Wampanoag Tribe pushes casino case to the U.S. Court of Appeals

The federal government has sided with the tribe, keeping the issue alive.

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The Community Center. —Lisa Vanderhoop

The campaign for a casino by the Wampanoag Tribe of Gay Head (Aquinnah) has been given new life. According to an email to The Times from tribe attorney Scott Crowell, the tribe successfully argued its case to build a Class II casino on Dec. 6 at the U.S. Court of Appeals, First Circuit, in Boston.

Attorney Ron Rappaport argued for the Town of Aquinnah, which opposes the casino. The case moved on to the higher court after the federal government declared its support of the Wampanoag effort to build the casino in June. In a brief filed Friday, June 3, in the U.S. Court of Appeals for the First Circuit, Justice Department lawyers successfully argued that the Indian Gaming Regulatory Act (IGRA) “implicitly repealed” the Settlement Act that has checked the tribe’s gaming ambitions for almost three decades (June 8, “Obama administration sides with Wampanoag tribe in casino appeal”).

“We are very confident that the judges will come to a favorable conclusion for the tribe,” Tobias Vanderhoop wrote in a Dec. 14 email to The Times. “During the oral argument at the First Circuit Court of Appeals, attorney Crowell was very effective in both showing that our tribal government exercises governmental power and that the Indian Gaming Regulatory Act [IGRA] applies to the tribe.”

The Wampanoag Tribe of Gay Head (Aquinnah) plans to house the gambling facility in its uncompleted community center. Last December, the U.S. Department of Housing and Urban Development (HUD) set a date of Sept. 1 for the tribe to complete construction on the community center or face the possibility of refunding all or a portion of two Indian Community Development Block Grants (ICDBG). The deadline passed with the building still not complete, but HUD backed off as long as work proceeds to finish the building.

“As for any speculation about our building, as of today our community center is nearly complete, and we look forward to making it available for the use of our tribal family. It is important for everyone to understand that the core issue for the tribe is the acknowledgement of federal Indian rights that belong to our government. Once our rights have been upheld, it is up to the tribal body to decide if, when, and where we exercise those rights.”

The community center was begun in 2004. The construction was funded with Indian Community Development Block Grants administered by the U.S. Department of Housing and Urban Development (HUD).

The land settlement agreement of 1983 (ratified by Congress in 1987) between the tribe and the Town of Aquinnah bound the tribe to follow local and state laws. Aquinnah zoning laws do not accommodate a gambling casino.

The commonwealth of Massachusetts negotiated a compact in 2013 with the Mashpee Wampanoag to operate a Class III casino in Taunton, after rejecting a similar effort by the Aquinnah Wampanoag in 2012. The Aquinnah tribe maintains that it needs only federal approval from the National Indian Gaming Commission, which it received in November 2013, to open a Class II casino on the Island. The tribal leaders have been talking about building a casino on Martha’s Vineyard with or without state approval since 2010.

A Class II casino includes only bingo, while Class III casinos feature traditional casino games, such as banking-card games like baccarat and blackjack, roulette, craps, and slot machines. According to Indian Country Media Network, Class I is rarely discussed, as it only includes traditional games associated with powwows and tribal ceremonies. The classes were established as part of the IGRA.

The Aquinnah Wampanoag maintain they could not have given up the right to establish a casino at their Martha’s Vineyard reservation in 1983 because they didn’t have the right to build one in 1983. In 1988 the IGRA gave tribes the right to open casinos on tribal land in states where gambling is legal. Casino gambling became legal in Massachusetts in November 2011.

The act of Congress that resulted from the 1983 land settlement agreement was amended in 1987, according to Mr. Rappaport, town counsel for Aquinnah, to make clear that gambling would be subject to state regulations. This amendment was made after the filing, and ahead of the passage of the IGRA.

A year ago, U.S. District Court Judge J. Dennis Saylor IV ruled that in addition to being subject to state and local regulation of gambling, the Wampanoag Tribe of Gay Head (Aquinnah) did not have “sufficient governmental control” over its reservation to manage a casino. Mr. Rappaport explained that this referred to the tribe’s lack of police (they have only conservation rangers), ambulance service, firefighting staff, or any jurisdiction over the behavior of nontribe members on tribal property. Should anything go wrong at the casino, the Town of Aquinnah was neither willing nor able to assume those responsibilities.

After Judge Saylor reached his verdict last November, tribe attorney Scott Crowell stated that there were “several material errors” in the District Court decision. Judge Saylor refused to reconsider his decision (Dec. 23, 2015, “Federal judge denies Wampanoag Tribe’s request to review casino decision”), and Mr. Crowell took the case to the U.S. Court of Appeals, First Circuit.

In his recent email, Mr. Crowell wrote, “The tribe hopes to have a decision early next spring, but there is no hard timeline for the Appeals Court to issue its rulings.”