As the Wampanoag Tribe of Gay Head (Aquinnah) presses ahead on various fronts to win the right to build a casino in Massachusetts, a federal judge in Boston has set next Wednesday as the date for briefs to be filed in a complicated case that now involves the state and its gaming commission, a commercial casino developer and the Vineyard tribe.

Attorneys for the tribe filed a motion to intervene last Friday in Boston in the lawsuit brought by KG Urban against the commonwealth, who is challenging the Massachusetts casino law. U.S. District Court Judge Nathaniel Gorton held a status conference Monday afternoon and has given Gov. Deval Patrick, the state gaming commission and KG Urban until Wednesday to file a response to the motion to intervene.

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. Scott Crowell, a tribal advocacy lawyer, is also representing the tribe.

Meanwhile, the town of Aquinnah appears to be preparing for potential litigation. The town selectmen went into executive session with town counsel Ronald H. Rappaport Wednesday afternoon to discuss pending litigation. Town administrator Adam Wilson confirmed yesterday that the discussion involved the unfolding legal situation around the tribe.

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 Judge Gorton, 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 1983. 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 do that only 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 been 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.”

In an e-mail to the Gazette on Thursday, chairman of the tribe Cheryl Andrews-Maltais said moving to intervene is in the best interest of both the Vineyard and Mashpee tribes.

“This [casino law] represents for us, almost two decades of trying to work with the state,” Mrs. Andrews-Maltais wrote. “It is no small issue that it’s in all of our best interest to try to make sure the law is upheld as constitutional. And, if we are that one small thread by which the law remains constitutional, then with the exception of KG Urban, it is in everyone’s best interest for us to join the suit to protect our and everyone else’s interests.”

She said it was “far more time and cost-effective” to file a motion to intervene instead of a separate lawsuit against the state. She also said attorneys at Steptoe & Johnson and Mr. Crowell are providing their services pro bono and through “other special billing considerations because they want to help us,” Mrs. Andrews-Maltais wrote in the e-mail.

“They have watched the unjust way of how we have been treated and marginalized, and are assisting us because they want us to be able to have our rights upheld, so we, too, can provide economic self-sufficiency for our people as all other tribes are afforded.”
Some tribal members have criticized the chairman for keeping them in the dark over decisions about the pursuit of casino gambling. But Mrs. Andrews-Maltais said she has the backing of the tribal council to move forward with the move to intervene in the KG Urban case.

“The tribal council not only voted to support the Aquinnah Gaming Corporation’s litigation to protect and assert our rights to game, they have elected to join the fight to protect our rights and our sovereignty,” she said in the e-mail.

“At this point in time we are watching how everything continues to unfold. We remain committed to protecting and pursuing our rights, and will move forward accordingly in the most time- appropriate and cost-effective manner.”

by Remy Tumin