Seminole speaks to sovereign immunity and Ex parte Young

St. John's Law Review, Fall 1997 by Baker, Wayne L

WAYNE L. BAKER*

A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.1

Justice Holmes' explication of sovereign immunity is straightforward and succinct within the narrow province of lawmaker and subject. When a state is sued for a violation of a federal law, however, the state's sovereign immunity implicates matters of paramount constitutional importance including supremacy, federalism, separation of powers, judicial activism and restraint, and both Tenth2 and Eleventh Amendment3 considerations. To evade state sovereign immunity, a suit for prospective relief for violations of federal law may proceed against a named state official, under the "fiction" of Ex parte Young.4 The United States Supreme Court recently addressed these issues in Seminole Tribe of Florida v. Florida.5

INTRODUCTION

The following analysis will examine the Seminole decision by focusing on the huge disparity between the majority and minority opinions in two specific areas: (1) Eleventh Amendment sovereign immunity, and (2) the "fiction" of Ex parte Young. Whether critiqued as juridicially sound, or as a drastic departure from established precedent, Seminole strikes a blow for states' rights and federalism.6 The Eleventh Amendment stands at the vanguard of state autonomy. "The stakes involved in interpreting the Eleventh Amendment are very high. Virtually the entire class of modern civil rights litigation plausibly might be barred by an expansive reading of the immunity of the states from suit in federal court."7 Clearly, Seminole's implications go far beyond the reservations' boundaries.

I. THE INDIAN GAMING REGULATION ACT, CONGRESS' GRANT OF JURISDICTION?

In 1988 Congress passed the Indian Gaming Regulation Act8 (hereinafter "IGRA"). This law was passed in response to the decision in California v. Cabazon Band of Mission Indians,9 which allowed Indian gaming in California. In California, gambling is regulated, not prohibited, and thus falls outside the express statutory grant of state criminal jurisdiction.10 The Cabazon decision prompted a heated debate over the state's role in regulating Indian gaming.11 In response Congress enacted IGRA to "provide clear standards or regulations for the conduct of gaming on Indian lands ... [and] to promote tribal economic development, tribal self-sufficiency, and strong tribal government."12 IGRA granted Indian tribes the "exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity."13 The regulatory scheme requires the state to conduct "good faith" negotiations with a tribe in order to arrive at a compact prescribing the conditions under which the gaming activities will be conducted.l4 A tribe that believes the state has failed to negotiate in good faith may seek an order in federal district court15 requiring the state and the tribe to conclude the compact within a sixty-day period.16

II. THE SEMINOLE DECISION

The Seminole Tribe of Florida (hereinafter the "Tribe") brought suit in federal district court against the State of Florida and its governor, alleging that the State violated IGRA by failing to conduct good faith negotiations regarding gaming activities to be conducted on the Tribe's land.l7 The State moved to dismiss the action pursuant to the Eleventh Amendment of the United States Constitution, asserting that Congress cannot lawfully enforce the "good faith" requirement by providing a judicial remedy against the State.18 The Tribe maintained that Congress abrogated the States' immunity in enacting IGRA.19 The State stipulated that the statutory language of IGRA20 expressed a clear intent to abrogate state immunity, but challenged whether Congress could exercise this power consonant with the Indian Commerce Clause.21 The district court reviewed the historical support for Congressional plenary power over Indian affairs, and found that pursuant to Pennsylvania v. Union Gas Compa.ny" Congress has the power to abrogate the States' immunity pursuant to the Indian Commerce Clause.23

The Seminole decision, and a parallel Alabama case,24 were consolidated on appeal to the United States Court of Appeals for the Eleventh Circuit.25 The circuit court dismissed the cases, holding that Congress did not possess the power under the Indian Commerce Clause to abrogate the states' Eleventh Amendment sovereign immunity when enacting IGRA. As a result, federal courts were without authority to exercise subject matter jurisdiction over suits brought under IGRA.26 Chief Judge Tjoflat's methodical analysis eliminated state consent,27 Congressional abrogation,28 and application of the Ex parte Young doctrine29 as impediments to the application of the Eleventh Amendment sovereign immunity defense. The court concluded that notwithstanding the sovereign immunity defense, the statute provides a remedy for the Tribe,30 which "conforms with IGRA and serves to achieve Congress' goals ...."31