Tribe appeals latest court decision

Ruling undermines project and federal law, according to the tribe.

The tribe and the town appear to be headed back to court over the casino project in Aquinnah. -Lexi Pline

Saying the court’s decision provides a “roadmap to impede” their Island casino project, the Wampanoag Tribe of Gay Head (Aquinnah) is appealing a First Circuit of Appeals Court decision that would require them to seek local permits and undergo review by the Martha’s Vineyard Commission.

The tribe is asking for an en banc review of the case, which means they want all of the appeals court judges to review the decision. The tribe lost its appeal late last month on a technicality. Essentially, the court ruled that the tribe could not appeal the same lower court decision twice after it left out certain elements of the U.S. District Court decision to be reviewed in its first successful appeal.

In a 24-page brief filed on Thursday, the tribe’s attorneys argue that the appeals court decision contradicts other decisions made by the court, and the full court review is needed to “maintain uniformity with this court’s prior decisions.”

The questions at hand “weigh heavily on the diminishment of tribal self-governance over Indian lands as otherwise intended by Congress in the passage of the Indian Gaming Regulatory Act (IGRA),” the brief states.

“First, a party cannot be found to have waived in an initial appeal its right to appeal from a significant change in the terms of injunctive relief when that change occurred more than a year after disposition of the initial appeal,” the brief states. “Second, a tribe cannot be found to have waived its sovereign immunity by conduct in litigation where there is no conduct that indicates a clear expression of intent to waive such immunity, or where the governing body of the tribe did not vest its attorneys with express authority to waive such immunity. Third, Congress, in the passage of IGRA, impliedly repealed state and local laws that otherwise conflict or interfere with the comprehensive regulatory scheme established by Congress.”

IGRA, which was passed in 1988, allows tribes to provide gambling on tribal lands in states where gambling is legal.

The town and state contended the tribe waived its rights to gambling in a settlement agreement in 1987. The tribe has successfully argued that it couldn’t waive a right it did not yet have.

But in that successful appeal, the tribe’s attorneys neglected to appeal the full lower court decision, allowing a legal maneuver by the town and state to have an amended final decision filed by Judge F. Dennis Saylor that essentially allowed their proposed gambling facility, but only after getting local permits.

Under IGRA, permitting and building codes are under federal jurisdiction.

The appeal contends that the appeals court decision would do harm to the protections of IGRA.
“The Tribe is disappointed in the Panel Decision, and disagrees with much of the analysis stated therein, but per the narrow grounds for which rehearing en banc may be granted, the Tribe focuses herein on the above-stated errors,” the brief states. “The Tribe prefers that the Panel Decision be vacated in its entirety, which would be the proper disposition upon rehearing. Alternatively, however, the Tribe requests that those portions of the Panel Decision reasoning that IGRA’s comprehensive regulatory scheme does not include the construction, operation, and maintenance of gaming facilities, and those portions of the Panel Decision reasoning that the Tribe waived its sovereign immunity from unconsented suit by its conduct in this litigation, be stricken in an amended decision to minimize the adverse precedent and persuasiveness this case will otherwise, create to the detriment of Indian tribes throughout this country.”

In its conclusion, the tribe’s attorneys express concern that the appeals court decision “provides the town a clear roadmap to impede, render financially unattainable, or even fully collapse the tribe’s efforts to exercise its right by imposing restrictions or conditions that render any tribal gaming project unviable.”

After the appeals court ruling in February, town leaders and the Martha’s Vineyard Commission vowed to work with the tribe. At a meeting earlier this month, Aquinnah selectmen agreed to send the tribe a letter to invite them to talk about the project.

Jim Newman, chair of the Aquinnah board of selectmen, said the offer to meet with the tribe and hash things out remains. “I don’t know what to say, except it’s over when it’s over. We’re going to have to deal with it,” he said. “The offer to sit down and talk is still out there, and to cooperate as the court requested.”

He disagreed with the tribe’s attorney that the decision provides a “roadmap to impede” the tribe’s project. “That’s not the case whatsoever, and that’s not our attorney’s interpretation,” he said. “We never did want to impede it. We just wanted to talk. Nothing has changed.”

Tribal council chairwoman Cheryl Andrews-Maltais did not immediately respond to a request for comment.

“The Aquinnah Wampanoag people were among the first, if not the very first, Native Americans to be decimated by the war and disease and oppression brought to them by early immigrants and colonialists,” the court brief states. “The tribe has struggled to maintain its identity and presence in their homelands of over 10,000 years, despite 400 years of attempts to remove them and erase them from existence, including the encroachment and theft of their homelands. Allowing the District Court injunction to stand will ensure that they are the last to enjoy the gaming rights that have turned the page from desperation to self-sufficiency for hundreds of tribes throughout the United States.”


  1. ON the contrary. Native Americans have turned from ”self suffciency to desperation” with Gambling when only the higher ups get the money and not the people who really need it. I wouldnt want the MVC being involved with any decisions on MVC –they already have too much power over mundane issues. However gambling on MV will only depress more lives in a community which is already suffering from alcohol and drug addictions, foreclosures, bad debts and poor accountability. Perhaps the Kamala Harris COVID bill of 1.9 trillion will allow some people some relief.

  2. So the Tribe thinks their identity will be strengthened with a casino? That’s a head scratcher. And the building rules apply to all of us regardless of gender, race, nationality, or religion. No one should be above the rules the town put forth and voters approve.

  3. A conscious decision on the part of the tribe needs to be made with consideration for the good of All. This has nothing to do with theoast or the
    matter of sovereignty of the Wampanoag Tribe. It has to do with a soulful resonance with the Spirit of Moshup as peaceful guardians of this sacred land which is shared loved,
    enjoyed and respected by the island as a whole. Be sovereign, yes. But be WISE. Martha’s Vineyard whether by the tribe or the population as a whole is no place for a gambling casino. Everyone wit
    h common sense who loves this island understands this. I pray the tribe comes to understand it too. And by recognizing this truth, by listening, by calling upon your highest guidance to end this misguided venture NOW, you will be loved, appreciated and respected as never before for your wisdom and strength you showed by making the decision to let this idea go so that new and better ideas can be birthed by the Tribe that nourish and strengthen your honorable traditions as keepers of the flame of the Wampanoag Tribe here on our beloved island that would truly serve the highest good of All. Thank you. AHO

Comments are closed.