Jurisdiction at heart of Aquinnah casino push

By: George Brennan

BOSTON — For the first time, a federal court judge heard oral arguments on Monday about why the Wampanoag Tribe of Gay Head (Aquinnah) believes it has federal rights to build a casino.

The rights have been debated in writing and newspaper accounts, but Monday’s hearing before Judge F. Dennis Saylor in U.S. District Court was the first time tribe attorneys stood side by side with state attorneys to argue the case.

At issue for Saylor, who described the case as having “complexities,” will be to decide whether a federal or state court has jurisdiction over the dispute. He took a motion by Attorney General Martha Coakley’s office to send the case back to the state Supreme Judicial Court under advisement.

“It’s an interesting question. It was well-briefed and well-argued,” Saylor said as he closed Monday’s hearing after a little more than 30 minutes of debate. Now, Saylor said, he needs to take his time to “puzzle through it.”

On Monday, Juliana Rice, deputy bureau chief for Coakley, argued that the case belongs in state court where Gov. Deval Patrick alleges the tribe breached its contract with the state — a 1983 land settlement — by saying it plans to build a Class II, high stakes bingo facility in its unfinished community center on Martha’s Vineyard.

Last month, an attempt by some tribe members to block the use of the community center as a gambling hall failed to get the necessary two-thirds vote to overturn an earlier decision, tribe leaders said.

Outside the courtroom, Cheryl Andrews-Maltais, who attended Monday’s hearing as chairwoman of the Aquinnah Wampanoag Gaming Corp., said the tribe is moving ahead with the island casino.

“We plan to open within a year,” she said. Andrews-Maltais is the former tribal council chairwoman.

Much of Monday’s hearing centered on the jurisdictional issue, but attorneys on both sides couldn’t help but stray into the heart of the dispute.

The state believes the tribe ceded any rights to open a gambling facility in a land settlement agreement initially settled in 1983 and codified by Congress in 1987. In that agreement the tribe agreed to follow state and local laws.

The tribe’s position is the Indian Gaming Regulatory Act of 1988, which gave federally recognized tribes like the Aquinnah the right to open casinos on tribal lands, supersedes the land settlement. The tribe has recent opinions from two federal agencies that oversee Indian gaming supporting its claim.

The suit against the tribe was filed in December in an attempt to block the tribe from its publicly discussed plans to use the island community center for a casino.

The tribe had made repeated attempts to negotiate a compact with Patrick, similar to a deal he reached with the Mashpee Wampanoag Tribe, the state’s only other federally recognized tribe, but Patrick hasn’t budged.

Under federal law, a tribe does not have to negotiate a compact for a Class II facility on tribal lands and is under no obligation to make payments to the state in lieu of taxes.

Since the state seeks to block any tribal casino plan not licensed under the state’s Expanded Gaming Act, the federal rights issue needs to be resolved, Scott Crowell, an attorney for the tribe, argued.

“There’s no way to get to this prayer for relief without getting into the fundamentals of federal law,” he said.

Outside the court, Crowell said it’s been a long time coming for the Vineyard-based tribe to make its legal argument and attempt to settle its differences with the state.

“We have full confidence that this belongs in federal court,” he said.

Tobias Vanderhoop, the tribe’s newly elected chairman, watched the hearing and repeatedly shook his head in approval as Crowell made the tribe’s case.

“I’m extremely confident in the questions we raised before the court today,” he said in the courthouse lobby. “Not only do we have federal rights, but federal court is the right venue.” – See more at: http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20140311/NEWS/403110319#sthash.cj3Bed10.dpuf