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SOUTER, J., dissenting

other, of leaving an individual powerless to seek any federal remedy for violation of a federal right, would deplete the federal judicial power to a point the Framers could not possibly have intended, given a history of officer liability riding tandem with sovereign immunity extending back to the Middle Ages. See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 18 (1963); Erlich, No. XII: Proceedings Against the Crown (1216-1377) pp. 28–29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). The holdings in Treasure Salvors and Lee, like the holding that should obtain here, represent a line drawn short of such an extreme, and if the Court may curse it as formalistic so may any line be cursed that must be drawn somewhere between unacceptable extremes. In the title cases cited, as in any other such suit, the State could ultimately settle its title by choosing to litigate the disputed title once and for all; in most cases, of course, the State may choose its own forum, though in this instance it would need the permission of the United States, see n. 8, supra. (As that note previously explained, the fact that the United States is required to consent to such a suit against an Indian tribe has nothing to do with the doctrinal basis of Young and is hardly an inequity to the States when viewed historically. See n. 11, infra.) The line is a fair via media between the extremes.

What is equally significant, finally, is that an officer suit implicating title is no more or less the “functional equivalent” of an action against the government than any other Young suit. States are functionally barred from imposing a railroad rate found unconstitutional when enforced by a state officer; States are functionally barred from withholding welfare benefits when their officers have violated federal law on timely payment; States are functionally barred from locking up prisoners whom their wardens are told to release. There is nothing unique about the consequences of an officer suit

SOUTER, J., dissenting

involving title, and if the Court's reasoning were good in a title case it would be good in any Young case.

B

The second joint reason that commands a majority turns on the fact that something more than mere title would be affected if the Tribe were to prevail. As the principal opinion puts it, "[t]he suit seeks, in effect, a determination that the lands in question are not even within the regulatory jurisdiction of the State,” ante, at 282, and state ownership of submerged lands "uniquely implicate[s] sovereign interests,” ante, at 284, such that the injunction sought by the Tribe would have an unusual effect on the State's "dignity and status,” ante, at 287. This is the same reason that JUSTICE O'CONNOR gives for concluding that Lee and Tindal are not controlling here. See ante, at 290-291. She points out that Lee and Tindal involved claims to land that remained subject to state regulation even after the government officers were held to lack possessory authority, while here, if the Tribe were to prevail, no such regulatory power would be retained given that the submerged lands would no longer be "within Idaho's sovereign jurisdiction.” Ante, at 289.

While this point is no doubt correct, it has no bearing on Young's application in this case. The relevant enquiry, as noted, is whether the state officers are exercising ultra vires authority over the disputed submerged lands. If they are, a federal court may enjoin their actions, even though such a ruling would place the land beyond Idaho's regulatory jurisdiction and accordingly deny state officers regulatory authority. Idaho indisputably has a significant sovereign interest in regulating its submerged lands, see Utah Div. of State Lands v. United States, 482 U. S. 193, 195 (1987), but it has no legitimate sovereign interest in regulating submerged lands located outside state borders.

If, indeed, there were any doubt that claims implicating state regulatory jurisdiction are as much subject to Young

SOUTER, J., dissenting

as cases contesting the possession of property, the facts of Ex parte Young itself would suffice to place that doubt to rest. Young was a suit to enjoin a State's Attorney General from enforcing a state statute regulating railroad rates and threatening violators with heavy sanctions. One would have difficulty imagining a state activity any more central to state sovereignty than such economic regulation or any more expressive of its governmental character than the provision for heavy fines. A State obliged to choose between power to regulate a lake and lake bed on an Indian reservation and power to regulate economic affairs and punish offenders would not (knowing nothing more) choose the lake. Implications for regulatory jurisdiction, therefore, do nothing to displace Ex parte Young.

III

The remaining points of exception are, as I understand, confined to the principal opinion.

A

That opinion suggests that the line between officer and State may be dissolved for jurisdictional purposes because the state officials here were acting in accordance with state law in their administration of the disputed land: if state law purports to authorize the acts complained of, they are not unauthorized for purposes of discerning the line between officials and their State under the Eleventh Amendment. Ante, at 281, 286,287.

If compliance with state-law authority were a defense to a Young suit, however, there would be precious few Young suits. State-law compliance is in fact a characteristic circumstance of most cases maintained under Young, see, e.g., Edelman, 415 U. S., at 655, which are brought not because the defendant officials are mavericks under state law but because the state law is claimed to violate federal law made controlling by the Supremacy Clause. Young, accordingly, made it clear from the start that in a federal-question suit

SOUTER, J., dissenting

against a state official, action in violation of valid federal law was necessarily beyond the scope of any official authority, , thus rendering the official an individual for Eleventh Amendment purposes and thus obviating an encroachment on the State's immunity. 209 U. S., at 159–160; see also Pennhurst, 465 U. S., at 102–103, 105; Quern, 440 U. S., at 337; Scheuer v. Rhodes, 416 U. S. 232, 237 (1974) (noting that since Young, "it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law').

In this case, indeed, the allusion to conformity with state law is doubly misplaced, for it is common ground here that state law is irrelevant if under federal law the combined executive and congressional action vested title to the submerged lands in the Tribe. Each party is claiming under federal law, and the only issue is whether the regulatory action by the state officials is authorized or ultra vires as judged under that federal law. The jurisdictional question is posed, in other words, just as if this were a suit against a federal officer, as in Larson, 337 U. S., at 701-702, and this case is essentially like Treasure Salvors, 458 U. S., at 675– 676, and n. 5, 695–697, in which the outcome turned directly on title under federal law.

B

The principal opinion's next reason for displacing Young rests on its view that the declaratory and injunctive relief the Tribe seeks is functionally equivalent to a money judgment and thus would amount to an impermissibly retrospective remedy. “[I]f the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury.” Ante, at 287. The principal opinion's assumption, in other words, is that intrusiveness is retrospectivity, an equation false to customary language usage and antithetical under extant Eleventh

SOUTER, J., dissenting

Amendment doctrine to probably every case decided under Ex parte Young, including the original. The exercise of Young jurisdiction for vindicating individual federal rights is necessarily “intrusive,” simply because state officials sued under Young are almost always doing exactly what their States' legislative and administrative authorities intend them to do. The state officers in Treasure Salvors were expected to secure 25 percent of the treasure salvaged from a sunken galleon for the State of Florida; an order to bring the treasure before a federal court in admiralty was nothing if not a threat to the State's expectations and intrusive into its affairs. See 458 U. S., at 678–679, 694 (opinion of STEVENS, J.). So was the injunction requiring the issuance of welfare benefits within federally mandated time limits in Edelman, see 415 U. S., at 656–659; and the order to get out of Arlington Cemetery in Lee, see 106 U. S., at 197, 220–221; and the order barring enforcement of a rail rate regulation in Young itself, see 209 U. S., at 132; and any order granting relief in any federal habeas case, see, e. g., Brennan v. Stewart, 834 F. 2d 1248, 1252, n. 6 (CA5 1988). If intrusiveness were to be a limitation on Young, the limitation would be terminal.10

С

A third reason proposed by the principal opinion in support of today's result is the supposedly supplemental character of federal-question jurisdiction under Young, subject to giving way whenever the private plaintiff would have entree

10 Under existing statutes it would not be even a partial answer to say that Congress has the power under $5 of the Fourteenth Amendment to abrogate state sovereign immunity, as to cases within the subject matter covered by the state habeas statute, 28 U. S. C. $ 2254, and Rev. Stat. $ 1979, 42 U. S. C. § 1983; habeas claims are directed to state officers, see 28 U. S. C. $ 2243; States are not persons subject to suit under $ 1983, see Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989); and in neither instance could Congress be said to have intended to abrogate an immunity arising under the Eleventh Amendment.

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