The Aquinnah/Gay Head Community Association has joined the fray in a complicated, unfolding lawsuit as the Wampanoag Tribe of Gay Head (Aquinnah) presses for the right to build a casino in Massachusetts.
On Monday this week attorneys for the community association filed a motion to intervene in a federal lawsuit brought by a private developer who is challenging the Massachusetts casino law.
The move follows one by the Vineyard tribe which filed its own motion to intervene in the case on Sept. 7. Attorneys for the tribe say their interest in the case is protecting the tribe’s rights under federal law to build a casino in Massachusetts.
Attorneys for the taxpayer association say they want to protect their right to oppose the casino and uphold a negotiated land claims settlement agreement that the tribe signed with the town and the taxpayers in 1983. That agreement paved the way for federal recognition by the tribe and is at the center of the tribe’s dispute with the state over whether to negotiate a compact for a casino.
In the actual case, the developer KG Urban is suing the commonwealth claiming that casino law passed last year, which sets aside one of three licenses for a federally recognized Indian tribe, is unconstitutional. The case is currently back before a U.S. District Court judge in Boston after an earlier decision was overturned by a federal appeals court.
Attorneys for the state and the developer were asked to file briefs by Wednesday this week responding to the tribe’s motion to intervene.
If the tribe’s motion is allowed, the taxpayer association wants to come into the case as well.
“The tribe faces many hurdles in making the argument that the negotiated terms of the settlement agreement — in which the tribe received exclusive use of hundreds of acres of publicly and privately owned land in exchange for relinquishing its aboriginal title and claims — do not mean what they say,” wrote Felicia H. Ellsworth, an attorney with Wilmer Hale in Boston. “However unlikely it may be that the tribe will succeed in these arguments, if the court permits the tribe to intervene . . . the AGHCA respectfully requests it too be permitted to intervene to defend the terms and existence of the settlement agreement.”
The agreement was upheld by the Massachusetts Supreme Judicial Court in a landmark ruling in 2004. The tribe is claiming that the federal Indian Gaming Regulatory Act supersedes the agreement.
“The motion hits right at our settlement agreement because it basically says the Indian Gaming Regulatory Act supersedes [the state law],” association president Larry Hohlt told the Gazette. “We don’t believe that.”
“We worked long and hard to bring a settlement agreement together and whenever it is threatened, in or whole or in part, it’s something we have to become involved in,” he said. “We will always take steps to uphold the settlement agreement and make sure it is interpreted and implied appropriately.”
The town of Aquinnah has not filed a motion to intervene in the case, but the town selectmen went into executive session with their town counsel last week to discuss pending litigation involving the legal situation around the tribe.
by Remy Tumin