Update: Tribe ‘disappointed’ Aquinnah intends to appeal court ruling

State remains mum on whether it will join the appeal of court’s casino ruling.

The town of Aquinnah has authorized town counsel Ronald Rappaport to seek an appeal, possibly to the U.S. Supreme Court. —Stacey Rupolo

The leader of the Wampanoag Tribe of Gay Head (Aquinnah) is disappointed, but not surprised that the town and a taxpayers’ group are pushing for an appeal of a court ruling that went in the tribe’s favor.

“We had hoped with the unanimous decision of the court, we’d turn a page and be able to work with the town,” Cheryl Andrews-Maltais, the Aquinnah tribe’s chairman, told the Times Friday. “We’re disappointed, but the appeal was expected, and we’re fully prepared to defend our rights.”

Her comments come after the board of selectmen voted Thursday to authorize town counsel Ronald Rappaport to “pursue all appellate avenues of relief including pursuing taking the case to the Supreme Court,” town administrator Adam Wilson wrote in an email. The vote was 2-0, with Juli Vanderhoop and Gary Haley in attendance. Selectman Jim Newman participated in Thursday’s executive session discussion via video conferencing, but did not vote on the decision to move forward.

That had to do with timing, Mr. Wilson told the Times. Ms. Vanderhoop arrived at the meeting late and Mr. Newman had to leave before a vote was taken, he said. “He was not available for the vote, but he was supportive of moving forward, and he made that clear,” Mr. Wilson said.

In an email to the Times Friday, Mr. Newman confirmed he agreed with the vote. “I am fully supportive of appealing the decision,” he wrote.

The town’s bylaws allow for remote participation, Mr. Wilson said.

Ms. Vanderhoop voted in favor of the appeal, despite being a member of the Wampanoag tribe. There is no conflict of interest in Ms. Vanderhoop participating in the legal discussions or votes because she is not an officer of the tribe, Mr. Rappaport told the Times.

On April 10, the First Circuit Court of Appeals found that a U.S. District Court judge erred when he ruled that the Wampanoag Tribe of Gay Head (Aquinnah) failed to demonstrate governmental control over its land.

Ms. Andrews-Maltais called the court decision “clear and unambiguous.”

“We’re spending money we don’t have and, unfortunately, taxpayers of the town and Massachusetts are paying to fight us,” she said.

The state, which initially brought the suit against the tribe in 2013, has remained noncommittal since the ruling was released. On Friday, Attorney General Maura Healy, whose office has represented the state in the case, told the Times her office is still reviewing the decision before making a decision on whether to join the appeal.

The First Circuit ruling was a blow to the town of Aquinnah and the association, which have fought alongside the state to oppose a gambling hall on the Island. The tribe has floated the idea of featuring electronic bingo machines, which look like slot machines, inside a community center, saying it would bring about $4 million in revenue to the tribe.

The town’s decision to seek an appeal comes one day after the Aquinnah/Gay Head Community Association (AGHCA) announced that it also planned to pursue an appeal of the First Circuit ruling. “AGHCA and its attorneys have reflected on the recent decision of the First Circuit Court of Appeals, and believe that decision is materially incorrect in a number of aspects,” Larry Hohlt, president of the association, wrote in an email. “Accordingly, we also confirm that we will continue our efforts (presumably along with the Commonwealth and the town of Aquinnah) in this litigation, including if need be, and if the court accepts the case, to the U.S. Supreme Court.”

Until Friday, tribe leaders had remained quiet about the ruling since issuing an initial statement applauding the First Circuit’s decision in the case.

In 2013, then-Gov. Deval Patrick filed suit against the tribe in state court to block the tribe’s plans for the Island gambling hall. The suit claimed the tribe’s plans would breach a 1987 settlement agreement.

The Aquinnah Wampanoag assert that the Indian Gaming Regulatory Act (IGRA), which was approved by Congress in 1988, supersedes the settlement agreement. IGRA authorizes tribes to allow gambling on tribal lands in states where it is legal. A tribe needs a compact with a state to offer a full-fledged casino, but to offer Class II gaming it only needs authorization from federal agencies.

Despite the vote to pursue a possible U.S. Supreme Court appeal, that remains a tough path for the town and community association. The nation’s highest court takes only about 1 percent of the cases it’s asked to resolve.