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http://laws.findlaw.com/5th/9850575cv0.html |
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-50575
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Ysleta Del Sur Pueblo,
Plaintiff-Appellee,
v.
David Raney; Robert L. Nichols;
Anne S. Wynne; Eddie Sanchez; and Rudy Lugo,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
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January 10, 2000
Before KING, Chief Judge, REYNALDO G. GARZA, and EMILIO M. GARZA, CircuitJudges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
Ysleta Del Sur Pueblo (the "Tribe" or the "Pueblo"), a federally recognized IndianTribe, filed suit in federal district court, seeking to eject David M. Randy, Robert L. Nichols,Anne S. Wynne, Eddie Sanchez, and Rudy Lugo, present commissioners of the TexasTransportation Commission, and two employees of the Texas Department of Transportation, intheir individual capacities ("Appellants"), from a piece of real property (the "Property")which currently serves as a highway maintenance facility in El Paso County, Texas. The tribealso requested that the Appellants remove their equipment and "all hazardous andenvironmentally damaging material" from the Property. The Pueblo alleges that theAppellants are trespassing in violation of federal law.
The Pueblo is an indigenous Native American Tribe that was originally situated inIsleta [anglicized spelling], New Mexico, where from time to time it received populationaccretions from the Pueblos of Abu, Quari, and Grand Quivara. (1) In 1680, during the PuebloRevolt, a portion of the Pueblo migrated south with retreating Spaniards and occupied campsin the present day El Paso vicinity. In 1682, Spanish Governor Otermin attempted toreconquer New Mexico, attacking the Isleta Pueblo, reducing it to his control and relocating itto the El Paso area with the Pueblo members who had fled New Mexico in 1680. In 1682, thePueblo was situated at its present site in what is now El Paso County, Texas.
In 1751, the Governor of New Mexico granted land, including the Property, to thePueblo. Neither its legal title nor aboriginal right to the Property was ever terminated by theKingdom of Spain, the Republic of Mexico, or the Republic of Texas, the successivegovernments claiming sovereignty over the area including the Property prior to the UnitedStates. (2) In 1845, Texas was admitted to the Union, sparking the Mexican-American War,which ending in 1848 with the signing of the Treaty of Guadalupe Hidalgo. Article VIII of thetreaty guaranteed the protection of the title held by Mexican citizens to land in the UnitedStates, and members of the Tribe were, at the time the treaty was signed, Mexican citizens.
The Pueblo contends that between 1846 and 1850, the federal governmentacknowledged the Tribe's interest in its lands. Nonetheless, the State of Texas (the "State"),evidently claiming or believing it held title, relinquished the Tribe's land, including theProperty, to a municipality. The Property was at some later time conveyed back to the State,and the State is the current title holder of record. The Pueblo argues that the State's actionviolated the Trade and Intercourse Act, referred to as the Indian Nonintercourse Act (the"NIA"). (3) It claims that because of the violation of the NIA, the State's relinquishment of theProperty and all subsequent conveyances are null and void, making Appellants' continuedoccupation of the Property illegal.
Appellants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In the motion, they asserted that the suit is barred by the Eleventh Amendment to the UnitedStates Constitution. (4) In an order entered January 26, 1999, the district court denied themotion after concluding that "Congress clearly intended to abrogate the States' EleventhAmendment immunity when it enacted the Nonintercourse Act and Congress has the power todo so under the Indian Commerce Clause." (5)
ANALYSIS
I.
This court has jurisdiction, under the collateral order doctrine, to entertain an appeal ofthe denial of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss based upon a claimof Eleventh Amendment sovereign immunity. See Puerto Rico Aqueduct and Sewer Auth. v.Metcalf & Eddy, Inc. , 506 U.S. 139, 141 (1993). We review "Eleventh Amendmentimmunity determinations, like other questions of subject matter jurisdiction, de novo as aquestion of law." United States v. Texas Tech Univ. , 171 F.3d 279, 288 (5th Cir. 1999).
II.
We hold that the State of Texas enjoys immunity, under the Eleventh Amendment,from a suit instituted by an Indian Pueblo alleging a cause of action arising under the NIA, 25U.S.C. § 177. The Eleventh Amendment constitutes an important limitation on federalauthority to review allegedly illegal or unconstitutional actions of state governments and theirofficers. And yet, our federal system requires that we protect state autonomy while promotingstate compliance with federal law. Consequently, several methods of circumventing theEleventh Amendment's prohibition against suing states in federal court have arisen. Under theEleventh Amendment, a state enjoys immunity from a suit instituted in a federal court by anIndian tribe, (6) unless the state expressly waives its sovereign immunity, (7) its immunity isproperly abrogated by Congress, (8) or the suit "falls within the exception . . . recognized forcertain suits seeking declaratory and injunctive relief against state officers in their individualcapacities." (9) The Eleventh Amendment's applicability to this case turns on whether this is asuit against the State, and if so, whether Congress validly abrogated state sovereign immunityin the NIA or whether the Pueblo may proceed under the doctrine of Ex parte Young . (10) Wehold that this is a suit against the State, that Congress did not abrogate state sovereignimmunity in the NIA, and that the Pueblo may not proceed under the Ex parte Young doctrine.
III.
First, before we analyze the issue of congressional abrogation of state immunity, wemust determine whether the instant suit is one against the State. Often, suits stating a cause ofaction under a particular statute name both the state and state officials, in their individualcapacities. Under those circumstances, a plaintiff mounts an attack against the state byarguing that the statute at issue abrogates sovereign immunity. If the court finds validabrogation, both prospective and retroactive relief are available against the state. If however,the particular statute has not properly abrogated state sovereign immunity, the plaintiff maynevertheless challenge the action of the state officials under the Ex parte Young doctrine, forprospective relief. See, e.g., Seminole Tribe v. Florida , 517 U.S. 44, 47 (1996)(unsuccessfully arguing both abrogation against the state and the doctrine of Ex parte Young against a state official).
In the instant case, the Pueblo has not expressly named the State of Texas or one of itsagencies as a defendant, but rather only certain state officials. In Pennhurst State School &Hospital v. Halderman , 465 U.S. 89 (1984), the Supreme Court examined whether a suitagainst state officials, alleging a violation of state law and seeking prospective relief, could bemaintained under the doctrine of Ex parte Young . In deciding that it could not, the Courtdiscussed whether the suit was actually against the State:
There may be a question, however, whether a particular suit in fact is a suit against the State . . . .
When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself. Although prior decisions of this Court have not been entirely consistent on this issue, certain principles are well established. The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest. Thus, [t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. . .
The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state officials's action is not one against the State . This was the holding of Ex parte Young . . . .
Id . at 101-102 (footnote, citations, and internal quotation marks omitted and emphasis added). The Court explained in a footnote: "The general rule is that a suit is against the sovereign ifthe judgment sought would expend itself on the public treasury or domain, or interfere withthe public administration, or if the effect of the judgment would be to restrain the Governmentfrom acting, or to compel it to act." Id . at 101 n.11.
For purposes of addressing congressional abrogation of immunity, we recognize thatthe State is the true party of interest in this case, although it has not been expressly named as adefendant. The State is the real party of interest because the State holds record title to theProperty, utilizes the Property as a maintenance facility, and the Pueblo is attempting topersuade us to declare that title null and void. For purposes of deciding whether the Ex parteYoung doctrine is applicable in the instant case, we acknowledge that the state officials arenamed in their individual capacities. See, e.g., Fitzpatrick v. Bitzer , 427 U.S. 445 (1976)(letting stand a lower court decision granting prospective relief and addressing abrogation forpurposes of retrospective relief in a case naming only state officials as defendants). As theCourt stated in Idaho v. Coeur d'Alene , 521 U.S. 261, 270 (1997), "The real interests servedby the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions andpleadings."
IV.
Having determined that this is a suit against the State, we now address the question ofwhether Congress validly abrogated state sovereign immunity in the NIA. We hold thatCongress has not. To validly abrogate state sovereign immunity, Congress must"'unequivocally express . . .its intent to abrogate the immunity,' . . . and second, . . . [it mustact] 'pursuant to a valid exercise of power.'" Florida Prepaid Postsecondary Ed. Expense Bd.v. College Sav. Bank , 119 S.Ct. 2199, 2205 (quoting Seminole Tribe , 517 U.S. at 55).
Appellants argue that, under Seminole Tribe , Congress' intent to abrogate statesovereign immunity must be unmistakably clear in the statute. The NIA, they argue is silentas to abrogation. (11) The Pueblo relies primarily on County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1984) (" Oneida II "), in arguing that the NIA provides a clear statement ofCongress' intent to abrogate state sovereign immunity. First, the Pueblo asserts that federallaw applies to transactions in Indian land. The NIA, it argues, invalidates unauthorizedtransactions and imposes sanctions on violators. The NIA, it maintains, was intended to applyto both individuals and the states, and Congress' original intent in passing the NIA was toprovide a federal forum for the adjudication of Indian concerns. The Pueblo concludes,therefore, that the NIA contemplates state liability in federal courts and is a clear statement ofCongress' intent to abrogate states' sovereign immunity.
Appellants respond that the Tribe's reliance on Oneida II is misplaced. Oneida II , theyargue, dealt with whether the NIA provides tribes a private cause of action, not with whetherthe statute waives sovereign immunity. The State of New York, they point out, was not evena party to the suit.
Contrary to the Tribe's assertion, Oneida II does not imply a private cause of action forIndians under the NIA. Indeed, the Supreme Court specifically declined to reach that issue. (12) The text of the statute does appear, however, to apply to the states in its invalidation of any unauthorized transaction. Even assuming an implied private cause of action, however, theTribe makes a fatal logical leap by concluding that a congressional intent to abrogate statesovereign immunity flows from the fact that an implied private cause of action exists under astatute applicable to states and private individuals. The leap is especially large considering thehistorical relationship between the United States and the Indians. (13) The statute could easily bedetermined to provide tribes an implied private cause of action against any party other than astate while reserving for the United States a cause of action as fiduciary against any party,including a state. Seminole Tribe provides that:
Congress' intent to abrogate the States' immunity from suit must be obvious from a clear legislative statement . . . [A] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment . . .Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.
517 U.S. at 55-56 (internal citations and quotation marks omitted). The statute, on its face,does not provide an unmistakably clear intent to abrogate state sovereign immunity. Nor doesthe Tribe point to any statement by Congress in the 200 years since the NIA's initial passageindicating an intent to abrogate state sovereign immunity. Congress certainly could haveamended the statute following the passage of the Eleventh Amendment to include a clearstatement of abrogation if it had so desired, but it never did.
V.
In Seminole Tribe , the Supreme Court overruled its holding in Pennsylvania v. UnionGas Co. , 491 U.S. 1 (1989), that Congress can rely on its Commerce Clause power toabrogate state sovereign immunity. In doing so, the Court stated, "The Eleventh Amendmentrestricts the judicial power under Article III, and Article I cannot be used to circumvent theconstitutional limitations placed upon federal jurisdiction." Seminole Tribe , 517 U.S. at 72-73. Any argument that this statement was dicta and that the holding applied only to theCommerce Clause power was put to rest in Florida Prepaid . There, the Supreme Courtstated, " Seminole Tribe makes clear that Congress may not abrogate state sovereign immunitypursuant to its Article I powers . . . ." Florida Prepaid , 119 S.Ct. at 2205. The Tribe'sargument, therefore, that abrogation is justified by Congress' War Powers is misplaced.
Equally misplaced is the Tribe's reliance on Congress' power in Section 5 of the 14thAmendment. The NIA was originally passed in 1790; the second NIA was passed in 1793,and the language of that act was carried forward in several future acts concluding with an actin 1834. See Oneida I , 414 U.S. at 668 n.4. The Eleventh Amendment was ratified in 1798. In any event, the alleged violation was a violation of the 1834 NIA. The FourteenthAmendment was not ratified until 1868.
It is nonsensical to rely on the Fourteenth Amendment to justify abrogation under astatute passed before its ratification. The Pueblo cites no authority for the proposition thatCongress, in passing the NIA, could abrogate state sovereign immunity under a power not yetgranted to it.
VI.
The district court did not address whether this suit may proceed under the Ex parteYoung doctrine. However, as we now find that the district court erred with respect toabrogation, it becomes necessary to decide if the Pueblo may proceed with its suit against thestate officials under Ex parte Young . Generally speaking, the Eleventh Amendment allowssuits against state officers, however, whether a state officer may be sued depends, largely, onthe claim presented and the nature of the relief sought.
Appellants argue that this is an action to quiet title, citing Idaho v. Coeur d'Alene , 521U.S. 261 (1997), for the proposition that quiet title actions against states cannot be adjudicatedin federal courts. In Coeur d'Alene , a tribe sought to quiet title to the submerged land andbeds of Lake Coeur d'Alene and various surrounding waterways. See id . at 254. A pluralityof the Court held that the Ex parte Young doctrine was inapplicable to the case. Id . The Tribeasserts that the State's title is null and void and that it has superior title, seeking to eject thestate officials from the property.
Moreover, Appellants argue, the Tribe's assertion that the relief it seeks is merelyprospective has been rejected in John G. And Marie Stella Kenedy Memorial Foundation v.Mauro , 21 F.3d 667 (5th Cir. 1994). In that case, the Foundation asserted ownership overcertain land in the possession of the state of Texas. (14) Appellants cite this case for theproposition that an action to put a plaintiff in possession of real property held by the state is aquiet title action forbidden by the Eleventh Amendment, and that ordering the state torelinquish property was the equivalent of recovering damages against the state. This courtheld that the plaintiff's complaint was an action to quiet title, stating that a federal court "doesnot have the power to adjudicate the State's interest in property without the State's consent." Id.
Appellants distinguish the instant case from Florida Dep't of State v. Treasure Salvors ,458 U.S. 670 (1982). There, the Supreme Court held that the state had no colorable claim totitle in the disputed personal property. Here, Appellants urge, as was the case in Mauro , theState has a colorable claim to title.
The Pueblo relies on Coeur d'Alene , arguing that in that case the Supreme Courtreaffirmed the doctrine of Ex parte Young . The Tribe maintains that the Supreme Courtdeclined to apply the Ex parte Young doctrine in Coeur d'Alene because of the particular reliefsought -- a quiet title action seeking to divest the state of any regulatory power over thedisputed property -- and the type of real property at issue, submerged lands. According to thePueblo, Justice O'Connor's concurrence makes clear that in cases involving ordinary land, adistinction can be made between possession and title. Here, as in United States v. Lee , 106U.S. 196 (1882), and Tindal v. Wesley , 167 U.S. 204 (1897), the Tribe argues, regular land isinvolved, and a distinction can be made between possession and title. That is, according to theTribe, Coeur d'Alene vitiates Mauro .
Appellants respond that Texas has special interests equal to those of Idaho in Coeurd'Alene . The land at issue here is located in a highly developed area, used for highwayconstruction, maintenance and operation, and has many improvement that help facilitate thepurposes which it serves. According to the Appellants, the State will be unable to properlycarry out its sovereign responsibilities with regards to state roadways if it loses possession ofthe property. Appellants note that this case should not be viewed any differently than a casewhere plaintiffs seek to take possession of land upon which a state highway has beenconstructed.
In Coeur d'Alene , Justice O'Connor's concurrence sets forth the controlling test withregard to Ex parte Young as whether "a plaintiff alleges an ongoing violation of federal law,and [whether] the relief sought is prospective rather than retrospective." Id . at 294. JusticeO'Connor observed, however, two important distinctions between this case and a normal Exparte Young action: this was an action to quiet title, and the tribe sought to divest the state ofall regulatory power.
Justice O'Connor distinguished United States v. Lee and Tindal v. Wesley on thegrounds that, in those cases, possession could be distinguished from title. "A court could findthat the officials had no right to remain in possession, thus conveying all the incidents ofownership to the plaintiff, without formally divesting the state of its title." Id . at 290. JusticeO'Connor argued that in the case before the Court, the state would lose all regulatory powerover the property. (15)
There are two main problems with the Tribe's arguments. First, the Tribe has notsufficiently distinguished its own case from a quiet title action, and second, Coeur d'Alene didnot vitiate Mauro . The Tribe asserts in its First Amended Complaint that "The Pueblo retainslegal title to all lands described in the Relinquishment Acts, as well as the right to possessthose lands over which it exercised aboriginal possession on December 29, 1845." By seekingto eject Appellants, the Tribe is asking this court to determine that the State has no title to theProperty because title rests in the Pueblo. Additionally, the Tribes's argument that the Statewill retain sufficient regulatory control over the Property rings hollow. A judgment for theTribe will significantly alter the State's regulatory control over the Property because theProperty will be considered part of an Indian reservation under federal control. Moreover, theState here, unlike Florida in Treasure Salvors , has a colorable claim to title: the Tribe was notfederally recognized until the 1900's, so there is a question whether it would have evenretained legal title to land held by it when Texas became a state.
Justice O'Connor's concurring opinion in Coeur d'Alene deals specifically withsubmerged lands and avoids the topic of other pieces of real property. Also, there is norationale for denial of Ex parte Young treatment in that case that represents the views of amajority of the Court. The Tribe therefore incorrectly relies on a statement in JusticeO'Connor's concurrence to declare Mauro , a case involving real property in another context,vitiated. Justice O'Connor set other contexts aside when she stated, "Whatever distinction canbe drawn between possession and ownership of real property in other contexts, . . . ." Coeurd'Alene , 521 U.S. at 291. Mauro controls and the Tribe's attempt to fit this case within thedoctrine of Ex parte Young must fail.
CONCLUSION
We hold that the State of Texas enjoys immunity, under the Eleventh Amendment,from a suit instituted by an Indian pueblo alleging a cause of action arising under the NIA. Accordingly, we find that the district court erred in denying the Appellants' Rule 12(b)(6)motion to dismiss, and we therefore REVERSE and RENDER, dismissing this case on thegrounds of state sovereign immunity.
1. 1 In summarizing the factual background of this case, we have relied, in large part,upon the Tribe's First Amended Complaint, filed November 25, 1997. The facts alleged inthe First Amended Complaint, as they pertain to the historical origins of the Pueblo andrelationship to the Property, remain undisputed.
2. 2 According to the Complaint, the Republic of Texas claimed land including theProperty but never exercised government control over it.
3. 3 Congress enacted the NIA in 1790. The Act was amended and repassed in 1793,1796, 1799, 1802, and 1834. It is now codified at 25 U.S.C. § 177 and provides:
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.
4. 4 The Eleventh Amendment provides that "[t]he Judicial power of the United Statesshall not be construed to extend to any suit in law or equity, commenced or prosecuted againstone of the United States by Citizens of another States, or by Citizens or Subjects of anyForeign State." U.S. Const., Amend. XI. In addition, in Hans v. Louisiana , 134 U.S.
1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court broadened the States' EleventhAmendment immunity in federal courts and interpreted the Amendment to allow Statesimmunity from federal suits by their own citizens.
5. 5 "The Congress shall have the Power . . . To regulate Commerce with foreignNations, and among the several States, and with Indian Tribes; . . . ." U.S. Const. Art. I, §8, cl. 3.
6. 6 Eleventh Amendment immunity is effective against Indian tribes and theirmembers. See Idaho v. Coeur d'Alene Tribe , 521 U.S. 261, 268-269 (1997).
7. 7 See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd. , 119S.Ct. 2219, 2226 (1999) (holding that a state cannot impliedly waive sovereign immunity). College Savings had not been decided at the time the parties submitted their briefs; however,neither argued that the state impliedly waived its sovereign immunity. It is clear in this casethat the State has not expressly waived its sovereign immunity.
8. 8 See Seminole Tribe of Florida v. Florida , 517 U.S. 44, 55 (1996).
9. 9 Coeur d'Alene , 521 U.S. at 269 (discussing exceptions first recognized in Ex parteYoung , 209 U.S. 123 (1908)).
10. 10 Ex parte Young , 209 U.S. 123 (1908) (holding that the Eleventh Amendment doesnot bar suits against state officers to enjoin violations of federal law).
11. 11 Indeed, Appellants argue that the NIA is not applicable to the states at all,presumably even in a suit by the United States. The 1790 version of the NIA provided that"no sale of lands made by any . . . tribe . . . shall be valid to any person or persons, or to anystate . . . ."
Subsequent versions deleted the reference to person, persons, and states. The currentversion of the act provides that "[n]o purchase, . . .shall be of any validity in law or equity . .. ." Appellants assert that this change in language evinces Congress' intent to exclude thestates from application of the statute altogether. Appellants' argument is without merit. See Oneida Indian Nation v. County of Oneida , 414 U.S. 661, 667 (1974) ( Oneida I ) (citing thecurrent NIA for the proposition that the invalidity of the sale of Indian lands absent federalconsent to, inter alia, states "has remained the policy of the United States to this day").
12. 12 Oneida II dealt with the 1893 version of the NIA. In that case, the Supreme Courtremarked:
[Both lower courts found] that the Oneidas had the right to sue on two theories: first, a common-law right of action for unlawful possession; and second, an implied statutory cause of action under the Nonintercourse Act of 1793. We need not reach thelatter question as we think the Indians' common-law right to sue is firmly established.
47 U.S. at 233.
13. 13 See, e.g., Montana v. United States, 450 U.S. 544 (1981) (adjudicating a casebrought by the United States in its own right and as a fiduciary for an Indian tribe).
14. 14 It appears from the opinion that the land, which was sometimes covered by theLaguna Madre, may have been characterized as submerged lands.
15. 15 Justice O'Connor states:
"Whatever distinction can be drawn between possession and ownership of real property in other contexts, it is not possible to make such a distinction for submerged lands .. . In my view, because a ruling in the Tribe's favor, in practical effect, would beindistinguishable from an order granting the Tribe title to submerged lands, they Young exception to the Eleventh Amendment's bar is not properly invoked here." Id. at 291.