Commw. of Mass. v. Wampanoag Tribe of Gay Head

• Court: Court of Appeals for the First Circuit
• Decided: February 25, 2021
• Docket: 19-1661P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 19-1661, 19-1857

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. ____________________

Nos. 19-1729, 19-1922

AQUINNAH/GAY HEAD COMMUNITY ASSOCIATION, INC.; TOWN OF AQUINNAH,

v. THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH); THE AQUINNAH WAMPANOAG GAMING CORPORATION; THE WAMPANOAG TRIBAL COUNCIL OF GAY HEAD, INC.,

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.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Thompson and Kayatta,* Circuit Judges.

Scott D. Crowell, with whom Crowell Law Office-Tribal Advocacy Group LLP, Lael R. Echo-Hawk, MThirtySix, PLLC, Bruce Singal, Elizabeth McEvoy, 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, with whom Douglas J. Kline, Joshua J. Bone, Goodwin Procter LLP, Felicia H. Ellsworth, Claire M. Specht, Wilmer Cutler Pickering Hale and Dorr LLP, Ronald H. Rappaport, Michael A. Goldsmith, and Reynolds, Rappaport, Kaplan & Hackney, LLC were on brief, for appellees/cross-appellants Aquinnah/Gay Head Community Association, Inc. and Town of Aquinnah.

* Judge Torruella heard oral argument in these matters and participated in the semble, but he did not participate in the issuance of the panel's decision. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). Brian M. Hurley, Stacie A. Kosinski, and Rackemann Sawyer & Brewster, P.C., on brief for Martha's Vineyard Commission, amicus curiae.

February 25, 2021 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

1 The town of Gay Head was renamed "Aquinnah" at some point after its incorporation into the Commonwealth of Massachusetts. 2 The Community Association is a Massachusetts not-for-profit corporation whose mission is, among other things, "to encourage historic and environmental preservation in the Town" and "to ensure the effective enforcement of all municipal laws and regulations."

-4- 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

-5- activity on Indian lands" that distinguishes between different

types of gaming. Michigan v. Bay Mills Indian Cmty., 572 U.S.

782, 785 (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

3 Class I gaming consists primarily of "traditional forms of Indian gaming engaged in by individuals . . . in connection with[] tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). Class III gaming consists of all forms of gaming outside classes I and II. Id. § 2703(8).

-6- 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

4It also granted summary judgment for the Town and the Community Association. More on this in a bit.

-7- 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

-8- 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 from undertaking any further construction on

the building pending the results of the summary judgment motions.

-9- The Commonwealth and the Community Association filed memoranda in

support of the Town's motion. Following a hearing, the district

court granted the Town's motion for a preliminary injunction.

The district court explained that it saw the preliminary

injunction issue as "very narrow," not about "whether [IGRA]

preempts the Settlement Act, [or] whether it preempts state laws

or town zoning but rather whether the [T]ribe can build a building

without applying for a building permit and getting the required

inspections along the way and ultimately an occupancy permit."

The district court explained that in its view, "[t]he rules are

that you need a building permit to construct a building," a

requirement that "will remain in place regardless of the outcome

of the gaming aspect of this case." The district court further

explained, "if the tribe is going to do any work on the building,

construction work, it's going to have to obtain a building permit

and comply with all of the construction and wiring and plumbing

code requirements and to permit inspections and to obtain an

occupancy permit before opening it to the public." According to

the district court, those requirements were "of general

applicability," were "for public health and safety," and were

"independent of the gaming issue generally and the zonings issue

specifically as it applies to casino gaming."

-10- The preliminary injunction remained in effect until the

district court resolved the parties' cross-motions for summary

judgment. The district court then entered the final judgment that

was the subject of Wampanoag I. The final judgment did not pertain

only to the gaming issue but stated it was "consistent with" the

district court's previous orders, including the preliminary

injunction. As a reminder, the final judgment included 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 contained a permanent injunction

to that effect.

D. Post-Wampanoag I

With the procedural history prior to Wampanoag I in

place, we turn to what happened in Wampanoag I's aftermath. We

issued our judgment in Wampanoag I on April 10, 2017. Over a year

later, in May 2018, after the Supreme Court denied petitions for

certiorari, our mandate issued. Nearly one year after that, in

April 2019, the Town moved for entry of its proposed final

judgment, which in pertinent part would permanently enjoin the

Tribe "from constructing any gaming facility at any location within

the Town of Aquinnah, including on the Settlement Lands, without

-11- first complying with all generally applicable permitting

requirements of the Town of Aquinnah and the Commonwealth of

Massachusetts, including but not limited to all building permit

requirements of the Town of Aquinnah." The Community Association

filed a memorandum in support.

On June 19, 2019, the district court entered an amended

final judgment in favor of the Tribe as to the gaming issue but

against the Tribe as to the permitting issue.5 In doing so, the

district court explained its view that, in Wampanoag I, the Tribe

had not appealed the permitting issue (i.e., whether IGRA impliedly

repealed the Settlement Act as to non-gaming laws) and therefore

that Wampanoag I did not speak to it. Accordingly, it found that

the Tribe had forfeited or waived the issue.

The Tribe timely appealed.6

5 The district court subsequently amended the judgment twice more in ways not relevant to this appeal. 6 The Town and the Community Association filed a cross-appeal "for the sole purpose of preserving for potential further review their argument -- as briefed in the prior appeal -- that IGRA did not repeal the Settlement Act's grant of gaming jurisdiction." The Town and the Community Association wisely do not ask us to reconsider Wampanoag I, assuring us that we "need not address the cross-appeal at all." At this juncture, reconsidering Wampanoag I would be "beyond our prerogatives." Ackerley Commc'ns of Mass., Inc. v. City of Cambridge, 135 F.3d 210, 217 n.10 (1st Cir. 1998); see also United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (explaining that if it were otherwise, "the finality of appellate decisions would be threatened and every decision, no matter how thoroughly researched or how well-reasoned, would be open to

-12- II. Analysis

The Tribe raises a bevy of challenges to the district

court's amended final judgment. The Tribe first contends that the

district court erred by incorrectly determining that the Tribe had

waived the permitting issue. The Tribe then argues that,

regardless of whether it waived the permitting issue, the district

court, as a procedural matter, lacked authority to enter the

amended final judgment. Because our precedent compels us to reject

both of the Tribe's substantive arguments, we then ask whether

this is one of those rare cases where we may overlook a party's

waiver.

A. Waiver

In determining whether the Tribe waived the permitting

issue, the law-of-the-case doctrine is key. We have described the

doctrine as having two branches, and both are at play. See United

States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011). The first

branch, sometimes referred to as the mandate rule, "prevents

relitigation in the trial court of matters that were explicitly or

implicitly decided by an earlier appellate decision in the same

case." Id. (quoting United States v. Moran, 393 F.3d 1, 7 (1st

Cir. 2004)). The second branch requires a "successor appellate

continuing intramural attacks").

-13- panel in a second appeal in the same case" to adhere to the earlier

panel's decision. Id. (quoting Moran, 393 F.3d at 7). This branch

"bars a party from resurrecting issues that either were, or could

have been, decided on an earlier appeal." Id. at 12–13 (citing

United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)); see also

18B Edward H. Cooper, Federal Practice and Procedure § 4478 n.34

(2d ed. 2020) ("Although an issue neither presented nor decided

should not be treated as law of the case because it should have

been presented earlier, it is common to enforce waiver, and almost

as common to describe the waiver as a law-of-the-case principle.").

The Tribe relies on the first branch while trying to

sidestep the second. The Tribe claims that this court resolved

the permitting issue in Wampanoag I in the Tribe's favor.

Accordingly, the Tribe argues the first branch of the law-of-the-

case doctrine required the district court to respect that decision

(which it failed to do) and that the second branch requires us too

to respect Wampanoag I's decision on the permitting issue. We

review whether the law-of-the-case doctrine applies de novo.

Matthews, 643 F.3d at 13.

As we have detailed above, the Tribe previously appealed

aspects of the district court's final judgment, and we resolved

those aspects in favor of the Tribe. The Tribe's appeal -- and,

correspondingly, our opinion -- focused solely on the gaming issue.

-14- The Tribe argues that, in Wampanoag I, it appealed from the

district court's final judgment "in its entirety . . . , which

included the language enjoining the Tribe from proceeding without

local building permits." True, a party's notice of appeal from a

final judgment also appeals from all interlocutory orders issued

prior to the final judgment. Denault v. Ahern, 857 F.3d 76, 81–

82 (1st Cir. 2017). But a party's opening brief clarifies the

appeal's scope. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st

Cir. 1990) (explaining that the "statement of the issues presented

for review and the contentions of the appellant with respect to

the issues presented" in an appellant's brief "inform[] the

appellee of the scope of the appeal"). The Tribe's opening brief

in Wampanoag I clearly focused on only the gaming issue. Indeed,

the Tribe's statement of the issues presented for review trained

on the "application of the Commonwealth's gaming laws." See Fed.

R. App. P. 28(a)(5). The Tribe never asked us to consider the

permitting issue, nor did it mention the preliminary injunction,

which had addressed the permitting issue head on, beyond a single

footnote.

"It should go without saying that we deem waived claims

not made or claims adverted to in a cursory fashion, unaccompanied

by developed argument." Rodríguez v. Mun. of San Juan, 659 F.3d

168, 175 (1st Cir. 2011). We do not ordinarily address waived

-15- claims. See Vázquez-Rivera v. Figueroa, 759 F.3d 44, 46–47 (1st

Cir. 2014) (deeming waived and therefore declining to review issues

not briefed, even where appellant's "notice of appeal signaled his

intent to challenge" them); see also Int'l Ass'n of Machinists &

Aerospace Workers v. E. Airlines, Inc., 925 F.2d 6, 10 (1st Cir.

1991) (declining to address an issue where appellant had not raised

it in its brief and where the appellant "ha[d] not included it in

the statements of issues presented by [appellant] as required by"

the Federal Rules of Appellate Procedure).

As the Tribe did not address the permitting issue in its

opening brief in Wampanoag I, we likewise did not address it in

our opinion. See Diaz v. Jiten Hotel Mgmt., Inc., 741 F.3d 170,

176 (1st Cir. 2013) ("Our opinion . . . cannot plausibly be read

to have conclusively determined [an issue], particularly when

[that issue] was neither challenged nor briefed on appeal."). We

frequently discussed whether the Tribe needed to obtain a gaming

license (i.e., the gaming issue) without ever discussing whether

the Tribe needed to, for example, obtain various building permits

(i.e., the permitting issue). See Wampanoag I, 853 F.3d at 623,

629. Further, as we mentioned when we laid out the procedural

history of the case, we -- like the Tribe -- did not discuss the

district court's preliminary injunction; instead, for purposes of

Wampanoag I, we at most alluded to it as "some procedural fencing

-16- not relevant" to the appeal. Id. at 623. All said, we agree with

the district court's assessment that "[t]here is no question that

[we] did not expressly decide the [permitting] issue" in Wampanoag

I. Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 390

F. Supp. 3d 183, 189 (D. Mass. 2019).

The Tribe suggests that even if it did not expressly

address the permitting issue in Wampanoag I, the Tribe did so

implicitly in its Wampanoag I brief when it referred to "gaming

laws." See, e.g., Appellants' Br., Wampanoag I, No. 16-1137, 2016

WL 3437627, at *3 ("The crux of this appeal is . . . whether

Congress' enactment of IGRA . . . impliedly repealed those

provisions in [the Settlement Act], which had applied the gaming

laws and regulations of the Commonwealth to Aquinnah Indian

lands."). According to the Tribe, it did not waive the permitting

issue, because the term "gaming laws" as used in its brief was a

"contextual reference to IGRA's comprehensive and sophisticated

regulatory scheme" and therefore encompassed even laws not

specifically related to gaming. We are not convinced that the

Tribe's use of "gaming laws" actually encompassed non-gaming laws

which may incidentally touch on gaming. The Tribe did not, as it

does now, include any arguments as to the scope of IGRA's implied

repeal of the Settlement Act, which might have suggested that it

was intending to appeal the permitting issue. Nor did the Tribe's

-17- brief, despite leaning heavily on one of our circuit's seminal

cases in this area, ever cite or reference a crucial portion of

that opinion which suggested that whether certain activities are

regulable may depend on whether they are "deemed integral to

gaming." Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685,

705 (1st Cir. 1994). Moreover, we note that the Tribe consistently

referred to the "Commonwealth's gaming laws," not to the

regulations of the Town, such as those relating to permitting.

See Appellants' Br., Wampanoag I, No. 16-1137, 2016 WL 3437627, at

*2, *10, *14, *20, *21. Given how squarely the permitting issue

was contested before the district court, staying silent on the

issue in Wampanoag I is irreconcilable with what is being argued

now.

Next, the Tribe contends that even if it waived the

permitting issue on appeal, this court should hear the Tribe's

arguments on the merits because the district court made significant

and novel modifications in the amended final judgment. According

to the Tribe, the district court "manufactured for the very first

time" in the post-Wampanoag I final judgment "its own alternative

definition of 'gaming laws' to mean only those state statutes and

local regulations that prohibit or regulate games of chance, and

not to mean general regulatory laws and regulations." In other

words, the Tribe suggests (in the alternative) that it could not

-18- have appealed the permitting issue in Wampanoag I since the

district court only pronounced the relevant distinction between

the permitting issue and the gaming issue after we decided

Wampanoag I. But this argument is belied by the district court's

pre-Wampanoag I orders, especially the preliminary injunction

order which was incorporated into the original final judgment,

where the district court employed this distinction.7 Thus, the

Tribe was on notice before its prior appeal that the district court

had distinguished between gaming laws and general regulatory laws.

Finally, the Tribe argues that the district court could

not possibly have found waiver of the permitting issue because of

the Tribe's sovereign immunity, which it says prevented the

district court from making any decision on the issue (even that

the Tribe had waived the issue). Sovereign immunity means that,

"[a]s a matter of federal law, an Indian tribe is subject to suit

only where Congress has authorized the suit or the tribe has waived

its immunity." Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523

U.S. 751, 754 (1998); see Bay Mills Indian Cmty., 572 U.S. at 788–

89, 791 & n.4. Even though the Tribe has not always pressed the

7 Indeed, the key passage the Tribe relies on to suggest that the district court originally "understood" this case only to concern gaming laws comes from an opinion issued by the district court before the Town and the Community Association even intervened and filed their complaints.

-19- argument that it has retained its sovereign immunity from suit,

the Tribe tells us that it cannot have waived the argument because

sovereign immunity implicates the court's subject-matter

jurisdiction and therefore cannot be waived. See Sebelius v.

Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013) ("Objections to

a tribunal's jurisdiction can be raised at any time, even by a

party that once conceded the tribunal's subject-matter

jurisdiction over the controversy."); cf. Larson v. United States,

274 F.3d 643, 648 (1st Cir. 2001) (per curiam) ("Sovereign immunity

[of the federal government] . . . is a jurisdictional defense that

may be raised for the first time in the court of appeals.").

There is some "divergence of opinion as to the precise

nature of tribal sovereign immunity" and whether it is "synonymous"

with subject-matter jurisdiction. Oneida Indian Nation v.

Phillips, 981 F.3d 157, 170–71 (2d Cir. 2020); see id. at 171 n.70

(collecting cases); id. at 175–180 (Menashi, J., concurring in

part and concurring in the judgment); see also Ninigret Dev. Corp.

v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 28 (1st

Cir. 2000) ("[A]lthough tribal sovereign immunity is

jurisdictional in nature, consideration of that issue always must

await resolution of the antecedent issue of federal subject-matter

jurisdiction."). Although subject-matter jurisdiction can never

be waived or forfeited, Gonzalez v. Thaler, 565 U.S. 134, 141

-20- (2012), as we have explained, tribal sovereign immunity can be

waived through tribal conduct, provided that "such actions [are]

clear and unequivocal in their import," Narragansett Indian Tribe

v. Rhode Island, 449 F.3d 16, 25 (1st Cir. 2006) (en banc). Even

assuming that tribal sovereign immunity is synonymous with

subject-matter jurisdiction, but see Ninigret, 207 F.3d at 28, we

find waiver of tribal sovereign immunity here.

Early in this case, the Tribe pressed a different

sovereign immunity argument before the district court, which the

district rejected by advertence to a decision from the

Massachusetts Supreme Judicial Court. There, the Supreme Judicial

Court had determined that the Tribe waived sovereign immunity in

relevant respects through its pre-Settlement Act agreement with

the Commonwealth, the Town, and the Community Association. Bldg.

Inspector & Zoning Officer v. Wampanoag Aquinnah Shellfish

Hatchery Corp., 818 N.E.2d 1040, 1042-43, 1048–51 (Mass. 2004).

The federal district court gave that decision full faith and

credit, see 28 U.S.C. § 1738, and held that it precluded the Tribe

from contesting the waiver of sovereign immunity in this case.

Massachusetts v. Wampanoag Tribe of Gay Head, 98 F. Supp. 3d 55,

62–67 (D. Mass. 2015).

The Tribe maintains for the first time now, however,

that IGRA impliedly repealed the pre-Settlement Act agreement

-21- between the parties at least as to the Tribe's gaming activities,

such that it wiped away the Tribe's waiver of sovereign immunity

in that domain.8 Put differently, the Tribe says that Congress,

through IGRA, undid the Tribe's waiver of sovereign immunity, at

least as to suits stemming from the Tribe's gaming activities.

Because the Tribe asserts that complying with the local permitting

regulations is related to gaming, the Tribe maintains that it

cannot be sued (absent a new waiver) unless we disagree that those

regulations are related to gaming. Resolving this threshold matter

would effectively require us to resolve the permitting issue the

Tribe wants us to decide on the merits: whether IGRA impliedly

repealed the portion of the Settlement Act requiring the Tribe's

compliance with those regulations.

We are not detained by this argument. We recall that

"[a]n Indian tribe's sovereign immunity may be limited by either

tribal conduct (i.e., waiver or consent) or congressional

enactment (i.e., abrogation)." Narragansett Indian Tribe, 449

8 The Tribe also suggests that the Tribe was not a party to the pre-Settlement Act agreement because the Tribe had not been formally recognized by the federal government at the time. But "the Tribe is mistaken in its professed belief that it lacked jurisdictional power at the time of the Settlement Act." Narragansett, 19 F.3d at 694. "The Tribe's retained sovereignty predates federal recognition -- indeed, it predates the birth of the Republic." Id.

-22- F.3d at 25 (emphases added) (citing Kiowa, 523 U.S. at 754); see

also South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998)

("Congress possesses plenary power over Indian affairs, including

the power to modify or eliminate tribal rights."); 1 Felix S.

Cohen, Handbook of Federal Indian Law § 7.05 (Nell Jessup Newton

ed., 2017) ("Although there used to be some uncertainty about

whether tribes could waive their own sovereign immunity without

congressional approval, it is now clear that Indian nations

can . . . ." (footnote omitted)); United States v. Oregon, 657

F.2d 1009, 1013 (9th Cir. 1981) (explaining that courts had at one

point "expressed doubts on the ability of Indian tribes to waive

immunity"). We have never encountered the Tribe's seemingly novel

argument that a congressional enactment can undo or override a

tribe's voluntary waiver of sovereign immunity through tribal

conduct. We need not resolve that question now, however, because

even if Congress could and did restore the sovereign immunity from

suit that the Tribe may have waived through the pre-Settlement Act

agreement, we would still find the Tribe had waived its immunity

here through its litigation conduct.

As discussed, the Tribe raised a variant of its sovereign

immunity argument in the district court prior to Wampanoag I, and

the district court permitted the suit to proceed. The Tribe later

appealed to us without advancing on appeal a challenge to the

-23- district court's adverse ruling on the sovereign immunity issue.

We resolved the merits of that case in the Tribe's favor. Now the

Tribe, dissatisfied with implications of Wampanoag I it may not

have considered, wants to press rewind. The Supreme Court,

however, has looked unfavorably on a sovereign's attempts to

"regain immunity" even after it "litigated and lost a case brought

against it in federal court." Lapides v. Bd. of Regents of Univ.

Sys. of Ga., 535 U.S. 613, 622 (2002).

We recognize that the sovereign in Lapides was a state,

not a tribe, and that a tribe's sovereign immunity "is not

congruent" with that of a state. Three Affiliated Tribes of Fort

Berthold Rsrv. v. Wold Eng'g, 476 U.S. 877, 890 (1986). We are

also mindful that some courts of appeals have held that Lapides'

reasoning -- at least insofar as it held that a state's removal to

federal court can constitute waiver -- "does not apply at all in

the context of tribal immunity." Bodi v. Shingle Springs Band of

Miwok Indians, 832 F.3d 1011, 1020 (9th Cir. 2016); see also

Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692

F.3d 1200, 1206 (11th Cir. 2012). But here, the Tribe's conduct

went beyond merely removing a case to federal court like the

tribes' conduct in the cases addressed by our sister circuits.

Contra Bodi, 832 F.3d at 1020, 1022 (rejecting specifically

"Lapides's waiver-through-removal reasoning" in the tribal

-24- immunity context, and noting that Lapides's reasoning concerned

the "selective use of 'immunity' to achieve litigation advantages"

(quoting Lapides, 535 U.S. at 620)); Contour Spa, 692 F.3d at 1201

(rejecting application of Lapides, in part, because "the problems

of inconsistency and unfairness that were inherent in the

procedural posture of Lapides are absent here"). We think a tribe

cannot raise the issue of sovereign immunity in a district court,

forgo it on appeal while seeking relief from an adverse ruling,

and then employ it in a later appeal to secure a do-over. Cf. In

re Greektown Holdings, LLC, 917 F.3d 451, 464 (6th Cir. 2019)

(reasoning that "Indian tribes can waive their tribal sovereign

immunity through sufficiently clear litigation conduct, including

by filing a lawsuit"), cert. dismissed, 140 S. Ct. 2638 (2020);

cf. also Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th Cir.

1995) ("We will not transmogrify the doctrine of tribal immunity

into one which dictates that the tribe never loses a lawsuit.");

United States v. Oregon, 657 F.2d at 1014 ("Otherwise, tribal

immunity might be transformed into a rule that tribes may never

lose a lawsuit."). Accordingly, we find that the Tribe waived any

retained sovereign immunity from suit with respect to challenges

to jurisdiction over the Tribe's gaming activities on the

-25- Settlement Lands when the Tribe failed to address it in the

Wampanoag I appeal.9

B. Procedural Authority

The Tribe argues that, regardless of whether the Tribe

waived the permitting issue, the district court impermissibly

entered the post-remand final judgment because it lacked authority

to do so. Our mandate from Wampanoag I lodged in the district

court's docket on May 9, 2018. The Tribe notes that the Federal

Rules of Civil Procedure provide, as relevant here, that judgment

is considered entered at the latest after "150 days have run from"

its entry in the civil docket. Fed. R. Civ. P. 58(c)(2)(B). The

9 The Tribe also contends that, even if it waived the permitting issue, the district court erred by declining to reconsider its injunction as to the permitting issue after the remand from Wampanoag I, as the Tribe requested. By seeking reconsideration, the Tribe says that it "preserved the substantive issue on this appeal for review." That is, quite simply, not how it works: "[A] timely appeal from an order denying a motion for reconsideration brought other than in conformity with Rule 59(e) does not 'resurrect [the appellant's] expired right to contest the merits of the underlying judgment, nor bring the judgment itself before [the court of appeals] for review.'" Air Line Pilots Ass'n v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994) (second and third alterations in original) (quoting Rodriguez–Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989)). There is no question the Tribe's motion did not conform with Rule 59(e). Although an appeal may still lie from the denial itself of a motion for reconsideration, see id. at 223, we review such a denial for abuse of discretion and, as we will later explain, the Tribe has failed to show that the district court "committed a manifest error of law." Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

-26- Tribe also points to a Massachusetts federal court rule, which

provides that "[a]n order or judgment of an appellate court in a

case appealed from this court shall, if further proceedings are

not required, become the order or judgment of this court and be

entered as such on receipt of the mandate of the appellate court."

D. Mass. Local R. 58.2(d). Because, according to the Tribe, no

further proceedings were required after our mandate issued, and

because the Town did not even move for entry of the amended final

judgment until well after 150 days after that, the Tribe maintains

that the Wampanoag I mandate barred the district court from

entering its amended final judgment.

We have explained that "Rule 58(c) details when a

judgment has entered, if timing is the only question, but it does

not address whether a judgment has entered, when the issue

implicates more than timing." Bos. Prop. Exch. Transfer Co. v.

Iantosca, 720 F.3d 1, 7 (1st Cir. 2013). Such is the case here.

See also Bankers Tr. Co. v. Mallis, 435 U.S. 381, 385 n.6 (1978)

(per curiam) (explaining that, for purposes of appellate

jurisdiction, "the courts of appeals must . . . determine whether

the district court intended the judgment to represent the final

decision in the case"); Baez v. Comm'r of Soc. Sec., 760 F. App'x

851, 854 (11th Cir. 2019) (unpublished) ("[J]udgment is entered

when the district court enters what it intends to be its final

-27- order on the docket and 150 days pass . . . ." (footnote omitted)).

Because our mandate required more of the district court than the

mere logging of our mandate in the district court's docket, we

think the amended final judgment entered when the district court

actually said it was entering it.

Determining what the mandate required from the district

court and whether further proceedings were necessary depends on

what we decided (and what we did not decide) in Wampanoag I.

While, subject to a few exceptions, "[a]n appellate court's mandate

controls all issues that were actually considered and decided by

the appellate court, or as were necessarily inferred from the

disposition on appeal," "issues that were not decided by the

appellate court . . . are not affected by the mandate." Kashner

Davidson Sec. Corp. v. Mscisz, 601 F.3d 19, 23–24 (1st Cir. 2010)

(alteration in original) (first quoting NLRB v. Goodless Bros.

Elec. Co., 285 F.3d 102, 107 (1st Cir. 2002); and then quoting de

Jesús–Mangual v. Rodríguez, 383 F.3d 1, 6 (1st Cir. 2004)).

The mandate in Wampanoag I merely stated: "The district

court's judgment is reversed, and the matter is remanded to the

district for entry of judgment in favor of the tribe." If, as the

Tribe contends, this mandate left nothing to be done on remand, we

would have a different case. But in Wampanoag I, as we have

already explained, we only resolved whether IGRA impliedly

-28- repealed the Settlement Act with respect to the gaming issue, not

the permitting issue. Further proceedings were necessary for the

district court to modify its injunction to reflect this change.

Under the Federal Rules of Civil Procedure, "[e]very order granting

an injunction" must state its "terms specifically," describing "in

reasonable detail -- and not by referring to the complaint or other

document -- the act or acts restrained or required." Fed. R. Civ.

P. 65(d)(1)(B)–(C). An order failing to do so "should be set aside

on appeal." Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d

1, 15 (1st Cir. 2009). Accordingly, the district court had to

delineate which portions of the injunction were altered by

Wampanoag I (i.e., those pertaining to the gaming issue) and which

were not.

The Tribe tries to rebut this contention by arguing that

the mandate clearly affected both the gaming and permitting issues

and therefore that entry in favor of the Tribe left nothing for

the district court to enjoin. It cites to an out-of-circuit case

stating that "when an appellate decision is without limitation as

to how much of the trial court's decision is set aside, all is set

aside." Hynning v. Partridge, 359 F.2d 271, 273 (D.C. Cir. 1966).

But that court also explained that "an opinion and judgment [must]

be read together," id., and, in context, we understand that court's

statement to mean -- as we too have said -- that a mandate controls

-29- not only those issues explicitly decided on appeal but also those

decided "by reasonable implication," Ellis v. United States, 313

F.3d 636, 646 (1st Cir. 2002). See also Wampanoag Tribe of Gay

Head (Aquinnah), 390 F. Supp. 3d at 190. As we have already

discussed at length, we do not think a "reasonable implication" of

Wampanoag I is that we decided the permitting issue.

Because we have determined the Tribe waived the

permitting issue, and because we reject the procedural challenges

to the amended final judgment, we now ask whether we might overlook

the Tribe's waiver.

C. Beyond Waiver

The second branch of the law-of-the-case doctrine -- the

one that prohibits a party from raising an issue it could have

previously appealed -- is "anchored in a sea of salutary policies."

Ellis, 313 F.3d at 647; see also Cooper, supra, § 4478.6 ("There

are powerful reasons to insist that all matters ripe for review at

the time an appeal is taken be presented for review or

abandoned."). These policies include (1) providing "litigants a

high degree of certainty as to what claims are -- and are not --

still open for adjudication;" (2) promoting "finality and repose;"

(3) encouraging efficiency; (4) avoiding inconsistencies; and

(5) discouraging litigants from engaging in gamesmanship through

attempts to shop for a perceived more favorable panel of judges.

-30- Ellis, 313 F.3d at 647. Accordingly, in the absence of exceptional

circumstances, a court should find waiver where a party could have

raised an issue on appeal but did not. Matthews, 643 F.3d at 14.

The categories of exceptional circumstances are "rare

and narrowly circumscribed." Id. We have identified only a

handful:

A party may avoid the application of the law of the case doctrine only by showing that, in the relevant time frame, controlling legal authority has changed dramatically; or by showing that significant new evidence, not earlier obtainable in the exercise of due diligence, has come to light; or by showing that the earlier decision is blatantly erroneous and, if uncorrected, will work a miscarriage of justice.

Id. (quotation marks and citations omitted). The Tribe suggests

that a material change in controlling law came about when Wampanoag

I reversed the district court, but, as we have explained, Wampanoag

I did not purport to address the permitting issue, and the reversal

itself stemmed from the application of a law on our books since

the 1990s. See Wampanoag I, 853 F.3d at 624 (citing Narragansett,

19 F.3d at 702–04). Thus, the main exceptional circumstance

arguably at play is the last one, "a hard-to-satisfy standard that

requires us to have 'a definite and firm conviction that a prior

ruling on a material matter is unreasonable or obviously wrong,

and resulted in prejudice.'" Universal Truck & Equip. Co., Inc.

v. Caterpillar, Inc., 653 F. App'x 15, 20 (1st Cir. 2016)

-31- (unpublished) (quoting Moran, 393 F.3d at 8). We do not think

that the district court got it obviously wrong.

Over twenty-five years ago, we presaged the issues at

the core of this appeal, albeit in dicta:

The crucial questions which must yet be answered principally deal with the nature of the regulable activities which may -- or may not -- be subject to state control, e.g., zoning, traffic control, advertising, lodging. It is true that nondiscriminatory burdens imposed on the activities of non- Indians on Indian lands are generally upheld. But it is also true that a comprehensive federal regulatory scheme governing a particular area typically leaves no room for additional state burdens in that area. Which activities are deemed regulable, therefore, will probably depend, in the first instance, on which activities are deemed integral to gaming. . . . [T]he distinction between core functions and peripheral functions is tenebrous, as is the question of exactly what [the state] may and may not do with respect to those functions that eventually are determined to be peripheral.

Narragansett, 19 F.3d at 705–06 (citations omitted). In

Narragansett, we envisioned this analysis would require "a

particularized inquiry into the nature of the state, federal, and

tribal interests at stake," and we hypothesized that the "criss-

crossing lines" of the analysis might "prove agonizingly difficult

to decipher, let alone to administer." Id. at 705–706 (first

quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145

(1980)). The district court was not nearly as fazed, and it sliced

-32- right through the Gordian knot. It drew a bright line between the

permitting issue and the gaming issue. We nevertheless cannot say

that the district court's distinction was "unreasonable or

obviously wrong" such that it would permit us to overlook the

Tribe's waiver. Narragansett admitted that an outcome, like the

district court's, was at least possible. See id.

The Tribe also suggests that the district court got it

obviously wrong, because IGRA comprehensively regulates the

construction, maintenance, and operation of Class II gaming

facilities, such that there is "no room for additional state

burdens in that area." Id. at 705 (citing Bracker, 448 U.S. at

148, a preemption case). IGRA requires the Chairman of the

National Indian Gaming Commission to "approve any tribal ordinance

or resolution concerning the conduct, or regulation of class II

gaming on the Indian lands within the tribe's jurisdiction if such

ordinance or resolution provides that . . . the construction and

maintenance of the gaming facility, and the operation of that

gaming is conducted in a manner which adequately protects the

environment and the public health and safety." 25 U.S.C.

§ 2710(b)(2)(E). In support of its argument, the Tribe cites cases

where courts discussed whether IGRA preempted state taxes. See,

e.g., Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928, 937 (8th

Cir. 2019) (holding a "South Dakota use tax on nonmember purchases

-33- of amenities at the Casino . . . preempted by federal law"), cert.

denied, 140 S. Ct. 2804 (2020); Flandreau Santee Sioux Tribe v.

Haeder, 938 F.3d 941, 945 (8th Cir. 2019) (holding that an "IGRA

provision does not expressly nor by plain implication preempt the

State's contractor excise tax, a tax which does not regulate or

interfere with the Tribe's design and completion of the

construction project, or its conduct of Class III gaming"); Video

Gaming Techs., Inc. v. Rogers Cnty. Bd. of Tax Roll Corr., 475

P.3d 824, 834 (Okla. 2019) (holding that the "ad valorem taxation

of gaming equipment here is preempted"), cert. denied, 141 S. Ct.

24 (2020). Whatever the import of these preemption cases, they

are not as compelling in the context of implied repeal. "The

rationale for encouraging preemption in the Indian context -- that

the federal government is a more trustworthy guardian of Indian

interests than the states -- has no relevance to a conflict between

two federal statutes," and, therefore, "[t]he doctrine of implied

repeal operates without special embellishment in the Indian law

context." Wampanoag I, 853 F.3d at 627 (quoting Narragansett, 19

F.3d at 704). In any event, we cannot say that the law is so clear

that § 2710(b)(2)(E) amounts to an implied repeal of the Settlement

Act to the extent the Tribe argues. Cf. Haeder, 938 F.3d at 945

("Other than requiring NIGC approval of a tribal ordinance stating

that Casino construction will adequately protect the environment

-34- and public health and safety, the Commission does not actively

regulate construction activity or prescribe what adequate

protection of public health and safety requires."); id. at 947

(Colloton, J., concurring in the judgment) ("There is no

comprehensive and pervasive federal regulatory scheme of casino

construction that precludes state taxation.").

Thus, we do not have the definite and firm conviction

that the district court's ruling was unreasonable and obviously

wrong required to constitute an exceptional circumstance. And

because this case does not qualify as one involving an exceptional

circumstance, we cannot look past the Tribe's waiver of the

permitting issue.

III. Closing Thoughts

All said, "[d]isposing of an appeal on technical or

procedural grounds rarely feels satisfying." Sparkle Hill, Inc.

v. Interstate Mat Corp., 788 F.3d 25, 30 (1st Cir. 2015). But

because the Tribe did not pursue the permitting issue in Wampanoag

I, though it could have, and because this case does not present

exceptional circumstances, we have no choice but to find the

permitting issue waived.

Before we go, however, we add just a few notes. Nothing

in this opinion necessarily precludes the filing of a motion under

Fed. R. Civ. P. 60(b)(5) or (6) should the Tribe conclude that it

-35- has a basis to maintain that the local regulations as applied by

the Town turn out to interfere with the integral activities of

gaming in a manner or to an extent not anticipated by the district

court. Nor do we express any view on whether any particular local

regulatory law that, as applied, effectively precludes a gaming

establishment is for that reason itself a "Gaming Law" as defined

by the district court. Third Am. Final J. 2–3, ECF No. 230

(defining "General Regulatory Laws" as excluding "Gaming Laws,"

which encompass any law that "prohibit[s]" gaming).

We also wish to highlight a sentiment expressed by the

district court. It explained that the Town may not enforce its

laws "in a nonneutral way in order to unduly burden or harass the

[T]ribe or to prevent them from opening the casino." The Tribe

has not waived a challenge to the state and local permitting

requirements should the Commonwealth or the Town treat the Tribe

in an arbitrary or unequal manner.10

With those avenues still open to the Tribe, we close

with this. The parties have been litigating this dispute since

2013, and "we do not mean to encourage the protagonists to litigate

ad infinitum." Narragansett, 19 F.3d at 706. "If cool heads and

10 The Town assures us that it has treated and will continue to treat the Tribe as it would anyone else. That said, it should be kept in mind that the Tribe does have a unique federal right to pursue gaming activities not afforded others.

-36- fair-minded thinking prevail," we may yet avoid a third round of

appeals between these parties. Id.

The district court's judgment is affirmed. Each side

shall bear its own costs.

-37-