The Wampanoag Tribe of Gay Head (Aquinnah) is seeking a stay while it appeals a decision by U.S. District Court judge F. Dennis Saylor IV that it must seek local permits for its planned gambling facility on tribal lands.
In court documents filed Thursday, the tribe seeks the stay in order to continue construction on the Aquinnah Cliffs Casino, which will feature bingo-style gambling machines that have the look and feel of a slot machine. Under federal Indian Gaming Regulatory Act of 1988, the tribe does not require state or local licenses for the facility itself.
“The tribe will be irreparably harmed if the stay is denied, with the effect of ripping from the tribe the governmental revenues it needs to provide essential governmental services to its members,” the affidavit that accompanies the motion for a stay states. “Conversely, the town and commonwealth will suffer no harm whatsoever if the stay is granted, as federal and tribal law more than adequately protects public health and safety, and the environment, with respect to the Tribe’s gaming facilities and operations.”
On Thursday night, Aquinnah selectman Juli Vanderhoop told the Martha’s Vineyard Commission (MVC) construction started again on the property. “As of yesterday, the town has seen movement on the property, and the town is filing a contempt of a court order against the tribe, as they are not following the court order,” Vanderhoop said.
Vanderhoop and town administrator Jeff Madison expressed their need for support from the commission and the rest of the Island. “We would hope that the commission would support the town’s efforts. Up until now, we’ve gone alone on this, we footed the bill — alone — on this,” Madison said. “No longer will Gay Head be known for the Gay Head Cliffs, we’ll be known as the Aquinnah casino.”
“We don’t know what we’re facing, and we’re being violated by this entity,” Vanderhoop added. “Certainly for myself and for [Madison] as tribal members, Aquinnah tribal members, who have always looked for a joint discussion, and we have none.”
Commissioner James Joyce disagreed Aquinnah has been going it alone. “We have contributed $50,000, $60,000 worth of legal fees already,” Joyce said. “They’re not going alone. We are there with resources, trying to do what we can.”
Chairman Douglas Sederholm said the MVC has not paid any part of Aquinnah’s legal fees. The only legal fees the MVC incurred were to prepare for activities the commission “may take.” Moving forward, the MVC plans to ask its counsel what the “most appropriate next step” is for the commission.
“Should we join in Aquinnah’s action that is going on right now? Should we do something independently? Should we do nothing and wait until something further happens?” Sederholm said.
With the project referred to them as a development of regional impact (DRI), the commission unanimously voted to deny the casino, though they had no detailed application to consider from the tribe. The project can still be applied for at any time in the future. “We tried pretty hard to come up with an agreement that was fair and equitable for everyone and involving the Island, involving the commission, involving the tribe and the town,” commissioner Jim Vercruysse said. “We received some hope in the beginning, and then no response after that, and I’m really saddened by it.”
The back and forth in federal court has been going on for six years, starting with a lawsuit filed in state court by then-Gov. Deval Patrick against the tribe for breach of contract. The state’s contention was that the tribe was violating the terms of its 1983 settlement agreement, which was codified by Congress in 1987. In exchange for tribal lands, the tribe agreed to follow local and state laws.
The tribe successfully had the case moved to federal court, where Saylor found in favor of the town, state, and the Aquinnah/GayHead Community Association. The tribe appealed and the lower court ruling was overturned, but the tribe failed to appeal Saylor’s entire ruling. When the U.S. Supreme Court refused to hear the case, the town filed a motion seeking final judgment, and last month Saylor ruled that the town could build its casino, but would have to seek local permits for the project.
In its argument, the tribe contends that Saylor has given the town and state a roadmap to block the casino project.
“This Court then concludes that the Tribe must comply with all General Regulatory Laws of the Commonwealth by making it seek permits for construction. In other words, the town, with its longstanding vehement opposition to the tribe’s gaming efforts, and motivated to interfere in any way possible with the tribe’s exercise of its rights under IGRA, may indeed interfere, so long as the interference occurs in the context of the construction, occupancy, or operation of the tribe’s gaming facility,” the affidavit states. “Perhaps this court intended only that the tribe be required to obtain routine permits for electrical outlets and other similar science- and code-based permits, but instead, it has given the Town a roadmap and the tools to stop or unduly interfere with the tribe’s gaming facility by merely framing the town’s ordinances and regulations, and its permitting decisions, as restricting construction, occupancy and operation, rather than as illegally restricting the Tribe’s right to conduct gaming operations. The absurd reality of how this can come to pass was demonstrated by the town in its own pleadings in support of the initial preliminary injunction, when confronted with the fact that town law is silent on the legality of bingo, despite the town’s repeated representations to this court to the contrary.”
The affidavit points out that in its compact with the Mashpee Wampanoag Tribe, the commonwealth requires the tribe to have building codes equal to or more stringent than the state, but leaves it up to the tribe “to apply and enforce their codes.”
The tribe points to comments made in newspapers and at town meetings to show that the town’s intent is to block the casino project. “A review of the videos of town meetings demonstrates a pattern of hostile statements and wild, unsubstantiated accusations made by town officials,” the affidavit states.
No date has been set for a hearing on the tribe’s motion.
Brian Dowd contributed to this report.