BLATCHFORD, COMMISSIONER, DEPARTMENT OF COMMUNITY AND REGIONAL AFFAIRS OF
ALASKA v. NATIVE VILLAGE OF NOATAK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued February 19, 1991
Decided June 24, 1991
Respondents, Alaska Native villages, brought suit against petitioner, a state official, seeking an order requiring payment to them of money allegedly owed under a state revenue-sharing statute. The District Court dismissed the suit as violating the Eleventh Amendment. The Court of Appeals reversed, first on the ground that 28 U.S.C. 1362 constituted a congressional abrogation of Eleventh Amendment immunity, and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian tribes.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 788.
Rex E. Lee argued the cause for petitioner. On the briefs were Charles E. Cole, Attorney General of Alaska, Douglas B. Bailey, former Attorney General, and Gary I. Amendola, Douglas K. Mertz, Jack B. McGee, and William F. Cummings, Assistant Attorneys General. [501 U.S. 775, 777]
Lawrence A. Aschenbrenner argued the cause for respondents. With him on the brief for respondent Native Village of Noatak were Robert T. Anderson, William E. Caldwell, Carol H. Daniel, and Ralph W. Johnson. Michael J. Walleri and Alicemary L. Closuit filed a brief for respondent Circle Village. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Donald J. Hanaway, Attorney General of Wisconsin, and Charles D. Hoornstra, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, Duane Woodard of Colorado, Clarine Nardi Riddle of Connecticut, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Jim Jones of Idaho, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike C. Moore of Mississippi, Marc Racicot of Montana, Robert M. Spire of Nebraska, Brian McKay of Nevada, Hal Stratton of New Mexico, Nicholas J. Spaeth of North Dakota, Robert Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Kenneth O. Eikenberry of Washington, and Joseph B. Meyer of Wyoming; and for the Council of State Governments et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Clifton S. Elgarten, and Luther Zeigler.
Briefs of amici curiae urging affirmance were filed for the Native Village of Tanana et al. by Lloyd Benton Miller, Eric Smith, and David S. Case; and for the Metlakatla Indian Community by Charles A. Hobbs and Christopher T. Stearns.
Arlinda F. Locklear, Howard Bichler, Bertram Hirsch, and Milton Rosenberg filed a brief for the Miccosukee Tribe of Indians of Florida et al. as amici curiae.
JUSTICE SCALIA delivered the opinion of the Court.
We are asked once again to mark the boundaries of state sovereign immunity from suit in federal court. The Court of Appeals for the Ninth Circuit found that immunity did not extend to suits by Indian tribes, and Alaska seeks review of that determination.
The legislature repealed the revenue-sharing statute in 1985, see 1985 Alaska Sess. Laws, ch. 90, and replaced it with one that matched the program as expanded by the commissioner. In the same year, respondents filed this suit, challenging the commissioner's action on federal equal protection grounds, and seeking an order requiring the commissioner to pay them the money that they would have received had the commissioner not enlarged the program. The District Court initially granted an injunction to preserve sufficient funds for the 1986 fiscal year, but then dismissed the suit as violating the Eleventh Amendment. The Court of Appeals for the Ninth Circuit reversed, first on the ground that 28 U.S.C. 1362 constituted a congressional abrogation of Eleventh Amendment immunity, Native Village of Noatak v. Hoffman, 872 F.2d 1384 (1989) (later withdrawn), and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian tribes. 896 F.2d 1157 (1989). We granted certiorari sub nom. Hoffman v. Native Village of Noatak, 498 U.S. 807 (1990). [501 U.S. 775, 779]
Respondents do not ask us to revisit Hans; instead they argue that the traditional principles of immunity presumed by Hans do not apply to suits by sovereigns like Indian tribes. And even if they did, respondents contend, the States have consented to suits by tribes in the "plan of the convention." We consider these points in turn.
In arguing that sovereign immunity does not restrict suit by Indian tribes, respondents submit, first, that sovereign [501 U.S. 775, 780] immunity only restricts suits by individuals against sovereigns, not by sovereigns against sovereigns, and as we have recognized, Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991), Indian tribes are sovereigns. Respondents' conception of the nature of sovereign immunity finds some support both in the apparent understanding of the Founders and in dicta of our own opinions. 1 But whatever the reach or meaning of these early statements, the notion that traditional principles of sovereign immunity only restrict suits by individuals was rejected in Principality of Monaco v. Mississippi, 292 U.S. 313 (1934). It is with that opinion, and the conception of sovereignty that it embraces, that we must begin.
In Monaco, the Principality had come into possession of Mississippi state bonds, and had sued Mississippi in federal court to recover amounts due under those bonds. Mississippi defended on grounds of the Eleventh Amendment, among others. Had respondents' understanding of sovereign immunity been the Court's, the Eleventh Amendment would not have limited the otherwise clear grant of jurisdiction [501 U.S. 775, 781] in Article III to hear controversies "between a State . . . and foreign States." But we held that it did.
We pursue the same inquiry in the present case, and thus confront respondents' second contention: that the States waived their immunity against Indian tribes when they adopted the Constitution. Just as in Monaco with regard to foreign sovereigns, so also here with regard to Indian tribes, there is no compelling evidence that the Founders thought such a surrender inherent in the constitutional compact. 2 [501 U.S. 775, 782] We have hitherto found a surrender of immunity against particular litigants in only two contexts: suits by sister States, South Dakota v. North Carolina, 192 U.S. 286, 318 (1904), and suits by the United States, United States v. Texas, 143 U.S. 621 (1892). We have not found a surrender by the United States to suit by the States, Kansas v. United States, 204 U.S. 331, 342 (1907); see Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 79-80 (1988), nor, again, a surrender by the States to suit by foreign sovereigns, Monaco, supra.
Respondents argue that Indian tribes are more like States than foreign sovereigns. That is true in some respects: They are, for example, domestic. The relevant difference between States and foreign sovereigns, however, is not domesticity, but the role of each in the convention within which the surrender of immunity was for the former, but not for the latter, implicit. What makes the States' surrender of immunity from suit by sister States plausible is the mutuality of that concession. There is no such mutuality with either foreign sovereigns or Indian tribes. We have repeatedly held that Indian tribes enjoy immunity against suits by States, Potawatomi Tribe, supra, at 509, as it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. But if the convention could not surrender the tribes' immunity for the benefit of the States, we do not believe that it surrendered the States' immunity for the benefit of the tribes.
Section 1362 provides as follows:
Moe, however, found something more in the title's "other purposes" - an implication that "a tribe's access to federal court to litigate [federal-question cases] would be at least in some respects as broad as that of the United States suing as the tribe's trustee," 425 U.S., at 473 (emphasis added). The "respect" at issue in Moe was access to federal court for the purpose of obtaining injunctive relief from state taxation. The Tax Injunction Act, 28 U.S.C. 1341, denied such access to persons other than the United States; we held that 1362 revoked that denial as to Indian tribes. Moe did not purport to be saying that 1362 equated tribal access with the United States' access generally, but only "at least in some respects," 425 U.S., at 473 , or "in certain respects," id., at 474. Respondents now urge us, in effect, to eliminate this limitation utterly - for it is impossible to imagine any more extreme replication of the United States' ability to sue than replication even to the point of allowing unconsented suit against state sovereigns. This is a vast expansion upon Moe. Section 1341, which Moe held 1362 to eliminate in its application to tribal suits, was merely a limitation that Congress itself had created - commiting [committing] state tax-injunction suits [501 U.S. 775, 785] to state courts as a matter of comity. Absent that statute, state taxes could constitutionally be enjoined. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 , n. 10 (1989). 3 The obstacle to suit in the present case, by contrast, is a creation not of Congress but of the Constitution. A willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter, especially when limitation to "certain respects" has explicitly been announced.
Moreover, as we shall discuss in Part III-B, our cases require Congress' exercise of the power to abrogate state sovereign immunity, where it exists, to be exercised with unmistakeable clarity. To avoid that difficulty, respondents assert that 1362 represents not an abrogation of the States' sovereign immunity, but rather a delegation to tribes of the Federal Government's exemption from state sovereign immunity. We doubt, to begin with, that that sovereign exemption can be delegated - even if one limits the permissibility of delegation (as respondents propose) to persons on whose behalf the United States itself might sue. The consent, "inherent in the convention," to suit by the United States - at the instance and under the control of responsible federal officers - is not consent to suit by anyone whom the United States might select; and even consent to suit by the United States for a particular person's benefit is not consent to suit by that person himself.
But in any event, assuming that delegation of exemption from state sovereign immunity is theoretically possible, there is no reason to believe that Congress ever contemplated such [501 U.S. 775, 786] a strange notion. Even if our decision in Moe could be regarded as in any way related to sovereign immunity, see n. 3, supra, it could nevertheless not be regarded as in any way related to congressional "delegation." The opinion does not mention that word, and contains not the slightest suggestion of such an analysis. To say that " 1362 . . . suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf," 425 U.S., at 474 , does not remotely imply delegation - only equivalence of treatment. The delegation theory is entirely a creature of respondents' own invention.
Respondents' argument, however, is not that 1362 is a "clear statement" under the standard of Dellmuth, but rather that it was a sufficiently clear statement under the standard of Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), the existing authority for "abrogation" at the time of 1362's enactment in 1966. In Parden, we found a sufficiently clear intent to avoid state immunity in a statute that subjected to liability "every" common carrier in interstate commerce, where the State, after the statute's enactment, chose to become a carrier in interstate commerce. Id., at 187-188. Similarly, respondents argue, a statute that grants jurisdiction to district courts to hear "all civil actions, brought by any Indian tribe" should constitute a sufficiently clear expression of intent to abrogate immunity. Dellmuth is not to the contrary, respondents maintain, since the statute there was enacted in the mid-1970's, long after the rule of Parden had been drawn into question. Dellmuth, supra, at 231.
We shall assume for the sake of argument (though we by no means accept) that Congress must be presumed to have had as relatively obscure a decision as Parden in mind as a backdrop to all its legislation. But even if Congress were aware of Parden's minimal clarity requirement, nothing in Parden could lead Congress to presume that that requirement applied to the abrogation of state immunity. Parden itself neither mentioned nor was premised upon abrogation. Its theory was that, by entering a field of economic activity that is federally regulated, the State impliedly "consent[s]" to be [501 U.S. 775, 788] bound by that regulation and to be subject to suit in federal court on the same terms as other regulated parties, thus "waiv[ing]" its Eleventh Amendment immunity. 377 U.S., at 186 . Not until 1976 (10 years after the passage of 1362) did we first acknowledge a congressional power to abrogate state immunity - under 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Thus, Parden would have given Congress no reason to believe it could abrogate state sovereign immunity and gives us no reason to believe that Congress intended abrogation by a means so subtle as 1362. At the time 1362 was enacted, abrogation would have been regarded as such a novel (not to say questionable) course that a general "arising under" statute like 1362 would not conceivably have been thought to imply it. We conclude that neither under the current standard of Dellmuth nor under any standard in effect at the time of Parden was 1362 an abrogation of state sovereign immunity. 5
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
[ Footnote 2 ] The only evidence alluded to by respondents is a statement by President Washington to Chief Cornplanter of the Seneca Nation:
[ Footnote 3 ] Such injunction suits can only be brought against state officers in their official capacity and not against the State in its own name. Missouri v. Fiske, 290 U.S. 18, 27 (1933). Respondents argue that since the plaintiffs in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), named the State of Montana as a defendant, as well as individual officers, the decision in that case held that 1362 eliminated not only the statutory bar of 1341 but sovereign immunity as well. We think not. Since Montana had not objected in this Court on sovereign immunity grounds, its immunity had been waived and was not at issue.
[ Footnote 4 ] In asserting that 1362's grant of jurisdiction to "all civil actions" suffices to abrogate a State's defense of immunity, post, at 795-796, the dissent [501 U.S. 775, 787] has just repeated the mistake of the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), see id., at 434-450 (Iredell, J., dissenting), the case that occasioned the Eleventh Amendment itself. The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct. A State may waive its Eleventh Amendment immunity, and if it does, 1362 certainly would grant a district court jurisdiction to hear the claim. The dissent's view returns us, like Sisyphus, to the beginning of this 200-year struggle.
[ Footnote 5 ] Because we find that 1362 does not enable tribes to overcome Alaska's sovereign immunity, we express no view on whether these respondents qualify as "tribes" within the meaning of that statute.
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, dissenting.
The Court today holds that our Eleventh Amendment precludes Native American tribes from seeking to vindicate in [501 U.S. 775, 789] federal court rights they regard as secured to them by the United States Constitution. Because the Court resolves this case through reliance on a doctrine I cannot accept, and because I believe its construction of the pertinent jurisdictional statute to be otherwise flawed, I dissent.
The substantial historical analysis that supports this view already has been exhaustively detailed, see id., at 258-302 (Brennan, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 497 (1987) (Brennan, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (STEVENS, J., concurring); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 140 -159 (1984) (STEVENS, J., joined by Brennan, MARSHALL, and BLACKMUN, JJ., dissenting), and I shall not repeat it here. It bears emphasis, however, that the Court need not have compounded the error of Hans v. Louisiana, 134 U.S. 1 [501 U.S. 775, 790] (1890), and its progeny by extending the doctrine of state sovereign immunity to bar suits by tribal entities, which are neither "Citizens of another State," nor "Citizens or Subjects of any Foreign State."
Even if I were to accept the proposition that the clear-statement rule at times might serve as a mechanism for discerning congressional intent, I surely would reject its application here. Despite the Court's attempt to give it a constitutional cast, the clear-statement rule, at bottom, is a tool of statutory construction like any other. So it must be, for the Judiciary has no power to redraw legislative enactments; where Congress has the authority to regulate a sphere of activity, we simply must do our best to determine whether it has done so in any particular instance. The majority's rule is one method for accomplishing that task. It is premised on the perception that Congress does not casually alter the "balance of power" between the Federal Government and the States. Id., at 242. Because federal intrusion into state authority is the unusual case, and because courts are to use caution in determining when their own jurisdiction [501 U.S. 775, 791] has been expanded, id., at 243, this Court has erected the clear-statement rule in order to be certain that abrogation is Congress' plan.
Whatever the validity of that determination may be generally, it cannot extend to matters concerning federal regulation of Native American affairs; in that sphere of governmental operations, the "balance of power" always has weighed heavily against the States and in favor of the Federal Government. Indeed, "[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari, 417 U.S. 535, 551 -552 (1974).
Illustrative of this principle are our cases holding that the law of the State is generally inapplicable to Native American affairs, absent the consent of Congress. See, e. g., Worcester v. Georgia, 6 Pet. 515 (1832). Chief Justice Marshall explained for the Court in Worcester that a federally recognized tribe
Thus, in this area, the pertinent "balance of power" is between the Federal Government and the tribes, with the States playing only a subsidiary role. Because spheres of activity otherwise susceptible to state regulation are, "according to the settled principles of our Constitution, . . . committed exclusively to the government of the Union," Worcester v. Georgia, 6 Pet., at 561, where Native American affairs are concerned, the presumptions underlying the clear-statement rule, and thus the rule itself, have no place in interpreting statutes pertaining to the tribes.
Employing the traditional tools of statutory interpretation, I conclude that Congress intended, through 1362, to authorize constitutional claims for damages by tribes against the States. Section 1362 provides:
Prior to 1966, the Indian tribes were largely dependent upon the United States Government to enforce their rights against state encroachment. See, e. g., United States v. Minnesota, 270 U.S. 181 (1926). This arrangement derived from the historic trust relationship between the tribes and the United States. See F. Cohen, Handbook of Federal Indian Law 308 (1982 ed.). In seeking judicial protection of tribal interests, the Federal Government, of course, was unrestrained by the doctrine of state sovereign immunity. United States v. Minnesota, 270 U.S., at 195 , citing United States v. Texas, 143 U.S. 621 (1892).
In 1966, Congress enacted 28 U.S.C. 1362 as part of a larger national policy of "self-determination" for the Native American peoples. See M. Price & R. Clinton, Law and the American Indian 86-91 (2d ed. 1983). Consistent with that policy, "Congress contemplated that 1362 would be used particularly in situations in which the United States suffered from a conflict of interest or was otherwise unable or unwilling to bring suit as trustee for the Indians." Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 560 , n. 10 (1983). In other words, Congress sought to eliminate the tribes' dependence upon the United States for the vindication of federal rights in the federal courts.
In light of that legislative purpose, we held in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), that the Tax Injunction Act, 28 U.S.C. 1341, does not bar an action to enjoin the collection of state taxes brought by a tribe pursuant to 1362, although it precludes such a suit by a private litigant. Construing 1362, we identified a congressional intent that "a tribe's access to federal court to litigate a matter arising `under the Constitution, laws, or treaties' would be at least in some respects as broad as that of the United States suing as the tribe's trustee." 425 U.S., at 473 . Because the Federal Government could have brought [501 U.S. 775, 794] such a suit on the tribes' behalf, see Heckman v. United States, 224 U.S. 413 (1912), we held that the tribes were similarly empowered by 1362.
I agree with respondents that the litigation authority bestowed on the tribes through 1362 also includes the right to bring federal claims against the States for damages. The legislative history of the statute reveals Congress' intention that the tribes bring litigation "involving issues identical to those" that would have been raised by the United States acting as trustee for the tribes. H. R. Rep. No. 2040, 89th Cong., 2d Sess., 2 (1966) (House Report). There is no reason to believe that this authority would be limited to prospective relief in the broad range of suits brought against the States.
Fundamentally, the vindication of Native American rights has been the institutional responsibility of the Federal Government since the Republic's founding. See, e. g., Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Section 1362 represents a frank acknowledgment by the Government that it often lacks the resources or the political will adequately to fulfill this responsibility. Given this admission, we should not lightly restrict the authority granted the tribes to defend their own interests. Rather, the most reasoned interpretation of 1362 is as a congressional authorization to bring those suits that are necessary to vindicate fully the federal rights of the tribes. It hardly requires explication that monetary remedies are often necessary to afford such relief. Providing "the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys," House Report, at 2-3, necessarily entails access to monetary redress from the States where federal rights have been violated.
In resisting this conclusion, the majority asserts that, because the Tax Injunction Act is merely a congressional enactment while the doctrine of sovereign immunity is a constitutional [501 U.S. 775, 795] one, a "willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter." Ante, at 785. But the premise does not lead to the conclusion. Congress, through appropriate legislation, may abrogate state sovereign immunity, just as it may repeal or amend its own prior enactments. Moreover, the Tax Injunction Act, like the sovereign immunity doctrine, is rooted in historical notions of federalism and comity. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 103 (1981), and cases cited therein. In light of these parallels, I find the expansive congressional purpose the Court identified in Moe to provide substantial support for the proposition that 1362 was intended to convey federal jurisdiction over "all civil actions," 1362 (emphasis added), brought by recognized tribes that the Government could have brought on their behalf.
[ Footnote * ] The Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." [501 U.S. 775, 797]