Tribal immunity and access for the disabled.

AuthorHasday, Lisa R.
PositionCase Note

Tribal Immunity and Access for the Disabled

Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians, 166 F.3d 1126 (11th Cir. 1999).

Self-sufficiency is a value with particular significance for both disabled people and Indian tribes, two historically disadvantaged groups. In Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians,(1) each of these two groups battled to preserve this important value for itself. The case considered whether the Florida Paraplegic Association and the Association for Disabled Americans could sue the Miccosukee Tribe for failing to meet the accessibility standards of Title III of the Americans with Disabilities Act of 1990 (ADA).(2) In this case of first impression,(3) the Court of Appeals for the Eleventh Circuit reversed the ruling of the U.S. District Court for the Southern District of Florida, which had denied the Tribe's motion to dismiss,(4) Senior Circuit Judge Kravitch ruled that the Tribe, while subject to the ADA,(5) retained common-law immunity from a private suit alleging violations of Title III.(6) This decision shielded the Tribe from being required to comply with ADA standards with regard to the parking lot, front door, wheelchair ramps, and bathrooms at the Miccosukee Indian Bingo and Gaming Center, a restaurant and entertainment facility that the Tribe owned.(7)

This Case Note argues that the Miccosukee plaintiffs might have circumvented the obstacle of tribal sovereign immunity if they had sued tribal members rather than the Miccosukee Tribe as a whole.(8) Part I discusses the Ex parte Young doctrine in the context of state sovereign immunity and argues that the doctrine would have applied in the Miccosukee case if the defendant had been a state. Part II explores how this doctrine applies in the tribal context, citing cases that have held that tribal immunity does not extend to individual members of tribes. Part III elaborates on the policy considerations that support such an approach and suggests that courts should limit tribal sovereign immunity.

I

In the context of state rather than tribal sovereignty, the strategy of suing individuals (instead of the larger entities of which they are part) is well established. Ex parte Young(9) held that the Eleventh Amendment(10) does not preclude suits against state officers in their official capacity when the plaintiff seeks prospective injunctive relief to end a continuing violation of federal law.(11) Seminole Tribe v. Florida,(12) a recent Supreme Court case upholding state sovereign immunity in federal court, reframed the Ex parte Young doctrine as a narrow exception to the Eleventh Amendment.(13) The majority held that the Ex parte Young doctrine could not be used to bring suit under the Indian Gaming Regulatory Act of 1988 (IGRA)(14) against a state official.(15) The Court declared that the doctrine applies only where a "limited" statutory remedial scheme exists, not where there is a "detailed" one.(16)

Although Seminole Tribe clearly restricted the scope of Ex parte Young, scholars have concluded that the Ex parte Young doctrine is still good law. David Currie, for instance, declared that Ex parte Young is "alive and well and living in the Supreme Court."(17) He noted that the Court's decision does not preclude the application of Ex parte Young to statutes other than IGRA(18) and that "the impact of Seminole Tribe upon Ex parte Young remedies turns on analysis of the terms, history, purpose, and context of the remedial provisions of the particular statute sought to be enforced."(19) The courts may also be motivated to continue their use of the Ex parte Young doctrine after Seminole Tribe because the latter decision contains several analytical flaws.(20)

Cases decided after Seminole Tribe in the specific context of ADA violations demonstrate that the Ex parte Young doctrine is still in force.(21) In Nelson v. Miller,(22) the Sixth Circuit held that the Ex parte Young exception applied to a case in which blind voters brought an action against the Michigan Secretary of State. The voters alleged that the official had violated the ADA and the Rehabilitation Act of 1973 (RA)(23) in failing to provide them with a means of marking their ballots without third-party assistance. Because the plaintiffs sought only future compliance rather than retroactive money damages, the court determined that their claims were not against the state and were sufficient to compel the state officer to comply with federal law.(24) In Armstrong v. Wilson,(25) disabled state-prison inmates and parolees sought wide-ranging, wholesale institutional reforms of a state's prison system based on alleged violations of the ADA and the RA. The Ninth Circuit rejected the defendants' argument that such broad reform was outside the bounds of Ex parte Young.(26) These cases upheld the Ex parte Young doctrine on the ground that it is "sufficient" to invoke the doctrine where prospective injunctive relief is sought.(27) Even the Seminole Court noted that it has "often ... found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to `end a continuing violation of federal law.'"(28)

As in Nelson and Armstrong, the plaintiffs in Miccosukee sought only a prospective injunction.(29) These precedents demonstrate that the Miccosukee plaintiffs would have been able to bring their ADA suit if the restaurant and entertainment facility had been owned by the state and if they had named individual state officials as defendants in a suit for prospective injunctive relief. The next Part argues that the results should be the same if the defendants were members of an Indian tribe.

II

Ex parte Young and Seminole Tribe address Eleventh Amendment issues that unquestionably apply to states, not to tribes. The same strategy of targeting individual defendants...

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