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Commonwealths v. Wampanoag Tribe of Gay Head (Aquinnah)

United States District Court, D. Massachusetts

June 19, 2019

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.
CHARLES BAKER, in his official capacity as GOVERNOR, COMMONWEALTH OF MASSACHUSETTS, et al., Third-Party Defendants.

          MEMORANDUM AND ORDER ON MOTION FOR FINAL JUDGMENT SAYLOR, J.

          F. Dennis Saylor IV United States District Judge.

         This is a dispute over gaming on Indian lands on Martha's Vineyard. On November 13, 2015, the Court granted summary judgment against the Tribe, concluding that (1) the Indian Gaming Regulatory Act (“IGRA”) did not apply to the tribal lands at issue, and (2) the IGRA did not repeal, by implication, a statute passed by Congress in 1987 that ratified a settlement agreement requiring the Tribe to adhere to state gaming laws. On April 10, 2017, the First Circuit reversed the Court's decision as to those two issues. It subsequently remanded the case for the entry of final judgment.

         The present dispute involves the form of that final judgment. The Court's original judgment was not limited to gaming issues, but more broadly provided that the Tribe must comply with “any state and local permitting requirements.” That judgment reflected a dispute as to whether the Tribe is subject to state and local permitting requirements (such as building permits, zoning, regional commission approval, and the like) not directly involving gaming. The tribe appealed the judgment as to the two gaming issues; it did not appeal as to the permitting requirements.

         The mandate of the First Circuit states that the matter was remanded “for entry of judgment in favor of the Tribe.” The question presented is whether that order applies to that portion of the original judgment from which the Tribe did not appeal. In simplified terms, the Tribe lost in the District Court as to three principal issues; it appealed only two of them; its appeal was successful as to those two; and it now seeks judgment in its favor as to all three.

         For the reasons set forth below, absent clear direction from the Court of Appeals, the Court will not reverse its judgment as to an issue that was never appealed. The Court will therefore enter a final judgment providing that any gaming facility constructed and operated by the Tribe on the lands at issue is not subject to state and local laws and regulations concerning gaming. The judgment will further provide, however, that any such facility is otherwise subject to state and local regulation, including any applicable permitting requirements.

         I. Background

         A. The 1983 Settlement Agreement and 1987 Federal Settlement Act

         In 1983, the Commonwealth, the Town of Gay Head, the Taxpayers' Association of Gay Head, Inc. and the Wampanoag Tribal Council of Gay Head, Inc. entered into a Settlement Agreement.[1] The Settlement Agreement resolved a land-rights lawsuit that had been filed in 1974. As part of the settlement, the Town and the Taxpayers' Association conveyed to the Wampanoag Tribal Council approximately 485 acres of land (the “Settlement Lands”) to be held “in the same manner, and subject to the same laws, as any other Massachusetts corporation.” In return, the Tribal Council relinquished all claims to other lands and waters in the Commonwealth. The Settlement Agreement provided that “[u]nder no circumstances, including any future recognition of the existence of an Indian tribe in the Town of Gay Head, shall the civil or criminal jurisdiction of the Commonwealth . . . over the settlement lands . . . be impaired or otherwise altered” and “no Indian tribe or band shall ever exercise sovereign jurisdiction” over those lands. And the Tribe agreed that the Settlement Lands would be “subject to all Federal, State, and local laws, including Town zoning laws.”[2]

         The Settlement Agreement was approved by the Massachusetts legislature in 1985 and by Congress in 1987. The 1987 federal Settlement Act contained the following language: “Except as otherwise expressly provided in this subchapter or in the State Implementing Act, the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, 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).” 25 U.S.C. § 1771g.[3]

         B. Proceedings in the District Court

         On December 2, 2013, the Commonwealth of Massachusetts filed a complaint with the Single Justice of the Supreme Judicial Court for Suffolk County against the Wampanoag Tribe of Gay Head (Aquinnah), the Wampanoag Tribal Council of Gay Head, Inc., and the Aquinnah Wampanoag Gaming Corporation (collectively, “the Tribe”). The complaint asserted a claim for breach of contract and requested a declaratory judgment that the Settlement Agreement allowed the Commonwealth to prohibit the Tribe from conducting gaming on Settlement Lands in Aquinnah.

         On December 30, 2013, the Tribe removed the action to this court on grounds of federal-question and supplemental jurisdiction.

         On July 10, 2014, both the Aquinnah/Gay Head Community Association, Inc. (“AGHCA”) and the Town of Aquinnah filed motions to intervene. This court granted those motions on August 6, 2014.

         On October 24, 2014, the Tribe filed counterclaims against the Commonwealth and claims against three third-party defendants, all of whom are government officials of the Commonwealth sued in their official capacity.[4]

         On May 28, 2015, the Commonwealth, the Town, the AGHCA, and the Tribe all moved for summary judgment on the issue of whether the 1987 Settlement Act allowed the Commonwealth to prohibit the Tribe from conducting gaming on the Settlement Lands.

         On July 14, 2015, after learning that the Tribe planned to commence construction of a gaming facility, the Town moved for a temporary restraining order and/or a preliminary injunction enjoining the Tribe from undertaking any further construction. On July 28, 2015, after a hearing, the Court entered a preliminary injunction enjoining the Tribe ...


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