JILL PRYOR, Circuit Judge:
Alabama sued under state and federal law to enjoin gaming at casinos owned by the Poarch Band of Creek Indians (the "Tribe") and located on Indian lands within the state's borders.
Alabama claims that the gaming at the casinos constitutes a public nuisance under Alabama law and should be enjoined. It puts forth two novel theories to explain why its state law applies to the Tribe's casinos. First, Alabama asserts that the Secretary of the Interior (the "Secretary") lacked authority to take land into trust for the Tribe; therefore, the Tribe's casinos are not located on Indian lands, and Alabama may regulate the gaming there. Second, Alabama contends that by incorporating state laws governing gambling into federal law, 18 U.S.C. § 1166 creates a right of action for a state to sue in federal court to enforce its laws on Indian lands. The district court rejected these arguments and dismissed the action on the grounds that the defendants were entitled to tribal immunity on nearly all of Alabama's claims and Alabama failed to state a claim for relief. After careful consideration of the briefs and the record, and with the benefit of oral argument, we affirm the district court's judgment in favor of the defendants.
Congress passed the Indian Gaming Regulatory Act ("IGRA"), 18 U.S.C.
IGRA regulates gaming that occurs on Indian lands, which include "any lands title to which is [] held in trust by the United States for the benefit of any Indian tribe ... and over which an Indian tribe exercises governmental power." 25 U.S.C. § 2703(4)(B).
As for gaming on Indian lands, IGRA provides "a comprehensive approach to the controversial subject of regulating tribal gaming, [and strikes] a careful balance among federal, state, and tribal interests." Florida v. Seminole Tribe of Fla. (Seminole Tribe II), 181 F.3d 1237, 1247 (11th Cir.1999).
Under IGRA, the extent to which a tribe may engage in class II or class III gaming depends on how the state where the Indian lands are located has chosen to regulate such games in the state as a whole.
IGRA expressly provides both tribes and states with limited express rights of action to sue in federal court with respect to tribal-state compacts. If a state fails to negotiate a tribal-state compact in good faith, a tribe may bring a civil action against the state in federal court. Id. § 2710(d)(7)(A)(i). But IGRA limits the remedies available to the tribe in such an action. The tribe may not obtain broad injunctive relief; the ultimate remedy available is that the Secretary may set forth the terms under which the tribe may engage in class III gaming on Indian lands within the state. Id. § 2710(d)(7)(B)(iv), (vii). IGRA also expressly provides states with a cause of action to sue to enjoin "class III gaming activity located on Indian lands" that is "conducted in violation of any Tribal-State compact." Id. § 2710(d)(7)(A)(ii). No remedy other than an injunction is provided. See id.
IGRA authorizes the National Indian Gaming Commission (the "NIGC") to regulate gaming on Indian lands. The NIGC is tasked with "monitor[ing] class II gaming conducted on Indian lands on a continuing basis" and is authorized to "inspect and examine" the premises where class II gaming occurs.
In addition to this civil and regulatory scheme governing gaming on Indian lands, IGRA includes three provisions codified in the criminal code, only one of which is relevant here.
The Tribe owns three casinos located within the state of Alabama, all of which are situated on lands held in trust by the United States for the benefit of the Tribe.
Under IGRA, the Tribe may operate bingo games but not slot machines at the casinos. Although the Alabama Constitution generally prohibits bingo gaming, Ala. Const. art. IV, § 65, nonprofit entities and private clubs are permitted to operate bingo games for prizes or money in some towns and counties for charitable, educational, or other lawful purposes. See Ala. Const. amends. 386-87, 413, 440, 506, 508, 542, 549-50, 565, 569, 599, 612, 674, 692, 732, 743-44. Because some bingo gaming is allowed under Alabama law and the NIGC Chairperson approved the Tribe's ordinance to participate in class II gaming, the Tribe may operate bingo games at its casinos. The Tribe may not, however, operate slot machines at its casinos
Alabama originally sued PCI as well as thirteen individuals (the "Individual Defendants")
The defendants moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the motion, dismissing the amended complaint on the following grounds: (1) lack of subject matter jurisdiction as to the state law public nuisance claim because IGRA completely preempts it;
We are called upon here to review the district court's determinations that (1) PCI was entitled to tribal sovereign immunity on all claims; (2) the Individual Defendants were entitled to tribal sovereign immunity as to Alabama's state law claim but not its claim under IGRA; and (3) Alabama failed to state a claim for relief. We review each of these rulings de novo. See Seminole Tribe II, 181 F.3d at 1240-41.
We have an obligation to make sure we have jurisdiction to hear this action, which requires us to first consider whether the defendants enjoy tribal sovereign immunity from Alabama's claims. See id. at 1240-41 n. 4; Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th Cir.2001). We conclude that PCI is entitled to tribal sovereign immunity on all claims against it, and the Individual Defendants are entitled to tribal sovereign immunity on Alabama's state law claim, but not its claim under IGRA.
"Indian tribes are `domestic dependent nations' that exercise inherent sovereign authority over their members and territories." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831)). Indian tribes therefore possess "`the common-law immunity from suit traditionally enjoyed by sovereign powers.'" Seminole Tribe II, 181 F.3d at 1241 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). A suit against a tribe is "barred unless the tribe clearly waived its immunity or Congress expressly abrogated that immunity by authorizing the suit." Id. Although the Supreme Court has expressed doubts about "the wisdom of" tribal immunity, the Court nonetheless has recognized that "the doctrine of tribal immunity is settled law and controls" unless and until Congress decides to limit tribal immunity. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756-58, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); see also Bay Mills, 134 S.Ct. at 2037 ("[I]t is fundamentally Congress's job, not ours, to determine whether or how to limit tribal immunity."). Here, the Tribe has not waived its immunity and Congress has not expressly abrogated it. The question we face is whether PCI and the Individual Defendants also enjoy tribal immunity.
Alabama argues that PCI does not share in the Tribe's immunity because PCI is a business entity separate from the Tribe that engages in commercial, not governing, activities. We conclude that PCI shares in the Tribe's immunity because it operates as an arm of the Tribe.
First, the Supreme Court has not "drawn a distinction between governmental and commercial activities of a tribe" when deciding whether there is tribal immunity from suit. Kiowa Tribe, 523 U.S. at 754-55, 118 S.Ct. 1700. Second, we agree with our sister circuits that have
We now turn to whether the Individual Defendants, individuals sued in their official capacity, enjoy immunity from Alabama's IGRA claim. We hold that they do not. Because Alabama alleges that the Individual Defendants are committing ongoing violations of IGRA, a federal law, and seeks declaratory and injunctive relief to stop the violations, the officials are not entitled to immunity.
In Ex parte Young, the Supreme Court recognized an exception to sovereign immunity in lawsuits against state officials for prospective declaratory or injunctive relief to stop ongoing violations of federal law. 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under the legal fiction established in Ex Parte Young, when a state official violates federal law, he is stripped of his official or representative character and no longer immune from suit. Id. at 159-60, 28 S.Ct. 441. "An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction," such that the state officer is not immune from suit. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997).
We previously have extended the Ex parte Young doctrine to tribal officials. Although tribal officials are generally entitled to immunity for acts taken in their official capacity and within the scope of their authority, "they are subject to suit under the doctrine of Ex parte Young when they act beyond their authority" by violating a federal statute. Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians (Tamiami III), 177 F.3d 1212, 1225 (11th Cir.1999). Because Alabama alleges that the Individual Defendants are engaged in ongoing conduct that violates federal law, the Individual Defendants are not entitled to immunity.
In Seminole Tribe I, the tribe sued the governor of Florida in his official capacity, as well as the state of Florida, seeking injunctive relief after the governor refused to negotiate a tribal-state compact governing class III gaming. Id. at 51-52, 116 S.Ct. 1114. The Supreme Court held that the Eleventh Amendment barred the suit against Florida and that the governor also enjoyed immunity. The Ex parte Young doctrine did not apply to the tribe's claim against the governor for failing to negotiate a compact in good faith because "Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right." Id. at 72, 74, 116 S.Ct. 1114. Under this detailed scheme, a tribe has only a "modest" remedy when a state fails to negotiate a compact in good faith:
Id. at 74-75, 116 S.Ct. 1114 (construing 25 U.S.C. § 2710(d)(7)). The Supreme Court explained that applying the Ex parte Young doctrine — which would permit a tribe to sue a state official for broad injunctive relief to compel negotiations — would be inconsistent with and undermine the limited remedy IGRA sets forth. Id. at 75, 116 S.Ct. 1114 ("[I]t is difficult to see why an Indian tribe would suffer through the intricate scheme of § 2710(d)(7) when more complete and more immediate relief would be available under Ex parte Young.").
The Supreme Court did not address the argument that the Individual Defendants raise here: whether the Ex parte Young doctrine applies when a state sues a tribal official under 18 U.S.C. § 1166 seeking to enjoin class III gaming. Reviewing this issue of first impression, we hold that the Ex parte Young doctrine applies to a claim under § 1166. In Seminole Tribe I, the Supreme Court recognized an exception to Ex parte Young that applies when a federal statute contains a detailed remedial scheme. Id. at 74-75, 116 S.Ct. 1114; see also Vann v. Kempthorne, 534 F.3d 741, 755 (D.C.Cir.2008) (explaining that the Seminole Tribe I exception applies only "if we can discern an intent to displace Ex parte Young suits through the establishment of a more limited remedial regime"). As described in more detail in Section V, infra, in § 1166 Congress created no remedy
We now address whether tribal immunity bars Alabama's state law nuisance claim brought against the Individual Defendants in their official capacity. First we consider whether the Individual Defendants enjoy immunity from Alabama's state law claim. We then turn to Alabama's argument that the Individual Defendants waived their immunity from the state law claim when they removed the case to federal court.
Federal courts have long recognized that state officials are immune from state law claims brought against them in their official capacity because the Ex parte Young doctrine does not reach such claims. See Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1305 n. 15 (11th Cir.2011). The Supreme Court has explained that the rationale for the Ex parte Young doctrine "rests on the need to promote the vindication of federal rights," but in a case alleging that a state official has violated state law, this federal interest "disappears." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105-06, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). State officials are immune from suit in federal court for claims arising under state law because "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law." Id. at 106, 104 S.Ct. 900.
The immunity tribal officials enjoy from state law claims brought in federal court is narrower than the immunity of state officials from such claims, however. Specifically, tribal officials may be subject to suit in federal court for violations of state law under the fiction of Ex parte Young when their conduct occurs outside of Indian lands. See Bay Mills, 134 S.Ct. at 2034-35. In Bay Mills, the Supreme Court held that a tribe enjoyed immunity from suit by a state to enjoin alleged illegal gaming occurring at a casino that was not on Indian lands. However, the state had other remedies and could sue "tribal officials ... (rather than the Tribe itself) seeking an injunction for, say, gambling without a license [under state law]." Id. at 2035 (emphasis added). This is because "a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory"; when not on Indian lands, members of a tribe, including tribal officials, "are subject to any generally applicable state law." Id. at 2034-35. And tribal officials are not immune from a state law claim seeking to enjoin gaming because "analogizing to Ex parte Young, tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct" under state law that occurs off Indian lands. Id. at 2035 (internal citation omitted).
Alabama acknowledges that the Individual Defendants enjoy immunity from its state law claim if the casinos are located on Indian lands. While conceding that the Secretary took the lands where the casinos are located into trust for the Tribe, Alabama argues that under the Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), the Tribe's casinos are not located on Indian lands because the Secretary lacked authority to take land into trust on behalf of the Tribe under
In Carcieri, the Secretary decided to take a parcel of land into trust for the Narragansett Indian tribe. Rhode Island appealed the decision to the Interior Board of Indian Appeals, which upheld the Secretary's decision. Rhode Island then sought review of the agency action in federal court under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. The Supreme Court was presented with the question of whether IRA authorized the Secretary to take lands into trust on behalf of the Narragansett tribe, which had not been federally recognized when IRA was enacted in 1934. As described above, IRA authorized the Secretary to take lands into trust "for the purpose of providing land for Indians," defining Indians as "persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." 25 U.S.C. §§ 465, 479. Because "the term `now under federal jurisdiction' in § 479 unambiguously refer[red] to those tribes that were under the federal jurisdiction of the United States when [] IRA was enacted in 1934," the Supreme Court held the Secretary lacked authority to take land into trust for a tribe that was not under federal jurisdiction in 1934. 555 U.S. at 395-96, 129 S.Ct. 1058.
But the Supreme Court's decision in Carcieri holding that the Secretary lacked authority to take land into trust for the Narragansett tribe in a lawsuit against the Secretary raising a timely APA claim does not mean that Alabama may collaterally attack the Secretary's authority to take lands into trust for the Tribe in this case. Unlike Rhode Island in Carcieri, Alabama has not brought an APA claim against the Secretary. Because Carcieri involved a timely challenge under the APA, the Supreme Court did not address whether the Secretary's authority to take land into trust may be reviewed outside an APA action.
The proper vehicle for Alabama to challenge the Secretary's decisions to take land into trust for the Tribe is an APA claim. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___, 132 S.Ct. 2199, 2208, 183 L.Ed.2d 211 (2012) (characterizing a challenge to the Secretary's land-into-trust decision as a "garden-variety APA claim"). We hold that Alabama cannot raise in this lawsuit a collateral challenge to the Secretary's authority to take the lands at issue into trust.
We find persuasive the opinion of the Ninth Circuit sitting en banc, which recently held that California could not raise a collateral attack — that is, make a challenge outside an APA claim — to the Secretary's authority to take lands into trust for an Indian tribe. Big Lagoon Rancheria v. California, 789 F.3d 947 (9th Cir.2015) (en banc). In Big Lagoon, a tribe sued California contending that the state had failed to negotiate in good faith a tribal-state compact governing class III gaming. Id. at 952. California argued, based on Carcieri, that it had no obligation to negotiate a compact because the tribe was not under federal jurisdiction as of 1934; thus, the tribe's casinos were not located on Indian lands. Id. The Ninth Circuit rejected California's reliance on Carcieri, which did not "address whether the [Secretary's] entrustment
Perhaps tacitly recognizing that we can review the Secretary's authority to take lands into trust only under the APA, Alabama argues the district court should have permitted it to amend its complaint to add the Secretary as a party and assert an APA claim. Even assuming, arguendo, that Alabama properly sought leave from the district court to amend its complaint to add an APA claim against the Secretary,
A six-year general statute of limitations applies to APA claims brought against the United States; the statute begins to run when the agency issues the final action that gives rise to the claim. See 28 U.S.C. § 2401(a) ("[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."); U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1280 (11th Cir.2007). Because the Secretary accepted the lands at issue into trust for the Tribe in 1984, 1992, and 1995, the statute of limitations to challenge those decisions had run by 1991, 1999, and 2002, respectively.
Alabama attempts to skirt the time bar by invoking an exception to the APA's statute of limitations for as-applied challenges. We have allowed an untimely challenge to a regulation on which an agency relies in taking final agency action on the ground that the regulation was outside the agency's statutory authority. See Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1472-73 (11th Cir. 1997) (citing NLRB Union v. Fed. Labor Relations Auth., 834 F.2d 191, 194-97 (D.C.Cir.1987)). But we are unpersuaded that the exception applies in this case.
The exception gives a party ultimately affected by a rule "an opportunity to question [the rule's] validity" when the party could not have brought a timely challenge. NLRB Union, 834 F.2d at 196 (internal quotation marks omitted). Alabama does not argue it was unaware that the Secretary was taking land into trust for the Tribe; indeed, record evidence confirms that Alabama was given notice when the Secretary took the lands into trust. Because Alabama could have brought a timely APA challenge, we will not carve out an exception to the six-year statute of limitations. See Big Lagoon Rancheria, 789 F.3d at 954 n. 6 (rejecting, based on evidence showing that California had previously acknowledged that the Secretary had taken the land at issue into trust, the argument that the state should be permitted to raise an untimely challenge to the Secretary's land-into-trust decision).
We are in no position, given the procedural posture of this case, to disturb the Secretary's long-ago decisions to take the lands in question into trust — decisions which Alabama could have but chose not to challenge at the time. As the district court found, the deeds to the lands on
Alabama argues in the alternative that the Individual Defendants waived their immunity from the state law claim by removing the case to federal court. Alabama's argument rests on the assumption that the Individual Defendants enjoy immunity from the state law claim in federal court but not in state court. The sole case on which Alabama relies addresses state officials' immunity from state law claims in state court, not tribal officials' immunity from state law claims in state court. See Ala. Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008), abrogated in part by Ex parte Moulton, 116 So.3d 1119 (Ala.2013). State law cannot limit the Individual Defendants' immunity because "tribal immunity is a matter of federal law and is not subject to diminution by the States." Bay Mills, 134 S.Ct. at 2031 (internal quotation marks omitted); see also Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206 (11th Cir.2012) (explaining that a tribe's sovereign immunity "is not the same thing as a state's Eleventh Amendment immunity" because tribes are more akin to foreign sovereigns). Because the premise of Alabama's argument — that the Individual Defendants were not immune from the state law claim in state court — does not hold up, Alabama's waiver argument fails.
In summary, PCI is entitled to tribal sovereign immunity as to all of Alabama's claims; thus, the district court properly dismissed all claims against PCI. The Individual Defendants are entitled to tribal sovereign immunity on Alabama's state law claim but not its federal law claim under IGRA.
Because tribal sovereign immunity does not bar Alabama from bringing a federal claim against Individual Defendants under IGRA to enjoin alleged illegal class III gaming activities at the casinos, we now consider the Individual Defendants' argument that Alabama failed to state a claim for relief on the ground that 18 U.S.C. § 1166 provides Alabama with no right of action. Alabama argues that § 1166 gives states a right of action to bring federal claims against tribal officials who violate state gambling laws.
The Supreme Court has suggested in dicta that a state cannot sue under § 1166: "[I]f a tribe opens a casino on Indian lands before negotiating a compact, the surrounding State cannot sue; only the Federal Government can enforce the law." Bay Mills, 134 S.Ct. at 2034 n. 6 (citing 18 U.S.C. § 1166(d)). Similarly, in dicta in Seminole Tribe II, we expressed "some doubt about whether [§ 1166] would permit a state to bring an action in federal court seeking state-law injunctive relief against a tribe for violating state gambling laws." 181 F.3d at 1246 n. 13. With this question of first impression now squarely before us, we hold that § 1166 does not provide states with either an express or implied right of action to sue tribal officials to enjoin unlawful gaming on Indian lands.
It is well established that the mere "fact that a federal statute has been violated and some person harmed does not
We begin with the question whether § 1166(a) provides a state with an express cause of action to sue tribal officials. To determine whether a statute provides an express right of action, we look for an "express provision granting [] a federal cause of action to enforce the provisions of that act." Smith v. Russellville Prod. Credit Ass'n, 777 F.2d 1544, 1547 (11th Cir.1985).
Under § 1166(a), with respect to class III gaming conducted without a tribal-state compact, "all State laws pertaining to the licensing, regulation, or prohibition of gambling ... shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State." 18 U.S.C. § 1166(a). Although § 1166(a) contemplates that for purposes of federal law, state laws pertaining to class III gaming shall apply in Indian country as they do in the rest of the state, § 1166 lacks any language explicitly creating a federal cause of action for a state to sue to enforce its laws.
We turn now to the more difficult question, whether § 1166 creates an implied right of action for a state to sue tribal officials to enjoin violations of state gaming laws occurring on Indian lands. After considering our law governing implied rights of action, which requires clear evidence of congressional intent; our prior decision in Seminole II; and the statutory text, structure, and legislative history of IGRA, we hold that § 1166 does not create an implied right of action for states to sue tribal officials to enforce state gambling laws.
In determining whether a statute gives rise to an implied right of action, "`[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.'" Love v. Delta Air Lines, 310 F.3d 1347, 1352 (11th Cir.2002) (quoting Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)). In the absence of congressional intent to create an implied right of action, "`a cause of action does not exist[,] and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.'" Id. (quoting
To determine whether Congress intended to create an implied right of action, "[f]irst and foremost, we look to the statutory text for `rights-creating' language." Love, 310 F.3d at 1352 (quoting Sandoval, 532 U.S. at 288, 121 S.Ct. 1511); see also Armstrong v. Exceptional Child Ctr., Inc., ___ U.S. ___, 135 S.Ct. 1378, 1387, 191 L.Ed.2d 471 (2015) (explaining that there was no implied right of action when a statute "lack[ed] the sort of rights-creating language needed to imply a private right of action"). Rights-creating language "explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case." Cannon, 441 U.S. at 690 n. 13, 99 S.Ct. 1946. Rights-creating language does "more than create a generalized duty for the public benefit, states more than declarative language, and focuses more than just `on the person regulated.'" Shotz v. City of Plantation, 344 F.3d 1161, 1167 (11th Cir.2003) (quoting Sandoval, 532 U.S. at 289, 121 S.Ct. 1511).
"Second, we examine the statutory structure within which the provision in question is embedded." Love, 310 F.3d at 1353. In considering the statutory scheme, we keep in mind the "cardinal principle" that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal quotation marks omitted). Additionally, we have explained that when the "statutory structure provides a discernible enforcement mechanism ... we ought not imply a private right of action." Love, 310 F.3d at 1353. In other words, "the express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Sandoval, 532 U.S. at 290, 121 S.Ct. 1511; see also Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1217 (11th Cir.2015) ("Where Congress knows how to say something but chooses not to, its silence is controlling." (internal quotation marks omitted)).
Third, we look to "legislative history and context within which a statute was passed." Love, 310 F.3d at 1353. We consider legislative history "if — and only if — statutory text and structure have not conclusively resolved whether a [] right of action should be implied." Id. Moreover, we view legislative history suggesting the existence of an implied right of action "with a skeptical eye." Id.
In Seminole Tribe II, we held that the provision of IGRA requiring a tribal-state compact for a tribe to engage in class III gaming, 25 U.S.C. § 2710(d)(1)(C), created no implied right of action for a state to sue a tribal official to enjoin class III gaming occurring without a compact.
Although we did not address in Seminole Tribe II whether § 1166 gives rise to an implied right of action, our discussion of IGRA's statutory scheme and legislative history nevertheless applies to our analysis of the issue in this case. We explained in Seminole Tribe II that because Congress provided a "multitude of express remedies" in IGRA, we would not read into IGRA an additional implied right of action. Id. at 1248-49. We also described how IGRA's legislative history showed that Congress carefully balanced federal, state, and tribal interests, ultimately limiting the application of state laws on tribal lands. Id. at 1247 (citing S.Rep. No. 100-446, at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 307476). Recognizing an implied right of action under IGRA, we said, would "upset the carefully-struck congressional balance of federal, state, and tribal interests and objectives." Id. at 1248. With these principles in mind, we consider whether Congress intended to create an implied right of action in § 1166.
In § 1166(a), Congress did not intend to create an implied right of action that would give states the right to sue to enjoin class III gambling even if such gambling was a nuisance that could be enjoined under state law. We reach this conclusion after considering the text of § 1166 and the structure and legislative history of IGRA. See Love, 310 F.3d at 1352-53.
We begin by looking to the text of § 1166(a) for rights-creating language. Section 1166(a) states:
The plain language of § 1166(a) has the effect of incorporating state laws pertaining to the licensing, regulation, or prohibition of gambling into federal law such that those state laws extend into Indian country, where they did not previously reach. Congress clearly expressed that the laws that were incorporated included, but were not limited to, state criminal laws. Although § 1166(a) extends the reach of state law, it does not correspondingly extend a state's power to enforce state law in Indian country because § 1166 does not contain rights-creating language.
The Supreme Court has held that statutes decreeing that "[n]o person ... shall ... be subjected to discrimination," Cannon, 441 U.S. at 681, 690, 99 S.Ct. 1946 (citing 42 U.S.C. § 2000d), and that "no person shall be denied the right to vote," Allen v. State Bd. of Elections, 393 U.S. 544, 555-57, 89 S.Ct. 817, 22 L.Ed.2d 1
Section 1166(a) contains no language conferring rights on states or any other potential plaintiff who would have a claim under state law. Unlike statutes that contain rights-creating language, § 1166 does not identify a class of persons or entities protected under the statute. Although § 1166(a) states that "all State laws ... shall apply in Indian country in the same manner ... as such laws apply elsewhere in the State," this language does not indicate that Congress intended the states to be beneficiaries under the statute. The plain language shows that the focus of § 1166(a) is on "State laws," not the states themselves. Where, as here, the focus of a statute is "removed from the individuals who will ultimately benefit from [its] protection," the statute does not contain rights-creating language. See Sandoval, 532 U.S. at 289, 121 S.Ct. 1511.
The statutory structure of § 1166 supports our conclusion that the text of § 1166(a) does not reflect congressional intent to create an implied right of action. To the contrary, the structure of § 1166 undercuts Alabama's argument that subsection (a) incorporates all remedies available under state law into federal law. The structure of IGRA as a whole also belies congressional intent to create an implied right of action under § 1166(a) for states to sue to enjoin unlawful gaming because IGRA expressly prescribes other remedies applicable when a tribe conducts class III gaming without a tribal-state compact.
As discussed above, § 1166(a) provides that in the absence of a tribal-state compact, all state laws (whether criminal, civil, or regulatory) pertaining to gambling are incorporated into federal law so that state laws prohibiting class III gaming apply on Indian lands. But § 1166(a) does not address how these state laws are to be enforced. Read in its entirety, § 1166 supports our conclusion that Congress did not intend silently to create an implied right of action for states to sue to enjoin gambling occurring on Indian lands in violation of state law.
The remainder of § 1166 focuses on how state criminal laws pertaining to gaming apply in Indian country. Subsection (b) states:
18 U.S.C. § 1166(b).
Alabama reasons that because it may sue to enjoin illegal gambling as a nuisance under state law, it has a similar right of action under § 1166(a). Underlying Alabama's argument is the assumption that § 1166(a) incorporated the entirety of a state's law pertaining to the licensing, regulation, or prohibition of gambling into federal law, including all civil remedies and criminal punishments. Alabama's interpretation cannot be correct because it would render subsection (b), which states specifically that state criminal punishments are incorporated into federal law, superfluous. See TRW Inc., 534 U.S. at 31, 122 S.Ct. 441 (rejecting construction that would render a provision of a statute superfluous). In other words, the fact that in § 1166(b) Congress expressly incorporated the punishments from state criminal laws into federal law is evidence that Congress did not intend § 1166(a) to incorporate into federal law the entirety of a state's substantive laws and remedies regarding gambling.
Alabama also argues that because subsection (d) specifies only that the United States has exclusive jurisdiction over criminal prosecutions, we should infer that the United States and the states share jurisdiction to enforce state civil laws regarding gaming.
The statutory scheme of IGRA as a whole provides additional evidence that Congress did not intend in § 1166 to create an implied right of action for states. As an initial matter, we must bear in mind Congress's stated intent that under IGRA the federal government would be the principal authority regulating Indian gaming. See 25 U.S.C. § 2702(3) (expressing congressional intent for IGRA to establish "independent Federal regulatory authority... [and] Federal standards" to govern gaming on Indian lands).
In IGRA, Congress created express remedies for states when a tribe engages in class III gaming in the absence of a tribal-state compact or conducts class III gaming that violates the terms of a compact. First, Congress authorized the NIGC to levy fines or close a gaming facility if a tribe engages in class III gaming without a tribal-state compact.
Because IGRA expressly provides these remedies, we "should not expand the coverage of the statute to subsume other remedies." Seminole Tribe II, 181 F.3d at 1248 (internal quotation marks omitted).
Indeed, if we were to hold that states could sue to enjoin class III gaming when a tribe engaged in class III gaming without a compact, we would undermine IGRA's careful balance of federal, state,
Alabama argues that because Congress permitted a tribe to engage in class III gaming only if its lands were "within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity," it must have intended to provide the state with a remedy to enforce its laws prohibiting such gaming. 25 U.S.C. § 2701(5). But, again, the fact that Congress may have intended for a state to be free from Indian gaming within its borders where such gaming was completely prohibited under the state's law does not mean that 18 U.S.C. § 1166 creates a remedy for the state to enforce this right. See Cannon, 441 U.S. at 688, 99 S.Ct. 1946 ("[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.").
After considering the text of § 1166 and the structure of IGRA, we conclude that Congress did not intend to create an implied right of action in § 1166. But even if the statutory text and structure did not conclusively resolve whether there is an implied right of action, the legislative history and context of the statute make Congress's intent clear. As we explained in Seminole Tribe II, the legislative history "indicates that Congress, in developing a comprehensive approach to the controversial subject of regulating tribal gaming, struck a careful balance among federal, state, and tribal interests." 181 F.3d at 1247 (citing S.Rep. No. 100-446 at 5-6). To strike this balance, Congress placed "limits on the application of state laws and the extension of state jurisdiction to tribal lands." Id. (citing S.Rep. No. 100-446 at 5-6). According to the Senate Report, "`the compact process is a viable mechanism for setting various matters between [states and tribes as] equal sovereigns.'" Id. at 1248 (quoting S.Rep. No. 100-446 at 13) (alteration in original). The Senate Report recognized the need for "`some incentive'" for states to negotiate in good faith. Id. (quoting S.Rep. No. 100-446 at 13). Permitting states to sue to enjoin class III gaming without a compact "would surely frustrate [Congress's] intent [as expressed in the legislative history]." Id.
Thus, like the district court below, we fail to discern a private right of action that would allow Alabama to bring a federal claim under IGRA to enjoin the Tribes' alleged class III gaming.
We conclude that (1) PCI is entitled to sovereign immunity as to all of Alabama's claims; (2) the Individual Defendants are entitled to sovereign immunity as to Alabama's state law claim; and (3) Alabama failed to state a claim under IGRA because 18 U.S.C. § 1166 gives states no right of action to sue. Accordingly, we affirm the judgment of the district court.
18 U.S.C. § 1151. Lands taken into trust by the Secretary under IRA are considered part of Indian country. See United States v. John, 437 U.S. 634, 648-50, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978).
To be clear, the issue of whether the United States has a civil right of action under § 1166 is not before us, and we express no opinion on it.
