Aquinnah, community group seek to join state suit against tribe casino

The case, now in federal court, could determine if the Wampanoag Tribe may build a casino in Aquinnah.

Erected by Air Force reservists in 2004, the unfinished community center will be converted into a class II gaming facility, if the tribe's current plan is executed. — File photo by Nelson Sigelman

The town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. (AGHCA) filed court documents last Thursday, July 10, in U.S. Federal District Court in Boston in which they asked to intervene in a lawsuit Governor Deval Patrick filed to block the Wampanoag Tribe of Gay Head (Aquinnah) from building what the tribe has described as boutique casino on tribal lands.

Governor Patrick first filed suit in December in state court. The Wampanoag tribe argued that the case rightly belonged in federal court. Earlier this month, U.S. District Court Judge F. Dennis Saylor IV agreed, noting the body of federal law supersedes state law with respect to gaming on Indian lands.

In a statement issued in response to the ruling by Judge Saylor, Cheryl Andrews Maltais, Aquinnah Wampanoag Gaming Corporation chairman, (AWGC) said, “The U.S. Department of the Interior and the National Indian Gaming Commission have each provided formal legal opinions in support of our rights. We now have all of the federal approvals required to proceed with gaming on our existing trust lands, and we are confident, in light of this decision, that the federal court will confirm Aquinnah’s sovereign and federal statutory rights to do so.”

The central issue and major hurdle in the tribe’s long-running battle to build a casino, in southeastern Massachusetts or on tribal lands on Martha’s Vineyard, is the Settlement Agreement that led to federal recognition for the Wampanoag Tribe of Gay Head.

The Settlement Agreement was signed by tribal leadership in 1983 and was ratified by the state Legislature in 1985 and by Congress in 1987. That agreement stipulated that the tribe was subject to local and state laws and zoning regulations in effect at the time. In November, the tribe said a legal analysis from the National Indian Gaming Commission underpinned its view that the Indian Gaming Regulatory Act (IGRA) supersedes the Settlement Agreement.

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 400 acres described in the Settlement Act are subject to the zoning regulations in effect at that time.

The state’s 2011 expanded gaming law authorized up to three licenses for resort casinos in Massachusetts, with a directive for the Patrick administration to negotiate gaming compacts with federally recognized Native American tribes.

Mr. Patrick negotiated a compact with the Mashpee Wampanoag tribe, which is seeking to build a casino in Taunton, but refused to negotiate with the Aquinnah Wampanoag.

The Patrick administration contended that the Aquinnah Wampanoag tribe was free to compete for a commercial gaming license under the strictures of the casino law, but forfeited its rights to tribal gaming when it signed the land settlement.

In turn, the Wampanoag tribal membership narrowly voted to turn its unfinished community center in Aquinnah into a Class II gaming facility. The building, erected by two teams of Air Force reservists in 2004 and 2005 has sat unfinished for more than nine years while the tribe engaged in a multimillion dollar casino effort. The vote split the tribal membership, with many Island residents opposed to any casino on tribal lands, and mainland members in favor.

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.

James Newman, chairman of the three-member Aquinnah board of selectmen, which includes two tribal members, said the motion to intervene is necessary to protect the town

“It was the right thing and the natural thing to do to protect ourselves from the casino,” Mr. Newman said Tuesday.

Town counsel Ron Rappaport said the town believes it is appropriate to be a party to the state lawsuit for several reasons. “First, we are a party to the settlement agreement; second, and most importantly, we are the party that enforces zoning, and zoning does not permit commercial gaming. So we stand uniquely suited to advocate through the courts that our local rights need to be preserved.”

The town will not stand alone. The Gay Head community association, which has carried the fight to defend the settlement agreement in the past, will do so again.

In an email to The Times on Tuesday, retired lawyer and longtime AGHCA president Larry Hohlt said, “As noted in AGHCA’s filings, the tribe’s recent gaming-related actions directly implicate the meaning and enforceability of the 1983 Settlement Agreement and the implementing Federal and Commonwealth Acts by flaunting numerous agreements, restrictions, and general provisions set forth in those documents. At the core of this case is the question of whether the agreement struck among the town, the Tribal Council, the Commonwealth, and AGHCA’s predecessor (the Gay Head Taxpayers Association) in 1983 is going to be enforced.

“Each of the parties to the 1983 agreement derived great benefits from it, and made significant compromises to obtain those benefits. We strongly disagree with the Tribe’s position on the interaction of IGRA (the Indian Gaming Reform Act) with the 1983 Settlement Agreement and implementing acts, and with the legal opinions from the Interior Department and the NIGC (National Indian Gaming Commission). We have therefore moved to intervene in the present action in order to take the steps necessary to ensure that the Settlement Agreement is properly interpreted and applied, and that the parties to the agreement receive the full panoply of benefits for which they bargained — just as we have done in the past, and will continue to do in the future.”

In a prepared statement emailed to The Times Wednesday, Ms. Andrews Maltais, AWGC chairman said, “We fully anticipated the town and taxpayers would try to intervene. However, as the court stated, this is a matter of federal law. So in my opinion, the Commonwealth is fully capable of representing any interests they may feel they have; since I believe all of their interests or rights are derived from the Commonwealth.”