Town, state make case for Supreme Court intervention

Documents officially filed asking for review by nation’s highest court.

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It may ultimately be the U.S. Supreme Court that decides whether this Aquinnah Wampanoag building is used for gambling.

The U.S. Supreme Court is being asked to resolve a conflict between the Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah, a citizens’ group, and the commonwealth of Massachusetts.

In documents filed Tuesday, the town and the Aquinnah/Gay Head Community Association filed a petition for a writ of certiorari, asking the nation’s highest court to overturn an appeals court ruling that would pave the way for a Martha’s Vineyard bingo hall run by the tribe. In a separate filing, Massachusetts Attorney General Maura Healey also filed a petition of cert, as it’s called, making the state’s case against the tribe and calling the court’s decision to take the case one of national importance, because of the implications it will have on other jurisdictions with regard to the Indian Gaming Regulatory Act (IGRA).

In its petition, the town asserts that the appeals court ruling contradicts past decisions of the Supreme Court. “The First Circuit held that IGRA impliedly repealed a carefully negotiated settlement act despite the total absence of evidence that Congress intended that result,” the petition states. “That departure from this Court’s precedent, particularly in the exceptionally important and heavily regulated area of federal Indian law, warrants this Court’s review.”

The case is a long shot, given that the U.S. Supreme Court takes only about 1 percent of the 8,000 to 9,000 cases it’s asked to review each year.

The two sides are at odds over the tribe’s federal rights to offer gambling on reservation land. The town and state claim the tribe waived its rights in a 1987 land settlement agreement approved by Congress, while the tribe’s position is that it could not waive a right it did not have at the time. The Indian Gaming Regulatory Act, which gives tribes the right to offer gambling in states where it’s legal, was approved in 1988 — one year after the settlement agreement.

“The district court concluded on summary judgment that the Tribe remained subject to state and local gaming restrictions, finding it implausible that the same Congress could have intended to impliedly repeal the Settlement Act when it enacted IGRA one year later,” the town and community group’s petition states.

The petition also argues that there was testimony before Congress by a Rhode Island senator to ensure that IGRA would not supercede settlement agreements. “Other aspects of the legislative history likewise confirm that Congress considered IGRA’s consequences for settlement acts and intended for them to remain in full force and effect,” the petition states.

While the tribe has often argued it couldn’t waive a right it didn’t know it had, the petition uses the proximity of the votes to its advantage in the petition. “It is simply implausible that the members of Congress who were heavily involved in enacting the Settlement Act — while simultaneously drafting the provisions of IGRA — intended their work to be undone by IGRA’s enactment the following year,” the petition states.

In its separate filing, Attorney General Healey’s office asserts that there is great national importance in having the Supreme Court take on the case. “The circuit split on the question presented implicates disputes beyond Martha’s Vineyard,” the petition states, noting cases in Texas and Florida.

The protracted legal battle between the state and the tribe began in 2013 when then-Gov. Deval Patrick filed suit in state court, claiming the tribe had breached its contract with the state, which prohibits games of chance like bingo. The tribe successfully had the case moved to U.S. District Court in Boston, where a judge ruled in 2015 that the tribe had not demonstrated sufficient evidence that it had the right to control governmental power over settlement lands.

The tribe appealed to the 1st Circuit, which in April remanded the case to U.S. District Court in Boston. That court has delayed a decision on the remand while the town and state pursue the Supreme Court appeal.

Tribal leaders and the tribe’s lead attorney, Scott Crowell, could not be immediately reached for comment.

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  1. I’m not a lawyer but my take on this should be whether the Wampanoag can run a casino on the grounds affected by the Settlement Act. Those became tribal lands with proper legalese which I believe included wording to result in land forfeiture if the Wampanoag did not uphold their side. If the Wampanoag have tribal land not granted by some settlement act, let them build their casino there, the Court said it’s okay. But to accept the terms of the Settlement Act only to disregard at their convenience, the Settlement Act should revoke and the land returned …. maybe to the Land Bank to be kept in its natural state.

    The Wampanoag can build on the mainland if they’ve land without restriction, that should satisfy the Court decision. Lawyers?

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