517 U.S. 44 (1996), argued 11 Oct. 1995, decided 27 Mar. 1996 by vote of 5 to 4; Rehnquist for the Court, Stevens, Souter, Ginsburg, and Breyer in dissent. In the 1980s several states rushed to raise revenues by authorizing casino gambling. Perhaps nowhere was the impact of the gambling fever greater than on the lands of Native Americans. By 1995 casino gambling generated more than $4 billion a year in business, with 200 tribes operating 126 casinos in 24 states. In the midst of this rush to gold, Congress in 1988 passed the Indian Gaming Regulatory Act, which permitted tribes to operate gambling casinos, required states to negotiate with tribes, and allowed tribes to file lawsuits in federal courts when they alleged the states failed to negotiate in good faith. The act was a response to a 1987 high court decision, California v. Cabazon Band of Mission Indians, which held that the states could not bar high‐payoff bingo games on reservations.
Under the act tribes were able to sponsor a wide variety of gambling activities, but only in states that permitted them to do so. The law directed the states and the tribes to negotiate in good faith and to devise “tribal‐state compacts” to regulate gambling. The response to the new law was at once more gambling and greater conflict between some tribes and the states, since many states took the position that they would allow on the tribal reservations only those games of chance, such as slot machines, approved for the state as whole.
Nowhere was the conflict greater than in Florida. That state's governor, Lawton Chiles, opposed casino gambling, doing so before and after a statewide vote rejected a proposal to establish casino gambling. Governor Chiles did agree that the Seminoles could offer card games and raffles on their reservations, as well as wagering on racing and jai alai, activities already approved by the state. When Chiles refused to negotiate with the Seminole tribe over casino gambling, the tribe took him into federal court, charging that he had failed to exercise good faith. The Court of Appeals for the Eleventh Circuit ultimately decided that Congress lacked the authority to force the states to negotiate with the tribes. In reaching this opinion, the court of appeals pointed to the Eleventh Amendment, which provided that a state could not be sued without its consent. Hence, what began as an issue involving the right of Native Americans to operate casinos became transformed into a major dispute over the nature of federalism and states rights.
In its appeal to the high court, Florida was joined by thirty‐one other states, all of whom feared that should the Indian Gaming Act stand, Congress would be able in other areas, such as the environment, business practices, health, and safety, to erode their sovereign authority. In arguing before the justices, counsel for Florida insisted that the gaming law directly commanded the states to do certain things in such a way that made them mere subdivisions of the national government.
The Seminole tribe of Florida and the United States government argued that Congress had full authority to pass the legislation under the power of the Indian Commerce Clause. So extensive was that authority that Congress, in this instance, could abrogate the historical immunity that states enjoyed from suit.
The Court upheld the Eleventh Circuit's position and gave proponents of states' rights a stunning victory. Speaking for the Court, Chief Justice Rehnquist said that the Eleventh Amendment restricted federal judicial power and that other constitutional powers allocated to Congress, such as the Indian Commerce Clause, cannot be used to circumvent the constitutional limitations placed on federal jurisdiction. Rehnquist's opinion was important, as well, because it cleared up more than twenty years of dispute about the Eleventh Amendment. One side of the Court had supported the view that Congress had power to enforce federal regulations by subjecting the states to suits in federal courts; the other held that the amendment barred such actions. At least in the case of gambling on Native American reservations, the states were clearly the victors.
The opinion drew a stiff constitutional rebuke from Justice David Souter, who took the unusual step of reading his dissenting opinion aloud to the full Court. Souter and three other justices insisted that Congress had always intended for the states to be subject to the jurisdiction of the federal courts and that, in this light, the Indian Gaming Act was entirely constitutional. “The court today holds for the first time since the founding of the republic,” Souter wrote, “that Congress has not authority to subject a state to the jurisdiction of a federal court at the behest of an individual asserting a federal right” (p. 138). Entry into the federal courts had historically been a way for less powerful groups to press their rights, something that was now being denied, according to the dissenters, to Native Americans.
The Court's actions made clear that the Rehnquist Court was determined to revisit some of the most enduring assumptions about the American federal system. That line of development was forecast in United States v. Lopez (1995), when the Court held that Congress lacked authority to ban possession of guns near schools. Even the lineup of the justices was the same in the two cases, both of which were decided by 5‐to‐4 votes.
Yet Florida Seminole had a paradoxical result. While it affirmed the right of the states to be free of suits by Native Americans under the Gaming Act, it may have actually made it easier for native tribes to open casinos. With the congressional act voided, all that the tribes now have to do is approach the Department of the Interior to seek authorization to open a casino.
— Kermit L. Hall
