USCA1 Opinion
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