United States Department of the Interior 

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Jo-Ann Shyloski, Associate General Counsel 

National Indian Gaming Commission 

1441 L St. NW, Suite 9100 

Washington, DC 20005 

Re: Wampanoag Tribe of Gay Head (Aquinnah) Site-Specific Gaming Ordinance 

Dear Ms. Shyloski: 

This letter is in response to the National Indian Gaming Commission Office of General Counsel's letter 

dated June 13, 2013, requesting our opinion regarding whether the Wampanoag Tribal Council of Gay 

Head, Inc., Indian Claims Settlement Act of 1987 ("Settlement Act"), 25 U.S.C. §§ 1771-1771 i, prohibits 

the Wampanoag Tribe of Gay Head (Aquinnah) ("Tribe'') from gaming on Settlement Lands. Less than 

twenty years ago, the First Circuit in Rhode Island v. Narragansett, 19 F.3d 685 (I st Cir. 1994), was also 

tasked with determining whether a tribe's settlement act prohibited gaming. It created a two-step 

analysis, which we employ here, first asking whether a tribe possesses the requisite jurisdiction for the 

Indian Gaming Regulatory Act ("IGRA") to apply to the Settlement Lands and next asking whether the 

Settlement Act and IGRA can be read together or whether IGRA impliedly repealed aspects of the 

Settlement Act regarding gaming. 

It is this Office's opinion that the Settlement Act did not divest the Tribe of jurisdiction over the 

Settlement Lands and, therefore, IGRA applies to such lands. Further, IGRA impliedly repealed portions 

of the Settlement Act related to gaming. 

BACKGROUND 

The Tribe achieved federal recognition as an Indian Tribe on February 10, 1987.1 Subsequently, the 

United States took 485 acres of land into trust for the benefit ofthe Tribe pursuant to the Settlement Act. 

The lands are located on the southwest portion of Martha's Vineyard, an island off the mainland coast of 

Massachusetts, within the boundaries of the Town of Aquinnah (formerly the Town of Gay Head prior to 

1998). This letter concerns those trust lands. 

The Tribe brought litigation in 1974 against the Town of Gay Head ('Town"), the Commonwealth of 

Massachusetts ("State"), and the Taxpayers Association of Gay Head, Inc., which ultimately resulted in 

Congress enacting the Settlement Act. The Tribe claimed the defendants violated the 1790 NonIntercourse Act, which requires federal approval for any extinguishment of Indian title, and sought to 

obtain title to over 3,000 acres of land on Martha's Vineyard2 

1 Final Determination for Federal Acknowledgment of the Wampanoag Tribal Council of Gay Head, Inc., 52 Fed. 

Reg. 4,193 (Feb. 10, 1987). 2 Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head, Civil Action No. 74-5826-G (D. Mass. 1974). 
The parties reached an agreement in 1983 entitled Joint Memorandum of Understanding Concerning 

Settlement of the Gay Head Massachusetts Indian Land Claims ("Settlement Agreement"). The 

Settlement Agreement established the parameters of a land transfer to the Tribe from public lands owned 

by the Town and from private lands, together known as the "Settlement Lands."3 In exchange for the 

Settlement Lands, the Tribe relinquished its right to bring any aboriginal claims to title in the State 4 

The Settlement Agreement made State law applicable on the Settlement Lands 5 It set forth the parties' 

understanding that all State laws would apply to the Settlement Lands6 and that the Tribe's exercise of 

jurisdiction over the Settlement Lands was limited to that permitted in the Settlement Agreement.' 

However, certain activities were expressly excluded from application of any State jurisdiction, including 

hunting activities of tribal members and taxation on the public lands transferred from the Town.' 

The Settlement Agreement's finality was contingent on the State legislature and Congress enacting 

implementing statutes.' The State enacted the requisite legislation on September 18, 1985. 10 The State 

statute carried over the Settlement Agreement's conveyance of Settlement Lands and also applied State 

law to the Settlement Lands with exceptions regarding hunting and taxation." 

On August 18, 1987, subsequent to the Tribe's federal recognition, Congress enacted the Settlement 

Act, 12 which incorporated the Settlement Agreement by reference. 13 The Settlement Act provided for the 

3 See Joint Memorandum of Understanding Concerning Settlement of Gay Head, Massachusetts Indian Lands 

Claims~~ 4-7 (Sept. 28, 1983) [hereinafter Settlement Agreement]. 4 Settlement Agreement~ 8( d). 5 Although the Settlement Agreement, State statute, and Settlement Act also include Town law where referring to 

State law's application on the Tribe's land, we will refer only to State law throughout this analysis. This is because 

local law is a derivative of State law and does not warrant a separate analysis. Rhode Island v. Narragansett Indian 

Tribe, 19 F.3d 685,696 (1st Cir. 1994) ("[W]e see nothing to be gained by giving separate treatment to the question 

of local jurisdiction. As a general matter, municipal authority is entirely derivative of state authority . ... 

[D]elegated powers, of necessity, cannot exceed those possessed by the delegator.") (internal citation omitted). 6 Settlement Agreement~ 3 ("Under no circumstances, including any future recognition of the existence of an Indian 

tribe in the Town of Gay Head, shall the civil or criminal jurisdiction of the Commonwealth of Massachusetts, or 

any of its political subdivisions, over the settlement lands, or any land owned by the Tribal Land Corporation in the 

Town of Gay Head, or the Commonwealth of Massachusetts, or any other Indian lands in Gay Head, or the 

Commonwealth of Massachusetts, be impaired or otherwise altered .... "). 

'ld.~ll. 

8 /d. ~~II, 13. 

ld.~2. 10 An Act to Implement the Settlement of Gay Head Indian Lands Claims, MASS. GEN. LAws ch. 227, §§ 1-{i 

(I 985). 11 /d. § 4 ("All federal, state, and town laws shall apply to the settlement lands subject only to the following special 

provisions ... (a) The settlement lands shall not be treated as real property subject to taxation ... but the Tribal 

council or any successor in interest will make payments in lieu of property taxes to the town of Gay Head or other 

appropriate entity if and when improvements are placed on those lands ... (b) The Tribal council or any successor 

in interest will have the right, after consultation with appropriate state and local officials, to establish its own 

regulations concerning hunting, but not trapping or fishing, by Indians on the settlement lands by means other than 

firearms or crossbow .... "); id. § 5 ("Except as provided in this act, all laws, statutes and bylaws of the 

commonwealth, the town of Gay Head, and any other properly constituted legal body, shall apply to all settlement 

lands and any other lands owned now or at any time in the future by the Tribal council or any successor 

organization."). 

12 Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95, 101 

Stat. 704 (1987) (codified at 25 U.S.C. §§ 1771-177li). 13 25 U.S.C. § 177ld(c) ("[A]ny other lands which are hereafter held in trust for the Wampanoag Tribal Council of 

Gay Head, Inc., or any successor, or individual member, shall be subject to this subchapter, the Settlement 

Agreement and other applicable laws."). 

2 
purchase of "Private Settlement Lands," which were to consist of 177 acres of privately held land and 

additional land contiguous to those acres located within the Town. 14 The 485 acres of land at issue here 

constitute Private Settlement Lands. It also provided for the transfer of"Public Settlement Lands" from 

the Town, including the Cranberry Lands, the Face of the Cliffs, and the Herring Creek located in the 

Town. 15 Together, the Settlement Act referred to these lands as "Settlement Lands." 16 Last, the 

Settlement Act contained a provision referring to lands that do not qualify as Settlement Lands and that 

are located outside the Town. 17 

The Settlement Act carried forward the grant of jurisdiction to the State over the Settlement Lands. In 

Section 1771 g, the Settlement Act provides: 

Except as otherwise expressly provided in this Act or the State Implementing Act, the 

settlement lands and any other land that may now or hereafter be owned by or held in 

trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, shaH be 

subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth 

of Massachusetts and the town of Gay Head, Massachusetts (including those laws and 

regulations which prohibit or regulate the conduct of bingo or any other game of 

chance). 18 

This Section grants the State jurisdiction over the Settlement Lands, and it specificaHy notes the inclusion 

of its gaming laws and regulations as among the applicable laws and regulations. 19 

In addition to granting the State jurisdiction over the Settlement Lands, the Settlement Act also limited 

the Tribe's exercise of its jurisdiction over the lands by requiring such exercise to conform to State and 

federal law. Section 177le(a) of the Settlement Act states: 

The Wampanoag Tribal Council of Gay Head, Inc., shaH not have any jurisdiction over 

nontribal members and shaH not exercise any jurisdiction over any part of the settlement 

lands in contravention of this Act, the civil regulatory and criminal laws of the 

Commonwealth of Massachusetts, the town of Gay Head, Massachusetts, and applicable 

Federallaws.20 

14 !d.§§ 177id(a), 177id(c), 177lf(6). 15 !d. §§ 177id(f), 1771 f(7); see also Settlement Agreement~ 4. 16 25 U.S.C. § 177If(8). 

17 !d. § 1771 d(g) ("The terms of this section shall apply to land in the town of Gay Head. Any land acquired by the 

Wampanoag Tribal Council of Gay Head, Inc., that is located outside the town of Gay Head shall be subject to all 

the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts."). 18 !d. § 177lg. 

19 The Settlement Act separately reserves from State jurisdiction hunting activities of tribal members and 

taxation on the Public Settlement Lands. !d. § 1771c(a)(l)(B) (providing, with respect to hunting, "the 

Wampanoag Tribal Council of Gay Head, Inc. shall have the authority, after consultation with appropriate 

State and local officials, to regulate any hunting by Indians on the settlement lands that is conducted by 

means other than firearms or crossbow to the extent provided in, and subject to the conditions and 

limitations set forth in, the Settlement Agreement"); id. § 1771e(d) (providing exemption for "taxation or 

lien or 'in lieu of payment' or other assessment by the [State or its political subdivisions] to the extent 

provided by the Settlement Agreement: Provided, however, That such [taxation] will only apply to lands 

which are zoned and utilized as commercial: Provided further, That this section shall not be interpreted as 

restricting the Tribe from entering into an agreement with the town of Gay Head to reimburse such town 

for the delivery of specific public services on the tribal lands"). 20 !d.§ 177le(a). 

3 
Thus, in this Section, the Settlement Act requires the Tribe to avoid violating State law in its exercise of 

jurisdiction over the Settlement Lands. 

On October 19, 1988, a little over one year and two months after it enacted the Tribe's Settlement Act, 

Congress enacted IGRA. 21 Among IGRA's stated purposes was to establish a new regulatory framework 

for tribal gaming on Indian lands within a tribe's jurisdiction." As a general matter, IGRA is not 

applicable to all land owned by a tribe. First, IGRA requires that the lands quality as Indian lands.23 

IGRA's definition of Indian lands includes: (I) land located within the exterior boundaries of a tribe's 

reservation; (2) trust land over which a tribe exercises governmental power; and (3) restricted fee land 

over which a tribe exercises governmental power. 24 Second, IGRA requires that a tribe possess legal 

jurisdiction over the lands. 25 There is a general presumption that tribes possess legal jurisdiction 

over land located within the exterior boundaries of their own reservations. 26 Once a tribe has 

21 Indian Gaming Regulatory Act, Pub. L. No. 100-497, I02 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-

2721). 

22 See 25 U.S.C. §§ 2701-2702, 2710; Rhode Islandv. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir. 1994) 

("The Gaming Act is an expression of Congress's will in respect to the incidence of gambling activities on Indian 

lands."). 

23 See 25 U.S.C. §§ 2703(4), 2710; 25 C.F.R. § 50!.2. 24 IGRA defines "Indian lands" to mean "all lands within the limits of any Indian reservation" or "any lands title to 

which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any 

Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe 

exercises governmental power." 25 U.S.C. § 2703(4). NIGC's regulations further define "Indian lands" and specify 

that a tribe must exercise governmental power over land not within the limits of its reservation. 25 C.P.R. § 502.12 

(defining "Indian lands" as "land within the limits of an Indian reservation," "land over which an Indian tribe 

exercises governmental power ... [and is] [h ]eld in trust by the United States for the benefit of any Indian tribe or 

individual," or "land over which an Indian tribe exercises governmental power ... [and is] [h]eld by an Indian tribe 

or individual subject to restriction by the United States against alienation"). 

25 25 U.S.C. § 27IO(b)(l) ("An Indian tribe may engage in, or license and regulate, class II gaming on Indian lands 

within such tribe's jurisdiction, if [it meets certain specified criteria] .... "); id § 271 0( d)(! )(A)(i) ("Class Ill 

gaming activities shall be lawful on Indian lands only if such activities are-{ A) authorized by an ordinance or 

resolution that--{i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands [and 

meets other specified criteria] .... "); id. § 27IO(d)(3)(A) ("Any Indian tribe having jurisdiction over the Indian 

lands upon which a class Ill gaming activity is being conducted, or is to be conducted, shall request the State in 

which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact 

governing the conduct of gaming activities .... "). See also Narragansett Indian Tribe, I 9 F.3d at 701 (citing 

Sections 27IO(d)(3)(A) and 2710(b)(l) of!GRA as creating IGRA'sjurisdictional requirement). 26 Letter tram Penny Coleman, Acting General Counsel, Nat' I Indian Gaming Comm'n, to Bonnie Akaka-Smith, 

Chairwoman, Pyramid Lake Paiute Tribe, and Brian Sandoval, Attorney General, State of Nevada, re Gaming on fee 

land at Pyramid Lake Paiute Indian Reservation, at 4 (Sept. 27, 2005) ("A tribe is presumed to have jurisdiction over 

its own reservation. Therefore, if the gaming is to occur within a tribe's reservation, under IGRA, we can presume 

that jurisdiction exists."), available at 

http://www.nigc.gov/LinkClick.aspx?link~NIGC+Uploads%2findianlands%2f42 _pyramidlakepauitetribe.pdf&tabid 

~I20&mid~957 [hereinafter Pyramid Lake Paiute Indian Lands Determination]; Letter from Penny Coleman, 

Acting General Counsel, Nat' I Indian Gaming Comm'n, to Judith Kammins Albietz, Attorney, Buena Vista 

Rancheria ofMe-Wuk Indians, at 6 (June 30, 2005) ("A tribe is presumed to have jurisdiction over its own 

reservation."), available at 

http://www. nigc .gov /LinkCI ick.aspx?link~ NI GC +Up loads%2findian lands%2fD5 _ buenavstarachramewukindns. pdf 

&tabid~I20&mid~957 [hereinafter Buena Vista Indian Lands Determination]; Letter from Cindy Shaw, Nat'! 

Indian Gaming Comm'n, to Acting General Counsel, Nat'! Indian Gaming Comm'n, re Tribal jurisdiction over 

gaming on fee land at White Earth Reservation, at 8 (Mar. 14, 2005) ("The land at issue in this matter ... falls 

within the 'limits' of the reservation .... In different circumstances, we would need to engage in a more lengthy 

analysis. If the land at issue were trust land, rather than within the limits of the reservation, we would need to. 

prove theoretical jurisdiction. Since the land at issue ... is not trust land, however, we need examine only one issue: 

4 
established that its land qualifies as Indian lands and that the tribe possesses jurisdiction over that landmaking it eligible for IGRA gaming-the tribe has the exclusive right to regulate gaming on that land, 

and states can only extend their jurisdiction through a tribal-state compact." 

IGRA places "dual limitations" on trust and restricted fee land that a tribe must adhere to. 28 The 

provisions of IGRA related to class I and class II gaming mandate a tribe must have jurisdiction over the 

land, and the provision defining the elements of"Indian lands" mandates a tribe must exercise 

governmental power over the land.29 Courts have found that possession of legal jurisdiction over land is a 

threshold requirement to the exercise of governmental power required for trust and restricted fee land.30 

Whether a tribe possesses legal jurisdiction over a particular parcel of land often hinges on 

construing settlement or restoration acts that limit tribes' jurisdiction31 or on a determination of 

which tribe possesses jurisdiction over a particular parcel of land32 A showing of governmental 

whether the land is within the limits of the reservation.") (internal citations omitted) [hereinafter White Earth Indian 

Lands Opinion]. However, there have been instances in which the Department conducted a jurisdictional analysis 

for reservation land when a federal statute limited the tribe's jurisdiction. See, e.g, Letter from Penny Coleman, 

Acting General Counsel, Nat' I Indian Gaming Comm 'n, to Herman Dillon, Sr., Chairman, Puyallup Tribal Council, 

re Status of Tribal Property for Gaming Purposes, at 2 (Nov. 12, 2004) ("The NIGC has previously concluded that 

tribal fee land located within the boundaries of a reservation constitutes Indian land over which a tribe has 

jurisdiction. Thus, in those circumstances, we have concluded that a tribe may conduct gaming on those lands. The 

situation at hand is considerably different, however, because of a Settlement Act, an Agreement between the Tribe, 

local governments in Pierce County and the United States (the Settlement Agreement), an MOU, and a Tribal-State 

Compact amendment."), available at 

htrp://www. nigc .gov /LinkCiick.aspx?I ink~ NI GC +Uploads%2findianlands%2 f4 I _puyall uptribe. pdf&tabid~ I 20&mi 

d~957 [hereinafter Puyallup Indian Lands Determination]. The Department also ensures that reservation land is 

within the particular tribe's jurisdiction rather than another tribe's jurisdiction. See, e.g, White Earth Indian Lands 

Opinion, at I 0; Pyramid Lake Paiute Indian Lands Determination, at 5; Buena Vista Indian Lands Determination, at 

12. 

27 !d. § 270 1(5) ("The Congress finds that ... Indian tribes have the exclusive right to regulate gaming activity on 

Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State 

which does not, as a matter of criminal law and public policy, prohibit such gaming activity."); Indian Gaming 

Regulatory Act, S. Rep. No. 100-446, at446 (1988). 28 Narragansett Indian Tribe, 19 F.3d at 701. 29 !d. (citing 25 U.S.C. § 27 I O(d)(3)(A) and 25 U.S.C. § 27IO(b)(l) as creating the jurisdictional requirement and 25 

U.S.C. § 2703(4) as creating the exercise of governmental power requirement). 30 See Kansas v. United States, 249 F.3d 1213, 1229 (lOth Cir. 2001) ( "[B]efore a sovereign may exercise 

governmental power over land, the sovereign, in its sovereign capacity, must have jurisdiction over that land."); 

Rhode Island v. Narragansett Indian Tribe, I 9 F.3d 685, 701-03 (I st Cir. I 994), superseded by statute, 25 U.S.C. § 

I 708(b), as stated in Narragansett Indian Tribe v. National indian Gaming Commission, 158 F.3d 1335 (D.C. Cir. 

1998) ("In addition to having jurisdiction, a tribe must exercise governmental power in order to trigger [IGRA]."); 

Miami Tribe of Oklahoma v. United States, 5 F. Supp. 2d 1213, 12 I 7-I 8 (D. Kan. I 998)(stating a tribe must have 

jurisdiction in order to exercise governmental power); Miami Tribe of Oklahoma v. United States, 927 F. Supp. 

1419, 1423 (D. Kan. 1996) ("[T]he NIGC implicitly decided that in order to exercise governmental power for 

purposes of25 U.S.C. § 2703(4), a tribe must first have jurisdiction over the land."). 31 See, e.g, Narragansett Indian Tribe, 19 F.3d at 701-02 (determining whether the Narragansett Indian Tribe 

possessed the requisite jurisdiction to trigger IGRA in light of its settlement act); Puyallup Indian Lands 

Determination, at 4-7 (determining whether the Puyallup Tribe possessed jurisdiction over its land in light of its 

settlement act). 32 Letter from Lawrence S. Roberts, General Counsel, Nat' I Indian Gaming Comm'n, et al., to Tracie Stevens, 

Chairwoman, Nat' I Indian Gaming Comm'n, re Kialegee Tribal Town: Proposed Gaming Site in Broken Arrow, 

Oklahoma, at 10-13 (May 24, 2012) (determining whether it was the Kialegee Tribal Town or the Muscogee 

(Creek) Nation that possessed the requisite jurisdiction over the land), available at 

htrp://www.nigc.gov/LinkCiick.aspx?link~NIGC+Uploads%2freadingroom%2fgameopinions%2fkialegeetribaltown 

5 
power requires a concrete manifestation of authority and is a factual inquiry.33 For trust or restricted fee 

land to qualifY as Indian lands over which a tribe possesses jurisdiction, the "dual limitations" must both 

be met. 

In 1997, the Department dealt for the first time with lGRA's affects on the Tribe's Settlement Act. The 

Assistant Secretary -Indian Affairs ("Assistant Secretary") issued a letter to the Tribe's attorney 

analyzing whether the Tribe possessed the requisite jurisdiction to trigger IGRA on lands not constituting 

Settlement Lands and located outside the Town. 34 He concluded that IGRA permitted gaming on such 

lands. 35 The Assistant Secretary did not evaluate IGRA's applicability to Settlement Lands. 

On November 22, 20 II, the Tribe enacted a class I and class II gaming ordinance. The ordinance did not 

specifY any particular lands for gaming, except to say that the Tribe would game on lands that qualified as 

Indian lands.36 Accordingly, on February 21, 2012, NIGC approved the ordinance with the caveat that it 

was approved for gaming on Indian lands only. Shortly thereafter, on April?, 2012, the Tribe approved 

the amendment to the ordinance at issue here. 37 On Apri112, 2012, the Tribe submitted the amended 

gaming ordinance to NIGC for approval. However, it withdrew the amendment on July 10, 2012, before 

the NIGC Chairperson issued a decision. 

On May 30,2013, the Tribe re-submitted its amended gaming ordinance to NIGC for approval. Under 

the resolution and proposed ordinance amendment, Indian lands are defined to include the Settlement 

Lands and any other lands held in trust by the United States for the benefit of the Tribe.38 

ANALYSIS 

The issue before us requires us to answer two distinct questions. First, does the Tribe possess sufficient 

jurisdiction over the Settlement Lands to make IGRA applicable? Second, if IGRA does apply, can it be 

harmonized with the Settlement Act or does it impliedly repeal certain aspects of the Settlement Act that 

address gaming? 

The First Circuit in Rhode Island v. Narragansett Indian Tribe 39 and Passamaquoddy Tribe v. Maine'" 

and the Fifth Circuit in Ysleta del Sur Pueblo v. Texas41 have dealt with settlement or restoration acts 

predating IGRA that place restrictions on a particular tribe's jurisdiction. The most complete and 

persuasive analysis-given the analogous facts at issue here as well as the First Circuit's appellate 

opinion52412.pdf&tabid~I20&mid~957; Pyramid Lake Paiute Indian Lands Determination, at 5; Buena Vista 

Indian Lands Determination, at 12. 33 Narragansett Indian Tribe, !9 F.3d at 703. 34 Letter from Michael J. Anderson, Acting Assistant Secretary- Indian Affairs, Dep't of Interior. to Patricia A. 

Marks, Attorney; Wampanoag Tribe of Gay Head (Sept. 5, 1997) [hereinafter !997 AS-IA Letter]. 35 !d. at 4. 36 See W AMPANOAG TRIBE OF GAY HEAD (AQUINNAH), Ordinance No. 2011-01 § 1.4(a) (November 22, 2011) ("All 

Gaming which is conducted within the Tribe's Indian Lands and which is otherwise authorized by applicable law 

shall be regulated and licensed pursuant to the provisions of this Ordinance."); id. § 1.5 (authorizing class I gaming 

on Indian lands); id. § 1.6 (authorizing class II gaming on Indian lands); id. § I. 7 (requiring the Tribe's Gaming 

Commission to ensure that gaming it authorizes is conducted on Indian lands); id. § 1.12 (stating Gaming Ordinance 

applies to gaming on Indian lands). 37 Wampanoag Tribe of Gay Head (Aquinnah) Resolution 2012-23 (2012). 38 /d. We note that this letter only addresses the question posed to us by NIGC's Office of General Counsel: 

whether the Settlement Act prohibits the Tribe from gaming under IGRA on the Settlement Lands. 39 19 F.3d 685,688 (1st Cir. 1994). 

40 75 F.3d 784 (1st Cir. 1996). 41 36 F.3d 1325 (5th Cir. 1994). 

6 
jurisdiction over cases brought in Massachusetts~an be found in the First Circuit Rhode Island v. 

Narragansett case. 

In Narragansett, the land the United States held in trust for the Narragansett Indian Tribe had been 

received through a settlement act. 42 The settlement act mandated "the settlement lands shall be subject to 

the civil and criminal laws and jurisdiction of the State of Rhode Island."43 The litigation began when the 

Narragansett Indian Tribe requested Rhode Island enter into a tribal-state compact pursuant to IGRA. 44 

Rhode Island filed suit in federal district court asking that the court rule IGRA did not apply to the 

Narragansett Indian Tribe's settlement lands and, therefore, the lands were subject to Rhode Island law.45 

The district court found that IGRA controlled because the Narragansett Indian Tribe had jurisdiction 

sufficient to trigger IGRA, and Rhode Island appealed.46 

On appeal, the First Circuit explained that the issue before it was "whether [IGRA] applies to lands now 

held in trust by the United States for the benefit of the Narragansett Indian Tribe."47 The court began by 

asking whether the Narragansett Indian Tribe's settlement act left the Narragansett Indian Tribe with 

sufficient jurisdiction and whether it exercised governmental power over the land, thereby triggering 

IGRA. 48 After concluding that IGRA was triggered, the court examined the interface between the two 

laws, first asking whether IGRA and the settlement act could be read to give full effect to each and, 

fmdingthey could not, second determining that IGRA performed an implied partial repeal of portions of 

the settlement act.49 

We will follow the Narragansett court's framework to determine whether IGRA applies to the Tribe's 

Settlement Lands. We begin by asking whether the Tribe possesses sufficient jurisdiction over the 

Settlement Lands so that IGRA applies. Next, we examine the interface between IGRA and the 

Settlement Act to determine whether they can be harmonized or whether an implied repeal occurred. For 

the reasons stated below, we find that IGRA applies and impliedly repealed those portions of the 

Settlement Act related to gaming. 

A. The Tribe possesses sufficient jurisdiction over the Settlement Lands for IGRA to apply. 

i. IGRA requires that a tribe possess jurisdiction over its land. 

In order to determine whether the Tribe possesses the requisite jurisdiction for IGRA to apply, we must 

first define what IGRA 's reference to 'jurisdiction" means. A basic tenant of Indian law dictates that 

tribes retain attributes of sovereignty, and therefore jurisdiction, over their land and their members. 50 This 

jurisdiction encompasses tribes' authority to authorize and regulate gaming 51 In Narragansett, the court 

explained that the jurisdiction required for IGRA to apply is derived from tribes' retained rights flowing 

42 Narragansett Indian Tribe, 19 F.3d at 689. 43 !d. at 694 (quoting 25 U.S.C. § 1708). 44 !d. at 690. 45 !d. at 690-91. 46 /d. at 69 I. 47 !d. at 688. 48 !d. at 700-703. 49 !d. at 703-705. 50 The Court has consistently recognized that Indian tribes retain "attributes of sovereignty over both their members 

and their territory." California v. Band of Mission Indians, 480 U.S. 202,207 (1987) (quoting United States v. 

Mazurie, 419 U.S. 544, 557 (1975)); United States v. Wheeler, 435 U.S. 313, 322-323 (1978) (quoting same). 51 California v. Cabazon Band of Mission Indians, 480 U.S. 202,207 (1987) (framing the analysis of whether a state 

may apply its gaming laws on reservation land by laying out the rule that "Indian tribes retain attributes of 

sovereignty over both their members and their territory") (internal citation omitted). 

7 
from their inherent sovereignty. 52 Against the backdrop of tribal sovereignty, we must construe IGRA's 

language. 

Statutory interpretation begins with the plain meaning of the language itself, and we "assume that the 

legislative purpose is expressed by the ordinary meaning of the words used. Thus, absent a clearly 

expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."" 

With respect to class II gaming, IGRA states that "[a]n Indian tribe may engage in, or license and 

regulate, class II gaming on Indian lands within such tribe's jurisdiction."" In regard to class III gaming, 

IGRA explains that "[a]ny Indian tribe having jurisdiction over the Indian lands upon which a class III 

gaming activity is being conducted" must enter into a compact with the state." It further requires that a 

gaming ordinance authorizing class III gaming be "adopted by the governing body of the Indian tribe 

having jurisdiction over such lands."" In each of IGRA 's three references to its jurisdictional 

requirement, the statute clearly states that a tribe must possess jurisdiction over its lands. 57 

In addition to determining what the "jurisdiction" referenced in IGRA must be exercised over-land-the 

Narragansett court also viewed as important the amount of jurisdiction a tribe must possess. As the 

Narragansett court recognized, it is well-settled that tribes possess aspects of sovereignty not withdrawn 

by treaty or statute or by implication as a necessary result of their dependent status. 58 Put differently, 

tribes are presumed to have jurisdiction over their land unless it has been withdrawn. 

When Congress enacts a statute depriving a tribe of jurisdiction, it must do so explicitly 5 9 Further, "acts 

diminishing the sovereign rights oflndian [t]ribes should be strictly construed."60 This statutory rule is 

bolstered by the Indian canon of construction that calls on courts to construe ambiguous statutes in favor 

ofindians_61 As the Narragansett court explained, "[w]hen a court interprets statutes that touch on Indian 

52 Rhode Islandv. Narragansett Indian Tribe, 19 F.3d 685,701 (1st Cir. 1994) ("We believe that jurisdiction is an 

integral aspect of retained sovereignty."). 

53 Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (citations omitted); see also Narragansett Indian Tribe, 19 

F.3d at 697 ("[C]ourts must look primarily to statutory language, not to legislative history, in determining the 

meaning and scope of a statute."). 

54 25 U.S.C. § 2710(b)(l) (emphasis added). 55 Id § 2710(d)(3)(A) (emphasis added). 56 ld § 2710(d)(l)(A)(i) (emphasis added). 57 Reading IGRA'sjurisdictional requirement to apply to lands instead of individuals is in keeping with NIGC's 

interpretation ofiGRA's jurisdictional requirement and jurisdictional grant. In NIGC's Indian lands opinion for the 

White Earth Band of Chippewa Indians' reservation, NIGC's Office of General Counsel concluded that "IGRA's 

applicability is determined by the character of the land on which gaming is conducted rather than by who is 

conducting the gaming." White Earth Indian Lands Opinion, at 9. This same analysis was utilized again in NIGC's 

Indian lands opinion for the Pyramid Lake Paiute Tribe's reservation, where NIGC's Office of General Counsel 

stated "IGRA'sjurisdiction runs with the land and allows gaming, even by non-tribal entities, that is conducted on 

Indian lands." Pyramid Lake Paiute Indian Lands Determination, at 4. 58 Narragansett Indian Tribe, I9 F.3d at 70I (citing United States v. Wheeler, 435 U.S. 3 I3, 323 (1978)). 59 ld at 702 ("Since the Settlement Act does not unequivocally articulate an intent to deprive the Tribe of 

jurisdiction, we hold that its grant of jurisdiction to the state is non-exclusive.") (emphasis added); 1997 AS-IA 

Letter, at 3 (pointing to "long-standing Executive and Congressional policies favoring the strengthening of tribal 

self-government, and disfavoring the implicit erosion of tribal sovereignty" and explaining that, "[i]n this context, 

the U.S. Supreme Court has held that Congressional intent to delegate exclusive jurisdiction to a state must be 

clearly and specifically expressed") (citing Bryan v. Itasca County, 426 U.S. 373, 392 (1976). 60 Narragansett Indian Tribe, 19 F.3d at 702. 61 See, e.g., Montana v. Blackfeet Tribe, 47I U.S. 759,766 (1985) ("Statutes are to be construed liberally in favor of 

the Indians, with ambiguous provisions interpreted to their benefit."); County of Oneida v. Oneida Indian Nation, 

470 U.S. 226,247 (1985) ("The canons of construction applicable in Indian law are rooted in the unique trust 

relationship between the United States and the Indians. Thus, it is well established that treaties should be construed 

liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. ... The Court has applied 

8 
sovereignty, general rules of construction apply, but they must be visualized from a distinctive 

perspective": through the lens of the Indian canon of construction." 

Although not defining exactly what portion of retained jurisdiction a tribe must possess to make IGRA 

applicable to land, the Narragansett court said "so long as the portion of jurisdiction encompassed within 

the natural rights of the [tribe] is substantial enough to satisfy [IGRA's] 'having jurisdiction' prong, our 

inquiry is satisfied."63 The Narragansett court focused on whether the Narragansett Indian Tribe's 

settlement act granted the state exclusive jurisdiction over the land, thereby completely divesting the tribe 

of jurisdiction. In its analysis, the Narragansett court found that Congress in the settlement act did not 

provide exclusive jurisdiction over the land to the State of Rhode Island and did not expressly strip the 

Narragansett Indian Tribe of its retained jurisdiction.64 In the absence of an exclusive grant of jurisdiction 

to Rhode Island and express language divesting the Narragansett Indian Tribe of its jurisdiction, the court 

found that the Tribe retained concurrent jurisdiction over the land sufficient for IGRA to apply. It 

concluded the Tribe "retain[ed] that portion of jurisdiction they possess by virtue of their sovereign 

existence as a people-a portion sufficient to satisfy [IGRA's] 'having jurisdiction' prong."65 

As the Narragansett court did, we require Congress's explicit divestiture of tribal jurisdiction to avoid 

IGRA's application to Indian lands. We conclude that the jurisdictional requirement in IGRA mandates a 

tribe must not be completely divested of jurisdiction over the land in question. Unless a tribe has been 

completely divested of jurisdiction, IGRA applies. 

This result is consistent with IGRA's purpose. IGRA came on the heels of California v. Cabazon, in 

which the United States Supreme Court found that state gaming laws were generally inapplicable on 

reservations.66 Although the Court began by noting that state law is inapplicable to Indians on their 

reservation land unless Congress has expressly provided otherwise, the Court explained that there could 

be room for state law in exceptional circumstances." Because state interests in preventing infiltration of 

tribal games by organized crime were not sufficient to overcome federal and tribal interests in Indian selfgovernment, including tribal self-sufficiency and economic development, exceptional circumstances were 

not present for tribal gaming. 68 The Court went further, finding that even in the very few Public Law 280 

states, states could only apply their gaming laws on reservations when state gaming laws were 

criminal/prohibitory, as evidenced by their violation of state public policy, rather than civil/regulatory.69 

Additionally, the Court stated that the Organized Crime Control Act did not grant states any part in 

enforcing state gaming laws on reservation lands.70 In the wake of Cabazon, states became wary of 

unregulated tribal gaming and pushed for limits on tribal jurisdiction in tribe-specific statutes. 

similar canons of construction in nontreaty matters."); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 152 (1982) 

("'f there [is] ambiguity ... the doubt would benefit the tribe, for ambiguities in federal law have been construed 

generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging 

tribal independence.") (internal quotation omitted). 62 Narragansett, 19 F. 3d at 691. 63 !d. at 701 (emphasis added). 64 !d. at 702. The Assistant Secretary also articulated these two paths in his 1997 letter to the Tribe. 1997 AS-IA 

Letter, at 4 ("Had Congress desired to defeat concurrent tribal jurisdiction on lands located outside of the Town of 

Gay Head, it would have either provided for 'exclusive' state and local jurisdiction, or it would have included 

limitations on tribal jurisdiction."). 65 Narragansett Indian Tribe, 19 F.3d at 702. 66 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216-21 ( 1987). 67 /d. at207,2!5. 68 /d. at 216-21. 69 !d. at 208-{)9. 70 !d. at 213-14. 

9 
IGRA provided a new and consistent framework for tribal gaming that both created additional protections 

for tribes and a larger role for states and their gaming laws.71 The following are three ways in which 

lGRA provided further protections for tribal gaming not in existence under the Cabazon framework. 

Section 1166( d), enacted alongside IGRA, impliedly repealed Public Law 280 to the extent that the 

federal government now holds exclusive authority to prosecute tribes for IGRA gambling that is 

prohibited in the state,72 despite the fact that under Cabazon Public Law 280 states that had 

criminal/prohibitory gaming laws could enforce those laws on reservation lands. 73 Similarly, after 

Cabazon but before IGRA's enactment, the federal government could still prosecute tribes under the 

Organized Crime Control Act for violating state gaming laws.74 Last, IGRA created an explicit 

exemption to the Johnson Act, 75 permitting tribes to maintain class III gaming devices on Indian lands 

when complying with IGRA. 76 

The fact that our interpretation of the requisite jurisdiction for IGRA to apply may uncover a 

congressional implied repeal of some aspects of settlement and restoration acts that subject certain tribes 

to state gaming law conforms to the broader purpose of !GRA to create a new framework for tribal . 77 gam mg. 

ii. The Settlement Act does not divest the Tribe of jurisdiction over the Settlement Lands. 

71 See 25 U.S.C. §§ 270 1-2702; Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685. 689 (I st Cir. 1994) ("The 

Gaming Act is an expression of Congress's will in respect to the incidence of gambling activities on Indian lands."). 

72 Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 540 (9th Cir. I 994) ("lfthat exclusivity is incompatible 

with any provision of Public Law 280, then the Public Law 280 provision has been impliedly repealed by 1166(d).") 

(citing United Keetoowah Band of Cherokee Indians v. Oklahoma, ex rei. Moss, 927 F.2d 1170, 1176-81 (I Oth Cir. 

1991) (stating IGRA § 1166(d) occupies Indian gaming field to exclusion of Assimilative Crimes Act, 18 U.S.C. § 

13, and its incorporation of state Jaw)). 73 Cabazon Band of Mission Indians, 480 U.S. at 209. See also S. REP. No. 100-446, at 6 (1988) ("The Committee 

wishes to make clear that, under [IGRA], application of the prohibitory/regulatory distinction is markedly different 

from the application of the distinction in the context of Public Law 83-280. Here. the courts will consider the 

distinction between a State's civil and criminal laws to detennine whether a body of law is applicable, as a matter of 

Federal law, to either allow or prohibit certain activities."). 

74 Cabazon Band of Mission Indians, 480 U.S. at 214 n.l6. But note that the Second Circuit in Cook observed that 

the Organized Crime Control Act remained in effect following the passage of lGRA. See United States v. Cook, 922 

F.2d 1026, 1033 (2d Cir. 1991). 7

s JSU.S.C. §§ 1171-1178. 76 25 U.S.C. § 2710(d)(6) ("The provisions of[ IS U.S.C. § 1175 (the Johnson Act)] shall not apply to any gaming 

conducted under a Tribal-State compact that-{ A) is entered into ... by a State in which gambling devices are legal, 

and (B) is in effect."). 77 The legislative history for IGRA contains language that at first blush contradicts our construction ofJGRA's 

jurisdictional requirement. For instance, one Senate report states that the bill would authorize tribes to "exercise 

existing tribal governmental authority under tribal law over gaming" and sought to "retain all rights that were not 

expressly relinquished." S. REP. No. I 00-446, at 5, 8 (I 988). In another excerpt, the committee stated that nothing 

in IGRA is intended to "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 Rhode Island and Maine settlement 

acts]." !d. at 12. However, the Narragansett court did not find this legislative history compelling because it spoke 

only to the bill as it was reported out of committee and reflected a special exemption in a draft version of IGRA that 

exempted Rhode Island and Maine from IGRA's application. Narragansett Indian Tribe, 19 F.3d at 700. The court 

explained "[w]hen Congress includes limiting language in an early version of proposed legislation, and then rewrites 

the bill prior to enactment so as to scrap the limitation, the standard presumption is that Congress intended the 

proviso to operate without limitation." !d.. The court further did away with the legislative history by explaining that, 

"(i]n the game of statutory interpretation, statutory language is the ultimate trump card." !d. at 699. Although the 

later Passamaquoddy court found the same legislative history compelling, Passamaquoddy Tribe v. Maine, 75 F.3d 

784,790-91 (lstCir. 1996), we do not. The Narragansett decision more correctly follows general principles of 

statutory construction that discard language in draft bills that were not enacted and are not persuasive. 

10 
According to the Narragansett court's analysis, Congress can divest a tribe of jurisdiction sufficient to 

avoid triggering IGRA's application by: (I) providing exclusive jurisdiction over the land to the state or 

(2) explicitly divesting the tribe of jurisdiction over the land. In Section 1771 g of the Settlement Act, 

Congress made the Settlement Lands and any other lands held in trust for the Tribe subject to State law, 78 

while it separately maintained limited exceptions for hunting and taxation elsewhere in the Act.79 In 

Section 1771e(a), Congress required that the exercise of tribal jurisdiction be consistent with State and 

federallaw. 80 Our task is to determine whether the Settlement Act divests the Tribe of jurisdiction and 

thereby bars IGRA from applying to the Settlement Lands. 

a. Section 177Jg 's grant of jurisdiction to the State is not exclusive. 

The Settlement Act's grant of jurisdiction to the State is contained in Section 177lg, where it dictates: 

Except as otherwise expressly provided in this Act or the State Implementing Act, the 

settlement lands and any other land that may now or hereafter be owned by or held in 

trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, shall be 

subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth 

of Massachusetts and the town of Gay Head, Massachusetts (including those laws and 

regulations which prohibit or regulate the conduct of bingo or any other game of 

chance ).81 

Aside from narrow exceptions for hunting by tribal members conducted by means other than 

firearms and crossbows and for taxation on the Public Settlement Lands, 82 State law applies to the 

Settlement Lands. The Massachusetts Supreme Court has found that such jurisdiction includes 

civil regulatory jurisdiction over the land and that the Tribe has waived its sovereign immunity 

for related enforcement actions.83 

The question we must ask in examining Section 177lg is whether the Section's '~urisdictional 

grant is exclusive in nature."84 The Narragansett court looked to whether Congress had used the 

terms "exclusive" or "complete" in its transfer of jurisdiction to Rhode Island.85 In finding that it 

78 25 u.s.c. § 177lg. 

79 !d §§ !771c(a)(I)(B), 177Ie(d). 80 !d. § 1771 e(a). 

81 ld § 1771g. 82 !d. § 1771 c(a)(l )(B)(preserving Tribe's jurisdiction over tribal members' hunting conducted by means 

other than firearms and crossbows); id. § 1771 e( d) (providing exemption from taxation on Public 

Settlement Lands). 83 See Building Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 

Mass. I (2004) (finding Tribe must comply with State zoning laws and obtain State permits, and finding Tribe had 

waived in paragraph three of its Settlement Act its sovereign immunity with respect to municipal zoning 

enforcement). 

84 Rhode lslandv. Narragansett Indian Tribe, 19 F.3d 685,701 (1st Cir. 1994). 

85 !d. at 702. See also United States v. Cook, 922 F.2d 1026, 1032-33 (2d Cir. 1991) (finding absence of terms 

"exclusive" or "complete" in federal statute's grant of jurisdiction over offenses committed by or against Indians 

meant statute only extended concurrent jurisdiction with federal government to the state). The courts in both 

Narragansett and Cook compared the settlement acts' lack of the word "exclusive" with 18 U.S.C. §1162's use of 

"exclusive" in granting "civil and criminal jurisdiction" over Indian lands to certain states. Narragansett, 19 F.3d at 

702 ("The omission of the word 'exclusive' looms particularly large in light of the use of that word elsewhere. For 

instance, the word is used to modify the general jurisdictional grant in 18 U.S.C. § 1162 (1988), one of the few 

analogous statutes granting 'civil and criminal jurisdiction' over Indian lands to an individual state."); Cook, 922 

F.2d at 1033 (stating use of word "exclusive" in 18 U.S.C. 1162 indicates Congress knew how to use term in 

granting jurisdiction). 

II 
had not, the court noted the parallels between the language in the Narragansett Indian Tribe's 

settlement act and the language in Section 1771 g of the Settlement Act at issue here 86 The lack 

of the terms "exclusive" or "complete" in the Settlement Act is particularly weighty because the 

Settlement Act does contain the word "exclusive" in its grant of jurisdiction to federal courts to 

entertain certain constitutional challenges'' Where "Congress includes particular language in 

one section of a statute but omits it in another section of the same Act, it is generally presumed 

that Congress acts intentionally and purposely in the disparate inclusion or exclusion."" 

The Assistant Secretary's 1997 letter also sheds light on the relevance of Section 1771 g. In that letter, the 

Assistant Secretary relied on the legal framework of Rhode Island v. Narragansett." Because the land at 

issue there did not qualifY as Settlement Lands, he explained, Sections 177lg and 177le(a) of the 

Settlement Act were inapplicable and did not need to be discussed. Instead, he looked to the language in 

Section 177ld(g)90-pertaining to land that does not qualifY as Settlement Lands and is not located in the 

Town-and paragraph three of the Settlement Agreement. 91 Section 177ld(g} states: "The terms of this 

section shall apply to land in the Town of Gay Head. Any land acquired by the [Tribe] that is located 

outside the town of Gay Head shall be subject to this subchapter, the Settlement Agreement and other 

applicable laws."92 

The Assistant Secretary found that Section 177ld(g) ofthe Settlement Act and paragraph three of the 

Settlement Agreement both granted non-exclusive jurisdiction to the State but did not divest the Tribe of 

concurrentjurisdiction.93 Therefore, he stated, IGRA applied and compelled an implied partial repeal of 

Section 177ld(g) of the Settlement Act. 94 Like Section 177ld(g) of the Settlement Act at issue in the 

Assistant Secretary's letter, Section 1771 gat issue here applies State law to the land. The Assistant 

Secretary's rationale and finding that 177ld(g}'s grant of jurisdiction to the State was non-exclusive is 

consistent with and applies to our analysis of Section 1771 g. 

Section 177lg's specific reference to the application of State gaming law, however, poses an 

additional question about the Tribe'sjurisdiction over the Settlement Lands. The Settlement Act 

applies State gaming law to the Settlement Lands in the same section that it grants the State 

concurrent, but not exclusive, jurisdiction. Therefore, the gaming language is naturally read to 

emphasize that the State possesses concurrent jurisdiction over the Settlement Lands for purposes 

of applying its gaming laws.95 This would have been important in the pre-IGRA legal framework 

86 Narragansett Indian Tribe, 19 F. 3d at 702. 87 25 U.S.C. § 1771h ("Exclusive original jurisdiction over any such action and any proceedings under section 6(e) 

[25 USCS § 1771(e)] is hereby vested in the United States District Court of the District of Massachusetts"). 88 Narragansett Indian Tribe, 19 F.3d at 702 (quoting Rodriguez v. United States, 480 U.S. 522, 525 (1987)). 89 1997 AS-IA Letter, at 3. 90 25 U.S.C. § 177ld(g). 91 Settlement Agreement~ 3 ("Under no circumstances, including any future recognition of the existence of an 

Indian tribe in the Town of Gay Head, shall the civil or criminal jurisdiction of the [State] ... over the settlement 

lands, or any land owned by the Tribal Land Corporation in the Town of Gay Head ... be impaired or otherwise 

altered."). 

92 25 U.S.C. § 1771d(g). 93 1997 AS-IA Letter, at 3. It should also be noted that the Assistant Secretary's 1997 letter does not speak to lands 

that do not qualify as Public or Private Settlement Lands and that are located in the Town. Those may not be 

restricted by Section 1771 e(a), which is applicable to Settlement Lands only. Given the facts presented here, 

however, it is not necessary to reach that question for the purposes of this opinion. 94 Id at 4. 95 The Assistant Secretary in his 1997 letter touched on the relevance of a settlement or restoration act's specific 

application of state gaming law to land. In finding that the Tribe possessed concurrent jurisdiction with the State 

over tribal lands located outside of the Town, the Assistant Secretary declined to follow the Fifth Circuit's decision 

12 
in which the Settlement Act was negotiated and ultimately enacted. It would have provided, 

consistent with the Supreme Court's reasoning in Cabazon-which had found state law 

inapplicable to gaming on reservation land unless Congress expressly provided otherwise-a 

clear and coherent statement by Congress of concurrent State jurisdiction over gaming. However, 

a grant of concurrent jurisdiction to the State does not divest the Tribe of jurisdiction for purposes 

of applying IGRA. 

We find that Section 1771g' s grant of jurisdiction to the State does not grant the State exclusive 

jurisdiction, which would have resulted in a divestiture of tribal jurisdiction. 

b. Section 1771e(a)'s limit on the exercise of the Tribe'sjurisdiction does not divest the 

Tribe of jurisdiction. 

The Settlement Act explicitly limits the exercise of the Tribe's jurisdiction over the Settlement 

Lands. In Section 1771 e(a), the Settlement Act states: 

The Wampanoag Tribal Council of Gay Head, Inc., shall not have any jurisdiction over 

nontribal members and shall not exercise any jurisdiction over any part of the settlement 

lands in contravention of this Act, the civil regulatory and criminal laws of the 

Commonwealth of Massachusetts, the town of Gay Head, Massachusetts, and applicable 

Federal laws. 

Pursuant to the ,terms of Section 1771e(a), the Tribe may still exercise jurisdiction over its land, 

including jurisdiction to game, as long as it does not contravene State or federal law. 

The question we must ask in examining Section 1771e(a) is whether the Section "expressly 

strip[s] the Tribe of jurisdiction."" When interpreting a statute, the agency "is required to 

interpret statute as a whole and avoid constructions that would render words or provisions 

superfluous or meaningless."" The Tribe's jurisdiction over the land is apparent when compared 

with the language divesting the Tribe of jurisdiction over nontribal members. The statute states 

that the Tribe "shall not have any jurisdiction" over nontribal members but preserves the Tribe's 

jurisdiction over the land by stating that any jurisdiction exercised must not contravene State or 

federal law. 

Importantly, H.R. 2868, an older version of the Settlement Act, would have barred the Tribe from 

exercising any form of jurisdiction over the land, but Congress ultimately changed the text before 

it became law. Where Congress includes limiting language in an earlier version of a bill but 

in Ysleta del Sur Pueblo v. Texas, 36 F.3d I 325 (5th Cir. I 994). !d. at 5. He reasoned that the Ysleta del Sur 

Pueblo's restoration act "specifically prohibits all gaming activities which are prohibited by the laws of the State of 

Texas" and that "[t]here is simply no comparable provision in the Wampanoag Settlement Act addressing gaming on 

tribal lands outside of the Town of Gay Head." !d. (citing Ysleta del Sur Pueblo: Restoration of Federal 

Supervision, 25 U.S.C. § 1300g-6(a) ("All gaming activities which are prohibited by the laws of the State of Texas 

are hereby prohibited on the reservation and on lands of the tribe.")). Although Section 1771g of the Settlement Act 

does specifically apply State gaming law to the Settlement Lands, it does not "prohibit" gaming activity and the 

Settlement Act's legislative history is distinguishable from the legislative history of the Ysleta del Sur Pueblo's 

restoration act. 96 Rhode !slandv. Narragansett Indian Tribe, 19 F.3d 685,701 (1st Cir. 1994). 97 Grand Traverse Band of Ottawa and Chippewa Indians v. Michigan, 198 F. Supp. 2d 920, 930 (W.O. Mich. 

2002); see also Platt v. Union Pacific Railroad Co., 99 U.S. 48, 58-59 (1878). 

13 
deletes it prior to enactment, it may be presumed that the limitation was not intended.98 H.R. 

2868 stated: 

No Indian tribe or band may exercise any form of jurisdiction (whether or not such tribe 

or band is a federally recognized Indian Tribe or band) over any part of the settlement 

lands, or any other land that may now or in the future be owned by or held in trust for 

such Indian entity in the town of Gay Head, Massachusetts, except to the extent provided 

in this Act, the State Implementing Act, or the Settlement Agreement." 

Based on this discarded and more stringent language, it is clear that Congress contemplated 

divesting the Tribe of jurisdiction but ultimately chose not to do so. 

The legislative history of the Settlement Act bolsters our reading that the Tribe was left with 

jurisdiction over its lands. A House report states, "while the civil and criminal laws of 

Massachusetts will be applicable on the settlement lands, the [T]ribe will be able to assume 

concurrent jurisdiction over its own members with the State and the [T]own as long as such 

jurisdiction is consistent with the civil and criminal laws of the State and the Town." 100 

Although the analysis for determining whether a tribe exercises governmental power sufficient to 

establish that lands qualify as Indian lands is more fact-specific than the jurisdictional analysis, 

"[a]n historical perspective is also relevant to the 'having jurisdiction' inquiry. A 'longstanding 

assumption of jurisdiction ... not only demonstrates the parties' understanding of the meaning of 

the Act, but has created justifiable expectations which should not be upset .... " 101 The Tribe 

regularly asserts its jurisdiction over its Settlement Lands. The Tribe has and can still exercise 

jurisdiction over the land if that exercise does not conflict with State Jaw. The tribal government 

"is responsible for providing a full range of services to the Tribe's members, including education, 

health and recreation, public safety and law enforcement, public utilities, natural resources 

management, economic development, and community assistance." 102 Many of these services are 

provided on the Tribe's land on Martha's Vineyard, including its trust lands. Furthermore, the 

Tribe can and does police the Settlement Lands and applies tribal laws to its members on these 

lands. In the Settlement Act's legislative history, the Tribe's President explained that, despite 

limitations on its tribal jurisdiction, "traditionally the Gay Head Wampanoags control the town 

government, and we believe that [even the un-enacted, more limiting version of] the settlement 

provides the opportunity for the tribe to maintain that control." 103 As further evidence of 

98 Russel/a v. United States, 464 U.S. 16,23-24 (1983). See also Narragansett, 19 F.3d at 700 ("When Congress 

includes limiting language in an early version of proposed legislation, and then rewrites the bill prior to enactment 

so as to scrap the limitation, the standard presumption is that Congress intended the proviso to operate without 

limitation. Deletion, without more, suggests that Congress simply had a change of heart.") (internal citations and 

footnote omitted). 

99 H.R. 2868, 99th Cong. § I 07(a) (1986). See also H. REP. No. 99-918, at 5(1986) (explaining the Bill "provide[ d) 

that no Indian tribe may exercise any form of jurisdiction over the settlement lands or any other lands owned by 

such Indian entity within the town of Gay Head except to the extent provided in this Act, the State Implementing 

Act or the Settlement Agreement"). 100 H. R. REP. NO. 100-238, at 6 (1987). 101 Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 n.l8 (1st Cir. 1994)(citing Rosebud Sioux Tribe v. 

Kneip, 430 U.S. 584, 604-{)5 (1977)). 102 Letter rrom Law! Echo-Hawk, Attorney, Wampanoag Tribe of Gay Head (Aquinnah), to Michael Hoenig, Senior 

Attorney, Nat' I Indian Gaming Comm'n, at 2 (May 23, 2012). 103 Indian Land Claims in the Town of Gay Head, MA: Hearing on S.l452 Before the S. Select Comm. on Indian 

Affairs, 99th Cong., S. Hrg. No. 99-688,23-24 (1986) (statement of Gladys A. Widdiss, President, Wampanoag 

Tribal Council of Gay Head, Inc.). 

14 
recognition of tribal jurisdiction, in its order denying the Tribe's motion to intervene in litigation 

over the constitutionality of the Massachusetts gaming statute, the District Court of 

Massachusetts explicitly stated that the Tribe had jurisdiction over its Settlement Lands. 104 

We find that the limiting language in Section 1771e(a) of the Settlement Act does not divest the 

Tribe of jurisdiction over the Settlement Lands. 105 The next step in the Narragansett analysis is 

to determine whether the Settlement Lands qualify as Indian lands under IGRA, 106 which 

involves a determination of whether the Tribe exercises governmental power over them. 107 As 

this is a factual determination rather than a construction of the Settlement Act, we will leave this 

question for NIGC to examine. For our purposes, we will assume the Tribe has met the threshold 

of exercising governmental power over the Settlement Lands. Therefore, contingent upon such 

determination, we find that IGRA applies to the Tribe's Settlement Lands. 

B. IGRA impliedly repeals portions of the Settlement Act repugnant to IGRA's regulatory 

framework. 

Because the Tribe possesses sufficient jurisdiction to trigger IGRA, we must determine whether an 

implied repeal of any portion of the Settlement Act has taken place. When two federal statutes touch on 

the same subject matter, courts should attempt to give effect to both if they can be harmonized. 108 

Therefore, "so long as the two statutes, fairly construed, are capable of coexistence, courts should regard 

each as effective."109 However, if portions of the statutes are repugnant to each other, one must prevail 

over the other. 110 Even where two statutes are not outright repugnant, "where the later statute covers the 

entire subject and embraces new provisions, plainly showing that it was intended as a substitute for the 

first act," a repeal may be implied.''' When a later statute impliedly repeals a former statute, a partial 

repeal is preferred and only the parts of the former statute that are in plain conflict with the later should be 

nullified. 112 

104 Memorandum & Order, KG Urban Enterprises, LLC v. Patrick, Civil No. 11-12070-NMG, at 7 (D. Mass. June 6. 

2013) ("The Aquinnah is a federally recognized tribe with jurisdiction over land on the western half of Martha's 

Vineyard, a part of Region C, which it obtained as a result of a 1985 settlement agreement .... "). The court noted, 

however, that whether the Tribe waived its right to conduct gaming pursuant to the Settlement Agreement was an 

unresolved question. !d. at 10. 105 The Narragansett court and the Assistant Secretary in his 1997 letter to the Tribe both pointed to Section 

1771 e(a) as an example of how Congress can limit a tribe's jurisdiction over land. Narragansett Indian Tribe, !9 

F.3d at 702 (stating the Settlement Act "contain[s] corresponding limits on Indian jurisdiction" to go with the 

"grant[] of jurisdiction [to the State] parallel to [the Rhode Island Settlement Act]"); 1997 AS-IA Letter, at 4 ("Had 

Congress desired to defeat concurrent tribal jurisdiction on lands located outside of the Town of Gay Head, it would 

have either provided for 'exclusive' state and local jurisdiction, or it would have included limitations on tribal 

jurisdiction, as it did in 25 U.S.C. § 1771 e(a) with respect to jurisdiction over settlement lands within the Town of 

Gay Head. Congress chose to do neither."). These discussions happened in the context of land over which the states 

had jurisdiction but the tribes' jurisdiction was not limited. Pointing to Section 177le(a) of the Settlement Act as an 

example of how Congress can circumscribe a tribe's jurisdiction when it intends to do so is not equivalent to saying 

that Section 1771 e(a) divests the Tribe of jurisdiction. 106 See 25 U.S.C. §§ 2703(4), 2710; 25 C.F.R. § 501.2. 107 25 U.S.C. § 2703(4); 25 C.F.R. § 502.12; Narragansett Indian Tribe, !9 F.3d at 70 I, 702-703. 108 Narragansett Indian Tribe, !9 F.3d at 703. 109 !d. at 703. 110 ld. 111 /d. at 703-{)4 (internal quotation omitted). 112 /d. at 704 n.l9. 

15 
IGRA and the Settlement Act cannot be read in harmony and are therefore repugnant. The Settlement Act 

clearly applies State law, including gaming law, to the Settlement Lands. 113 This application grants the 

State "the non-exclusive right to exercise jurisdiction" over the Settlement Lands-' 14 The Settlement Act 

also limits the exercise of the Tribe'sjurisdiction to that which conforms to State law. 115 Regardless of 

what the State's gaming laws actually require, the Settlement Act dictates that the Tribe must act in 

conformance with the State's laws when gaming. The Massachusetts Supreme Court has found that, 

when the Tribe does not conform to the State's civil regulatory laws, it is subject to suit by the State 

pursuant to the Settlement Act. 116 

IGRA provides an entirely different framework for the Tribe's gaming. IGRA mandates exclusive tribal 

jurisdiction over the Tribe's class I and class II gaming. 117 Although IGRA may permit the State to 

exercise its jurisdiction over class III gaming as prescribed and negotiated for under the terms of an 

approved tribal-state compact, 118 such exercise is still dependent on the Tribe entering into such 

agreement through IGRA 's terms. 119 Further, lGRA categorizes Indian gaming into three classes and 

imposes different regulatory frameworks for each class. 120 

IGRA does incorporate State law in a sense. The Tribe is only permitted to engage in class II gaming 

activity if the State does not prohibit gaming activities of that type. 121 Further, class III gaming requires a 

compact with the State, and the State is only obligated to negotiate in good faith over the compact if the 

State does not ban class III gaming. 122 IGRA 's incorporation of State law, however, is not equivalent to 

applying the actual gaming laws of the State to the Settlement Lands. This is because IGRA only bars 

class II gaming if State law is criminal/prohibitory, but the Settlement Act applies all State law, even 

those that are regulatory, to the Settlement Lands. 123 More importantly, IGRA's incorporation of 

prohibitory State law does not in any way subject the Tribe to the criminal jurisdiction of the State. 124 

Therefore, despite the fact that IGRA does incorporate State law into its regulatory scheme in some sense, 

it is very different than the application of State law the Settlement Act dictates. Due to this repugnancy, 

we must now determine which statute survives IGRA's enactment. 

As the Supreme Court has stated "repeals by implication are not favored." 125 However, the Narragansett 

court was not dissuaded by this general rule. In measuring a pre-IGRA settlement act against lGRA, the 

court stated "where two acts are in irreconcilable conflict, the later act prevails to the extent of the 

impasse." 126 Indeed, the Narragansett court determined using this rule that IGRA, the later statute, 

Ill 25 U.S.C. § 177lg. 114 Narragansett Indian Tribe, 19 F.3d at 704. 

115 25 U.S.C. § 177le(a). 116 See Building Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 

Mass. 1 (2004). 117 25 U.S.C. § 271 O(a); Narragansett Indian Tribe, 19 F.3d at 704. 

118 Narragansett Indian Tribe, 19 F.3d at 704 (stating that, "in connection with class Ill gaming, the Gaming Act 

does not in itself negate the state'sjurisdiction, but, instead, channels the state'sjurisdiction through the tribal-state 

compact process"); id at 704 n. 13 ("State jurisdiction over class III gaming is subject to restoration in whole or in 

part through the compact."). See also, 25 U.S.C. § 2710 (d)(7). 

119 See 25 U.S.C. § 2710(d). 120 See generally id §§ 2710-2721. 121 Narragansett Indian Tribe, 19 F.3d at 690 (citing 25 U.S.C. § 2710(b)(a)(A)). 122 !d. (citing 25 U.S.C. § 2710(d)). 

123 Ysieta del Sur Pueblo v. Texas, 36 F.3d 1325, 1332-34 (5th Cir. 1994). 124 S. REP. No. I 00-446, at 6 ( 1988). 125 Crawford Fitting Co. v. J. T Gibbons, Inc., 482 U.S. 437, 442 (1987); see also Ysleta del Sur Pueblo, 36 F.3d at 

1335. 

126 Narragansett Indian Tribe, 19 F.3d at 704. 

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prevailed. Under this basic analysis, lGRA would prevail over the Settlement Act and impliedly repeal 

those portions that were repugnant to it. However, two other cases have employed slightly different 

analyses, which we explore and distinguish below. 

The First Circuit in Passamaquoddy v. Maine was tasked with determining whether IGRA effectuated an 

implied repeal of the Passamaquoddy Tribe's settlement act, which submitted the Tribe's lands to 

Maine's jurisdiction. 127 The settlement act contained a savings clause stating: "the provisions of any 

federal law enacted after [the effective date of the settlement act] ... 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 subsequently enacted Federal law is specifically made applicable within the State of 

Maine."128 As IGRA does not explicitly state that it is applicable in Maine, the court found that IGRA did 

not impliedly repeal the settlement act.129 Rather, it found that the savings clause allowed the two acts to 

be read in harmony.il 0 And, given the specific and express terms of the restoration act at issue, the court 

further concluded that "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." 131 In stark contrast, the Settlement Act at 

issue here contains no savings clause. Therefore, as the Passamaquoddy court foreshadowed could 

happen when settlement and restoration acts do not contain a savings clause, "the literal terms of the two 

statutes create[] incoherence by subjecting Indian gaming to two mutually exclusive regulatory 

environments. " 1 32 

The Fifth Circuit in Ys/eta del Sur Pueblo v. Texas found that IGRA did not impliedly repeal theY sleta 

del Sur Pueblo's restoration act. 133 Following its fact-bound inquiry into the precise language of the 

restoration act, the court stated that, where there is no clear intention otherwise, a specific statute will not 

be controlled or nullified by a general one, regardless of the priority of their enactment. 134 On the facts at 

hand, we are unconvinced that the Settlement Act is more specific than IGRA or that it should prevail. 

As the Narragansett court noted, it is arguable whether a settlement or restoration act or IGRA is more 

specific. 135 While IGRA has more widespread implications for many tribes and the Settlement Act only 

pertains to the Tribe, the Settlement Act's purpose is to cover the entire field of relationships between the 

State and the Tribe while IGRA only affects their relationship related to gaming. 136 Further, Congress is 

deemed aware of an earlier law when it enacts a later law, and therefore this argument holds less 

127 Passamaquoddy Tribe v. Maine, 75 F.3d 784, 780, 787 (I st Cir. 1996). 128 25 U.S. C. § 1735(b). See also Passamaquoddy Tribe, 75 F.Jd at 787, 789. 

129 Passamaquoddy Tribe, 75 F.3d at 789 ("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 also id. at 790 (finding lGRA "lacks force within Maine's boundaries"). 130 Jd. at 791 ("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."). 131 Jd. at 791 ("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."). 

132 !d. 133 Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1335 (5th Cir. !994). The provision at issue in the restoration act 

reads: "All gaming activities which are prohibited by the laws of the State of Texas are hereby prohibited on the 

reservation and on lands of the tribe. Any violation of the prohibition provided in this subsection shall be subject to 

the same civil and criminal penalties that are provided by the laws of the State of Texas. The provisions of this 

subsection are enacted in accordance with the tribe's request in Tribal Resolution No. T.C.-02-86 wh1ch was 

approved and certified on March 12, 1986." 25 U.S.C. § !300g-6(a). 134 Ysleta del Sur Pueblo, 36 F.3d at !335. 

135 Rhode Jslandv. Narragansett Indian Tribe, 19 F.Jd 685,704 (1st Cir. 1994). 136 Passamaquoddy Tribe, 75 F.3d at 788. 

17 
weight. 137 IGRA was enacted just one year and two months after the Settlement Act completed its path 

through Congress. 138 Therefore, we do not find that the Settlement Act is more specific than IGRA and 

so should survive JGRA' s enactment 

Reading JGRA to partially repeal the Settlement Act also respects congressional intent. As the 

Narragansett court explained, "courts should endeavor to read antagonistic statutes together in the 

manner that will minimize the aggregate disruption of congressional intent."139 As was the case there, 

"reading the two statutes to restrict state jurisdiction over gaming honors [IGRA] and, at the same time, 

leaves the heart of the Settlement Act untouched."140 Although we find a partial implied repeal of the 

Settlement Act, we highlight that IGRA "left undisturbed the key elements of the compromise embodied 

in the Settlement Act. It also left largely intact the grant of jurisdiction, except that portion of jurisdiction 

touching on gaming." 141 Therefore, as the Narragansett court found, we find that "the provisions of 

[IGRA] apply with full force" to the Tribe's Settlement Lands. 142 

CONCLUSION 

IGRA applies if a tribe has not been divested of jurisdiction through an exclusive grant of jurisdiction to 

the state or through an explicit divesture of tribal jurisdiction. Section I 771 g of the Settlement Act does 

not grant exclusive jurisdiction to the State, and Section 177le(a) of the Settlement Act does not divest 

the Tribe of jurisdiction. For this reason, IGRA applies on the Settlement Lands. The Settlement Act and 

IGRA are repugnant regarding provisions related to State jurisdiction over gaming and for this reason 

cannot be read in harmony. Because JGRA post-dates the Settlement Act, the Settlement Act does not 

contain a savings clause, and lORA's applicability furthers congressional intent, IGRA impliedly repeals 

those portions of the Settlement Act pertaining to State jurisdiction over gaming. 143 Therefore, the 

Settlement Act does not prohibit the Tribe from gaming on the Settlement Lands. 

Sincerely, 

Associate 

!::!!fi~ Solicitor, Division of Indian Affairs 

137 Narragansett Indian Tribe, 19 F.3d at 704. 138 However, it should be noted that the Fifth Circuit in Ysleta found noteworthy the fact that the restoration act at 

issue there had been passed just one year prior to lGRA and had not been expressly repealed by IGRA. Ysleta del 

Sur Pueblo, 36 F.3d at 1335 ("Congress, when enacting lGRA less than one year after the Restoration Act, explicitly 

stated in two separate provisions ofiGRA that IGRA should be considered in light of other federal law. Congress 

never indicated in JGRA that it was expressly repealing the Restoration Act. Congress also did not include in IGRA 

a blanket repealer clause as to other laws in conflict with IGRA.") (internal footnote omitted). 139 Narragansett Indian Tribe, 19 F.3d at 704. 

140 !d. 

141 fd. ("The Gaming Act leaves undisturbed the key elements of the compromise embodied in the Settlement Act. It 

also leaves largely intact the grant of jurisdiction-but it demands an adjustment of that portion of jurisdiction 

touching on gaming."). 

142 !d. . 143 Per the holding in Narragansett, however, the State retains those portions of jurisdiction over class III gammg 

granted by JGRA. Narragansett Indian Tribe, 19 F.3d at 704 n.l3 ( "(I]n connection with class III gammg, the 

Gaming Act does not in itself negate the state's jurisdiction, but, instead, channels the state'sJunsdictiOn through the 

tribal-state compact process."). 

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