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Seminole ‘Tribe’ Embraces ‘Domestic Dependency’

The Seminole Nation has a high profile in litigation about Indian gaming. In 1991, the Seminole sued the State of Florida under the U.S. Indian Gaming Regulatory Act (IGRA). The Seminole argued Florida had violated IGRA's requirement of "good faith negotiation," by refusing to negotiate inclusion of certain activities in a tribal-state gaming compact.

Florida moved to dismiss, arguing the 11th Amendment to the U.S. Constitution guaranteed state sovereign immunity from the Seminole lawsuit. The federal district court denied the state's motion and Florida appealed. The court of appeals reversed the district court, and held that the 11th Amendment barred the Seminole suit.

The Seminole then asked the U.S. Supreme Court to review the case. In a 1996 decision—Seminole Tribe of Florida v. Florida—the court agreed with Florida. The Supreme Court said that although Congress had intended IGRA to override state sovereign immunity, that part of the law was unconstitutional.

Now the Seminole are back in court, with another Seminole Tribe of Florida v. Florida lawsuit, again in federal district court—this time about renewing a section of the gaming compact the two parties eventually finalized in 2010.

The compact section in question authorizes the Seminole to exclusively operate banking or banked card games, including baccarat, chemin de fer, and blackjack. Though the overall compact runs to 2030, the banked card section terminated on July 31, 2015.

The Seminole allege they have taken all measures under IGRA to enter into negotiations with Florida to extend the banked card section, and that Florida has refused to respond in good faith. They allege Florida has called for closing banked card games at the Seminole gaming facilities.

This time around, the state sovereign immunity issue hasn't come into play, because the compact provides that the parties expressly waived their rights to assert sovereign immunity. The district court has so far denied Florida's efforts to derail the lawsuit on other grounds.

Prior to the 1996 U.S. Supreme Court ruling in the first Seminole case, U.S. courts widely recognized Indian gaming as an "attribute of sovereignty" of Indian Nations over their territory. There was no IGRA and courts knocked down state efforts to regulate or prohibit gaming in Indian country. In fact, in 1987, the U.S. Supreme Court itself ruled—in California v. Cabazon Band of Mission Indians—"State regulation [of Indian gaming] would impermissibly infringe on tribal government."

The kicker in Cabazon, however—as in most, if not all, the other court decisions against state interference with Indian gaming—was the usual federal Indian law incantation that “tribal sovereignty is dependent on, and subordinate to, … the Federal Government, not the States. It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided."

Thus, the decision in Cabazon did not uphold true Indian self-determination, but only the limited doctrine of "tribal sovereignty" that goes back to the founding federal Indian law case, Johnson v. McIntosh, based on the doctrine of Christian Discovery. In other words, the Cabazon decision didn't really protect Indian gaming. It protected the "domestic, dependent" status of Indian Nations under federal Indian law.

In unfortunately typical fashion, the Indian litigants in Cabazon didn't actually argue for true self-determination either. They limited their case to saying that states have no jurisdiction over Indian lands unless they have congressional authorization.

U.S. politicians were quick to act. They took the invitation to interfere with Indian gaming and enacted the Indian Gaming Regulatory Act. IGRA says Indian "tribes" (IGRA uses that subordinating terminology) may conduct gaming activities only in conformance with a compact between the "tribe" and the state in which the gaming activities are located.

Before IGRA, U.S. law prevented state interference with Indian gaming. After IGRA, Indian gaming could only happen if states agreed.

When the U.S. Supreme Court blocked the first Seminole lawsuit against Florida, it stated IGRA "grants the States a power that they would not otherwise have, viz., some measure of authority over gaming on Indian lands." The Seminole lawyers pointed out the same thing: "IGRA empowers the states; it does not encroach upon their rights. Before IGRA, the states had no power to regulate gaming on tribal lands."

But the Seminole did not challenge the IGRA expansion of state power over Indian Territory. They only wanted to enforce the IGRA provision allowing them to sue Florida. In fact, the Seminole brief embraced "Congress' complete power over the Tribes (!)" and said "IGRA's grant of power to the states, conditioned … on the duty to negotiate in good faith with Indian tribes, is protective of federalism." What about protective of Native sovereignty?

In their current lawsuit, the Seminole have framed their argument against Florida entirely under the terms of IGRA and the compact. Just as in their earlier lawsuit, they do not raise any position based on their original free and independent existence from both Florida and the United States. They are playing in a game devised entirely by the U.S. as an extension of its colonial, Christian Discovery doctrines.

Interestingly, the Supreme Court itself in the first Seminole case brought up the issue that the Indian lawyers avoid—original independent existence, free from the U.S. constitutional system— when it analyzed the 11th Amendment. The court cited the 1991 case of Blatchford v. Native Village of Noatak, which emphasized Indian Nations are not parties to the U.S. constitution.

In Blatchford, the court said, "It would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. …[T]he convention could not surrender the tribes' immunity for the benefit of the States…."

Indian lawsuits that avoid the position of original free and independent existence throw away their most powerful position: that Native Nations are separate from the U.S. system.

The U.S. Congress took up the Supreme Court's invitation to extend Christian Discovery doctrine by enacting IGRA. The Seminole—and other Native litigators—can take up the invitation to challenge the whole notion that the U.S. Constitution somehow empowers the U.S. to assert jurisdiction over Native Peoples.

One more thing: as a tiny step toward challenging the neo-colonial, Christian Discovery framework, the Seminole could quit referring to themselves as "The Seminole Tribe of Florida…whose reservations and trust lands are located in the State of Florida [with] headquarters in Broward County, Florida."

Take a tip from the Navajo Nation: Their lawsuit against the United States Environmental protection Agency and several mining companies, for damages resulting from the Gold King Mine disaster that polluted the San Juan river, emphasizes their national status throughout, and also asserts the Nation's ownership of lands.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhii?na be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.