The Wampanoag Tribe is asking the U.S. Court of Appeals to reverse a ruling by a U.S. District Court judge who said the tribe must obtain local and state building permits before it can build a class II gaming facility.
The Wampanoag Tribe of Gay Head (Aquinnah) is asking the U.S. Court of Appeals First Circuit to reverse last year’s ruling by a U.S. District Court judge who said the tribe must obtain local and state building permits before it can build a class II gaming facility.
The June 2019 ruling from the Hon. Dennis Saylor 4th has left the unfinished bingo hall project in limbo for the past seven months, with attorneys for the tribe and the town retreating to law offices to prepare for yet another battle in the appellate court.
In a mountainous, 177-page opening brief filed on Jan. 21, the tribe argues, among other things, that Judge Saylor’s ruling threatens its economic livelihood and fails to recognize tribal sovereignty. Attorneys for the tribe argue strenuously that the federal Indian Gaming Regulatory Act (IGRA), which has broad jurisdiction over tribal gaming facilities, makes state and local permitting regulations unnecessary.
“The crux of this appeal is whether IGRA preempts commonwealth and local laws and regulations regarding the construction, occupancy and operation of the tribe’s gaming facility, which laws and regulations are repugnant to the comprehensive, sophisticated regulatory scheme established in IGRA,” the tribe’s summary of argument reads in part.
The latest legal clash between the town and tribe dates to 2017, when the Court of Appeals First Circuit reversed a 2015 decision by Judge Saylor, who found the tribe could not build a gambling hall on tribal lands in Aquinnah under the terms of a land claims settlement it had signed with the town and a group of taxpayers in the 1980s. In a procedural lapse following the reversal, which he later acknowledged and corrected, Judge Saylor did not immediately enter final judgment in favor of the tribe. In their brief, tribal attorneys seized on the issue.
“The district court . . . never entered judgment in favor of the tribe as instructed by [the court of appeals],” the brief states “Instead, the district court waited. And waited. And waited.”
The problem came to light late last winter when the tribe cleared four acres of land off Black Brook and State Roads in order to begin construction on the planned 10,000-square-foot electronic bingo hall. The town returned to U.S. District Court, asking Judge Saylor to enter final judgment with the caveat that the tribe local permits were still required. Town attorneys argued that while IGRA regulates gaming inside the facility, the town still had the authority to regulate the building itself.
After a hearing in Boston, Judge Saylor agreed.
The tribe is now appealing that decision to the same court that sided with them in 2017. The brief makes forceful legal and economic claims.
“The [entry of final judgment], if allowed to stand, will eviscerate the United States’ and tribe’s jurisdiction over the tribe’s Indian lands, devastating the tribe’s ability to generate employment opportunities for its tribal members and the community, and its ability to generate governmental revenue from gaming, which revenue is desperately needed in order for the tribe to fulfill Congress’ intended goals of promoting tribal economic development, self-sufficiency, and strong tribal government,” attorneys write.
They argue that Judge Saylor’s decision sets a dangerous precedent because it separates the gaming and construction aspects of the facility, which they say could have wide-ranging implications — potentially opening the door for towns to interfere with tribal gaming rights elsewhere.
The brief also includes a number of procedural claims, including that the U.S. District Court should not have heard the town’s argument for the entry of final judgment because the 150-day statutory time limit had passed.
A hearing date has not been set.
Whatever the Appeals Court decides is expected to bring an end to the legal standoff, since the U.S. Supreme Court has already declined to hear the case.
Meanwhile, the bingo hall site in Aquinnah has been cleared of trees and scraped of topsoil but remains unoccupied and fenced-off, save for a construction trailer and equipment.
Comments
Don’t you care if the island
Up island resident ChilmarkDon’t you care if the island even wants this? I don’t mainly for added buses on our narrow roads with increased air pollution. I’m sure local crime will also increase.
It's tribal land. Once, the
Obiwan OBIt's tribal land. Once, the whole island was theirs. Sorry to inconvenience you, but why can't they build on what little land they have left?
The majority of the island
Metacomet AquinnahThe majority of the island Tribe does not want this imposed on us.
Tribal "Leadership" was only narrowly reelected because they bused in people from off-island.
The tribe seems ambivalent to
Mike WTThe tribe seems ambivalent to the damage that will be and has already been caused by this folly. There are other ways. Just not get rich schemes like this. Life is hard, why destroy what you have to enrich people that don't even live on the Island. They don't care what we are left with as long as they make their money. This is going to be sad for all.
Ice of island folks to adopt
Ken VHIce of island folks to adopt this attitude now. Where was everyone when their tribal lands were stripped? Talk about hypocrisy.
Based on the legal cost
gina Menemsha/ NYCBased on the legal cost factor to date on this project on all sides , why not allow the Tribe to go ahead but give them a strict timeline to adhere to get the doors open or their non renewable permits expire ... Observing from previous business endeavors, IE the Menemsha Pond Oyster Farm ,after realizing what the tribe will earn vs what it's already burned thru on lawyers might shine a light on the feasibility of Bingo Hall project net revenues.. Not nearly what the Tribe expected to recover ..
The Indians should be able to
Jon J . Klingensmith jr Naples FlaThe Indians should be able to build whatever they want on there land. They should be allowed to profit like any other person and organization on this island. And just a FYI the island is already ruined that’s why I left in the first place!
I know this is firmly in the
AM 02539I know this is firmly in the land of legal maneuvering at this point, but how does common sense suggest that they should not be required to obtain permits / follow building codes? While I happen to think the entire endeavor smells rotten and is a crying shame, that point in particular seems crazy.
Well, because they are a
Philip Oak BluffsWell, because they are a Sovereign nation! They are on Tribal land! White folks have zero business putting their privileged noses in this. The Tribe should be able to decide for themselves, not have your input- unless they ASK.
Put the shoe on the other
Neil T Off IslandPut the shoe on the other foot. What lies beyond the Tribe's land is another sovereign nation. What right does the Tribe have to presume use of infrastructure of the other nation?
It seems as if the issue here
RB EastvilleIt seems as if the issue here is fairly narrow. The court has ruled that the tribe must abide by state and local building codes, like anyone else building new construction. These codes exist for the safety of anyone entering the building, including paying customers and employees. Build the hall to code and be done with it.
Exactly! Permits are needed
Chzwill MainlandExactly! Permits are needed to allow for inspections...to guarantee the building is built up to local and state codes. imagine the hoopla if it's not built to code and there's an injury to anyone in that building? The lawsuits would coming fast and furious.
Couldn't agree more as the
JS Cape CodCouldn't agree more as the Tribe can build what it has proposed, as long as it's built to code. No different than anybody else's construction project, as building codes are in place for a reason. So what's the tribes real reason for trying to build a structure that doesn't meet code ?
To carry the Tribe's argument
Bruce EdgartownTo carry the Tribe's argument a little further...if they were to hire construction workers to construct the casino, could they pay them $5 an hour even thought it is well below the state and federal minimum wage--that the IGRA trumps (lower case T) all other laws?
So many of you have said the
Up island resident ChilmarkSo many of you have said the tribe should be able to build whatever they want. What if they wanted to build a nuclear plant? But you said anything? Now you want some Laws I see. The they were here first. Argument does not always work.
Uh, no offense. intended. The
Island Man 9x20Uh, no offense. intended. The island is primarily a tourist economy. I would visit a casino. A nuclear power plant? Not so much.
How about a Go Fund Me to
Christina Roselle Turtle Creek PennsylvaniaHow about a Go Fund Me to allow the tribe to gain back their debt. And suggestions for other revenue such as farming, small manufacturing, help with marketing and selling online some of the beautiful art and wares produced. Please help these beautiful people and give back that which was so ruthlessly taken from them.
How about a go fund me to
Mark EdgartownHow about a go fund me to support the town’s legal efforts to stop this abomination.
"devastating the tribe’s
Islander Too Tisbury"devastating the tribe’s ability to generate employment opportunities for its tribal members and the community, and its ability to generate governmental revenue from gaming, which revenue is desperately needed in order for the tribe to fulfill Congress’ intended goals of promoting tribal economic development, self-sufficiency, and strong tribal government,” attorneys write."
Sorry, but this is pathetic. The need to get a couple of building permits is "devastating the tribe's abilities to generate employment opportunities"? Gaming is the only economic activity the tribe can foresee? I wonder what the tribe's young people feel about this stance. Gaming is the only economic future envisioned for them in Aquinnah? All the Tribe needs to do to proceed is get the proper building permits. If proceeding with gaming is really what this is about. What further ruination follows in Aquinnah, once the precedent is established that no regulatory oversight (such a building permit, conservation, etc.) is required to do anything on tribal lands? So if there is an electrical fire, does the Tribe have its own fire fighters?
It is a shame that the Tribe couldn't muster the votes to put in leadership with more inspiring, productive ambitions and vision.
We need to protect and
Protect Aquinnah AquinnahWe need to protect and preserve. Keep Aquinnah
beautiful, wild and natural. This was the basis for our building code
and regulations. To allow one entity to ignore those rules is to ignore what
we have worked very hard to maintain. As the name implies:
Aquinnah cliffs Casino: Aquinnah will be turned (even more) into a tourist destination,
or so called "experience" and we will be overrun with traffic of gamblers swarming
the area seeking short term entertainment, along with all the noise, traffic,
lighting, parking lots, and a building that looks like a gigantic blister in the center of
Aquinnah. It saddens me that the tribe, instead of preserving and nurturing the
natural resources, would turn in the opposite direction and disrespect the town
regulations while at the same time relying on the Town services.
Protect Aquinnah, Aquinnah!!!
off islander west islandProtect Aquinnah, Aquinnah!!! Really! The traffic would be mostly the islanders themselves,lol. I would freely donate my engineering background to help this get started, and all I would want from it all is a roll of quarters to help break the ice. Perhaps a gentleman's club would add to its beauty. once you add that! a bank will need to be built to safeguard all the one dollar bills. and for all that noisy traffic!! I have a solution for that... a toll booth! $2 per car to enter Aquinnah. count me in.
It is tribal lands, so
Anne EdgartownIt is tribal lands, so everyone should MOB. Why does everyone have their panties in a twist for something up island and out of the way. I don’t see hoards of people showing up from off island when there are many casinos in Mass and CT to sick in their money. Furthermore, where were all you “islanders” when the big money rolled in and built these McMansions and privatized every spec of beach and land all over the island. Now THAT is the biggest travesty of justice!
The Mcmansions followed the
JS Cape CodThen Tribal lands should be restricted to the Tribe only, not open to the general public. The McMansions you mentioned followed the rules got building permits and were constructed to code, which is what this issue is all about. Follow the rules and build to code, simple as that.
I do not understand why the
Islander West TisburyI do not understand why the Tribe doesn't just abide by local building codes and move on. This is not my thing, but a 177 page brief sounds really expensive. i wonder how much has been by the Town and the Tribe over the last bit of legal wrangling. More dollars for the lawyers that could have certainly be better used. Can somebody please explain .... ?
If this thing ever gets built
Facts not fiction edgIf this thing ever gets built, it will be a novelty for a while, then fail on its own. This sort of gambling hall is for the 'joe six pack walmart crowd' with a roll of quarters to spend, NOT the higher rollers who make gambling venues succeed. These potential customers won't be paying for ferry trips or woods hole parking, nor would they buy the typical 25 dollar MV Hamburgers when they are used to the .99cent specials off island at McDonalds. With the availability of many off-island gambling venues (that are first class destinations and theme parks) that can be reached by auto without the added travel time and expense, there is a question of whether this thing can be viable on its own. Build it to code and good luck. PS... how much of a cut do the Indians actually get or does it all go to the 'operators' who basically use the Indians to get the permits and keep the majority of the profits , not the Indian 'partners'.
I'm a bit of a casino guy and
Twisted facts above OBI'm a bit of a casino guy and hit many in my travels. This is a glorified bingo project with slots, not an Encore in Boston. Folks who like Keno will like this parlor. Its business plan is NOT intended to draw high rollers (having food trucks instead of a steakhouse is one indicator). It will be Joe Six Pack and Mary Retiree that make or break the economics. And, I think enough folks on the island, the year rounders, will be drawn to it. Right now our liveliest entertainment this time of year is reading the comments section of the Gazette. I'd take a trip up Island if it was open today.
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