The U.S. 1st Circuit Court of Appeals September 14 heard 15 minutes of arguments from each side in a virtual hearing of the dispute between the Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah on Martha’s Vineyard over the tribe’s proposed Aquinnah Cliffs Casino.
At question is whether the tribe has to abide by the municipality’s zoning regulations. What has already been determined in federal court, including the U.S. Supreme Court, is the tribe’s right to build the Class II bingo hall type casino. The case dates back to 2014.
The tribe was represented by attorney Scott Crowell and the Aquinnah Gay Head Community Association by attorney William Jay. Hearing. They spoke before a three-judge panel of the appeals court.
The town contends that although the tribe is authorized under the Indian Gaming Regulatory Act (IGRA) to offer gaming, that previous agreements between the tribe and the state obligate it to abide by local zoning restrictions.
The tribe argues that only the federal government has a say over the facility, no one else.
The tribe began work on the project last year and ignored the local authorities when they demanded it get permits.
Federal Judge F. Dennis Saylor ruled June 2019 that although the tribe has a right to build the casino that it failed to appeal his ruling that it must apply for building permits.
The tribe argues that this in effect means it can’t build since the town has no zoning for bingo halls. This would allow the town to make up the rules it prefers, said Crowell.
He said, “This opinion, if allowed to stand, allows the town and the Martha’s Vineyard Commission to kill the tribe’s gaming operation with a thousand cuts,” Crowell said. “There’s no tribe operating Class II gaming facilities that are subject to county or local zoning laws, and this will make Aquinnah an aberration. The ability for the town to interfere and do indirectly what it can’t do directly is the interference that makes the application of town laws inapplicable.”
Jay countered that the town and association do not seek to stop the casino from being built, only to have oversight over zoning and permitting, as required by the 1987 land settlement the tribe signed with the town and state a year before IGRA was adopted, and which the tribe argues supersedes that agreement.
Jay told the panel, “If the question is whether generally applicable town ordinances such as zoning plan can be used to prevent gaming specifically — I think what he said was to do indirectly what IGRA prevents the town from doing directly — the district court made very clear that it wasn’t passing on any such theory,” Jay said. “[Saylor] made it clear he did not see any evidence of such a pretext here, but invited the tribe to come back if it had any evidence that local law was being manipulated to prevent gaming from being conducted as this court’s prior opinion would allow.”
The judges frequently stopped the speakers to ask questions.
