A narrow ruling by the First Circuit Court of Appeals: A case analysis

The April 10 ruling by the U.S. Court of Appeals for the First Circuit confirming the Wampanoag Tribe’s right to operate an electronic bingo parlor on tribal land in Aquinnah was narrowly focused. The decision by the three-judge panel did not touch on the tribe’s sovereignty, and barely addressed its jurisdiction.

(In the interest of full disclosure, I serve on the board of directors of the Aquinnah/Gay Head Community Association, a party to this case. The views expressed here are, however, mine alone, and do not represent those of the association or its board.)

The Circuit Court focused on two conflicting federal laws. The first, passed by Congress in 1987, together with a 1985 law enacted by the commonwealth, confirmed and implemented a settlement agreement between the tribe and Massachusetts, Aquinnah, and the Aquinnah/Gay Head Community Association. The goal was to provide a way to achieve comity and cooperation between the tribe, the town, and the commonwealth.

Long in the making, the agreement achieved two goals: It guaranteed the tribe’s possession of a large tract of land of some 485 acres, and it ensured the tribe’s agreement to abide by all generally applicable state and town civil and criminal laws and regulations. This requirement included the review, approval, and permitting of any given land-use proposal such as those involving the town, the Martha’s Vineyard Commission, and the commonwealth.

The federal law specifically prohibited the tribe from offering “bingo or any other game of chance.”

One year later, in 1988, the same Congress passed another law that seemed in part to contradict the settlement agreement. The Indian Gaming Regulatory Act (IGRA) set out the procedures by which Indian tribes around the country may enter agreements with state governments to establish gambling operations. The law outlined three classes of gaming: Class I, traditional Native American gaming; Class II, bingo; Class III, casinos.

As The MV Times pointed out in its April 13 story, then-Gov. Deval Patrick declined to negotiate a gaming compact with the tribe. He determined at the time that based on the settlement agreement, the tribe did not possess federal rights to negotiate a compact with the commonwealth. The tribe then claimed it had a right to open a Class II bingo parlor in its community center on tribal land because IGRA superseded the settlement agreement.

The commonwealth, Aquinnah, and the community association challenged the tribe’s application for a Class II bingo operation. Two years ago, federal District Court Judge F. Dennis Saylor IV, in a summary judgment, ruled that IGRA did not apply to the settlement lands. Now, in reversing Judge Saylor’s decision, the three-judge panel held that the tribe possessed “sufficient governmental power” to satisfy the IGRA requirements for a Class II operation, and that IGRA repealed, in part, the 1987 congressional confirmation of the settlement agreement, namely the part that prohibited a Wampanoag electronic bingo hall.

Writing on behalf of his two colleagues, Judge Juan R. Torruella focused only on Class II bingo. He declined to rule that IGRA superseded the entire settlement agreement. Nor did he address whether the tribe exercised sovereignty over its lands.

In fact, Judge Torruella never once mentioned the word “sovereignty.” And only once did he use the term “sovereign,” and that was in reference to the Narragansett Tribe of Rhode Island, not the Aquinnah (Gay Head) Wampanoags.

But if the issue is not one of sovereignty, is it one of jurisdiction?

In fact, the courts have distinguished sovereignty from jurisdiction. Take, for example, the 2004 case of Rasul v. Bush, when the Supreme Court took on the issue head-on. The question the Supreme Court had to answer was whether detainees held on the U.S. Naval Station in Guantanamo Bay, Cuba, possessed habeas corpus rights, that is, whether they had the right to ask a federal court if the United States government was justified in holding them.

Government officials in the George W. Bush administration specifically chose the Guantanamo Bay Naval Station because they thought that detainees housed on soil over which the government exercised neither sovereignty nor jurisdiction could never appeal their cases to a federal court.

Writing for a majority of six to three, Justice John Paul Stevens disagreed by distinguishing sovereignty from jurisdiction. He ruled that Cuba exercised full “ultimate” sovereignty over the Naval Station because of the station’s location in a foreign country. However, because the United States controls the rules and regulations of the station, it “exercises plenary and exclusive jurisdiction” there.

While clearly the subject matter of the two cases differs (one about gaming, the other detentions), the Supreme Court’s distinction of sovereignty and jurisdiction is germane.

The commonwealth and the town together exercise ultimate sovereignty over tribal land because of the settlement agreement the tribe entered into with Massachusetts, Aquinnah, and the community association. On the other hand, because of the newer IGRA, enacted less than a year after the 1987 federal act by the same Congress that endorsed the settlement agreement, the tribe exercises plenary and exclusive jurisdiction, but in this case only in terms of Class II gaming.

As Judge Torruella noted, a tribe’s exercise of jurisdiction over settlement lands, which for the Wampanoags remain unchanged because of his opinion, does not extend to “the civil regulatory and criminal laws of [the commonwealth and the town], and applicable Federal Law.” The tribe and the town enjoy shared jurisdiction over these lands, now with the exception of a Class II electronic bingo hall that the tribe may operate.

This is likely why Judge Torruella focused on bingo alone. He adopted a 1991 precedent set in a U.S. Court of Appeals for the Second Circuit: “The proper mode of analysis for cases that involve a perceived conflict between two federal statutes is that of implied repeal” [emphasis added]. On the other hand, because the rule is that federal courts should do everything possible to reconcile conflicting statutes, Judge Torruella took the narrowest route possible: The “implied repeal” he focused on is gaming, but not gaming in its broadest sense, but rather only in terms of electronic bingo.

The Circuit Court also cited an 1870 case involving a defendant who counterfeited his citizenship. At the time, two laws were at odds with one another. Justice Stephen Field, one of the great justices of the 19th century, ruled that “when there are two acts on the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first.” (“Repugnancy” was a term often used by English common-law judges, as early as the 16th century, when they declared laws “repugnant” when they ruled that laws passed by American colonial assemblies violated the laws of England.)

In this instance, IGRA in part contradicts the settlement agreement as ratified by Congress insofar as it relates to Class II bingo halls. Gaming is, after all, the subject of IGRA, nothing more, nothing less. Whether the 1870 case is still good law after nearly 150 years is an open question.

It would have been useful for the three judges to have investigated IGRA’s legislative history. In other words, the judges might have reviewed the documents from congressional hearings and the findings that followed from them to determine Congress’s intentions at the time IGRA was debated and passed. The court never cited any of these documents.

In any event, it seems unexceptional to conclude that the opinion was narrowly drawn. The First Circuit did not repeal or limit the general requirements and desired collaboration embodied in the settlement agreement between the tribe and town. Nor did it disturb the relevant federal and commonwealth laws regarding the review and approval processes that apply to the tribe concerning land-use projects in Aquinnah, the Island, or elsewhere.

Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University. His latest book is “American Constitutional History: A Brief Introduction.”