A big gamble


There is a scrim of highly detailed statutory language and a trail of legal opinions and court holdings stretching back 30 years, all of them pretending to be the last word that settles the question of whether the Wampanoag Tribe may open a gambling parlor on its property in Aquinnah. These opinions, whether conjured by a lawyer in a federal bureaucracy’s office of legal counsel or handed down from the bench, carom across the geography of the issue of Indian sovereignty, as it pertains particularly to gambling. But, after all, if the Wampanoag tribe begins to develop a gambling enterprise on its Aquinnah land, the question will not finally be settled until the United States Supreme Court says it’s settled.

Last Thursday, a few days before the Wampanoag Tribe of Gay Head (Aquinnah) decided whether to change its leadership, Cheryl Andrews-Maltais was nice enough to write a description of her persistent efforts to get her tribe admitted into the fraternity of Indian gaming enterprises.

“I had a very nice call with Governor [Deval] Patrick this morning. He was so gracious. We spoke very briefly about our respective perspectives and that he was committed to having intergovernmental engagement, not only on this issue [gambling] but also moving forward on other issues we face. I truly appreciated him reaching out, and I was grateful for the opportunity for us to finally speak. I’m looking forward to continuing to develop a stronger relationship with the state.” The governor apparently knows how to deliver a gracious stiff arm to a pesky office seeker.

Ms. Andrews-Maltais added several self-congratulating words she hoped would attract voters to her reelection bid, but what strikes one about her note is the gulf that remains between the Wampanoag tribe’s gambling goal — a key plank in her reelection platform — and the state government’s aversion to the tribe’s interests. Like so much else in this saga, gambling dreams seem built on sand or on clay cliffs, not bedrock. Anyhow, Ms. Andrews-Maltais’s record of accomplishments and her gambling ambitions are moot, because her opponent, Tobias Vanderhoop, won the election.

If you’ve the patience for it, wander with me along the trail that began 30 years ago Friday, when the Wampanoag tribe, the town of (then) Gay Head, the non-resident taxpayers of Gay Head, settled their long litigation. Both Congress and Massachusetts had to implement the terms of that Settlement Agreement in legislation, which they did. The federal recognition of the Wampanoag tribe and then Congressional passage of the Wampanoag Settlement Act followed.

The state law embodying the Settlement Agreement says that, “Except as provided in this act, all laws, statutes and bylaws of the Commonwealth, the town of Gay Head, and any other properly constituted legal body, shall apply to all settlement lands and any other lands owned now or at any time in the future by the tribal council or any successor organization.”

In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) to define the authority Indian tribes had over their gambling ventures. As regards the Settlement Act, the question was whether IGRA superseded or otherwise impaired the specific terms of the settlement. If it did, gambling on Indian lands in Aquinnah would be subject to the cooperating jurisdictions of tribe and state. Aquinnah’s rules would not govern.

A letter written in September of 1997, by Michael J. Anderson, the acting Assistant Secretary of the Interior, distinguishes between the obligations incumbent on the Wampanoag tribe, under the terms of the Settlement Agreement and the subsequent legislative and Congressional acts that embodied those terms, and the IGRA also, should the tribe decide to begin a gambling venture in Fall River, on land taken into trust for the tribe by the Secretary of the Interior. There, the governance would be joint, Mr. Anderson concluded, between the tribe and the state of Massachusetts.

On the Indian lands of Gay Head, it was different. The Anderson letter acknowledges that the settlement agreement grants jurisdiction over Indian lands in Gay Head to the state and local jurisdictions, that is, the town of (now) Aquinnah.

In 2012, a dispute arose between the tribe and the town over a shack, built on the Wampanoag tribe’s Cook Lands, without a town development permit. Ron Rappaport, Aquinnah town counsel then and now, examined the long record of the agreement, the acts of the legislature and Congress, and the legal disputes, and he reminded the Aquinnah selectmen in a letter that the Supreme Judicial Court of Massachusetts ultimately held that “… the tribe expressly memorialized a waiver of its sovereign immunity, with respect to municipal zoning and enforcement, by agreeing in paragraph three of the Settlement Agreement to hold its land, including the Cook Lands, in the same manner and subject to the same laws, as any other Massachusetts corporation.”

Mr. Rappaport concluded that “the tribe has no authority to conduct gaming activities in Aquinnah.”

Remember the 1997 opinion written by Mr. Anderson, the acting Assistant Secretary of the Department of the Interior, the one that distinguished between Wampanoag tribe gambling enterprises on Indian Lands in Aquinnah (Gay Head) and doing the gambling on property acquired in Fall River. Now comes the Department of the Interior, in August 2013, this time the office of the solicitor of the department, Michael J. Berrigan, associate solicitor for the Division of Indian Affairs. Mr. Berrigan has a very different take on the issue. He writes, “It is this office’s opinion that the Settlement Act did not divest the tribe of jurisdiction over the Settlement Lands and, therefore, the Indian Gaming Regulatory Act (IGRA) applies to such lands. Further, IGRA impliedly repealed portions of the Settlement Act related to gaming.”

The straw argument that Mr. Berrigan fells several acres of trees to rebut is, he says, that the Settlement Act and the federal and state legislation that implemented its terms, prohibited gambling on Indian Lands in Aquinnah. Of course, it prohibited nothing specifically, including gambling. Rather, it required the Wampanoag tribe to observe state and local laws in whatever the tribe wanted to do — including, although Mr. Berrigan scampered around the Mass SJC decision on point, to build a shack.

Finally, there is the opinion promulgated by Eric Shepard, acting General Counsel to the National Indian Gaming Commission (NIGC) and celebrated by the former chairman of the Wampanoag tribe. Mr. Shepard concludes that IGRA does apply to the Aquinnah Indian lands that belong to the tribe. That’s so, he finds, because the tribe has “sufficient legal jurisdiction” over its settlement lands, although it does not have exclusive jurisdiction.

Mr. Shepard quotes Mr. Berrigan, who concluded that the Wampanoag tribe exercises governmental power over its lands, a must under the IGRA, because the tribe “is responsible for providing a full range of services to the tribe’s members, including education, health and recreation, public safety and law enforcement, public utilities, natural resources management, economic development, and community assistance” on the tribe’s Aquinnah lands. Mr. Shepard did not understand that most of these services are actually furnished by the town of Aquinnah or other Island providers.

Summing up, in this corner Mr. Shepard (NIGC) and Mr. Berrigan (Department of the Interior). In the other corner, Mr. Anderson (also from the Department of the Interior) and Ron Rappaport, Aquinnah town counsel and the only one of these gentlemen who has actually litigated issues related to Wampanoag sovereignty — successfully for the town, and by extension the Island, one should add.

Oh, I’ve left out the Supreme Judicial Court of Massachusetts, which has explicitly upheld the jurisdictional claims of the town of Aquinnah and the state of Massachusetts.

This is a roly-poly pudding of opinion, bureaucratic tension — much of it within the same department of the federal government — and a community in search of a payoff. The outcome? Well, it’s a gamble.