(Cite as: 2015 WL 854850 (D.Mass.))
United States District Court,
Commonwealth of MASSACHUSETTS, Plaintiff/CounterclaimDefendant,
The Aquinnah/Gay Head Community Association, Inc. (AGHCA) and Town of Aquinnah,
The WAMPANOAG TRIBE OF GAY HEAD (Aquinnah), the Wampanoag Tribal Council of Gay
Head, Inc., and the Aquinnah Wampanoag Gaming Corporation, Defendants/Counterclaim
Charlie Baker, in his official capacity as Governor, Commonwealth of
Massachusetts, et al., Third-Party Defendants.
Civil Action No. 13-13286-FDS.
Signed Feb. 27, 2015.
James L. Quarles, III, Felicia H. Ellsworth, Oramel H. Skinner, III, Wilmer,
Cutler, Pickering, Hale and Dorr, LLP, Boston, MA, Ronald H. Rappaport, Michael A.
Goldsmith, Reynolds Rappaport & Kaplan LLP, Edgartown, MA, for
Bryan F. Bertram, Carrie M. Benedon, Juliana Dehaan Rice, Office of Attorney
General Martha Coakley, Boston, MA, for Plaintiff/Counterclaim-Defendant.
John J. Duffy, Steptoe & Johnson LLP, Washington, DC, Lael Echo-Hawk, Garvey
Schubert Barer, Seattle, WA, Scott D. Crowell, Crowell Law Offices, Sedona, AZ,
Bruce A. Singal, Elizabeth J. McEvoy, Donoghue, Barrett & Singal, PC, Boston, MA,
for Defendants/Counterclaim Plaintiffs.
Carrie M. Benedon, Bryan F. Bertram, Juliana Dehaan Rice, Office of the Attorney
General Martha Coakley, Boston, MA, for Third-Party Defendants.
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
SAYLOR, District Judge.
*1 This lawsuit involves a dispute between the Commonwealth of Massachusetts
and a federally recognized Indian tribe concerning regulatory jurisdiction over
civil gaming on Indian lands on Martha's Vineyard. The Wampanoag Tribe of Gay Head
(Aquinnah) and related entities have taken steps to commence commercial gaming
operations on tribal lands without a license from the Commonwealth. The
Commonwealth contends that operating gaming facilities without such a license
would violate a 1983 settlement agreement that subjects the lands in question to
state civil and criminal jurisdiction (and thus subjects them to state laws
regulating gaming). Count 1 of the complaint alleges breach of contract, and Count
2 seeks a declaratory judgment.
The Commonwealth filed suit in state court on December 2, 2013. On December 30,
2013, the Tribe removed the action to this Court on the basis of federal-question
and supplemental jurisdiction. See 28 U.S.C. ss 1331, 1367. FN1 On August 6, 2014,
the Court granted motions to intervene by the Town of Aquinnah and the
Aquinnah/Gay Head Community Association ("AGHCA"). The Tribe has moved to dismiss
the AGHCA complaint on the basis of sovereign immunity and for failure to state a
claim upon which relief can be granted; it has further moved to dismiss all three
complaints (with leave to amend) for failure to join the United States as a
FN1. According to the Commonwealth, the Aquinnah Wampanoag Gaming
Corporation is a wholly-owned subsidiary of the Tribe or the Wampanoag
Tribal Council of Gay Head, Inc. According to defendants, the Wampanoag
Tribal Council of Gay Head, Inc., no longer exists. (Notice of Removal at 1
n. 1). For the sake of simplicity, the Court will refer to defendants
collectively as "the Tribe."
On October 24, 2014, the Tribe filed an amended answer that included a
counterclaim against the Commonwealth and counterclaims against three third-party
defendants (all of whom are officials of the Commonwealth). Plaintiff and
third-party defendants have moved to dismiss the counterclaims on the grounds of
sovereign immunity (as to the counterclaims against the Commonwealth) and failure
to state a claim upon which relief can be granted.
For the reasons stated below, the motions of the Tribe will be denied and the
motion of counterclaim-defendants will be granted in part and denied in part.
A. Factual Background
Unless otherwise noted, the facts are presented as stated in the complaint.
Historically, the western tip of Martha's Vineyard has been home to the
Wampanoag Tribe of Gay Head (or Aquinnah). In 1974, the Wampanoag Tribal Council
of Gay Head, Inc., sued the Town of Gay Head, asserting aboriginal property rights
to certain land within the town.FN2 In November 1983, the Commonwealth; the Town
of Gay Head; the Taxpayers' Association of Gay Head, Inc.; and the Wampanoag
Tribal Council of Gay Head, Inc., entered into a settlement agreement that they
termed a "Joint Memorandum of Understanding Concerning Settlement of the Gay Head,
Massachusetts Indian Land Claims" (the "Settlement Agreement"). The Town and the
Taxpayers' Association conveyed to the Wampanoag Tribal Council approximately 400
acres of land (the "Settlement Lands") to be held "in the same manner, and subject
to the same laws, as any other Massachusetts corporation." (Compl., Ex. A). The
Tribal Council relinquished all claims to other lands and waters in the
Commonwealth. The Settlement Agreement provided that "[u]nder no circumstances,
including any future recognition of the existence of an Indian tribe in the Town
of Gay Head, shall the civil or criminal jurisdiction of the Commonwealth of
Massachusetts ... over the settlement lands ... be impaired or otherwise altered"
and "no Indian tribe or band shall ever exercise sovereign jurisdiction" over
those lands. (Id.). The Bureau of Indian Affairs of the United States Department
of the Interior later took the Settlement Lands into trust.
FN2. In 1997, the Town of Gay Head changed its name to Aquinnah.
*2 In 1985, pursuant to the terms of the Joint Memorandum, the Massachusetts
Legislature enacted a statute implementing the Settlement Agreement.FN3 The
Settlement Agreement, however, required the approval of Congress to take effect.
FN3. See An Act to Implement the Settlement of the Gay Head Indian Land
Claims, Mass. Stat.1985, c. 277.
In 1987, before Congress passed the implementing statute, the Department of the
Interior officially recognized the Wampanoag Tribe of Gay Head as an Indian tribe
. See 52 Fed.Reg. 4193 (Feb. 10, 1987).
On August 18, 1987, Congress passed the act implementing the Settlement
Agreement. See Wampanoag Tribal Council of Gay Head, Inc., Indian Land Claims
Settlement Act, Pub.L. No. 100-95, codified at 25 U.S.C s 1771 et seq.
("Wampanoag Settlement Act"). The federal act stated that the Settlement Lands are
subject to the laws of the Commonwealth of Massachusetts "including those laws and
regulations which prohibit or regulate the conduct of bingo or any other game of
chance." 25 U.S.C. s 1771g.
In 1988, Congress enacted the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C.
s 2701 et seq. In part, the IGRA established a regulatory structure for gaming on
Indian lands and created the National Indian Gaming Commission ("NIGC").
Between 2011 and 2013, the Tribe passed and adopted tribal resolutions
instituting a gaming ordinance pursuant to the IGRA. On May 30, 2013, the Tribe
submitted an amendment to its gaming ordinance to the NIGC. On August 23, 2013,
the Department of the Interior's Office of the Solicitor sent a letter to the NIGC
opining that the Tribe had jurisdiction to operate a gaming facility on the
Settlement Lands. On August 29, 2013, the NIGC approved the Tribe's gaming
ordinance, "to the extent that it is consistent with the provisions of IGRA," by
operation of law.FN4 On October 25, 2013, the NIGC Office of General Counsel sent
a letter to the Tribe expressing the opinion that the Settlement Lands were
"eligible for gaming." Soon thereafter, the Tribe announced its intention to open
a gaming facility in a community center on those lands.
FN4. A gaming ordinance is automatically approved by NIGC, by operation of
law, if it does not act on the ordinance within 90 days. 25 U.S.C. s
Massachusetts law prohibits any entity from operating a gaming establishment
without a license issued by the Massachusetts Gaming Commission. See Mass. Gen.
Laws ch. 23K, ss 2, 9, 25. The Tribe has not obtained such a license nor complied
with the Massachusetts prerequisites for doing so.
B. Procedural History
On December 2, 2013, the Commonwealth filed a complaint with the Single Justice
of the Supreme Judicial Court for Suffolk County against the Tribe, the Wampanoag
Tribal Council of Gay Head, Inc., and the Aquinnah Wampanoag Gaming Corporation.
The complaint asserted a claim for breach of contract and requested a declaratory
judgment that the Settlement Agreement allowed the Commonwealth to prohibit the
Tribe from conducting gaming on the Settlement Lands. On December 30, 2013, the
Tribe removed the action to this Court on grounds of federal-question and
supplemental jurisdiction. On January 29, 2014, the Commonwealth moved to remand
the action to state court. The Court denied that motion on July 1, 2014.
*3 On July 10, 2014, both AGHCA and the Town filed motions to intervene. The
Court granted those motions on August 6, 2014. On August 27, 2014, the Tribe moved
to dismiss the AGHCA complaint on the grounds of sovereign immunity and failure to
state a claim upon which relief can be granted. On that same day, the Tribe
separately moved to dismiss all three complaints, with leave to amend, for failure
to join the United States, which it contends is a required party under
On October 24, 2014, the Tribe filed an amended answer to the complaint filed
by the Commonwealth. The amended answer included counterclaims against the
Commonwealth and claims against three third-party defendants, all of whom are
government officials of the Commonwealth sued in their official capacity. FN5 (For
the sake of simplicity, the Court will refer to those claims collectively as the
"counterclaims," and those defendants as "counterclaim-defendants").FN6 The
counterclaims seek declaratory and injunctive relief concerning the Commonwealth's
assertion of jurisdiction over gaming that occurs on the Tribe's trust lands. On
November 19, 2014, the Commonwealth and the third-party defendants moved to
dismiss the counterclaims.
FN5. The original counterclaims named Governor Deval Patrick, Attorney
General Martha Coakley, and Chairman of the Massachusetts Gaming Commission
Stephen Crosby as third-party defendants. Patrick and Coakley no longer
serve in the capacities listed, having been replaced by Governor Charlie
Baker and Attorney General Maura Healey. Accordingly, Governor Baker,
Attorney General Healey, and Crosby are the third-party defendants as the
case currently stands.
FN6. The proper means of bringing third-party defendants into a civil case
is through the use of a third-party complaint, not a counterclaim. See
Fed.R.Civ.P. 14. Because third-party defendants are all officials of the
Commonwealth, all parties have treated the Tribe's claims against them as
counterclaims under Rule 13 (even though third-party defendants are not
plaintiffs in this action). Regardless of whether the claims should
technically be considered counterclaims under Rule 13 or part of a
third-party complaint under Rule 14, the Court's ruling as to their
viability at this stage would be the same.
II. Legal Standard
On a motion to dismiss, the Court "must assume the truth of all well-plead[ed]
facts and give plaintiff the benefit of all reasonable inferences therefrom."
Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007) (citing
Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). To survive a motion to dismiss,
the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is,
"[f]actual allegations must be enough to raise a right to relief above the
speculative level, ... on the assumption that all the allegations in the complaint
are true (even if doubtful in fact)." Id. at 555 (citations omitted). "The
plausibility standard is not akin to a 'probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly,
550 U.S. at 556). Dismissal is appropriate if the facts as alleged do not "possess
enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 84 (1st Cir.2008) (alterations omitted) (internal
quotation marks omitted).
A. The Motion by the Tribe to Dismiss the AGHCA Complaint
The Tribe has moved to dismiss the complaint of intervenor AGHCA on
jurisdictional grounds and for failure to state a claim upon which relief can be
granted. More specifically, the Tribe contends that it possesses sovereign
immunity from suit and that its immunity has not been waived or congressionally
abrogated with respect to this action.FN7 The Tribe further contends that, if it
does not have immunity, the AGHCA complaint must be dismissed on the merits. Each
of those contentions is discussed below.
FN7. While the Tribe has not moved to dismiss the complaints filed by the
Commonwealth or the Town, it clarified in its motion to dismiss that it is
not yet conceding the issue of immunity with respect to those plaintiffs.
(Defs' Mem. at 3).
1. Sovereign Immunity
*4 "Indian tribes are 'domestic dependent nations' that exercise inherent
sovereign authority over their members and territories. Suits against Indian
tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or
congressional abrogation." Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)
(citations omitted). "[A] tribe's waiver must be clear" in order to renounce
tribal sovereign immunity. C & L Enterprises, Inc. v. Citizen Band Potawatomi
Indian Tribe of Oklahoma, 532 U.S. 411, 418, 121 S.Ct. 1589, 149 L.Ed.2d 623
(2001) (internal quotation marks omitted). Similarly, in order to abrogate tribal
immunity, "Congress must unequivocally express that purpose." Id. (internal
quotation marks omitted). The Tribe contends that there has been no waiver or
abrogation of its sovereign immunity and that the AGHCA complaint must therefore
AGHCA contends both that the Tribe has waived its immunity and that the
doctrine of issue preclusion (or collateral estoppel) prevents it from arguing
otherwise. Specifically, AGHCA contends that the Massachusetts Supreme Judicial
Court has previously determined that the Tribe waived its sovereign immunity with
respect to jurisdiction over its lands. See Building Inspector and Zoning Officer
of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 443 Mass. 1, 12-13,
818 N.E.2d 1040 (2004). According to AGHCA, that prior determination binds this
"[O]nce an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior litigation." Montana v.
United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). The
doctrine of issue preclusion prevents "parties from contesting matters that they
have had a full and fair opportunity to litigate," and "protects their adversaries
from the expense and vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing the possibility
of inconsistent decisions." Id. at 153-54.
The federal full-faith-and-credit statute, 28 U.S.C. s 1738, provides in
substance that "a judgment rendered in state court is entitled to the same
preclusive effect in federal court as it would be given within the state in which
it was rendered." In re Sonus Networks, Inc., Shareholder Derivative Litig., 499
F.3d 47, 56 (1st Cir.2007) (citing Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); see also U.S. Const. Art. IV
s 1. Accordingly, the preclusive effect of the prior judgment in Shellfish
Hatchery is determined according to Massachusetts law.
Under Massachusetts law, issue preclusion applies when:
(1) there was a final judgment on the merits in the prior adjudication; (2) the
party against whom preclusion is asserted was a party (or in privity with a
party) to the prior adjudication; and (3) the issue in the prior adjudication
was identical to the issue in the current adjudication. Additionally the issue
decided in the prior adjudication must have been essential to the earlier
*5 Kobrin v. Bd. of Registration in Med., 444 Mass. 837, 843, 832 N.E.2d 628
(2005). The question is whether, under that standard, Shellfish Hatchery precludes
further litigation of the waiver issue.
Shellfish Hatchery was an action to enforce town zoning laws on certain Tribe
lands (known as the Cook Lands). The SJC held that the Tribe had waived its
sovereign immunity with respect to the use of those lands. Id. at 2-3, 818 N.E.2d
1040. The source of the waiver, according to the court, was the 1983 Settlement
Agreement. Id. at 13, 818 N.E.2d 1040. The court specifically pointed to paragraph
three of the Settlement Agreement, in which the Tribe agreed to hold its land "in
the same manner, and subject to the same laws, as any other Massachusetts
corporation," as "clearly establish[ing] a waiver of sovereign immunity." Id. at
12, 13, 818 N.E.2d 1040.
The first requirement for issue preclusion is whether the prior decision
constitutes a "final judgment on the merits." There is no question that it does.
The Shellfish Hatchery decision was issued by the Massachusetts Supreme Judicial
Court after it granted an application for direct appellate review of the lower
court's ruling. Id. at 2, 818 N.E.2d 1040; see Sena v. Commonwealth, 417 Mass.
250, 260, 629 N.E.2d 986 (1994) ("We have implied that for a decision to be final
it must have been subject to appeal or actually reviewed on appeal."). Moreover,
the Tribe has not contested the finality of the decision.
The second requirement for issue preclusion is that the party against whom
preclusion is being asserted (here, the Tribe) must have been either a party to,
or in privity with a party to, the prior adjudication. Kobrin, 444 Mass. at 843,
832 N.E.2d 628. Privity exists "(1) where the nonparty substantially controlled
the previous litigation; (2) where the nonparty is a successor-in-interest to a
prior party; or (3) under the doctrine of virtual representation." Boston
Scientific Corp. v. Schneider (Europe) AG, 983 F.Supp. 245, 257 (D.Mass.1997)
(citations omitted). The question of privity "essentially reduces itself to an
inquiry whether the party against whom preclusion is asserted participated in the
prior proceeding, either himself or by a representative." Bourque v. Cope
Southport Assocs., LLC, 60 Mass.App.Ct. 271, 275, 800 N.E.2d 1077 (2004).
Officially, the two defendants in Shellfish Hatchery were the Wampanoag
Shellfish Hatchery Corporation and the Wampanoag Tribal Council of Gay Head. In
its initial answer in that litigation, defendants admitted "that the Hatchery is
controlled by the [ T]ribe," was "exercising delegated authority from the Tribe,"
and was "wholly owned and operated by the Wampanoag Tribe of Gay Head (Aquinnah)."
(Answer and Counterclaim at 1 P 2, 5 P 2, No. 0110924) (D.Mass. July 13, 2001)
(Woodlock, J.).FN8 That same document identified the Tribal Council as "a
federally recognized Indian Tribe (now known as Wampanoag Tribe of Gay Head
(Aquinnah) [) ]." (Id. at 5 P 1). AGHCA cited those prior admissions in its
memorandum in opposition to the motion to dismiss; the Tribe did not contest them
in its reply.
FN8. The Shellfish Hatchery litigation began in federal court before it was
remanded to state court on jurisdictional grounds. (See Memorandum and Order
of Sept. 30, 2002, No. 01-10924) (D.Mass.).
*6 On this record, it therefore appears that the Tribe is a
successor-in-interest to the Tribal Council and substantially controlled the
Shellfish Hatchery Corporation at the time of the Shellfish Hatchery litigation.
FN9 Accordingly, the Tribe is in privity with the parties to the prior suit and
would be bound by the prior judgment if the remaining requirements are met.
FN9. As noted, the Aquinnah Wampanoag Gaming Corporation is apparently a
wholly-owned subsidiary of the Wampanoag Tribe. The Wampanoag Tribal Council
apparently no longer exists; if it does, it has been a party to both this
litigation and the Shellfish Hatchery litigation.
The third requirement for issue preclusion is that "the issue in the prior
adjudication [must have been] identical to the issue in the current adjudication."
Kobrin, 444 Mass. at 843, 832 N.E.2d 628. The precise holding of Shellfish
Hatchery was that "the Tribe waived its sovereign immunity as to land use on the
Cook Lands," not all the Settlement Lands. The land on which the Tribe intends to
conduct gaming activities is not part of the Cook Lands. Nonetheless, AGHCA
contends that the Shellfish Hatchery court determined the issue with respect to
other Tribe lands as well. It notes that the language in the Settlement Agreement
that the court cited as effectuating a waiver applies not only to the Cook Lands,
but to "any other land [the Tribe] may acquire." (Settlement Agreement at P 3).
Indeed, the court expressed its finding of a waiver in broader terms than the
holding would imply: "[T]he tribe expressly memorialized a waiver of its sovereign
immunity, with respect to municipal zoning enforcement, by agreeing, in paragraph
three of the settlement agreement, to hold its land, including the Cook Lands, 'in
the same manner, and subject to the same laws, as any other Massachusetts
corporation.' " Shellfish Hatchery, 443 Mass. at 13, 818 N.E.2d 1040 (quoting the
Settlement Agreement). Reading the court's opinion as a whole, it is clear that
the court found a waiver of immunity with respect to the use of not just the Cook
Lands, but all of the Tribe's land. It is therefore fair to say that this issue is
identical to that currently before the Court.FN10
FN10. If this Court were to rule to the contrary-that the Tribe did not
waive its sovereign immunity as to all of its lands-it would necessarily be
ruling that the Tribe did not waive its sovereign immunity as to the Cook
Lands, which would contradict the ruling of the SJC.
The final requirement for issue preclusion is that "the issue decided in the
prior adjudication must have been essential to the earlier judgment." Kobrin, 444
Mass. at 843, 832 N.E.2d 628. The issue need not be "strictly essential," but it
must have been "treated as essential to the prior case by the court and the party
to be bound. Stated another way, it is necessary that [the court's] finding[ ] be
the product of full litigation and careful decision." Comm. of Dep't of Employment
& Training v. Dugan, 428 Mass. 138, 144, 697 N.E.2d 533 (1998) (quoting Home
Owners Fed. Savings & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass.
448, 455, 238 N.E.2d 55 (1968) (emphasis in original)).
Although the Shellfish Hatchery court clearly found that the Tribe had waived
its immunity with respect to all of its lands, arguably the only finding that was
"strictly essential" to its judgment was that of a waiver with respect to the Cook
Lands. Its finding that the Tribe had waived its immunity with respect to other
lands was perhaps not essential in a strict sense; if the court had held that the
Tribe had waived its immunity with respect to only the Cook Lands, it still would
have allowed the zoning enforcement action against the Cook Lands to go forward.
*7 The applicability of issue preclusion thus appears to turn on whether the
Shellfish Hatchery court "treated as essential" its determination that the Tribe
had waived its sovereign immunity with respect to all of its lands-that is,
whether that determination was "the product of full litigation and careful
decision." See Northwestern Fire & Marine, 354 Mass. at 455, 238 N.E.2d 55.
The finding of the SJC appears to have been the product of a "careful
decision." The SJC did not begin by analyzing whether there was a waiver
specifically as to the Cook Lands and then note in passing that the analysis would
apply equally to other lands; instead, it first analyzed the Settlement Agreement
and found a broad waiver, and then applied that finding to the specific subset of
land at issue. The statement that the Tribe waived its sovereign immunity as to
all of its lands represents the court's central conclusion (although not strictly
its ultimate holding). Shellfish Hatchery, 443 Mass. at 13, 818 N.E.2d 1040 ("More
specifically, the Tribe expressly memorialized a waiver of its sovereign immunity
... by agreeing ... to hold its land, including the Cook Lands, 'in the same
manner, and subject to the same laws, as any other Massachusetts corporation.' ").
That finding was also the product of "full litigation"-that is, the Tribe had a
"full and fair opportunity to litigate the issue[ ]." See Alba v. Raytheon Co.,
441 Mass. 836, 844, 809 N.E.2d 516 (2004).FN11 The finding of the SJC was thus
"essential" to the prior case, and treated as such by the court and the parties.
FN11. Arguably, the tribal defendants in Shellfish Hatchery had no incentive
to distinguish between the Cook Lands and the rest of their lands, because
only the Cook Lands were at issue in that litigation. If a determination as
to other lands had been "strictly essential" to the judgment, the Tribe
conceivably might have advanced arguments more specifically tailored to
those lands. It has not, however, identified any such arguments here, and it
is certainly doubtful that any such arguments would have convinced the
court, in light of its reasoning.
Thus, the requirements for issue preclusion have been met, and this Court must
give full faith and credit to the decision of the Supreme Judicial Court.
The Court further notes that even if the broad finding of the Shellfish
Hatchery court is for some reason not preclusive, some of its narrower findings
undoubtedly are. For example, in order to reach its decision, the SJC necessarily
must have determined that the Settlement Agreement was enforceable against the
parties and that the Tribal Council was capable of waiving the sovereign immunity
of the Tribe even though it had not yet been federally recognized. Those kinds of
"subsidiary" findings may give rise to issue preclusion. See Alba, 441 Mass. at
844, 809 N.E.2d 516; Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30-31 (1st
Cir.1994) ("An issue may be 'actually' decided even if it is not explicitly
decided, for it may have constituted, logically or practically, a necessary
component of the decision reached in the prior litigation."). This Court is
therefore precluded from contravening those findings. Moreover, the Shellfish
Hatchery court conclusively determined that the Tribe had waived its sovereign
immunity with respect to the Cook Lands as a result of the "in the same manner"
language in the Settlement Agreement. Thus, this Court is precluded from finding
no waiver at all in the Settlement Agreement.
At a minimum, therefore, the preclusive effect of those three subsidiary
findings-(1) that the settlement agreement is enforceable, (2) that the Tribal
Council had the power to waive the Tribe's sovereign immunity, and (3) that the
"in the same manner" language waived the Tribe's immunity with respect to at least
the Cook Lands-compels the conclusion that the Tribe's waiver applied to all of
its lands. The language in the Settlement Agreement applies equally to the
remainder of the Tribe's lands as it does to the Cook Lands; there is no apparent
basis on which to distinguish the Cook Lands from the lands targeted for gaming.
By that reasoning, therefore, the Tribe waived its sovereign immunity with respect
to all of its lands.FN12
FN12. The decision of the Massachusetts Appeals Court in Kitras v. Town of
Aquinnah, 64 Mass.App.Ct. 285, 833 N.E.2d 157 (2005), cited by the AGHCA,
provides additional support. In Kitras, the court relied on Shellfish
Hatchery in finding that the Tribe could properly be joined to a suit aimed
at resolving easement claims that could burden some of its lands. Id. at
296-98, 833 N.E.2d 157. It specifically stated: "Although Shellfish Hatchery
Corp. dealt with the Cook Lands and involved a zoning dispute (rather than
the easement rights here at issue) we see little reason to suppose the
court's rationale would not control the present proceedings." Id.
*8 The Tribe makes three additional arguments concerning sovereign immunity and
issue preclusion that merit discussion. First, the Tribe contends that the usual
rules of issue preclusion do not apply to sovereign governments in the same way as
they do to private parties. It is true that "the Government may not be estopped on
the same terms as any other litigant." Heckler v. Comm'y Health Servs. of Crawford
County, Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 81 L.Ed.2d 42. However, the
rationale for that rule, as it applies to the United States government, is to
protect "the public interest in ensuring that the Government can enforce the law
free from estoppel." Id. at 60-61. There is no obvious reason to apply that
principle to avoid the application of issue preclusion to an Indian tribe, which
does not enforce laws in service of the general public. Indeed, the Tribe has not
put forth a persuasive argument to the contrary.
Second, the Tribe contends that Shellfish Hatchery applies only to suits
against the Tribe by governmental bodies, and not private parties like the AGHCA.
But the AGHCA (and another private party, UMB Bank) had intervened in the
Shellfish Hatchery litigation, just as it has intervened in this one. The SJC's
opinion did not distinguish the claims of those parties in any way. Furthermore,
its reasoning applies equally to private parties. The court specifically cited the
language in the Settlement Agreement that the Tribe would hold land "in the same
manner, and subject to the same laws, as any other Massachusetts corporation" and
noted that that status is one "permitting the Tribe to sue or be sued." Shellfish
Hatchery, 443 Mass. at 13, 818 N.E.2d 1040 (quoting the Settlement Agreement); see
Mass. Gen. Laws ch. 155 s 6 ("A corporation may ... sue and be sued....").
Massachusetts corporations can be sued by private parties as well as governmental
entities; there is therefore no reason to conclude that the holding applies
differently as to the claims of private parties than as to the claims of
Finally, the Tribe relies heavily on an earlier decision of this Court that (it
contends) directly contradicts the decision in Shellfish Hatchery. See Wampanoag
Tribe of Gay Head (Aquinnah) v. Massachusetts Comm'n Against Discrimination, 63
F.Supp.2d 119 (D.Mass.1999) (Lindsay, J.). In the MCAD case, the Massachusetts
Commission Against Discrimination sought to enforce Massachusetts employment
discrimination law against the Tribe. Id. at 122. The Court ruled that the Tribe
was immune from such enforcement. Id. at 125.
However, MCAD has little bearing on this case, and it certainly does not
contradict Shellfish Hatchery. First, it predates Shellfish Hatchery. FN13 Second,
the waiver found by the Shellfish Hatchery court had to do specifically with land
use; MCAD involved alleged employment discrimination. Indeed, MCAD mentioned the
Settlement Agreement only cursorily and did not even examine it for possible
waiver. Id. at 121, 123, 818 N.E.2d 1040. Here, the Commonwealth and intervenors
seek to prevent the Tribe from operating an unlicensed gaming facility on its
land. For that reason, the Shellfish Hatchery determination that the settlement
agreement contains a waiver as to the judicial enforcement of land-use laws is far
more relevant to this analysis than is the MCAD determination that the Tribe was
immune from judicial enforcement of employment-discrimination law.
FN13. Under the later-in-time rule of the Restatement (Second) of Judgments,
the Shellfish Hatchery judgment (issued five years after MCAD ) would
control if it were inconsistent with the MCAD judgment. See RESTATEMENT
(SECOND) OF JUDGMENTS s 15 (1982) ("When in two actions inconsistent final
judgments are rendered, it is the later, not the earlier, judgment that is
accorded conclusive effect in a third action under the rules of res
*9 Accordingly, the Tribe's motion to dismiss on the basis of sovereign
immunity will be denied.
2. Failure to State a Claim
The Tribe further contends that the AGCHA complaint should be dismissed under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be
granted. It contends that the Settlement Agreement, which serves as the basis for
the AGHCA's breach of contract claim, is not presently binding upon the Tribe,
because (1) the agreement terminated in 1985 and (2) the Tribal Council did not
have the power to bind the Tribe.
Both of those contentions are precluded by Shellfish Hatchery. In order to make
its finding on waiver, the court in Shellfish Hatchery necessarily must have
determined that the Settlement Agreement was both enforceable (that is, it did not
expire in 1985) and binding upon the Tribe. Those subsidiary findings have
preclusive effect on this proceeding. See Alba, 441 Mass. 836, 844, 809 N.E.2d
516; Grella, 42 F.3d 26, 30-31. The Court therefore cannot conclude that the AGHCA
complaint fails to state a claim upon which relief can be granted.
Accordingly, the Tribe's motion to dismiss for failure to state a claim will be
B. The Tribe's Motion to Dismiss for Failure to Join a Required Party
The Tribe has further moved to dismiss the claims of all three plaintiffs, with
leave to amend, for failure to join a required party under Rule 19 of the Federal
Rules of Civil Procedure. Rule 19 establishes a two-step inquiry for determining
whether an action should be dismissed for failure to join a required party. First,
the Court must determine whether an absent party is a person "to be joined if
feasible" under Rule 19(a)-in other words, whether the absent party is "required."
Fed.R.Civ.P. 19(a)(1). A party is "required" under Rule 19(a)(1) if:
(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person's absence may
(i) as a practical matter impair or impede the person's ability to protect the
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
If the Court concludes that the absent party is "required" and that joinder is
not feasible, then it must determine "whether, in equity and good conscience, the
action should proceed among the existing parties, or[, alternatively, whether the
action] should be dismissed." Fed.R.Civ.P. 19(b).FN14 See also Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 19
L.Ed.2d 936 (1968) ("The decision whether to dismiss (i.e., the decision whether
the person missing is 'indispensable') must be based on factors varying with the
different cases, some such factors being substantive, some procedural, some
compelling by themselves, and some subject to balancing against opposing
FN14. Prior to 2007, Rule 19(b) used the term "indispensable" to describe a
party whose absence required a dismissal. The 2007 amendment to the rule
explained that the term had simply been used "to express a conclusion
reached by applying the tests of Rule 19(b)" and that it was being
"discarded as redundant." Fed.R.Civ.P. 19 advisory committee's note.
*10 Here, the Tribe has invoked Rule 19 based on the absence of the United
States from this litigation. It contends that (1) the United States, as the
trustee of the tribal lands in question, has a jurisdictional claim over the lands
and thus a legal interest in asserting its jurisdiction to the exclusion of other
sovereigns (such as the Commonwealth and the Town); and (2) that the NIGC (an arm
of the United States government) has an interest in enforcing its approval of the
Tribe's gaming ordinance against any restrictions that plaintiffs may try to
impose on the Tribe's gaming activities. The Tribe contends that the United States
is a required party that can feasibly be joined by plaintiffs. It therefore seeks
dismissal of all three complaints, with leave to amend to join the United States.
FN15. The Tribe's memorandum in support of its motion equivocates as to
which of the plaintiffs should be required to join the United States as a
defendant. It first asks the Court to "dismiss each [c]omplaint and grant
each party leave to amend in order to join the United States." (Defs' Mem.
at 2). At another point, however, it appears to indicate that only the
government plaintiffs should be required to join the United States. (See id.
at 3, 818 N.E.2d 1040 ("[T]he Court should grant the Tribe's Motion under
Rule 19 with leave to amend the Commonwealth's and Town's Complaint(s) to
join the NIGC as a party-defendant.")). Because the Court finds that joinder
is not required, it does not resolve this ambiguity.
As detailed above, Rule 19(a) provides that a party is "required" if any of
three circumstances is met. The Court will consider each of the three in turn.
1. Whether the Court Can Accord Complete Relief Among the Parties
The Tribe contends that neither it nor plaintiffs can be accorded complete
relief without joinder of the United States. See Fed.R.Civ.P. 19(a)(1)(A). More
specifically, it contends that a decision by this Court in its favor would not
accord it complete relief, because plaintiffs could "avail themselves of a second
bite at the apple by filing an APA action against NIGC challenging its approval of
the Tribe's site-specific gaming ordinance." (Defs' Mem. at 7). And it contends
that a decision in favor of plaintiffs would not accord them complete relief, as
such a decision could subject the Commonwealth or the Town to litigation brought
by the United States for encroachment upon its jurisdiction. (Id.).
Rule 19(a) (1)(A), however, "is concerned only with those who are already
parties." MasterCard Intern. Inc. v. Visa Intern. Serv. Ass'n, Inc., 471 F.3d 377,
385 (2d Cir.2006); see Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705
(3d Cir.1996) ("Completeness is determined on the basis of those persons who are
already parties, and not as between a party and the absent person whose joinder is
sought.") That is true even where "further litigation ... is inevitable."
MasterCard Intern., 471 F.3d at 385; see Angst, 77 F.3d at 705 ("The possibility
that the successful party to the original litigation might have to defend against
a subsequent suit by the receiver does not make the receiver a necessary party to
The Court can accord complete relief among the parties currently involved in
this case with respect to the claims at issue. The four parties (counting the
Tribe as one) represent the four signatories to the Settlement Agreement. A
judgment as to the rights of the parties under the agreement will bind all four
parties and resolve the current dispute. Accordingly, no additional parties are
required on the basis of Rule 19(a)(1)(A).
2. Whether the United States Claims an Interest That May Be Impaired or Impeded by
a Judgment in Its Absence
*11 All parties appear to agree that the United States claims at least some
level of interest in this litigation. As the Tribe notes, the United States holds
legal title to the Settlement Lands as trustee for the Tribe. More generally, the
very existence of legislation such as the IGRA and bodies such as the NIGC make
clear that the federal government maintains a strong interest in overseeing Indian
gaming activities. Further, the specific involvement of the NIGC and the
Department of the Interior in this dispute, if not this case, confirms that the
United States "claims an interest" in the matter.
The key question is whether disposing of this action in the absence of the
United States is likely to "impair or impede [its] ability to protect [whatever]
interest" that it does claim. Fed.R.Civ.P. 19(a)(1)(B)(i). Plaintiffs contend that
the risk of unduly impairing the interest of the United States is low, because its
interest is (1) apparently not strong enough to induce it to intervene and (2)
substantially similar to that of the Tribe, such that the Tribe will be an
A party's decision not to intervene in litigation can be relevant to a
determination as to whether that litigation will "impair or impede" the party's
ability to protect its own interests. See United States v. Sabine Shell, Inc., 674
F.2d 480, 483 (5th Cir.1982) ("Furthermore, the property owners themselves,
patently aware of this litigation, never intervened either at the district or
appellate court level. Presumably the property owners do not believe that the
disposition of this suit will 'impair or impede' their ability to protect their
interests."); Burger King Corp. v. Am. Nat. Bank & Trust Co. of Chicago, 119
F.R.D. 672, 678 (N.D.Ill.1988) ("Courts frequently consider the refusal of an
absent party to seek intervention as a factor mitigating against the necessity of
joining him pursuant to Rule 19(a)"). However, at least one court has held that
"where intervention would require the absent party to waive sovereign immunity," a
failure to intervene is irrelevant to a determination as to the prejudice caused
by a judgment to that absent party. Kickapoo Tribe of Indians of Kickapoo
Reservation in Kansas v. Babbitt, 43 F.3d 1491, 1498 (D.C.Cir.1995).FN16
FN16. Although an assessment of prejudice (under Rule 19(b)) is not
identical to an assessment as to whether a party's interest would be
"impaired or impeded" by a judgment (under Rule 19(a)), the two analyses are
sufficiently analogous for the cited proposition to be relevant to both.
Plaintiffs contend that the apparent decision of the United States not to
intervene in this litigation should be considered strong evidence that its
interests would not be substantially impeded as a result of its absence. They
contend that the United States is a sophisticated party that exercises "discretion
as to where and how it litigates" and that if it "believes that its interests are
in danger, it can move to intervene." (Pl. Opp. at 14, 15).
That factor, while entitled to substantial weight, is not conclusive. As the
Tribe notes, the reason behind the failure to intervene on the part of the United
States is not known. The Court cannot conclude that the United States has
knowingly chosen not to intervene, after a determination that its interests will
not be impeded in its absence, without some degree of speculation. Moreover, the
United States may enjoy sovereign immunity with respect to suits relating to trust
lands. See, e.g., United States v. Mitchell, 445 U.S. 535, 537-38, 100 S.Ct. 1349,
63 L.Ed.2d 607 (1980). In order to intervene, it presumably would need to waive
its immunity. Where intervention would require an absent party to waive sovereign
immunity, the inference that it does not have a substantial interest in the
litigation may not be well-founded. See Kickapoo Tribe, 43 F.3d at 1498.
*12 "If an absent party's interests are the same as those of an existing party,
and the existing party will adequately protect those interests, this bears on
whether the absent party's interest will be impaired by its absence from the
litigation." Tell v. Trustees of Dartmouth College, 145 F.3d 417, 419 (1998).
However, "without a perfect identi[t]y of interests, a court must be very cautious
in concluding that a litigant will serve as a proxy for an absent party." Id.
(citing 4 R.D. FREER, MOORE'S FEDERAL PRACTICE s 19.03 [f], at 19-56 to 19-57
The Tribe's interests do appear to align closely with those of the United
States. The United States would presumably support the Tribe's position in all
respects. To the extent that the United States has interests in protecting tribal
lands, in preserving tribal sovereignty and tribal rights, and in upholding the
jurisdiction of the NIGC and the integrity of its decision, those interests appear
to be essentially identical to those of the Tribe. It is difficult to see how
those interests might be likely to diverge, at least in the present context.
Nonetheless, the interests of the two parties may not be perfectly identical.
In particular, the United States might take a broader viewpoint than that of the
Tribe, which presumably will be focused solely on what it perceives are the
protection of its own rights and prevailing in the case at hand. Thus, the United
States may have an interest in upholding the federal regulatory scheme concerning
Indian gaming, or ensuring that the law is properly interpreted. FN17
FN17. The Indian Gaming Regulatory Act "does not unambiguously impose upon
the United States the duty to ensure that Indian gaming continue under any
circumstances." Pueblo of Santa Ana v. Kelly, 932 F.Supp. 1284, 1298
(D.N.M.1996). By contrast, the goal of the Tribe in this litigation might be
to ensure exactly that.
The critical question, though, is the extent to which those interests of the
United States that are not represented by the Tribe may be "impaired or impeded"
as a result of its absence from the litigation. Presumably, the United States
always has an interest in ensuring that federal law is properly interpreted and
enforced. While that interest is important, and certainly could be impacted by the
decision in this case, such an interest may exist in every dispute involving an
Indian tribe (or, for that matter, federal law). The federal government cannot be
a required party in all such suits. Moreover, the effect of a judgment must be
"direct and immediate" in order to impede an absent party's ability to protect its
rights sufficiently to trigger Rule 19. See Janney Montgomery Scott, Inc. v.
Shepard Niles, Inc., 11 F.3d 399, 407 (3d Cir.1993). If such an effect is likely
here, it is not obvious, at least based on present record. The more "direct and
immediate" governmental interest at stake in this litigation-protection of the
Tribe's land-use rights-is an interest that the United States appears to share
with the Tribe. The Tribe is clearly an adequate representative with respect to
this interest. Therefore, the ability of the United States to protect its
interests is not likely to be "impaired or impeded" by a judgment in its absence.
3. Whether Disposing of the Action in the Absence of the United States May Subject
a Party to a Substantial Risk of Inconsistent Obligations
*13 Pursuant to Rule 19(a)(1)(B)(ii), an absent party is a "required" party if
it "claims an interest relating to the subject of the action and is so situated
that disposing of the action in the [party's] absence may ... leave an existing
party subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest." Fed.R.Civ.P. 19(a)(1)(B)(ii).
The Tribe contends that a decision in plaintiffs' favor in the absence of the
United States would yield such a result. Such a decision would subject the Tribe
to regulation under Massachusetts state law, but it would not bind the NIGC;
consequently, the Tribe would remain subject to federal law as well. According to
the Tribe, it would be placed in an "untenable" "Catch-22" in which "[p]roceeding
under State law would require that the Tribe violate federal law; proceeding under
federal law would require that the Tribe violate State law." (Defs' Mem. at 10).
It is unclear how the Tribe would be "required" to violate either state or
federal law by a ruling in favor of the Commonwealth. Applying for a state gaming
license would not necessarily violate federal law; in our federal system, parties
must often comply with the regulations of multiple sovereigns in order to engage
in certain activities.FN18 While it is conceivable that the Tribe's obligations
under federal and state law could conflict, the Tribe has not shown that there is
a real possibility, much less a "substantial risk," that that would occur.
Moreover, the Tribe is under no obligation to operate a gaming facility; if
applying for a state gaming license would somehow violate federal law, the Tribe
has the option to engage in no gaming at all. FN19
FN18. For example, a particular land development activity might require both
federal and state environmental permits. If the federal government issues
such a permit, but the state government does not, the landowner is not faced
with "inconsistent" obligations; he simply cannot undertake the activity
unless and until he receives the required state permit.
FN19. Even if compliance with state law somehow creates a conflict with a
federal obligation, it is unlikely that the NIGC would bring an enforcement
action against the Tribe for complying with a decision of this Court.
In sum, the absence of the United States will not prevent this Court from
according complete relief among the parties, and the United States is not situated
such that its absence would either (1) substantially impair its ability to protect
its interests or (2) create a substantial risk that an existing party will be
subject to inconsistent obligations in the future.
Accordingly, the United States is not a required party under Rule 19, and the
Tribe's motion to dismiss for failure to join a necessary party will be denied.
C. Motion to Dismiss the Counterclaims
The Tribe has filed counterclaims against the Commonwealth and three
third-party defendants-the Governor and Attorney General of the Commonwealth and
the Chairman of the Massachusetts Gaming Commission. The counterclaims consist of
two claims for a declaratory judgment and one for injunctive relief.
The counterclaim-defendants contend that the counterclaims should be dismissed,
in whole or in part, on three grounds: (1) sovereign immunity bars all claims
against the Commonwealth; (2) the counterclaims against the individual third-party
defendants are not cognizable under Ex Parte Young; and (3) the claim for
injunctive relief fails to state a claim against all defendants.
1. Sovereign Immunity of the Commonwealth
*14 The Eleventh Amendment to the United States Constitution bars lawsuits in
federal courts against nonconsenting states. Rosie D. ex rel. John D. v. Swift,
310 F.3d 230, 234 (1st Cir.2002); see Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ("The ultimate guarantee
of the Eleventh Amendment is that nonconsenting States may not be sued by private
individuals in federal court."). A waiver by a state of sovereign immunity in its
own courts does not constitute a waiver of immunity in federal courts. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 9, 104 S.Ct. 900, 79 L.Ed.2d
A state that files a federal complaint or removes a case to federal court has
likely waived its immunity, at least in part. See Lapides v. Bd. of Regents of
Univ. System of Georgia, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)
(removal); Skelton v. Henry, 390 F.3d 614, 618 (8th Cir.2004) (filing a federal
complaint). By contrast, "a State which is sued in federal court does not waive
the Eleventh Amendment simply by appearing and defending on the merits." Wisconsin
Dept. of Corrections v. Schacht, 524 U.S. 381, 393, 118 S.Ct. 2047, 141 L.Ed.2d
364 (1998) (Kennedy, J., concurring); United States v. Metropolitan St. Louis
Sewer Dist., 578 F.3d 722, 725 (8th Cir.2009) ("[A] state does not waive its
immunity by entering a general appearance or by defending a case in federal court
so long as it asserts its Eleventh Amendment sovereign immunity defense in a
Where a state plaintiff voluntarily submits to federal-court jurisdiction-for
example, by filing a federal complaint-the state has "made itself a party to the
litigation to the full extent required for its complete determination." Clark v.
Barnard, 108 U.S. 436, 448, 2 S.Ct. 878, 27 L.Ed. 780 (1883). However, "federal
courts have consistently held that a state plaintiff does not waive its sovereign
immunity with respect to all plausible counterclaims." Woelffer v. Happy States
of Am., Inc., 626 F.Supp. 499, 502 (N.D.Ill.1985). Such a counterclaim is
cognizable only if it "arises from the same event underlying the state's cause of
action, and only if the claimant asserts his or her claim defensively by way of
recoupment to defeat or diminish the state's recovery." In re Dep't of Energy
Stripper Well Exemption Litig., 956 F.2d 282, 285 (Temp.Emer.Ct.App.1992). The
counterclaim is not cognizable if it is "for the purpose of obtaining an
affirmative judgment against the State." Woelffer, 626 F.Supp. at 502.
Here, the Commonwealth contends that it has not waived its sovereign immunity
to suit in federal court. It initially filed this action in Massachusetts state
court; only after the Tribe removed the action did the Commonwealth appear in
federal court. Moreover, the Commonwealth did not consent to the jurisdiction of
this Court, instead moving to remand the case back to state court. Although it is
the plaintiff in this action, its posture with respect to the forum is similar to
that of a defendant; it is not in federal court of its own volition. If a state
that appears and defends in federal court has not waived its immunity, it stands
to reason that a state in the Commonwealth's current position has also not waived
its immunity. See Metropolitan St. Louis Sewer Dist., 578 F.3d at 725.
*15 Even if the Commonwealth were to be treated as having voluntarily invoked
the jurisdiction of this Court, at least one of the Tribe's counterclaims would
not be cognizable. The Tribe's request for injunctive relief-seeking to enjoin
counterclaim-defendants from interfering with gaming activities that occur on the
Tribe's lands-represents an effort to "obtain [ ] an affirmative judgement against
the [Commonwealth]." Woelffer, 626 F.Supp. at 502. It is therefore "not
sufficiently equivalent to a recoupment or set-off to fall within the narrow
exception to sovereign immunity recognized by the courts." Id. at 503 (finding
that a counterclaim for injunctive relief was not cognizable against a state
plaintiff that had requested only declaratory relief).
The Tribe's requests for a declaratory judgment arguably rest on a different
footing. The Tribe has asked this Court to declare (1) that Congress abrogated the
Commonwealth's jurisdiction over the Tribe's lands in enacting the IGRA and (2)
that the NIGC's approval of the gaming ordinance preempted state law. The
operative questions are whether those counterclaims "arise[ ] from the same event
underlying the state's cause of action" and whether they are asserted "defensively
by way of recoupment to defeat or diminish the state's recovery." See Energy
Stripper Well, 956 F.2d at 285.
The Commonwealth contends that the Tribe's requests for a declaratory judgment
go far beyond the relief sought by the Commonwealth, in that they "request that
this Court rule on the validity and intent of federal action" and "arise[ ] out of
an entirely separate federal process in which the Commonwealth had no
involvement." (Counterclaim-Defendants' Mem. at 5). While a state plaintiff may
impliedly consent to some defensive counterclaims, it "does not thereby consent to
an affirmative judgment on a counterclaim." In re Greenstreet, Inc., 209 F.2d 660,
664 (7th Cir.1954). A declaration as to the abrogation effect of the IGRA or the
preemption effect of the gaming ordinance might qualify as an "affirmative
judgment," at least as compared to a narrow declaration that the Tribe is not
subject to the jurisdiction of the Commonwealth.
However, in deciding whether plaintiff has jurisdiction over the Tribe's lands
under the Settlement Agreement, this Court must necessarily determine whether any
federal law has abrogated or preempted that jurisdiction. For that reason,
adjudication of plaintiff's declaratory-judgment request will necessarily require
analysis and application of federal Indian gaming law, including the IGRA and the
NIGC process. In that respect, the Tribe's requests for declaratory relief are no
broader than those of the Commonwealth. They might, therefore, qualify as
defensive counterclaims that would ordinarily be cognizable against a state
Again, however, the Commonwealth is not in the position of an ordinary state
plaintiff. It has not made a "voluntary submission" to the jurisdiction of this
Court. See Woelffer, 626 F.Supp. at 502 (quoting Clark, 108 U.S. at 447). It
brought this action in state court and sought remand once the action was removed
to federal court. It has not taken any action that could be construed as a waiver
of sovereign immunity, either express or implied. Therefore, the Tribe's
declaratory-judgment counterclaims are not cognizable.
*16 The Tribe contends that if it is held to have waived its sovereign immunity
in the Settlement Agreement, then the Commonwealth must also have waived its
sovereign immunity in that same document. But the Tribe's potential waiver of
immunity is tied to specific language within the Settlement Agreement that
conditioned its receipt of the Settlement Lands. The Settlement Agreement does not
contain any similar language relating to the Commonwealth. Moreover, this Court's
determination that the Tribe waived its sovereign immunity is partially based on
the issue-preclusive effect of the Massachusetts Supreme Judicial Court's decision
in Shellfish Hatchery. No such consideration applies to an analysis of the
Commonwealth's sovereign immunity.
Finally, it is important to note that no inequity is likely to result should
the Tribe's counterclaims be dismissed. As a general rule, defendants are required
to state as a counterclaim any claim that "arises out of the same transaction or
occurrence that is the subject matter of the [plaintiff's] claim." Fed.R.Civ.P.
13(a). A defendant who neglects to follow this "compulsory counterclaim" rule
could be barred from bringing the claim in a later proceeding. Baker v. Gold Seal
Liquors, Inc., 417 U.S. 467, 469 n. 1, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974) ("A
counterclaim which is compulsory but is not brought is thereafter barred."). Here,
however, the Court will necessarily rule on the issues raised by the Tribe's
counterclaims-the effect of both the IGRA and the issuance of the gaming ordinance
by the NIGC will be considered in conjunction with plaintiff's claims. Thus, the
Tribe can obtain the essential relief it seeks even without a direct ruling on its
declaratory-judgment claims. See Williams v. Secretary of Exec. Office of Human
Servs., 414 Mass. 551, 570, 609 N.E.2d 447 (1993) ("In declaratory judgment
actions, even where relief is denied, the rights of the parties must be
Accordingly, the Tribe's counterclaims against the Commonwealth will be
dismissed on the basis of sovereign immunity.
2. Sovereign Immunity of Third-Party Defendants
The Tribe has also asserted its counterclaims against three individual
third-party defendants: the Governor, the Attorney General of the Commonwealth,
and the Chairman of the Massachusetts Gaming Commission. All three were sued in
their official capacity.
State officials enjoy limited sovereign immunity to suit in federal court, but
can be sued in their official capacity in federal court under some circumstances.
See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under the Ex
Parte Young doctrine, individuals can sue state officials only for "prospective
injunctive relief." Rosie D., 310 F.3d at 234. The doctrine "does not permit
judgments against state officers declaring that they violated federal law in the
past" or any other "claims for retrospective relief." Puerto Rico Aqueduct and
Sewer Authority v. Metcalf & Eddy, 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d
605 (1993); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371
(1985). "In determining whether the doctrine of Ex Parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a straightforward inquiry into
whether the complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective." Virginia Office for Protection & Advocacy
v. Stewart, --- U.S. ----, ----, 131 S.Ct. 1632, 1639, 179 L.Ed.2d 675 (2011).
*17 Here, counterclaim-defendants do not dispute that the counterclaims request
relief that is "properly characterized as prospective." See id. Instead, they
contend that the Tribe has not "allege[d] an ongoing violation of federal law."
The Tribe's amended answer specifically alleges that each of the individual
defendants "intends to use [his/her] office and authority under the laws of the
Commonwealth of Massachusetts to stop [the Tribe] from proceeding with [its] plans
to open and operate a Class II gaming facility under IGRA and tribal law."
(Amended Answer at PP 100-02). According to counterclaim-defendants, that is not
sufficient to allege an ongoing violation of federal law, because "[t]he Tribe
does not allege that such conduct, even if undertaken, constitutes a violation of
IGRA or other federal law." (Counterclaim-Defendants' Mem. at 7). But a state
official need not be violating a federal statute to be subject to suit under Ex
Parte Young; all that is required is an allegation that the official is
interfering, or is about to interfere, with a federally protected right. See
Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir.2002) (finding that Ex Parte
Young doctrine applied where plaintiff tribe sought injunctive relief to stop
officials from interfering with the tribe's right to hunt and fish on Indian
land). Taking the allegations in the counterclaims to be true, that requirement is
Accordingly, the counterclaims against third-party defendants are cognizable
under the Ex Parte Young doctrine.
3. Claim for Injunctive Relief
Counterclaim-defendants further contend that the counterclaim for injunctive
relief must be dismissed as against all parties because the Tribe has not alleged
a sufficient threat of future injury and thus lacks standing. Because the Court
has decided that all counterclaims against the Commonwealth will be dismissed on
sovereign immunity grounds, this section will analyze the claim for injunctive
relief only as it relates to the individual third-party defendants.
In order to establish constitutional standing, a plaintiff seeking injunctive
relief "must allege a real and immediate threat of future injury." Connor B. ex
rel. Vigurs v. Patrick, 771 F.Supp.2d 142, 152 (D.Mass.2011) (citing City of Los
Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Counterclaim-defendants contend that the allegations in the counterclaim are
overly vague, as they allege only that counterclaim-defendants "intend[ ] to stop
[the Tribe] from proceeding with [its] plans to open and operate a Class II gaming
facility under IGRA and tribal law" and do not provide any further factual
context. (Amended Answer at PP 100-02).
It is true that "the Federal Rules do not require courts to credit a
complaint's conclusory statements without reference to its factual context."
Ashcroft v. Iqbal, 556 U.S. 662, 686, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor
does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further
factual enhancement.' " Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Here, however, the factual
context is clear: the very existence of this lawsuit provides ample proof that the
Commonwealth and its officials intend to block the Tribe from operating a gaming
facility. Under the circumstances, it would defy common sense to conclude that the
Tribe's allegations do not establish "plausible grounds" for its right to relief.
See Twombly, 550 U.S. at 545.
*18 Counterclaim-defendants further contend that the Tribe's claim for
injunctive relief is overly broad. They contend that enjoining them "from
interfering with gaming activities that occur on the Tribe's trust lands," as the
Tribe requests, could conceivably prevent the officials from (among other things)
making public statements about the Tribe's gaming activities; managing
environmental disasters that impact Tribal lands; or approving gaming licenses for
non-Tribal entities that might compete with the Tribe's operation. (Amended Answer
at 16; Counterclaim-Defendants' Mem. at 10).
Putting aside counterclaim-defendants' interpretation of the scope of the
injunctive relief requested, their objection is at best premature. At this stage,
the precise form of the injunctive relief need not be considered. City of New
York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 353 (E.D.N.Y.2007) ("[A] motion
for failure to state a claim properly addresses the cause of action alleged, not
the remedy sought. It is the court that will craft any remedy."); City of New York
v. Beretta U.S.A. Corp., 315 F.Supp.2d 256, 286 ("Objections that particular
provisions of the injunctive relief requested place an impermissible burden on
interstate commerce can be considered on a case-by-case basis in a subsequent
phase of this litigation if it becomes necessary to do so ."); United States by
Clark v. Georgia Power Co., 301 F.Supp. 538, 543 (N.D.Ga.1969) ("Rule 65(d) [of
the Federal Rules of Civil Procedure] refers to the form of an injunction or a
restraining order, and is silent as to the specificity required in the complaint's
request for injunction."). If the Court does grant any injunctive relief, it can
limit or shape that remedy as principles of equity and proper respect for
federal-state relations may require.
Accordingly, the motion to dismiss the counterclaim for injunctive relief
against the individual defendants will be denied.
For the foregoing reasons,
1. Defendants' motions to dismiss are DENIED; and
2. Counterclaim-defendants' motion to dismiss is GRANTED to the extent it seeks
dismissal of the counterclaims against the Commonwealth, and is otherwise