Updated @6:40 pm
A federal appeals court has rejected a request for an en banc review of the Wampanoag Tribe of Gay Head (Aquinnah) versus the town and state.
In a brief decision posted Monday, the judges stated, “The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.”
Last month the tribe’s attorneys filed the petition seeking the full court’s review, stating that the decision by the First Circuit Court of Appeals essentially provided a “roadmap to impede” the tribe’s casino plans in Aquinnah. The tribe hopes to build a Class II casino, which is an electronic bingo facility, under federal law,.
The town essentially won its appeal on a technicality. Tribe attorneys failed to appeal the full ruling by a lower court, allowing attorneys for the town and state to file for and win a final judgment that allowed for a casino to be built on tribal lands, but not without going through the permitting process.
The tribe’s attorneys had argued that the appeals court decision is at odds with other decisions made by the court with regard to the federal Indian Gaming Regulatory Act of 1985. The tribe has argued that their project only requires federal review under the National Indian Gaming Commission.
“We are obviously very disappointed in the decision,” Cheryl Andrews-Maltais, chairwoman of the Aquinnah Wampanoag, told The Times in a text message. “While these requests are rarely granted, in our opinion, the extremely rare circumstances which surrounded this appeals process should have been granted special consideration. We believe that the decision is wrong.
“While disappointed, the fact still remains that the Appeals Court rejected the state’s and town’s challenges to the tribe’s right to game under the federal Indian Gaming Regulatory Act, and made clear that the town cannot use the permitting process to interfere with those rights. The tribe will proceed with the establishment of a Class II gaming facility on our Indian lands, which will provide needed jobs and necessary governmental revenue to provide programs and services to our members. The facility will provide a first-class entertainment venue for the entire Island and its millions of visitors.”
Before the most recent court action, both the MVC and the town vowed to work with the tribe.
“As we proceed, we are hopeful the town and Martha’s Vineyard Commission will heed the court’s direction and not do anything to impede the process,” Andrews-Maltais wrote.
Jim Newman, chair of the Aquinnah select board, could not be reached.
Updated with a comment from Andrews-Maltais.