Blatchford v. Native Village of Noatak and Circle Village/Dissent Blackmun

Justice BLACKMUN, with whom Justice MARSHALL and Justice STEVENS join, dissenting.

The Court today holds that our Eleventh Amendment precludes Native American tribes from seeking to vindicate in federal court rights they regard as secured to them by the United States Constitution. Because the Court resolves this case through reliance on a doctrine I cannot accept, and because I believe its construction of the pertinent jurisdictional statute to be otherwise flawed, I dissent.

* As some of us previously have stated, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 302, 105 S.Ct. 3142, 3177, 87 L.Ed.2d 171 (1985) (dissenting opinion), I do not believe the Eleventh Amendment is implicated by a suit such as this one, in which litigants seek to vindicate federal rights against a State. In my view, the Amendment has no application outside the context of State/citizen and State/alien diversity suits. #fn-s Put another way, "[t]here simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court." Atascadero, 473 U.S., at 259, 105 S.Ct., at 3156 (Brennan, J., dissenting).

The substantial historical analysis that supports this view already has been exhaustively detailed, see id., at 258-302, 105 S.Ct., at 3155-3178 (Brennan, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); ''Welch v. Texas Highways & Public Transp. Dept.,'' 483 U.S. 468, 497, 107 S.Ct. 2941, 2958, 97 L.Ed.2d 389 (1987) (Brennan, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting); Pennsylvania v. Union Gas Co., 491 U.S. 1, 23, 109 S.Ct. 2273, 2286, 105 L.Ed.2d 1 (1989) (STEVENS, J., concurring); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 140-159, 104 S.Ct. 900, 929-939, 79 L.Ed.2d 67 (1984) (STEVENS, J., joined by Brennan, MARSHALL, and BLACKMUN, JJ., dissenting), and I shall not repeat it here. It bears emphasis, however, that the Court need not have compounded the error of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and its progeny by extending the doctrine of state sovereign immunity to bar suits by tribal entities, which are neither "Citizens of another State," nor "Citizens or Subjects of any Foreign State."

Even assuming that the State at one time may have possessed immunity against tribal suits, that immunity was abrogated by Congress when, in 1966, 80 Stat. 880, it enacted 28 U.S.C. § 1362. The majority rejects this argument, holding that § 1362 cannot authorize respondents' suit because the statute's language does not reflect an "unmistakably clear" intent to abrogate the States' sovereign immunity. Ante, at 786. I have never accepted the validity of that so-called "clear-statement rule" and I remain of the view, expressed by Justice Brennan for four of us in Atascadero, that such "special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress. . . . [T]he special rules are designed as hurdles to keep the disfavored suits out of the federal courts." 473 U.S., at 254, 105 S.Ct., at 3153.

Even if I were to accept the proposition that the clear-statement rule at times might serve as a mechanism for discerning congressional intent, I surely would reject its application here. Despite the Court's attempt to give it a constitutional cast, the clear-statement rule, at bottom, is a tool of statutory construction like any other. So it must be, for the judiciary has no power to redraw legislative enactments; where Congress has the authority to regulate a sphere of activity, we simply must do our best to determine whether it has done so in any particular instance. The majority's rule is one method for accomplishing that task. It is premised on the perception that Congress does not casually alter the "balance of power" between the Federal Government and the States. Id., at 242, 105 S.Ct., at 3147. Because federal intrusion into state authority is the unusual case, and because courts are to use caution in determining when their own jurisdiction has been expanded, id., at 243, 105 S.Ct., at 3147, this Court has erected the clear-statement rule in order to be certain that abrogation is Congress' plan.

Whatever the validity of that determination may be generally, it cannot extend to matters concerning federal regulation of Native American affairs; in that sphere of governmental operations, the "balance of power" always has weighed heavily against the States and in favor of the Federal Government. Indeed, "[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari, 417 U.S. 535, 551-552, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).

Illustrative of this principle are our cases holding that the law of the State is generally inapplicable to Native American affairs, absent the consent of Congress. See, e.g., Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). Chief Justice Marshall explained for the Court in Worcester that a federally recognized tribe

"is a distinct community, occupying its own territory, with     boundaries accurately described, in which the laws of [the      State] can have no force, and which the citizens of [the      State] have no right to enter, but with the assent of the      [tribes] themselves, or in conformity with the treaties, and      with the acts of congress.  The whole intercourse between the      United States and this nation, is, by our Constitution and      laws, vested in the government of the United States." Id., 6     Pet. at 561.

Despite the States' undeniable interest in regulating activities within its borders, and despite traditional principles of federalism, the State's authority has been largely displaced in matters pertaining to Native Americans. See The Kansas Indians, 5 Wall. 737, 18 L.Ed. 667 (1867) (finding state taxes inapplicable to tribal lands despite partial assimilation of tribe into white society); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (sustaining validity of a prosecution of Native Americans in federal court under the Indian Major Crimes Act). Moreover, federal displacement of state authority regarding Native American affairs has not been limited to the geographic boundaries of "Indian country," see Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975) (holding that Congress may constitutionally inhibit a State's exercise of its police power over non-Indian land through federal legislation ratifying an agreement with a tribe), nor to state regulations that directly infringe upon tribal self-government. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 179-180, 93 S.Ct. 1257, 1266-1267, 36 L.Ed.2d 129 (1973).

Thus, in this area, the pertinent "balance of power" is between the Federal Government and the tribes, with the States playing only a subsidiary role. Because spheres of activity otherwise susceptible to state regulation are, "according to the settled principles of our Constitution, . . . committed exclusively to the government of the Union," Worcester v. Georgia, 6 Pet., at 561, where Native American affairs are concerned, the presumptions underlying the clear-statement rule, and thus the rule itself, have no place in interpreting statutes pertaining to the tribes.

Employing the traditional tools of statutory interpretation, I conclude that Congress intended, through § 1362, to authorize constitutional claims for damages by tribes against the States. Section 1362 provides:

"The district courts shall have original jurisdiction of     all civil actions, brought by any Indian tribe or band with a      governing body duly recognized by the Secretary of the      Interior, wherein the matter in controversy arises under the      Constitution, laws, or treaties of the United States." (Emphasis added.)

The majority notes, correctly, that this language is no broader than that of 28 U.S.C. § 1331(a), as it existed at the time § 1362 was enacted. Ante, at 784. As the preceding discussion makes clear, however, this is an area in which "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). A review of the history of the latter statute reveals that Congress intended § 1362 to have a broader reach.

Prior to 1966, the Indian tribes were largely dependent upon the United States Government to enforce their rights against state encroachment. See, e.g., United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539 (1926). This arrangement derived from the historic trust relationship between the tribes and the United States. See F. Cohen, Handbook of Federal Indian Law 308 (2d ed. 1982). In seeking judicial protection of tribal interests, the Federal Government, of course, was unrestrained by the doctrine of state sovereign immunity. United States v. Minnesota, 270 U.S., at 195, 46 S.Ct., at 301, citing United States v. Texas, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285 (1892).

In 1966, Congress enacted 28 U.S.C. § 1362 as part of a larger national policy of "self-determination" for the Native American peoples. See M. Price & R. Clinton, Law and the American Indian 86-91 (2d ed. 1983). Consistent with that policy, "Congress contemplated that § 1362 would be used particularly in situations in which the United States suffered from a conflict of interest or was otherwise unable or unwilling to bring suit as trustee for the Indians." Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 560, n. 10, 103 S.Ct. 3201, 3210 n. 10, 77 L.Ed.2d 837 (1983). In other words, Congress sought to eliminate the tribes' dependence upon the United States for the vindication of federal rights in the federal courts.

In light of that legislative purpose, we held in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), that the Tax Injunction Act, 28 U.S.C. § 1341, does not bar an action to enjoin the collection of state taxes brought by a tribe pursuant to § 1362, although it precludes such a suit by a private litigant. Construing § 1362, we identified a congressional intent "that a tribe's access to federal court to litigate a matter arising 'under the Constitution, laws, or treaties' would be at least in some respects as broad as that of the United States suing as the tribe's trustee." 425 U.S., at 473, 96 S.Ct., at 1641. Because the Federal Government could have brought such a suit on the tribes' behalf, see Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912), we held that the tribes were similarly empowered by § 1362.

I agree with respondents that the litigation authority bestowed on the tribes through § 1362 also includes the right to bring federal claims against the States for damages. The legislative history of the statute reveals Congress' intention that the tribes bring litigation "involving issues identical to those" that would have been raised by the United States acting as trustee for the tribes. H.R.Rep. No. 2040, 89th Cong., 2d Sess., 2 (1966) (House Report). There is no reason to believe that this authority would be limited to prospective relief in the broad range of suits brought against the States.

Fundamentally, the vindication of Native American rights has been the institutional responsibility of the Federal Government since the Republic's founding. See, e.g., Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831). Section 1362 represents a frank acknowledgment by the Government that it often lacks the resources or the political will adequately to fulfill this responsibility. Given this admission, we should not lightly restrict the authority granted the tribes to defend their own interests. Rather, the most reasoned interpretation of § 1362 is as a congressional authorization to bring those suits that are necessary to vindicate fully the federal rights of the tribes. It hardly requires explication that monetary remedies are often necessary to afford such relief. Providing "the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys," House Report, at 2-3, necessarily entails access to monetary redress from the States where federal rights have been violated.

In resisting this conclusion, the majority asserts that, because the Tax Injunction Act is merely a congressional enactment while the doctrine of sovereign immunity is a constitutional one, a "willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter." Ante, at 785. But the premise does not lead to the conclusion. Congress, through appropriate legislation, may abrogate state sovereign immunity, just as it may repeal or amend its own prior enactments. Moreover, the Tax Injunction Act, like the sovereign immunity doctrine, is rooted in historical notions of federalism and comity. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 103, 102 S.Ct. 177, 179, 70 L.Ed.2d 271 (1981), and cases cited therein. In light of these parallels, I find the expansive congressional purpose the Court identified in Moe to provide substantial support for the proposition that § 1362 was intended to convey federal jurisdiction over "all civil actions," § 1362 (emphasis added), brought by recognized tribes that the Government could have brought on their behalf.

"Finally, in construing this 'admittedly ambiguous' statute, Board of Comm'rs v. Seber, [318 U.S. 705, 713, 63 S.Ct. 920, 925, 87 L.Ed. 1094 (1943) ], we must be guided by that 'eminently sound and vital canon,' Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n. 7, [96 S.Ct. 1793, 1797 n. 7, 48 L.Ed.2d 274] (1976), that 'statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 [39 S.Ct. 40, 42, 63 L.Ed. 138] (1918)." Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976). Unlike the ill-conceived interpretive rule adopted so recently in Atascadero, this canon of construction dates back to the earliest years of our Nation's history. See, e.g., Worcester v. Georgia, 6 Pet., at 582; The Kansas Indians, 5 Wall. 737 (1867); Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912). Indeed, it is rooted in the unique trust relationship between the tribes and the Federal Government that is inherent in the constitutional plan. See U.S.C.onst., Art. I, § 8, cl. 3; Art. I, § 2, cl. 3. In light of this time-honored principle of construction, it requires no linguistic contortion to read § 1362's grant of federal jurisdiction over "all civil actions" to encompass all tribal litigation that the United States could have brought as the tribes' guardian.

Having concluded that respondents' suit may be brought in federal court, I agree with the Court of Appeals that respondents are recognized "tribe[s] or band[s]" for purposes of § 1362, and that they have alleged a federal cause of action. Accordingly, I would affirm the judgment of the Court of Appeals. I respectfully dissent from this Court's reversal of that judgment.