The state of Massachusetts, and the town of Aquinnah have asked for an en banc ruling of the 1st U.S. Circuit Court of Appeals of an earlier ruling by a three-judge panel of its lawsuit challenging the right of the Wampanoag Tribe of Gay Head (Aquinnah) to open a Class II casino on Martha’s Vineyard.
Attorneys for the state, the town and the Aquinnah/Gay Head Community Association formally petitioned a rehearing of the April 3 ruling that said the tribe could open a bingo hall in an unfinished community center on the reservation, which is adjacent to the town of Aquinnah.
The state sued the tribe in 2013, claiming that the tribe was violating its agreement to obey state and local laws, which don’t allow a casino on the land in question.
In 2015 U.S. District Court Judge F. Dennis Saylor IV ruled that the tribe did not have a right to operate a gaming operation on the. His ruling was overturned by a three-judge panel of the appeals court. If the review is granted the full ten judges would decide the case.
The town council of Aquinnah voted 2-0 to file the appeal and to “pursue all appellate avenues of relief, including taking the case to the Supreme Court,” according to administrator Adam Wilson.
The attorney for the town commented “Fundamentally, we think the first circuit got it wrong and the U.S. District Court got it right,” adding “Going back to the settlement agreement, we think it’s clear that all the laws of town and state apply to tribal lands, including those involving gaming.”
The attorneys argue that the panel failed to follow precedents of the U.S. Supreme Court when it ruled that the tribe’s agreement 1987 promising to abide by state and local law, that it signed as part of a land settlement, was trumped by the passage of the Indian Gaming Regulatory Act of 1988 a year later.
IGRA allows tribes to operate gaming on the reservation in states where it is legal. It requires a state tribal gaming compact for Class III gaming, but no compact at all for Class II gaming.
Tribal Chairman Cheryl Andrews-Maltais issued a statement saying that she was disappointed but not surprised by the appeal. “We had hoped with the unanimous decision of the court, we’d turn a page and be able to work with the town,” she said. “We’re disappointed, but the appeal was expected, and we’re fully prepared to defend our rights.”
She added, “We’re spending money we don’t have and, unfortunately, taxpayers of the town and Massachusetts are paying to fight us.”
The tribe figures that it could make as much as $4 million a year in revenues if it is allowed to operate a casino.
As part of its April 10 ruling the appeals court found that the original judge erred in ruling that the tribe had failed to demonstrate that it had governmental control over its land, which he said was a key point in denying the tribe the right to have a casino.
