Rhode Island v. Narragansett Indian Tribe

ISLAND, STATE RHODE et OF Plaintiffs,

al., Appellants, TRIBE, INDIAN

NARRAGANSETT al., Defendants, Appellees.

et

No. 93-1400. Appeals,

United States Court of

First Circuit. Sept.

Heard 1993. March

Decided Russo, Jeffrey with whom B.

W. Mark Pine, Gen., Shoer, Atty. Sp. Alan M. Asst. Gen., Atty. Myers, Elizabeth Murdock Su- Worrell, Adler, zanne Pollock & Shee- han, Providence, RI, brief, were on for state appellants. RI, brief, Goodsell, Westerly,

Bruce N. municipal appellants. Gen., Harshbarger, Atty. Mass. Scott Wilkins, Gen., Douglas Atty. H. Mass. Asst. Boston, MA, Atty. Carpenter, Michael J. Me. Gen., ME, Augusta, and Frankie Sue Del Gen., NV, Papa, Atty. City, Nev. Carson brief, Massachusetts, Maine, for States of Nevada, amici curiae. and Hobbs, DC, Washington, Charles A. with Violet, RI, Barrington, whom Arlene Mat- Jaffe, Hobbs, Straus, thew S. and Dean & Wilder, DC, brief, Washington, were on for appellees. SELYA, Judge,

Before Circuit ALDRICH COFFIN, Judges. and Senior Circuit SELYA, Judge. Circuit appeal requires us to determine Act, Gaming Regulatory whether the Indian 2701-2721, §§ §§ 25 U.S.C. 1166- (1988) (the Act), Gaming applies lands held in trust now the United States Narragansett for the benefit of the (the Tribe). Tribe This determination is tinged quotient with more than the usual interest, public ability because the Tribe’s import gambling casino into Rhode Island likely hangs in the balance. After careful legal landscape, reconnaissance of a littered we set aside the district court’s determina- parties’ dispute appli- tion that the over the cability jurisdiction yet ripe of state is not for adjudication Congress’s grant and hold that to the state in the Rhode Island Indian Claims Settlement Act of (the Act), §§ 25 U.S.C. Settlement hold, contrary remains valid. We also to the importuning, grant Tribe’s that the includes jurisdiction. regulatory civil juncture, At con- the tide turns. We clude, despite protests, the state’s vehement agreed property specially ex- The titleholders to deed the Gaming Act does corporation would to a nascent question; that the Narra- empt lands in to hold title for Tribe’s over, formed benefit. concurrent gansetts have power re- governmental and exercise Congress possesses plenary pow Because therefore, to, lands, and, spect those matters, er over Indian see Morton v. Man Act; that, to invoke the entitled ean, 535, 551-52, jurisdictional conflict to the extent (1974), parties Act and the between Settlement sought blessing. response, Congress In its Act, repealed. In impliedly former is Act, passed the a law end, affirm both the district court’s di- part, most tracks J-MEM. good that Rhode Island enter into rective legislature approved Narragansett state negotiations to draft a tribal-state com- faith Management Corporation Indian Land operations pact under which can be §§ 6A R.I. Gen. Laws 37-18-1 to 37-18-15 relief to mounted its refusal (1990) (the Act), thereby creating the State governmental figures and entities various corporation nominee that would hold title to challenged Tribe’s entitlement who have necessary convey the settlement lands. The extraordinary prophylaxis of the Gam- ancing followed. ing Act. years passed The next five without rele- Then, 1983, Secretary vant incident. in the THE LANDS I. SETTLEMENT Interior, acting pursuant depart- of the begin with a thumbnail sketch of how We C.F.R., regulations, mental see 25 Part 83 breeding ground land mass that is the for the (1993), officially recognized Narragan- the in dispute came to be held trust for the Fed.Reg. an Indian setts as tribe. See Tribe. (Feb. 1983). 2, 6177-78 the heels of On recognition, lands federal settlement 1970s, In the late the Tribe asserted title changed In hands twice more. Charlestown, in claims to certain lands Assembly Rhode Island General amended resistance, Island, and, encountering Rhode permit holding company the State Act to pursued in the federal courts. these claims corpora- to transfer title to the Tribe.2 The States, See Town Charlestown United of complied. September In tion of less (D.R.I.1988) (re F.Supp. Gaming than a month before the Act became counting history dispute), aff'd, of law, the Tribe deeded the settlement lands (1st Cir.1989) (table). In (the Bureau Indian Affairs the federal of state, and the Town of Charles- Bureau) as trustee. signed joint town memorandum of under (J-MEM) standing purporting to settle their II. THE GAMING ACT alia, agreed, differences. The Tribe inter Gaming expression Act is an of Con- extinguishment of its title claims. consideration, return, gress’s respect in in incidence of it obtained valuable will lump-sum payment gambling and activities on Indian lands. The cluding a effective place sophisticated regulato- roughly over 1800 acres in Charles- statute sets control (the lands), framework, gam- by ry defining species town half donated dividing it by private bling, “gaming,” called into the state and half landowners.1 County, provenance parcels two Oneida Indian Nation v. Oneida 1. The of the remains 661, 667-68, 772, 777-78, continuing legal relevance because the 900 acres may rule, used for conser- (1974) donated the state general (explaining as a § purposes. vation See 6A R.I.Gen.Laws 37-18- alienate their land without con- tribes not Thus, development plan high- consent). Yet, gressional Congress never ratified gambling necessity is of to the so- stakes limited validity the State Act amendments. Because the “private" portion called settlement lands. directly transfer is not in issue in this title litigation, appellants and because have not ac- suggest 2. State Act amendments themselves knowledged, upon, less relied the absence much congressional approval of the land transfer ratification, explore we do the conse- "required appropriate,” 6A R.I.Gen.Laws is § quences of this omission. 37-18-14, accord, and the case law is in facilitating tiers, Each class connotes a The mechanism for the unusual called “classes.” and, relationship might gambling activity con- which a tribe affirma- level of different tively jurisdic- regulated vary- to a seek the extension State sequently, each class application stringency. tion and the of state laws to See 25 U.S.C. ing degree 2703(6)-2703(8). activities conducted on Indian land is a §§ compact. In no instance does tribal-State consists, gaming essential- I Class —which Gaming contemplate exten- [the Act] gambling always ly, ritual can be of Indian — application sion of State or the Indian lands. See 25 U.S.C. conducted any purpose. other of State laws for 2710(a)(1). gaming II en- § Class —which S.Rep. Cong., 100th 2d No. Sess. bingo be conducted as of compasses —can reprinted in 1988 3075- U.S.C.C.A.N. state, lands such as right on Indian Island, generally pro- that does not Rhode type. See 25 U.S.C. scribe activities of tripartite system govern- Under our 2710(b)(1)(A). III resid- ment, Class courts, Congress, empow- not the —a commonly category that includes what is ual policy ered to make such choices. See Irons gambling permitted (1st Cir.1987) (ac- thought FBI, of as casino F.2d —is and, moreover, obliged by compact; a state is knowledging legislative sets branch compact good negotiate such a faith policy by means of statutes and the courts sponsoring with a tribe unless the state bans legislature’s policy must honor the choices throughout territory its from con- persons statutes). all Thus, and enforce the the courts gaming. III ducting class See poli- not focused on have the wisdom 2710(d). outright Short of ban —and underlying cies but have legislatures have indicated a will- few state recognized followed the lead and ingness go that far3 —the tribal-state com- very structure regulating method of pact is the exclusive forbids the assertion of state civil or criminal gaming. III The method of the Gam- class gaming except over class III frustrating a state from ing prevents negotiated when the tribe and the state have gaming by III introduction of class end- compact permits a that state intervention. filibuster, tight pa- less for there time See, e.g., United Keetoowah Band Chero- of compact negotiations Oklahoma, rameters within which kee Indians 927 F.2d brought (10th must to fruition once a federal Cir.1991); Sycuan Band Mis- bargain to court finds that a state has failed Roache, F.Supp. sion Indians v. 2710(d)(7)(B). good id. (S.D.Cal.1992). faith. See As then, matter, practical ordinarily a state regulate gambling on Indian lands casino III. PROCEEDINGS BELOW compact. pursuance of a consensual January 15, formally On the Tribe requested good at bar around that into

Because the case revolves Rhode Island enter gaming, centrality bargaining designed produce III of this last faith to class tribal- point compact cannot be overstated. One of the Gam- state that would allow construction i.e., casino, ing policies operation inauguration is that and Act’s fundamental “Indian right regulate gaming, the exclusive class III on the tribes have settlement lands. lands_” gaming activity negotiate, on Indian Id. Rhode Island declined instead 2701(5). legislative history filing of the stat- suit in the federal district court.4 The implications policy: ute draws out the of this state asked the court to declare that strong political municipal economic and disin- and various state and officials. For There are ban, sake, ohtright centives to an for class III simplicity's plaintiffs, we refer to the collec- among things, popular encompasses, other such tively, as "Rhode Island” or "the state." Simi- lotteries, sources of state revenue as and such defendants, larly, collectively, we refer to the fundraising Vegas devices as "Las familiar Tribe,” Narragansetts” noting, “the or "the how- nights" to benefit churches and other charities. ever, plaintiffs' that suit also names two tribal hierarchs as defendants. stand, plaintiffs 4. As the named matters now town, us) state, (appellants before include the ing sphere unpersuasive in Act’s to be Gaming apply Act does not therefore, support of textual in the statute. lands, those lands are absence and Third, general Island’s criminal See id. at 802-04. it dismissed the to Rhode regulatory suggestion Gaming (including its civil that Act could not civil laws and laws). enjoin trump sought also the Settlement Act because the for- The state general more two statuto- development gambling facilities on the set- mer was the Fourth, negotiations ry ante- and to block schemes. See id. at 804. de- tlement lands jurisdiction” that compact. “ha[d] The Tribe termined the Tribe cedent to a tribal-state declaratory governmental power” “exercise[d] and counterclaimed for and over answered pave way injunctive relief that would the settlement lands sufficient measure to lands. gambling on the settlement animate the Act. See id. at 805-06. for casino things, a requested, among other The tribe plaintiffs timely After the filed a notice regulatory the state’s civil declaration stayed appeal, the district court its order.5 lands; a apply to the settlement laws do Narragansetts are enti- declaration that THE IY. DECISIONAL FRAMEWORK III on those operate a class casino tled Act; statutory meaning lands in conformance with the The search for mandatory injunction commanding the inevitably question and a pure reduces to a of law. good Thus, negotiate appeal engender faith toward a state the issues on de novo compact. review, special to be conducted def without See, e.g., to the district court’s views. erence court cross motions The district considered (1st Keating, 12 FDIC v. F.3d Cir. joint summary judgment premised on a for 1993) curiam); (per Liberty Mut. Ins. Co. v. of uncontroverted facts. After statement Co., Commercial Union Ins. parties’ proffers, court de- pondering the (1st Cir.1992). interprets a court When ferred substantive consideration of the dis- sovereignty, touch on Indian statutes general applicability pute of state over apply, general rules of construction but jurisdiction, citing ripeness local con- perspec must be visualized from a distinctive Narragansett Rhode Island v. cerns. See coign tive. The Court has described this Indians, F.Supp. Tribe vantage: (D.R.I.1993). assumed, The court then congres- sake, underlying premise is that argument’s the state had been determining intent will control. In sional granted jurisdiction over the settlement intent, are cautioned to follow “the this we Act. See lands virtue Settlement expressions general rule that Proceeding assumption, “[d]oubtful id. at 804. on that [Indi- resolved in favor of are to be court concluded that such was the and, “general .... But rule” does not Act, ans]” the “preempted” by Gaming conse- the ... in face command a determination the enduring Id. quently, had no force or effect. congressionally manifested intent to the findings, on these the court ordered Based cases, contrary. In face of the all “the good negotiations the state to enter into faith circumstances,” Act,” “surrounding compact. to formulate a tribal-state See id. history,” “legislative are to be and the at 806. eye determining examined with an toward reaching Gaming that the conclusion congressional what intent was. controlled, Act the court divided its reason- First, ap- Kneip, ing parts. it Rosebud Sioux Tribe v. into four cited proval precedents holding that 97 S.Ct. 51 L.Ed.2d three (1977) (citations omitted); also South Gaming Act federal statutes overrode other Band, vintage. of earlier See id. at 801-02. Sec- Carolina Catawba 16, 106 2039, 2044 ond, n. Congress’s in- 506 & n. & it found the evidence of (1986) cases). beyond (collecting place Rhode Island the Gam- 90 L.Ed.2d 490 tent having cross-appeal, failed to originally cross-appealed that the Tribe 5. The Tribe from miss support any developed argumentation stay present in from the denial of its motion for relief order, today separate we dis- therefrom. In a thereof. trajectory an in follows odd that the court abused in Our search its discretion this case, it starts down a road that instance. this because and, explore, chose not to

the district court ended, proceeds Applicable A. The journey to trace Standards. once that ultimately path argument questions ripe When faced with Although dead end. proves to be a this context, declaratory judgment in ness unorthodox, approach is we think it facili- employs developed this court the test in Ab systematic testing appellants’ tates a Gardner, bott Laboratories v. that the settlement lands core contention: lie Gaming beyond the Act’s reach. test, cases, phrased in our parts: contains two approach of our makes it desir- The nature roadmap. pro- set out a We First, able that we we consider whether an issue is fit following parts, pose, review, in the two to deal with e.g., challenged gov- whether a for, Act, if that statute did not ernment action is final and whether deter- respect confer state upon mination of the merits turns facts lands, jurisdiction, or if state once may yet sufficiently which not devel- conferred, Gaming vanished before the Second, oped. question we consider the materialized, then the state’s case nec- would hardship, question typically turns end, essarily To this founder. we discuss upon challenged whether the action creates jurisdictional inquiry Part V whether a direct and immediate dilemma for the is, ripe; finding we discuss Part VI parties. validity scope of the ced- Dia, (citation El 963 F.2d at 495 and internal ed the state the Settlement Act. omitted); quotation marks accord W.R. EPA, Grace & v.Co. United States 959 F.2d Next, Gaming we must consider the Act’s (1st Cir.1992). key consider- jurisdiction. In Part effect on the state’s analysis ation this “is the extent to which

VII, deal with —and rebuff —the state’s the claim contingent involves uncertain and suggestion the settlement are en- lands may events that anticipated, not occur as Gaming tirely exempt from the Act. In Part indeed not occur at all.” Lincoln VIII, we deal with —and rebuff —the state’s House, (1st Dupre, Inc. v. argument categorical even absent a ex- Cir.1990) (citation quotation and internal emption, relationship the Tribe’s to the set- omitted). marks possess tlement lands does the attributes trigger provi- needed to Act’s Applying declaratory test sions. The final curtain falls at the conclu- judgment requires context often custom tai IX, sion of we confront Part where the inter- loring, for there are at least two salient face the Settlement Act and the between declaratory differences between actions and and test the district court’s first, the mine-run of other cases: declarato remedial order in the crucible of our under- ry likely relief is more to be discretionary; standing. and, second, declaratory contemplate actions rights”

an “ex ante determination of that “exists some tension with traditional no V. RIPENESS ripeness.” tions of Step-Saver Sys Data The lower court declined to resolve the tems, Wyse Technology, Inc. v. F.2d 912 jurisdiction, and local finding issue of state (3d Cir.1990). 647 opinion Our in El Dia controversy” no “case of actual sufficient to responded to the first of these differences. Act, satisfy Declaratory Judgment 28 Dia, See El 963 F.2d at 491-93. We believe (1988). Tribe, Narragansett 2201 opinion today responds that our to the sec Though F.Supp. 816 at 800. we are mindful ond difference. of the deference due to a district court’s declaratory linchpin ripeness decision to withhold a under the relief, Dia, Colon, Declaratory v. Judgment El Inc. Hernandez as in all Article (1st Cir.1992), cases, declaratory 963 F.2d 492 III we believe is adverseness. In a

693 vein, granting ap positive whether relief must be more adverseness judgment action or, way. purpose, put a useful another practical, commonsense would serve in a praised sought-after requirement way, declaration Thus, satisfying the adverseness whether setting alleged, practical under all the assistance that “the facts would be demands circumstances, controversy Step- underlying that there is a substan to rest. See show parties having Saver, ad controversy, between F.2d at 647.’ tial 912 interests, immediacy legal sufficient verse hardly depar a radical This formulation of a reality to warrant the issuance proge Laboratories and its ture from Abbott Casualty Maryland declaratory judgment.” ny, question may always trans for the one be Co., v. Coal & Oil Co. Pacific example, say formed into the other. For (1941), 510, 512, 85 L.Ed. 826 61 S.Ct. denying an ade that relief is tolerable where Haworth, citing Aetna Ins. Co. Life remedy is tan quate state has been realized 461, 463-65, 227, 239-42, 57 S.Ct. U.S. saying granting request tamount to that requirement should L.Ed. 617 point in such a situation would be ed relief litigation woodenly. Most has applied not be Dio, Indeed, El 963 F.2d at 495. less. See features, idiosyncratic and the adverseness ago the Court some time observed one calibration on a case- invites careful criterion legal crystallized must reason the issues be by-case The line is often difficult basis. declaratory the trial in a action is to enable declaratory judgment should draw. aWhile judge purpose “some useful to be to see situations,” speculative “in granted not be deciding achieved in them.” Public Service Rickover, Assocs., Inc. v. Public Affairs 237, 244, 73 Wycoff Co., Comm’n 580, 581, 7 L.Ed.2d 82 S.Ct. U.S. 236, 240, Further 97 L.Ed. (1962), litigant have to await “does not more, framing hardship question in a injury to consummation of threatened comports spirit positive fashion best injury If preventive relief. obtain Declaratory Judgment Judge Act. As enough.” certainly impending that is Pacific the Act explained: Becker “The idea behind Energy Resources Elec. Co. v. State Gas & clarify legal relationships so that was to Comm’n, & Dev’t Conserv. defendants) (and possibly could plaintiffs (1983) 75 L.Ed.2d the future.” responsible make decisions about omitted). (citation (citing legislative Step-Saver, 912 F.2d way gauging history). adverse One sound nature of the relief

ness is to evaluate the Applying B. the Standards. controversy must be such requested. The through a “specific relief it admits Here, ripe- ruling on the district court’s character, as distin decree of conclusive that neither the ness flowed from the notion opinion advising what the guished from an any occasion nor the town would have state hypothetical upon state law would jurisdiction until reserved to exercise Life, 300 facts.” Aetna ended, thereby process compact negotiation courts call this measure S.Ct. at Some way gaming. III Nar- clearing the for class “conelusivity” it as a and treat of adverseness F.Supp. at 799-800. ragansett See, Armstrong requirement. e.g., separate uncertainty on the court to focus seemed Indus., Adams, Inc. v. World situation, suggesting the need for Cir.1992). (3d depended on the occur- requested relief disagree. speculative events. We rence of ripeness in part The second retain and local authorities by declaratory judgment ac Whether state quiry evoked lands is any jurisdiction over the settlement hardship to the tions is concerned with the importance to all question a of immediate from a refusal parties that would result apart question parties, separate and from the granting consider relief. We believe jurisdiction and local precisely the of what state part inquiry focus on of should think, par- in fairness to the asking, survives. We judgment’s usefulness. Rather than ties, question must settled im that the former be denying relief would negatively, whether negoti- ask, to commence in a are ordered pose hardship, courts will do well to before or, made, compact. nugatory initially if ef- tribal-state Because was when ations for a fective, interpretation of the Settlement required relegated scrap heap was to the well issue, “purely legal” projects W.R. Congress Act. before enacted Grace, at the resolution of aside, F.2d that, validity The Tribe also maintains by changed further factual will not be which any jurisdiction regu- grant of excludes civil and because it is of critical development, and, therefore, latory jurisdiction, has no negotiation process in importance to the bearing upon proposed operation engage, parties must see gambling persuaded. casino. are not infra We IX(B), finding Part the case for a of adverse- And, moreover, very powerful. while ness is Validity. A. compact negotiations may true that the it is that, position The Tribe’s basic is timing III and on the of class bear prior even to the section 1708 of regulatory responsibilities, the allocation of the Settlement Act did not constitute a valid negotiations cannot effect existence jurisdiction because, until federal conferral jurisdiction. non of state and local vel recognition occurred the Tribe had reaching impetus the merits is jurisdiction relinquish. no strengthened because the other characteris- traditionally ripeness tics associated with resupinate reasoning logic stands also extant. have no serious reservation We juris- its ear. The Tribe did not surrender proper parties about whether are before Rather, state, diction 1978. requested ruling the court or whether the agreement, spelled and the town came to an will, granted, conclusively par- if define the J-MEM, Congress, among out to ask token, legal rights. By ties’ like baseline things, jurisdiction other to the ruling great would be of near-term such state. The Tribe has articulated no reason utility, facilitating the course of future tribal- status, why, regardless legal Congress of its compact negotiations clarifying state and power jurisdic- lacked the to effectuate this legal some extent the status of the settle- grant. tional substantially ment lands at a time when ex- event, the Tribe is mistaken its panded highly probable. use seems Accord- jurisdictional professed belief that it lacked ingly, we rule that the basic issue of state power at the time of the Settlement Act. spe- (although and local not the just recognition recognition Federal that: cific, permutations fact-intensive of that is- previously existing purpose of a status. The IX(C)) sue, ripe see Part for declara- infra procedure “acknowledge tois tory judgment purposes. certain American Indian tribes exist.” 25 § C.F.R. 83.2 The Tribe’s retained VI. STATE AND LOCAL JURISDIC- sovereignty predates recognition federal —in- TION deed, predates Republic, it the birth of the Addressing the merits of this issue entails Martinez, see Santa Clara Pueblo v. validity an scope examination of the the Settlement Act. The Act states (1978) only by it act be altered an —and here,6 exceptions two not relevant “the Morton, 551-52, Congress, settlement lands shall civil 94 S.Ct. at 2483.7 and criminal laws and § State Rhode Island.” 25 U.S.C. The Tribe has two other arrows in its First, jurisdictional quiver. pronouncement hypothesizes Tribe maintains that this exceptions general by 6. The act relate to the Tribe’s ated of the Rhode Island General taxation, exemption state Assembly, by Congress, purported from unratified 1715(a), exemption regula- status, Acts, and its from state extinguish tribal see 1879-1880 fishing hunting, tions anent 25 U.S.C. Reports Assembly Resolves and the General 1706(a)(3). the State Rhode Island and Providence Planta- tions, Chap. the issuance of legal disposes principle 7. This also of certain notices, see, e.g., Fed.Reg. administrative mere Thus, arguments other raised the Tribe. (Feb. 2, 1983). sovereignty Tribe’s could not have been eviscer- including ... but not All laws of the state federal rec- 1708 did not survive that section building, im- mirror to state and local fire and hypothesis is the limited ognition. This ¶ 13]; just [J-MEM, rather hypothesis safety considered: age the codes prerequisite for the being as the than cast jurisdiction complete and criminal the civil taken jurisdiction, recognition is conferral State_ Hearing on S.3153 [Joint The two that conferral. have nullified to Sess., Cong., 2d at and H.R. 95th infirmity. same suffer from the hypotheses (June 1978) ]; hence, (and, jurisdiction) sovereignty Tribal jurisdiction the civil and criminal laws augmented nor diminished may be neither [18 1708]. State.... through congressional enactment. except that, Second, if section suggests Tribe the Analogizing Bryan, posits the Tribe recognition, it did not survive 1708 survived Congress’s progression signals intent to this subsequent of the settlement the alienation jurisdictional grant. limit the goes Sup- nowhere. suggestion lands. This interpretation proposed finds no suc- jurisdictional grant contained posing that the legislative history. cor in the Without such jettisoned 1708 could have been in section support, it that the Nar- we think is evident state, the Bureau without the the into ragansetts read too much too little. do supposition we congressional sanction —a context, Considering the overall the devia- every fact is salient not share —the from one document to another do not tions moment, pains in interest took parties pro- especially significant. us as strike conclude, there- reaffirm section 1708.8 We jurisdictional development of the gressive fore, jurisdiction contained language plausibly interpreted can be more in 1708 of the Settlement was section clarify the breadth of the as intended to made, at the and was undiluted valid when Perhaps than to narrow it. grant, rather Congress passed the Act. time feared that “all of the state” drafters laws alone, jurisdiction suggest regulatory might Scope. B. jurisdiction” “civil and criminal and that Validity notwithstanding, is an only jurisdiction judicial in might imply jurisdictional open question whether jurisdic- and criminal laws and sense. “Civil 1708 extends to grant contained section obviously all tion” more includes sorts jurisdiction. in regulatory The Tribe civil fairly lay being jurisdiction, and can claim to enacting not. It tells us that the Con sists of the three formulations. the broadest copy the distinction be gress intended adjudicatory regulatory civil and civil tween suggesting only change arguably jurisdiction years earlier limned two jurisdiction scope is the diminution County, Bryan v. Itasca “complete” from the removal of the word We find We think that draft version the bill. unsup unsupported and this tale to be both too, may understood as an at change, be portable. “complete” the word tempt at clarification: simply removed to avoid could well have been argument along the fol- The Tribe’s runs jurisdiction suggestion grant of view, there salient lowing lines. its intended to be exclusive. United was discrepancies respect Cf. (2d Cir.) Cook, States J-MEM, among original bill Senate jurisdiction” and (suggesting that “exclusive final leading to the and the jurisdiction” may have the same “complete illustrate the of the Act itself. To version denied, connotation), cert. versions of the point, Tribe’s we list the three 2235, 114 For side, L.Ed.2d jurisdictional in order of S.Ct. clause side reason, language documents, discrepant best drafting. According to three inconclusive. to: lands were 18—13(b); transferring see 6A RJ.Gen.Laws 8. The 1985 State Act amendments 37— conveying lands from the holding company deeds the settlement to the Tribe con- title from the explicitly confirmed provision Tribe to the Bureau in 1988 for state substan- tained applicability of section 1708. tially section identical to that contained in 696 ment”) (statement changes phraseology pinpoint- Parker, in The small of Alan R. Gen. Comm, Tribe, by Counsel, floated

ed the without visible Sen. Select on Indian Af- place at support, means of this case consider- fairs). Bryan, from a case in able remove We need not belabor the obvious. Since genuinely suggestive lin- Court confronted self-serving by inference drawn the Tribe interpreted final gual discrepancy, plainly is at odds with the discernible inten clearly statute in line with

version of the Act, and, undergirding tion Settlement history. Bryan, See articulated bargain, plays statutory havoc with the at 96 S.Ct. at 2106-10. text, gratuitously we decline to limit the contrast, Here, discrepancies by scope of parallel section 1708 in order to conjectural perceives are more than Tribe absolutely holding Bryan.10 suggestive; nothing there is in the United States Cf. Dakota, (6th Cir.1986) legislative history of the Settlement Act that 796 F.2d congressional limit indicates intent either to (refusing Bryan to extend distinction to 18 scope of state or to carve a § inappro because it would be jurisdictional along regulato- distinction civil priate apply “developed to a test in a differ Thus, ry/civil adjudicatory Bryan lines.9 is concerns”). ent context to address different congener. not a fair Hence, we conclude that the Settlement Act granted regulatory jurisdiction, civil as well Our assessment is reinforced adjudicatory jurisdiction, as civil to the statutory commonsense tenet of construction. state.11 Relatively minor differences In between an agreement ratifying dian act of Con effect, more,

gress give needed to without C. Local Jurisdiction. give do not rise to an inference that Con digress We gress modify agreement. add a few words about intended Sioux, jurisdiction, See Rosebud local mindful that the Town of (holding Congress that a 1904 act of municipal Charlestown and certain officials modify agreement, did not a 1901 Indian parties are to this lawsuit. despite suggestive change minor in lan Although recognize we both the town’s de- guage). “implied continuity At least when an sire to assert in respect to the in purpose” exists between the antecedent opposition, lands and the Tribe’s agreement subsequently and the enacted nothing gained by we see giving sepa- to be statute, courts should construe the latter to question juris- rate treatment of local former, notwithstanding effectuate the differ matter, general municipal diction. As a au-

ing here, linguistic choices. it is Id. So for thority entirely derivative of state authori- designed imple was ty, (1991); see 7A R.I.Gen.Laws 45-2-1 agreement ment embodied in the J- 1701(d) governmental and in the See, (declar powers exercise of e.g., MEM. 25 U.S.C. (as opposed proprietary powers), ing munici- “requires implementing that the J-MEM (acknowl legislation”); palities state, act Hearing agents Joint at 97 as the edging legislation that “the City Newport, as drafted in see Buckhout v. 27 A.2d (R.I.1942). implement agree- tends to the settlement (D.R.I.1992), 9. We do not believe the Tribe's cause is grounds, aided on other aff'd expression support the Bureau’s tentative the (1st Cir.1993), suggests a con position regu- that section 1708 excludes civil view, trary reject it. latory jurisdiction. Regional See Southeast So- 30, 1992). Opinion (April licitor’s Memorandum analysis specific 11.Because our the Settle- to. any spe- Bureau's views not entitled to join ment we need not the debate over the weight interpretation statutory cial pro- general applicability Bryan distinction. charged visions that it is not to execute. See Band, See United Keetoowah 927 F.2d at 1176 n. States, Crandon v. United debate); (surveying Yavapai-Prescott see also Arizona, F.Supp. Indian Tribev. 1294- (D.Ariz.1992) (discussing applicability opinion To the extent that the district court’s Maynard Narragansett Act). F.Supp. Bryan respect distinction

697 constituting an Act as such chooses to cede Settlement that if the state It follows town, agreed sovereignty to the transfer. of its portion a authority the extent of that to use town interpretation signifies prom This See, Bru- e.g., Vukic v. power delegated. reason, hope for it iscuous elevation of over (R.I.1992). nelle, But dele- A.2d that are completely overlooks two limitations necessity, exceed of cannot gated powers, First, face of apparent on the the statute. town delegator. The possessed those 23(d) penal provision that section upon independent basis which cited no has only prosecutions; criminal terms deals with jurisdiction, and municipal might exercise implications for civil it has no Thus, apparent to us. Charlestown’s none is (whether adjudicatory). regulatory or Sec necessarily in our subsumed concerns are 23(d) ond, “gam pertains only to section jurisdiction. of the state’s discussion bling,” purposes is defined for of that any excluding kind of “gaming.” section as THE GAMING THE REACH OF VII. 1166(c). Thus, properly un See 18 U.S.C. ACT 23(d) derstood, to exer section allows states ar- addressing the Tribe’s ultimate Before jurisdiction pursuant cise a consensual Gaming Act cancels what- gument —that transfer to enforce criminal laws grant- jurisdiction the Settlement ever gambling falling outside proscribe activities both furcula must first consider ed—we sanctuary Gaming Act. This is of the settlement assertion the state’s Island, to Rhode which seeks to no assistance exempted from the specifically lands jurisdiction (including civil assert unfettered Gaming Act’s domain. regulatory jurisdiction) over activities consti tuting gaming.12 II class III class Provision. A. The Consensual Transfer “consensual Act’s so-called History. Decrypting Legislative B. familiarly provision, known as “sec- transfer” Next, flanking attempts maneu- state 23(d),” It is the site of the next battle. tion meaningful citation to the ver. Without part: in relevant states text, prop- the state hawks the Act’s jur- have exclusive The United States shall Congress, passing osition that prosecutions criminal of vio- isdiction over jurisdic- intact the intended to leave gambling laws that are lations of State tion tendered a decade earlier Settle- Indi- applicable under this section to made left Act. And to fill the forensic void ment country, pursu- unless an Indian tribe statutory any lan- the utter absence compact ... or under ant to a Tribal-State effect, pushes the state forward guage to this law, Federal has provision other snippets legislative his- carefully selected to the transfer to the State consented problems significant two tory. There are respect gam- criminal approach. with this bling the lands of the Indian tribe. 1166(d). place, must In the first courts proviso, Rhode 18 U.S.C. statutory language, asseverates, exemption primarily look presages an Island history, determining the mean lands. On this applicable to the settlement See, 23(d) e.g., United lawfully ing scope of a statute. theory, section allows a state Turkette, v. jurisdiction over States assert civil and criminal (1981); Con compact or S.Ct. gaming under either a tribal-state Sylva Safety Prod. Comm’n GTE law” that sumer “any provision other of Federal Inc., nia, jurisdic- a consensual transfer of embodies (1980); United States 64 L.Ed.2d portrays And it section 1708 tion. Island). exempt du Rhode The Lac hopelessly interpretation intended to 12. The state’s mistaken by the Senate re- provision apparently court was misled Flambeau transfer of the consensual Rhode Is- port’s gloss soon-to-be-deleted on the Lac du Band derives from a dictum in Flambeau Wisconsin, pp. exemption provision, 698 n. see Superior Chippewa land Indians v. Lake infra case, therefore, (W.D.Wis.1990) precedential val- (sug- lacks 700. The F.Supp. 23 was ue. gesting the final version of section Co., Trucking poured, George brings the state then to the fore- Charles Cir.1987); (1st also Felix Frankfurt colloquy front a on the floor of the Senate Statutes, er, Reading re-printed senators, involving Rhode Island’s two Of 1956) (Philip Elman ed. Chafee, Law and Men In- Messrs. Pell and and Senator statutory language (noting importance of and ouye, sponsor manager and floor of the bill explaining legislative intent “is not Act, regarding that became the air”). drawn, nitrogen, out of the like When eventual deletion of former section 23 from encompassing, a statute’s text is clear on its the bill: face, result, plausible productive and of a it is President, Mr. PELL. Mr. I would like different, unnecessary to search for a contra S.555, managers thank the the Indian dictory meaning legislative record. Gaming Regulatory particularly and Trucking, George 823 F.2d at See Charles the chairman of the Select Committee on 688; 912, Meyer, United States v. Inouye], Indian Affairs for their hard [Mr. (1st Cir.1987); Massachusetts Fin. patience achieving work and a consensus Servs., Inc. v. Securities Investor Protection important on this measure. (1st 754, Cir.1976), Corp., 545 F.2d cert. denied, 1696, clarity,14 In the interests of I have asked precisely L.Ed.2d 388 This is such a language specifically citing protec- case. tions of the Rhode Island Claims Settle- (Public 95-395) ment Act Law be stricken place, legislative In the second histo pro- from S.555. I understand that these rarely, ry that in itself inconclusive will if clearly tections will remain in effect. ever, overcome the words of statute. In a one, court, inquiring case such as this my colleague, Mr. I INOUYE. thank most, history only should resort to senior Senator from [Mr. Rhode Island ‘clearly to determine “whether there ais Pell], and him protections assure that the expressed legislative contrary intention’ of the Rhode Island Claims Act statutory] language, which would re [the (P.L. 95-395), will remain in effect and quire question strong pre [the court] to Narragansett clearly Indian Tribe Congress expresses sumption that its intent civil, criminal, subject will remain to the through language it chooses.” INS v. regulatory and laws the State of Rhode Cardoza-Fonseca, 432 n. Island. 1213 n. President, Mr. CHAFEE. Mr. I too (1987) (quoting Sylvania, 447 GTE would like to thank the chairman [Mr. 2056). 108, 100 After S.Ct. at careful consid Inouye] and members of the Select Com- argu eration of Rhode Island’s extratextual coopera- mittee on Indian Affairs for their ments, we conclude that the material mus tion and assistance. The chairman’s state- clearly ters fails to establish such a ex any high ment makes it clear that stakes pressed legislative intention. gaming, including bingo, in Rhode Island begins phase by The state of its case civil, will remain criminal pointing preliminary to a version of the Gam- regulatory laws of our State. (former ing provision Act that contained 23) safeguarding S12,650 Cong.Rec. (daily Sept. section the Settlement Act ed. 1988). implied repeal.13 from Once that foundation bill, result, original remaining provisions.

13. In the former section 23 read as numbered the As a enacted, follows: former section 23 and section 23 as VII(A), Nothing per- supra in this be construed as Part discussed bear activities, mitting except to the extent no relation one another. permitted under the laws of the State of Rhode Island, acquired by Narragansett on lands 14. We are constrained to note that whatever Indian Tribe under the Rhode Island Indian Congress may serving interests have been when by, Claims Settlement Act or on lands held it deleted the former section "the interests of of, or on behalf such Tribe. clarity” among were not them. 15, 1988). Cong.Rec. (daily Sept. ed. S12.649 provision After the Senate eliminated this it re- sense, Although give overarching good full and cred rule faith makes for floor statements afford solid of the senators involved evidence of it to the earnestness congressional only they jibe exchange, accept intent when wit in this we are unable to h statutory the final version of the game text. “To colloquy at face value. In the of statu permit statutory ... language clear statutory language to be tory interpretation, is the materially by colloquies, altered such Consequently, trump ultimate card. the ov place often take before bill has achieved by erarching rule is that “statements individ form, open its final would the door to the legislators given controlling ual should not be inadvertent, perhaps planned, even under effect”; rather, such statements are to be mining actually language voted respected to the extent that “are Congress signed into law the Presi statutory language.” consistent with the Wald, 222, 237, 104 Regan dent.” v. 468 U.S. 253, 263, County, Brock v. Pierce 476 U.S. 3026, 3035, S.Ct. 82 L.Ed.2d 171 1834, 1841, 106 S.Ct. 90 L.Ed.2d 248 overarching Another reason that this rule interpretive applies fully rule practical matter, makes sense is as a special case of statements those members enacting Congress most members of the will Congress intimately most associated with only be familiar with the bill as it stands manager sponsors. a bill: its floor and its and, perhaps, when vote occurs with the The Court has so stated in unmistakable reports, pur committee broad outline of contemporaneous terms: “The remarks of a pose; they expected cannot be be familiar legislation certainly sponsor of áre not con every stray statement, every with floor with analyzing trolling legislative history.” prior history, twist and turn of the bill’s or 25, Weinberger 15, v. 456 U.S. 35 n. Rossi every legislator’s thoughts other with as to 1510, 15, 102 1517 n. 71 715 S.Ct. L.Ed.2d (or accomplishes stops what the bill short of (1982); Brock, 263, see also 476 106 U.S. FERC, accomplishing). e.g., Cf., Hirschey v. 1840; Sylvania, S.Ct. at GTE 447 U.S. at (D.C.Cir.1985) 1, (Scalia, F.2d 1 777 7-9 & n. 118, 2061; Chrysler Corp. 100 S.Ct. at v. J., concurring) (observing that members of Brown, 281, 311, 1705, 1722, 441 99 U.S. S.Ct. Congress cannot be held accountable for (1979); City 60 L.Ed.2d 208 v. Grove Coll. cf. lacking knowledge of minute details com Bell, 555, 567, 1211, 1218, 465 U.S. 104 S.Ct. reports). particularly mittee It is unrealistic (1984) (explaining 79 L.Ed.2d 516 that re knowledge attribute statements made sponsor may marks of a be taken as authori members, on the Senate floor to House who tative to the extent that are consistent gave approval seal of their the Senate bill plain language).15 Various courts of exemption provi after the Island Rhode included, appeals, repeatedly this court have deleted, mentioning had been sion without See, e.g., echoed the same theme. North & parochial Rhode Island’s concern. See 134 Scituate, South Rivers Watershed Ass’n v. H8146, 27, Cong.Ree. (daily Sept. H8426 ed. (1st 552, Cir.1991); 949 F.2d n. 555 6 United 1988) (commemorating passage by the House Tobacco, 906, (9th States v. 924 F.2d 911 Representatives). For much the same Cir.1991); Devargas Hanger- v. Mason & reason, it is unrealistic to attribute such (10th Co., 1377, Silas Mason 911 F.2d 1387 knowledge to the President. Cir.1990), denied, cert. 111 (1991); 112 republican government, leg- S.Ct. L.Ed.2d 860 In our form of United McGoff, by writing States v. 831 F.2d 1090-91 islators make laws statutes —an Conservancy (D.C.Cir.1987); requires putting pa- Northern Colo. Water exercise that words on FERC, per way conveys reasonably t. 730 F.2d in a a defi- Dis (D.C.Cir.1984). meaning. Congress spoken, nite Once has See, by legislative sponsors' e.g., Corp. 15. While statements tations. DeBartolo v. Florida Gulf Council, guide sometimes described as "an authoritative Coast Trades construction,” to the statute's North (1988) Haven Bd. ("It S.Ct. 99 L.Ed.2d Bell, 512, 526-27, Educ. v. 102 S.Ct. sponsors meaning that we look to when the 1920-21, (1982) (citing L.Ed.2d doubt.”) statutory (emphasis sup- words is in cases), description appropriate only when plied). differing interpre- a statute's text leaves room for said, 1213; plainly it has notwith- 480 U.S. at Russello is bound what States, 16, 23-24, may and winks that have standing the nods v. United (1983); commit- exchanged in floor debates and been all, proper hearings. After it is not the Sisseton-Wahpeton tee United States Sioux Cir.1990).16 (8th legislators to use unwritten assur- role of 362 n. 8 arrangements Deletion, more, to alter the clear ances or side suggests that Con- without judi- language. meaning agreed And the gress simply change had a of heart. guarantor ciary must stand as the ultimate case, In no The state there is “more.” integrity an enacted statute’s text. argument by touting tries buttress its sum, Congress spoken, has a court once report comment in the Senate to the effect unambiguous of an cannot override the words [Gaming nothing super- “that in the will Act] statute and substitute them the enacted specific grant specific sede restriction or legislators individual court’s views of what authority of Federal to State Any imports likely other rule intended. encompassed in another Fed- subjectivity into the inter- virulent strain of statute, including eral the Rhode Island and, process, pretive task threatens to Indi- [and Maine] Claims Settlement large legislative power a slice of transfer too Act.” Claims Congress the courts. See Frankfurt- from (citations omitted). U.S.C.C.A.N. at 3082 er, (warning supra, that courts at 60 should legislative history patch But this of is also the trail tests that have not be “led off report speaks threadbare. Senate subjective design”). of overtones committee; reported it to the bill as out of spe- composed was the deletion of the before Here, colloquy upon the the exemption provision, cial Island for- Rhode especially an slender reed be state relies is 23, section from the final version of the mer explanation Congress’s of it offers an cause Thus, during quoted bill floor debate. the widely accepted principle a action that defies light Congress’s no on in- statement sheds Congress statutory construction. When of regarding actually law it enacted.17 tent the language early limiting an version includes legislation, and then the proposed of rewrites Yin. DOES THE GAMING ACT AP- scrap prior enactment so as to bill PLY? limitation, presumption is that the standard finished, yet proviso operate odyssey Our is not as Congress intended the Cardoza-Fonseca, plausible See the state and the amici construct a without limitation. sure, literalism, might postulated placing strong emphasis be that Con- on statu- To be See, tory proper e.g., gress text function. deleted former section 23 because it feared court's 108, Sylvania, specific GTE 447 U.S. at 100 S.Ct. at 2056 that a reference to Rhode Island would (declaring statutory language give "must ordi- to the inference that other individual rise conclusive”); narily regarded Caminetti v. special grants with of were not states States, 470, 490, 192, United 37 S.Ct. similarly exempted Gaming from the Act. Con- 196, (1917) (explaining L.Ed. "when gress ambiguity avoided such in a could have they words are free from doubt must be taken as striking myriad ways short of former section intent”). expression legislative the final Moreover, of the say, by substituting generic exemption for a point considering Island, we have made category including Rhode or of states legislative history Gaming Act on its citing in a Rhode Island non-exhaustive list terms, continuing recognition influ- own exempted. accept states that would be To statutory ence of inter- less text-based theories suggested indulge rationale would be to in sheer underpinning pretation, such as that Watt v. speculation. Alaska, 101 S.Ct. 68 L.Ed.2d (1981). We that our result is com- believe predicament sympathize 17. We with the pelled acceptable interpretation. by any mode of which Rhode Island’s senators found them- being power- the word of a asked take Finally, although Judge we share Coffin’s reti- selves— sympathy ful committee chairman —but alone responsible exchanges, floor cence to discredit carry day. dissenting exchange utterly cannot Our brother we fail to see how a floor puts very argument, face the state's best can be odds with the words of an enacted statute dissent, written, yet though gracefully interpretive process. given primacy con- If particular nothing legislative results, accomplish tains to shake our view of either the bodies desire to controlling principles greater legal with or the his- must use their tools tory. charge plead guilty care. While we (1989). to ward off 109 S.Ct. 104 L.Ed.2d 209 argument as an amulet textual Consequently, paint backdrop argument stems from before Act. placing stage. the statute at center limiting applicability of the language “[a]ny key provisions to Indian Gaming Act’s Backdrop. 1. The lands,” having jurisdiction over Indian tribe “distinct, independent political tribes or, differently, to “Indian lands within stated communities, retaining original their natural jurisdiction.” such tribe’s See 25 U.S.C. rights” governance. matters local San 2710(b)(1). 2710(d)(3)(A), §§ These are dual Pueblo, ta Clara 436 U.S. at 98 S.Ct. at limitations, for one element of the definition Georgia, quoting Worcester requires that an Indian of “Indian lands” (6 Pett.) 515, 559, 8 L.Ed. 483 While governmental power” over “exercise[] tribe rights congressional are retained at tribal 2703(4). Rhode Island them. sufferance and are to defeasance Narragansetts “hav[e] claims that the do not elect, Congress should so tribes retain their over, “gov- jurisdiction” and do not exercise sovereign powers in full measure unless and to, power” respect ernmental the settle- Congress until acts to circumscribe them. lands; and, thus, Gaming Act ment Wheeler, See United States v. Evaluating pertain. does not the state’s the- exploration requires sis into another as- Supreme As the has ex Court congressional pect of intent. plained, possess “Indian tribes still those as pects sovereignty by treaty not withdrawn Having A. Jurisdiction. statute, by implication necessary or as a view, phrase “having state’s In the Id.; dependent result their status.” ac jurisdiction,” as used in the Bottomly Passamaquoddy cord must, insofar as the lands are (1st Cir.1979). F.2d concerned, gauged light in of the Settle- jurisdiction integral We believe that is an agree. fact ment Act. We But the mere all, aspect sovereignty. of retained After power to the that the Settlement Act cedes sovereignty Court has held that retained in- mean, necessarily Rhode state does not power cludes of Indians to make and .the suggests, that lacks Island the Tribe similar in enforce their own substantive law internal thus, and, power “jurisdiction” lacks over the matters, including matters such as member- jur- Although grant of settlement lands. rules, rules, ship regula- and the inheritance power isdictional to the state in the Settle- tion domestic relations. See Santa Clara broad, supra ment Act is valid and rather see Pueblo, at at 1675 U.S. S.Ct. V(B), VI, Parts not believe that it is we do cases). (citing is cut from much Jurisdiction contrary, exclusive. To the we rule that the same fabric. jurisdiction Tribe retains concurrent over the course, shape sovereign- of retained Of lands and that such concurrent Thus, ty precisely has never been defined. it jurisdiction satisfy is sufficient to the corre- not cannot be said with assurance whether or sponding precondition applicability criminal, adjudicatory, regula- civil and civil Gaming Act. cloth, tory jurisdiction, aspects in whole are undertaking determining the task of sovereignty. of retained But we no have. jurisdictional whether the Act’s today map far-flung such frontiers. need nature, grant is exclusive in it must be re long portion present purposes, For so as the sovereignty membered that is “a jurisdiction encompassed within the natu- backdrop against applicable ... which the rights Narragansetts is substantial ral federal statutes must be read.” McClana “having enough satisfy Act’s Comm’n, han v. State Tax jurisdiction” prong, inquiry our is satisfied. 1257, 1262, 36 L.Ed.2d 129 93 S.Ct. backdrop necessary adjunct state has not contended that trea- This is a jurisdiction. ty impinges upon Tribe’s search for intent in the context of token, By support not legislation. Petro like the record will Indian-related See Cotton Mexico, jurisdiction Corp. finding of abandoned or lost leum v. New Wheeler, divestiture, other Indian claims settlement acts that see 435 two implicit through left, modeled after the 1087. We were to some extent Set- U.S. relatively question pieces then, confined tlement Act. Both of the latter with the Massachusetts, involving has legislation Tribe’s retained one whether the —one against involving grants jurisdic- It is this forfeited statute. Maine—contain been inqui- lens of our backdrop expressed that we focus the in parallel tion to section ry Act. language. 1771g § on the Settlement similar See 25 U.S.C. (1988); § 25 U.S.C. Yet both terms, By Act. its 2. The Settlement corresponding limits on In- acts also contain purposes to do no more the Settlement jurisdiction, conspicuously from dian absent state; jurisdiction to the it does grant than the Settlement Act. See jurisdiction, strip the Tribe of expressly 1725(f). 1771e(a); By placing § 25 U.S.C. jurisdiction from the Tribe to the transfer jurisdiction of stated limits on the retained adjectives state, suggestive like employ or tribes, imply the affected these newer acts “complete” describing “exclusive” grant that an unadorned to a jurisdictional grant. The omission of state —such as is embodied the Settlement particularly large in looms word “exclusive” imply in and Act —does not of itself exclusivi- light of that word elsewhere. For use ty- instance, modify is used to the word grant general jurisdictional 18 U.S.C. find to be of decre- We these factors (1988), analogous of the few stat- § 1162 one tory significance. strong congres Given jurisdiction” and criminal granting utes “civil bias, especially past sional noticeable in the lands to an individual state. over Indian generation, against policies pro that would tellingly, the word is used in the more Even assimilation, Bryan, mote Indian itself, which characterizes as Settlement Act at 387-88 & n. at 2110-11 & n. to federal courts of “exclusive” the given Congress’s pen and also fortunate jurisdiction to entertain certain constitutional great clarity expressing chant for when its phe- challenges. 25 U.S.C. area, intent see id. at 96 S.Ct. at attention, our utmost commands nomenon (“Congress express well how to kn[ows] particular “Congress includes lan- where directly its intent when that intent [is] a statute guage in one section of but omits sweep ... Indians to the full of state of the same it is in another section laws.”); Arnett, Mattz v. 504 n. Congress that generally presumed acts inten- 22, 2245, 22, 2258 n. 37 L.Ed.2d 92 tionally purposely disparate inclu- (1973) (observing Congress generally that Rodriguez sion v. United or exclusion.” employs language express of “clear termi 522, 525, 1391, States, 107 S.Ct. desired”) (collect nation when that result is (1987) (citations 1393, 533 omit- 94 L.Ed.2d ing examples), we are of the view that acts ted). diminishing sovereign rights of Indian alone in our reluctance to infer We are not strictly tribes should be construed. So here. suggestion to that exclusivity absent some unequivo Since the Settlement Act does not statutory text. At least one effect in the cally deprive articulate an intent to the Tribe found the omission of words jurisdiction, juris other court has grant hold that its of we “complete” in such a similar as “exclusive” diction to the The state non-exclusive. Cook, meaningful. therefore, See 922 context to be Narragansetts, have made the nec 1026, (concluding from the F.2d at essary showing. They threshold retain that language grant any such omission of portion they possess virtue lands, jurisdiction over Indian York of sovereign New people of their existence as a —a 232, § is non-exclu- in 25 U.S.C. portion satisfy embodied sufficient Act’s sive). jurisdiction” “having prong. analysis is also instructive. Comparative Exercising B. Power. Governmental juris- compare

We think it is sensible having jurisdiction, In in the addition to dictional embedded governmental power in jurisdictional grants Act encased in tribe must exercise with the

703 Meeting Gaming Act trigger the Act. mine how the and the -Settle- order to depend upon not requirement operate does ment Act in tandem. authority, upon the Tribe’s theoretical but

presence of concrete manifestations Principles Governing A. the Interface. authority. Consequently, inquiring an court warming reconciliatory to this jurisdictional history assay the must task, abjure preemption analysis un Cf., e.g., DeCoteau v. lands.18 below, Court, Narragcmsett dertaken see County District (1975). F.Supp. preemption 43 L.Ed.2d 300 at 804. The doctrine of S.Ct. Clause, Supremacy is derived- from U.S. inquiry governmental power The into need Const., 2, VI, applies Art. el. and therefore post-recognition peri- us. In the detain provisions, to conflicts between federal od, many the Tribe has taken strides hand, provisions, on one and state or local self-government. It has estab- direction of Cipollone Liggett the other hand. See housing authority, recognized eli- lished a as — Group, U.S., -, -, S.Ct. gible participate programs the Indian (1992). proper 120 L.Ed.2d Department Housing the federal and Ur- analysis mode of for cases that involve a C.F.R., Development, see 24 Part 905 ban perceived conflict between two stat federal func- It has obtained status as the Cook, implied repeal. utes that of See equivalent purposes tional of a state for (rejecting preemption analysis F.2d at 1033 having after been the Clean Water inappropriate resolving as a conflict be deemed the Environmental Protection Gaming Act tween the earlier federal Agency having governing body carrying “a statute); Singer, see also 1A Norman governmental pow- J. out substantial duties and 1377(e) (5th ers,” (1988), § being § Sutherland on 33 U.S.C. and as Stat. Const. 23.09 ed. 1993). Hence, pro- capable administering analytic path. an effective we follow that gram regulation, of water C.F.R. 130.6(d) (1993). by reiterating startWe the bed It has taken considerable principle implied repeals rock of federal

advantage Self-Determination (ISDA), statutes are disfavored. In the absence of a a stat- and Education Assistance command, contrary legislative specifically designed help “strong when two acts ute build Congress upon governments.” touch the same and stable tribal 25 U.S.C. 450a(b) (1988). both, give matter the courts should effect to Tribe administers programs pact Pipefitters health care under an if that is feasible. See Local 562 ISDA Service, and, States, with the Indian Health under 432 n. v. United Bureau, (1972); ISDA contracts with the administers 2272 n. Wall.) (11 programs encompassing job training, Tynen, edu- United States v. services, cation, services, community words, social 20 L.Ed. In other so conservation, protection, construed, public statutes, real estate long fairly as the two safety, coexistence, and the like. These activities ade- capable regard should courts quately evince that the Tribe exercises more Traynor Turnage, each as effective. See enough governmental power satisfy than 535, 547-48, 108 1372, 1381-82, 485 U.S. prong statutory (1988). the of the test. However, second “if the two 99 L.Ed.2d 618 in repugnant provi of their [acts] are IX. THE INTERFACE sions, act, any repealing the without latter clause, repug operates to the extent of the Because we have concluded that settle- the lands, nancy Tynen, of the first.” repeal auspices, ment under the Tribe’s meet (11 Wall.) outright Act, at 92. Even absent prerequisites Gaming those U.S. both the may repugnancy, repeal implied in cases lands are to the Act’s benefits and covers the entire remaining burdens. The task is to deter- where the later statute Act, ing justifiable expecta- perspective created 18. An also relevant to of the but has historical is "having jurisdiction” inquiry. “longstand- upset...." the ing assumption A tions which should not be Sioux, Rosebud jurisdiction only ... not dem- 430 U.S. at 97 S.Ct. at parties' understanding onstrates the of the mean- provisions, plain- portion touching gam- that subject “and embraces new ly showing ing. it was intended as a substi- Id.; act.” see also Posadas tute for the first respect gam- in Even over Bank, 497, 503-04, City v. National ing, the two laws do not collide head-on. 352, (1936); 349, 80 L.Ed. 351 Natu- 56 S.Ct. Thus, gaming, in connection with class III EPA, Council v.

ral Resources Defense Gaming negate the Act does not itself the (1st Cir.1987).19 1258, 1278 F.2d but, instead, jurisdiction, state’s channels the jurisdiction through state’s the tribal-state implied repeal oper The doctrine of compact process. only regard It is special embellishment in the ates without gaming Gaming class I and class II that the See, e.g., Indi Indian law context. Blackfeet juris- proprio vigore Act ex bestows exclusive Co., Tribe v. Montana Power an qualifying diction on tribes.20 And (9th denied, 1055, Cir.), cert. degrees Gaming Act these small 79, L.Ed.2d 56 109 S.Ct. properly may par- be said to have worked encouraging preemption in The rationale for repeal by implication preexisting tial govern context —that the federal the Indian statute. trustworthy guardian of Indi ment is a more than states —has no rele interests the clash, In the area which the two laws two federal stat

vance to a conflict between Gaming trumps the Act the Settlement Act utes. First, general for two reasons. rule is that where two acts are in irreconcilable Principles. Applying

B. conflict, prevails act later to the extent of Alaska, impasse.21 See Watt v. It is evident that the Settlement Act 101 S.Ct. Gaming partially Act are but not and the (11. Wall.) (1981); 92; Tynen, 78 U.S. see wholly repugnant. The Settlement Act as Const, Singer, 2B Sutherland on Stat. also rights. Among signed the state a number of 51.02, Second, supra, § keeping at 121. rights those no means one of the —and spirit governing with the of the standards rights epicenter negotiations at the implied repeals, courts should endeavor to leading up to the Act—was the non-exclusive antagonistic together read statutes jurisdiction, customary right in all to exercise aggregate manner two, that will minimize the dis- respects supra note save over Here, ruption congressional Gaming intent. read- lands. The Act leaves ing jurisdic- key compro two statutes to restrict state undisturbed the elements and, gaming tion Act. It over honors the mise embodied in the Settlement time, juris largely also at the same leaves intact the leaves the heart of adjustment Taking oppo- it demands an of Settlement Act diction —but untouched. whether, point apart 19. We in United 20. We take no addressed this States view on from the Brian, denied, (1st Cir.), might regulated a state have 617 F.2d 299 cert. comprise activities class I without L.Ed.2d 273 violating the caution, Free Exercise Clause. however, suggests We that while Brian impliedly repealed that statutes never be argues 21. The state the Settlement Act part, clarify see id. at more recent cases prevail specific should because it is the more see, point, e.g., Energy Corp. Hamp v. New Bristol palladium. statute. There are two cracks in this PUC, (1st Cir.1994). shire F.3d below, arguable noted As the court it is partial generally, rule is there can be no specific. Narragansett statute Tribe, more See implied repeal repugnancy. simply is absent F.Supp. fundamentally, at 804. More stating congressional way another of that intent upon the canon which the state relies is rooted in to a later act for an earlier one will substitute that, presumption legislatures the when enact every only ordinarily implied usurps if the later act laws, general do not have in mind by ground occupied the whole the first. See preexisting specific statute that touches on some Posadas, 296 U.S. at 56 S.Ct. at 352. If Where, here, aspect general subject. of the found, however, partial repugnancy a is then enacting Congress demonstrably the is aware of repeal preferred indeed, is in most cases man the earlier law at the time of the law’s later — enactment, part indulging dated'—for of the earlier statute is for there no basis presumption. plainly which is anathematic should be nullified. White reading statutes in such a tribal interests stake.” Mountain the two site tack — Bracker, 136, 145, Apache jurisdiction gam- Tribe v. U.S. tribal over way as to defeat 2578, 2584, L.Ed.2d 665 100 S.Ct. honor the ing the settlement lands —would inquiry such an Act, We cannot undertake great would do violence but Settlement abstract, and, thus, jurisdictional status purpose and to the essential structure lands remains in course of the settlement Because the former ill-defined Act. respects. But that is the nature of a certain disruption congressional of intent to keeps minimum, litigation; Article III of the Constitution for reading pre- is to be bare advisory issuing opinions courts from bids ferred. See, answering questions. e.g., hypothetical understanding our Based on Longshoremen’s International & Ware- interface, statutory pro we hold Boyd, housemen’s Union v. Gaming Regulatory Act of the Indian visions 447, 448, (1954); 74 S.Ct. 98 L.Ed. 650 full the lands in Rhode apply force to Mitchell, United Public Workers U.S. by in Island now held trust the United States 556, 564, 91 L.Ed. 754 Narragansétt for the Indian Tribe.22 exhausted, Having the limits of the case in controversy, depart stage, must leav Questions. C. Some Unanswered ing possibility litiga set future holding holding that re- Despite this —a tion. be disin- solves the case before us—it would parting, guid we offer a few words of genuous pretend that all the relevant questions yet ance. The crucial which must questions answered. have been While principally deal with be answered the nature aspects retains all of its retained sover- Tribe regulable may activities —or commonly compre- eignty, as that term is control, subject e.g., to state not —be jurisprudence, Congress, after hended in our control, zoning, advertising, lodging. traffic granted having to the state non-exclusive nondiscriminatory It is true that burdens via the over the settlement lands imposed on activities of non-Indians on Act, impliedly from that withdrew See, generally upheld. e.g., are Indian lands juris- grant, via the the state’s Washington Tribes Col Confederated Yet, gaming.23 the withdrawal diction over Reservation, ville Indian gaming over cannot be inter- (1980) 65 L.Ed.2d preted signify a withdrawal of all residual burdens). But it also (discussing tax is true jurisdiction. regulatory comprehensive federal that a governing particular typically a area This means that the state continues scheme authority. quantum regulatory leaves no room for additional 'state burdens possess a course, Apache by effort the state to exercise that area. See White Mountain Of authority hedged by 100 S.Ct. at 2586 barri residual side, by (finding regulation to be on one the Tribe’s state timbér ers on both sides: deemed rights sovereignty; preempted). on the other Which activities are retained side, therefore, depend, in congressionally approved regulable, probably will by the Tribe’s matter, instance, subject on which activities are authority specific the first over Although Testing integral gaming. namely, gaming. the sturdiness deemed gaming given core functions of class III on the one or the other of these barriers inquiry beyond Rhode Island’s require particularized case “a land will reach, state, federal, the distinction between core into the nature of the unilateral new issues or issues not 22. We decline to address certain constitutional ative introduce amici, appeal. claims advanced for these claims properly preserved for urged by plaintiffs in the court were not . According authority, to well below. established however, note, important jurisdic- It is amici can do no more than "assist the court achieving just III to restora- tion over class resolution of issues raised tion, by- part, negotiated or in as a in whole Boston, parties.” Lane v. Nat’l Bank First product compact. aof tribal-state (1st Cir.1989). In the court of F.2d appeals, prerog- usurp litigants’ amici cannot court, view, my péripheral functions is teneb- The errs in two re- functions First, rous, exactly spects. generally applica- it invokes a question of what is the as principle statutory interpretation— ble may may not do with Rhode Island clear, statutory language, if forecloses re- eventually that functions are respect to those legislative history course to an area peripheral. to be determined —in absolute, i.e., teaching where this is not so criss-crossing prove agoniz- lines If these statutes, read, literally two when federal are decipher, let alone to admin- ingly difficult Second, deigns in tension. when the court ister, many they no more or less so than “are later, legislative history consider the pervade that the law of of the classifications statute, supposedly impliedly repealing Washington jurisdiction.” v. Yakima Indian Act, it, Gaming characterizing it undervalues Nation, 99 S.Ct. “carefully snippets” “fail[ ] it as selected And in all L.Ed.2d clearly expressed legisla- to establish ... a events, jurisdictional issues remain sub- pp. tive intention.” Ante 697-698. intervention, judicial pursuant ject further apposite authority most recent Act, fact-specific in a more Gaming Alaska, I which am aware is Watt v. context, compact negotiations parties’ if the (1981), collapse. which two federal statutes contained irrecon- go further at this can no time. We We cilably different formulae for the distribution add, however, although opinion our to- of revenues from the lease or sale of minerals day questions and oth- answers some raises refuges. from wildlife The Court acknowl- ers, encourage protag- not mean to we do edged that the consolidated cases before it litigate parties’ ad onists to infinitum. “involve[d] two statutes each of which its need not be power baseline defined with applies literal terms to the facts before us.” where, here, by judicial decree exactitude as 266,101 There, here, Id. at S.Ct. at 1678. as negotiations compelled to enter out argument plain was made that the lan- emerge power. a new balance of of which will guage of the later statute controlled and step in the allocation of The next improper any made resort to his- parties, is in the hands of the over tory. designed through negotiations produce agreed statutory The Court lan- compact contemplated by tribal-state guage starting point, was the but stated that 2710(d). see 25 U.S.C. If cool meaning apparent “ascertainment of the thinking prevail, heads and fair-minded single the face of a statute need not end the step may the last. be inquiry ... plain meaning because the rule is The district court’s issuance of a manda- experience ‘rather an axiom of than a rule tory injunction compelling Rhode Island to law, preclude and does not consideration of good negotiation faith commence of a trib- persuasive if it evidence exists.’ The circum- compact al-state is affirmed. The declara- particular legisla- stances of the enactment of tory judgment entered in the district court may persuade Congress tion a court that did shall, however, be modified as nec- meaning not intend words of common to have essary holdings to reflect the contained in their literal effect.” Id. opinion. appellees. Costs to this (citations omitted). at 1677-78 and footnote The Court then stated: COFFIN, Judge Senior Circuit depreciating general Without rule (dissenting). irreconcilably [that the more recent of two respect conflicting governs], With for the effort understandable statutes decline to opinion, being evident in the court’s and with full read the statutes as in irreconcilable case, recognition seeking I of the closeness of this conflict without to ascertain the reluctantly accept Congress. am unable its evaluation actual intent of Our examina- legislative history legislative history guided by and its conclusion that tion of the “ implied repeal ‘repeals implication maxim: Act worked an another ” Mancari, favored,’ the Settlement Act. are not Morton v.

707 2482], linquished.” Cong.Ree. (daily quoting S12649 ed. at [94 at 549 S.Ct. U.S. 1988). 15, Bank, Sept. City 296 U.S. National Posadas v. 349, 352, 351] 80 L.Ed. S.Ct. [56 Immediately at the conclusion of the chair- (1936). legislature “The intention presentation, following colloquy man’s ” be ‘clear and manifest.’ repeal must place: took Co., Borden States v. United Mr. PELL. (1939), 182, 188,84 L.Ed. 181] [60 S.Ct. President, I to thank Mr. would like Henry, quoting Red Rock v. managers of S. the Indian 251] 27 L.Ed. [1 Regulatory particularly and the chair- give statutes to effect We must read the man of the on Indian Select Committee preserving if can do so while their each we Inouye], Affairs for their hard [Mr. work Mancari, supra, purpose. [417 and sense achieving patience and in a consensus on 2483]; Haggar S.Ct. at U.S.] [94 at important this measure. Helvering, Co. clarity, In the interests of I have asked L.Ed. 340 S.Ct. specifically protec- language citing Watt, at 101 S.Ct. at 1678. tions of the Rhode Island Indian Claims then, despite the absence of The Court (Public 95-395) Law history legislative for add- explanation from S. I understand that stricken 555. legisla- to the ing the word “minerals” later protections clearly will remain in these tion, legislative studying “the few mate- after effect. pertinent,” persuaded was “that Con- rials Mr. INOUYE. change pre- to work no gress intended my colleague, I thank the senior Senator 267,101 Id. at existing framework.” Pell], from Rhode Island and assure [Mr. protections him that the of the Rhode Is- (P.L. justices argued dissenting as three land Indian Claims Settlement Act case, 95-395), in this but did not does the court will remain effect and that the prevail. Narragansett clearly far as I have been able to ascer- So Indian Tribe will re- tain, civil, criminal, its subject has not been eroded since Watt main to the and regulatory of Rhode Is- issuance. laws of the State land. me, least, It clear to seems Mr. CHAFEE. history in record reveals President, I to thank Mr. too would like merely lack of a “clear and manifest” Inouye] the chairman and members of [Mr. repeal, Congressional but an affir- intent Affairs for the Select Committee on Indian pre-existing legislation mative intent that the cooperation their and assistance. An examination of the should remain intact. makes it clear that chairman’s statement express explanation, a history reveals an de- any high gaming, including bingo, stakes liberate, colloquy pre-planned with the floor remain to the (the Rhode Island will legislation chairman of manager of the civil, criminal, of our regulatory laws Affairs) Committee Select State. very exchange with first interested Sena- following introductory presentation. his tors Sept. Cong.Ree. (daily ed. S12650 1988). Inouye presentation, re- In his Senator Following colloquy other senators objective “determining

ferred both A collo- questions. or asked patterns regulation made comments what above, quoted between quy similar to that govern the conduct of activi- should chairman, established princi- Reid and the on Indian lands” and affirmed the Senator ties legisla- piece of original the extent to which an earlier ple “that virtue of their tribal dealing gambling devices would be sovereignty, rights certain tion tribes reserved by the bill under discussion! entering into treaties with the United altered when 1988). Sept. States, Cong.Ree. (daily ed. today, governments S12650 and that tribal scope exchange another concerned rights expressly were not re- Still retain all Rather, grandfather easily discounted. it to me under a be seems actions allowed entirely colloquy Cong.Rec. consistent with the with the S12651. clause. 134 Island senators. Rhode responsible and calculated floor Were such If, therefore, legislation managers assign proper weight to be we exchanges with account, history, legislative or no the character I think it unavoidable of little rendered process a sub- that we would to conclude that legislating would suffer have constriction, opportuni- Gaming implied repeal had no and valued Act effected stantial correction, clarification, If, course, ty minor fine the Settlement Act. the Con- injustice gress I do not think the were to feel that an had been tuning would be lost. party appellees, provide remedy such judiciary be a re- done could should through supplemental legislation.24 sult. case, therefore, reluctance, Certainly legisla- great the instant I dissent. history supports the conclusion that the tive thought implied

Rhode Island Senators unnecessary language because

repeal jurisdictional provi- that the

did not believe applied Act to the

sions of the Settle- That this accorded with the intent

ment Act. clear, equally seems unless we

of the Senate this traditional kind of collo- proclaim

are to leadership and mir- quy with mere smoke ORTIZ, Petitioner, Appellant, R. Juan rors. v. noting also worth that the collo- I think it Larry DUBOIS, Respondent, Appellee. sponsor quy includes a statement bill’s usually manager, whose remarks and floor No. 93-1656. weight. substantial See North are afforded Appeals, United States Court of Bell, Bd. Educ. v.

Haven First Circuit. 1912, 1920-21, L.Ed.2d (1982); United States Mass. Maritime Heard Nov. 1993. (1st Cir.1985). Academy, Decided March 1994. although colloquy, I clear and add point, is evidence of Congressional report intent. The Senate “nothing [Gaming

also mentions that any specific supersede restriction or

Act] will authority juris-

specific grant of Federal encompassed

diction to a State which statute, including Federal another [and

Rhode Island Claims Settlement Claims Settlement Act.”

Maine] Cong.2d 100th

S.Rep. No. Sess.

(1988), reprinted in 1988 U.S.C.C.A.N. (citations omitted). While the court report, issued before the

concludes that Pell, proposed Senator is of no

deletion relevance,

present I do not think it can so 1609(c), preempted conflicting similarly § has looked to Massa- Our circuit 13(c) history help a conflict between a feder- chusetts statute. The text of did not resolve question. Div. answer this Our close examination of al and a state statute. In Local Massachusetts, (1st however, Cir.1981), legislative history, persuaded us 666 F.2d 618 13(c) Congress were did not intend for this statute to asked to determine whether preempt conflicting Transportation Massachusetts law. Urban Mass Act of

Case Details

Case Name: Rhode Island v. Narragansett Indian Tribe

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 25, 1994

Citation: 19 F.3d 685

Docket Number: 93-1400

Court Abbreviation: 1st Cir.