The cliché: “I’ll appeal all the way to the Supreme Court,” is actually an extreme rarity. However, the town of Aquinnah, on Martha’s Vineyard, is going to test the odds, and appeal its case against the tribe based on that island that wants to build a Class II casino. The state of Massachusetts hasn’t yet decided whether it will join the appeal.
Last week the town and the Aquinnah/Gay Head Community Association filed an appeal of an April decision by the 1st Circuit Court of Appeals that upheld the right of the Wampanoag Tribe of Gay Head (Aquinnah) to operate a casino, despite the fact that in 1987 it signed an agreement with the town and state as part of a federal land settlement that it would obey local land use regulations. That agreement was passed by Congress as part of the land deal. However, the next year Congress passed the Indian Gaming Regulatory Act (IGRA) of 1988, which established rules under which federally recognized tribes could offer gaming.
The tribe hopes to convert an unfinished 6,500 square foot community building into a small casino offering bingo-based gaming.
The tribe claims that IGRA superseded the earlier agreement it signed. The 1st Circuit Agreed, overturning an earlier federal judge who ruled against the Wampanoags. Now the losing side is hoping to persuade the Supreme Court to decide to intervene. The chances of that happening are less than one in a hundred.
Undoubtedly the high court will be asked to decide whether the tribe waived its rights when it signed the land deal. According to the attorneys for the plaintiffs: the “decision concerns the interplay between two federal statutes, both of which strike a delicate balance among the sovereign interests of the federal government, states, and Indian tribes,” the attorneys wrote. “The implications of that issue extend well beyond these parties.”
The attorneys also argue that the appeals court decision goes against the Supreme Court’s Carcieri v. Salazar decision, which said that the IGRA did not supersede Indian Reorganization Act of 1934.
After the appeal was filed the 1st Circuit agreed to freeze its decision in place for 90 days to give the plaintiffs 90 days to file their appeal. That means the tribe cannot begin to build during the interim.
The technical term for what they are doing is filing a petition for certiorari, or “cert application.” The appeals court wrote: “If the petition for certiorari is denied, mandate shall issue forthwith.”
State Attorney General Maura Healey said last week that she hasn’t decided whether to join the appeal.
Meanwhile, tribal Chairman Cheryl Andrews-Maltais implied that the stay was nothing to be excited about. She called it “procedurally routine” and “unremarkable.” In an email to the Martha’s Vineyard Times, she wrote “The commonwealth and town have the right to seek such a review, however unlikely that it would be granted. We opposed their petition only to correct the record regarding the glaring misstatements of fact asserted by the town. As we previously stated, when they are ready to stop wasting time and precious resources on further appeals, we remain ready, willing and able to collaborate with the town and commonwealth on the issue of the gaming project’s potential impact and positive opportunities for our citizens.”
The tribe had opposed the stay and asked for a $1.2 million bond because it would cause an “undue delay, which will continue to deprive the tribe of a desperately needed source of government revenue.” That amount is based on the tribe’s estimates that the casino will generate about $4.5 million annually. The court order did not mention a bond.
Larry Holht, president of the Community Association, admitted that their odds are long. But he added, “this does present issues that the Supreme Court frequently pays attention to, namely the conflict with another appeals court decision.” He added, “The appeals court ignored what should have taken seriously, namely the background of how this came about. We would be hardly stunned if the Supreme Court decides to take this case.”
