Stiff-armed by the Wampanoag Tribe of Gay Head (Aquinnah), the town of Aquinnah Tuesday asked a federal judge to order the tribe to stop work to turn its long-dormant and unfinished community center into a bingo hall.
The town action follows the tribe’s total rejection of a cease-and-desist letter dated July 6, signed by assistant building inspector Leonard Jason Jr., that ordered the tribe to stop work on the building.
On Tuesday, lawyer for the town of Aquinnah Ron Rappaport filed a motion for a temporary restraining order, and/or a preliminary injunction, against the tribe, the tribal council, and the Aquinnah Wampanoag Gaming Corporation in U.S. District Court.
Mr. Rappaport asked the court to stop the tribe from “undertaking any further construction activity” on its unfinished community center.
The Office of the State Attorney General and the Aquinnah/Gay Head Community Association Inc. (AGHCA) have filed motions in support of the town.
The tribe contends it does not need a building permit to proceed, because it meets federal gaming requirements.
U.S. District Court Judge F. Dennis Saylor IV has set a hearing date of Tuesday, July 28, at which time he is expected to rule on the request.
The court skirmish and the tribe’s decision to push the issue come only two weeks before a hearing scheduled August 12 before Judge Dennis Saylor on cross-motions for summary judgement in the overarching case that began in December 2013, when Gov. Deval Patrick filed suit in state court to block the tribe from moving forward with a gaming facility on Martha’s Vineyard. The case was later moved to federal court, and the commonwealth was joined by the town of Aquinnah and the AGHCA.
The fundamental legal issue is the extent to which the settlement agreement limits the tribe’s ability to build a casino, either in southeastern Massachusetts or on tribal lands on Martha’s Vineyard. Signed by tribal leadership in 1983, and ratified by the state legislature in 1985 and by Congress in 1987, the settlement agreement stipulated that the tribe was subject to local and state laws and zoning regulations in effect at the time.
The legal question still to be settled is whether the Indian Gaming Regulatory Act (IGRA) signed in 1988 trumps the settlement act Congress approved in 1987.
In his five-page motion, Mr. Rappaport outlined the reasons why the town’s motion should be granted, against the background of the upcoming hearing on August 12.
He said the status quo, that the tribe must secure town permits, as established by the state Supreme Judicial Court in an earlier ruling over a building permit for the tribal hatchery, should be maintained until the merits of the case now before Judge Saylor are resolved.
He also stated that granting the motion would protect the public interest by ensuring the tribe follows state building and health codes.
Mr. Rappaport said, “A temporary restraining order and a preliminary injunction is necessary to prevent the town’s immediate and irreparable injury, loss or damage until such time as the court acts on the cross motions for summary judgement …” and “failure to enjoin the construction and operation of a gaming facility will cause irreparable injury to the town, outweighing any possible injury to the tribal defendants resulting from the issuance of a temporary restraining order or a preliminary injunction.”
‘Nothing new here’
In a prepared statement emailed Tuesday to The Times, Wampanoag Gaming Corporation Chairman Cheryl Andrews Maltais said the tribe’s position is that the Indian Gaming Regulatory Act “supersedes all laws of the commonwealth and the town that are integral to the tribe’s operation of a gaming facility.” She said the town’s motion “is not unexpected.”
Ms. Andrews Maltais said the tribe would “aggressively defend against the town’s motion.” She said to prevail, the town has to establish “that the irreparable harm it will suffer if relief is denied outweighs the irreparable harm that the tribe will suffer if relief is granted,” and that is a high bar to hurdle.
Noting that Massachusetts now embraces gaming, she said, “In contrast to the lack of irreparable harm to be suffered by the town, every day of delay in the project is another day of lost governmental revenue desperately needed for underfunded tribal programs for health care, housing, social services, education, police and fire protections, infrastructure, judiciary, etc.”
Ms. Andrews Maltais described the tangled legal tango of motions and cross-motions, and said the tribe publicly announced in October 2013 that it was proceeding with the development of a Class II gaming facility on its trust lands on the Island.
“There is nothing new here,” she said. “The town has trumped up the ongoing work on the project to instruct the tribe to stand down. Now the town is arguing that some emergency action needs to be taken to stop the tribe. We will point out to Judge Sayler [sic] that the town’s timing makes no sense, and that the court’s resources are more prudently spent on the cross-motions for summary judgment, the decision on which will moot any need to entertain the town’s untimely motion for preliminary injunctive relief.”
She ended, “This most recent motion by the town is a minor distraction from the merits of the respective position of the tribe and the United States on one side, and the commonwealth, homeowners’ association, and town on the other, which merits will be heard by the Court on August 12.”
Even as arguments proceed in court, members of the tribe are deeply divided over the question of turning the unfinished community center into a bingo hall in Aquinnah.
The 6,500-square-foot building was erected at taxpayer expense just off the entrance road to the tribal lands by two teams of Air Force reservists in 2004 and 2005, as a civil engineering community project. The shell sat dormant and unfinished after the citizen-soldiers departed.
A petition signed by 73 members of the tribe has set the stage for a vote by the tribal membership on Sunday, August 16, on whether to proceed with the bingo hall. Two earlier votes favored construction. In each case, mainland tribal residents turned the tide.
In a Letter to the Editor published this week, former tribal chairman Beverly Wright said that just because the tribe has the right to game on its traditional tribal lands, it does not mean that it should.
“The impact that such a facility would have on our homeland and the Island as a whole is unthinkable,” Ms. Wright said. “Also, the economic benefit to our tribe is suspect.”
Ms. Wright said it was her hope that at the vote on August 16, “our traditional values will prevail, and not the almighty dollar.”
In an email to The Times Wednesday, Tobias Vanderhoop, tribal chairman, said the town’s motion for a temporary restraining order/preliminary injunction “was not an unexpected development.”
Mr. Vanderhoop said the petition requesting a ballot vote to repeal all enacted Tribal Council resolutions regarding the change of use of the unfinished community center building had been certified by the secretary of the Tribal Council, and a vote scheduled on August 16.
“This question has been before the citizens of our tribal nation several times; as with all actions taken by our citizens, the outcome of the vote and the will of the people will be implemented,” Mr. Vanderhoop said.