Blatchford v. Native Village of Noatak (89-1782), 501 U.S. 775 (1991)
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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

No. 89-1782


[June 24, 1991]

Justice Scalia delivered the opinion of the Court.

We are asked once again to mark the boundaries of state sovereign immunity from suit in federal court. The Court of Appeals for the Ninth Circuit found that immunity did not extend to suits by Indian tribes, and Alaska seeks review of that determination.


In 1980, Alaska enacted a revenue-sharing statute that provided annual payments of $25,000 to each "Native village government" located in a community without a state-chartered municipal corporation. Alaska Stat. Ann. 29.89.050 (1984). The State's attorney general believed the statute to be unconstitutional. In his view, Native village governments were "racially exclusive groups" or "racially exclusive organizations" whose status turned exclusively on the racial ancestry of their members; therefore, the attorney general believed, funding these groups would violate the equal protection clause of Alaska's Constitution. Acting on the attorney general's advice, the Commissioner of Alaska's Department of Community and Regional Affairs (petitioner here), enlarged the program to include all unincorporated communities, whether administered by Native governments or not. Shortly thereafter, the legislature increased funding under the program to match its increased scope. Funding, however, never reached the full $25,000 initially allocated to each unincorporated Native community.

The legislature repealed the revenue-sharing statute in 1985, see 1985 Alaska Sess. Laws, ch. 90, and replaced it with one that matched the program as expanded by the Commissioner. In the same year, respondents filed this suit, challenging the Commissioner's action on federal equal protection grounds, and seeking an order requiring the Commissioner to pay them the money that they would have received had the Commissioner not enlarged the program. The District Court initially granted an injunction to preserve sufficient funds for the 1986 fiscal year, but then dismissed the suit as violating the Eleventh Amendment. The Court of Appeals for the Ninth Circuit reversed, first on the ground that 28 U.S.C. 1362 constituted a congressional abrogation of Eleventh Amendment immunity, Native Village of Noatak v. Hoffman, 872 F. 2d 1384 (1989) (later withdrawn), and then, upon reconsideration, on the ground that Alaska had no immunity against suits by Indian tribes. 896 F. 2d 1157 (1989). We granted certiorari. 498 U. S. — (1990).


The Eleventh Amendment provides as follows:

"The Judicial 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."

Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472 (1987) (opinion of Powell, J.); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 290-294 (1973) (Marshall, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." See Port Authority Trans-Hudson Corp. v. Feeney, 494 U. S. —, — (1990); Welch, supra, at 474 (opinion of Powell, J); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984).

Respondents do not ask us to revisit Hans; instead they argue that the traditional principles of immunity presumed by Hans do not apply to suits by sovereigns like Indian tribes. And even if they did, respondents contend, the States have consented to suits by tribes in the "plan of the convention." We consider these points in turn.

In arguing that sovereign immunity does not restrict suit by Indian tribes, respondents submit, first, that sovereign immunity only restricts suits by individuals against sovereigns, not by sovereigns against sovereigns, and as we have recognized, Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U. S. —, — (1991), Indian tribes are sovereigns. Respondents' conception of the nature of sovereign immunity finds some support both in the apparent understanding of the Founders, and in dicta of our own opinions. [n.1] But whatever the reach or meaning of these early statements, the notion that traditional principles of sovereign immunity only restrict suits by individuals was rejected in Monaco v. Mississippi, 292 U.S. 313 (1934). It is with that opinion, and the conception of sovereignty that it embraces, that we must begin.

In Monaco, the Principality had come into possession of Mississippi state bonds, and had sued Mississippi in federal court to recover amounts due under those bonds. Mississippi defended on grounds of the Eleventh Amendment, among others. Had respondents' understanding of sovereign immunity been the Court's, the Eleventh Amendment would not have limited the otherwise clear grant of jurisdiction in Article III to hear controversies "between a State . . . and foreign States." But we held that it did.

"Manifestly, we cannot rest with a mere literal application of the words of 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is . . . the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a `surrender of this immunity in the plan of the convention.' The Federalist, No. 81." Monaco, supra, at 322-323 (footnote omitted).

Our clear assumption in Monaco was that sovereign immunity extends against both individuals and sovereigns, so that there must be found inherent in the plan of the convention a surrender by the States of immunity as to either. Because we perceived in the plan "no ground upon which it can be said that any waiver or consent by a State of the Union has run in favor of a foreign State," id., at 330, we concluded that foreign states were still subject to the immunity of the States.

We pursue the same inquiry in the present case, and thus confront respondents' second contention: that the States waived their immunity against Indian tribes when they adopted the Constitution. Just as in Monaco with regard to foreign sovereigns, so also here with regard to Indian tribes, there is no compelling evidence that the Founders thought such a surrender inherent in the constitutional compact. [n.2] We have hitherto found a surrender of immunity against particular litigants in only two contexts: suits by sister States, South Dakota v. North Carolina, 192 U.S. 286, 318 (1904), and suits by the United States, United States v. Texas, 143 U.S. 621 (1892). We have not found a surrender by the United States to suit by the States, Kansas v. United States, 204 U.S. 331, 342 (1907); see Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 79-80 (1988), nor, again, a surrender by the States to suit by foreign sovereigns, Monaco.

Respondents argue that Indian tribes are more like States than foreign sovereigns. That is true in some respects: they are, for example, domestic. The relevant difference between States and foreign sovereigns, however, is not domesticity, but the role of each in the convention within which the surrender of immunity was for the former, but not for the latter, implicit. What makes the States' surrender of immunity from suit by sister States plausible is the mutuality of that concession. There is no such mutuality with either foreign sovereigns or Indian tribes. We have repeatedly held that Indian tribes enjoy immunity against suits by States, Potawatomi Indian Tribe, supra, at —, as it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. But if the convention could not surrender the tribes' immunity for the benefit of the States, we do not believe that it surrendered the States' immunity for the benefit of the tribes.


Respondents argue that, if the Eleventh Amendment operates to bar suits by Indian tribes against States without their consent, 28 U.S.C. 1362 operates to void that bar. They press two very different arguments, which we consider in turn.


In United States v. Minnesota, 270 U.S. 181 (1926), we held that the United States had standing to sue on behalf of Indian tribes as guardians of the tribes' rights, and that, since "the immunity of the State is subject to the constitutional qualification that she may be sued in this Court by the United States," id., at 195, no Eleventh Amendment bar would limit the United States' access to federal courts for that purpose. Relying upon our decision in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), respondents argue that we have read 1362 to embody a general delegation of the authority to sue on the tribes' behalf from the Federal Government back to tribes themselves. Hence, respondents suggest, because the United States would face no sovereign immunity limitation, in no case brought under 1362 can sovereign immunity be a bar.

Section 1362 provides as follows:

"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."

What is striking about this most unremarkable statute is its similarity to any number of other grants of jurisdiction to district courts to hear federal-question claims. Compare it, for example, with 1331(a) as it existed at the time 1362 was enacted:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States." 28 U.S.C. 1331(a) (1964 ed.).

Considering the text of 1362 in the context of its enactment, one might well conclude that its sole purpose was to eliminate any jurisdictional minimum for "arising under" claims brought by Indian tribes. Tribes already had access to federal courts for "arising under" claims under 1331, where the amount in controversy was greater than $10,000; for all that appears from its text, 1362 merely extends that jurisdiction to claims below that minimum. Such a reading, moreover, finds support in the very title of the Act that adopted 1362: "To amend the Judicial Code to permit Indian tribes to maintain civil actions in Federal district courts without regard to the $10,000 limitation, and for other purposes." 80 Stat. 880.

Moe, however, found something more in the title's "other purposes" — an implication that "a tribe's access to federal court to litigate [federal question cases] 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 (emphasis added). The "respect" at issue in Moe was access to federal court for the purpose of obtaining injunctive relief from state taxation. The Tax Injunction Act, 28 U.S.C. 1341 denied such access to persons other than the United States; we held that 1362 revoked that denial as to Indian tribes. Moe did not purport to be saying that 1362 equated tribal access with the United States' access generally, but only "at least in some respects," 425 U. S., at 473, or "in certain respects," id., at 474. Respondents now urge us, in effect, to eliminate this limitation utterly — for it is impossible to imagine any more extreme replication of the United States' ability to sue than replication even to the point of allowing unconsented suit against state sovereigns. This is a vast expansion upon Moe. Section 1341, which Moe held 1362 to eliminate in its application to tribal suits, was merely a limitation that Congress itself had created — commiting state tax-injunction suits to state courts as a matter of comity. Absent that statute, state taxes could constitutionally be enjoined. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, n. 10 (1989). [n.3] The obstacle to suit in the present case, by contrast, is a creation not of Congress but of the Constitution. A willingness to eliminate the former in no way bespeaks a willingness to eliminate the latter, especially when limitation to "certain respects" has explicitly been announced.

Moreover, as we shall discuss in Part III-B, our cases require Congress' exercise of the power to abrogate state sovereign immunity, where it exists, to be exercised with unmistakeable clarity. To avoid that difficulty, respondents assert that 1362 represents not an abrogation of the States' sovereign immunity, but rather a delegation to tribes of the Federal Government's exemption from state sovereign immunity. We doubt, to begin with, that that sovereign exemption can be delegated — even if one limits the permissibility of delegation (as respondents propose) to persons on whose behalf the United States itself might sue. The consent, "inherent in the convention," to suit by the United States — at the instance and under the control of responsible federal officers — is not consent to suit by anyone whom the United States might select; and even consent to suit by the United States for a particular person's benefit is not consent to suit by that person himself.

But in any event, assuming that delegation of exemption from state sovereign immunity is theoretically possible, there is no reason to believe that Congress ever contemplated such a strange notion. Even if our decision in Moe could be regarded as in any way related to sovereign immunity, see n. 3, supra, it could nevertheless not be regarded as in any way related to congressional "delegation." The opinion does not mention that word, and contains not the slightest suggestion of such an analysis. To say that " 1362 . . . suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf," 425 U. S., at 474, does not remotely imply delegation — only equivalence of treatment. The delegation theory is entirely a creature of respondents' own invention.


Finally, respondents ask us to recognize 1362 as a congressional abrogation of Eleventh Amendment immunity. We have repeatedly said that this power to abrogate can only be exercised by a clear legislative statement. As we said in Dellmuth v. Muth, 491 U.S. 223 (1989),

"To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " Id., at 227-228.

We agree with petitioner that 1362 does not reflect an "unmistakably clear" intent to abrogate immunity, made plain "in the language of the statute." As we have already noted, the text is no more specific than 1331, the grant of general federal-question jurisdiction to district courts, and no one contends that 1331 suffices to abrogate immunity for all federal questions. [n.4]

Respondents' argument, however, is not that 1362 is a "clear statement" under the standard of Dellmuth, but rather that it was a sufficiently clear statement under the standard of Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184 (1964), the existing authority for "abrogation" at the time of 1362's enactment in 1966. In Parden, we found a sufficiently clear intent to avoid state immunity in a statute that subjected to liability "every" common carrier in interstate commerce, where the State, after the statute's enactment, chose to become a carrier in interstate commerce. Id., at 187-188. Similarly, respondents argue, a statute that grants jurisdiction to district courts to hear "all civil actions, brought by any Indian tribe" should constitute a sufficiently clear expression of intent to abrogate immunity. Dellmuth is not to the contrary, respondents maintain, since the statute there was enacted in the mid-1970's, long after the rule of Parden had been drawn into question. Dellmuth, supra, at 231.

We shall assume for the sake of argument (though we by no means accept) that Congress must be presumed to have had as relatively obscure a decision as Parden in mind as a backdrop to all its legislation. But even if Congress were aware of Parden's minimal clarity requirement, nothing in Parden could lead Congress to presume that that requirement applied to the abrogation of state immunity. Parden itself neither mentioned nor was premised upon abrogation. Its theory was that, by entering a field of economic activity that is federally regulated, the State impliedly "consent[s]" to be bound by that regulation and to be subject to suit in federal court on the same terms as other regulated parties, thus "waiv[ing]" its Eleventh Amendment immunity. 377 U. S., at 186. Not until 1976 (10 years after the passage of 1362) did we first acknowledge a congressional power to abrogate state immunity — under 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Thus, Parden would have given Congress no reason to believe it could abrogate state sovereign immunity, and gives us no reason to believe that Congress intended abrogation by a means so subtle as 1362. At the time 1362 was enacted, abrogation would have been regarded as such a novel (not to say questionable) course that a general "arising under" statute like 1362 would not conceivably have been thought to imply it. We conclude that neither under the current standard of Dellmuth nor under any standard in effect at the time of Parden was 1362 an abrogation of state sovereign immunity. [n.5]


Finally, respondents argue that even if the Eleventh Amendment bars their claims for damages, they still seek injunctive relief, which the Eleventh Amendment would not bar. The Court of Appeals of course did not address this point, and we leave it for that court's initial consideration on remand.

The judgment of the Court of Appeals is reversed, and the cases remanded for further proceedings consistent with this opinion.

It is so ordered.


1 As Alexander Hamilton said, "It is inherent in the nature of sovereignty, not to be amendable to the suit of an individual without its consent." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961) (emphasis added and deleted). James Madison expressed a similar understanding at the Virginia Convention ("It is not in the power of individuals to call any state into court"), 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1863) (emphasis added), as did Chief Justice Marshall ("[A]n individual cannot proceed to obtain judgment against a state, though he may be sued by a state.") Id., at 555-556 (emphasis added). In United States v. Texas, 143 U.S. 621, 645 (1892), we adverted to respondents' distinction explicitly, describing Hans v. Louisiana, 134 U.S. 1, (1890), as having "proceeded upon the broad ground that `it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,' " 143 U. S., at 645-646, and concluding that "the suability of one government by another government . . . does no violence to the inherent nature of sovereignty." Id., at 646.

2 The only evidence alluded to by respondents is a statement by President Washington to Chief Cornplanter of the Seneca Nation:

"Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States.

. . . . .

"If . . . you have any just cause of complaint against [a purchaser], and can make satisfactory proof thereof, the federal courts will be open to you for redress, as to all other persons." 4 American State Papers, Indian Affairs, Vol. 1, p. 142 (1832). But of course, denying Indian tribes the right to sue States in federal court does not disadvantage them in relation to "all other persons." Respondents are asking for access more favorable than that which others enjoy.

3 Such injunction suits can only be brought against state officers in their official capacity, and not against the State in its own name. Missouri v. Fiske, 290 U.S. 18, 27 (1933). Respondents argue that since the plaintiffs in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), named the State of Montana as a defendant, as well as individual officers, the decision in that case held that 1362 eliminated not only the statutory bar of 1341 but sovereign immunity as well. We think not. Since Montana had not objected in this Court on sovereign immunity grounds, its immunity had been waived and was not at issue.

4 In asserting that 1362's grant of jurisdiction to "all civil actions" suffices to abrogate a state's defense of immunity, post, at 8, the minority has just repeated the mistake of the Court in Chisolm v. Georgia, 2 Dall. 419 (1793), see id., at 434-450 (Iredell, J., dissenting), the case that occasioned the Eleventh Amendment itself. The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct. A state may waive its Eleventh Amendment immunity, and if it does, 1362 certainly would grant a district court jurisdiction to hear the claim. The minority's view returns us, like Sisyphus, to the beginning of this 200-year struggle.

5 Because we find that 1362 does not enable tribes to overcome Alaska's sovereign immunity, we express no view on whether these respondents qualify as "tribes" within the meaning of that statute.