FL Paraplegic v. Miccosukee Indian

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
__________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
2/03/99
No. 97-5418 THOMAS K. KAHN
CLERK
__________________________

DC Docket No. 96-2425-CV-WDF

The FLORIDA PARAPLEGIC,
ASSOCIATION, INC. and
The ASSOCIATION FOR DISABLED
AMERICANS, INC.,

Plaintiffs-Appellees,

versus

MICCOSUKEE TRIBE OF INDIANS OF
FLORIDA d/b/a MICCOSUKEE INDIAN
BINGO AND GAMING,

Defendant-Appellant.

__________________________

Appeal from the United States District Court
for the Southern District of Florida
__________________________
(February 3, 1999)

Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
KRAVITCH, Senior Circuit Judge:

In this case of first impression, we must decide whether Title III of the

Americans With Disabilities Act, 42 U.S.C. § 12181 et seq. (“Title III of the ADA”

or “Title III”) creates a private right of action against Indian tribes who allegedly have

failed to comply with its requirements. Title III of the ADA prohibits discrimination

against any individual “on the basis of disability in the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, or accommodations of any place of

public accommodation by any person who owns, leases (or leases to), or operates a

place of public accommodation.” 42 U.S.C. § 12182(a). We hold that Congress has

not abrogated tribal sovereign immunity with respect to this statute so as to allow a

private suit against an Indian tribe.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs, the Florida Paraplegic Association, Inc. and the Association for

Disabled Americans, Inc. (“the Associations”), filed this lawsuit against the defendant,

the Miccosukee Indian Tribe (“the Miccosukee Tribe” or “the Tribe”), alleging that

a restaurant and entertainment facility owned and operated by the Tribe fails to meet

the ADA’s requirement that places of public accommodation be accessible to the

disabled. In their complaint, the Associations claim that, among other violations, the

Tribe’s facility does not comply with the ADA in the following respects: the

2
handicapped parking is inadequate; the front door is too difficult to open; the

wheelchair ramps have a slope that is too steep; and the bathrooms are not equipped

properly for disabled individuals.1 The Associations requested injunctive relief to

compel the Tribe to conform its facility to the ADA’s requirements for public

accommodations. The Tribe moved to dismiss the complaint, asserting that the

doctrine of sovereign immunity protects it from suit under this statute.

The district court decided that the ADA is a statute of general applicability and

noted that “there is a presumption that a general statute will apply to all persons

including Indians and their property interests.”2 Although it recognized three

exceptions to this rule, the district court nevertheless found that none of the exceptions

1
See Amended Complaint, R1-5, ¶ 8.
2
Dist. Ct. Order, R1-11 at 1 (citing Federal Power Comm’n v. Tuscarora Indian Nation,
362 U.S. 99, 116, 80 S. Ct. 543, 553 (1960)). The district court determined that the Miccosukee
Tribe conceded that the ADA is such a “generally applicable” statute. See Dist. Ct. Order, R1-
11 at 1. Although it does not control our holding, see infra Part III.A, we note that the Tribe
cannot be deemed to have unambiguously conceded this point. In its motion to dismiss, the
Tribe made several arguments in support of its position that it is immune from private lawsuits
under the ADA. The Tribe did recognize that “a general statute, which by its terms applies to all
persons, includes Indians and their property interests,” Tribe’s Mot. to Dismiss, R1-7 at 4-5
(citing Tuscarora, 362 U.S. 99, 80 S. Ct. 543), and argued that this case fell under one of the
exceptions to that principle. According to one reasonable reading of the motion, however, this
statement was an alternative argument and did not constitute an explicit admission that the Tribe
was subject to the ADA unless an exception to the “general statute” rule applied. Thus, we
cannot construe the Tribe’s argument as a concession that the ADA is a generally applicable
statute. See Crowe v. Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997) (holding, in context of
appellate oral arguments, that “waivers and concessions . . . need to be unambiguous before they
are allowed to change the outcome of an appeal” (citing Glick v. White Motor Co., 458 F.2d
1287, 1291 (3d Cir. 1972) (“[T]o be binding, judicial admissions must be unequivocal.”))).

3
was relevant to the present case. The district court therefore concluded that the

Miccosukee Tribe was not immune from suit under Title III of the ADA and denied

the Tribe’s motion to dismiss. The Tribe appeals this ruling.

II. STANDARD OF REVIEW

We review de novo the district court’s ruling on the issue of a sovereign’s

immunity from suit. See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996).

III. ANALYSIS

A. The Statute’s Applicability to the Miccosukee Tribe

In denying the Miccosukee Tribe’s motion to dismiss this case, the district court

determined that the ADA applies to Indian tribes. This conclusion was correct as far

as it went. As we discuss below, however, a statute can apply to an entity without

authorizing private enforcement actions against that entity.

From the language of the legislation itself and from the legislative history, it is

evident that the ADA is a general statute that Congress intended to have broad

applicability. Congress stated that the purpose of the ADA was “to provide a clear

and comprehensive national mandate for the elimination of discrimination against

individuals with disabilities” and “to invoke the sweep of congressional authority . .

. in order to address the major areas of discrimination faced day-to-day by people with

disabilities.” 42 U.S.C. § 12101(b)(1), (4). The statute addresses discrimination in

4
employment, public services, and public accommodations by private entities, and the

terms “public accommodation” and “private entity” both are defined broadly.3 Senate

and House reports accompanying Title III of the ADA emphasize Congress’s intent

that the statute apply universally:

The twelve categories of entities included in the definition of the
term “public accommodation” are exhaustive. However, within each of
these categories, the legislation only lists a few examples and then, in
most cases, adds the phrase “other similar” entities. The Committee
intends that the “other similar” terminology should be construed liberally
consistent with the intent of the legislation that people with disabilities
should have equal access to the array of establishments that are available
to others who do not currently have disabilities.4

Although neither we nor any other circuit previously has addressed whether the ADA

is a general statute applicable to Indian tribes, several circuits have examined other

federal statutes that set forth comprehensive schemes enforcing the protection of

individual rights and have found those laws broad enough to manifest Congress’s

intent that they apply to Indian tribes.5

3
Congress defined “private entity” as “any entity other than a public entity [as defined in
Title II of the ADA, which bars discrimination by public entities].” 42 U.S.C. § 12181(6).
“Public accommodation” includes twelve expansive categories, each of which lists specific
establishments and concludes with the language “or other [similar entities].” Id., § 12181(7).
4
S. Rep. No. 101-116, at 59 (1989) (emphasis added); see also H.R. Rep. No. 101-485,
pt. II, at 100 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 382-83 (same).
5
See, e.g., Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (holding
that Secretary of Labor could fine Indian tribe-owned and operated construction company for
violations of the Occupational Safety & Health Act (“OSHA”)); Smart v. State Farm Ins. Co.,
868 F.2d 929 (7th Cir. 1989) (holding that the Employee Retirement Income Security Act

5
 A general statute presumptively governs Indian tribes and will apply to them

absent some superseding indication that Congress did not intend tribes to be subject

to that legislation. See Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S.

99, 120, 80 S. Ct. 543, 556 (1960). The leading summary of the three circumstances

that may defeat the “general statute” presumption is found in a Ninth Circuit case,

Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). As the

district court recognized, a general statute applies to Indian tribes unless its

application would (1) abrogate rights guaranteed under an Indian treaty, (2) interfere

with purely intramural matters touching exclusive rights of self-government, or (3)

contradict Congress’s intent, see id. at 1116. The Associations and the Miccosukee

Tribe agree that no treaty relevant to this case exists and that Congress has not

specifically expressed its intent that the ADA not apply to Indian tribes. Thus, the

presumption of applicability controls here unless the Act “touches ‘exclusive rights

of self-governance in purely intramural matters.’” Coeur d’Alene, 751 F.2d at 1116

(quoting United States v. Farris, 624 F.2d 890, 893 (9th Cir. 1980)).

We agree with the district court and the majority of our sister courts that have

applied this test that tribe-run business enterprises acting in interstate commerce do

(“ERISA”) governs benefit plans of Indian tribe employers); Donovan v. Coeur d’Alene Tribal
Farm, 751 F.2d 1113 (9th Cir. 1985) (same as Mashantucket Sand & Gravel).

6
not fall under the “self-governance” exception to the rule that general statutes apply

to Indian tribes. In Coeur d’Alene, the Ninth Circuit explained the limitations of this

exception:

[T]he tribal self-government exception is designed to except purely
intramural matters such as conditions of tribal membership, inheritance
rules, and domestic relations from the general rule that otherwise
applicable federal statutes apply to Indian tribes.
The operation of a farm that sells produce on the open market and
in interstate commerce is not an aspect of tribal self-government.
Because the Farm employs non-Indians as well as Indians, and because
it is in virtually every respect a normal commercial farming enterprise,
we believe that its operation free of federal health and safety regulations
is neither profoundly intramural . . . nor essential to self-government.

751 F.2d at 1116 (citations and internal punctuation omitted).6 The Miccosukee

Tribe’s restaurant and gaming facility is a commercial enterprise open to non-Indians

from which the Tribe intends to profit. The business does not relate to the

governmental functions of the Tribe, nor does it operate exclusively within the domain

of the Tribe and its members. In fact, it is precisely the sort of facility within “the

array of establishments . . . available to others who do not currently have disabilities”

6
See also Mashantucket Sand & Gravel, 95 F.3d at 179-82 (adopting Coeur d’Alene
analysis as law of Second Circuit and holding that application of OSHA to tribal construction
business does not fall within this exception); Farris, 624 F.2d at 893 (holding, in case involving
gambling operation conducted on Indian trust land, that “the large-scale professional gambling
involved here . . . is neither profoundly intramural (the casinos’ clientele was largely non-Indian)
nor essential to self-government”); but see Equal Employment Opportunity Comm’n v. Fond du
Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir. 1993) (refusing to apply “general
applicability” rule to Age Discrimination in Employment Act where employment relationship
was between Indian tribe employer and Indian applicant, because “the tribe’s specific right of
self-government would be affected”).

7
that Congress intended to make “equal[ly] access[ible]” to disabled individuals

through enactment of Title III of the ADA.7 We hold, therefore, that because the

ADA is a generally applicable law and because no exception to the presumption that

such statutes apply to Indian tribes controls this case, Title III of the ADA governs the

Miccosukee Tribe in its operation of its gaming and restaurant facility.

The district court ended its consideration of the Tribe’s motion to dismiss this

lawsuit with its finding that Title III governs Indian tribes and that no exception

prevents its application to the Miccosukee Tribe’s commercial enterprise. The

analysis does not stop here, however, for whether an Indian tribe is subject to a statute

and whether the tribe may be sued for violating the statute are two entirely different

questions. As the Supreme Court bluntly stated in Kiowa Tribe v. Manufacturing

Technologies, Inc., —U.S.—, 118 S. Ct. 1700, 1703 (1998), “[t]here is a difference

between the right to demand compliance with state laws and the means available to

enforce them.” This principle, which simply spells out the distinction between a right

and a remedy, applies with equal force to federal laws.

We turn now to the task of evaluating the question of whether, under the rules

concerning tribal sovereign immunity, the Miccosukee Tribe is amenable to a private

lawsuit alleging violations of Title III of the ADA.

7
See supra note 4 and accompanying text.

8
 B. Tribal Sovereign Immunity

In a line of cases decided over a period of more than 150 years, the Supreme

Court has recognized that Indian tribes “retain[] their original natural rights” which

vested in them, as sovereign entities, long before the genesis of the United States.

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).8 Although Indian tribes are

“domestic dependent nations” whose sovereignty is not absolute but may be limited

by Congress, see Oklahoma Tax Comm’n v. Potawatomi Indian Tribe, 498 U.S. 505,

509, 111 S. Ct. 905, 909 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)

1, 17 (1831)), federal encroachment upon Indian tribes’ natural rights is a serious

undertaking, and we should not assume lightly that Congress intended to restrict

Indian sovereignty through a piece of legislation.

This respect for the inherent autonomy Indian tribes enjoy has been particularly

enduring where tribal immunity from suit is concerned. Thus, the Supreme Court has

allowed the federal government to enforce with respect to Indians laws concerning,

for example, federal income taxes and confiscation of land for federal projects, on the

rationale, discussed supra Part III.A, that Congress meant the laws under which the

federal agencies were acting to apply to Indians because they were “general statute[s]

8
See also, e.g., Holden v. Joy, 84 U.S. (17 Wall.) 211, 242 (1872); United States v.
United States Fidelity & Guar. Co., 309 U.S. 506, 512-13, 60 S. Ct. 653, 656 (1940); Puyallup
Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 169-73, 97 S. Ct. 2616, 2619-21 (1977).

9
in terms applying to all persons” that did not explicitly exclude Indians.9 Tuscarora,

362 U.S. at 116, 80 S. Ct. at 553. The Court unwaveringly has held, however, that

“Indian Nations are exempt from suit without Congressional authorization,” United

States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S. Ct. 653, 656

(1940), and that “a [Congressional] waiver of [Indian tribal] sovereign immunity

cannot be implied but must be unequivocally expressed,” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677 (1978) (internal quotations omitted).10

Just last term, the Court, although it questioned the historical legitimacy of the

doctrine, reaffirmed that according to “settled law,” an Indian tribe is not subject to

suit unless the tribe waives its immunity or Congress expressly abrogates it. Kiowa

Tribe , — U.S. at —, 118 S. Ct. at 1702-03.

With this firm rule in mind, we address the question of whether the

9
See Superintendent of Five Civilized Tribes v. Commissioner of Internal Revenue, 295
U.S. 418, 55 S. Ct. 820 (1935) (allowing Internal Revenue Service to collect federal income
taxes from Indians); Tuscarora, 362 U.S. 99, 80 S. Ct. 543 (1960) (permitting the Federal Power
Commission to license the confiscation of Indian lands for energy projects).
10
See also Potawatomi Tribe, 498 U.S. at 509, 111 S. Ct. at 909 (“Suits against Indian
tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional
abrogation.”); Three Affiliated Tribes v. World Eng’g, 476 U.S. 877, 890-91, 106 S. Ct. 2305,
2313 (1986) (“The common law sovereign immunity possessed by the Tribe is a necessary
corollary to Indian sovereignty and self-governance. . . . [I]n the absence of federal
authorization, tribal immunity . . . is privileged from diminution by the States.”); Tamiami
Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1038 n.30 (11th Cir. 1995)
(“Absent tribal waiver or congressional abrogation, an Indian tribe is shielded from suit by
sovereign immunity.” (citing Martinez, 436 U.S. at 58, 98 S. Ct. at 1677)).

10
Associations are permitted to sue the Miccosukee Tribe for allegedly violating Title

III of the ADA.

C. Interpreting Title III of the ADA

It is undisputed that the Miccosukee Tribe never waived sovereign immunity

with respect to Title III in general or this lawsuit in particular. Thus, the Tribe retains

its common law immunity from private suit unless Congress “unequivocally

expressed” its intent to abrogate Indian tribes’ sovereign immunity under this statute.

Martinez, 436 U.S. at 58, 98 S. Ct. at 1677. Although the Supreme Court has not

elaborated on this waiver standard in the context of tribal sovereign immunity, the

same standard applies in determining whether Congress has abolished federal and

state governments’ protection from suit.11 In this broader context of sovereign

immunity, the Court has held that Congress may abrogate a sovereign’s immunity

“only by making its intention unmistakably clear in the language of the statute”;

legislative history and “inferences from general statutory language” are insufficient.

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147 (1985).

11
See, e.g., Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 425-26 (1985) (“States
may not be sued in federal court unless they consent to it in unequivocal terms or unless
Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate
the immunity.”); Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280,
103 S. Ct. 1811, 1816 (1983) (“States of the Union, like all other entities, are barred by federal
sovereign immunity from suing the United States in the absence of an express waiver of this
immunity by Congress.”).

11
We see no reason to adopt a different standard for evaluating Congressional intent

with respect to the waiver of tribal sovereign immunity.12 This determination is

strengthened by the Supreme Court’s repeated instruction that, because of the “unique

trust relationship between the United States and the Indians,” where Indian rights are

at issue, ambiguities in federal laws must be resolved to the Indians’ advantage.

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403

(1985).13 We conclude, therefore, 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.

An examination of Title III of the ADA reveals that it does not meet the strict

requirements of this test. Despite its apparent broad applicability, see supra Part III.A,

no specific reference to Indians or Indian tribes exists anywhere in Title III. Most

significantly, the section of Title III pertaining to enforcement of its prohibition of

12
Although the Supreme Court has continued to emphasize, in cases such as Potawatomi
Tribe and Kiowa Tribe, the rule that Congress must unequivocally express its intent to abrogate
tribal sovereign immunity, the Court decided the landmark cases setting down this standard—
USF&G and Martinez—in 1940 and 1978, respectively. Congress therefore had notice of the
need to express its intent clearly when it enacted the ADA in 1990.
13
See also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44, 100 S. Ct.
2578, 2584 (1980) (“Ambiguities in federal law have been construed generously in order to
comport with . . . traditional notions of sovereignty and with the federal policy of encouraging
tribal independence.”); Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490, 493
(7th Cir. 1993) (“[N]ot only treaties but (other) federal statutes as well are to be construed so far
as is reasonable to do in favor of Indians.”).

12
discrimination in places of public accommodation simply states that the same

remedies are available to aggrieved persons under this statute as are open to victims

of discrimination in public accommodations under Title II of the Civil Rights Act of

1964: namely, “a civil action for preventive relief, including an application for a

permanent or temporary injunction, restraining order, or other order, may be instituted

by the person aggrieved . . . .” 42 U.S.C. § 2000a-3(a), cited in 42 U.S.C. § 12188.

Neither the enforcement provision of Title III of the ADA nor the parallel section of

the Civil Rights Act specifically authorizes suits against Indian tribes who allegedly

have violated the Acts’ substantive requirements. In short, Congress declined to

abrogate Indian tribes’ sovereign immunity from suit either by direct statement in

Title III itself or by reference to other statutes having that effect. No support exists

in the statute for a finding that Congress has waived tribal sovereign immunity under

Title III of the ADA.

Even perfunctory reference to other statutes in which Congress directly has

addressed the amenability of tribes to suit strengthens our conviction that Title III of

the ADA is not one of those acts through which Congress intended to infringe upon

Indian tribes’ sovereign rights. For example, the Hazardous Materials Transportation

Uniform Safety Act of 1990 (“HMTUSA”), 49 U.S.C. App. § 1801 et seq. (repealed

1994), while in effect, provided that “[a]ny person, including a State or political

13
subdivision thereof or Indian tribe, directly affected by any requirement of a State or

political subdivision or Indian tribe, may apply to the Secretary [of Energy] . . . for [an

administrative] determination of whether that requirement is preempted by [federal

law].” Id., § 1811(c)(1). The statute also stated that “[n]othing in [this section]

prohibits a State or political subdivision thereof or Indian tribe, or any other person

directly affected by any requirement of a State or political subdivision thereof or

Indian tribe, from seeking a determination of preemption in any court of competent

jurisdiction in lieu of applying to the Secretary under paragraph (1).” Id., §

1811(c)(2). At least two of our sister circuits found that this language manifested

Congress’s intent to abrogate sovereign immunity from suits seeking a declaration of

federal preemption under the HMTUSA of an Indian tribe’s attempt to regulate the

transportation of hazardous materials. See Public Service Co. v. Shoshone-Bannock

Tribes, 30 F.3d 1203 (9th Cir. 1994); Northern States Power Co. v. Prairie Island

Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993).

Similarly, the Resource Conservation and Recovery Act of 1976 (“RCRA”),

aimed at remedying pollution caused by improper disposal of hazardous and solid

waste, authorizes citizens to bring suits to force compliance with the statute “against

any person . . . who is alleged to be in violation [of the statute’s substantive

provisions].” 42 U.S.C. § 6972(a)(1)(A). The definition of “person” includes a

14
“municipality,” which in turn encompasses “an Indian tribe” by express statutory

delineation. Id., § 6903(13), (15). According to at least one court, these terms, in

conjunction with the history of the RCRA, “clearly indicate[] congressional intent to

abrogate the Tribe’s sovereign immunity with respect to violations of the RCRA.”

Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir.

1989).14

These two statutes—the (now repealed) HMTUSA and the RCRA—are not

before us, and we do not purport to decide for this circuit whether the language quoted

from each of them abrogates Indian tribes’ sovereign immunity with respect to the

substantive provisions of those acts. We note, however, that the wording of these

laws at least implies that Congress comprehends the need to address Indian tribes

specifically and individually when it describes the means of enforcing statutorily

created rights through judicial action. When we compare Title III of the ADA to the

HMTUSA and the RCRA, the absence of any reference to Indian tribes in the former

statute stands out as a stark omission of any attempt by Congress to declare tribes

14
See also State of Washington v. United States Envtl. Protection Agency, 752 F.2d
1465, 1469 (9th Cir. 1985) (addressing separate but related issue and noting definitions
described above which appear to evidence Congressional intent to abrogate tribal sovereign
immunity under the RCRA).

15
subject to private suit for violating the ADA’s public accommodation requirements.15

One other provision of the ADA provides further support for our conclusion

that Congress did not intend to abrogate sovereign immunity with respect to Indian

tribes. Section 12202 states:

A State shall not be immune under the eleventh amendment . . .
from an action in Federal or State court of competent jurisdiction for a
violation of [any portion of the ADA]. In any action against a State for
a violation of the requirements of this chapter, remedies (including
remedies both at law and in equity) are available for such a violation to
the same extent as such remedies are available for such a violation in an
action against any public or private entity other than a State.

42 U.S.C. § 12202. This provision demonstrates Congress’s full understanding of the

need to express unambiguously its intent to abrogate sovereign immunity where it

wishes its legislation to have that effect. That comprehension is underscored in the

legislative history to section 12202, which states:

This section removes immunity of states granted by the Eleventh
Amendment of the Constitution. The Committee intends for states to be
covered by the ADA, where applicable, and to be subject to suit in
federal or state courts. The remedies available against state defendants
are the same as those available against other defendants.
This section was included to meet the requirements of Atascadero
State Hospital v. Scanlon[, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147
(1985) (holding that to abrogate state sovereign immunity Congress must

15
The cases discussed in footnote 5, supra, holding that OSHA and ERISA apply to
Indian tribes despite the absence in those statutes of any direct reference to tribes, do not
contradict our conclusion that private suits against Indian tribes may be authorized only by
explicit statutory language. Those cases did not involve private suits against Indian tribes.

16
 make such intent “unmistakably clear in the language of the statute”)].16

Thus, Congress has demonstrated in this very statute its ability to craft laws satisfying

the Supreme Court’s mandate that courts may find that Congress has abrogated

sovereigns’ immunity from lawsuits only where it has expressed unequivocally its

intent to do so. That it chose not to similarly include an abolition of the immunity of

Indian tribes is a telling indication that Congress did not intend to subject tribes to suit

under the ADA.17

Given the complete absence in the ADA of any reference to the amenity of

Indian tribes to suit, exhaustive analysis of the legislative history would be

superfluous. We have studied the legislative history, however, and furthermore

observe that a lengthy discussion of its relevance to the issue before us would be

impossible. Quite simply, there is nothing to discuss: the committee reports and

transcripts of the floor debates do not contain any information regarding the effect of

16
H.R. Rep. No. 101-485, pt. III, at 72 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 495.
17
The Associations argue that evidence of Congress’s intent to subject Indian tribes to
the requirements of Title III is found in Title I of the ADA, which prohibits discrimination
against disabled individuals in employment. Title I specifically excludes Indian tribes from the
definition of “employer,” thus exempting them from coverage of that portion of the ADA. See
42 U.S.C. § 12111(5)(B)(i). According to the Associations, Congress’s decision to exclude
tribes from one title of the statute demonstrates that it intended the remaining titles to cover
tribes. This argument supports the conclusion we reached in Part III.A that Title III applies to
Indian tribes but sheds no light upon the critical question of whether tribes also may be sued by
private citizens for violating the law.

17
the ADA on Indian tribes that is not found in the statute itself.18 This dearth of

material on the matter supports our conclusion that Congress did not contemplate that

Indian tribes would be subject to private lawsuits for violating Title III of the ADA.

IV. EFFECT OF TRIBAL IMMUNITY ON POTENTIAL REMEDIES

The juxtaposition of Title III’s applicability to the Miccosukee Tribe with the

tribe’s sovereign immunity from suit by disabled individuals to enforce their right to

accommodations may be troubling, but it is not unprecedented. In Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 98 S. Ct. 1670 (1978), the leading case on the standard for

Congressional abrogation of tribal sovereign immunity, the Supreme Court addressed

the Indian Civil Rights Act of 1968 (“ICRA”), which provides that “[n]o Indian tribe

in exercising powers of self-government shall . . . deny to any person within its

jurisdiction the equal protection of its laws . . . .” 25 U.S.C. § 1302(8). A female tribe

member alleged that a Santa Clara Pueblo tribal law that extended tribe membership

to the children of male members and female non-members, but denied membership

18
The only reference we found to Indian tribes in the entire legislative history of the
ADA appears in the committee reports to Title I: “Consistent with title VII of the Civil Rights
Act of 1964, the term ‘employer’ under this legislation does not include (i) the United States, a
corporation wholly owned by the government of the United States, or an Indian tribe . . . .” S.
Rep. No. 101-116, at 24-25 (1989); see also H.R. Rep. No. 101-485, pt. II, at 54 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 336. Similarly, Congress modeled Title III of the ADA,
which does not refer to Indian tribes at all, after Title II of the 1964 Civil Rights Act. See 42
U.S.C. § 2000a et seq.; S. Rep. No. 101-116, at 76 (1989). The legislative histories of both the
ADA and the Civil Rights Act are void of any explanation for this distinction or any further
information regarding the scope of the statutes’ coverage with respect to Indian tribes.

18
to the children of female members and male non-members, violated this provision of

the ICRA and sued the Tribe for declaratory and injunctive relief. Martinez, 436 U.S.

at 51-53, 98 S. Ct. at 1673-74. The Tribe “concede[d] that [the ICRA] modifie[d] the

substantive law applicable to [it]” but contended that it could not be sued in federal

court for ICRA violations because the only relief for which Congress provided in the

ICRA was the writ of habeas corpus. 436 U.S. at 57-58; 98 S. Ct. at 1676-77. The

Supreme Court agreed, holding:

Nothing on the face of . . . the ICRA purports to subject tribes to the
jurisdiction of the federal courts in civil actions for injunctive or
declaratory relief. Moreover, since the respondent in a habeas corpus
action is the individual custodian of the prisoner, the [ICRA habeas
corpus provisions] can hardly be read as a general waiver of the tribe’s
sovereign immunity. In the absence here of any unequivocal expression
of contrary legislative intent, we conclude that suits against the tribe
under the ICRA are barred by its sovereign immunity from suit.

Id. at 59; 98 S. Ct. at 1677 (citation omitted). Thus, the Supreme Court recognized

that Congress could enact a statute with substantive limitations on Indian tribes

without providing any means for most individuals protected by the law to enforce

their rights in federal court.19

19
The Supreme Court observed that “[t]ribal forums are available to vindicate rights
created by the ICRA, and [the ICRA] has the substantial and intended effect of changing the law
which these forums are obliged to apply. Tribal courts have repeatedly been recognized as
appropriate forums for the exclusive adjudication of disputes affecting important personal and
property interests of both Indians and non-Indians.” 436 U.S. at 65, 98 S. Ct. at 1680-81
(footnotes omitted). Thus, although grievants could pursue some method of recourse for alleged
ICRA violations, there existed no federal remedy for many breaches of the federally created

19
 Although Congress’s failure to abrogate Indian tribes’ sovereign immunity

under Title III of the ADA limits the means available to enforce its public

accommodation requirements in tribe-owned and -operated enterprises, this omission

is not as crippling as the scheme Congress devised for enforcement of the ICRA. In

the latter statute, no federal remedy exists for tribal violations of Indians’ rights except

the writ of habeas corpus. Under Title III of the ADA, however, Congress has created

an alternative method of enforcement: the United States Attorney General may bring

a civil action to compel Indian tribes’ compliance with the statute. Title III

specifically authorizes the Attorney General to bring suit against “any person or group

of persons . . . engaged in a pattern or practice of discrimination.”20 As we held in Part

III.A, supra, Title III applies to Indian tribes; moreover, “[t]ribal sovereign immunity

does not bar suits by the United States.” Reich v. Mashantucket Sand & Gravel, 95

F.3d 174, 182 (2d Cir. 1996) (citing Quileute Indian Tribe v. Babbitt, 18 F.3d 1456,

1459-60 (9th Cir. 1994) (observing that “tribal sovereignty does not extend to prevent

rights granted in the ICRA.
20
42 U.S.C. § 12188(b)(1)(B) provides:
If the Attorney General has reasonable cause to believe that—
(i) any person or group of persons is engaged in a pattern or practice of
discrimination under this subchapter; or
(ii) any person or group of persons has been discriminated against under
this subchapter and such discrimination raises an issue of general public
importance,
the Attorney General may commence a civil action in any appropriate United
States district court.

20
the federal government from exercising its superior sovereign powers”)).21 The

Attorney General therefore may pursue an action against Indian tribes failing to

comply with Title III just as it may enforce the act against any other entity that

violates the statute.

V. CONCLUSION

The federal government is responsible for harmonizing the competing interests

of allowing Indian tribes, sovereign yet subordinate dependent nations, to maintain

their independence but, at the same time, requiring tribes to comply with the same

rules that bind all other political subdivisions of the United States. As Indian tribes

and their members become more integrated into the mainstream cultural and economic

activities of American society, maintaining this balance becomes increasingly

difficult. Indian sovereignty has deep historical roots, however, and the presumption

that tribes should not be subjected to lawsuits in state or federal court remains as

strong today as ever.

The Supreme Court repeatedly has emphasized that Congress may abrogate this

sovereign immunity only by unequivocal expression in the language of the relevant

statute. Furthermore, Congress has proven its understanding of this standard both in

21
See also United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th
Cir. 1987) (“[I]t is an inherent implication of the superior power exercised by the United States
over the Indian tribes that a tribe may not interpose its sovereign immunity against the United
States.”).

21
the ADA, with respect to state sovereign immunity, and in other laws with respect to

Indian tribes’ sovereign immunity; yet in Title III of the ADA, it elected not to declare

that private grievants may sue Indian tribes for alleged violations of the statute.

Although the omission of this remedy may seem inconsistent with the rights granted

by Title III, and even patently unfair, “[i]mmunity doctrines inevitably carry within

them the seeds of occasional inequities . . . . Nonetheless, the doctrine of tribal

immunity reflects a societal decision that tribal autonomy predominates over other

interests.” Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 781

(D.C. Cir. 1986).

Because we find that Congress did not unequivocally express an intent to

abrogate tribal sovereign immunity from private suit under Title III of the ADA, we

hold that the Associations may not pursue this action against the Miccosukee Tribe.

We REVERSE the order of the district court and REMAND the case with instructions

to the district court to dismiss the complaint.

22