Passamaquoddy Tribe v. State of Maine

                  UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                             

No. 95-1922

                       PASSAMAQUODDY TRIBE,

                      Plaintiff, Appellant,

                                v.

                     STATE OF MAINE, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                               

                                             

                              Before

                     Selya, Boudin and Lynch,

                         Circuit Judges.
                                                 

                                             

     Thomas N.  Tureen, with  whom Gregory  W.  Sample, Tureen  &
                                                                           
Sample, Richard B.  Collins, David Overlock Stewart,  and Ropes &
                                                                           
Gray were on brief, for appellant.
              
     Francis  A. Brown on brief for City of Calais, Maine, amicus
                                
curiae.
     Thomas  D. Warren,  Assistant  Attorney  General, with  whom
                                
Andrew  Ketterer, Attorney  General,  and Wayne  Moss,  Assistant
                                                               
Attorney General, were on brief, for appellees.

                                             

                         February 9, 1996
                                             


          SELYA,  Circuit Judge.   The  Passamaquoddy Tribe  (the
                    SELYA,  Circuit Judge.
                                         

Tribe)  sued   to  compel  Maine   and  the  governor   of  Maine

(collectively,  Maine or  the  State) to  recognize its  asserted

right to avoid the prohibitions of Maine's criminal code, see 17-
                                                                       

A  Me. Rev. Stat. Ann.    953-954, and conduct high-stakes casino

gambling behind the shield  of the Indian Gaming Regulatory  Act,

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

The federal district court  decided that the Gaming Act  does not

extend to Maine, and  denied relief.  See Passamaquoddy  Tribe v.
                                                                        

Maine, 897 F. Supp. 632 (D. Me. 1995).  We affirm.
               

I.  THE STATUTORY FRAMEWORK
          I.  THE STATUTORY FRAMEWORK

          In order  to put this  appeal into  perspective, it  is

necessary to juxtapose the Gaming Act and the Maine Indian Claims

Settlement  Act of 1980,  25 U.S.C.     1721-1735 (the Settlement

Act).

          In the early 1970s, the Tribe began earnestly to pursue

claims  to nearly  two-thirds of  Maine's land  mass.   See Joint
                                                                           

Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp.
                                                             

649,  651-53,  667-69  (D.  Me.)  (reviewing  dispute's history),

aff'd, 528  F.2d 370 (1st Cir. 1975).  After years of strife, the
               

Tribe  and the State negotiated  a settlement of  the land claims

under  federal  auspices.     The  arrangement  was  designed  to

transform the legal status of the Maine tribes (the Passamaquoddy

Tribe  and   the  Penobscot  Nation),  and  to  create  a  unique

relationship between  state and tribal authority.   See Penobscot
                                                                           

Nation v. Stilphen, 461 A.2d 478, 488-89 (Me.), appeal dismissed,
                                                                          

                                2


464 U.S.  923 (1983).    The Passamaquoddies  and the  Penobscots

ratified the  provisional pact  and Maine's  legislature followed

suit.  See P.L. 1979, c. 732, codified at 30 Me.  Rev. Stat. Ann.
                                                   

   6201-6214.  In 1980, Congress cemented the terms of the accord

by passing the Settlement Act.  The  federal statute incorporated

the  parties' agreement  and  established the  ground rules  that

henceforth would  govern matters  of common political  concern to

the State and the two tribes.

          Among other things, the Settlement Act rid the State of

all  Indian land  claims and  submitted the  Passamaquoddies, the

Penobscots, and  their tribal lands to  the State's jurisdiction.

See  25 U.S.C.      1721(b)(4),  1723(b)  &  (c),  1725(a).    In
             

addition,  section 16(b) of the  Settlement Act gave  the State a

measure of security against  future federal incursions upon these

hard-won gains.  It stated:

          The  provisions  of any  federal  law enacted
          after October 10, 1980 [the effective date of
          the  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  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 supplied).  The Tribe received fair

consideration for  its agreement:   the Settlement  Act confirmed

its title to  designated reservation lands, memorialized  federal

recognition of its  tribal status, and  opened the floodgate  for

the influx of millions  of dollars in federal subsidies.   See 25
                                                                        

                                3


U.S.C.   1733.

          Approximately  eight years later,  Congress enacted the

Gaming Act.   This statute establishes  a three-tiered regulatory

paradigm in respect to  gambling activities on Indian lands.   We

described  these three  layers  in Rhode  Island v.  Narragansett
                                                                           

Indian Tribe, 19 F.3d  685, 689-90 (1st Cir.), cert.  denied, 115
                                                                      

S. Ct.  298 (1994), and it  would be pleonastic  to rehearse that

description here.  We focus instead on the third tier:  Class III

gaming (a category that encompasses casino gambling).

          The Gaming Act provides that, unless a state imposes an

outright ban on  all Class III  gaming (and  Maine does not),  it
                              

must, upon  the  request  of  a federally  recognized  and  self-

governing Indian tribe, negotiate a compact stipulating the terms

and conditions  under  which the  tribe can  introduce Class  III

gaming on  Indian lands.  See  25 U.S.C.   2710(d).   The statute
                                       

contains a series of fail-safe mechanisms designed to ensure that

states  do  not stall  the negotiations  or  conduct them  in bad

faith.  See, e.g., id.   2710(d)(7).
                                

          The  Settlement  Act  and  the Gaming  Act  are  vastly

different  in scope.  From a geographic standpoint, the former is

narrower in the sense that it  applies only in Maine whereas  the

latter has  national implications.  From  a political standpoint,

however, the Settlement  Act is  broader in that  it purposes  to

cover  virtually the  entire field  of relationships  between the

State  and the Indian tribes  based there whereas  the Gaming Act

concentrates exclusively on a  particular kind of activity, i.e.,

                                4


gambling.

II.  THE GENESIS OF THE APPEAL
          II.  THE GENESIS OF THE APPEAL

          Mindful  of  the  meteoric  success  of  other  Indian-

sponsored  casinos, the Tribe decided in the early 1990s to climb

aboard the  bandwagon.   It chose  Calais,  a Maine  municipality

located near the Canadian  border, as the preferred site  for its

nascent  enterprise.  Because  the Gaming Act  requires Class III

gaming  to   be  conducted  on   "Indian  lands,"  25   U.S.C.   

2710(d)(3)(A),  the Tribe  sought to add  a designated  parcel of

real estate  to its inventory of  tribal lands.  See  30 Me. Rev.
                                                              

Stat. Ann.    6205 (authorizing  incremental land  acquisitions).

When formally apprised  of the Tribe's plans, the State concluded

that the Gaming Act  did not apply within Maine's  boundaries and

scotched  the  proposed  casino.    As  a  lagniappe,  the  state

legislature passed a bill  that allowed tribal land in  Calais to

be used  for such a purpose  (1) if the Tribe  secured the city's

blessing and the Governor of Maine thereafter agreed to negotiate

a tribal-state  compact under 25  U.S.C.    2710(d), or (2)  if a

court  of competent  jurisdiction  declared that  the Gaming  Act

extended to Maine.  See Me. Laws 1993, ch.  713,   1, codified at
                                                                           

30 Me. Rev. Stat. Ann.   6205(1)(c).

          After  some procedural maneuvering,  not material here,

the Tribe sued to  compel the commencement of negotiations  for a

compact.  The  defendants moved  for judgment  on the  pleadings,

Fed. R. Civ. P. 12(c), asserting that the Gaming Act did not hold

                                5


sway within Maine.   The Tribe opposed the  motion.  It contended

among  other  things  that  the  Gaming  Act  reached  Maine,  as

elsewhere, because Congress had impliedly repealed the Settlement

Act vis-a-vis gaming activities  conducted by Indian tribes, and,

in  all events, had  made the Gaming  Act specifically applicable

within Maine.

          Unimpressed  by the  Tribe's armada  of  arguments, the

district  court ruled that the  Gaming Act lacked  force in Maine

and entered judgment in the defendants' favor.  See Passamaquoddy
                                                                           

Tribe, 897 F. Supp. at 635.  This appeal followed.
               

III.  ANALYSIS
          III.  ANALYSIS

          Our discussion of the issues proceeds in four parts.

                                A
                                          A

          This   case  turns   on   a   question   of   statutory

interpretation.   By  its  terms, the  Gaming  Act, if  taken  in

isolation, applies to any  federally recognized Indian tribe that

possesses  powers of self-governance.   See 25  U.S.C.   2703(5).
                                                     

Consequently, if we were to  start and stop with the  Gaming Act,

the Tribe    which is federally  recognized and self-governing   

would be home free.  But this case cannot be confined within such

narrow margins.  The  chief objective of statutory interpretation

is to give  effect to  the legislative  will.   See Negonsott  v.
                                                                       

Samuels,  113 S.  Ct. 1119,  1122-23 (1993);  Narragansett Indian
                                                                           

Tribe, 19  F.3d at 691.   To achieve this objective  a court must
               

take  into   account  the  tacit  assumptions   that  underlie  a

legislative enactment,  including not only  general policies  but

                                6


also preexisting statutory provisions.  See Ohio ex rel. Popovici
                                                                           

v.  Agler, 280  U.S.  379, 383  (1929);  Greenwood Trust  Co.  v.
                                                                       

Massachusetts,  971 F.2d 818, 827 (1st  Cir. 1992), cert. denied,
                                                                          

113  S. Ct. 974 (1993).   Put simply,  courts must recognize that

Congress does not legislate  in a vacuum.  See  Thinking Machines
                                                                           

Corp. v. Mellon Fin. Servs. Corp. # 1 (In  re Thinking Machines),
                                                                          

67 F.3d 1021, 1025 (1st Cir. 1995).

          Taking this  haploscopic view brings us  immediately to

section  16(b) of the Settlement Act, 25 U.S.C.   1735(b), quoted

supra  p.3.   At first  glance, the  conditions precedent  to the
               

applicability of section 16(b) are  plainly satisfied.  The Tribe

does  not dispute     nor could  it    that the  Gaming Act  is a

"federal law enacted after  October 10, 1980, 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 State

of  Maine."1    25 U.S.C.     1735(b).    In such  circumstances,

section  16(b) provides  that Maine  will be  exempt from  such a

statute  unless  Congress  has  "specifically  made" the  statute
                         

"applicable  within the State of Maine."  In other words, section

16(b) is  a savings clause that serves  two related purposes.  It

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.  At the same time, it signals

courts that, if a later Congress  enacts a law for the benefit of
                    
                              

     1Among other  things, the Gaming  Act, if it  applied, would
preempt various provisions of Maine's criminal law, including 17-
A Me. Rev. Stat. Ann.    953-954.

                                7


Indians and intends  the law  to have effect  within Maine,  that

intent will be made manifest.  In view of these dual purposes, we

cannot decide the question  of whether the Gaming Act  extends to

Maine withoutfactoring section 16(b) intothe decisional calculus.

          This realization gets the grease  from the goose.   The

text  of the  Gaming Act  contains  not so  much as  a hint  that

Congress intended to make that Act specifically applicable within

Maine.   Where,  as here,  Congress enacts  a statute  of general

applicability (e.g., the  Gaming Act) with full  knowledge that a

preexisting statute (e.g., the Settlement Act) contains a savings

clause warning pointedly that a specific reference or a similarly

clear expression of legislative intent will be required  to alter

the  status quo, the only reasonable conclusion that can be drawn

from  the later Congress's  decision to omit  any such expression

from the text of the new  statute is that Congress did not desire

to  bring  about such  an  alteration.   See  Narragansett Indian
                                                                           

Tribe,  19 F.3d  at 704  n.21 (observing  that when  an "enacting
               

Congress is  demonstrably aware of the earlier law at the time of

the later law's enactment,  there is no basis for  indulging" any

other presumption).

          The  Tribe's principal  rejoinder is  on constitutional

grounds.  It posits  that giving effect to section 16(b)  in this

fashion  is  tantamount  to  binding a  successor  Congress  to a

predecessor's   will,   and    therefore   careens   beyond   the

constitutional  pale.  See, e.g., Glidden Co. v. Zdanok, 370 U.S.
                                                                 

530,  534  (1962); Reichelderfer  v.  Quinn,  287  U.S. 315,  318
                                                     

                                8


(1932); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135  (1810).  We
                                  

believe that this rejoinder distorts the reality of events.

          Section 16(b) does  not prohibit a subsequent  Congress

from  writing a new statute  reflecting new policies and applying

it  to the Indian  tribes in Maine.   Congress could  make such a

statute fully  effective in  Maine through  the  use of  explicit

language, by otherwise offering a patent indication of its intent

to accomplish that result, or, indeed, by first repealing section

16(b).  Thus,  section 16(b)  is purely an  interpretive aid;  it

serves both  to limn  the  manner in  which subsequently  enacted

statutes should be written to accomplish a particular goal and to

color the way in  which such statutes thereafter should  be read.

In fine, section  16(b) binds subsequent  Congresses only to  the

extent that they choose to be bound.

          The sockdolager is that  the Court regularly has upheld

and given effect to such provisions, see, e.g., 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.
                                                                           

                                9


Co.  v. United  States,  208 U.S.  452,  456 (1908)  (similar  to
                                

Marrero); United States v. Reisinger, 128 U.S. 398, 401-02 (1888)
                                              

(similar to Marrero), and we see nothing that  distinguishes this
                             

case from the mine-run.  This means, of course, that we must read

the Settlement Act and the  Gaming Act in pari passu.   Doing so,
                                                              

and giving effect to  their plain meaning, we are  led inexorably

to  the  conclusion that  the latter  lacks force  within Maine's

boundaries.

                                B
                                          B

          The  Tribe  generates several  other  responses  to our

tentative conclusion  that Congress  did not  intend to  make the

Gaming  Act  operative  in  Maine.    Its  most ferocious  attack

suggests that section 16(b) need not be considered at all because

the Gaming  Act  impliedly repealed  it  insofar as  gambling  on

tribal lands is concerned.  The attack is easily repulsed.

          We   are  unequivocally   committed  to   "the  bedrock

principle   that   implied  repeals   of  federal   statutes  are

disfavored."  Narragansett  Indian Tribe, 19 F.3d  at 703; accord
                                                                           

Rodriguez  v. United  States, 480  U.S. 522,  524 (1987);  TVA v.
                                                                        

Hill, 437 U.S. 153, 189 (1978); United States v. Borden  Co., 308
                                                                      

U.S.  188,  198 (1939).    The  general rule  is  that "when  two

statutes  are capable  of  coexistence, it  is  the duty  of  the

courts, absent  a clearly  expressed congressional intent  to the

contrary, to regard each  as effective."  Morton v.  Mancari, 417
                                                                      

U.S.  535, 551 (1974).   The only other  satisfactory basis for a

repeal  by   implication  (apart  from  a   clear  expression  of

                                10


Congress's  intent to repeal) is  a finding that  the earlier and

later  statutes are irreconcilable.   See Hill, 437  U.S. at 190;
                                                        

Morton,  417 U.S. at 550;  Narragansett Indian Tribe,  19 F.3d at
                                                              

703-04.   "[I]f 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."   United States  v.  Tynen, 78  U.S.  (11 Wall.)  88,  92
                                            

(1870).

          Of course, statutes can be irreconcilable even short of

outright repugnancy.   Thus, a repeal may  be implied if  a later

statute  covers  the  entire  subject matter  "and  embraces  new

provisions, plainly showing that it was intended as  a substitute

for  the first act."  Id.; see  also Posadas, 296 U.S. at 503-04;
                                                      

Narragansett   Indian  Tribe,  19   F.3d  at  703-04.     But  an
                                      

irreconcilable  conflict  does  not   exist  merely  because  the

application of  a later statute would  "produce differing results

when applied  . . ., for  that no more than  states the problem."

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
                                         

          These  precepts fit  without  special tailoring  in the

Indian law  context.   See, e.g.,  Narragansett Indian  Tribe, 19
                                                                       

F.3d at 704;  Blackfeet Indian  Tribe v. Montana  Power Co.,  838
                                                                     

F.2d  1055, 1058 (9th Cir.),  cert. denied, 488  U.S. 828 (1988).
                                                    

In  this case, they  defeat the Tribe's  attack.  The  Gaming Act

contains no evidence of  an intention to repeal section  16(b) of

the Settlement Act,  let alone  a patent expression  of any  such

design.  Indeed, when the 100th Congress passed the Gaming Act it

                                11


was  fully  cognizant  of   the  Settlement  Act  and  apparently

contemplated that the new  statute would not in any  way displace

the old:

          [I]t  is the intention  of the Committee 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 . .  . [Maine] Indian  Claim[s]
          Settlement Act.

S. Rep. No. 446, 100th Congress, 2d Sess. 12 (1988), reprinted in
                                                                           

1988  U.S.C.C.A.N. 3071, 3082.2   The  absence of  any suggestive

guideposts in the Gaming  Act, coupled with the easy  integration

of the two laws, effectively dispatches  the argument for implied

repeal.

          Our opinion in Narragansett Indian  Tribe is not to the
                                                             

contrary.   There, we  concluded  that Congress,  in passing  the

Gaming Act, had impliedly repealed the Rhode Island Indian Claims

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

that  it  touched upon  gambling  activities.   See  Narragansett
                                                                           

                    
                              

     2We  found this passage  of no  help in  the context  of the
Rhode  Island  Indian  Claims  Settlement   Act  of  1978.    See
                                                                           
Narragansett  Indian Tribe, 19 F.3d  at 700.   The version of the
                                    
bill to which the report applied originally contained a provision
that explicitly  exempted  Rhode Island  from  the reach  of  the
Gaming  Act,  yet,  prior  to  enactment,  Congress  removed  the
exonerative provision.   In that circumstance,  we concluded that
the  report "shed[] no  light on Congress's  intent regarding the
law  it actually  enacted."   Id.   By  contrast, the  draft bill
                                           
appended  to the  report  did not  contain  any similar  language
regarding Maine (presumably because the legislators knew that the
Settlement  Act included  a savings  clause making  such language
unnecessary).    Thus, unlike  in the  case  of Rhode  Island, no
telltale chain of events taints the report's reference in respect
to Maine.

                                12


Indian Tribe,  19  F.3d at  704-05.   But  the  Rhode Island  Act
                      

contained no  provision comparable  to section  16(b); therefore,

the  literal terms  of  the two  statutes created  incoherence by

subjecting Indian  gaming  to two  mutually exclusive  regulatory

environments.  Because we could find no feasible way to give full

effect  to both  acts, we  concluded that  an implied  repeal had

transpired.  See id.
                              

          Here,  in  contradistinction  to  the   situation  that

obtained in Rhode Island, section 16(b) satisfactorily harmonizes

the  Settlement  Act  and  the  Gaming  Act,  and  prevents   any

incoherence.  The Settlement Act governs the State's relationship

with the Tribe and will continue to do so without dilution unless

and  until Congress, by later enactment, makes a new law touching

upon  the  same  subject  matter  in  one   or  more  particulars

specifically applicable within Maine.  As the Gaming Act does not

meet  this benchmark,  the Settlement  Act remains  inviolate and

precludes  the operation of the Gaming  Act in Maine.  See Ysleta
                                                                           

del  Sur Pueblo  v. Texas,  36 F.3d  1325,  1335 (5th  Cir. 1994)
                                   

(holding that the Gaming  Act did not impliedly repeal  a federal

statute  granting Texas  jurisdiction over Indian  gaming because

Congress  never indicated in the  Gaming Act that  it intended to

rescind the previous grant of jurisdiction), cert. denied, 115 S.
                                                                   

Ct. 1358 (1995).

          To  sum up, we do not find  it surprising that the lack

of any express indicium of a contrary congressional intent in the

text  of  the Gaming  Act  means  different  things in  different

                                13


settings.   Without a  savings  clause like  section 16(b),  this

omission may indicate an intent to apply the Act across the board

   especially  if,  as  in Narragansett  Indian  Tribe,  Congress
                                                                

weighed,  and decided to discard, a specific exemption.  But when

a savings  clause is in play,  as in this case,  the omission can

only  mean that Congress desired the terms of the earlier statute

to prevail.  In the final analysis, the differing outcomes in the

two New England states bear witness to the truism that, "[i]n the

game  of  statutory  interpretation, statutory  language  is  the

ultimate trump card."  Narragansett Indian Tribe, 19 F.3d at 699.
                                                          

                                C
                                          C

          The Tribe has a fallback position.   It maintains that,

even if  we give  full force  and  effect to  section 16(b),  the

Gaming Act controls because  it is "specifically made applicable"

within Maine.  In its most primitive form, this thesis embodies a

contention  that because  the  Tribe satisfies  the Gaming  Act's

general   definitional  requirement     federal  recognition  and

governmental  power    a  court can  infer  Congress's intent  to

bestow the  benefices of  the Gaming  Act upon  the  Tribe.   The

problem  with this  contention is  that it  entirely  ignores the

Settlement Act.  Once  that flaw is revealed, it  becomes readily

apparent  that the Tribe's contention is no more than a back-door

effort   to   reintroduce   the   notion   of   implied   repeal.

Consequently, we reject it.

                                14


          In a  related vein, the Tribe postulates  that the very

comprehensiveness  of the Gaming Act is itself enough to meet the

demands of section 16(b).  This asseveration depends heavily upon

the correctness of the  proposition that the rule of  Marcello v.
                                                                        

Bonds,  349 U.S.  302  (1955), permits  minimal particularity  of
               

expression  to satisfy savings clauses like section 16(b).  We do

not believe that the proposition withstands scrutiny.

          In   Marcello,  a   provision  of   the  Administrative
                                 

Procedure Act (APA) stipulated that statutes which purport either

to supersede or modify the APA's judicial review modalities  must

do so  "expressly."   See  id.  at 305  (quoting  APA    12,  now
                                        

codified at  5  U.S.C.    559).   A  later  Congress enacted  the

Immigration  and Nationality Act of 1952 (I&N Act).  Although the

I&N  Act did not override the APA's judicial review modalities in

so many  words, the  Supreme Court  concluded  that the  neoteric

statute's  deportation  procedure superseded  the  APA's judicial

review  modalities because (1) the presence  in the I&N Act of an

extensive  review scheme,  similar  in material  respects to  the

APA's review mechanisms, would otherwise be rendered meaningless,

and  (2) the  I&N Act  contained an  explicit provision  that the

procedure which  it prescribed "shall  be the sole  and exclusive

procedure for determining  the deportability of  an alien."   See
                                                                           

Marcello,  349 U.S. at 308-09.  These factors, together with some
                  

instructive legislative history, formed the basis for the Court's

determination   that  the  subsequent  Congress  had  "expressly"

                                15


superseded  the APA's  judicial review  modalities in  respect to

deportation.3  Id. at 310.
                            

          The Tribe's  reliance on Marcello  is mislaid.   To  be
                                                     

sure,  the Gaming Act, like the I&N  Act, is a statute of general

applicability that arguably constructs a comprehensive regulatory

regime for a defined  subject.4  But this single  similarity does

not  provide  a  particularly  persuasive  parallel  for  present

                    
                              

     3The Court wrote that it could not

          ignore the background of the 1952 immigration
          legislation, its laborious adaptation  of the
          Administrative    Procedure   Act    to   the
          deportation process, the  specific points  at
          which  deviations   from  the  Administrative
          Procedure  Act were made,  the recognition in
          the  legislative  history  of  this  adaptive
          technique and of  the particular  deviations,
          and  the direction  in the  statute  that the
          methods  therein prescribed shall be the sole
          and   exclusive  procedure   for  deportation
          proceedings.

Marcello, 349 U.S. at 310.  The Court then concluded:
                  

          Unless  we  are  to require  the  Congress to
          employ   magical   passwords   in  order   to
          effectuate    an     exemption    from    the
          Administrative  Procedure  Act, we  must hold
          that the present statute expressly supersedes
          the hearing provisions of that Act.

Id.
             

     4The  State argues that the  Gaming Act is not comprehensive
in  the conventional sense.  This argument is not totally without
merit; the Gaming Act  has no application  to tribes that do  not
seek  and  attain formal  federal  recognition, see  25  U.S.C.  
                                                             
2703(5),  tribes that  do  not exercise  jurisdiction over  their
territories,  see  id.    2710(b)(1)  &  (d)(3)(A), tribal  lands
                                
located  in  states  that  proscribe  Class  II  and  III  gaming
activities  altogether, see id.   2710(b)(1)  & (d)(1), or tribal
                                         
lands on  which  federal  law  pretermits  gambling,  see  id.   
                                                                        
2710(b)(1).  We need not probe the point too deeply.  For present
purposes,  we simply  assume, favorably  to the  Tribe, that  the
Gaming  Act,  like  the  I&N  Act,  constitutes  a  comprehensive
regulatory regime.

                                16


purposes.      Here, the  Tribe points to nothing  of consequence

beyond  the comprehensive nature of  the Gaming Act.   Unlike the

deportation  procedure delineated  in  the I&N  Act, none  of the

provisions  of the Gaming Act will be rendered meaningless if the

Act  excludes Maine.  Moreover,  unlike in the  I&N Act, Congress

has  not declared  the  Gaming Act  to  be "exclusive"  of  other

potentially applicable legislation.   And, finally, unlike in the

legislative history of the  I&N Act, there are no  signposts writ

large in the debate over the Gaming Act.  These differences serve

both to distinguish the instant case from Marcello and to put the
                                                            

holding of that case  into perspective.  See Great  Northern, 208
                                                                      

U.S. at 466 (explaining  that the comprehensiveness of subsequent

legislation,  without more, will not  satisfy a savings clause in

an earlier statute).  The point is not that Congress was derelict

in employing  one particular collocation  of words as  opposed to

another, but, rather, that it chose  not to include in the Gaming

Act any indication that it meant to make the statute specifically
                 

applicable within Maine.5

          Though their  arguments are unavailing  when weighed on

an evenly calibrated scale, the Tribe seeks to tip the balance by
                    
                              

     5We find puzzling the  Tribe's reliance on a line  of cases,
see, e.g. Sims v. CIA, 471 U.S. 159, 167 (1985), decided under an
                               
exemption  from  the  disclosure  provisions of  the  Freedom  of
Information Act,  5 U.S.C.    552(b)(3) (providing  that agencies
need  not divulge  matters  that are  "specifically exempted"  by
statute), to support its ipse dixit that Congress need only enact
                                             
a comprehensive statute to mute the  call of section 16(b).  That
exemption merely incorporates by reference the secrecy provisions
of  other   statutes,  and,   unlike  section  16(b),   plays  no
discernible role in construing  the application of a subsequently
enacted statute.

                                17


altering the calibration.   To this end, it  invites us to depart

from the  usual canons  of construction  and chart  the statutory

interface between the Gaming Act and the Settlement Act by resort

to  a  special interpretive  preference  that  the law  sometimes

accords to Indian tribes.  See, e.g., Amoco Prod'n Co. v. Village
                                                                           

of Gambell, 480 U.S.  531, 555 (1987); South Carolina  v. Catawba
                                                                           

Indian Band, Inc., 476  U.S. 498, 506 (1986)  (collecting cases);
                           

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

decline the invitation.

          The  rule of  construction to  which the  Tribe alludes

reflects  a  strong  federal  interest  in   safeguarding  Indian

autonomy.  See, e.g., Rosebud Sioux, 430 U.S. at 586-87.  But the
                                             

rule is  apposite  only  when Congress  has  blown  an  uncertain

trumpet.    If  ambiguity  does   not  loom,  the  occasion   for

preferential  interpretation never  arises.   See Catawba  Indian
                                                                           

Band,  476  U.S.  at 506;  Rosebud  Sioux,  430  U.S. at  587-88;
                                                   

Narragansett  Indian  Tribe,  19 F.3d  at  691.    When, as  now,
                                     

Congress  has  unambiguously  expressed  its  intent through  its

choice of statutory language, courts must read the relevant  laws

according  to  their unvarnished  meaning,  without any  judicial

embroidery.    So  it  is  here:   since  there  is  no statutory

ambiguity,  the principle  of  preferential  construction is  not

triggered.

                                D
                                          D

          The Tribe's last argument has a  different spin.  Under

the Gaming Act, Class II gaming conducted on tribal lands must be

                                18


sanctioned by  the National  Indian  Gaming Commission.   See  25
                                                                       

U.S.C.   2710(b).   While this litigation was pending,  the Tribe

adopted  an ordinance authorizing the conduct  of bingo and other

Class II gaming activities on its reservation lands and submitted

this  proposal  to  the  Commission.    The  Commission  asserted

jurisdiction and granted the request.  The approval took the form

of  a letter  dated  July 19,  1995,  in which  the  Commission's

chairman opined that the Gaming Act  applied in Maine.  The Tribe

asked  the district court to  take judicial notice  of, and defer

to,  that determination.   See generally  Chevron U.S.A.  Inc. v.
                                                                        

Natural  Resources Defense  Council, Inc.,  467 U.S.  837, 842-43
                                                   

(1984)  (discussing  deference  due to  agency  interpretations);

Strickland v. Commissioner,  Me. Dep't of  Human Servs., 48  F.3d
                                                                 

12, 16 (1st Cir.) (similar), cert. denied, 116 S. Ct. 145 (1995).
                                                   

The  district court  demurred.   The  Tribe  assigns error.    We

discern none.

          It  is  transpicuously clear  that,  under  Chevron, no
                                                                       

deference is due if Congress has spoken directly to the question.

See Strickland,  48 F.3d at 16.   Here, we read  section 16(b) of
                        

the  Settlement Act  as  a clear  and  unambiguous expression  of

congressional intent.   Furthermore,  in light of  section 16(b),

the Gaming  Act's failure  to mention  Maine makes that  statute,

too, compelling evidence of  Congress's intent that it should not

apply in Maine.6
                    
                              

     6The Tribe  construes the Gaming  Act's silence as  a latent
ambiguity.   We do not agree.  Given the tenor of the preexisting
statute,  the sound  of silence  here is  pregnant  with meaning.

                                19


          In  this instance,  moreover,  there  is another  valid

reason  for declining to defer  to the Commission.   Deference is

appropriate  under  Chevron  only  when an  agency  interprets  a
                                     

statute  that it administers.   See CFTC v.  Schor, 478 U.S. 833,
                                                            

845 (1986).  Here, the question of the Gaming Act's applicability

cannot  be addressed  in a  vacuum, and the  Commission, whatever

else  might   be  its  prerogatives,  does   not  administer  the

Settlement  Act.   That  role belongs  to  the Secretary  of  the

Interior, see, e.g., 25 U.S.C.    1725, 1727(a), and has not been
                             

delegated  by  the  Secretary  to  the  Commission.    Though the

Commission may have expertise in the conduct of gaming activities

on tribal lands, see,  e.g., Shakopee Mdewakanton Sioux Community
                                                                           

v. Hope, 16 F.3d 261, 264 (8th Cir. 1994), we cannot take it upon
                 

ourselves to assume, without any evidence, that Congress intended

to  entrust the  Commission with  reconciling the Gaming  Act and

other statutes in the legislative firmament.

          If more  were needed   and we do not believe that it is

   we  note that  deference  is  inappropriate when  an  agency's

conclusion  rests  predominantly  upon  its  reading  of judicial

decisions.  See, e.g., Director,  OWCP v. General Dynamics Corp.,
                                                                          

980  F.2d 74,  78-79 (1st  Cir.  1992).   In  this instance,  the

Commission's jurisdictional analysis  depends almost  exclusively

on  decrypting  and  applying Marcello  and  Narragansett  Indian
                                                                           

Tribe.    As  courts, not  agencies,  have  special  expertise in
               
                    
                              

Taken  in  context,  that silence  logically  denotes  Congress's
intent  not to make the Gaming Act specifically applicable within
Maine.

                                20


interpreting case law, we  are loath to defer to  a determination

that amounts  to little more than  the Commission's understanding

of judicial precedents.

IV.  CONCLUSION
          IV.  CONCLUSION

          To recapitulate, the Tribe and the State negotiated the

accord  that is  now  memorialized in  the  Settlement Act  as  a

covenant  to  govern  their  future relations.    Maine  received

valuable consideration  for the accord, including  the protection

afforded  by section  16(b).   The Tribe  also received  valuable

consideration, including land,  money, and  recognition.   Having

reaped  the  benefits,  the  Tribe cannot  expect  the  corollary

burdens  imposed under  the  Settlement Act  to disappear  merely

because they have become inconvenient.

          We need go no further.   We hold that Congress did  not

make  the Gaming  Act specifically  applicable within  Maine, and

that, therefore, the Tribe is not entitled to an order compelling

the State to negotiate a compact for Class III gaming.

Affirmed.
          Affirmed
                  

                                21