Judge denies Wampanoag requests to intervene in casino lawsuit

Last May, the Gay Head Wampanoag tribe voted to turn its unused community center into a boutique casino.

Updated 9 am, Saturday

In a ruling dated June 6 and made public Thursday, U.S. District Court Judge Nathaniel Gorton denied a request by the Wampanoag Tribe of Gay Head (Aquinnah) to intervene as a defendant in a suit brought by KG Urban, a private casino developer that would build a casino in New Bedford.

Judge Gorton denied a similar request by the Mashpee Wampanoag Tribe.

He denied “as moot” conditional motions to intervene that the town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. (AGHCA) filed to join the legal fray.

In February 2012, KG Urban sued the state over legislative language that allowed the Mashpee tribe to put a lock on the one commercial casino license designated for Southeastern Massachusetts.

KG Urban said 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.

On September 7, 2012, 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 rested, 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.

The Aquinnah tribe said it moved to intervene to protect its ability to negotiate a Class III gaming license, which allows for a full-blown casino. And, they argued, the tribe cannot rely on KG Urban or the Commonwealth to protects its interests.

In his decision, Judge Gorton said that to date, the Aquinnah tribe had not entered into a gaming compact with the state, and its interest was too remote to justify intervention.

Judge Gorton said that even if KG Urban is successful in its suit, the rights of the Aquinnah, if any, will not be affected,” and that the Commonwealth was obligated to represent those rights under the gaming statute.

He added that any interest the Aquinnah tribe has in the outcome of the litigation is unclear, because it depends upon several unresolved legal questions.

“Most notably, the Aquinnah cannot benefit from [provisions of the state Gaming Act] unless it did not waive its rights to conduct gaming on Aquinnah lands as a condition of the 1985 settlement agreement, entered into with the conditional intervenors and the Commonwealth. That matter is currently the subject of a dispute among those parties.”

The 1983 settlement agreement that led to federal recognition of the Martha’s Vineyard Wampanoags 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 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.

Reaction is mixed

In a telephone call following news of the decision Friday, Aquinnah town counsel Ron Rappaport said he was pleased with the judge’s decision, because it means the town does not have to spend on legal fees to defend its position.

Wampanoag Tribe chairman Cheryl Andrews-Maltais commented on the decision in an email to The Times Friday.

“We are understandably disappointed with the decision. The Aquinnah Tribe currently has land that qualifies under IGRA (Indian Gaming Regulatory Act), and under the First Circuit’s decision that land justifies the state’s special treatment of Indian tribes. We disagree that the state, who refuses to accept our tribe’s legal right under IGRA to offer gaming on our existing trust land, can adequately represent our interest in this matter. We will be consulting with our legal team on our next steps, and we will continue to vigorously pursue the tribe’s rights under IGRA and the Massachusetts Gaming Act.”

In an email to The Times Saturday, retired lawyer and longtime AGHCA president Larry Hohlt said, “It is seldom that you are very pleased to have been denied a legal motion. But, both AGHCA’s and the Town’s motions to Intervene were made expressly conditional in that we did not want to intervene unless the tribe’s motion to do so was granted. Judge Gorton quiteappropriately denied the Tribe’s motion and thus ours became moot.

“We are saddened to read that the present leadership of the tribe apparently intends to continue to pursue its theory that the IGRA somehow supercedes the 1983 Settlement Agreement among the town, our organization, the Tribe and the Commonwealth and the resulting Federal and Commonwealth enabling acts, especially since the Settlement Agreement paved the way for the tribe to obtain Federal recognition asa tribe. This most recent matter yet again proves that litigation is very expensive and, while we certainly do not look forward to future opportunities to demonstrate this, we will of course take the steps necessary to defend and uphold that Settlement Agreement whenever cause to do so arises. Continuing efforts to establish a casino of any type in Aquinnah would certainly be such a cause.”

Legal thicket

The legal sparring takes place against the background provisions of the federal Indian Gaming Regulatory Act (IGRA), passed in 1988, which requires states that allow gambling to negotiate gaming agreements with federally recognized tribes. The law gives broad rights to those tribes to construct gambling facilities on lands held “in trust” for those tribes by the federal Bureau of Indian Affairs (BIA).

Tribe lawyers had argued that the terms of the Indian Regulatory Gaming Act supersede the 1983 Settlement Act. To the extent that the KG Urban lawsuit would affect the rights of federally recognized tribes to run gaming operations in Massachusetts, the tribe should be allowed to intervene, the lawyers argued.

Further complicating the casino landscape is a recent Supreme Court ruling that the U.S. Secretary of the Interior does not have the authority to take land into trust for recognized tribes that received federal recognition after the 1934 Indian Reorganization Act. The Mashpee Wampanoags received federal recognition in 2007. The Aquinnah Wampanoags gained recognition in 1987, prior to passage of the Indian Gaming Regulatory Act, which set up a regulatory structure for Indian gaming.

September deadline

The November 2011 gaming law explicitly allowed for up to three full casino licenses in Massachusetts, one for each of three regions. It set aside the southeast for an American Indian tribe license, if the tribe can negotiate a compact with Gov. Deval Patrick by July 31.

The Mashpee tribe and the governor signed a deal, and it was approved by the state legislature, but then the federal Department of the Interior rejected the agreement.

The law allows the commission to seek commercial bids for the southeast region if the commission “determines” the federal government will not agree to take land into trust, a necessary step for the establishment of a tribe-run casino.

In June, the gaming commission made the controversial decision to open the third gaming region, created by the 2011 expanded gaming law, to commercial bidders, soliciting project proposals to compete in a region that had previously been reserved for a tribal casino.

Though commissioners said they would continue to monitor the Mashpee Wampanoag’s casino bid and reserve their right to award the license to the tribe, there was a growing concern that the process could take years or fail, leaving an entire region without the economic development opportunities envisioned by the legalization of casinos.

KG managing director Andrew Stern testified to lawmakers this month at a hearing on the Patrick administration revenue sharing compact with the Mashpee tribe that his company had already spent $7 million on its potential project to transform a polluted former power plant along the New Bedford waterfront into a casino.

“All we’ve ever asked for is a level playing field,” Mr. Stern said.

On Friday, the Gaming Commission released the first application for commercial casino bidders in southeastern Massachusetts. The commission announced the application is the first in a two-phase process. Applicants will have almost four months to complete the applications and pay a non-refundable $400,000 fee, with applications due by 5 on Sept. 30.

It remains unclear how fierce the private competition in Region C will be for one of the state’s three casino licenses, with much of the focus until now on the Mashpee tribe and their hopes to build a resort casino in Taunton, according to the State House News Service.

In an effort to stay in the game, in May 2012, the members of the Wampanoag Tribe of Gay Head (Aquinnah) affirmed an earlier vote to use their long unfinished community center for Class II gaming.

The vote and the debate reflected a strong split between tribal members who live on Martha’s Vineyard and oppose gaming in town and members from the New Bedford area who support it.

Class II gaming encompasses 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.

At the May 6 meeting, Kevin Dwyer, a principal in KMD Consulting services of California, the tribe’s casino backers, said the community center could be turned into a “boutique casino” that could accommodate more than 500 coinless-slot machines.

Aquinnah selectmen have said they would oppose any effort to develop a casino in the Island’s smallest town. Town counsel Rappaport has said the Wampanoag Tribal Council of Gay Head Inc. cannot legally operate a gaming casino in Aquinnah, based on the terms of the Settlement Act