BOSTON --- The Wampanoag tribe and the town of Aquinnah met in federal court on Friday, grappling over whether the tribe can begin construction on a class II gaming facility without town building permits and other regulatory oversight.

U.S. District Court Judge Dennis Saylor 4th heard oral arguments over the scope of the tribe’s 2017 and 2018 court victories that affirmed its right to build a class II gaming facility on land it owns in Aquinnah.

In early April lawyers for the town filed a motion in U.S. District Court requesting an entry of final judgment spelling out that the tribe nevertheless must obtain building permits before starting construction.

On Friday, with large contingents from the Aquinnah homeowners association on one side of the courtroom and members of the Wampanoag tribal council, as well as representatives from the gaming arm of the Chickasaw Nation and Wampanoag partner, Global Gaming Solutions, present on the other, Judge Saylor framed the matter before the court as a technical question over legal procedure, and not over the tribe’s sovereign rights to construct a gaming facility in the town.

“This is a hearing on the motion to enter judgment,” Judge Saylor told the crowded courtroom. “Let me start by saying that I view this as an entirely technical question of law. I think that whatever is happening on the ground in Aquinnah, and whatever has happened since, I think, in terms of the facts, is not relevant . . .but I could be convinced otherwise.”

He said further that the failure to enter final judgment was an error on his part, after the First Circuit Court of Appeals in 2017 overturned his 2015 ruling. The case ended late in 2018 when the U.S. Supreme Court declined to hear the town’s request for further appellate review. Final judgment is still due in U.S. District Court, where the case began.

“I did not enter final judgment...which was a mistake,” Judge Saylor said. “The judgment I entered went up on appeal. It was reversed . . . The question here is what should the judgment look like as a technical matter, not whether the tribe has a good building inspector or not.”

This winter the tribe cleared four acres it owns off Black Brook and State roads in Aquinnah, announcing plans for a 10,000-square-foot bingo hall with 250 electronic gaming machines, due to be completed in May.

Soon after, the towns of Aquinnah and Chilmark referred the proposed gaming facility to the Martha’s Vineyard Commission as a development of regional impact, sparking a volley of letters between lawyers for the town, the tribe, and the commission over issues of public safety and other concerns. Those issues came to a head in federal court on Friday.

Attorney William Jay, a partner at Goodwin in Boston who represented the town, argued that the issue of state and local permitting is entirely separate from the gaming issue decided in favor of the tribe in 2018. He requested that Judge Saylor’s final judgment reflect the fact that the tribe only appealed the gaming aspect of the earlier decision, and not the permitting aspect.

“The question, as we see it, is on what issues did the court enter judgment, and what was changed on appeal,” Mr. Jay said. “The tribe had the opportunity to challenge the [permitting] aspect of the judgment on appeal, but chose not to do so . . . it should remain in effect.”

Judge Saylor pushed back on Mr. Jay’s assessment of his earlier ruling, questioning whether the distinction between the gaming and permitting aspects of the ruling were so clear cut.

“I mushed them together in my judgment,” Judge Saylor said. “I can’t just cut this neatly in half . . . I have to recast it.”

Mr. Jay replied that recasting the ruling would be simple and legally allowable because the permitting questions were addressed in preliminary injunctions which said the tribe had to get local and state permits before starting construction.

Scott Crowell, attorney for the tribe, disagreed, saying that the permitting issue was resolved by the broad, later appeals court ruling that favored of the tribe.

“The clarity of the gaming laws versus local permit laws was decided by the First Circuit,” Mr. Crowell said. “The judgment was reversed, with instructions to enter judgment in favor of the tribe. We don’t think there’s a technical order for the court to do anything other than what it was ordered to do . . . which was enter judgment in favor of the tribe.”

He went on to repeat earlier assertions that the town is simply using the request for final judgment as a means to thwart the tribe’s right to construct a gaming facility.

“They say, oh, that’s not what was taken up on appeal. Absolutely it was,” Mr. Crowell said, referring to the permitting question. “We believe the facts on the ground are that they are using this as pretense to say no to the tribe moving forward with this project . . . this is not an opportunity for them to do indirectly what they cannot do directly.”

Judge Saylor clarified that the town couldn’t use building permits to prevent the tribe from constructing the facility; they could merely regulate certain aspects of the facility.

“Just to be clear, even if I do conclude that the building permits apply, they would be applied neutrally,” Judge Saylor said. “The town can’t use that as a way to prevent a facility from opening. A number of charter schools in Massachusetts went through this as a way to keep charter schools from opening. The question is, can they say the outlet is more than two inches from the door? Or you need a traffic light, or a roundabout?"

Mr. Jay affirmed that the permits would be applied neutrally, while Mr. Crowell questioned the town’s lack of prejudice against the tribe.

In a more lighthearted moment, Mr. Crowell, referencing a different gaming case involving the Narragansett, described the distinction between gaming and permitting aspects of the decision as “tenebrious.”

“Do you mean tenebrous?” Judge Saylor asked, referring to the word Merriam-Webster defines as dark, murky and obscure.

“Yes, excuse my pronunciation,” Mr. Crowell replied.

“It’s fine, no one can pronounce these words anyway,” Judge Saylor answered.

But by the end of the hearing, even Judge Saylor felt the word was an appropriate way to describe the complicated issue before him. He did not make a ruling, taking the matters under advisement.

“I find these issues to be tenebrous, and they will be taken under advisement,” Judge Saylor said as he rose from the bench.