dissenting.
I respectfully dissent. Because I believe the State waived its sovereign immunity and consented to suit, I would reverse in part and affirm in part5 the order of the district court and remand the case for a new trial.
The Seminole Tribe decision did not abolish the well-established exception to the Eleventh Amendment which allows federal courts to entertain suit against a state where the state has waived its sovereign immunity and consented to suit in federal court. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. at 238, 105 S.Ct. at 3145, citing Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). A state may waive its immunity from suit in federal court by express or implied language, or a state’s waiver of its sovereign immunity may be inferred through its conduct. Hankins v. Finnel, 964 F.2d at 856. However, “if [a waiver is] implied, it must appear ‘by such overwhelming *433implication from the text as [will] leave no room for any other reasonable construction.’ ” Id., quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. at 305, 110 S.Ct. at 1873 (internal quotation omitted).
I. Waiver by Neb.Rev.Stat. § 9-1,106
I would hold that the State waived its immunity and consented to this type of suit by the legislature’s enactment of Neb.Rev. Stat. § 9-1,106. Section 9-1,106(1),(3) incorporates into state law the provisions of the IGRA requiring states to negotiate in good faith tribal-state compacts for class III gaming and granting federal courts jurisdiction over claims against states by an Indian tribe. Because § 9-1,106 expressly incorporates the provisions of 25 U.S.C. § 2710, the State’s duty under the IGRA to negotiate tribal-state compacts, which Nebraska law delegates to the Governor or his or her designated representative under § 9-1,106, cannot be separated from the remedial provisions estabhshing the federal district court’s jurisdiction over actions involving that duty. See Seminole Tribe, — U.S. at -, 116 S.Ct. at 1132 (the State’s duty to negotiate imposed by § 2710(d)(3) does not stand alone; “Congress passed § 2710(d)(3) in conjunction with the carefully crafted and intricate remedial scheme set forth in § 2710(d)(7)”). In fact, the legislative history of § 9-1,106, which is cited in the majority’s opinion,6 contains a statement by the legal counsel for the Committee on General Affairs explaining that under the IGRA, “if a compact has not been negotiated during that time period [provided by the IGRA] then the tribe is allowed to bring a lawsuit against the state.” See Hearing on L.B. 231, Before Committee on General Affairs of the Nebraska Unicameral, 93rd Leg., 1st Sess. 82-85 (Feb. 22, 1993) (remarks of Kenneth C. Winston, Committee Counsel), reprinted in Appellee’s Addendum at 6-7. Despite this explanation, the Nebraska Legislature enacted § 9-06 and incorporated the IGRA’s provisions allowing a tribe to bring suit against the State in federal district court. While § 9-1,106 does not contain an express waiver of the State’s sovereign immunity, compare Idaho Code § 67-429A (and S.L.1993, ch. 367) (expressly consenting to certain litigation involving class III gaming issues and waiving any Eleventh Amendment immunity question), it also does not contain language disavowing waiver of sovereign immunity in its refererice to the IGRA and the methods by which a tribe is allowed to bring suit against the State, see Hankins, 964 F.2d at 857 (although Missouri legislature expressed its intent not to waive sovereign immunity by its enactment of certain statutes, such disavowal of waiver was inapplicable where statute involved in action failed to express such intent). The State recognized the IGRA’s contemplation of suit by a tribe against a state and expressly incorporated those provisions into § 9-1,106. I would hold that an implied waiver of the State’s Eleventh Amendment immunity from suit “appear[s] by such overwhelming implication from the text [of § 9-1,106] as [to] leave no room for any other reasonable construction.” See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. at 305, 110 S.Ct. at 1873. The Supreme Court holding in Seminole Tribe does not change this result.
II. Waiver by Conduct
Alternatively, I would hold that the State waived its immunity by making a general appearance before the district court and filing counterclaims against the Tribe. See Hankins, 964 F.2d at 856. In Hankins, this court found that the State of Missouri had waived its immunity to suit by filing an action to attach the proceeds of a judgment obtained by an inmate against the State pursuant to 42 U.S.C. § 1983 because “the State acted to the advantage of and for the benefit of itself.” Id. at 858. In the present case, like in Hankins, the State acted to the advantage of and for the benefit of itself by filing a counterclaim against the Tribe and seeking declaratory and injunctive relief. Furthermore, the State’s argument that Nebraska’s attorney general lacked the authority to waive the State’s Eleventh Amendment immunity by his actions “overlooks the fact that the [attorney [gjeneral acted under the authority of [9-1,106].” See id. at 858-59 (Missouri’s attorney general acted under au*434thority of state statute which did not include language disavowing waiver of sovereign immunity). I would therefore hold that such action constitutes a waiver of the State’s Eleventh Amendment immunity.
Because I believe the State effectuated a waiver and consented to suit, I would reverse in part and affirm in part the order of the district court and remand the case for a new trial on the issue of the State’s liability under the IGRA.
. I concur in the majority’s opinion regarding Governor Nelson's immunity from suit. See supra at 432.
. See supra at 431.