Commw. of Mass. v. Wampanoag Tribe of Gay Head ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 19-1661, 19-1857
AQUINNAH/GAY HEAD COMMUNITY ASSOCIATION, INC.;
TOWN OF AQUINNAH,
Plaintiffs, Appellees/Cross-Appellants,
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff, Appellee,
v.
THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH);
THE AQUINNAH WAMPANOAG GAMING CORPORATION;
THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.,
Defendants, Appellants/Cross-Appellees,
CHARLIE BAKER, in his official capacity as Governor of the
Commonwealth of Massachusetts; MAURA HEALEY, in her capacity
As Attorney General of the Commonwealth of Massachusetts;
CATHY JUDD-STEIN, in her capacity as Chair of the
Massachusetts Gaming Commission,
Third Party Defendants, Appellees.
____________________
Nos. 19-1729, 19-1922
AQUINNAH/GAY HEAD COMMUNITY ASSOCIATION, INC.;
TOWN OF AQUINNAH,
Plaintiffs, Appellees/Cross-Appellants,
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff, Appellee,
v.
THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH);
THE AQUINNAH WAMPANOAG GAMING CORPORATION;
THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.,
Defendants, Appellants/Cross-Appellees,
CHARLIE BAKER, in his official capacity as Governor of the
Commonwealth of Massachusetts; MAURA HEALEY, in her capacity
as Attorney General of the Commonwealth of Massachusetts;
CATHY JUDD-STEIN, in her capacity as Chair of the
Massachusetts Gaming Commission,
Third Party Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Thompson and Kayatta,*
Circuit Judges.
Scott D. Crowell, with whom Crowell Law Office-Tribal
Advocacy Group LLP, Lael R. Echo-Hawk, MThirtySix, PLLC, Bruce
Singal, Elizabeth McEvoy, and Donoghue, Barrett & Singal were on
brief, for appellants/cross-appellees.
Daniel D. Lewerenz, Native American Rights Fund, Derrick
Beetso, National Congress of American Indians, Gregory A. Smith,
and Hobbs Straus Dean & Walker, LLP, on brief for NCAI Fund and
USET Sovereignty Protection Fund, amici curiae.
William M. Jay, with whom Douglas J. Kline, Joshua J. Bone,
Goodwin Procter LLP, Felicia H. Ellsworth, Claire M. Specht, Wilmer
Cutler Pickering Hale and Dorr LLP, Ronald H. Rappaport, Michael
A. Goldsmith, and Reynolds, Rappaport, Kaplan & Hackney, LLC were
on brief, for appellees/cross-appellants Aquinnah/Gay Head
Community Association, Inc. and Town of Aquinnah.
* Judge Torruella heard oral argument in these matters and
participated in the semble, but he did not participate in the
issuance of the panel's decision. The remaining two panelists
therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
Brian M. Hurley, Stacie A. Kosinski, and Rackemann Sawyer &
Brewster, P.C., on brief for Martha's Vineyard Commission, amicus
curiae.
February 25, 2021
THOMPSON, Circuit Judge. The Wampanoag Tribe of Gay
Head (Aquinnah),1 the Wampanoag Tribal Council of Gay Head, Inc.,
and the Aquinnah Wampanoag Gaming Corporation (collectively, the
"Tribe") plan to build a gaming facility on the Tribe's trust lands
in Dukes County, Massachusetts. The Commonwealth of
Massachusetts, the Town of Aquinnah, and the Aquinnah/Gay Head
Community Association2 have sought at times to halt this
development, at least until the Tribe complies with certain
Commonwealth and municipal regulations they believe are
applicable. The disputes that have arisen involve complicated
issues relating to a federal statute known as the Indian Gaming
Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701–2721. We resolved some
of the issues about IGRA involving these parties just a few years
ago in Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah),
853 F.3d 618 (1st Cir. 2017) (Wampanoag I). The main question
before us now, however, is not primarily about IGRA, but whether
a party who did not raise a particular issue in that first appeal,
though it could have, may do so on a successive appeal. Because
1 The town of Gay Head was renamed "Aquinnah" at some point
after its incorporation into the Commonwealth of Massachusetts.
2 The Community Association is a Massachusetts not-for-profit
corporation whose mission is, among other things, "to encourage
historic and environmental preservation in the Town" and "to ensure
the effective enforcement of all municipal laws and regulations."
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we have previously explained that a party may not, absent
exceptional circumstances, and because those exceptional
circumstances are not present here, we affirm the judgment of the
district court.
I. Background
We laid out much of the background to the present dispute
more fully in Wampanoag I, but we recap the pertinent parts here
and supplement them as necessary.
A. Setting the Stage: the Settlement Act and IGRA
In the 1980s, the parties entered into an agreement
conveying roughly 485 acres of land (the "Settlement Lands") to
the Tribe. The agreement required Congress to implement it, which
it did through the passage of the Settlement Act. See Wampanoag
Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of
1987, Pub. L. No. 100–95, 101 Stat. 74 (formerly codified at 25
U.S.C. §§ 1771–1771i). In pertinent part, the Settlement Act
provides that the Settlement Lands "shall be subject to the civil
and criminal laws, ordinances, and jurisdiction of the
Commonwealth . . . and the [T]own . . . (including those laws and
regulations which prohibit or regulate the conduct of bingo or any
other game of chance)." 25 U.S.C. § 1771g.
Soon after the passage of the Settlement Act, Congress
enacted IGRA which "creates a framework for regulating gaming
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activity on Indian lands" that distinguishes between different
types of gaming. Michigan v. Bay Mills Indian Cmty., 572 U.S.
782, 785 (2014). The type of gaming the Tribe wishes to pursue,
Class II gaming, consists of bingo and certain card games. 25
U.S.C. § 2703(7)(A).3 IGRA explains that Class II gaming on Indian
lands "shall continue to be within the jurisdiction of the Indian
tribes," id. § 2710(a)(2), but it allows a tribe to partake in
Class II gaming on its lands, in pertinent part, only if that
gaming is located within a state that "permits such gaming for any
purpose by any person, organization or entity (and such gaming is
not otherwise specifically prohibited on Indian lands by Federal
law)," id. § 2710(b)(1). The Commonwealth is one such state. See
Wampanoag I, 853 F.3d at 622–23, 629.
Wampanoag I trained on the interplay between these two
federal statutes -- the Settlement Act and IGRA -- and we detail
how that dispute, and correspondingly this one, arose.
B. The Commonwealth's Complaint and Wampanoag I
In December 2013, after the Tribe informed the
Commonwealth that it was going to establish a Class II gaming
3 Class I gaming consists primarily of "traditional forms of
Indian gaming engaged in by individuals . . . in connection with[]
tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). Class
III gaming consists of all forms of gaming outside classes I and
II. Id. § 2703(8).
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facility under IGRA on the Settlement Lands, the Commonwealth
brought suit against the Tribe in state court, seeking a
declaratory judgment that the Tribe had "no right to license, open,
or operate a gaming establishment on the Settlement Lands without
complying with all laws of the Commonwealth pursuant to the terms
of the [pre-Settlement Act agreement]." In particular, the
Commonwealth contended that the Tribe needed a gaming license from
the Massachusetts Gaming Commission before the Tribe could operate
a gaming establishment on its lands. The Tribe maintained that it
did not need to acquire a gaming license because IGRA impliedly
repealed the portion of the Settlement Act which subjected gaming
activity on the Settlement Lands to the "civil and criminal laws,
ordinances, and jurisdiction of the Commonwealth." We refer to
this as the "gaming issue."
The Tribe removed the case to federal district court,
and later, the district court entered summary judgment for the
Commonwealth and denied summary judgment for the Tribe.4 The
district court determined that IGRA did not apply because the Tribe
had not met its burden of demonstrating that it exercised
sufficient "governmental power" over the Settlement Lands as IGRA
requires, and that, even if it did, IGRA did not impliedly repeal
4It also granted summary judgment for the Town and the
Community Association. More on this in a bit.
-7-
the portion of the Settlement Act at issue. The district court
subsequently issued a final judgment, which provided a declaration
that "the Tribe may not construct, license, open, or operate any
gaming facility at or on the Settlement Lands . . . without
complying with the laws and regulations of the Commonwealth . . .
and the Town . . . , including any pertinent state and local
permitting requirements," and it issued a permanent injunction to
that effect.
The Tribe then appealed from the district court's final
judgment, asking us to resolve the two questions the district court
had resolved against it: "whether IGRA applies to the Settlement
Lands" and "whether IGRA effects a repeal of the [Settlement] Act."
Wampanoag I, 853 F.3d at 624. In contrast to the district court,
we determined that IGRA did apply to the Settlement Lands and that
IGRA did effect a partial repeal of the Settlement Act. Id. at
624–29. Accordingly, our mandate reversed the opinion of the
district court and remanded the case "for entry of judgment in
favor of the Tribe." Id. at 629.
C. The Town and the Community Association's Complaints and the
Preliminary Injunction
That is not the entire story, though, because the
Commonwealth was not alone in seeking to curtail the Tribe's plans.
What we described in Wampanoag I as "some procedural fencing not
relevant" to that appeal is quite relevant to this one, so we fill
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in some of the gaps in the procedural history we have laid out so
far. Wampanoag I, 853 F.3d at 623.
Back towards the beginning of the litigation, after the
Tribe removed the case to federal district court, that court
permitted the Town and the Community Association to intervene and
to file their own complaints. The Town sought a declaration, among
other things, that, "pursuant to the [pre-Settlement Act
agreement], the Tribe may only engage in gaming activity after
properly complying with all pertinent regulatory, permitting, and
licensing requirements -- including all local zoning ordinances."
The Community Association sought a similar declaration as well as
an injunction to that effect. The Tribe argued that such
requirements were integral to gaming conducted by the Tribe, and
therefore that IGRA impliedly repealed the portion of the
Settlement Act requiring the Tribe to comply with them. We refer
to this as the "permitting issue."
At the same time the Commonwealth and the Tribe sought
summary judgment, so too did the Town and the Community
Association. While all those motions were pending, the Tribe
apparently began efforts to refashion one of its buildings into a
casino. In response, the Town sought a preliminary injunction
prohibiting the Tribe from undertaking any further construction on
the building pending the results of the summary judgment motions.
-9-
The Commonwealth and the Community Association filed memoranda in
support of the Town's motion. Following a hearing, the district
court granted the Town's motion for a preliminary injunction.
The district court explained that it saw the preliminary
injunction issue as "very narrow," not about "whether [IGRA]
preempts the Settlement Act, [or] whether it preempts state laws
or town zoning but rather whether the [T]ribe can build a building
without applying for a building permit and getting the required
inspections along the way and ultimately an occupancy permit."
The district court explained that in its view, "[t]he rules are
that you need a building permit to construct a building," a
requirement that "will remain in place regardless of the outcome
of the gaming aspect of this case." The district court further
explained, "if the tribe is going to do any work on the building,
construction work, it's going to have to obtain a building permit
and comply with all of the construction and wiring and plumbing
code requirements and to permit inspections and to obtain an
occupancy permit before opening it to the public." According to
the district court, those requirements were "of general
applicability," were "for public health and safety," and were
"independent of the gaming issue generally and the zonings issue
specifically as it applies to casino gaming."
-10-
The preliminary injunction remained in effect until the
district court resolved the parties' cross-motions for summary
judgment. The district court then entered the final judgment that
was the subject of Wampanoag I. The final judgment did not pertain
only to the gaming issue but stated it was "consistent with" the
district court's previous orders, including the preliminary
injunction. As a reminder, the final judgment included a
declaration that "the Tribe may not construct, license, open, or
operate any gaming facility at or on the Settlement Lands . . .
without complying with the laws and regulations of the Commonwealth
. . . and the Town . . . , including any pertinent state and local
permitting requirements," and it contained a permanent injunction
to that effect.
D. Post-Wampanoag I
With the procedural history prior to Wampanoag I in
place, we turn to what happened in Wampanoag I's aftermath. We
issued our judgment in Wampanoag I on April 10, 2017. Over a year
later, in May 2018, after the Supreme Court denied petitions for
certiorari, our mandate issued. Nearly one year after that, in
April 2019, the Town moved for entry of its proposed final
judgment, which in pertinent part would permanently enjoin the
Tribe "from constructing any gaming facility at any location within
the Town of Aquinnah, including on the Settlement Lands, without
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first complying with all generally applicable permitting
requirements of the Town of Aquinnah and the Commonwealth of
Massachusetts, including but not limited to all building permit
requirements of the Town of Aquinnah." The Community Association
filed a memorandum in support.
On June 19, 2019, the district court entered an amended
final judgment in favor of the Tribe as to the gaming issue but
against the Tribe as to the permitting issue.5 In doing so, the
district court explained its view that, in Wampanoag I, the Tribe
had not appealed the permitting issue (i.e., whether IGRA impliedly
repealed the Settlement Act as to non-gaming laws) and therefore
that Wampanoag I did not speak to it. Accordingly, it found that
the Tribe had forfeited or waived the issue.
The Tribe timely appealed.6
5 The district court subsequently amended the judgment twice
more in ways not relevant to this appeal.
6 The Town and the Community Association filed a cross-appeal
"for the sole purpose of preserving for potential further review
their argument -- as briefed in the prior appeal -- that IGRA did
not repeal the Settlement Act's grant of gaming jurisdiction."
The Town and the Community Association wisely do not ask us to
reconsider Wampanoag I, assuring us that we "need not address the
cross-appeal at all." At this juncture, reconsidering Wampanoag
I would be "beyond our prerogatives." Ackerley Commc'ns of Mass.,
Inc. v. City of Cambridge, 135 F.3d 210, 217 n.10 (1st Cir. 1998);
see also United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018)
(explaining that if it were otherwise, "the finality of appellate
decisions would be threatened and every decision, no matter how
thoroughly researched or how well-reasoned, would be open to
-12-
II. Analysis
The Tribe raises a bevy of challenges to the district
court's amended final judgment. The Tribe first contends that the
district court erred by incorrectly determining that the Tribe had
waived the permitting issue. The Tribe then argues that,
regardless of whether it waived the permitting issue, the district
court, as a procedural matter, lacked authority to enter the
amended final judgment. Because our precedent compels us to reject
both of the Tribe's substantive arguments, we then ask whether
this is one of those rare cases where we may overlook a party's
waiver.
A. Waiver
In determining whether the Tribe waived the permitting
issue, the law-of-the-case doctrine is key. We have described the
doctrine as having two branches, and both are at play. See United
States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011). The first
branch, sometimes referred to as the mandate rule, "prevents
relitigation in the trial court of matters that were explicitly or
implicitly decided by an earlier appellate decision in the same
case." Id. (quoting United States v. Moran, 393 F.3d 1, 7 (1st
Cir. 2004)). The second branch requires a "successor appellate
continuing intramural attacks").
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panel in a second appeal in the same case" to adhere to the earlier
panel's decision. Id. (quoting Moran, 393 F.3d at 7). This branch
"bars a party from resurrecting issues that either were, or could
have been, decided on an earlier appeal." Id. at 12–13 (citing
United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)); see also
18B Edward H. Cooper, Federal Practice and Procedure § 4478 n.34
(2d ed. 2020) ("Although an issue neither presented nor decided
should not be treated as law of the case because it should have
been presented earlier, it is common to enforce waiver, and almost
as common to describe the waiver as a law-of-the-case principle.").
The Tribe relies on the first branch while trying to
sidestep the second. The Tribe claims that this court resolved
the permitting issue in Wampanoag I in the Tribe's favor.
Accordingly, the Tribe argues the first branch of the law-of-the-
case doctrine required the district court to respect that decision
(which it failed to do) and that the second branch requires us too
to respect Wampanoag I's decision on the permitting issue. We
review whether the law-of-the-case doctrine applies de novo.
Matthews, 643 F.3d at 13.
As we have detailed above, the Tribe previously appealed
aspects of the district court's final judgment, and we resolved
those aspects in favor of the Tribe. The Tribe's appeal -- and,
correspondingly, our opinion -- focused solely on the gaming issue.
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The Tribe argues that, in Wampanoag I, it appealed from the
district court's final judgment "in its entirety . . . , which
included the language enjoining the Tribe from proceeding without
local building permits." True, a party's notice of appeal from a
final judgment also appeals from all interlocutory orders issued
prior to the final judgment. Denault v. Ahern, 857 F.3d 76, 81–
82 (1st Cir. 2017). But a party's opening brief clarifies the
appeal's scope. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st
Cir. 1990) (explaining that the "statement of the issues presented
for review and the contentions of the appellant with respect to
the issues presented" in an appellant's brief "inform[] the
appellee of the scope of the appeal"). The Tribe's opening brief
in Wampanoag I clearly focused on only the gaming issue. Indeed,
the Tribe's statement of the issues presented for review trained
on the "application of the Commonwealth's gaming laws." See Fed.
R. App. P. 28(a)(5). The Tribe never asked us to consider the
permitting issue, nor did it mention the preliminary injunction,
which had addressed the permitting issue head on, beyond a single
footnote.
"It should go without saying that we deem waived claims
not made or claims adverted to in a cursory fashion, unaccompanied
by developed argument." Rodríguez v. Mun. of San Juan, 659 F.3d
168, 175 (1st Cir. 2011). We do not ordinarily address waived
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claims. See Vázquez-Rivera v. Figueroa, 759 F.3d 44, 46–47 (1st
Cir. 2014) (deeming waived and therefore declining to review issues
not briefed, even where appellant's "notice of appeal signaled his
intent to challenge" them); see also Int'l Ass'n of Machinists &
Aerospace Workers v. E. Airlines, Inc., 925 F.2d 6, 10 (1st Cir.
1991) (declining to address an issue where appellant had not raised
it in its brief and where the appellant "ha[d] not included it in
the statements of issues presented by [appellant] as required by"
the Federal Rules of Appellate Procedure).
As the Tribe did not address the permitting issue in its
opening brief in Wampanoag I, we likewise did not address it in
our opinion. See Diaz v. Jiten Hotel Mgmt., Inc., 741 F.3d 170,
176 (1st Cir. 2013) ("Our opinion . . . cannot plausibly be read
to have conclusively determined [an issue], particularly when
[that issue] was neither challenged nor briefed on appeal."). We
frequently discussed whether the Tribe needed to obtain a gaming
license (i.e., the gaming issue) without ever discussing whether
the Tribe needed to, for example, obtain various building permits
(i.e., the permitting issue). See Wampanoag I, 853 F.3d at 623,
629. Further, as we mentioned when we laid out the procedural
history of the case, we -- like the Tribe -- did not discuss the
district court's preliminary injunction; instead, for purposes of
Wampanoag I, we at most alluded to it as "some procedural fencing
-16-
not relevant" to the appeal. Id. at 623. All said, we agree with
the district court's assessment that "[t]here is no question that
[we] did not expressly decide the [permitting] issue" in Wampanoag
I. Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 390
F. Supp. 3d 183, 189 (D. Mass. 2019).
The Tribe suggests that even if it did not expressly
address the permitting issue in Wampanoag I, the Tribe did so
implicitly in its Wampanoag I brief when it referred to "gaming
laws." See, e.g., Appellants' Br., Wampanoag I, No. 16-1137, 2016
WL 3437627, at *3 ("The crux of this appeal is . . . whether
Congress' enactment of IGRA . . . impliedly repealed those
provisions in [the Settlement Act], which had applied the gaming
laws and regulations of the Commonwealth to Aquinnah Indian
lands."). According to the Tribe, it did not waive the permitting
issue, because the term "gaming laws" as used in its brief was a
"contextual reference to IGRA's comprehensive and sophisticated
regulatory scheme" and therefore encompassed even laws not
specifically related to gaming. We are not convinced that the
Tribe's use of "gaming laws" actually encompassed non-gaming laws
which may incidentally touch on gaming. The Tribe did not, as it
does now, include any arguments as to the scope of IGRA's implied
repeal of the Settlement Act, which might have suggested that it
was intending to appeal the permitting issue. Nor did the Tribe's
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brief, despite leaning heavily on one of our circuit's seminal
cases in this area, ever cite or reference a crucial portion of
that opinion which suggested that whether certain activities are
regulable may depend on whether they are "deemed integral to
gaming." Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685,
705 (1st Cir. 1994). Moreover, we note that the Tribe consistently
referred to the "Commonwealth's gaming laws," not to the
regulations of the Town, such as those relating to permitting.
See Appellants' Br., Wampanoag I, No. 16-1137, 2016 WL 3437627, at
*2, *10, *14, *20, *21. Given how squarely the permitting issue
was contested before the district court, staying silent on the
issue in Wampanoag I is irreconcilable with what is being argued
now.
Next, the Tribe contends that even if it waived the
permitting issue on appeal, this court should hear the Tribe's
arguments on the merits because the district court made significant
and novel modifications in the amended final judgment. According
to the Tribe, the district court "manufactured for the very first
time" in the post-Wampanoag I final judgment "its own alternative
definition of 'gaming laws' to mean only those state statutes and
local regulations that prohibit or regulate games of chance, and
not to mean general regulatory laws and regulations." In other
words, the Tribe suggests (in the alternative) that it could not
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have appealed the permitting issue in Wampanoag I since the
district court only pronounced the relevant distinction between
the permitting issue and the gaming issue after we decided
Wampanoag I. But this argument is belied by the district court's
pre-Wampanoag I orders, especially the preliminary injunction
order which was incorporated into the original final judgment,
where the district court employed this distinction.7 Thus, the
Tribe was on notice before its prior appeal that the district court
had distinguished between gaming laws and general regulatory laws.
Finally, the Tribe argues that the district court could
not possibly have found waiver of the permitting issue because of
the Tribe's sovereign immunity, which it says prevented the
district court from making any decision on the issue (even that
the Tribe had waived the issue). Sovereign immunity means that,
"[a]s a matter of federal law, an Indian tribe is subject to suit
only where Congress has authorized the suit or the tribe has waived
its immunity." Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523
U.S. 751, 754 (1998); see Bay Mills Indian Cmty., 572 U.S. at 788–
89, 791 & n.4. Even though the Tribe has not always pressed the
7 Indeed, the key passage the Tribe relies on to suggest that
the district court originally "understood" this case only to
concern gaming laws comes from an opinion issued by the district
court before the Town and the Community Association even intervened
and filed their complaints.
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argument that it has retained its sovereign immunity from suit,
the Tribe tells us that it cannot have waived the argument because
sovereign immunity implicates the court's subject-matter
jurisdiction and therefore cannot be waived. See Sebelius v.
Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013) ("Objections to
a tribunal's jurisdiction can be raised at any time, even by a
party that once conceded the tribunal's subject-matter
jurisdiction over the controversy."); cf. Larson v. United States,
274 F.3d 643, 648 (1st Cir. 2001) (per curiam) ("Sovereign immunity
[of the federal government] . . . is a jurisdictional defense that
may be raised for the first time in the court of appeals.").
There is some "divergence of opinion as to the precise
nature of tribal sovereign immunity" and whether it is "synonymous"
with subject-matter jurisdiction. Oneida Indian Nation v.
Phillips, 981 F.3d 157, 170–71 (2d Cir. 2020); see id. at 171 n.70
(collecting cases); id. at 175–180 (Menashi, J., concurring in
part and concurring in the judgment); see also Ninigret Dev. Corp.
v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 28 (1st
Cir. 2000) ("[A]lthough tribal sovereign immunity is
jurisdictional in nature, consideration of that issue always must
await resolution of the antecedent issue of federal subject-matter
jurisdiction."). Although subject-matter jurisdiction can never
be waived or forfeited, Gonzalez v. Thaler, 565 U.S. 134, 141
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(2012), as we have explained, tribal sovereign immunity can be
waived through tribal conduct, provided that "such actions [are]
clear and unequivocal in their import," Narragansett Indian Tribe
v. Rhode Island, 449 F.3d 16, 25 (1st Cir. 2006) (en banc). Even
assuming that tribal sovereign immunity is synonymous with
subject-matter jurisdiction, but see Ninigret, 207 F.3d at 28, we
find waiver of tribal sovereign immunity here.
Early in this case, the Tribe pressed a different
sovereign immunity argument before the district court, which the
district rejected by advertence to a decision from the
Massachusetts Supreme Judicial Court. There, the Supreme Judicial
Court had determined that the Tribe waived sovereign immunity in
relevant respects through its pre-Settlement Act agreement with
the Commonwealth, the Town, and the Community Association. Bldg.
Inspector & Zoning Officer v. Wampanoag Aquinnah Shellfish
Hatchery Corp., 818 N.E.2d 1040, 1042-43, 1048–51 (Mass. 2004).
The federal district court gave that decision full faith and
credit, see 28 U.S.C. § 1738, and held that it precluded the Tribe
from contesting the waiver of sovereign immunity in this case.
Massachusetts v. Wampanoag Tribe of Gay Head, 98 F. Supp. 3d 55,
62–67 (D. Mass. 2015).
The Tribe maintains for the first time now, however,
that IGRA impliedly repealed the pre-Settlement Act agreement
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between the parties at least as to the Tribe's gaming activities,
such that it wiped away the Tribe's waiver of sovereign immunity
in that domain.8 Put differently, the Tribe says that Congress,
through IGRA, undid the Tribe's waiver of sovereign immunity, at
least as to suits stemming from the Tribe's gaming activities.
Because the Tribe asserts that complying with the local permitting
regulations is related to gaming, the Tribe maintains that it
cannot be sued (absent a new waiver) unless we disagree that those
regulations are related to gaming. Resolving this threshold matter
would effectively require us to resolve the permitting issue the
Tribe wants us to decide on the merits: whether IGRA impliedly
repealed the portion of the Settlement Act requiring the Tribe's
compliance with those regulations.
We are not detained by this argument. We recall that
"[a]n Indian tribe's sovereign immunity may be limited by either
tribal conduct (i.e., waiver or consent) or congressional
enactment (i.e., abrogation)." Narragansett Indian Tribe, 449
8 The Tribe also suggests that the Tribe was not a party to
the pre-Settlement Act agreement because the Tribe had not been
formally recognized by the federal government at the time. But
"the Tribe is mistaken in its professed belief that it lacked
jurisdictional power at the time of the Settlement Act."
Narragansett, 19 F.3d at 694. "The Tribe's retained sovereignty
predates federal recognition -- indeed, it predates the birth of
the Republic." Id.-22-
F.3d at 25 (emphases added) (citing Kiowa, 523 U.S. at 754); see
also South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)
("Congress possesses plenary power over Indian affairs, including
the power to modify or eliminate tribal rights."); 1 Felix S.
Cohen, Handbook of Federal Indian Law § 7.05 (Nell Jessup Newton
ed., 2017) ("Although there used to be some uncertainty about
whether tribes could waive their own sovereign immunity without
congressional approval, it is now clear that Indian nations
can . . . ." (footnote omitted)); United States v. Oregon, 657
F.2d 1009, 1013 (9th Cir. 1981) (explaining that courts had at one
point "expressed doubts on the ability of Indian tribes to waive
immunity"). We have never encountered the Tribe's seemingly novel
argument that a congressional enactment can undo or override a
tribe's voluntary waiver of sovereign immunity through tribal
conduct. We need not resolve that question now, however, because
even if Congress could and did restore the sovereign immunity from
suit that the Tribe may have waived through the pre-Settlement Act
agreement, we would still find the Tribe had waived its immunity
here through its litigation conduct.
As discussed, the Tribe raised a variant of its sovereign
immunity argument in the district court prior to Wampanoag I, and
the district court permitted the suit to proceed. The Tribe later
appealed to us without advancing on appeal a challenge to the
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district court's adverse ruling on the sovereign immunity issue.
We resolved the merits of that case in the Tribe's favor. Now the
Tribe, dissatisfied with implications of Wampanoag I it may not
have considered, wants to press rewind. The Supreme Court,
however, has looked unfavorably on a sovereign's attempts to
"regain immunity" even after it "litigated and lost a case brought
against it in federal court." Lapides v. Bd. of Regents of Univ.
Sys. of Ga., 535 U.S. 613, 622 (2002).
We recognize that the sovereign in Lapides was a state,
not a tribe, and that a tribe's sovereign immunity "is not
congruent" with that of a state. Three Affiliated Tribes of Fort
Berthold Rsrv. v. Wold Eng'g, 476 U.S. 877, 890 (1986). We are
also mindful that some courts of appeals have held that Lapides'
reasoning -- at least insofar as it held that a state's removal to
federal court can constitute waiver -- "does not apply at all in
the context of tribal immunity." Bodi v. Shingle Springs Band of
Miwok Indians, 832 F.3d 1011, 1020 (9th Cir. 2016); see also
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692
F.3d 1200, 1206 (11th Cir. 2012). But here, the Tribe's conduct
went beyond merely removing a case to federal court like the
tribes' conduct in the cases addressed by our sister circuits.
Contra Bodi, 832 F.3d at 1020, 1022 (rejecting specifically
"Lapides's waiver-through-removal reasoning" in the tribal
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immunity context, and noting that Lapides's reasoning concerned
the "selective use of 'immunity' to achieve litigation advantages"
(quoting Lapides, 535 U.S. at 620)); Contour Spa, 692 F.3d at 1201
(rejecting application of Lapides, in part, because "the problems
of inconsistency and unfairness that were inherent in the
procedural posture of Lapides are absent here"). We think a tribe
cannot raise the issue of sovereign immunity in a district court,
forgo it on appeal while seeking relief from an adverse ruling,
and then employ it in a later appeal to secure a do-over. Cf. In
re Greektown Holdings, LLC, 917 F.3d 451, 464 (6th Cir. 2019)
(reasoning that "Indian tribes can waive their tribal sovereign
immunity through sufficiently clear litigation conduct, including
by filing a lawsuit"), cert. dismissed, 140 S. Ct. 2638 (2020);
cf. also Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th Cir.
1995) ("We will not transmogrify the doctrine of tribal immunity
into one which dictates that the tribe never loses a lawsuit.");
United States v. Oregon, 657 F.2d at 1014 ("Otherwise, tribal
immunity might be transformed into a rule that tribes may never
lose a lawsuit."). Accordingly, we find that the Tribe waived any
retained sovereign immunity from suit with respect to challenges
to jurisdiction over the Tribe's gaming activities on the
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Settlement Lands when the Tribe failed to address it in the
Wampanoag I appeal.9
B. Procedural Authority
The Tribe argues that, regardless of whether the Tribe
waived the permitting issue, the district court impermissibly
entered the post-remand final judgment because it lacked authority
to do so. Our mandate from Wampanoag I lodged in the district
court's docket on May 9, 2018. The Tribe notes that the Federal
Rules of Civil Procedure provide, as relevant here, that judgment
is considered entered at the latest after "150 days have run from"
its entry in the civil docket. Fed. R. Civ. P. 58(c)(2)(B). The
9 The Tribe also contends that, even if it waived the
permitting issue, the district court erred by declining to
reconsider its injunction as to the permitting issue after the
remand from Wampanoag I, as the Tribe requested. By seeking
reconsideration, the Tribe says that it "preserved the substantive
issue on this appeal for review." That is, quite simply, not how
it works: "[A] timely appeal from an order denying a motion for
reconsideration brought other than in conformity with Rule 59(e)
does not 'resurrect [the appellant's] expired right to contest the
merits of the underlying judgment, nor bring the judgment itself
before [the court of appeals] for review.'" Air Line Pilots Ass'n
v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir.
1994) (second and third alterations in original) (quoting
Rodriguez–Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st
Cir. 1989)). There is no question the Tribe's motion did not
conform with Rule 59(e). Although an appeal may still lie from
the denial itself of a motion for reconsideration, see id. at 223,
we review such a denial for abuse of discretion and, as we will
later explain, the Tribe has failed to show that the district court
"committed a manifest error of law." Palmer v. Champion Mortg.,
465 F.3d 24, 30 (1st Cir. 2006).
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Tribe also points to a Massachusetts federal court rule, which
provides that "[a]n order or judgment of an appellate court in a
case appealed from this court shall, if further proceedings are
not required, become the order or judgment of this court and be
entered as such on receipt of the mandate of the appellate court."
D. Mass. Local R. 58.2(d). Because, according to the Tribe, no
further proceedings were required after our mandate issued, and
because the Town did not even move for entry of the amended final
judgment until well after 150 days after that, the Tribe maintains
that the Wampanoag I mandate barred the district court from
entering its amended final judgment.
We have explained that "Rule 58(c) details when a
judgment has entered, if timing is the only question, but it does
not address whether a judgment has entered, when the issue
implicates more than timing." Bos. Prop. Exch. Transfer Co. v.
Iantosca, 720 F.3d 1, 7 (1st Cir. 2013). Such is the case here.
See also Bankers Tr. Co. v. Mallis, 435 U.S. 381, 385 n.6 (1978)
(per curiam) (explaining that, for purposes of appellate
jurisdiction, "the courts of appeals must . . . determine whether
the district court intended the judgment to represent the final
decision in the case"); Baez v. Comm'r of Soc. Sec., 760 F. App'x
851, 854 (11th Cir. 2019) (unpublished) ("[J]udgment is entered
when the district court enters what it intends to be its final
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order on the docket and 150 days pass . . . ." (footnote omitted)).
Because our mandate required more of the district court than the
mere logging of our mandate in the district court's docket, we
think the amended final judgment entered when the district court
actually said it was entering it.
Determining what the mandate required from the district
court and whether further proceedings were necessary depends on
what we decided (and what we did not decide) in Wampanoag I.
While, subject to a few exceptions, "[a]n appellate court's mandate
controls all issues that were actually considered and decided by
the appellate court, or as were necessarily inferred from the
disposition on appeal," "issues that were not decided by the
appellate court . . . are not affected by the mandate." Kashner
Davidson Sec. Corp. v. Mscisz, 601 F.3d 19, 23–24 (1st Cir. 2010)
(alteration in original) (first quoting NLRB v. Goodless Bros.
Elec. Co., 285 F.3d 102, 107 (1st Cir. 2002); and then quoting de
Jesús–Mangual v. Rodríguez, 383 F.3d 1, 6 (1st Cir. 2004)).
The mandate in Wampanoag I merely stated: "The district
court's judgment is reversed, and the matter is remanded to the
district for entry of judgment in favor of the tribe." If, as the
Tribe contends, this mandate left nothing to be done on remand, we
would have a different case. But in Wampanoag I, as we have
already explained, we only resolved whether IGRA impliedly
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repealed the Settlement Act with respect to the gaming issue, not
the permitting issue. Further proceedings were necessary for the
district court to modify its injunction to reflect this change.
Under the Federal Rules of Civil Procedure, "[e]very order granting
an injunction" must state its "terms specifically," describing "in
reasonable detail -- and not by referring to the complaint or other
document -- the act or acts restrained or required." Fed. R. Civ.
P. 65(d)(1)(B)–(C). An order failing to do so "should be set aside
on appeal." Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d
1, 15 (1st Cir. 2009). Accordingly, the district court had to
delineate which portions of the injunction were altered by
Wampanoag I (i.e., those pertaining to the gaming issue) and which
were not.
The Tribe tries to rebut this contention by arguing that
the mandate clearly affected both the gaming and permitting issues
and therefore that entry in favor of the Tribe left nothing for
the district court to enjoin. It cites to an out-of-circuit case
stating that "when an appellate decision is without limitation as
to how much of the trial court's decision is set aside, all is set
aside." Hynning v. Partridge, 359 F.2d 271, 273 (D.C. Cir. 1966).
But that court also explained that "an opinion and judgment [must]
be read together," id., and, in context, we understand that court's
statement to mean -- as we too have said -- that a mandate controls
-29-
not only those issues explicitly decided on appeal but also those
decided "by reasonable implication," Ellis v. United States, 313
F.3d 636, 646 (1st Cir. 2002). See also Wampanoag Tribe of Gay
Head (Aquinnah), 390 F. Supp. 3d at 190. As we have already
discussed at length, we do not think a "reasonable implication" of
Wampanoag I is that we decided the permitting issue.
Because we have determined the Tribe waived the
permitting issue, and because we reject the procedural challenges
to the amended final judgment, we now ask whether we might overlook
the Tribe's waiver.
C. Beyond Waiver
The second branch of the law-of-the-case doctrine -- the
one that prohibits a party from raising an issue it could have
previously appealed -- is "anchored in a sea of salutary policies."
Ellis, 313 F.3d at 647; see also Cooper, supra, § 4478.6 ("There
are powerful reasons to insist that all matters ripe for review at
the time an appeal is taken be presented for review or
abandoned."). These policies include (1) providing "litigants a
high degree of certainty as to what claims are -- and are not --
still open for adjudication;" (2) promoting "finality and repose;"
(3) encouraging efficiency; (4) avoiding inconsistencies; and
(5) discouraging litigants from engaging in gamesmanship through
attempts to shop for a perceived more favorable panel of judges.
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Ellis, 313 F.3d at 647. Accordingly, in the absence of exceptional
circumstances, a court should find waiver where a party could have
raised an issue on appeal but did not. Matthews, 643 F.3d at 14.
The categories of exceptional circumstances are "rare
and narrowly circumscribed." Id. We have identified only a
handful:
A party may avoid the application of the law
of the case doctrine only by showing that, in
the relevant time frame, controlling legal
authority has changed dramatically; or by
showing that significant new evidence, not
earlier obtainable in the exercise of due
diligence, has come to light; or by showing
that the earlier decision is blatantly
erroneous and, if uncorrected, will work a
miscarriage of justice.
Id. (quotation marks and citations omitted). The Tribe suggests
that a material change in controlling law came about when Wampanoag
I reversed the district court, but, as we have explained, Wampanoag
I did not purport to address the permitting issue, and the reversal
itself stemmed from the application of a law on our books since
the 1990s. See Wampanoag I, 853 F.3d at 624 (citing Narragansett,
19 F.3d at 702–04). Thus, the main exceptional circumstance
arguably at play is the last one, "a hard-to-satisfy standard that
requires us to have 'a definite and firm conviction that a prior
ruling on a material matter is unreasonable or obviously wrong,
and resulted in prejudice.'" Universal Truck & Equip. Co., Inc.
v. Caterpillar, Inc., 653 F. App'x 15, 20 (1st Cir. 2016)
-31-
(unpublished) (quoting Moran, 393 F.3d at 8). We do not think
that the district court got it obviously wrong.
Over twenty-five years ago, we presaged the issues at
the core of this appeal, albeit in dicta:
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.
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. Which
activities are deemed regulable, therefore,
will probably depend, in the first instance,
on which activities are deemed integral to
gaming. . . . [T]he distinction between core
functions and peripheral functions is
tenebrous, as is the question of exactly what
[the state] may and may not do with respect to
those functions that eventually are determined
to be peripheral.
Narragansett, 19 F.3d at 705–06 (citations omitted). In
Narragansett, we envisioned this analysis would require "a
particularized inquiry into the nature of the state, federal, and
tribal interests at stake," and we hypothesized that the "criss-
crossing lines" of the analysis might "prove agonizingly difficult
to decipher, let alone to administer." Id. at 705–706 (first
quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145
(1980)). The district court was not nearly as fazed, and it sliced
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right through the Gordian knot. It drew a bright line between the
permitting issue and the gaming issue. We nevertheless cannot say
that the district court's distinction was "unreasonable or
obviously wrong" such that it would permit us to overlook the
Tribe's waiver. Narragansett admitted that an outcome, like the
district court's, was at least possible. See id.The Tribe also suggests that the district court got it
obviously wrong, because IGRA comprehensively regulates the
construction, maintenance, and operation of Class II gaming
facilities, such that there is "no room for additional state
burdens in that area." Id. at 705 (citing Bracker, 448 U.S. at
148, a preemption case). IGRA requires the Chairman of the
National Indian Gaming Commission to "approve any tribal ordinance
or resolution concerning the conduct, or regulation of class II
gaming on the Indian lands within the tribe's jurisdiction if such
ordinance or resolution provides that . . . the construction and
maintenance of the gaming facility, and the operation of that
gaming is conducted in a manner which adequately protects the
environment and the public health and safety." 25 U.S.C.
§ 2710(b)(2)(E). In support of its argument, the Tribe cites cases
where courts discussed whether IGRA preempted state taxes. See,
e.g., Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928, 937 (8th
Cir. 2019) (holding a "South Dakota use tax on nonmember purchases
-33-
of amenities at the Casino . . . preempted by federal law"), cert.
denied, 140 S. Ct. 2804 (2020); Flandreau Santee Sioux Tribe v.
Haeder, 938 F.3d 941, 945 (8th Cir. 2019) (holding that an "IGRA
provision does not expressly nor by plain implication preempt the
State's contractor excise tax, a tax which does not regulate or
interfere with the Tribe's design and completion of the
construction project, or its conduct of Class III gaming"); Video
Gaming Techs., Inc. v. Rogers Cnty. Bd. of Tax Roll Corr., 475
P.3d 824, 834 (Okla. 2019) (holding that the "ad valorem taxation
of gaming equipment here is preempted"), cert. denied, 141 S. Ct.
24 (2020). Whatever the import of these preemption cases, they
are not as compelling in the context of implied repeal. "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," and, therefore, "[t]he doctrine of implied
repeal operates without special embellishment in the Indian law
context." Wampanoag I, 853 F.3d at 627 (quoting Narragansett, 19
F.3d at 704). In any event, we cannot say that the law is so clear
that § 2710(b)(2)(E) amounts to an implied repeal of the Settlement
Act to the extent the Tribe argues. Cf. Haeder, 938 F.3d at 945
("Other than requiring NIGC approval of a tribal ordinance stating
that Casino construction will adequately protect the environment
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and public health and safety, the Commission does not actively
regulate construction activity or prescribe what adequate
protection of public health and safety requires."); id. at 947
(Colloton, J., concurring in the judgment) ("There is no
comprehensive and pervasive federal regulatory scheme of casino
construction that precludes state taxation.").
Thus, we do not have the definite and firm conviction
that the district court's ruling was unreasonable and obviously
wrong required to constitute an exceptional circumstance. And
because this case does not qualify as one involving an exceptional
circumstance, we cannot look past the Tribe's waiver of the
permitting issue.
III. Closing Thoughts
All said, "[d]isposing of an appeal on technical or
procedural grounds rarely feels satisfying." Sparkle Hill, Inc.
v. Interstate Mat Corp., 788 F.3d 25, 30 (1st Cir. 2015). But
because the Tribe did not pursue the permitting issue in Wampanoag
I, though it could have, and because this case does not present
exceptional circumstances, we have no choice but to find the
permitting issue waived.
Before we go, however, we add just a few notes. Nothing
in this opinion necessarily precludes the filing of a motion under
Fed. R. Civ. P. 60(b)(5) or (6) should the Tribe conclude that it
-35-
has a basis to maintain that the local regulations as applied by
the Town turn out to interfere with the integral activities of
gaming in a manner or to an extent not anticipated by the district
court. Nor do we express any view on whether any particular local
regulatory law that, as applied, effectively precludes a gaming
establishment is for that reason itself a "Gaming Law" as defined
by the district court. Third Am. Final J. 2–3, ECF No. 230
(defining "General Regulatory Laws" as excluding "Gaming Laws,"
which encompass any law that "prohibit[s]" gaming).
We also wish to highlight a sentiment expressed by the
district court. It explained that the Town may not enforce its
laws "in a nonneutral way in order to unduly burden or harass the
[T]ribe or to prevent them from opening the casino." The Tribe
has not waived a challenge to the state and local permitting
requirements should the Commonwealth or the Town treat the Tribe
in an arbitrary or unequal manner.10
With those avenues still open to the Tribe, we close
with this. The parties have been litigating this dispute since
2013, and "we do not mean to encourage the protagonists to litigate
ad infinitum." Narragansett, 19 F.3d at 706. "If cool heads and
10 The Town assures us that it has treated and will continue
to treat the Tribe as it would anyone else. That said, it should
be kept in mind that the Tribe does have a unique federal right to
pursue gaming activities not afforded others.
-36-
fair-minded thinking prevail," we may yet avoid a third round of
appeals between these parties. Id.The district court's judgment is affirmed. Each side
shall bear its own costs.
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