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,

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.

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
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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."
-5-

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 
-6-

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).
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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 

4 It also granted summary judgment for the Town and the 

Community Association. More on this in a bit.
-8-

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 
-9-

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. 
-10-

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."
-11-

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 
-12-

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 
-13-

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").
-14-

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-thecase 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. 
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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 
-16-

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 
-17-

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 
-18-

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 
-19-

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.
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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 
-21-

(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 
-22-

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.
-23-

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 
-24-

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 
-25-

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 
-26-

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).
-27-

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 
-28-

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 
-29-

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 
-30-

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. 
-31-

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)
-32-

(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 nonIndians 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 "crisscrossing 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 
-33-

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 
-34-

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 
-35-

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 
-36-

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.
-37-

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.