Federal judge reaffirms Wampanoag Tribe settlement agreement

The ruling in a complex case underscores the limits applied to the tribe’s sovereign immunity with respect to its lands on Martha’s Vineyard.

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

In a decision that goes to the bedrock of the longstanding legal relationship between the Wampanoag Tribe of Gay Head (Aquinnah) and the Martha’s Vineyard community, U.S. District Court Judge F. Dennis Saylor IV said that the tribe remains bound by the terms of the settlement agreement, and knowingly waived its sovereign immunity with respect to tribal lands.

Judge Saylor’s 33-page decision, dated Feb. 27, is the latest ruling in a legal argument over whether Massachusetts can limit the tribe’s ability to build a casino, either in southeastern Massachusetts or on tribal lands on Martha’s Vineyard. Signed by tribal leadership in 1983 and ratified by the state legislature in 1985 and by Congress in 1987, the settlement agreement stipulated that the tribe was subject to local and state laws and zoning regulations in effect at the time.

The state’s 2011 expanded gaming law authorized up to three licenses for resort casinos in Massachusetts. Governor Deval 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.

Outmaneuvered at every turn in the state’s casino scrum, the tribe said a November 2013 legal analysis from the National Indian Gaming Commission provided the go-ahead to convert its long-unfinished community center into a Class II gaming facility, a move largely viewed as an effort to gain advantage over competing mainland developers for its own mainland stake. The building, erected at taxpayer expense by two teams of Air Force reservists in 2004 and 2005, has sat unfinished while the tribe engaged in a multimillion-dollar casino effort.

In December 2013, Governor Patrick filed suit in state court to block the tribe from moving forward with a gaming facility on Martha’s Vineyard, and asked the Supreme Judicial Court to affirm that the tribe forfeited its right to tribal gaming on the Island. The tribe successfully argued that the case belonged in federal court.

Full faith and credit

Last August, Judge Saylor ruled from the bench that the town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. (AGHCA) could intervene in the state’s lawsuit against the tribe.

The tribe filed a motion to dismiss the AGHCA complaint on the grounds that it possesses sovereign immunity from suit from the AGHCA, and argued in part that the tribe as it is now constituted was not a signatory to the settlement agreement, nor was it the plaintiff in the shellfish hatchery case. Judge Saylor last week denied the tribe’s motion to dismiss the Community Association complaint, but did allow the tribe to pursue counterclaims against state officials.

In his ruling, Judge Saylor leaned heavily on a decision by the Massachusetts Supreme Judicial Court in December 2004, which found that the tribe was required to seek a building permit in the winter of 2001 when it erected a small shed next to the shellfish hatchery on one of its ancestral lands, known as the Cook property, without a town building permit. The state’s highest court ruled that the tribe, then the only federally recognized tribe in Massachusetts, was not immune from zoning enforcement despite its federal recognition and its claim of sovereign immunity.

The legal question still to be settled, and which could propel the case to the nation’s highest court, is whether the the Indian Gaming Regulatory Act (IGRA) signed in 1988 trumps the settlement act Congress approved in 1987. Judge Saylor did not address that point, but did speak to the settlement agreement and the tribe’s multifaceted arguments, and in doing so laid the groundwork for any future defense of the settlement act with respect to other land-use issues, irrespective of the rights of the tribe to gaming.

Following a detailed legal analysis, Judge Saylor said that he “must give full faith and credit to the decision of the Supreme Judicial Court.”

Judge Saylor said that in reaching its decision, the SJC “necessarily must have determined that the settlement agreement was enforceable against the parties” and “that the tribal council was capable of waiving the sovereign immunity of the tribe even though it had not yet been federally recognized.”

In his ruling Judge Saylor said at a minimum, the settlement agreement is enforceable against the tribe as now constituted, the successor to the tribal council; the tribal council had the power to waive the tribe’s sovereign immunity; and language that waived the tribe’s immunity with respect to the Cook property compels the conclusion that the tribe’s waiver applied to all of its lands.

Taking one step beyond the Cook lands, Judge Saylor said, “The language in the settlement agreement applies equally to the remainder of the tribe’s lands as it does to the Cook Lands; there is no apparent basis on which to distinguish the Cook Lands from the lands targeted for gaming. By that reasoning, therefore, the tribe waived its sovereign immunity with respect to all of its lands.”

Eye of the beholder

In an email to The Times on Monday, retired lawyer and longtime AGHCA president Larry Hohlt said, “We are extremely pleased with Judge Saylor’s decision regarding each of the potentially far-reaching assertions that went to the heart of the settlement agreement that had been put forth in this litigation by the tribe’s attorneys. Hopefully, this will now lead to a speedy final determination in this litigation, which is both very time-draining and expensive.”

Ron Rappaport, Aquinnah town counsel, said it is time to move on to the central issue. “This decision affirms the holding by the Supreme Judicial Court in the Shellfish Hatchery case that the settlement agreement signed in 1983 constituted a waiver of the Tribe’s sovereign immunity and that all the Tribal lands are subject to state and town laws,” Mr. Rappaport said in an email to The Times. “Now we can move on to the central issue in this case, which is whether the subsequently enacted Interstate Gaming Act (IGRA) somehow superseded the settlement agreement — which I do not think that it did.”

Cheryl Andrews Maltais, chairman of the Aquinnah Wampanoag Gaming Corporation, had a different take in a statement emailed to The Times.

“The Aquinnah Wampanoag Gaming Corporation (AWGC) is extremely pleased with Friday’s order by U.S. District Court Judge F. Dennis Saylor, which properly frames the lawsuit between the tribe and the Commonwealth as a matter of federal law despite the Commonwealth’s assertion to the contrary,” she said. “Specifically, Judge Saylor noted on page 28 of the order, ‘in deciding whether plaintiff has jurisdiction over the tribe’s lands under the settlement agreement, this court must necessarily determine whether any federal law has abrogated or preempted that jurisdiction.’ We believe Judge Saylor understands the issue, and now that it has been properly framed, we look forward to a favorable decision.”

The tribe issued the following statement: “The tribe is pleased with Judge Saylor’s order issued last week which allowed the tribe to pursue its counterclaims against those officials of the Commonwealth who seek to interfere with the tribe’s federal gaming rights. While Judge Saylor was boxed in by previous court precedent regarding the enforceability of the waiver of sovereign immunity included in the settlement agreement, his order sets up the framework for reaching the merits of the case. If the Judge finds, as we expect him to, that the Commonwealth’s jurisdiction over gaming on the tribe’s lands was abrogated by the passage of the Indian Gaming Regulatory Act, then those provisions of the settlement agreement are also abrogated. This result would give proper effect to Congress’ intent in passing the Indian Gaming Regulatory Act, and would recognize the sovereign right of the tribe to govern gaming activities on its own lands.”