A Treasure Not Worth Salvaging

Article excerpt

Following on the heels of last Term's landmark decision in Seminole Tribe v. Florida,(1) the Supreme Court will wade, yet again, into the murky waters of Eleventh Amendment jurisprudence when it hears Idaho v. Coeur d'Alene Tribe. In Coeur d'Alene, the Supreme Court will reexamine the legal fiction of Ex parte Young,(2) which interprets the Eleventh Amendment to bar suits for injunctive relief against the state as state, while at the same time permitting such suits against state officials. Although one decision cannot resolve entirely the numerous doctrinal inconsistencies within current Eleventh Amendment law, Coeur d'Alene presents the Court with an ideal opportunity to continue its efforts to redefine the balance of power in federal-state relations,(3) while at the same time clarifying Ex parte Young's application to suits seeking adjudication of a state's interest in real property.

Coeur d'Alene arises from a dispute between the Coeur d'Alene Tribe and the State of Idaho over ownership of the waters, banks, and beds [hereinafter "submerged lands"] within the 1873 boundaries of the Tribe's reservation.(4) 1991, the Tribe filed suit in federal district court(5) against the State and numerous state agencies and officials, seeking to gain possession of the submerged lands. In response, the State contested the merits of the Tribe's claims and moved to dismiss the complaint on Eleventh Amendment grounds.(6) The district court granted the State's motion to dismiss in its entirety.(7) On appeal, however, the Ninth Circuit affirmed the district court's opinion in part and reversed in part.(8) While the panel agreed that the Eleventh Amendment granted immunity to the State and state agencies,(9) it held the Eleventh Amendment did not provide similar immunity to state officials.(10)

Applying the three-prong test endorsed by a plurality of the Supreme Court in Florida Department of State v. Treasure Salvors, Inc.,(11) the court concluded that the Eleventh Amendment did not bar the Tribe's claims for declaratory and injunctive relief.(12) The Treasure Salvors test asks:

(a) Is this action asserted against officials of the State or is it an action brought directly against the State ... itself? (b) Does the challenged conduct of state officials constitute an ultra vires or unconstitutional withholding of property or merely a tortious interference with property rights? (c) Is the relief sought by [plaintiffs] permissible prospective relief or is it analogous to a retroactive award that requires "the payment of funds from the state treasury"?(13)

The Tribe passed the first prong of the test because it alleged state officials were exercising control over the submerged lands in violation of federal law. According to Ex parte Young, any violation of federal law by state officials cannot be attributed to the state for Eleventh Amendment purposes.(14) The Tribe also clearly passed the second prong: Allegations that state officials were denying the Tribe rights given to them by the federal government in 1873 were more than sufficient to constitute an ultra vires or unconstitutional withholding of property.(15) The court had the greatest difficulty in applying the third prong of the test. While federal courts are allowed to grant prospective relief requiring state officials to conform their future conduct to federal law, they cannot grant relief that is retrospective in nature, such as money damages.(16)

The Ninth Circuit avoided the prohibition on retrospective remedies by characterizing the declarative and injunctive relief sought by the Tribe as prospective in nature.(17) The court based its ruling on its interpretation of the Supreme Court's plurality opinion in Treasure Salvors, stating that "federal courts may not hear actions to quiet title to property, in which the state claims an interest, without the state's consent,"(18) yet "declaratory and injunctive relief against state officials to foreclose future violations of federal law is available even if that relief works to put the plaintiff in possession of property also claimed by the state. …