The town of Aquinnah and Wampanoag Tribe of Gay Head (Aquinnah) were back in front of the U.S. Court of Appeals, First Circuit Monday morning, fiercely tangling over whether the tribe needs to obtain state and local building permits before beginning construction on a proposed bingo hall project in the town.

In a 45-minute virtual hearing held before the second highest court in the country, attorneys for the two sides battled over the scope of the Indian Gaming Regulatory Act (IGRA) — with the tribe arguing in forceful language that it supersedes state and local laws with respect to the non-gaming aspects of a proposed casino development, and the town arguing that it does not.

The appellate court’s decision will have sweeping implications for the tribe’s long-running and controversial efforts to build a class II gaming facility on tribal land within the town. Tribal officials have continually asserted their refusal to comply with local permitting regulations, arguing that they are unnecessary, onerous and restrictive.

Oral arguments before the three-judge appellate court panel on Monday were held via video conference, but the hearing was only available to the public through Youtube audio.

The panel included the Hons. Juan R. Torruella, O. Rogeriee Thompson and William J. Kayatta Jr. Attorney William Jay, a Washington D.C.-based partner at the law firm Goodwin, argued on behalf of the town. Scott Crowell, an Arizona-based Indian rights attorney, argued on behalf of the tribe.

Monday marked the second time in recent years that the town and tribe have met in the U.S Court of Appeals. In 2017, the tribe appealed a district court ruling that effectively blocked it from constructing a gaming facility within the town. The appellate court overturned the lower court ruling in a unanimous 3-0 decision, opening the door for the current development. Judges Torruella and Kayatta were both on the 2017 panel.

But when the tribe clear cut four acres of land for the proposed 10,000-square-foot, 250-game facility in early 2019 without first seeking a building permit, the town bristled, referring the project to the Martha’s Vineyard Commission and arguing that while the tribe had the right to build the facility, the town had the right to permit the facility’s non-gaming features.

After a U.S District Court hearing, the Hon. Dennis Saylor 4th issued an amended final judgment last year reflecting that distinction, throwing the bingo hall project into flux. The tribe immediately appealed, setting the stage for Monday’s long-awaited hearing before the appellate court.

The cleared construction site has been dormant for months, fenced-off from the road with three building trailers and a scattering of no-trespassing signs.

At the hearing Monday, the attorney for the tribe forcefully argued against Judge Saylor’s ruling, contending that the town was attempting to restrict the tribe’s right to gaming by exerting control over the non-gaming aspects of the proposed facility, such as its aesthetics and parking.

“The ability to indirectly do what you cannot do directly, that constitutes the interference of the tribe’s exercise of its rights, which warrants [IGRA’s] preemption of those state and local laws,” Mr. Crowell argued. “From the very beginning the town has looked to its non-gaming laws to interfere with the tribe’s exercise of its gaming rights.”

The town countered, arguing that the facility’s gaming and non-gaming regulations were in fact legally separate — with one subject to local town and state jurisdiction, and the other not. The town, therefore, should have the right to permit the non-gaming aspects of the proposed bingo hall despite IGRA’s authority over its gaming aspects, meaning the court should uphold Judge Saylor’s decision, attorneys argued.

“Our position is that under the panel’s prior ruling, the passage of IGRA prevents the town from regulating gaming, per se, but in all other respects its regulatory authority remains undiminished,” Mr. Jay said.

Arguments were presented in strictly-enforced 15-minute blocks, with the three-judge panel peppering each attorney with questions during their allotted time.

Mr. Crowell began, mainly answering questions from Judges Kayatta and Thompson regarding whether liquor licensing would be covered by IGRA, and whether there were specific town regulations that would prevent the tribe from complying with the applicable federal regulations. Judge Kayatta questioned Mr. Crowell on the issue of wattage, for instance.

“Say something has to be five watts under town law, and three watts under tribal law approved by the federal government. You could comply with both, even though they are different?” Mr. Kayatta asked.

“I believe that would be a conflict preventing the tribe from exercising its rights under IGRA,” Mr. Crowell replied. “When the town meets the federal requirements, and the town says that’s not good enough, that is an interference with the tribe’s gaming laws.”

Mr. Jay presented town arguments, answering a barrage of questions from Judge Torruella regarding the case’s legal and procedural history — and then questions from all three judges concerning the specific aspects of the facility that the town would be looking to regulate.

Responding to Judge Torruella, Mr. Jay said the town could permit or regulate the color of the bingo hall, its aesthetics, as well as its parking. But he said the town could not regulate how many dealers it used or what specific games were played — issues that were clearly covered by IGRA.

“If it is a neutral, generally applicable rule that applies throughout the town, it is going to apply on the settlement lands just as it applies anywhere else,” Mr. Jay told Judge Torruella. “We’re not claiming any authority to regulate the actual conduct of the games. That is an area where IGRA is a detailed federal regulation.”

The judges bristled at aspects of the town’s argument, saying that if the town has the ability to permit non-gaming aspects of the facility, such as parking, they could effectively restrict the success of the gaming aspects of the facility.

“I think you could see though that any one of those regulations would, with a wink-wink, undermine the successful operation of a casino,” Judge Kayatta said.

Other judges suggested the often gray area between gaming and non-gaming aspects of a casino could lead to continuing, and interminable, court battles over the question of jurisdiction.

“Do we have a federal case every time they say three and you say one, et cetera et cetera?” Judge Torruella asked Mr. Jay.

“This could go on and on and on and on,” Judge Thompson said.

Mr. Jay disagreed.

“The relationship between the town and tribe has gone on for much longer,” Mr. Jay said. “They have sought permits in the past, and have been granted permits in the past . . . I don’t think everything is going to be the subject of litigation, just as I agree with Judge Saylor that there is absolutely no evidence that applies to the town to date that there has been a wink-wink allocation of [town authority].”

Mr. Crowell seized on the point in his rebuttal, arguing that allowing the town and commission to permit the facility could doom it to failure.

“This opinion, if allowed to stand, allows the MVC and town to kill the tribe’s gaming operation with a thousand cuts,” Mr. Crowell said.

Only the appellant — in this case, the tribe — is given an opportunity for rebuttal.

The hearing ended up going slightly over its allotted time, with the audio stream in certain instances cutting out or becoming garbled, and judges struggling momentarily to operate their audio equipment.

By the hearing’s finish, even the judges were ready for a recess — with three cases still on the docket for the day.

“We need to take a break right now,” Judge Torruella said.