Inyo County v. Paiute-Shoshone Indians of Bishop Community of Bishop Colony, 538 U.S. 701, 14 (2003)

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BISHOP COMMUNITY OF BISHOP COLONY Stevens, J., concurring in judgment

sion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2

In this case, however, the Tribe's allegations do not state a cause of action under 1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 711 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See ibid. That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the 1983 remedy was enacted.

Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion.

2 Our holding in Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989), that a State is not a "person" within 1983 is fully consistent with this view. Will rested on "the ordinary rule of statutory construction that if Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.' Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984)." Ibid.

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