Seminole Tribe of Florida v. State of Fla.

• Decision Date: 18 January 1994
• Docket Number: Nos. 92-4652,92-6244,s. 92-4652
• Citation: 11 F.3d 1016
• Parties: SEMINOLE TRIBE OF FLORIDA, Plaintiff-Appellee, v. STATE OF FLORIDA, Lawton Chiles, Governor of the State of Florida, Defendants-Appellants. POARCH CREEK INDIANS, Poarch Band of Creek Indians, Plaintiff-Appellant, v. STATE OF ALABAMA, James E. Folsom, Governor, State of Alabama, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1016

11 F.3d 1016

62 USLW 2460

SEMINOLE TRIBE OF FLORIDA, Plaintiff-Appellee, v. STATE OF FLORIDA, Lawton Chiles, Governor of the State of

Florida, Defendants-Appellants.

POARCH CREEK INDIANS, Poarch Band of Creek Indians, Plaintiff-Appellant, v. STATE OF ALABAMA, James E. Folsom, Governor, State of

Alabama, Defendants-Appellees.

Nos. 92-4652, 92-6244.

United States Court of Appeals Eleventh Circuit.

Jan. 18, 1994.

Jonathan A. Glogau, Asst. Atty. Gen., Tallahassee, FL, for defendants-appellants in No. 92-4652.

Bruce S. Rogow, Ft. Lauderdale, FL, for plaintiff-appellee in No. 92-4652.

Richard T. Dorman, David R. Peeler, Mobile, AL, William R. Perry, Sonosky, Chambers, Fachse & Endreson, Washington, D.C., for plaintiff-appellant in No. 92-6244.

Hans Walker, Washington, DC, for amicus Nat. Indian Gaming Assoc.

Donald Juneau, New Orleans, LA, for amicus Tunica-Biloxi Tribe of La.

Carol Jean Smith, Ronald C. Forehand, Mark D. Hess, H. William Wasden, Asst. Attys. Gen., James H. Evans, Atty. Gen., Montgomery, AL, T.A. Harding Fendley, James B. Rossler, Mobile, AL, for defendants-appellees in No. 92-6244.

Appeal from the United States District Court for the Southern District of Florida.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and JOHNSON, Senior Circuit Judge.

TJOFLAT, Chief Judge:

These two consolidated cases present the following issue: whether Congress successfully abrogated the states' Eleventh Amendment sovereign immunity from suit by enacting the Indian Gaming Regulatory Act ("IGRA"), Pub.L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. Secs. 2701-21). ¹ The two district court judges below agreed that IGRA manifested Congress' attempt to abrogate the states' Eleventh Amendment immunity; they disagreed, however, as to whether Congress possesses the power under the Constitution to accomplish that abrogation.

We hold that, although decisions of the Supreme Court demonstrate that Congress does possess the power to abrogate the states' Eleventh Amendment sovereign immunity in certain cases, Congress did not possess that power when enacting IGRA under the Indian Commerce Clause, U.S. Const. art. I, Sec. 8, cl. 3. Thus, the states retain their sovereign immunity and the federal courts do not have subject-matter jurisdiction over suits brought under IGRA. Accordingly, these cases must be dismissed.

In part I, we provide a brief summary of the Indian Gaming Regulatory Act here at issue. In part II, we set forth the facts relevant to these cases. After establishing our jurisdiction and the appropriate standard of review in part III, we examine the Eleventh Amendment issues in part IV and then analyze the effect of our holding in part V. ²

I.

In 1987, the Supreme Court held that a state could not enforce its "civil/regulatory" gaming laws in a manner that would prohibit gaming on Indian lands within its borders. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). That decision left Indian gaming largely unregulated by the states; similarly, "existing federal law d[id] not provide clear standards or regulations for the conduct of gaming on Indian lands." 25 U.S.C. Sec. 2701(3). In an attempt to supply some much-needed regulation, and after contentious debate concerning the appropriate state role in the regulation of Indian gaming, Congress enacted the Indian Gaming Regulatory Act. IGRA's primary purpose was "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." Sec. 2702(1). In order to accomplish this goal, Congress defined classes of Indian gaming, Sec. 2703(6)-(8); established the National Indian Gaming Commission to monitor and regulate some forms of Indian gaming, Secs. 2704-08; and provided a compacting procedure by which states might participate in the regulation of certain forms of Indian gaming, Sec. 2710(d).

Briefly summarized, Congress divided Indian gaming into three "classes." Class I gaming, which is governed and regulated solely by individual Indian tribes, includes little more than "social games solely for prizes of minimal value...." Sec. 2703(6). Class II gaming, which is subject to certain federal regulations, includes bingo and comparable games as well as non-banking card games where not prohibited by state law. ³ Sec. 2703(7)(A). Neither of these classes is relevant to the cases on appeal.

These cases address the third class of gaming. Class III gaming is defined residually; it includes "all forms of gaming that are not class I gaming or class II gaming." Sec. 2703(8). Specifically excluded from class II, and therefore within the parameters of class III, are banking card games and "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind." Sec. 2703(7)(B). Class III gaming is the type of gaming most profitable to the tribes; it also is the gaming in which the states desire the greatest regulatory oversight.

In order to achieve a compromise between the interests of the states and the interests of the Indian tribes, Congress mandated that class III gaming activities would be lawful on Indian lands only when those activities are (a) authorized by the tribe; (b) located in a state that permits such gaming; and, most importantly, (c) "conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ... that is in effect." Sec. 2710(d)(1). To ensure that dilatory actions by the state could not preclude or unreasonably delay Indian gaming, IGRA also delineated a negotiating process designed to culminate in the Tribal-State compact and provided mechanisms to remedy state misconduct.

Under the statute, the tribe initiates the compacting process by requesting that the state enter into negotiations for the purpose of concluding a Tribal-State compact governing the conduct of gaming activities; in IGRA, Congress mandated that the state "shall negotiate with the Indian tribe in good faith to enter into a compact." Sec. 2710(d)(3)(A). If these negotiations bear fruit, the compact must be approved by the Secretary of the Interior and published in the Federal Register. Sec. 2710(d)(8).

Congress also anticipated that Tribal-State negotiations would not always produce a mutually satisfactory compact; it thus provided tribes with a remedy in the federal courts:

(A) 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....

....

(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under paragraph (3)(A).

Sec. 2710(d)(7)(A)(i) & (B)(i). If the district court finds that the state indeed has failed to negotiate in good faith, that court "shall order the State and the Indian Tribe to conclude such a compact within a 60-day period." Sec. 2710(d)(7)(B)(iii). If that fails, "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." Sec. 2710(d)(7)(B)(iv). The mediator then selects the better of the two proposals and submits it to the tribe and the state. The state then either may consent to the compact within sixty days, in which case the compact is treated as if it were the product of negotiations; or may refuse to consent, in which case the Secretary of the Interior provides procedures to regulate the tribe's class III gaming. Sec. 2710(d)(7)(B)(vi) & (vii).

Defendants in these two cases assert that the federal jurisdiction granted by Sec. 2710(d)(7) is contrary to their Eleventh Amendment sovereign immunity and demand that the tribes' cases be dismissed.

II.

The facts of these cases are few and easily summarized. The first case, Seminole Tribe of Florida v. Florida, No. 92-4652, was filed by the Seminole Tribe, federally recognized as a tribe under Section 16 of the Indian Reorganization Act, 25 U.S.C.A. Sec. 476 (West 1983 & Supp.1993). The complaint, filed in the Southern District of Florida on September 19, 1991, asserted jurisdiction largely under 25 U.S.C. Sec. 2710(d)(7)(A)(i) and alleged that the State of Florida and its governor, Lawton Chiles, had "failed to respond in good faith to the Tribe's request for compact negotiations and have not conducted those negotiations in good faith." Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction based on the sovereign immunity enjoyed by the State of Florida and the Governor of Florida under the Eleventh Amendment. On June 18, 1992, the district court denied the motion, 801 F.Supp. 655 (S.D.Fla.1992) ("Seminole "), and this interlocutory appeal ensued.

The second case, Poarch Band of Creek Indians v. Alabama, No. 92-6244, presents a similar initial fact pattern. The Poarch Band, also a federally recognized tribe, filed suit against the State of Alabama and its governor, Guy Hunt (for whom the current governor, James E. Folsom, Jr., has been substituted), on September 11, 1991. Also asserting jurisdiction largely under 25 U.S.C. Sec. 2710(d)(7)(A)(i), the complaint is designed to resolve for the State and the Tribe various questions regarding IGRA's definition of class III gaming. The State of Alabama's answer claimed a defense of sovereign immunity under the Eleventh Amendment; the district court granted the State's subsequent motion to dismiss based upon this defense on October 30, 1991. 776 F.Supp. 550 (S.D.Ala.1991) ("Poarch I ")....