          United States Court of Appeals
                      For the First Circuit

No. 16-1137

        COMMONWEALTH OF MASSACHUSETTS; AQUINNAH/GAY HEAD
       COMMUNITY ASSOCIATION, INC.; TOWN OF AQUINNAH, MA,

                      Plaintiffs, Appellees,

                                v.

           THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH);
         THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.;
            THE AQUINNAH WAMPANOAG GAMING CORPORATION,

                     Defendants, Appellants,

      CHARLES D. BAKER, in his official capacity as Governor
      of the Commonwealth of Massachusetts; MAURA T. HEALEY,
     in her capacity as Attorney General of the Commonwealth
     of Massachusetts; STEPHEN P. CROSBY, in his capacity as
         Chairman of the Massachusetts Gaming Commission,

                     Third-Party Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Scott D. Crowell, with whom Crowell Law Offices-Tribal
Advocacy Group, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP
were on brief, for appellants.
     Judy B. Harvey, Attorney, Environment and Natural Resources
Division, U.S. Department of Justice, with whom John C. Cruden,
Assistant Attorney General, Sam Hirsch, Principal Deputy Assistant
Attorney General, Mary Gabrielle Sprague and Amber Blaha,
Attorneys, Environment and Natural Resources Division, Dan
Lewerenz, Office of the Solicitor, Department of the Interior, and
Maria Getoff, Office of the General Counsel, National Indian Gaming
Commission, were on brief, for United States as amicus curiae.
     Felicia H. Ellsworth, with whom Claire M. Specht, James L.
Quarles, III, and Wilmer Cutler Pickering Hale and Dorr LLP were
on brief, for appellee Aquinnah/Gay Head Community Association,
Inc.
     Ronald H. Rappaport, with whom Michael A. Goldsmith and
Reynolds, Rappaport Kaplan & Hackney, LLC were on brief, for
appellee Town of Aquinnah.
     Juliana deHaan Rice, Assistant Attorney General, Government
Bureau, with whom Bryan F. Bertram, Assistant Attorney General,
and Maura T. Healey, Attorney General, were on brief, for appellee
Commonwealth of Massachusetts and Third-Party Defendants.



                          April 10, 2017




                               -2-
             TORRUELLA,   Circuit Judge.         Appellant, the Wampanoag

Tribe of Gay Head (Aquinnah)1 (the "Tribe"), a federally recognized

Indian tribe, seeks to have gaming pursuant to the Indian Gaming

Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, on its trust lands

in   Dukes    County,     Massachusetts    (the        "Settlement     Lands").

Appellees, the Commonwealth of Massachusetts (the "Commonwealth"),

the town of Aquinnah (the "Town") and the Aquinnah/Gay Head

Community Association2 argue that any gaming on the Settlement

Lands should be subject to state, rather than federal, laws and

regulations.     The district court, on summary judgment, found for

the Appellees.      The district court reasoned that IGRA did not

apply,   because   the    Tribe   had   failed    to    exercise     sufficient

governmental power; and that even if the Tribe had exercised

sufficient governmental power, the Wampanoag Tribal Council of Gay

Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-

95 (codified at 25 U.S.C. §§ 1771-1771i) (the "Federal Act"), which

provides that the Settlement Lands are subject to state laws and

regulations (including gaming laws and regulations), governed.

Because we find that the Tribe has exercised more than sufficient



1  The town of Gay Head was incorporated into the Commonwealth of
Massachusetts in 1870, but has since been renamed "Aquinnah."
2  Because the Town and the Association filed a joint brief, we
generally refer to both parties together as "the Town."


                                    -3-
governmental power to satisfy the requirements of IGRA, and the

Federal Act has been impliedly repealed by IGRA in relevant part,

we reverse.

                            I.   Background

A.   Factual History

      1.   The Settlement Agreement and the Federal Act

            The Tribe has lived on Martha's Vineyard since before

the European colonization of New England, and has continued to

reside there to the present day.      The Town was incorporated by the

Commonwealth in 1870 as the town of Gay Head, and has since been

renamed Aquinnah.      In 1974, the Tribe sued the Town in federal

court, asserting title to certain lands and "seeking ejectment of

record title holders."       The Commonwealth and the Association

intervened.

            In November 1983, these parties signed a Memorandum of

Understanding   (the    "Settlement   Agreement").    The   Settlement

Agreement conveyed the Settlement Lands (approximately 485 acres)

to the Tribe.   In exchange, the Tribe gave up its claims to other

lands and dismissed its lawsuit.      Before this Settlement Agreement

could enter into force, it had to be implemented by Congress.

            On August 18, 1987, Congress implemented the Settlement

Agreement by passing the Federal Act.           See Wampanoag Tribal

Council of Gay Head, Inc., Indian Claims Settlement Act of 1987,


                                  -4-
Pub. L. No. 100-95 (codified at) 25 U.S.C. §§ 1771-1771i.                  The

Federal Act provides, inter alia, that the Settlement Lands "shall

be   subject   to    the   civil   and    criminal   laws,   ordinances,   and

jurisdiction of the Commonwealth . . . and the [Town] . . .

(including those laws and regulations which prohibit or regulate

the conduct of bingo or any other game of chance)."                25 U.S.C.

§ 1771g.

            The parties all agree that "[t]he Commonwealth, the

Town, and the Tribe have each exercised jurisdiction over the

Settlement Lands pursuant to the provisions of the Federal Act."

      2.   Cabazon and IGRA

            On February 25, 1987 -- approximately six months before

Congress passed the Federal Act -- the Supreme Court decided

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987),

which held that California -- which permitted certain forms of

regulated gambling -- could not civilly regulate tribal bingo games

because such regulation "would impermissibly infringe on tribal

government."        Id. at 221-22. This decision did, however, leave

space for states that criminally prohibit gaming to prohibit it on

Indian lands within their jurisdictions.

            In response, on October 17, 1988, Congress enacted IGRA.

See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,

2034 (2014) ("Congress adopted IGRA in response to [Cabazon], which


                                         -5-
held that States lacked any regulatory authority over gaming on

Indian lands.").          IGRA provides, inter alia, "for the operation

of gaming by Indian tribes as a means of promoting tribal economic

development, self-sufficiency, and strong tribal governments."                         25

U.S.C. § 2702(1).

               IGRA     "sets     in     place     a      sophisticated        regulatory

framework" for gambling on Indian lands, dividing gaming into three

classes:        Class     I   gaming,     which     includes      traditional     Native

American gaming, is always permitted; Class II gaming, which

includes       bingo,    is   permitted     so     long    as    the   state    does   not

generally proscribe gaming of that type; and Class III gaming,

which includes casino gambling, is permitted only pursuant to a

compact between a tribe and the state.                     Id. § 2710; Rhode Island

v. Narragansett Indian Tribe, 19 F.3d 685, 689-90 (1st Cir. 1994).

Congress       established        the    National       Indian    Gaming       Commission

("NIGC")       to      administer       IGRA;     its     responsibilities        include

approving Class II gaming ordinances submitted to it by Indian

tribes.       25 U.S.C. §§ 2704, 2710(b)(1)(B).

        3.    The Tribe's Pursuit of Gaming on Settlement Lands

               On November 22, 2011, Governor Deval Patrick signed "An

Act Establishing Expanded Gaming in the Commonwealth" into law,

which        allowed     gaming     in     establishments         licensed       by    the

Commonwealth.           On that same day, the Tribe submitted Gaming


                                            -6-
Ordinance No. 2011-01 to the NIGC for approval, which set forth

tribal rules governing gaming.         On February 4, 2012, the Tribe

adopted Gaming Ordinance No. 2011-01, and on February 21, 2012,

the NIGC "announc[ed] the approval of Gaming Ordinance No. 2011-

01 for gaming on Indian Lands as defined by IGRA."              On March 5,

2012, the Tribe began corresponding with the Commonwealth to enter

into negotiations for a Class III compact under the newly-enacted

law, but no compact was formed.

             On May 30, 2013, the Tribe submitted an amended Ordinance

No. 2011-01 to the NIGC, which stated the Tribe's intention to

pursue Class II gaming on the Settlement Lands.              The NIGC sought

an opinion from the Department of the Interior ("DOI") as to

whether   the    Federal   Act   prohibited    Class   II    gaming    on   the

Settlement Lands; the DOI provided an opinion stating that gaming

was not prohibited.        On August 29, 2013, the NIGC approved the

amended Ordinance No. 2011-01.        On October 25, 2013, in response

to a request by the Tribe, the NIGC provided an opinion that the

Settlement      Lands   were     eligible     for   gaming     under    IGRA.

Consequently, the Tribe has neither applied for nor obtained a

license from the Massachusetts Gaming Commission to operate a

gaming establishment.

             When the Tribe informed the Commonwealth that it would

proceed with the establishment of a Class II gaming facility on


                                    -7-
the Settlement Lands pursuant to IGRA, the Commonwealth responded,

on December 2, 2013, by filing suit against the Tribe in state

court.     The   Commonwealth    asserted    breach   of   the    Settlement

Agreement and sought a declaratory judgment that the Settlement

Agreement prohibited gaming on the Settlement Lands.              The Tribe

removed the case to the district court on December 30, 2013, on

grounds of federal question and supplemental jurisdiction.

            After some procedural fencing not relevant here, on

May 28, 2015, the parties all moved for summary judgment.                 On

November 13, 2015, the district court granted summary judgment for

the Appellees.

            The district court ruled that the Settlement Lands were

not covered by IGRA, and hence were subject to the Commonwealth's

gaming regulations.      Massachusetts v. Wampanoag Tribe of Gay Head

(AQUINNAH), 144 F. Supp. 3d 152, 177 (D. Mass. 2015).             First, it

found    that   the   Tribe,   despite    having   jurisdiction    over   the

Settlement Lands, failed to exercise sufficient "governmental

power" over those lands, as required for IGRA to apply.             Id.   It

recognized that the Tribe had asserted that it was "responsible"

for many governmental services in the Settlement Lands, but found

that it had not shown sufficient "actual manifestations of [the

Tribe's] authority."      Id. at 169-70.      Second, it ruled that even

if the Tribe did exercise sufficient governmental power, IGRA did


                                    -8-
not work an implied repeal of the portion of the Federal Act that

subjected    the   Settlement     Lands      to   the   gaming   laws    of    the

Commonwealth.      Id. at 177.     The district court relied heavily on

the parenthetical language in § 1771g of the Federal Act stating

that   the   "civil   or    criminal   laws"      included   "those     laws   and

regulations which prohibit or regulate the conduct of bingo or any

other game of chance."        25 U.S.C. § 1771g.        Id. at 170-72 (quoting

25 U.S.C. § 1771g).        According to the district court, this language

"specifically prohibits gaming on the Settlement Lands."                  Id. at

172.    Because IGRA does not permit Class II gaming if it is

"otherwise specifically prohibited on Indian lands by Federal

law," the district court ruled that IGRA did not repeal this

provision, and that the Federal Act prohibited the Tribe from

opening a gaming establishment on the Settlement Lands without the

Commonwealth's approval.        Id.

             On January 5, 2016, the district court entered final

judgment, declaring that the Tribe could not operate a gaming

facility on the Settlement Lands without complying with the laws

of the Commonwealth and the Town, and enjoining the Tribe from

opening any such establishment without first obtaining approval

from the Commonwealth and the Town.               The Tribe filed a timely

appeal.




                                       -9-
                      II.    Standard of Review

           A district court's grant of summary judgment is reviewed

de novo.   OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co.

of Can., 684 F.3d 237, 241 (1st Cir. 2012).             Summary judgment

should be granted if "there is no genuine dispute as to any

material fact" and the movant "is entitled to judgment as a matter

of law."   Id. (quoting Fed. R. Civ. P. 56(a)).

                            III.    Discussion

           We must resolve two issues today.      First, we must decide

whether IGRA applies to the Settlement Lands.           See Narragansett,

19 F.3d at 702-03.   Second, we must decide whether IGRA effects a

repeal of the Federal Act.3        See id. at 703-04.

A.   The Applicability of IGRA

        [IGRA]'s key provisions [apply] to "[a]ny Indian tribe
        having jurisdiction over Indian lands," or, stated
        differently, to "Indian lands within such tribe's

3  The Tribe also raises a third issue, whether the district court
abused its discretion by not including the NIGC as a required
party. A party is required to be joined if the absence of that
party could "leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations." Fed. R. Civ. P. 19(a)(1)(B)(ii). In determining
whether there is a risk of inconsistent obligations under Rule
19(a)(1)(B)(ii), we consider whether there is a "practical"
possibility of such an inconsistency, not whether it may be
"theoretically possible." Bacardí Int'l. Ltd. v. V. Suárez & Co.,
719 F.3d 1, 13 (1st Cir. 2013). Although the Tribe asserts that
it may become subject to inconsistent obligations, the Tribe has
failed to provide any examples of such inconsistent obligations.
We thus find no error, let alone abuse of discretion, in the
district court's decision to proceed without the NIGC as a party.


                                    -10-
            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).

Narragansett, 19 F.3d at 701 (third and fourth alterations in

original).

       1.    Having Jurisdiction4

              In Narragansett, we were satisfied by the fact that Rhode

Island did not acquire "exclusive" jurisdiction, and that the

Narragansett Tribe retained "that portion of jurisdiction they

possess by virtue of their sovereign existence as a people."                 Id.

at 702.       In the present case, as the district court noted, the

parties stipulated that "the Commonwealth, the Town, and the Tribe

have   each    exercised   jurisdiction      over    the   Settlement   Lands."

Although the Federal Act does contain some language limiting the

Tribe's jurisdiction, that language only confirms that the Tribe

retains the jurisdiction it has not surrendered in the Federal

Act.   25 U.S.C. § 1771e(a) (stating that the Tribe "shall not have

any jurisdiction over nontribal members and shall not exercise any

jurisdiction      over   any   part   of     the    [S]ettlement   [L]ands    in

contravention of [the Federal Act], the civil regulatory and



4  The Tribe argues that Appellees have waived arguments on this
issue. Because we find for the Tribe on the merits, we need not
address its waiver argument.


                                      -11-
criminal laws of [the Commonwealth and the Town], and applicable

Federal Laws").5       "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

[Tribe], therefore, [has] made the necessary threshold showing."

Narragansett, 19 F.3d at 702.

        2.    Exercising Governmental Power

             [A] tribe must exercise governmental power in order
             to trigger [IGRA]. 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
             lands.

Id. at 702-03.

               In   Narragansett,   we   noted   that   this   "inquiry   into

governmental power need not detain us," and concluded that the

Narragansett Tribe's "activities adequately evince that the Tribe

exercises more than enough governmental power to satisfy the second

prong of the statutory test." Id. at 703.          To wit, the Narragansett

Tribe



5  The Town observes that in Narragansett we pointed to the Federal
Act as an instance where, in contrast to Rhode Island's Settlement
Act, Congress placed "stated limits on the retained jurisdiction
of the affected tribes." 19 F.3d at 702. However, we made that
comment only to highlight that the Rhode Island Act's broad
language did not imply exclusivity, not to suggest that the Federal
Act somehow conveyed exclusive jurisdiction to the Commonwealth.


                                     -12-
       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. § 450a(b)
       (1998). 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, conservation, public safety, and the
       like.

Id.

          The Tribe in the present case has taken most of the same

steps that the Narragansetts had -- and indeed several more.

Therefore, like in Narragansett, the inquiry into governmental

power "need not detain us."   Id.

          In the present case, like in Narragansett, the Tribe:

has established a housing program that receives HUD assistance,

and has built approximately 30 units of housing under that program;

has entered into an intergovernmental agreement with the EPA;

operates a health care clinic with the aid of the Indian Health

Service; administers a program for education with scholarships

                               -13-
financed with Bureau of Indian Affairs funding; administers social

services with a human services director responsible for child

welfare   work;    administers      conservation       policy    (and    has    two

conservation rangers to enforce its conservation policy); and

administers a public safety program (the same two rangers enforce

tribal laws and can be cross-deputized by the Town).

            In addition, the Tribe has passed numerous ordinances

and employs a judge.        These ordinances deal with such diverse

topics    as    building   codes,       health,    fire,    safety,       historic

preservation, fish, wildlife, natural resources, housing, lead

paint, elections, judiciary, criminal background checks, and the

reporting of child abuse and neglect.             In addition to the inter-

governmental agreements already mentioned -- with the EPA and the

Bureau of Indian Affairs -- the Tribe has also entered into

intergovernmental agreements with the National Park Service, and

indeed also with the Commonwealth and the Town.                  The agreements

with the Commonwealth and the Town include agreements whereby the

Tribe,    for   compensation,     may    rely     on   state     and    local   law

enforcement and firefighting services.

            The Town nevertheless urges us to adopt the district

court's   analysis   and   find     that    the   Tribe    has    not   exercised

sufficient governmental power.           The Town points out that some of

the Tribe's exercises of governmental power are not full-fledged,


                                     -14-
and then proceeds to read our opinion in Narragansett as requiring

full-fledged exercise of governmental power for IGRA to apply.

For instance, the Town points out that while the Tribe employs a

judge -- and indeed maintains a tribal court -- this judge is

employed    part-time,     and   presides        via   teleconference      from

Washington State; similarly, the Town points out that the Tribe

does not have a hospital, but instead maintains a health clinic.

            The Town gets it backwards.            Pursuant to IGRA, "the

operation of gaming by Indian tribes [is] a means of promoting

tribal economic development, self-sufficiency, and strong tribal

governments."     25 U.S.C. § 2702.     The Town now seeks to put this

logic on its head by requiring the Tribe's government to be fully

developed before it can have the benefit of gaming revenue.                This

is   not   what   IGRA   requires,    nor   is    it   our   case   law.     In

Narragansett, we deemed the "many strides in the direction of self-

government" -- that is, not the achievement of full-fledged self-

governance, but merely movement in that direction -- to "evince

that the Tribe exercises more than enough governmental power to

satisfy the second prong of the statutory test."             19 F.3d at 703.

We have no difficulty drawing the same conclusion here, especially

because "[i]n determining [Congressional] intent . . . [d]oubtful

expressions are to be resolved in favor of [Indians]."              Id. at 691




                                     -15-
(citations omitted) (quoting Rosebud Sioux Tribe v. Kneip, 430

U.S. 584, 586–87 (1977)).6

B.    The Interface between IGRA and the Federal Act

            Having determined that IGRA applies to the Settlement

Lands, we must now determine whether IGRA effected a partial repeal

of the Federal Act.       "The proper mode of analysis for cases that

involve a perceived conflict between two federal statutes is that

of implied repeal."      Id. at 703 (citing United States v. Cook, 922

F.2d 1026, 1033 (2d Cir. 1991)).             "[I]mplied 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."

Id. (citing Pipefitters Local 562 v. United States, 407 U.S. 385,

432 n.43 (1972)). "[S]o long as the two statutes, fairly construed,

are    capable    of   coexistence,    courts     should   regard   each    as

effective."      Id. (citing Traynor v. Turnage, 485 U.S. 535, 547–48

(1988)).    But "'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.'"                Id.



6  The Tribe also argues that the determinations the NIGC and DOI
made concerning the applicability of IGRA to the Settlement Lands
merit our deference. Because we find for the Tribe on the merits
of its own legal arguments, we do not reach the question of how
much, if any, deference the NIGC and DOI determinations merit.


                                      -16-
(quoting United States v. Tynen, 78 U.S. 88, 92 (1870)).     Finally,

"[e]ven 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. at 703-04 (quoting Tynen,

78 U.S. at 92).

             "The doctrine of implied repeal operates without special

embellishment in the Indian law context.          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."     Id. at 704 (internal citations omitted).

             Two precedents guide our analysis of the present issue:

Narragansett, 19 F.3d 685 (holding that the Rhode Island Settlement

Act was impliedly repealed in relevant part by IGRA, id. at 705),

and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996)

(holding that the Maine Settlement Act was not repealed by IGRA).

Because the present case is very close to Narragansett, and readily

distinguished from Passamaquoddy, we find for the Tribe on this

issue.

             The Rhode Island Settlement Act at issue in Narragansett

read, in relevant part, "[e]xcept as otherwise provided in this

subchapter, the settlement lands shall be subject to the civil and


                                 -17-
criminal laws and jurisdiction of the State of Rhode Island."               25

U.S.C. § 1708 (1978).       We found that this settlement act and IGRA

"are partially but not wholly repugnant."          Narragansett, 19 F.3d

at 704.      The two laws clashed only as to class I and class II

gaming (because IGRA permits class III gaming only if the tribe

and the state reach a compact), which "leaves largely intact the

grant   of   jurisdiction    [to   the   state]   --   but   it   demands   an

adjustment of that portion of jurisdiction touching on gaming."

Id.   We highlighted two reasons why IGRA trumped the Rhode Island

Settlement Act:

          First, the general rule is that where two acts are in
          irreconcilable conflict, the later act prevails
          . . . . Second, . . . 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 [IGRA] and, at
          the same time, leaves the heart of the [Rhode Island]
          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 [IGRA].

Id. at 704-705 (internal citations omitted).

             In Passamaquoddy, we were presented with very different

language:

          The provisions of any Federal law enacted after
          October 10, 1980 [the effective date of the Maine
          Settlement Act], for the benefit of Indians, Indian
          nations, or tribes or bands of Indians, which would
          affect or preempt the application of the laws of the

                                    -18-
           State of Maine . . . shall not apply within the State
           of Maine, unless such provision of such subsequently
           enacted Federal law is specifically made applicable
           within the State of Maine.

25 U.S.C. § 1735(b) (emphasis added).          We reasoned that the Maine

Settlement Act contained a savings clause that "acts as a warning

signal to later Congresses to stop, look, and listen before

weakening the foundation on which the settlement between Maine and

the Tribe rests," and that "signals courts that, if a later

Congress enacts a law for the benefit of Indians and intends the

law   to    have   effect   within   Maine,   that   intent   will   be   made

manifest."     Passamaquoddy, 75 F.3d at 789.        Because IGRA does not

contain any indication that Congress intended it to be specifically

applicable within Maine, we concluded that -- given the presence

of the savings clause -- there was no conflict between the Maine

Settlement Act and IGRA, and IGRA therefore did not alter that

settlement act.

             The Appellees seek to distinguish the present case from

Narragansett because the Federal Act -- otherwise, in relevant

part, essentially identical to the Rhode Island Settlement Act7


7   The relevant portion of the Federal Act reads, in full:

           Except as otherwise expressly provided in this
           subchapter or in the State Implementing Act, the
           settlement lands and any other land that may now or
           hereafter be owned by or held in trust for any Indian
           tribe   or  entity   in   the  town   of  Gay   Head,
           Massachusetts, shall be subject to the civil and

                                     -19-
-- ends in a parenthetical that reads, in full, "(including those

laws and regulations which prohibit or regulate the conduct of

bingo or any other game of chance)."      25 U.S.C. § 1771g.    Appellees

argue that this parenthetical operates as a savings clause like

the one in Passamaquoddy.

            Appellees, however, misread the parenthetical.           Unlike

the savings clause in Passamaquoddy, the parenthetical in the

Federal Act says nothing about the effect of future federal laws

on the Federal Act.      Rather, the parenthetical merely clarifies

that, at the time of the enactment of the Federal Act, state and

local gaming law applied to the Settlement Lands.           We note that,

at the time, there was a reason for adding this clarification (a

reason that did not exist nine years earlier when the Rhode Island

Settlement Act entered into force).           Approximately six months

before Congress passed the Federal Act on August 18, 1987, the

Supreme    Court   decided   Cabazon,   480   U.S.   202,   which   created




          criminal laws, ordinances, and jurisdiction of the
          Commonwealth of Massachusetts and the town of Gay
          Head, Massachusetts (including those laws and
          regulations which prohibit or regulate the conduct of
          bingo or any other game of chance).

25 U.S.C. § 1771g. Although the Federal Act is more detailed than
the Rhode Island Settlement Act in terms of which lands it applies
to and which local laws the Settlement Lands shall be subject to,
Appellees do not argue, nor could they, that this added level of
detail is relevant to the implied repeal analysis.


                                  -20-
considerable   uncertainty   about   Indian   law,   specifically   with

respect to gaming.   See, e.g., Wisconsin v. Ho-Chunk Nation, 784

F.3d 1076, 1080 (7th Cir. 2015) ("Cabazon led to a flood of

activity, and states and tribes clamored for Congress to bring

some order to tribal gaming."); see also supra Section I.2.         Soon

after, on October 17, 1988, Congress enacted IGRA.         The Federal

Act was thus passed during a period of uncertainty about the status

and future of Indian gaming.   The parenthetical served to decrease

that uncertainty by clarifying that, when the Federal Act was

enacted, Commonwealth gaming law applied to the Settlement Lands,

but -- just like the Rhode Island Settlement Act nine years before

it -- it said nothing about the effect of future federal law.8

          The fact that the savings clause in the Maine Settlement

Act had already been on the books for some seven years when the

Federal Act was enacted further confirms that Congress did not

intend the Federal Act to contain such a savings clause -- for the

Maine Settlement Act leaves no doubt that Congress knew how to




8  Appellees note that Congress amended the Rhode Island Settlement
Act following our decision in Narragansett to include "[f]or
purposes of [IGRA], settlement lands shall not be treated as Indian
lands." 25 U.S.C. § 1708(b) (1996). Appellees argue that this
means that Congress also intended the Settlement Lands in
Massachusetts not to be treated as Indian lands for the purposes
of IGRA.   Appellees ignore an obvious fact:      Congress did not
amend the Federal Act.


                                -21-
draft a savings clause, and that the parenthetical in the Federal

Act is not such a savings clause.9

          We also reject the Appellees' argument that the Federal

Act and IGRA are not in conflict because the latter only allows

class II gaming where it "is not otherwise specifically prohibited

on Indian lands by Federal law."        25 U.S.C. § 2710(b)(1)(A).

Contrary to the Appellees' contentions, the parenthetical language

included in the Federal Act is neither specific nor a prohibition.

The language is hardly specific, as it appears applicable to all

types of gaming and references bingo only as an example.   Nor does

the section prohibit anything.       It merely grants Massachusetts

jurisdiction over gaming.    And, as the Tribe points out, even

Massachusetts law does not prohibit gaming altogether.      Rather,

it merely regulates such gaming (e.g., by requiring a license).



9  The Maine Settlement Act is by no means the only example that
demonstrates that Congress knows how to draft a savings clause.
See Passamaquoddy, 75 F.3d at 790 ("the Court regularly has upheld
and given effect to [savings clauses]" (citing Warden, Lewisburg
Penit. v. Marrero, 417 U.S. 653, 659–60 n.10 (1974) (earlier
statute barred repeal of certain penalties "unless the repealing
Act shall so expressly provide"); Shaughnessy v. Pedreiro, 349
U.S. 48, 52 (1955) (earlier statute directed that "[n]o subsequent
legislation shall . . . supersede or modify the provisions of [the
earlier statute] except to the extent such legislation shall do so
expressly"); Posadas v. National City Bank, 296 U.S. 497, 501
(1936) (earlier statute directed that subsequent laws "shall not
apply to the Philippine Islands, except when they specifically so
provide"); Great Northern Ry. Co. v. United States, 208 U.S. 452,
456 (1908) (similar); United States v. Reisinger, 128 U.S. 398,
401–02 (1888) (similar))).

                               -22-
Review of the legislative history confirms that this is not the

type of specific prohibition that Congress had in mind.   Indeed,

"[t]he phrase 'not otherwise prohibited by Federal Law'" was meant

to "refer[] to gaming that utilizes mechanical devices as defined

in 15 U.S.C. § 1175," which the Appellees concede is not at issue

here.   S. Rep. No. 100-446, at 12 (1988), reprinted in 1988

U.S.C.C.A.N. 3071, 3082.

                           IV.   Conclusion

          For the foregoing reasons, the opinion of the district

court is reversed and the case is remanded to the district court

for entry of judgment in favor of the Tribe.

          Reversed and Remanded.




                                 -23-
