Update: State AG asks First Circuit to reconsider Aquinnah case

Ronald Rappaport, who serves as town counsel for the majority of Island towns, has resigned as a member of the MV Hospital board of trustees. —Stacey Rupolo

updated April 26, 12:35 pm

Saying the decision ignored Supreme Court precedent and contradicts another appeals court ruling, Massachusetts Attorney General Maura Healy has asked the First Circuit Court of Appeals to rehear its case against the Wampanoag Tribe of Gay Head (Aquinnah).

The appeal, filed Monday, targets the First Circuit’s ruling that the Indian Gaming Regulatory Act (IGRA) of 1988 “impliedly repealed” the 1987 settlement act reached between the tribe, state, town and Aquinnah/Gay Head Community Association (AGHCA).

“The panel’s holding on that issue — that IGRA impliedly repealed the settlement act — eviscerates a core part of the settlement agreement … that gave rise to the settlement act and has, for over 30 years, governed the relationship among the agreement’s four signatories — the Aquinnah, the Commonwealth, the Town of Aquinnah, and a group of Martha’s Vineyard landowners (community association),” the court filing states.

The First Circuit ruling failed to apply the Supreme Court’s rule that “implied repeals are disfavored,” Monday’s filing states. It also contradicts a similar case, involving a Texas tribe, where the Fifth Circuit “concluded IGRA did not impliedly repeal an earlier enacted statute that specifically gave the state jurisdiction over gaming on lands held by the Indian tribe in Texas,” the state’s filing states.

The state has long held that the Aquinnah tribe specifically gave up rights to gambling on its lands in the settlement agreement, while the tribe’s contention is that IGRA supersedes that agreement.

The state also filed on the basis of “exceptional importance.” The court’s decision “implicates governmental (state, local, and tribal) sovereignty and jurisdiction over land and, also, a topic of significant political consequence and interest: high-stakes Indian gaming operating in the Commonwealth without state or local oversight.”

Massachusetts joins the town of Aquinnah and the AGHCA, which have already authorized appeals, including to the Supreme Court, if necessary.

Even before the state’s decision to join the appeal, Aquinnah Wampanoag chairman Cheryl Andrews-Maltais expressed disappointment in talk of further legal challenges.

In a prepared statement, Aquinnah Wampanoag chairman Cheryl Andrews-Maltais called the court action “last-ditch procedural efforts intended to thwart the tribe’s ability to bring economic self-sufficiency to our membership.”

In an interview with the Times prior to the filing, she expressed disappointment in talk of further legal challenges. “We had hoped with the unanimous decision of the court, we’d turn a page and be able to work with the town,” she told the Times Friday. “We’re disappointed, but the appeal was expected, and we’re fully prepared to defend our rights.”

Her comments came after the Aquinnah 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 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 came 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.

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.

Updated with tribal chairman’s prepared statement.