Case 2:25-cv-00978-APG-BNW Document 75 Filed 09/15/25 Page 14 of 20
Justice (“DOJ”) with “exclusive jurisdiction” over criminal prosecutions of applicable gambling
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laws in Indian country, unless a tribe agrees to transfer jurisdiction to the state. 18 U.S.C. §
1166(d). Under Crypto.com’s theory, the CEA likewise impliedly repealed DOJ’s jurisdiction
over such criminal prosecutions.
The Supreme Court applies the “strong presumption that repeals by implication are
disfavored and that Congress will specifically address preexisting law when it wishes to suspend its
normal operations in a latter statute.” Epic Sys. Corp. v. Lewis , 584 U.S. 497, 510 (2018) (citing
United States v. Fausto , 584 U.S. 439, 452, 453 (1988)). Congress’s intent to repeal must be “clear
and manifest.” Posadas v. Nat’l City Bank of N.Y. , 296 U.S. 497, 503 (1936). “[W]hen two
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statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as effective.” Morton v. Mancari , 417 U.S.
535, 551 (1974). “[T]he only permissible justification for a repeal by implication is when the
earlier and later statutes are irreconcilable.” Id. at 550 (citing Georgia v. Pa. R.R. Co. , 324 U.S.
439, 456–57 (1945)). Further, “the specific governs the general,” particularly where “a general
permission or prohibition is contradicted by a specific prohibition or permission.” RadLAX
Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645 (2012). Finally, the Indian Canons
of Construction 12 require courts to resolve statutory ambiguities in favor of tribes. Bryan v. Itasca County , 426 U.S. 373, 392 (1976).
Applying these same principles to a question of whether a broad statute repeals or amends
an earlier Indian statute by implication, the Ninth Circuit has established clear precedent. In
Swinomish Indian Tribal Community v. BNSF Railway , 951 F.3d 1142 (9th Cir. 2020), the Ninth
12 As the Justice Blackmun has explained:
Because Congress’ authority to legislate unilaterally on behalf of the Indians derives from the presumption that Congress will act with benevolence, courts “have developed canons of construction that treaties and other federal action should when possible be read as protecting Indian rights and in a manner favorable to Indians.”
Hagen v. Utah , 510 U.S. 399, 423 n.1 (1994) (Blackmun, J., dissenting) (quoting Felix Cohen, Handbook of Federal Indian Law 221 (1982 ed.)).
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