The Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah squared off in a remote hearing before the First Circuit Court of Appeals Monday morning over whether the tribe’s proposed bingo facility, known as Aquinnah Cliffs Casino, needs to follow town, county, and state zoning and building laws.
Each side was given 15 minutes to present its case — attorney Scott Crowell represented the tribe, and attorney William Jay represented the town, the Aquinnah Gay Head Community Association, and the state’s interests. The oral arguments were heard by a three-judge panel that included Juan Torruella, O. Rogeriee Thompson, and William Kayatta Jr.
At issue is the town and the Martha’s Vineyard Commission’s contentions that the tribe, though it has authority under the federal Indian Gaming Regulatory Act to have a Class II gaming facility on its tribal lands, must comply with local zoning and commission regulations. The tribe’s argument is that IGRA gives the federal government, not local entities, regulatory authority over the gambling facility.
The case, which began in 2014, has had several rulings and appeals. It even made it to the doorstep of the U.S. Supreme Court, but the nation’s highest court decided not to take on the case.
In the spring of 2019, the tribe began clearing the land for its gaming facility, and ignored overtures from the town and Martha’s Vineyard Commission to seek permits. The town and community association requested a final judgment from U.S. District Court Judge F. Dennis Saylor, and in June of 2019 Saylor, who heard the initial case, issued a final judgment that while the tribe is within its rights to operate a casino on tribal lands, it failed to appeal his ruling about zoning and building permits, so those apply to the tribe.
Crowell said there’s nothing on the Island to compare the tribe’s proposed facility to and, thus, the town and MVC would essentially be able to make up the rules — something the federal government sought to avoid by approving IGRA in the first place.
“This opinion, if allowed to stand, allows the town and the Martha’s Vineyard Commission to kill the tribe’s gaming operation with a thousand cuts,” Crowell said. “There’s no tribe operating Class II gaming facilities that are subject to county or local zoning laws, and this will make Aquinnah an aberration. The ability for the town to interfere and do indirectly what it can’t do directly is the interference that makes the application of town laws inapplicable.”
Jay said the town and community association are not attempting to block the operation of the casino, but want the oversight over zoning and building permits that they say a 1987 settlement agreement between the town and the tribe authorizes.
“If the question is whether generally applicable town ordinances such as zoning plan can be used to prevent gaming specifically — I think what he said was to do indirectly what IGRA prevents the town from doing directly — the district court made very clear that it wasn’t passing on any such theory,” Jay said. “[Saylor] made it clear he did not see any evidence of such a pretext here, but invited the tribe to come back if it had any evidence that local law was being manipulated to prevent gaming from being conducted as this court’s prior opinion would allow.”
Several times during the hearing, the judges stopped the prepared remarks of Crowell and Jay, and asked questions aimed at narrowing their understanding of the difference of opinion — one of them asking if the town would have any authority over the gambling operations.
“We’re not claiming any authority to regulate the conduct of the gaming,” Jay said. “Precisely because that is an area where IGRA is a detailed federal regulation.”
At one point, one of the justices pointed out that issues such as the number of parking spaces could be the topic of future litigation. “This could go on and on and on and on,” Thompson said.
Because the audio was broadcast over YouTube with no video, it was sometimes unclear who was speaking. Both sides also filed supporting briefs that will be considered by the appeals judges.
Several entities have also filed amicus briefs in the case — the National Congress of American Indians and USET Sovereignty Protection Fund Inc. in support of the tribe; and the Martha’s Vineyard Commission in support of the town and community association.