Turtle Talk - NO United States Court of Appeals for the First ......NO. 16-1137 United States Court...

NO. 16-1137

United States Court of Appeals

for the First Circuit

COMMONWEALTH OF MASSACHUSETTS, AQUINNAH/GAY HEAD COMMUNITY

ASSOCIATION, INC., TOWN OF AQUINNAH, MA,

Plaintiff-Appellees

v.

THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH), THE WAMPANOAG TRIBAL

COUNCIL OF GAY HEAD, INC., THE AQUINNAH WAMPANOAG GAMING

CORPORATION,

Defendant-Appellants

v.

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 official capacity as

Chairman of the Massachusetts Gaming Commission

Third-Party Defendants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MASSACHUSETTS (HON. F. DENNIS SAYLOR, IV)

BRIEF OF THE APPELLEE-PLAINTIFF COMMONWEALTH OF

MASSACHUSETTS AND THIRD-PARTY DEFENDANTS MAURA T.

HEALEY, CHARLES D. BAKER, AND STEPHEN P. CROSBY

MAURA HEALEY

Attorney General

Juliana deHaan Rice, 1st Cir. No. 103180

Bryan F. Bertram, 1st Cir. No. 1164437

Assistant Attorneys General

Government Bureau

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

[email protected]

[email protected]

Case: 16-1137 Document: 38 Page: 1 Date Filed: 08/31/2016 Entry ID: 6029507Case: 16-1137 Document: 00117050795 Page: 1 Date Filed: 09/02/2016 Entry ID: 6030043

i

TABLE OF CONTENTS

Table of Contents ........................................................................................................ i

Table of Authorities .................................................................................................. iv

Introduction ................................................................................................................ 1

Statement of the Issues ............................................................................................... 2

Statement of the Case ................................................................................................. 3

Statement of the Facts ...................................................................................... 3

1. The Tribe’s 1974 Indian Land Claims Lawsuit and 1983

Settlement of That Lawsuit ......................................................... 3

2. State and Federal Ratification of the Settlement

Agreement ................................................................................... 6

3. Congress’s Drafting and Enactment of IGRA ............................ 9

4. The Tribe’s Steps Toward Prohibited Gaming .........................10

Procedural History of This Case ....................................................................11

Summary of the Argument ....................................................................................... 13

Argument.................................................................................................................. 15

I. The District Court Correctly Ruled That Congress Did Not

Intend to Repeal the Settlement Act by Subsequently Enacting

IGRA. ..................................................................................................15

A. The Settlement Act Is a Federal Law That Specifically

Prohibits Gaming and Thus Falls Outside of IGRA’s

Reach. ........................................................................................16

B. Congress’s Insertion of Gaming-Specific Text in the

Settlement Act and the Circumstances of That Insertion

Show That Congress Did Not Mean IGRA to Impliedly

Repeal That Text. ......................................................................20


ii

1. The Settlement Act’s Gaming-Specific Text

Harmonizes It with IGRA...............................................21

2. The Settlement Act’s Gaming-Specific Text

Makes It the More Specific and Therefore

Controlling Statute. .........................................................24

3. The Same Session of Congress Enacted Both the

Settlement Act and IGRA. ..............................................25

4. Upholding the Settlement Act’s Text Does No

Injury to IGRA but the Opposite Result Would

Disrupt a Central Tenet of the Settlement Act. ..............27

5. This Court’s Precedent and Decisions in the Fifth

and D.C. Circuits Support the District Court’s

Decision. .........................................................................29

6. The Settlement Act’s Gaming-Specific Text Is Not

a “Placeholder” to Fill a Temporary Regulatory

Gap, as Hypothesized by the Tribe and United

States. ..............................................................................32

C. The District Court Properly Held That Interior and

NIGC’s Opinion Letters Interpreting the Settlement Act

and IGRA Are Entitled to No Judicial Deference. ...................35

II. The Tribe Does Not Have Sufficient Jurisdiction and Does Not

Exercise Sufficient Governmental Powers Over the Settlement

Lands to Make Them “Indian lands” Under IGRA. ...........................37

III. The United States Was Not a Necessary but Absent Party

Under Rule 19(A)(1), and on That Ground the District Court

Correctly Denied the Tribe’s Motion to Dismiss the

Commonwealth’s Complaint...............................................................38

Conclusion ............................................................................................................... 42

Certificate of Compliance with Rule 32(a) .............................................................. 43

Certificate of Service ............................................................................................... 44


iii

Addendum ......................................................................................................... Add. 1

25 U.S.C.A. § 941l ................................................................................. Add. 2

25 U.S.C.A. § 1300g-6 ........................................................................... Add. 3

25 U.S.C.A. § 1708 ................................................................................. Add. 4

25 U.S.C.A. § 1735 ................................................................................. Add. 5

25 U.S.C.A. § 1771g ............................................................................... Add. 6

25 U.S.C.A. § 2701 ................................................................................. Add. 7

25 U.S.C.A. § 2710 (Excerpt) ................................................................ Add. 8


iv

TABLE OF AUTHORITIES

Cases

Artichoke Joe’s Cal. Grand Casino v. Norton,

353 F.3d 712 (9th Cir. 2003) ........................................................................ 28

Barona Group of Capitan Grande Band of Mission Indians v. Duffy,

694 F.2d 1185 (9th Cir. 1982) ...................................................................... 34

Bates v. United States,

522 U.S. 23 (1997) ........................................................................................ 32

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) ...................................................................................... 21

California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987) ................................................................................ 28, 33

Calvao v. Town of Framingham,

599 F.3d 10 (1st Cir. 2010) ........................................................................... 35

Carcieri v. Salazar,

555 U.S. 379 (2009) ...................................................................................... 20

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) ...................................................................................... 35

Christensen v. Harris County,

529 U.S. 576 (2000) ................................................................................ 15, 35

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ...................................................................................... 32

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437 (1987) ................................................................................ 24, 25

Dean v. United States,

556 U.S. 568 (2009) ...................................................................................... 32


v

Freeman v. Quicken Loans, Inc.,

132 S. Ct. 2034 (2012) .................................................................................. 19

Kittery Motorcycle, Inc. v. Rowe,

320 F.3d 42 (1st Cir. 2003) ........................................................................... 17

Morton v. Mancari,

417 U.S. 535 (1974) ...................................................................................... 20

Murray v. Warren Pumps, LLC,

821 F.3d 77 (1st Cir. 2016) ........................................................................... 16

Narragansett Indian Tribe v. National Indian Gaming Comm’n,

158 F.3d 1335 (D.C. Cir. 1998) ........................................................ 23, 27, 31

Nebraska v. Parker,

136 S. Ct. 1072 (2016) .................................................................................. 15

Northeast Marine Terminal Co., Inc. v. Caputo,

432 U.S. 249 (1977) ...................................................................................... 33

Oneida Tribe of Indians v. Wisconsin,

518 F. Supp. 712 (W.D. Wis. 1981) ............................................................. 34

Passamaquoddy Tribe v. State of Maine,

75 F.3d 784 (1st Cir. 1996) ....................................................................passim

Picciotto v. Continental Cas. Co.,

512 F.3d 9 (1st Cir. 2008) ............................................................................. 38

POM Wonderful LLC v. Coca-Cola Co.,

134 S. Ct. 2228 (2014) .................................................................................. 17

Pullen v. Morgenthau,

73 F.2d 281 (2d Cir. 1934) ..................................................................... 25, 26

Seminole Tribe of Florida v. Butterworth,

658 F.2d 310 (5th Cir. 1981) ......................................................................... 34


vi

Soto–Padró v. Pub. Bldgs. Auth.,

675 F.3d 1 (1st Cir. 2012) ............................................................................. 40

State of Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685 (1st Cir. 1994) ....................................................................passim

Thornburg v. Gingles,

478 U.S. 30 (1986) ........................................................................................ 33

Traynor v. Turnage,

485 U.S. 535 (1988) ................................................................................ 25, 26

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ........................................................................................ 19

United States v. Bulger,

816 F.3d 137 (1st Cir. 2016) ......................................................................... 40

Vance v. Ball State Univ.,

133 S. Ct. 2434 (2013) ............................................................................ 15, 36

Watt v. Alaska,

451 U.S. 259 (1981) ...................................................................................... 20

Wisconsin v. Ho-Chunk Nation,

784 F.3d 1076 (7th Cir. 2015) ...................................................................... 19

Ysleta del Sur Pueblo v. State of Texas,

36 F.3d 1325 (5th Cir. 1994) .................................................................passim

Statutes

25 U.S.C. § 177 .......................................................................................................... 3

25 U.S.C. §§ 941-941n ............................................................................................ 27

25 U.S.C. § 941l ....................................................................................................... 27

15 U.S.C. § 1175 ...................................................................................................... 20


vii

25 U.S.C. § 1300g-6..................................................................................... 23, 29, 30

25 U.S.C. §§ 1701-16............................................................................................... 31

25 U.S.C. § 1708(b) ................................................................................................ 31

25 U.S.C. §§ 1721-1735 .......................................................................................... 30

25 U.S.C. § 1735(b) ................................................................................................ 30

25 U.S.C. §§ 1771-1771i ........................................................................... 1, 6, 24, 32

25 U.S.C. § 1771 ........................................................................................ 6, 7, 22, 28

25 U.S.C. § 1771a ...................................................................................................... 4

25 U.S.C. § 1771c .............................................................................................. 22, 28

25 U.S.C. § 1771d ...................................................................................... 6, 7, 22, 28

25 U.S.C. § 1771f ....................................................................................... 4, 7, 22, 28

25 U.S.C. § 1771g .............................................................................................passim

25 U.S.C. §§ 2701-21........................................................................................passim

25 U.S.C. § 2701 ...................................................................................................... 13

25 U.S.C. § 2703 .................................................................................................. 9, 16

25 U.S.C. § 2710 ...................................................................................................... 27

25 U.S.C. § 2710(b) ............................................................................... 13, 17, 18, 19

25 U.S.C. § 2710(e) ................................................................................................ 10

25 U.S.C. § 2712(b) ................................................................................................ 10

28 U.S.C. § 1360 ...................................................................................................... 33


viii

An Act to Implement the Settlement of Gay Head Indian Land Claims,

Mass. Stat. 1985, ch. 277 (1985) ................................................................ 6, 7

An Act Establishing Expanded Gaming in the Commonwealth,

Mass. Stat. 2011, ch. 194 (2011) .................................................................. 10

Catawba Indian Tribe of South Carolina Land Claims

Settlement Act of 1993,

Pub. L. 103-116, 107 Stat. 1118 (1993) ....................................................... 27

Indian Gaming Regulatory Act,

Pub. L. 100-497, 102 Stat. 2467 (1988) ................................................ 10, 26

Maine Indian Claims Settlement Act of 1980,

Pub. L. 96-420, 94 Stat. 1785 (1980) ........................................................... 20

Mass. Gen. Laws ch. 23K, § 37 ............................................................................... 10

Pub. L. No. 104-208, § 330, 110 Stat. 3009-227 (1996) .................................. 27, 31

Rhode Island Indian Claims Settlement Act,

Pub. L. 95-395, 92 Stat. 813 (1978) ............................................................. 20

Wampanoag Tribal Council of Gay Head, Inc., Indian Land

Claims Settlement Act of 1987,

Pub. L. 100-95, 101 Stat. 704 (1987) ................................................... 1, 9, 26

Rules and Regulations

Fed. R. Civ. P. 19(a)(1) ....................................................................................passim

Other Authorities

H.R. 2868, 99th Cong. (1985) ................................................................................... 7

H.R. 1920, 99th Cong. (1986) ................................................................................... 9

H.R. 2855, 100th Cong. (1987) ................................................................................. 8


ix

Indian Land Claims in the Town of Gay Head, MA: Hearing on

S. 1452 Before the Senate Select Committee on Indian

Affairs, 99th Cong. (Apr. 9, 1986) ................................................................... 8

Narragansett Indian Tribe: Oversight Hearing Before the

House Comm. on Resources, 105th Cong. 14 (1997) .................................. 31

Roland J. Santoni, The Indian Gaming Regulatory Act: How

Did We Get Here? Where Are We Going? 26 Creighton

L. Rev. 387, 399 (1993) ............................................................................ 9, 33

S. 1452, 99th Cong (1985) ........................................................................................ 7

S. 555, 100th Cong. (1987) ....................................................................................... 9

S. 1454, 100th Cong. (1987) ..................................................................................... 8

S. Rep. No. 100-446 (1988) ......................................................................... 20, 23, 33


1

INTRODUCTION

In 1974, the Wampanoag Tribe of Gay Head (Aquinnah) (the “Tribe”) sued

the Town of Aquinnah (the “Town”), asserting aboriginal property rights to certain

lands within the Town. The Commonwealth and the Aquinnah/Gay Head

Community Association (“Community Association”) later intervened. In 1983, the

parties settled that litigation. Under the settlement, 485 public and private acres

were deeded to the United States to hold in trust for the Tribe (the “Settlement

Lands”). In return, the Tribe agreed that state and local laws would govern future

use of those Settlement Lands. Federal legislation implementing the settlement

specifically subjected the land to “the civil and 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.1

In 2013, despite the parties’ agreement and the clear statutory bar against

unlicensed gaming operations, the Tribe took steps to commence such gaming.

The Commonwealth responded by filing suit, later joined by the Town and

Community Association, and the District Court entered summary judgment against

the Tribe, concluding that the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C.

1 The Settlement Act, Pub. L. 100-95, 101 Stat. 704 (Aug. 18, 1987), is codified at

25 U.S.C. §§ 1771 to 1771i.


2

§§ 2701-21, does not allow the Tribe to operate a gaming establishment on the

settlement lands. The basis for the District Court’s decision was twofold: (1) by

its terms, IGRA does not apply to the settlement lands because the Tribe does not

have jurisdiction or exercise sufficient “governmental power” over them that

IGRA requires; and (2) even if IGRA were to apply, the 1987 statute implementing

the parties’ settlement agreement would nevertheless preclude the Tribe from

commencing gaming operations absent compliance with state and local gaming

laws. This Court should affirm that well-reasoned decision and judgment.

STATEMENT OF THE ISSUES

1. Congress enacted the Settlement Act in August 1987 and, fourteen

months later, the same session of Congress enacted IGRA. Did the District Court

correctly conclude that Congress did not intend its enactment of IGRA to repeal its

just-passed Settlement Act?

2. For lands to be subject to IGRA, they must be “Indian lands”

meaning, among other things, that an Indian tribe has sufficient jurisdiction and

exercises sufficient governmental power over those lands. Did the District Court

correctly conclude that the Tribe does not have sufficient jurisdiction and does not

exercise sufficient governmental power over the Settlement Lands to make them

“Indian lands” within IGRA’s meaning?


3

3. The Tribe moved below to dismiss this case, arguing that the United

States was a required but absent party under Fed. R. Civ. P. 19(a)(1) (“Rule

19(a)(1)”), a position the amicus curiae United States now disagrees with. Did the

District Court correctly deny the Tribe’s motion?

STATEMENT OF THE CASE

Statement of the Facts

1. The Tribe’s 1974 Indian Land Claims Lawsuit and 1983

Settlement of That Lawsuit

The Town lies on the western end of Martha’s Vineyard. App. I.183

(Stipulated Facts Not in Dispute (SF), ¶¶ 2, 3).2 It incorporated as Gay Head in

1870 and changed its name to Aquinnah in 1997. Id. The area is home to a

community of Wampanoag Native Americans; these individuals and others living

elsewhere comprise the Tribe, now a federally-recognized Indian tribe. App.I.183

(SF ¶ 1).

In 1974, the Tribe sued the Town asserting aboriginal title to certain lands

and seeking to eject record title-holders due to claimed earlier violations of the

federal Indian Non-Intercourse Act, 25 U.S.C. § 177. App.I.184 (SF ¶ 7);

Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head, No. 74-5826-

2 Citations to the Tribe’s Appendix to Opening Brief are in the form “App.[volume

number].[page number]” and to the Community Associations’ Supplemental

Appendix in the form “Supp.App.[page number].”


4

G (D. Mass.). At the time, the Tribe was not federally recognized and acted

through the Wampanoag Tribal Council of Gay Head, Inc., a non-profit

corporation.3 (The United States did not recognize the Tribe until 1987.)

App.I.183-185 (SF ¶¶ 4, 6-7, 17). The Commonwealth and Community

Association4 later intervened in that lawsuit. App. I.184 (SF ¶ 11).

The lawsuit ended in 1983 when the parties entered into a settlement

agreement (“Settlement Agreement”). App.I.184 (SF ¶ 11); see App.II.406-417.

Under the Settlement Agreement, the Town and the Community Association

agreed to convey 485 acres of public and private land to the Tribe, some of which

was to be purchased using public funds.5 App.II.408-411, 412-413 (Settlement

Agreement ¶¶ 4-7, 10). In exchange, the Tribe relinquished all claims to lands and

waters in the Commonwealth, other than the Settlement Lands. App.II.411-412

(Settlement Agreement ¶ 8(d)). The Tribe further agreed that—with exceptions

3 There is no question that the Tribal Council acted for the Tribe. Not only did

Congress confirm that to be the case by defining the Tribal Council in the

Settlement Act as “the tribal entity recognized by the Secretary of the Interior as

having a government to government relationship with the United States,” 25

U.S.C. § 1771f(2), but the Tribe’s own constitution says “any responsibility

undertaken by the Wampanoag Tribal Council of Gay Head, Inc. shall hereinafter

be the sole responsibility of the tribe,” App.I.196.

4 At the time, the Community Association was named the Taxpayers Association

of Gay Head, Inc.

5 The Settlement Agreement contemplated the use of only federal funds, but the

later Settlement Act required the Commonwealth and the United States to each

contribute $2.25 million to a settlement fund. 25 U.S.C. § 1771a.


5

not relevant here—the Settlement Lands would remain subject to all state and local

laws and to the jurisdiction of the Commonwealth and Town. App.II.407-408,

414-416 (Settlement Agreement ¶¶ 3, 13).6

With respect to the continued application of state and local laws on the

Settlement Lands, the Settlement Agreement specified:

The Tribal Land Corporation[7]

shall hold the Settlement

Lands, and any other land it may acquire, in the same

manner, and subject to the same laws, as any other

Massachusetts corporation, except to the extent

specifically modified by this agreement and the

accompanying proposed legislation. Under no

circumstances, including any future recognition of the

existence of an Indian tribe in the Town of Gay Head,

shall the civil or criminal jurisdiction of the

Commonwealth of Massachusetts, or any of its political

subdivisions, over the Settlement Lands . . . be impaired

or otherwise altered[.]

App.II.407-408 (Settlement Agreement ¶ 3), and:

All federal, State, and Town laws shall apply to the

Settlement Lands subject only to the following special

provisions [relating to taxation and regulation of

hunting], regardless of any federal recognition the

alleged Gay Head Tribe may acquire[.]

6 The exceptions concerned taxation and hunting.

7 The Tribal Council was to create the Tribal Land Corporation to acquire, manage,

and permanently hold the Settlement Lands. App.II.407 (Settlement Agreement ¶

3). But, because the Secretary of the Interior recognized the Tribe shortly before

Congress enacted the Settlement Act, title to those lands transferred to the United

States to hold in trust for the Tribe. App.I.185.


6

App.II.414-416 (Settlement Agreement ¶ 13). The Settlement Agreement also

memorialized the Tribe’s intention that “no Indian tribe or band shall ever exercise

sovereign jurisdiction as an Indian tribe . . . over all or any part of the Settlement

Lands.” App.II.413 (Settlement Agreement ¶ 11(a)). Finally, use of the Settlement

Lands would be governed by a Land Use Plan incorporated into the Settlement

Agreement and amendable by prescribed procedures. App.II, 416-417 (Settlement

Agreement ¶ 16); see also App.II.418-423 (Land Use Plan). In short, the parties

agreed to provide the Tribe with a land base for its people, in return for the Tribe’s

agreement that state and local law would remain in force on those lands.

2. State and Federal Ratification of the Settlement Agreement

The Settlement Agreement expressly required ratification by the Town, the

Commonwealth’s General Court, and Congress. App.II. 407, 411-412 (Settlement

Agreement ¶¶ 2, 8(d)). In 1985, Massachusetts enacted An Act to Implement the

Settlement of the Gay Head Indian Land Claims, Mass. Stat. 1985, ch. 277.

App.I.184 (SF ¶ 13).

In August 1987, Congress enacted the Settlement Act, 25 U.S.C. §§ 1771-

1771i. There, Congress repeatedly referred to, and expressly incorporated the terms

of, the Settlement Agreement. See, e.g., 25 U.S.C. §§ 1771(4), 1771d(c),


7

1771d(d), 1771f(10).8 Congress also included a section entitled, “Applicability of

State Law,” providing—with exceptions not relevant here—that:

[T]he 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 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 other games of chance).

25 U.S.C. § 1771g (emphasis added).

Congress itself deliberately inserted this provision’s gaming-specific text, as

it had not been present in the 1985 state law. See Mass. Stat. 1985, ch. 277. Nor

was it present in earlier, unenacted House and Senate bills first proposing the

Settlement Act. See S. 1452, § 10, 99th Cong (1985); H.R. 2868, § 10, 99th Cong.

8 25 U.S.C. § 1771(4): “[T] he parties to the lawsuit and others interested in

settlement of Indian land claims within the Commonwealth of Massachusetts

executed a Settlement Agreement which, to become effective, requires

implementing legislation . . . .”

25 U.S.C. § 1771d(c): “Any lands acquired pursuant to this section, and any other

lands which are on and after August 12, 1987, held in trust for the Wampanoag

Tribal Council of Gay Head, Inc., any successor, or individual member, shall be

subject to this subchapter, the Settlement Agreement and other applicable laws.”

(emphasis added).

25 U.S.C. § 1771d(d): “Any right, title, or interest to lands acquired by the

Secretary under this section, and the title to public settlement lands conveyed by

the town of Gay Head, shall be held in trust for the Wampanoag Tribal Council of

Gay Head, Inc. and shall be subject to this subchapter, the Settlement Agreement,

and other applicable laws.” (emphasis added).

25 U.S.C. § 1771f(10) (definition of Settlement Agreement).


8

(1985). In April 1986, parties to the Settlement Agreement testified about those

original bills to the Senate’s Select Committee on Indian Affairs. Supp.App.156-

91 (Indian Land Claims in the Town of Gay Head, MA: Hearing on S. 1452 Before

the Senate Select Committee on Indian Affairs, 99th Cong. (Apr. 9, 1986)). At that

hearing, and despite the absence of any gaming-specific text in the bills then under

consideration, the Tribal Council’s president, Gladys A. Widdiss, a signatory to the

Settlement Agreement, declared that the proposed legislation would not authorize

tribal gaming:

Lastly, Mr. Chairman, we are aware of the growing

concern of Congress regarding the issue of gaming on

reservations. This bill would not permit such activity on

Gay Head. . . . We recognize and accept that no gaming

on our lands is now or will in the future be possible.

Id. at 191 (emphasis added) (written testimony); see also id. at 180 (oral testimony

to same effect).

During its next legislative session, in June 1987, both houses of Congress

considered new bills to implement the Settlement Agreement. S.1454, 100th

Cong. (1987); H.R. 2855, 100th Cong. (1987). In both draft bills, Congress had

inserted as Section 9, the gaming-specific text that would later appear in the

Settlement Act. Id. The 100th Congress enacted the Settlement Act in August

1987, including the gaming-specific text emphasized above. Pub. L. 100-95, 101

Stat. 704 (1987), codified at 25 U.S.C. § 1771g.


9

3. Congress’s Drafting and Enactment of IGRA

Contemporaneously with its work on the Settlement Act, Congress was

considering legislation that would become IGRA. In March 1986, a draft bill

proposing tribal gaming regulation was amended to be named, for the first time,

the Indian Gaming Regulatory Act. See Roland J. Santoni, The Indian Gaming

Regulatory Act: How Did We Get Here? Where Are We Going?, 26 Creighton L.

Rev. 387, 399 (1993), citing H.R. 1920, 99th Cong. (1986). The amendment also

introduced the three-tiered “class” structure for gaming activities now embodied in

IGRA. Class I gaming are traditional tribal “social” games, played for at most

minimal value, which are solely within an Indian tribe’s jurisdiction. 25 U.S.C.

§ 2703. Class II gaming is bingo and certain card games explicitly authorized by

state law. Id. Class III gaming covers all other forms of gaming, including those

typically associated with casinos. Id.

Then, in February 1987, four months before taking up the bills that would

become the Settlement Act, Congress began considering Senate Bill 555, which it

would ultimately enact as IGRA. It, too, included IGRA’s three-tiered regulatory

structure, with class II gaming defined as “games of chance commonly known as

bingo or lotto.” S. 555, 100th Cong. (1987).


10

In October of 1988, 14 months after adopting the Settlement Act, Congress

enacted IGRA, Pub. L. 100-497, 102 Stat. 2467 (1988), codified at 25 U.S.C.

§ 2701-21.

4. The Tribe’s Steps Toward Prohibited Gaming

In 2011, then-Governor Deval Patrick signed into law An Act

Establishing Expanded Gaming in the Commonwealth. Mass. Stat. 2011, ch. 194;

App.I.186 (SF ¶ 28). This law prohibits any person or entity from opening or

operating a gaming establishment in the Commonwealth without a gaming license.

Mass. Gen. Laws ch. 23K, § 37; ch. 271, § 3. The Tribe has never applied to the

Massachusetts Gaming Commission for a license to operate a gaming

establishment of any kind, and it does not currently possess a Massachusetts-issued

license to conduct gaming. App.I.187 (SF ¶ 36).

Nonetheless, in February 2012, the Tribe adopted Gaming Ordinance No.

2011-01, purporting to authorize and regulate Class I and Class II gaming.

App.I.187 (SF ¶¶ 37-39); Supp.App.45-47. In April 2012, the Tribe amended its

gaming ordinance to specify certain lands for gaming—the Settlement Lands—and

submitted the amended ordinance to the NIGC, required by IGRA if IGRA applies.

App.I.187 (SF ¶¶ 44-47); 25 U.S.C. §§ 2710(e), 2712(b). On August 29, 2013,

NIGC, having taken no action on the ordinance, notified the Tribe that the


11

ordinance had been deemed approved by operation of law, but only “to the extent

that it is consistent with IGRA.” App.I.188 (SF ¶¶ 54-55).

Procedural History of This Case

In December 2013, the Commonwealth sued the Tribe in Massachusetts’

Supreme Judicial Court, seeking a declaration that the Settlement Agreement bars

the Tribe from engaging in, licensing, or regulating gaming operations on the

Settlement Lands unless those operations are licensed by the Commonwealth.

App.II.425-442. The Tribe removed the case to the United States District Court

and defeated the Commonwealth’s motion for remand. App.II.497-499 (Dkt.

## 1, 319). Over the Tribe’s objection, the District Court then allowed the Town

and the Community Association—as signatories to the Settlement Agreement—to

intervene as plaintiffs. App.II.495-496 (Dkt. ## 36, 38, 41, 42, 51).

The Tribe next moved to dismiss the complaints of the Commonwealth and

the Community Association on various grounds; the District Court denied those

motions. App.II.492-495 (Dkt. # 59 (Motion to Dismiss Community Association’s

complaint for lack of jurisdiction); # 61 (Motion to Dismiss Commonwealth’s

complaint for failure to name a necessary party); and # 95 (Memorandum and

Order). The Tribe then answered the complaints and filed counterclaims, some of

which the District Court dismissed on the Commonwealth’s motion. App.II.493,

9 All references to docket numbers refer to the District Court docket.


12

495 (Dkt. ## 74, 85, 95). This left before the District Court the parties’ competing

requests for a judicial declaration concerning whether the Tribe may game on the

Settlement Lands and the Community Association and Town’s request that the

District Court enjoin the Tribe’s proposed gaming operations.

In accordance with an agreed-upon schedule, the parties stipulated to a

factual record. App.II.488-49 (Dkt. ## 107, 112, 116, 119, 120). The parties then

cross-moved and cross-opposed summary judgment. Id. The District Court held a

summary judgment hearing on August 12, 2015. App.II.488 (Dkt. # 148).

On November 13, 2015, the District Court issued its memorandum of

decision and order, App.II.343-382, concluding that:

[T]he Tribe has not met its burden of showing that is

exercises sufficient “governmental power” over the

Settlement Lands, and therefore IGRA does not apply.

Furthermore, and in any event, it is clear that IGRA did

not repeal by implication the Massachusetts Settlement

Act. Accordingly, the Tribe cannot build a gaming

facility on the Settlement Lands without complying with

the laws and regulations of the Commonwealth and the

Town.

App.II.381-382 (Memorandum and Order on Motions for Summary Judgment,

pages 39-40). On this basis, the Court entered judgment in favor of the

Commonwealth, the Town, and the Community Association and against the Tribe,

including in the judgment a declaration and permanent injunction against the


13

Tribe’s commencement of unlicensed gaming operations on the Settlement Lands.

Add. to Tribe’s Br. at 383-404 (Final Judgment). This appeal followed.

SUMMARY OF THE ARGUMENT

The District Court correctly held that state and local law—specifically those

laws applying to gaming—continue to apply to the Tribe and their lands

notwithstanding Congress’s enactment of IGRA. The District Court’s judgment to

that effect should be affirmed.

I. In the Settlement Act, Congress codified the parties’ contracted

agreement that the Tribe’s lands would remain subject to state and local law.

Congress specifically inserted into the Settlement Act text preventing the Tribe

from gaming on its lands, unless in compliance with state and local law. 25 U.S.C.

§ 1771g. That text is the best evidence of Congress’s intent. The Tribe and its

lands therefore remain subject to state and local law, including gaming laws.

First, IGRA exempts from its reach any gaming “specifically prohibited . . .

by Federal law.” 25 U.S.C. § 2710(b)(1); also 25 U.S.C. § 2701. The Settlement

Act’s gaming-specific text, a federal law, specifically prohibits gaming on the

Tribe’s lands absent state and local authorization. See 25 U.S.C. § 1771g. The

District Court properly concluded that this text triggers IGRA’s “specifically

prohibited by Federal law” exemption, removing the Tribe and their lands from

IGRA’s reach.


14

Second, even were one to assume for the sake of argument that Section

1771g is not a prohibition of unauthorized gaming, the circumstances of

Congress’s inclusion of the gaming-specific text in the Settlement Act show that

Congress did not intend IGRA to impliedly repeal that text. The same session of

Congress deliberately inserted the gaming-specific text in the Settlement Act,

while also considering and enacting IGRA without a provision repealing that text.

Retention of that gaming-specific text harmonized the two statutes rather than

placed them in conflict. The gaming-specific text also makes this case very

different from State of Rhode Island v. Narragansett Indian Tribe

(“Narragansett I”), 19 F.3d 685 (1st Cir. 1994)—in which this Court held that

IGRA impliedly repealed an earlier dissimilar state-specific statute—and, instead,

similar to the Fifth Circuit’s decision in Ysleta del Sur Pueblo v. State of Texas

(“Ysleta”), 36 F.3d 1325 (5th Cir. 1994), which held that IGRA did not impliedly

repeal another federal statute that was more similar to the Settlement Act.

Third, opinion letters from the Department of Interior’s (“Interior”) Solicitor

and NIGC arguing otherwise, App.I.214-37, are not entitled to judicial deference.

The Settlement Act’s unambiguous gaming-specific language creates no textual

opening for deference, and this Court previously rejected such an argument in

Passamaquoddy Tribe v. State of Maine (“Passamaquoddy”), 75 F.3d 784, 794 (1st

Cir. 1996). In any event, the Supreme Court has rejected the more general


15

proposition that agency opinion letters receive Chevron deference. See

Christensen v. Harris County, 529 U.S. 576, 587 (2000). Furthermore, the analysis

set forth in the letters here is wrong, with no “power to persuade.” Vance v. Ball

State Univ., 133 S. Ct. 2434, 2461 (2013).

II. The Tribe does not have jurisdiction and does not exercise sufficient

governmental power over the Settlement Lands to make them “Indian lands”

subject to IGRA for the reasons argued by the Commonwealth’s co-Appellees the

Community Association and Town. To minimize briefing in this Court, the

Commonwealth incorporates the Community Association’s and Town’s argument

by reference and does not reproduce it here.

III. The Tribe’s argument that the United States was a necessary but

absent party below, requiring dismissal under Rule 19(a)(1), is without merit. The

Tribe identifies no concrete threat of enforcement from the NIGC if it complies

with both state and local law before establishing gaming operations. Indeed, the

United States itself disclaims that it was a necessary party in its amicus brief.

ARGUMENT

I. The District Court Correctly Ruled That Congress Did Not Intend to

Repeal the Settlement Act by Subsequently Enacting IGRA.

“As with any other question of statutory interpretation, [this Court should]

begin with the text of the [Settlement Act and IGRA],” Nebraska v. Parker, 136 S.

Ct. 1072, 1079 (2016), because, as this Court has held when interpreting IGRA,


16

“[i]n the game of statutory interpretation, statutory language is the ultimate trump

card,” Passamaquoddy, 75 F.3d at 191; Narragansett I, 19 F.3d at 699. Here, the

Settlement Act’s gaming-specific text is the “trump card.” Through that text, the

100th Congress intended to apply state and local law—including gaming laws—to

the Tribe and its lands. For the reasons that follow, (1) the Settlement Act’s

gaming-specific text is a specific federal law prohibiting gaming, thus exempt from

IGRA’s scope, and (2) even if it is not, the circumstances of the text’s enactment

shows that Congress wrote the text to harmonize the Settlement Act and IGRA, not

to place them in conflict. This Court should affirm the District Court’s grant of

summary judgment to this effect, which this Court reviews de novo.10

A. The Settlement Act Is a Federal Law That Specifically Prohibits

Gaming and Thus Falls Outside of IGRA’s Reach.

IGRA twice exempts from its reach federal laws that specifically prohibit

gaming on Indian lands. First, in IGRA’s legislative findings, Congress wrote,

“Indian tribes have the exclusive right to regulate gaming activity on Indian lands

if the gaming activity is not specifically prohibited by Federal law . . . .” 25 U.S.C.

§ 2701 (emphasis added). Then, with respect to class II gaming—i.e., bingo, at

issue here—Congress said:

An Indian tribe may engage in, or license and regulate,

class II gaming on Indian lands within such tribe's

10

E.g., Murray v. Warren Pumps, LLC, 821 F.3d 77, 83 (1st Cir. 2016).


17

jurisdiction, if . . . such Indian gaming is located within a

State that permits such gaming for any purpose by any

person, organization or entity (and such gaming is not

otherwise specifically prohibited on Indian lands by

Federal law) [.]

25 U.S.C. § 2710(b)(1)(A) (emphasis added). Congress therefore did not mean to

repeal its own, pre-IGRA laws that prohibit gaming on Indian lands. See id.

The Settlement Act is just such a specific federal law. It is specific to

gaming—it says “bingo or any other game of chance,” 25 U.S.C. § 1771g—and it

specifically applies to the Settlement Lands. Next, the Settlement Act is a

prohibition: it prohibits any gaming on the Settlement Lands, by the Tribe or

anyone else, unless first authorized by the Commonwealth and Town. See id. The

District Court therefore properly reasoned that this text “takes a law that . . . is

otherwise a general grant of jurisdiction, and transforms it into a law that

specifically prohibits gaming on the Settlement Lands.” App.II.373.

“When two statues complement each other, it would show disregard for the

congressional design to hold that Congress intended one federal statute to preclude

the operation of the other.” POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct.

2228, 2283 (2014); see also Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 51 (1st

Cir. 2003) (“[I]f we can reasonably read … two statutes consonantly, we will.”).

Congress here designed both acts to work together by inserting gaming-specific


18

text into the Settlement Act. That Congressional design creates a seamless co-

existence between the two acts.

The Tribe and United States argue that the Settlement Act does not

“specifically prohibit[ ]” gaming but is, instead, a regulatory law because

Massachusetts’ gaming laws are regulatory. Appellants Opening Br. (“Tribe Br.”)

at 21-22; United States’ Br. as Amicus Curiae in Supp. of Defs.-Appellants and in

Supp. of Reversal (“United States Br.”) at 22. That argument improperly conflates

state and federal law, when this provision of IGRA references only federal law.

See 25 U.S.C. § 2710(b)(1)(A) (“is not otherwise specifically prohibited on Indian

lands by Federal law”) (emphasis added). Congress certainly knows the difference

between the two. Because this IGRA provision refers only to federal law, the

question is whether the Settlement Act—the federal law—is a prohibition, not

whether Massachusetts state law is one.

The Settlement Act is in fact a prohibition. It creates a binary choice based

on a factual question—has the Tribe complied with state and local law concerning

gaming? If so, it may game; if not, it is prohibited from doing so. See 25 U.S.C. §

2710(b)(1)(A). The Settlement Act, however, does not itself purport to regulate

anything. See id. The District Court properly read that text as a prohibition, rather

than as a set of federal regulations. App.II.373-75.


19

Underscoring this point, this provision of IGRA contains two independent

requirements for class II gaming. See 25 U.S.C. § 2710(b)(1)(A). It asks first

whether the gaming will be “located within a State that permits such gaming,” id.

—in other words, whether a state’s laws are regulatory, e.g., Wisconsin v. Ho-

Chunk Nation, 784 F.3d 1076, 1082 (7th Cir. 2015). The second requirement,

independent from the first, asks whether that gaming is “specifically prohibited on

Indian lands by Federal law.” See 25 U.S.C. § 2710(b)(1)(A) (emphasis added).

To do as the Tribe and United States suggest by referring to state law to determine

whether the federal statute is a prohibition, would conflate these two independent

requirements into a unitary inquiry into state law. This Court should reject that

interpretation because it fails to give full effect to all of IGRA’s text and instead

creates textual statutory surplusage. See TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought,

upon the whole, to be construed’” in a manner that ensures that “‘no clause,

sentence, or word shall be superfluous, void, or insignificant.’”) (citation omitted);

Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012) (recognizing that

courts should be reluctant to treat statutory terms as surplusage) (internal

quotations omitted). This Court should give both requirements independent

meaning and analyze the Settlement Act independently from state law.11

11

The United States also argues in footnote that IGRA’s legislative history “shows

(footnote continued)


20

B. Congress’s Insertion of Gaming-Specific Text in the Settlement

Act and the Circumstances of That Insertion Show That Congress

Did Not Mean IGRA to Impliedly Repeal That Text.

This Court must give full effect to both IGRA and the Settlement Act unless

the two stand in “irreconcilable conflict” or Congress “clearly intended [IGRA] as

a substitute.” See Carcieri v. Salazar, 555 U.S. 379, 395 (2009). The reason for

these stringent standards is the “cardinal rule” that “repeals by implication are not

favored.” Morton v. Mancari, 417 U.S. 535, 549 (1974) (internal quotations

omitted); Passamaquoddy, 75 F.3d at 191 (citing Narragansett I, 19 F.3d at 703).

Instead, this Court harmonizes statutes where it can. Watt v. Alaska, 451 U.S. 259,

267 (1981) (“We must read the statutes to give effect to each if we can do so while

preserving their sense and purpose.”). And, when interpreting IGRA’s intersection

with other federal statutes, this Court must take into account earlier, pre-existing

(footnote continued)

that Congress clearly intended the ‘otherwise specifically prohibited’ language to

refer to ‘gaming that utilizes mechanical devices as defined in 15 U.S.C. § 1175

[the Johnson Act].’” United States Br. at 22 n.16. This excerpted language comes

from the 1988 Senate Indian Affairs Committee Report on IGRA. Id. (citing S.

Rep. 100-446, at 12 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3082). This

same report goes on to say, “[I]t is the intention of the Committee that nothing in

the provision of this section or in this 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 (Act of September 30, 1978, 92 Stat. 813; P.L. 95–395) and the

Marine [sic] Indian Claim Settlement Act (Act of October 10, 1980; 94 Stat. 1785;

P.L. 96–420).” Id. So, this Report undermines rather than helps the United States’

arguments.


21

federal statutes because “Congress does not legislate in a vacuum.”

Passamaquoddy, 75 F.3d at 789 (internal citations omitted); see also Ysleta, 36

F.3d at 1335.

These are high standards. Using them, the District Court correctly

concluded that IGRA did not impliedly repeal the Settlement Act’s gaming-

specific text. Indeed, the evidence of Congressional intent shows the opposite:

Congress inserted that text into the Settlement Act to harmonize it with the

forthcoming IGRA and to preserve state and local jurisdiction over Tribal gaming,

consistent with the parties’ Settlement Agreement.

1. The Settlement Act’s Gaming-Specific Text Harmonizes It

with IGRA.

The Settlement Act’s gaming-specific text’s meaning is plain: Congress

intended state and local gaming law to apply to the Tribe and the Settlement Lands

(and other Tribal lands). See 25 U.S.C. § 1771g; BedRoc Ltd., LLC v. United

States, 541 U.S. 176, 183 (2004) (“[T]he preeminent canon of statutory

interpretation requires us to “presume that [the] legislature says in a statute what it

means and means in a statute what it says there.”) (internal quotation omitted).

That text effectuated the agreement of the parties to the Settlement Agreement,

which Congress both ratified and incorporated into the Settlement Act. See 25

U.S.C. §§ 1771(4), 1771c(a)(1)(A), 1771d(c), 1771d(d), 1771f(10).


22

Importantly, Congress did not include in IGRA any provision repealing the

Settlement Act’s gaming-specific text, even though Congress enacted IGRA only

fourteen months later. See generally 25 U.S.C. §§ 2701-2721. In fact, no prior

versions of IGRA contained such a repeal provision, and nowhere in the legislative

history did Congress suggest that it intended IGRA to supplant the Settlement

Act’s text. If follows that Congress did not intend IGRA to repeal the Settlement

Act’s gaming-specific text. The well-established presumption against implied

repeals only bolsters that conclusion.

The drafting history of both federal statutes underscores this conclusion all

the more. Congress considered draft versions of the Settlement Act and IGRA

contemporaneously in 1986 and 1987. See pages 6-9, above. At the same time

that Congress began considering IGRA’s tiered regulatory structure—

differentiating bingo and other gaming—Congress inserted into the Settlement Act

the gaming-specific text that also contemplates both bingo and any other gaming.

Moreover, even before the gaming-specific text was added, the Tribe’s then

president testified to the Senate’s Select Committee on Indian Affairs that the

Tribe “accept[ed] that no gaming on [their] lands is now or will in the future be

possible.” Id. And, IGRA’s legislative history shows that Congress did not want

IGRA to supplant the terms of land claims settlements, such as the Settlement Act.

S. Rep. No. 100-446, at 12 (1988) (“[I]t is the intention of the Committee that


23

nothing in the provision of this section or in this 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 . . . .”). It was thus no historical

accident that Congress inserted specific text into the proposed Settlement Act.

Knowing that it was also working on IGRA, Congress inserted that text in order to

harmonize the final Settlement Act with the forthcoming IGRA. This Court should

give effect to that Congressional intent.

Indeed, the Fifth Circuit Court of Appeals reached a similar conclusion in

Ysleta, when analyzing gaming specific-text in a statute also enacted shortly before

IGRA that prohibits gaming on the Ysleta Indian tribe’s lands. 36 F.3d at 1335.12

The D.C. Circuit Court of Appeals also reached a similar conclusion with respect

to the Settlement Act itself in Narragansett Indian Tribe v. National Indian

Gaming Comm’n (“Narragansett II”), 158 F.3d 1335, 1341 (D.C. Cir. 1998)

(recognizing that the Settlement Act “exclude[s]” the Tribe from IGRA). The

gaming-specific text in the Settlement Act also differentiates this case from

Narragansett I, where Rhode Island’s settlement act (“Rhode Island Act”) notably

12

The relevant part of that statute reads: “All gaming activities which are

prohibited by the laws of the State of Texas are hereby prohibited on the

reservation and on lands of the tribe. Any violation of the prohibition provided in

this subsection shall be subject to the same civil and criminal penalties that are

provided by the laws of the State of Texas. The provisions of this subsection are

enacted in accordance with the tribe’s request in Tribal Resolution No. T.C.-02-86

which was approved and certified on March 12, 1986.” 25 U.S.C. § 1300g-6.


24

lacked such text. See Narragansett I, 19 F.3d at 703-05. For these reasons, this

Court is easily able to read the Settlement Act and IGRA in harmony and should

do so, as the District Court correctly did.

2. The Settlement Act’s Gaming-Specific Text Makes It the

More Specific and Therefore Controlling Statute.

“[W]here there is no clear intention otherwise, a specific statute will not be

controlled or nullified by a general one, regardless of the priority of enactment.”

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (citation

omitted); see also Ysleta, 36 F.3d at 1335. The District Court properly applied this

canon of statutory construction to uphold the Settlement Act.

The Settlement Act is a specific statute. It applies to a single Indian tribe.

See 25 U.S.C. §§ 1771-1771i. It applies to only certain lands: the Tribe’s,

including the Settlement Lands. See id. It says that state and local laws apply to

those lands. See 25 U.S.C. § 1771g. And Congress specifically identified

gaming—and no other activity—in this provision, underscoring the importance

Congress placed on that particular subject matter. See id. By contrast, while

IGRA may be specific as to gaming, it is otherwise a general statute—it sets

default rules for Indian tribes and Indian lands across the nation. See 25 U.S.C.

§§ 2701-21.

The District Court properly concluded that the Settlement Act is more

specific than IGRA. App.II.378-79. It therefore controls as the more specific


25

pronouncement, meaning that it is the best evidence of Congress’s intent,

regardless of the chronology of statutory enactments. See Crawford Fitting Co.,

482 U.S. at 445; Ysleta, 36 F.3d at 1335. The Fifth Circuit reached the same

conclusion in Ysleta. There, the statute at issue—the Ysleta Tribe Restoration Act,

25 U.S.C. § 941l—also concerned a single Indian tribe and its lands and had

specific text prohibiting gaming. Id. The Fifth Circuit held that the Restoration

Act was more specific and therefore controlled. Ysleta, 36 F.3d at 1335. So too

here.

3. The Same Session of Congress Enacted Both the Settlement

Act and IGRA.

Not only is there a strong presumption against implied repeal, but “[w]here

both laws are passed at the same session, the presumption against implied repeal is

all the stronger.” Pullen v. Morgenthau, 73 F.2d 281, 283 (2d Cir. 1934); see also

Traynor v. Turnage, 485 U.S. 535, 547 (1988) (absent affirmative congressional

intent that later act repealed or amended earlier one passed by same Congress, later

act effected no repeal, and both should be read harmoniously). The same session

of Congress knows what laws it has previously enacted; if it does not say in a

subsequent enactment that it means to repeal those just-enacted laws, that silence

should mean something. Otherwise, courts would presume that the same

Congressional session was arbitrary and whimsical, enacting a law one day, only to

repeal it the next without saying so explicitly.


26

Here, the same session of Congress—the 100th—enacted both the

Settlement Act and IGRA, just fourteen months apart. Compare Pub. L. 100-95,

101 Stat. 709 (enacting the Settlement Act on August 18, 1987), with Pub. L. 100-

497, 102 Stat. 2467 (enacting IGRA on October 17, 1988). That Congressional

session did not put any text into IGRA repealing the Settlement Act. See 25 U.S.C.

§§ 2701-2721. As the District Court observed, “[a]bsent an affirmative indication

of congressional intent, it strains logic to conclude that the same Congress meant,

through enactment of a later act, to eviscerate the language of an act that it had

passed just months before, especially when the two acts were travelling through

Congress simultaneously.” App.II.378. Not only does it strain logic, it also runs

counter to the statutory-construction principle recognized above. See Traynor, 485

U.S. at 547; Pullen, 73 F.2d at 283. This point also serves to liken this case to

Ysleta, where the same Congressional session (the 100th) enacted both the Ysleta

Tribe Restoration Act and IGRA, Ysleta, 36 F.3d at 1335, and distinguishes this

case from Narragansett I, where the Rhode Island Act preceded IGRA by a

decade, 19 F.3d at 689-90. The 100th Congress clearly intended the Settlement

Act’s gaming-specific text to remain in effect, notwithstanding its subsequent

enactment of IGRA.


27

4. Upholding the Settlement Act’s Text Does No Injury to

IGRA but the Opposite Result Would Disrupt a Central

Tenet of the Settlement Act.

The District Court’s conclusion that Congress did not intend to repeal the

Settlement Act’s gaming-specific text does no injury to IGRA. The Settlement Act

is nothing more than a narrow exception to IGRA’s default rules (IGRA itself

contemplates exceptions in 25 U.S.C. § 2710). It is not the only such exception.

After enacting IGRA, Congress enacted the Catawba Indian Tribe of South

Carolina Land Claims Settlement Act of 1993, Pub. L. 103-116, 107 Stat. 1118

(1993), codified at 25 U.S.C. §§ 941-941n. Congress said in that act that, “[t]he

Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall not apply to the

Tribe.” 25 U.S.C. § 941l. Furthermore, after this Court held in Narragansett I

that IGRA impliedly repealed the Rhode Island Act as to state jurisdiction over

gaming, Congress amended Rhode Island’s act to reinstate state control as well.

See Pub. L. No. 104-208, § 330, 110 Stat. 3009-227 (1996); Narragansett II, 158

F.3d at 1341.

So, both the Catawba Tribe Restoration Act and Congress’s amendment of

the Rhode Island Act shows that Congress intends exceptions to IGRA.

Narragansett II, 158 F.3d at 1341 (reviewing Indian tribes excluded from IGRA).

Because exceptions are so contemplated, holding that the Settlement Lands are

another exception does no “violence to the essential structure and purpose of


28

IGRA,” United States Br. at 25, since Congress itself has determined that

exceptions do not undermine that structure or purpose. The United States’

argument to the contrary is plainly wrong. See id.13

In contrast, holding that IGRA repealed the Settlement Act’s gaming-

specific text would do violence to a key tenet of the latter. The Settlement

Agreement implemented the negotiated end to the Tribe’s land claims and is an

agreement between an Indian and a state sovereign. Congress intended to give

effect to that agreement’s terms by enacting the Settlement Act, 25 U.S.C.

§§ 1771(4), 1771c(a)(1)(A), 1771d(c), 1771d(d), 1771f(10). That effectuation

included making the Tribe’s lands subject to state and local law, including gaming.

25 U.S.C. § 1771g. Indeed, Congress felt so strongly about gaming that it

specifically wrote into the statute that gaming would be subject to state and local

control. Id. Based upon the terms of the Settlement Agreement and Act, the

Commonwealth expended public money to purchase lands, and the Town and

Community Association deeded over public and private lands (some purchased

with that money) to the Tribe. 25 U.S.C. §§ 1771a, 1771d, 1771e; App.I.185. To

13

This conclusion also flows from the context of IGRA’s enactment, which was to

enhance state authority over tribal gaming. Congress enacted IGRA not to sweep

away existing statutory limitations on Indian tribes, but rather “devised a method to

give back some of the regulatory authority [to states] that the Supreme Court had

held inapplicable to Indian lands in Cabazon.” Artichoke Joe’s Cal. Grand Casino

v. Norton, 353 F.3d 712, 721 (9th Cir. 2003).


29

now hold that IGRA impliedly repealed that gaming-specific text would alter the

negotiated terms of the Settlement Agreement. Congress declined to do this, as the

District Court accurately observed.

5. This Court’s Precedent and Decisions in the Fifth and D.C.

Circuits Support the District Court’s Decision.

Both the Tribe and the United States cite extensively to this Court’s decision

in Narragansett I, while neglecting a far more analogous case: the Fifth Circuit’s

decision in Ysleta. Some aspects of the Ysleta decision are discussed above.

Ysleta concerned IGRA’s intersection with the Ysleta del Sur Pueblo and Alabama

and Coushatta Indian Tribes of Texas Restoration Act (“Ysleta Restoration Act”)

and that act’s specific provision, codified at 25 U.S.C. § 1300g-6, that says, “All

gaming activities which are prohibited by the laws of the State of Texas are hereby

prohibited on the reservation and on lands of the tribe.” The Ysleta tribe

nonetheless sought to engage in class II gaming under IGRA, asserting that IGRA

impliedly repealed the Ysleta Restoration Act. In Ysleta, as here, the 100th

Congress enacted both statutes at issue. 36 F.3d at 1329-30. Further, in Ysleta, as

here, legislative history showed that the Ysleta tribe agreed to relinquish gaming

rights when petitioning Congress to enact the Ysleta Restoration Act. Id. The

Fifth Circuit concluded that the Ysleta Tribe Restoration Act “govern[s] the

determination of whether gaming activities proposed by the [Ysleta tribe] are

allowed,” notwithstanding IGRA. Id. at 1335.


30

The Fifth Circuit’s reasoning is also in accord with this Court’s 1996

decision in Passamaquoddy. There, this Court held that IGRA did not preempt

language in Maine’s land claims settlement act (“Maine Act.”), 25 U.S.C. §§ 1721-

35, applying Maine’s laws governing gaming to Passamaquoddy tribal lands,

because the Maine Act contained a savings clause saying that any after-enacted

federal law would not apply in Maine unless such law specifically said so. 75 F.3d

at 787.14

This Court noted that Maine had something that Rhode Island did not:

text to “satisfactorily harmonize[ ] the [Maine settlement act], the [IGRA], [which]

prevents any incoherence.” Id. at 791. The same reasoning applies here, since the

Settlement Act’s gaming-specific text harmonizes two federal statutes. To be sure,

Maine’s savings clause is different than the Settlement Act’s gaming-specific text,

but that is of no moment. In Passamaquoddy, this Court specifically cited Ysleta

in support its conclusion that the Maine Act’s savings clause harmonized that act

with IGRA. Passamaquoddy, 75 F.3d at 791. Massachusetts’ gaming-specific text

is similar to the text in Ysleta. Compare 25 U.S.C. § 1300g-6 (Ysleta Restoration

Act), with 25 U.S.C. § 1771g (Settlement Act). Added to this, the D.C. Circuit has

14

The savings clause reads: “The provisions of any federal law enacted after [the

effective date of the Maine 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).


31

also recognized that the Settlement Act’s gaming-specific text harmonizes that act

with IGRA. See Narragansett II, 158 F.3d at 1341 (recognizing that Congress

“exclude[d]” the Tribe from IGRA).

Finally, the Tribe’s and United States’ heavy reliance on Narragansett I is

misplaced for many reasons, some already noted. First, the Rhode Island Act at

issue in Narragansett I had no gaming-specific text. See 25 U.S.C. §§ 1701-16

(Rhode Island Act). Second, Congress enacted the Rhode Island Act in 1978,

approximately a decade before IGRA. Compare id., with 25 U.S.C. §§ 2701-21

(IGRA). Third, IGRA’s drafting history included early, unenacted draft bills that

included specific text exempting the Rhode Island Act from IGRA’s reach, which

Congress did not include in the final IGRA. Passamaquoddy, 75 F.3d at 791 n.2

(noting this “telltale” history to distinguish the Maine Act from the Rhode Island

Act). And, fourth, after this Court ruled in Narragansett I, Congress amended the

Rhode Island Act to reinstitute state control of gaming over Narragansett lands,

effectively overriding this Court’s ruling. Pub. L. No. 104-208, 110 Stat. 3009-227

(1996) (codified at 25 U.S.C. § 1708(b)) (inserting into the Rhode Island Act “For

purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.), settlement

lands shall not be treated as Indian lands.”); Narragansett II, 158 F.3d at 1338

(noting Rhode Island Senator Chafee’s explanation for the change: “It is our

determined view that a deal is a deal.”) (quoting Narragansett Indian Tribe:


32

Oversight Hearing Before the House Comm. on Resources, 105th Cong. 14

(1997)). This case is thus different and distinguishable from Narragansett I.

6. The Settlement Act’s Gaming-Specific Text Is Not a

“Placeholder” to Fill a Temporary Regulatory Gap, as

Hypothesized by the Tribe and United States.

Finally, there is no merit to the Tribe’s assertion that Congress intended the

Settlement Act’s gaming specific text to be a mere “placeholder,” Tribe Br. at 28,

or the United States’ similar assertion that such text was essentially a temporary

measure to fill a post-Cabazon regulatory gap until Congress could enact IGRA,

United States Br. at 25-26. The Settlement Act contains no language to qualify the

gaming-specific text as a temporary stopgap. See 25 U.S.C. §§ 1771-1771i. This

Court should not read into those statutes such a limitation when it is not there.

Dean v. United States, 556 U.S. 568, 568 (2009) (“This Court “ordinarily resist[s]

reading words or elements into a statute that do not appear on its face.”) (quoting

Bates v. United States, 522 U.S. 23, 29 (1997)); see also Ysleta, 16 F.3d 1329-30

(implicitly rejecting such a reading of IGRA). To the contrary, the simplest,

clearest, and best explanation for Congress’s inclusion of the gaming-specific text

is that Congress meant what it wrote, without limitation. See Connecticut Nat’l

Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[C]ourts must presume that a

legislature says in a statute what it means and means in a statute what it says

there.”).


33

IGRA’s legislative history buttresses this conclusion. The Senate’s

Committee Report concerning IGRA says, “[I]t is the intention of the Committee

that nothing in the provision of this section or in this 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 . . . .” S. Rep. No. 100-446,

at 12 (1988), see Thornburg v. Gingles, 478 U.S. 30 (1986) (citing Senate report

when interpreting federal statute); Northeast Marine Terminal Co., Inc. v. Caputo,

432 U.S. 249 (1977) (same). Not a shred of history or evidence supports the Tribe

and United States’ hypothesis that IGRA swept away each state-specific enactment

that came before.

Moreover, the Tribe and United States miss the mark in suggesting that

Congress inserted the gaming-specific text to temporarily address uncertainty

generated by California v. Cabazon Band of Mission Indians (“Cabazon”), 480

U.S. 202 (1987). Tribe Br. at 28; United States Br. at 25-26. Uncertainty over the

extent to which states could regulate tribal gaming existed well before Cabazon.

Courts started encountering such issues in the early 1980s. See Santoni, 26

Creighton L. Rev. at 390-95 (reviewing historical judicial opinions concerning pre-

IGRA tribal gaming). Many of those courts addressed the core issue in Cabazon—

whether and to what extent “Public Law 280,” 28 U.S.C. § 1360, allowed certain


34

states to regulate gaming on tribal lands. See id.15

Given these decisions—

favorable to Indian tribes—and increasing numbers of tribal gaming operations in

many states, Congress contemplated federal legislation on the topic well before

Cabazon, in 1983. See id. at 395-96. To be sure, Cabazon represented the

Supreme Court’s final statement on the matter and confirmed what many courts

had already held: that even states with Public Law 280 jurisdiction did not have

authority to regulate tribal gaming. But it was far from the beginning of

Congress’s, states’, or Indian tribes’ consideration of these issues.

So, there is no reason to believe that Cabazon was a watershed moment,

prompting Congress for the first time to believe that the then-proposed version of

the Settlement Act—which did not include gaming-specific text—would have

barred state regulation of gaming on the Settlement Lands. As Tribal Council

President Widdiss’s pre-Cabazon testimony showed, the parties had thought about

gaming and believed that the Settlement Act already covered it. Supp.App.180,

191. They were objectively correct—the text “shall be subject to the civil and

criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts

and the town of Gay Head, Massachusetts” was enough. See Narragansett I, 19

15

See Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712 (W.D. Wis. 1981);

Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir. 1981), cert.

denied 455 U.S. 1020 (1982); Barona Group of Capitan Grande Band of Mission

Indians v. Duffy, 694 F.2d 1185 (9th Cir. 1982).


35

F.3d at 688 (holding that the Rhode Island Act, with similar text and without

gaming-specific text, would have applied state gaming law to tribal lands).

Thus, the Tribe’s and United States’ theory that Congress inserted the

gaming-specific into the Settlement Act as a temporary, post-Cabazon fix does not

fit the history or the facts. There is no evidence—in the text, legislative history, or

anywhere else—that Congress intended for that gaming-specific text to be

temporary pending IGRA. This Court should reject that construction.

C. The District Court Properly Held That Interior and NIGC’s

Opinion Letters Interpreting the Settlement Act and IGRA Are

Entitled to No Judicial Deference.

The Tribe—but not the United States—argues that Interior’s and NIGC’s

opinion letters concluding that IGRA impliedly repealed the Settlement Act’s

gaming-specific text require judicial deference. Tribe Br. at 46-48; App.I.214-37

(opinion letters). The District Court correctly rejected that argument, for several

reasons. App.II.374 (footnote 23).

First, where Congress has clearly expressed its will through a statutory

enactment, courts do not defer to contrary agency views. See Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“The

judiciary is the final authority on issues of statutory construction and must reject

administrative constructions which are contrary to clear congressional intent.”).

Congress’s intent is clear here, for the reasons argued above. Pages 15-35, above.


36

Second, courts do not defer to administrative agencies’ interpretations of

statutes where “an agency’s conclusion rests predominantly upon its reading of

judicial decisions.” Passamaquoddy, 75 F.3d at 794. Interior’s and NIGC’s

opinion letters rest primarily on their analysis of Narragansett I, Passamaquoddy,

and Ysleta. See App.I.214-37. Under Passamaquoddy, however, those case-

analysis opinions do not receive deference. Moreover, in Passamaquoddy, this

Court further rejected the contention that NIGC’s legal opinion concerning the

intersection of IGRA and the Maine Act should get deference. 75 F.3d at 794.

This case is no different.

Third, the Supreme Court’s holding in Christensen v. Harris County

forecloses the deference sought by the Tribe. In Christensen, the Court said:

“Interpretations such as those in opinion letters—like interpretations contained in

policy statements, agency manuals, and enforcement guidelines, all of which lack

the force of law—do not warrant Chevron-style deference.” 529 U.S. at 587; see

also Calvao v. Town of Framingham, 599 F.3d 10, 18 (1st Cir. 2010) (applying

Christensen to Department of Labor opinion letter). And the Interior and NIGC

opinion letters at issue here are not entitled even to Skidmore deference, because

they lack any “power to persuade,” for all of the reasons already discussed above.

See Vance, 133 S. Ct. at 2461 (quotations omitted) (Skidmore deference is only


37

afforded agency opinions to the extent those opinions have the “power to

persuade”).

For these reasons, the District Court correctly declined to cede its authority

to these agency letters. This Court should do likewise.

II. The Tribe Does Not Have Sufficient Jurisdiction and Does Not Exercise

Sufficient Governmental Powers Over the Settlement Lands to Make

Them “Indian lands” Under IGRA.

Even if IGRA repealed the Settlement Act’s gaming-specific text, the

Settlement Lands must still be “Indian lands” for IGRA to apply in the first

instance. Among other things, IGRA requires that “an Indian tribe exercise[ ]

governmental power” over lands for those lands to be “Indian lands.” Here, the

District Court concluded that the Tribe does not exercise sufficient governmental

power over the Settlement Lands. Ap.II.364-70. That decision was consistent

with the Settlement Agreement’s provision that “no Indian tribe or band shall ever

exercise sovereign jurisdiction as an Indian tribe . . . over all or any part of the

Settlement Lands.” App.II.413 (Settlement Agreement ¶ 11(a)). And it was correct

for the reasons argued by the Community Association and Town in their Brief.

Moreover, both are further correct in its argument that the Tribe lacks sufficient

jurisdiction over the Settlement Lands to make them Indian lands. For economy of

briefing, the Commonwealth incorporates the Community Association’s and

Town’s arguments by reference here and does not repeat them here.


38

III. The United States Was Not a Necessary but Absent Party Under Rule

19(A)(1), and on That Ground the District Court Correctly Denied the

Tribe’s Motion to Dismiss the Commonwealth’s Complaint.

The Tribe argues that the District Court erred in denying its motion to

dismiss the Commonwealth’s complaint under Rule 19 of the Federal Rules of

Civil Procedure. Tribe Br. at 50. But the District Court did not abuse its

discretion16

and properly denied the Tribe’s motion, concluding that the United

States was not a required party under Rule 19. See Memorandum and Order on

Motions to Dismiss, pages 17-24, App.I.165-172 (Dkt. # 95). On this point, the

United States agrees with the Commonwealth. See United States Br. at 3 n.1.

Rule 19(a)(1) provides three conditions under which a party is “required” in

a lawsuit, such that failure to join that party may result in dismissal of the action

under Rule 19(b). A party is “required” if any of these circumstances is met:

In that party’s absence, the court cannot grant complete relief

among existing parties; or

That party claims an interest in the litigation and is so situated

that disposing of the action in the party’s absence may impede

the party’s ability to protect its interest; or

16

A district court’s determination as to whether a party is indispensable or

necessary under Rule 19(a) is reviewed for an abuse of discretion. See Picciotto v.

Continental Cas. Co., 512 F.3d 9, 14-15 (1st Cir. 2008).


39

That party claims an interest in the litigation and is so situated

that disposing of the action in the party’s absence may leave an

existing party subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations because of that

interest.

Fed. R. Civ. P. 19(a)(1). The District Court concluded that the United States did

not meet the definition of a required party under any of these three tests. See

Memorandum and Order on Motions to Dismiss, pages 17-24, App.I.165-172.

The Tribe now argues that the United States is a required party because it

“continues to assert jurisdiction to the exclusion of the Commonwealth over

gaming activities on Tribe Indian Lands.” Tribe Br. at 50.17

Although the Tribe

does not specify, it suggests that this continued jurisdiction makes the United

States a required party because its absence may leave the Tribe subject to

inconsistent obligations (Fed. R. Civ. P. 19(a)(1)(B)(ii)), not because the United

States’ interests may be impaired if the litigation is resolved without it (Fed. R.

Civ. P. 19(a)(1)(B)(i)). See Tribe Br. at 55 (arguing that resolving this litigation

without the United States puts the Tribe “in the untenable position where

17

The Tribe goes on to describe recent NIGC gaming approvals concerning land in

Texas, but no such activities concerning the Settlement Lands. See Tribe Br. at 51-

55.


40

proceeding in a manner consistent with the District Court’s decision will subject it

to enforcement action by the NIGC.”).18

As does the Commonwealth and apparently the United States itself, the

District Court failed to understand why the United States’ absence from the

litigation would subject the Tribe to inconsistent obligations. See App.I.172

(Memo. and Order on Mots. to Dismiss at 24 (“It is unclear how the Tribe would

be ‘required’ to violate either state or federal law by a ruling in favor of the

Commonwealth.”)). Even if the United States, through the NIGC, would otherwise

authorize the Tribe to engage in gaming activities, the Commonwealth’s denial of

that authorization does not subject the Tribe to inconsistent obligations and

resulting potential federal sanctions, but rather simply puts it in the position of not

being authorized to conduct gaming activities. Id. & n.18.

Indeed, as the amicus United States itself notes, the Tribe fails to “cite any

concrete obligations under IGRA that would subject it to NIGC enforcement if the

[Tribe] also complies with state or town laws.” See United States Br. at 3 n.1

(emphasis in original). The United States specifically rejects the notion that recent

18

Having failed to argue that complete relief among the existing parties may not be

had in the absence of the United States, see Fed. R. Civ. P. 19(a)(1)(A), the Tribe

has waived that argument and should not be heard to reassert it on reply. See

United States v. Bulger, 816 F.3d 137, 156 n.22 (1st Cir. 2016) (reiterating that

arguments raised in a reply brief for the first time are waived) (citing Soto–Padró

v. Pub. Bldgs. Auth., 675 F.3d 1, 8 (1st Cir. 2012)).


41

NIGC approvals concerning gaming on land in Texas creates a threat of

enforcement action against the Tribe concerning Massachusetts-based activities.

Id. Because the absence of the United States from this litigation poses no risk—let

alone a “substantial risk”—that the Tribe will be subject to inconsistent legal

obligations, the District Court properly denied the Tribe’s motion to dismiss for

failure to join the United States as a required party.


42

CONCLUSION

The District Court properly concluded that the Settlement Act’s gaming-

specific text continues to apply to the Tribe, notwithstanding IGRA. For the

reasons above, this Court should affirm the District Court’s final judgment.

Respectfully submitted,

The COMMONWEALTH OF

MASSACHUSETTS,

Charles D. BAKER, in his capacity as

Governor of the Commonwealth of

Massachusetts,

Maura T. HEALEY, in her capacity as the

Attorney General of the Commonwealth of

Massachusetts, and

Stephen P. CROSBY, in his capacity as

Chairman of the Massachusetts Gaming

Commission,

By their attorney,

MAURA HEALEY

ATTORNEY GENERAL

/s/ Bryan F. Bertram

Juliana deHaan Rice, No. 103180

Bryan F. Bertram, No. 1164437

Assistant Attorneys General

Government Bureau

One Ashburton Place

Boston, MA 02108

(617) 727-2200

[email protected]

August 31, 2016 [email protected]


43

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 9,708 words, excluding the parts of the Brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Word in Times

New Roman style, 14-point font.


Bryan F. Bertram (1st Cir. 1164437)

Assistant Attorney General


44

CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2016 I electronically filed the foregoing

document with the United States Court of Appeals for the First Circuit by using the

CM/ECF system. I certify that the following parties or their counsel of record are

registered as ECF Filers on the Court’s Service List and that they will therefore be

served by the CM/ECF system:

Counsel for the Tribe:

SCOTT CROWELL

CROWELL LAW OFFICES

TRIBAL ADVOCACY GROUP

1487 W. State Route 89A,

Suite 8

Sedona, AZ 86336

(425) 802-5369

LAEL ECHO-HAWK

HOBBS STRAUS DEAN & WALKER,

LLP

2120 L Street NW, Suite 700

Washington, DC 20037

(202) 822-8282

Counsel for the Amicus Curiae

United States:

JUDY B. HARVEY

AMBER BLAHA

SAM HIRSCH

MARY GABRIELLE SPRAGUE

U.S. Department of Justice

P.O. Box 7415

Washington, D.C. 20044

(202) 514-3932

Counsel for the Community

Association:

FELICIA ELLSWORTH

JAMES L. QUARLES, III

CLAIRE M. SPECHT

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

Counsel for the Town:

RONALD H. RAPPAPORT

MICHAEL A. GOLDSMITH

REYNOLDS, RAPPAPORT, KAPLAN &

HACKNEY, LLC

106 Cooke Street, PO Box 2540

Edgartown, MA 02539

(508) 627-3711


Bryan F. Bertram (1st Cir. 1164437)

Assistant Attorney General


Add. 1

ADDENDUM

25 U.S.C.A. § 941l ............................................................................................ Add. 2

25 U.S.C.A. § 1300g-6 ...................................................................................... Add. 3

25 U.S.C.A. § 1708 ........................................................................................... Add. 4

25 U.S.C.A. § 1735 ........................................................................................... Add. 5

25 U.S.C.A. § 1771g ......................................................................................... Add. 6

25 U.S.C.A. § 2701 ........................................................................................... Add. 7

25 U.S.C.A. § 2710 (Excerpt) ........................................................................... Add. 8


Add. 2

25 U.S.C.A. § 941l

Games of chance

(a) Inapplicability of Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall not apply to the

Tribe.

(b) Games of chance generally

The Tribe shall have the rights and responsibilities set forth in the Settlement

Agreement and the State Act with respect to the conduct of games of chance.

Except as specifically set forth in the Settlement Agreement and the State Act, all

laws, ordinances, and regulations of the State, and its political subdivisions, shall

govern the regulation of gambling devices and the conduct of gambling or

wagering by the Tribe on and off the Reservation.


Add. 3

25 U.S.C.A. § 1300g-6

Gaming activities

(a) In general

All gaming activities which are prohibited by the laws of the State of Texas are

hereby prohibited on the reservation and on lands of the tribe. Any violation of the

prohibition provided in this subsection shall be subject to the same civil and

criminal penalties that are provided by the laws of the State of Texas. The

provisions of this subsection are enacted in accordance with the tribe's request in

Tribal Resolution No. T.C.-02-86 which was approved and certified on March 12,

1986.

(b) No State regulatory jurisdiction

Nothing in this section shall be construed as a grant of civil or criminal regulatory

jurisdiction to the State of Texas.

(c) Jurisdiction over enforcement against members

Notwithstanding section 1300g-4(f) of this title, the courts of the United States

shall have exclusive jurisdiction over any offense in violation of subsection (a) of

this section that is committed by the tribe, or by any member of the tribe, on the

reservation or on lands of the tribe. However, nothing in this section shall be

construed as precluding the State of Texas from bringing an action in the courts of

the United States to enjoin violations of the provisions of this section.


Add. 4

25 U.S.C.A. § 1708

Applicability of State law; treatment of settlement lands under Indian Gaming

Regulatory Act

(a) In general

Except as otherwise provided in this subchapter, the settlement lands shall be

subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.

(b) Treatment of settlement lands under Indian Gaming Regulatory Act

For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.),

settlement lands shall not be treated as Indian lands.


Add. 5

25 U.S.C.A. § 1735

Construction

(a) Law governing; special legislation

In the event a conflict of interpretation between the provisions of the Maine

Implementing Act and this subchapter should emerge, the provisions of this

subchapter shall govern.

(b) General legislation

The provisions of any 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, including application of

the laws of the State to lands owned by or held in trust for Indians, or Indian

nations, tribes, or bands of Indians, as provided in this subchapter and the Maine

Implementing Act, 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.


Add. 6

25 U.S.C.A. § 1771g

Applicability of State law

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 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).


Add. 7

25 U.S.C.A. § 2701

Findings

The Congress finds that--

(1) numerous Indian tribes have become engaged in or have licensed gaming

activities on Indian lands as a means of generating tribal governmental revenue;

(2) Federal courts have held that section 81 of this title requires Secretarial review

of management contracts dealing with Indian gaming, but does not provide

standards for approval of such contracts;

(3) existing Federal law does not provide clear standards or regulations for the

conduct of gaming on Indian lands;

(4) a principal goal of Federal Indian policy is to promote tribal economic

development, tribal self-sufficiency, and strong tribal government; and

(5) Indian tribes have the exclusive right to regulate gaming activity on Indian

lands if the gaming activity is not specifically prohibited by Federal law and is

conducted within a State which does not, as a matter of criminal law and public

policy, prohibit such gaming activity.


Add. 8

25 U.S.C.A. § 2710 (EXCERPT)

Tribal gaming ordinances

(a) Jurisdiction over class I and class II gaming activity

(1) Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian

tribes and shall not be subject to the provisions of this chapter.

(2) Any class II gaming on Indian lands shall continue to be within the jurisdiction

of the Indian tribes, but shall be subject to the provisions of this chapter.

(b) Regulation of class II gaming activity; net revenue allocation; audits; contracts

(1) An Indian tribe may engage in, or license and regulate, class II gaming on

Indian lands within such tribe's jurisdiction, if--

(A) such Indian gaming is located within a State that permits such gaming for any

purpose by any person, organization or entity (and such gaming is not otherwise

specifically prohibited on Indian lands by Federal law), and

(B) the governing body of the Indian tribe adopts an ordinance or resolution which

is approved by the Chairman.

A separate license issued by the Indian tribe shall be required for each place,

facility, or location on Indian lands at which class II gaming is conducted.


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