Wampanoag tribe takes first step to appeal judge's casino ruling

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The Wampanoag Tribe of Gay Head (Aquinnah) plans to appeal a judge’s decision barring the use of its community center for gaming. – MVTimes file photo — File photo by Nelson Sigelman

As expected, the Wampanoag Tribe of Gay Head (Aquinnah) has asked U.S. District Court Judge F. Dennis Saylor IV to reconsider his ruling that the tribe cannot turn its long-unused community center into a gambling hall.

On Friday, Dec. 11, lawyers representing the tribe filed a 20-page motion to reconsider in U.S. District Court and requested to be allowed to make oral arguments to the judge.

If the motion to reconsider is not successful the tribe will file an appeal with the U.S. Court of Appeals for the First Circuit based on “several material errors” in the ruling, tribe lawyer Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, based in Sedona, Ariz., said in his motion.

Mr. Crowell bases his legal arguments on parallels with the efforts of two tribes in Texas to operate gaming facilities in there despite efforts by the state to limit the tribes.

In October, the U.S. Interior Department and the National Indian Gaming Commission agreed that the Tiguas (also known as the Ysleta del Sur Pueblo), as well as the Alabama-Coushatta Tribe of Texas, have a right to operate a Class II gaming facility on tribal lands. Mr. Crowell said the Texas developments provide “newly discovered evidence and new law” that should cause the court to reconsider its analysis that the settlement act prevails.

Judge Saylor’s 40-page decision, issued Nov. 13, was a sweeping victory for the town of Aquinnah, the Aquinnah Gay Head Community Association, and the Commonwealth of Massachusetts. Judge Saylor said the Indian Gaming Regulatory Act (IGRA), signed in 1988, does not trump the Settlement Act, 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, and it has formed the bedrock of the longstanding legal relationship between the tribe and the Martha’s Vineyard community.

Following a detailed analysis of the issues in the case, Judge Saylor said, “In summary, the tribe has not met its burden of demonstrating that it exercises sufficient ‘governmental power’ over the settlement lands, and therefore IGRA does not apply. Furthermore, and in any event, it is clear that IGRA did not repeal by implication the Massachusetts Settlement Act. Accordingly, the tribe cannot build a gaming facility on the settlement lands without complying with the laws and regulations of the Commonwealth and town.”

The 6,500-square-foot building slated to become a bingo hall was originally intended to be a community center. It 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 has sat dormant and unfinished since the citizen-soldiers departed.

In making his decision, Judge Saylor said, “Whether an Indian tribe should be permitted to operate a casino on Martha’s Vineyard is a matter of considerable public interest, and the question touches upon a variety of complex and significant policy issues.