Wampanoag tribe will appeal court denial of gaming rights

Tribal chairman Tobias Vanderhoop said the tribe would reconsider its options for the long dormant community center project.

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The Wampanoag Tribe of Gay Head will receive $465,695 from the U.S. Department of Housing and Urban Development. — MV Times file photo

Updated 7 pm, Wednesday, Nov. 25

The Wampanoag tribe of Gay Head (Aquinnah) will appeal a decision by U.S. District Court Judge F. Dennis Saylor IV that the tribe cannot turn its long-unused community center into a gambling hall.

Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, based in Sedona, Ariz., told The Times Monday that he would likely ask Judge Saylor to reconsider his ruling prior to filing an appeal with the U.S. Court of Appeals for the First Circuit.

“There are development in other jurisdictions that we want to bring to his attention,” Mr. Crowell said, “but the tribal council has authorized an appeal with the First Circuit.”

Asked what specific developments he was referring to, Mr. Crowell said, “Action the Department of the Interior took regarding two tribes in Texas that we believe is relevant here.”

Mr. Crowell said he would file for reconsideration on or before the due date of Dec. 11. “We feel that he committed error on several different levels,” he said.

Mr. Crowell said his main arguments would focus on the judge’s reading of the Indian Gaming Regulatory Act (IGRA) and its relationship to the Settlement Act, as well as his determination that the tribe does not exercise sufficient governmental power over its own land for the lands to qualify under IGRA.

Mr. Crowell said the tribe is negotiating with the Department of Housing and Urban Development (HUD) over the December deadline for repayment of $1.1 million the federal agency provided the tribe for the construction of its unfinished community center, the proposed site of a tribal gaming hall.

“We are in consultation with HUD regarding that,” he said. “Nothing’s been firmed up or decided.”

Tobias Vanderhoop, tribal chairman, said the tribe would protect its rights and review plans for the community center.

“The tribal council has reviewed all options with our legal counsel,” Mr. Vanderhoop said in an email to The Times received late Wednesday. “Considering the effect of the federal court decision on our tribe, as well as other tribal nations, we will seek to overturn it in the First Circuit Court of Appeals.  At the same time, we are reviewing our options to complete the community center.  We remain committed to the defense of our rights and status as a federally acknowledged tribe.”

Judge Saylor’s 40-page decision, issued Nov. 13, was a sweeping victory for the town of Aquinnah, the Aquinnah Gay Head Community Association, and the Commonwealth of Massachusetts. Judge Saylor said the Indian Gaming Regulatory Act (IGRA), signed in 1988, does not trump the Settlement Act, signed by tribal leadership in 1983 and ratified by the state legislature in 1985 and by Congress in 1987.

The settlement agreement stipulated that the tribe was subject to local and state laws and zoning regulations in effect at the time, and it has formed the bedrock of the longstanding legal relationship between the tribe and the Martha’s Vineyard community.

Following a detailed analysis of the issues in the case, Judge Saylor said, “In summary, the tribe has not met its burden of demonstrating that it exercises sufficient ‘governmental power’ over the settlement lands, and therefore IGRA does not apply. Furthermore, and in any event, it is clear that IGRA did not repeal by implication the Massachusetts Settlement Act. Accordingly, the tribe cannot build a gaming facility on the settlement lands without complying with the laws and regulations of the Commonwealth and town.”

The 6,500-square-foot building slated to become a bingo hall was originally intended to be a community center. It was erected at taxpayer expense just off the entrance road to the tribal lands by two teams of Air Force reservists in 2004 and 2005, as a civil engineering community project. The shell has sat dormant and unfinished since the citizen-soldiers departed.

In making his decision, Judge Saylor said, “Whether an Indian tribe should be permitted to operate a casino on Martha’s Vineyard is a matter of considerable public interest, and the question touches upon a variety of complex and significant policy issues.

“This lawsuit is not, however, about the advisability of legalized gambling. Nor is it about the proper course of land development on Martha’s Vineyard, or how best to preserve the unique environment and heritage of the Island. And it is not about the appropriate future path for the Wampanoag people. If there are answers to those questions, they are properly left to the political branches in our system of government. The role of the court here is a narrow one, and it expresses no opinion of any kind about the broader issues underlying this dispute.”