MATTHEW HANEY, Trustee v. MASHPEE WAMPANOAG INDIAN TRIBAL COUNCIL, INC., & Another. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-346
MATTHEW HANEY, trustee,1
vs.
MASHPEE WAMPANOAG INDIAN TRIBAL COUNCIL, INC., & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judge's order
dismissing his amended complaint. The central issue in this
case is whether tribal sovereign immunity precludes the
plaintiff from bringing his claims against the defendants in the
Superior Court. Concluding that the defendants did not waive
their sovereign immunity, the "immovable property doctrine" does
not apply, and the plaintiff has no private right of action to
enforce the State conservation regulations at issue here, we
affirm the dismissal of the complaint.
1. Background. We draw the facts from those well-pleaded
in the plaintiff's amended complaint. See Osborne-Trussell v.
1 Of the Gooseberry Island Trust.
2 Mashpee Wampanoag Tribe.
Children's Hosp. Corp., 488 Mass. 248, 250 (2021). The
defendants, Mashpee Wampanoag Indian Tribal Council, Inc., and
Mashpee Wampanoag Tribe, operated a commercial shellfishing
business off the shore of Cape Cod in Popponesset Bay. Their
"aquaculture" was authorized by a shellfish propagation license
pursuant to G. L. c. 130, § 57. The defendants' fishing racks
and cages regularly were located on the private tidelands of
nearby Gooseberry Island, which is owned by the plaintiff. The
defendants also left piles of shells, trash, and other debris on
Gooseberry Island and its private tidelands. The plaintiff
filed an action in the Superior Court alleging trespass, private
nuisance, and public nuisance, and requesting a declaratory
judgment defining the parties' rights related to the defendant's
use of the shellfish propagation license on the private
tidelands. A Superior Court judge dismissed the complaint with
prejudice, on the ground that the plaintiff's claims were barred
by tribal sovereign immunity. This appeal followed.
2. Discussion. a. Standard of review. " We review, de
novo, the judge's legal conclusions that sovereign immunity bars
the plaintiff['s] claims and was not waived." Harrison v.
Massachusetts Bay Transp. Auth., 101 Mass. App. Ct. 659, 660
(2022).
b. Implicit waiver. "Suits against Indian tribes are
. . . barred by sovereign immunity absent a clear waiver by the
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tribe or congressional abrogation" (citation omitted).3 Building
Inspector & Zoning Officer of Aquinnah v. Wampanoag Aquinnah
Shellfish Hatchery Corp., 443 Mass. 1, 12 (2004). We disagree
with the plaintiff's argument that the defendants waived their
tribal sovereign immunity by applying for the shellfish
propagation license and accepting the grant of rights to use
Commonwealth lands and waters because "a waiver of sovereign
immunity cannot be implied but must be unequivocally expressed"
(quotations and citations omitted). Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978). See Furry v. Miccosukee Tribe
of Indians of Florida, 685 F.3d 1224, 1234 (11th Cir. 2012) (no
waiver of sovereign immunity from private tort actions where
tribe applied for State liquor license). Cf. Caddo Nation of
Oklahoma v. Wichita & Affiliated Tribes, 786 Fed. Appx. 837, 840
n.4 (10th Cir. 2019) (waiver of sovereign immunity by accepting
grant funding where language of agreement explicitly stated that
tribe "consents to accept the jurisdiction of Federal Courts").
Nothing in the licensing statute here refers to sovereign
3 The plaintiff agrees that the Wampanoags are a Federally
recognized Indian tribe and have sovereign immunity. Further,
at least in the trial court, the plaintiff agreed that if the
defendant tribe were immune, the claims against the defendant
corporation would also fail; "if one goes the other goes with
it." To whatever extent a footnote in the plaintiff's appellate
brief now suggests some material distinction between the two
defendants, the argument is waived, and we refer to the
defendants together as enjoying immunity.
3
immunity, see G. L. c. 130, § 57, and the plaintiff does not
claim that the defendants executed an agreement that contained
an express waiver.
Nor are we persuaded by the contention that the tribe
implicitly waived sovereign immunity by participating in
previous lawsuits with the plaintiff and other parties. See
Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F.2d 550, 552 (8th
Cir. 1989) (tribe waives sovereign immunity by commencing
lawsuit "arising out of the same transaction or occurrence which
is the subject matter of . . . [the] suit" [citation omitted]);
Cayuga Indian Nation of N.Y. v. Seneca County, 260 F.Supp.3d
290, 299 (W.D.N.Y 2017) ("where an Indian tribe seeks a
declaration that a particular fact is true, . . . it necessarily
waives its sovereign immunity as to a counterclaim seeking the
exact opposite declaration"). We agree with the motion judge
that the matters cited by the plaintiff did not arise out of the
same transaction or raise the same legal issues as the present
case, and therefore did not constitute a waiver of tribal
sovereign immunity.4
4 In the first matter, the plaintiff named the defendants in a
suit that sought to vacate a decision by the Massachusetts
Department of Environmental Protection denying his request to
build a bridge to Gooseberry Island. In the second, the
plaintiff intervened in the defendants' certiorari action
seeking to vacate an order from the Mashpee Conservation
Commission but was not permitted to file a counterclaim.
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c. "Immovable property" exception. The plaintiff also
contends that the defendants waived sovereign immunity by
"hold[ing] property in the territory of another sovereign."
Historically, under the immovable property exception, courts
have treated land acquired by a sovereign State outside its
territory as privately owned in the context of suits over
various real property rights. See Georgia v. Chattanooga, 264
U.S. 472, 479-480 (1924) (sovereign immunity not extended to
State that acquired and held land within borders of another
State in suit involving property rights and eminent domain).
However, the dispute in this case did not pertain to rights
stemming from an ownership or other interest in real property.
Instead, the plaintiff sought relief regarding the defendants'
use of the property within the area covered by the shellfish
propagation license. We thus are not persuaded by the
plaintiff's argument that we should extend the immovable
property exception to the defendants' tribal sovereign immunity,
even if we could do so. See Buzulis v. Mohegan Sun Casino, 69
Mass. App. Ct. 708, 710 (2007) ("[T]ribal immunity is a matter
of federal law and is not subject to diminution by the States"
[citation omitted]). Moreover, the Supreme Court has declined
to create a rule broadly extending the immovable property
exception to tribal immunity. See Upper Skagit Indian Tribe v.
Lundgren, 138 S. Ct. 1649, 1654 (2018) (in context of expanding
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immovable property exception, determination of limits on tribal
sovereign immunity is "a grave question" on which "restraint is
the best use of discretion"). We agree with the defendants that
the issue is not ours to decide in the first instance but must
be left to Congress. See Building Inspector & Zoning Officer of
Aquinnah, 443 Mass. at 12 ("[t]o abrogate tribal immunity,
Congress must 'unequivocally' express that purpose" [citation
omitted]).
d. Natural resource laws. We need not linger long on the
plaintiff's argument that the grant of a shellfish propagation
license "bound [the defendants] to operate the licensed area in
a manner that does not impact the resources of other
landowners." Even if the defendants are subject to the
regulatory authority of the State regarding its natural
resources, the plaintiff cites no legal authority for the
proposition that a private citizen is permitted to file a civil
lawsuit to enforce compliance. See Shepard v. Attorney Gen.,
409 Mass. 398, 400 (1991) ("[T]he rights asserted by the
[plaintiff] are not private but are in fact lodged in the
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Commonwealth as it may proceed to enforce its laws" [citation
omitted]).
Judgment affirmed.
By the Court (Sacks, Singh &
Brennan, JJ.5),
Clerk
Entered: February 15, 2023.
5 The panelists are listed in order of seniority.
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