades Council, 485 U.S. 568, 575
(1988) ("[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.").
There are some similarities between IGRA and the Interstate
Horseracing Act, 15 U.S.C. 3001 et seq., recently upheld in
Kentucky Division, Horsemen's Benevolent & Protective Ass'n, Inc.
v. Turfway Park Racing Ass'n, 20 F.3d 1406, 1415-16 (6th Cir.
1994). Under the Interstate Horseracing Act, a race facility must
obtain the state's consent to participate in interstate wagering.
The state agency responsible for such regulation argued that this
provision violated the Tenth Amendment because it required the
state to exercise its regulatory authority in either granting or
denying such approval. However, the Sixth Circuit concluded that
the Act did not require the states to regulate because a state may
decline to regulate, thereby retaining the federal regulatory ban
on interstate off-track betting pursuant to 3003 of the Act.
Turfway Park, 20 F.3d at 1415-16. Similarly, in the statutory
scheme provided by IGRA, the state's refusal to consent to a
compact merely triggers permissible federal action. Compare Board
of Natural Resources v. Brown, 992 F.2d 937, 946-47 (9th Cir.
1993) (declaring unconstitutional 620c(d)(2) & 620c(d)(3)(A) of
the Forest Resources Conservation and Shortage Relief Act because
they constitute "direct commands to the states to regulate
according to Congress's instructions").
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,
209 U.S. 123 (1908).
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, 209 U.S. at
159-60. A state officer who violates federal law "is stripped of
his official or representative character and is subjected in his
person to the consequences of his individual conduct. The State
has no power to impart to him any immunity from responsibility to
the supreme authority of the United States." Id. at 160.
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 (explaining that the injunction "can
only direct affirmative action where the officer having some duty
to perform not involving discretion, but merely ministerial in its
nature, refuses or neglects to take such action").
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, 11 F.3d at 1028-29 (rejecting Ex parte Young claim
against the governors of Florida and Alabama because the decision
to negotiate is discretionary, not ministerial); Accord Poarch
Band of Creek Indians v. Alabama, 784 F. Supp. 1549, 1551-52 (S.D.
Ala. 1992), aff'd, Seminole Tribe, 11 F.3d at 1028-29.
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, 465 U.S. 89, 101 (1984) (quoting Ford Motor
Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464
(1945)). "The general rule is that a suit is against the
sovereign if `the judgment sought would expend itself on the
public treasury or domain, or interfere with the public
administration,' or if the effect of the judgment would be `to
restrain the Government from acting, or to compel it to act.'"
Dugan v. Rank, 372 U.S. 609, 620 (1963) (quoting Land v. Dollar,
330 U.S. 731, 738 (1947); Larson v. Domestic & Foreign Corp., 337
U.S. 682, 704 (1949)) (emphasis added). Because IGRA names only
the state as the party to negotiate with Indian tribes, an
injunction ordering a Governor to negotiate a compact would
operate against the state itself because the state is the only
party that may enter into a compact with an Indian tribe.
Pennhurst, 465 U.S. at 102 ("[A] suit against state officials that
is in fact a suit against a State is barred regardless of whether
it seeks damages or injunctive relief.").
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.