THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, March 28, 1996 TAG: 9603280405
SECTION: FRONT PAGE: A2 EDITION: FINAL
SOURCE: THE WASHINGTON POST
DATELINE: WASHINGTON LENGTH: Medium: 75 lines
The Supreme Court handed states a big victory Wednesday when it ruled that Congress exceeded its authority in trying to force state officials to negotiate gambling deals with Indian tribes.
While the 5-to-4 ruling may eventually curtail the $4 billion-a-year tribal gaming business, its larger significance is in the message it sends about the court's desire to cut back what it sees as federal intrusiveness. Legal scholars across the ideological spectrum described the decision as a dramatic shift toward state interests at the expense of Congress.
A narrow but strong-minded majority of this court has made plain in recent years it believes Congress has encroached too much on rights of the states. The pattern at the court matches the trend in the Republican-majority Congress to move away from national social policies in favor of state-by-state control, no matter how policies and services differ.
In a case decided Wednesday, the court ruled that Congress cannot give tribes the right to sue states or state officials in federal court when the states fail to negotiate over casinos and other gambling enterprises on reservations. Many states have sought greater control over the burgeoning Indian gaming business.
``The big winners are the states. The big loser is Congress. The Indians are still holding their gaming cards and deciding how to play them next,'' said Bruce S. Rogow, the lawyer who represented the Seminole Tribe of Florida in its complaint against the state of Florida for failing to negotiate over casino gambling in 1991.
He noted that the Indian tribes still can take their case to state courts and possibly get assistance from the secretary of the interior, who would remain the sole federal arbiter of disputes between states and Indian tribes over gambling.
The opinion written by Chief Justice William H. Rehnquist dramatically limits the power of Congress to create what is known as a private right of action - that is, an individual's right to bring a lawsuit - against a state if the state has violated a federal right flowing from the Constitution or a federal statute. This is one of the remedies Congress has used over the years to make sure states carry out federal programs.
Rehnquist said the Constitution's 11th Amendment - which generally protects states from being sued in federal courts - restricts judicial power. He said congressional power cannot ``circumvent the constitutional limitations placed upon federal jurisdiction.'' Rehnquist was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Justice David H. Souter, who took the extraordinary step of reading portions of his dissent from the bench, declared that the majority opinion ``flies in the face of the Constitution's text.''
``The court today holds for the first time since the founding of the Republic that Congress has no authority to subject a state to the jurisdiction of a federal court at the behest of an individual asserting a federal right,'' he wrote in his opinion joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer.
Justice John Paul Stevens, who wrote a separate dissent, said the court's ruling will prevent federal lawmakers from authorizing individuals to sue states in federal court when states do not abide by federal environmental law, copyright and patent law, and bankruptcy provisions.
While Rehnquist tried to play down the turn the court was taking, noting that the court was directly overruling only one prior opinion, from 1989, numerous scholars said the ruling marked a dramatic shift toward state interests.
Although Congress will no longer be able to attach an individual right-to-sue remedy onto legislation, it still has the force of the federal purse. Lawyers from both sides said Congress still could condition federal funds on a state's acceptance of certain terms, including allowing itself to be sued. by CNB