The 82 pages in two separate petitions filed before the U.S. Supreme Court regarding a Wampanoag Tribe of Gay Head (Aquinnah) casino can be summed up in five words: A deal is a deal.
The two petitions for what’s known as a writ of certiorari were filed last week — one by the Commonwealth of Massachusetts, and the other a combined effort by the Town of Aquinnah and the Aquinnah/Gay Head Community Association. They ask the nation’s highest court to intervene and rule on disparate decisions issued by the First Circuit Court of Appeals in favor of the tribe and a Fifth Circuit Court of Appeals that went against a Texas tribe — the cases with similar circumstances, a tribe wanting to offer gambling and a congressionally approved land agreement that prohibits it.
At issue is the agreement made between the Aquinnah Wampanoag, the state, the town, and the community group to give the tribe 485 acres of land in exchange for the tribe’s commitment to follow local bylaws and state laws in general, and gambling laws in particular.
That deal was codified by the 100th Congress 30 years ago this month. Fourteen months later, that same 100th Congress approved the Indian Gaming Regulatory Act of 1988 (IGRA), a law giving federally recognized tribes the right to provide gambling on Indian lands with certain exceptions. The law was the culmination of years of negotiations happening at the same time the Aquinnah Wampanoag were hashing out their deal with the town and state.
Page 8 of the town/community group brief makes a clear case that tribe leaders at the time knew the rights they were about to cede.
In an April 1986 hearing before the Senate Select Committee on Indian Affairs, Gladys Widdis, the tribal council chairwoman at the time, testified about the importance of the tribe’s settlement agreement for the development of the tribe economically and socially, the petition states.
“Mr. Chairman, we recognize and accept that this bill will not empower our tribe to conduct high-stakes gaming on the public or private settlement lands provided in this bill,” Ms. Widdis is quoted as saying. She also provided a written statement, according to the petition. “We recognize and accept that no gaming on our lands is now or will in the future be possible,” she wrote.
The state brief also mentions the statement by Ms. Widdis, and points out that the tribal body twice approved the settlement agreement, which included the language prohibiting games of chance, including bingo.
Tribal council chairwoman Cheryl Andrews-Maltais did not respond to an email question about the statement made by Ms. Widdis; instead, she issued a statement from her and the tribe’s attorneys vowing to continue to defend the tribe’s position.
“The most recent actions by the commonwealth, the town, and the community association continuing their efforts to stifle the tribe’s sovereignty and rights are not unexpected — albeit disappointing,” she wrote. “Our tribe has lived on Noepe [Martha’s Vineyard] for over 13,000 years, and we will continue to defend our homelands, our people, and our rights from the overreach by those who have come to our homelands with the intent to control our community and disregard our rights.”
The petitions filed Tuesday ask the nation’s highest court to review the case because the First Circuit Court of Appeals decision contradicts a decision on a similar case in the Fifth Circuit, and because, they say, it contradicts previous opinions by the Supreme Court with regard to “implied repeals.” In the case where two laws are approved by Congress clash, the courts usually side with the more specific of the two, in this case the settlement act, according to the briefs filed in support of Supreme Court review.
“Rather than reconciling the two statutes, the First Circuit cherry-picked which of the two it preferred to apply,” the petition filed by the town and community group states.
The tribe’s argument, which the First Circuit upheld, is that the Indian Gaming Regulatory Act of 1988 supersedes the settlement agreement reached the year before, and approved by the same Congress. In that 1987 agreement, the tribe agreed to follow local and state laws, with specific reference to a ban on games of chance, including bingo, in exchange for nearly 500 acres of land.
In her email, Ms. Andrews-Maltais also provided a statement from the tribe’s lead attorneys, Scott Crowell and Leal EchoHawk.
“The petitions disingenuously attempt to manufacture a split in the circuits regarding the well-settled principles of implied repeals as the reason why the Supreme Court should hear the case,” they wrote. “There is no disagreement as to the law regarding implied repeals, and there is no split in the circuits. Both the Fifth and First circuits applied those well-settled principles to the statutes before them to conclude the Isleta Pueblo and the Passamaquoddy may not offer gaming under IGRA, and the First Circuit applied the same case law to different statutes to conclude the Aquinnah and Narragansett Tribe may offer gaming under IGRA. We expect the Supreme Court will conclude that their limited time and resources should be devoted to cases worthy of their review and deny the petitions.”
Indeed, the Supreme Court review remains a long shot. The court accepts only about 1 percent of the nearly 8,000 cases it is asked to review each year.
The other argument given plenty of attention in the briefs is, Why would the same representatives serving in the 100th Congress pass the settlement act with a ban on gambling and then approve IGRA 14 months later without any mention of the Aquinnah tribe’s rights?
“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 brief states.
In a footnote, the absence of Aquinnah is explained as “likely a carryover from the prior report” to the Senate committee. “In any event [it] is immaterial, as the report simply provides two representative examples of settlement acts — not an exhaustive list,” the petition states.
The First Circuit did not see it that way, and the tribe is banking on the Supreme Court taking a pass.
The tribe has 30 days to either file a brief in response to the petitions or to waive that right. The Supreme Court typically takes about six weeks to decide whether it will take the case or not, according to the court’s website.
The state and town have counsels of record with ties to U.S. Supreme Court justices, according to their online biographies.
Felicia Ellsworth, counsel of record for the town and Aquinnah/Gay Head Community Association, was described as a “rising star” by the website Law 360. A partner with WilmerHale, Ms. Ellsworth honed “her skills as a trial attorney first as a clerk in the First Circuit, then under the guidance of Supreme Court Chief Justice John Roberts,” according to the online profile. Mr. Roberts is chief justice of the Supreme Court.
Meanwhile, the state’s lead counsel also has ties to a Supreme Court justice. Elizabeth Dewar, the state solicitor working for Attorney General Maura Healey, served as a clerk for Justice Stephen Breyer, according to a press release posted on the AG’s website. Ms. Dewar successfully defended in the Supreme Judicial Court two lawsuits challenging decisions to certify initiative petitions to appear on the November 2016 ballot, according to the press release.
How dispute arrived at the Supreme Court’s doorstep
1974: The Wampanoag Tribe of Gay Head (Aquinnah) files federal lawsuit claiming title to 238 acres of land.
1977: Settlement negotiations between the tribe, town, and state begin.
1981: The parties reach consensus on key principles of the settlement agreement.
1986: A Senate Select Committee on Indian Affairs hears testimony on the settlement agreement, including testimony from tribe leader Gladys Widdis saying the tribe understands it is giving up rights to gambling.
1987: The 100th Congress approves the settlement act, which provides 485 acres of public and private lands to the tribe in exchange for the commitment to follow state law and town bylaws, with specific reference to a ban on gambling.
1988: The 100th Congress approves the Indian Gaming Regulatory Act (IGRA), which authorizes federally recognized tribes to offer gambling in tribal lands under certain conditions.
2011: Massachusetts approves expanded gambling; the bill includes provisions for a slot parlor and three resort casinos, and gives preference to a tribe in Southeastern Massachusetts.
2012: Rebuked in an attempt to negotiate a compact for an off-Island casino in Freetown/Lakeville, the tribe wins federal approval of a gambling ordinance for a bingo hall at its vacant community center in Aquinnah.
2013: Then-Gov. Deval Patrick files suit against the tribe, claiming breach of contract.
2015: After successfully having the case moved to federal court, a U.S. District Court judge finds in favor of the state, town, and community group, saying the tribe does not qualify under IGRA and had not demonstrated sufficient governmental authority over its lands.
April: The First Circuit Court of Appeals overturns the lower court ruling.
August: The state, town, and taxpayers’ group file for U.S. Supreme Court review.