D.C. Docket No. 96-Civ-2063-UUB[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Florida
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
This case, which involves alleged class III tribal gaming activity as defined by the Indian Gaming Regulatory Act ("IGRA"), demonstrates the continuing vitality of the venerable maxim that turnabout is fair play. In 1994, we held that the principle of state sovereign immunity embodied in the Eleventh Amendment barred the Seminole Tribe of Florida ("the Tribe") from suing the State of Florida under
25 U.S.C. 2710(d)(7)(A)(i) (1994) for the State's alleged failure to negotiate in good faith regarding the formation of a Tribal-State compact to regulate class III gaming. See Seminole Tribe v. Florida,
11 F.3d 1016, 1029 (11th Cir. 1994), aff'd,
517 U.S. 44 , 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). In this case, the State has sued the Tribe and its Chairman, James E. Billie, for both a declaration that the Tribe is conducting unauthorized class III gaming operations and an injunction preventing such operations in the absence of a Tribal-State compact. The district court granted the Tribe's motion to dismiss on the ground of tribal sovereign immunity, and granted Chairman Billie's motion to dismiss for failure to state a claim upon which relief can be granted. We affirm.
I.
The relevant facts may be briefly stated. The State commenced this action on July 29, 1996, and filed its amended complaint - the pleading at issue here - on September 9. In this complaint, the State alleged that the Tribe was operating "electronic or electromechanical facsimiles of games of chance" and that such operations constituted class III gaming as defined by IGRA. See
25 U.S.C. 2703(7)(B)(ii), (8) (1994). The Tribe operated these games despite the absence of a compact between the Tribe and the State regarding the regulation of class III gaming. The State also alleged that the Tribe planned to construct a new facility on its lands in order to conduct additional class III gaming.
According to the State's complaint, the operation of such games without a Tribal-State compact violates both federal and state law. In support of this claim, the State first points to IGRA's rule that "[c]lass III gaming activities shall be lawful on Indian lands only if such activities are . . . conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under [section2710(d)(3)] that is in effect."
25 U.S.C. 2710(d)(1)(C) (1994). Second, the State contends that the Tribe's games are "gambling devices" within the meaning of
15 U.S.C. 1171(a) (1994), and thus that
15 U.S.C. 1175(a) (1994) makes it a crime to possess or use them within Indian country. IGRA creates an exception to this prohibition by providing that section 1175 "shall not apply to any gaming conducted under a Tribal-State compact that - (A) is entered into . . . by a State in which gambling devices are legal, and (B) is in effect."
25 U.S.C. 2710(d)(6) (1994). The State argues, however,that this exception is inapplicable both because it has no compact with the Tribe and because the Tribe's games constitute illegal "slot machines" under Florida law. See Fla. Stat. ch. 849.15-16 (1997) (making it a crime, inter alia, to "possess" or "permit the operation of" such machines). Finally, the State contends that the Tribe has committed additional federal crimes by violating this state-law ban on slot machines, which applies to the Tribe's lands for purposes of federal law. See
18 U.S.C. 1166 (1994) (applying state laws regulating or prohibiting gambling to Indian country for purposes of federal law, defining - by reference to state gambling laws - independent federal offenses involving gambling in Indian country, and granting the United States exclusive jurisdiction over criminal prosecutions for violating state gambling laws unless a tribe consents to state jurisdiction);
18 U.S.C. 1955 (1994) (criminalizing a "gambling business" conducted in violation of state law).
Based on these factual allegations and arguments, the State asked the district court to declare that the Tribe was conducting unauthorized class III gambling operations in the absence of a Tribal-State compact, and to enjoin the Tribe from conducting any such operations without a compact. On October 10, 1996, the Tribe and Chairman Billie moved to dismiss the State's amended complaint on the following grounds: tribal sovereign immunity, lack of standing, and failure to state a claim. The district court granted this motion on June 15, 1997. The court found that the State's action was barred as to the Tribe because the Tribe had not expressly agreed to waive its sovereign immunity. The court also concluded that the State had failed to state a claim against Chairman Billie because there was no implied right of action under IGRA for declaratory or injunctive relief against unlawful class III gaming. This appeal followed.
II.
On appeal, the State challenges both the district court's finding of tribal sovereign immunity and its conclusion that the State failed to state a claim against Chairman Billie. We review the district court's rulings on these two questions of law de novo. See Tamiami Partners,Ltd. v. Miccosukee Tribe of Indians, No. 96-5262,
177 F.3d 1212, __,__ (11th Cir. 1999) [slip op. 2751, 2764; June 7, 1999]; Womack v. Runyon,
147 F.3d 1298, 1299 (11th Cir. 1998).
A.
"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez,
436 U.S. 49, 58, 98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106 (1978). A suit against an Indian tribe is therefore barred unless the tribe clearly waived its immunity or Congress expressly abrogated that immunity by authorizing the suit. See Kiowa Tribe v. Manufacturing Techs., Inc.,
523 U.S. 751, 118 S. Ct. 1700, 1702, 140 L. Ed. 2d 981 (1998); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S. Ct. 905, 909, 112 L. Ed. 2d 1112 (1991); Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians,
166 F.3d 1126, 1130-31 (11th Cir. 1999).
As we read its briefs on appeal, the State offers three theories to support its argument that the Tribe's sovereign immunity does not bar this suit: (1) Congress abrogated tribal immunity from state suits that seek declaratory or injunctive relief for alleged tribal violations of IGRA; (2) the Tribe, by electing to engage in gaming under IGRA, waived its immunity from a suit to require compliance with the statutory conditions precedent to class III gaming; and (3) tribal immunity does not necessarily extend to actions seeking prospective equitable relief. Although some courts have muddled the distinctions among these theories, they are actually quite different and will be considered separately here.
1.
We have previously held that "Congress abrogates tribal immunity onlywhere the definitive language of the statute itself states an intent either to abolish Indian tribes' common law immunity or to subject tribes to suit under the act." Florida Paraplegic Ass'n, 166 F.3d at 1131. In IGRA, Congress abrogated tribal immunity by authorizing a state to sue a tribe in district court "to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under [section 2710(d)(3)] that is in effect."
25 U.S.C. 2710(d)(7)(A)(ii) (1994). The State, citing Mescalero Apache Tribe v. New Mexico,
131 F.3d 1379, 1385-86 (10th Cir. 1997), argues that this provision of IGRA evinces a broad congressional intent to abrogate tribal immunity from any state suit that seeks declaratory or injunctive relief for an alleged tribal violation of IGRA. We disagree.
As an initial matter, we find that Mescalero provides no support for the State's argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that "IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA's provisions is at issue and where only declaratory or injunctive relief is sought." 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2. (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel's claim difficult to credit.
Moreover, we conclude that the panel's claim - and thus the State's argument in favor of a broad reading of section 2710(d)(7)(A)(ii) - directly contradicts two well-established principles of statutory construction: that Congress may abrogate a sovereign's immunity only by using statutory language that makes its intention unmistakably clear, and that ambiguities in federal laws implicating Indian rights must be resolved in the Indians' favor. See Florida Paraplegic Ass'n, 166 F.3d at 1131 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147, 87 L. Ed. 2d 71 (1985); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985)). When section 2710(d)(7)(A)(ii) of IGRA is read in light of these principles, it becomes clear that Congress abrogated tribal immunity only in the narrow circumstance in which a tribe conducts class III gaming in violation of an existing Tribal-State compact. Cf. Cabazon Band of Mission Indians v. Wilson,
124 F.3d 1050, 1059-60 (9th Cir. 1997) (concluding that section 2710(d)(7)(A)(ii) did not authorize state's suit to enjoin tribal class III gaming that existing Tribal-State compact did not prohibit). Because the State and the Tribe have not entered into a compact in this case, we hold that Congress has not abrogated the Tribe's immunity from the State's suit.
2.
The State next argues that the Tribe, by electing to engage in gaming subject to regulation under IGRA, waived its own immunity from this suit to compel compliance with IGRA's requirement that the Tribe enter into a Tribal-State compact before conducting class III gaming. See
25 U.S.C. 2710(d)(1)(C). There is some support for this argument in the case law. In Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992), for example, the court held that "[e]ngaging in gaming pursuant to the IGRA constitutes an express waiver of sovereignimmunity on the issue of compliance with the IGRA." See also Maxam v. Lower Sioux Indian Community, 829 F. Supp. 277, 281 (D. Minn. 1993) ("The Community's decision to conduct class II gaming pursuant to the IGRA constitutes a clear waiver of sovereign immunity for the purpose of enforcement of the requirements imposed as a statutory condition of permission to engage in such activities."). But see Davids v. Coyhis, 869 F. Supp. 1401, 1407-09 (E.D. Wis. 1994) (rejecting Ross and Maxam as contrary to the Supreme Court's decision in Santa Clara Pueblo).
The district court in this case, however, concluded that Ross and Maxam were wrongly decided. We agree. The Supreme Court has made it plain that waivers of tribal sovereign immunity cannot be implied on the basis of a tribe's actions, but must be unequivocally expressed. The State's argument that the Tribe's gaming activities constitute a waiver of sovereign immunity is patently inconsistent with this rule. Although the Ross court claimed that such gaming activities could constitute an express waiver, we find this claim to be no more than a misuse of the word "express." See Black's Law Dictionary 580 (6th ed. 1990) (defining express as "[m]anifested by direct and appropriate language, as distinguished from that which is inferred from conduct."). We hold, therefore, that the Tribe did not expressly and unequivocally waive its immunity from this suit by electing to engage in gaming under IGRA.
We are aware of the State's concern, echoed by the court in Maxam, 829 F. Supp. at 281, that this holding will effectively nullify its rights under IGRA by leaving it with no forum in which it can prevent the Tribe from violating IGRA with impunity. Even if we were to assume arguendo that the State is correct, it is far from clear that "tribal [sovereign] immunity [must give way to] federal jurisdiction when no other forum is available for the resolution of claims." Fluent v. Salamanca Indian Lease Auth.,
928 F.2d 542, 547 (2d Cir. 1991) (rejecting this proposition); accord Ute Distrib. Corp. v. Ute Indian Tribe,
149 F.3d 1260, 1266 n.8 (10th Cir. 1998) ("The proposition that tribal immunity is waived if a party is otherwise left without a judicial remedy is inconsistentwith the reasoning of Santa Clara Pueblo."); Makah Indian Tribe v. Verity,
910 F.2d 555, 560 (9th Cir. 1990) ("Sovereign immunity may leave a party with no forum for its claims."); cf. Florida Paraplegic Ass'n, 166 F.3d at 1134(implying that lack of forum in which to pursue claim has no bearing on tribal sovereign immunity analysis). We need not decide this question here, however, because it is clear that other fora do exist in which the State may press its claims. For example, the State can request that the United States prosecute the Tribe or its members for violating applicable state or federal gambling laws. See supra part I (listing the various criminal laws allegedly violated by the Tribe). The State can also ask the National Indian Gaming Commission ("NIGC") to fine the Tribe or to close its gaming facilities. See
25 U.S.C. 2713 (1994).
3.
Finally, the State seeks to avoid the bar of tribal sovereign immunity by arguing that the Tribe's immunity does not necessarily extend to this action for prospective equitable relief. This argument is rooted in the following comment from Justice Stevens' concurring opinion in Oklahoma Tax Commission: "the Court today recognizes that a tribe's sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking [prospective] equitable relief." 498 U.S. at 516, 111 S. Ct. at 913 (Stevens, J., concurring). Some of the above-mentioned courts have seized upon Justice Stevens' comment to support their conclusion that tribal sovereign immunity does not bar a suit to require tribal compliance with the statutory conditions precedent to gaming under IGRA. See Maxam, 829 F. Supp. at 281-82; Ross, 809 F. Supp. at 744-45.
We conclude that Justice Stevens' comment provides no solace to the State, however, because it is not the law. In Santa Clara Pueblo, 438 U.S. at 58-59, 98 S. Ct. at 1677, decided well before Oklahoma Tax Commission, the Court unequivocally upheld a tribe's immunity from a suit that sought only declaratory and prospective injunctive relief. In our view, this aspect of Santa Clara Pueblo remains the law today. Despite Justice Stevens' claim to the contrary (which was not joined by any other member of the Court), the Oklahoma Tax Commission majority announced that it was "not disposed to modify the long-established principle of tribal sovereign immunity." 498 U.S. at 510, 111 S. Ct. at 910. Moreover, the Court has since reaffirmed the doctrine of tribal sovereign immunity - over Justice Stevens' dissent - in the strongest of terms. See Kiowa Tribe, 523 U.S. at -, 118 S. Ct. at 1702 ("As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." (emphasis added)).
We discern two very good reasons for the Court's reluctance to sanction modifications of tribal sovereign immunity doctrine such as the one advocated by Justice Stevens: lack of precedent and deference to Congress. As to the first reason, we are aware of Justice Stevens' view that Edelman v. Jordan, 415 U.S. 651, 664-65, 94 S. Ct. 1347, 1356-57, 39 L. Ed. 2d 662 (1974), provides analogical support for his conception of tribal sovereign immunity. See Oklahoma Tax Comm'n, 498 U.S. at 515, 111 S. Ct. at 912 (Stevens, J., concurring). We respectfully disagree. Edelman merely discusses the type of relief that may be obtained in a suit against an individual officer of a sovereign; it says nothing whatsoever that could be construed to support the proposition that an otherwise-immune sovereign may itself be sued if only prospective equitable relief is sought. Cf. Seminole Tribe, 517 U.S. at 58, 116 S. Ct. at 1124 ("[W]e have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the [principle of sovereign immunity embodied in the] Eleventh Amendment."). Regarding the issue of deference, we note that Congress has been consistent in its approval of the Supreme Court's tribal sovereign immunity doctrine and has acted against the background of this doctrine in order to restrict tribal immunity in certain circumstances. See Kiowa Tribe, 523 U.S. at -, 118 S. Ct. at 1705; Oklahoma Tax Comm'n, 498 U.S. at 510, 111 S. Ct. at 910. In addition, the Court has stated that "Congress is in a position to weigh and accommodate the competing policy concerns and reliance interests" associated with any decision to alter the limits of tribal immunity. Kiowa Tribe, 523 U.S. at -, 118 S. Ct. at 1705. It is little wonder, therefore, that the Court has chosen to defer to Congress rather than to revisit its own tribal sovereign immunity jurisprudence. See Id. In light of these considerations, we decline to modify the doctrine of tribal sovereign immunity absent an express command to the contrary from either Congress or a majority of the Supreme Court. Accordingly, we reject the State's argument that the Tribe's immunity does not necessarily extend to this action for prospective equitable relief. The district court's holding that sovereign immunity bars the State's suit against the Tribe is affirmed.
B.
We now turn to the district court's holding that the State failed to state a claim against Chairman Billie because there is no implied right of action under IGRA for declaratory or injunctive relief against class III gaming that is being unlawfully conducted without a Tribal-State compact. In Cort v. Ash,
422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Supreme Court set forth four factors that are relevant in determining whether a private right of action is implicit in a statute:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," - that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Id. at 78, 95 S. Ct. at 2088 (citations omitted). The central inquiry under this framework is whether Congress intended to create the asserted private right of action. See Touche Ross & Co. v. Redington,
442 U.S. 560, 568, 99 S. Ct. 2479, 2485, 61 L. Ed. 2d 82 (1979); Florida Dep't of Bus. Regulation v. Zachy's Wine & Liquor, Inc.,
125 F.3d 1399, 1403 (11th Cir. 1997). Thus, when an examination of one or more of the Cort factors "unequivocally reveals congressional intent[,] there is no need for us to trudge through all four of the factors." Liberty Nat'l Ins. Holding Co. v. Charter Co.,
734 F.2d 545, 558 (11th Cir. 1984) (internal quotation marks omitted) (quoting Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 388, 102 S. Ct. 1825, 1844, 72 L. Ed. 2d 182 (1982)); see also Noe v. Metropolitan Atlanta Rapid Transit Auth.,
644 F.2d 434, 436-37 (5th Cir. Unit B May 1981).
The first Cort factor is a threshold question that must be "answered by looking to the language of the statute itself." Cannon v. University of Chicago, 441 U.S. 667, 689, 99 S. Ct. 1946, 1953, 60 L. Ed. 2d 560 (1979); see also Noe, 644 F.2d at 437. Most of the statutes that the Tribe has allegedly violated in this case are criminal in nature, see supra part I; the State does not contend that these statutes implicitly provide it with a right of action against the Tribe. Cf. Cannon, 441 U.S. at 690-93 & n.13, 99 S. Ct. at 1954-55 & n.13 (distinguishing criminal statutes and other statutes that impose duties for the benefit of the general public from statutes that explicitly confer rights directly on identified classes of persons, and noting the Supreme Court's reluctance to imply causes of action under the former type of statute); Taylor v. Citizens Fed. Sav. & Loan Ass'n,
846 F.2d 1320, 1322 (11th Cir. 1988) (same). The sole non-criminal statutory violation ascribed to the Tribe is a violation of IGRA's rule that "[c]lass III gaming activities shall be lawful on Indian lands only if such activities are . . . conducted in conformance with a Tribal-State compact . . . that is in effect."
25 U.S.C. 2710(d)(1)(C). We acknowledge that the language of this rule, if considered in isolation, could be viewed as granting states a qualified federal right to be free from class III tribal gaming activities within their borders in the absence of a compact regulating such activities. Cf. Seminole Tribe, 517 U.S. at 58, 116 S. Ct. at 1124 (noting that IGRA "grants the States a power that they would not otherwise have, viz., some measure of [civil/regulatory] authority over gaming on Indian lands"). Nevertheless, we conclude that the legislative history and statutory scheme of IGRA - the second and third Cort factors - unequivocally demonstrate that Congress did not intend to vindicate any such right by creating a private right of action that would allow states to obtain injunctive relief against uncompactedclass III tribal gaming. See Noe, 644 F.2d at 437-38 (stating that the first Cort factor is a necessary, but not a sufficient, basis for finding an implied right of action, and noting that a statement to the contrary in Cannon is no longer the law).
The legislative history of IGRA indicates that Congress, in developing a comprehensive approach to the controversial subject of regulating tribal gaming, struck a careful balance among federal, state, and tribal interests. See S. Rep. No. 100-446, at 5-6 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3074-76. A central feature of this balance is IGRA's thoroughgoing limits on the application of state laws and the extension of state jurisdiction to tribal lands. See id. The legislative history reveals that Congress constructed limits on state power with particular care in the area of class III gaming. The Senate Report states that, in adopting the position that class III gaming may not be conducted on triballands without a Tribal-State compact, "the [Select Committee on Indian Affairs] has carefully considered the law enforcement concerns of tribal and State governments, as well as those of the Federal Government, and the need to fashion a means by which differing public policies of these respective governmental entities can be accommodated and reconciled." Id. at 6, 1988 U.S.C.C.A.N. at 3076; see also id. at 13, 1988 U.S.C.C.A.N. at 3083 (listing objectives of state and tribal governments regarding the conduct of class III gaming). After balancing these concerns, "[t]he Committee concluded that the compact process is a viable mechanism for setting various matters between [states and tribes as] equal sovereigns." Id. With regard to this process, the Committee recognized "the need to provide some incentive for States to negotiate with tribes in good faith because tribes will be unable to enter into such gaming unless a compact is in place." Id. Although it appreciated the difficulty of finding such an incentive, the Committee unequivocally stated its "intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from such gaming." Id. We would surely frustrate this intent - and upset the carefully-struck congressional balance of federal, state, and tribal interests and objectives - by recognizing an implied right of action under IGRA in which a state, on its own initiative, could sue to enjoin a tribe from conducting class III gaming without a compact. This we decline to do.
The statutory scheme of IGRA provides additional evidence of congressional intent that strongly supports our decision not to find an implied right of action. It is a well-established principle of statutory construction that "when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians,
63 F.3d 1030, 1049 (11th Cir. 1995) (quoting National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers,
414 U.S. 453, 458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974)). In IGRA, Congress provided a multitude of express remedies. See, e.g.,
25 U.S.C. 2710(d)(7)(A)(ii) (authorizing state or tribal suit to enjoin class III gaming conducted in violation of compact);
25 U.S.C. 2710(d)(7)(A)(iii) (1994) (authorizing suit by Secretary of Interior to enforce procedures for conducting class III gaming);
25 U.S.C. 2711(d) (1994) (authorizing tribal suit to compel Chairman of NIGC either to approve or to disapprove management contract);
25 U.S.C. 2713(a)(2), (b)(2) (1994) (creating right to hearing before NIGC regarding fine imposed or temporary closure ordered by Chairman);
25 U.S.C. 2713(c), 2714 (1994) (authorizing appeal to district court of NIGC fines, permanent closure orders, and certain other decisions). As discussed in part II.A.2., supra, two such remedies are particularly relevant to the problem of uncompacted class III tribal gaming. Under
25 U.S.C. 2713, the NIGC can fine a tribe or close a tribal gaming facility if it finds that the tribe is conducting class III gaming without a compact in violation of
25 U.S.C. 2710(d)(1)(C). In addition, under
25 U.S.C. 2710(d)(6), Congress declined to shield those who engage in class III tribal gaming without a compact from federal criminal prosecution pursuant to statutes such as
15 U.S.C. 1175(a).
The existence of these various express remedies is a clear signal that we should not read into IGRA the implied right ofaction asserted by the State. See Touche Ross & Co., 442 U.S. at 572, 99 S. Ct. at 2487 ("Obviously, then, when Congress wished to provide a private . . . remedy, it knew how to do so and did so expressly."); Tamiami, 63 F.3d at 1049. Moreover, it is important to recognize that such an implied right of action would wreak havoc upon the existing remedial scheme of IGRA. For example, as noted in part II.A.1. above, IGRA expressly authorizes a state to sue a tribe in district court "to enjoin a class III gaming activity [1] located on Indian lands and [2] conducted in violation of any Tribal-State compact . . . that is in effect."
25 U.S.C. 2510(d)(7)(A)(ii). Giving a state an implied right of action against class III tribal gaming conducted in the absence of a compact would be tantamount to deleting the second requirement that must be met in order for the state to pursue this express right of action. If Congress had wanted to delete this portion of the statute, it could easily have done so. Wewill not usurpin the legislative role by deleting it ourselves, particularly when doing so would undermine one of the few remaining incentives for a state to negotiate a compact with a tribe.
Recognizing an implied right of action would also have a detrimental impact on the criminal remedial scheme which IGRA contemplates that the United States will use to combat illegal tribal gaming. To illustrate this problem, assume that an official of a tribe that has no compact operates class III games that constitute "gambling devices" within the meaning of
15 U.S.C. 1171(a). This official could be prosecuted by the United States for violating
15 U.S.C. 1175. If the state in which the gaming occurred could beat the prosecutor to the punch by persuading a court to enter an injunction against any further operation of the games, two negative consequences would result. First, the official would be deprived of his congressionally-recognized right to invoke the safeguards of criminal procedure when his gaming activities are challenged in court. Second, the discretion of the United States not to prosecute the official would be severely restricted in light of the court's recognition that improper gaming had occurred. It is consequences such as these that underpin the traditional rule that equity will not enjoin the commission of a crime. See 11A Charles Alan Wright et al., Federal Practice & Procedure 2942, at 70-71 (2d ed. 1995); supra note 10 (discussing this rule). We will not depart from this rule by creating an implied right of action under which a state can attempt to force the hand of a federal prosecutor in this manner.
In light of our conclusion that the second and third Cort factors unequivocally counsel against implying the private right of action sought by the State, we do not consider the fourth factor here. We hold, therefore, that the State has no implied right of action under IGRA for declaratory or injunctive relief against class III tribal gaming that is being unlawfully conducted without a Tribal-State compact.
III.
For the foregoing reasons, the order of the district court granting the defendants' motion to dismiss is AFFIRMED.
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