Kickapoo Tribe of Indians v. State of Kan.

• Decision Date: 29 March 1993
• Docket Number: No. 92-4233-SAC,92-4234-SAC.,92-4233-SAC
• Citation: 818 F. Supp. 1423
• Parties: The KICKAPOO TRIBE OF INDIANS, of the Kickapoo Reservation in Kansas, a/k/a Kickapoo Nation in Kansas, et al., Plaintiffs, v. STATE OF KANSAS, Defendant. PRAIRIE BAND OF POTAWATOMI INDIANS, a federally recognized tribe, Plaintiff, v. STATE OF KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

818 F. Supp. 1423

The KICKAPOO TRIBE OF INDIANS, of the Kickapoo Reservation in Kansas, a/k/a Kickapoo Nation in Kansas, et al., Plaintiffs, v. STATE OF KANSAS, Defendant.

PRAIRIE BAND OF POTAWATOMI INDIANS, a federally recognized tribe, Plaintiff, v. STATE OF KANSAS, Defendant.

Nos. 92-4233-SAC, 92-4234-SAC.

United States District Court, D. Kansas.

March 29, 1993.

C. Bruce Works, Works, Works & Works, P.A., Topeka, KS, Robert L. Pirtle, Pirtle, Morisset, Schlosser & Ayer, Seattle, WA, for Potawatomi Indians, Prairie Band of, a federally recognized tribe, plaintiff.

Lance W. Burr, Lawrence, KS, Glenn M. Feldman, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A., Phoenix, AZ, for The Kickapoo Tribe of Indians, of the Kickapoo Reservation in Kansas and Steve Cadue, Tribal Chairman of the Kickapoo Nation in Kansas, plaintiffs.

John W. Campbell, Office of the Attorney General, Topeka, KS, for State of Kansas, defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

These consolidated cases come before the court on the defendant's motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss for lack of jurisdiction. The State of Kansas argues the Eleventh Amendment precludes this court from exercising jurisdiction. The plaintiffs oppose the motion on several different grounds. The parties request oral argument on the motion. The court denies the request as oral argument would not materially assist the court in deciding the motion.

The plaintiffs bring their suits under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. In the wake of California v. Cabazon Band of Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), Congress enacted IGRA. The Supreme Court in Cabazon held that California in regulating tribal bingo games impermissibly interfered with tribal government. 480 U.S. at 222, 107 S.Ct. at 1095. California's interest in preventing organized crime's involvement was outweighed by the tribal interests in self-sufficiency and economic development. 480 U.S. at 219-22, 107 S.Ct. at 1093-95. With tribes rushing to start or expand their gaming enterprises and the federal and state governments alarmed over the potential ills if gaming on Indian reservations went unregulated, Congress stepped in and passed IGRA as a compromise of the competing interests.¹

IGRA is to serve as the statutory basis for the operation and regulation of gaming by Indian tribes. 25 U.S.C. § 2702. IGRA separates gaming activities into three classes and specifies a different degree of governmental intervention in the regulation of each class. Class I gaming includes social games played for minimal prizes or as part of tribal ceremonies or celebrations. 25 U.S.C. § 2703(6). It is within the tribes' exclusive jurisdiction and is not subject to IGRA or to state or federal regulation. 25 U.S.C. § 2710(a)(1). Class II gaming covers bingo, pull tabs, lotto, punch boards and certain non-banking card games. Though not subject to state regulation, class II gaming may be conducted only "within a State that permits such gaming for any purpose by any person, organization or entity." 25 U.S.C. § 2710(b)(1)(A). The regulation of class II gaming remains with the tribes with some oversight by the National Indian Gaming Commission ("NIGC"). All other gaming activities come within class III gaming and are legal only if authorized by tribal resolution, approved by the chairman of the NIGC, "located in a state that permits such gaming for any purpose by any person, organization or entity," and "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State." 25 U.S.C. § 2710(d)(1).

A tribe seeking to conduct or continue class III gaming must request negotiations with the state where the tribal land is located. The state must then "negotiate with the Indian tribe in good faith to enter into such a compact." 25 U.S.C. § 2710(3)(A). When a tribe, like the plaintiffs here, thinks the state has not entered into negotiations or has not conducted such negotiations in good faith, the tribe may sue the state. 25 U.S.C. § 2710(7).

IGRA vests federal district courts with jurisdiction over these suits:

The United States district courts shall have jurisdiction over —

(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith,

(ii) any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in effect, and

(iii) any cause of action initiated by the Secretary to enforce the procedures prescribed under subparagraph (B)(vii).

Facing this explicit and plain grant of federal court jurisdiction over it, the State of Kansas moves to dismiss the plaintiffs' suits arguing the Eleventh Amendment bars this court from exercising such jurisdiction.

The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. As construed by the Supreme Court, this amendment embodies more than what its literal text conveys. Long ago, in Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890), the Court held that the Eleventh Amendment precludes citizens from bringing suits in federal court against their own states. Though the exact words of the Eleventh Amendment only refer to suits brought by citizens of another state, this judicial gloss has stood the test of time because of its constitutional underpinning:

Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1, 33 L.Ed. 8421 842, 10 S.Ct. 504 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.... (citations omitted).

Blatchford v. Native Village of Noatak, ___ U.S. ___, ___, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686, 694 (1991); see Welch v. Dept. of Highways & Public Transp., 483 U.S. 468, 472, 107 S.Ct. 2941, 2945, 97 L.Ed.2d 389 (1987) (plurality opinion). In other words, the Eleventh Amendment affirms "`that the fundamental principle of sovereign immunity limits the grant of judicial authority under Art. III' of the Constitution." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985) (quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984)). The current interpretation of the Eleventh Amendment even bars Indian tribes from bringing suit against a state in federal court. Blatchford, ___ U.S. at ___-___, 111 S.Ct. at 2581-82, 115 L.Ed.2d at 694-96.²

Though often couched in terms of sovereign immunity, the Eleventh Amendment functions as a jurisdictional bar. See Welch, 483 U.S. at 476 n. 6, 107 S.Ct. at 2947 n. 6 (the "Eleventh Amendment immunity `partakes of the nature of a jurisdictional bar,'") (quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974)); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1559 (10th Cir.1992), reh'g granted, (Nov. 12, 1992). "The Eleventh Amendment bar to suit is not absolute." Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990). There are two recognized ways for a federal court to gain jurisdiction over a state: consent or waiver of immunity by the state and abrogation of immunity by Congress. Feeney, 495 U.S. at 272, 110 S.Ct. at 305. On the qualitative weight of existing precedent, the court finds the second exception controlling here.

Because the typical constitutional balance between the states and the federal government is upset when the states lose their Eleventh Amendment immunity, the courts must be certain that Congress intended this. Feeney, 495 U.S. at 305, 110 S.Ct. at 1872.³ To ensure this certainty, Congress' intention must be "unequivocally expressed" or "unmistakably clear" in the statutory language. Atascadero State Hospital v. Scanlon, 473 U.S. at 242-43, 105 S.Ct. at 3147. "Evidence of congressional intent must be both unequivocal and textual." Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989). The statutory language must offer more than a permissible inference that Congress intended to abrogate the states' immunity; it must unequivocally declare this intent. Id. Nor is it enough that the federal statute generally authorizes suit in federal court. Atascadero State Hospital v. Scanlon, 473 U.S. at 246, 105 S.Ct. at 3149.

The proper place to begin in deciding the issue of congressional abrogation is the statutory language. Dellmuth v. Muth, 491 U.S. at 231, 109 S.Ct. at 2402. The State of Kansas contends IGRA lacks a plain statement to abrogate Eleventh Amendment immunity. Specifically, IGRA does not refer to the Eleventh Amendment or sovereign immunity and does not preclude a state from asserting these defenses or similar ones. The State of Kansas largely relies on this corollary found in Blatchford: "The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim." ___ U.S. at ___ n. 4, 111 S.Ct. at 2585 n. 4, 115 L.Ed.2d at 686 n. 4 (emphasis in original).

In unambiguous terms, IGRA provides that federal district courts "shall have jurisdiction over any cause of action initiated by an Indian tribe arising from the failure of a...