Commonwealth of MASSACHUSETTS; Aquinnah/Gay Head Community Association, Inc.; Town of Aquinnah, MA, Plaintiffs, Appellees, v. The WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH); The Wampanoag Tribal Council of Gay Head, Inc.; The Aquinnah Wampanoag Gaming Corporation, Defendants, Appellants, Charles D. Baker, in his official capacity as Governor of the Commonwealth of Massachusetts; Maura T. Healey, in her capacity as Attorney General of the Commonwealth of Massachusetts; Stephen P. Crosby, in his capacity as Chairman of the Massachusetts Gaming Commission, Third-Party Defendants.
No. 16-1137
United States Court of Appeals, First Circuit.
April 10, 2017
853 F.3d 618
The investors respond by pointing to literature from the Centers for Disease Control and Prevention (“CDC“) that they claim suggests that it is merely “fortuitous” for a blood clot to be non-serious. According to the investors, this report, coupled with the defendants’ statement acknowledging the possible “utility of assessment of prior history of thrombotic events ... and added vigilance for [adverse events] related to blood clotting during future clinical trials,” shows that their decision to not disclose the two non-serious thrombotic events was made intentionally or recklessly. However, while the CDC‘s language cited in the complaint suggests that it may be true that “[h]ow a clot affects the body depends on the type and location of the clot,” it does not mean that good fortune is all that separates a superficial thrombotic adverse event from a more serious one. Instead, the FDA‘s regulations, which do not require the disclosure of all thrombotic events, see
In short, although the investors maintain that Zafgen‘s statements prove the company acknowledged that even superficial adverse events were important to investors, the totality of the company‘s disclosures produces a compelling counter-inference that the company wished to “provide investors with warnings of risks,” actions which “generally weaken the inference of scienter.” Waters Corp., 632 F.3d at 760 (quoting Ezra Charitable Tr. v. Tyco Int‘l, Ltd., 466 F.3d 1, 8 (1st Cir. 2006)). Thus, the defendants’ disclosures both before and during the class period further “undercut any inference of fraudulent intent on the part of defendants.” Genzyme Corp., 754 F.3d at 42.
III.
The investors concede that their Section 20(a) claim against Hughes is derivative of their Section 10(b) and Rule 10b-5 claim. Because we hold that the complaint, considered as a whole, does not present allegations giving rise to a “cogent and compelling” inference of scienter, Tellabs, 551 U.S. at 324, 127 S.Ct. 2499, we conclude that the district court properly dismissed both claims. Therefore, the judgment of the district court is affirmed.
Scott D. Crowell, with whom Crowell Law Offices-Tribal Advocacy Group, Sedona, AZ, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP were on brief, for appellants.
Judy B. Harvey, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom John C. Cruden, Assistant Attorney General, Sam Hirsch, Principal Deputy Assistant Attorney General, Mary Gabrielle Sprague and Amber Blaha, Attorneys, Environment and Natural Resources Division, Dan Lewerenz, Office of the Solicitor, Department of the Interior, and Maria Getoff, Office of the General Counsel, National Indian Gaming Commission, were on brief, for United States as amicus curiae.
Felicia H. Ellsworth, with whom Claire M. Specht, Boston, MA, James L. Quarles, III, Washington, DC, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellee Aquinnah/Gay Head Community Association, Inc.
Ronald H. Rappaport, with whom Michael A. Goldsmith, Boston, MA, and Reynolds, Rappaport Kaplan & Hackney, LLC, Edgartown, MA, were on brief, for appellee Town of Aquinnah.
Juliana deHaan Rice, Assistant Attorney General, Government Bureau, with whom Bryan F. Bertram, Assistant Attorney General, and Maura T. Healey, Attorney General, were on brief, for appellee Commonwealth of Massachusetts and Third-Party Defendants.
Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
TORRUELLA, Circuit Judge.
Appellant, the Wampanoag Tribe of Gay Head (Aquinnah)1 (the “Tribe“), a federal2ly recognized Indian tribe, seeks to have gaming pursuant to the Indian Gaming Regulatory Act (“IGRA“),
I. Background
A. Factual History
1. The Settlement Agreement and the Federal Act
The Tribe has lived on Martha‘s Vineyard since before the European colonization of New England, and has continued to reside there to the present day. The Town was incorporated by the Commonwealth in
In November 1983, these parties signed a Memorandum of Understanding (the “Settlement Agreement“). The Settlement Agreement conveyed the Settlement Lands (approximately 485 acres) to the Tribe. In exchange, the Tribe gave up its claims to other lands and dismissed its lawsuit. Before this Settlement Agreement could enter into force, it had to be implemented by Congress.
On August 18, 1987, Congress implemented the Settlement Agreement by passing the Federal Act. See Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95 (codified at)
The parties all agree that “[t]he Commonwealth, the Town, and the Tribe have each exercised jurisdiction over the Settlement Lands pursuant to the provisions of the Federal Act.”
2. Cabazon and IGRA
On February 25, 1987—approximately six months before Congress passed the Federal Act—the Supreme Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), which held that California—which permitted certain forms of regulated gambling—could not civilly regulate tribal bingo games because such regulation “would impermissibly infringe on tribal government.” Id. at 221-22, 107 S.Ct. 1083. This decision did, however, leave space for states that criminally prohibit gaming to prohibit it on Indian lands within their jurisdictions.
In response, on October 17, 1988, Congress enacted IGRA. See, e.g., Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S.Ct. 2024, 2034, 188 L.Ed.2d 1071 (2014) (“Congress adopted IGRA in response to [Cabazon], which held that States lacked any regulatory authority over gaming on Indian lands.“). IGRA provides, inter alia, “for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”
IGRA “sets in place a sophisticated regulatory framework” for gambling on Indian lands, dividing gaming into three classes: Class I gaming, which includes traditional Native American gaming, is always permitted; Class II gaming, which includes bingo, is permitted so long as the state does not generally proscribe gaming of that type; and Class III gaming, which includes casino gambling, is permitted only pursuant to a compact between a tribe and the state.
3. The Tribe‘s Pursuit of Gaming on Settlement Lands
On November 22, 2011, Governor Deval Patrick signed “An Act Establishing Expanded Gaming in the Commonwealth”
On May 30, 2013, the Tribe submitted an amended Ordinance No. 2011-01 to the NIGC, which stated the Tribe‘s intention to pursue Class II gaming on the Settlement Lands. The NIGC sought an opinion from the Department of the Interior (“DOI“) as to whether the Federal Act prohibited Class II gaming on the Settlement Lands; the DOI provided an opinion stating that gaming was not prohibited. On August 29, 2013, the NIGC approved the amended Ordinance No. 2011-01. On October 25, 2013, in response to a request by the Tribe, the NIGC provided an opinion that the Settlement Lands were eligible for gaming under IGRA. Consequently, the Tribe has neither applied for nor obtained a license from the Massachusetts Gaming Commission to operate a gaming establishment.
When the Tribe informed the Commonwealth that it would proceed with the establishment of a Class II gaming facility on the Settlement Lands pursuant to IGRA, the Commonwealth responded, on December 2, 2013, by filing suit against the Tribe in state court. The Commonwealth asserted breach of the Settlement Agreement and sought a declaratory judgment that the Settlement Agreement prohibited gaming on the Settlement Lands. The Tribe removed the case to the district court on December 30, 2013, on grounds of federal question and supplemental jurisdiction.
After some procedural fencing not relevant here, on May 28, 2015, the parties all moved for summary judgment. On November 13, 2015, the district court granted summary judgment for the Appellees.
The district court ruled that the Settlement Lands were not covered by IGRA, and hence were subject to the Commonwealth‘s gaming regulations. Massachusetts v. Wampanoag Tribe of Gay Head (AQUINNAH), 144 F.Supp.3d 152, 177 (D. Mass. 2015). First, it found that the Tribe, despite having jurisdiction over the Settlement Lands, failed to exercise sufficient “governmental power” over those lands, as required for IGRA to apply. Id. It recognized that the Tribe had asserted that it was “responsible” for many governmental services in the Settlement Lands, but found that it had not shown sufficient “actual manifestations of [the Tribe‘s] authority.” Id. at 169-70. Second, it ruled that even if the Tribe did exercise sufficient governmental power, IGRA did not work an implied repeal of the portion of the Federal Act that subjected the Settlement Lands to the gaming laws of the Commonwealth. Id. at 177. The district court relied heavily on the parenthetical language in
On January 5, 2016, the district court entered final judgment, declaring that the Tribe could not operate a gaming facility on the Settlement Lands without complying with the laws of the Commonwealth and the Town, and enjoining the Tribe from opening any such establishment without first obtaining approval from the Commonwealth and the Town. The Tribe filed a timely appeal.
II. Standard of Review
A district court‘s grant of summary judgment is reviewed de novo. OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012). Summary judgment should be granted if “there is no genuine dispute as to any material fact” and the movant “is entitled to judgment as a matter of law.” Id. (quoting
III. Discussion
We must resolve two issues today. First, we must decide whether IGRA applies to the Settlement Lands. See Narragansett, 19 F.3d at 702-03. Second, we must decide whether IGRA effects a repeal of the Federal Act. See id. at 703-04.3
A. The Applicability of IGRA
[IGRA]‘s key provisions [apply] to “[a]ny Indian tribe having jurisdiction over Indian lands,” or, stated differently, to “Indian lands within such tribe‘s jurisdiction.” See
Narragansett, 19 F.3d at 701 (third and fourth alterations in original).
1. Having Jurisdiction4
In Narragansett, we were satisfied by the fact that Rhode Island did not acquire “exclusive” jurisdiction, and that the Narragansett Tribe retained “that portion of jurisdiction they possess by virtue of their sovereign existence as a people.” Id. at 702. In the present case, as the district court noted, the parties stipulated that “the Commonwealth, the Town, and the Tribe have each exercised jurisdiction over the Settlement Lands.” Although the Federal Act does contain some language limiting the Tribe‘s jurisdiction, that language only confirms that the Tribe retains the jurisdiction it has not surrendered in the Federal Act.
2. Exercising Governmental Power
[A] tribe must exercise governmental power in order to trigger [IGRA]. Meeting this requirement does not depend upon the Tribe‘s theoretical authority, but upon the presence of concrete manifestations of that authority. Consequently, an inquiring court must assay the jurisdictional history of the settlement lands.
In Narragansett, we noted that this “inquiry into governmental power need not detain us,” and concluded that the Narragansett Tribe‘s “activities adequately evince that the Tribe exercises more than enough governmental power to satisfy the second prong of the statutory test.” Id. at 703. To wit, the Narragansett Tribe has taken many strides in the direction of self-government. It has established a housing authority, recognized as eligible to participate in the Indian programs of the federal Department of Housing and Urban Development, see
The Tribe in the present case has taken most of the same steps that the Narragansetts had—and indeed several more. Therefore, like in Narragansett, the inquiry into governmental power “need not detain us.” Id.
In the present case, like in Narragansett, the Tribe: has established a housing program that receives HUD assistance, and has built approximately 30 units of housing under that program; has entered into an intergovernmental agreement with the EPA; operates a health care clinic with the aid of the Indian Health Service; administers a program for education with scholarships financed with Bureau of Indian Affairs funding; administers social
In addition, the Tribe has passed numerous ordinances and employs a judge. These ordinances deal with such diverse topics as building codes, health, fire, safety, historic preservation, fish, wildlife, natural resources, housing, lead paint, elections, judiciary, criminal background checks, and the reporting of child abuse and neglect. In addition to the intergovernmental agreements already mentioned—with the EPA and the Bureau of Indian Affairs—the Tribe has also entered into intergovernmental agreements with the National Park Service, and indeed also with the Commonwealth and the Town. The agreements with the Commonwealth and the Town include agreements whereby the Tribe, for compensation, may rely on state and local law enforcement and firefighting services.
The Town nevertheless urges us to adopt the district court‘s analysis and find that the Tribe has not exercised sufficient governmental power. The Town points out that some of the Tribe‘s exercises of governmental power are not full-fledged, and then proceeds to read our opinion in Narragansett as requiring full-fledged exercise of governmental power for IGRA to apply. For instance, the Town points out that while the Tribe employs a judge—and indeed maintains a tribal court—this judge is employed part-time, and presides via teleconference from Washington State; similarly, the Town points out that the Tribe does not have a hospital, but instead maintains a health clinic.
The Town gets it backwards. Pursuant to IGRA, “the operation of gaming by Indian tribes [is] a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”
B. The Interface between IGRA and the Federal Act
Having determined that IGRA applies to the Settlement Lands, we must now determine whether IGRA effected a partial repeal of the Federal Act. “The proper mode of analysis for cases that involve a perceived conflict between two federal statutes is that of implied repeal.” Id. at 703 (citing United States v. Cook, 922 F.2d 1026, 1033 (2d Cir. 1991)). “[I]mplied repeals of federal statutes are disfa
“The doctrine of implied repeal operates without special embellishment in the Indian law context. The rationale for encouraging preemption in the Indian context—that the federal government is a more trustworthy guardian of Indian interests than the states—has no relevance to a conflict between two federal statutes.” Id. at 704 (internal citations omitted).
Two precedents guide our analysis of the present issue: Narragansett, 19 F.3d 685 (holding that the Rhode Island Settlement Act was impliedly repealed in relevant part by IGRA, id. at 705), and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996) (holding that the Maine Settlement Act was not repealed by IGRA). Because the present case is very close to Narragansett, and readily distinguished from Passamaquoddy, we find for the Tribe on this issue.
The Rhode Island Settlement Act at issue in Narragansett read, in relevant part, “[e]xcept as otherwise provided in this subchapter, the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.”
First, the general rule is that where two acts are in irreconcilable conflict, the later act prevails.... Second, ... courts should endeavor to read antagonistic statutes together in the manner that will minimize the aggregate disruption of congressional intent. Here, reading the two statutes to restrict state jurisdiction over gaming honors [IGRA] and, at the same time, leaves the heart of the [Rhode Island] Settlement Act untouched. Taking the opposite tack—reading the two statutes in such a way as to defeat tribal jurisdiction over gaming on the settlement lands—would honor the Settlement Act, but would do great violence to the essential structure and purpose of [IGRA].
Id. at 704-705 (internal citations omitted).
In Passamaquoddy, we were presented with very different language:
The provisions of any Federal law enacted after October 10, 1980 [the effective date of the Maine Settlement Act], for the benefit of Indians, Indian nations, or tribes or bands of Indians, which would affect or preempt the application of the
laws of the 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.
The Appellees seek to distinguish the present case from Narragansett because the Federal Act—otherwise, in relevant part, essentially identical to the Rhode Island Settlement Act7—ends in a parenthetical that reads, in full, “(including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).”
Appellees, however, misread the parenthetical. Unlike the savings clause in Passamaquoddy, the parenthetical in the Federal Act says nothing about the effect of future federal laws on the Federal Act. Rather, the parenthetical merely clarifies that, at the time of the enactment of the Federal Act, state and local gaming law applied to the Settlement Lands. We note that, at the time, there was a reason for adding this clarification (a reason that did not exist nine years earlier when the Rhode Island Settlement Act entered into force). Approximately six months before Congress passed the Federal Act on August 18, 1987, the Supreme Court decided Cabazon, 480 U.S. 202, 107 S.Ct. 1083, which created considerable uncertainty about Indian law, specifically with respect to gaming. See, e.g., Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076, 1080 (7th Cir. 2015) (“Cabazon led to a flood of activity, and states and tribes clamored for Congress to bring some order to tribal gaming.“); see also supra Section I.2. Soon after, on October 17, 1988, Congress enacted IGRA. The Federal Act was thus passed during a period of uncertainty about the status and future of Indian gaming. The parenthetical served to decrease that uncertainty by clarifying that, when the Federal Act was enacted, Commonwealth gaming law applied to the Settlement Lands, but—just like the Rhode Island Settlement Act nine years before it—it said nothing about the effect of future
The fact that the savings clause in the Maine Settlement Act had already been on the books for some seven years when the Federal Act was enacted further confirms that Congress did not intend the Federal Act to contain such a savings clause—for the Maine Settlement Act leaves no doubt that Congress knew how to draft a savings clause, and that the parenthetical in the Federal Act is not such a savings clause.9
We also reject the Appellees’ argument that the Federal Act and IGRA are not in conflict because the latter only allows class II gaming where it “is not otherwise specifically prohibited on Indian lands by Federal law.”
IV. Conclusion
For the foregoing reasons, the opinion of the district court is reversed and the case is remanded to the district court for entry of judgment in favor of the Tribe.
Reversed and Remanded.
TORRUELLA
CIRCUIT JUDGE
Notes
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).