For the Wampanoag Tribe of Gay Head (Aquinnah), time may have finally run out on their continued efforts to operate a gaming facility on Martha’s Vineyard. Tomorrow, the United States Court of Appeals for the First Circuit, will hear oral arguments in a case that will likely decide the future of gambling for the Tribe. And the Tribe’s chances may very well turn on what the appellate court thinks of those seemingly innocuous grammatical tools: parentheses.
But first, a little background: Unlike many tribes in the U.S., the Wampanoag Tribe of Gay Head has been absent from the nearly 30-year gaming party – since 1988 when Congress passed the Indian Gaming Regulatory Act (IGRA). Recently, the Commonwealth of Massachusetts and the Town of Aquinnah have successfully used the courts to block efforts by the Tribe to take advantage of IGRA. In part, they argue that Congress intended to exclude the Tribe from IGRA when it passed a 1987 act implementing a historic settlement agreement between Massachusetts and the Tribe. Among other things, the parties agreed that in exchange for money and land, state and town law would apply to tribal land.
Indeed, IGRA generally supersedes state and local law concerning Indian gaming unless another Federal law specifically forbids it. This won’t be the first time that the First Circuit decides whether a congressionally blessed tribal-state settlement agreement bars IGRA. In 1994, the court of appeals held that IGRA overrode Rhode Island’s settlement agreement with the Narragansett Indian Tribe. In contrast, two years later it found the state of Maine’s settlement agreement prevented tribal gaming for the Passamaquoddy Tribe.
In the current case, the lower district court, under Judge Saylor, decided that certain language within the agreement squarely prohibited tribal gaming. In fact, Judge Saylor found that language in parentheses played a “critical” role in establishing that IGRA did not apply (Decision and Order, p. 31). The “critical” parenthetical is found within the agreement’s mandate that tribal lands “shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts and the town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).”
But don’t parentheses usually signify redundancy? Congress just wanting to make sure readers understand what was generally and obviously included, nothing special, just a throwaway line? Or did Congress intend to tell officials and judges that this law specifically cut the Tribe out of future gaming opportunities?
Most people probably only experience parentheses these days when making emoticons such as :). The seriousness of this issue and its implications for everyone should remind us that parentheses are no laughing matter.
Information on the U.S. Supreme Court’s take on parentheses is available here (p. 4).