Rhode Island v. Narragansett Indian Tribe

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1400

STATE OF RHODE ISLAND, ET AL.,
Plaintiffs, Appellants,

v.

NARRAGANSETT INDIAN TRIBE, ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Aldrich and Coffin, Senior Circuit Judges.

W. Mark Russo, with whom Jeffrey B. Pine, Attorney General,

Alan M. Shoer, Special Assistant Attorney General, Elizabeth

Murdock Myers, Suzanne Worrell, and Adler, Pollock & Sheehan were

on brief, for state appellants.
Bruce N. Goodsell on brief for municipal appellants.

Scott Harshbarger, Attorney General (Mass.), Douglas H.

Wilkins, Assistant Attorney General (Mass.), Michael J.

Carpenter, Attorney General (Me.), and Frankie Sue Del Papa,

Attorney General (Nev.) on brief for States of Massachusetts,
Maine, and Nevada, amici curiae.
Charles A. Hobbs, with whom Arlene Violet, Matthew S. Jaffe,

and Hobbs, Straus, Dean & Wilder were on brief, for appellees.

March 23, 1994

SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.

determine whether the Indian Gaming Regulatory Act, 25 U.S.C.

2701-2721, 18 U.S.C. 1166-1168 (1988) (the Gaming Act),

applies to lands now held in trust by the United States for the

benefit of the Narragansett Indian Tribe (the Tribe). This

determination is tinged with more than the usual quotient of

public interest, because the Tribe's ability to import casino

gambling into Rhode Island likely hangs in the balance. After

careful reconnaissance of a littered legal landscape, we set

aside the district court's determination that the parties'

dispute over the applicability of state jurisdiction is not yet

ripe for adjudication and hold that Congress's grant of

jurisdiction to the state in the Rhode Island Indian Claims

Settlement Act of 1978, 25 U.S.C. 1701-1716 (the Settlement

Act), remains valid. We also hold, contrary to the Tribe's

importuning, that the grant includes civil regulatory

jurisdiction.

At that juncture, the tide turns. We conclude, despite

the state's vehement protests, that the Gaming Act does not

specially exempt the lands in question; that the Narragansetts

have concurrent jurisdiction over, and exercise governmental

power with respect to, those lands, and, therefore, are entitled

to invoke the Gaming Act; and that, to the extent of the

jurisdictional conflict between the Settlement Act and the Gaming

Act, the former is impliedly repealed. In the end, we affirm

both the district court's directive that Rhode Island enter into

2

good faith negotiations to draft a tribal-state compact under

which gaming operations can be mounted and its refusal to grant

relief to various governmental figures and entities who have

challenged the Tribe's entitlement to the extraordinary

prophylaxis of the Gaming Act.

I. THE SETTLEMENT LANDS
I. THE SETTLEMENT LANDS

We begin with a thumbnail sketch of how the land mass

that is the breeding ground for this dispute came to be held in

trust for the Tribe.

In the late 1970s, the Tribe asserted title claims to

certain lands in Charlestown, Rhode Island, and, encountering

resistance, pursued these claims in the federal courts. See Town

of Charlestown v. United States, 696 F. Supp. 800, 801-05 (D.R.I.

1988) (recounting history of dispute), aff'd, 873 F.2d 1433 (1st

Cir. 1989) (table). In 1978, the Tribe, the state, and the Town

of Charlestown signed a joint memorandum of understanding (J-MEM)

purporting to settle their differences. The Tribe agreed, inter

alia, to the extinguishment of its title claims. In return, it

obtained valuable consideration, including a lump-sum payment and

effective control over roughly 1800 acres in Charlestown (the

settlement lands), half donated by the state and half by private

landowners.1 The titleholders agreed to deed the property to a

1The provenance of the two parcels remains of continuing
legal relevance because the 900 acres donated by the state may be
used only for conservation purposes. See 6A R.I. Gen. Laws 37-

18-14 (1990). Thus, the development plan for high-stakes
gambling is of necessity limited to the so-called "private"
portion of the settlement lands.

3

nascent corporation which would be formed to hold title for the

Tribe's benefit.

Because Congress possesses plenary power over Indian

matters, see Morton v. Mancari, 417 U.S. 535, 551-52 (1974), the

parties sought its blessing. In response, Congress passed the

Settlement Act, a law that, for the most part, tracks the J-MEM.

In 1978, the state legislature approved the Narragansett Indian

Land Management Corporation Act, 6A R.I. Gen. Laws 37-18-1 to

37-18-15 (1990) (the State Act), thereby creating the nominee

corporation that would hold title to the settlement lands. The

necessary conveyancing followed.

The next five years passed without relevant incident.

Then, in 1983, the Secretary of the Interior, acting pursuant to

departmental regulations, see 25 C.F.R., Part 83 (1993),

officially recognized the Narragansetts as an Indian tribe. See

48 Fed. Reg. 6177-78 (Feb. 2, 1983). On the heels of federal

recognition, the settlement lands changed hands twice more. In

1985, the Rhode Island General Assembly amended the State Act to

permit the holding company to transfer title to the Tribe.2 The

corporation complied. In September of 1988, less than a month

2The State Act amendments themselves suggest that
congressional approval of the land transfer is "required and
appropriate," 6A R.I. Gen. Laws 37-18-14, and the case law is
in accord, see Oneida Indian Nation v. Oneida County, 414 U.S.

661, 667-68 (1974) (explaining that, as a general rule, Indian
tribes may not alienate their land without congressional
consent). Yet, Congress never ratified the State Act amendments.
Because the validity of the title transfer is not directly in
issue in this litigation, and because appellants have not
acknowledged, much less relied upon, the absence of ratification,
we do not explore the consequences of this omission.

4

before the Gaming Act became law, the Tribe deeded the settlement

lands to the federal Bureau of Indian Affairs (the Bureau) as

trustee.

II. THE GAMING ACT
II. THE GAMING ACT

The Gaming Act is an expression of Congress's will in

respect to the incidence of gambling activities on Indian lands.

The statute sets in place a sophisticated regulatory framework,

defining a species of gambling, called "gaming," and dividing it

into tiers, called "classes." Each class connotes a different

level of gambling activity and, consequently, each class is

regulated to a varying degree of stringency. See 25 U.S.C.

2703(6) - 2703(8).

Class I gaming which consists, essentially, of Indian

ritual gambling always can be conducted on Indian lands. See

25 U.S.C. 2710(a)(1). Class II gaming which encompasses

bingo can be conducted as of right on Indian lands in any

state, such as Rhode Island, that does not generally proscribe

activities of that type. See 25 U.S.C. 2710(b)(1)(A). Class

III gaming a residual category that includes what is commonly

thought of as casino gambling is permitted by compact; and,

moreover, a state is obliged to negotiate such a compact in good

faith with a sponsoring tribe unless the state bans all persons

throughout its territory from conducting class III gaming. See

25 U.S.C. 2710(d). Short of an outright ban and few state

5

legislatures have indicated a willingness to go that far3 the

tribal-state compact is the exclusive method of regulating class

III gaming. The method of the Gaming Act prevents a state from

frustrating the introduction of class III gaming by an endless

filibuster, for there are tight time parameters within which

compact negotiations must be brought to fruition once a federal

court finds that a state has failed to bargain in good faith.

See id. 2710(d)(7)(B). As a practical matter, then, a state

ordinarily may regulate casino gambling on Indian lands only in

pursuance of a consensual compact.

Because the case at bar revolves around class III

gaming, the centrality of this last point cannot be

overstated. One of the Gaming Act's fundamental policies is that

"Indian tribes have the exclusive right to regulate gaming

activity on Indian lands . . . ." Id. 2701(5). The

legislative history of the statute draws out the implications of

this policy:

The mechanism for facilitating the unusual
relationship in which a tribe might
affirmatively seek the extension of State
jurisdiction and the application of state
laws to activities conducted on Indian land
is a tribal-State compact. In no instance
does [the Gaming Act] contemplate the
extension of State jurisdiction or the
application of State laws for any other
purpose.

3There are strong economic and political disincentives to an
outright ban, for class III gaming encompasses, among other
things, such popular sources of state revenue as lotteries, and
such familiar fundraising devices as "Las Vegas nights" to
benefit churches and other charities.

6

S. Rep. No. 446, 100th Cong., 2d Sess. 3, reprinted in 1988

U.S.C.C.A.N. 3071, 3075-76.

Under our tripartite system of government, Congress,

not the courts, is empowered to make such policy choices. See

Irons v. FBI, 811 F.2d 681, 689 (1st Cir. 1987) (acknowledging

that the legislative branch sets policy by means of statutes and

the courts must honor the legislature's policy choices and

enforce the statutes). Thus, the courts have not focused on the

wisdom of the policies underlying the Gaming Act, but have

followed the legislative lead and recognized that the very

structure of the Gaming Act forbids the assertion of state civil

or criminal jurisdiction over class III gaming except when the

tribe and the state have negotiated a compact that permits state

intervention. See, e.g., United Keetoowah Band of Cherokee

Indians v. Oklahoma, 927 F.2d 1170, 1177 (10th Cir. 1991); Sycuan

Band of Mission Indians v. Roache, 788 F. Supp. 1498, 1504 (S.D.

Cal. 1992).

III. PROCEEDINGS BELOW
III. PROCEEDINGS BELOW

On January 15, 1992, the Tribe formally requested that

Rhode Island enter into good faith bargaining designed to produce

a tribal-state compact that would allow construction and

operation of a casino, i.e., inauguration of class III gaming, on

the settlement lands. Rhode Island declined to negotiate,

instead filing suit in the federal district court.4 The state

4As matters now stand, the named plaintiffs (appellants
before us) include the state, the town, and various state and
municipal officials. For simplicity's sake, we refer to the

7

asked the court to declare that the Gaming Act does not apply to

the settlement lands, and that, therefore, those lands are

subject to Rhode Island's general criminal and civil laws

(including its civil regulatory laws). The state also sought to

enjoin the development of gambling facilities on the settlement

lands and to block negotiations antecedent to a tribal-state

compact. The Tribe answered and counterclaimed for declaratory

and injunctive relief that would pave the way for casino gambling

on the settlement lands. The tribe requested, among other

things, a declaration that the state's civil regulatory laws do

not apply to the settlement lands; a declaration that the

Narragansetts are entitled to operate a class III casino on those

lands in conformance with the Gaming Act; and a mandatory

injunction commanding the state to negotiate in good faith toward

a compact.

The district court considered cross motions for summary

judgment premised on a joint statement of uncontroverted facts.

After pondering the parties' proffers, the court deferred

substantive consideration of the dispute over the general

applicability of state and local jurisdiction, citing ripeness

concerns. See Rhode Island v. Narragansett Tribe of Indians, 816

F. Supp. 796, 799-800 (D.R.I. 1993). The court then assumed, for

argument's sake, that the state had been granted jurisdiction

plaintiffs, collectively, as "Rhode Island" or "the state."
Similarly, we refer to the defendants, collectively, as "the
Narragansetts" or "the Tribe," noting, however, that plaintiffs'
suit also names two tribal hierarchs as defendants.

8

over the settlement lands by virtue of the Settlement Act. See

id. at 804. Proceeding on that assumption, the court concluded

that any such grant was "preempted" by the Gaming Act, and,

consequently, had no enduring force or effect. Id. Based on

these findings, the court ordered the state to enter into good

faith negotiations to formulate a tribal-state compact. See id.

at 806.

In reaching the conclusion that the Gaming Act

controlled, the court divided its reasoning into four parts.

First, it cited with approval three precedents holding that the

Gaming Act overrode other federal statutes of earlier vintage.

See id. at 801-02. Second, it found the evidence of Congress's

intent to place Rhode Island beyond the Gaming Act's sphere to be

unpersuasive in the absence of textual support in the statute.

See id. at 802-04. Third, it dismissed the suggestion that the

Gaming Act could not trump the Settlement Act because the former

was the more general of the two statutory schemes. See id. at

804. Fourth, it determined that the Tribe "ha[d] jurisdiction"

and "exercise[d] governmental power" over the settlement lands in

sufficient measure to animate the Gaming Act. See id. at 805-06.

After the plaintiffs filed a timely notice of appeal,

the district court stayed its order.5

IV. THE DECISIONAL FRAMEWORK
IV. THE DECISIONAL FRAMEWORK

5The Tribe originally cross-appealed from the stay and from
the denial of its motion for relief therefrom. In a separate
order, we today dismiss that cross-appeal, the Tribe having
failed to present any developed argumentation in support thereof.

9

The search for statutory meaning inevitably reduces to

a pure question of law. Thus, the issues on appeal engender de

novo review, to be conducted without special deference to the

district court's views. See, e.g., FDIC v. Keating, F.3d

, (1st Cir. 1993) (per curiam) [No. 93-1230, slip op. at

4]; Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d

750, 757 (1st Cir. 1992). When a court interprets statutes that

touch on Indian sovereignty, general rules of construction apply,

but they must be visualized from a distinctive perspective. The

Court has described this coign of vantage:

The underlying premise is that congressional
intent will control. In determining this
intent, we are cautioned to follow "the
general rule that `[d]oubtful expressions are
to be resolved in favor of [Indians]". . . .
But the "general rule" does not command a
determination . . . in the face of
congressionally manifested intent to the
contrary. In all cases, "the face of the
Act," the "surrounding circumstances," and
the "legislative history," are to be examined
with an eye toward determining what
congressional intent was.

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-87 (1977)

(citations omitted); see also South Carolina v. Catawba Indian

Band, 476 U.S. 498, 506 & n.16 (1986) (collecting cases).

Our search follows an odd trajectory in this case,

because it starts down a road that the district court chose not

to explore, and, once that journey is ended, proceeds to trace

the path of an argument that ultimately proves to be a dead end.

Although this approach is unorthodox, we think it facilitates a

systematic testing of the appellants' core contention: that the

10

settlement lands lie beyond the Gaming Act's reach.

The nature of our approach makes it desirable that we

set out a roadmap. We propose, in the following two parts, to

deal with the Settlement Act, for, if that statute did not confer

state jurisdiction in respect to the settlement lands, or if

state jurisdiction, once conferred, vanished before the Gaming

Act materialized, then the state's case would necessarily

founder. To this end, we discuss in Part V whether the

jurisdictional inquiry is ripe; finding that it is, we discuss in

Part VI the validity and scope of the jurisdiction ceded to the

state by the Settlement Act.

Next, we must consider the Gaming Act's effect on the

state's jurisdiction. In Part VII, we deal with and rebuff

the state's suggestion that the settlement lands are entirely

exempt from the Gaming Act. In Part VIII, we deal with and

rebuff the state's argument that, even absent a categorical

exemption, the Tribe's relationship to the settlement lands does

not possess the attributes needed to trigger the Gaming Act's

provisions. The final curtain falls at the conclusion of Part

IX, where we confront the interface between the Settlement Act

and the Gaming Act, and test the district court's remedial order

in the crucible of our understanding.

V. RIPENESS
V. RIPENESS

The lower court declined to resolve the issue of state

and local jurisdiction, finding no "case of actual controversy"

sufficient to satisfy the Declaratory Judgment Act, 28 U.S.C.

11

2201 (1988). Narragansett Tribe, 816 F. Supp at 800. Though we

are mindful of the deference due to a district court's decision

to withhold a grant of declaratory relief, see El Dia, Inc. v.

Hernandez Colon, 963 F.2d 488, 492 (1st Cir. 1992), we believe

that the court abused its discretion in this instance.

A. The Applicable Standards.
A. The Applicable Standards.

When faced with questions of ripeness in the

declaratory judgment context, this court employs the test

developed in Abbott Laboratories v. Gardner, 387 U.S. 136, 149

(1967). The test, as phrased in our cases, contains two parts:

First, we consider whether an issue is fit
for review, e.g., whether a challenged
government action is final and whether
determination of the merits turns upon facts
which may not yet be sufficiently developed.
Second, we consider the question of hardship,
a question which typically turns upon whether
the challenged action creates a direct and
immediate dilemma for the parties.

El Dia, 963 F.2d at 495 (citation and internal quotation marks

omitted); accord W.R. Grace & Co. v. United States EPA, 959 F.2d

360, 364 (1st Cir. 1992). The key consideration in this analysis

"is the extent to which the claim involves uncertain and

contingent events that may not occur as anticipated, or indeed

may not occur at all." Lincoln House, Inc. v. Dupre, 903 F.2d

845, 847 (1st Cir. 1990) (citation and internal quotation marks

omitted).

Applying this test in the declaratory judgment context

often requires custom tailoring, for there are at least two

salient differences between declaratory actions and the mine-run

12

of other cases: first, declaratory relief is more likely to be

discretionary; and, second, declaratory actions contemplate an

"ex ante determination of rights" that "exists in some tension

with traditional notions of ripeness." Step-Saver Data Systems,

Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990). Our

opinion in El Dia responded to the first of these differences.

See El Dia, 963 F.2d at 491-93. We believe that our opinion

today responds to the second difference.

The linchpin of ripeness under the Declaratory Judgment

Act, as in all Article III cases, is adverseness. In a

declaratory judgment action adverseness must be appraised in a

practical, commonsense way. Thus, satisfying the adverseness

requirement demands that "the facts alleged, under all the

circumstances, show that there is a substantial controversy,

between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory

judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312

U.S. 270, 273 (1941), citing Aetna Life Ins. Co. v. Haworth, 300

U.S. 227, 239-42 (1937). This requirement should not be applied

woodenly. Most litigation has idiosyncratic features, and the

adverseness criterion invites careful calibration on a case-by-

case basis. The line is often difficult to draw. While a

declaratory judgment should not be granted "in speculative

situations," Public Affairs Assocs., Inc. v. Rickover, 369 U.S.

111, 112 (1962), a litigant "does not have to await the

consummation of threatened injury to obtain preventive relief.

13

If the injury is certainly impending that is enough." Pacific

Gas & Elec. Co. v. State Energy Resources Conserv. & Dev't

Comm'n, 461 U.S. 190, 201 (1983) (citation omitted).

One sound way of gauging adverseness is to evaluate the

nature of the relief requested. The controversy must be such

that it admits of "specific relief through a decree of conclusive

character, as distinguished from an opinion advising what the law

would be upon a hypothetical state of facts." Aetna Life, 300

U.S. at 240-41. Some courts call this measure of adverseness

"conclusivity" and treat it as a separate requirement. See,

e.g., Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 421-23

(3d Cir. 1992).

The second part of the ripeness inquiry evoked by

declaratory judgment actions is concerned with the hardship to

the parties that would result from a refusal to consider granting

relief. We believe that this part of the inquiry should focus on

the judgment's usefulness. Rather than asking, negatively,

whether denying relief would impose hardship, courts will do well

to ask, in a more positive vein, whether granting relief would

serve a useful purpose, or, put another way, whether the sought-

after declaration would be of practical assistance in setting the

underlying controversy to rest. See Step-Saver, 912 F.2d at 647.

This formulation is hardly a radical departure from

Abbott Laboratories and its progeny, for the one question may

always be transformed into the other. For example, to say that

denying relief is tolerable where an adequate state remedy has

14

been realized is tantamount to saying that granting the requested

relief in such a situation would be pointless. See El Dia, 963

F.2d at 495. Indeed, the Court some time ago observed that one

reason the legal issues must be crystallized in a declaratory

action is to enable the trial judge to see "some useful purpose

to be achieved in deciding them." Public Service Comm'n v.

Wycoff Co., 344 U.S. 237, 244 (1952). Furthermore, framing the

hardship question in a positive fashion best comports with the

spirit of the Declaratory Judgment Act. As Judge Becker

explained: "The idea behind the Act was to clarify legal

relationships so that plaintiffs (and possibly defendants) could

make responsible decisions about the future." Step-Saver, 912

F.2d at 649 (citing legislative history).

B. Applying the Standards.
B. Applying the Standards.

Here, the district court's ruling on ripeness flowed

from the notion that neither the state nor the town would have

any occasion to exercise reserved jurisdiction until the compact

negotiation process ended, thereby clearing the way for class III

gaming. Narragansett Tribe, 816 F. Supp. at 799-800. The court

seemed to focus on the uncertainty of the situation, suggesting

that the need for the relief requested depended on the occurrence

of speculative events. We disagree.

Whether state and local authorities retain any

jurisdiction over the settlement lands is a question of immediate

importance to all parties, separate and apart from the question

of precisely what state and local jurisdiction survives. We

15

think, in fairness to the parties, that the former question must

be settled before they are ordered to commence negotiations for a

tribal-state compact. Because the required interpretation of the

Settlement Act projects a "purely legal" issue, W.R. Grace, 959

F.2d at 364, the resolution of which will not be changed by

further factual development, and because it is of critical

importance to the negotiation process in which the parties must

engage, see infra Part IX(B), the case for a finding of

adverseness is very powerful. And, moreover, while it is true

that the compact negotiations may bear on the timing of class III

gaming and the allocation of regulatory responsibilities, the

negotiations cannot effect the existence vel non of state and

local jurisdiction.

The impetus for reaching the merits is strengthened

because the other characteristics traditionally associated with

ripeness are also extant. We have no serious reservation about

whether the proper parties are before the court or whether the

requested ruling will, if granted, conclusively define the

parties' baseline legal rights. By like token, such a ruling

would be of great near-term utility, facilitating the course of

future tribal-state compact negotiations and clarifying to some

extent the legal status of the settlement lands at a time when

substantially expanded use seems highly probable. Accordingly,

we rule that the basic issue of state and local jurisdiction

(although not the specific, fact-intensive permutations of that

issue, see infra Part IX(C)) is ripe for declaratory judgment

16

purposes.

VI. STATE AND LOCAL JURISDICTION
VI. STATE AND LOCAL JURISDICTION

Addressing the merits of this issue entails an

examination of the validity and scope of the Settlement Act. The

Act states that, with two exceptions not relevant here,6 "the

settlement lands shall be subject to the civil and criminal laws

and jurisdiction of the State of Rhode Island." 25 U.S.C.

1708. The Tribe maintains that this pronouncement was nugatory

when made, or, if initially effective, was relegated to the scrap

heap well before Congress enacted the Gaming Act. The Tribe also

maintains that, validity aside, any grant of jurisdiction

excludes civil regulatory jurisdiction, and, therefore, has no

bearing upon the proposed operation of a gambling casino. We are

not persuaded.

A. Validity.
A. Validity.

The Tribe's basic position is that, even prior to the

Gaming Act, section 1708 of the Settlement Act did not constitute

a valid conferral of jurisdiction because, until federal

recognition occurred in 1983, the Tribe had no jurisdiction to

relinquish.

This resupinate reasoning stands logic on its ear. The

Tribe did not surrender jurisdiction in 1978. Rather, the Tribe,

the state, and the town came to an agreement, spelled out in the

J-MEM, to ask Congress, among other things, to grant jurisdiction

6The exceptions relate to the Tribe's general exemption from
state taxation, 25 U.S.C. 1715(a), and its exemption from state
regulations anent fishing and hunting, 25 U.S.C. 1706(a)(3).

17

to the state. The Tribe has articulated no reason why,

regardless of its legal status, Congress lacked the power to

effectuate this jurisdictional grant.

In any event, the Tribe is mistaken in its professed

belief that it lacked jurisdictional power at the time of the

Settlement Act. Federal recognition is just that: recognition

of a previously existing status. The purpose of the procedure is

to "acknowledg[e] that certain American Indian tribes exist." 25

C.F.R. 83.2 (1993). The Tribe's retained sovereignty predates

federal recognition indeed, it predates the birth of the

Republic, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56

(1978) and it may be altered only by an act of Congress, see

Morton, 417 U.S. at 551-52.7

The Tribe has two other arrows in its jurisdictional

quiver. First, it hypothesizes that section 1708 did not survive

federal recognition. This hypothesis is the mirror image of the

hypothesis just considered: rather than being cast as the

prerequisite for the conferral of jurisdiction, recognition is

taken to have nullified that conferral. The two hypotheses

suffer from the same infirmity. Tribal sovereignty (and, hence,

jurisdiction) may be neither augmented nor diminished except

7This legal principle also disposes of certain other
arguments raised by the Tribe. Thus, the Tribe's sovereignty
could not have been eviscerated by an act of the Rhode Island
General Assembly, unratified by Congress, that purported to
extinguish tribal status, see 1879-1880 Acts, Resolves and

Reports of the General Assembly of the State of Rhode Island and

Providence Plantations, Chap. 800, at 101-06, or by the issuance

of mere administrative notices, see, e.g., 48 Fed. Reg. 6177-78

(Feb. 2, 1983).

18

through congressional enactment. Second, the Tribe suggests

that, if section 1708 survived recognition, it did not survive

the subsequent alienation of the settlement lands. This

suggestion goes nowhere. Supposing that the jurisdictional grant

contained in section 1708 could have been jettisoned by the

state, the Tribe, or the Bureau without congressional sanction

a supposition we do not share the fact is that, at every

salient moment, the parties in interest took pains to reaffirm

section 1708.8 We conclude, therefore, that the grant of

jurisdiction contained in section 1708 of the Settlement Act was

valid when made, and was undiluted at the time Congress passed

the Gaming Act.

B. Scope.
B. Scope.

Validity notwithstanding, it is an open question

whether the jurisdictional grant contained in section 1708

extends to civil regulatory jurisdiction. The Tribe insists not.

It tells us that the enacting Congress intended to copy the

distinction between civil regulatory and civil adjudicatory

jurisdiction limned two years earlier in Bryan v. Itasca County,

426 U.S. 373 (1976). We find this tale to be both unsupported

and unsupportable.

The Tribe's argument runs along the following lines.

8The 1985 State Act amendments transferring title from the
holding company to the Tribe contained a provision for state
jurisdiction substantially identical to that contained in section
1708, see 6A R.I. Gen. Laws 37-18-13(b); and the deeds

conveying the settlement lands from the Tribe to the Bureau in
1988 explicitly confirmed the applicability of section 1708.

19

In its view, there are salient discrepancies in respect to

jurisdiction among the J-MEM, the original Senate bill leading to

the Settlement Act, and the final version of the Act itself. To

illustrate the Tribe's point, we list the three versions of the

jurisdictional clause side by side, in order of drafting.

According to three documents, the settlement lands were to be

subject to:

All laws of the state . . . including but not
limited to state and local building, fire and
safety codes [J-MEM, 13];

the complete civil and criminal jurisdiction
of the State. . . . [Joint Hearing on S.3153
and H.R. 12860, 95th Cong., 2d Sess., at 36,
51 (June 20, 1978)];

the civil and criminal laws and jurisdiction
of the State. . . . [18 U.S.C. 1708].

Analogizing to Bryan, the Tribe posits that this progression

signals Congress's intent to limit the jurisdictional grant.

This proposed interpretation finds no succor in the

legislative history. Without such support, we think it is

evident that the Narragansetts read too much into too little.

Considering the overall context, the deviations from one document

to another do not strike us as especially significant. The

progressive development of the jurisdictional language can more

plausibly be interpreted as intended to clarify the breadth of

the grant, rather than to narrow it. Perhaps the drafters feared

that "all laws of the state" might suggest regulatory

jurisdiction alone, and that "civil and criminal jurisdiction"

might imply only jurisdiction in the judicial sense. "Civil and

20

criminal laws and jurisdiction" more obviously includes all sorts

of jurisdiction, and can fairly lay claim to being the broadest

of the three formulations.

The only change arguably suggesting a diminution in the

scope of jurisdiction is the removal of the word "complete" from

the draft version of the bill. We think that this change, too,

may be understood as an attempt at clarification: the word

"complete" could well have been removed simply to avoid any

suggestion that the grant of jurisdiction was intended to be

exclusive. Cf. United States v. Cook, 922 F.2d 1026, 1032 (2d

Cir.) (suggesting that "exclusive jurisdiction" and "complete

jurisdiction" may have the same connotation), cert. denied, 111

S. Ct. 2235 (1991). For that reason, the discrepant language is

at best inconclusive.

The small changes in phraseology pinpointed by the

Tribe, floated without visible means of support, place this case

at considerable remove from Bryan, a case in which the Court

confronted a genuinely suggestive lingual discrepancy, and

interpreted the final version of the statute in line with clearly

articulated legislative history. See Bryan, 426 U.S. at 379-87.

Here, by contrast, the discrepancies that the Tribe perceives are

more conjectural than suggestive; there is absolutely nothing in

the legislative history of the Settlement Act that indicates

congressional intent either to limit the scope of state

jurisdiction or to carve a jurisdictional distinction along civil

21

regulatory/civil adjudicatory lines.9 Thus, Bryan is not a fair

congener.

Our assessment is reinforced by a commonsense tenet of

statutory construction. Relatively minor differences between an

Indian agreement and the ratifying act of Congress needed to give

it effect, without more, do not give rise to an inference that

Congress intended to modify the agreement. See Rosebud Sioux,

430 U.S. at 599 (holding that a 1904 act of Congress did not

modify a 1901 Indian agreement, despite a suggestive minor change

in language). At least when an "implied continuity in purpose"

exists between the antecedent agreement and the subsequently

enacted statute, courts should construe the latter to effectuate

the former, notwithstanding differing linguistic choices. Id.

So it is here, for the Settlement Act was designed to implement

the agreement embodied in the J-MEM. See, e.g., 25 U.S.C.

1701(d) (declaring that the J-MEM "requires implementing

legislation"); Joint Hearing at 97 (acknowledging that "the

legislation as drafted intends to implement the settlement

agreement") (statement of Alan R. Parker, Gen. Counsel, Sen.

Select Comm. on Indian Affairs).

We need not belabor the obvious. Since the self-

9We do not believe the Tribe's cause is aided by the
Bureau's tentative expression of support for the position that
section 1708 excludes civil regulatory jurisdiction. See

Southeast Regional Solicitor's Memorandum Opinion (April 30,
1992). The Bureau's views are not entitled to any special weight
in the interpretation of statutory provisions that it is not
charged to execute. See Crandon v. United States, 494 U.S. 152,

177 (1990).

22

serving inference drawn by the Tribe is plainly at odds with the

discernible intention undergirding the Settlement Act, and, in

the bargain, plays havoc with the statutory text, we decline

gratuitously to limit the scope of section 1708 in order to

parallel the holding in Bryan.10 Cf. United States v. Dakota,

796 F.2d 186, 188 (6th Cir. 1986) (refusing to extend Bryan

distinction to 18 U.S.C. 1955, because it would be

inappropriate to apply a test "developed in a different context

to address different concerns"). Hence, we conclude that the

Settlement Act granted civil regulatory jurisdiction, as well as

civil adjudicatory jurisdiction, to the state.11

C. Local Jurisdiction.
C. Local Jurisdiction.

We digress to add a few words about local jurisdiction,

mindful that the Town of Charlestown and certain municipal

officials are parties to this lawsuit.

Although we recognize both the town's desire to assert

jurisdiction in respect to the settlement lands and the Tribe's

opposition, we see nothing to be gained by giving separate

treatment to the question of local jurisdiction. As a general

10To the extent that the district court's opinion in Maynard

v. Narragansett Tribe, 798 F. Supp. 94, 98-99 (D.R.I. 1992),

aff'd on other grounds, 984 F.2d 14, 15 (1st Cir. 1993), suggests

a contrary view, we reject it.

11Because our analysis is specific to the Settlement Act, we
need not join the debate over the general applicability of the
Bryan distinction. See United Keetoowah Band, 927 F.2d at 1176

n.13 (surveying debate); see also Yavapai-Prescott Indian Tribe

v. Arizona, 796 F. Supp. 1292, 1294-96 (D. Ariz. 1992)

(discussing applicability of Bryan distinction in respect to

Gaming Act).

23

matter, municipal authority is entirely derivative of state

authority, see 7A R.I. Gen. Laws 45-2-1 (1991); and in the

exercise of governmental powers (as opposed to proprietary

powers), municipalities act only as the agents of the state, see

Buckhout v. City of Newport, 27 A.2d 317, 320 (R.I. 1942).

It follows that if the state chooses to cede a portion

of its sovereignty to the town, the town may use that authority

to the extent of the power delegated. See, e.g., Vukic v.

Brunelle, 609 A.2d 938, 941 (R.I. 1992). But delegated powers,

of necessity, cannot exceed those possessed by the delegator.

The town has cited no independent basis upon which it might

exercise municipal jurisdiction, and none is apparent to us.

Thus, Charlestown's concerns are necessarily subsumed in our

discussion of the state's jurisdiction.

VII. THE REACH OF THE GAMING ACT
VII. THE REACH OF THE GAMING ACT

Before addressing the Tribe's ultimate argument that

the Gaming Act cancels whatever jurisdiction the Settlement Act

granted we must first consider both furcula of the state's

assertion that the settlement lands are specifically exempted

from the Gaming Act's domain.

A. The Consensual Transfer Provision.
A. The Consensual Transfer Provision.

The Gaming Act's so-called "consensual transfer"

provision, familiarly known as "section 23(d)," is the site of

the next battle. It states in relevant part:

The United States shall have exclusive
jurisdiction over criminal prosecutions of
violations of State gambling laws that are
made applicable under this section to Indian

24

country, unless an Indian tribe pursuant to a
Tribal-State compact . . . or under any other
provision of Federal law, has consented to
the transfer to the State of criminal
jurisdiction with respect to gambling on the
lands of the Indian tribe.

18 U.S.C. 1166(d). This proviso, Rhode Island asseverates,

presages an exemption applicable to the settlement lands. On

this theory, section 23(d) allows a state lawfully to assert

civil and criminal jurisdiction over gaming under either a

tribal-state compact or "any other provision of Federal law" that

embodies a consensual transfer of jurisdiction. And it portrays

section 1708 of the Settlement Act as constituting such an agreed

transfer.

This interpretation signifies a promiscuous elevation

of hope over reason, for it completely overlooks two limitations

that are apparent on the face of the statute. First, section

23(d) is a penal provision that in terms deals only with criminal

prosecutions; it has no implications for civil jurisdiction

(whether regulatory or adjudicatory). Second, section 23(d)

pertains only to "gambling," which is defined for purposes of

that section as excluding any kind of "gaming." See 18 U.S.C.

1166(c). Thus, properly understood, section 23(d) allows states

to exercise jurisdiction pursuant to a consensual transfer only

to enforce criminal laws that proscribe gambling activities

falling outside the sanctuary of the Gaming Act. This is of no

assistance to Rhode Island, which seeks to assert unfettered

jurisdiction (including civil regulatory jurisdiction) over

25

activities constituting class II and class III gaming.12

B. Decrypting the Legislative History.
B. Decrypting the Legislative History.

Next, the state attempts a flanking maneuver. Without

meaningful citation to the Gaming Act's text, the state hawks the

proposition that Congress, in passing the Act, intended to leave

intact the grant of jurisdiction tendered a decade earlier in the

Settlement Act. And to fill the forensic void left by the utter

absence of any statutory language to this effect, the state

pushes forward carefully selected snippets of legislative

history. There are two significant problems with this approach.

In the first place, courts must look primarily to

statutory language, not to legislative history, in determining

the meaning and scope of a statute. See, e.g., United States v.

Turkette, 452 U.S. 576, 580 (1981); Consumer Prod. Safety Comm'n

v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); United States v.

Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987);

see also Felix Frankfurter, The Reading of Statutes, reprinted in

Of Law and Men 60 (Philip Elman ed. 1956) (noting importance of

statutory language and explaining that legislative intent "is not

drawn, like nitrogen, out of the air"). When a statute's text is

encompassing, clear on its face, and productive of a plausible

12The state's hopelessly mistaken interpretation of the
consensual transfer provision apparently derives from a dictum in
Lac du Flambeau Band of Lake Superior Chippewa Indians v.

Wisconsin, 743 F. Supp. 645, 653-54 (W.D. Wis. 1990) (suggesting

that the final version of section 23 was intended to exempt Rhode
Island). The Lac du Flambeau court was misled by the Senate

report's gloss on the soon-to-be-deleted Rhode Island exemption
provision, see infra pp. 26 n.13, 31-32. The case, therefore,

lacks precedential value.

26

result, it is unnecessary to search for a different,

contradictory meaning in the legislative record. See Charles

George Trucking, 823 F.2d at 688; United States v. Meyer, 808

F.2d 912, 915 (1st Cir. 1987); Massachusetts Fin. Servs., Inc. v.

Securities Investor Protection Corp., 545 F.2d 754, 757 (1st Cir.

1976), cert. denied, 431 U.S. 904 (1977). This is precisely such

a case.

In the second place, legislative history that is in

itself inconclusive will rarely, if ever, overcome the words of a

statute. In a case such as this one, an inquiring court, at

most, should resort to legislative history only to determine

"whether there is a `clearly expressed legislative intention'

contrary to [the statutory] language, which would require [the

court] to question the strong presumption that Congress expresses

its intent through the language it chooses." INS v. Cardoza-

Fonseca, 480 U.S. 429, 432 n.12 (1987) (quoting GTE Sylvania, 447

U.S. at 108). After careful consideration of Rhode Island's

extratextual arguments, we conclude that the material it musters

fails to establish such a clearly expressed legislative

intention.

The state begins this phase of its case by pointing to

a preliminary version of the Gaming Act that contained a

provision (former section 23) safeguarding the Settlement Act

from implied repeal.13 Once that foundation is poured, the

13In the original bill, former section 23 read as follows:

Nothing in this Act may be construed as

27

state then brings to the forefront a colloquy on the floor of the

Senate involving Rhode Island's two senators, Messrs. Pell and

Chafee, and Senator Inouye, sponsor and floor manager of the bill

that became the Gaming Act, regarding the eventual deletion of

former section 23 from the bill:

Mr. PELL. Mr. President, I would like to
thank the managers of S.555, the Indian
Gaming Regulatory Act, and particularly the
chairman of the Select Committee on Indian
Affairs [Mr. Inouye], for their hard work and
patience in achieving a consensus on this
important measure.

In the interests of clarity,14 I have asked
that language specifically citing the
protections of the Rhode Island Claims
Settlement Act (Public Law 95-395) be
stricken from S.555. I understand that these
protections clearly will remain in effect.

Mr. INOUYE. I thank my colleague, the
senior Senator from Rhode Island [Mr. Pell],
and assure him that the protections of the
Rhode Island Claims Settlement Act (P.L. 95-
395), will remain in effect and that the
Narragansett Indian Tribe clearly will remain
subject to the civil, criminal, and
regulatory laws of the State of Rhode Island.

permitting gaming activities, except to the
extent permitted under the laws of the State
of Rhode Island, on lands acquired by the
Narragansett Indian Tribe under the Rhode
Island Indian Claims Settlement Act or on any
lands held by, or on behalf of, such Tribe.

134 Cong. Rec. S12,649 (daily ed. Sept. 15, 1988). After the
Senate eliminated this provision it renumbered the remaining
provisions. As a result, former section 23 and section 23 as
enacted, 18 U.S.C. 1166, discussed supra Part VII(A), bear no

relation to one another.

14We are constrained to note that whatever interests
Congress may have been serving when it deleted the former section
23, "the interests of clarity" were not among them.

28

Mr. CHAFEE. Mr. President, I too would like
to thank the chairman [Mr. Inouye] and
members of the Select Committee on Indian
Affairs for their cooperation and assistance.
The chairman's statement makes it clear that
any high stakes gaming, including bingo, in
Rhode Island will remain subject to the
civil, criminal and regulatory laws of our
State.

134 Cong. Rec. S12,650 (daily ed. Sept. 15, 1988).

Although we give full faith and credit to the

earnestness of the senators involved in this exchange, we are

unable to accept the colloquy at face value. In the game of

statutory interpretation, statutory language is the ultimate

trump card. Consequently, the overarching rule is that

"statements by individual legislators should not be given

controlling effect"; rather, such statements are to be respected

only to the extent that they "are consistent with the statutory

language." Brock v. Pierce County, 476 U.S. 253, 263 (1986).

This interpretive rule applies fully to the special

case of statements by those members of Congress most intimately

associated with a bill: its floor manager and its sponsors. The

Court has so stated in unmistakable terms: "The contemporaneous

remarks of a sponsor of legislation are certainly not controlling

in analyzing legislative history." Weinberger v. Rossi, 456 U.S.

25, 35 n.15 (1982); see also Brock, 476 U.S. at 263; GTE

Sylvania, 447 U.S. at 118; Chrysler Corp. v. Brown, 441 U.S. 281,

311 (1979); cf. Grove City Coll. v. Bell, 465 U.S. 555, 567

(1984) (explaining that remarks of a sponsor may be taken as

29

authoritative to the extent that they are consistent with plain

language).15 Various courts of appeals, this court included,

repeatedly have echoed the same theme. See, e.g., North & South

Rivers Watershed Ass'n v. Scituate, 949 F.2d 552, 555 n.6 (1st

Cir. 1991); United States v. Tabacca, 924 F.2d 906, 911 (9th Cir.

1991); Devargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377,

1387 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991); United

States v. McGoff, 831 F.2d 1071, 1090-91 (D.C. Cir. 1987);

Northern Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509,

1518 (D.C. Cir. 1984).

This overarching rule makes good sense, for floor

statements afford solid evidence of congressional intent only

when they jibe with the final version of the statutory text. "To

permit . . . clear statutory language to be materially altered by

such colloquies, which often take place before the bill has

achieved its final form, would open the door to the inadvertent,

or perhaps even planned, undermining of the language actually

voted on by Congress and signed into law by the President."

Regan v. Wald, 468 U.S. 222, 237 (1984).

Another reason that this overarching rule makes sense

is that, as a practical matter, most members of the enacting

15While statements by legislative sponsors are sometimes
described as "an authoritative guide to the statute's
construction," North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

526-27 (1982) (citing cases), that description is appropriate
only when a statute's text leaves room for differing
interpretations. See, e.g., DeBartolo Corp. v. Florida Gulf

Coast Trades Council, 485 U.S. 568, 585 (1988) ("It is the

sponsors that we look to when the meaning of the statutory words

is in doubt.") (emphasis supplied).

30

Congress will be familiar only with the bill as it stands when

the vote occurs and, perhaps, with the committee reports, in

broad outline of purpose; they cannot be expected to be familiar

with every stray floor statement, with every twist and turn of

the bill's prior history, or with every other legislator's

thoughts as to what the bill accomplishes (or stops short of

accomplishing). Cf., e.g., Hirschey v. FERC, 777 F.2d 1, 7-9 &

n.1 (D.C. Cir. 1985) (Scalia, J., concurring) (observing that

members of Congress cannot be held accountable for lacking

knowledge of minute details in committee reports). It is

particularly unrealistic to attribute knowledge of statements

made on the Senate floor to House members, who gave their seal of

approval to the Senate bill only after the Rhode Island exemption

provision had been deleted, without mentioning Rhode Island's

parochial concern. See 134 Cong. Rec. H8146, H8426 (daily ed.

Sept. 27, 1988) (commemorating passage by the House of

Representatives). For much the same reason, it is unrealistic to

attribute such knowledge to the President.

In our republican form of government, legislators make

laws by writing statutes an exercise that requires putting

words on paper in a way that conveys a reasonably definite

meaning. Once Congress has spoken, it is bound by what it has

plainly said, notwithstanding the nods and winks that may have

been exchanged in floor debates and committee hearings. After

all, it is not the proper role of legislators to use unwritten

assurances or side arrangements to alter the clear meaning of

31

agreed language. And the judiciary must stand as the ultimate

guarantor of the integrity of an enacted statute's text.

In sum, once Congress has spoken, a court cannot

override the unambiguous words of an enacted statute and

substitute for them the court's views of what individual

legislators likely intended. Any other rule imports a virulent

strain of subjectivity into the interpretive task and, in the

process, threatens to transfer too large a slice of legislative

power from Congress to the courts. See Frankfurter, supra, at 60

(warning that courts should not be "led off the trail by tests

that have overtones of subjective design").

Here, the colloquy upon which the state relies is an

especially slender reed because it offers an explanation of

Congress's action that defies a widely accepted principle of

statutory construction. When Congress includes limiting language

in an early version of proposed legislation, and then rewrites

the bill prior to enactment so as to scrap the limitation, the

standard presumption is that Congress intended the proviso to

operate without limitation. See Cardoza-Fonseca, 480 U.S. at

432; Russello v. United States, 464 U.S. 16, 23-24 (1983); United

States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 362 n.8

(8th Cir. 1990).16 Deletion, without more, suggests that

16To be sure, it might be postulated that Congress deleted
former section 23 because it feared that a specific reference to
Rhode Island would give rise to the inference that other
individual states with special grants of jurisdiction were not
similarly exempted from the Gaming Act. Congress could have
avoided such ambiguity in a myriad of ways short of striking
former section 23, say, by substituting a generic exemption for a

32

Congress simply had a change of heart.

In this case, there is no "more." The state tries to

buttress its argument by touting a comment in the Senate report

to the effect "that nothing in the [Gaming Act] will supersede

any specific restriction or specific grant of Federal authority

or jurisdiction to a State which may be encompassed in another

Federal statute, including the Rhode Island Claims Settlement Act

[and the Maine] Indian Claims Settlement Act." 1988 U.S.C.C.A.N.

at 3082 (citations omitted). But this patch of legislative

history is also threadbare. The Senate report speaks only to the

bill as reported out of committee; it was composed before the

deletion of the special Rhode Island exemption provision, former

section 23, from the final version of the bill during floor

debate. Thus, the quoted statement sheds no light on Congress's

intent regarding the law it actually enacted.17

category of states including Rhode Island, or by citing Rhode
Island in a non-exhaustive list of states that would be exempted.
To accept the suggested rationale would be to indulge in sheer
speculation.

17We sympathize with the predicament in which Rhode Island's
senators found themselves being asked to take the word of a
powerful committee chariman but sympathy alone cannot carry the
day. Our dissenting brother puts the very best face on the
state's argument, yet the dissent, though gracefully written,
contains nothing to shake our view of either the controlling
legal principles or the legislative history. While we plead
guilty to the charge of literalism, placing strong emphasis on
the statutory text is a court's proper function. See, e.g., GTE

Sylvania, 447 U.S. at 108 (declaring that statutory language

"must ordinarily be regarded as conclusive"); Caminetti v. United

States, 242 U.S. 470, 490 (1917) (explaining that "when words are

free from doubt they must be taken as the final expression of the
legislative intent"). Moreover, we have made a point of
considering the legislative history of the Gaming Act on its own
terms, in recognition of the continuing influence of less text-

33

VIII. DOES THE GAMING ACT APPLY?
VIII. DOES THE GAMING ACT APPLY?

Our odyssey is not yet finished, as the state and the

amici construct a plausible textual argument as an amulet to ward

off the Gaming Act. This argument stems from the language

limiting the applicability of the Gaming Act's key provisions to

"[a]ny Indian tribe having jurisdiction over Indian lands," or,

stated differently, to "Indian lands within such tribe's

jurisdiction." See 25 U.S.C. 2710(d)(3)(A), 2710(b)(1).

These are dual limitations, for one element of the definition of

"Indian lands" requires that an Indian tribe "exercise[]

governmental power" over them. 25 U.S.C. 2703(4). Rhode

Island claims that the Narragansetts do not "hav[e] jurisdiction"

over, and do not exercise "governmental power" with respect to,

the settlement lands; and, thus, that the Gaming Act does not

pertain. Evaluating the state's thesis requires an exploration

into another aspect of congressional intent.

A. Having Jurisdiction.
A. Having Jurisdiction.

In the state's view, the phrase "having jurisdiction,"

as used in the Gaming Act, must, insofar as the settlement lands

are concerned, be gauged in light of the Settlement Act. We

based theories of statutory interpretation, such as that
underpinning Watts v. Alaska, 451 U.S. 259 (1981). We believe

that our result is compelled by any acceptable mode of
interpretation.
Finally, although we share Judge Coffin's reticence to
discredit responsible floor exchanges, we fail to see how a floor
exchange utterly at odds with the words of an enacted statute can
be given primacy in the interpretive process. If legislative
bodies desire to accomplish particular results, they must use
their tools with greater care.

34

agree. But the mere fact that the Settlement Act cedes power to

the state does not necessarily mean, as Rhode Island suggests,

that the Tribe lacks similar power and, thus, lacks

"jurisdiction" over the settlement lands. Although the grant of

jurisdictional power to the state in the Settlement Act is valid

and rather broad, see supra Parts V(B), VI, we do not believe

that it is exclusive. To the contrary, we rule that the Tribe

retains concurrent jurisdiction over the settlement lands and

that such concurrent jurisdiction is sufficient to satisfy the

corresponding precondition to applicability of the Gaming Act.

In undertaking the task of determining whether the

Settlement Act's jurisdictional grant is exclusive in nature, it

must be remembered that Indian sovereignty is "a backdrop against

which the applicable . . . federal statutes must be read."

McClanahan v. State Tax Comm'n, 411 U.S. 164, 172 (1973). This

backdrop is a necessary adjunct to the search for legislative

intent in the context of Indian-related legislation. See Cotton

Petroleum Corp. v. New Mexico, 490 U.S. 163, 176 (1989).

Consequently, we paint the backdrop before placing the statute at

center stage.

1. The Backdrop. Indian tribes are "distinct,
1. The Backdrop.

independent political communities, retaining their original

natural rights" in matters of local governance. Santa Clara

Pueblo, 436 U.S. at 55, quoting Worcester v. Georgia, 31 U.S. (6

Pett.) 515, 559 (1832). While tribal rights are retained at

congressional sufferance and are subject to defeasance should

35

Congress so elect, tribes retain their sovereign powers in full

measure unless and until Congress acts to circumscribe them. See

United States v. Wheeler, 435 U.S. 313, 323 (1978). As the

Supreme Court has explained, "Indian tribes still possess those

aspects of sovereignty not withdrawn by treaty or statute, or by

implication as a necessary result of their dependent status."

Id.; accord Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065-

66 (1st Cir. 1979).

We believe that jurisdiction is an integral aspect of

retained sovereignty. After all, the Court has held that

retained sovereignty includes the power of Indians to make and

enforce their own substantive law in internal matters, including

matters such as membership rules, inheritance rules, and the

regulation of domestic relations. See Santa Clara Pueblo, 436

U.S. at 56 (citing cases). Jurisdiction is cut from much the

same fabric.

Of course, the shape of retained sovereignty has never

been precisely defined. Thus, it cannot be said with assurance

whether or not criminal, civil adjudicatory, and civil regulatory

jurisdiction, in whole cloth, are aspects of retained

sovereignty. But we have no need today to map such far-flung

frontiers. For present purposes, so long as the portion of

jurisdiction encompassed within the natural rights of the

Narragansetts is substantial enough to satisfy the Gaming Act's

"having jurisdiction" prong, our inquiry is satisfied.

The state has not contended that any treaty impinges

36

upon the Tribe's jurisdiction. By like token, the record will

not support a finding of jurisdiction abandoned or lost through

implicit divestiture, see Wheeler, 435 U.S. at 326. We are left,

then, with the relatively confined question of whether the

Tribe's retained jurisdiction has been forfeited by statute. It

is against this backdrop that we focus the lens of our inquiry on

the Settlement Act.

2. The Settlement Act. By its terms, the Settlement
2. The Settlement Act.

Act purposes to do no more than grant jurisdiction to the state;

it does not expressly strip the Tribe of jurisdiction, transfer

jurisdiction from the Tribe to the state, or employ suggestive

adjectives like "exclusive" or "complete" in describing the

jurisdictional grant. The omission of the word "exclusive" looms

particularly large in light of the use of that word elsewhere.

For instance, the word is used to modify the general

jurisdictional grant in 18 U.S.C. 1162 (1988), one of the few

analogous statutes granting "civil and criminal jurisdiction"

over Indian lands to an individual state. Even more tellingly,

the word is used in the Settlement Act itself, which

characterizes as "exclusive" the grant to federal courts of

jurisdiction to entertain certain constitutional challenges. 25

U.S.C. 1711. This phenomenon commands our utmost attention,

for where "Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion." Rodriguez v.

37

United States, 480 U.S. 522, 525 (1987) (citations omitted).

We are not alone in our reluctance to infer exclusivity

absent some suggestion to that effect in the statutory text. At

least one other court has found the omission of words such as

"exclusive" or "complete" in a similar context to be meaningful.

See Cook, 922 F.2d at 1026, 1032-33 (concluding from the omission

of any such language that a grant to New York of jurisdiction

overIndian lands, embodied in 25 U.S.C. 232, is non-exclusive).

Comparative analysis is also instructive. We think it

is sensible to compare the jurisdictional grant embedded in the

Settlement Act with the jurisdictional grants encased in two

other Indian claims settlement acts that were to some extent

modeled after the Settlement Act. Both of the latter pieces of

legislation one involving Massachusetts, one involving Maine

contain grants of jurisdiction parallel to section 1708,

expressed in similar language. See 25 U.S.C. 1771g (1988); 25

U.S.C. 1725 (1988). Yet both acts also contain corresponding

limits on Indian jurisdiction, conspicuously absent from the

Settlement Act. See 25 U.S.C. 1771e(a); 25 U.S.C. 1725(f).

By placing stated limits on the retained jurisdiction of the

affected tribes, these newer acts imply that an unadorned grant

of jurisdiction to a state such as is embodied in the

Settlement Act does not in and of itself imply exclusivity.

We find these factors to be of decretory significance.

Given the strong congressional bias, especially noticeable in the

past generation, against policies that would promote Indian

38

assimilation, see Bryan, 426 U.S. at 387-88 & n.14, and also

given Congress's fortunate penchant for great clarity when

expressing its intent in this area, see id. at 389 ("Congress

kn[ows] well how to express its intent directly when that intent

[is] to subject . . . Indians to the full sweep of state laws.");

Mattz v. Arnett, 412 U.S. 481, 504 n.22 (1973) (observing that

Congress generally employs "clear language of express termination

when that result is desired") (collecting examples), we are of

the view that acts diminishing the sovereign rights of Indian

tribes should be strictly construed. So here. Since the

Settlement Act does not unequivocally articulate an intent to

deprive the Tribe of jurisdiction, we hold that its grant of

jurisdiction to the state is non-exclusive. The Narragansetts,

therefore, have made the necessary threshold showing. They

retain that portion of jurisdiction they possess by virtue of

their sovereign existence as a people a portion sufficient to

satisfy the Gaming Act's "having jurisdiction" prong.

B. Exercising Governmental Power.
B. Exercising Governmental Power.

In addition to having jurisdiction, a tribe must

exercise governmental power in order to trigger the Gaming Act.

Meeting this requirement does not depend upon the Tribe's

theoretical authority, but upon the presence of concrete

manifestations of that authority. Consequently, an inquiring

court must assay the jurisdictional history of the settlement

39

lands.18 Cf., e.g., DeCoteau v. District County Court, 420

U.S. 425, 442 (1975).

The inquiry into governmental power need not detain us.

In the post-recognition period, the Tribe has taken many strides

in the direction of self-government. It has established a

housing authority, recognized as eligible to participate in the

Indian programs of the federal Department of Housing and Urban

Development, see 24 C.F.R., Part 905 (1993). It has obtained

status as the functional equivalent of a state for purposes of

the Clean Water Act, after having been deemed by the

Environmental Protection Agency as having "a governing body

carrying out substantial governmental duties and powers," 33

U.S.C. 1377(e) (1988), and as being capable of administering an

effective program of water regulation, see 40 C.F.R. 130.6(d)

(1993). It has taken considerable advantage of the Indian Self-

Determination and Education Assistance Act (ISDA), a statute

specifically designed to help build "strong and stable tribal

governments." 25 U.S.C. 450(a)(b) (1988). The Tribe

administers health care programs under an ISDA pact with the

Indian Health Service, and, under ISDA contracts with the Bureau,

administers programs encompassing job training, education,

community services, social services, real estate protection,

18An historical perspective is also relevant to the "having
jurisdiction" inquiry. A "longstanding assumption of
jurisdiction . . . not only demonstrates the parties'
understanding of the meaning of the Act, but has created
justifiable expectations which should not be upset . . . ."
Rosebud Sioux, 430 U.S. at 604-05.

40

conservation, public safety, and the like. These activities

adequately evince that the Tribe exercises more than enough

governmental power to satisfy the second prong of the statutory

test.

IX. THE INTERFACE
IX. THE INTERFACE

Because we have concluded that the settlement lands,

under the Tribe's auspices, meet both prerequisites of the Gaming

Act, those lands are subject to the Act's benefits and burdens.

The task remaining is to determine how the Gaming Act and the

Settlement Act operate in tandem.

A. Principles Governing the Interface.
A. Principles Governing the Interface.

In warming to this reconciliatory task, we abjure the

preemption analysis undertaken below, see Narragansett Tribe, 816

F. Supp. at 804. The doctrine of preemption is derived from the

Supremacy Clause, U.S. Const., Art VI, cl. 2, and therefore

applies only to conflicts between federal provisions, on one

hand, and state or local provisions, on the other hand. See

Cipollone v. Liggett Group, 112 S. Ct. 2608, 2617 (1992). The

proper mode of analysis for cases that involve a perceived

conflict between two federal statutes is that of implied repeal.

See Cook, 922 F.2d at 1033 (rejecting preemption analysis as

inappropriate in resolving a conflict between the Gaming Act and

an earlier federal statute); see also 1A Norman J. Singer,

Sutherland on Stat. Const. 23.09 (5th ed. 1993). Hence, we

follow that analytic path.

We start by reiterating the bedrock principle that

41

implied repeals of federal statutes are disfavored. In the

absence of a contrary legislative command, when two acts of

Congress touch upon the same subject matter the courts should

give effect to both, if that is feasible. See Pipefitters Local

562 v. United States, 407 U.S. 385, 432 n.43 (1972); United

States v. Tynen, 78 U.S. (11 Wall.) 88, 92 (1871). In other

words, so long as the two statutes, fairly construed, are capable

of coexistence, courts should regard each as effective. See

Traynor v. Turnage, 485 U.S. 535, 547-48 (1988). However, "if

the two [acts] are repugnant in any of their provisions, the

latter act, without any repealing clause, operates to the extent

of the repugnancy as a repeal of the first." Tynen, 78 U.S. (11

Wall.) at 92. Even absent outright repugnancy, a repeal may be

implied in cases where the later statute covers the entire

subject "and embraces new provisions, plainly showing that it was

intended as a substitute for the first act." Id.; see also

Posadas v. National City Bank, 296 U.S. 497, 503-04 (1936);

Natural Resources Defense Council v. EPA, 824 F.2d 1258, 1278

(1st Cir. 1987).19

19We addressed this point in United States v. Brien, 617

F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919 (1980). We

caution, however, that while Brien suggests that statutes may

never be impliedly repealed in part, see id. at 309, more recent

cases clarify the point, see, e.g., Bristol Energy Corp. v. New

Hampshire PUC, F.3d , (1st Cir. 1994) [No. 93-1824,

slip op. at 16-17]. The rule is that, generally, there can be no
partial implied repeal absent repugnancy. This is simply another

way of stating that congressional intent to substitute a later
act for an earlier one will ordinarily be implied only if the
later act usurps the whole ground occupied by the first. See

Posadas, 296 U.S. at 504. If repugnancy is found, however, then

a partial repeal is in most cases preferred indeed, mandated

42

The doctrine of implied repeal operates without special

embellishment in the Indian law context. See, e.g., Blackfeet

Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1058 (9th

Cir.), cert. denied, 488 U.S. 828 (1988). The rationale for

encouraging preemption in the Indian context that the federal

government is a more trustworthy guardian of Indian interests

than the states has no relevance to a conflict between two

federal statutes.

B. Applying the Principles.
B. Applying the Principles.

It is evident that the Settlement Act and the Gaming

Act are partially but not wholly repugnant. The Settlement Act

assigned the state a number of rights. Among those rights and

by no means one of the rights at the epicenter of the

negotiations leading up to the Act was the non-exclusive right

to exercise jurisdiction, in all customary respects save two, see

supra note 6, over the settlement lands. The Gaming Act leaves

undisturbed the key elements of the compromise embodied in the

Settlement Act. It also leaves largely intact the grant of

jurisdiction but it demands an adjustment of that portion of

jurisdiction touching on gaming.

Even in respect to jurisdiction over gaming, the two

laws do not collide head-on. Thus, in connection with class III

gaming, the Gaming Act does not in itself negate the state's

jurisdiction, but, instead, channels the state's jurisdiction

for only that part of the earlier statute which is plainly
anathematic should be nullified.

43

through the tribal-state compact process. It is only with regard

to class I and class II gaming that the Gaming Act ex proprio

vigore bestows exclusive jurisdiction on qualifying tribes.20

And it is only to these small degrees that the Gaming Act

properly may be said to have worked a partial repeal by

implication of the preexisting statute.

In the area in which the two laws clash, the Gaming Act

trumps the Settlement Act for two reasons. First, the general

rule is that where two acts are in irreconcilable conflict, the

later act prevails to the extent of the impasse.21 See Watt v.

Alaska, 451 U.S. 259, 266 (1981); Tynen, 78 U.S. (11. Wall.) at

92; see also 2B Singer, Sutherland on Stat. Const., supra,

51.02, at 121. Second, in keeping with the spirit of the

standards governing implied repeals, courts should endeavor to

read antagonistic statutes together in the manner that will

minimize the aggregate disruption of congressional intent. Here,

reading the two statutes to restrict state jurisdiction over

gaming honors the Gaming Act and, at the same time, leaves the

20We take no view on whether, apart from the Gaming Act, a
state might have regulated the activities that comprise class I
gaming without violating the Free Exercise Clause.

21The state argues that the Settlement Act should prevail
because it is the more specific statute. There are two cracks in
this palladium. As noted by the court below, it is arguable
which statute is the more specific. See Narragansett Tribe, 816

F. Supp. at 804. More fundamentally, the canon upon which the
state relies is rooted in the presumption that, when legislatures
enact general laws, they do not have in mind every preexisting
statute that touches on some specific aspect of the general
subject. Where, as here, the enacting Congress is demonstrably
aware of the earlier law at the time of the later law's
enactment, there is no basis for indulging the presumption.

44

heart of the Settlement Act untouched. Taking the opposite tack

reading the two statutes in such a way as to defeat tribal

jurisdiction over gaming on the settlement lands would honor

the Settlement Act, but would do great violence to the essential

structure and purpose of the Gaming Act. Because the former

course keeps disruption of congressional intent to a bare

minimum, that reading is to be preferred.

Based on our understanding of the statutory interface,

we hold that the provisions of the Indian Gaming Regulatory Act

apply with full force to the lands in Rhode Island now held in

trust by the United States for the Narragansett Indian Tribe.22

C. Some Unanswered Questions.
C. Some Unanswered Questions.

Despite this holding a holding that resolves the case

before us it would be disingenuous to pretend that all the

relevant questions have been answered. While the Tribe retains

all aspects of its retained sovereignty, as that term is commonly

comprehended in our jurisprudence, Congress, after having granted

to the state non-exclusive jurisdiction over the settlement lands

via the Settlement Act, impliedly withdrew from that grant, via

22We decline to address certain constitutional claims
advanced by the amici, for these claims were not urged by the
plaintiffs in the court below. According to well established
authority, amici can do no more than "assist the court in
achieving a just resolution of issues raised by the parties."
Lane v. First Nat'l Bank of Boston, 871 F.2d 166, 175 (1st Cir.

1989). In the court of appeals, amici cannot usurp the
litigants' prerogative and introduce new issues or issues not
properly preserved for appeal.

45

the Gaming Act, the state's jurisdiction over gaming.23 Yet,

the withdrawal of jurisdiction over gaming cannot be interpreted

to signify a withdrawal of all residual jurisdiction.

This means that the state continues to possess a

quantum of regulatory authority. Of course, any effort by the

state to exercise this residual authority is hedged in by

barriers on both sides: on one side, by the Tribe's retained

rights of sovereignty; on the other side, by the Tribe's

congressionally approved authority over a specific subject

matter, namely, gaming. Testing the sturdiness of one or the

other of these barriers in a given case will require "a

particularized inquiry into the nature of the state, federal, and

tribal interests at stake." White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 145 (1980). We cannot undertake such an

inquiry in the abstract, and, thus, the jurisdictional status of

the settlement lands remains ill-defined in certain respects.

But that is the nature of litigation; Article III of the

Constitution forbids courts from issuing advisory opinions or

answering hypothetical questions. See, e.g., International

Longshoremen's & Warehousemen's Union v. Boyd, 347 U.S. 222, 224

(1954); United Public Workers v. Mitchell, 330 U.S. 75, 89

(1947). Having exhausted the limits of the case in controversy,

we must depart the stage, leaving it set for the possibility of

future litigation.

23It is important to note, however, that jurisdiction over
class III gaming is subject to restoration, in whole or in part,
as a negotiated by-product of a tribal-state compact.

46

In parting, we offer a few words of guidance. The

crucial questions which must yet be answered principally deal

with the nature of the regulable activities which may or may

not be subject to state control, e.g., zoning, traffic control,

advertising, lodging. It is true that nondiscriminatory burdens

imposed on the activities of non-Indians on Indian lands are

generally upheld. See, e.g., Washington v. Confederated Tribes

of Colville Indian Reservation, 447 U.S. 134, 151 (1980)

(discussing tax burdens). But it is also true that a

comprehensive federal regulatory scheme governing a particular

area typically leaves no room for additional state burdens in

that area. See White Mountain Apache Tribe, 448 U.S. at 148

(finding state timber regulation to be preempted). Which

activities are deemed regulable, therefore, will probably depend,

in the first instance, on which activities are deemed integral to

gaming. Although the core functions of class III gaming on the

settlement land are beyond Rhode Island's unilateral reach, the

distinction between core functions and peripheral functions is

tenebrous, as is the question of exactly what Rhode Island may

and may not do with respect to those functions that eventually

are determined to be peripheral.

If these criss-crossing lines prove agonizingly

difficult to decipher, let alone to administer, they "are no more

or less so than many of the classifications that pervade the law

of Indian jurisdiction." Washington v. Yakima Indian Nation, 439

U.S. 463, 502 (1979). And in all events, the jurisdictional

47

issues remain subject to further judicial intervention, pursuant

to the Gaming Act, in a more fact-specific context, if the

parties' compact negotiations collapse.

We can go no further at this time. We add, however,

that although our opinion today answers some questions and raises

others, we do not mean to encourage the protagonists to litigate

ad infinitum. The parties' baseline power need not be defined

with exactitude by judicial decree where, as here, they are

compelled to enter negotiations out of which will emerge a new

balance of power. The next step in the allocation of

jurisdiction over gaming is in the hands of the parties, through

negotiations designed to produce a tribal-state compact as

contemplated by the Gaming Act, see 25 U.S.C. 2710(d). If cool

heads and fair-minded thinking prevail, that step may be the

last.

The district court's issuance of a mandatory injunction
The district court's issuance of a mandatory injunction

compelling Rhode Island to commence good faith negotiation of a
compelling Rhode Island to commence good faith negotiation of a

tribal-state compact is affirmed. The declaratory judgment
tribal-state compact is affirmed. The declaratory judgment

entered in the district court shall, however, be modified as may
entered in the district court shall, however, be modified as may

be necessary to reflect the holdings contained in this opinion.
be necessary to reflect the holdings contained in this opinion.

Costs to appellees.
Costs to appellees.

Dissent follows
Dissent follows

48

COFFIN, Senior Circuit Judge (dissenting). With

understandable respect for the effort evident in the court's

opinion, and with full recognition of the closeness of this case,

I reluctantly am unable to accept its evaluation of legislative

history and its conclusion that the Gaming Act worked an implied

repeal of the Settlement Act.

The court, in my view, errs in two respects. First, it

invokes a generally applicable principle of statutory

interpretation -- statutory language, if clear, forecloses

recourse to legislative history -- in an area where this teaching

is not so absolute, i.e., when two federal statutes, literally

read, are in tension. Second, when the court deigns to consider

the legislative history of the later, supposedly impliedly

repealing statute, the Gaming Act, it undervalues it,

characterizing it as "carefully selected snippets" that "fail[]

to establish . . . a clearly expressed legislative intention."

Ante pp. 25-26.

The most apposite recent authority of which I am aware

is Watts v. Alaska, 451 U.S. 259 (1981), in which two federal

statutes contained irreconcilably different formulae for the

distribution of revenues from the lease or sale of minerals from

wildlife refuges. The Court acknowledged that the consolidated

cases before it "involve[d] two statutes each of which by its

literal terms applies to the facts before us." Id. at 266.

There, as here, the argument was made that the plain language of

the later statute controlled and made improper any resort to

49

legislative history.

The Court agreed that the statutory language was the

starting point, but stated that "ascertainment of the meaning

apparent on the face of a single statute need not end the inquiry

. . . because the plain meaning rule is `rather an axiom of

experience than a rule of law, and does not preclude

consideration of persuasive evidence if it exists.' The

circumstances of the enactment of particular legislation may

persuade a court that Congress did not intend words of common

meaning to have their literal effect." Id. at 265-66 (citations

and footnote omitted).

The Court then stated:

Without depreciating this general rule [that the more
recent of two irreconcilably conflicting statutes
governs], we decline to read the statutes as being in
irreconcilable conflict without seeking to ascertain
the actual intent of Congress. Our examination of the
legislative history is guided by another maxim:
"`repeals by implication are not favored,'" Morton v.

Mancari, 417 U.S. at 549, quoting Posadas v. National

City Bank, 296 U.S. 497, 503 (1936). "The intention of

the legislature to repeal must be `clear and
manifest.'" United States v. Borden Co., 308 U.S. 188,

198 (1939), quoting Red Rock v. Henry, 106 U.S. 596,

602 (1883). We must read the statutes to give effect
to each if we can do so while preserving their sense
and purpose. Mancari, supra, at 551; see Haggar Co. v.

Helvering, 308 U.S. 389, 394 (1940).

Watt, 451 U.S. at 266-67.

The Court then, despite the absence of any explanation

in the legislative history for adding the word "minerals" to the

later legislation, after studying "the few legislative materials

pertinent," was persuaded "that Congress intended to work no

change in the pre-existing framework." Id. at 267.

50

The dissenting three justices argued as does the court

in this case, but they did not prevail. So far as I have been

able to ascertain, Watt has not been eroded since its issuance.

It seems clear to me, at least, that the legislative

history in this record reveals not merely the lack of a "clear

and manifest" Congressional intent to repeal, but an affirmative

intent that the pre-existing legislation should remain intact.

An examination of the history reveals an express explanation, a

deliberate, pre-planned colloquy with the floor manager of the

legislation (the chairman of the Select Committee on Indian

Affairs) as the very first exchange with interested Senators

following his introductory presentation.

In his presentation, Senator Inouye referred both to

the objective of "determining what patterns of jurisdiction and

regulation should govern the conduct of gaming activities on

Indian lands" and affirmed the principle "that by virtue of their

original tribal sovereignty, tribes reserved certain rights when

entering into treaties with the United States, and that today,

tribal governments retain all rights that were not expressly

relinquished." 134 Cong. Rec. S12649 (daily ed. Sept. 15, 1988).

Immediately at the conclusion of the chairman's

presentation, the following colloquy took place:

Mr. PELL.
Mr. President, I would like to thank the managers of S. 555,
the Indian Gaming Regulatory Act, and particularly the chairman
of the Select Committee on Indian Affairs [Mr. Inouye], for their
hard work and patience in achieving a consensus on this important
measure.
In the interests of clarity, I have asked that language
specifically citing the protections of the Rhode Island Indian

51

Claims Settlement Act (Public Law 95-395) be stricken from S.
555. I understand that these protections clearly will remain in
effect.
Mr. INOUYE.
I thank my colleague, the senior Senator from Rhode Island
[Mr. Pell], and assure him that the protections of the Rhode
Island Indian Claims Settlement Act (P.L. 95-395), will remain
in effect and that the Narragansett Indian Tribe clearly will
remain subject to the civil, criminal, and regulatory laws of the
State of Rhode Island.
Mr. CHAFEE.
Mr. President, I too would like to thank the chairman [Mr.
Inouye] and members of the Select Committee on Indian Affairs
for their cooperation and assistance. The chairman's statement
makes it clear that any high stakes gaming, including bingo, in
Rhode Island will remain subject to the civil, criminal, and
regulatory laws of our State.

134 Cong. Rec. S12650 (daily ed. Sept. 15, 1988).

Following the colloquy other senators made comments or

asked questions. A colloquy similar to that quoted above,

between Senator Reid and the chairman, established the extent to

which an earlier piece of legislation dealing with gambling

devices would be altered by the bill under discussion. 134 Cong.

Rec. S12650 (daily ed. Sept. 15, 1988). Still another exchange

concerned the scope of actions allowed under a grandfather

clause. 134 Cong. Rec. S12651.

Were such responsible and calculated floor exhanges

with managers of legislation to be rendered of little or no

account, the character of the legislating process would suffer a

substantial constriction, and a valued opportunity for

clarification, minor correction, and fine tuning would be lost.

I do not think the judiciary should be a party to any such

result.

Certainly in the instant case, this legislative history

52

supports the conclusion that the Rhode Island Senators thought

the implied repeal language unnecessary because they did not

believe that the jurisdictional provisions of the Gaming Act

applied to the Settlement Act. That this accorded with the

intent of the Senate seems equally clear, unless we are to

proclaim this traditional kind of colloquy with leadership mere

smoke and mirrors.

I think it also worth noting that the colloquy includes

a statement by the bill's sponsor and floor manager, whose

remarks usually are afforded substantial weight. See North Haven

Bd. of Educ. v. Bell, 456 U.S. 526-27 (1982); United States v.

Mass. Maritime Academy, 762 F.2d 142, 149 (1st Cir. 1985).

I add that the colloquy, although clear and to the

point, is not the only evidence of Congressional intent. The

Senate report also mentions that "nothing in the [Gaming Act]

will supersede any specific restriction or specific grant of

Federal authority or jurisdiction to a State which may be

encompassed in another Federal statute, including the Rhode

Island Claims Settlement Act [and the Maine] Indian Claims

Settlement Act." S.Rep. No. 446, 100th Cong. 2d Sess. 12 (1988),

reprinted in 1988 U.S.C.C.A.N. 3071, 3082 (citations omitted).

While the court concludes that the report, issued before the

deletion proposed by Senator Pell, is of no present relevance, I

do not think it can so easily be discounted. Rather, it seems to

me entirely consistent with the colloquy with the Rhode Island

senators.

53

If, therefore, we assign proper weight to the

legislative history, I think it unavoidable that we would have to

conclude that the Gaming Act had effected no implied repeal of

the Settlement Act. If, of course, the Congress were to feel

that an injustice had been done to appellees, it could provide a

remedy through supplemental legislation.24

I therefore, with great reluctance, dissent.

24Our circuit similarly has looked to legislative history to
help resolve a conflict between a federal and a state statute.
In Local Div. 589 v. Massachusetts, 666 F.2d 618 (1st Cir. 1981),

we were asked to determine whether 13(c) of the Urban Mass
Transportation Act of 1964, 49 U.S.C. 1609(c), preempted a
conflicting Massachusetts statute. The text of 13(c) did not
answer this question. Our close examination of the legislative
history, however, persuaded us that Congress did not intend for
this statute to preempt conflicting Massachusetts law.

54