Aquinnah association moves to defend settlement agreement

In May, the Gay Head Wampanoag tribe voted to turn its unused community center into a boutique casino. — Photo by Lisa Vanderhoop

For the second time in less than a decade, the Aquinnah/Gay Head Community Association Inc. is preparing for a court battle to defend the hard-won settlement agreement that has governed relations between the town and Wampanoag Tribe of Gay Head (Aquinnah) since 1983.

Monday, the Aquinnah/Gay Head Community Association (AGHCA) filed court papers to intervene in a case now before U.S. District Court in Boston. Larry Hohlt, AGHCA president, said his group would do what it must to protect the terms of the act.

The legal battleground is a lawsuit brought by KG Urban, a private casino developer that would build a casino in New Bedford. The developer sued the state over legislative language in the newly approved gaming law that allowed the Mashpee Wampanoag tribe to put a lock on the one commercial casino license designated for Southeastern Massachusetts.

On September 7, attorneys for the Gay Head tribe asked the court for permission to intervene as a defendant in the lawsuit KG Urban filed in U.S. District Court. The tribe’s legal arguments rest, in part, on the argument that the federal Indian Gaming Regulatory Act (IGRA), passed in 1988, nullified the settlement act that led to federal recognition for the Gay Headers and appears to have hobbled the tribe in its casino negotiations with the state.

Governor Deval Patrick has taken the position that the Gay Head tribe waived its rights to a casino when it signed the act in 1983.

KG Urban said that language in the state casino law that blocked some casino developers in favor of federally recognized tribes was race-based and violates the equal protection clause of the U.S. Constitution.

In February, U.S. District Judge Nathaniel Gorton upheld the state casino law. KG Urban appealed, and the case is now back before Judge Gorton.

The AGHCA has filed a conditional motion to intervene. Essentially, if the judge allows the Gay Head tribe in, AGHCA also wants in.

Judge Gorton gave KG Urban and the state until September 19 to file a response to the tribe’s motion to intervene. A decision is expected soon.

“Litigation is both very costly and time-consuming, and it is not something we undertake lightly,” Mr Hohlt, a retired lawyer, said in prepared remarks. “But, the tribe’s motion to intervene is premised on an allegation that key agreed-upon provisions in the 1983 Settlement Agreement among the tribe, town, Commonwealth and our organization as implemented by the enabling 1987 Federal Act are no longer in effect due to the presumed impact of the subsequently enacted Federal Indian Gaming Regulatory Act. So, as we have had to do in the past, we will undertake such measures, including litigation, as are necessary to ensure that the Settlement Agreement and implementing Federal and Commonwealth statutes are properly interpreted and implemented.

“We anticipate that the town also will move to intervene to protect its interests under the 1983 Settlement Agreement, if not immediately then if the tribe’s motion to intervene is granted.”

Last week, Aquinnah selectmen James Newman, Beverly Wright, and Spencer Booker met in executive session with town counsel Ronald Rappaport. Mr. Booker and Ms. Wright, a former chairman and current council member, are tribal members.

Heart of the matter

The 1983 settlement agreement was signed by the tribe, the Gay Head Taxpayers Association (since renamed the Aquinnah/Gay Head Community Association Inc.), the town, and the state. It was embodied in legislation approved by Congress known as the Indian Claims Settlement Act of 1987. The agreement, which eventually led to federal recognition of the Wampanoag Tribe of Gay Head, specifically provides that the settlement lands “…shall be subject to all federal, state, and local laws, including town zoning laws, state and federal conservation laws, and the regulations of the Martha’s Vineyard Commission (MVC)….”

The ground for a legal test of the settlement act was set in the winter of 2001 when the tribe constructed a small wooden shed and pier on tribal lands on the shore of Menemsha Pond without town permits.

The town initially went to court to defend the settlement act. When a Dukes County Superior Court judge found for the tribe, the board of selectmen ignored the advice of town counsel Ronald Rappaport and decided not to go forward and defend the settlement act on appeal.

That job was left to the AGHCA, which was joined by the state attorney general and the Benton Family trust, abutters to the property in question.

In December 2004, the Massachusetts Supreme Judicial Court reaffirmed the settlement agreement and found for the town.

The SJC decision stated: “…with respect to sovereign immunity, the Tribe knowingly bargained for, and fully understood, its obligations under the settlement agreement to submit to local zoning enforcement, and judicial action, where necessary.”

Not about casino

The Gay Head Wampanoags are represented in their motion to intervene by Scott D. Crowell, a Seattle-based lawyer and Indian advocate, and lawyers from the firm of Steptoe and Johnson, based in Washington, D.C.

The lawyers said that the Aquinnah tribe has moved to intervene to protect its ability to negotiate a Class III gaming license, which allows for a full-blown casino.

The Gay Head tribe has said that if it is blocked in it efforts to have a casino it would use its community center for Class II gaming, which includes games such as high stakes bingo, poker, pull-tab cards and associated electronic games that do not require coin slots. Unlike class III gaming, which encompasses all types of gaming and requires a tribe-state agreement, tribes may regulate Class II gaming on their own lands without state authority, as long as the state in which the tribe is located permits that type of gaming.

Aquinnah selectmen have said they would oppose any effort to develop a casino in the Island’s smallest town. Mr. Rappaport has said the tribe cannot legally operate a gaming casino in Aquinnah, based on the terms of the settlement act.

Mr. Hohlt said the AGHCA is only interested in protecting the settlement agreement. “Our organization would not have moved to intervene if this case only related to the tribe’s rights and ability to open a casino on the mainland,” Mr. Hohlt told The Times. “But, it is clear from the tribe’s motion papers and from comments made by tribal leadership that their efforts are intended to also allow the tribe to open a casino on its existing settlement lands in Aquinnah. As previously stated, this would eviscerate key provisions of the 1983 Settlement Agreement.”

Many hurdles

The AGHCA is represented by lawyers Felicia H. Ellsworth and James L. Quarles of the Boston firm of Wilmer Cutler Pickering Hale and Dorr. Mr. Quarles represented the association in its successful arguments before the state Supreme Court.

In arguing for the right to intervene, the lawyers said that if the tribe is successful, it “would eviscerate the settlement agreement to which AGHCA is a party.”

The lawyers wrote, “The Tribe faces many hurdles in making the argument that the negotiated terms of the Settlement Agreement — in which the Tribe received exclusive use of hundreds of acres of publicly- and privately-owned land in exchange for relinquishing its aboriginal title and claims — do not mean what they say. However unlikely it may be that the Tribe will succeed in these arguments, if the Court permits the Tribe to intervene for purposes of advancing those arguments, AGHCA respectfully requests it too be permitted to intervene to defend the terms and existence of the Settlement Agreement in this litigation.

“For the reasons discussed below, if the Tribe is permitted to intervene, AGHCA satisfies the standard for intervention as a matter of right. In the alternative, AGHCA should be granted permissive intervention to defend the terms of the Settlement Agreement if the Tribe is allowed to challenge those terms in this Court.”