USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 95-1922
PASSAMAQUODDY TRIBE,
Plaintiff, Appellant,
v.
STATE OF MAINE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
_________________________
Before
Selya, Boudin and Lynch,
Circuit Judges.
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_________________________
Thomas N. Tureen, with whom Gregory W. Sample, Tureen &
_________________ ___________________ _________
Sample, Richard B. Collins, David Overlock Stewart, and Ropes &
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Gray were on brief, for appellant.
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Francis A. Brown on brief for City of Calais, Maine, amicus
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curiae.
Thomas D. Warren, Assistant Attorney General, with whom
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Andrew Ketterer, Attorney General, and Wayne Moss, Assistant
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Attorney General, were on brief, for appellees.
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February 9, 1996
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SELYA, Circuit Judge. The Passamaquoddy Tribe (the
SELYA, Circuit Judge.
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Tribe) sued to compel Maine and the governor of Maine
(collectively, Maine or the State) to recognize its asserted
right to avoid the prohibitions of Maine's criminal code, see 17-
___
A Me. Rev. Stat. Ann. 953-954, and conduct high-stakes casino
gambling behind the shield of the Indian Gaming Regulatory Act,
25 U.S.C. 2701-2721, 18 U.S.C. 1166-1168 (the Gaming Act).
The federal district court decided that the Gaming Act does not
extend to Maine, and denied relief. See Passamaquoddy Tribe v.
___ ____________________
Maine, 897 F. Supp. 632 (D. Me. 1995). We affirm.
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I. THE STATUTORY FRAMEWORK
I. THE STATUTORY FRAMEWORK
In order to put this appeal into perspective, it is
necessary to juxtapose the Gaming Act and the Maine Indian Claims
Settlement Act of 1980, 25 U.S.C. 1721-1735 (the Settlement
Act).
In the early 1970s, the Tribe began earnestly to pursue
claims to nearly two-thirds of Maine's land mass. See Joint
___ _____
Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp.
_________________________________________ ______
649, 651-53, 667-69 (D. Me.) (reviewing dispute's history),
aff'd, 528 F.2d 370 (1st Cir. 1975). After years of strife, the
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Tribe and the State negotiated a settlement of the land claims
under federal auspices. The arrangement was designed to
transform the legal status of the Maine tribes (the Passamaquoddy
Tribe and the Penobscot Nation), and to create a unique
relationship between state and tribal authority. See Penobscot
___ _________
Nation v. Stilphen, 461 A.2d 478, 488-89 (Me.), appeal dismissed,
______ ________ ______ _________
2
464 U.S. 923 (1983). The Passamaquoddies and the Penobscots
ratified the provisional pact and Maine's legislature followed
suit. See P.L. 1979, c. 732, codified at 30 Me. Rev. Stat. Ann.
___ ________ __
6201-6214. In 1980, Congress cemented the terms of the accord
by passing the Settlement Act. The federal statute incorporated
the parties' agreement and established the ground rules that
henceforth would govern matters of common political concern to
the State and the two tribes.
Among other things, the Settlement Act rid the State of
all Indian land claims and submitted the Passamaquoddies, the
Penobscots, and their tribal lands to the State's jurisdiction.
See 25 U.S.C. 1721(b)(4), 1723(b) & (c), 1725(a). In
___
addition, section 16(b) of the Settlement Act gave the State a
measure of security against future federal incursions upon these
hard-won gains. It stated:
The provisions of any federal law enacted
after October 10, 1980 [the effective date of
the Settlement Act], for the benefit of
Indians, Indian nations, or tribes or bands
of Indians, which would affect or preempt the
application of the laws of the State of
Maine, . . . shall not apply within the State
of Maine, unless such provision of such
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subsequently enacted Federal law is
_____________________________________________
specifically made applicable within the State
_____________________________________________
of Maine.
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25 U.S.C. 1735(b) (emphasis supplied). The Tribe received fair
consideration for its agreement: the Settlement Act confirmed
its title to designated reservation lands, memorialized federal
recognition of its tribal status, and opened the floodgate for
the influx of millions of dollars in federal subsidies. See 25
___
3
U.S.C. 1733.
Approximately eight years later, Congress enacted the
Gaming Act. This statute establishes a three-tiered regulatory
paradigm in respect to gambling activities on Indian lands. We
described these three layers in Rhode Island v. Narragansett
_____________ ____________
Indian Tribe, 19 F.3d 685, 689-90 (1st Cir.), cert. denied, 115
____________ _____ ______
S. Ct. 298 (1994), and it would be pleonastic to rehearse that
description here. We focus instead on the third tier: Class III
gaming (a category that encompasses casino gambling).
The Gaming Act provides that, unless a state imposes an
outright ban on all Class III gaming (and Maine does not), it
___
must, upon the request of a federally recognized and self-
governing Indian tribe, negotiate a compact stipulating the terms
and conditions under which the tribe can introduce Class III
gaming on Indian lands. See 25 U.S.C. 2710(d). The statute
___
contains a series of fail-safe mechanisms designed to ensure that
states do not stall the negotiations or conduct them in bad
faith. See, e.g., id. 2710(d)(7).
___ ____ ___
The Settlement Act and the Gaming Act are vastly
different in scope. From a geographic standpoint, the former is
narrower in the sense that it applies only in Maine whereas the
latter has national implications. From a political standpoint,
however, the Settlement Act is broader in that it purposes to
cover virtually the entire field of relationships between the
State and the Indian tribes based there whereas the Gaming Act
concentrates exclusively on a particular kind of activity, i.e.,
4
gambling.
II. THE GENESIS OF THE APPEAL
II. THE GENESIS OF THE APPEAL
Mindful of the meteoric success of other Indian-
sponsored casinos, the Tribe decided in the early 1990s to climb
aboard the bandwagon. It chose Calais, a Maine municipality
located near the Canadian border, as the preferred site for its
nascent enterprise. Because the Gaming Act requires Class III
gaming to be conducted on "Indian lands," 25 U.S.C.
2710(d)(3)(A), the Tribe sought to add a designated parcel of
real estate to its inventory of tribal lands. See 30 Me. Rev.
___
Stat. Ann. 6205 (authorizing incremental land acquisitions).
When formally apprised of the Tribe's plans, the State concluded
that the Gaming Act did not apply within Maine's boundaries and
scotched the proposed casino. As a lagniappe, the state
legislature passed a bill that allowed tribal land in Calais to
be used for such a purpose (1) if the Tribe secured the city's
blessing and the Governor of Maine thereafter agreed to negotiate
a tribal-state compact under 25 U.S.C. 2710(d), or (2) if a
court of competent jurisdiction declared that the Gaming Act
extended to Maine. See Me. Laws 1993, ch. 713, 1, codified at
___ ________ __
30 Me. Rev. Stat. Ann. 6205(1)(c).
After some procedural maneuvering, not material here,
the Tribe sued to compel the commencement of negotiations for a
compact. The defendants moved for judgment on the pleadings,
Fed. R. Civ. P. 12(c), asserting that the Gaming Act did not hold
5
sway within Maine. The Tribe opposed the motion. It contended
among other things that the Gaming Act reached Maine, as
elsewhere, because Congress had impliedly repealed the Settlement
Act vis-a-vis gaming activities conducted by Indian tribes, and,
in all events, had made the Gaming Act specifically applicable
within Maine.
Unimpressed by the Tribe's armada of arguments, the
district court ruled that the Gaming Act lacked force in Maine
and entered judgment in the defendants' favor. See Passamaquoddy
___ _____________
Tribe, 897 F. Supp. at 635. This appeal followed.
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III. ANALYSIS
III. ANALYSIS
Our discussion of the issues proceeds in four parts.
A
A
This case turns on a question of statutory
interpretation. By its terms, the Gaming Act, if taken in
isolation, applies to any federally recognized Indian tribe that
possesses powers of self-governance. See 25 U.S.C. 2703(5).
___
Consequently, if we were to start and stop with the Gaming Act,
the Tribe which is federally recognized and self-governing
would be home free. But this case cannot be confined within such
narrow margins. The chief objective of statutory interpretation
is to give effect to the legislative will. See Negonsott v.
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Samuels, 113 S. Ct. 1119, 1122-23 (1993); Narragansett Indian
_______ ___________________
Tribe, 19 F.3d at 691. To achieve this objective a court must
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take into account the tacit assumptions that underlie a
legislative enactment, including not only general policies but
6
also preexisting statutory provisions. See Ohio ex rel. Popovici
___ _____________________
v. Agler, 280 U.S. 379, 383 (1929); Greenwood Trust Co. v.
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Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992), cert. denied,
_____________ _____ ______
113 S. Ct. 974 (1993). Put simply, courts must recognize that
Congress does not legislate in a vacuum. See Thinking Machines
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Corp. v. Mellon Fin. Servs. Corp. # 1 (In re Thinking Machines),
_____ _______________________________________________________
67 F.3d 1021, 1025 (1st Cir. 1995).
Taking this haploscopic view brings us immediately to
section 16(b) of the Settlement Act, 25 U.S.C. 1735(b), quoted
supra p.3. At first glance, the conditions precedent to the
_____
applicability of section 16(b) are plainly satisfied. The Tribe
does not dispute nor could it that the Gaming Act is a
"federal law enacted after October 10, 1980, for the benefit of
Indians, Indian nations, or tribes or bands of Indians, which
would affect or preempt the application of the laws of the State
of Maine."1 25 U.S.C. 1735(b). In such circumstances,
section 16(b) provides that Maine will be exempt from such a
statute unless Congress has "specifically made" the statute
______
"applicable within the State of Maine." In other words, section
16(b) is a savings clause that serves two related purposes. It
acts as a warning signal to later Congresses to stop, look, and
listen before weakening the foundation on which the settlement
between Maine and the Tribe rests. At the same time, it signals
courts that, if a later Congress enacts a law for the benefit of
____________________
1Among other things, the Gaming Act, if it applied, would
preempt various provisions of Maine's criminal law, including 17-
A Me. Rev. Stat. Ann. 953-954.
7
Indians and intends the law to have effect within Maine, that
intent will be made manifest. In view of these dual purposes, we
cannot decide the question of whether the Gaming Act extends to
Maine withoutfactoring section 16(b) intothe decisional calculus.
This realization gets the grease from the goose. The
text of the Gaming Act contains not so much as a hint that
Congress intended to make that Act specifically applicable within
Maine. Where, as here, Congress enacts a statute of general
applicability (e.g., the Gaming Act) with full knowledge that a
preexisting statute (e.g., the Settlement Act) contains a savings
clause warning pointedly that a specific reference or a similarly
clear expression of legislative intent will be required to alter
the status quo, the only reasonable conclusion that can be drawn
from the later Congress's decision to omit any such expression
from the text of the new statute is that Congress did not desire
to bring about such an alteration. See Narragansett Indian
___ ___________________
Tribe, 19 F.3d at 704 n.21 (observing that when an "enacting
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Congress is demonstrably aware of the earlier law at the time of
the later law's enactment, there is no basis for indulging" any
other presumption).
The Tribe's principal rejoinder is on constitutional
grounds. It posits that giving effect to section 16(b) in this
fashion is tantamount to binding a successor Congress to a
predecessor's will, and therefore careens beyond the
constitutional pale. See, e.g., Glidden Co. v. Zdanok, 370 U.S.
___ ____ ___________ ______
530, 534 (1962); Reichelderfer v. Quinn, 287 U.S. 315, 318
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8
(1932); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810). We
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believe that this rejoinder distorts the reality of events.
Section 16(b) does not prohibit a subsequent Congress
from writing a new statute reflecting new policies and applying
it to the Indian tribes in Maine. Congress could make such a
statute fully effective in Maine through the use of explicit
language, by otherwise offering a patent indication of its intent
to accomplish that result, or, indeed, by first repealing section
16(b). Thus, section 16(b) is purely an interpretive aid; it
serves both to limn the manner in which subsequently enacted
statutes should be written to accomplish a particular goal and to
color the way in which such statutes thereafter should be read.
In fine, section 16(b) binds subsequent Congresses only to the
extent that they choose to be bound.
The sockdolager is that the Court regularly has upheld
and given effect to such provisions, see, e.g., Warden, Lewisburg
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Penit. v. Marrero, 417 U.S. 653, 659-60 n.10 (1974) (earlier
______ _______
statute barred repeal of certain penalties "unless the repealing
Act shall so expressly provide"); Shaughnessy v. Pedreiro, 349
___________ ________
U.S. 48, 52 (1955) (earlier statute directed that "[n]o
subsequent legislation shall . . . supersede or modify the
provisions of [the earlier statute] except to the extent such
legislation shall do so expressly"); Posadas v. National City
_______ _____________
Bank, 296 U.S. 497, 501 (1936) (earlier statute directed that
____
subsequent laws "shall not apply to the Philippine Islands,
except when they specifically so provide"); Great Northern Ry.
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9
Co. v. United States, 208 U.S. 452, 456 (1908) (similar to
___ ______________
Marrero); United States v. Reisinger, 128 U.S. 398, 401-02 (1888)
_______ _____________ _________
(similar to Marrero), and we see nothing that distinguishes this
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case from the mine-run. This means, of course, that we must read
the Settlement Act and the Gaming Act in pari passu. Doing so,
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and giving effect to their plain meaning, we are led inexorably
to the conclusion that the latter lacks force within Maine's
boundaries.
B
B
The Tribe generates several other responses to our
tentative conclusion that Congress did not intend to make the
Gaming Act operative in Maine. Its most ferocious attack
suggests that section 16(b) need not be considered at all because
the Gaming Act impliedly repealed it insofar as gambling on
tribal lands is concerned. The attack is easily repulsed.
We are unequivocally committed to "the bedrock
principle that implied repeals of federal statutes are
disfavored." Narragansett Indian Tribe, 19 F.3d at 703; accord
__________________________ ______
Rodriguez v. United States, 480 U.S. 522, 524 (1987); TVA v.
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Hill, 437 U.S. 153, 189 (1978); United States v. Borden Co., 308
____ _____________ ___________
U.S. 188, 198 (1939). The general rule is that "when two
statutes are capable of coexistence, it is the duty of the
courts, absent a clearly expressed congressional intent to the
contrary, to regard each as effective." Morton v. Mancari, 417
______ _______
U.S. 535, 551 (1974). The only other satisfactory basis for a
repeal by implication (apart from a clear expression of
10
Congress's intent to repeal) is a finding that the earlier and
later statutes are irreconcilable. See Hill, 437 U.S. at 190;
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Morton, 417 U.S. at 550; Narragansett Indian Tribe, 19 F.3d at
______ _________________________
703-04. "[I]f the two [acts] are repugnant in any of their
provisions, the latter act, without any repealing clause,
operates to the extent of the repugnancy as a repeal of the
first." United States v. Tynen, 78 U.S. (11 Wall.) 88, 92
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(1870).
Of course, statutes can be irreconcilable even short of
outright repugnancy. Thus, a repeal may be implied if a later
statute covers the entire subject matter "and embraces new
provisions, plainly showing that it was intended as a substitute
for the first act." Id.; see also Posadas, 296 U.S. at 503-04;
___ ___ ____ _______
Narragansett Indian Tribe, 19 F.3d at 703-04. But an
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irreconcilable conflict does not exist merely because the
application of a later statute would "produce differing results
when applied . . ., for that no more than states the problem."
Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
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These precepts fit without special tailoring in the
Indian law context. See, e.g., Narragansett Indian Tribe, 19
___ ____ __________________________
F.3d at 704; Blackfeet Indian Tribe v. Montana Power Co., 838
_______________________ __________________
F.2d 1055, 1058 (9th Cir.), cert. denied, 488 U.S. 828 (1988).
_____ ______
In this case, they defeat the Tribe's attack. The Gaming Act
contains no evidence of an intention to repeal section 16(b) of
the Settlement Act, let alone a patent expression of any such
design. Indeed, when the 100th Congress passed the Gaming Act it
11
was fully cognizant of the Settlement Act and apparently
contemplated that the new statute would not in any way displace
the old:
[I]t is the intention of the Committee that
nothing in . . . [the Gaming Act] will
supersede any specific restriction or
specific grant of Federal authority or
jurisdiction to a State which may be
encompassed in another Federal statute,
including the . . . [Maine] Indian Claim[s]
Settlement Act.
S. Rep. No. 446, 100th Congress, 2d Sess. 12 (1988), reprinted in
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1988 U.S.C.C.A.N. 3071, 3082.2 The absence of any suggestive
guideposts in the Gaming Act, coupled with the easy integration
of the two laws, effectively dispatches the argument for implied
repeal.
Our opinion in Narragansett Indian Tribe is not to the
__________________________
contrary. There, we concluded that Congress, in passing the
Gaming Act, had impliedly repealed the Rhode Island Indian Claims
Settlement Act of 1978, 25 U.S.C. 1701-1716, to the extent
that it touched upon gambling activities. See Narragansett
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____________________
2We found this passage of no help in the context of the
Rhode Island Indian Claims Settlement Act of 1978. See
___
Narragansett Indian Tribe, 19 F.3d at 700. The version of the
__________________________
bill to which the report applied originally contained a provision
that explicitly exempted Rhode Island from the reach of the
Gaming Act, yet, prior to enactment, Congress removed the
exonerative provision. In that circumstance, we concluded that
the report "shed[] no light on Congress's intent regarding the
law it actually enacted." Id. By contrast, the draft bill
___
appended to the report did not contain any similar language
regarding Maine (presumably because the legislators knew that the
Settlement Act included a savings clause making such language
unnecessary). Thus, unlike in the case of Rhode Island, no
telltale chain of events taints the report's reference in respect
to Maine.
12
Indian Tribe, 19 F.3d at 704-05. But the Rhode Island Act
____________
contained no provision comparable to section 16(b); therefore,
the literal terms of the two statutes created incoherence by
subjecting Indian gaming to two mutually exclusive regulatory
environments. Because we could find no feasible way to give full
effect to both acts, we concluded that an implied repeal had
transpired. See id.
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Here, in contradistinction to the situation that
obtained in Rhode Island, section 16(b) satisfactorily harmonizes
the Settlement Act and the Gaming Act, and prevents any
incoherence. The Settlement Act governs the State's relationship
with the Tribe and will continue to do so without dilution unless
and until Congress, by later enactment, makes a new law touching
upon the same subject matter in one or more particulars
specifically applicable within Maine. As the Gaming Act does not
meet this benchmark, the Settlement Act remains inviolate and
precludes the operation of the Gaming Act in Maine. See Ysleta
___ ______
del Sur Pueblo v. Texas, 36 F.3d 1325, 1335 (5th Cir. 1994)
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(holding that the Gaming Act did not impliedly repeal a federal
statute granting Texas jurisdiction over Indian gaming because
Congress never indicated in the Gaming Act that it intended to
rescind the previous grant of jurisdiction), cert. denied, 115 S.
_____ ______
Ct. 1358 (1995).
To sum up, we do not find it surprising that the lack
of any express indicium of a contrary congressional intent in the
text of the Gaming Act means different things in different
13
settings. Without a savings clause like section 16(b), this
omission may indicate an intent to apply the Act across the board
especially if, as in Narragansett Indian Tribe, Congress
___________________________
weighed, and decided to discard, a specific exemption. But when
a savings clause is in play, as in this case, the omission can
only mean that Congress desired the terms of the earlier statute
to prevail. In the final analysis, the differing outcomes in the
two New England states bear witness to the truism that, "[i]n the
game of statutory interpretation, statutory language is the
ultimate trump card." Narragansett Indian Tribe, 19 F.3d at 699.
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C
C
The Tribe has a fallback position. It maintains that,
even if we give full force and effect to section 16(b), the
Gaming Act controls because it is "specifically made applicable"
within Maine. In its most primitive form, this thesis embodies a
contention that because the Tribe satisfies the Gaming Act's
general definitional requirement federal recognition and
governmental power a court can infer Congress's intent to
bestow the benefices of the Gaming Act upon the Tribe. The
problem with this contention is that it entirely ignores the
Settlement Act. Once that flaw is revealed, it becomes readily
apparent that the Tribe's contention is no more than a back-door
effort to reintroduce the notion of implied repeal.
Consequently, we reject it.
14
In a related vein, the Tribe postulates that the very
comprehensiveness of the Gaming Act is itself enough to meet the
demands of section 16(b). This asseveration depends heavily upon
the correctness of the proposition that the rule of Marcello v.
________
Bonds, 349 U.S. 302 (1955), permits minimal particularity of
_____
expression to satisfy savings clauses like section 16(b). We do
not believe that the proposition withstands scrutiny.
In Marcello, a provision of the Administrative
________
Procedure Act (APA) stipulated that statutes which purport either
to supersede or modify the APA's judicial review modalities must
do so "expressly." See id. at 305 (quoting APA 12, now
___ ___
codified at 5 U.S.C. 559). A later Congress enacted the
Immigration and Nationality Act of 1952 (I&N Act). Although the
I&N Act did not override the APA's judicial review modalities in
so many words, the Supreme Court concluded that the neoteric
statute's deportation procedure superseded the APA's judicial
review modalities because (1) the presence in the I&N Act of an
extensive review scheme, similar in material respects to the
APA's review mechanisms, would otherwise be rendered meaningless,
and (2) the I&N Act contained an explicit provision that the
procedure which it prescribed "shall be the sole and exclusive
procedure for determining the deportability of an alien." See
___
Marcello, 349 U.S. at 308-09. These factors, together with some
________
instructive legislative history, formed the basis for the Court's
determination that the subsequent Congress had "expressly"
15
superseded the APA's judicial review modalities in respect to
deportation.3 Id. at 310.
___
The Tribe's reliance on Marcello is mislaid. To be
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sure, the Gaming Act, like the I&N Act, is a statute of general
applicability that arguably constructs a comprehensive regulatory
regime for a defined subject.4 But this single similarity does
not provide a particularly persuasive parallel for present
____________________
3The Court wrote that it could not
ignore the background of the 1952 immigration
legislation, its laborious adaptation of the
Administrative Procedure Act to the
deportation process, the specific points at
which deviations from the Administrative
Procedure Act were made, the recognition in
the legislative history of this adaptive
technique and of the particular deviations,
and the direction in the statute that the
methods therein prescribed shall be the sole
and exclusive procedure for deportation
proceedings.
Marcello, 349 U.S. at 310. The Court then concluded:
________
Unless we are to require the Congress to
employ magical passwords in order to
effectuate an exemption from the
Administrative Procedure Act, we must hold
that the present statute expressly supersedes
the hearing provisions of that Act.
Id.
___
4The State argues that the Gaming Act is not comprehensive
in the conventional sense. This argument is not totally without
merit; the Gaming Act has no application to tribes that do not
seek and attain formal federal recognition, see 25 U.S.C.
___
2703(5), tribes that do not exercise jurisdiction over their
territories, see id. 2710(b)(1) & (d)(3)(A), tribal lands
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located in states that proscribe Class II and III gaming
activities altogether, see id. 2710(b)(1) & (d)(1), or tribal
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lands on which federal law pretermits gambling, see id.
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2710(b)(1). We need not probe the point too deeply. For present
purposes, we simply assume, favorably to the Tribe, that the
Gaming Act, like the I&N Act, constitutes a comprehensive
regulatory regime.
16
purposes. Here, the Tribe points to nothing of consequence
beyond the comprehensive nature of the Gaming Act. Unlike the
deportation procedure delineated in the I&N Act, none of the
provisions of the Gaming Act will be rendered meaningless if the
Act excludes Maine. Moreover, unlike in the I&N Act, Congress
has not declared the Gaming Act to be "exclusive" of other
potentially applicable legislation. And, finally, unlike in the
legislative history of the I&N Act, there are no signposts writ
large in the debate over the Gaming Act. These differences serve
both to distinguish the instant case from Marcello and to put the
________
holding of that case into perspective. See Great Northern, 208
___ _______________
U.S. at 466 (explaining that the comprehensiveness of subsequent
legislation, without more, will not satisfy a savings clause in
an earlier statute). The point is not that Congress was derelict
in employing one particular collocation of words as opposed to
another, but, rather, that it chose not to include in the Gaming
Act any indication that it meant to make the statute specifically
___
applicable within Maine.5
Though their arguments are unavailing when weighed on
an evenly calibrated scale, the Tribe seeks to tip the balance by
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5We find puzzling the Tribe's reliance on a line of cases,
see, e.g. Sims v. CIA, 471 U.S. 159, 167 (1985), decided under an
___ ____ ____ ___
exemption from the disclosure provisions of the Freedom of
Information Act, 5 U.S.C. 552(b)(3) (providing that agencies
need not divulge matters that are "specifically exempted" by
statute), to support its ipse dixit that Congress need only enact
____ _____
a comprehensive statute to mute the call of section 16(b). That
exemption merely incorporates by reference the secrecy provisions
of other statutes, and, unlike section 16(b), plays no
discernible role in construing the application of a subsequently
enacted statute.
17
altering the calibration. To this end, it invites us to depart
from the usual canons of construction and chart the statutory
interface between the Gaming Act and the Settlement Act by resort
to a special interpretive preference that the law sometimes
accords to Indian tribes. See, e.g., Amoco Prod'n Co. v. Village
___ ____ ________________ _______
of Gambell, 480 U.S. 531, 555 (1987); South Carolina v. Catawba
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Indian Band, Inc., 476 U.S. 498, 506 (1986) (collecting cases);
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Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-87 (1977). We
____________________ _____
decline the invitation.
The rule of construction to which the Tribe alludes
reflects a strong federal interest in safeguarding Indian
autonomy. See, e.g., Rosebud Sioux, 430 U.S. at 586-87. But the
___ ____ _____________
rule is apposite only when Congress has blown an uncertain
trumpet. If ambiguity does not loom, the occasion for
preferential interpretation never arises. See Catawba Indian
___ _______________
Band, 476 U.S. at 506; Rosebud Sioux, 430 U.S. at 587-88;
____ ______________
Narragansett Indian Tribe, 19 F.3d at 691. When, as now,
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Congress has unambiguously expressed its intent through its
choice of statutory language, courts must read the relevant laws
according to their unvarnished meaning, without any judicial
embroidery. So it is here: since there is no statutory
ambiguity, the principle of preferential construction is not
triggered.
D
D
The Tribe's last argument has a different spin. Under
the Gaming Act, Class II gaming conducted on tribal lands must be
18
sanctioned by the National Indian Gaming Commission. See 25
___
U.S.C. 2710(b). While this litigation was pending, the Tribe
adopted an ordinance authorizing the conduct of bingo and other
Class II gaming activities on its reservation lands and submitted
this proposal to the Commission. The Commission asserted
jurisdiction and granted the request. The approval took the form
of a letter dated July 19, 1995, in which the Commission's
chairman opined that the Gaming Act applied in Maine. The Tribe
asked the district court to take judicial notice of, and defer
to, that determination. See generally Chevron U.S.A. Inc. v.
___ _________ ____________________
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
_________________________________________
(1984) (discussing deference due to agency interpretations);
Strickland v. Commissioner, Me. Dep't of Human Servs., 48 F.3d
__________ _________________________________________
12, 16 (1st Cir.) (similar), cert. denied, 116 S. Ct. 145 (1995).
_____ ______
The district court demurred. The Tribe assigns error. We
discern none.
It is transpicuously clear that, under Chevron, no
_______
deference is due if Congress has spoken directly to the question.
See Strickland, 48 F.3d at 16. Here, we read section 16(b) of
___ __________
the Settlement Act as a clear and unambiguous expression of
congressional intent. Furthermore, in light of section 16(b),
the Gaming Act's failure to mention Maine makes that statute,
too, compelling evidence of Congress's intent that it should not
apply in Maine.6
____________________
6The Tribe construes the Gaming Act's silence as a latent
ambiguity. We do not agree. Given the tenor of the preexisting
statute, the sound of silence here is pregnant with meaning.
19
In this instance, moreover, there is another valid
reason for declining to defer to the Commission. Deference is
appropriate under Chevron only when an agency interprets a
_______
statute that it administers. See CFTC v. Schor, 478 U.S. 833,
___ ____ _____
845 (1986). Here, the question of the Gaming Act's applicability
cannot be addressed in a vacuum, and the Commission, whatever
else might be its prerogatives, does not administer the
Settlement Act. That role belongs to the Secretary of the
Interior, see, e.g., 25 U.S.C. 1725, 1727(a), and has not been
___ ____
delegated by the Secretary to the Commission. Though the
Commission may have expertise in the conduct of gaming activities
on tribal lands, see, e.g., Shakopee Mdewakanton Sioux Community
___ ____ ____________________________________
v. Hope, 16 F.3d 261, 264 (8th Cir. 1994), we cannot take it upon
____
ourselves to assume, without any evidence, that Congress intended
to entrust the Commission with reconciling the Gaming Act and
other statutes in the legislative firmament.
If more were needed and we do not believe that it is
we note that deference is inappropriate when an agency's
conclusion rests predominantly upon its reading of judicial
decisions. See, e.g., Director, OWCP v. General Dynamics Corp.,
___ ____ _______________ ______________________
980 F.2d 74, 78-79 (1st Cir. 1992). In this instance, the
Commission's jurisdictional analysis depends almost exclusively
on decrypting and applying Marcello and Narragansett Indian
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Tribe. As courts, not agencies, have special expertise in
_____
____________________
Taken in context, that silence logically denotes Congress's
intent not to make the Gaming Act specifically applicable within
Maine.
20
interpreting case law, we are loath to defer to a determination
that amounts to little more than the Commission's understanding
of judicial precedents.
IV. CONCLUSION
IV. CONCLUSION
To recapitulate, the Tribe and the State negotiated the
accord that is now memorialized in the Settlement Act as a
covenant to govern their future relations. Maine received
valuable consideration for the accord, including the protection
afforded by section 16(b). The Tribe also received valuable
consideration, including land, money, and recognition. Having
reaped the benefits, the Tribe cannot expect the corollary
burdens imposed under the Settlement Act to disappear merely
because they have become inconvenient.
We need go no further. We hold that Congress did not
make the Gaming Act specifically applicable within Maine, and
that, therefore, the Tribe is not entitled to an order compelling
the State to negotiate a compact for Class III gaming.
Affirmed.
Affirmed
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21