The clay cliffs in Aquinnah, Massachusetts, the home of the Aquinnah Wampanoag Tribe. Photo: Jens Dahlin

Casino Stalker | Litigation

Aquinnah Wampanoag Tribe in limbo as Supreme Court delays action in sovereignty dispute

Monday, December 11, 2017

While the U.S. Supreme Court has delivered good news to one tribe and its homelands, another must wait longer for an answer.

The Aquinnah Wampanoag Tribe was expecting to learn the fate of a closely-watched sovereignty dispute as soon as Monday. But instead of taking action, the justices "rescheduled" petitions filed by state and local opponents in Massachusetts for a future date.

Such delays are not uncommon, and most petitions end up being rejected by the the nation's highest court. But the rescheduling of Massachusetts v. Wampanoag Tribe of Gay Head and Town of Aquinnah v. Wampanoag Tribe of Gay Head could signal a dispute among the justices on the matter.

That's what happened when the court repeatedly delayed action on cases affecting the Oneida Nation and its homelands in New York. Though the petitions were ultimately denied, the theatrics gave Justice Clarence Thomas a big opening to undermine the federal-tribal relationship.

In a second example, the justices delayed action twice on a land and sovereignty dispute in Washington state that affects the Upper Skagit Indian Tribe. The petition was granted in order list on Friday, making it only the second Indian law case to be added to the Supreme Court's current docket.

The court typically doesn't explain its reasoning for rescheduling a particular petition. So for now, it's pure speculation on the status of the two petitions affecting the Aquinnah Wampanoag Tribe.

The tribe expects the petitions to be denied, eventually, and Chairwoman Cheryl Andrews-Maltais has reiterated calls for the state and local governments to come together and work on plans for a Class II gaming facility on the reservation.

The Aquinnah Wampanoag Tribe plans to convert an unfinished community center in Aquinnah, Massachusetts, into a gaming facility. Photo courtesy Wampanoag Tribe of Gay Head (Aquinnah)

Normally, such plans would be solely up to the tribe as an exercise of its sovereignty. But the state and the town of Aquinnah claimed the tribe could not follow the Indian Gaming Regulatory Act.

The 1st Circuit Court of Appeals concluded otherwise and said the 1988 law recognized the tribe's sovereign rights. In a unanimous decision, a panel of three judges determined that IGRA takes precedence over a land claim settlement, passed a year prior, that subjected the reservation to state and local laws.

"Pursuant to IGRA, 'the operation of gaming by Indian tribes [is] a means of promoting tribal economic development, self-sufficiency, and strong tribal governments,'" Judge Juan R. Torruella wrote in the 23-page decision, quoting directly from the federal law.

If the decision stands, the tribe plans to convert an unfinished community center in the town of Aquinnah into the casino. It would only be able to feature Class II games like bingo and electronic versions of bingo because the state refuses to negotiate a Class III compact for more lucrative slot machines, card games and similar offerings.

The federal government is not a party to the lawsuit and, at this point, has not been asked for its views in the matter.

The Supreme Court often asks the Department of Justice to submit a brief in Indian law cases before taking action. That's currently happening in a treaty rights petition being reviewed by the justices.

The Supreme Court's current term, which began in October, has been largely uneventful for tribal interests. Up until Friday, the sole Indian law case on the docket was Patchak v. Zinke, which was heard on November 7. The outcome will determine whether Congress can protect a Michigan tribe's already-operating casino from litigation.

The court will be scheduling oral arguments in Upper Skagit Indian Tribe v. Lundgren. The outcome will determine whether the state courts in Washington can resolve a land title dispute without the Upper Skagit Indian Tribe's participation.

1st Circuit Court of Appeals Decision:
Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) (April 11, 2017)