legal
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Joined: 18 Aug 2004
Posts: 510
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 Posted: Sat Sep 11, 2004 12:23 pm Post subject: Seminole |
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U.S. Tribal Gaming Law
Seminole and state immunity: the power of U.S. courts over Congress
We are deeply impressed and moved by much of the material available online regarding tribal gaming law in the U.S., a considerable number of judgments and articles which testify to the resiliency of our First Nations brothers and sisters. We began our investigation by reading the very troubling U.S. Supreme Court decision, Seminole Tribe of Florida v. Florida (1996), which held that Congress was not legally competent by virtue of the Eleventh Amendment to enact a statute permitting tribes to force a state to negotiate in good faith the regulation of casinos in the event of an impasse.
Chief Justice Rehnquist delivered the opinion of the court, stating at the close of Part III of a four-part judgment:
| Quote: | | Here, of course, we have found that Congress does not have authority under the Constitution to make the State suable in federal court under 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability which is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under 2710(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction. |
Does this mean that U.S. judges now have more authority than an elected Congress?
So it would seem -- at least, to the majority of that court. We were understandably relieved to read the two dissenting opinions, the second by Stevens, J., who found at para. 4:
| Quote: | | As JUSTICE SOUTER has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. (emphasis ours). Despite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government (emphasis ours) merits additional comment. |
Implications of Seminole:
The implications of this decision have been profound and far-reaching. For an overview, see Immunity of States from Suit: Seminole Tribe and Its Aftershocks by Wisconsin Asst. Attorney General Richard Briles Moriarty, last updated Oct. 14/02. Here's a sample from the introduction:
| Quote: | | No one can ignore the ideological context that has poisoned, or at least tainted, the analyses by both the majority and the dissenters in these decisions. Indeed, the debate remains, and will remain, heated since it is, in many ways, central to the dual sovereignty system created by the Founders. Tensions, contradictions and occasional earthquakes will continue to express themselves along the multiple fault lines that run throughout the vital, frustrating and wonderful system that we have inherited. |
Here is how Legal Momentum, a women's rights legal site, described post-Seminole barriers to protection from wrongful action by a state, in this case, age discrimination laws in the context of employment:
| Quote: | 1. Whether the Age Discrimination Employment Act of 1967, 29 U.S.C. 621 et seq., contains a clear abrogation of the States' Eleventh Amendment immunity from suit by individuals?
2. Whether extension of the of 1967, 29 U.S.C. 621 et seq., to the States was a proper exercise of Congress' power under Section 5 of the Fourteenth Amendment, thereby constituting a valid exercise of congressional power to abrogate the States' Eleventh Amendment immunity from suit by individuals?
...Under the two-part test established by the Supreme Court in Seminole Tribe v. Florida, 517 U.S. 44 (1996), states are immune from suit by private individuals in federal court unless Congress (1) has expressed intent to abrogate immunity and to permit suits against the states; and (2) has done so pursuant to a valid exercise of Congressional power under the Constitution. |
Here's what a bankruptcy attorney in Tennessee had to say in 2003 about the decision at Law.com:
| Quote: | | The Tennessee state attorney general's office said last week that it would not comment on pending litigation and referred to its petition for a writ of certiorari filed with the U.S. Supreme Court. In it, Tennessee argues that the high court should follow decisions in five other circuit courts and its own 1996 opinion, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Seminole, according to the Tennessee attorney general's office, recognized that Congress' powers could not create federal jurisdiction over states in suits to enforce bankruptcy, copyright and antitrust laws. |
See also Summary of Supreme Court argument in Hood of March, 2004 by attorneys Alexander Laughlin and Dylan Trache and this National Consumer Law Center Inc. case summary by Rebecca Harper from which the following is excerpted:
| Quote: | States Not Immune From Dischargeability Suits
Bankruptcy practitioners often view their clients as drowning in a sea of debt. Apparently, the Supreme Court had a similar image in mind when it handed consumer debtors a life preserver in their pursuit of student loan and other dischargeability determinations. Relying upon an exception previously carved out for admiralty proceedings, the Court held that a bankruptcy dischargeability suit brought against the state does not implicate a state’s Eleventh Amendment immunity from suit.
Sink or Swim?
In Tennessee Student Assistance Corp. v. Hood, the question on which the Supreme Court granted certiorari was whether Congress had authority to abrogate state sovereign immunity under the Bankruptcy Clause of the Constitution (Article I, section 8, clause 4) when it enacted § 106(a) of the Bankruptcy Code. The Sixth Circuit ruled in Hood that a bankruptcy court could decide a student loan hardship discharge case because § 106(a) was a valid abrogation of the state’s immunity from suit. Since most appellate courts had read Seminole Tribe of Florida v. Florida as severely limiting Congress’ authority to abrogate immunity, most observers anticipated a reversal in Hood if the Court actually decided the abrogation issue.
Fortunately for Ms. Hood and other debtors looking to have a bankruptcy judge determine their entitlement to an undue hardship discharge, the Supreme Court left the abrogation issue for another day. The Court still managed however to affirm the Court of Appeals’ judgment in a 7-2 decision. |
Last edited by legal on Thu Feb 03, 2005 6:13 pm; edited 22 times in total |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Sun Sep 12, 2004 1:06 pm Post subject: sss |
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Seminole Tribe of Florida - Official Site
What happy hours we could spend immersed here, poring over this brilliantly-colored site devoted to the 3,000-member Seminole Tribe, including a fascinating account of the tribe's history and politics, a rich narrative many of us have only glimpsed in movies such as:
Lone Star
DVD
and more recently:
Adaptation
DVD
Here is but a sample of Seminole's rich history as it's described online at the Timeline link:
| Quote: | | This one, the Second Seminole War (1835-42), would be the longest, most costly, and the last of the US's Wars of Indian Removal fought east of the Mississippi River. It would be the first "guerilla"-style war fought by US troops. Not until the US entered a tiny country in Southeast Asia called Vietnam, more than a century later, would US soldiers fight again under such profoundly difficult conditions. The Natives were aided in their resistance by runaway slaves, who received protection from their Seminole allies (and, in some cases, owners) in return for a portion of the agricultural staples that they grew. These so-called "Black Seminoles" were fierce fighters who were also determined to preserve their freedom |
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Seminole Casinos
We were pleased to learn that the U.S. Supreme Court decision did not prevent the development of a flourishing gaming industry, which now includes six casinos.
Our e-mail to Seminole Tribe:
We thought we'd ask Seminole how the community reacted to the 1996 judgment, how it impacted their gaming enterprises, what effect the new anti-terrorist Bank Secrecy Act (BSA) (see testimony by Financial Crimes Enforcement Netork director William Fox Sept. 28/04 before the Senate Committee on Banking, Housing and Urban Affairs at Tribal casinos beginning at p. eight) has had on their casinos and how they feel about the possibility of regulated Internet gaming in the U.S. Here's the e-mail we sent today:
From: legal@pokerpulse.com
To: tribune@semtribe.com
Cc: legal@pokerpulse.com
Sent: Saturday, October 02, 2004 4:17 PM
Subject: We love your website!
Hello Seminole,
We hope you are all OK in the wake of the mighty weather you've been having lately. How are you doing?
We spent a happy hour or two visiting your simply topping website today, especially the Timeline feature, and we say so, too, at our site, http://www.Pokerpulse.com/legal under U.S. Tribal Gaming Law, where we've begun a sort of legal/magazine to discuss industry news and legal issues. We began our Tribal forum with you because of the very troubling (to us in Canada) decision against you in 1996. How did the community receive that judgment and what impact, if any, did it have on your gaming enterprises, which seem to be humming along nicely today?
We'd also like to know what impact, if any, the imposition of the anti-terrorist Bank Secrecy Act (BSA) is having or expected to have on your casinos and how the community feels about the possibility of a regulated Internet gaming scheme in the U.S. A summit in Los Angeles last week seems to think it's a very real possibility, though it may be wishful thinking on the part of panelists. We'd love to hear from you.
Many thanks,
Legal@pokerpulse.com
http://www.Pokerpulse.com
Tracking Internet poker worldwide.
We'll post any replies we receive right here. Please come back soon for updates.
Last edited by legal on Tue Jan 11, 2005 4:20 pm; edited 2 times in total |
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