Aquinnah/Gay Head Cmty. Ass'n, Inc. v. Wampanoag Tribe of Gay Head, s. 19-1661

• Decision Date: 25 February 2021
• Docket Number: 19-1857,19-1922,Nos. 19-1661,Nos. 19-1729,s. 19-1661,s. 19-1729
• Citation: 989 F.3d 72
• Parties: 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. 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.
• Court: U.S. Court of Appeals — First Circuit

989 F.3d 72

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.

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.

Nos. 19-1661

19-1857

Nos. 19-1729

19-1922

United States Court of Appeals, First Circuit.

February 25, 2021

Scott D. Crowell, Sedona, AZ, with whom Crowell Law Office-Tribal Advocacy Group LLP, Lael R. Echo-Hawk, MThirtySix, PLLC, Bruce Singal, Elizabeth McEvoy, Boston, MA, 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, Washington, DC, with whom Douglas J. Kline, Joshua J. Bone, Boston, MA, Goodwin Procter LLP, Felicia H. Ellsworth, Claire M. Specht, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Ronald H. Rappaport, Edgartown, MA, Michael A. Goldsmith, Boston, MA, and Reynolds, Rappaport, Kaplan & Hackney, LLC were on brief, for appellees/cross-appellants Aquinnah/Gay Head Community Association, Inc. and Town of Aquinnah. Brian M. Hurley, Stacie A. Kosinski, Boston, MA, and Rackemann Sawyer & Brewster, P.C., on brief for Martha's Vineyard Commission, amicus curiae.

Before Thompson and Kayatta,^* Circuit Judges.

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 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 activity on Indian lands" that distinguishes between different types of gaming. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 785, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (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 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 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 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...