The Wampanoag Tribe of Gay Head (Aquinnah) has gone to federal court in its effort to win a state casino license, moving to intervene in an existing lawsuit by a developer who is challenging the Massachusetts casino law.

The motion by the Wampanoags to intervene in the lawsuit filed by KG Urban against the commonwealth was filed Friday in Boston.

The tribe says it is protecting its rights because the outcome of the lawsuit could prevent it from pursuing a casino license, including some kind of gaming facility on the Island.

“We think this case is going to make decisions which are important to the Aquinnah tribe,” the tribe’s attorney John Duffy of Steptoe & Johnson in Washington, D.C. said Monday.

First filed last November in U.S. District Court, the KG Urban lawsuit claims that a section in the state gaming law that gives American Indian tribes first rights to a casino license in Southeastern Massachusetts is “racial-based” and unconstitutional, violating state and federal equal protection acts. It is under this section (91), that the Vineyard tribe plans to pursue a Class III gaming license with the state.

If the court rules section 91 is unconstitutional, the tribe has no grounds to press the state to enter into a compact agreement.

KG Urban wants to build a commercial casino in New Bedford. The original claim by the developer was dismissed by a U.S. District Court judge, but in August that ruling was overturned by the U.S. Court of Appeals and remanded back to the lower court.

The state law allowing casino licensing was passed late last year. Gov. Deval Patrick has refused to negotiate with the Vineyard tribe for a casino license, claiming the tribe waived its sovereignty in a land settlement agreement it signed in the 1980s. The governor entered into a compact agreement with the Mashpee Wampanoags in July, but the Mashpees still need approval from the U.S. Department of the Interior to take land in Taunton into trust. The Vineyard tribe claims it is the only tribe that can take advantage of the state law because it already holds land in trust.

“We would like to see the governor be able to authorize a compact and he can only do that if section 91 is constitutional,” Mr. Duffy said.

The Vineyard Wampanoags claim that the federal Indian Gaming Regulatory Act supersedes the state law.

The U.S. Appeals Court ruling in the KG Urban case directly raises the question of the federal act and gaming on Indian lands. “At the heart of this case are the provisions of the IGRA which make clear that tribal gaming can only be conducted by an Indian tribe on Indian lands,” the court wrote.

The appeals court decision “places Aquinnah’s eligibility to game under IGRA squarely at issue,” according to the tribe’s motion to intervene filed last week. “Aquinnah is the only potential party that can provide the court with the evidence and argument necessary to determine whether section 91 is authorized under IGRA,” tribe attorneys wrote, adding that “the factual issue regarding whether the Aquinnah’s land is Indian lands as defined by IGRA has not be decided by this court.”

Mr. Duffy said he was confident the motion would be approved.

“We have a good case here, and it’s pretty clear we’re going to be affected by this decision,” he said. “We have Indian land within the commonwealth of Massachusetts so we believe there is an argument to be made that the statute is constitutional because it applies to us.”

He said the motion to intervene is the only legal action the tribe plans, at least for now.

“We think it is an important case we ought to be involved in, that’s our step,” he said. “Where this is going to go is something we can’t predict.”
KG Urban and the state have 14 days to respond to the motion to intervene.

A status conference hearing was scheduled for Monday afternoon in Boston.

by Remy Tumin