Update: A federal appeals court has said it won’t rehear a case involving the federal Indian gambling rights of the Wampanoag Tribe of Gay Head (Aquinnah).
In a ruling issued late Wednesday, the First Circuit Court of Appeals rejected a petition by Attorney General Maura Healey to reconsider its decision. The town of Aquinnah and the Aquinnah/Gay Head Community Association had joined the state in asking for the appeal.
The two-page decision simply states that a majority of the judges did not vote to rehear the case, so the motion is denied.
“In a word ecstatic,” Cheryl Andrews-Maltais wrote to the Times in an email. “We do, however, need some time to review, reflect and plan our next steps. We have so much to consider as we determine how best to provide our tribe’s needs … especially with the uncertainty of the federal government, and how it will maintain its trust responsibility with tribes.”
Ms. Andrews-Maltais wrote that she expects to release a more formal statement later this evening.
The town and community taxpayers group have vowed in the past to pursue an appeal to the U.S. Supreme Court, a showdown that now seems more possible with the appeals court ruling. That’s a steep hurdle, however, given that the nation’s highest court only takes about 1 percent of the cases that it is requested to review.
“We’re filing a cert petition,” Ronald Rappaport, town counsel for the town of Aquinnah, said Thursday.
A cert petition, also known as a writ of certiorari, is the technical term for the appeal. The town, state, and community group have 90 days to file from Wednesday’s ruling. Four out of the nine Supreme Court justices have to agree to hear the case.
Larry Hohlt, president of the community association, said there is solid legal basis to overturn the appeals court ruling.
“It is our intention to proceed in a timely way to seek review of the Supreme Court of the United States,” Mr. Hohlt said. “The odds are still stacked against someone who seeks review. We feel we have legal issues the courts find of interest.”
The attorney general’s office has not yet responded to Wednesday’s ruling.
The tribe has said it could generate $4.5 million from an Island facility, though gambling experts have questioned the market for a gambling hall so far from the Vineyard’s economic centers and ferry terminals.
The decision has potential implications for the state’s fledgling casino industry. The Mashpee Wampanoag Tribe’s proposed casino in Taunton is on hold while the tribe awaits a federal ruling on its land-in-trust application. The Bureau of Indian Affairs had approved the tribe’s land application, but a federal court sided with neighbors. The BIA is now considering an alternative way to take the land into federal trust.
It’s a complication that could create an opening for the Aquinnah tribe, which has tried in the past to seek property on the mainland for a casino project. Southeastern Massachusetts remains open and, potentially, fertile ground for the state’s third full-fledged casino. Legislation approved in 2011 contemplated casinos in three distinct regions, including southeastern Massachusetts, known as Region C.
Then-Gov. Patrick refused to negotiate a compact with the Aquinnah tribe, citing the land settlement agreement that’s at the center of the ongoing litigation. A compact is an agreement between a state and tribe that sets the groundwork for a relationship between them, as well as any payments in lieu of taxes. Federal law forbids a state from collecting taxes from a casino project, though many tribes agree to pay a percentage of gambling revenues to help with infrastructure issues. The National Indian Gaming Commission regulates Indian casinos.
Rebuked by the state, the Aquinnah tribe sought and was granted federal approval for the bingo facility in its community center. It was that approval that drove Gov. Patrick to file suit against the tribe.
Editor’s note: story updated to include comments from the town and community group.