Department of Justice says Indian Gaming Regulatory Act “implicitly repeals the Settlement Act’s provision for state and local jurisdiction over gaming” in brief to appeals court, in stark contrast to earlier ruling from district judge.

While stopping short of becoming a party to the suit, the United States Department of Justice has filed a brief in support of the Wampanoag Tribe of Gay Head’s efforts to have the U.S. Court of Appeals for the First Circuit overturn a November 2015 ruling by U.S. District Court Judge F. Dennis Saylor IV, effectively barring them from ever operating any class of casino on tribal lands on the island of Martha’s Vineyard.

After voting to open a Class II ‘bingo’ casino on their lands in 2011 and re-affirming by popular vote again in 2012, the tribe became party to a lawsuit originally filed by Massachusetts Gov. Deval Patrick in 2013, who had negotiated and approved a compact with the mainland Mashpee Wampanoag tribe, and signed the 2011 law that allowed for up to three commercial casinos and a slots parlor in the Commonwealth. That lawsuit was subsequently moved to federal court and joined by the town of Aquinnah along with the Aquinnah/Gay Head Community Association (AGHCA).

The Mashpee have since broken ground, in  temporary partnership with Asian gaming leader Genting, on a billion dollar Class III casino resort on the mainland near Taunton. MGM is progressing on their massive MGM Springfield resort in that historic town, and Wynn Resorts is expected to open their Everett casino across the Mystic River from Boston as early as next year. A third casino license for Brockton was ultimately denied by the gaming commission. The first venue to open under the Massachusetts deal was Plainridge Park slots parlor at Plainridge Racecourse in Plainview which opened about a year ago.

The Aquinnah Wampanoag tribe wants to open a Class II casino in a currently unfinished community center on the island that has become a popular tourist and second home destination over the years and is the location of the Obama family’s second home. Class II, or electronic bingo slots and other games do not normally require local or state approval, however, the tribe’s agreement to the Massachusetts Indian Land Claim Settlement Act of 1987, which granted them reservation status, demands they submit to local zoning codes and other regulations. District Judge Saylor relied on that law, while stating that the tribe does not sufficiently govern itself as reasons to rule in favor of the plaintiffs in the lawsuit.

The tribes lawyers contend, and the DOJ concurs, that the Settlement Act was usurped by the Indian Gaming Regulatory Act of 1988 (IGRA) because the two statutes cannot be reconciled.

The DOJ stated in the brief that “The district court erred in concluding that the Tribe exercised insufficient governmental power over the settlement lands to meet the standard of “Indian lands” under IGRA, pointing to a ruling concerning Rhode Island’s Narragansett tribe as precedent.

In it’s brief to the court the DOJ also said, “The United States has a substantial interest in the administration of these two federal statutes and how they interrelate. The United States has a trust responsibility to the tribe and an interest in ensuring that its Settlement Act is fairly administered. It also has an interest in the proper implementation of IGRA, by which Congress ‘struck a careful balance among federal, state, and tribal interests’ in adopting a ‘comprehensive approach to tribal gaming.’”

In an opinion that may eventually effect Indian gaming in Texas and elsewhere, the administration also said that the “IGRA allows Class II gaming, free from state and local regulation, unless the state has imposed a total ban on all forms of a game, such as all forms of gaming akin to bingo,” and that IGRA “implicitly repealed the Settlement Act’s provision for state and local jurisdiction over gaming.”