Aquinnah casino opponents given time for Supreme Court appeal

Tribe says delay will cost it $400,000 per month in revenue.

Cheryl Andrews-Maltais, chairwoman of the Wampanoag Tribe of Gay Head (Aquinnah), was victorious this morning when the high court decided not to hear the town and state's case against a proposed gambling facility. – Stacey Rupolo

Like a Ferris wheel cabin being stopped at the top of its arc, a federal appeals court has frozen its decision in the case that paves the way for the Wampanoag Tribe of Gay Head (Aquinnah) bingo hall.

The stay was issued on Monday by the First Circuit Court of Appeals. It gives the town, Aquinnah/Gay Head Community Association, and the Commonwealth of Massachusetts time to appeal the ruling to the U.S. Supreme Court.

The appeals court stay gives the parties 90 days to file a “cert application” with the U.S. Supreme Court to hear the case. “If the petition for certiorari is denied, mandate shall issue forthwith,” the two-page court ruling states.

As of last week, Attorney General Maura Healey’s office said it had not yet decided whether to join the town and taxpayers’ group in the appeal, but it was part of the motion for a stay.

Cheryl Andrews-Maltais, the tribe’s chairwoman, called the court decision “procedurally routine” and “unremarkable” in an email to The Times.

“The commonwealth and town have the right to seek such a review, however unlikely that it would be granted,” she wrote. “We opposed their petition only to correct the record regarding the glaring misstatements of fact asserted by the town. As we previously stated, when they are ready to stop wasting time and precious resources on further appeals, we remain ready, willing and able to collaborate with the town and commonwealth on the issue of the gaming project’s potential impact and positive opportunities for our citizens.”

The tribe, in its brief opposing the stay, requested a $1.2 million bond, saying it will cause “undue delay, which will continue to deprive the tribe of a desperately needed source of government revenue.” Those numbers are based on projections done for the tribe that say an Island venue could generate as much as $4.5 million per year.

Both the town and the taxpayers’ association have been adamant that they would take this case all the way to the nation’s highest court. In the motion for the stay, the plaintiffs argue that the appeals court decision is in conflict with other court rulings, and so there is “good cause” to impose the stay.

This remains a tough route for opponents of the tribe’s casino plans. The Supreme Court takes just 1 percent of the cases it is asked to review.

“Would I bet on this? Not much, because of the odds,” Larry Hohlt, president of the Aquinnah/Gay Head Community Association, said. “But this does present issues that the Supreme Court frequently pays attention to, namely the conflict with another appeals court decision.”

That decision is a Fifth Circuit ruling involving the Ysleta Tribe. In that case, the court ruled that the federal Indian gaming law did not supersede a settlement agreement to restore the tribe’s lands, though the tribe has argued that doesn’t apply because the Ysleta specifically agreed to “tribal resolutions that indicated the tribe would not conduct gaming regardless of future changes in law.”

The motion for a stay also argued that the appeals court decision is in conflict with a Supreme Court ruling known as the Carcieri decision. In that ruling, the high court concluded that the Indian Gaming Regulatory Act did not cancel out the Indian Reorganization Act, which set forth which tribes were under federal authority as of 1934.

In their motion for the stay, the town, community group, and state argued that without it, the lower court’s injunction would be lifted and the tribe could proceed with its plans, requiring the town to seek another court injunction.

Ron Rappaport, the town’s attorney, declined to comment on the stay, saying the court filings speak for themselves.

The town, community group, and state maintain that a 1987 settlement agreement prohibits the tribe from hosting gambling facilities on its reservation land in Aquinnah.

The tribe has contended that the Indian Gaming Regulatory Act of 1988 supersedes that settlement agreement.

In April, the First Circuit overturned a lower court ruling that found the tribe had not exercised enough governmental control over its lands. More recently, the full appeals court rejected a motion to rehear that case, setting the stage for the potential Supreme Court showdown.

“[The appeals court] ignored what should have taken seriously, namely the background of how this came about,” Mr. Hohlt said. “We would be hardly stunned if [the Supreme Court] decides to take this case.”