The Wampanoag Tribe of Gay Head (Aquinnah) and the town were back in familiar territory — at odds in Judge F. Dennis Saylor IV’s federal courtroom.
“I view this as an entirely technical question,” Saylor said as he began a hearing at the John Joseph Moakley Courthouse in Boston Friday. “You were right and I was wrong,” he said, addressing the tribe about his first ruling that was appealed and won by the tribe.
Friday’s showdown in U.S. District Court comes as the tribe has started construction on its electronic bingo facility in Aquinnah. The towns of Aquinnah and Chilmark, and the Martha’s Vineyard Commission have all challenged the tribe’s contention that it does not have to answer to town zoning and building regulations.
No decision was made Friday. Saylor took the case under advisement.
Saylor heard the original court case that started in 2013 with then-Gov. Deval Patrick filing suit in state court for breach of contract when the tribe first began talking about a Class II gambling facility on its tribal lands. That talk came after Patrick refused to negotiate with the tribe for an off-Island casino.
Patrick and the town’s contention was that by going for a gambling facility under federal law, the tribe was violating the terms of its 1983 settlement agreement, which was codified by Congress in 1987. The tribe’s argument has been that the Indian Gaming Regulatory Act (IGRA), approved in 1988, superseded the settlement agreement.
The tribe successfully had the case moved to federal court, lost in a judgment made by Saylor, and appealed to the First Circuit Court of Appeals, where the tribe’s federal rights to operate a casino on tribal lands under IGRA were upheld. An attempt by the town, state, and the Aquinnah/Gay Head Community Association to have the case heard by the U.S. Supreme Court was rejected by the nation’s highest court — setting the wheels of construction in motion.
In April, the town filed a motion seeking final judgment in the case, in an attempt to force the tribe to comply with local zoning and building requirements. The tribe has filed opposition, saying that final judgment should be found in favor of the tribe, since the U.S. Supreme Court refused to hear the case, which originally went in favor of the town, but was overturned on appeal. The state is also involved, filing a motion to protect its interests in the case.
The town and the Martha’s Vineyard Commission have been trying to get the tribe to seek zoning and building permits for its casino project. The tribe has maintained that it is following federal regulations under the Indian Gaming Regulatory Act.
William May of Goodwin Procter, representing the town, agreed with Saylor’s initial statement, that the court is simply addressing a technical issue on which issues they previously entered judgment, contesting that permitting is intertwined in the issue of gaming law. “These requirements are separate,” May said. “If the tribe wanted to appeal, they had ample opportunity.”
Citing United States v. Matthews, May said that due to the tribe’s appeal, only listing three orders, none of which, he argued, included the issue of permitting, that their lack of appeal on this issue made the rest of the case, as decided at the district court level, law.
May, on behalf of the town, asserted that the court should preserve and enter judgment in favor of the tribe on issues that they appealed to the First Circuit, but allow the town regulatory permission for permits, not previously addressed.
Judge Saylor probed May, asking him if, due to the judgment not distinguishing between types of permits, it would have to be reworded.
“The task is to disentangle what was appealed and what was not,” May said. “The judgment should memorialize all done up to today. The only proceedings to remain are to enter judgment but not reverse on what was not appealed.”
Scott Crowell, the attorney representing the tribe, agreed that this is indeed technical in nature, but rested the tribe’s case on its appeal of the final judgement of the district court, and the mandate of the First Circuit, to enter judgment in favor of the tribe. Crowell argued that the IGRA is not just pertinent to gaming, but also sets up parameters for building and permitting. “It is a complicated and sophisticated regulatory scheme, an aspect of the injunction argued and briefed in the First Circuit,” he said.
In a case that the town cited as precedent, Hazen Co. v. Biggins, the First Circuit remanded for further proceedings, but here, the case was remanded and the district court was instructed to enter judgment in favor of the tribe. Crowell argued on behalf of the tribe that the town is attempting to reframe what was appealed, even though the appeal addressed if the tribe executes governmental authority, through IGRA.
Much of the tribe’s argument revolves around the regulations of the National Indian Gaming Commission, which has enforcement authority to address the same issues that a town permitting process would. Crowell argued that a science-based concern has yet to be brought to either the Wampanoag’s gaming council or to the National Indian Gaming Commission by the town.
The hearing boiled down to one thing, that being if there was sufficient government authority for the town to neutrally apply its permitting process to the tribe. “The homeowners association, sitting right behind me, have said that they don’t care what the First Circuit said,” Crowell said; allowing them to require town permits “would let them do indirectly what they want to do directly.”
While the town asserts that all prior town permits have been granted to the tribe when applied for, and that they would neutrally apply the principles of the town building permit, the tribe fears that by saying they have jurisdiction, the town is searching for the authority to say no to a project that they have openly opposed.
“We don’t need part-time shared officials,” Cheryl Andrews-Maltais, chairwoman of the tribal council, told The Times in an interview after the hearing of the assertion that the town needs to regulate the building of the Class II facility.
Andrews-Maltais spoke to the town’s assertion that the tribe needs to meet with its inspectors and officials, particularly the building inspector, who can only come to Aquinnah on Fridays in a brief window, often impacted by weather, ferries, and other unique Island difficulties.
“We don’t need the town for services,” Andrews-Maltais said. “The reality is, we are not going to continue to pay for services that the town doesn’t have. Tribal members are weary from being dragged into court, locals are fed up, and especially residents of Aquinnah are tired of footing the bill.”
The tribe has several professionals who are tasked with the same jobs as town officials within the tribe, from emergency services to inspection, and more, she said.
“The frustration is that it’s one thing to talk government to government — it’s another thing to say, ‘We have jurisdiction,’” Crowell said.
“They’re asking us to get permission, which we don’t need,” Andrews-Maltais said.
“It’s simply disrespectful,” Lael Echo-Hawk, co-council for the tribe, chimed in. “The tribe has been here since before Columbus.”
The Martha’s Vineyard Commission is expected to begin talking about the project on Monday, and invited tribe officials to attend. Andrews-Maltais said the tribe won’t be appearing, particularly in light of the ongoing court case. She said the tribe has sent a letter explaining the ongoing litigation, and has not heard back.
Now, battling the normal challenges that summer on the Island presents when it comes to construction, the tribe is looking to open its gambling facility in the fall. “The tribal council is unanimous,” Andrews-Maltais said, when it comes to the potential for success of the facility on the Island. “They just want to keep their foot on our necks.”