The Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah on Martha’s Vineyard, Massachusetts are back in federal court, something the tribe had thought it had won for good after the Supreme Court upheld a ruling that it had the right to build a Class II casino on its reservation.
However, the town insists the bingo parlor’s design and execution is subject to review by a local commission. This is something the tribe refuses to concede, hence the new court battle. The town April 4 filed a motion in U.S. District Court in Boston to seek a “final judgment” from the original judge in the case.
That judge, F. Dennis Saylor IV, had ruled in favor of the town, the state of Massachusetts and the Aquinnah/Gay Head Community Association on the issue of whether the tribe had to abide by an earlier agreement in 1987 that it signed promising not to build a casino. The decision was overturned on appeal and upheld by the Supreme Court.
So, clearly the tribe has a right to build the Class II casino under the Indian Gaming Regulatory Act (IGRA) without a compact. However, the town contends that the judge never ruled on whether that casino would be subject to the town permitting project. Its attorneys write in the motion that “final judgment is necessary to prevent the town from suffering irreparable injury.”
The tribe argues that local permits are not required and that its activities fall under the National Indian Gaming Commission, which has already issued licenses.
The town’s attorneys, led by William May of Goodwin Procter, with the town’s longtime counsel Ronald Rappaport also part of the team, have requested that the Wampanoag Tribe be required to obtain permits and licenses to build. The tribe insists this would violate its sovereignty.
However the town’s attorneys note that the appeal decision the tribe won never addressed the issue of permits. “The First Circuit addressed only whether the IGRA applies to the Settlement Lands and whether it displaced local and state authority over gaming on those lands,” they write. “Because the tribe has not sought a building permit or allowed the town’s building inspector to enter the property, the town has no way of knowing whether the tribe’s construction methods—let alone the design of the facility—pose a direct threat to public health, public safety, or the natural environment. For all the town knows, the tribe may be disposing of construction waste improperly, or may be removing trees that play an important role in flood prevention. These are not purely hypothetical concerns: based on publicly available information, the town believes that the tribe has recently made illegal use of a power source.”
The tribe insists that a “final judgment” such as the town’s seeks would violate the appeals court order and that final judgement should be entered for the tribe. Addressing the town’s suggestion that the tribe’s actions “threatens irreparable harm to the town’s residents, visitors and the natural environment,” the tribe’s attorneys says the town has provided no evidence to back up this claim.
The attorneys also note that federal and tribal law “also forbid the irresponsible conduct and building practices which the town now fears and alleges in its motion.”
The tribe further argues that the town’s actions demonstrate that it’s more interested in shutting down the casino than in making sure it obtains the proper permits. It cites an instance where an electrical contractor working on the casino mistakenly applied for a permit, and was told by the town to turn off electricity to it instead. The tribe calls this an attempted “end run,” by the town and an attempted abuse of authority.
The town’s response is that if the tribe is following the proper procedures as it contends, “the tribe should have no trouble acquiring all necessary permits.”
