State of Alabama v. PCI Gaming Authority et al
MEMORANDUM OPINION AND ORDER granting 13 MOTION to Dismiss, as further set out in order. Signed by Chief Judge William Keith Watkins on 4/10/2014. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
STATE OF ALABAMA,
PCI GAMING AUTHORITY,
BUFORD ROLIN, STEPHANIE
BRYAN, ROBERT McGHEE,
DAVID GEHMAN, ARTHUR
HOLLINGER, GARVIS SELLS,
EDDIE TULLIS, KEITH
MARTIN, BRIDGET WASDIN,
MATTHEW MARTIN, BILLY
SMITH, and TIM MANNING, in
their official capacities,
CASE NO. 2:13-CV-178-WKW
MEMORANDUM OPINION AND ORDER
The State of Alabama brings this equity action under state-nuisance law and
the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721, 18 U.S.C. §§ 1166–
1168, to prevent allegedly unlawful gaming at three Indian-run casinos in
Alabama: Creek Casino in Elmore County; Wind Creek Casino in Escambia
County; and Creek Casino in Montgomery County. Defendants are PCI Gaming
Authority, the commercial entity through which the Poarch Band of Creek Indians
(“Poarch Band”) operates the casinos, and members of PCI Gaming Authority and
of the Poarch Band Tribal Council in their official capacities.
Before the court is Defendants’ motion to dismiss for lack of subject-matter
jurisdiction and failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(1), (b)(6). The parties have briefed the motion fully and received
assistance through briefs filed as amici curiae by the United States on behalf of
Defendants and the State of Michigan on behalf of the State of Alabama. At the
heart of the motion to dismiss is the issue whether the State of Alabama has
authority to bring this action for injunctive and declaratory relief to halt allegedly
illegal gaming at the Poarch Band’s Alabama casinos.
The answer requires
navigating a complicated jurisdictional and federal statutory maze down pathways
implicating tribal sovereign immunity, the Ex parte Young doctrine, complete
preemption, and congressional intent. Ultimately, each pathway leads to a dead
end for the State of Alabama.
Accordingly, after careful consideration of the arguments of counsel, the
pertinent law, and the pleadings, as supplemented by the undisputed evidence, the
court finds that Defendants’ motion to dismiss is due to be granted.
II. JURISDICTION AND VENUE
This opinion addresses disputed issues pertaining to subject-matter
jurisdiction. Personal jurisdiction and venue are uncontested.
III. STANDARDS OF REVIEW
A motion to dismiss based on lack of subject-matter jurisdiction, see Fed. R.
Civ. P. 12(b)(1), and a motion to dismiss for failure to state a claim, see Fed. R.
Civ. P. 12(b)(6), implicate different, but slightly overlapping, standards of review.
Those standards are articulated here, and how these standards apply in this case is
set out in Part V.
A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction
asserts either a facial or factual challenge to the complaint. McElmurray v. Consol.
Gov’t of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citing
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981));1 accord Lawrence v.
Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). A factual attack challenges
“the existence of subject matter jurisdiction in fact, irrespective of the pleadings,
and matters outside the pleadings, such as testimony and affidavits, are
considered.” Lawrence, 919 F.2d at 1529 (citation and internal quotation marks
omitted). A facial attack, on the other hand, challenges the complaint on its face
and asks whether the complaint “sufficiently allege[s] a basis of subject matter
In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc). Williamson was decided on May 20, 1981, and, thus, is binding
jurisdiction,” employing a standard similar to that governing Rule 12(b)(6) review.
McElmurray, 501 F.3d at 1251 (quoting Lawrence, 919 F.2d at 1529). Under these
review mechanisms, a “‘court has the power to dismiss for lack of subject matter
jurisdiction on any of three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts.’” Id. (quoting Williamson, 645 F.2d at 413).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court takes the complaint’s allegations as true and
“construe[s] them in the light most favorable to” the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial
plausibility” exists “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Id. In addition to considering the properly pleaded allegations
of the complaint, on a motion to dismiss the court can consider “an extrinsic
document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not
challenged.” Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease
Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citation and internal
quotation marks omitted).
Since the rise of Indian gaming in the 1970s,2 there has been an ongoing
struggle between the federal government, the states, and Indian tribes over which
entity regulates Indian-run gaming and which entity’s laws control. That struggle
emerges in this case. To place the facts, claims, and arguments in proper context,
some background is necessary on the 1988 Indian Gaming Regulatory Act, 25
U.S.C. §§ 2701–2721, 18 U.S.C. §§ 1166–1168 (“IGRA”).
Congress “develop[ed] a comprehensive approach to the controversial subject of
regulating tribal gaming [and] struck a careful balance among federal, state, and
tribal interests.” Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1247 (11th Cir.
The leading treatise on federal Indian law explains that “Indian gaming began to
develop as a source for commercial revenue for tribes in the 1970s, primarily as high stakes
bingo operations. By 1988, bingo and poker parlors predominated and generated yearly
revenues of around $212 million. Today, gaming in Indian country is a multi-billion dollar
industry conducted pursuant to [IGRA].” F. Cohen, Handbook of Federal Indian Law § 12.01
(2012 ed.) (hereinafter “Cohen”); see also Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 132 S. Ct. 2199, 2211 (2012) (describing Cohen’s handbook as “the leading
treatise on federal Indian law”).
1999). Part IV begins with a discussion of IGRA, followed by a synopsis of the
facts and procedural history of this case.
IGRA “provide[s] a statutory basis for the operation and regulation of
gaming by Indian tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48
IGRA was Congress’s response to the Supreme Court’s holding in
California v. Cabazon, 480 U.S. 202 (1987). See S. Rep. No. 100–446 (1988),
reprinted in 1988 U.S.C.C.A.N. 3071.
Cabazon held that, in the absence of
congressional regulation of tribal gaming, Indian tribes could conduct gaming on
Indian lands without state interference if the state permitted gaming in any form.
Cabazon’s holding essentially “left Indian gaming largely unregulated by the
states.” Seminole Tribe of Fla. v. Florida, 11 F.3d 1016, 1019 (11th Cir. 1994),
aff’d, 517 U.S. 44 (1996).
In 1988, Congress filled the federal regulatory void with IGRA. IGRA
legalizes specified gaming activities on Indian lands but does not give Indian tribes
unfettered control over these activities. IGRA creates three classifications for
gaming to which differing jurisdictional and regulatory rules apply.
Class I gaming is subject to the exclusive jurisdiction of the tribes and, thus,
is beyond the regulatory reach of both federal and state authorities. See
§ 2710(a)(1).3 Class I gaming 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.” § 2703(6). This case is
not about class I gaming.
Class II gaming, which includes “the game of chance commonly known as
bingo,” is subject to regulation by the tribes and the National Indian Gaming
Commission (“NIGC”).4 § 2703(7)(A)(i). States can control class II gaming on
Indian lands within their borders only by imposing a statewide ban of all activities
that fall within class II gaming. In other words, class II gaming by Indians is
allowed in a state that “permits such gaming for any purpose by any person,
organization or entity (and such gaming is not otherwise specifically prohibited on
Indian lands by Federal law).” § 2710(b)(1)(A). To participate in class II gaming,
a tribe also must ratify an ordinance or resolution concerning the conduct of class
II gaming, which the NIGC’s Chairman then must approve. § 2710(b)(1)(B). The
merits of this case are about whether Defendants are offering permissible class II
or impermissible class III gaming at the Poarch Band casinos.
Unless otherwise indicated, all section references are to Chapter 25 of the United States
IGRA created the NIGC, which is a three-member independent agency within the
United States Department of Interior. § 2704. The NIGC’s statutorily stated purpose is to
monitor and regulate class II gaming conducted on Indian lands. See § 2706(b).
Class III gaming covers “all forms of gaming that are not class I or class II
IGRA permits class III gaming, which includes slot
machines and casino games, on “Indian lands” as that phrase is defined in IGRA,
but only if the gaming is “located in a State that permits such gaming for any
purpose by any person, organization, or entity,” § 2710(d)(1)(B), and is conducted
“in conformance with a Tribal-State compact entered into by the Indian tribe and
the State,” § 2710(d)(1)(C).5 IGRA defines “Indian lands” to mean:
(A) all lands within the limits of any Indian reservation; and
(B) any lands title to which is either held in trust by the United States
for the benefit of any Indian tribe or individual or held by any Indian
tribe or individual subject to restriction by the United States against
alienation and over which an Indian tribe exercises governmental
§ 2703(4). The State of Alabama prohibits class III gaming, and, therefore, under
IGRA, the State is not required to negotiate a tribal-state compact that would
permit the Poarch Band to engage in class III gaming on Indian lands. But in this
lawsuit, the State of Alabama alleges that the Poarch Band casinos offer illegal
class III gaming to the public under the guise of class II gaming.
In a state that permits class III gaming, IGRA provides a detailed process for the
negotiation of tribal-state gaming compacts. See generally § 2710(d)(7)(B); see also Seminole
Tribe, 517 U.S. at 49 (describing § 2710(d)(7)(B)(ii)–(vii) as “an elaborate remedial scheme
designed to ensure the formation of a Tribal-State compact”). As part of a tribal-state compact,
the tribe and the state can agree to provisions regarding the application of criminal and civil
laws, allocation of criminal and civil jurisdiction between the tribe and state, taxation by the
tribe, remedies for breach of contract, standards for the operation and maintenance of gaming
facilities, and any other subjects that relate directly to the operation of gaming. § 2710(d)(3)(C).
IGRA also includes penal provisions. See 18 U.S.C. §§ 1166–1168. Section
11666 provides that “for purposes of Federal law, all State laws pertaining to the
licensing, regulation, or prohibition of gambling, including but limited to criminal
sanctions applicable thereto,” apply in “Indian country.”7 § 1166(a). For purposes
of this provision, the term “gambling” does not include class I or class II gaming
regulated by IGRA, or class III gaming conducted under a tribal-state compact
approved by the U.S. Secretary of the Interior. § 1166(c). Section 1166 applies,
therefore, only to class III gaming conducted without the required compact. The
United States has exclusive jurisdiction over criminal prosecutions under this
provision. § 1166(d).
Gamblers can play slot machines (and, thus, allegedly engage in class III
gaming) within Alabama’s borders at Wind Creek Casino in Escambia County,
Creek Casino in Elmore County, and Creek Casino in Montgomery County. These
three casinos are the public offerings of the Poarch Band, a federally recognized
All references to § 1166 are to Title 18.
“‘Indian country,’ as used in this chapter means (a) all land within the limits of any
Indian reservation under the jurisdiction of the United States Government . . . .” 18 U.S.C.
§ 1151. The United States represents that the “definition of ‘Indian county’ is broader than
IGRA’s definition of ‘Indian lands,’” and that, therefore, “all lands that are ‘Indian lands’ meet
the definition of ‘Indian country.’” (Doc. # 21, at 3 n.4.) Absent any contrary contention, it is
presumed for purposes of this opinion that, if the casinos are on Indian lands, they also are in
Indian Tribe in the State of Alabama.8 The three casinos are located on lands that,
pursuant to 25 U.S.C. § 465, the United States holds in trust for the benefit of the
Poarch Band as reflected by deeds executed on November 21, 1984 (Elmore
County land), August 17, 1992 (Escambia County land), and March 23, 1995
(Montgomery County land). (See Not. of Removal, Exs. A & B); see also 25
C.F.R. §§ 151.1–151.15 (delineating regulations “governing the acquisition of land
by the United States in trust status for . . . tribes”). The gaming activities that take
place at these casinos are conducted pursuant to a tribal ordinance that has been
approved by the Chairman of the NIGC. (See NIGC Approval Letter to Poarch
Band (July 30, 2010) (Ex. to Doc. # 21).)
The Poarch Band is not a defendant in this action; however, its wholly
owned commercial enterprise, PCI Gaming Authority, is. PCI Gaming Authority,
alongside the thirteen individual Defendants (who are its members and/or members
of the Poarch Band Tribal Council), conducts the gaming activities at these three
casinos.9 The problem with the casinos, as alleged in the operative Complaint, is
that Alabama law prohibits most forms of gambling, see Ala. Const. Art. IV, § 65,
and slot machines in particular, see Ala. Code § 13A-12-27, and that class III
The Poarch Band received federal recognition in 1984. See 49 Fed. Reg. 24083-01
(June 11, 1984); see also 44 U.S.C. § 1507 (“The contents of the Federal Register shall be
judicially noticed and without prejudice to any other mode of citation, may be cited volume and
The individual Defendants are Poarch Band officials and are sued exclusively in their
gaming is not allowed in Alabama on Indian lands or elsewhere. (Am. Compl.
¶¶ 10, 13–18, 24.)
The State of Alabama alleges that, notwithstanding these
prohibitions, large-scale illegal class III gaming is occurring at the Indian-run
casinos where Defendants are “operat[ing] hundreds of slot machines and other
gambling devices in open, continuous, and notorious use.” (Am. Compl. ¶ 9.) The
State of Alabama wants to put a stop to the allegedly illegal gaming at these three
The legality of the gaming at the Poarch Band casinos (and other non-Indian
venues) is a hotly contested public issue in Alabama and elsewhere. (See, e.g.,
Defs.’ Mot. to Dismiss 14 n.11 (“The State’s case is entirely dependent upon its
erroneous allegation that [Poarch Band] is engaged in unlawful class III
gaming.”).) However, the issue of the legality of the gaming is for another day.
The issue presently is whether, assuming the gaming’s illegality, the State of
Alabama has authority to bring this action for injunctive and declaratory relief
under state and federal law. The State of Alabama says that it does have such
authority, and, thus, it brings a two-count Amended Complaint.
Count One of the Amended Complaint embodies a state-law claim for public
nuisance under two alternative theories. First, it avers that the three Poarch Band
casinos in which Defendants allegedly are conducting illegal gaming “are not
located on properly recognized ‘Indian Lands,’” and that, therefore, IGRA does not
apply and the State has authority to regulate the casinos’ gaming activities under
state law. (Am. Compl. ¶¶ 25, 30.) The thrust of the State’s contention that the
casinos are not on “Indian lands” is that the Poarch Band was “not under federal
jurisdiction and recognized prior to 1934.” (Am. Compl. ¶ 25 (relying on Carcieri
v. Salazar, 555 U.S. 379 (2009).) Second, Count One alleges that, if the casinos
are on “Indian lands,” IGRA (specifically 18 U.S.C. § 1166) incorporates all state
laws (both civil and criminal) pertaining to the prohibition of gambling “for
purposes of federal law” and gives the State of Alabama authority to enforce the
state’s public nuisance law as a matter of state law. Hence, the State of Alabama
alleges that whether the casinos are on Indian lands or not, “[t]he continued
operation of slot machines and unlawful gambling devices by Defendants is a
public nuisance” under Alabama law and that these activities are “enjoinable in
suit by the State by virtue of this Court’s equity jurisdiction to abate a public
nuisance.” (Am. Compl. ¶ 29.)
Count Two alleges a federal-law claim for public nuisance under IGRA and
assumes, for its purposes, that the three casinos are located on “Indian lands.”
(Am. Compl. ¶ 37.) More specifically, Count Two alleges that Defendants “have
no authority to conduct class III gambling under IGRA and that the class III
gambling activities are enjoinable under federal law pursuant to 18 U.S.C.
§ 1166(a) & (c).” (Am. Compl. ¶ 36.) It further alleges that the State of Alabama
“is a proper party to file an action to enjoin the public nuisance of unlawful
gambling on Indian lands.” (Am. Compl. ¶ 37.)
The Amended Complaint requests two forms of equitable relief. First, it
asks for a declaratory judgment that “the gambling activities being conducted by or
through the Defendants [are] a public nuisance.” (Am. Compl., at 9.) Second, it
seeks an injunction “permanently enjoining such unlawful gambling activities.”
(Am. Compl., at 9.)
The Removal of this Action from State Court
This action commenced in the Circuit Court of Elmore County, Alabama,
with the State of Alabama’s filing of a one-count complaint for injunctive and
declaratory relief on grounds that Defendants’ operation of allegedly illegal slot
machines at the three Poarch Band casinos constitutes a public nuisance under
Alabama law. Defendants removed this action pursuant to 28 U.S.C. §§ 1331,
1441, and 1442 on three theories: (1) that IGRA completely preempts the statelaw claim in Count One; (2) that the state-law claim raises substantial, actually
disputed, federal issues with respect to the status of Indian lands held in trust by
the United States and the legality of federally regulated gaming conducted on these
lands; and (3) that Defendants’ interests in the Indian lands derive from the
Secretary of the Interior and call into question the validity of federal laws
pertaining to Indian lands and the lawfulness and regulation of gaming activity on
The State of Alabama did not challenge the removal, but filed the Amended
Complaint to plead alternative state-law theories in Count One – one theory
alleging that the casinos are not on “Indian lands” within the meaning of IGRA and
the alternative theory alleging that they are. The State also added the federal-law
public nuisance claim under IGRA in Count Two. Defendants’ motion to dismiss
and briefing followed, and the court permitted the United States and the State of
Michigan to file briefs as amici curiae.
Defendants move to dismiss the Amended Complaint under Rule 12(b)(1)
and Rule 12(b)(6), and their arguments for dismissal fall into four categories.
First, they argue that IGRA completely preempts the state-law public nuisance
claim in Count One with respect to the governance of gaming on Indian lands and
that, therefore, subject-matter jurisdiction is lacking as to this claim. Second,
Defendants contend that as to the state-law claim in Count One pertaining to the
governance of gaming on Indian lands and as to the IGRA claim in Count Two,
tribal sovereign immunity deprives the court of subject-matter jurisdiction over
PCI Gaming Authority and the individual Defendants in their official capacities.
Third, Defendants contend that Count One contains an impermissible collateral
challenge to the validity of the deeds evidencing that the United States holds title
to the lands at issue in trust for the benefit of the Poarch Band. Defendants assert,
therefore, that the state-law theory in Count One seeking to enjoin allegedly illegal
gaming occurring off Indian lands fails to state a claim upon which relief can be
granted. Fourth, Defendants argue that Count Two fails to state a claim upon
which relief can be granted because 18 U.S.C. § 1166 does not provide the State of
Alabama a right to obtain an injunction against an allegedly public nuisance of
unlawful gaming on Indian lands. The State vigorously opposes each argument.
The discussion proceeds in four parts. Parts V.A and V.B address the Rule
12(b)(1) issues affecting subject-matter jurisdiction: complete preemption and
tribal sovereign immunity. Parts V.C and V.D examine the Rule 12(b)(6) issues as
to Count One’s theory pertaining to the governance of gaming allegedly occurring
off Indian lands and as to whether Count Two states a claim for relief.
Whether IGRA Completely Preempts the State-Law Nuisance Claim in
Count One Concerning the Governance of Gaming on Indian Lands
Defendants argue that IGRA completely preempts state-law causes of action
with respect to the governance of gaming on Indian lands.
Defendants argue that the claim in Count One that alleges a state-law nuisance
theory based on allegedly illegal gaming occurring on Indian lands is subject to
IGRA’s complete preemptive force.10 The court agrees.
“Complete preemption is a narrow exception to the well-pleaded complaint
rule and exists where the preemptive force of a federal statute is so extraordinary
that it converts an ordinary state law claim into a statutory federal claim.” Conn.
State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir.
2009). In Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Florida, 63
F.3d 1030 (11th Cir. 1995) (“Tamiami I”), cited by Defendants, the Eleventh
Circuit described IGRA as a “comprehensive statute governing the operation of
gaming facilities on Indian lands.” Id. at 1032; see also 25 U.S.C. § 2702(3)
(providing that one of the purposes of IGRA is “the establishment of Federal
standards for gaming on Indian lands”).
Tamiami I recited approvingly that
“IGRA ‘is intended to expressly preempt the field in the governance of gaming
activities on Indian lands.’ The occupation of this field by federal law is evidenced
by the broad reach of the statute’s regulatory and enforcement provisions and is
underscored by the comprehensive regulations promulgated under the statute.”
Tamiami I, 63 F.3d at 1032 (quoting S. Rep. No. 100–446 (1988), reprinted in
1988 U.S.C.C.A.N. 3071, 3076).
The alternative theory in Count One that the casinos in which Defendants allegedly are
operating illegal gaming off Indian lands is discussed infra in Part V.C.
Although the Eleventh Circuit in Tamiami I did not expressly hold that
IGRA is a complete-preemption statute, the Eighth Circuit has so held. In Gaming
Corporation of America v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996), the
Eighth Circuit addressed as a matter of first impression whether “IGRA completely
preempts state laws regulating gaming on Indian lands.” Id. at 543. After a
comprehensive analysis of IGRA’s text and structure, its legislative history, and its
jurisdictional framework, see id. at 544–47, the Eighth Circuit concluded that
“IGRA has the requisite extraordinary preemptive force necessary to satisfy the
complete preemption exception to the well-pleaded complaint rule.” Id. at 547. It
reasoned also that its holding was buttressed by the long history of Supreme Court
decisions that “illustrate[ ] the importance of the federal and tribal interests in
Indian cases and the authority of Congress to protect those interests.” Id. As to
what types of claims fall within IGRA’s complete preemptive scope, the Eighth
Circuit concluded that “[t]he key question is whether a particular claim will
interfere with tribal governance of gaming.” Id. at 549.
It opined that “[t]hose
causes of action which would interfere with the [tribe’s] ability to govern gaming
should fall within the scope of IGRA’s preemption of state law.” Id. at 550. Based
upon the Eleventh Circuit’s recognition of IGRA’s strong preemptive force and the
Eighth Circuit’s reasoning, which is persuasive, the Eighth Circuit’s holding will
be applied here.
Accordingly, IGRA completely preempts the state-law claim in Count One if
that claim interferes with the Poarch Band’s governance of gaming on Indian
lands. The court has little difficulty concluding that it does. Count One includes a
state-law nuisance claim that seeks to enjoin allegedly illegal gaming occurring on
Indian lands. (See, e.g., Am. Compl. ¶ 30 (“Defendants’ operation of lotteries and
their use of slot machines and unlawful gambling devices are enjoinable in suit by
the State by virtue of this Court’s equity jurisdiction to abate a public nuisance.”);
see also ¶ 9 (“Defendants operate, administer, and control three casinos on
purported Indian lands in Alabama . . . .”); ¶ 11 (alleging that Defendants have “an
obligation comply with Alabama’s gambling laws” in “Indian country”).) The
state-law claim comfortably falls within the preemptive reach of IGRA.
The State of Alabama does not mention the Eleventh Circuit’s statements in
Tamiami I suggesting that IGRA is a complete-preemption statute or the Eighth
Circuit’s holding in Gaming Corporation. The State of Alabama refers, however,
on two occasions to IGRA preemption as merely an “affirmative defense.” (Doc.
# 17, at 9, 36.) But it cites no authority for its contention and devotes no analysis
to the issue of complete preemption. For the reasons explained, IGRA carries with
it the requisite complete preemptive force, and, thus, the State’s categorization is
The State of Alabama also does not deny that the state-law claim in Count
One seeks to regulate allegedly illegal gaming on Indian lands. Rather, the State
argues that IGRA does not preempt the state-law nuisance claim in Count One
because 18 U.S.C. § 1166 “expressly provides that tribes must comply with state
law with respect to all gambling that is not class I or class II.” (Doc. # 17, at 34.)
This argument seemingly relinquishes reliance on a purely state-law nuisance
claim in favor of a nuisance claim under 18 U.S.C. § 1166, but without explanation
of how the argument presents a theory different from that alleged in Count Two.
In other words, the State’s argument rests on the premise that § 1166 permits it to
bring a civil action to enjoin illegal gaming on Indian lands as a state-law public
Because complete preemption presents a jurisdictional issue, Rule 12(b)(1)’s standard
governs. See Ammedie v. Sallie Mae, Inc., 485 F. App’x 399, 401 (11th Cir. 2012) (“Complete
preemption, a jurisdictional doctrine, is distinct from ‘defensive,’ or ‘ordinary,’ preemption,
which ‘allows a defendant to defeat a plaintiff’s state-law claim on the merits by asserting the
supremacy of federal law as an affirmative defense.’” (quoting Cmty. State Bank v. Strong, 651
F.3d 1241, 1261 n.16 (11th Cir. 2011)); see also Gaming Corp., 88 F.3d at 543 (“Complete
preemption . . . has jurisdictional consequences that distinguish it from preemption asserted only
as a defense. The defense of preemption can prevent a claim from proceeding, but in contrast to
complete preemption it does not convert a state claim into a federal claim.”).
It is notable also that the State did not contest the jurisdictional basis for the removal,
which was predicated in part on IGRA’s complete preemptive force, and the findings here
demonstrate that the removal of the original one-count, state-law complaint was proper on the
basis of complete preemption. See Behlen v. Merrill Lynch, 311 F.3d 1087, 1090 (11th Cir.
2002) (“Once an area of state law has been completely pre-empted, any claim purportedly based
on that pre-empted state law is considered, from its inception, a federal claim, and therefore
arises under federal law.”).
nuisance. That premise undergirds Count Two and is addressed infra in Part V.D.
There is no need then to read into Count One a claim that is redundant of Count
In sum, IGRA completely preempts the state-law nuisance theory in Count
One that seeks to enjoin Defendants’ allegedly illegal gaming on Indian lands.
Accordingly, this claim is due to be dismissed for lack of subject-matter
jurisdiction on the basis of complete preemption.
Whether Tribal Sovereign Immunity Bars the Claims Against
Gaming Authority and the Tribal Officials
Defendants raise a facial challenge to the Amended Complaint’s assertion of
subject-matter jurisdiction on the basis of tribal sovereign immunity pursuant to
Rule 12(b)(1). Accordingly, the allegations of the Amended Complaint are taken
as true. See McElmurray, 501 F.3d at 1251. Because the parties’ immunity
arguments differ with respect to PCI Gaming Authority and the tribal officials, the
arguments are addressed separately.
PCI Gaming Authority
An Indian tribe, such as the Poarch Band, “is subject to suit only where
Congress has authorized the suit” and, thus, has abrogated the tribe’s sovereign
immunity, or where “the tribe has waived its immunity.” Kiowa Tribe v. Mfg.
Techs., Inc., 523 U.S. 751, 754 (1988). The State of Alabama does not contend
that the Poarch Band has waived its immunity or that Congress has abrogated it
with respect to this state-initiated civil suit. The State hence does not sue the
Poarch Band. It sues PCI Gaming Authority, but at the same time concedes that
under two Eleventh Circuit decisions, PCI Gaming Authority shares the Poarch
Band’s immunity. First, in Freemanville Water System, Inc. v. Poarch Band of
Creek Indians, 563 F.3d 1205 (11th Cir. 2009), the Eleventh Circuit concluded that
tribal sovereign immunity barred the plaintiff’s action against the Poarch Band and
PCI Gaming Authority, which is “wholly owned by the Poarch Band and [is]
chartered under its tribal laws.” Id. at 1207 n.1, 1210. Second, in Contour Spa at
the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012),
the Eleventh Circuit held as a matter of first impression that “the Tribe’s removal
of the case to federal court did not, standing alone, waive the Tribe’s sovereign
immunity from suit.” See id. at 1208. As applied to this case, Freemanville
establishes that PCI Gaming Authority is immune from suit on the basis of tribal
sovereign immunity, and Contour Spa confirms that PCI Gaming Authority did not
waive its tribal sovereign immunity by removing this case from state court to
Based upon Freemanville and Contour Spa, the State agrees that “this Court
must dismiss the corporation, PCI Gaming Authority, from this lawsuit” on the
basis of tribal sovereign immunity. (Doc. # 17, at 17.) The State maintains,
however, that Freemanville and Contour Spa were “wrongly decided” and names
PCI Gaming Authority only to preserve the issue of tribal sovereign immunity for
purposes of appeal.
Bound to follow Freemanville and Contour Spa, the court finds that PCI
Gaming Authority enjoys tribal sovereign immunity in this removed action.
Accordingly, PCI Gaming Authority is due to be dismissed on the basis of tribal
sovereign immunity for lack of subject-matter jurisdiction.
The thirteen individual Defendants – the tribal officials named in their
official capacities – also move for dismissal of Count One and Count Two on the
basis of tribal sovereign immunity.12 As to Count One, the tribal officials raise
tribal sovereign immunity as to the state-law theory that seeks to enjoin the
operation of allegedly illegal gaming occurring on Indian lands (see Doc. # 14, at 1
(arguing that the State of Alabama’s attempt “to use state laws to enjoin federally
regulated approved gaming activities on federally held Indian lands” is barred by
tribal sovereign immunity).) The State contends that the tribal officials are not
protected by tribal sovereign immunity in their official capacities for declaratory
These Defendants are referred to as either the “individual Defendants” or the “tribal
officials.” The Amended Complaint alleges and the individual Defendants do not dispute that
they took the actions about which the State of Alabama complains in their capacities as Poarch
Band officials. The individual Defendants’ status as Poarch Band officials is assumed for
purposes of this opinion.
and injunctive relief for ongoing violations of federal law, based upon the Ex parte
Young doctrine, see 209 U.S. 123 (1908), and for violations of state law, based
upon grounds that the removal of this action results in a waiver of tribal sovereign
immunity. The State is correct as to Count Two, but not as to Count One.13 The
analysis begins with Count Two.
Federal-Law Claim (Count Two)
Since the 1908 decision in Ex parte Young, courts have recognized an
exception to Eleventh Amendment immunity for lawsuits against state officials for
prospective declaratory or injunctive relief to enjoin ongoing violations of federal
law. See Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210,
1215 (11th Cir. 2009); see also, 209 U.S. at 155–56 (holding that Eleventh
Amendment immunity was not a bar to a suit against the state’s Attorney General
to enjoin him from enforcing a state law that allegedly violated the United States
In 1978, the Supreme Court suggested that the Ex parte Young doctrine
extends to the tribal context, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59
(1978), a suggestion that in 1995, the Eleventh Circuit took as law. In Tamiami I,
the Eleventh Circuit addressed a federal-law claim seeking an injunction against
tribal officials in their official capacities for allegedly abusing the licensing
As discussed earlier, IGRA completely preempts this state-law claim. The analysis in
this part provides an alternative basis for Rule 12(b)(1) dismissal.
authority conferred upon them by IGRA. See 63 F.3d at 1050. As to that count,
the Eleventh Circuit affirmed the judgment of the district court that the tribal
authorities in their official capacities were subject to suit under Ex parte Young
where the complaint alleged that they had “acted beyond the authority that the
Tribe is capable of bestowing upon them under federal laws.” Id. at 1045, 1050–
51 (citation and internal quotation marks omitted); see also Tamiami Partners, Ltd.
v. Miccosukee Tribe of Indians, 177 F.3d 1212, 1225 (11th Cir. 1999) (“Tamiami
II”) (citing Tamiami I for the proposition that in official-capacity actions for
violations of federal law, “tribal officers are protected by tribal sovereign
immunity when they act in their official capacity and within the scope of their
authority,” but “are subject to suit under the doctrine of Ex parte Young when they
act beyond their authority”).
Other circuits, including the District of Columbia, Eighth, Ninth, and Tenth
Circuits, similarly have extended the Ex parte Young doctrine to tribal sovereign
immunity. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir.
2011) (“Today we join our sister circuits in expressly recognizing Ex parte Young
as an exception not just to state sovereign immunity but also to tribal sovereign
immunity.” (citing Vann v. Kempthorne, 534 F.3d 741, 749 (D.C. Cir. 2008); N.
States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d
458, 460 (8th Cir. 1993), & Tamiami II, 177 F.3d at 1225–26)); see also
Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092 (9th Cir. 2007)
(The Ex parte Young doctrine “has been extended to tribal officials sued in their
official capacity such that tribal sovereign immunity does not bar a suit for
prospective relief against tribal officers allegedly acting in violation of federal
law.” (citation and internal quotation marks omitted)); Davids v. Coyhis, 869 F.
Supp. 1401, 1410 (E.D. Wis. 1994) (For purposes of Ex parte Young, if individual
tribal officials’ “actions are in violation of the IGRA, then the defendants have
acted outside the scope of their authority, because tribes are not authorized to
conduct Class II and III gaming in violation of the IGRA’s provisions.”). The
rationale is that when tribal officials act in violation of federal law, they are acting
beyond their authority and not on behalf of the tribe and, thus, are amenable to suit
without the protections of tribal sovereign immunity. See Ameritech Corp. v.
McCann, 297 F.3d 582, 586 (7th Cir. 2002) (“[W]hen a state official violates the
Constitution or federal law, he acts outside the scope of his authority and is no
longer entitled to the State’s immunity from suit.” (citing Ex parte Young, 209 U.S.
at 155–56)); Tamiami I, 63 F.3d at 1045 (describing Ex parte Young as “holding
that a suit against an individual in his official governmental capacity – claiming
that the individual is acting beyond his authority – is not a suit against the
sovereign”). Based upon Tamiami I, the Ex parte Young inquiry in this case
examines whether the Amended Complaint (1) alleges that the tribal officials are
acting beyond the authority that the Poarch Band is capable of bestowing upon
them under IGRA and (2) seeks prospective relief. The Amended Complaint
satisfies these inquiries so that the application of Ex parte Young provides a basis
for jurisdiction over the official-capacity, state-law claim in Count One with
respect to the governance of gaming on Indian lands.
As to the first inquiry, the Amended Complaint alleges that under IGRA the
tribal officials do not have lawful authority to conduct class III gaming at the
Poarch Band casinos, including “electronic or electromechanical facsimiles of any
game of chance or slot machines of any kind,” § 2703(7)(B)(ii), because the State
of Alabama prohibits class III gaming “as a matter of criminal law and public
policy,” § 2701(5).14
(Am. Compl. ¶¶ 10–12.)
It alleges further that
notwithstanding IGRA’s prohibitions, Defendants “are engag[ing] in ‘class III’
gambling” (Am. Compl. ¶ 34) and are operating “hundreds of slot machines and
other gambling devices in open, continuous, and notorious use” (Am. Compl. ¶ 9).
The Amended Complaint alleges that, as a result, the tribal officials have
“exceeded any authority they may have to conduct gambling under . . . federal
law.” (Am. Compl. ¶ 3.) Taken as true, the Amended Complaint’s allegations
establish that Defendants are acting beyond the scope of their authority in violation
The State of Alabama’s complete prohibition of class III gaming means that under
IGRA, the State of Alabama has no obligation to negotiate a Class III tribal-state compact, and,
thus, Defendants cannot offer class III gaming at their casinos. This much does not appear to be
of IGRA. As to the second inquiry, the State of Alabama seeks an injunction
prohibiting the tribal officials from engaging in “unlawful gaming activities” and a
corresponding declaratory judgment. (Am. Compl. 9.) This type of relief is
prospective in nature, and no party contends otherwise. Based upon the foregoing,
the Ex parte Young doctrine defeats the tribal officials’ assertion of tribal sovereign
immunity as to the IGRA official-capacity claims seeking prospective relief in
The tribal officials contend in a two-part argument, however, that the
Amended Complaint’s official-capacity claims do not implicate the Ex parte
Young doctrine. The gist of their first argument is that conducting class II gaming
at the Poarch Band casinos is within the scope of the tribal officials’ lawful
authority. (Doc. # 14, at 5.) That may be, but the Amended Complaint alleges that
the gaming actually is impermissible class III gaming.
Whether the gaming
occurring at the Poarch Band casinos is class II gaming or unlawful class III
gaming goes to the merits of Count Two, not to whether jurisdiction is proper
pursuant to Ex parte Young. See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 646 (2002) (“[T]he inquiry into whether suit lies under Ex parte
Young does not include an analysis of the merits of the claim . . . . An allegation
of an ongoing violation of federal law . . . is ordinarily sufficient.” (citation and
internal quotation marks omitted).
The tribal officials’ first argument is not
In their second argument, the tribal officials contend that for Ex parte Young
to apply, the Amended Complaint must allege “discrete, individual actions or
omissions by the individually named tribal officials” and that the absence of such
allegations means that “the suit is really a suit against the tribe itself.” (Doc. # 14,
at 5–6 (citing Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d
1269, 1271 (9th Cir. 1991)).
The State contends that the Eleventh Circuit’s
decision in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), forecloses this
argument, and the court agrees.
The Eleventh Circuit has rejected the contention that “the Ex parte Young
exception requires that the defendants must have taken some action personally that
violates [federal law].” Luckey, 860 F.2d at 1015. In Luckey, the Eleventh Circuit
Personal action by defendants individually is not a necessary
condition of injunctive relief against state officers in their official
capacity. All that is required is that the official be responsible for the
challenged action. As the Young court held, it is sufficient that the
state officer sued must, “by virtue of his office, ha[ve] some
connection” with the unconstitutional act or conduct complained of.
“[W]hether [this connection] arises out of general law, or is specially
created by the act itself, is not material so long as it exists.”
Id. at 1015–16 (quoting Ex parte Young, 209 U.S. at 157) (emphasis added).
The Amended Complaint adequately alleges that the individual Defendants
have some connection with the alleged ongoing violations of IGRA. It alleges that
the tribal officials “operate, administer, and control” the three casinos at which
they “operate hundreds of slot machines.” (Am. Compl. ¶ 9.) This allegation
denoting control reasonably implies that the individual Defendants bear
responsibility for the challenged action. In addition, the tribal officials include
members of the Tribal Council, which according to the Poarch Band constitution,
is the governing body that controls all “tribal assets,” “[e]ngage[s] in any
business,” “make[s] and perform[s] contracts,” and “exercise[s] all inherent powers
of the Poarch Band . . . not expressly excluded from its authority by the U.S.
Congress.” Poarch Band’s Const., art. IV, §§ 3 & 4; see also 25 U.S.C. § 476
(providing authority for an Indian tribe to adopt a constitution). Based upon the
foregoing, the tribal officials are appropriate officials “against whom prospective
relief could be ordered.”
Luckey, 860 F.3d at 1016.15
argument against application of Ex parte Young also is not persuasive.
Given the standards pronounced in Luckey, which is binding authority, the court need
not decide whether the Ninth Circuit’s decision in Imperial, upon which the tribal officials rely,
requires something more for a plaintiff to overcome a tribal official’s tribal sovereign immunity
under the Ex parte Young doctrine. But see Comstock Oil & Gas Inc. v. Ala. & Coushatta Indian
Tribes of Tex., 261 F.3d 567, 570 (5th Cir. 2001) (observing that the “sundry cases that the tribal
council members cite from other circuits to buttress their immunity claim [including Imperial],
based on their allegedly having been acting within the scope of their authority, are unpersuasive
In sum, the federal-law claim in Count Two falls within the Ex parte Young
exception, and the tribal officials are not protected by tribal sovereign immunity.
Subject-matter jurisdiction exists, therefore, as to Count Two. This jurisdictional
finding does not mean, however, that there is a cause of action available to the
State of Alabama under IGRA. As discussed infra in Part V.D, Congress has not
conferred upon the State the right to bring this action under 18 U.S.C. § 1166 for
injunctive and declaratory relief to enjoin allegedly illegal gaming at the Poarch
Band’s Alabama casinos. Ultimately then, the claim in Count Two cannot survive
under Rule 12(b)(6). See Tamiami I, 63 F.3d at 1047 (“[I]t is well settled that the
failure to state a proper cause of action calls for a judgment on the merits and not
for a dismissal for want of jurisdiction.” (citation and internal quotation marks
State-Law Claim (Count One)
The tribal officials contend that the Ex parte Young doctrine does not apply
to the official-capacity claim in Count One with respect to the governance of
gaming on Indian lands. They argue that under Count One, any injunction to abate
the alleged public nuisance rests on an alleged violation of state law, not federal
law as required for the application of the Ex parte Young doctrine. The tribal
officials cite National Association of Boards of Pharmacy v. Board of Regents of
the University System of Georgia, 633 F.3d 1297 (11th Cir. 2011), involving a state
official’s assertion of sovereign immunity, in which the Eleventh Circuit noted that
the Ex parte Young doctrine did not apply to the counts in the complaint that
alleged state-law claims. See id. at 1305 n.15 (observing that “Counts II and III
were state law claims as to which Ex parte Young did not apply”). Accordingly,
Defendants contend that the state-law claim in Count One must be dismissed for
lack of subject-matter jurisdiction on the basis of tribal sovereign immunity.
The State of Alabama cites no decision in which a court has applied Ex parte
Young to enjoin a tribal official in his or her official capacity from committing an
ongoing violation of state law, and the court’s independent research uncovered no
such decision.16 The court need not resolve this issue, however, because the State
of Alabama does not press the application of the Ex parte Young doctrine. (See
Doc. # 17, at 20 n.6 (acknowledging that “Ex parte Young applies by its terms to
suits alleging ongoing violations of federal law, and Count 1 by its terms asserts
claims that are based on state law”).) Rather, the State offers two other reasons for
There is some authority indicating the contrary. In Frazier v. Turning Stone Casino,
254 F. Supp. 2d 295 (N.D.N.Y. 2003), the court found that “[a]lthough Ex Parte Young offers a
limited exception to the general principle of state sovereign immunity and has been extended to
tribal officials acting in their official capacities, it only allows an official acting in his official
capacity to be sued in a federal forum to enjoin conduct that violates federal law.” Id. at 310.
The district court found that, because the plaintiff brought only state-law claims, the Ex parte
Young doctrine could not be used to strip the tribal officials of tribal sovereign immunity. See
id.; see also N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1282 (10th Cir. 2012) (observing
that, although in the Tenth Circuit Ex parte Young’s exception to sovereign immunity applied in
the tribal immunity context, the doctrine was “simply not applicable” in a suit that did not allege
that the tribal officials “violated federal law”).
its contention that tribal sovereign immunity does not bar the state-law claim in
Count One. (Doc. # 17, at 20 n.6.) Each argument is addressed in turn.
First, the State argues that § 1166 “incorporates” Alabama’s public nuisance
law “as ‘a matter of federal law,’” and, therefore, “the claims asserted in Count
One are federal in nature and thus fall squarely within the Ex parte Young
exception.” (Doc. # 17, at 20 n.6 (quoting 18 U.S.C. § 1166(a).) This argument
again conflates Count One’s state-law nuisance claim with Count Two’s federallaw nuisance claim under § 1166, and, therefore, a separate analysis is not required
here. As discussed in a preceding subsection, the Ex parte Young exception to
tribal sovereign immunity provides a jurisdictional basis upon which the officialcapacity claim in Count Two can proceed against the tribal officials.
Second, the State of Alabama contends that, even if the claim in Count One
is “solely a state-law claim,” Count One is not barred by tribal sovereign immunity
with respect to the tribal officials. The State argues that it had a right of action in
state court to proceed against the tribal officials “under Alabama’s equivalent of Ex
parte Young” based upon the principle that “governmental immunity does not
extend to a plaintiff’s suit seeking a declaratory judgment about the meaning of
state law.” (Doc. # 17, at 20 n.6 (citing Ala. Dep’t of Transp. v. Harbert Int’l, Inc.,
990 So. 2d 831 (Ala. 2008), abrogated on other grounds by Ex parte Moulton, 116
So. 3d 1119 (Ala. 2013)).) The State further asserts that, when “governmental
officers remove a case from state court (where they would have no sovereign
immunity) to a federal court, they waive any immunity they otherwise would have
had in federal court but for the removal.” (Doc. # 17, at 20 (citing Lapides v. Bd.
of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002).) The State argues that,
based upon the rationale of Lapides, tribal officials “cannot obtain a strategic
advantage with respect to state-law claims for injunctive relief under Alabama’s
equivalent of Ex parte Young – to which defendants would be subject in state court
– by removing those claims to federal court.” (Doc. # 17, at 20 n.6.)
Harbert is an Alabama Supreme Court decision addressing a state officer’s
immunity for state-law claims under a provision of the Alabama constitution. It
has nothing to do with a tribal official’s entitlement to tribal sovereign immunity.
Tribal sovereign immunity has its own unique history, and its origins do not derive
from a state’s immunity laws. See generally Kiowa Tribe, 523 U.S. at 755–58
(discussing history of tribal sovereign immunity). Moreover, “‘tribal immunity is a
matter of federal law,’” not state constitutional law, and “‘is not subject to
diminution by the States.’” Contour Spa, 692 F.3d at 1206 (quoting Kiowa Tribe,
523 U.S. at 756); accord Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d
1224, 1228 (11th Cir. 2012). The State has not demonstrated how Harbert – which
addressed a wholly different source of immunity under state law – assists in the
analysis of whether the tribal officials here have tribal sovereign immunity as a
matter of federal law.
Moreover, the Eleventh Circuit has declined to extend Lapides’s holding –
i.e., that the state’s removal of a state-law action from state court to federal court
constitutes a waiver of Eleventh Amendment immunity – in the tribal immunity
context and has concluded that a tribe does not waive its tribal sovereign immunity
from suit by removing it to federal court. See Contour Spa, 692 F.3d at 1208.
Lapides, when read in conjunction with Contour Spa, does not support the
proposition that the tribal officials’ removal of this action prevents them from
relying on tribal sovereign immunity in this federal forum.
In sum, none of the arguments the State asserts overcomes Defendants’
assertion of tribal sovereign immunity as to the official-capacity, state-law claim in
Count One with respect to the governance of gaming on Indian lands.
Accordingly, even if IGRA did not completely preempt Count One’s claim that
seeks injunctive and declaratory relief against the tribal officials in their official
capacities for violations of state law with respect to the gaming on Indian lands,
see supra Part V.A, that claim is subject to dismissal on the alternative basis of
tribal sovereign immunity for lack of subject-matter jurisdiction.
Whether the State-Law Nuisance Claim in Count One Concerning the
Governance of Gaming on Non-Indian Lands States a Claim for Relief
The analysis turns to Defendants’ Rule 12(b)(6) challenge to the theory in
Count One that the State has authority to bring Count One to enforce its publicnuisance laws against the allegedly illegal gaming occurring at the Poarch Band
casinos because the casinos are not on “Indian lands” within the meaning of IGRA.
(Am. Compl. ¶ 25 (citing Carcieri, 555 U.S. at 379); see also Doc. # 31, at 12
(describing Count One as also embodying “a state-law public-nuisance claim about
gambling that is alleged to be occurring off properly recognized Indian lands”).)
According to the State, in light of Carcieri’s holding, the Secretary of the Interior
“had no authority under [25 U.S.C. § 465] to take the Poarch Band’s landholdings
into trust.” (Doc. # 17, at 35.) The State’s theory takes the gaming activities off
Indian lands and, thus, out of IGRA’s regulatory and preemptive reach. (See Doc.
# 17, at 34 (arguing that “IGRA governs gambling only if that gambling is
conducted on ‘Indian lands’”).) Because the parties disagree as to the effect of
Carcieri on the validity of the 1984, 1992, and 1995 deeds by which the United
States took the lands at issue in trust for the benefit of the Poarch Band, the
analysis appropriately begins with an examination of the Carcieri decision.17
The State does not dispute the authenticity of the deeds reflecting that the United States
holds the lands at issue in trust for the benefit of the Poarch Band. It also does not dispute that
the Secretary of Interior “has purported to take certain lands into trust on the [Poarch Band’s]
The Carcieri Decision
In Carcieri, a case brought under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701–06,18 the Supreme Court construed the definition of
“Indian” in the Indian Reorganization Act (“IRA”). The IRA, enacted in 1934,
authorizes the Secretary of the Interior “to acquire land and hold it in trust ‘for the
purpose of providing land for Indians.’” 555 U.S. at 381 (quoting 25 U.S.C.
§ 465). The IRA defines “[t]he term ‘Indian’ as used in this Act [to] include all
persons of Indian descent who are members of any recognized Indian tribe now
under Federal jurisdiction . . . .” 25 U.S.C. § 479. Concluding that § 479’s text
was plain and unambiguous, the Supreme Court held that “the phrase ‘now under
Federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time
of the [IRA’s] enactment,” 555 U.S. at 382, rather than at the time the Secretary
took the lands into trust. “As a result, § 479 limits the Secretary’s authority to
behalf in the years since 1984.” (Doc. # 17, at 35.) Although the deeds are extrinsic to the
Amended Complaint, they are proper for consideration under Rule 12(b)(6) because the deeds
are central to the State of Alabama’s alternative theory that the casinos are not on Indian lands
and the State does not challenge the deeds’ authenticity. See Speaker, 623 F.3d at 1379; see also
Iowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1229 n.2 (10th Cir. 2010) (taking judicial
notice under Fed. R. Evid. 201(d) of deeds placing lands into trust).
The APA entitles “[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, to
judicial review thereof.” 5 U.S.C. § 702. A court presented with an APA claim “shall . . . hold
unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; [or] in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
taking land into trust for the purpose of providing land to members of a tribe that
was under federal jurisdiction when the IRA was enacted in June 1934.” Id.
Applying these principles, the Supreme Court held that the Secretary lacked
authority to take the land into trust because the Narragansett Tribe did not achieve
federal recognition until 1983. The tribe did not argue that it otherwise was “under
federal jurisdiction” as of 1934, and the evidence indicated the contrary; thus, the
Supreme Court did not have to analyze what sort of evidence might support a
claim that a tribe was “under federal jurisdiction” in 1934. Justice Breyer noted in
his concurrence, however, that a tribe might be under federal jurisdiction in 1934
without having been formally recognized. See Carcieri, 555 U.S. at 397 (Breyer,
J., concurring) (The “interpretation that reads ‘now’ as meaning ‘in 1934’ may
prove somewhat less restrictive than it at first appears” because “a tribe may have
been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did
not believe so at the time.”). As a consequence of the Supreme Court’s ruling, the
Narragansett Tribe lost the benefits of the IRA.
Carcieri’s bottom line is that the Secretary of the Interior does not have
authority to acquire land in trust for tribes that were not under federal jurisdiction
in 1934. The meaning of the phrase “under federal jurisdiction” has not been sifted
by the courts; however, in light of the Carcieri decision, the Secretary has
established a two-part test for assessing whether a tribe was “under federal
jurisdiction in 1934.”19 (See Doc. # 41 at 4 n.2.)
The State argues that because the United States did not recognize the Poarch
Band as a tribe until 1984, it is “50 years too late for the Secretary to be able to
take land into trust on the [Poarch Band’s] behalf.” (Doc. # 17, at 34.) It is not
necessary to opine as to whether the State’s application of the Carcieri holding is
correct. Even if Carcieri casts a cloud over the validity of the land-into-trust
deeds, which the parties do not dispute were approved by the Secretary of the
Interior decades ago, Carcieri is distinguishable from this action on two important
grounds. First, Carcieri involved a timely direct challenge to a land-into-trust
decision under the APA. The APA indisputably provides a proper framework for
challenging the Secretary’s land-into-trust decisions.
See Carcieri, 555 U.S.
at 385; see also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 132 S. Ct. 2199, 2208 (2012) (observing that a challenge to the
Defendants represent that the Secretary’s current position on the meaning of the phrase
“under federal jurisdiction” is set out in a January 24, 2014 determination letter accepting land
into trust for the Mechoopda Indian Tribe of Chico Rancheria. (See Doc. # 41, at 4 n.2.) The
first prong of the test “examines whether there is a sufficient showing in the tribe’s history, at or
before 1934, that it was under Federal jurisdiction, i.e., whether the United States had, in 1934 or
at some point in the tribe’s history prior to 1934, taken an action or series of actions – through a
course of dealings or other relevant acts for or on behalf of the tribe or in some instances tribal
members – that are sufficient to establish or that generally reflect Federal obligations, duties,
responsibility for or authority over the tribe by the Federal Government. The second prong looks
at “whether the tribe’s jurisdictional status remained intact in 1934.” (Jan. 2014 Sec’y’s Letter
30 (Ex. to Doc. # 41).)
Secretary’s decision to take land into trust is a garden-variety APA claim); Kansas
v. United States, 249 F.3d 1213, 1222–23 (10th Cir. 2001) (analyzing under the
APA, a challenge to the NIGC’s decision to issue a tribe a permit for class II
gaming on “Indian lands,” and, in particular, to the NIGC’s Indian-lands
determination). Second, the Secretary of the Interior was the defendant and, thus,
was in a position to defend his decision. The Supreme Court did not have to
decide whether an action challenging the Secretary’s decision to take lands into
trust on behalf of the Poarch Band can proceed without the Secretary. This action
is quite different.
Here, the State does not challenge the United States’s land-into-trust
decisions under the APA’s framework; the Secretary is not a defendant; and the
attack on the validity of the land-into-trust decisions comes decades after the
expiration of the APA’s six-year statute of limitations, see 28 U.S.C. § 2401(a).
The State asserts, however, that it does not have to proceed under the APA because
this action “does not seek to unwind the decisions of the Secretary of the Interior”
(Doc. # 31, at 7), but rather seeks an injunction against “the officers of an Indian
tribe from operating an open and notorious [state-law] public nuisance.” (Doc.
# 31, at 7.) But this argument ignores that the very reason the State says it can
bring a state-law nuisance claim in Count One for allegedly illegal gaming
occurring off Indian lands is because under the 2009 Carcieri decision, the
Secretary lacked authority to take the lands upon which the casinos now stand in
trust for the benefit of the Poarch Band. Because Carcieri involved a timely APA
action, the State cannot rely on Carcieri as grounds for circumventing the APA.
Cf. City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 702 F.3d
1147, 1153 (8th Cir. 2013) (refusing to rule on the validity of the NIGC’s decision
because “such challenges are properly made under the [APA],” and “[t]he NIGC
[was] not a party . . . , and the City ha[d] not made a showing that the review
process established by Congress in the APA might be circumvented here”). The
State cannot avoid the APA’s procedures for reviewing the Secretary’s decisions
simply by reformulating its argument.20 Based on the foregoing, the court rejects
As noted by the United States (Doc. # 21, at 6 n.6), there is another case pending in this
district in which the Muscogee Creek Nation, joined by other plaintiffs, has brought an APA
challenge to the Secretary of the Interior’s decision to acquire one of the parcels the United
States holds in trust for the Poarch Band in Elmore County. See Muscogee Creek Nation v.
Poarch Band of Creek Indians, No. 2:12cv1079-MHT (M.D. Ala. filed Dec. 12, 2012). Motions
to dismiss are pending in that case.
The State of Alabama also points out that in the United States District Court for the
Western District of Michigan, the State of Michigan has brought a state-law claim against tribal
officials in their official capacities, alleging that the tribal officials are illegally operating class
III gaming at a casino off Indian lands and that continued operation of that casino is a public
nuisance under Michigan state law. Michigan v. Bay Mills Indian Cmty., No. 1:10cv1273,
1:10cv1278 (W.D. Mich. Aug. 9, 2011) (Am. Compl.). The State of Michigan added the statelaw nuisance claim against the Bay Mills tribal officials during the pendency of the appeal from
the district court’s order granting preliminary injunctive relief. In its opinion vacating that
injunction, the Sixth Circuit “express[ed] no opinion as to whether, or under what circumstances,
those officers may be sued.” Michigan v. Bay Mills Indian Cmty., 695 F.3d 406, 416 (6th Cir.
2012). Unlike this case, it was undisputed in Bay Mills that the property at issue had not been
acquired by the United States in trust for the benefit of the Bay Mills tribe. See id. at 413
the State’s Carcieri-based collateral challenge in Count One to the Secretary’s
decades-old land-into-trust decisions.
For purposes of this lawsuit, the fact
remains, as established by the 1984, 1992, and 1995 deeds, that the United States
holds title to the lands in question in trust for the benefit of the Poarch Band.21
This does not end the analysis, however. After the close of briefing on the
motion to dismiss, the State notified the court of the recent split panel decision in
Big Lagoon Rancheria v. California, 741 F.3d 1032 (9th Cir. 2014). The State
argues that Big Lagoon supports its position, but the court finds Big Lagoon’s
analysis to be unpersuasive.
The Big Lagoon Decision
In Big Lagoon, the Ninth Circuit applied the Carcieri holding in an IGRA
action in which a tribe sued the State of California when negotiations for a class III
tribal-state gaming compact failed. See id. at 1036–37. Relying on Carcieri, the
(observing that it is “undisputed that the property was acquired by Bay Mills itself”).
Incidentally, the Sixth Circuit’s Bay Mills decision is pending before the Supreme Court on
certiorari review. The certiorari petition presents two issues for review: (1) “Whether a federal
court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian
lands; and (2) “[w]hether tribal sovereign immunity bars a state from suing in federal court to
enjoin a tribe from violating IGRA outside of Indian lands.” Michigan v. Bay Mills Indian
Cmty., No. 12-515, 2012 WL 5353883 (Oct. 23, 2012). Because this lawsuit does not present a
proper challenge to the land-into-trust decisions, the issues in Bay Mills do not have direct
application here as to Count One.
The Amended Complaint does not assert a claim under the APA; hence, it is not
necessary to resolve the parties’ Rule 19, see Fed. R. Civ. P. 19, and statute-of-limitations
State argued that it did not have to negotiate with the tribe because the land at issue
did “not qualify as ‘Indian lands’ under IGRA.” Id. at 1039. The State made its
argument nine years into the twenty-first century, notwithstanding the Secretary’s
decision in 1994 to take the land into trust for the tribe and the State’s failure to
challenge that decision within the limitations period under the APA. Id. at 1035,
The Ninth Circuit agreed with the State, concluding that the State of
California did not have to bring a timely action under the APA for a challenge that
a final agency decision exceeded statutory authority and that the court could decide
whether the Secretary’s 1994 decision to acquire the land in trust for the tribe was
The Ninth Circuit recognized that Carcieri had not “define[d] what it means
for a tribe to be ‘under federal jurisdiction’” and that neither party had suggested
how the court “should go about deciding whether [the tribe] was a tribe under
federal jurisdiction in 1934.” Id. at 1044. Undeterred by the absence of input from
the parties (or the Secretary, who was not a party) and even recognizing that the
issue was “perhaps beyond [its] competence to answer,” the Ninth Circuit
nonetheless tackled the issue in a non-APA action. Id. It held that the property at
issue did not qualify as “Indian lands” under IGRA because the tribe was not
included on the Bureau of Indian Affairs’s list prepared shortly after the enactment
of the IRA and there were no tribe members living on the land in 1934. See id.
at 1044–45 (citing 25 U.S.C. § 476 (providing that a central purpose of the IRA
was to give “[a]ny Indian tribe, or tribes, residing on the same reservation . . . the
right to organize for its common welfare”)). “Since no one resided on what is now
the rancheria, there was no group to organize. The absence of Big Lagoon from
the 258-tribe list was not an intentional or inadvertent omission; it was a reflection
Id. at 1045.
Accordingly, the Ninth Circuit held that under the
Supreme Court’s opinion in Carcieri, the tribe was not under federal jurisdiction in
1934, so its land, placed into trust by the Secretary in 1994, was not “Indian lands.”
Accordingly, the tribe could not demand that the State of California engage in
negotiations for a class III gaming compact. Id.
Big Lagoon apparently is the
only court that has applied Carcieri’s holding outside of a challenge to trust status
under the APA,22 and, thus, it is the only case that has permitted what is essentially
a collateral challenge to the Secretary’s land-into-trust decision.
This court respectfully declines to follow the majority’s reasoning in Big
Lagoon, a non-binding case, as it finds more persuasive Big Lagoon’s dissent. The
dissent persuasively reasons that Carcieri cannot be read as permitting an untimely
collateral attack on the Secretary’s designation of trust lands.
emphasizes that the Supreme Court decided Carcieri in the context of a “timely
challenge” to the Secretary’s plan to take land into trust for the Narragansett Tribe
At least the parties cite no other decision.
under the APA: The Carcieri Court “says nothing about a collateral challenge to
the legitimacy of a designation of trust property outside the parameters of the
[APA].” Id. at 1046. The dissenting judge continues, “Surely it cannot be the case
that the State of California can launch a collateral attack upon the designation of
trust land years after its administrative and legal remedies have expired.” Id.
(noting APA’s six-year statute of limitations). “Carcieri certainly does not come
anywhere close to such a holding. Indeed, we cannot say how the Supreme Court
would have ruled if the challenger in Carcieri had not filed a timely challenge
under the [APA] or had sued under a different statute entirely.” Id. at 1046–47.
The dissent also observed that Carcieri “in no wise . . . purported to address IGRA
in any way, or considered an untimely challenge to the designation of trust lands.”
Id. at 1047. Based upon these distinctions, the dissent parted ways with the
In addition to the points made by the dissent, there are at least five reasons to
question Big Lagoon’s persuasiveness. First, Big Lagoon’s majority essentially
undid a federal agency’s final decision and divested that agency’s title to land (if
not directly, then indirectly), seemingly without concern that the federal agency
was not a party to the action. Second and relatedly, the panel admitted that some
of the issues relevant to whether the tribe was under federal jurisdiction in 1934
were “perhaps beyond [its] competence to answer,” yet at the same time it failed to
obtain input (as it could have under the APA) from the federal agency that had the
specific expertise that the court lacked. Cf. United Tribe of Shawnee Indians v.
United States, 253 F.3d 543, 551 (10th Cir. 2001) (“Determining whether a group
of Indians exists as a tribe is a matter requiring [ ] specialized agency expertise.”).
Third, Big Lagoon majority’s opinion did not acknowledge or apply the
Secretary’s two-part standard for analyzing “under federal jurisdiction” in the postCarcieri world, see supra note 19. Fourth, the Big Lagoon panel essentially
conducted a de novo review of the Indian-lands status, notwithstanding that a court
that reviews a final agency decision “is not generally empowered to conduct a de
novo inquiry into the matter being reviewed and to reach its own conclusions based
on such an inquiry.” Gonzales v. Thomas, 547 U.S. 183, 186 (2006). Fifth, it
cannot be ignored that Big Lagoon is the subject of a pending petition for
The record contains certified copies of the 1984, 1992, and 1995 deeds for
the lands upon which Defendants conduct their gaming activities in Elmore,
Escambia, and Montgomery counties, and the deeds reflect that the lands are held
in trust by the United States for the benefit of the Poarch Band with the Secretary
of the Interior’s approval. In short, these deeds demonstrate that the lands are
“held in trust by the United States for the benefit of [the Poarch Band],” as
required by § 2703(4)(B).
The State has not demonstrated that the Supreme
Court’s decision in Carcieri opens the door for it to now challenge in Count One
the validity of the Secretary’s decisions in 1984, 1992, and 1995 to take the lands
in Elmore, Escambia, and Montgomery counties into trust for the benefit of the
Poarch Band. The claim in Count One premised on allegedly illegal gaming taking
place off Indian lands is due to be dismissed for failure to state a claim upon which
relief can be granted.
Whether the State Can Bring a Public Nuisance Claim Under 18 U.S.C.
§ 1166 to Enjoin Allegedly Unlawful Class III Gaming (Count Two)
Count Two alleges a public nuisance law claim under IGRA’s penal
provision, 18 U.S.C. § 1166. Section 1166, titled “Gambling in Indian country,”
prohibits a tribe’s operation of class III gaming in the absence of an approved
tribal-state gaming compact. It provides in full as follows:
(a) 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.
(b) Whoever in Indian country is guilty of any act or omission
involving gambling, whether or not conducted or sanctioned by an
Indian tribe, which, although not made punishable by any enactment
of Congress, would be punishable if committed or omitted within the
jurisdiction of the State in which the act or omission occurred, under
the laws governing the licensing, regulation, or prohibition of
gambling in force at the time of such act or omission, shall be guilty
of a like offense and subject to a like punishment.
(c) For the purpose of this section, the term “gambling” does not
(1) class I gaming or class II gaming regulated by the Indian Gaming
Regulatory Act, or
(2) class III gaming conducted under a Tribal-State compact approved
by the Secretary of the Interior under section 11(d)(8) of the Indian
Gaming Regulatory Act that is in effect.
(d) The United States shall have exclusive jurisdiction over criminal
prosecutions of violations of State gambling laws that are made
applicable under this section to Indian country, unless an Indian tribe
pursuant to a Tribal-State compact approved by the Secretary of the
Interior under section 11(d)(8) of the Indian Gaming Regulatory Act,
or under any other provision of Federal law, has consented to the
transfer to the State of criminal jurisdiction with respect to gambling
on the lands of the Indian tribe.
Defendants argue that § 1166 does not give the State a federal right of action
to obtain an injunction against allegedly illegal non-compacted class III gaming as
a public nuisance and that Count Two “fundamentally misconstrues the nature of
IGRA and the effect of § 1166.” (Doc. # 14, at 9.) They contend that construing
§ 1166 as extending jurisdiction to states over civil enforcement actions would
defeat IGRA’s careful balancing of jurisdiction among the tribes, the federal
government, and the states and would “subjugate[ ] all of IGRA’s limitations on
state regulatory and enforcement authority to the Act’s penal provision . . . .”
(Doc. # 14, at 13.) Defendants assert that their position is consistent with IGRA’s
stated purposes,23 the limited regulatory24 and enforcement25 roles IGRA gives
states, and IGRA’s legislative history. The upshot of Defendants’ argument is that
“because Alabama has not entered into a gaming compact with the Tribe, it has no
regulatory or enforcement authority over gaming on the Tribe’s lands under
IGRA.” (Doc. # 14, at 13.)
The State appropriately concedes that it cannot initiate criminal prosecutions
based upon § 1166(d). The State contends, however, that § 1166(d)’s grant of
exclusive jurisdiction over criminal prosecutions to the United States amounts to
an “unambiguous” proclamation that the United States does not have exclusive
jurisdiction “in civil actions like this one.” (Doc. # 17, at 27.) And the State points
out that Alabama law specifically authorizes it to bring a civil-nuisance suit to
enjoin illegal gambling. See Ala. Code § 6-5-120 (defining “nuisance”); Try-Me
Bottling Co. v. State, 178 So. 231 (Ala. 1938) (holding that the state Attorney
General had authority to bring suit to enjoin the operation of a lottery as a public
See § 2702(2)–(3) (“provid[ing] a statutory basis for the regulation of gaming by an
Indian tribe” and establishing an “independent Federal regulatory authority [the NIGC] for
gaming on Indian lands . . . [and] Federal standards for gaming on Indian lands”).
See § 2701(5) (giving Indian tribes “the exclusive right to regulate gaming activity on
Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted
within a State which does not, as a matter of criminal law and public policy, prohibit such
See § 2710(d)(7)(A)(ii) (permitting a state to file suit “to enjoin a class III gaming
activity located on Indian lands and conducted in violation of any tribal-state compact”).
nuisance). The State argues, therefore, that § 1166 gives it a right to bring suit to
abate the public nuisance of illegal gambling.
The parties acknowledge that the Eleventh Circuit has not spoken to whether
§ 1166 provides a right of action permitting the State to seek an injunction against
illegal tribal gaming in Indian country, and the court is not aware that any other
circuit has confronted this issue. The parties, however, cite the Eleventh Circuit’s
decision in Florida v. Seminole Tribe of Florida, 181 F.3d 1237 (11th Cir. 1999),
both for what it did and did not decide under IGRA.
In Seminole Tribe, the State sued the Seminole Tribe of Florida and its
chairman for declaratory and injunctive relief, alleging that they were conducting
class III gaming as defined by IGRA without a tribal-state compact. See id.
at 1240. Relevant to the instant case, the chairman sought dismissal on Rule
12(b)(6) grounds that IGRA did not contain an implied right of action “for
declaratory or injunctive relief against class III gaming that is being unlawfully
conducted without a Tribal-State compact.”26 Id. at 1246. The Eleventh Circuit
In Seminole Tribe, the Eleventh Circuit noted that the chairman had not argued under
Rule 12(b)(1) that the “Tribe’s sovereign immunity shield[ed] him from . . . suit.” Seminole
Tribe, 181 F.3d at 1245 n.12. To the contrary, here, the tribal officials urged dismissal on the
basis of Rule 12(b)(1), but as found in Part V.B, the Eleventh Circuit’s decisions in Tamiami I
and II support a finding that the Ex parte Young doctrine provides an exception in this case to
tribal sovereign immunity as to the IGRA claim against the tribal officials in their official
capacities. The Rule 12(b)(1) jurisdictional question has been resolved, therefore, in the State of
Alabama’s favor. This part addresses under Rule 12(b)(6), whether IGRA gives the State a
agreed. It held that “the legislative history and statutory scheme of IGRA . . .
unequivocally demonstrate that Congress did not intend to vindicate any such right
[of a state to be “free from class III tribal gaming activities within their borders in
the absence of a compact regulating such activities”] by creating a private right of
action that would allow states to obtain injunctive relief against uncompacted class
III tribal gaming.” Id. at 1247. Seminole Tribe forecloses any claim that IGRA
gives the State an implied right of action to sue the tribal officials under IGRA to
enjoin them from conducting class III gaming.
Seminole Tribe also contains a footnote upon which both parties rely. In that
footnote, the Eleventh Circuit observed that “[i]t is unclear whether IGRA
[namely, § 1166] could properly be viewed as giving the State an express right to
sue Chairman Billie for injunctive relief.” Id. at 1246 n.13. The court observed
that Florida law permits an action in state court to enjoin a “common nuisance,”
defined to include “slot machines,” id., and that the State of Florida had alleged in
its complaint that its action for injunctive relief was appropriate pursuant to
The court observed that “[a]n examination of cases that have
addressed [§ 1166] engenders some doubt about whether it would permit a state to
bring an action in federal court seeking state-law injunctive relief against a tribe for
cause of action against the tribal officials, and the answer to that question depends upon whether,
as pleaded and argued by the State, § 1166 gives the State a cause of action against the tribal
violating state gambling laws.” Id. The Eleventh Circuit “declined to consider”
the issue, however, because the State of Florida had not argued in the district court
or on appeal for an express cause of action under §1166. Id. In the end, therefore,
the Seminole Tribe court concluded that the day for resolution of that issue had not
yet come. The State of Alabama contends that today is the day.
The parties’ arguments with respect to whether § 1166 confers a right on the
State of Alabama to bring this civil enforcement action against the tribal officials
in their official capacities require a walk down the path of statutory interpretation,
although the path here is not long. “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).
“The starting point for all statutory
interpretation is the language of the statute itself.” United States v. DBB, Inc., 180
F.3d 1277, 1281 (11th Cir. 1999). If the statute’s “‘language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case,’ and
‘the statutory scheme is coherent and consistent,’ the inquiry is over.” Warshauer
v. Solis, 577 F.3d 1330, 1335 (11th Cir. 2009) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997)).
“In determining whether a statute is plain or
ambiguous, [courts] consider ‘the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.’” Id. (quoting
Robinson, 519 U.S. at 341). It also must be kept in mind that “statutes are to be
construed liberally in favor of Indians, with ambiguous provisions interpreted to
their benefit.” Hagen v. Utah, 510 U.S. 399, 437 (1994); see also Seminole Tribe,
181 F.3d at 1242 (“[A]mbiguities in federal laws implicating Indian rights must be
resolved in the Indians’ favor.”).
Against this backdrop, the State’s argument that § 1166 provides individual
states an express right of action to enforce their civil laws against illegal gambling
operations on Indian lands finds no support in § 1166’s language or context or in
the broader context of IGRA as a whole. To begin, § 1166 does not say anything
about states’ authority and confers no explicit rights on states. See Michigan v.
Bay Mills Indian Cmty., 695 F.3d 406, 415 (6th Cir. 2012) (“Section 1166(a) itself
does not expressly authorize a State to sue anyone, much less an Indian tribe.”);
see also Taxpayers of Mich. Against Casinos v. Michigan, 685 N.W.2d 221, 229
(Mich. 2004) (Section 1166 “does not grant the state regulatory authority over
tribal gaming,” and it “is not a way to extend the state’s power to regulate tribes
through the federal government.”). The right that § 1166 expressly creates is the
grant to the United States of “exclusive jurisdiction over criminal prosecutions of
violations of State gambling laws that are made applicable under this section to
Indian country.” § 1166(d). Section 1166 does not speak one way or the other
about whether a civil enforcement action is permissible under its provisions and if
so, who may bring it. The language and context of § 1166, therefore, do not confer
on the State the right it seeks in this case. The broader context of IGRA leads to
the same result.27 Namely, no other provision in IGRA provides states any rights
under § 1166 or elsewhere to bring civil actions to enjoin illegal gaming on Indian
lands.28 The path of statutory construction ends, therefore, with the plain and
Section 1166 is part of IGRA’s overall scheme. See United States v. E.C. Invs., Inc.,
77 F.3d 327, 330 (9th Cir. 1996) (Section 1166 “was enacted with IGRA in 1988.”); (see also
Doc. # 17, at 25 (pointing out that Defendants “concede that Section 1166 ‘was a part of the bill
that became IGRA and was passed by Congress as a constituent part of the larger Act.’” (quoting
Doc. # 14, at 13 n.10)).)
To be clear, IGRA includes a number of express rights, and some of those go directly
to states, but those that go to the states come from tribal-state compacts. See, e.g.,
§ 2710(d)(7)(A)(ii) (authorizing a state to sue to enjoin a class III gaming activity that is on
Indian lands and is conducted in violation of a tribal-state compact); § 2710(d)(7)(A)(iii)
(authorizing the Secretary to sue to enforce procedures for conducting class III gaming);
§ 2711(d) (authorizing a tribe to sue to compel the NIGC Chairman to approve or disapprove a
management contract for class II gaming); § 2713(a), (b) (granting the Chairman the right to levy
and collect fines against the tribal operator of an Indian game or to issue orders of temporary
closure for violations of specified regulations and IGRA and providing a right to a hearing before
the NIGC concerning fines imposed or temporary closures ordered by the Chairman);
§§ 2713(c), 2714 (authorizing an appeal to a federal district court of NIGC fines and permanent
closure orders). These provisions of IGRA demonstrate that Congress carefully allocated
regulatory and enforcement authority for tribal gaming among the federal government, the states,
and the tribes. In short, IGRA explicitly gives states an enforcement role, but only through
agreed-upon terms negotiated between the state and the tribe and embodied in the tribal-state
compact, “the centerpiece of the IGRA’s regulation of class III gaming.” Mashantucket Pequot
Tribe v. Connecticut, 913 F.2d 1024, 1031 (2d Cir. 1990). Section 1166(d) also is consistent
with the notion that states must acquire their enforcement authority over gaming on Indian lands
through tribal-state compacts. See § 1166(d) (providing that criminal jurisdiction may be
transferred from the United States to a state if a tribal-state compact entered into IGRA so
In fact, a number of courts have recognized the tribal-state compact restriction on states’
enforcement authority. See Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1059
(9th Cir. 1997) (“Outside the express provisions of a compact, the enforcement of IGRA’s
prohibitions on class III gaming remains the exclusive province of the federal government.”);
Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 690 (1st Cir. 1994) (observing “that the
very structure of [IGRA] forbids the assertion of state civil or criminal jurisdiction over class III
unambiguous language of § 1166 demonstrating that Congress has not provided a
right of action under § 1166 for the State to bring this civil action.
While the analysis should be over, the State makes three arguments urging a
contrary conclusion. First, the State contends that § 1166(a) “expressly requires
Indian casinos to comply with state laws ‘pertaining to the licensing, regulation or
prohibition of gambling.’” (Doc. # 17, at 24 (emphasis added).)
That much is
true. Section 1166(a), by its express terms, incorporates state law “for purposes of
federal law” such that state law in effect becomes federal law. That language does
not expressly give a state jurisdiction to enforce any civil remedies under its state
laws; it says nothing about state jurisdiction at all. See Touche Ross & Co., 442
U.S. at 568 (“[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.” (citation and internal quotation marks omitted)).
gaming except when the tribe and the state have negotiated a compact that permits state
intervention”); United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1177
(10th Cir. 1991) (describing IGRA, in particular § 1166(d) as preempting state criminal
jurisdiction and a congressional limitation of “the states’ enforcement role to class III gaming
conducted under a compact”); Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253, 1257 (D.
Kan. 2004) (“Although the IGRA provides that Class III gaming activities are only lawful if
conducted in conformance with a tribal-state compact, it does not follow that the states have any
authority to regulate Class III gaming in the absence of a compact. States may not enforce the
terms of IGRA – the only enforcement provided for in the IGRA is through the federal
government.”), vacated and remanded on other grounds, 443 F.3d 1247 (10th Cir. 2006); see
also Kurtis A. Kemper, J.D., Annotation, Preemption of State Law by Indian Gaming Regulatory
Act, 27 A.L.R. Fed. 2d 93 (2008) (“The tribal-state compacts are at the core of the scheme
Congress developed to balance the interests of the federal government, the states, and the tribes”
and provide “[t]he only avenue for significant state involvement in Indian gaming under the
Second, the State contends that there is out-of-circuit authority to buttress its
position that “[b]y incorporating all state laws ‘not limited to criminal sanctions,’
Section 1166 authorizes the filing of public-nuisance suits to enjoin unlawful class
III gambling on Indian lands, where those suits are recognized by applicable state
law.” (Doc. # 17, at 25 (citing United States v. Santee Sioux Tribe of Neb., 135
F.3d 558 (8th Cir. 1998), and United States v. Seminole Tribe of Fla., 45 F. Supp.
2d 1330 (M.D. Fla. 1999).)
The State then makes an inferential leap that,
“[b]ecause Alabama law indisputably provides a cause of action through which the
State can enjoin unlawful gambling as a public nuisance, the State can file that
cause of action to enjoin illegal gambling on Indian Lands as well.” (Doc. # 17,
at 27 (emphasis added).)
The leap – that § 1166’s incorporation of state laws simultaneously gives the
State civil enforcement authority under § 1166 – is not one that either Santee Sioux
or Seminole Tribe makes. In those decisions, the courts concluded that § 1166
permits public-nuisance civil actions to enjoin unlawful tribal gambling, but in
both cases, it was the federal government, not a state, that commenced the actions,
and the State was not a party to the lawsuit.29 Neither Santee Sioux nor Seminole
There is conflicting authority, but it cuts against the arguments of the State. See United
States v. Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, 983 F.
Supp. 1317, 1325 (C.D. Calif. 1997) (“suggest[ing] that § 1166(a) provides no basis for civil
enforcement by anyone” and concluding that Ninth Circuit precedent foreclosed state
enforcement); Sycuan Band of Mission Indians v. Roache, 788 F. Supp. 1498, 1506–07 (S.D.
Cal. 1992), aff’d, 54 F.3d 535 (9th Cir. 1994) (observing that in § 1166(a), “Congress federalized
Tribe addressed a state’s authority to bring a civil action under § 1166. See Sycuan
Band of Mission Indians, 788 F. Supp. at 1506 (Section 1166(a)’s “incorporation
of state law . . . does not necessarily indicate that Congress intended to grant
concurrent jurisdiction to the states to enforce the new federal rights.”).
Moreover, the courts’ rationales for permitting the United States to institute
the civil enforcement actions in Seminole Tribe and Santee Sioux do not transfer to
the issue of the authority of the states. In Santee Sioux, the Eighth Circuit held
that, given IGRA’s silence “with respect to the authority to conduct litigation
necessary to enforce the NIGC’s closure orders,” Congress must have intended for
the United States Attorney General to enforce NIGC orders in federal court
pursuant 28 U.S.C. § 516, which gives the Attorney General “plenary power over
litigation” in which the United States has an interest.
See 135 F.3d at 562.
Similarly, in Seminole Tribe, the court found that the United States had authority to
seek civil injunctive relief based on § 1166(a), in conjunction with the
“presumption against a congressional intent to limit the power of the Attorney
General to prosecute offenses under the criminal laws of the United States.” 45 F.
Supp. 2d at 1331. But see Seminole Tribe, 181 F.3d at 1244 n.10 (noting the
district court’s finding in Seminole Tribe that the Attorney General had authority to
seek civil injunctive relief, but “express[ing] no opinion on [its] correctness”
state law” and concluding that “a state may exercise jurisdiction over Indian gaming only by
entering into a compact with the tribe”).
(citing Seminole Tribe, 45 F. Supp. 2d at 1331)). Neither this presumption nor §
516 has any bearing on a state’s authority under § 1166, and these decisions do not
help the State of Alabama in its pursuit of a right of action.
Third, the State of Alabama pushes an alternative argument that, “even if the
text of Section 1166 were ambiguous” (Doc. # 17, at 28), a right of action in
§ 1166 exists by way of a canon of statutory interpretation – expressio unius est
exclusio alterius – which means “the mention of one thing implies the exclusion of
another.” United States v. Castro, 837 F.2d 441, 442 (11th Cir. 1998). The State’s
argument is that “Congress necessarily implied that the United States would not
have ‘exclusive jurisdiction’ to bring other kinds of state-law actions incorporated
into federal law by Section 1166.” (Doc. # 17, at 28.) However, as the Eleventh
Circuit observed in Castro, “[a] discussion of the expressio unius idea is always
necessarily accompanied by a discussion of its limitations,” suggesting “that it is
perhaps a rule honored more in the breach than in the observance.” 837 F.3d
at 443 n.2. In particular, the canon “cannot apply when the legislative history and
context are contrary to such a reading of the statute.” Id. at 442–43. While resort
to the legislative history is not required or necessary here30 – to reiterate, the plain
See DBB, Inc., 180 F.3d at 1281 (“We will only look beyond the plain language of a
statute at extrinsic materials to determine the congressional intent if: (1) the statute’s language is
ambiguous; (2) applying it according to its plain meaning would lead to an absurd result; or
(3) there is clear evidence of contrary legislative intent.”); see also CBS Inc. v. PrimeTime 24
Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (“When the import of the words Congress
has used is clear . . . [,] we need not resort to legislative history, and we certainly should not do
language of § 1166 does not give the State of Alabama a right of action to bring
Count Two – IGRA’s legislative history nonetheless refutes the State’s argument.
There is no indication in the legislative history that a state’s authority in the tribal
lands gaming arena might be garnered outside of the tribal-state compact. See S.
Rep. No. 100–446 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3075 (Under
IGRA, “unless a tribe affirmatively elects to have State laws and State jurisdiction
extend to tribal lands [through a tribal-state compact], the Congress will not
unilaterally impose or allow State jurisdiction on Indian lands for the regulation of
Indian gaming activities,” and “[i]n no instance, does [IGRA] contemplate the
extension of State jurisdiction or the application of State laws for any other
purpose.”). Hence, if it were necessary to look beyond the plain language of
§ 1166, the legislative history would foreclose the State’s alternative argument that
relies on the expressio unius rule.31
In sum, the State of Alabama has not demonstrated that § 1166 provides it
with a right of action to bring this civil enforcement action to enjoin allegedly
so to undermine the plain meaning of the statutory language.” (internal quotation marks and
It may be significant that Congress made the above-quoted observation; it may be more
significant that Congress chose not to express its content in IGRA. Certainly, there is no rule of
logic or construction that requires one to automatically ascribe left-out thoughts and phrases as
legally adopted legislative offspring. The opposite conclusion is more logical – the thought was,
in the end, rejected – an entirely different legislative intent. The logical inference is the thought
did not belong in the law. But legislative history is only cited here to show the weakness in the
expressio unius canon argument.
illegal tribal gaming occurring at the Poarch Band casinos. Congress has spoken
clearly on this issue, and courts cannot create a federal statutory cause of action
where one does not exist, “no matter how desirable that might be as a policy
matter,” because only Congress can make that decision. Alexander v. Sandoval,
532 U.S. 275, 286–87 (2001); cf. Gaming Corp., 88 F.3d at 547 (“Although courts
may be reluctant to conclude that Congress intended plaintiffs to be left without
recourse, the intent of Congress is what controls.” (internal citation omitted). The
bottom line is that even if Defendants are operating illegal class III gaming at the
Poarch Band casinos, § 1166 does not provide the State authority to prohibit such
gaming. Accordingly, Count Two is due to be dismissed for failure to state a claim
upon which relief can be granted
Based upon the foregoing, it is ORDERED that Defendants’ motion to
dismiss is GRANTED as follows:
The motion is GRANTED for lack of subject-matter jurisdiction as to
the state-law claim in Count One that pertains to the governance of gaming on
Indian lands on the basis that IGRA completely preempts it and, alternatively, the
motion is GRANTED as to this state-law claim against the individual Defendants
in their official capacities on the basis of tribal sovereign immunity;
The motion is GRANTED for failure to state a claim upon which
relief can be granted as to the state-law claim in Count One that pertains to the
governance of gaming allegedly occurring off Indian lands on the basis that the
claim is an impermissible collateral challenge to the Secretary of Interior’s
decades-old land-into-trust decisions;
The motion is GRANTED for lack of subject-matter jurisdiction as to
all claims against PCI Gaming Authority on the basis of tribal sovereign immunity;
While the federal-law claim in Count Two against the individual
Defendants in their official capacities survives the jurisdictional attack on the basis
of Ex parte Young, the motion is GRANTED for failure to state a claim upon
which relief can be granted on the basis that 18 U.S.C. § 1166 does not give the
State of Alabama authority to bring this civil enforcement action.
DONE this 10th day of April, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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