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Subject: 89-1782 -- OPINION, BLATCHFORD v. NATIVE VILLAGE OF NOATAK




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.
SUPREME COURT OF THE UNITED STATES


No. 89-1782



EDGAR BLATCHFORD, COMMISSIONER, DEPART-
MENT OF COMMUNITY AND REGIONAL AFFAIRS
OF ALASKA, PETITIONER v. NATIVE VILLAGE
OF NOATAK AND CIRCLE VILLAGE


on writ of certiorari to the united states court of appeals for the ninth
circuit

[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.

I
    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. MDBR 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    The legislature repealed the revenue-sharing statute in 1985, see 1985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. MDRV 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).

II
    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. {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 MDRV 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. {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.

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

A
    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 MDRV 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 MDRV 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 MDRV 1331(a) as it
existed at the time MDRV 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. MDRV 1331(a) (1964
ed.).


Considering the text of MDRV 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 MDRV 1331, where the amount in controversy was greater than $10,000;
for all that appears from its text, MDRV 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 MDRV 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. MDRV 1341, denied such access to persons other
than the United States; we held that MDRV 1362 revoked that denial as to
Indian tribes.  Moe did not purport to be saying that MDRV 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 MDRV 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). {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 MDRV 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 "MDRV 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.

B
    Finally, respondents ask us to recognize MDRV 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 MDRV 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 MDRV 1331, the grant of general federal-question jurisdiction
to district courts, and no one contends that MDRV 1331 suffices to abrogate
immunity for all federal questions. {4}

    Respondents' argument, however, is not that MDRV 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 MDRV 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 MDRV 1362) did we first acknowledge a
congressional power to abrogate state immunity -- under MDRV 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 MDRV 1362.  At the time MDRV
1362 was enacted, abrogation would have been regarded as such a novel (not
to say questionable) course that a general "arising under" statute like
MDRV 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 MDRV 1362 an abrogation of state
sovereign immunity. {5}

IV
    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 MDRV 1362
eliminated not only the statutory bar of MDRV 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 MDRV 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, MDRV 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 MDRV 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.