Today the Appeals Court dismissed a lawsuit against the Mashpee Wampanoag Tribe on the grounds of “tribal sovereign immunity.” According to the Appeals Court’s summary of the facts,
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….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.
The central issue on appeal was whether tribal sovereign immunity barred the plaintiffs from suing the tribe. The law, as cited by the court, states that “suits against Indian tribes are. . . barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.
Both the lower court and the appeals court ruled that no such waiver occurred in the case. Rejecting the plaintiff’s arguments, the appeals court wrote,
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…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.
Additionally, the Appeals Court rejected the plaintiff’s claim that the tribe waived its sovereign immunity by “hold[ing] property in the territory of another sovereign” (i.e., the “immoveable property” exception). The Appeals Court rejected this argument as well, stating that the “immoveable property” exception did not apply because
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.