Aquinnah would join federal lawsuit to block Island casino bid

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

One week before an expected ruling by a federal judge, the town of Aquinnah filed court documents Tuesday in U.S. Federal District Court in Boston asking to intervene in a complex case involving a would-be mainland casino developer, the Mashpee Wampanoag Tribe, and Governor Deval Patrick.

Although at issue in the legal battle are the one commercial casino license designated for Southeastern Massachusetts and the legislative preference accorded a federally recognized tribe, Aquinnah town leaders are concerned that the legal fallout of a ruling could affect the Wampanoag Tribe of Gay Head’s effort to build a boutique casino in Aquinnah and the settlement agreement that has governed relations between the town and the tribe since 1983.

The town’s motion to intervene follows similar motions filed by other interested parties. It is conditional on the court allowing the Gay Head Wampanoag tribe to intervene.

The Gay Head tribe filed a motion to intervene in September. The Aquinnah/Gay Head Community Association Inc. filed a similar motion, also conditional. The Mashpee Wampanoag tribe joined the legal fray in October. A ruling on the various motions is expected on Monday, December 17.

On Monday, Aquinnah selectmen James Newman, Beverly Wright, and Spencer Booker met in executive session with town counsel Ronald Rappaport and gave the green light to the legal action. Mr. Booker and Ms. Wright, a former chairman and current council member, are members of the Wampanoag tribe.

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.

Lawyers for the Gay Head Wampanoags 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 tribe argues, in part, 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.

The Gay Head tribe has said that if it is blocked in its efforts to have a full scale mainland casino, it would use its partly built Aquinnah 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.

The Gay Head Taxpayers Association (since renamed the Aquinnah/Gay Head Community Association Inc.), the town, and the state all joined in the 1983 settlement agreement. The agreement was incorporated 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)….”

Governor 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 his court filings, Mr. Rappaport explained that the tribe plans to convert the community center into a gaming facility, despite language in the settlement act that subjects the tribe to town zoning.

Mr. Rappaport wrote, “The town did not move to intervene earlier because, as a small municipality with a limited legal budget, it did not wish to expend its scarce financial resources in the event this court denied the Aquinnah Tribe’s motion.”

Mr. Rappaport said that because the town’s interests differ from those of the other parties “its interests will not be adequately represented unless it is permitted to intervene.”

The 14-page motion described the history of the settlement agreement, subsequent court decisions, and argued that none of the other parties has a stake in upholding the agreement. “The town is the only party authorized to issue local permits and is the only party empowered to enforce local zoning, functions which will be implicated by the Tribe’s efforts to open its lands to commercial gaming in Aquinnah,” Mr. Rappaport wrote.

Gamblers gamble

Last month, the federal government rejected the state’s gaming compact with the Mashpee Wampanoag Tribe that would have helped clear the way for that tribe to pursue a casino in Taunton, forcing Governor Patrick and tribal leaders back to the negotiating table.

On Tuesday, the Massachusetts Gaming Commission took a step toward opening up the casino licensing process to commercial developers in Southeastern Massachusetts, scheduling a vote that could complicate the Mashpee Wampanoags’ pursuit of that region’s sole license, the State House News service reported.

The commission overseeing the startup of expanded gambling in Massachusetts agreed to solicit public comment on a plan to begin accepting preliminary applications for a casino license in the southeastern portion of the state. The committee scheduled a vote for next Tuesday to decide the issue, which could put that region on a parallel track with the other two regions eligible for a casino.

The third casino license had been set aside for the Mashpee tribe so long as it could negotiate a compact with the state and acquire land in-trust from the federal government, the timetable for which is now in question after the agreement struck in August was rejected.

Although the new law created a process for three state-sanctioned casinos, now that casino gambling is legal, the Mashpee Wampanoags could pursue land, to be held in-trust by the federal government, without the state’s support and develop a casino without any obligation to share revenue with the state.

Because the Wampanoag Tribe of Gay Head already holds land in trust, it does not face that particular hurdle. However, in Mr. Rappaport’s opinion, the tribe’s settlement agreement would prevent the tribe from building a gaming facility in town.