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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12004
________________________
D.C. Docket No. 2:13-cv-00178-WKW-WC
STATE OF ALABAMA,
Plaintiff - Appellant,
versus
PCI GAMING AUTHORITY,
BUFORD ROLIN,
STEPHANIE BRYAN,
ROBERT MCGHEE,
DAVID GEHMAN,
sued in their official capacity, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 3, 2015)
Before MARCUS, JILL PRYOR and EBEL, * Circuit Judges.
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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JILL PRYOR, Circuit Judge:
Alabama sued under state and federal law to enjoin gaming at casinos owned
by the Poarch Band of Creek Indians (the “Tribe”) and located on Indian lands
within the state’s borders. 1 As the Tribe itself is unquestionably immune from suit,
Alabama instead named as defendants PCI Gaming Authority (“PCI”), an entity
wholly owned by the Tribe that operates the casinos, and tribal officials in their
official capacity.
Alabama claims that the gaming at the casinos constitutes a public nuisance
under Alabama law and should be enjoined. It puts forth two novel theories to
explain why its state law applies to the Tribe’s casinos. First, Alabama asserts that
the Secretary of the Interior (the “Secretary”) lacked authority to take land into
trust for the Tribe; therefore, the Tribe’s casinos are not located on Indian lands,
and Alabama may regulate the gaming there. Second, Alabama contends that by
incorporating state laws governing gambling into federal law, 18 U.S.C. § 1166
creates a right of action for a state to sue in federal court to enforce its laws on
Indian lands. The district court rejected these arguments and dismissed the action
on the grounds that the defendants were entitled to tribal immunity on nearly all of
Alabama’s claims and Alabama failed to state a claim for relief. After careful
1
Although we are mindful that the terms “Native American” and “American Indian” may
be preferable, we use the term “Indian” throughout this opinion because it is the term used in the
statutes at issue in this appeal and in the parties’ briefs.
2
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consideration of the briefs and the record, and with the benefit of oral argument,
we affirm the district court’s judgment in favor of the defendants.
I. FEDERAL REGULATION OF GAMING ON INDIAN LANDS
Congress passed the Indian Gaming Regulatory Act (“IGRA”), 18 U.S.C.
§§ 1166-68, 25 U.S.C. §§ 2701-21, to address “the rapidly expanding field of
Indian gaming.” Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians (Tamiami
II), 63 F.3d 1030, 1032 (11th Cir. 1995); 2 see also 25 U.S.C. § 2701(1) (explaining
IGRA was enacted because “numerous Indian tribes have become engaged in or
have licensed gaming activities on Indian lands”). IGRA was enacted in response
to the United States Supreme Court’s decision in California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987), which held that because Congress had not
regulated Indian gaming, the states lacked authority to regulate gaming on Indian
lands. See Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2034 (2014).3
IGRA regulates gaming that occurs on Indian lands, which include “any
lands title to which is [] held in trust by the United States for the benefit of any
Indian tribe . . . and over which an Indian tribe exercises governmental power.”
2
Tamiami, a case involving a contractual dispute over the management of a bingo
gaming facility on Indian lands, came before our Court three times. The first Tamiami opinion is
irrelevant to the issues presently before us. See Tamiami Partners, Ltd. v. Miccosukee Tribe of
Indians, 999 F.2d 503 (11th Cir. 1993).
3
The lack of legislation regulating gaming on Indian lands meant that states could not
limit such gaming because “unless and until Congress acts, [] tribes retain their historic
sovereign authority.” Bay Mills, 134 S. Ct. at 2030 (internal quotation marks omitted).
3
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25 U.S.C. § 2703(4)(B). 4 IGRA does not govern gaming that occurs outside of
Indian lands; a state’s authority to regulate such gaming is “capacious.” Bay Mills,
134 S. Ct. at 2034.
As for gaming on Indian lands, IGRA provides “a comprehensive approach
to the controversial subject of regulating tribal gaming, [and strikes] a careful
balance among federal, state, and tribal interests.” Florida v. Seminole Tribe of
Fla. (Seminole Tribe II), 181 F.3d 1237, 1247 (11th Cir. 1999). 5 IGRA “divides
gaming on Indian lands into three classes—I, II, and III—and provides a different
regulatory scheme for each class.” 6 Seminole Tribe of Fla. v. Florida (Seminole
Tribe I), 517 U.S. 44, 48 (1996). IGRA defines class II gaming to include bingo
and permits the use of “electronic, computer, or other technologic aids” in
4
A separate statute, the Indian Reorganization Act (“IRA”), 25 U.S.C. §§ 461-79,
authorizes the Secretary to accept lands into trust for “the purpose of providing land for Indians.”
25 U.S.C. § 465. IRA defines Indians as “persons of Indian descent who are members of any
recognized Indian tribe now under Federal jurisdiction.” Id. § 479.
5
In Florida v. Seminole Tribe of Florida, Florida sued the Seminole tribe and its
chairperson, seeking to enjoin the tribe from engaging in unlawful gaming. 181 F.3d at 1239.
Florida filed its lawsuit shortly after the Supreme Court held that a lawsuit in which the Seminole
tribe had sued Florida and its governor under IGRA was barred by the state’s sovereign
immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). Although the two decisions
were issued by different courts in different cases, they are related because both cases involved
the same parties and dealt with the state’s attempts to regulate gaming on the tribe’s lands.
Because both decisions are central to our analysis in this case and for clarity, we refer to the
Supreme Court’s decision as Seminole Tribe I and ours as Seminole Tribe II.
6
Class I gaming, not at issue here, includes “social games solely for prizes of minimal
value or traditional forms of Indian gaming engaged in by individuals as a part of, or in
connection with, tribal ceremonies or celebrations.” 25 U.S.C. § 2703(6). Class I gaming is
“within the exclusive jurisdiction of the Indian tribes.” Id. § 2710(a)(1).
4
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connection with the game. 25 U.S.C. § 2703(7)(A)(i).7 Class III gaming is “all
forms of gaming that are not class I gaming or class II gaming” and includes slot
machines and other casino games. 25 U.S.C. § 2703(8); Seminole Tribe I, 517
U.S. at 48.
Under IGRA, the extent to which a tribe may engage in class II or class III
gaming depends on how the state where the Indian lands are located has chosen to
regulate such games in the state as a whole. 8 With respect to class II and class III
gaming, IGRA permits a tribe to conduct each class of gaming only if such gaming
is allowed in some form within the state where the Indian lands are located. 25
U.S.C. § 2710(b)(1), (d)(1) (allowing class II or class III gaming when the state
where the gaming occurs “permits such gaming for any purpose by any person,
organization or entity”). IGRA imposes an additional requirement before a tribe
can conduct class III gaming: the tribe and state must agree to a compact
regulating the gaming, which the Secretary must approve. Id. § 2710(d)(1), (d)(3).
A state must negotiate a tribal-state compact governing class III gaming in good
faith. Id. § 2710(d)(3)(A).
7
Class II gaming also includes card games that either “(I) are explicitly authorized by the
laws of the State, or (II) are not explicitly prohibited by the laws of the State and are played at
any location in the State.” 25 U.S.C. § 2703(7)(A)(ii).
8
IGRA also requires a tribe to adopt an ordinance or resolution, approved by the
chairperson of the National Indian Gaming Commission, authorizing class II or class III gaming.
25 U.S.C. § 2710(b)(1), (d)(1). The Commission consists of three members and operates within
the Department of the Interior. See id. § 2704.
5
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IGRA expressly provides both tribes and states with limited express rights of
action to sue in federal court with respect to tribal-state compacts. If a state fails to
negotiate a tribal-state compact in good faith, a tribe may bring a civil action
against the state in federal court. Id. § 2710(d)(7)(A)(i). But IGRA limits the
remedies available to the tribe in such an action. The tribe may not obtain broad
injunctive relief; the ultimate remedy available is that the Secretary may set forth
the terms under which the tribe may engage in class III gaming on Indian lands
within the state. Id. § 2710(d)(7)(B)(iv), (vii). IGRA also expressly provides
states with a cause of action to sue to enjoin “class III gaming activity located on
Indian lands” that is “conducted in violation of any Tribal-State compact.” Id.
§ 2710(d)(7)(A)(ii). No remedy other than an injunction is provided. See id.
IGRA authorizes the National Indian Gaming Commission (the “NIGC”) to
regulate gaming on Indian lands. The NIGC is tasked with “monitor[ing] class II
gaming conducted on Indian lands on a continuing basis” and is authorized to
“inspect and examine” the premises where class II gaming occurs. 9 Id.
§ 2706(b)(1), (b)(2). In addition, the NIGC may fine a tribe or close a gaming
facility if it finds a tribe has conducted class III gaming on Indian lands without a
compact. Id. § 2713(a)(1), (b).
9
A tribe may be exempt from inspection and examination by the NIGC if the tribe has a
certificate for self-regulation. 25 U.S.C. § 2710(c)(5)
6
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In addition to this civil and regulatory scheme governing gaming on Indian
lands, IGRA includes three provisions codified in the criminal code, only one of
which is relevant here. 10 Section 1166, titled “Gambling in Indian country,”
applies to class III gaming conducted in the absence of a tribal-state compact. 18
U.S.C. § 1166(c). This section incorporates “all State laws pertaining to the
licensing, regulation, or prohibition of gambling, including but not limited to
criminal sanctions applicable thereto” into federal law. Id. § 1166(a). These state
laws “shall apply in Indian country in the same manner and to the same extent as
such laws apply elsewhere in the State.”11 Id. Section 1166 makes it a federal
crime to commit an act or omission involving gambling where the conduct “would
be punishable if committed or omitted within the jurisdiction of the State in which
the act or omission occurred,” under the state’s laws “governing the licensing,
regulation, or prohibition of gambling.” Id. § 1166(b). The punishment for this
federal crime is the same as the punishment would be under state law for the state
10
The two other provisions criminalize theft from, and theft by officers or employees of,
gaming establishments on Indian lands. See 18 U.S.C. §§ 1167-68.
11
“Indian country” is defined as:
(a) all land within the limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether within the original
or subsequently acquired territory thereof, and whether within or without the
limits of a state, and (c) all Indian allotments, the Indian titles to which have not
been extinguished, including rights-of-way running through the same.
18 U.S.C. § 1151. Lands taken into trust by the Secretary under IRA are considered part of
Indian country. See United States v. John, 437 U.S. 634, 648-50 (1978).
7
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crime. The United States has the exclusive jurisdiction to bring criminal
prosecutions for violations of § 1166(b). Id. § 1166(d).
II. FACTUAL BACKGROUND
The Tribe owns three casinos located within the state of Alabama, all of
which are situated on lands held in trust by the United States for the benefit of the
Tribe.12 At the casinos, there are hundreds of machines that appear to be electronic
bingo games but, Alabama alleges, are actually slot machines. These gaming
devices “play like, look like, sound like, and attract the same class of customers as
acknowledged slot machines,” and nearly identical machines are marketed as slot
machines.13 First Am. Compl. at 6 ¶¶ 17-18 (Doc. 10). 14
Under IGRA, the Tribe may operate bingo games but not slot machines at
the casinos. Although the Alabama Constitution generally prohibits bingo gaming,
Ala. Const. art. IV, § 65, nonprofit entities and private clubs are permitted to
operate bingo games for prizes or money in some towns and counties for
charitable, educational, or other lawful purposes. See Ala. Const. amends. 386-87,
413, 440, 506, 508, 542, 549-50, 565, 569, 599, 612, 674, 692, 732, 743-44.
12
The federal government has recognized the Tribe “as an Indian tribe within the
meaning of Federal law.” Final Determination for Fed. Acknowledgment of the Poarch Band of
Creeks, 49 Fed. Reg. 24,083-01 (June 11, 1984). The lands on which the three casinos are
located were taken into trust for the Tribe in 1984, 1992, and 1995, respectively.
13
In reviewing a district court’s order granting a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), we must accept as true the complaint’s factual allegations. Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam).
14
Citations to “Doc.” herein refer to docket entries in the district court record in this case.
8
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Because some bingo gaming is allowed under Alabama law and the NIGC
Chairperson approved the Tribe’s ordinance to participate in class II gaming, the
Tribe may operate bingo games at its casinos. The Tribe may not, however,
operate slot machines at its casinos because Alabama prohibits the operation of slot
machines within the state. See, e.g., Ala. Code § 13A-12-27(a)(1) (criminalizing
the possession of slot machines).
Alabama originally sued PCI as well as thirteen individuals (the “Individual
Defendants”)15 in state court, seeking an injunction and a declaratory judgment on
the ground that the operation of illegal slot machines at the Tribe’s three casinos
constitutes a public nuisance under Alabama law. See Ala. Code § 6-5-121
(authorizing Alabama to bring a lawsuit to abate a public nuisance). After the
defendants removed the action to federal court, Alabama amended its complaint to
add a claim based on the same alleged state law violation (public nuisance) under
IGRA, 18 U.S.C. § 1166.16 Alabama alleged that because the tribe was conducting
15
Neither party disputes that all of the Individual Defendants are tribal officers; some
serve as members of the Tribe’s Tribal Council and others as directors of PCI.
16
At the time the case was removed, Alabama had asserted only a state law public
nuisance claim. The defendants removed the case pursuant to 28 U.S.C. §§ 1331, 1441, and
1442, asserting that subject matter jurisdiction existed because: (1) federal law completely
preempted Alabama’s state law claim; (2) the case raised “substantial, actually disputed, federal
issues regarding the status of Indian lands held in trust”; and (3) Alabama’s claims “call into
question the validity of federal law(s), regulations, and administrative decisions pertaining to
Indian tribal lands” given that the defendants’ interests “in the Indian tribal lands are derived
from the federal Secretary of the Interior.” Notice of Removal at 1-3 (Doc. 1). Once in federal
court, Alabama did not seek remand but instead amended its complaint to add the IGRA claim;
at that point the amended complaint clearly invoked federal question jurisdiction. We express no
9
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unauthorized class III gaming, the state could sue under § 1166 to enjoin the
gaming.
The defendants moved to dismiss the amended complaint under Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the
motion, dismissing the amended complaint on the following grounds: (1) lack of
subject matter jurisdiction as to the state law public nuisance claim because IGRA
completely preempts it; 17 (2) lack of subject matter jurisdiction as to all claims
against PCI based on tribal sovereign immunity; (3) lack of subject matter
jurisdiction as to the state law public nuisance claim against the Individual
Defendants based on tribal sovereign immunity; (4) alternatively, failure to state a
claim upon which relief can be granted as to the state law public nuisance claim
because the gaming occurs on Indian lands, where IGRA expressly preempts state
law; and (5) failure to state a claim as to the federal claim because IGRA, through
opinion on whether the defendants properly removed the case because, even if federal question
jurisdiction did not exist at the time of removal, it clearly existed when the district court entered
its judgment. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64 (1996) (even if a case was
improperly removed, it “is not fatal to the ensuing adjudication if federal jurisdictional
requirements are met at the time judgment is entered”); see also H&D Tire & Auto.-Hardware,
Inc. v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000) (“Even if a federal court lacks
jurisdiction at the time of removal and regardless of whether there was an objection to the
removal, the judgment will stand if the court had jurisdiction at the time it entered judgment. If,
however, the court lacked jurisdiction both at the time of removal and judgment, the judgment
cannot stand.” (internal citations omitted)).
17
Although the defendants took the position in the district court that IGRA completely
preempts state law, they raise no complete preemption argument on appeal and thus have
abandoned this argument. See Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1564
n.16 (11th Cir. 1995). We therefore do not address this issue.
10
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§ 1166, does not create a right of action for Alabama to sue tribal officials. This is
Alabama’s appeal.
III. STANDARD OF REVIEW
We are called upon here to review the district court’s determinations that (1)
PCI was entitled to tribal sovereign immunity on all claims; (2) the Individual
Defendants were entitled to tribal sovereign immunity as to Alabama’s state law
claim but not its claim under IGRA; and (3) Alabama failed to state a claim for
relief. We review each of these rulings de novo. See Seminole Tribe II, 181 F.3d
at 1240-41.
IV. TRIBAL SOVEREIGN IMMUNITY
We have an obligation to make sure we have jurisdiction to hear this action,
which requires us to first consider whether the defendants enjoy tribal sovereign
immunity from Alabama’s claims. See id. at 1240-41 n.4; Taylor v. Ala.
Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001). We
conclude that PCI is entitled to tribal sovereign immunity on all claims against it,
and the Individual Defendants are entitled to tribal sovereign immunity on
Alabama’s state law claim, but not its claim under IGRA.
“Indian tribes are ‘domestic dependent nations’ that exercise inherent
sovereign authority over their members and territories.” Okla. Tax Comm’n v.
Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (quoting
11
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Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831)). Indian tribes therefore
possess “‘the common-law immunity from suit traditionally enjoyed by sovereign
powers.’” Seminole Tribe II, 181 F.3d at 1241 (quoting Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978)). A suit against a tribe is “barred unless the tribe
clearly waived its immunity or Congress expressly abrogated that immunity by
authorizing the suit.” Id. Although the Supreme Court has expressed doubts about
“the wisdom of” tribal immunity, the Court nonetheless has recognized that “the
doctrine of tribal immunity is settled law and controls” unless and until Congress
decides to limit tribal immunity. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523
U.S. 751, 756-58 (1998); see also Bay Mills, 134 S. Ct. at 2037 (“[I]t is
fundamentally Congress’s job, not ours, to determine whether or how to limit tribal
immunity.”). Here, the Tribe has not waived its immunity and Congress has not
expressly abrogated it. The question we face is whether PCI and the Individual
Defendants also enjoy tribal immunity.
A. PCI
Alabama argues that PCI does not share in the Tribe’s immunity because
PCI is a business entity separate from the Tribe that engages in commercial, not
12
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governing, activities. We conclude that PCI shares in the Tribe’s immunity
because it operates as an arm of the Tribe.18
First, the Supreme Court has not “drawn a distinction between governmental
and commercial activities of a tribe” when deciding whether there is tribal
immunity from suit. Kiowa Tribe, 523 U.S. at 754-55. Second, we agree with our
sister circuits that have concluded that an entity that functions as an arm of a tribe
shares in the tribe’s immunity. See Allen v. Gold Country Casino, 464 F.3d 1044,
1046 (9th Cir. 2006) (“When the tribe establishes an entity to conduct certain
activities, the entity is immune if it functions as an arm of the tribe.”); Ninigret
Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st
Cir. 2000) (“The Authority, as an arm of the Tribe, enjoys the full extent of the
Tribe’s sovereign immunity.”); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d
1040, 1043 (8th Cir. 2000) (holding that entity that “serves as an arm of the tribe
. . . is thus entitled to tribal sovereign immunity”). Because Alabama does not
dispute that PCI operates as an arm of the Tribe, PCI shares the Tribe’s immunity.
18
The parties disagree about whether we held in Freemanville Water System, Inc. v.
Poarch Band of Creek Indians that PCI shares in the Tribe’s immunity. 563 F.3d 1205 (11th Cir.
2009). In Freemanville, we decided that the Tribe and PCI enjoyed immunity from a claim that
the Tribe’s planned construction of a water system violated federal law. In reaching that
conclusion, we did not address whether PCI shares in the Tribe’s immunity because the parties
agreed that PCI shared in whatever immunity the Tribe enjoyed. Id. at 1207 n.1. As the question
of whether PCI shares in the Tribe’s immunity was not before us in Freemanville, here we
address the issue for the first time.
13
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B. Individual Defendants
1. Immunity as to IGRA Claim
We now turn to whether the Individual Defendants, individuals sued in their
official capacity, enjoy immunity from Alabama’s IGRA claim. We hold that they
do not. Because Alabama alleges that the Individual Defendants are committing
ongoing violations of IGRA, a federal law, and seeks declaratory and injunctive
relief to stop the violations, the officials are not entitled to immunity.
In Ex parte Young, the Supreme Court recognized an exception to sovereign
immunity in lawsuits against state officials for prospective declaratory or
injunctive relief to stop ongoing violations of federal law. 209 U.S. 123, 155-56
(1908). Under the legal fiction established in Ex Parte Young, when a state official
violates federal law, he is stripped of his official or representative character and no
longer immune from suit. Id. at 159-60. “An allegation of an ongoing violation of
federal law where the requested relief is prospective is ordinarily sufficient to
invoke the Young fiction,” such that the state officer is not immune from suit.
Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997).
We previously have extended the Ex parte Young doctrine to tribal officials.
Although tribal officials are generally entitled to immunity for acts taken in their
official capacity and within the scope of their authority, “they are subject to suit
under the doctrine of Ex parte Young when they act beyond their authority” by
14
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violating a federal statute. Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians
(Tamiami III), 177 F.3d 1212, 1225 (11th Cir. 1999). Because Alabama alleges
that the Individual Defendants are engaged in ongoing conduct that violates federal
law, the Individual Defendants are not entitled to immunity. 19
In an attempt to avoid the application of Ex parte Young, the Individual
Defendants argue that the “Supreme Court [in Seminole Tribe I] held that the Ex
parte Young theory is not available in IGRA enforcement actions between tribes
and states.” Appellees’ Br. at 52. We disagree. The Supreme Court’s decision in
Seminole Tribe I addressed only whether Ex parte Young permitted a state official
to be sued under the provision of IGRA that gives a tribe an express cause of
action to sue to compel a state to negotiate in good faith a tribal-state compact
governing class III gaming based on the limited remedial scheme available to a
tribe to vindicate this right. See 517 U.S. at 47. Seminole Tribe I neither addressed
nor decided whether state and tribal officials are immune from other IGRA-based
19
Several other circuits similarly have held that the Ex parte Young doctrine applies to
make tribal officials subject to suit to enjoin ongoing violations of the Constitution or federal
law. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011)
(“recognizing Ex parte Young as an exception not just to state sovereign immunity but also to
tribal sovereign immunity”); Vann v. Kempthorne, 534 F.3d 741, 750 (D.C. Cir. 2008) (“Faced
with allegations of ongoing constitutional and treaty violations, and a prospective request for
injunctive relief, officers of the Cherokee Nation cannot seek shelter in the tribe’s sovereign
immunity”); Burlington N.& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir. 2007)
(explaining that the Ex parte Young doctrine “has been extended to tribal officials sued in their
official capacity”); N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991
F.2d 458, 460 (8th Cir. 1993) (“Ex parte Young applies to the sovereign immunity of Indian
tribes, just as it does to state sovereign immunity.”).
15
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claims to enforce rights for which the statute does not set forth such a detailed,
limited remedial scheme.
In Seminole Tribe I, the tribe sued the governor of Florida in his official
capacity, as well as the state of Florida, seeking injunctive relief after the governor
refused to negotiate a tribal-state compact governing class III gaming. Id. at 51-52.
The Supreme Court held that the Eleventh Amendment barred the suit against
Florida and that the governor also enjoyed immunity. The Ex parte Young doctrine
did not apply to the tribe’s claim against the governor for failing to negotiate a
compact in good faith because “Congress has prescribed a detailed remedial
scheme for the enforcement against a State of a statutorily created right.” Id. at 72,
74. Under this detailed scheme, a tribe has only a “modest” remedy when a state
fails to negotiate a compact in good faith:
[T]he only remedy prescribed is an order directing the State and the
Indian tribe to conclude a compact within 60 days. And if the parties
disregard the court’s order and fail to conclude a compact within the
60–day period, the only sanction is that each party then must submit a
proposed compact to a mediator who selects the one which best
embodies the terms of the Act. Finally, if the State fails to accept the
compact selected by the mediator, the only sanction against it is that
the mediator shall notify the Secretary of the Interior who then must
prescribe regulations governing class III gaming on the tribal lands at
issue.
Id. at 74-75 (construing 25 U.S.C. § 2710(d)(7)). The Supreme Court explained
that applying the Ex parte Young doctrine—which would permit a tribe to sue a
16
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state official for broad injunctive relief to compel negotiations—would be
inconsistent with and undermine the limited remedy IGRA sets forth. Id. at 75
(“[I]t is difficult to see why an Indian tribe would suffer through the intricate
scheme of § 2710(d)(7) when more complete and more immediate relief would be
available under Ex parte Young.”).
The Supreme Court did not address the argument that the Individual
Defendants raise here: whether the Ex parte Young doctrine applies when a state
sues a tribal official under 18 U.S.C. § 1166 seeking to enjoin class III gaming.
Reviewing this issue of first impression, we hold that the Ex parte Young doctrine
applies to a claim under § 1166. In Seminole Tribe I, the Supreme Court
recognized an exception to Ex parte Young that applies when a federal statute
contains a detailed remedial scheme. Id. at 74-75; see also Vann v. Kempthorne,
534 F.3d 741, 755 (D.C. Cir. 2008) (explaining that the Seminole Tribe I exception
applies only “if we can discern an intent to displace Ex parte Young suits through
the establishment of a more limited remedial regime”). As described in more
detail in Section V, infra, in § 1166 Congress created no remedy for a state to
enforce directly its gaming laws on Indian lands, much less a detailed remedial
scheme. In the absence of such a remedial regime, we cannot conclude that
Congress intended § 1166 to displace Ex parte Young.
17
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2. Immunity as to State Law Claim
We now address whether tribal immunity bars Alabama’s state law nuisance
claim brought against the Individual Defendants in their official capacity. First we
consider whether the Individual Defendants enjoy immunity from Alabama’s state
law claim. We then turn to Alabama’s argument that the Individual Defendants
waived their immunity from the state law claim when they removed the case to
federal court.
a. Scope of Immunity
Federal courts have long recognized that state officials are immune from
state law claims brought against them in their official capacity because the Ex
parte Young doctrine does not reach such claims. See Nat’l Ass’n of Bds. of
Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1305 n.15
(11th Cir. 2011). The Supreme Court has explained that the rationale for the Ex
parte Young doctrine “rests on the need to promote the vindication of federal
rights,” but in a case alleging that a state official has violated state law, this federal
interest “disappears.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
105-06 (1984). State officials are immune from suit in federal court for claims
arising under state law because “it is difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state officials on how to conform
their conduct to state law.” Id. at 106.
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The immunity tribal officials enjoy from state law claims brought in federal
court is narrower than the immunity of state officials from such claims, however.
Specifically, tribal officials may be subject to suit in federal court for violations of
state law under the fiction of Ex parte Young when their conduct occurs outside of
Indian lands. See Bay Mills, 134 S. Ct. at 2034-35. In Bay Mills, the Supreme
Court held that a tribe enjoyed immunity from suit by a state to enjoin alleged
illegal gaming occurring at a casino that was not on Indian lands. However, the
state had other remedies and could sue “tribal officials . . . (rather than the Tribe
itself) seeking an injunction for, say, gambling without a license [under state law].”
Id. at 2035 (emphasis added). This is because “a State, on its own lands, has many
other powers over tribal gaming that it does not possess (absent consent) in Indian
territory”; when not on Indian lands, members of a tribe, including tribal officials,
“are subject to any generally applicable state law.” Id. at 2034-35. And tribal
officials are not immune from a state law claim seeking to enjoin gaming because
“analogizing to Ex parte Young, tribal immunity does not bar such a suit for
injunctive relief against individuals, including tribal officers, responsible for
unlawful conduct” under state law that occurs off Indian lands. Id. at 2035
(internal citation omitted).
Alabama acknowledges that the Individual Defendants enjoy immunity from
its state law claim if the casinos are located on Indian lands. While conceding that
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the Secretary took the lands where the casinos are located into trust for the Tribe,
Alabama argues that under the Supreme Court’s decision in Carcieri v. Salazar,
555 U.S. 379 (2009), the Tribe’s casinos are not located on Indian lands because
the Secretary lacked authority to take land into trust on behalf of the Tribe under
IRA. We reject this argument because Alabama cannot raise a collateral challenge
to the Secretary’s authority to take lands into trust (and consequently, the status of
the Tribe’s lands) in this lawsuit. We therefore conclude that the Individual
Defendants are entitled to immunity on Alabama’s state law claim.
In Carcieri, the Secretary decided to take a parcel of land into trust for the
Narragansett Indian tribe. Rhode Island appealed the decision to the Interior Board
of Indian Appeals, which upheld the Secretary’s decision. Rhode Island then
sought review of the agency action in federal court under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 702. The Supreme Court was presented with
the question of whether IRA authorized the Secretary to take lands into trust on
behalf of the Narragansett tribe, which had not been federally recognized when
IRA was enacted in 1934. As described above, IRA authorized the Secretary to
take lands into trust “for the purpose of providing land for Indians,” defining
Indians as “persons of Indian descent who are members of any recognized Indian
tribe now under Federal jurisdiction.” 25 U.S.C. §§ 465, 479. Because “the term
‘now under federal jurisdiction’ in § 479 unambiguously refer[red] to those tribes
20
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that were under the federal jurisdiction of the United States when [] IRA was
enacted in 1934,” the Supreme Court held the Secretary lacked authority to take
land into trust for a tribe that was not under federal jurisdiction in 1934. 555 U.S.
at 395-96.
But the Supreme Court’s decision in Carcieri holding that the Secretary
lacked authority to take land into trust for the Narragansett tribe in a lawsuit
against the Secretary raising a timely APA claim does not mean that Alabama may
collaterally attack the Secretary’s authority to take lands into trust for the Tribe in
this case. Unlike Rhode Island in Carcieri, Alabama has not brought an APA
claim against the Secretary. Because Carcieri involved a timely challenge under
the APA, the Supreme Court did not address whether the Secretary’s authority to
take land into trust may be reviewed outside an APA action.20
The proper vehicle for Alabama to challenge the Secretary’s decisions to
take land into trust for the Tribe is an APA claim. See Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2208 (2012)
(characterizing a challenge to the Secretary’s land-into-trust decision as a “garden-
variety APA claim”). We hold that Alabama cannot raise in this lawsuit a
collateral challenge to the Secretary’s authority to take the lands at issue into trust.
20
The Supreme Court explained that its decision did not address the status of lands the
Secretary had previously taken into trust for the Narragansett tribe. Carcieri, 555 U.S. at 385
n.3.
21
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We find persuasive the opinion of the Ninth Circuit sitting en banc, which
recently held that California could not raise a collateral attack—that is, make a
challenge outside an APA claim—to the Secretary’s authority to take lands into
trust for an Indian tribe. Big Lagoon Rancheria v. California, 789 F.3d 947 (9th
Cir. 2015) (en banc). In Big Lagoon, a tribe sued California contending that the
state had failed to negotiate in good faith a tribal-state compact governing class III
gaming. Id. at 952. California argued, based on Carcieri, that it had no obligation
to negotiate a compact because the tribe was not under federal jurisdiction as of
1934; thus, the tribe’s casinos were not located on Indian lands. Id. The Ninth
Circuit rejected California’s reliance on Carcieri, which did not “address whether
the [Secretary’s] entrustment decisions can be challenged outside an action brought
under the APA or outside the statute of limitations for APA actions.” Id. at 953.
The Ninth Circuit explained that California raised “a belated collateral attack” on
the Secretary’s decision to take land into trust, which could only be reviewed under
“a petition for review pursuant to the APA.” Id.
Perhaps tacitly recognizing that we can review the Secretary’s authority to
take lands into trust only under the APA, Alabama argues the district court should
have permitted it to amend its complaint to add the Secretary as a party and assert
an APA claim. Even assuming, arguendo, that Alabama properly sought leave
from the district court to amend its complaint to add an APA claim against the
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Secretary, 21 we cannot say that the district court abused its discretion when it
denied Alabama the opportunity to amend its complaint because amendment would
have been futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263-64 (11th
Cir. 2004) (no abuse of discretion in denying leave to amend when amendment
would have been futile).
A six-year general statute of limitations applies to APA claims brought
against the United States; the statute begins to run when the agency issues the final
action that gives rise to the claim. See 28 U.S.C. § 2401(a) (“[E]very civil action
commenced against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues.”); U.S. Steel Corp. v. Astrue,
495 F.3d 1272, 1280 (11th Cir. 2007). Because the Secretary accepted the lands at
issue into trust for the Tribe in 1984, 1992, and 1995, the statute of limitations to
challenge those decisions had run by 1991, 1999, and 2002, respectively.
Alabama attempts to skirt the time bar by invoking an exception to the
APA’s statute of limitations for as-applied challenges. We have allowed an
untimely challenge to a regulation on which an agency relies in taking final agency
action on the ground that the regulation was outside the agency’s statutory
authority. See Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1472-
21
Alabama never filed a motion to amend its complaint to add the Secretary as a party or
to add an APA claim in the district court, but it did request such leave in its response to the
United States’s amicus brief in the district court.
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73 (11th Cir. 1997) (citing NLRB Union v. Fed. Labor Relations Auth., 834 F.2d
191, 194-97 (D.C. Cir. 1987)). But we are unpersuaded that the exception applies
in this case.
The exception gives a party ultimately affected by a rule “an opportunity to
question [the rule’s] validity” when the party could not have brought a timely
challenge. NLRB Union, 834 F.2d at 196 (internal quotation marks omitted).
Alabama does not argue it was unaware that the Secretary was taking land into
trust for the Tribe; indeed, record evidence confirms that Alabama was given
notice when the Secretary took the lands into trust. Because Alabama could have
brought a timely APA challenge, we will not carve out an exception to the six-year
statute of limitations. See Big Lagoon Rancheria, 789 F.3d at 954 n.6 (rejecting,
based on evidence showing that California had previously acknowledged that the
Secretary had taken the land at issue into trust, the argument that the state should
be permitted to raise an untimely challenge to the Secretary’s land-into-trust
decision).
We are in no position, given the procedural posture of this case, to disturb
the Secretary’s long-ago decisions to take the lands in question into trust—
decisions which Alabama could have but chose not to challenge at the time. As the
district court found, the deeds to the lands on which the casinos sit demonstrate the
United States holds title in trust for the benefit of the Tribe. Because the lands at
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issue are properly considered “Indian lands,” the Individual Defendants are
immune from Alabama’s state law claim. 22
b. Waiver of Immunity
Alabama argues in the alternative that the Individual Defendants waived
their immunity from the state law claim by removing the case to federal court.
Alabama’s argument rests on the assumption that the Individual Defendants enjoy
immunity from the state law claim in federal court but not in state court. The sole
case on which Alabama relies addresses state officials’ immunity from state law
claims in state court, not tribal officials’ immunity from state law claims in state
court. See Ala. Dep’t of Transp. v. Harbert Int’l, Inc., 990 So. 2d 831, 840 (Ala.
2008), abrogated in part by Ex parte Moulton, 116 So. 3d 1119 (Ala. 2013). State
law cannot limit the Individual Defendants’ immunity because “tribal immunity is
a matter of federal law and is not subject to diminution by the States.” Bay Mills,
134 S. Ct. at 2031 (internal quotation marks omitted); see also Contour Spa at the
Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206 (11th Cir. 2012)
(explaining that a tribe’s sovereign immunity “is not the same thing as a state’s
Eleventh Amendment immunity” because tribes are more akin to foreign
sovereigns). Because the premise of Alabama’s argument—that the Individual
22
Because the Individual Defendants enjoy immunity from Alabama’s state law claim,
we need not reach whether the state law claim is preempted. In any event, Alabama concedes
that its state law claim is preempted if the casinos are located on Indian lands.
25
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Defendants were not immune from the state law claim in state court—does not
hold up, Alabama’s waiver argument fails.
In summary, PCI is entitled to tribal sovereign immunity as to all of
Alabama’s claims; thus, the district court properly dismissed all claims against
PCI. The Individual Defendants are entitled to tribal sovereign immunity on
Alabama’s state law claim but not its federal law claim under IGRA.
V. RIGHT OF ACTION UNDER § 1166
Because tribal sovereign immunity does not bar Alabama from bringing a
federal claim against Individual Defendants under IGRA to enjoin alleged illegal
class III gaming activities at the casinos, we now consider the Individual
Defendants’ argument that Alabama failed to state a claim for relief on the ground
that 18 U.S.C. § 1166 provides Alabama with no right of action. Alabama argues
that § 1166 gives states a right of action to bring federal claims against tribal
officials who violate state gambling laws.
The Supreme Court has suggested in dicta that a state cannot sue under
§ 1166: “[I]f a tribe opens a casino on Indian lands before negotiating a compact,
the surrounding State cannot sue; only the Federal Government can enforce the
law.” Bay Mills, 134 S. Ct. at 2034 n.6 (citing 18 U.S.C. § 1166(d)). Similarly, in
dicta in Seminole Tribe II, we expressed “some doubt about whether [§ 1166]
would permit a state to bring an action in federal court seeking state-law injunctive
26
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relief against a tribe for violating state gambling laws.” 181 F.3d at 1246 n.13.
With this question of first impression now squarely before us, we hold that § 1166
does not provide states with either an express or implied right of action to sue tribal
officials to enjoin unlawful gaming on Indian lands.
It is well established that the mere “fact that a federal statute has been
violated and some person harmed does not automatically give rise to a private
cause of action in favor of that person.” Cannon v. Univ. of Chicago, 441 U.S.
677, 688 (1979). A statute may, but does not necessarily, create a cause of action
either expressly or by implication. See Transamerica Mortg. Advisors, Inc. v.
Lewis, 444 U.S. 11, 15 (1979). “The question of the existence of a statutory cause
of action is, of course, one of statutory construction.” Touche Ross & Co. v.
Redington, 442 U.S. 560, 568 (1979).
A. Express Right of Action
We begin with the question whether § 1166(a) provides a state with an
express cause of action to sue tribal officials. To determine whether a statute
provides an express right of action, we look for an “express provision granting [] a
federal cause of action to enforce the provisions of that act.” Smith v. Russellville
Prod. Credit Ass’n, 777 F.2d 1544, 1547 (11th Cir. 1985).
Under § 1166(a), with respect to class III gaming conducted without a tribal-
state compact, “all State laws pertaining to the licensing, regulation, or prohibition
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of gambling . . . 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). Although
§ 1166(a) contemplates that for purposes of federal law, state laws pertaining to
class III gaming shall apply in Indian country as they do in the rest of the state,
§ 1166 lacks any language explicitly creating a federal cause of action for a state to
sue to enforce its laws. 23 Accordingly, we hold that § 1166 does not create an
express right of action.
B. Implied Right of Action
We turn now to the more difficult question, whether § 1166 creates an
implied right of action for a state to sue tribal officials to enjoin violations of state
gaming laws occurring on Indian lands. After considering our law governing
implied rights of action, which requires clear evidence of congressional intent; our
prior decision in Seminole II; and the statutory text, structure, and legislative
history of IGRA, we hold that § 1166 does not create an implied right of action for
states to sue tribal officials to enforce state gambling laws.
23
For examples of language Congress has used in expressly creating a right of action, see
15 U.S.C. § 15(a) (“[A]ny person who shall be injured . . . by reason of anything forbidden in the
antitrust laws may sue therefor in any district court of the United States . . . .”); 18 U.S.C.
§ 2520(a) (“[A]ny person whose wire, oral, or electronic communication is intercepted . . . may
in a civil action recover . . . .”); 29 U.S.C. § 1132(a)(1)(B) (“A civil action may be brought. . .
by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan
. . . .”); 42 U.S.C. § 1983 (“Every person who, under color of any statute . . . subjects . . any
citizen of the United States . . . to the deprivation of any rights . . . shall be liable to the party
injured in an action at law . . . .”).
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1. Congressional Intent
In determining whether a statute gives rise to an implied right of action,
“‘[t]he judicial task is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right but also a private
remedy.’” Love v. Delta Air Lines, 310 F.3d 1347, 1352 (11th Cir. 2002) (quoting
Alexander v. Sandoval, 532 U.S. 275, 286 (2001)). In the absence of congressional
intent to create an implied right of action, “‘a cause of action does not exist[,] and
courts may not create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute.’” Id. (quoting Sandoval, 532 U.S. at
286-87). “There must be clear evidence of Congress’s intent to create a cause of
action.” McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 723 (11th Cir.
2002) (internal quotation marks omitted).
To determine whether Congress intended to create an implied right of action,
“[f]irst and foremost, we look to the statutory text for ‘rights-creating’ language.”
Love, 310 F.3d at 1352 (quoting Sandoval, 532 U.S. at 288); see also Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1387 (2015) (explaining that there
was no implied right of action when a statute “lack[ed] the sort of rights-creating
language needed to imply a private right of action”). Rights-creating language
“explicitly confer[s] a right directly on a class of persons that include[s] the
plaintiff in the case.” Cannon, 441 U.S. at 690 n.13. Rights-creating language
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does “more than create a generalized duty for the public benefit, states more than
declarative language, and focuses more than just ‘on the person regulated.’” Shotz
v. City of Plantation, 344 F.3d 1161, 1167 (11th Cir. 2003) (quoting Sandoval, 532
U.S. at 289).
“Second, we examine the statutory structure within which the provision in
question is embedded.” Love, 310 F.3d at 1353. In considering the statutory
scheme, we keep in mind the “cardinal principle” that “a statute ought, upon the
whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (internal quotation marks omitted). Additionally, we have explained that
when the “statutory structure provides a discernible enforcement mechanism . . .
we ought not imply a private right of action.” Love, 310 F.3d at 1353. In other
words, “the express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at 290;
see also Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217
(11th Cir. 2015) (“Where Congress knows how to say something but chooses not
to, its silence is controlling.” (internal quotation marks omitted)).
Third, we look to “legislative history and context within which a statute was
passed.” Love, 310 F.3d at 1353. We consider legislative history “if—and only
if—statutory text and structure have not conclusively resolved whether a [] right of
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action should be implied.” Id. Moreover, we view legislative history suggesting
the existence of an implied right of action “with a skeptical eye.” Id.
2. Our Seminole Tribe II Decision
In Seminole Tribe II, we held that the provision of IGRA requiring a tribal-
state compact for a tribe to engage in class III gaming, 25 U.S.C. § 2710(d)(1)(C),
created no implied right of action for a state to sue a tribal official to enjoin class
III gaming occurring without a compact. 24 181 F.3d at 1246. We explained that
neither the statutory scheme of IGRA nor IGRA’s legislative history provides
evidence that Congress intended to create such an implied right of action. Id. at
1247-49. While Florida argued in Seminole Tribe II that through § 1166 the tribe
had committed “federal crimes by violating [Florida’s] state-law ban on slot
machines, which applies to the Tribe’s lands for purposes of federal law,” the state
did “not contend that [§ 1166] implicitly provide[d] it with a right of action.” Id. at
1240, 1247. In other words, the question whether § 1166 created an implied right
of action was not before us in Seminole Tribe II.
24
We framed the issue as whether a state had a “private right of action” to sue a tribal
official. Seminole Tribe II, 181 F.3d at 1250. Because a state is a public rather than a private
actor, we acknowledge that the label of a “private” right of action may not be wholly accurate.
Here, however, no party has argued that we should use a different framework to analyze when a
state, as opposed to a private party, has an implied right of action. In any event, we note that we
have in the past employed the same analysis when deciding whether a state or a private party has
an implied right of action. Compare id. at 1246-47 (considering whether a state has an implied
right of action) and Fla. Dep’t. of Bus. Regulation v. Zachy’s Wine & Liquor, Inc., 125 F.3d
1399, 1402-03 (11th Cir. 1997) (same) with McDonald, 291 F.3d at 726 (considering whether an
individual has an implied right of action).
31
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Although we did not address in Seminole Tribe II whether § 1166 gives rise
to an implied right of action, our discussion of IGRA’s statutory scheme and
legislative history nevertheless applies to our analysis of the issue in this case. We
explained in Seminole Tribe II that because Congress provided a “multitude of
express remedies” in IGRA, we would not read into IGRA an additional implied
right of action. Id. at 1248-49. We also described how IGRA’s legislative history
showed that Congress carefully balanced federal, state, and tribal interests,
ultimately limiting the application of state laws on tribal lands. Id. at 1247 (citing
S. Rep. No. 100-446, at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3074-
76). Recognizing an implied right of action under IGRA, we said, would “upset
the carefully-struck congressional balance of federal, state, and tribal interests and
objectives.” Id. at 1248. With these principles in mind, we consider whether
Congress intended to create an implied right of action in § 1166.
3. Analysis of 18 U.S.C. § 1166(a)
In § 1166(a), Congress did not intend to create an implied right of action that
would give states the right to sue to enjoin class III gambling even if such
gambling was a nuisance that could be enjoined under state law. We reach this
conclusion after considering the text of § 1166 and the structure and legislative
history of IGRA. See Love, 310 F.3d at 1352-53.
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a. Rights-Creating Language
We begin by looking to the text of § 1166(a) for rights-creating language.
Section 1166(a) states:
Subject to subsection (c), 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. 25
The plain language of § 1166(a) has the effect of incorporating state laws
pertaining to the licensing, regulation, or prohibition of gambling into federal law
such that those state laws extend into Indian country, where they did not previously
reach. Congress clearly expressed that the laws that were incorporated included,
but were not limited to, state criminal laws. Although § 1166(a) extends the reach
of state law, it does not correspondingly extend a state’s power to enforce state law
in Indian country because § 1166 does not contain rights-creating language.
The Supreme Court has held that statutes decreeing that “[n]o person . . .
shall . . . be subjected to discrimination, ” Cannon, 441 U.S. at 681, 690 (citing 42
U.S.C. § 2000d), and that “no person shall be denied the right to vote,” Allen v.
State Bd. of Elections, 393 U.S. 544, 555-57 (1969) (citing 42 U.S.C. § 1973c,
(current version at 52 U.S.C. § 10304(a))), contained rights-creating language. See
also Shotz, 344 F.3d at 1167 (concluding that a statute stating that “[n]o person
25
Subsection (c) specifies that § 1166 applies only to class III gaming conducted outside
a tribal-state compact.
33
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shall discriminate against any individual because such individual has opposed any
act or practice made unlawful by this chapter” contained rights-creating language
(citing 42 U.S.C. § 12203(a)). In contrast, a statute that merely describes how the
federal government will effectuate or enforce rights does not contain rights-
creating language. See Sandoval, 532 U.S. at 288-89 (holding that a statute, which
did not focus on “the individuals who will ultimately benefit from [its] protection”
and instead described how rights created in other provisions will be effectuated,
did not contain rights-creating language).
Section 1166(a) contains no language conferring rights on states or any other
potential plaintiff who would have a claim under state law. Unlike statutes that
contain rights-creating language, § 1166 does not identify a class of persons or
entities protected under the statute. Although § 1166(a) states that “all State laws .
. . shall apply in Indian country in the same manner . . . as such laws apply
elsewhere in the State,” this language does not indicate that Congress intended the
states to be beneficiaries under the statute. The plain language shows that the
focus of § 1166(a) is on “State laws,” not the states themselves. Where, as here,
the focus of a statute is “removed from the individuals who will ultimately benefit
from [its] protection,” the statute does not contain rights-creating language. See
Sandoval, 532 U.S at 289.
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b. Statutory Structure
The statutory structure of § 1166 supports our conclusion that the text of
§ 1166(a) does not reflect congressional intent to create an implied right of action.
To the contrary, the structure of § 1166 undercuts Alabama’s argument that
subsection (a) incorporates all remedies available under state law into federal law.
The structure of IGRA as a whole also belies congressional intent to create an
implied right of action under § 1166(a) for states to sue to enjoin unlawful gaming
because IGRA expressly prescribes other remedies applicable when a tribe
conducts class III gaming without a tribal-state compact.
(i) Section 1166
As discussed above, § 1166(a) provides that in the absence of a tribal-state
compact, all state laws (whether criminal, civil, or regulatory) pertaining to
gambling are incorporated into federal law so that state laws prohibiting class III
gaming apply on Indian lands. But § 1166(a) does not address how these state
laws are to be enforced. Read in its entirety, § 1166 supports our conclusion that
Congress did not intend silently to create an implied right of action for states to sue
to enjoin gambling occuring on Indian lands in violation of state law.
The remainder of § 1166 focuses on how state criminal laws pertaining to
gaming apply in Indian country. Subsection (b) states:
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Whoever in Indian country is guilty of any act or omission involving
gambling . . . which . . . would be punishable if committed . . . within the
jurisdiction of the State . . . under the laws governing the licensing,
regulation, or prohibition of gambling . . . shall be guilty of a like offense
and subject to a like punishment.
18 U.S.C. § 1166(b). 26 Under this subsection, if a person commits in Indian
country an act involving gaming that would be a crime under state law, his actions
constitute a federal crime. Furthermore, the punishment for this federal crime is
the same as the punishment would be for the same crime under state law. 27
Subsection (d) 28 then clarifies that the United States has “exclusive jurisdiction”
over these criminal prosecutions. Id. § 1166(d).
Alabama reasons that because it may sue to enjoin illegal gambling as a
nuisance under state law, it has a similar right of action under § 1166(a).
Underlying Alabama’s argument is the assumption that § 1166(a) incorporated the
entirety of a state’s law pertaining to the licensing, regulation, or prohibition of
26
Subsection (b) is directly modeled on the Federal Assimilative Crimes Act, which
states that for federal enclaves, such as military bases, “[w]hoever . . . is guilty of any act or
omission which . . . would be punishable if committed or omitted within the jurisdiction of the
State . . . in which such place is situated . . . shall be guilty of a like offense and subject to a like
punishment.” 18 U.S.C. § 13(a). The Supreme Court has explained that the effect of § 13 is to
create in federal enclaves complete “conformity with the criminal laws of the respective States in
which the enclaves are situated.” United States v. Sharpnack, 355 U.S. 286, 293 (1958).
27
The Individual Defendants argue that under § 1166(b) the violation of any state gaming
laws (civil, criminal, or regulatory) constitutes a federal crime. We disagree. Subsection (b) by
its plain language makes conduct a federal crime only when an individual is “guilty” of an act
which “would be punishable” under state law. This language limits the scope of subsection (b)
to state criminal laws. See Crime, Black’s Law Dictionary (10th ed. 2014) (defining a “crime”
as “[a]n act that the law makes punishable”).
28
As noted above, subsection (c) specifies that § 1166 applies only to class III gaming
conducted in the absence of a tribal-state compact. 18 U.S.C. § 1166(c).
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gambling into federal law, including all civil remedies and criminal punishments.
Alabama’s interpretation cannot be correct because it would render subsection (b),
which states specifically that state criminal punishments are incorporated into
federal law, superfluous. See TRW Inc., 534 U.S. at 31 (rejecting construction that
would render a provision of a statute superfluous). In other words, the fact that in
§ 1166(b) Congress expressly incorporated the punishments from state criminal
laws into federal law is evidence that Congress did not intend § 1166(a) to
incorporate into federal law the entirety of a state’s substantive laws and remedies
regarding gambling.
Alabama also argues that because subsection (d) specifies only that the
United States has exclusive jurisdiction over criminal prosecutions, we should infer
that the United States and the states share jurisdiction to enforce state civil laws
regarding gaming. 29 Alabama’s argument again rests on the flawed assumption
that § 1166 incorporates into federal law all state law remedies. As discussed
29
In its briefing Alabama argues that the United States has an implied right of action to
sue to enforce state gaming laws. Appellant’s Br. at 36-37, 43 (citing United States v. Santee
Sioux Tribe of Neb., 135 F.3d 558, 562-65 (8th Cir. 1998); United States v. Seminole Tribe of
Fla., 45 F. Supp. 2d 1330, 1331 (M.D. Fla. 1999)). But, at the same time, Alabama also argues
that “states have exclusive authority to bring civil actions under Section 1166(a).” Id. at 41
(citing United States v. Santa Ynez Band of Chumash Mission Indians of Santa Ynez Reservation,
983 F. Supp. 1317, 1319 (C.D. Cal. 1997)). Alabama makes no attempt to reconcile its argument
that states have exclusive authority to bring civil actions with its argument that subsection (d)
implies that the federal government and states share the right to bring civil actions.
To be clear, the issue of whether the United States has a civil right of action under § 1166
is not before us, and we express no opinion on it.
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above, although § 1166(b) explicitly provides that a person violating a state
criminal law pertaining to gambling on Indian land shall be punished under federal
law as she would be under state law, there is no provision explicitly creating a
federal remedy for violation of a state civil law. See 18 U.S.C. § 1166.30 Because
of this omission, which we must presume to have been intentional, we cannot
conclude from the fact that the United States has exclusive authority to bring
criminal prosecutions that the United States and the states both may enforce state
civil laws. See Animal Legal Def. Fund, 789 F.3d at 1217.
(ii) IGRA
The statutory scheme of IGRA as a whole provides additional evidence that
Congress did not intend in § 1166 to create an implied right of action for states. As
an initial matter, we must bear in mind Congress’s stated intent that under IGRA
the federal government would be the principal authority regulating Indian gaming.
See 25 U.S.C. § 2702(3) (expressing congressional intent for IGRA to establish
“independent Federal regulatory authority . . . [and] Federal standards” to govern
gaming on Indian lands).
30
Alabama argues that it is possible for Congress to create a right of action for an
individual to sue under a criminal statute, citing a string of statutes that create an express private
right of action for violation of federal criminal laws. But because these statutes expressly grant
rights of action, they are irrelevant to whether Congress clearly intended to create an implied
right of action under § 1166.
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In IGRA, Congress created express remedies for states when a tribe engages
in class III gaming in the absence of a tribal-state compact or conducts class III
gaming that violates the terms of a compact. First, Congress authorized the NIGC
to levy fines or close a gaming facility if a tribe engages in class III gaming
without a tribal-state compact. 31 See Seminole Tribe II, 181 F.3d at 1248 (citing 25
U.S.C. § 2713). Second, a state may sue in federal court when a tribe violates the
terms of a tribal-state compact by conducting class III gaming that is not permitted
by the compact. See 25 U.S.C. § 2710(d)(7)(A)(ii).
Because IGRA expressly provides these remedies, we “should not expand
the coverage of the statute to subsume other remedies.” Seminole Tribe II, 181
F.3d at 1248 (internal quotation marks omitted).32 Put differently, the fact that
Congress provided these enforcement mechanisms shows that it “intended to
preclude” other enforcement mechanisms—like an implied right of action—to
prevent tribes from engaging in class III gaming without a compact. Sandoval, 532
31
The NIGC has, in fact, exercised this power, ordering tribes to cease and desist from
operating class III gaming without a tribal-state compact. See, e.g., Coyote Valley Band of Pomo
Indians, CO-04-01 (Nat’l Indian Gaming Comm’n June 10, 2004),
http://www.nigc.gov/Reading_Room/Enforcement_Actions/CO-04-01.aspx; Seminole Nation of
Okla., NOV-CO-00-06 (Nat’l Indian Gaming Comm’n May 30, 2000).
http://www.nigc.gov/LinkClick.aspx?link=NIGC+Uploads/readingroom/enforcementactions/sem
inolenationok/NOVCO0006.pdf. Copies of the Internet materials cited in this opinion are on file
in the Clerk’s Office. See 11th Cir. R. 36, I.O.P. 10.
32
Alabama claims that if states cannot sue, tribes will simply engage in class III gaming
without compacts. But, it is mere speculation that the prospect of federal enforcement will not
ensure tribes’ compliance with IGRA.
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U.S. at 290; see Seminole Tribe II, 181 F.3d at 1248-49 (describing availability of
these other remedies as a “clear signal” that Congress did not intend to create an
implied right of action for states to sue).
Indeed, if we were to hold that states could sue to enjoin class III gaming
when a tribe engaged in class III gaming without a compact, we would undermine
IGRA’s careful balance of federal, state, and tribal interests. Seminole Tribe II,
181 F.3d at 1247. Section 2710(d)(7)(A)(ii) indicates that Congress intended for a
state to have a right of action to enjoin class III gaming only where the gaming is
unauthorized by a compact between the state and the tribe allowing some class III
gaming. Permitting a state to sue to enjoin class III gaming in the absence of a
compact “would be tantamount to deleting the second requirement that must be
met in order for the state to pursue this express right of action” under
§ 2710(d)(7)(A)(ii). Seminole Tribe II, 181 F.3d at 1249. We cannot “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.” Id.
Alabama argues that because Congress permitted a tribe to engage in class
III gaming only if its lands were “within a State which does not, as a matter of
criminal law and public policy, prohibit such gaming activity,” it must have
intended to provide the state with a remedy to enforce its laws prohibiting such
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gaming. 25 U.S.C. § 2701(5). But, again, the fact that Congress may have
intended for a state to be free from Indian gaming within its borders where such
gaming was completely prohibited under the state’s law does not mean that 18
U.S.C. § 1166 creates a remedy for the state to enforce this right. See Cannon, 441
U.S. at 688 (“[T]he fact that a federal statute has been violated and some person
harmed does not automatically give rise to a private cause of action in favor of that
person.”).
c. Legislative History
After considering the text of § 1166 and the structure of IGRA, we conclude
that Congress did not intend to create an implied right of action in § 1166. But
even if the statutory text and structure did not conclusively resolve whether there is
an implied right of action, the legislative history and context of the statute make
Congress’s intent clear. As we explained in Seminole Tribe II, the legislative
history “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.” 181 F.3d at 1247 (citing S. Rep. No. 100-446 at
5-6). To strike this balance, Congress placed “limits on the application of state
laws and the extension of state jurisdiction to tribal lands.” Id. (citing S. Rep. No.
100-446 at 5-6). According to the Senate Report, “‘the compact process is a viable
mechanism for setting various matters between [states and tribes as] equal
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sovereigns.’” Id. at 1248 (quoting S. Rep. No. 100-446 at 13) (alteration in
original). The Senate Report recognized the need for “‘some incentive’” for states
to negotiate in good faith. Id. (quoting S. Rep. No. 100-446 at 13). Permitting
states to sue to enjoin class III gaming without a compact “would surely frustrate
[Congress’s] intent [as expressed in the legislative history].” Id.
Thus, like the district court below, we fail to discern a private right of action
that would allow Alabama to bring a federal claim under IGRA to enjoin the
Tribes’ alleged class III gaming.
VI. CONCLUSION
We conclude that (1) PCI is entitled to sovereign immunity as to all of
Alabama’s claims; (2) the Individual Defendants are entitled to sovereign
immunity as to Alabama’s state law claim; and (3) Alabama failed to state a claim
under IGRA because 18 U.S.C. § 1166 gives states no right of action to sue.
Accordingly, we affirm the judgment of the district court.
AFFIRMED.
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