Aquinnah tribe appeals casino ruling
The Wampanoag Tribe of Gay Head (Aquinnah) isn't giving up its effort to join a federal casino lawsuit.
Lawyers for the Aquinnah tribe have asked the 1st U.S. Circuit Court of Appeals to overturn U.S. District Judge Nathaniel Gorton's decision to bar the tribe from intervening in the suit filed by KG Urban Enterprises, according to court documents filed Friday.
KG Urban, a developer hoping to build a commercial casino on the New Bedford waterfront, filed the suit objecting to a provision in the Massachusetts Expanded Gaming Act that gave federally recognized tribes a window of exclusivity to locate a casino in Southeastern Massachusetts. The developer argued that the law violated the U.S. Constitution and represented a "race-based set-aside."
Both the Aquinnah and Mashpee Wampanoag, the state's two federally recognized tribes, tried to join the suit. In June, Gorton ruled the interests of the tribes could be protected by lawyers for the state who are defending the lawsuit.
The Mashpee Wampanoag Tribe, which has plans to build a $500 million Indian casino in Taunton, did not object to Gorton's ruling, but Aquinnah leaders criticized it. The Martha's Vineyard-based tribe wants the courts to rule on a dispute between the tribe and the state over whether it has rights to a federal casino.
The state's position is that tribe waived its rights in a 1987 land settlement, but the tribe says it did not. The Indian Gaming Regulatory Act was approved in 1988.
Gorton, in his ruling, said getting into that squabble "would involve evidence and legal argument wholly unrelated to the constitutionality of the gaming act."
Cheryl Andrews-Maltais, chairwoman of the Aquinnah tribe, wrote in an email to the Times on Monday that they are appealing the court's decision "because we know that no one, except the Tribe, can present and defend our rights as accurately, passionately or as well as we can.
"In our opinion, the Commonwealth has incorrectly taken the position that we do not have any rights to game under the IGRA. Therefore, with the Commonwealth's incorrect presumption and position, how can we expect them to defend or assert our rights if they do not understand or believe that we actually do have them?"
Andy Pavin, a spokesman for KG Urban, said the company would have no comment on the tribe's appeal.
Meanwhile, Gorton has set a hearing for July 15 on the Massachusetts Gaming Commission's motion to dismiss the suit because it is no longer necessary.
The state's position is the case was rendered moot by an April vote by the commission to open Southeastern Massachusetts, known as Region C, to commercial bids. KG Urban is seeking an answer to the overarching question of whether the original legislation violated the Constitution. The company believes it would also be unfair for the commission to accept commercial licenses and then decide not to issue a license in the region because of competition from an Indian tribe.
In a brief filed with the court June 24, state lawyers argue that could happen in either of the other two regions of the state based on potential competition.
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