Indian Law Resources Information

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.