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

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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