Justices Won’t Weigh In On Martha’s Vineyard Casino Battle 1/14/2018

Justices Won’t Weigh In On Martha’s Vineyard Casino Battle

Share us on:   By Christine Powell

Law360, New York (January 8, 2018, 7:45 PM EST) — The U.S. Supreme Court on Monday declined to consider a First Circuit decision paving the way for a Native American tribe to build a casino on Martha’s Vineyard, in a loss for the state of Massachusetts, a town and a community association, which have been challenging the proposed gambling facility.

The high court denied a pair of petitions for certiorari in which Massachusetts, the town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. asked it to review an April First Circuit ruling in favor of the Wampanoag Tribe of Gay Head (Aquinnah).

As is customary, the justices provided no explanation of their decision to not take up the dispute.

The petitions concerned the First Circuit’s finding that the tribe had exercised enough governmental control over land on Martha’s Vineyard that is also subject to state and local authority to offer gambling there under the Indian Gaming Regulatory Act.

The circuit court’s decision reversed a federal judge’s conclusion, as well as his holding that IGRA’s passage in 1988 did not impliedly repeal Congress’ passage the year before of the Wampanoag Tribal Council of Gay Head Inc. Indian Claims Settlement, which granted local and state jurisdiction over gambling on the tribe’s land on the vineyard.

Shortly afterward, the First Circuit agreed to stay the mandate on its ruling pending the outcome of the petitions at the Supreme Court.

When urging the high court to take up the case, the state, Aquinnah and the community association all argued that the circuit court’s ruling goes against the top court’s long-standing presumption against implied repeal.

The First Circuit ignored “the exceptionally strong presumption against implied repeal that this court has reaffirmed in countless cases,” the town and the community group said in their petition. “The result is exactly what this court has repeatedly warned against: Rather than reconciling the two statutes, the First Circuit effectively cherrypicked which of the two it preferred to apply.”

Not only that, the circuit court’s ruling created a split with the Fifth Circuit’s conclusion in Ysleta del Sur Pueblo v. Texas that the IGRA had not impliedly repealed a statute comparable to the settlement act that limited gambling on tribal lands in Texas, the appellants said.

“The First Circuit’s decision does not attempt to distinguish the Fifth Circuit’s decision and, indeed, fails to mention it,” Massachusetts said. “Congress could not have intended for these two similar statutes — enacted by Congress on the same day — to receive such differing treatment under IGRA.”

Opposing the petitions, the tribe argued that the underlying circuit court decision does not conflict with other circuit courts’ holdings and added that “a single tribe in Massachusetts opening a single bingo facility on its own land in accordance with federal law does not raise issues of genuine importance.”

According to court records, the tribe, which has been on Martha’s Vineyard since before Europeans colonized New England, reached a settlement agreement with Aquinnah in the early 1980s conveying to the tribe about 485 acres of land.

In 1987, Congress passed a law implementing the settlement, which subjected the land to local and state laws and jurisdiction. Yet the tribe eventually sought to build a casino on the land pursuant to the IGRA, which was passed in 1988, prompting Massachusetts to file the instant suit. The town and the community group eventually intervened as plaintiffs.

Representatives for the parties were not immediately available for comment Monday.

The state is represented by Maura Healey, Elizabeth N. Dewar, Juliana deHaan Rice, Carrie Benedon and Bryan Bertram.

Aquinnah is represented by Ronald H. Rappaport and Michael A. Goldsmith of Reynolds Rappaport Kaplan & Hackney LLC.

The Aquinnah/Gay Head Community Association is represented by Felicia H. Ellsworth, Claire M. Specht and Janine M. Lopez of WilmerHale.

The tribe is represented by Scott Crowell of the Crowell Law Office-Tribal Advocacy Group and Lael Echo-Hawk of Hobbs Straus Dean & Walker LLP.

The cases are Massachusetts v. The Wampanoag Tribe of Gay Head (Aquinnah) et al., case number 17-215, and Town of Aquinnah, Massachusetts et al. v. The Wampanoag Tribe of Gay Head (Aquinnah) et al., case number 17-216, in the Supreme Court of the United States.

–Additional reporting by Andrew Westney and Adam Lidgett. Editing by Alyssa Miller.