dissenting:
I
I respectfully dissent.
I understand the majority’s position to be that the district judge’s order dismissing the state’s complaint is not appealable because it is not clear that “the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make . ... ” Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962). Particularly, the majority distinguishes between suits “against tribal members in their individual capacities, and suits against tribal officers acting within their representative capacities” and suggests that California should have amended its complaint to allege “that the tribal officials had exceeded the scope of their tribal authority or were otherwise subject to suit in their indi*1221vidual capacities.” (Emphasis added). Had it done so, the majority suggests, it would have raised allegations sufficient to invoke the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and thus given the district judge an opportunity to rule on whether tribal sovereign immunity barred the state’s action against the tribal officials.
I agree that California did not allege that the tribal officers had exceeded the scope of their tribal authority. I agree, moreover, that had the state done so it would have invoked the doctrine of Ex parte Young. Yet where the majority errs, and where I disagree, is in its suggestion that suing the tribal officials for acting ultra vires is the only way to invoke the doctrine of that case. There are two theories that invoke the doctrine of Ex parte Young. See Washington v. Udall, 417 F.2d 1310, 1314 (9th Cir.1969) One, certainly, is that government officials acted beyond the scope of their statutory authority. United States v. Raines, 362 U.S. 17, 25-26, 80 S.Ct. 519, 524-525, 4 L.Ed.2d 524 (1960); Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287-89, 33 S.Ct. 312, 314-315, 57 L.Ed. 510 (1913). This theory the majority recognizes. The other theory consists of an allegation that the government officers, though not acting ultra vires, were “carrying out official duties in violation of the Constitution.” Washoe Tribe of Nevada & California v. Greenley, 674 F.2d 816, 818 (9th Cir.1982). See also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457,1461, 93 L.Ed. 1628 (1949); Ex parte Young, 209 U.S. at 149-60, 28 S.Ct. at 449-454. It is this theory the majority completely ignores and on which California rests its complaint.1
*1222California averred in its complaint a right to enter the reservation and apply its laws to non-Indians there present under “general principles of federal Indian law, upon the provisions of Public law 280, 18 U.S.C. § 1162, 28 U.S.C. § 1360, upon the provisions of the California Fish and Game Code, and upon other pertinent laws.” It alleged that “defendants maintain that non-Indians who wish to fish or hunt while on [the] reservation need only comply with pertinent rules and regulations adopted by [the] tribe.” Specifically, California contended that “defendants, in their capacity as officers of the Quechan Indian tribe, maintain that said tribe has exclusive jurisdiction to regulate the taking of fish and game by non-Indians while on the Fort Yuma Reservation, ... [that] [defendants ... claim that agents of the state of California cannot enter upon the Fort Yuma Reservation for the purpose of regulating fishing and hunting by non-Indians while on said reservation [and that they] .. . have refused to allow, and have prohibited, authorized agents of the State of California to enter upon the Fort Yuma Reservation for the purpose of enforcing State ... laws.... ” Furthermore, the state claimed, “[defendants have ... threatened to arrest any authorized agent of the State of California who enters upon said reservation for the purpose of enforcing State fish and game laws against non-Indians.” Finally, the state asked the district court to issue “a decree declaring that the State of California is authorized under federal law to apply its laws regulating the taking of fish and game to non-Indians while on the Fort Yuma Reservation, and that agents of the State of California are authorized under federal law to enter upon said reservation for the purpose of enforcing State fish and game laws against non-Indians.” There was thus in the complaint the allegations necessary to inform all who read it that the state sought a declaratory judgment that its theory of federal law was correct and that the tribal officials could not forbid state officers from entering the reservation without violating federal law.
That is certainly enough to invoke what I have called the second branch of Ex parte Young. The state seeks a declaration that the tribal ordinance, which provided that non-Indians could hunt and fish on the Reservation with a permit from the tribe but without a California license, is in conflict with federal law, including federal statutes, and an injunction forbidding tribal officials from applying that ordinance to state officers. If its theory of law is correct, the ordinance may offend the Supremacy Clause and actions taken under color of that ordinance would thus be carried out in violation of the Constitution.2 Since forbidding state officials from entering the reservation to enforce state laws is an act taken under color of that ordinance, the state clearly seeks to enjoin the “officers [from] carrying out official duties in violation of the Constitution,” Washoe Tribe of Nevada & California v. Greenley, at 818. It is clear *1223that California’s complaint cannot be “saved by any amendment ... which the [state] ... could reasonably be expected to make,” Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir.1975); Marshall v. Sawyer, 301 F.2d at 643, for to amend the complaint to sue the officers as individuals, as the majority and district court demand, would change the gravamen of the state’s entire claim. The state has complained of acts under color of an ordinance it alleges is constitutionally void. It has not complained of any ultra vires act. It is pointless, and certainly not “reasonable,” to suggest that to appeal the district court’s decision it must do so now.
I would thus hold the order appealable and would rule that the doctrine of Ex parte Young should be applied to suits against officers of Indian Tribes.
II
A
The doctrine of Ex parte Young was born out of practical necessity. It represents an accomodation of the principle of state sovereign immunity, as embodied in the Eleventh Amendment, and the principle that, to preserve meaningful supremacy of federal law, there must be a federal forum for the vindication of federal rights. J. Novak, R. Rotunda, J. Young, Constitutional Law 52 (1978) (“[T]he Eleventh Amendment was never intended nor held to grant the states the ability to subvert the supremacy clause by immunity from judicial orders to comply with federal law.”) See also Novak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh Amendment, 75 Col.L.Rev. 1413, 1445-46, 1455-58 (1975). The rule of Ex parte Young is compatible with the Eleventh Amendment because it permits suits for prospective and injunctive relief only — suits that generally place only an ancillary burden on state treasuries. See Edelman v. Jordan, 415 U.S. 651, 663-68, 94 S.Ct. 1347, 1355-1358, 39 L.Ed.2d 662 (1974). Whether or not individual state officers are the nominal defendants, the Eleventh Amendment remains as a bar to suit for money judgments that would be paid from state treasuries. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Edelman v. Jordan, 415 U.S. at 666-69, 94 S.Ct. at 1357-1358.
The Supreme Court has extended the doctrine of Ex parte Young to embrace suits against federal, as well as state, officials. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). It appears to have sanctioned the extension of that doctrine to Indian Tribes as well.
In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), plaintiffs brought an action for declaratory and injunctive relief against the Pueblo Tribe and its Governor, asserting that defendants were violating Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-03. Id. at 51, 98 S.Ct. at 1673. Although the Court did not elaborate, it stated that “[a]s an officer of the Pueblo, [the Governor] is not protected by the tribe’s immunity from suit ... cf. Ex parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] (1908).” Id. at 59, 98 S.Ct. at 1677.3 The suit against the Governor would clearly have bound the Pueblo tribe. The Court’s suggestion that tribal immunity did not bar the suit against the Governor, along with its reference to Ex parte Young, indicates a willingness to apply the Ex parte *1224Young fiction to tribal officers who violate federal law. See also United States v. Oregon, 657 F.2d 1009, 1012 n. 8 (9th Cir.1981) (tribal immunity extends -to tribal officials acting in their official capacity and within the scope of their authority) (emphasis added).
Although I am hesitant to construe Martinez as a clear holding that Ex parte Young applies to Indian tribes, I am persuaded that both public policy and the jurisprudence of sovereign immunity compel that result.
B
Indian tribes no longer enjoy the status of independent sovereign nations. Through the exercise of the sovereign power of the United States, their status has been reduced to that of “domestic dependent nations.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). Although they continue to enjoy attributes of sovereignty, their sovereign powers are now subject to the will of Congress, which has plenary authority to limit, modify, or eliminate the sovereign powers of the tribes. Santa Clara Pueblo v. Martinez, 436 U.S. at 56, 98 S.Ct. at 1675 (1978). See generally Note, In Defense of Tribal Sovereign Immunity, 75 Harv.L.Rev. 1058 (1982).
Although tribal immunity is not constitutionally protected, courts have long recognized that Indian tribes possess “the common law immunity from suit traditionally enjoyed by sovereign powers.” Martinez, 436 U.S. at 58, 98 S.Ct. at 1677. I am not persuaded that subjecting Indian tribes to federal court actions for prospective relief under Ex parte Young will unduly interfere with the sovereign powers of Indian tribes. Nor am I persuaded that tribal officers may, without a grant of authority from Congress, interfere with the enforcement of valid state laws, and then claim that the Tribe’s sovereign immunity bars the state from suing for injunctive relief in federal court. Just as the sovereignty of a tribe must fall before the will of Congress, so too a tribe’s immunity must yield when the state4 brings suit to enforce prospectively the will of Congress.
The courts have recognized that tribal sovereign immunity protects Indian resources against the dissipation that would otherwise be caused by judgments against the tribes. See Adams v. Murphy, 165 F. 304, 308-09 (8th Cir.1908). Suits for prospective relief under Ex parte Young will, however, have only ancillary effects on tribal resources, and should not unduly jeopardize the tribal treasury. Cf. Edelman v. Jordan, 415 U.S. at 667-68, 94 S.Ct. at 1357-1358. (“[A]n ancillary effect on the state treasury is a permissible and often inevitable consequence of the principle announced in Ex parte Young.”)
Appellees argue that the doctrine of Ex parte Young should not be applied “wholesale” to Indian tribes and their officers. They point out that the governmental structure of Indian tribes is often quite different from the structure of state or federal governments, and that the source and scope of a tribal officer’s authority may often be impossible to ascertain with accuracy. Thus, they contend, federal courts should not presume to determine whether a tribal officer has acted beyond the scope of his tribal “statutory” authority. Brief of Appellees, 28-33. That issue, however, is not before us, as California alleges only that the Tribe’s officers, acting under the authority of the Tribal ordinance, are violating California’s rights under federal law.
In light of the foregoing analysis, I would conclude that tribal sovereign immunity does not bar a suit for prospective relief against tribal officers alleged to be acting in violation of federal law.
Ill
Further delay in reaching the merits of the state’s claim is not the only cost of *1225failing to decide this appeal, for even if the distinction between suit of an individual instead of a representative was meaningful in this context, the majority disregards the fact that we function in the federal courts under a system of so-called “notice pleading.” Federal Rule of Civil Procedure 8(a) provides that the complaint, to survive, must contain only “a short and plain statement of the grounds on which the court’s jurisdiction depends ... a short and plain statement of the claim showing that the pleader is entitled to relief and ... a demand for judgment for the relief to which he deems himself entitled... . ” Fed.R. Civ.P. 8(a). We no longer live under a system “better calculated to vindicate scientific rules of pleading than ... dispense justice.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1202 at 61 (1969). Yet this is the regime to which the majority’s approach hearkens a return. By insisting on niceties in the denomination of the parties when it is quite clear to all what California alleges and asks for in its complaint the majority places pleading technique above its responsibility to decide important questions of federal law. That is what the change from common-law pleading and the Codes was intended to avoid.
IV
California is entitled to a determination whether the doctrine of Ex parte Young applies to Indian tribes. While the state is not, at this stage of the proceedings, entitled to a ruling on the merits of its claim, it should be told, without several years further delay, whether it can bring its claim at all. I would thus hold the order appealable and would rule that the doctrine of Ex parte Young should be applied to suits against officials of Indian Tribes acting under color of law in the same manner it is applied to suits against state and federal officials.5
The majority undermines both the system of notice pleading in the federal courts *1226and the spirit of Ex parte Young. I believe it errs in so doing.
. The concept of suits against persons in their “individual” instead of “representative” capacity appears to be a source of much confusion in this case. The majority does not distinguish between the two, and the district court merely stated conclusorily that “[ljower court cases on point have drawn a distinction between suits against tribal members in their individual capacities, which may be maintained, and suits against them in their representative capacities, which may not be maintained.” [E.R. 2]
This confusion, I think, derives from the fact that there are two types of suits against individuals, one invoking the doctrine of Ex parte Young and the other having nothing to do with that case at all. These two types of suits were discussed by the Supreme Court in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). There the court noted that
“If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. [For example], [i]f the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in way which the sovereign has forbidden.”
Id. at 689, 69 S.Ct. at 1461.
While the Court in Larson seems to have believed that the two suits are founded “on a similar theory,” they clearly are not. The suit to enjoin the sale of the house has nothing whatsoever to do with the sovereign. It is simply a suit against an individual who happens to work for the sovereign. The suit has no more to do with the government than a suit against a business executive arising out of a vacation traffic accident has to do with the company which employs him.
The suit against a government official for exceeding his statutory powers, however, stands on quite a different footing, for such a suit directly invokes the doctrine of Ex parte Young. In that suit the claim is that while acting under color of law the official went beyond his statutorily delegated power. Such a suit invokes the doctrine of Ex parte Young in that it is designed to enjoin an officer who, because he is acting beyond the scope of his authority, is acting in violation of federal law.
The difference between the two cases is that in the case of the suit against the government official, the official, though acting ultra vires, is acting under color of law. This is a theme common to all cases brought under the theories of Ex parte Young. For analytical purposes, therefore, I prefer to think of Ex parte Young as consisting of two branches. The first consists of suits alleging that as a result of an act, a government officer is acting in violation of federal law. The second consists of suits alleging that the officer, though not acting ultra vires, is acting under a statute or ordinance which is either preempted by federal law or directly violates the Constitution. Each branch, then, involves an allegation that an officer of the government, acting under color of law, violated federal law.
Civil suits against individuals, on the other hand, I prefer to think of as those in tort or *1222contract, unrelated to the conduct of the individual as an officer of the state and regarding acts not taken under color of law. These suits, obviously, have nothing to do with the doctrine of Ex parte Young.
When analyzed in this fashion this case becomes clear. California does not complain of any individual act. No one has tried to sell the state a house he does not own. Instead, California complains under what I have called the second branch of Ex parte Young. It complains that tribal officers, acting under an ordinance of the Tribe, are violating federal law in refusing state officers access to the Fort Yuma Reservation to enforce state fish and game laws. Whether such a complaint can be brought without running afoul of the doctrine of sovereign immunity is the question I believe we should be addressing today. See infra, Part II.
. I do not argue, as the majority suggests, that the Supremacy Clause is necessarily violated when officers of an Indian tribe violate state law when the state has been authorized by federal law to apply its statute. All we are required to decide at this stage of the litigation is that California has made a colorable claim that such is the case in these circumstances. Once it has done so, I see no jurisprudential consideration that would require us to consider first whether acts under color of the tribal ordinance offend federal law, and thus the Supremacy Clause and then, only upon a finding of constitutional violation, to consider whether Ex parte Young applies to officers of Indian tribes.
. The Court in Martinez dismissed the claims against the Governor, holding that Congress had not intended to grant tribal members a federal cause of action under ICRA, except as provided in the statute. 436 U.S. at 72, 98 S.Ct. at 1681. Appellees read Martinez as holding that any suit that would bind a tribe through its tribal officers must fail for lack of a federal cause of action. I would disagree. Whether a suit may be maintained in the face of sovereign immunity and whether a particular federal statute gives rise to a cause of action are separate questions.
. I do not reach the question whether tribal members may bring federal court actions for prospective relief against tribal officers. Cf. Martinez, 436 U.S. at 65-72, 98 S.Ct. at 1680-1681 (discussing limited role of federal courts as forum for resolving disputes between tribes and their members).
. The majority suggests that its decision upholds the integrity of the final judgment rule and, by so doing, ensures better decisions in this court by insisting on the full development of legal issues before the district court prior to our review. I fear the majority ensures only integrity of form and does so at the expense of timely justice.
The majority has seriously confused the final judgment rule with the rule governing appellate review of legal issues not raised before the trial court. As I have pointed out, because it would have been wholly futile for the state to amend its complaint as the majority suggests, the requirements of the final judgment rule have been fully complied with. That rule is thus irrelevant in this case.
If, however, the question the majority is really raising is whether it is appropriate for us to reach the Ex parte Young issue when it was not argued as fully as the majority would have liked before the district court, I believe it errs in its conclusion on that point as well. It is clear to me that the state has raised allegations sufficient to invoke the doctrine of Ex parte Young. That it did not argue the doctrine below as well as the majority would have liked in no sense precludes our consideration of whether Ex parte Young applies in this case. Our job is not to remand with instructions to improve the quality of advocacy. The majority cites Judge Wallace’s concurring opinion in Quechan Tribe v. Rowe, 531 F.2d 408, 412 (Wallace, J., concurring) for the proposition that the full development of legal issues before the district court would “provide us with a better foundation upon which to make our decision.” The majority fails, however, to note that Judge Wallace was reluctant to decide the issue not raised at all before the district court in that case only because there exist[ed] an alternative ground ... to sustain the judgment of the district court [therefore] there [would] be no miscarriage of justice” by refusing to decide the particular issue. Here, however, such is not the case. As the Supreme Court noted in Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).
Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which all courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
This case has been going on now, without so much as a hint of adjudication on the merits, for over seven years. The majority dismisses the appeal in the hope of achieving compliance with technical niceties and improvement of the advocacy below. If such a delay to achieve such goals is not a “sacrifice of the rules of fundamental justice,” 312 U.S. at 557, 61 S.Ct. at 721, I do not know what is.