COMMONWEALTH OF MASSACHUSETTS; AQUINNAH/GAY HEAD COMMUNITY ASSOCIATION, INC.; TOWN OF AQUINNAH, MA, Plaintiffs, Appellees,
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.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor IV, U.S. District Judge]
D. Crowell, with whom Crowell Law Offices-Tribal Advocacy
Group, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP
were on brief, for appellants.
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
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
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
the Wampanoag Tribe of Gay Head (Aquinnah) (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 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.
The Settlement Agreement and the Federal Act
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.
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.
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.
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
Cabazon and IGRA
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
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).
"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. §§
The Tribe's Pursuit of Gaming on Settlement
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