
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1400                            STATE OF RHODE ISLAND, ET AL.,                               Plaintiffs, Appellants,                                          v.                          NARRAGANSETT INDIAN TRIBE, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                              _________________________               W. Mark Russo,  with whom Jeffrey B. Pine, Attorney General,               _____________             _______________          Alan M.  Shoer,  Special Assistant  Attorney  General,  Elizabeth          ______________                                          _________          Murdock Myers, Suzanne Worrell, and Adler, Pollock & Sheehan were          _____________  _______________      ________________________          on brief, for state appellants.               Bruce N. Goodsell on brief for municipal appellants.               _________________               Scott  Harshbarger,  Attorney  General  (Mass.),  Douglas H.               __________________                                __________          Wilkins,   Assistant   Attorney  General   (Mass.),   Michael  J.          _______                                               ___________          Carpenter,  Attorney General  (Me.),  and Frankie  Sue Del  Papa,          _________                                 ______________________          Attorney  General (Nev.)  on brief  for States  of Massachusetts,          Maine, and Nevada, amici curiae.               Charles A. Hobbs, with whom Arlene Violet, Matthew S. Jaffe,               ________________            _____________  ________________          and Hobbs, Straus, Dean & Wilder were on brief, for appellees.              ____________________________                              _________________________                                    March 23, 1994                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          determine whether the Indian Gaming  Regulatory Act, 25 U.S.C.             2701-2721,  18  U.S.C.      1166-1168 (1988)  (the  Gaming  Act),          applies  to lands now held in trust  by the United States for the          benefit of  the  Narragansett Indian  Tribe  (the Tribe).    This          determination is  tinged with  more than  the  usual quotient  of          public  interest, because  the Tribe's  ability to  import casino          gambling  into Rhode Island likely  hangs in the  balance.  After          careful  reconnaissance of  a  littered legal  landscape, we  set          aside  the  district  court's  determination  that  the  parties'          dispute over the  applicability of state jurisdiction  is not yet          ripe  for   adjudication  and  hold  that   Congress's  grant  of          jurisdiction  to  the state  in  the Rhode  Island  Indian Claims          Settlement  Act of 1978,  25 U.S.C.     1701-1716 (the Settlement          Act),  remains  valid.   We also  hold,  contrary to  the Tribe's          importuning,   that   the   grant   includes   civil   regulatory          jurisdiction.                    At that juncture, the tide turns.  We conclude, despite          the  state's  vehement protests,  that  the Gaming  Act  does not          specially exempt  the lands  in question; that  the Narragansetts          have  concurrent  jurisdiction  over, and  exercise  governmental          power with respect  to, those lands, and, therefore, are entitled          to  invoke  the Gaming  Act;  and  that,  to the  extent  of  the          jurisdictional conflict between the Settlement Act and the Gaming          Act,  the former is  impliedly repealed.   In the  end, we affirm          both  the district court's directive that Rhode Island enter into                                          2          good  faith negotiations  to draft  a tribal-state  compact under          which gaming operations can  be mounted and its refusal  to grant          relief  to various  governmental  figures and  entities who  have          challenged   the   Tribe's  entitlement   to   the  extraordinary          prophylaxis of the Gaming Act.          I.  THE SETTLEMENT LANDS          I.  THE SETTLEMENT LANDS                    We begin with a  thumbnail sketch of how the  land mass          that is the breeding ground  for this dispute came to be  held in          trust for the Tribe.                    In the  late 1970s, the Tribe asserted  title claims to          certain lands  in  Charlestown, Rhode  Island, and,  encountering          resistance, pursued these claims in the federal courts.  See Town                                                                   ___ ____          of Charlestown v. United States, 696 F. Supp. 800, 801-05 (D.R.I.          ______________    _____________          1988) (recounting history of dispute), aff'd, 873  F.2d 1433 (1st                                                 _____          Cir. 1989) (table).  In 1978,  the Tribe, the state, and the Town          of Charlestown signed a joint memorandum of understanding (J-MEM)          purporting  to settle their differences.  The Tribe agreed, inter                                                                      _____          alia, to the extinguishment of  its title claims.  In  return, it          ____          obtained valuable consideration, including a lump-sum payment and          effective  control over  roughly 1800  acres in  Charlestown (the          settlement  lands), half donated by the state and half by private          landowners.1  The titleholders  agreed to deed the property  to a                                        ____________________               1The  provenance of  the two  parcels remains  of continuing          legal relevance because the 900 acres donated by the state may be          used only for conservation purposes.  See 6A R.I. Gen. Laws   37-                                                ___          18-14  (1990).    Thus,  the  development  plan  for  high-stakes          gambling  is  of necessity  limited  to  the so-called  "private"          portion of the settlement lands.                                          3          nascent corporation which would  be formed to hold title  for the          Tribe's benefit.                    Because  Congress possesses  plenary power  over Indian          matters,  see Morton v. Mancari, 417 U.S. 535, 551-52 (1974), the                    ___ ______    _______          parties  sought its blessing.   In response,  Congress passed the          Settlement Act, a law that, for the most part,  tracks the J-MEM.          In 1978,  the state legislature approved  the Narragansett Indian          Land  Management Corporation Act, 6A R.I. Gen. Laws    37-18-1 to          37-18-15  (1990) (the  State Act),  thereby creating  the nominee          corporation that would hold  title to the settlement lands.   The          necessary conveyancing followed.                    The next  five years passed  without relevant incident.          Then,  in 1983, the Secretary of the Interior, acting pursuant to          departmental  regulations,  see  25   C.F.R.,  Part  83   (1993),                                      ___          officially recognized  the Narragansetts as an Indian tribe.  See                                                                        ___          48 Fed. Reg.  6177-78 (Feb. 2,  1983).  On  the heels of  federal          recognition, the settlement  lands changed hands twice more.   In          1985,  the Rhode Island General Assembly amended the State Act to          permit the holding company to transfer  title to the Tribe.2  The          corporation  complied.  In September  of 1988, less  than a month                                        ____________________               2The   State   Act   amendments   themselves   suggest  that          congressional  approval of  the  land transfer  is "required  and          appropriate,"  6A R.I. Gen. Laws    37-18-14, and the case law is          in  accord, see Oneida Indian  Nation v. Oneida  County, 414 U.S.                      ___ _____________________    ______________          661, 667-68 (1974)  (explaining that, as  a general rule,  Indian          tribes  may  not   alienate  their  land  without   congressional          consent).  Yet, Congress never ratified the State Act amendments.          Because the validity  of the  title transfer is  not directly  in          issue  in  this  litigation,  and  because  appellants  have  not          acknowledged, much less relied upon, the absence of ratification,          we do not explore the consequences of this omission.                                          4          before the Gaming Act became law, the Tribe deeded the settlement          lands to the  federal Bureau  of Indian Affairs  (the Bureau)  as          trustee.          II.  THE GAMING ACT          II.  THE GAMING ACT                    The Gaming Act is an  expression of Congress's will  in          respect to  the incidence of gambling activities on Indian lands.          The statute  sets in place a  sophisticated regulatory framework,          defining  a species of gambling, called "gaming," and dividing it          into tiers,  called "classes."   Each class connotes  a different          level  of  gambling activity  and,  consequently,  each class  is          regulated to a  varying degree of stringency.   See 25 U.S.C.                                                              ___          2703(6) - 2703(8).                    Class I gaming   which consists, essentially, of Indian          ritual gambling   always can  be conducted on Indian lands.   See                                                                        ___          25  U.S.C.    2710(a)(1).   Class II  gaming    which encompasses          bingo    can  be conducted  as of  right on  Indian lands  in any          state,  such as Rhode  Island, that does  not generally proscribe          activities of that type.   See 25 U.S.C.   2710(b)(1)(A).   Class                                     ___          III gaming   a  residual category that includes what  is commonly          thought of as  casino gambling    is permitted  by compact;  and,          moreover, a state  is obliged to negotiate such a compact in good          faith with a sponsoring  tribe unless the state bans  all persons          throughout its territory from conducting  class III gaming.   See                                                                        ___          25 U.S.C.   2710(d).   Short of an outright  ban   and few  state                                          5          legislatures have indicated a  willingness to go that far3    the          tribal-state compact is the  exclusive method of regulating class          III gaming.   The method of the Gaming Act  prevents a state from          frustrating the introduction  of class III  gaming by an  endless          filibuster,  for there  are  tight time  parameters within  which          compact negotiations must be  brought to fruition once a  federal          court  finds that  a state has  failed to bargain  in good faith.          See id.    2710(d)(7)(B).  As  a practical matter, then,  a state          ___ ___          ordinarily may regulate  casino gambling on Indian  lands only in          pursuance of a consensual compact.                    Because  the  case at  bar  revolves  around class  III          gaming,  the   centrality   of  this   last   point   cannot   be          overstated.  One of the Gaming Act's fundamental policies is that          "Indian  tribes  have  the  exclusive right  to  regulate  gaming          activity  on  Indian  lands .  .  .  ."    Id.    2701(5).    The                                                     ___          legislative history of the statute draws  out the implications of          this policy:                    The  mechanism  for facilitating  the unusual                    relationship   in   which   a   tribe   might                    affirmatively  seek  the  extension of  State                    jurisdiction  and  the  application of  state                    laws  to activities conducted  on Indian land                    is a tribal-State  compact.   In no  instance                    does   [the   Gaming  Act]   contemplate  the                    extension  of  State   jurisdiction  or   the                    application  of  State  laws  for  any  other                    purpose.                                        ____________________               3There are strong economic and political disincentives to an          outright  ban,  for class  III  gaming  encompasses, among  other          things,  such popular sources of state  revenue as lotteries, and          such  familiar  fundraising  devices  as "Las  Vegas  nights"  to          benefit churches and other charities.                                          6          S.  Rep. No.  446, 100th  Cong.,  2d Sess.  3, reprinted  in 1988                                                         _________  __          U.S.C.C.A.N. 3071, 3075-76.                    Under  our tripartite  system of  government, Congress,          not  the courts, is empowered  to make such  policy choices.  See                                                                        ___          Irons  v. FBI, 811 F.2d  681, 689 (1st  Cir. 1987) (acknowledging          _____     ___          that  the legislative branch sets policy by means of statutes and          the  courts  must  honor  the legislature's  policy  choices  and          enforce the statutes).  Thus, the  courts have not focused on the          wisdom  of  the policies  underlying  the  Gaming Act,  but  have          followed  the  legislative  lead  and recognized  that  the  very          structure  of the Gaming Act forbids the assertion of state civil          or criminal  jurisdiction over class  III gaming except  when the          tribe  and the state have negotiated a compact that permits state          intervention.    See, e.g.,  United  Keetoowah  Band of  Cherokee                           ___  ____   ____________________________________          Indians v. Oklahoma, 927 F.2d 1170, 1177 (10th Cir. 1991); Sycuan          _______    ________                                        ______          Band of Mission Indians v. Roache,  788 F. Supp. 1498, 1504 (S.D.          _______________________    ______          Cal. 1992).          III.  PROCEEDINGS BELOW          III.  PROCEEDINGS BELOW                    On January 15, 1992,  the Tribe formally requested that          Rhode Island enter into good faith bargaining designed to produce          a  tribal-state  compact  that   would  allow  construction   and          operation of a casino, i.e., inauguration of class III gaming, on                                 ____          the  settlement  lands.    Rhode Island  declined  to  negotiate,          instead  filing suit in the  federal district court.4   The state                                        ____________________               4As  matters now  stand,  the  named plaintiffs  (appellants          before us) include  the state,  the town, and  various state  and          municipal  officials.   For simplicity's  sake, we  refer  to the                                          7          asked the court to declare that the Gaming Act does  not apply to          the  settlement  lands,  and  that, therefore,  those  lands  are          subject  to  Rhode  Island's  general  criminal  and  civil  laws          (including  its civil regulatory laws).  The state also sought to          enjoin the  development of gambling facilities  on the settlement          lands  and to  block  negotiations antecedent  to a  tribal-state          compact.   The Tribe answered and  counterclaimed for declaratory          and injunctive relief that would pave the way for casino gambling          on  the  settlement lands.    The  tribe requested,  among  other          things, a  declaration that the state's civil  regulatory laws do          not  apply  to  the  settlement lands;  a  declaration  that  the          Narragansetts are entitled to operate a class III casino on those          lands  in  conformance with  the  Gaming  Act;  and  a  mandatory          injunction commanding the state to negotiate in good faith toward          a compact.                    The district court considered cross motions for summary          judgment premised  on a joint statement  of uncontroverted facts.          After  pondering  the  parties'  proffers,  the   court  deferred          substantive  consideration  of  the  dispute  over  the   general          applicability  of state  and local jurisdiction,  citing ripeness          concerns.  See Rhode Island v. Narragansett Tribe of Indians, 816                     ___ ____________    _____________________________          F. Supp. 796, 799-800 (D.R.I. 1993).  The court then assumed, for          argument's  sake, that  the state  had been  granted jurisdiction                                        ____________________          plaintiffs,  collectively,  as  "Rhode  Island"  or "the  state."          Similarly,  we refer  to  the defendants,  collectively, as  "the          Narragansetts" or "the Tribe," noting, however, that  plaintiffs'          suit also names two tribal hierarchs as defendants.                                          8          over the settlement  lands by virtue of the  Settlement Act.  See                                                                        ___          id. at 804.   Proceeding on that assumption, the  court concluded          ___          that  any  such grant  was "preempted"  by  the Gaming  Act, and,          consequently, had  no enduring force  or effect.   Id.  Based  on                                                             ___          these  findings, the court ordered  the state to  enter into good          faith negotiations  to formulate a tribal-state compact.  See id.                                                                    ___ ___          at 806.                    In  reaching   the  conclusion  that  the   Gaming  Act          controlled,  the court  divided  its reasoning  into four  parts.          First, it  cited with approval three precedents  holding that the          Gaming Act  overrode other  federal statutes of  earlier vintage.          See id. at  801-02.  Second, it found  the evidence of Congress's          ___ ___          intent to place Rhode Island beyond the Gaming Act's sphere to be          unpersuasive  in the absence  of textual support  in the statute.          See id. at 802-04.   Third, it dismissed the  suggestion that the          ___ ___          Gaming  Act could not trump the Settlement Act because the former          was the  more general of the  two statutory schemes.   See id. at                                                                 ___ ___          804.  Fourth,  it determined that the  Tribe "ha[d] jurisdiction"          and "exercise[d] governmental power" over the settlement lands in          sufficient measure to animate the Gaming Act.  See id. at 805-06.                                                         ___ ___                    After the  plaintiffs filed a timely  notice of appeal,          the district court stayed its order.5          IV.  THE DECISIONAL FRAMEWORK          IV.  THE DECISIONAL FRAMEWORK                                        ____________________               5The Tribe originally cross-appealed  from the stay and from          the denial of  its motion for  relief therefrom.   In a  separate          order,  we  today dismiss  that  cross-appeal,  the Tribe  having          failed to present any developed argumentation in support thereof.                                          9                    The search for statutory  meaning inevitably reduces to          a pure question of law.   Thus, the issues on appeal  engender de                                                                         __          novo review,  to be conducted  without special  deference to  the          ____          district court's views.   See,  e.g., FDIC v.  Keating, ___  F.3d                                    ___   ____  ____     _______          ___, ___ (1st  Cir. 1993) (per curiam) [No. 93-1230,  slip op. at          4]; Liberty Mut. Ins. Co. v. Commercial Union Ins.  Co., 978 F.2d              _____________________    __________________________          750, 757  (1st Cir. 1992).  When a court interprets statutes that          touch on Indian sovereignty, general rules of construction apply,          but  they must be visualized from a distinctive perspective.  The          Court has described this coign of vantage:                    The underlying premise is  that congressional                    intent  will  control.   In  determining this                    intent,  we  are  cautioned  to  follow  "the                    general rule that `[d]oubtful expressions are                    to be resolved  in favor of [Indians]". . . .                    But  the  "general rule"  does not  command a                    determination   .  .   .  in   the   face  of                    congressionally  manifested   intent  to  the                    contrary.   In  all cases,  "the face  of the                    Act,"  the  "surrounding circumstances,"  and                    the "legislative history," are to be examined                    with   an   eye   toward   determining   what                    congressional intent was.          Rosebud  Sioux  Tribe  v.  Kneip, 430  U.S.  584,  586-87  (1977)          _____________________      _____          (citations omitted);  see also  South Carolina v.  Catawba Indian                                ___ ____  ______________     ______________          Band, 476 U.S. 498, 506 & n.16 (1986) (collecting cases).          ____                    Our  search follows  an  odd trajectory  in this  case,          because it starts down  a road that the district court  chose not          to  explore, and, once that  journey is ended,  proceeds to trace          the path of an argument that  ultimately proves to be a dead end.          Although this approach is  unorthodox, we think it  facilitates a          systematic  testing of the appellants' core contention:  that the                                          10          settlement lands lie beyond the Gaming Act's reach.                    The nature of  our approach makes it  desirable that we          set out  a roadmap.  We  propose, in the following  two parts, to          deal with the Settlement Act, for, if that statute did not confer          state jurisdiction  in  respect to  the settlement  lands, or  if          state  jurisdiction, once  conferred, vanished before  the Gaming          Act  materialized,   then  the  state's  case  would  necessarily          founder.    To  this  end,  we discuss  in  Part  V  whether  the          jurisdictional inquiry is ripe; finding that it is, we discuss in          Part VI the validity and scope  of the jurisdiction ceded to  the          state by the Settlement Act.                    Next,  we must consider the Gaming  Act's effect on the          state's  jurisdiction.  In Part VII, we  deal with   and rebuff            the  state's suggestion  that the  settlement lands  are entirely          exempt from the  Gaming Act.   In Part VIII,  we deal with    and          rebuff   the  state's argument  that, even  absent a  categorical          exemption, the Tribe's relationship  to the settlement lands does          not possess  the attributes  needed to  trigger the  Gaming Act's          provisions.   The final curtain  falls at the  conclusion of Part          IX, where  we confront the  interface between the  Settlement Act          and  the Gaming Act, and test the district court's remedial order          in the crucible of our understanding.          V.  RIPENESS          V.  RIPENESS                    The lower  court declined to resolve the issue of state          and local  jurisdiction, finding no "case  of actual controversy"          sufficient to satisfy  the Declaratory Judgment Act, 28  U.S.C.                                            11          2201 (1988).  Narragansett Tribe, 816 F. Supp at 800.   Though we                        __________________          are mindful of the  deference due to a district  court's decision          to  withhold a grant  of declaratory relief, see  El Dia, Inc. v.                                                       ___  ____________          Hernandez  Colon, 963 F.2d 488,  492 (1st Cir.  1992), we believe          ________________          that the court abused its discretion in this instance.                            A.  The Applicable Standards.                            A.  The Applicable Standards.                                ________________________                    When   faced  with   questions  of   ripeness   in  the          declaratory  judgment  context,  this   court  employs  the  test          developed in  Abbott Laboratories v.  Gardner, 387 U.S.  136, 149                        ___________________     _______          (1967).  The test, as phrased in our cases, contains two parts:                    First,  we consider whether  an issue  is fit                    for  review,  e.g.,   whether  a   challenged                    government  action  is   final  and   whether                    determination of the merits turns  upon facts                    which  may not yet be sufficiently developed.                    Second, we consider the question of hardship,                    a question which typically turns upon whether                    the  challenged action  creates a  direct and                    immediate dilemma for the parties.          El  Dia, 963 F.2d at  495 (citation and  internal quotation marks          _______          omitted); accord W.R. Grace & Co. v. United States  EPA, 959 F.2d                    ______ ________________    __________________          360, 364 (1st Cir. 1992).  The key consideration in this analysis          "is  the  extent  to  which  the  claim  involves  uncertain  and          contingent events  that may not  occur as anticipated,  or indeed          may not  occur at all."   Lincoln House, Inc. v.  Dupre, 903 F.2d                                    ___________________     _____          845,  847 (1st Cir. 1990)  (citation and internal quotation marks          omitted).                    Applying this test in the  declaratory judgment context          often  requires  custom tailoring,  for  there are  at  least two          salient differences between declaratory actions and the  mine-run                                          12          of other cases:   first, declaratory relief is  more likely to be          discretionary;  and, second,  declaratory actions  contemplate an          "ex ante  determination of rights"  that "exists in  some tension           _______          with traditional notions of  ripeness."  Step-Saver Data Systems,                                                   ________________________          Inc. v. Wyse Technology, 912  F.2d 643, 647 (3d Cir. 1990).   Our          ____    _______________          opinion  in El Dia responded  to the first  of these differences.                      ______          See  El Dia,  963 F.2d at  491-93.   We believe  that our opinion          ___  ______          today responds to the second difference.                    The linchpin of ripeness under the Declaratory Judgment          Act,  as  in all  Article  III  cases,  is  adverseness.    In  a          declaratory judgment  action adverseness  must be appraised  in a          practical,  commonsense way.    Thus, satisfying  the adverseness          requirement  demands  that  "the  facts alleged,  under  all  the          circumstances,  show  that  there is  a  substantial controversy,          between  parties having  adverse legal  interests, of  sufficient          immediacy and reality  to warrant the  issuance of a  declaratory          judgment."  Maryland Casualty Co. v. Pacific Coal &  Oil Co., 312                      _____________________    _______________________          U.S. 270,  273 (1941), citing Aetna Life Ins. Co. v. Haworth, 300                                        ___________________    _______          U.S.  227, 239-42 (1937).  This requirement should not be applied          woodenly.   Most litigation  has idiosyncratic features,  and the          adverseness criterion invites careful  calibration on a  case-by-          case basis.   The  line  is often  difficult to  draw.   While  a          declaratory  judgment  should  not  be  granted  "in  speculative          situations," Public  Affairs Assocs., Inc. v.  Rickover, 369 U.S.                       _____________________________     ________          111,  112  (1962),  a  litigant  "does  not  have  to  await  the          consummation of  threatened injury to  obtain preventive  relief.                                          13          If  the injury is certainly  impending that is  enough."  Pacific                                                                    _______          Gas  & Elec.  Co.  v. State  Energy  Resources Conserv.  &  Dev't          _________________     ___________________________________________          Comm'n, 461 U.S. 190, 201 (1983) (citation omitted).          ______                    One sound way of gauging adverseness is to evaluate the          nature of the  relief requested.   The controversy  must be  such          that it admits of "specific relief through a decree of conclusive          character, as distinguished from an opinion advising what the law          would be  upon a hypothetical state  of facts."  Aetna  Life, 300                                                           ___________          U.S. at 240-41.   Some  courts call this  measure of  adverseness          "conclusivity" and  treat it  as  a separate  requirement.   See,                                                                       ___          e.g., Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 421-23          ____  ____________________________    _____          (3d Cir. 1992).                    The  second  part of  the  ripeness  inquiry evoked  by          declaratory judgment  actions is  concerned with the  hardship to          the parties that would result from a refusal to consider granting          relief.  We believe that this part of the inquiry should focus on          the  judgment's  usefulness.    Rather than  asking,  negatively,          whether denying relief would impose hardship, courts will do well          to  ask, in a more  positive vein, whether  granting relief would          serve  a useful purpose, or, put another way, whether the sought-          after declaration would be of practical assistance in setting the          underlying controversy to rest.  See Step-Saver, 912 F.2d at 647.                                           ___ __________                    This  formulation is  hardly a  radical departure  from          Abbott  Laboratories and  its progeny,  for the one  question may          ____________________          always be transformed into the  other.  For example, to say  that          denying  relief is tolerable  where an adequate  state remedy has                                          14          been realized is tantamount to saying that granting the requested          relief in such a situation  would be pointless.  See El  Dia, 963                                                           ___ _______          F.2d at 495.   Indeed, the Court some time  ago observed that one          reason the  legal issues  must be  crystallized in a  declaratory          action is to  enable the trial judge to see  "some useful purpose          to  be  achieved in  deciding them."    Public Service  Comm'n v.                                                  ______________________          Wycoff Co., 344 U.S.  237, 244 (1952).  Furthermore,  framing the          __________          hardship  question in a  positive fashion best  comports with the          spirit  of  the  Declaratory  Judgment  Act.    As  Judge  Becker          explained:    "The  idea behind  the  Act  was  to clarify  legal          relationships so that plaintiffs (and possibly  defendants) could          make responsible  decisions about  the future."   Step-Saver, 912                                                            __________          F.2d at 649 (citing legislative history).                             B.  Applying the Standards.                             B.  Applying the Standards.                                 ______________________                    Here, the  district court's  ruling on  ripeness flowed          from the  notion that neither the  state nor the town  would have          any occasion to exercise  reserved jurisdiction until the compact          negotiation process ended, thereby clearing the way for class III          gaming.  Narragansett Tribe, 816 F.  Supp. at 799-800.  The court                   __________________          seemed to focus  on the uncertainty of  the situation, suggesting          that the need for the relief requested depended on the occurrence          of speculative events.  We disagree.                    Whether   state  and   local  authorities   retain  any                                                                        ___          jurisdiction over the settlement lands is a question of immediate          importance to all parties,  separate and apart from  the question          of  precisely what  state and  local  jurisdiction survives.   We                                          15          think,  in fairness to the parties, that the former question must          be settled before they are ordered to commence negotiations for a          tribal-state compact.  Because the required interpretation of the          Settlement  Act projects a "purely  legal" issue, W.R. Grace, 959                                                            __________          F.2d  at 364,  the resolution  of which  will not  be changed  by          further  factual  development,  and  because it  is  of  critical          importance to the negotiation  process in which the  parties must          engage,  see  infra  Part  IX(B),  the  case  for  a  finding  of                   ___  _____          adverseness  is very powerful.   And, moreover, while  it is true          that the compact negotiations may bear on the timing of class III          gaming and  the  allocation of  regulatory responsibilities,  the          negotiations cannot  effect the existence  vel non  of state  and                                                     ___ ___          local jurisdiction.                    The  impetus for  reaching the  merits  is strengthened          because the  other characteristics traditionally  associated with          ripeness are also extant.   We have no serious  reservation about          whether  the proper parties are  before the court  or whether the          requested  ruling  will,  if  granted,  conclusively  define  the          parties' baseline legal  rights.   By like token,  such a  ruling          would be of  great near-term utility, facilitating  the course of          future tribal-state compact negotiations  and clarifying to  some          extent the legal  status of the settlement  lands at a time  when          substantially expanded  use seems highly probable.   Accordingly,          we  rule that  the basic  issue of  state and  local jurisdiction          (although  not the specific,  fact-intensive permutations of that          issue, see  infra Part  IX(C)) is ripe  for declaratory  judgment                 ___  _____                                          16          purposes.          VI.  STATE AND LOCAL JURISDICTION          VI.  STATE AND LOCAL JURISDICTION                    Addressing  the  merits   of  this  issue  entails   an          examination of the validity and scope of the Settlement Act.  The          Act  states that, with  two exceptions  not relevant  here,6 "the          settlement  lands shall be subject to the civil and criminal laws          and jurisdiction  of the  State of  Rhode Island."   25 U.S.C.             1708.  The  Tribe maintains that this pronouncement  was nugatory          when made, or, if initially effective, was relegated to the scrap          heap well before Congress enacted the Gaming Act.  The Tribe also          maintains  that,  validity  aside,  any  grant   of  jurisdiction          excludes civil  regulatory jurisdiction, and,  therefore, has  no          bearing upon the proposed operation of a gambling casino.  We are          not persuaded.                                    A.  Validity.                                    A.  Validity.                                        ________                    The Tribe's basic position  is that, even prior  to the          Gaming Act, section 1708 of the Settlement Act did not constitute          a   valid  conferral  of   jurisdiction  because,  until  federal          recognition occurred in  1983, the Tribe  had no jurisdiction  to          relinquish.                    This resupinate reasoning stands logic on its ear.  The          Tribe did not surrender jurisdiction in 1978.  Rather, the Tribe,                        _________          the state,  and the town came to an agreement, spelled out in the          J-MEM, to ask Congress, among other things, to grant jurisdiction                                        ____________________               6The exceptions relate to the Tribe's general exemption from          state taxation, 25 U.S.C.   1715(a), and its exemption from state          regulations anent fishing and hunting, 25 U.S.C.   1706(a)(3).                                          17          to  the  state.    The  Tribe  has  articulated  no  reason  why,          regardless  of its  legal status,  Congress lacked  the power  to          effectuate this jurisdictional grant.                    In any event,  the Tribe is  mistaken in its  professed          belief that it  lacked jurisdictional  power at the  time of  the          Settlement Act.  Federal  recognition is just that:   recognition          of a previously existing status.  The purpose of the procedure is          to "acknowledg[e] that certain American Indian tribes exist."  25          C.F.R.   83.2 (1993).   The Tribe's retained sovereignty predates          federal  recognition    indeed,  it  predates  the birth  of  the          Republic, see Santa  Clara Pueblo  v. Martinez, 436  U.S. 49,  56                    ___ ___________________     ________          (1978)    and it may be  altered only by an  act of Congress, see                                                                        ___          Morton, 417 U.S. at 551-52.7           ______                    The Tribe  has two  other arrows in  its jurisdictional          quiver.  First, it hypothesizes that section 1708 did not survive          federal  recognition.  This hypothesis is the mirror image of the          hypothesis  just  considered:   rather  than  being  cast as  the          prerequisite  for the conferral  of jurisdiction,  recognition is          taken  to  have nullified  that  conferral.   The  two hypotheses          suffer from the same infirmity.   Tribal sovereignty (and, hence,          jurisdiction)  may  be  neither augmented  nor  diminished except                                        ____________________               7This  legal  principle  also  disposes  of  certain   other          arguments  raised by the  Tribe.   Thus, the  Tribe's sovereignty          could  not have  been eviscerated by  an act of  the Rhode Island          General  Assembly,  unratified  by  Congress, that  purported  to          extinguish  tribal  status,  see  1879-1880  Acts,  Resolves  and                                       ___             ____________________          Reports of the General Assembly of the State  of Rhode Island and          _________________________________________________________________          Providence Plantations, Chap. 800, at 101-06, or by  the issuance          ______________________          of mere administrative  notices, see, e.g., 48 Fed.  Reg. 6177-78                                           ___  ____          (Feb. 2, 1983).                                          18          through  congressional enactment.    Second,  the Tribe  suggests          that, if  section 1708 survived  recognition, it did  not survive          the  subsequent  alienation  of   the  settlement  lands.    This          suggestion goes nowhere.  Supposing that the jurisdictional grant          contained in  section  1708 could  have  been jettisoned  by  the          state, the  Tribe, or the Bureau without congressional sanction            a supposition  we do  not  share    the fact  is  that, at  every          salient  moment, the parties  in interest took  pains to reaffirm          section  1708.8    We  conclude, therefore,  that  the  grant  of          jurisdiction contained in section 1708 of the Settlement Act  was          valid  when made, and was  undiluted at the  time Congress passed          the Gaming Act.                                      B.  Scope.                                      B.  Scope.                                          _____                    Validity  notwithstanding,  it  is  an   open  question          whether  the  jurisdictional  grant  contained  in  section  1708          extends to civil regulatory jurisdiction.  The Tribe insists not.          It  tells  us that  the enacting  Congress  intended to  copy the          distinction  between  civil  regulatory  and  civil  adjudicatory          jurisdiction limned two years earlier in Bryan v. Itasca  County,                                                   _____    ______________          426 U.S.  373 (1976).  We  find this tale to  be both unsupported          and unsupportable.                    The Tribe's  argument runs  along the  following lines.                                        ____________________               8The 1985  State Act amendments transferring  title from the          holding  company to  the Tribe  contained a  provision for  state          jurisdiction substantially identical to that contained in section          1708,  see 6A  R.I.  Gen.  Laws     37-18-13(b);  and  the  deeds                 ___          conveying  the settlement lands from  the Tribe to  the Bureau in          1988 explicitly confirmed the applicability of section 1708.                                          19          In  its view,  there  are  salient  discrepancies in  respect  to          jurisdiction among the J-MEM, the original Senate bill leading to          the Settlement Act, and the final  version of the Act itself.  To          illustrate the Tribe's point,  we list the three versions  of the          jurisdictional  clause  side  by  side,  in  order  of  drafting.          According  to three  documents, the  settlement lands were  to be          subject to:                    All laws of the state . . . including but not                    limited to state and local building, fire and                    safety codes [J-MEM,   13];                    the complete civil and  criminal jurisdiction                    of the State. . . .  [Joint Hearing on S.3153                    and H.R. 12860, 95th  Cong., 2d Sess., at 36,                    51 (June 20, 1978)];                    the civil and criminal laws  and jurisdiction                    of the State. . . . [18 U.S.C.   1708].          Analogizing  to Bryan,  the  Tribe posits  that this  progression                          _____          signals Congress's intent to limit the jurisdictional grant.                    This  proposed interpretation  finds no  succor in  the          legislative  history.   Without  such  support,  we  think it  is          evident that  the Narragansetts  read too  much into  too little.          Considering the overall context, the deviations from one document          to  another  do not  strike us  as  especially significant.   The          progressive development of the  jurisdictional language can  more          plausibly be interpreted  as intended to  clarify the breadth  of          the grant, rather than to narrow it.  Perhaps the drafters feared          that   "all  laws   of  the   state"  might   suggest  regulatory          jurisdiction  alone, and that  "civil and  criminal jurisdiction"          might  imply only jurisdiction in the judicial sense.  "Civil and                                          20          criminal laws and jurisdiction" more obviously includes all sorts          of jurisdiction, and can  fairly lay claim to being  the broadest          of the three formulations.                    The only change arguably suggesting a diminution in the          scope  of jurisdiction is the removal of the word "complete" from          the draft version  of the bill.  We think  that this change, too,          may  be  understood as  an attempt  at  clarification:   the word          "complete" could  well  have been  removed  simply to  avoid  any          suggestion  that the  grant of  jurisdiction was  intended to  be          exclusive.  Cf.  United States v. Cook,  922 F.2d 1026,  1032 (2d                      ___  _____________    ____          Cir.) (suggesting  that  "exclusive jurisdiction"  and  "complete          jurisdiction" may  have the same connotation),  cert. denied, 111                                                          _____ ______          S. Ct. 2235 (1991).   For that reason, the discrepant language is          at best inconclusive.                    The  small changes  in  phraseology  pinpointed by  the          Tribe, floated without visible means of  support, place this case          at  considerable remove  from Bryan,  a case  in which  the Court                                        _____          confronted  a  genuinely   suggestive  lingual  discrepancy,  and          interpreted the final version of the statute in line with clearly          articulated legislative history.  See  Bryan, 426 U.S. at 379-87.                                            ___  _____          Here, by contrast, the discrepancies that the Tribe perceives are          more conjectural than suggestive;  there is absolutely nothing in          the  legislative history  of  the Settlement  Act that  indicates          congressional  intent   either  to  limit  the   scope  of  state          jurisdiction or to carve a jurisdictional distinction along civil                                          21          regulatory/civil adjudicatory lines.9  Thus, Bryan is not a  fair                                                       _____          congener.                    Our assessment is reinforced  by a commonsense tenet of          statutory construction.  Relatively minor differences  between an          Indian agreement and the ratifying act of Congress needed to give          it effect,  without more, do  not give rise to  an inference that          Congress intended to  modify the agreement.   See Rosebud  Sioux,                                                        ___ ______________          430 U.S.  at 599 (holding  that a  1904 act of  Congress did  not          modify a 1901 Indian agreement, despite a suggestive minor change          in language).  At  least when an "implied continuity  in purpose"          exists between  the  antecedent agreement  and  the  subsequently          enacted statute, courts should  construe the latter to effectuate          the  former, notwithstanding  differing linguistic choices.   Id.                                                                        ___          So it is here, for  the Settlement Act was designed to  implement          the  agreement embodied  in the  J-MEM.  See,  e.g., 25  U.S.C.                                                     ___   ____          1701(d)   (declaring  that   the  J-MEM   "requires  implementing          legislation");  Joint  Hearing  at  97 (acknowledging  that  "the          legislation  as  drafted  intends  to  implement  the  settlement          agreement")  (statement of  Alan  R. Parker,  Gen. Counsel,  Sen.          Select Comm. on Indian Affairs).                    We  need not  belabor  the obvious.    Since the  self-                                        ____________________               9We  do  not  believe the  Tribe's  cause  is  aided by  the          Bureau's tentative  expression of  support for the  position that          section  1708  excludes  civil  regulatory   jurisdiction.    See                                                                        ___          Southeast  Regional Solicitor's  Memorandum Opinion    (April 30,          1992).  The Bureau's views are not entitled to any special weight          in  the interpretation  of  statutory provisions  that it  is not          charged  to execute.  See Crandon v. United States, 494 U.S. 152,                                ___ _______    _____________          177 (1990).                                          22          serving inference drawn by the Tribe is plainly at odds with  the          discernible intention  undergirding the  Settlement Act,  and, in          the  bargain, plays  havoc  with the  statutory text,  we decline          gratuitously  to  limit the  scope of  section  1708 in  order to          parallel  the holding in Bryan.10   Cf. United  States v. Dakota,                                   _____      ___ ______________    ______          796  F.2d  186, 188  (6th Cir.  1986)  (refusing to  extend Bryan                                                                      _____          distinction  to  18   U.S.C.      1955,  because   it  would   be          inappropriate to apply  a test "developed in a  different context          to address  different concerns").   Hence,  we conclude  that the          Settlement Act granted civil  regulatory jurisdiction, as well as          civil adjudicatory jurisdiction, to the state.11                               C.  Local Jurisdiction.                               C.  Local Jurisdiction.                                   __________________                    We digress to add a few words about local jurisdiction,          mindful  that  the  Town  of Charlestown  and  certain  municipal          officials are parties to this lawsuit.                    Although we recognize both  the town's desire to assert          jurisdiction in respect  to the settlement lands and  the Tribe's          opposition,  we  see nothing  to  be  gained by  giving  separate          treatment  to the question of  local jurisdiction.   As a general                                        ____________________               10To the extent that the district court's opinion in Maynard                                                                    _______          v.  Narragansett Tribe,  798  F. Supp.  94, 98-99  (D.R.I. 1992),              __________________          aff'd on other grounds, 984 F.2d 14, 15 (1st Cir. 1993), suggests          _____ __ _____ _______          a contrary view, we reject it.               11Because our analysis is specific to the Settlement Act, we          need  not join the debate  over the general  applicability of the          Bryan distinction.  See  United Keetoowah Band, 927 F.2d  at 1176          _____               ___  _____________________          n.13  (surveying debate); see  also Yavapai-Prescott Indian Tribe                                    ___  ____ _____________________________          v.   Arizona,  796  F.  Supp.  1292,   1294-96  (D.  Ariz.  1992)               _______          (discussing  applicability of  Bryan  distinction in  respect  to                                         _____          Gaming Act).                                          23          matter,  municipal  authority  is entirely  derivative  of  state          authority, see  7A R.I.  Gen. Laws    45-2-1  (1991); and in  the                     ___          exercise  of  governmental  powers  (as  opposed  to  proprietary          powers),  municipalities act only as the agents of the state, see                                                                        ___          Buckhout v. City of Newport, 27 A.2d 317, 320 (R.I. 1942).          ________    _______________                    It  follows that if the state chooses to cede a portion          of its sovereignty to the  town, the town may use  that authority          to  the extent  of  the power  delegated.   See,  e.g., Vukic  v.                                                      ___   ____  _____          Brunelle, 609 A.2d 938,  941 (R.I. 1992).  But  delegated powers,          ________          of  necessity, cannot  exceed those  possessed by  the delegator.          The  town  has cited  no independent  basis  upon which  it might                                   ___________          exercise  municipal jurisdiction,  and  none is  apparent to  us.          Thus,  Charlestown's  concerns are  necessarily  subsumed in  our          discussion of the state's jurisdiction.          VII.  THE REACH OF THE GAMING ACT          VII.  THE REACH OF THE GAMING ACT                    Before addressing the Tribe's  ultimate argument   that          the Gaming  Act cancels whatever jurisdiction  the Settlement Act          granted    we  must first  consider both  furcula of  the state's          assertion  that the  settlement  lands are  specifically exempted          from the Gaming Act's domain.                        A.  The Consensual Transfer Provision.                        A.  The Consensual Transfer Provision.                            _________________________________                    The  Gaming  Act's   so-called  "consensual   transfer"          provision,  familiarly known as  "section 23(d)," is  the site of          the next battle.  It states in relevant part:                    The  United  States   shall  have   exclusive                    jurisdiction  over  criminal prosecutions  of                    violations  of State  gambling laws  that are                    made  applicable under this section to Indian                                          24                    country, unless an Indian tribe pursuant to a                    Tribal-State compact . . . or under any other                    provision  of Federal  law, has  consented to                    the  transfer  to   the  State  of   criminal                    jurisdiction with respect  to gambling on the                    lands of the Indian tribe.          18 U.S.C.    1166(d).   This  proviso, Rhode  Island asseverates,          presages  an exemption  applicable to the  settlement lands.   On          this  theory, section  23(d) allows  a state  lawfully to  assert          civil  and  criminal  jurisdiction  over gaming  under  either  a                                                                  ______          tribal-state compact or "any other provision of Federal law" that                               __          embodies a consensual transfer of jurisdiction.   And it portrays          section 1708 of the Settlement Act as constituting such an agreed          transfer.                    This interpretation signifies  a promiscuous  elevation          of hope over reason, for  it completely overlooks two limitations          that are apparent  on the face  of the statute.   First,  section          23(d) is a penal provision that in terms deals only with criminal          prosecutions; it  has  no  implications  for  civil  jurisdiction          (whether  regulatory  or  adjudicatory).   Second,  section 23(d)          pertains  only to "gambling,"  which is  defined for  purposes of          that section as excluding any kind  of "gaming."  See 18 U.S.C.                                                              ___          1166(c).  Thus, properly  understood, section 23(d) allows states          to exercise  jurisdiction pursuant to a  consensual transfer only          to  enforce  criminal  laws  that  proscribe  gambling activities          falling  outside the sanctuary of the Gaming  Act.  This is of no          assistance  to Rhode  Island,  which seeks  to assert  unfettered          jurisdiction  (including  civil  regulatory   jurisdiction)  over                                          25          activities constituting class II and class III gaming.12                       B.  Decrypting the Legislative History.                       B.  Decrypting the Legislative History.                           __________________________________                    Next, the state attempts  a flanking maneuver.  Without          meaningful citation to the Gaming Act's text, the state hawks the          proposition that Congress, in passing the Act,  intended to leave          intact the grant of jurisdiction tendered a decade earlier in the          Settlement Act.  And to fill the forensic void left  by the utter          absence of  any  statutory language  to  this effect,  the  state          pushes  forward   carefully  selected  snippets   of  legislative          history.  There are two significant problems with this approach.                    In  the  first place,  courts  must  look primarily  to          statutory language,  not to legislative  history, in  determining          the meaning and scope of a statute.  See, e.g.,  United States v.                                               ___  ____   _____________          Turkette, 452 U.S. 576, 580 (1981); Consumer  Prod. Safety Comm'n          ________                            _____________________________          v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); United States v.             __________________                            _____________          Charles George Trucking Co.,  823 F.2d 685, 688 (1st  Cir. 1987);          ___________________________          see also Felix Frankfurter, The Reading of Statutes, reprinted in          ___ ____                    _______________________  _________ __          Of Law and Men 60  (Philip Elman ed. 1956) (noting  importance of          ______________          statutory language and explaining that legislative intent "is not          drawn, like nitrogen, out of the air").  When a statute's text is          encompassing, clear  on its face,  and productive of  a plausible                                        ____________________               12The  state's  hopelessly  mistaken interpretation  of  the          consensual transfer provision apparently derives from a dictum in          Lac  du  Flambeau  Band  of  Lake  Superior  Chippewa  Indians v.          ______________________________________________________________          Wisconsin, 743  F. Supp. 645, 653-54 (W.D. Wis. 1990) (suggesting          _________          that the final version of section 23 was intended to exempt Rhode          Island).   The Lac  du Flambeau  court was  misled by  the Senate                         ________________          report's gloss  on the soon-to-be-deleted Rhode  Island exemption          provision,  see infra pp. 26  n.13, 31-32.   The case, therefore,                      ___ _____          lacks precedential value.                                          26          result,   it  is   unnecessary   to  search   for  a   different,          contradictory  meaning in  the legislative  record.   See Charles                                                                ___ _______          George Trucking, 823  F.2d at  688; United States  v. Meyer,  808          _______________                     _____________     _____          F.2d 912, 915 (1st Cir. 1987); Massachusetts Fin. Servs., Inc. v.                                         _______________________________          Securities Investor Protection Corp., 545 F.2d 754, 757 (1st Cir.          ____________________________________          1976), cert. denied, 431 U.S. 904 (1977).  This is precisely such                 _____ ______          a case.                    In  the second  place, legislative  history that  is in          itself inconclusive will rarely, if ever, overcome the words of a          statute.   In  a case such  as this  one, an  inquiring court, at          most,  should resort  to  legislative history  only to  determine          "whether  there is  a  `clearly expressed  legislative intention'          contrary to  [the statutory]  language, which would  require [the          court] to question the strong presumption that Congress expresses          its intent through  the language  it chooses."   INS v.  Cardoza-                                                           ___     ________          Fonseca, 480 U.S. 429, 432 n.12 (1987) (quoting GTE Sylvania, 447          _______                                         ____________          U.S.  at 108).   After  careful  consideration of  Rhode Island's          extratextual arguments, we conclude  that the material it musters          fails  to   establish  such  a   clearly  expressed   legislative          intention.                    The  state begins this phase of its case by pointing to          a  preliminary  version  of  the  Gaming  Act  that  contained  a          provision  (former section  23) safeguarding  the Settlement  Act          from  implied repeal.13    Once that  foundation  is poured,  the                                        ____________________               13In the original bill, former section 23 read as follows:                    Nothing  in  this  Act may  be  construed  as                                          27          state then brings to the forefront a colloquy on the floor of the          Senate involving  Rhode Island's  two senators, Messrs.  Pell and          Chafee, and Senator Inouye, sponsor and floor manager of the bill          that became the  Gaming Act, regarding  the eventual deletion  of          former section 23 from the bill:                    Mr.  PELL.   Mr. President,  I would  like to                    thank  the  managers  of  S.555,  the  Indian                    Gaming Regulatory Act,  and particularly  the                    chairman  of the  Select Committee  on Indian                    Affairs [Mr. Inouye], for their hard work and                    patience  in  achieving a  consensus  on this                    important measure.                    In the interests  of clarity,14 I have  asked                    that   language   specifically   citing   the                    protections  of  the   Rhode  Island   Claims                    Settlement   Act   (Public  Law   95-395)  be                    stricken from S.555.  I understand that these                    protections clearly will remain in effect.                    Mr.    INOUYE.   I  thank  my colleague,  the                    senior Senator from Rhode Island  [Mr. Pell],                    and  assure him that  the protections  of the                    Rhode Island Claims  Settlement Act (P.L. 95-                    395),  will remain  in  effect and  that  the                    Narragansett Indian Tribe clearly will remain                    subject   to   the   civil,   criminal,   and                    regulatory laws of the State of Rhode Island.                                        ____________________                    permitting gaming activities,  except to  the                    extent permitted under the  laws of the State                    of Rhode  Island, on  lands  acquired by  the                    Narragansett  Indian  Tribe  under the  Rhode                    Island Indian Claims Settlement Act or on any                    lands held by, or on behalf of, such Tribe.          134 Cong.  Rec. S12,649 (daily  ed. Sept. 15,  1988).   After the          Senate  eliminated this  provision  it  renumbered the  remaining          provisions.   As  a result, former  section 23 and  section 23 as          enacted, 18 U.S.C.    1166, discussed supra Part VII(A),  bear no                                                _____          relation to one another.               14We  are  constrained  to   note  that  whatever  interests          Congress may have been serving when it deleted the former section          23, "the interests of clarity" were not among them.                                          28                    Mr. CHAFEE.  Mr.  President, I too would like                    to  thank  the   chairman  [Mr.  Inouye]  and                    members of  the  Select Committee  on  Indian                    Affairs for their cooperation and assistance.                    The chairman's statement  makes it clear that                    any  high stakes gaming,  including bingo, in                    Rhode  Island  will  remain  subject  to  the                    civil,  criminal and  regulatory laws  of our                    State.          134 Cong. Rec. S12,650 (daily ed. Sept. 15, 1988).                    Although  we   give  full  faith  and   credit  to  the          earnestness of  the senators  involved in this  exchange, we  are          unable to  accept the  colloquy at  face value.   In the  game of          statutory  interpretation, statutory  language  is  the  ultimate          trump  card.     Consequently,  the  overarching   rule  is  that          "statements  by  individual  legislators  should  not  be   given          controlling effect"; rather, such  statements are to be respected          only to the extent  that they "are consistent with  the statutory          language."  Brock v. Pierce County, 476 U.S. 253, 263 (1986).                      _____    _____________                    This  interpretive rule  applies fully  to the  special          case of statements  by those members of Congress  most intimately          associated with a bill:  its floor manager and its sponsors.  The          Court has so stated in unmistakable terms:  "The  contemporaneous          remarks of a sponsor of legislation are certainly not controlling          in analyzing legislative history."  Weinberger v. Rossi, 456 U.S.                                              __________    _____          25,  35  n.15  (1982); see  also  Brock,  476  U.S.  at 263;  GTE                                 ___  ____  _____                       ___          Sylvania, 447 U.S. at 118; Chrysler Corp. v. Brown, 441 U.S. 281,          ________                   ______________    _____          311  (1979); cf.  Grove City  Coll. v.  Bell, 465  U.S.  555, 567                       ___  _________________     ____          (1984)  (explaining that  remarks of  a sponsor  may be  taken as                                          29          authoritative to  the extent that they are  consistent with plain          language).15   Various  courts of  appeals, this  court included,          repeatedly have echoed the same theme.  See,  e.g., North & South                                                  ___   ____  _____________          Rivers  Watershed Ass'n v. Scituate,  949 F.2d 552,  555 n.6 (1st          _______________________    ________          Cir. 1991); United States v. Tabacca, 924 F.2d 906, 911 (9th Cir.                      _____________    _______          1991); Devargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377,                 ________    ______________________________          1387 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991); United                                 _____ ______                        ______          States  v.  McGoff, 831  F.2d  1071,  1090-91  (D.C. Cir.  1987);          ______      ______          Northern Colo.  Water Conservancy Dist.  v. FERC, 730  F.2d 1509,          _______________________________________     ____          1518 (D.C. Cir. 1984).                    This  overarching  rule  makes  good  sense, for  floor          statements  afford solid  evidence  of congressional  intent only          when they jibe with the final version of the statutory text.  "To          permit . . . clear statutory language to be materially altered by          such  colloquies, which  often  take place  before  the bill  has          achieved  its final form, would open the door to the inadvertent,          or  perhaps even  planned, undermining  of the  language actually          voted  on  by Congress  and signed  into  law by  the President."          Regan v. Wald, 468 U.S. 222, 237 (1984).          _____    ____                    Another reason that  this overarching rule  makes sense          is  that, as  a practical  matter, most  members of  the enacting                                        ____________________               15While  statements by  legislative  sponsors are  sometimes          described   as  "an   authoritative   guide   to  the   statute's          construction,"  North Haven Bd. of  Educ. v. Bell,  456 U.S. 512,                          _________________________    ____          526-27  (1982)  (citing cases),  that description  is appropriate          only   when  a   statute's   text  leaves   room  for   differing          interpretations.   See,  e.g.,  DeBartolo Corp.  v. Florida  Gulf                             ___   ____   _______________     _____________          Coast  Trades Council,  485  U.S. 568,  585  (1988) ("It  is  the          _____________________          sponsors  that we look to when the meaning of the statutory words                                    _______________________________________          is in doubt.") (emphasis supplied).          ___________                                          30          Congress will be familiar  only with the  bill as it stands  when          the  vote occurs  and, perhaps,  with the  committee reports,  in          broad  outline of purpose; they cannot be expected to be familiar          with  every stray floor statement,  with every twist  and turn of          the  bill's  prior  history,  or with  every  other  legislator's          thoughts  as to  what the  bill accomplishes  (or stops  short of          accomplishing).  Cf., e.g., Hirschey  v. FERC, 777 F.2d 1,  7-9 &                           ___  ____  ________     ____          n.1  (D.C. Cir.  1985) (Scalia,  J., concurring)  (observing that          members  of  Congress  cannot  be held  accountable  for  lacking          knowledge  of  minute  details  in  committee  reports).    It is          particularly unrealistic  to  attribute knowledge  of  statements          made on the Senate floor to House members, who gave their seal of          approval to the Senate bill only after the Rhode Island exemption          provision  had been  deleted, without  mentioning  Rhode Island's          parochial  concern.  See 134  Cong. Rec. H8146,  H8426 (daily ed.                               ___          Sept.  27,   1988)  (commemorating   passage  by  the   House  of          Representatives).  For much the same reason, it is unrealistic to          attribute such knowledge to the President.                    In our republican form of government, legislators  make          laws  by writing  statutes    an exercise  that requires  putting          words  on paper  in  a way  that  conveys a  reasonably  definite          meaning.   Once Congress has spoken,  it is bound by  what it has          plainly  said, notwithstanding the  nods and winks  that may have          been exchanged  in floor debates  and committee hearings.   After          all,  it is not  the proper role of  legislators to use unwritten          assurances or  side arrangements  to alter the  clear meaning  of                                          31          agreed  language.  And the  judiciary must stand  as the ultimate          guarantor of the integrity of an enacted statute's text.                    In  sum,  once  Congress  has spoken,  a  court  cannot          override  the  unambiguous  words   of  an  enacted  statute  and          substitute  for  them  the   court's  views  of  what  individual          legislators likely intended.   Any other rule imports a  virulent          strain of subjectivity  into the  interpretive task  and, in  the          process, threatens to  transfer too large a slice  of legislative          power from Congress to the courts.  See Frankfurter, supra, at 60                                              ___              _____          (warning that courts  should not be "led  off the trail  by tests          that have overtones of subjective design").                    Here, the  colloquy upon which  the state relies  is an          especially  slender  reed because  it  offers  an explanation  of          Congress's  action that  defies  a widely  accepted principle  of          statutory construction.  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.   See  Cardoza-Fonseca, 480  U.S. at                                         ___  _______________          432; Russello v. United States, 464 U.S. 16, 23-24 (1983); United               ________    _____________                             ______          States v.  Sisseton-Wahpeton Sioux Tribe,  897 F.2d 358,  362 n.8          ______     _____________________________          (8th  Cir.  1990).16    Deletion,  without  more,  suggests  that                                        ____________________               16To be  sure, it might be postulated  that Congress deleted          former  section 23 because it feared that a specific reference to          Rhode  Island  would  give  rise  to  the  inference  that  other          individual states  with special  grants of jurisdiction  were not          similarly  exempted from  the  Gaming Act.   Congress  could have          avoided  such ambiguity  in a  myriad of  ways short  of striking          former section 23, say, by substituting a generic exemption for a                                          32          Congress simply had a change of heart.                    In  this case, there is no "more."   The state tries to          buttress its argument by  touting a comment in the  Senate report          to  the effect "that nothing  in the [Gaming  Act] will 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 Claims Settlement Act          [and the Maine] Indian Claims Settlement Act."  1988 U.S.C.C.A.N.          at  3082 (citations  omitted).   But  this  patch of  legislative          history is also threadbare.  The Senate report speaks only to the          bill as reported  out of  committee; it was  composed before  the               ______________________________                   ______          deletion of the special  Rhode Island exemption provision, former          section  23,  from the  final version  of  the bill  during floor          debate.   Thus, the quoted statement sheds no light on Congress's          intent regarding the law it actually enacted.17                                        ____________________          category of  states including Rhode  Island, or  by citing  Rhode          Island in a non-exhaustive list of states that would be exempted.          To  accept the suggested rationale  would be to  indulge in sheer          speculation.               17We sympathize with the predicament in which Rhode Island's          senators  found themselves    being asked to  take the  word of a          powerful committee chariman   but sympathy alone cannot carry the          day.   Our dissenting  brother puts  the  very best  face on  the          state's  argument, yet  the dissent,  though  gracefully written,          contains  nothing to  shake our  view  of either  the controlling          legal  principles or  the legislative  history.   While  we plead          guilty to  the charge of  literalism, placing strong  emphasis on          the statutory text is a court's proper function.  See, e.g.,  GTE                                                            ___  ____   ___          Sylvania,  447 U.S.  at  108 (declaring  that statutory  language          ________          "must ordinarily be regarded as conclusive"); Caminetti v. United                                                        _________    ______          States, 242 U.S. 470, 490 (1917) (explaining that "when words are          ______          free from doubt they must be taken as the final expression of the          legislative  intent").    Moreover,  we  have  made  a  point  of          considering  the legislative history of the Gaming Act on its own          terms,  in recognition of the  continuing influence of less text-                                          33          VIII.  DOES THE GAMING ACT APPLY?          VIII.  DOES THE GAMING ACT APPLY?                    Our odyssey is not  yet finished, as the state  and the          amici construct a plausible textual argument as an amulet to ward          off  the Gaming  Act.   This  argument  stems from  the  language          limiting the applicability of the Gaming Act's  key provisions to          "[a]ny Indian  tribe having jurisdiction over  Indian lands," or,          stated  differently,  to  "Indian   lands  within  such   tribe's          jurisdiction."    See  25 U.S.C.      2710(d)(3)(A),  2710(b)(1).                            ___          These  are dual limitations, for one element of the definition of          "Indian  lands"  requires   that  an  Indian  tribe   "exercise[]          governmental  power"  over them.   25  U.S.C.    2703(4).   Rhode          Island claims that the Narragansetts do not "hav[e] jurisdiction"          over,  and do not exercise  "governmental power" with respect to,          the settlement lands;  and, thus,  that the Gaming  Act does  not          pertain.   Evaluating the state's thesis  requires an exploration          into another aspect of congressional intent.                               A.  Having Jurisdiction.                               A.  Having Jurisdiction.                                   ___________________                    In the state's view, the phrase  "having jurisdiction,"          as used in the Gaming Act,  must, insofar as the settlement lands          are  concerned, be  gauged in light  of the  Settlement Act.   We                                        ____________________          based  theories   of  statutory  interpretation,  such   as  that          underpinning  Watts v. Alaska, 451  U.S. 259 (1981).   We believe                        _____    ______          that  our  result  is  compelled   by  any  acceptable  mode   of          interpretation.                    Finally, although we share Judge  Coffin's reticence to          discredit responsible floor exchanges, we fail to see how a floor          exchange utterly at odds with the words of an enacted statute can          be given  primacy in the  interpretive process.   If  legislative          bodies  desire to  accomplish particular  results, they  must use          their tools with greater care.                                          34          agree.  But the mere fact that the Settlement Act  cedes power to          the state  does not necessarily  mean, as Rhode  Island suggests,          that   the   Tribe  lacks   similar   power   and,  thus,   lacks          "jurisdiction" over the  settlement lands.  Although the grant of          jurisdictional  power to the state in the Settlement Act is valid          and rather  broad, see supra  Parts V(B), VI,  we do  not believe                             ___ _____          that it  is exclusive.  To  the contrary, we rule  that the Tribe          retains  concurrent jurisdiction  over the  settlement lands  and          that such  concurrent jurisdiction  is sufficient to  satisfy the          corresponding precondition to applicability of the Gaming Act.                    In undertaking  the  task of  determining  whether  the          Settlement Act's jurisdictional grant  is exclusive in nature, it          must be remembered that Indian sovereignty is "a backdrop against          which  the applicable  .  . .  federal  statutes must  be  read."          McClanahan v. State Tax  Comm'n, 411 U.S. 164, 172  (1973).  This          __________    _________________          backdrop is a  necessary adjunct  to the  search for  legislative          intent  in the context of Indian-related legislation.  See Cotton                                                                 ___ ______          Petroleum  Corp.  v.  New  Mexico,  490  U.S.  163,  176  (1989).          ________________      ___________          Consequently, we paint the backdrop before placing the statute at          center stage.                    1.    The  Backdrop.    Indian  tribes  are  "distinct,                    1.    The  Backdrop.                          _____________          independent  political  communities,  retaining   their  original          natural rights"  in  matters of  local governance.   Santa  Clara                                                               ____________          Pueblo, 436 U.S. at  55, quoting Worcester v. Georgia, 31 U.S. (6          ______                   _______ _________    _______          Pett.)  515, 559  (1832).   While tribal  rights are  retained at          congressional  sufferance and  are  subject to  defeasance should                                          35          Congress so  elect, tribes retain their sovereign  powers in full          measure unless and until Congress acts to circumscribe them.  See                                                                        ___          United States  v.  Wheeler, 435  U.S. 313,  323 (1978).   As  the          _____________      _______          Supreme Court  has explained, "Indian tribes  still possess those          aspects  of sovereignty not withdrawn by treaty or statute, or by          implication  as a  necessary result  of their  dependent status."          Id.; accord Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065-          ___  ______ ________    ___________________          66 (1st Cir. 1979).                    We believe  that jurisdiction is an  integral aspect of          retained  sovereignty.    After  all,  the  Court  has  held that          retained sovereignty  includes the power  of Indians to  make and          enforce their own substantive  law in internal matters, including          matters  such as  membership  rules, inheritance  rules, and  the          regulation  of domestic relations.   See Santa  Clara Pueblo, 436                                               ___ ___________________          U.S. at  56 (citing cases).   Jurisdiction is  cut from much  the          same fabric.                    Of course, the shape  of retained sovereignty has never          been precisely defined.   Thus, it cannot be said  with assurance          whether or not criminal, civil adjudicatory, and civil regulatory          jurisdiction,   in   whole  cloth,   are   aspects  of   retained          sovereignty.   But we  have no need  today to map  such far-flung          frontiers.    For present  purposes, so  long  as the  portion of          jurisdiction  encompassed  within  the   natural  rights  of  the          Narragansetts is  substantial enough to satisfy  the Gaming Act's          "having jurisdiction" prong, our inquiry is satisfied.                    The state  has not  contended that any  treaty impinges                                          36          upon  the Tribe's jurisdiction.   By like token,  the record will          not support a  finding of jurisdiction abandoned  or lost through          implicit divestiture, see Wheeler, 435 U.S. at 326.  We are left,                                ___ _______          then,  with  the  relatively  confined question  of  whether  the          Tribe's retained jurisdiction has been forfeited by  statute.  It          is against this backdrop that we focus the lens of our inquiry on          the Settlement Act.                    2.  The Settlement  Act.  By its terms,  the Settlement                    2.  The Settlement  Act.                        ___________________          Act purposes to do no more than grant jurisdiction to  the state;          it does  not expressly strip the Tribe  of jurisdiction, transfer          jurisdiction from  the Tribe to  the state, or  employ suggestive          adjectives  like  "exclusive"  or  "complete"  in  describing the          jurisdictional grant.  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.  Even  more tellingly,          the   word  is   used  in  the   Settlement  Act   itself,  which          characterizes  as  "exclusive" the  grant  to  federal courts  of          jurisdiction to  entertain certain constitutional challenges.  25          U.S.C.   1711.   This phenomenon  commands our utmost  attention,          for 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."  Rodriguez v.                                                               _________                                          37          United States, 480 U.S. 522, 525 (1987) (citations omitted).          _____________                    We are not alone in our reluctance to infer exclusivity          absent some suggestion to that effect in the  statutory text.  At          least one  other court has  found the omission  of words such  as          "exclusive" or "complete" in a similar context  to be meaningful.          See Cook, 922 F.2d at 1026, 1032-33 (concluding from the omission          ___ ____          of  any such  language that a  grant to New  York of jurisdiction          overIndian lands, embodied in 25 U.S.C.   232, is non-exclusive).                    Comparative analysis is also  instructive.  We think it          is sensible  to compare the jurisdictional grant  embedded in the          Settlement  Act with  the  jurisdictional grants  encased in  two          other  Indian claims  settlement  acts that  were to  some extent          modeled  after the Settlement Act.  Both  of the latter pieces of          legislation   one involving  Massachusetts, one involving Maine            contain  grants   of  jurisdiction  parallel  to   section  1708,          expressed in similar language.  See  25 U.S.C.   1771g (1988); 25                                          ___          U.S.C.   1725 (1988).   Yet both acts also  contain corresponding          limits on  Indian  jurisdiction, conspicuously  absent  from  the          Settlement Act.   See 25 U.S.C.   1771e(a); 25  U.S.C.   1725(f).                            ___          By  placing stated  limits on  the retained  jurisdiction of  the          affected  tribes, these newer acts imply  that an unadorned grant          of  jurisdiction  to  a  state     such as  is  embodied  in  the          Settlement Act   does not in and of itself imply exclusivity.                    We find these factors  to be of decretory significance.          Given the strong congressional bias, especially noticeable in the          past  generation,  against  policies  that  would  promote Indian                                          38          assimilation,  see Bryan,  426 U.S.  at 387-88  & n.14,  and also                         ___ _____          given  Congress's  fortunate  penchant  for  great  clarity  when          expressing its intent  in this  area, see id.  at 389  ("Congress                                                ___ ___          kn[ows]  well how to express its intent directly when that intent          [is] to subject . . . Indians to the full sweep of state laws.");          Mattz  v. Arnett, 412 U.S.  481, 504 n.22  (1973) (observing that          _____     ______          Congress generally employs "clear language of express termination          when  that result is  desired") (collecting examples),  we are of          the view  that acts  diminishing the  sovereign rights  of Indian          tribes  should  be  strictly construed.    So  here.   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.   The Narragansetts,          therefore,  have  made the  necessary  threshold  showing.   They          retain  that portion  of jurisdiction  they possess by  virtue of          their sovereign existence as  a people   a portion  sufficient to          satisfy the Gaming Act's "having jurisdiction" prong.                          B.  Exercising Governmental Power.                          B.  Exercising Governmental Power.                              _____________________________                    In  addition  to  having  jurisdiction,  a  tribe  must          exercise governmental power  in order to trigger  the Gaming Act.          Meeting  this  requirement  does  not  depend  upon  the  Tribe's          theoretical  authority,   but  upon  the  presence   of  concrete          manifestations  of that  authority.   Consequently, an  inquiring          court  must assay  the jurisdictional  history of  the settlement                                          39          lands.18    Cf., e.g.,  DeCoteau  v. District  County  Court, 420                      ___  ____   ________     _______________________          U.S. 425, 442 (1975).                    The inquiry into governmental power need not detain us.          In the post-recognition  period, the Tribe has taken many strides          in  the  direction  of  self-government.   It  has  established a          housing authority,  recognized as eligible to  participate in the          Indian programs of  the federal Department  of Housing and  Urban          Development, see 24  C.F.R., Part  905 (1993).   It has  obtained                       ___          status  as the functional equivalent  of a state  for purposes of          the   Clean  Water   Act,  after  having   been  deemed   by  the          Environmental  Protection  Agency  as  having  "a governing  body          carrying  out substantial  governmental  duties and  powers,"  33          U.S.C.   1377(e) (1988), and as being capable of administering an          effective program of water regulation,  see 40 C.F.R.    130.6(d)                                                  ___          (1993).   It has taken considerable advantage of the Indian Self-          Determination  and Education  Assistance  Act  (ISDA), a  statute          specifically  designed to  help build  "strong and  stable tribal          governments."    25  U.S.C.      450(a)(b)  (1988).    The  Tribe          administers health  care programs  under  an ISDA  pact with  the          Indian Health Service, and, under ISDA contracts with the Bureau,          administers  programs  encompassing   job  training,   education,          community  services, social  services,  real  estate  protection,                                        ____________________               18An 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  . .  . ."          Rosebud Sioux, 430 U.S. at 604-05.          _____________                                          40          conservation,  public safety,  and  the like.   These  activities          adequately  evince  that the  Tribe  exercises  more than  enough          governmental  power to satisfy the second  prong of the statutory          test.          IX.  THE INTERFACE          IX.  THE INTERFACE                    Because  we have  concluded that the  settlement lands,          under the Tribe's auspices, meet both prerequisites of the Gaming          Act, those lands are  subject to the Act's benefits  and burdens.          The task remaining  is to determine  how the Gaming  Act and  the          Settlement Act operate in tandem.                       A.  Principles Governing the Interface.                       A.  Principles Governing the Interface.                           __________________________________                    In warming  to this reconciliatory task,  we abjure the          preemption analysis undertaken below, see Narragansett Tribe, 816                                                ___ __________________          F. Supp.  at 804.  The doctrine of preemption is derived from the          Supremacy  Clause, U.S.  Const.,  Art VI,  cl.  2, and  therefore          applies  only to  conflicts  between federal  provisions, on  one          hand, and  state or local  provisions, on  the other  hand.   See                                                                        ___          Cipollone v.  Liggett Group, 112 S.  Ct. 2608, 2617  (1992).  The          _________     _____________          proper  mode  of analysis  for cases  that   involve  a perceived          conflict between two federal statutes  is that of implied repeal.          See  Cook, 922  F.2d  at 1033  (rejecting preemption  analysis as          ___  ____          inappropriate in resolving  a conflict between the Gaming Act and          an  earlier  federal  statute);  see also  1A  Norman  J. Singer,                                           ___ ____          Sutherland on Stat.  Const.    23.09 (5th ed.  1993).  Hence,  we          ___________________________          follow that analytic path.                    We  start by  reiterating  the bedrock  principle  that                                          41          implied  repeals  of federal  statutes  are disfavored.    In the          absence  of a  contrary  legislative command,  when  two acts  of          Congress touch  upon the same  subject matter  the courts  should          give  effect to both, if that is feasible.  See Pipefitters Local                                                      ___ _________________          562  v.  United States,  407 U.S.  385,  432 n.43  (1972); United          ___      _____________                                     ______          States v.  Tynen, 78  U.S. (11  Wall.) 88, 92  (1871).   In other          ______     _____          words, so long as the two statutes, fairly construed, are capable          of  coexistence, courts  should regard  each  as effective.   See                                                                        ___          Traynor  v. Turnage, 485 U.S.  535, 547-48 (1988).   However, "if          _______     _______          the  two [acts]  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."   Tynen, 78 U.S. (11                                                         _____          Wall.)  at 92.  Even absent outright  repugnancy, a repeal may be          implied  in  cases  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."   Id.; see  also                                                             ___  ___  ____          Posadas v.  National  City Bank,  296  U.S. 497,  503-04  (1936);          _______     ___________________          Natural Resources  Defense Council  v. EPA,  824 F.2d  1258, 1278          __________________________________     ___          (1st Cir. 1987).19                                        ____________________               19We addressed this  point in  United States  v. Brien,  617                                              _____________     _____          F.2d 299  (1st Cir.),  cert. denied,  446 U.S.  919  (1980).   We                                 _____ ______          caution,  however, that  while Brien  suggests that  statutes may                                         _____          never be impliedly repealed in part, see  id. at 309, more recent                                               ___  ___          cases clarify the point,  see, e.g., Bristol Energy Corp.  v. New                                    ___  ____  ____________________     ___          Hampshire  PUC, ___ F.3d ___,  ___ (1st Cir.  1994) [No. 93-1824,          ______________          slip op. at 16-17].  The rule is that, generally, there can be no          partial implied repeal absent repugnancy.  This is simply another                                 ______ __________          way of  stating that congressional  intent to substitute  a later          act  for an earlier  one will ordinarily  be implied  only if the          later act usurps  the whole ground  occupied by the  first.   See                                                                        ___          Posadas,  296 U.S. at 504.  If repugnancy is found, however, then          _______          a partial repeal  is in most cases preferred   indeed, mandated                                            42                    The doctrine of implied repeal operates without special          embellishment in  the Indian law  context.  See,  e.g., Blackfeet                                                      ___   ____  _________          Indian  Tribe  v. Montana  Power Co.,  838  F.2d 1055,  1058 (9th          _____________     __________________          Cir.),  cert. denied,  488 U.S.  828 (1988).   The  rationale for                  _____ ______          encouraging preemption in the Indian  context   that the  federal          government  is a  more trustworthy  guardian of  Indian interests          than the  states    has no  relevance to a  conflict between  two          federal statutes.                             B.  Applying the Principles.                             B.  Applying the Principles.                                 _______________________                    It is evident  that the Settlement  Act and the  Gaming          Act are partially but  not wholly repugnant.  The  Settlement Act          assigned the state a number of  rights.  Among those rights   and          by  no  means  one   of  the  rights  at  the  epicenter  of  the          negotiations  leading up to the Act   was the non-exclusive right          to exercise jurisdiction, in all customary respects save two, see                                                                        ___          supra note 6,  over the settlement lands.  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.                      Even in  respect to  jurisdiction over gaming,  the two          laws do not collide head-on.  Thus,  in connection with class III          gaming,  the Gaming  Act does  not in  itself negate  the state's          jurisdiction,  but, instead,  channels  the state's  jurisdiction                                        ____________________          for  only that  part  of the  earlier  statute which  is  plainly          anathematic should be nullified.                                          43          through the tribal-state compact process.  It is only with regard          to  class I and  class II gaming  that the Gaming  Act ex proprio                                                                 __ _______          vigore  bestows exclusive  jurisdiction  on qualifying  tribes.20          ______          And it  is  only  to these  small  degrees that  the  Gaming  Act          properly  may  be  said  to  have  worked  a  partial  repeal  by          implication of the preexisting statute.                    In the area in which the two laws clash, the Gaming Act          trumps  the Settlement Act for  two reasons.   First, the general          rule is that where  two acts are in irreconcilable  conflict, the          later  act prevails to the extent of  the impasse.21  See Watt v.                                                                ___ ____          Alaska, 451 U.S. 259,  266 (1981); Tynen, 78 U.S. (11.  Wall.) at          ______                             _____          92;  see also  2B Singer,  Sutherland on  Stat. Const.,  supra,                 ___ ____              ___________________________   _____          51.02,  at  121.   Second,  in  keeping  with the  spirit  of the          standards governing  implied repeals,  courts should endeavor  to          read  antagonistic  statutes together  in  the  manner that  will          minimize the aggregate disruption of congressional intent.  Here,          reading  the two  statutes  to restrict  state jurisdiction  over          gaming honors  the Gaming Act and,  at the same  time, leaves the                                        ____________________               20We take no view on  whether, apart from the Gaming Act,  a          state might have  regulated the activities that  comprise class I          gaming without violating the Free Exercise Clause.               21The state  argues that  the Settlement Act  should prevail          because it is the more specific statute.  There are two cracks in          this palladium.   As noted  by the  court below,  it is  arguable          which  statute is the more specific.  See Narragansett Tribe, 816                                                ___ __________________          F. Supp.  at 804.  More  fundamentally, the canon  upon which the          state relies is rooted in the presumption that, when legislatures          enact  general laws, they do  not have in  mind every preexisting          statute  that  touches on  some  specific aspect  of  the general          subject.   Where, as here, the  enacting Congress is demonstrably          aware of  the  earlier  law  at  the  time  of  the  later  law's          enactment, there is no basis for indulging the presumption.                                           44          heart  of the Settlement Act untouched.  Taking the opposite tack            reading  the two statutes  in such  a way as  to defeat  tribal          jurisdiction over  gaming on the  settlement lands    would honor          the  Settlement Act, but would do great violence to the essential          structure  and purpose  of the  Gaming Act.   Because  the former          course  keeps  disruption  of  congressional  intent  to  a  bare          minimum, that reading is to be preferred.                    Based on our understanding  of the statutory interface,          we hold that the  provisions of the Indian Gaming  Regulatory Act          apply with  full force to the  lands in Rhode Island  now held in          trust by the United States for the Narragansett Indian Tribe.22                            C.  Some Unanswered Questions.                            C.  Some Unanswered Questions.                                _________________________                    Despite this holding   a holding that resolves the case          before  us   it  would be  disingenuous to  pretend that  all the          relevant questions have been  answered.  While the Tribe  retains          all aspects of its retained sovereignty, as that term is commonly          comprehended in our jurisprudence, Congress, after having granted          to the state non-exclusive jurisdiction over the settlement lands          via the  Settlement Act, impliedly withdrew from  that grant, via                                        ____________________               22We  decline  to   address  certain  constitutional  claims          advanced  by the amici,  for these claims  were not urged  by the          plaintiffs  in the  court below.   According to  well established          authority,  amici  can  do no  more  than  "assist  the court  in          achieving a  just resolution  of issues  raised by  the parties."          Lane  v. First Nat'l Bank of Boston,  871 F.2d 166, 175 (1st Cir.          ____     __________________________          1989).    In  the  court  of  appeals,  amici  cannot  usurp  the          litigants'  prerogative and  introduce new  issues or  issues not          properly preserved for appeal.                                          45          the  Gaming Act,  the state's jurisdiction  over gaming.23   Yet,          the withdrawal of jurisdiction  over gaming cannot be interpreted          to signify a withdrawal of all residual jurisdiction.                                     ___                    This  means  that  the  state continues  to  possess  a          quantum  of regulatory authority.   Of course, any  effort by the          state  to exercise  this  residual  authority  is  hedged  in  by          barriers  on both  sides:  on  one side, by  the Tribe's retained          rights  of  sovereignty;  on  the  other  side,  by  the  Tribe's          congressionally  approved  authority   over  a  specific  subject          matter, namely, gaming.   Testing  the sturdiness of  one or  the          other  of  these  barriers  in  a  given  case  will  require  "a          particularized inquiry into the nature of the state, federal, and          tribal  interests  at stake."    White Mountain  Apache  Tribe v.                                           _____________________________          Bracker, 448 U.S. 136, 145  (1980).  We cannot undertake such  an          _______          inquiry in  the abstract, and, thus, the jurisdictional status of          the  settlement lands  remains ill-defined  in certain  respects.          But  that is  the  nature  of  litigation;  Article  III  of  the          Constitution forbids  courts  from issuing  advisory opinions  or          answering  hypothetical  questions.    See,  e.g.,  International                                                 ___   ____   _____________          Longshoremen's & Warehousemen's Union v.  Boyd, 347 U.S. 222, 224          _____________________________________     ____          (1954); United  Public  Workers  v.  Mitchell, 330  U.S.  75,  89                  _______________________      ________          (1947).   Having exhausted the limits of the case in controversy,          we must depart  the stage, leaving it set  for the possibility of          future litigation.                                        ____________________               23It is  important to note, however,  that jurisdiction over          class  III gaming is subject to restoration, in whole or in part,          as a negotiated by-product of a tribal-state compact.                                           46                    In  parting, we  offer a  few words  of guidance.   The          crucial  questions which  must yet  be answered  principally deal          with  the nature of  the regulable activities which  may   or may          not   be subject to state control, e.g., zoning, traffic control,                                             ____          advertising, lodging.  It  is true that nondiscriminatory burdens          imposed on  the activities  of non-Indians  on  Indian lands  are          generally upheld.   See, e.g., Washington  v. Confederated Tribes                              ___  ____  __________     ___________________          of  Colville  Indian  Reservation,   447  U.S.  134,  151  (1980)          _________________________________          (discussing  tax  burdens).     But  it  is  also  true   that  a          comprehensive  federal regulatory  scheme governing  a particular          area typically  leaves no  room for  additional state  burdens in          that area.   See  White Mountain Apache  Tribe, 448  U.S. at  148                       ___  ____________________________          (finding  state  timber  regulation  to  be  preempted).    Which          activities are deemed regulable, therefore, will probably depend,          in the first instance, on which activities are deemed integral to          gaming.  Although  the core functions of class III  gaming on the          settlement land  are beyond Rhode Island's  unilateral reach, the          distinction  between core functions  and peripheral  functions is          tenebrous,  as is the question  of exactly what  Rhode Island may          and  may not do with  respect to those  functions that eventually          are determined to be peripheral.                    If   these   criss-crossing  lines   prove  agonizingly          difficult to decipher, let alone to administer, they "are no more          or less so than  many of the classifications that pervade the law          of Indian jurisdiction."  Washington v. Yakima Indian Nation, 439                                    __________    ____________________          U.S.  463, 502  (1979).   And in  all events,  the jurisdictional                                          47          issues remain subject to  further judicial intervention, pursuant          to  the Gaming  Act,  in a  more  fact-specific context,  if  the          parties' compact negotiations collapse.                    We  can go no further  at this time.   We add, however,          that although our opinion today answers some questions and raises          others,  we do not mean to encourage the protagonists to litigate          ad  infinitum.  The parties'  baseline power need  not be defined          __  _________          with exactitude  by  judicial decree  where,  as here,  they  are          compelled  to enter negotiations out  of which will  emerge a new          balance  of  power.     The  next  step  in  the   allocation  of          jurisdiction  over gaming is in the hands of the parties, through          negotiations  designed  to  produce  a  tribal-state  compact  as          contemplated by the Gaming Act, see 25 U.S.C.   2710(d).  If cool                                          ___          heads and  fair-minded  thinking prevail,  that step  may be  the          last.                    The district court's issuance of a mandatory injunction                    The district court's issuance of a mandatory injunction                    _______________________________________________________          compelling Rhode Island  to commence good faith  negotiation of a          compelling Rhode Island  to commence good faith  negotiation of a          _________________________________________________________________          tribal-state  compact  is  affirmed.    The  declaratory judgment          tribal-state  compact  is  affirmed.    The  declaratory judgment          ___________________________________     _________________________          entered  in the district court shall, however, be modified as may          entered  in the district court shall, however, be modified as may          _________________________________________________________________          be  necessary to reflect the holdings  contained in this opinion.          be  necessary to reflect the holdings  contained in this opinion.          ________________________________________________________________          Costs to appellees.          Costs to appellees.          __________________                                   Dissent follows                                     Dissent follows                                            48                    COFFIN,   Senior  Circuit  Judge  (dissenting).    With                              ______________________          understandable  respect for  the  effort evident  in the  court's          opinion, and with full recognition of the closeness of this case,          I  reluctantly am unable to  accept its evaluation of legislative          history  and its conclusion that the Gaming Act worked an implied          repeal of the Settlement Act.                    The court, in my view, errs in two respects.  First, it          invokes   a   generally   applicable   principle   of   statutory          interpretation  --  statutory   language,  if  clear,  forecloses          recourse to legislative history -- in an area where this teaching          is not  so absolute, i.e.,  when two federal  statutes, literally          read, are in tension.  Second, when the court deigns to  consider          the  legislative  history  of  the  later,  supposedly  impliedly          repealing   statute,   the   Gaming  Act,   it   undervalues  it,          characterizing it  as "carefully selected snippets"  that "fail[]          to establish .  . . a  clearly expressed legislative  intention."          Ante pp. 25-26.           ____                    The most apposite recent authority  of which I am aware          is Watts  v. Alaska, 451  U.S. 259  (1981), in which  two federal             _____     ______          statutes  contained  irreconcilably  different  formulae  for the          distribution  of revenues from the lease or sale of minerals from          wildlife refuges.   The Court acknowledged  that the consolidated          cases before it  "involve[d] two  statutes each of  which by  its          literal  terms applies  to the  facts before  us."   Id.  at 266.                                                               ___          There, as here, the argument was made that  the plain language of          the  later statute  controlled and  made  improper any  resort to                                          49          legislative history.                    The Court  agreed that  the statutory language  was the          starting  point, but  stated that  "ascertainment of  the meaning          apparent on the face of a single statute need not end the inquiry          .  . .  because the  plain meaning  rule is  `rather an  axiom of          experience   than  a   rule  of   law,  and  does   not  preclude          consideration  of  persuasive  evidence   if  it  exists.'    The          circumstances  of the  enactment  of  particular legislation  may          persuade a court  that Congress  did not intend  words of  common          meaning  to have their literal effect."  Id. at 265-66 (citations                                                   ___          and footnote omitted).                    The Court then stated:                    Without depreciating this  general rule [that  the more                    recent  of  two  irreconcilably   conflicting  statutes                    governs], we decline to read  the statutes as being  in                    irreconcilable  conflict  without seeking  to ascertain                    the actual  intent of Congress.  Our examination of the                    legislative   history  is  guided   by  another  maxim:                    "`repeals by  implication are not favored,'"  Morton v.                                                                  ______                    Mancari, 417  U.S. at 549, quoting  Posadas v. National                    _______                             _______    ________                    City Bank, 296 U.S. 497, 503 (1936).  "The intention of                    _________                    the   legislature  to   repeal  must   be   `clear  and                    manifest.'"  United States v. Borden Co., 308 U.S. 188,                                 _____________    __________                    198  (1939), quoting Red  Rock v. Henry,  106 U.S. 596,                                         _________    _____                    602 (1883).  We  must read the statutes to  give effect                    to  each if we can  do so while  preserving their sense                    and purpose.  Mancari, supra, at 551; see Haggar Co. v.                                  _______  _____              __________                    Helvering, 308 U.S. 389, 394 (1940).                    _________          Watt, 451 U.S. at 266-67.          ____                    The Court then, despite  the absence of any explanation          in  the legislative history for adding the word "minerals" to the          later legislation,  after studying "the few legislative materials          pertinent,"  was persuaded  "that  Congress intended  to work  no          change in the pre-existing framework."  Id. at 267.                                                  ___                                          50                    The dissenting three justices  argued as does the court          in this case,  but they did not  prevail.  So far as  I have been          able to ascertain, Watt has not been eroded since its issuance.                             ____                    It seems clear  to me, at  least, that the  legislative          history in  this record reveals not  merely the lack of  a "clear          and manifest" Congressional intent  to repeal, but an affirmative          intent that  the pre-existing  legislation should remain  intact.          An examination of  the history reveals an express  explanation, a          deliberate, pre-planned  colloquy with  the floor manager  of the          legislation  (the  chairman of  the  Select  Committee on  Indian          Affairs)  as the  very  first exchange  with interested  Senators          following his introductory presentation.                    In  his presentation,  Senator Inouye referred  both to          the objective  of "determining what patterns  of jurisdiction and          regulation  should govern  the  conduct of  gaming activities  on          Indian lands" and affirmed the principle "that by virtue of their          original tribal sovereignty, tribes reserved  certain rights when          entering into  treaties with the  United States, and  that today,          tribal  governments retain  all  rights that  were not  expressly          relinquished."  134 Cong. Rec. S12649 (daily ed. Sept. 15, 1988).                    Immediately  at   the  conclusion  of   the  chairman's          presentation, the following colloquy took place:              Mr. PELL.               Mr. President,  I would like to thank the managers of S. 555,          the Indian   Gaming Regulatory Act, and particularly the chairman          of the Select Committee on Indian Affairs [Mr. Inouye], for their          hard work and patience in achieving a consensus on this important          measure.               In the  interests  of clarity,  I  have asked  that  language          specifically citing  the protections  of the Rhode  Island Indian                                          51          Claims  Settlement Act  (Public Law 95-395)  be stricken  from S.          555. I understand that  these protections clearly will remain  in          effect.               Mr. INOUYE.               I thank  my colleague, the  senior Senator from  Rhode Island          [Mr.  Pell], and  assure him  that the  protections of  the Rhode          Island  Indian Claims  Settlement  Act (P.L. 95-395), will remain          in effect  and that  the Narragansett  Indian Tribe  clearly will          remain subject to the civil, criminal, and regulatory laws of the          State of Rhode Island.               Mr. CHAFEE.               Mr.  President, I too would  like to thank  the chairman [Mr.          Inouye]  and  members of  the Select Committee  on Indian Affairs          for  their cooperation and  assistance. The  chairman's statement          makes it clear that any high  stakes  gaming, including bingo, in          Rhode Island will  remain subject  to the civil,   criminal,  and          regulatory laws of our State.             134 Cong. Rec. S12650 (daily ed. Sept. 15, 1988).                    Following the colloquy other senators made  comments or          asked questions.    A  colloquy  similar to  that  quoted  above,          between Senator Reid  and the chairman, established the extent to          which  an  earlier piece  of  legislation  dealing with  gambling          devices would be altered by the bill under discussion.  134 Cong.          Rec. S12650 (daily ed.  Sept. 15, 1988).  Still  another exchange          concerned  the  scope  of  actions allowed  under  a  grandfather          clause.  134 Cong. Rec. S12651.                    Were  such  responsible and  calculated  floor exhanges          with  managers  of legislation  to be  rendered  of little  or no          account, the character of the legislating process would  suffer a          substantial   constriction,  and   a   valued   opportunity   for          clarification, minor  correction, and fine tuning  would be lost.          I  do not  think the  judiciary  should be  a party  to any  such          result.                    Certainly in the instant case, this legislative history                                          52          supports the  conclusion that  the Rhode Island  Senators thought          the  implied repeal  language  unnecessary because  they did  not          believe  that the  jurisdictional  provisions of  the Gaming  Act          applied  to  the Settlement  Act.   That  this accorded  with the          intent  of the  Senate  seems equally  clear,  unless we  are  to          proclaim this  traditional kind of colloquy  with leadership mere          smoke and mirrors.                    I think it also worth noting that the colloquy includes          a  statement  by the  bill's  sponsor  and floor  manager,  whose          remarks usually are afforded substantial weight.  See North Haven                                                            ___ ___________          Bd. of Educ.  v. Bell, 456 U.S.  526-27 (1982); United States  v.          ____________     ____                           _____________          Mass. Maritime Academy, 762 F.2d 142, 149 (1st Cir. 1985).          ______________________                    I  add that  the colloquy,  although clear  and  to the          point, is not  the only  evidence of Congressional  intent.   The          Senate  report also  mentions that  "nothing in the  [Gaming Act]          will  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  Claims  Settlement  Act  [and the  Maine]  Indian  Claims          Settlement Act."  S.Rep. No. 446, 100th Cong. 2d Sess. 12 (1988),          reprinted in  1988 U.S.C.C.A.N.  3071, 3082 (citations  omitted).          _________ __          While  the court  concludes that  the report,  issued  before the          deletion  proposed by Senator Pell, is of no present relevance, I          do not think it can so easily be discounted.  Rather, it seems to          me entirely consistent  with the colloquy  with the Rhode  Island          senators.                                          53                    If,  therefore,   we  assign   proper  weight   to  the          legislative history, I think it unavoidable that we would have to          conclude  that the Gaming Act  had effected no  implied repeal of          the Settlement  Act.  If,  of course, the  Congress were to  feel          that an injustice had been done  to appellees, it could provide a          remedy through supplemental legislation.24                    I therefore, with great reluctance, dissent.                                        ____________________               24Our circuit similarly has looked to legislative history to          help  resolve a conflict between  a federal and  a state statute.          In Local Div. 589 v. Massachusetts, 666 F.2d 618 (1st Cir. 1981),             ______________    _____________          we were  asked to  determine whether    13(c) of  the Urban  Mass          Transportation Act  of 1964,  49 U.S.C.     1609(c), preempted  a          conflicting Massachusetts statute.   The text of   13(c)  did not          answer this question.   Our close examination of  the legislative          history,  however, persuaded us that Congress  did not intend for          this statute to preempt conflicting Massachusetts law.                                          54
