*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-50656

Summary Calendar

_____________________

YSLETA DEL SUR PUEBLO,

Plaintiff-Appellant,

versus

STATE OF TEXAS,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. EP-99-CV-98-P

_______________________________________________________

January 6, 2000

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Ysleta Del Sur Pueblo (“Pueblo”), an Indian Tribe, appeals the dismissal of its

claims pursuant to F.R.C.P 12(b)(1). Because the district court erroneously granted

dismissal with prejudice, we modify the dismissal to render it without prejudice and

affirm as modified.

A state may be subject to suit in federal court under two circumstances. One is

waiver of immunity and the other is congressional abrogation of 11th Amendment

immunity. Florida Prepaid Postsecondary Education Expense Board v. College Savings
2

Bank, (Florida Prepaid I) 119 S. Ct. 2199, 2204 - 5 (1999). It is not contended that the

State of Texas expressly consented to this lawsuit, and implied waiver under Parden v.

Terminal Railway of Alabama State Docks Dept., 377 U.S. 184, 84 S. Ct. 1207 (1964)

has been overruled. College Savings Bank v. Florida Prepaid Postsecondary Education

Expense Board, (Florida Prepaid II) 119 S. Ct. 2219, 2228 (1999). Because there is no

viable argument for express or implied waiver, Pueblo must establish abrogation under

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996).

Two tests must be satisfied for congressional abrogation of 11th Amendment

immunity. The first is that Congress must unequivocally express its intent to abrogate

State immunity. Seminole Tribe, 116 S. Ct. at 1114. The second is that the abrogation

must be pursuant to a valid exercise of constitutional power. Id.

Pueblo argues that the Indian Non-Intercourse Act (“INA”) abrogates State

immunity. The act as amended in 1834 and now codified at 25 U.S.C. § 177, provides:

No purchase, grant, lease, or other conveyance of lands, or 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 the 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.

Neither this language nor the language of the prior versions meets the “unequivocally

expressed intent” test. Even if a less stringent test were applied, this statute does not

address state immunity at all and provides no basis to find congressional intent to

abrogate immunity. 
3

Furthermore, the INA was not passed under any constitutional power permitting

abrogation of 11th Amendment immunity. Article I powers are not a valid source of

congressional abrogation authority. Seminole Tribe, 116 S. Ct. 1132; Florida Prepaid I,

119 S. Ct. at 2205. Neither the Commerce Clause, the Indian Commerce Clause nor the

War Powers Clause provides abrogation authority. Congress did not pass the INA

pursuant to the 14th Amendment because the last amendment of the INA occurred before

adoption of the 14th Amendment. Even if such a claim were credible, Congress must

identify conduct transgressing the 14th Amendment’s substantive provisions, and must

tailor its legislative scheme to remedying or preventing such conduct. Florida Prepaid I,

119 S. Ct. at 2207. 

Pueblo alternatively contends that the self-executing remedy of the takings clause

of the 5th Amendment provides independent abrogation by virtue of incorporation into

the 14th Amendment. The 14th Amendment only provides Congress with power to

enforce the Amendment through legislation, which provides the basis for congressional

abrogation. Remedies against states under the 14th Amendment are created by

legislation, not by other constitutional amendments. 

This court has rejected 5th Amendment takings claims on 11th Amendment

immunity grounds in two prior cases. John G. and Marie Stella Kenedy Memorial

Foundation v. Mauro, 21 F.3d 667, 674 (5th Cir. 1993); McMurtray v. Holladay, 11 F.3d

499, 505 (5th Cir. 1993). First Evangelical Lutheran Church v. County of Los Angeles,

107 S. Ct. 2378, 2386 (1987), was a state court action brought against a county in which

the 11th Amendment was completely inapplicable, therefore it has no precedental effect

on our application of state immunity in federal court.

The district court erroneously dismissed with prejudice for lack of jurisdiction.
4

F.R.C.P. 41(b). Alden v. Maine, 119 S. Ct. 2240 (1999) may bar a state court action;

However this question was never briefed, argued or decided in the district court and we

will not consider matters raised for the first time on appeal. The only issue decided by

the district court is that the 11th Amendment bars this claim against the State of Texas in

federal court, which has no effect on claims Pueblo may bring in state court. 

Accordingly, the judgment of the district court is modified to be dismissal without

prejudice.

AFFIRMED AS MODIFIED.