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Building Inspector and Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp.12/9/2004
rporated by reference the town's zoning bylaw, which, in turn, expressly provides for judicial review and enforcement. This argument, however, has persuasive force and further supports our conclusion that, with respect to sovereign immunity, the Tribe knowingly bargained for, and fully understood, its obligations under the settlement agreement to submit to local zoning enforcement, and judicial action, where necessary.
3. The order on the cross motions for summary judgment and the resulting judgment are vacated. The case is remanded to the Superior Court for (1) entry of a judgment declaring that the Tribe, with respect to its land use activities on the Cook Lands, waived its sovereign immunity and that the defendants are not immune from the zoning enforcement action as to these lands; and (2) further proceedings consistent with this opinion.
So ordered.
IRELAND, J. (dissenting).
I stand with the Wampanoag Tribal Council. I would affirm the trial judge's order and judgment because I conclude, as did the judge, that the settlement agreement does not constitute a legally sufficient waiver of the Tribe's sovereign immunity. I fully appreciate the language in the settlement agreement, including the language that refers to future recognition of the Tribe, as well as the court's analysis of the phrase "in the same manner, and subject to the same laws, as any other Massachusetts corporation." Nonetheless, I dissent.
The court is correct that the Tribe need not have used "talismanic words," to waive its sovereign immunity. Ante at . Cases where Native American tribes have explicitly stated that disputes would be handled in a particular forum meet the "practical, commonsense approach" to waiver. See, e.g., C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 423 (2001) (under agreement it signed, Tribe's clear consent to arbitration and to the enforcement of arbitral awards in State court constitutes waiver of sovereign immunity); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 30-31 (1st Cir. 2000) (under contract, Tribe's agreement to submit " ll claims, disputes" to arbitration and "shall be specifically enforceable under prevailing arbitration law" constitutes a waiver of sovereign immunity). The settlement agreement, as I read it, is not so "direct, clear, and unavoidable." Id. at 31.
The court states, and I do not disagree, that the parties negotiating the settlement agreement were sophisticated. Ante at ( , - & n.15). Based in part on this assumption, the court concludes that Tribe must have contemplated the effect of the "in the same manner" language because it agreed to establish a corporation that, by implication, would have meant a change in status for the Tribe. Ante at - . The court also states that it finds persuasive the fact that the settlement agreement incorporates the town's zoning bylaws by reference (which expressly provides for judicial review and enforcement). Ante at - .
However, I remain unpersuaded for two related reasons. First, at the time the settlement agreement was signed, the Tribe had not yet received Federal recognition. Therefore, it had no sovereign immunity to waive. Second, given the sophistication of the parties who clearly anticipated that recognition might occur in the future, it would have been very easy for the parties to have addressed the impact of such recognition in a more straightforward fashion. It would have been simple for them to have said, "The tribe waives its sovereignty immunity." The absence of such a clear, unequivocal, explicit, "direct" and "unavoidable" statement of waiver is, in my opinion, controlling, giv
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