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Commonwealth v. Wampanoag Tribe of Gay Head (Aquinnah)

United States District Court, D. Massachusetts

February 27, 2015

COMMONWEALTH OF MASSACHUSETTS, Plaintiff/Counterclaim-Defendant,
v.
THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH), THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC., and THE AQUINNAH WAMPANOAG GAMING CORPORATION, Defendants/Counterclaim-Plaintiffs, and THE AQUINNAH/GAY HEAD COMMUNITY ASSOCIATION, INC. (AGHCA) and TOWN OF AQUINNAH, Intervenors/Plaintiffs,
v.
CHARLIE BAKER, in his official capacity as GOVERNOR, COMMONWEALTH OF MASSACHUSETTS, et al., Third-Party Defendants

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For Aquinnah/Gay Head Community Association, Inc., Intervenor Plaintiff: James L. Quarles, III LEAD ATTORNEY, Wilmer Hale LLP, Boston, MA; Felicia H. Ellsworth, Oramel H. Skinner, III, Wilmer Cutler Pickering Hale and Dorr LLP (Bos), Boston, MA.

For Town of Aquinnah, Intervenor Plaintiff: Ronald H. Rappaport, LEAD ATTORNEY, Michael A. Goldsmith, Reynolds Rappaport & Kaplan LLP, Edgartown, MA.

For Commonwealth of Massachusetts, Plaintiff: Bryan F. Bertram, LEAD ATTORNEY, Office of Attorney General Martha Coakley, Boston, MA; Carrie M. Benedon, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Boston, MA; Juliana deHaan Rice, LEAD ATTORNEY, Office of the Attorney General, Government Bureau, Boston, MA.

For The Wampanoag Tribe of Gay Head (Aquinnah), The Wampanoag Tribal Council of Gay Head, Inc., The Aquinnah Wampanoag Gaming Corporation, Defendants: John J. Duffy, LEAD ATTORNEY, PRO HAC VICE, Steptoe & Johnson LLP, Washington, DC; Lael Echo-Hawk, LEAD ATTORNEY, PRO HAC VICE, Garvey Schubert Barer, Seattle, WA; Scott D. Crowell, LEAD ATTORNEY, PRO HAC VICE, Crowell Law Offices, Sedona, AZ; Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, P.C., Boston, MA.

For Deval Patrick, in his capacity as Governor of the Commonwealth of Massachusetts, Martha Coakley, in her capacity as Attorney General of the Commonwealth of Massachuetts, Stephen Crosby, in his capacity as Chairman of the Massachusetts Gaming Commission, ThirdParty Defendants: Carrie M. Benedon, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Boston, MA.

For The Wampanoag Tribe of Gay Head (Aquinnah), The Wampanoag Tribal Council of Gay Head, Inc., The Aquinnah Wampanoag Gaming Corporation, Defendants Counter Claimants: John J. Duffy, LEAD ATTORNEY, PRO HAC VICE, Steptoe & Johnson LLP, Washington, DC; Lael Echo-Hawk, LEAD ATTORNEY, PRO HAC VICE, Garvey Schubert Barer, Seattle, WA; Scott D. Crowell, LEAD ATTORNEY, PRO HAC VICE, Crowell Law Offices, Sedona, AZ; Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, P.C., Boston, MA.

For Commonwealth of Massachusetts, Plaintiff Counter Defendant: Bryan F. Bertram, LEAD ATTORNEY, Office of Attorney General Martha Coakley, Boston, MA; Carrie M. Benedon, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Boston, MA; Juliana deHaan Rice, LEAD ATTORNEY, Office of the Attorney General, Government Bureau, Boston, MA.

For The Wampanoag Tribe of Gay Head (Aquinnah), The Wampanoag Tribal Council of Gay Head, Inc., The Aquinnah Wampanoag Gaming Corporation, Defendants Counter Claimants: John J. Duffy, LEAD ATTORNEY, PRO HAC VICE, Steptoe & Johnson LLP, Washington, DC; Lael Echo-Hawk, LEAD ATTORNEY, PRO HAC VICE, Garvey Schubert Barer, Seattle, WA; Scott D. Crowell, LEAD ATTORNEY, PRO HAC VICE, Crowell Law Offices, Sedona, AZ; Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, P.C., Boston, MA.

For Town of Aquinnah, Intervenor Plaintiff Counter Defendant: Ronald H. Rappaport, LEAD ATTORNEY, Michael A. Goldsmith, Reynolds Rappaport & Kaplan LLP, Edgartown, MA.

For The Wampanoag Tribe of Gay Head (Aquinnah), The Wampanoag Tribal Council of Gay Head, Inc., The Aquinnah Wampanoag Gaming Corporation, Defendants Counter Claimants: John J. Duffy, LEAD ATTORNEY, PRO HAC VICE, Steptoe & Johnson LLP, Washington, DC; Lael Echo-Hawk, LEAD ATTORNEY, PRO HAC VICE, Garvey Schubert Barer, Seattle, WA; Scott D. Crowell, LEAD ATTORNEY, PRO HAC VICE, Crowell Law Offices, Sedona, AZ; Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, P.C., Boston, MA.

For Town of Aquinnah, Intervenor Plaintiff Counter Defendant: Ronald H. Rappaport, LEAD ATTORNEY, Michael A. Goldsmith, Reynolds Rappaport & Kaplan LLP, Edgartown, MA.

For The Wampanoag Tribe of Gay Head (Aquinnah), The Wampanoag Tribal Council of Gay Head, Inc., The Aquinnah Wampanoag Gaming Corporation, Defendants Counter Claimants: John J. Duffy, LEAD ATTORNEY, PRO HAC VICE, Steptoe & Johnson LLP, Washington, DC; Lael Echo-Hawk, LEAD ATTORNEY, PRO HAC VICE, Garvey Schubert Barer, Seattle, WA; Scott D. Crowell, LEAD ATTORNEY, PRO HAC VICE, Crowell Law Offices, Sedona, AZ; Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, P.C., Boston, MA.

For Commonwealth of Massachusetts, Plaintiff Counter Defendant: Bryan F. Bertram, LEAD ATTORNEY, Office of Attorney General Martha Coakley, Boston, MA; Carrie M. Benedon, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Boston, MA; Juliana deHaan Rice, LEAD ATTORNEY, Office of the Attorney General, Government Bureau, Boston, MA.

Page 59

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

F. Dennis Saylor IV, United States District Judge.

This lawsuit involves a dispute between the Commonwealth of Massachusetts and a federally recognized Indian tribe concerning regulatory jurisdiction over civil gaming on Indian lands on Martha's Vineyard. The Wampanoag Tribe of Gay Head (Aquinnah) and related entities have taken steps to commence commercial gaming operations on tribal lands without a license from the Commonwealth. The Commonwealth contends that operating gaming facilities without such a license would violate a 1983 settlement agreement that subjects the lands in question to state civil and criminal jurisdiction (and thus subjects them to state laws regulating gaming). Count 1 of the complaint alleges breach of contract, and Count 2 seeks a declaratory judgment.

The Commonwealth filed suit in state court on December 2, 2013. On December 30, 2013, the Tribe removed the action to this Court on the basis of federal-question and supplemental jurisdiction. See 28 U.S.C. § § 1331, 1367.[1] On August 6, 2014, the Court granted motions to intervene by the Town of Aquinnah and the Aquinnah/Gay Head Community Association (" AGHCA" ). The Tribe has moved to dismiss the AGHCA complaint on the basis of sovereign immunity and for failure to state a claim upon which relief can be granted; it has further moved to dismiss all three complaints (with leave to amend) for failure to join the United States as a required party.

On October 24, 2014, the Tribe filed an amended answer that included a counterclaim against the Commonwealth and counterclaims against three third-party defendants (all of whom are officials of the Commonwealth). Plaintiff and third-party defendants have moved to dismiss the counterclaims on the grounds of sovereign immunity (as to the ...


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