Wampanoag tribe claims feds bless an Aquinnah casino

Erected by Air Force reservists in 2004, the Wampanoag tribe said it plans to convert its unfinished community center into a class II gaming facility. — Photo by Nelson Sigelman

Updated 6:40 pm Thursday, November 13, 2013

The Wampanoag Tribe of Gay Head (Aquinnah) Tuesday hailed what it described as federal approval, in the form of a legal analysis from the National Indian Gaming Commission (NIGC), to convert its long unfinished community center on tribe lands in Aquinnah into a Class II gaming facility.

In a conference call with members of the local and national press Tuesday afternoon, Cheryl Andrews-Maltais, chairman of the tribe, said it could be a matter of months, not years before the doors would open, and she touted the benefits a gaming parlor would bring to the tribe and the Vineyard community.

But even as the tribe and its legal team trumpeted a five-page analysis dated October 25, furnished by Eric Shepard, NIGC acting general counsel, in which he said that the Indian Gaming Regulatory Act (IGRA) supersedes the Settlement Agreement that led to federal recognition for the tribe, there was no sign that the legal obstacles embedded in the agreement, having stood in the way of the tribe’s gaming aspirations for decades, are about to be set aside any time soon, on Martha’s Vineyard or on the mainland.

The town of Aquinnah takes the view, outlined by town counsel Ron Rappaport in a seven-page opinion dated April 27, 2012, that the Wampanoag Tribal Council of Gay Head Inc. cannot operate a gaming casino in Aquinnah because the lands described in the Settlement Act are subject to the zoning regulations in effect at that time. In a telephone conversation Tuesday afternoon, Mr. Rappaport said that he had reviewed the NIGC legal analysis of October 25.

“There is nothing in the letter that would cause me to change my opinion,” Mr. Rappaport said. “I would also note that the opinion which I have is shared by the governor’s office and the Massachusetts Gaming Commission who have consistently taken the same position in court filings in a pending federal court case.”

On Wednesday, Governor Deval Patrick told reporters he did not think the tribe can build a boutique casino on Martha’s Vineyard’s without a state license because “law isn’t made by a letter.” His chief legal counsel, Kate Cook, stood by the administration’s own analysis that caused it to reject the tribe’s request for compact negotiations in March 2012.

Keen observers of tribe politics saw something else at work in an announcement made five days before the tribe’s general election on Sunday, in which Ms. Andrews-Maltais faces a challenge from former tribe administrator Tobias Vanderhoop.

“It’s an election ploy, that’s all it is,” said June Manning, a tribe genealogist and longtime Aquinnah resident.

Rights confirmed

In his letter, Mr. Shepard described the legal basis for “Indian Lands” and arrived at the conclusion that “because the tribe possesses sufficient legal jurisdiction over its settlement lands, IGRA applies to them,” and as such, “the lands are eligible for gaming under the act.”

In a press release issued Tuesday by the Seattle law firm of Garvey, Schubert, Barer, the tribe said the commission’s actions confirm the tribe’s right to conduct gaming on its existing trust lands on Martha’s Vineyard, and any new lands that may be taken into trust on the mainland.

“The tribe has consistently asserted that we have the right to game on our lands in Aquinnah,” Ms. Andrews-Maltais said in a statement. “These approvals affirm our position. We are thrilled.”

Ms. Andrews-Maltais said that the tribe would move forward with its plans to convert the unused community center building into a temporary gaming facility that could include bingo and poker.

“As the People of the First Light, we are responsible for preserving the atmosphere and beauty of the Island,” Ms. Andrews-Maltais said. “Any gaming facility we operate will blend in with the rest of the Island, and the tribe will work with local businesses to ensure the casino’s positive economic impact on our neighbors in the larger Island community.”

The tribe said it has renewed its request to negotiate a Class III gaming compact with the administration of Gov. Deval Patrick, “which previously refused to negotiate with Aquinnah, on the mistaken belief that the tribe had given up any rights to game.”

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.

Vegas on the Vineyard

In a press conference Tuesday, Ms. Andrews-Maltais said the use of the community center would be temporary until the tribe had enough revenue to build another facility. She said it would be on the scale of hundreds, not thousands of slots.

Ms. Andrews-Maltais said there had been no discussions with local

officials prior to the announcement about the tribe’s plans, because it would have been premature until approvals were in hand.

She said now is the time to engage in that process, and she expects a welcome reception.

“There seems to be a tremendous appetite for people gaming because we have, every four to six months — there’s some sort of a Las Vegas night fundraiser on Martha’s Vineyard to raise funds for all different types of charitable organizations and they do very well, so there is an appetite for gaming, and we have a very large following of people who like to watch and follow the poker tournaments.” She added that a gaming parlor would provide another type of entertainment venue for summer and shoulder season visitors.

Ms. Andrews-Maltais said in her view the tribe did not need Martha’s Vineyard Commission approval, but she would “be happy to sit down and keep MVC apprised of what we’re doing.”

Asked if she really expected the residents of Martha’s Vineyard to embrace gaming, given past legal battles, she said, “There has not been anything that the tribe has attempted to do that hasn’t been challenged and hasn’t been threatened with court action, and that’s why we’ve prepared ourselves to make sure people understood that the tribe has these rights to be able to exercise, and our general membership has decided that we should be able to have a gaming facility on tribal lands.”

Ready to defend

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.

In an email to The Times Tuesday, retired lawyer and longtime AGHCA president Larry Hohlt said, “In the 1983 Settlement Agreement entered into between the Tribe and the AGHCA, the town, and the Commonwealth, the tribe unequivocally relinquished any existing or future right to conduct gaming in Aquinnah. This Settlement Agreement was implemented by state and federal statutes that also expressly subject the tribe to state and local jurisdiction concerning gaming, and two United States Courts of Appeals have observed that the IGRA does not trump the Settlement Agreement or its implementing state and federal legislation. The AGHCA has always taken the steps, including through litigation if necessary, to insure that the 1983 Settlement Agreement is properly interpreted and applied. If necessary, we will do so again with respect to the tribe’s continuing efforts to establish a casino on Martha’s Vineyard.”

More at play

Clyde W. Barrow, a director of the Center for Public Policy Analysis at the University of Massachusetts at Dartmouth and a national expert on gaming, said the location makes it unlikely that a casino in Aquinnah would be very successful, were it even able to overcome significant legal hurdles.

Mr. Barrow, director of the Northeastern Gaming Research Project, which studies casino gaming in the Northeast, said, “People who are already there and already traveling in that direction might choose to spend some time at the facility, but my perception is that people don’t go to Martha’s Vineyard to gamble.”

Mr. Barrow said there is more at play than a casino on the Vineyard.

“I think the real end game is an effort to force the governor to negotiate a Class 3 compact with them that would authorize a casino on the mainland,” he said. “The evidence of that is that as soon as they put out that press release they sent a letter to the governor requesting that he negotiate a compact.”

Mr. Barrow said that despite the opinion heralded on Tuesday, the issue is by no means resolved. Asked to put Mr. Shepard’s legal opinion in context, Mr. Barrow said, “It is a legal opinion from a staff attorney at the National Indian Gaming Commission. It’s not a judicial decision. And should they move forward based on that opinion, then most assuredly the Martha’s Vineyard Commission will challenge it, and it will probably be challenged by the state attorney general.

Mr. Barrow noted one point in the NIGC opinion. “This staff attorney very specifically says that IGRA trumps the land settlement agreement, and that is directly contrary to what the Supreme Judicial Court said. When you get that kind of a dispute, only a higher authority can resolve it.”

Mr. Barrow said the exact same issue was fought out in Maine where tribes also signed settlement agreements.

“That case went to the U.S. Circuit Court of Appeals and that went against the tribe,” he said.

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 here

The reaction among many Island residents to the tribe’s announcement Tuesday, and the resulting media excitement, was a combination of shock and consternation at the notion of a gaming parlor.

In neighboring Chilmark, selectman William Rossi said, “The thought of it doesn’t excite me, I can tell you that. I hope they’re wrong and I hope other people’s opinions are right, and it doesn’t happen. I don’t think a gambling facility would be a good thing for up-Island. I can’t imagine anything that would change the character of up-Island more than that.”

Ms. Manning agreed. “The residents are not in favor of it. We’re all against it,” she said. Ms. Manning noted that the tribal vote to move ahead with gaming in the community center was based on few votes, and those were off-Island members whose only concerns, in her opinion, were gaming dollars and not the community environment.

As for outreach, there has been none. Spencer Booker, a member of the tribe and member of the Aquinnah board of selectmen, said, “I have yet to hear from the tribe.”

Mr. Booker said there has been little conversation with the tribe about its gaming plans.

“As a resident, I do not want one,” he said. “I do not think it would complement the town whatsoever.”

Chairman of the Aquinnah board of selectmen Beverly Wright, former chairman of the tribe and member of the tribal council, said that in her capacity as selectman she would oppose gaming in town.

In a Letter to the Editor published in The Times, Ms. Wright advised tribal members who go to the polls Sunday, not to be “fooled by ‘flash in the pan’ news articles.”

In a statement to The Times, Tobias Vanderhoop, who will challenge Ms. Andrews-Maltais, commented on the Tuesday announcement.

“The role of Tribal Leadership is to ensure that there is an inclusive and comprehensive discussion with an issue such as tribal gaming,” Mr. Vanderhoop said. “This critical discussion must take place first within our tribe, so that we know that our direction is truly supported by our people and that we fully understand the implications of the decisions we make internally. Then, based on the will of our people, in consideration for the community around us we should bring our intentions forward to the community around us for a broader discussion. The current administration has not prioritized this type of open communication. While the opinion of the NIGC General Counsel acknowledges our tribal rights, it is important for us to understand that exercising those rights will create enormous change here in Aquinnah or wherever our gaming opportunity exists.”

The community center became the latest chip in the high stakes game surrounding casino gaming in Massachusetts on May 6, 2012, when tribe members at a general membership meeting voted to use their long unfinished community center for Class II gaming. The vote was 21-10 with seven abstentions. They reaffirmed that decision two weeks later on May 23. The unofficial vote tally was 22-17 in favor, with eight abstentions, according to one source.

The shell of the building where the tribe would house its Class II gaming facility was built, at taxpayer expense, by Air Force reservists in the summer of 2004. In all, over six weeks, three squadrons of approximately 20 reservists in civil engineering groups worked on the project as part of a training exercise. For more than nine years, the 6,200-square-foot structure, which was to include a gymnasium, kitchen facilities, and meeting space, has remained unfinished despite more than $800,000 in federal grants.