The Honorable William G. Cambridge, Chief Judge, United States Distric t 1 Court for the District of Nebraska.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2975

___________ Santee Sioux Tribe of Nebraska, * a Federally Recognized Indian Tribe, * * Plaintiff-Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. State of Nebraska; E. Benjamin * Nelson, Governor of the * State of Nebraska, * * Defendants-Appellees. *

___________ Submitted: March 14, 1997 Filed: August 13, 1997

___________ Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.

Santee S ioux Tribe of Nebraska (Tribe) appeals the district court’s orde r 1 dismissing for lack of jurisdiction the Tribe’ s action against the State of NebraskaIn E x parte Young , 209 U.S. 123 (1908), the Supreme Court recognized tha t 2 suits may be brought in federal court against a state official in his official capacit y wh ere prospective injunctive relief is sought to end a continuing violation of federa l law. S ee In re SDDS, Inc. , 97 F.3d 1030, 1035 (8th Cir. 1996) (citing Fond du La c Band of Chippewa Indians v. Carlson , 68 F.3d 253, 255 (8th Cir. 1995)). -2- (State) and its governor, E. Benjamin Nelson, filed pursuant to the Indian Gamin g Regulatory Act (IGRA ), 25 U.S.C. §§ 2701-21 (1994). The district court determined the State had not consented to the Tribe’s suit and, relying on Seminole Tr ibe of Florida v. Florida , 116 S. Ct. 1114 (1996), sua spont e dismissed the Tribe’s action. The Tribe app eals, asserting the State waived its Eleventh Amendment immunity by enacting a statute referencing the IGRA, or alternatively, by filing an answer and counterclaim in this lawsuit. The Tribe further a rgues that Governor Nelson is subject to suit pursuant to the doctrine of Ex parte Young

. We affirm. 2

I.
The IGRA was enacted in 1988 for the purpose of providing a st atutory basis for the operation and regulation of Indian gaming. See 25 U.S.C. § 2702; Seminole Tribe , 116 U.S. at 1119. Under the IGRA, India n gaming is divided into three classes; class I (social games for prizes of minimal value or traditional forms of Indian gamin g pe rformed

in connection with tribal ceremonies or celebrations), class II (bingo an d other games of chance similar to bingo, and certain card games), and class III (all other forms of gaming that are not class I or cla ss II gaming). See 25 U.S.C. § 2703 (6)-(8). Section 2710 describes those situations where class III gaming is legal, and provides in part tha t such gaming must be “conducted in conformance with a Tribal-Stat e compact entered into by the Indian Tribe and the State” under the IGRA. See 2 5 U.S.C. § 2710(d)(1)(C). The IGRA further describes the man ner of negotiating TribalSta te compacts; any Indian tribe having jurisdiction over Indian lands where class III gam ing is being conducted, or is to be conducted, must request the state in which the-3-

la nds are located to enter into negotiations for the purpose of entering into a Tribal

State compact governing such class III gaming. See 25 U.S.C. § 2710(d)(3). Upo n receiving such a request, the state i s required to negotiate in good faith with the Indian tri be to enter into such a compact, and United States district courts have jurisdictio n
ov er any cause of action initiated by an Indian tribe arising from a state’s failure t o enter into negotiations or to conduct such negotiations in good faith. See id. ; 2 5 U.S.C. § 2710(d)(7)(A)(i).
In February 1996, the Tribe filed a comp laint in the United States District Court for the District of Nebr aska, alleging the State and Governor Nelson failed to conduct good faith negotiations with the Tribe for purposes of entering into a Tribal-Stat e compact for conducting cla ss III gaming on the Tribe’s reservation. The Tribe sought decla ratory relief and requested an order compelling the State to form a Tribal-Stat e compact w ithin sixty days. The State answered, urging that the suit was barred b y El eventh Amendment immunity; the State also filed a counterclaim, requesting a declarat ory judgment that the Tribe’s casino operations were being conducted i n viola tion of IGRA and seeking a permanent injunction enjoining the Tribe fro m operating its casino.

In Mar ch 1996, the Supreme Court decided Seminole Tribe , holding tha t Con gress lacked authority under the Indian Commerce Clause to abrogate the states’ sovereign immunity, and t

hat section 2710(d)(7) cannot grant federal jurisdiction over states that do not consent to suit. See Seminole Tribe , 116 S. Ct. at 1119. The Court further held the doctrine of Ex parte Young inapplicable to allow suit against Florida’s governor, thus finding the suit against the governor also barred by the Eleventh Amendment. Id. at 1132-33.
In April 1996, the district c ourt dismissed the Tribe’s action sua sponte, relying
on Semino le Tribe ; the court dismissed the State’s counterclaim as well. The cour t denied the Tribe’s motions for a new trial and to amend the complaint. The Tribe-4-

appeals, arguing that the State waived its immunity by enacting Neb. Rev. Stat. § 9- 1, 106 (Supp. 1996), entitled “Tribal-state compact governing gaming; Governor ; powers,” which states in relevant part:
(1) Upon request of an Indian tribe having jurisdiction over Indian lands in Nebraska, the Governor or his or her designated representative o r represe ntatives shall, pursuant to 25 U.S.C. 2710 of the federal India n Gaming Regulatory Act, negotiate with such Indian tribe in good faith for the purpose of enterin g into a tribal-state compact governing the conduct of Class III gaming as def

ined in the act. A compact which is negotiated pursu ant to this section shall be executed by the Governor withou t ratification by the Legislature.
* * * (3) S uch compact negotiations shall be conducted pursuant to th e provis ions of 25 U.S.C. 2710 of the federal Indian Gaming Regulator y Act. Alternatively, the Tribe suggests the State waived its immunity by filing a counterclaim
an d requesting declaratory and injunctive relief. Finally, the Tribe argues that th e State’s enactment o f section 9-1,106 subjects Governor Nelson to suit under Ex parte Young

.
The Stat e urges that section 9-1,106 did not waive Eleventh Amendmen t immunity as to either the State or Governor Nelson, and that an assistant attorne y general ma y not waive the State’s Eleventh Amendment immunity by answering a complaint in federal court and filing a counterclaim.

II.

Under the Eleventh Amendment to the United States Constitu tion, the “[j]udicialWhile the Nebraska Constitu tion provides that the “state may sue and be sued, 3 and the Legislature sh all provide by law in what manner and in what courts suits shall be brought,” Neb. Const. art. V, § 22, “the provision is not self-executing, it permits the stat e to lay its sovereignty aside and consent to be sued on such terms an d cond itions as the Legislature may prescribe.” See Hoiengs v. County of Adams , 516 N.W.2d 223, 234 (Neb. 1994). -5- 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.” U.S. Const. amend. XI. While not specifically set forth in the text, the Eleventh Amendment has been interpreted “t o extend to suits by all persons against a state in federal court.” Moad v. Arkansas State Police Dep’t , 111 F.3d 585, 586 (8th Cir. 1997) (internal quotations omitted). A state, however, may conse nt to suit in federal court. See Burk v. Beene , 948 F.2d 489, 493 (8th Cir. 1991).

Th is court reviews de novo the question of whether a state waives Elevent h Amendment immunity. See Thomas v. FAG Bearings Corp. , 50 F.3d 502, 504 (8th Cir. 1995). “The test for determining whether a State has waived its immunity from federalcourt jurisdiction is a stringent one.” Atascadero State Hosp. v. Scanlon , 473 U.S

. 234, 241 (1985). A State is “deemed to have waived its immunity only where stated by the most express language or by such overwhelming implication from th e text as will lea ve no room for any other reasonable construction.” Id. at 239-40 (interna l quotat ions omitted). Federalism interests “require that such a waiver be clear an d unequivoca l.” Burk , 948 F.2d at 493 (citing Port Auth. Trans-Hudson Corp. v

. Feeney , 495 U.S. 299, 305 (1990) ). A State’s general waiver of sovereign immunity is insufficient to waive Eleventh Amendment immunity, because to waive Elevent h Amendment immunity, the state must specify an intent to subject itself to federal court jurisdiction. See Atascadero , 473 U.S. at 241.

3In State ex rel. Stephan v. Finney , 836 P.2d 1169, 1185 (Kan. 1992), th e Kansas 4 Supreme Co urt determined that Kansas’s governor could negotiate with the tribes for a Tribal-State compact, but lacked authority to bind the State to the compact.
-6- III.

A.
We conclude neither the language of section 9-1,106, nor its purpose as reflected in its legislative history indicates the State of Nebraska’s consent to federal cour t jurisdiction

. The plain language of section 9-1,106 does not contain a clear an d unequivocal waiver of Eleventh Amendment immunity. Further, the legislative history
o f section 9-1,106 reflects that the legislature was concerned that the IGRA does not design ate which state official shall be responsible for negotiating the Tribal-Stat e compact, and was aware th at at least one other state’s court had concluded the state’s governor lacked authority t o negotiate on behalf of the state. Accordingly, section 9- 4 1,106 was introduced and passed for the purpose of assuring the governor of Nebraska the power to negotiate Tribal-State compacts on behalf of the State of Nebrask a without ratification by the Neb raska Legislature. See Introducer’s Statement of Intent
on L.B. 231, Neb. Unicameral, 93rd Leg., 1st Sess. (Feb. 22, 1993); Kenneth C

. Winston, Committee Counsel, Memo to Members of the General Affairs Committe e of the Nebraska Unicameral regarding L.B. 231 (Feb. 22, 1993); Committee Statement of the General Affairs Committee of the Nebraska Unicameral, L.B. 231, 93rd Leg. , 1st Sess. (Feb. 22, 1993); H earing on L.B. 231, Before Committee on General Affairs of the Nebraska Unicameral, 93rd Leg., 1st Sess. 82-85 (Feb. 22, 1993) (remarks of Kenneth Winston and John Adams).

Ros ebud Sioux Tribe v. Val-U Construction Co. , 50 F.3d 560 (8th Cir.), cert

. denied , 116 S. Ct. 78 (1995), cited by the Tribe is inapposite. In Rosebud , w e concluded that the Rosebud Tribe’s contractual agreement to decide disputes in-7-

acc ordance with arbitration rules, which themselves contained a consent to judgment upon a n arbitration award by a federal court, constituted a waiver of tribal sovereign immunity as to claims arising “under the contract.” Id. at 562- 63. In the instant action, by contrast, the Nebraska Legislature has merely specified that Nebraska’s governor sha ll conduct class III negotiations without ratification of the Legislature and that the negotiations are to be conducte d pursuant to IGRA. It cannot reasonably be said that, by referri ng to a federal statute that includes an unconstitutional attempt to abrogat e states’ Eleventh Amendment immunity, the Nebraska Legislature intended to waiv e Nebraska’s immunity.

B.

We fu rther conclude the Nebraska assistant attorney general’s conduct i n answering the complaint and filing a counterclaim does not constitute a waiver o f Neb raska’s Eleventh Amendment immunity. While it is true that a state may waiv e Eleventh Amendment immunity through its conduct, see Hankins v. Finnel , 964 F.2d 853, 856 (8th Cir.), ce rt. denied , 506 U.S. 1013 (1992), a state official may waive the state’s immunity only where specifically authorized to do so by that state’s constitution, statutes, or decisi ons. See Ford Motor Co. v. Department of Treasury , 323 U.S. 459, 467 (1945); Booth v. Maryland , 112 F.3d 139, 145 n.2 (4th Cir. 1997) ; Estate o f Porter ex rel . Nelson v. Illinois , 36 F.3d 684, 690-91 (7th Cir. 1994); Silver v

. Baggiano , 804 F.2d 1211, 1214 (11th Cir. 1986). The Tribe has failed to demonstrate th atwaiver of the State’s Eleventh Amendment immunity is within the authority o f Nebraska’s attorney general. See O’Connor v. Slaker , 22 F.2d 147, 152-53 (8th Cir. 1927), appeal dismissed , 278 U.S. 188 (1929).

We thus conclude t

he Tribe’s action against the State is barred by the Eleventh Amendment.-8- C.

We also conclude the Tribe’s action against Governor Nelson is barred by the Eleventh Amendment, as the amendment operates to bar suit against a state officia l where the state is the “‘ real, substantial party in interest.’” See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 101 (1984) (quoting Ford Motor Co. , 323 U.S. at 4 64)); Dover Elevator Co. v. Arkansas State Univ. , 64 F.3d 442, 447 (8th Cir

. 1995). Although the doctrine of Ex parte Young , allows suit against state officials in their official ca

pacity for prospective injunctive relief to prevent continuing violations of federal l aw, see Seminole Tribe , 116 S. Ct. at 1132, we must reject the Tribe’ s assertion that its suit against Governo r Nelson falls within this exception. In Seminole Tribe , the Supreme Court held the doctrine of Ex parte Young inapplicable to a sui t against the governor of Florida to enforce IGRA, recognizing that Congress ha d pre scribed a detailed remedial scheme for enforcing section 2710(d)(3), wit h significantly fewer remedies than those available under Ex parte Young , thus signaling Congress’s intent to limit relief to that available und er the statute. See Seminole Tribe , 116 S. Ct. at 1133.
We further reject the Tribe’s contention that the State’s enactment of section 9- 1,106 subjects Governor Nelson to liability under the doctrine of Ex parte Young

. While any failure of Nelson to comp ly with section 9-1,106 may amount to a violation of state la w, the doctrine of Ex parte Young operates to prevent only violations o f federal law. See Pennhurst , 465 U.S. at 106.

We thus conclude the Tribe’s suit against Governor Nelson is barred by th e Eleventh Amendment.

D.
Finally, given our disposition of this matter, we conclude the district court didI concur in the majority’s opinion regarding Governor Nelson’s immunity 5 from suit. See supra

at 8. -9- not abuse its discretion in denyi ng the Tribe’s motions for a new trial and to amend its complaint. See Harbor Ins. Co. v. Essman , 918 F.2d 734, 739 (8th Cir. 1990).

IV.
For the foregoing reasons, we affirm the judgment of the district court.
McMILLIAN, Circuit Judge, dissenting.
I respectfully dissent. Because I believe the State waived its sovereign immunity and consented to suit, I would reverse in part and affirm in pa rt the order of the district 5 court and remand the case for a new trial.

The Seminole Tribe decision did not abolish the well-established exception t o the Eleventh Amendment which allows federal courts to entertain suit against a state where t he state has waived its sovereign immunity and consented to suit in federa l court. See, e.g. , Atascadero State Hosp. v. Scanlon , 473 U.S. at 238, citing Clark v. Barnard , 108 U.S. 436, 447 (1883). A state may waive its immunity from suit i n federal court by express or implied language, or a state’s waiver of its sovereig n immunity ma y be inferred through its conduct. Hankins v. Finnel , 964 F.2d at 856

. However, “if [a waiver is] implied, it must appear ‘by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’” Id. , quoting Port Auth. Trans-Hudson Corp. v. Feeney , 495 U.S. at 305 (internal quotation omitted).See supraat 6. 6
-10- I. Waiver by Neb. Rev. Stat. § 9-1,106 I would hold that the State waived its immunity and consented to this type of suit by the le gislature’s enactment of Neb. Rev. Stat. § 9-1,106. Section 9-1,106(1),(3 ) incorpora tes into state law the provisions of the IGRA requiring states to negotiate in good fa ith tribal-state compacts for class III gaming and granting federal court s jurisdiction over claims against states by an Indian tribe. Because § 9-1,106 expressly incorporates the provisions of 25 U.S.C. § 2710, the State’s duty under the IGRA to negotiate tribal-state compacts, which Nebraska law delegates to the Governor or his
or her designated representative under § 9-1,106, cannot be separated from th e remedi al provisions establishing the federal district court’s jurisdiction over action s involving t hat duty. See Seminole Tribe , 116 S. Ct. at 1132 (the State’s duty t o negotiate imposed by § 2710(d)(3) does not stand alone; “Congress passe d § 2710(d)(3) in conjunction with the carefully crafted and intricate remedial scheme set forth in § 2710(d)(7)”). In fact, the legislative history of § 9-1,106, which is cited in the majority’s opinion, contains a statement by the legal counsel for the Committee on 6 General Affairs explaining that under the IGRA , “if a compact has not been negotiated during that time period [provided by the IGRA] then the tribe is allowed to bring a lawsuit against the state.” See Hearing on L.B. 231, Before Committee on Genera l Affairs of

the Nebraska Unicameral, 93rd Leg., 1st Sess. 82-85 (Feb. 22, 1993 ) (remark s of Kenneth C. Winston, Committee Counsel), reprinted in Appellee’ s Addendum at 6-7 . Despite this explanation, the Nebraska Legislature enacted § 9-06 and incorporated the IGRA’s provis ions allowing a tribe to bring suit against the State in fe deral district court. While § 9-1,106 does not contain an express waiver of th e State’s sovereign immunity, comp are Idaho Code § 67-429A (and S.L. 1993, ch. 367) (expressly consenting to certain litigation involving cla ss III gaming issues and waiving any E leventh Amendment immunity question), it also does not contain languag e disavowing waiver of sovereign immunity in its reference to the IGRA and the methods-11-

by which a tribe is allowed to bring suit against the State, see Hankins , 964 F.2d at 857 (although Missouri legislature expr essed its intent not to waive sovereign immunity by its enac tment of certain statutes, such disavowal of waiver was inapplicable wher e st atute involved in action failed to express such intent). The State recognized th e IGRA’s co ntemplation of suit by a tribe against a state and expressly incorporate d th ose provisions into § 9-1,106. I would hold that an implied waiver of the State’ s Eleventh Amendment immunity from suit “appear[s] by such overwh elming implication from the text [of § 9-1,106] as [to] leave no room for any other reasonabl e construction.” See Port Auth. Trans-Hudson Corp. v. Feeney , 495 U.S. at 305. The Supreme Court holding in Seminole Tribe does not change this result.

II. Waiver by Conduct

Alternative ly, I would hold that the State waived its immunity by making a general appearance before the d istrict court and filing counterclaims against the Tribe. See Hankins , 964 F.2d

at 856. In Hankins , this court found that the State of Missouri had waived its immunity to suit by filing an action to attach the proceeds of a judgment obt ained by an inmate against the State pursuant to 42 U.S.C. § 1983 because “th e State acted to the advantage of and fo r the benefit of itself.” Id. at 858. In the present case, like in Hankins , the State acted to the advant age of and for the benefit of itself by filin g a counterclaim against the Tribe and seeking declaratory and injunctive relief

. Furthermore, the State’s argument that Nebraska’s attorney general lacked the authority to waive the State’s Eleventh Amend ment immunity by his actions “overlooks the fact that the [a]ttorney [g]eneral acted under the authority of [9-1,106]. See id. at 858-59 (Missouri’s attorney general acted under authority of state statute which did not include language disavowing waiver of sovereign immunity). I would therefore hold that such action constitutes a waiver of the State’s Eleventh Amendment immunity. Because I bel ieve the State effectuated a waiver and consented to suit, I would reverse in part and affirm in part th e order of the district court and remand the case for-12-

a new trial on the issue of the State’s liability under the IGRA.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.