Sault Ste. Marie Tribe of Chippewa Indians v. State

• Decision Date: 26 March 1992
• Docket Number: No. 1:90-CV-611.,1:90-CV-611.
• Citation: 800 F. Supp. 1484
• Parties: SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS et al., Plaintiffs, v. STATE of Michigan, Defendant.
• Court: U.S. District Court — Western District of Michigan

800 F. Supp. 1484

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS et al., Plaintiffs, v. STATE of Michigan, Defendant.

No. 1:90-CV-611.

United States District Court, W.D. Michigan, S.D.

March 26, 1992.

Bruce Richard Greene, Greene, Meyer & McElroy, PC, Boulder, Colo., Daniel T. Green, Sault Ste Marie Tribe of Chippewa Indians, Sault Ste Marie, Mich., John F. Petoskey, GTB Economic Development Authority, Suttons Bay, Mich., William Rastetter, Cedar, Mich., Joseph P. O'Leary, Keweenaw Bay Indian Community Tribal Center, Baraga, Mich., Michael C. Parish, Dawn S. Duncan, Hannahville Indian Community, Wilson, Mich., Anthony E. Andary, Andary & Andary, PC, Sault Ste. Marie, Mich., James A. Bransky, Michigan Indian Legal Services, Traverse City, Mich., for plaintiffs.

Keith D. Roberts, Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Corrections Div., Lansing, Mich., Nelson W. Westrin, Asst. Atty. Gen., for defendant.

OPINION

BENJAMIN F. GIBSON, Chief Judge.

Pending before this Court is a motion to dismiss made by defendant State of Michigan. The state claims that this suit is barred by the Eleventh Amendment of the United States Constitution.

I.

This suit is brought under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq., which was enacted "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 government." 25 U.S.C. § 2703(1). The statute allows states and Indian tribes to enter compacts through which to govern gaming activities. The statute sets up a classification scheme by which the tribes and the state regulate gaming.

The statutory scheme gives authority to tribes and states to regulate gaming based upon the type of game being played. Traditional Indian games played at pow wows or ceremonials for minimal prizes (Class I gaming) is exclusively regulated by the tribe. Games such as bingo, games similar to bingo, and certain card games (Class II gaming) are regulated by the tribe but subject to the jurisdiction of the National Indian Gaming Commission, a federal agency created under the Act. Class III games, which include all other games, are only lawful if they are authorized by tribal resolution approved by the Chairman, located in a state that permits such gaming for any purpose by any person, and conducted pursuant to the terms of a Tribal-State compact.

Any tribe seeking to permit Class III gaming must first negotiate with the state and enter into a compact with it. 25 U.S.C. § 2710(d)(3)(A). The Act requires that the state act in good faith in negotiating the compact. Id. The statute gives federal district courts jurisdiction over litigation initiated by the tribe against a state for failure to negotiate in good faith. 25 U.S.C. § 2710(d)(7)(A)(i). The statute gives federal courts authority, upon a finding that states have failed to negotiate in good faith, to order the parties to conclude a compact within 60 days. 25 U.S.C. § 2710(d)(7)(B)(iii). If the parties are unable to do so, the court must then appoint a mediator to select a compact which becomes the governing compact between the parties if the state consents in sixty days. 25 U.S.C. § 2710(d)(7)(B)(iv)-(vi). If the state does not consent, then the Secretary of the Interior, in consultation with the tribe, must determine how gaming will be regulated on Indian lands. 25 U.S.C. § 2710(d)(7)(B)(vii).

The plaintiffs in this suit are six federally recognized Indian tribes within the State of Michigan. These tribes operated casinos on their reservations before IGRA was passed. The proceeds from the casinos have been used by their tribal governments. Plaintiffs claim that the tribes contacted then Governor Blanchard within thirty days of the passage of IGRA and requested that the state enter into negotiations for a Tribal-State gaming compact. Negotiations took place between August of 1989 and May of 1990. Negotiations subsequently broke down, and no compact was ever concluded. Plaintiffs claim that the major issue of contention between the parties was whether electronic or electromechanical facsimiles of games of chance (video games) could properly be regulated under the compact.

The plaintiffs assert two claims. First, they argue that the state failed to fulfill its obligation to negotiate in good faith for the purpose of entering a Tribal-State compact. Second, they assert that video games are Class III games which may be included under the Tribal-State compact under the express terms of IGRA. The plaintiffs ask for a declaratory ruling that Michigan has failed to negotiate in good faith and for an order directing the parties to conclude a compact within 60 days and appointing a mediator. Plaintiffs also request a declaratory ruling that video games are games "permitted in the State of Michigan by any person for any purpose, within the meaning of the IGRA." Complaint at 8.

II.

The Eleventh Amendment of the United States Constitution states as follows:

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.

The Eleventh Amendment, as interpreted by the Supreme Court, bars suits against a state government by citizens of another state or citizens of a foreign country. Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899). It also bars suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Supreme Court has explained that the philosophy behind the Eleventh Amendment is "that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty." Blatchford v. Noatak, ___ U.S. ___, ___, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991).

There are several situations in which courts have found that traditional principles of sovereign immunity do not prohibit suits. First, the Supreme Court has found that states may waive sovereign immunity through express legislative enactments demonstrating intentional relinquishment of the state's immunity. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883). The Court has also found that in limited circumstances sovereign immunity may be constructively waived. Constructive waivers have been disfavored by the Court. See Edelman v. Jordan, 415 U.S. 651, 653, 94 S.Ct. 1347, 1351, 39 L.Ed.2d 662 (1974) (stating that "constructive consent is not a doctrine commonly associated with the surrender of constitutional rights and we see no place for it here"). The only time a constructive waiver may exist is if congress clearly indicates an intent to impose liability on a state if it engages in a particular activity and the state nonetheless chooses voluntarily to engage in the conduct. The congressional determination that states should be made liable must be expressed in unmistakably clear language. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). Finally, Congress may, in certain situations — such as when legislating pursuant to the enforcement provisions of Section Five of the Fourteenth Amendment, abrogate the Eleventh Amendment without a state's consent if it does so in clear and unequivocal language. Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976).

III.

Jurisdiction in this suit rests upon Title 28 United States Code Section 1362 and Title 25 United States Code Section 2710(d)(7)(A)(i). Defendant argues that these sections, while providing the Court with jurisdiction over the claims, do not abrogate the state's traditional immunity from suit under the Eleventh Amendment. The Supreme Court recently conclusively determined that Title 28 United States Code Section 1362 did not operate as an abrogation of a state's Eleventh Amendment immunity. Blatchford v. Noatak, ___ U.S. ___, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). The only question for this Court to resolve is whether the IGRA itself overrides sovereign immunity either as an express Congressional abrogation or as a constructive state waiver of immunity.

Plaintiffs forward three arguments to support their contention that the Eleventh Amendment is not a bar to this suit. First, they argue that Michigan constructively consented to be sued, under the "plan of the convention," whenever Congress legislates pursuant to the Indian Commerce Clause. Second, plaintiffs argue that Congress abrogated the state's immunity by acting pursuant to the Indian Commerce Clause. Third, plaintiffs argue that Congress abrogated the state's immunity by acting pursuant to the Interstate Commerce Clause. The Court addresses each of these arguments seriatim.

A.

It is not argued that the State of Michigan has expressly consented to be sued under the IGRA. Plaintiffs contend, instead, that such waiver is implicit in the plan of the convention. Plaintiffs base this argument on two Supreme Court cases which hold that when the states joined the Union, they surrendered certain elements of their sovereignty. These cases hold that state sovereignty cannot be used to prohibit Congress from regulating interstate commerce because the states ceded this power to Congress by adopting the Constitution. Pennsylvania v. Union Gas Co., 491 U.S. 1, 5, 109 S.Ct. 2273, 2276, 105 L.Ed.2d 1 (1989); Parden v. Terminal R. of Alabama Docks Dep't, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Plaintiffs urge that just as...