Mathew Haney, Tr. v. Mashpee Wampanoag Indian Tribal Council, Inc.
| Decision Date | 15 February 2023 |
| Docket Number | 22-P-346 |
| Court | Appeals Court of Massachusetts |
| Parties | MATTHEW HANEY, trustee, [1] v. MASHPEE WAMPANOAG INDIAN TRIBAL COUNCIL, INC., & another. [2] |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
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. 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 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) (). Cf. Caddo Nation of Oklahoma v. Wichita & Affiliated Tribes, 786 Fed.Appx. 837, 840 n.4 (10th Cir. 2019) (). Nothing in the licensing statute here refers to sovereign 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) (); Cayuga Indian Nation of N.Y. v. Seneca County, 260 F.Supp.3d 290, 299 (W.D.N.Y 2017) (). 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] 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...
To continue reading
Request your trial