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Commonwealth v. Wampanoag Tribe of Gay Head

United States Court of Appeals, First Circuit

April 10, 2017

THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH); THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.; THE AQUINNAH WAMPANOAG GAMING CORPORATION, Defendants, Appellees, CHARLES D. BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts; MAURA T. HEALEY, in her capacity as Attorney General of the Commonwealth of Massachusetts; STEPHEN P. CROSBY, in his capacity as Chairman of the Massachusetts Gaming Commission, Third-Party Defendants.


          Scott D. Crowell, with whom Crowell Law Offices-Tribal Advocacy Group, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP were on brief, for appellants.

          Judy B. Harvey, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom John C. Cruden, Assistant Attorney General, Sam Hirsch, Principal Deputy Assistant Attorney General, Mary Gabrielle Sprague and Amber Blaha, Attorneys, Environment and Natural Resources Division, Dan Lewerenz, Office of the Solicitor, Department of the Interior, and Maria Getoff, Office of the General Counsel, National Indian Gaming Commission, were on brief, for United States as amicus curiae.

          Felicia H. Ellsworth, with whom Claire M. Specht, James L. Quarles, III, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellee Aquinnah/Gay Head Community Association, Inc.

          Ronald H. Rappaport, with whom Michael A. Goldsmith and Reynolds, Rappaport Kaplan & Hackney, LLC were on brief, for appellee Town of Aquinnah.

          Juliana deHaan Rice, Assistant Attorney General, Government Bureau, with whom Bryan F. Bertram, Assistant Attorney General, and Maura T. Healey, Attorney General, were on brief, for appellee Commonwealth of Massachusetts and Third-Party Defendants.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Appellant, the Wampanoag Tribe of Gay Head (Aquinnah)[1] (the "Tribe"), a federally recognized Indian tribe, seeks to have gaming pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, on its trust lands in Dukes County, Massachusetts (the "Settlement Lands"). Appellees, the Commonwealth of Massachusetts (the "Commonwealth"), the town of Aquinnah (the "Town") and the Aquinnah/Gay Head Community Association[2] argue that any gaming on the Settlement Lands should be subject to state, rather than federal, laws and regulations. The district court, on summary judgment, found for the Appellees. The district court reasoned that IGRA did not apply, because the Tribe had failed to exercise sufficient governmental power; and that even if the Tribe had exercised sufficient governmental power, the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95 (codified at 25 U.S.C. §§ 1771-1771i) (the "Federal Act"), which provides that the Settlement Lands are subject to state laws and regulations (including gaming laws and regulations), governed. Because we find that the Tribe has exercised more than sufficient governmental power to satisfy the requirements of IGRA, and the Federal Act has been impliedly repealed by IGRA in relevant part, we reverse.

         I. Background

         A. Factual History

         1. The Settlement Agreement and the Federal Act

         The Tribe has lived on Martha's Vineyard since before the European colonization of New England, and has continued to reside there to the present day. The Town was incorporated by the Commonwealth in 1870 as the town of Gay Head, and has since been renamed Aquinnah. In 1974, the Tribe sued the Town in federal court, asserting title to certain lands and "seeking ejectment of record title holders." The Commonwealth and the Association intervened.

         In November 1983, these parties signed a Memorandum of Understanding (the "Settlement Agreement"). The Settlement Agreement conveyed the Settlement Lands (approximately 485 acres) to the Tribe. In exchange, the Tribe gave up its claims to other lands and dismissed its lawsuit. Before this Settlement Agreement could enter into force, it had to be implemented by Congress.

         On August 18, 1987, Congress implemented the Settlement Agreement by passing the Federal Act. See Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95 (codified at) 25 U.S.C. §§ 1771-1771i. The Federal Act provides, inter alia, that the Settlement Lands "shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth . . . and the [Town] . . . (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance)." 25 U.S.C. § 1771g.

         The parties all agree that "[t]he Commonwealth, the Town, and the Tribe have each exercised jurisdiction over the Settlement Lands pursuant to the provisions of the Federal Act."

         2. Cabazon and IGRA

         On February 25, 1987 -- approximately six months before Congress passed the Federal Act -- the Supreme Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which held that California -- which permitted certain forms of regulated gambling -- could not civilly regulate tribal bingo games because such regulation "would impermissibly infringe on tribal government." Id. at 221-22. This decision did, however, leave space for states that criminally prohibit gaming to prohibit it on Indian lands within their jurisdictions.

         In response, on October 17, 1988, Congress enacted IGRA. See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024, 2034 (2014) ("Congress adopted IGRA in response to [Cabazon], which held that States lacked any regulatory authority over gaming on Indian lands."). IGRA provides, inter alia, "for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1).

         IGRA "sets in place a sophisticated regulatory framework" for gambling on Indian lands, dividing gaming into three classes: Class I gaming, which includes traditional Native American gaming, is always permitted; Class II gaming, which includes bingo, is permitted so long as the state does not generally proscribe gaming of that type; and Class III gaming, which includes casino gambling, is permitted only pursuant to a compact between a tribe and the state. Id. § 2710; Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689-90 (1st Cir. 1994). Congress established the National Indian Gaming Commission ("NIGC") to administer IGRA; its responsibilities include approving Class II gaming ordinances submitted to it by Indian tribes. 25 U.S.C. §§ 2704, 2710(b)(1)(B).

         3. The Tribe's Pursuit of Gaming on Settlement Lands

         On November 22, 2011, Governor Deval Patrick signed "An Act Establishing Expanded Gaming in the Commonwealth" into law, which allowed gaming in establishments licensed by the Commonwealth. On that same day, the Tribe submitted Gaming Ordinance No. 2011-01 to the NIGC for approval, which set forth tribal rules governing gaming. On February 4, 2012, the Tribe adopted Gaming Ordinance No. 2011-01, and on February 21, 2012, the NIGC "announc[ed] the approval of Gaming Ordinance No. 2011-01 for gaming on Indian Lands as defined by IGRA." On March 5, 2012, the Tribe began ...

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