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Tribe Casino Dispute Stays in Federal Court

Vineyard Gazette of Edgartown, Massachusetts

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The town of Aquinnah and a group of residents have petitioned to intervene in a federal lawsuit over whether the Wampanoag Tribe of Gay Head (Aquinnah) has the right to open a casino on the Vineyard. The court filings last week by the town and the Aquinnah/Gay Head Community Association came shortly after a judge ruled that the case would be tried in federal court.

At stake is whether the tribe has the legal right to open commercial gaming facilities on tribal lands in Aquinnah.

Last fall, the tribe said it had federal approval to move forward with plans to convert an unfinished community center into a bingo hall. Gov. Deval Patrick disagreed, saying that the tribe's plans violated the terms of a 1983 land claims settlement agreement. The commonwealth filed a lawsuit against the tribe in state court last December.

Shortly after the lawsuit was filed, the tribe moved the action to federal court. The state responded by asking that the case be remanded to state court.

On July 1, U.S. District Court Judge F. Dennis Saylor 4th denied the state's motion and found the case should remain in federal court.

"We are very pleased that Judge Saylor has recognized that the question of Aqui-nnah's right to game is governed by the Indian Gaming Regulatory Act, passed by Congress in 1988, and belongs in federal court," Cheryl Andrews-Maltais, chairman of the Aquinnah Wampanoag Gaming Corporation, said in a statement. "The U.S. Department of the Interior and the National Indian Gaming Commission have each provided formal legal opinions in support of our rights. We now have all of the federal approvals required to proceed with gaming on our existing trust lands, and we are confident, in light of this decision, that the federal court will confirm Aquinnah's sovereign and federal statutory rights to do so."

The tribe elected a new chairman in November. In February, the tribe reaffirmed plans to build a casino after a referendum to end the plan failed by two votes.

Last Thursday, the town of Aquinnah and the community association filed motions to intervene in the case. The motion filed by the town of Aquinnah notes that the town is the only party authorized to issue local permits and enforce local zoning. Commercial gaming is not allowed under the town's zoning bylaws; the state can issue gaming licenses.

In separate filings, the town and community association, a nonprofit organization of residents, claim, preach of contract, and seek a declaratory judgment that the tribe "may only engage in gaming activity after properly complying with all pertinent regulatory, permitting, and licensing requirements — including thes relevant local zoning ordinances." They ask that1 the court issue stn injunction stating that the settlement agreement is enforceable and the tribe can only create gambling facilities after complying with regulatory requirements.

At the heart ot the issue is whether the tribe waived its sovereignty rights in a 1983 land settlement act. The settlement, which later led'to federal recognition for the tribe, allowed 400 acres of public and private land to be transferred to the tribe. The tribe agreed that those lands would be subject to local and state laws. In a landmark ruling in 2004, the state Supreme Judicial Court found that the tribe had waived its sovereignty on land use matters and was bound to follow state and local zoning laws.

In the case now before the federal court, the tribe has argued that the Indian Gaming Rights Act of 1988 supersedes the settlement agreement and they are "totally cleared" to open a gaming facility on the Island.

'At the core of this case is the question of whether the agreement struck among the town, the tribal council, the commonwealth, and the AGHCAs predecessor the Gay Head Taxpayers Association in 1983 is going to be enforced," wrote community association president Larry Hohlt in an emailed statement this week. "Each of the parties to the 1983 agreement derived great benefits from it, and made significant compromises to obtain those benefits. We strongly disagree with the tribe's position on the interaction of the Indian Gaming Reform Act with the 1983 settlement agreement."

"We fully anticipated the town and taxpayers would try to intervene," Ms. Andrews-Maltais said in a statement. "However, as the court stated, this is a matter of federal law. So in my opinion, the commonwealth is fully capable of representing any interests they may. feel they have; since I believe all of their interests or rights are derived from the commonwealth."

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Original Publication Date: July 18, 2014

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