State of Florida v. Seminole Tribe , 181 F.3d 1237 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
07/20/99
THOMAS K. KAHN
No. 97-5361 CLERK
D.C. Docket No. 96-Civ-2063-UUB
STATE OF FLORIDA,
Plaintiff-Appellant,
versus
SEMINOLE TRIBE OF FLORIDA,
JAMES E. BILLIE, Chairman,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(July 20, 1999)
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
TJOFLAT, Circuit Judge:
This case, which involves alleged class III tribal gaming activity as defined
by the Indian Gaming Regulatory Act (“IGRA”),1 demonstrates the continuing
vitality of the venerable maxim that turnabout is fair play. In 1994, we held that
the principle of state sovereign immunity embodied in the Eleventh Amendment
barred the Seminole Tribe of Florida (“the Tribe”) from suing the State of Florida
under 25 U.S.C. § 2710(d)(7)(A)(i) (1994) for the State’s alleged failure to
negotiate in good faith regarding the formation of a Tribal-State compact to
regulate class III gaming. See Seminole Tribe v. Florida, 11 F.3d 1016, 1029 (11th
Cir. 1994), aff’d, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). In this
case, the State has sued the Tribe and its Chairman, James E. Billie, for both a
declaration that the Tribe is conducting unauthorized class III gaming operations
and an injunction preventing such operations in the absence of a Tribal-State
compact. The district court granted the Tribe’s motion to dismiss on the ground of
tribal sovereign immunity, and granted Chairman Billie’s motion to dismiss for
failure to state a claim upon which relief can be granted. We affirm.
1
Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-21 (1994)).
For a general discussion of the three classes of tribal gaming established by the litigation-
spawning juggernaut known as IGRA, see Seminole Tribe v. Florida, 11 F.3d 1016, 1019 (11th
Cir. 1994).
1
I.
The relevant facts may be briefly stated. The State commenced this action
on July 29, 1996, and filed its amended complaint – the pleading at issue here – on
September 9. In this complaint, the State alleged2 that the Tribe was operating
“electronic or electromechanical facsimiles of games of chance” and that such
operations constituted class III gaming as defined by IGRA. See 25 U.S.C. §
2703(7)(B)(ii), (8) (1994). The Tribe operated these games despite the absence of
a compact between the Tribe and the State regarding the regulation of class III
gaming. The State also alleged that the Tribe planned to construct a new facility
on its lands in order to conduct additional class III gaming.
According to the State’s complaint, the operation of such games without a
Tribal-State compact violates both federal and state law. In support of this claim,
the State first points to IGRA’s rule that “[c]lass III gaming activities shall be
lawful on Indian lands only if such activities are . . . conducted in conformance
with a Tribal-State compact entered into by the Indian tribe and the State under
[section 2710(d)(3)] that is in effect.” 25 U.S.C. § 2710(d)(1)(C) (1994). Second,
the State contends that the Tribe’s games are “gambling devices” within the
2
We accept the factual allegations of the State’s amended complaint as true in reviewing
the defendants’ motion to dismiss. See Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534
(11th Cir. 1994).
2
meaning of 15 U.S.C. § 1171(a) (1994), and thus that 15 U.S.C. § 1175(a) (1994)
makes it a crime to possess or use them within Indian country. IGRA creates an
exception to this prohibition by providing that section 1175 “shall not apply to any
gaming conducted under a Tribal-State compact that – (A) is entered into . . . by a
State in which gambling devices are legal, and (B) is in effect.” 25 U.S.C. §
2710(d)(6) (1994). The State argues, however, that this exception is inapplicable
both because it has no compact with the Tribe and because the Tribe’s games
constitute illegal “slot machines” under Florida law. See Fla. Stat. ch. 849.15-16
(1997) (making it a crime, inter alia, to “possess” or “permit the operation of” such
machines). Finally, the State contends that the Tribe has committed additional
federal crimes by violating this state-law ban on slot machines, which applies to
the Tribe’s lands for purposes of federal law. See 18 U.S.C. § 1166 (1994)
(applying state laws regulating or prohibiting gambling to Indian country for
purposes of federal law, defining – by reference to state gambling laws –
independent federal offenses involving gambling in Indian country, and granting
the United States exclusive jurisdiction over criminal prosecutions for violating
state gambling laws unless a tribe consents to state jurisdiction); 18 U.S.C. § 1955(1994) (criminalizing a “gambling business” conducted in violation of state law).
3
Based on these factual allegations and arguments, the State asked the district
court to declare that the Tribe was conducting unauthorized class III gambling
operations in the absence of a Tribal-State compact, and to enjoin the Tribe from
conducting any such operations without a compact.3 On October 10, 1996, the
Tribe and Chairman Billie moved to dismiss the State’s amended complaint on the
following grounds: tribal sovereign immunity, lack of standing, and failure to state
a claim. The district court granted this motion on June 15, 1997. The court found
that the State’s action was barred as to the Tribe because the Tribe had not
expressly agreed to waive its sovereign immunity. The court also concluded that
the State had failed to state a claim against Chairman Billie because there was no
3
The State’s amended complaint also contained a second count in which it sought a
declaration either that IGRA did not preempt or repeal the State’s criminal jurisdiction (derived
from former Section 7 of Public Law 280, 67 Stat. 588, 590 (1953), and Fla. Stat. ch. 285.16
(1997), see generally Seminole Tribe v. Butterworth, 658 F.2d 310, 312-13 (5th Cir. Unit B Oct.
1981)) to prosecute those engaged in illegal gaming on the Tribe’s lands or that IGRA, if it did
have that effect pursuant to 18 U.S.C. § 1166(d) (1994), violated the Tenth Amendment. Cf.
Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 539-40 (9th Cir. 1994) (finding that
section 1166(d) gives the United States exclusive jurisdiction to prosecute violations of state
gambling laws in Indian country under certain circumstances despite the jurisdiction previously
granted to states under Public Law 280).
The defendants moved to dismiss this count of the State’s amended complaint on October
10. The district court granted this motion as to the Tribe on the ground of sovereign immunity,
but denied it as to Chairman Billie based on the State’s allegation that the Tribe had consented to
State jurisdiction over Indian lands in Florida. After conducting an exhaustive review of the
evidence supporting this allegation, however, the State voluntarily dismissed this count on July
11, 1997.
4
implied right of action under IGRA for declaratory or injunctive relief against
unlawful class III gaming. This appeal followed.
II.
On appeal, the State challenges both the district court’s finding of tribal
sovereign immunity and its conclusion that the State failed to state a claim against
Chairman Billie. We review the district court’s rulings on these two questions of
law de novo.4 See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, No. 96-
5262, — F.3d —, — (11th Cir. 1999) [slip op. 2751, 2764; June 7, 1999]; Womack
v. Runyon, 147 F.3d 1298, 1299 (11th Cir. 1998).
4
In light of our conclusion in part II.B., infra, that the State has failed to state a claim
against Chairman Billie, it might be argued that the State has likewise failed to state a claim
against the Tribe and therefore that it is unnecessary for us to determine whether the Tribe’s
sovereign immunity bars this suit. This argument, however, ignores the fundamentally
jurisdictional nature of a claim of sovereign immunity. See, e.g., United States v. County of
Cook, Ill., 167 F.3d 381, 390 (7th Cir. 1999) (noting the Supreme Court’s “thoroughgoing
equation of sovereign immunity to a jurisdictional shortcoming”); Fletcher v. United States, 116
F.3d 1315, 1326 (10th Cir. 1997) (holding that the Osage Tribal Council and its members
“properly and adequately challenged federal jurisdiction on the ground of tribal sovereign
immunity”); Kreig v. Prairie Island Dakota Sioux (In re Prairie Island Dakota Sioux), 21 F.3d
302, 305 (8th Cir. 1994) (finding that tribal “sovereign immunity is a jurisdictional consideration
separate from subject matter jurisdiction”); Maynard v. Narragansett Indian Tribe, 984 F.2d 14,
16 (1st Cir. 1993) (holding that tribal immunity was not waived or abrogated, and thus that
district court correctly dismissed action for lack of jurisdiction); Pan Am. Co. v. Sycuan Band of
Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989). Because of its jurisdictional nature, we must
consider the Tribe’s claim of sovereign immunity before reaching the issue of failure to state a
claim. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-62, 98 S. Ct. 1670, 1677-79, 56 L.
Ed. 2d 106 (1978) (deciding first that suit against tribe was barred by sovereign immunity, and
then finding that plaintiffs had no implied right of action against tribal official).
5
A.
“Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106(1978). A suit against an Indian tribe is therefore barred unless the tribe clearly
waived its immunity or Congress expressly abrogated that immunity by authorizing
the suit. See Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751, —, 118 S.
Ct. 1700, 1702, 140 L. Ed. 2d 981 (1998); Oklahoma Tax Comm’n v. Citizen Band
Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S. Ct. 905, 909, 112 L. Ed. 2d
1112 (1991); Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians, 166 F.3d
1126, 1130-31 (11th Cir. 1999).
As we read its briefs on appeal, the State offers three theories to support its
argument that the Tribe’s sovereign immunity does not bar this suit: (1) Congress
abrogated tribal immunity from state suits that seek declaratory or injunctive relief
for alleged tribal violations of IGRA; (2) the Tribe, by electing to engage in
gaming under IGRA, waived its immunity from a suit to require compliance with
the statutory conditions precedent to class III gaming; and (3) tribal immunity does
not necessarily extend to actions seeking prospective equitable relief. Although
6
some courts have muddled the distinctions among these theories,5 they are actually
quite different and will be considered separately here.
1.
We have previously held that “Congress abrogates tribal immunity only
where the definitive language of the statute itself states an intent either to abolish
Indian tribes’ common law immunity or to subject tribes to suit under the act.”
Florida Paraplegic Ass’n, 166 F.3d at 1131. In IGRA, Congress abrogated tribal
immunity by authorizing a state to sue a tribe in district court “to enjoin a class III
gaming activity located on Indian lands and conducted in violation of any Tribal-
State compact entered into under [section 2710(d)(3)] that is in effect.” 25 U.S.C.
§ 2710(d)(7)(A)(ii) (1994). The State, citing Mescalero Apache Tribe v. New
Mexico, 131 F.3d 1379, 1385-86 (10th Cir. 1997), argues that this provision of
5
See, e.g., Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.
1997) (citing cases regarding waiver of tribal immunity as support for proposition that Congress
abrogated tribal immunity in IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738,
744-45 (D.S.D. 1992) (conflating issues of whether tribe waived sovereign immunity by
engaging in gaming under IGRA and whether tribe’s immunity extended to action seeking
prospective equitable relief).
Some of this confusion may stem from the Santa Clara Pueblo decision, in which the
Supreme Court considered whether a particular statutory provision could “be read as a general
waiver of the tribe’s sovereign immunity” by Congress. 436 U.S. at 59, 98 S. Ct. at 1677(emphasis added). We believe that it is most conducive to reasoned analysis to have separate
terms for a congressional deprivation of tribal sovereign immunity as distinguished from a
voluntary tribal relinquishment thereof. In this opinion, therefore, we refer to the former as a
congressional abrogation of immunity and to the latter as a tribal waiver of immunity.
7
IGRA evinces a broad congressional intent to abrogate tribal immunity from any
state suit that seeks declaratory or injunctive relief for an alleged tribal violation of
IGRA. We disagree.
As an initial matter, we find that Mescalero provides no support for the
State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii),
claimed that a majority of courts agree that “IGRA [abrogated6] tribal sovereign
immunity in the narrow category of cases where compliance with IGRA’s
provisions is at issue and where only declaratory or injunctive relief is sought.”
131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of
its claim addressed an entirely different matter, to wit: whether a tribe voluntarily
waives its own sovereign immunity by engaging in gaming under IGRA. See infra
part II.A.2. (discussing tribal waiver of immunity). In light of this absence of
supporting authority, we find the Mescalero panel’s claim difficult to credit.
Moreover, we conclude that the panel’s claim – and thus the State’s
argument in favor of a broad reading of section 2710(d)(7)(A)(ii) – directly
contradicts two well-established principles of statutory construction: that Congress
may abrogate a sovereign’s immunity only by using statutory language that makes
6
The Mescalero panel actually used the word “waived.” We substitute the word
“abrogated” for the reasons discussed in note 5, supra.
8
its intention unmistakably clear,7 and that ambiguities in federal laws implicating
Indian rights must be resolved in the Indians’ favor. See Florida Paraplegic Ass’n,
166 F.3d at 1131 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242,
105 S. Ct. 3142, 3147, 87 L. Ed. 2d 71 (1985); Montana v. Blackfeet Tribe of
Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985)).
When section 2710(d)(7)(A)(ii) of IGRA is read in light of these principles, it
becomes clear that Congress abrogated tribal immunity only in the narrow
circumstance in which a tribe conducts class III gaming in violation of an existing
Tribal-State compact. Cf. Cabazon Band of Mission Indians v. Wilson, 124 F.3d
1050, 1059-60 (9th Cir. 1997) (concluding that section 2710(d)(7)(A)(ii) did not
authorize state’s suit to enjoin tribal class III gaming that existing Tribal-State
compact did not prohibit). Because the State and the Tribe have not entered into a
compact in this case, we hold that Congress has not abrogated the Tribe’s
immunity from the State’s suit.
2.
7
Citations to legislative history or inferences from general statutory language are
insufficient bases for a finding of congressional abrogation. See Florida Paraplegic Ass’n, 166
F.3d at 1131.
9
The State next argues that the Tribe, by electing to engage in gaming subject
to regulation under IGRA, waived its own immunity from this suit to compel
compliance with IGRA’s requirement that the Tribe enter into a Tribal-State
compact before conducting class III gaming. See 25 U.S.C. § 2710(d)(1)(C).
There is some support for this argument in the case law. In Ross v. Flandreau
Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992), for example, the court
held that “[e]ngaging in gaming pursuant to the IGRA constitutes an express
waiver of sovereign immunity on the issue of compliance with the IGRA.” See
also Maxam v. Lower Sioux Indian Community, 829 F. Supp. 277, 281 (D. Minn.
1993) (“The Community’s decision to conduct class II gaming pursuant to the
IGRA constitutes a clear waiver of sovereign immunity for the purpose of
enforcement of the requirements imposed as a statutory condition of permission to
engage in such activities.”). But see Davids v. Coyhis, 869 F. Supp. 1401, 1407-09
(E.D. Wis. 1994) (rejecting Ross and Maxam as contrary to the Supreme Court’s
decision in Santa Clara Pueblo).
The district court in this case, however, concluded that Ross and Maxam
were wrongly decided. We agree. The Supreme Court has made it plain that
waivers of tribal sovereign immunity cannot be implied on the basis of a tribe’s
10
actions, but must be unequivocally expressed.8 The State’s argument that the
Tribe’s gaming activities constitute a waiver of sovereign immunity is patently
inconsistent with this rule. Although the Ross court claimed that such gaming
activities could constitute an express waiver, we find this claim to be no more than
a misuse of the word “express.” See Black’s Law Dictionary 580 (6th ed. 1990)
(defining express as “[m]anifested by direct and appropriate language, as
distinguished from that which is inferred from conduct.”). We hold, therefore, that
the Tribe did not expressly and unequivocally waive its immunity from this suit by
electing to engage in gaming under IGRA.
We are aware of the State’s concern, echoed by the court in Maxam, 829 F.
Supp. at 281, that this holding will effectively nullify its rights under IGRA by
leaving it with no forum in which it can prevent the Tribe from violating IGRA
8
See Santa Clara Pueblo, 436 U.S. at 58, 98 S. Ct. at 1677 (noting that waivers of
sovereign immunity “cannot be implied but must be unequivocally expressed” (internal
quotation marks omitted)); see also Oklahoma Tax Comm’n, 498 U.S. at 509-510, 111 S. Ct. at
909 (following United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 511-12, 60
S. Ct. 653, 655-56, 84 L. Ed. 894 (1940), in concluding that tribe did not waive sovereign
immunity from counterclaim by filing action for injunctive relief); Puyallup Tribe, Inc. v.
Department of Game, 433 U.S. 165, 173, 97 S. Ct. 2616, 2621, 53 L. Ed. 2d 667 (1977)
(concluding that “the mere fact that the Tribe has appeared on behalf of [individual tribal
members whom the State of Washington sued in its courts] does not effect a waiver of sovereign
immunity for the Tribe itself”); Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1063 (10th Cir.
1995) (finding that “a waiver of sovereign immunity cannot be inferred from the Nation’s
engagement in commercial activity”); American Indian Agric. Credit Consortium, Inc. v.
Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985) (rejecting conclusion that tribal
sovereign immunity “need not be expressly waived, but can be waived by implication, in
contract actions”).
11
with impunity. Even if we were to assume arguendo that the State is correct, it is
far from clear that “tribal [sovereign] immunity [must give way to] federal
jurisdiction when no other forum is available for the resolution of claims.”9 Fluent
v. Salamanca Indian Lease Auth., 928 F.2d 542, 547 (2d Cir. 1991) (rejecting this
proposition); accord Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1266
n.8 (10th Cir. 1998) (“The proposition that tribal immunity is waived if a party is
otherwise left without a judicial remedy is inconsistent with the reasoning of Santa
Clara Pueblo.”); Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990)
(“Sovereign immunity may leave a party with no forum for its claims.”); cf.
Florida Paraplegic Ass’n, 166 F.3d at 1134 (implying that lack of forum in which
to pursue claim has no bearing on tribal sovereign immunity analysis). We need
not decide this question here, however, because it is clear that other fora do exist in
which the State may press its claims. For example, the State can request that the
United States prosecute the Tribe or its members for violating applicable state or
9
In part, the Maxam court seems to have based its conclusion that tribal immunity must
give way in such circumstances on the Supreme Court’s opinion in Oklahoma Tax Commission,
which it cites for the proposition that “tribal sovereign immunity does not excuse tribes from all
legal obligations.” Maxam, 829 F. Supp. at 281 (citing Oklahoma Tax Comm’n, 498 U.S. at
512-15, 111 S. Ct. at 911-12). This reading of Oklahoma Tax Commission is overly broad. In
that case, the Supreme Court stated merely that the doctrine of tribal sovereign immunity “does
not excuse a tribe from all obligations to assist in the collection of validly imposed state sales
taxes.” 498 U.S. at 512, 111 S. Ct. at 911. “To say [– as the Court did in Oklahoma Tax
Commission – that] substantive state laws apply to off-reservation conduct, however, is not to
say that a tribe no longer enjoys immunity from suit.” Kiowa Tribe, 523 U.S. at —, 118 S. Ct. at
1703.
12
federal gambling laws.10 See supra part I (listing the various criminal laws
allegedly violated by the Tribe). The State can also ask the National Indian
Gaming Commission (“NIGC”) to fine the Tribe or to close its gaming facilities.
See 25 U.S.C. § 2713 (1994).
3.
Finally, the State seeks to avoid the bar of tribal sovereign immunity by
arguing that the Tribe’s immunity does not necessarily extend to this action for
10
We express no opinion regarding the merits of such a prosecution or any possible
defenses thereto. We note, however, that the United States has opted (at least initially) to forgo
prosecution in favor of bringing a civil enforcement action to enjoin the Tribe’s allegedly
unauthorized gaming activities. The Tribe moved to dismiss the Government’s complaint for
failure to state a claim, arguing that the Government had no authority to seek civil injunctive
relief. The district court held that the Government did have such authority under Florida law as
applied to Indian country by 18 U.S.C. § 1166(a). See United States v. Seminole Tribe, No. 97-
1481-Civ-T-17A, — F. Supp. 2d — (M.D. Fla. March 4, 1999) (denying motion to dismiss); Fla.
Stat. ch. 849.20-21 (1997); cf. infra note 13 (discussing whether section 1166(a) incorporates
Florida law in this manner). In so holding, the court seemed to be cognizant of the rule that
equity will not enjoin the commission of a crime, which is a corollary of the more general
principle that injunctive relief is unavailable when there is an adequate remedy at law. See, e.g.,
Weaver v. Florida Power & Light Co., 172 F.3d 771, 773 (11th Cir. 1999) (stating general
principle); United States v. Washington Post Co., 446 F.2d 1322, 1324 (D.C. Cir. 1971); United
States v. Bay Mills Indian Community, 692 F. Supp. 777, 779-80 (W.D. Mich. 1988), vacated on
other grounds, 727 F. Supp. 1110 (W.D. Mich. 1989); 11A Charles Alan Wright et al., Federal
Practice & Procedure § 2942, at 70-71 (2d ed. 1995). The court apparently concluded that this
rule was inapplicable in light of its holding that an action for injunctive relief was specifically
authorized by applicable Florida law. See, e.g., United States v. Santee Sioux Tribe, 135 F.3d
558, 565 (8th Cir.), cert. denied, — U.S. —, 119 S. Ct. 48, 142 L. Ed. 2d 37 (1998) (recognizing
exception to rule if statute expressly grants court power to enjoin crime); LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 434 (2d Cir. 1995); United States v. Buttorff, 761 F.2d 1056, 1063 (5th
Cir. 1985); United States v. Jalas, 409 F.2d 358, 360 (7th Cir. 1969). We express no opinion on
the correctness of either this conclusion or the district court’s holding.
13
prospective equitable relief. This argument is rooted in the following comment
from Justice Stevens’ concurring opinion in Oklahoma Tax Commission: “the
Court today recognizes that a tribe’s sovereign immunity from actions seeking
money damages does not necessarily extend to actions seeking [prospective]
equitable relief.” 498 U.S. at 516, 111 S. Ct. at 913 (Stevens, J., concurring).
Some of the above-mentioned courts have seized upon Justice Stevens’ comment
to support their conclusion that tribal sovereign immunity does not bar a suit to
require tribal compliance with the statutory conditions precedent to gaming under
IGRA. See Maxam, 829 F. Supp. at 281-82; Ross, 809 F. Supp. at 744-45.
We conclude that Justice Stevens’ comment provides no solace to the State,
however, because it is not the law. In Santa Clara Pueblo, 438 U.S. at 58-59, 98 S.
Ct. at 1677, decided well before Oklahoma Tax Commission, the Court
unequivocally upheld a tribe’s immunity from a suit that sought only declaratory
and prospective injunctive relief. In our view, this aspect of Santa Clara Pueblo
remains the law today. Despite Justice Stevens’ claim to the contrary (which was
not joined by any other member of the Court), the Oklahoma Tax Commission
majority announced that it was “not disposed to modify the long-established
14
principle of tribal sovereign immunity.”11 498 U.S. at 510, 111 S. Ct. at 910.
Moreover, the Court has since reaffirmed the doctrine of tribal sovereign immunity
– over Justice Stevens’ dissent – in the strongest of terms. See Kiowa Tribe, 523
U.S. at —, 118 S. Ct. at 1702 (“As a matter of federal law, an Indian tribe is
subject to suit only where Congress has authorized the suit or the tribe has waived
its immunity.” (emphasis added)).
We discern two very good reasons for the Court’s reluctance to sanction
modifications of tribal sovereign immunity doctrine such as the one advocated by
Justice Stevens: lack of precedent and deference to Congress. As to the first
reason, we are aware of Justice Stevens’ view that Edelman v. Jordan, 415 U.S.
651, 664-65, 94 S. Ct. 1347, 1356-57, 39 L. Ed. 2d 662 (1974), provides analogical
support for his conception of tribal sovereign immunity. See Oklahoma Tax
Comm’n, 498 U.S. at 515, 111 S. Ct. at 912 (Stevens, J., concurring). We
respectfully disagree. Edelman merely discusses the type of relief that may be
obtained in a suit against an individual officer of a sovereign; it says nothing
whatsoever that could be construed to support the proposition that an otherwise-
11
In addition, as the Tenth Circuit has noted, the majority opinion implicitly rejected
Justice Stevens’ position by suggesting certain alternative remedies – other than a suit against
the Tribe – that Oklahoma could pursue in order to collect its sales tax. See Oklahoma Tax
Comm’n, 498 U.S. at 514, 111 S. Ct. at 912; Citizen Band Potawatomi Indian Tribe v. Oklahoma
Tax Comm’n, 969 F.2d 943, 948 n.5 (10th Cir. 1992).
15
immune sovereign may itself be sued if only prospective equitable relief is sought.
Cf. Seminole Tribe, 517 U.S. at 58, 116 S. Ct. at 1124 (“[W]e have often made it
clear that the relief sought by a plaintiff suing a State is irrelevant to the question
whether the suit is barred by the [principle of sovereign immunity embodied in the]
Eleventh Amendment.”). Regarding the issue of deference, we note that Congress
has been consistent in its approval of the Supreme Court’s tribal sovereign
immunity doctrine and has acted against the background of this doctrine in order to
restrict tribal immunity in certain circumstances. See Kiowa Tribe, 523 U.S. at —,
118 S. Ct. at 1705; Oklahoma Tax Comm’n, 498 U.S. at 510, 111 S. Ct. at 910. In
addition, the Court has stated that “Congress is in a position to weigh and
accommodate the competing policy concerns and reliance interests” associated
with any decision to alter the limits of tribal immunity. Kiowa Tribe, 523 U.S. at
—, 118 S. Ct. at 1705. It is little wonder, therefore, that the Court has chosen to
defer to Congress rather than to revisit its own tribal sovereign immunity
jurisprudence. See id.In light of these considerations, we decline to modify the doctrine of tribal
sovereign immunity absent an express command to the contrary from either
Congress or a majority of the Supreme Court. Accordingly, we reject the State’s
argument that the Tribe’s immunity does not necessarily extend to this action for
16
prospective equitable relief. The district court’s holding that sovereign immunity
bars the State’s suit against the Tribe is affirmed.
B.
We now turn to the district court’s holding that the State failed to state a
claim against Chairman Billie12 because there is no implied right of action13 under
12
The State has alleged that Chairman Billie “is responsible for the conduct of gambling
activities by the Tribe pursuant to IGRA.” Chairman Billie has not claimed that the Tribe’s
sovereign immunity shields him from this suit. Cf. Tamiami Partners, Ltd., — F.3d at — [slip
op. at 2765] (“[T]ribal officers are protected by tribal sovereign immunity when they act in their
official capacity and within the scope of their authority; however, they are subject to suit under
the doctrine of Ex parte Young when they act beyond their authority.”).
13
It is unclear whether IGRA could properly be viewed as giving the State an express
right to sue Chairman Billie for injunctive relief. Because there is no compact between the State
and the Tribe, the cause of action expressly created by 25 U.S.C. § 2710(d)(7)(A)(ii) is plainly
not available to the State. See supra part II.A.1. We note, however, that Florida law expressly
provides that an action may be brought in state court to enjoin the continuation of a “common
nuisance,” which term is defined to include the “slot machines” allegedly operated by the Tribe.
See Fla. Stat. ch. 849.20-21 (1997). In its amended complaint, the State contended that the
district court could entertain an action for injunctive relief pursuant to this provision “as
incorporated into federal law by 18 U.S.C. § 1166.”
Section 1166, which was enacted as part of IGRA, provides in pertinent part that, “for
purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of
gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian
country in the same manner and to the same extent as such laws apply elsewhere in the State.”
18 U.S.C. § 1166(a) (emphasis added). An examination of cases that have addressed this
provision engenders some doubt about whether it would permit a state to bring an action in
federal court seeking state-law injunctive relief against a tribe for violating state gambling laws.
Compare United States v. Santee Sioux Tribe, 135 F.3d 558, 563-65 (8th Cir.), cert. denied, —
U.S. —, 119 S. Ct. 48, 142 L. Ed. 2d 37 (1998) (concluding that U.S. Attorney could obtain
injunction pursuant to section 1166 to enforce order of National Indian Gaming Commission
closing tribal casino where state law permitted action for injunctive relief against gambling
operation that constituted public nuisance), and United States v. Seminole Tribe, No. 97-1481-
Civ-T-17A, — F. Supp. 2d — (M.D. Fla. March 4, 1999) (see supra note 10), with United States
v. Spokane Tribe of Indians, 139 F.3d 1297, 1298-1302 & n.7 (9th Cir. 1998) (vacating
17
IGRA for declaratory or injunctive relief against class III gaming that is being
unlawfully conducted without a Tribal-State compact. In Cort v. Ash, 422 U.S. 66,
95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Supreme Court set forth four factors
that are relevant in determining whether a private right of action is implicit in a
statute:
First, is the plaintiff “one of the class for whose especial benefit the
statute was enacted,” – that is, does the statute create a federal right in
favor of the plaintiff? Second, is there any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one? Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? And
finally, is the cause of action one traditionally relegated to state law,
in an area basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on federal law?
injunction against tribal gaming, which district court had entered pursuant to “IGRA and its
incorporation of state law,” on ground that portions of IGRA remaining after Supreme Court’s
Seminole Tribe decision could not support injunction in certain circumstances), United States v.
E.C. Invs., Inc., 77 F.3d 327, 330 (9th Cir. 1996) (narrowly interpreting phrase “for purposes of
Federal law” in section 1166(a) as reference to other federal laws such as 18 U.S.C. § 1955),
United States v. Santa Ynez Band of Chumash Mission Indians, 983 F. Supp. 1317, 1322-23,
1325 (C.D. Cal. 1997) (discussing structure of section 1166, suggesting (in light of legislative
history) that section 1166(a) provides no basis for civil enforcement of state gambling laws by
any entity, and reading Ninth Circuit precedent as foreclosing such enforcement by states), and
Sycuan Band of Mission Indians v. Roache, 788 F. Supp. 1498, 1506-07 (S.D. Cal. 1992), aff’d,
54 F.3d 535 (9th Cir. 1994) (stating that Congress, in section 1166(a), federalized state gaming
laws for purposes of regulating class III gaming but that states lack jurisdiction to enforce these
laws in Indian country unless a Tribal-State compact provides otherwise).
As interesting as this question may be, its resolution will have to wait. Although the
State referred to section 1166(a) in its complaint, the State has not subsequently argued – either
in opposing the Tribe’s motion to dismiss or on appeal – that section 1166(a) provides it with an
express cause of action against Chairman Billie. We therefore decline to consider such an
argument here. See Montgomery v. Noga, 168 F.3d 1282, 1297 n.24 (11th Cir. 1999); Adler v.
Duval Co. Sch. Bd., 112 F.3d 1475, 1480-81 (11th Cir. 1997).
18
Id. at 78, 95 S. Ct. at 2088 (citations omitted). The central inquiry under this
framework is whether Congress intended to create the asserted private right of
action. See Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S. Ct. 2479,
2485, 61 L. Ed. 2d 82 (1979); Florida Dep’t of Bus. Regulation v. Zachy’s Wine &
Liquor, Inc., 125 F.3d 1399, 1403 (11th Cir. 1997). Thus, when an examination of
one or more of the Cort factors “unequivocally reveals congressional intent[,] there
is no need for us to trudge through all four of the factors.” Liberty Nat’l Ins.
Holding Co. v. Charter Co., 734 F.2d 545, 558 (11th Cir. 1984) (internal quotation
marks omitted) (quoting Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456
U.S. 353, 388, 102 S. Ct. 1825, 1844, 72 L. Ed. 2d 182 (1982)); see also Noe v.
Metropolitan Atlanta Rapid Transit Auth., 644 F.2d 434, 436-37 (5th Cir. Unit B
May 1981).14
The first Cort factor is a threshold question that must be “answered by
looking to the language of the statute itself.” Cannon v. University of Chicago,
441 U.S. 667, 689, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979); see also Noe,
644 F.2d at 437. Most of the statutes that the Tribe has allegedly violated in this
case are criminal in nature, see supra part I; the State does not contend that these
14
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
19
statutes implicitly provide it with a right of action against the Tribe. Cf. Cannon,
441 U.S. at 690-93 & n.13, 99 S. Ct. at 1954-55 & n.13 (distinguishing criminal
statutes and other statutes that impose duties for the benefit of the general public
from statutes that explicitly confer rights directly on identified classes of persons,
and noting the Supreme Court’s reluctance to imply causes of action under the
former type of statute); Taylor v. Citizens Fed. Sav. & Loan Ass’n, 846 F.2d 1320,
1322 (11th Cir. 1988) (same). The sole non-criminal statutory violation ascribed
to the Tribe is a violation of IGRA’s rule that “[c]lass III gaming activities shall be
lawful on Indian lands only if such activities are . . . conducted in conformance
with a Tribal-State compact . . . that is in effect.” 25 U.S.C. § 2710(d)(1)(C). We
acknowledge that the language of this rule, if considered in isolation, could be
viewed as granting states a qualified15 federal right to be free from class III tribal
gaming activities within their borders in the absence of a compact regulating such
activities. Cf. Seminole Tribe, 517 U.S. at 58, 116 S. Ct. at 1124 (noting that
IGRA “grants the States a power that they would not otherwise have, viz., some
measure of [civil/regulatory] authority over gaming on Indian lands”).
Nevertheless, we conclude that the legislative history and statutory scheme of
15
See 25 U.S.C. § 2710(d)(3)(A) (1994) (“Upon receiving [a tribal request to negotiate a
compact governing the conduct of gaming activities], the State shall negotiate with the Indian
tribe in good faith to enter into such a compact.”).
20
IGRA – the second and third Cort factors – unequivocally demonstrate that
Congress did not intend to vindicate any such right by creating a private right of
action that would allow states to obtain injunctive relief against uncompacted class
III tribal gaming. See Noe, 644 F.2d at 437-38 (stating that the first Cort factor is a
necessary, but not a sufficient, basis for finding an implied right of action, and
noting that a statement to the contrary in Cannon is no longer the law).
The legislative history of IGRA indicates that Congress, in developing a
comprehensive approach to the controversial subject of regulating tribal gaming,
struck a careful balance among federal, state, and tribal interests. See S. Rep. No.
100-446, at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3074-76. A central
feature of this balance is IGRA’s thoroughgoing limits on the application of state
laws and the extension of state jurisdiction to tribal lands. See id. The legislative
history reveals that Congress constructed limits on state power with particular care
in the area of class III gaming. The Senate Report states that, in adopting the
position that class III gaming may not be conducted on tribal lands without a
Tribal-State compact, “the [Select Committee on Indian Affairs] has carefully
considered the law enforcement concerns of tribal and State governments, as well
as those of the Federal Government, and the need to fashion a means by which
differing public policies of these respective governmental entities can be
21
accommodated and reconciled.” Id. at 6, 1988 U.S.C.C.A.N. at 3076; see also id.
at 13, 1988 U.S.C.C.A.N. at 3083 (listing objectives of state and tribal
governments regarding the conduct of class III gaming). After balancing these
concerns, “[t]he Committee concluded that the compact process is a viable
mechanism for setting various matters between [states and tribes as] equal
sovereigns.” Id. With regard to this process, the Committee recognized “the need
to provide some incentive for States to negotiate with tribes in good faith because
tribes will be unable to enter into such gaming unless a compact is in place.” Id.
Although it appreciated the difficulty of finding such an incentive, the Committee
unequivocally stated its “intent that the compact requirement for class III not be
used as a justification by a State for excluding Indian tribes from such gaming.”
Id. We would surely frustrate this intent – and upset the carefully-struck
congressional balance of federal, state, and tribal interests and objectives16 – by
recognizing an implied right of action under IGRA in which a state, on its own
16
See Santa Clara Pueblo, 436 U.S. at 64, 98 S. Ct. at 1680 (“Where Congress seeks to
promote [multiple] objectives in a single statute, courts must be more than usually hesitant to
infer from its silence a cause of action that, while serving one legislative purpose, will disserve
[another].”); S. Rep. No. 100-446, at 6, 1988 U.S.C.C.A.N. at 3076 (“[IGRA] is intended to
expressly preempt the field in the governance of gaming activities on Indian lands.
Consequently, Federal courts should not balance competing Federal, State, and tribal interests to
determine the extent to which various gaming activities are allowed.”).
22
initiative, could sue to enjoin a tribe from conducting class III gaming without a
compact. This we decline to do.
The statutory scheme of IGRA provides additional evidence of
congressional intent that strongly supports our decision not to find an implied right
of action. It is a well-established principle of statutory construction that “when
legislation expressly provides a particular remedy or remedies, courts should not
expand the coverage of the statute to subsume other remedies.” Tamiami Partners,
Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1049 (11th Cir. 1995) (quoting
National R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, 414 U.S. 453,
458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974)). In IGRA, Congress provided a
multitude of express remedies. See, e.g., 25 U.S.C. § 2710(d)(7)(A)(ii)
(authorizing state or tribal suit to enjoin class III gaming conducted in violation of
compact); 25 U.S.C. § 2710(d)(7)(A)(iii) (1994) (authorizing suit by Secretary of
Interior to enforce procedures for conducting class III gaming); 25 U.S.C. §
2711(d) (1994) (authorizing tribal suit to compel Chairman of NIGC either to
approve or to disapprove management contract); 25 U.S.C. § 2713(a)(2), (b)(2)
(1994) (creating right to hearing before NIGC regarding fine imposed or temporary
closure ordered by Chairman); 25 U.S.C. § 2713(c), 2714 (1994) (authorizing
appeal to district court of NIGC fines, permanent closure orders, and certain other
23
decisions). As discussed in part II.A.2., supra, two such remedies are particularly
relevant to the problem of uncompacted class III tribal gaming. Under 25 U.S.C. §
2713, the NIGC can fine a tribe or close a tribal gaming facility if it finds that the
tribe is conducting class III gaming without a compact in violation of 25 U.S.C. §
2710(d)(1)(C). In addition, under 25 U.S.C. § 2710(d)(6), Congress declined to
shield those who engage in class III tribal gaming without a compact from federal
criminal prosecution pursuant to statutes such as 15 U.S.C. § 1175(a).
The existence of these various express remedies is a clear signal that we
should not read into IGRA the implied right of action asserted by the State. See
Touche Ross & Co., 442 U.S. at 572, 99 S. Ct. at 2487 (“Obviously, then, when
Congress wished to provide a private . . . remedy, it knew how to do so and did so
expressly.”); Tamiami, 63 F.3d at 1049. Moreover, it is important to recognize that
such an implied right of action would wreak havoc upon the existing remedial
scheme of IGRA. For example, as noted in part II.A.1. above, IGRA expressly
authorizes a state to sue a tribe in district court “to enjoin a class III gaming
activity [1] located on Indian lands and [2] conducted in violation of any Tribal-
State compact . . . that is in effect.” 25 U.S.C. § 2510(d)(7)(A)(ii). Giving a state
an implied right of action against class III tribal gaming conducted in the absence
of a compact would be tantamount to deleting the second requirement that must be
24
met in order for the state to pursue this express right of action.17 If Congress had
wanted to delete this portion of the statute, it could easily have done so. We will
not usurp the legislative role by deleting it ourselves, particularly when doing so
would undermine one of the few remaining incentives for a state to negotiate a
compact with a tribe.18
Recognizing an implied right of action would also have a detrimental impact
on the criminal remedial scheme which IGRA contemplates that the United States
will use to combat illegal tribal gaming. To illustrate this problem, assume that an
official of a tribe that has no compact operates class III games that constitute
“gambling devices” within the meaning of 15 U.S.C. § 1171(a). This official could
17
It could be argued, of course, that deleting the second requirement would do more than
create the right of action sought by the State here. Theoretically, such a deletion would also
allow a state to sue for injunctive relief against class III tribal gaming conducted in conformity
with a compact. It seems quite unlikely, however, that any such suit would ever be brought: not
only would a state have little incentive to sue a tribe on this ground, but the tribe could
presumably use the compact as a defense.
18
In Seminole Tribe, 517 U.S. at 55-73, 116 S. Ct. at 1123-1132, the Supreme Court
struck down a provision of IGRA that would have allowed a tribe to sue a state for failing to
negotiate in good faith regarding the formation of a compact. This tribal suit provision was
IGRA’s primary incentive for states to negotiate with tribes. In this case, by effectuating
Congress’ intent to permit a state to sue a tribe for a class III gaming violation only where a
compact is present, we preserve at least some incentive for states to enter into compact
negotiations. The tribes also have an incentive to participate in such negotiations because they
face possible NIGC action or federal prosecution if they engage in uncompacted class III
gaming.
25
be prosecuted by the United States for violating 15 U.S.C. § 1175.19 If the state in
which the gaming occurred could beat the prosecutor to the punch by persuading a
court to enter an injunction against any further operation of the games, two
negative consequences would result. First, the official would be deprived of his
congressionally-recognized right to invoke the safeguards of criminal procedure
when his gaming activities are challenged in court. Second, the discretion of the
United States not to prosecute the official would be severely restricted in light of
the court’s recognition that improper gaming had occurred. It is consequences
such as these that underpin the traditional rule that equity will not enjoin the
commission of a crime. See 11A Charles Alan Wright et al., Federal Practice & Procedure
§ 2942, at 70-71 (2d ed. 1995); supra note 10 (discussing this rule). We will not depart
from this rule by creating an implied right of action under which a state can
attempt to force the hand of a federal prosecutor in this manner.
In light of our conclusion that the second and third Cort factors
unequivocally counsel against implying the private right of action sought by the
State, we do not consider the fourth factor here. We hold, therefore, that the State
has no implied right of action under IGRA for declaratory or injunctive relief
19
If we alter the above illustration by assuming that the official could be prosecuted
under either 18 U.S.C. § 1166(b) or 18 U.S.C. § 1955 for operating the uncompacted class III
games, the result is equally troubling. Cf. supra part I (discussing the various criminal statutes
allegedly violated by the Tribe in this case).
26
against class III tribal gaming that is being unlawfully conducted without a Tribal-
State compact.
III.
For the foregoing reasons, the order of the district court granting the
defendants’ motion to dismiss is AFFIRMED.
27