Updated Feb. 26
The Wampanoag Tribe of Gay Head (Aquinnah) will have to work with town planners and the Martha’s Vineyard Commission, according to an opinion issued by the First Circuit Court of Appeals.
The ruling, issued Thursday, upholds a lower court ruling that found that the tribe can build a gambling facility on reservation lands, but must get local permits and follow zoning regulations. The decision concludes with a hope that the two sides will work together and end the protracted appeals.
The tribe is looking to build a 10,000-square-foot facility with about 250 electronic gaming machines. Plans announced in 2019 also call for a beer and wine bar, outdoor seating area, and mobile food vendor area. The gambling facility would employ 100 full- and part-time employees when operational.
Thursday’s ruling is the latest ruling in a case that dates back to 2013, and has had more twists and turns than up-Island roads, with the tribe facing off against the state, town, and the Aquinnah/Gay Head Community Association.
At issue have been the tribe’s rights under the federal Indian Gaming Regulatory Act (IGRA) of 1988 to build a gambling facility on its Island land.
In essence, the appeals court ruling comes down to a missed opportunity by the tribe. In successfully appealing the lower court’s decision that the tribe could not open an electronic bingo facility on its land because of a 1987 settlement agreement between the tribe and state, the tribe failed to explicitly include that it wanted to appeal the entire ruling by Judge F. Dennis Saylor.
“The main question before us now, however, is not primarily about IGRA, but whether a party who did not raise a particular issue in that first appeal, though it could have, may do so on successive appeal,” the ruling states. “Because we have previously explained that a party may not, absent exceptional circumstances, and because those exceptional circumstances are not present here, we affirm the judgement of the district court.”
In the 1987 settlement agreement, the tribe agreed to end a lawsuit in exchange for about 400 acres of land. In the deal, the tribe waived its rights to gambling, and agreed to follow local zoning regulations. But that deal predated the federal Indian Gaming Regulatory Act of 1988, which gave federally recognized tribes like the Aquinnah Wampanoag the right to offer casino gambling on reservation lands.
Saylor initially sided with the state, town, and community association that the tribe had waived its rights. The tribe successfully appealed, and then appeared to be headed for the jackpot when the U.S. Supreme Court decided not to hear the case.
But the state, town, and community association had one last chip to play — asking and receiving an amended final judgment from Saylor, which prompted this latest appeal by the tribe and put its casino, which was in the works, on hold.
The tribe attempted to make the case that it did, in fact, appeal the “waiver,” but the appeals court judges did not agree.
“We are not convinced the tribe’s use of ‘gaming laws’ actually encompassed non-gaming laws which may incidentally touch on gaming,” the ruling states. “The tribe did not, as it does now, include any arguments as to the scope of IGRA’s implied repeal of the settlement act, which might have suggested that it was intending to appeal the permitting issue. Nor did the tribe’s brief, despite leaning heavily on one of our circuit’s seminal cases in this area, ever cite or reference a crucial portion of that opinion which suggested that whether certain activities are regulable may depend on whether they are ‘deemed integral to gaming.’”
In a text message, tribal council chairwoman Cheryl Andrews-Maltais wrote that the tribe is “obviously disappointed in the court’s wrongful decision supporting the town’s continued persecution of the tribe’s rights. We will continue to press forward in asserting our right to conduct tribal gaming as an option for providing for our tribal members. However, we need to remember that nothing about this opinion changes the fact that the tribe can conduct gaming on our settlement lands, and the decision further makes clear that neither the town nor the Martha’s Vineyard Commission can use the permitting process to stop the tribe’s gaming facility from opening.”
Aquinnah board of selectmen chair Jim Newman said he is happy the litigation has been settled. Going forward, he said, the town will make every effort to work with the tribe in a constructive and cooperative manner. “The sooner we can get back to normal relations, the better it will be for everyone,” Newman said. “We want to constructively move forward.”
He added that a discussion on the court’s ruling is on the agenda for the Aquinnah selectmen’s meeting on Tuesday, March 2.
Martha’s Vineyard Commission executive director Adam Turner touched on the ruling by the court during his report at Thursday’s commission meeting. “I take no great pleasure in any of this — we spent a lot of money, they spent a lot of money. If you read the decision, the court says this has been going on a long time, and both sides need to work together,” Turner said.
He added that the commission was not trying to go against the tribe’s desire to operate a gaming facility, but they wanted to make sure the process “was done right, and protected the Island.”
“After the decision, I feel exactly the same way,” Turner said. “Whatever they want to do, we will be back at the table as soon as they want.”
Commissioner Doug Sederholm said he believes the ruling was focused largely on the town’s authority to regulate, although the 37-page opinion requires extensive consideration.
“The court found that on a procedural basis, the tribe should have raised the permitting issue earlier. Having failed to do so, it had waived its right to raise it on appeal in this litigation,” he said.
He added that “the door is not completely closed. If the tribe can establish that its integral functions are being restricted by town regulations, or that the town is regulating it in a discriminatory fashion, the court certainly said they could come back.”
In the appeals court ruling, the judges urged the two sides to work together to avoid future litigation. But the court also pointed out that neither the town nor the MVC should use regulations to interfere with the project.
A motion could be filed, “should the tribe conclude that it has a basis to maintain that local regulations as applied by the town turn out to interfere with the integral activities of gaming in a manner or to an extent not anticipated by the district,” the decision concludes. “Nor do we express any view on whether any particular local regulatory law that, as applied, effectively precludes a gaming establishment is for that reason itself a ‘gaming law’ as defined by the district court.”
The decision further states, “We also wish to highlight a sentiment expressed by the district court. It explained that the town may not enforce its laws ‘in a nonneutral way in order to unduly burden or harass the tribe or to prevent them from opening the casino.’ The tribe has not waived a challenge to the state and local permitting requirements should the commonwealth or the town treat the tribe in an arbitrary or unequal manner.”
The decision concludes with a message to all involved: “The parties have been litigating this dispute since 2013, and ‘we do not mean to encourage the protagonists to litigate ad infinitum … If cool heads and fair-minded thinking prevail,’ we may yet avoid a third round of appeals between these parties.”
Both sides are responsible for their court costs, the ruling states.
Reporter Lucas Thors contributed to this story. Updated to include more reaction and details.
December 2013: Gov. Deval Patrick files suit against the tribe in state court after tribal leaders openly talk about plans to convert a community center into an electronic bingo hall. Patrick had refused to negotiate a tribal-state gaming compact for an off-Island casino under the state’s then-new casino gambling law.
March 2014: The tribe successfully gets the case moved to federal court, where the Indian Gaming Regulatory Act comes into play.
March 2015: U.S. District Court judge affirms the tribe’s settlement agreement with state and town, a setback for the tribe’s casino plans.
April 2017: The U.S. First Circuit Court of Appeals overturns the lower court ruling and remands the case, essentially paving the way for an Island casino.
May 2017: The appeals court refuses a request by the state and town to rehear the case.
January 2018: The U.S. Supreme Court refuses to hear the case, a victory for the tribe.
June 2019: A federal judge issues a final judgment saying that the tribe can build a gambling facility, but it must apply for local permits.
July 2019: A federal judge puts the casino project on hold while the tribe appeals his decision.
January 2020: The tribe filed its brief outlining its appeal.
September 2020: The two sides squared off in an appeals court hearing.
February 2021: The appeals court sides with the town and state on what is essentially a technicality. The tribe failed to appeal the full lower court decision the first time around.