Massachusetts Tribe Squares Off with Town in Court Over Martha’s Vineyard Casino

A 2019 district court ruling that the Wampanoag Tribe of Gay Head must comply with local construction and zoning regulations will allow the town of Aquinnah to indirectly block the tribe’s gaming facility.

That’s according to the tribe’s lawyer, Scott David Crowell. He told a virtual hearing of the federal First Circuit Court of Appeals Monday that the municipality could derail the project with restrictions and red tape if the ruling were to be upheld — “kill it with a thousand cuts,” he said.

“There’s no tribe operating Class II gaming facilities that are subject to county or local zoning laws, and this will make Aquinnah an aberration,” Crowell added. “The ability for the town to interfere and do indirectly what it can’t do directly is the interference that makes the application of town laws inapplicable.”

Casino on Hold

The tribe’s longstanding quest is to build a 10,000-square-foot class II gaming facility located on tribal trust land in Aquinnah, and the town’s longstanding bid is to oppose it.

The town does not dispute the tribe’s right to offer class II gaming – which includes ‘slot-like’ electronic bingo and poker – on its sovereign land under the federal Indian Gaming Regulatory Act (IGRA). Nor does it propose it has the power to regulate those gaming operations. But it does argue that the tribe must abide by local ordinances and apply for local building permits.

The tribe says only the federal government has regulatory authority over the planned gaming venue, which will be known as the Aquinnah Cliffs Casino – if it ever gets built — as is the case with all Native American casinos and gambling halls as set out by IGRA.

In 2018, it almost made it all the way to the US Supreme Court. But the highest court in the land ultimately decided not to hear the case.

Last year, just as the tribe prepared to begin construction on the Aquinnah Cliffs Casino, the town requested a final judgment from US District Court Judge F. Dennis Saylor, who heard the original case. Saylor sided with the town.

Future Lawsuit Pileup?

On Monday, each party had 15 minutes to make their case in front of a three-judge panel, which will determine its ruling at a future date.

Representing the town, the Aquinnah Gay Head Community Association, and the state, attorney William Jay, denied that the town would be able to kill the Aquinnah Cliffs Casino with petty bureaucracy. And if it tried to, the tribe would have recourse to file a federal complaint, he said.

Judge O. Rogeriee Thompson noted with horror that if that were the case, every construction detail, such as the number of parking spaces, could become the subject of future federal legislation.

“This could go on and on and on and on,” she shuddered.