A federal appeals court has ruled in favor of the Wampanoag Tribe of Gay Head (Aquinnah), paving the way for the tribe to open a bingo hall in a building that had been set aside as a community center.
The three-judge panel remanded the case to U.S. District Court in Boston, which had previously ruled against the tribe’s rights under the Indian Gaming Regulatory Act (IGRA) to open a casino on the Vineyard without state and Island approval. The district court held in 2015 that the tribe failed to “demonstrate governmental power” over the land in Aquinnah it controls.
In its decision issued Monday, Judge Juan Torruella wrote that the tribe does indeed exercise control over several programs, including housing and healthcare on its tribal land.
Cheryl Andrews-Maltais, the tribe’s chairwoman, applauded the court ruling.
“We are simply thrilled with the First Circuit Appellate court’s decision,” she wrote. “The decision is exactly on point, and supports the tribe’s legal position. Hopefully, this decision will help people better understand the responsibilities, rights, and privileges of our tribe.”
The central issue in the case has been the tribe’s rights under that federal law. The town of Aquinnah and the commonwealth of Massachusetts have argued the tribe waived those rights in a 1987 land settlement.
The tribe’s contention, which the three-member appeals panel unanimously accepted, is that the 1988 IGRA, giving tribes the right to offer gambling on reservation lands, superseded that agreement. Unlike other land settlement agreements, including the one by the Narragansett tribe of Rhode Island that is part of a precedent-setting U.S. Supreme Court ruling, the Aquinnah tribe controls its land, along with the town and state, and did not cede its rights.
“Because we find that the tribe has exercised more than sufficient governmental power to satisfy the requirements of IGRA, and the Federal Act has been impliedly repealed by IGRA in relevant part, we reverse,” Judge Torruella wrote.
The tribe is reviewing its options with its legal team, which includes Scott Crowell and Lael Echo-Hawk, among others.
“As we have always asserted, the Aquinnah Wampanoag has every right to conduct gaming on our tribal lands, just as any other tribe in the country,” Ms. Andrews-Maltais wrote. “This decision affirms our sovereign rights and jurisdiction over the land that has always been ours, and solidifies our place in the gaming market.”
She called on the state, town, and Aquinnah/Gay Head Community Association, which was also party to the suit, to respect the decision. “All tribal economic development is for the express purpose of providing the necessary governmental programs and services for tribal members, but those benefits expand to the community as a whole,” she wrote. “This decision benefits us all.”
The decision is a potentially punishing blow to the town, which has resisted the tribe’s gambling plans, and the ruling could have an impact on the state’s fledgling casino industry.
Aquinnah selectmen have called a meeting for Thursday at 1 pm with attorney Ron Rappaport to discuss how the town will proceed. “The Supreme Court is one of those options,” Mr. Rappaport said.
There are avenues for the town to explore, though Mr. Rappaport said it is premature to talk about them until he sits with town leaders to discuss the options.
The Supreme Court would have to accept the case, which is a difficult hurdle, Jack Fruchtman, a seasonal Aquinnah resident who teaches constitutional law and politics at Maryland’s Towson University, told the Times in an email. The nation’s highest court hears only about 75 to 80 of the 9,000 cases it’s asked to review each year, he wrote.
It’s too early to say how most Aquinnah residents feel about the ruling, Mr. Fruchtman wrote. But the ruling, if it stands, sets up an interesting dynamic. “We may well be back to where two competing governments now exist in one of the smallest towns in Massachusetts,” he wrote.
Lawrence Hohlt, president of the Aquinnah/Gay Head Community Association, said his group is also reviewing the ruling. The association joined the federal suit to protect the rights of private property owners in Aquinnah.
“Sure, we’re disappointed,” Mr. Hohlt said. “We think we have the better arguments.”
The court’s ruling sent shock waves across Vineyard Sound to the mainland.
“Whoa,” said Clyde Barrow, a casino gambling expert who is now a faculty member at the University of Texas–Rio Grande Valley. “This has some potential implications beyond the Island.”
There are tribes in Texas and Maine that, like the Aquinnah Wampanoag, have been thwarted in their efforts to open gambling facilities because of land settlements, he said. Some states that have lost at the appellate level have declined to pursue a Supreme Court case, because that would create precedent, Mr. Barrow said.
“I think it’s a big surprise,” Mr. Barrow said of the ruling.
Wampanoag tribe may now play a part in state gaming decisions
Aquinnah leaders wanted to compete for an off-Island casino in the Massachusetts legislation that legalized casinos, but their plans to buy land on the Freetown/Lakeville town line were thwarted almost as quickly as they were announced by the state’s refusal to negotiate a compact.
Then-Governor Deval Patrick and his administration steadfastly rejected the Vineyard tribe’s contention that it had any federal rights for casino gambling, pointing to the 1987 land settlement agreement that references a prohibition on gambling. In 2013, with the tribe announcing its plans for a bingo hall in its community center, Governor Patrick filed suit in state court claiming breach of contract. The tribe had the case successfully moved to federal court because of the IGRA implications.
The Baker administration is “carefully reviewing the court’s decision,” Billy Pittman, Gov. Charlie Baker’s press secretary, wrote in an email.
Attorney General Maura Healey, who argued the case on behalf of the state, is reviewing the court ruling, and had no immediate comment through her communications staff.
In sharp contrast to his stand on the Aquinnah tribe, Governor Patrick embraced a proposal by the Mashpee Wampanoag Tribe to build an Indian casino in Taunton. The Mashpee tribe won federal acknowledgement in 2007, a decision that helped drive the state’s pursuit of legalized casinos. The Mashpee casino, which has a signed compact with the state, is tied up in its own legal battle in federal court, where Taunton residents successfully argued that the Bureau of Indian Affairs erred by putting Taunton land into federal trust for the Mashpee tribe.
The state has licensed two commercial casinos — one in Everett and another in Springfield — that are under construction. A slots-only casino is already operating in Plainville.
“The commission is currently reviewing the [Aquinnah Wampanoag] decision. We will consult with our lawyers from the Attorney General’s office and the other parties involved in this litigation to understand the First Circuit’s decision and any next potential steps,” Elaine Driscoll, a spokeswoman for the Massachusetts Gaming Commission, wrote.
The commission has no say in whether a tribal casino is built, but does work cooperatively with tribes to ensure implementation of a casino compact.
The 23-page ruling is at times blunt in its wording, chiding the arguments made in court filings by the town. “The Town gets it backwards. Pursuant to IGRA, ‘the operation of gaming by Indian tribes [is] a means of promoting tribal economic development, self-sufficiency, and strong tribal governments,’” Judge Torruella wrote. “The town now seeks to put this logic on its head by requiring the tribe’s government to be fully developed before it can have the benefit of gaming revenue. This is not what IGRA requires, nor is it our case law.”
The tribe has said in the past that it plans to have 300 gambling machines at its Aquinnah facility. Those machines are expected to generate revenue of $4.5 million per year.
Casino experts have often seen the Island proposal as a negotiating ploy, because the remote Island location, a 45-minute ride from the ferry terminal in Vineyard Haven on meandering Island roads, would make it a difficult draw.
Mr. Barrow, the gambling expert, said the appeals court ruling could push the commonwealth to the negotiating table. They’ll likely stall to see if the town of Aquinnah appeals, but IGRA requires negotiations with a tribe with federal rights, he said.
“They have land in trust, they have a reservation, they’re in a position to move forward quickly,” Mr. Barrow said. “Again, under IGRA, the state is obligated to engage in good faith negotiations, or the Bureau of Indian Affairs could impose a compact.”