It’s ‘play on’ for the Wampanoag Tribe of Gay Head (Aquinnah). On April 10, a First Circuit Court of Appeals three-judge panel weighed in on the nearly three-and-a-half-year dispute between the Tribe and the Commonwealth, the town of Aquinnah, and the Aquinnah/Gay Head Community Association over the Tribe’s plan to build a casino on Martha’s Vineyard. In 2016, the U.S. District Court for Massachusetts determined that a land settlement agreement between the parties implemented into federal law in 1987 (the “Federal Act”) required the Tribe to seek state authorization to open a gambling facility, and that determination rejected the Tribe’s argument that the Indian Gaming Rights Act of 1988 (“IGRA”) – which provides for broader gaming rights to tribes so long as the state does not prohibit gaming – controlled the Tribe’s plans. The District Court found the Tribe had not established it had “sufficient governmental power” over the settlement land to trigger IGRA’s application and, in any event, the Federal Act and not the IGRA was the governing authority. The Tribe appealed the decision last June.

In reversing the District Court’s decision, the First Circuit found the IGRA applied, clarifying that “sufficient governmental powers” does not require “full-fledged self-governance, but merely a movement in that direction[.]” The Court found the Tribe “exercised more than sufficient governmental powers” over the land as demonstrated by, among other things, intergovernmental agreements with various federal agencies, its public safety program, numerous ordinances, its own judge, and municipality agreements.

The First Circuit also discussed the interface between the Federal Act and the IGRA and found the IGRA impliedly repealed, in relevant part, the Federal Act. Because the Federal Act did not contain a savings clause addressing the effect of future federal laws, the court found the IGRA’s broader rights for tribal gaming trumped the Federal Act’s language that otherwise requires the Tribe to apply for and obtain a license from the Massachusetts Gaming Commission.

While there is some talk of the Commonwealth, town, and Community Association challenging the First Circuit’s decision, it’s anyone’s bet whether tribal gaming will make its way to the U.S. Supreme Court once again.