Blog Goodwin Gaming June 03, 2016

The Pursuit For An Island Casino

The Wampanoag Tribe of Gay Head (Aquinnah) continues its efforts to add casino bingo to the summer getaways and lobster rolls on Martha’s Vineyard. In November 2015, Massachusetts, the town of Aquinnah, and the Aquinnah/Gay Head Community Association successfully challenged the Tribe’s plan to open a facility in Aquinnah for electronic bingo.  Now the Tribe has appealed the federal district court’s decision against the Tribe.

As a recap, Massachusetts sued the Tribe in 2013 to prevent it from building a gambling facility on the island. The town of Aquinnah and the Community Association said they had skin in the game and joined the Commonwealth’s efforts.  The three opponents to the casino argued that a land settlement act, codified by Congress in 1987, subjects the Tribe to state and town laws, including requiring state authorization to open a gambling center.  The Tribe claimed the Indian Gaming Rights Act (“IGRA”), passed in 1988, supersedes the land settlement act, controls gambling on the settlement land, and allows the Tribe to build a casino.  This past November, the U.S. District Court for Massachusetts ruled against the Tribe, finding that IGRA did not apply because the Tribe had not established that it exercised “sufficient governmental power” on the land at issue.  The District Court also noted that the settlement agreement, not IGRA, controls gambling on the settlement land.

On May 31, the Tribe appealed the District Court’s decision. In its appellate brief, the Tribe argued that IGRA preempts the land settlement agreement.  The Tribe also claimed that the District Court established a “new and extremely difficult standard” for tribes to demonstrate IGRA application when it found that the Tribe did not exercise the requisite governmental authority over the land.  In addition, the Tribe sees the District Court decision as putting the Tribe between a rock and a hard place: either it complies with the Commonwealth’s gaming laws or proceeds with gaming under IGRA and risks further action by the Commonwealth, Aquinnah, and the Community Association.

The condoned Mashpee Wampanoag Tribe’s casino in Taunton may have fueled the Aquinnah Tribe’s fire to pursue its appeal. The Tribe pointed to Massachusetts’s approval of the Mashpee Wampanoag Tribe’s casino in Taunton and opposition to the Wampanoag Tribe of Aquinnah’s plans as a notable and seemingly unfair contradiction.  In addition, the Massachusetts Gaming Commission recently rejected an application for a commercial casino that would have competed with the Mashpee Wampanoag Tribe’s casino, thus arguably clearing the way for tribal casino success in Taunton.

Stay tuned to hear whether it will be the Commonwealth or the Tribe yelling “Bingo!” once and for all.


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