Updated Nov. 7 at 11:30 am
On Monday, the Wampanoag Tribe of Gay Head (Aquinnah) filed its opposition to a petition by the state, the town of Aquinnah, and the Aquinnah/Gay Head Community Association seeking U.S. Supreme Court review of the tribe’s casino plans.
The tribe had been given an extension until Nov. 13 to file its opposition. The state, town, and community group filed for a petition for certiorari in August, asking for Supreme Court review after the tribe won permission to open a bingo hall, using electronic machines similar to slots, at its vacant community center.
“Once the petitions are denied, we hope the commonwealth and the town will take the tribe up on its longstanding offers to coordinate efforts between our governments so that the entire community will benefit from the tribe’s economic development activities,” Cheryl Andrews-Maltais, the tribe’s chairwoman, wrote in a prepared statement.
At issue is whether a 1987 land settlement reached between the town, the state, and the tribe remains binding after Congress passed the Indian Gaming Regulatory Act (IGRA) of 1988. The tribe contends that IGRA supersedes the settlement act, which the First Circuit Court of Appeals upheld.
In the agreement, the tribe agreed to “be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts and the town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).”
In its 40-page court filing, the tribe’s attorneys contend that the language only relates to the short window of time between when the settlement act was codified by Congress and when IGRA was enacted.
The state and town, which won at the district court level, contend that the settlement act is binding, and that the tribe knew it was waiving its rights to offer gambling on the Island of Martha’s Vineyard. In its brief before the nation’s highest court, the state and town contend that the First Circuit decision is in conflict with another appeals court ruling in the Fifth Circuit that went against a Texas tribe.
IGRA was approved by Congress to resolve questions over tribe rights, the tribe’s brief argues. If Congress wanted to make IGRA not applicable for the Aquinnah Wampanoag, it could have done that, the tribe’s brief argues.
“If any doubt remains, it should be resolved not by looking to legislative history, but on the ground that ‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit,’” the tribe’s brief states.
The state and town case for review also argues that the appeals court decision is in opposition to the Supreme Court with regard to “implied repeals.” In the case where two laws 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.
The tribe’s brief contradicts that. “The rule that a later-enacted statute prevails over an earlier conflicting one dictates that IGRA displaces the Settlement Act with regard to gaming. The later-enactment rule is sometimes called the ‘implied repeal’ doctrine: When two federal statutes ‘are in irreconcilable conflict,’ this Court has said, ‘the later act to the extent of the conflict constitutes an implied repeal of the earlier one,’” the tribe’s brief states.
In its petition, the town and community association pointed to an April 1986 hearing before the Senate Select Committee on Indian Affairs, where 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.
“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 tribe responds to that by saying Ms. Widdis was referring to an earlier draft of the settlement act, which provided more jurisdiction to the state and town. “Moreover, IGRA had not passed at this point, so the leader’s statements say nothing about her understanding of the gaming landscape after that statute became law,” according to the tribe’s court filing.
As for arguments that the tribe’s proposed casino will hurt the town or the state’s fledgling casino industry, the tribe’s brief says that’s not true. “Contrary to petitioners’ assertions, the Tribe’s proposed bingo facility would have few, if any, negative consequences for the Commonwealth or the Town, while having many positive impacts for the Tribe,” the brief states.
The tribe has indicated previously it can make $4.5 million from the Island facility it has planned, a small fraction of the hundreds of millions that would be generated from the Wynn casino under construction in Everett or the MGM casino in Springfield.
“As for its stake in this case, the Town fails to specify how the Tribe’s modest bingo facility will ‘adversely affect’ the local community, or how it will ‘burden’ local government,” the brief states. “A bingo facility on the Tribe’s settlement lands would be tucked away in the remote western corner of the Island, far from the populous towns on the island’s east side. The facility, under the Tribe’s 2015 proposal, would match the architecture that already exists on the island.”
It remains a long shot that the Supreme Court will take up the Aquinnah Wampanoag case. Each year the court chooses to hear just 1 percent of the cases it’s asked to review.
Editor’s note: Updated to include details from the court filing.