United States Court of Appeals
For the First Circuit
No. 16-1137
COMMONWEALTH OF MASSACHUSETTS; AQUINNAH/GAY HEAD
COMMUNITY ASSOCIATION, INC.; TOWN OF AQUINNAH, MA,
Plaintiffs, Appellees,
v.
THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH);
THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.;
THE AQUINNAH WAMPANOAG GAMING CORPORATION,
Defendants, Appellants,
CHARLES D. BAKER, in his official capacity as Governor
of the Commonwealth of Massachusetts; MAURA T. HEALEY,
in her capacity as Attorney General of the Commonwealth
of Massachusetts; STEPHEN P. CROSBY, in his capacity as
Chairman of the Massachusetts Gaming Commission,
Third-Party Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Scott D. Crowell, with whom Crowell Law Offices-Tribal
Advocacy Group, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP
were on brief, for appellants.
Judy B. Harvey, Attorney, Environment and Natural Resources
Division, U.S. Department of Justice, with whom John C. Cruden,
Assistant Attorney General, Sam Hirsch, Principal Deputy Assistant
Attorney General, Mary Gabrielle Sprague and Amber Blaha,
Attorneys, Environment and Natural Resources Division, Dan
Lewerenz, Office of the Solicitor, Department of the Interior, and
Maria Getoff, Office of the General Counsel, National Indian Gaming
Commission, were on brief, for United States as amicus curiae.
Felicia H. Ellsworth, with whom Claire M. Specht, James L.
Quarles, III, and Wilmer Cutler Pickering Hale and Dorr LLP were
on brief, for appellee Aquinnah/Gay Head Community Association,
Inc.
Ronald H. Rappaport, with whom Michael A. Goldsmith and
Reynolds, Rappaport Kaplan & Hackney, LLC were on brief, for
appellee Town of Aquinnah.
Juliana deHaan Rice, Assistant Attorney General, Government
Bureau, with whom Bryan F. Bertram, Assistant Attorney General,
and Maura T. Healey, Attorney General, were on brief, for appellee
Commonwealth of Massachusetts and Third-Party Defendants.
April 10, 2017
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TORRUELLA, Circuit Judge. Appellant, the Wampanoag
Tribe of Gay Head (Aquinnah)1 (the "Tribe"), a federally recognized
Indian tribe, seeks to have gaming pursuant to the Indian Gaming
Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, on its trust lands
in Dukes County, Massachusetts (the "Settlement Lands").
Appellees, the Commonwealth of Massachusetts (the "Commonwealth"),
the town of Aquinnah (the "Town") and the Aquinnah/Gay Head
Community Association2 argue that any gaming on the Settlement
Lands should be subject to state, rather than federal, laws and
regulations. The district court, on summary judgment, found for
the Appellees. The district court reasoned that IGRA did not
apply, because the Tribe had failed to exercise sufficient
governmental power; and that even if the Tribe had exercised
sufficient governmental power, the Wampanoag Tribal Council of Gay
Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-
95 (codified at 25 U.S.C. §§ 1771-1771i) (the "Federal Act"), which
provides that the Settlement Lands are subject to state laws and
regulations (including gaming laws and regulations), governed.
Because we find that the Tribe has exercised more than sufficient
1 The town of Gay Head was incorporated into the Commonwealth of
Massachusetts in 1870, but has since been renamed "Aquinnah."
2 Because the Town and the Association filed a joint brief, we
generally refer to both parties together as "the Town."
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governmental power to satisfy the requirements of IGRA, and the
Federal Act has been impliedly repealed by IGRA in relevant part,
we reverse.
I. Background
A. Factual History
1. The Settlement Agreement and the Federal Act
The Tribe has lived on Martha's Vineyard since before
the European colonization of New England, and has continued to
reside there to the present day. The Town was incorporated by the
Commonwealth in 1870 as the town of Gay Head, and has since been
renamed Aquinnah. In 1974, the Tribe sued the Town in federal
court, asserting title to certain lands and "seeking ejectment of
record title holders." The Commonwealth and the Association
intervened.
In November 1983, these parties signed a Memorandum of
Understanding (the "Settlement Agreement"). The Settlement
Agreement conveyed the Settlement Lands (approximately 485 acres)
to the Tribe. In exchange, the Tribe gave up its claims to other
lands and dismissed its lawsuit. Before this Settlement Agreement
could enter into force, it had to be implemented by Congress.
On August 18, 1987, Congress implemented the Settlement
Agreement by passing the Federal Act. See Wampanoag Tribal
Council of Gay Head, Inc., Indian Claims Settlement Act of 1987,
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Pub. L. No. 100-95 (codified at) 25 U.S.C. §§ 1771-1771i. The
Federal Act provides, inter alia, that the Settlement Lands "shall
be subject to the civil and criminal laws, ordinances, and
jurisdiction of the Commonwealth . . . and the [Town] . . .
(including those laws and regulations which prohibit or regulate
the conduct of bingo or any other game of chance)." 25 U.S.C.
§ 1771g.
The parties all agree that "[t]he Commonwealth, the
Town, and the Tribe have each exercised jurisdiction over the
Settlement Lands pursuant to the provisions of the Federal Act."
2. Cabazon and IGRA
On February 25, 1987 -- approximately six months before
Congress passed the Federal Act -- the Supreme Court decided
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987),
which held that California -- which permitted certain forms of
regulated gambling -- could not civilly regulate tribal bingo games
because such regulation "would impermissibly infringe on tribal
government." Id. at 221-22. This decision did, however, leave
space for states that criminally prohibit gaming to prohibit it on
Indian lands within their jurisdictions.
In response, on October 17, 1988, Congress enacted IGRA.
See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,
2034 (2014) ("Congress adopted IGRA in response to [Cabazon], which
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held that States lacked any regulatory authority over gaming on
Indian lands."). IGRA provides, inter alia, "for the operation
of gaming by Indian tribes as a means of promoting tribal economic
development, self-sufficiency, and strong tribal governments." 25
U.S.C. § 2702(1).
IGRA "sets in place a sophisticated regulatory
framework" for gambling on Indian lands, dividing gaming into three
classes: Class I gaming, which includes traditional Native
American gaming, is always permitted; Class II gaming, which
includes bingo, is permitted so long as the state does not
generally proscribe gaming of that type; and Class III gaming,
which includes casino gambling, is permitted only pursuant to a
compact between a tribe and the state. Id. § 2710; Rhode Island
v. Narragansett Indian Tribe, 19 F.3d 685, 689-90 (1st Cir. 1994).
Congress established the National Indian Gaming Commission
("NIGC") to administer IGRA; its responsibilities include
approving Class II gaming ordinances submitted to it by Indian
tribes. 25 U.S.C. §§ 2704, 2710(b)(1)(B).
3. The Tribe's Pursuit of Gaming on Settlement Lands
On November 22, 2011, Governor Deval Patrick signed "An
Act Establishing Expanded Gaming in the Commonwealth" into law,
which allowed gaming in establishments licensed by the
Commonwealth. On that same day, the Tribe submitted Gaming
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Ordinance No. 2011-01 to the NIGC for approval, which set forth
tribal rules governing gaming. On February 4, 2012, the Tribe
adopted Gaming Ordinance No. 2011-01, and on February 21, 2012,
the NIGC "announc[ed] the approval of Gaming Ordinance No. 2011-
01 for gaming on Indian Lands as defined by IGRA." On March 5,
2012, the Tribe began corresponding with the Commonwealth to enter
into negotiations for a Class III compact under the newly-enacted
law, but no compact was formed.
On May 30, 2013, the Tribe submitted an amended Ordinance
No. 2011-01 to the NIGC, which stated the Tribe's intention to
pursue Class II gaming on the Settlement Lands. The NIGC sought
an opinion from the Department of the Interior ("DOI") as to
whether the Federal Act prohibited Class II gaming on the
Settlement Lands; the DOI provided an opinion stating that gaming
was not prohibited. On August 29, 2013, the NIGC approved the
amended Ordinance No. 2011-01. On October 25, 2013, in response
to a request by the Tribe, the NIGC provided an opinion that the
Settlement Lands were eligible for gaming under IGRA.
Consequently, the Tribe has neither applied for nor obtained a
license from the Massachusetts Gaming Commission to operate a
gaming establishment.
When the Tribe informed the Commonwealth that it would
proceed with the establishment of a Class II gaming facility on
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the Settlement Lands pursuant to IGRA, the Commonwealth responded,
on December 2, 2013, by filing suit against the Tribe in state
court. The Commonwealth asserted breach of the Settlement
Agreement and sought a declaratory judgment that the Settlement
Agreement prohibited gaming on the Settlement Lands. The Tribe
removed the case to the district court on December 30, 2013, on
grounds of federal question and supplemental jurisdiction.
After some procedural fencing not relevant here, on
May 28, 2015, the parties all moved for summary judgment. On
November 13, 2015, the district court granted summary judgment for
the Appellees.
The district court ruled that the Settlement Lands were
not covered by IGRA, and hence were subject to the Commonwealth's
gaming regulations. Massachusetts v. Wampanoag Tribe of Gay Head
(AQUINNAH), 144 F. Supp. 3d 152, 177 (D. Mass. 2015). First, it
found that the Tribe, despite having jurisdiction over the
Settlement Lands, failed to exercise sufficient "governmental
power" over those lands, as required for IGRA to apply. Id. It
recognized that the Tribe had asserted that it was "responsible"
for many governmental services in the Settlement Lands, but found
that it had not shown sufficient "actual manifestations of [the
Tribe's] authority." Id. at 169-70. Second, it ruled that even
if the Tribe did exercise sufficient governmental power, IGRA did
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not work an implied repeal of the portion of the Federal Act that
subjected the Settlement Lands to the gaming laws of the
Commonwealth. Id. at 177. The district court relied heavily on
the parenthetical language in § 1771g of the Federal Act stating
that the "civil or criminal laws" included "those laws and
regulations which prohibit or regulate the conduct of bingo or any
other game of chance." 25 U.S.C. § 1771g. Id. at 170-72 (quoting
25 U.S.C. § 1771g). According to the district court, this language
"specifically prohibits gaming on the Settlement Lands." Id. at
172. Because IGRA does not permit Class II gaming if it is
"otherwise specifically prohibited on Indian lands by Federal
law," the district court ruled that IGRA did not repeal this
provision, and that the Federal Act prohibited the Tribe from
opening a gaming establishment on the Settlement Lands without the
Commonwealth's approval. Id.
On January 5, 2016, the district court entered final
judgment, declaring that the Tribe could not operate a gaming
facility on the Settlement Lands without complying with the laws
of the Commonwealth and the Town, and enjoining the Tribe from
opening any such establishment without first obtaining approval
from the Commonwealth and the Town. The Tribe filed a timely
appeal.
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II. Standard of Review
A district court's grant of summary judgment is reviewed
de novo. OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co.
of Can., 684 F.3d 237, 241 (1st Cir. 2012). Summary judgment
should be granted if "there is no genuine dispute as to any
material fact" and the movant "is entitled to judgment as a matter
of law." Id. (quoting Fed. R. Civ. P. 56(a)).
III. Discussion
We must resolve two issues today. First, we must decide
whether IGRA applies to the Settlement Lands. See Narragansett,
19 F.3d at 702-03. Second, we must decide whether IGRA effects a
repeal of the Federal Act.3 See id. at 703-04.
A. The Applicability of IGRA
[IGRA]'s key provisions [apply] to "[a]ny Indian tribe
having jurisdiction over Indian lands," or, stated
differently, to "Indian lands within such tribe's
3 The Tribe also raises a third issue, whether the district court
abused its discretion by not including the NIGC as a required
party. A party is required to be joined if the absence of that
party could "leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations." Fed. R. Civ. P. 19(a)(1)(B)(ii). In determining
whether there is a risk of inconsistent obligations under Rule
19(a)(1)(B)(ii), we consider whether there is a "practical"
possibility of such an inconsistency, not whether it may be
"theoretically possible." Bacardí Int'l. Ltd. v. V. Suárez & Co.,
719 F.3d 1, 13 (1st Cir. 2013). Although the Tribe asserts that
it may become subject to inconsistent obligations, the Tribe has
failed to provide any examples of such inconsistent obligations.
We thus find no error, let alone abuse of discretion, in the
district court's decision to proceed without the NIGC as a party.
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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).
Narragansett, 19 F.3d at 701 (third and fourth alterations in
original).
1. Having Jurisdiction4
In Narragansett, we were satisfied by the fact that Rhode
Island did not acquire "exclusive" jurisdiction, and that the
Narragansett Tribe retained "that portion of jurisdiction they
possess by virtue of their sovereign existence as a people." Id.
at 702. In the present case, as the district court noted, the
parties stipulated that "the Commonwealth, the Town, and the Tribe
have each exercised jurisdiction over the Settlement Lands."
Although the Federal Act does contain some language limiting the
Tribe's jurisdiction, that language only confirms that the Tribe
retains the jurisdiction it has not surrendered in the Federal
Act. 25 U.S.C. § 1771e(a) (stating that the Tribe "shall not have
any jurisdiction over nontribal members and shall not exercise any
jurisdiction over any part of the [S]ettlement [L]ands in
contravention of [the Federal Act], the civil regulatory and
4 The Tribe argues that Appellees have waived arguments on this
issue. Because we find for the Tribe on the merits, we need not
address its waiver argument.
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criminal laws of [the Commonwealth and the Town], and applicable
Federal Laws").5 "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
[Tribe], therefore, [has] made the necessary threshold showing."
Narragansett, 19 F.3d at 702.
2. Exercising Governmental Power
[A] tribe must exercise governmental power in order
to trigger [IGRA]. 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
lands.
Id. at 702-03.
In Narragansett, we noted that this "inquiry into
governmental power need not detain us," and concluded that the
Narragansett Tribe's "activities adequately evince that the Tribe
exercises more than enough governmental power to satisfy the second
prong of the statutory test." Id. at 703. To wit, the Narragansett
Tribe
5 The Town observes that in Narragansett we pointed to the Federal
Act as an instance where, in contrast to Rhode Island's Settlement
Act, Congress placed "stated limits on the retained jurisdiction
of the affected tribes." 19 F.3d at 702. However, we made that
comment only to highlight that the Rhode Island Act's broad
language did not imply exclusivity, not to suggest that the Federal
Act somehow conveyed exclusive jurisdiction to the Commonwealth.
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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. § 450a(b)
(1998). 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, conservation, public safety, and the
like.
Id.
The Tribe in the present case has taken most of the same
steps that the Narragansetts had -- and indeed several more.
Therefore, like in Narragansett, the inquiry into governmental
power "need not detain us." Id.
In the present case, like in Narragansett, the Tribe:
has established a housing program that receives HUD assistance,
and has built approximately 30 units of housing under that program;
has entered into an intergovernmental agreement with the EPA;
operates a health care clinic with the aid of the Indian Health
Service; administers a program for education with scholarships
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financed with Bureau of Indian Affairs funding; administers social
services with a human services director responsible for child
welfare work; administers conservation policy (and has two
conservation rangers to enforce its conservation policy); and
administers a public safety program (the same two rangers enforce
tribal laws and can be cross-deputized by the Town).
In addition, the Tribe has passed numerous ordinances
and employs a judge. These ordinances deal with such diverse
topics as building codes, health, fire, safety, historic
preservation, fish, wildlife, natural resources, housing, lead
paint, elections, judiciary, criminal background checks, and the
reporting of child abuse and neglect. In addition to the inter-
governmental agreements already mentioned -- with the EPA and the
Bureau of Indian Affairs -- the Tribe has also entered into
intergovernmental agreements with the National Park Service, and
indeed also with the Commonwealth and the Town. The agreements
with the Commonwealth and the Town include agreements whereby the
Tribe, for compensation, may rely on state and local law
enforcement and firefighting services.
The Town nevertheless urges us to adopt the district
court's analysis and find that the Tribe has not exercised
sufficient governmental power. The Town points out that some of
the Tribe's exercises of governmental power are not full-fledged,
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and then proceeds to read our opinion in Narragansett as requiring
full-fledged exercise of governmental power for IGRA to apply.
For instance, the Town points out that while the Tribe employs a
judge -- and indeed maintains a tribal court -- this judge is
employed part-time, and presides via teleconference from
Washington State; similarly, the Town points out that the Tribe
does not have a hospital, but instead maintains a health clinic.
The Town gets it backwards. Pursuant to IGRA, "the
operation of gaming by Indian tribes [is] a means of promoting
tribal economic development, self-sufficiency, and strong tribal
governments." 25 U.S.C. § 2702. The Town now seeks to put this
logic on its head by requiring the Tribe's government to be fully
developed before it can have the benefit of gaming revenue. This
is not what IGRA requires, nor is it our case law. In
Narragansett, we deemed the "many strides in the direction of self-
government" -- that is, not the achievement of full-fledged self-
governance, but merely movement in that direction -- to "evince
that the Tribe exercises more than enough governmental power to
satisfy the second prong of the statutory test." 19 F.3d at 703.
We have no difficulty drawing the same conclusion here, especially
because "[i]n determining [Congressional] intent . . . [d]oubtful
expressions are to be resolved in favor of [Indians]." Id. at 691
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(citations omitted) (quoting Rosebud Sioux Tribe v. Kneip, 430
U.S. 584, 586–87 (1977)).6
B. The Interface between IGRA and the Federal Act
Having determined that IGRA applies to the Settlement
Lands, we must now determine whether IGRA effected a partial repeal
of the Federal Act. "The proper mode of analysis for cases that
involve a perceived conflict between two federal statutes is that
of implied repeal." Id. at 703 (citing United States v. Cook, 922
F.2d 1026, 1033 (2d Cir. 1991)). "[I]mplied 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."
Id. (citing Pipefitters Local 562 v. United States, 407 U.S. 385,
432 n.43 (1972)). "[S]o long as the two statutes, fairly construed,
are capable of coexistence, courts should regard each as
effective." Id. (citing Traynor v. Turnage, 485 U.S. 535, 547–48
(1988)). But "'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.'" Id.
6 The Tribe also argues that the determinations the NIGC and DOI
made concerning the applicability of IGRA to the Settlement Lands
merit our deference. Because we find for the Tribe on the merits
of its own legal arguments, we do not reach the question of how
much, if any, deference the NIGC and DOI determinations merit.
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(quoting United States v. Tynen, 78 U.S. 88, 92 (1870)). Finally,
"[e]ven 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. at 703-04 (quoting Tynen,
78 U.S. at 92).
"The doctrine of implied repeal operates without special
embellishment in the Indian law context. 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." Id. at 704 (internal citations omitted).
Two precedents guide our analysis of the present issue:
Narragansett, 19 F.3d 685 (holding that the Rhode Island Settlement
Act was impliedly repealed in relevant part by IGRA, id. at 705),
and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996)
(holding that the Maine Settlement Act was not repealed by IGRA).
Because the present case is very close to Narragansett, and readily
distinguished from Passamaquoddy, we find for the Tribe on this
issue.
The Rhode Island Settlement Act at issue in Narragansett
read, in relevant part, "[e]xcept as otherwise provided in this
subchapter, the settlement lands shall be subject to the civil and
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criminal laws and jurisdiction of the State of Rhode Island." 25
U.S.C. § 1708 (1978). We found that this settlement act and IGRA
"are partially but not wholly repugnant." Narragansett, 19 F.3d
at 704. The two laws clashed only as to class I and class II
gaming (because IGRA permits class III gaming only if the tribe
and the state reach a compact), which "leaves largely intact the
grant of jurisdiction [to the state] -- but it demands an
adjustment of that portion of jurisdiction touching on gaming."
Id. We highlighted two reasons why IGRA trumped the Rhode Island
Settlement Act:
First, the general rule is that where two acts are in
irreconcilable conflict, the later act prevails
. . . . Second, . . . 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 [IGRA] and, at
the same time, leaves the heart of the [Rhode Island]
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 [IGRA].
Id. at 704-705 (internal citations omitted).
In Passamaquoddy, we were presented with very different
language:
The provisions of any Federal law enacted after
October 10, 1980 [the effective date of the Maine
Settlement Act], for the benefit of Indians, Indian
nations, or tribes or bands of Indians, which would
affect or preempt the application of the laws of the
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State of Maine . . . shall not apply within the State
of Maine, unless such provision of such subsequently
enacted Federal law is specifically made applicable
within the State of Maine.
25 U.S.C. § 1735(b) (emphasis added). We reasoned that the Maine
Settlement Act contained a savings clause that "acts as a warning
signal to later Congresses to stop, look, and listen before
weakening the foundation on which the settlement between Maine and
the Tribe rests," and that "signals courts that, if a later
Congress enacts a law for the benefit of Indians and intends the
law to have effect within Maine, that intent will be made
manifest." Passamaquoddy, 75 F.3d at 789. Because IGRA does not
contain any indication that Congress intended it to be specifically
applicable within Maine, we concluded that -- given the presence
of the savings clause -- there was no conflict between the Maine
Settlement Act and IGRA, and IGRA therefore did not alter that
settlement act.
The Appellees seek to distinguish the present case from
Narragansett because the Federal Act -- otherwise, in relevant
part, essentially identical to the Rhode Island Settlement Act7
7 The relevant portion of the Federal Act reads, in full:
Except as otherwise expressly provided in this
subchapter or in the State Implementing Act, the
settlement lands and any other land that may now or
hereafter be owned by or held in trust for any Indian
tribe or entity in the town of Gay Head,
Massachusetts, shall be subject to the civil and
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-- ends in a parenthetical that reads, in full, "(including those
laws and regulations which prohibit or regulate the conduct of
bingo or any other game of chance)." 25 U.S.C. § 1771g. Appellees
argue that this parenthetical operates as a savings clause like
the one in Passamaquoddy.
Appellees, however, misread the parenthetical. Unlike
the savings clause in Passamaquoddy, the parenthetical in the
Federal Act says nothing about the effect of future federal laws
on the Federal Act. Rather, the parenthetical merely clarifies
that, at the time of the enactment of the Federal Act, state and
local gaming law applied to the Settlement Lands. We note that,
at the time, there was a reason for adding this clarification (a
reason that did not exist nine years earlier when the Rhode Island
Settlement Act entered into force). Approximately six months
before Congress passed the Federal Act on August 18, 1987, the
Supreme Court decided Cabazon, 480 U.S. 202, which created
criminal laws, ordinances, and jurisdiction of the
Commonwealth of Massachusetts and the town of Gay
Head, Massachusetts (including those laws and
regulations which prohibit or regulate the conduct of
bingo or any other game of chance).
25 U.S.C. § 1771g. Although the Federal Act is more detailed than
the Rhode Island Settlement Act in terms of which lands it applies
to and which local laws the Settlement Lands shall be subject to,
Appellees do not argue, nor could they, that this added level of
detail is relevant to the implied repeal analysis.
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considerable uncertainty about Indian law, specifically with
respect to gaming. See, e.g., Wisconsin v. Ho-Chunk Nation, 784
F.3d 1076, 1080 (7th Cir. 2015) ("Cabazon led to a flood of
activity, and states and tribes clamored for Congress to bring
some order to tribal gaming."); see also supra Section I.2. Soon
after, on October 17, 1988, Congress enacted IGRA. The Federal
Act was thus passed during a period of uncertainty about the status
and future of Indian gaming. The parenthetical served to decrease
that uncertainty by clarifying that, when the Federal Act was
enacted, Commonwealth gaming law applied to the Settlement Lands,
but -- just like the Rhode Island Settlement Act nine years before
it -- it said nothing about the effect of future federal law.8
The fact that the savings clause in the Maine Settlement
Act had already been on the books for some seven years when the
Federal Act was enacted further confirms that Congress did not
intend the Federal Act to contain such a savings clause -- for the
Maine Settlement Act leaves no doubt that Congress knew how to
8 Appellees note that Congress amended the Rhode Island Settlement
Act following our decision in Narragansett to include "[f]or
purposes of [IGRA], settlement lands shall not be treated as Indian
lands." 25 U.S.C. § 1708(b) (1996). Appellees argue that this
means that Congress also intended the Settlement Lands in
Massachusetts not to be treated as Indian lands for the purposes
of IGRA. Appellees ignore an obvious fact: Congress did not
amend the Federal Act.
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draft a savings clause, and that the parenthetical in the Federal
Act is not such a savings clause.9
We also reject the Appellees' argument that the Federal
Act and IGRA are not in conflict because the latter only allows
class II gaming where it "is not otherwise specifically prohibited
on Indian lands by Federal law." 25 U.S.C. § 2710(b)(1)(A).
Contrary to the Appellees' contentions, the parenthetical language
included in the Federal Act is neither specific nor a prohibition.
The language is hardly specific, as it appears applicable to all
types of gaming and references bingo only as an example. Nor does
the section prohibit anything. It merely grants Massachusetts
jurisdiction over gaming. And, as the Tribe points out, even
Massachusetts law does not prohibit gaming altogether. Rather,
it merely regulates such gaming (e.g., by requiring a license).
9 The Maine Settlement Act is by no means the only example that
demonstrates that Congress knows how to draft a savings clause.
See Passamaquoddy, 75 F.3d at 790 ("the Court regularly has upheld
and given effect to [savings clauses]" (citing Warden, Lewisburg
Penit. v. Marrero, 417 U.S. 653, 659–60 n.10 (1974) (earlier
statute barred repeal of certain penalties "unless the repealing
Act shall so expressly provide"); Shaughnessy v. Pedreiro, 349
U.S. 48, 52 (1955) (earlier statute directed that "[n]o subsequent
legislation shall . . . supersede or modify the provisions of [the
earlier statute] except to the extent such legislation shall do so
expressly"); Posadas v. National City Bank, 296 U.S. 497, 501
(1936) (earlier statute directed that subsequent laws "shall not
apply to the Philippine Islands, except when they specifically so
provide"); Great Northern Ry. Co. v. United States, 208 U.S. 452,
456 (1908) (similar); United States v. Reisinger, 128 U.S. 398,
401–02 (1888) (similar))).
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Review of the legislative history confirms that this is not the
type of specific prohibition that Congress had in mind. Indeed,
"[t]he phrase 'not otherwise prohibited by Federal Law'" was meant
to "refer[] to gaming that utilizes mechanical devices as defined
in 15 U.S.C. § 1175," which the Appellees concede is not at issue
here. S. Rep. No. 100-446, at 12 (1988), reprinted in 1988
U.S.C.C.A.N. 3071, 3082.
IV. Conclusion
For the foregoing reasons, the opinion of the district
court is reversed and the case is remanded to the district court
for entry of judgment in favor of the Tribe.
Reversed and Remanded.
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