Jena MacLean was quoted in the Law360 article, "Martha's Vineyard Tribal Casino Win Could Cost Locals," regarding the First Circuit's decision to allow a Massachusetts tribe to build a casino on Martha's Vineyard. The decision endorsed the principle that tribes should be able to rely on gaming to build their governments, which could create disruption for state and local authorities in areas where they share jurisdiction with tribes.

But the panel failed to fully grapple with the question of whether an existing federal law that settled the tribe’s land claims and gave the state and local governments authority over the tribe’s trust lands — a situation common in New England — prevented the tribe from exercising enough governmental authority to trigger the IGRA, according to Jena A. MacLean.

“That’s a more difficult question than the court credited,” MacLean said.

The key question is whether a generally applicable statute can impliedly repeal a much more specific statute as the First Circuit found the IGRA impliedly repealed the part of the settlement that made Massachusetts gaming law applicable to the tribe’s land, according to MacLean.

“If one of those parties can unilaterally repeal a provision that appears to reflect the intent of the parties’ agreement, that’s a problem,” MacLean said.