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.

_________________________

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.
______________

_________________________

Thomas N. Tureen, with

_________________

whom Gregory W. Sample, Tureen &

___________________ _________

Sample, Richard B. Collins, David Overlock Stewart,

______ ___________________ ______________________

and Ropes &

_______

Gray were on brief, for appellant.

____

Francis A. Brown on brief for City of Calais, Maine, amicus

_________________
curiae.

Thomas D. Warren,
_________________

Assistant

Andrew Ketterer, Attorney

________________

Attorney

General,

General, with

and Wayne Moss,

___________

whom

Assistant

Attorney General, were on brief, for appellees.

_________________________

February 9, 1996
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

The

Passamaquoddy Tribe

(the

_____________

Tribe)

sued

(collectively,

to

compel

Maine or

Maine

the

and

the

State) to

governor

recognize its

of

Maine

asserted

right to avoid the prohibitions of Maine's criminal code, see 17___

Me. Rev. Stat. Ann.

953-954, and conduct high-stakes casino

gambling behind the shield

25

U.S.C.

of the Indian Gaming Regulatory

2701-2721, 18 U.S.C.

The federal district court

extend to Maine, and

Maine, 897 F. Supp. 632 (D. Me. 1995).

_____

I.
I.

1166-1168 (the Gaming Act).

decided that the Gaming Act

denied relief.

Act,

does not

See Passamaquoddy Tribe v.

___ ____________________

We affirm.

THE STATUTORY FRAMEWORK

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,

aff'd, 528
_____

667-69

(D.

Me.)

(reviewing

F.2d 370 (1st Cir. 1975).

Tribe

and the State negotiated

under

federal

auspices.

The

dispute's history),

After years of strife, the

a settlement of

arrangement

the land claims

was

designed

to

transform the legal status of the Maine tribes (the Passamaquoddy

Tribe

and

the

Penobscot

relationship between

Nation),

and

to

create

state and tribal authority.

unique

See Penobscot
___ _________

Nation v. Stilphen, 461 A.2d 478, 488-89 (Me.), appeal dismissed,

______
________
______ _________

464 U.S.

923 (1983).

ratified the

suit.

The Passamaquoddies

provisional pact

and Maine's

and the

legislature followed

See P.L. 1979, c. 732, codified at 30 Me.

___
________ __

6201-6214.

Penobscots

Rev. Stat. Ann.

In 1980, Congress cemented the terms of the accord

by passing the Settlement Act.

The

federal statute incorporated

the

parties' agreement

henceforth would

and

established the

govern matters

ground rules

of common political

that

concern to

the State and the two tribes.

Among other things, the Settlement Act rid the State of

all

Indian land

Penobscots, and

See
___

25 U.S.C.

addition,

claims and

submitted the

their tribal lands to

1721(b)(4),

measure of security against

hard-won gains.

The

the State's jurisdiction.

1723(b)

section 16(b) of the

Passamaquoddies, the

&

(c),

1725(a).

Settlement Act gave

the State a

future federal incursions upon these

It stated:

provisions

of any

federal

law enacted

after October 10, 1980 [the effective date of

the

Settlement

Act],

for

Indians, Indian nations,

the

benefit

or tribes or

of

bands

of Indians, which would affect or preempt the

application

of

In

the

laws of

the

State

of

Maine, . . . shall not apply within the State

of

Maine,

unless such provision of such

_________________________________

subsequently
enacted
Federal
law
is
_____________________________________________
specifically made applicable within the State
_____________________________________________
of Maine.
________

25 U.S.C.

1735(b) (emphasis supplied).

consideration for

its title to

its agreement:

The Tribe received fair

the Settlement

Act confirmed

designated reservation lands, memorialized

recognition of its

tribal status, and

the influx of millions

opened the floodgate

of dollars in federal subsidies.

federal

for

See 25
___

U.S.C.

1733.

Approximately

Gaming Act.

eight years later,

This statute establishes

Congress enacted the

a three-tiered regulatory

paradigm in respect to

gambling activities on Indian lands.

described

layers

these three

Indian Tribe, 19 F.3d

____________

S. Ct.

Narragansett
____________

685, 689-90 (1st Cir.), cert.

_____

298 (1994), and it

description here.

in Rhode Island v.
_____________

would be pleonastic

We

denied, 115
______

to rehearse that

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

___

must, upon

request

the

of

gaming (and

a federally

Maine does not),

recognized

and

it

self-

governing Indian tribe, negotiate a compact stipulating the terms

and conditions

gaming on

under

which the

Indian lands.

See
___

tribe can

25 U.S.C.

introduce Class

2710(d).

III

The statute

contains a series of fail-safe mechanisms designed to ensure that

states

do

not stall

faith.

See, e.g., id.

___ ____ ___

The

different

the negotiations

Act

in bad

and

the Gaming

Act

are

vastly

From a geographic standpoint, the former is

narrower in the sense that it

latter has

conduct them

2710(d)(7).

Settlement

in scope.

or

applies only in Maine whereas

national implications.

however, the Settlement

Act is

From

the

a political standpoint,

broader in that

it purposes

to

cover

virtually the

entire field

State

and the Indian tribes

concentrates exclusively on a

based there whereas

II.

THE GENESIS OF THE APPEAL

between the

the Gaming Act

particular kind of activity, i.e.,

gambling.

of relationships

II.

THE GENESIS OF THE APPEAL

Mindful

sponsored

of

the

bandwagon.

It chose

located near the Canadian

gaming

success

of

enterprise.

to

be

2710(d)(3)(A),

Indian-

a Maine

conducted

the Gaming Act

on

"Indian

lands,"

sought to add

Stat. Ann.

6205 (authorizing

incremental land

the

25

a designated

tribal lands.

that the Gaming Act

for its

requires Class III

to its inventory of

When formally apprised

municipality

border, as the preferred site

Because

the Tribe

Calais,

real estate

scotched

other

casinos, the Tribe decided in the early 1990s to climb

aboard the

nascent

meteoric

See
___

U.S.C.

parcel of

30 Me. Rev.

acquisitions).

of the Tribe's plans, the State concluded

did not apply within Maine's

proposed

legislature passed a bill

casino.

As

boundaries and

lagniappe,

that allowed tribal land in

the

state

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

court

compact under 25

of competent

extended to Maine.

jurisdiction

The

713,

the Gaming

if a

Act

1, codified at
________ __

6205(1)(c).

some procedural maneuvering,

the Tribe sued to

compact.

2710(d), or (2)

declared that

See Me. Laws 1993, ch.

___

30 Me. Rev. Stat. Ann.

After

U.S.C.

not material here,

compel the commencement of negotiations

defendants moved

for judgment

on the

for a

pleadings,

Fed. R. Civ. P. 12(c), asserting that the Gaming Act did not hold

sway within Maine.

among

other

things

The Tribe opposed the

that

the

Gaming

motion.

Act

It contended

reached

Maine,

as

elsewhere, because Congress had impliedly repealed the Settlement

Act vis-a-vis gaming activities

in

all events, had

conducted by Indian tribes, and,

made the Gaming

Act specifically applicable

within Maine.

Unimpressed

district

by the

court ruled that the

Tribe's armada

of

arguments, the

Gaming Act lacked

force in Maine

and entered judgment in the defendants' favor.

See Passamaquoddy
___ _____________

Tribe, 897 F. Supp. at 635.

_____

III.
III.

This appeal followed.

ANALYSIS
ANALYSIS

Our discussion of the issues proceeds in four parts.

A
A

This

interpretation.

case

By

turns

its

isolation, applies to any

possesses

terms, the

narrow margins.

The

Gaming

of

Act, if

See 25
___

U.S.C.

start and stop with the

which is federally

would be home free.

question

statutory

taken

in

federally recognized Indian tribe that

powers of self-governance.

Consequently, if we were to

the Tribe

on

2703(5).

Gaming Act,

recognized and self-governing

But this case cannot be confined within such

chief objective of statutory interpretation

is to give

Samuels,
_______

Tribe, 19
_____

take

into

effect to

113 S.

the legislative

Ct. 1119,

F.3d at 691.

account

legislative enactment,

will.

1122-23 (1993);

See Negonsott
___ _________

Narragansett Indian
___________________

To achieve this objective

the

tacit

assumptions

including not only

v.

that

a court must

underlie

general policies

but

also preexisting statutory provisions.

v.

Agler, 280
_____

Massachusetts,
_____________

113

U.S.

379, 383

(1929);

971 F.2d 818, 827 (1st

S. Ct. 974 (1993).

Put simply,

Congress does not legislate

See Ohio ex rel. Popovici

___ _____________________

Greenwood Trust Co.

____________________

v.

Cir. 1992), cert. denied,

_____ ______

courts must recognize that

in a vacuum.

See
___

Thinking Machines
_________________

Corp. v. Mellon Fin. Servs. Corp. # 1 (In re Thinking Machines),

_____
_______________________________________________________

67 F.3d 1021, 1025 (1st Cir. 1995).

Taking this

section

supra
_____

haploscopic view brings us

16(b) of the Settlement Act, 25 U.S.C.

p.3.

At first

glance, the

applicability of section 16(b) are

does

not dispute

nor could

it

immediately to

1735(b), quoted

conditions precedent

plainly satisfied.

that the

to the

The Tribe

Gaming Act

is a

"federal law enacted after

Indians,

would

of

October 10, 1980, for the

Indian nations, or

tribes or

bands of

benefit of

Indians, which

affect or preempt the application of the laws of the State

Maine."1

25 U.S.C.

section

16(b) provides

statute

unless
______

"applicable

16(b) is

1735(b).

that Maine

Congress

has

In such

will be

"specifically

within the State of Maine."

a savings clause that serves

acts as a warning signal to

circumstances,

exempt from

such a

made" the

statute

In other words, section

two related purposes.

later Congresses to stop, look,

listen before

weakening the

foundation on which

between Maine

and the Tribe rests.

courts that, if a later Congress

It

and

the settlement

At the same time, it signals

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 17A Me. Rev. Stat. Ann.

953-954.

Indians and intends

the law

to have effect

intent will be made manifest.

cannot decide the question

within Maine,

that

In view of these dual purposes, we

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

applicability (e.g., the

a statute

Gaming Act) with full

of general

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

the

status quo, the only reasonable conclusion that can be drawn

from

the later Congress's

from the text of the new

to

to alter

bring

Tribe,
_____

about such

19 F.3d

Congress is

at 704

an

decision to omit

any such expression

statute is that Congress did not desire

alteration.

n.21 (observing

See
___

Narragansett Indian
___________________

that when

an "enacting

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

grounds.

fashion

Tribe's principal

It posits

to

predecessor's

will,

and

constitutional

pale.

534

on constitutional

that giving effect to section 16(b)

tantamount

530,

is

rejoinder is

binding a

successor

therefore

careens

in this

Congress

to a

beyond

the

See, e.g., Glidden Co. v. Zdanok, 370 U.S.

___ ____ ___________
______

(1962); Reichelderfer
_____________

v.

Quinn,
_____

287

U.S. 315,

318

(1932); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135

________
____

(1810).

We

believe that this rejoinder distorts the reality of events.

Section 16(b) does

from

it

writing a new statute

to the Indian

statute fully

not prohibit a subsequent

Congress

reflecting new policies and applying

tribes in Maine.

effective in

Congress could

Maine through

the

make such a

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,

serves both

section 16(b)

to limn

the

is purely an

manner in

interpretive aid;

which subsequently

it

enacted

statutes should be written to accomplish a particular goal and to

color the way in

which such statutes thereafter should

In fine, section

16(b) binds subsequent

be read.

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

___ ____ _________________

Penit.
______

v. Marrero,
_______

417 U.S.

statute barred repeal of

Act shall

U.S.

48,

(1955)

subsequent legislation

provisions of

legislation

Bank,

296 U.S.

(1974) (earlier

provide"); Shaughnessy v.
___________

(earlier

statute

shall

[the earlier

shall do

659-60 n.10

certain penalties "unless the repealing

so expressly

52

653,

so expressly");

497, 501

directed

. supersede

statute] except

Pedreiro, 349
________

or

that

modify

to the extent

"[n]o

the

such

Posadas v.
_______

National City
_____________

(1936) (earlier statute

directed that

____

subsequent

except when

laws

"shall not

they specifically

apply

to

the Philippine

Islands,

so provide"); Great Northern Ry.

___________________

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

_______

case from the mine-run.

This means, of course, that we must read

the Settlement Act and the

and giving effect to

to

the

Gaming Act in pari passu.

____ _____

their plain meaning, we are

conclusion that

the latter

lacks force

Doing so,

led inexorably

within Maine's

boundaries.

B
B

The

Tribe

tentative conclusion

Gaming

Act

operative

generates several

that Congress

in

Maine.

other

did not

Its

responses

intend to

to our

make the

most ferocious

attack

suggests that section 16(b) need not be considered at all because

the Gaming

Act

impliedly repealed

tribal lands is concerned.

it

insofar as

gambling

The attack is easily repulsed.

on

We

principle

are

that

disfavored."

Rodriguez
_________

unequivocally

implied

committed

repeals

of

to

"the

federal

statutes

Narragansett Indian Tribe, 19 F.3d

__________________________

v. United States, 480

______________

U.S. 522,

bedrock

are

at 703; accord
______

524 (1987);

TVA v.
___

Hill, 437 U.S. 153, 189 (1978); United States v. Borden Co., 308
____
_____________
___________

U.S.

188,

statutes

198 (1939).

are capable

courts, absent

The

of

a clearly

contrary, to regard each

U.S.

repeal

535, 551 (1974).

by

implication

general rule

coexistence, it

is

is

that "when

the duty

expressed congressional intent

as effective."

Morton v.
______

The only other

(apart

from

10

of

two

the

to the

Mancari, 417
_______

satisfactory basis for a

clear

expression

of

Congress's

later

intent to repeal) is

a finding that

statutes are irreconcilable.

Morton,
______

703-04.

417 U.S. at 550;

"[I]f the

provisions,

the earlier and

See Hill, 437

___ ____

U.S. at 190;

Narragansett Indian Tribe,

_________________________

two [acts]

the

latter

act,

operates

to the

extent

of the

first."

United States
_____________

v.

are

repugnant in

without

any

U.S.

any of

repealing

repugnancy as

Tynen, 78
_____

19 F.3d at

a repeal

(11 Wall.)

their

clause,

of the

88,

92

(1870).

Of course, statutes can be irreconcilable even short of

outright repugnancy.

statute

covers

the

Thus, a repeal may

entire

be implied if

subject matter

"and

embraces

provisions, plainly showing that it was intended as

for

the first act."

Id.; see
___ ___

Narragansett
Indian Tribe,
____________________________

19

F.3d

conflict

application of

a later statute would

. . ., for

new

a substitute

also Posadas, 296 U.S. at 503-04;

____ _______

irreconcilable

when applied

does

a later

not

at

exist

703-04.

merely

But

because

an

the

"produce differing results

that no more than

states the problem."

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
__________
_________________

These

Indian law

precepts fit

context.

without

See, e.g.,
___ ____

special tailoring

in the

Narragansett Indian Tribe, 19

__________________________

F.3d at 704;

F.2d

In

Blackfeet Indian Tribe v. Montana Power Co.,

_______________________
__________________

1055, 1058 (9th Cir.),

this case, they

defeat the Tribe's

contains no evidence of

the Settlement Act,

design.

cert. denied, 488

_____ ______

attack.

U.S. 828 (1988).

The

Gaming Act

an intention to repeal section

let alone

838

a patent expression

16(b) of

of any

such

Indeed, when the 100th Congress passed the Gaming Act it

11

was

fully

cognizant

of

the

contemplated that the new

Settlement

Act

and

statute would not in any

apparently

way displace

the old:

[I]t

is the intention

nothing

in

supersede
specific

any

encompassed

. [the

Gaming

specific

grant

jurisdiction

of the Committee that

of
to

in

Federal
a

State

another

including the . .

Act]

will

restriction

or

authority

or

which

may

be

Federal

statute,

. [Maine] Indian

Claim[s]

Settlement Act.

S. Rep. No. 446, 100th Congress, 2d Sess. 12 (1988), reprinted in

_________ __

1988

U.S.C.C.A.N. 3071, 3082.2

guideposts in the Gaming

The

any suggestive

Act, coupled with the easy

of the two laws, effectively dispatches

repeal.

absence of

integration

the argument for implied

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

that

it

1978, 25

touched upon

U.S.C.

gambling

1701-1716,

activities.

to the

See
___

extent

Narragansett
____________

____________________

2We
Rhode

found this passage

Island

Indian

Claims

of no

help in

Settlement

Narragansett Indian Tribe, 19 F.3d

__________________________

the context
Act

at 700.

of

of the

1978.

See
___

The version of the

bill to which the report applied originally contained a provision

that explicitly
Gaming

Act,

exempted

yet,

prior

exonerative provision.
the

report "shed[] no

law

it actually

appended

to the

Rhode Island
to

enactment,

the reach

Congress

In that circumstance,
light on Congress's

enacted."
report

from

Id.
___

did not

By

of

the

removed

the

we concluded that

intent regarding the

contrast, the

contain

any similar

draft bill

language

regarding Maine (presumably because the legislators knew that the

Settlement

Act included

unnecessary).

a savings

Thus, unlike

clause making

in the

case

such language

of Rhode

Island, no

telltale chain of events taints the report's reference in respect

to Maine.

12

Indian Tribe,
____________

contained no

the

19

F.3d at

704-05.

provision comparable

literal terms

subjecting Indian

of

the two

gaming

to two

But

the

to section

Rhode Island

Act

16(b); therefore,

statutes created

incoherence by

mutually exclusive

regulatory

environments.

effect

Because we could find no feasible way to give full

to both

transpired.

acts, we

concluded that

an implied

repeal had

See id.
___ ___

Here,

in

contradistinction

to

the

situation

that

obtained in Rhode Island, section 16(b) satisfactorily harmonizes

the

Settlement

incoherence.

Act

and

the

Gaming

Act,

and

prevents

any

The Settlement Act governs the State's relationship

with the Tribe and will continue to do so without dilution unless

and

upon

until Congress, by later enactment, makes a new law touching

the

same

subject

matter

in

one

or

more

particulars

specifically applicable within Maine.

As the Gaming Act does not

meet

Act remains

this benchmark,

precludes

the Settlement

the operation of the Gaming

inviolate and

Act in Maine.

See Ysleta
___ ______

del Sur Pueblo

_______________

v. Texas,
_____

(holding that the Gaming

statute

Congress

granting Texas

36 F.3d

1325,

1335 (5th

Act did not impliedly repeal

jurisdiction over Indian

never indicated in the

Gaming Act that

Cir. 1994)

a federal

gaming because

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

13

things in

different

settings.

Without a

savings

clause like

section 16(b),

this

omission may indicate an intent to apply the Act across the board

especially

weighed,

in Narragansett Indian Tribe,

___________________________

Congress

and decided to discard, a specific exemption.

But when

a savings

only

if,

as

clause is in play,

as in this case,

the omission can

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

ultimate trump card."

interpretation, statutory

language

is

the

Narragansett Indian Tribe, 19 F.3d at 699.

_________________________

C
C

The Tribe has a fallback position.

even if

we give

full force

Gaming Act controls because

within Maine.

contention

general

definitional

bestow the

problem

effect to

section 16(b),

the

it is "specifically made applicable"

In its most primitive form, this thesis embodies a

that because

governmental

and

It maintains that,

power

Settlement Act.

Tribe satisfies

requirement

benefices of

with this

the

court can

infer

the Gaming

contention is

Once

federal

Act's

recognition

Congress's intent

Act upon

that it

the Gaming

the

entirely

that flaw is revealed, it

Tribe.

and

to

The

ignores the

becomes readily

apparent

effort

that the Tribe's contention is no more than a back-door

to

reintroduce

the

notion

of

implied

repeal.

Consequently, we reject it.

14

In a

related vein, the Tribe postulates

comprehensiveness

that the very

of the Gaming Act is itself enough to meet the

demands of section 16(b).

This asseveration depends heavily upon

the correctness of the

Bonds,
_____

349 U.S.

expression

302

proposition that the rule of

(1955), permits

Marcello v.
________

minimal particularity

to satisfy savings clauses like section 16(b).

of

We do

not believe that the proposition withstands scrutiny.

In

Marcello,
________

provision

of

the

Administrative

Procedure Act (APA) stipulated that statutes which purport either

to supersede or modify the APA's judicial review modalities

do so

"expressly."

See
___

at 305

559).

(quoting

later

APA

12,

now

Congress enacted

the

codified at

Immigration

and Nationality Act of 1952 (I&N Act).

I&N

U.S.C.

id.
___

must

Although the

Act did not override the APA's judicial review modalities in

so many

words, the

Supreme Court

concluded

that the

neoteric

statute's

review

deportation

procedure superseded

modalities because (1) the presence

extensive

review scheme,

similar

the

APA's judicial

in the I&N Act of an

in material

respects to

the

APA's review mechanisms, would otherwise be rendered meaningless,

and

(2) the

I&N Act

procedure which

contained an

it prescribed "shall

procedure for determining

Marcello,
________

explicit provision

be the sole

the deportability of

349 U.S. at 308-09.

that the

and exclusive

an alien."

See
___

These factors, together with some

instructive legislative history, formed the basis for the Court's

determination

that

the

subsequent

15

Congress

had

"expressly"

superseded

the APA's

deportation.3

modalities in

respect to

Id. at 310.
___

The Tribe's

sure,

judicial review

reliance on Marcello
________

the Gaming Act, like the I&N

is mislaid.

To

be

Act, is a statute of general

applicability that arguably constructs a comprehensive regulatory

regime for a defined

not

provide

subject.4

particularly

____________________

But this single

persuasive

similarity does

parallel

for

present

3The Court wrote that it could not

ignore the background of the 1952 immigration

legislation, its laborious adaptation
Administrative

Procedure

Act

of the
to

deportation process, the

specific points

which

the

deviations

Procedure
the

from

Act were made,

legislative

history

technique and of
and

methods
and

at

Administrative

the recognition in
of

this

the particular

the direction

the

in the

adaptive

deviations,

statute

that the

therein prescribed shall be the sole

exclusive

procedure

for

deportation

proceedings.

Marcello, 349 U.S. at 310.

________

Unless
employ

we

are

magical

effectuate
Administrative

an

The Court then concluded:

to require

the

passwords

in

exemption
Procedure

Congress to
order
from

Act, we

to
the

must hold

that the present statute expressly supersedes

the hearing provisions of that Act.

Id.
___

4The
in

State argues that the

the conventional sense.

merit; the Gaming Act

seek

and

tribes that

territories,
located

in

2710(b)(1).

Gaming

federal

2710(b)(1)

that

federal

proscribe

law

to tribes that do

recognition, see
___

not exercise

altogether, see id.

___ ___
which

purposes,

do

id.
___

states

activities
lands on

see
___

This argument is not totally without

has no application

attain formal

2703(5),

Gaming Act is not comprehensive

&

their

(d)(3)(A), tribal

lands

II

2710(b)(1)

and

Act,

like

assume, favorably
the

I&N

Act,

regulatory regime.

16

III

gaming

& (d)(1), or tribal

gambling,

We need not probe the point too deeply.

we simply

U.S.C.

jurisdiction over

Class

pretermits

25

not

to the

constitutes

see
___

id.
___

For present

Tribe, that
a

the

comprehensive

purposes.

beyond

Here, the

Tribe points to nothing

the comprehensive nature of

deportation

provisions

procedure delineated

of consequence

the Gaming Act.

in

the I&N

Unlike the

Act, none

of the

of the Gaming Act will be rendered meaningless if the

Act

excludes Maine.

has

not declared

Moreover,

the

unlike in the

Gaming Act

potentially applicable legislation.

legislative history of the

to

I&N Act, Congress

be "exclusive"

of

other

And, finally, unlike in the

I&N Act, there are no

large in the debate over the Gaming Act.

signposts writ

These differences serve

both to distinguish the instant case from Marcello and to put the
________

holding of that case

into perspective.

U.S. at 466 (explaining

legislation,

See Great Northern, 208

___ _______________

that the comprehensiveness of subsequent

without more, will not

satisfy a savings clause in

an earlier statute).

in employing

The point is not that Congress was derelict

one particular collocation

another, but, rather, that it chose

of words as

opposed to

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

____________________

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

Information Act,
need

not divulge

the

disclosure

5 U.S.C.
matters

provisions of

the

552(b)(3) (providing
that are

Freedom

of

that agencies

"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.

from the

usual canons

To this end, it

of construction

invites us to depart

and chart

the statutory

interface between the Gaming Act and the Settlement Act by resort

to

special interpretive

accords to Indian tribes.

preference

that

the law

sometimes

See, e.g., Amoco Prod'n Co. v. Village

___ ____ ________________
_______

of Gambell, 480 U.S.

__________

531, 555 (1987); South Carolina

______________

Indian Band, Inc., 476

_________________

U.S. 498, 506 (1986)

Rosebud Sioux Tribe v. Kneip, 430

____________________
_____

v. Catawba
_______

(collecting cases);

U.S. 584, 586-87 (1977).

We

decline the invitation.

The

reflects

autonomy.

rule of

strong

federal

interest

which the

in

Tribe alludes

safeguarding

See, e.g., Rosebud Sioux, 430 U.S. at 586-87.

___ ____ _____________

rule is

apposite

trumpet.

If

preferential

Band,
____

construction to

476

only

ambiguity

when Congress

does

interpretation never

U.S.

at 506;

not

has

blown

loom,

the

arises.

Rosebud Sioux,
______________

Narragansett Indian Tribe,

___________________________

19 F.3d

at

an

Indian

But the

uncertain

occasion

for

See Catawba Indian

___ _______________

430

691.

U.S. at

587-88;

When, as

now,

Congress

has

unambiguously

expressed

its

intent through

choice of statutory language, courts must read the relevant

according

to

embroidery.

ambiguity,

their unvarnished

So

it

is

the principle

meaning,

here:

of

since

without any

there

preferential

is

its

laws

judicial

no statutory

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.

U.S.C.

2710(b).

While this litigation was pending,

adopted

an ordinance authorizing the conduct

See
___

25

the Tribe

of bingo and other

Class II gaming activities on its reservation lands and submitted

this

proposal

to

the

Commission.

jurisdiction and granted the request.

of

a letter

dated

July 19,

1995,

chairman opined that the Gaming Act

asked

to,

the district court to

that determination.

The

Commission

asserted

The approval took the form

in which

the

Commission's

applied in Maine.

take judicial notice

See generally

The Tribe

of, and defer

Chevron U.S.A.

Inc. v.

___ _________

____________________

Natural Resources Defense Council, Inc.,

_________________________________________

(1984)

(discussing

deference

due to

467 U.S.

agency

837, 842-43

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,
___ __________

the

48 F.3d at 16.

Settlement Act

congressional intent.

the Gaming

as

a clear

Here, we read

and

Furthermore,

Act's failure

to mention

section 16(b) of

unambiguous expression

in light of

of

section 16(b),

Maine makes that

statute,

too, compelling evidence of

Congress's intent that it should not

apply in Maine.6
____________________

6The Tribe
ambiguity.
statute,

construes the Gaming

We do not agree.
the sound

Act's silence as

a latent

Given the tenor of the preexisting

of silence

here is

pregnant

with meaning.

19

In

this instance,

moreover,

there

is another

valid

reason

for declining to defer

appropriate

statute

under

else

only

that it administers.

845 (1986).

cannot

Chevron
_______

might

See CFTC v.
___ ____

be

Act.

in a

its

That

vacuum, and the

prerogatives,

role belongs

Interior, see, e.g., 25 U.S.C.

___ ____

delegated

when an

Deference is

agency

interprets

Schor, 478 U.S. 833,

_____

Here, the question of the Gaming Act's applicability

be addressed

Settlement

to the Commission.

by

the

Secretary

does

to

Commission, whatever

not

administer

the Secretary

of

the

the

1725, 1727(a), and has not been

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

we

note that

were needed

deference

is

inappropriate when

decisions.

See, e.g., Director, OWCP v. General Dynamics Corp.,

___ ____ _______________
______________________

78-79 (1st

Cir.

1992).

Commission's jurisdictional analysis

on

decrypting

Tribe.
_____

As

and

applying Marcello
________

courts, not

its

agencies,

In

reading

agency's

rests

F.2d 74,

upon

an

conclusion

980

predominantly

and we do not believe that it is

this instance,

depends almost

and

have

of judicial

the

exclusively

Narragansett Indian
____________________

special

expertise in

____________________

Taken
intent
Maine.

in

context,

that silence

logically

denotes

Congress's

not to make the Gaming Act specifically applicable within

20

interpreting case law, we

that amounts

are loath to defer to

to little more than

a determination

the Commission's understanding

of judicial precedents.

IV.
IV.

CONCLUSION
CONCLUSION

To recapitulate, the Tribe and the State negotiated the

accord

that is

now

memorialized in

the

Settlement Act

as

covenant

to

govern

valuable consideration

afforded

by section

their

future relations.

for the accord, including

16(b).

The Tribe

consideration, including land,

reaped

the

burdens

Maine

received

the protection

also received

money, and

benefits,

the

Tribe cannot

imposed under

the

Settlement Act

valuable

recognition.

expect

the

Having

corollary

to disappear

merely

because they have become inconvenient.

We need go no further.

make

the Gaming

Act specifically

We hold that Congress did

applicable within

not

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
________

21