Aquinnah selectmen met in a specially called executive session Monday morning, and voted unanimously to deliver a cease-and-desist letter to the Wampanoag Tribe of Gay Head (Aquinnah) that orders the tribe to stop work intended to transform a long-unfinished shell of a community center into a high-stakes bingo facility.
Scott Crowell, who represents the Aquinnah Wampanoag Gaming Corporation, a separate tribal entity formed to pursue gaming, said the tribe will not respond to the order to stop work on the building, and is well within its legal rights to proceed under the federal Indian Gaming Regulatory Act.
The heart of the issue is the extent to which the settlement agreement limits 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 legal question still to be settled is whether the Indian Gaming Regulatory Act (IGRA) signed in 1988 trumps the settlement act Congress approved in 1987. That question is now before a federal judge.
The 6,500 square foot building that is the latest flashpoint in tribal-town relations was erected at taxpayer expense just off the entrance road to the tribal lands by two teams of Air Force reservists in 2004 and 2005 as a civil engineering community project. The shell sat dormant and unfinished after the citizen-soldiers departed.
It was not until Governor Deval Patrick signed the state’s 2011 expanded gaming law, which authorized up to three licenses for resort casinos in Massachusetts, that the tribe turned its full attention to the unfinished building. Spurned in its quest for a piece of the mainland gaming pie in favor of the Mashpee Wampanoags, the Gay Head tribal membership narrowly voted to turn its unfinished community center into a Class 2 gaming facility.
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. The case was later moved to federal court, and the commonwealth was joined by the town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. (AGHCA).
A hearing is scheduled August 12 before U.S. District Court Judge F. Dennis Saylor IV on cross-motions for summary judgement, at which all sides will argue the case. In a deposition given last week, Tobias Vanderhoop, chairman of the Wampanoag Tribe, testified that the tribe planned to move forward to convert the building.
The tribe contends it does not need a building permit to proceed because it meets federal gaming requirements. If it moves forward the tribe would be on the hook for approximately $1.2 million in Housing and Urban Development grants appropriated for the community center.
The selectmen took action Monday at the request of town counsel Ronald Rappaport. Mr. Rappaport has previously argued that the tribe must comply with town zoning and building requirements, and that gaming is not a permitted use.
“It is clear that the tribe and the gaming corporation intend to proceed with construction of a casino,” Mr. Rappaport said in a phone conversation Monday, “and that they intend to proceed without obtaining any town permits. We cannot sit back and allow anybody to build anything in town without a permit, so the selectmen today authorized the issuance of a cease-and-desist order, and we intend to follow up on that.”
Asked what is at stake for the town and the Island in federal court, Mr. Rappaport said, “A casino on the Vineyard — as [selectman] Jim Newman said today, is nothing that we planned for, and the implications are somewhat overwhelming.”
Over the years, the Aquinnah/Gay Head Community Association has vigorously defended the tenets of the settlement agreement even as it worked to forge closer ties with the tribal leadership. The tribe’s latest move, just weeks before the central question will be decided in court, came as a surprise.
“The unilateral actions being taken by the tribe’s leadership to move ahead to open a casino in Aquinnah are astounding, in that they fly in the face of the core issues that are the heart of the ongoing litigation among the commonwealth, the town, AGHCA, and the tribe,” retired lawyer and longtime AGHCA president Larry Hohlt told The Times. “It is quite appropriate for the town to issue a cease-and-desist letter. Hopefully doing so will result in responses by the tribe that will not make the taking of further legal action necessary.”
Cease and desist
The letter is dated July 6 and signed by assistant building inspector Leonard Jason, Jr.
The order describes the permitting history of the building, which was to include a gymnasium, stage, locker rooms and a kitchen. Following a series of public hearings, on December 13, 2007 the Martha’s Vineyard Commission (MVC) approved the community center as a development of regional impact under the condition that the tribe would return to the MVC should it “substantially alter the use of the premises from the proposed uses.”
In 2011 and 2012 the town issued building permits for a community center.
Mr. Jason’s letter references the testimony of Tobias Vanderhoop on July 1, when he testified under oath that the building permits issued by the town were no longer valid because the tribe had transferred control of the building to the gaming corporation for use as a casino and has the authority to proceed under the IGRA.
“Mr. Vanderhoop acknowledged that the tribe did not notify the town about this change of use, nor did the tribe seek new or amended permits to reflect its proposed change of use. He further stated that the tribe would not permit town inspections, and that the type of commercial gaming which would be conducted on the premises was ‘electronic bingo, or, as it’s referred to, Class 2 gaming activities …’ Mr. Vanderhoop stated that the tribe has retained a contractor and an architect, although architectural plans have not been made available to the town.”
Mr. Jason said the tribe cannot proceed with its renovation plans for a casino without permits and that commercial gaming is not a permitted use under town zoning bylaws.
“Accordingly,” Mr. Jason said, “I must instruct you to cease and desist from all construction activities at this time.”
‘Spurious side proceeding’
The tribe is represented by Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, a firm “committed to tribal advocacy and the preservation and furtherance of tribal sovereignty,” according to the group’s website.
Mr. Crowell said the town is well aware of the tribe’s legal position that the federal Indian Gaming Regulatory Act supersedes the settlement act regarding gaming. “Any jurisdiction of the commonwealth and the town over matters integral to the tribe’s gaming operation that might have been in effect prior to the passage of the IGRA, is no longer in effect, and that includes the town’s efforts to use its permitting process to interfere with the tribe’s gaming operation,” Mr. Crowell said in an email to The Times.
“The town was well aware of the tribe’s position well before this past week. That is why they intervened in the federal litigation. The issue will be resolved in that litigation and not in some spurious side proceeding over a permit.”
Mr. Crowell said the tribe offered to take steps to assure the town that all work was up to code, but the town responded by issuing the cease-and-desist order. Mr. Crowell said the tribe’s decision to move forward with construction should come as no surprise.
“The tribe initiated this process well over three years ago, and the town brought its lawsuit against the tribe because it was already aware of the tribe’s plans,” he said. “The effort of some to portray these developments as new, or a change in the timeline, has no basis in fact. Indeed, if anything, the process has been slower than anticipated.”
Class 2 gaming of the type envisioned for Aquinnah encompasses high-stakes bingo, poker, pull-tab cards, and associated electronic games that do not require coin slots. Unlike class 3 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.
Benefits for all
The May 2011 vote at a general membership meeting of the tribe to use the community center building for gaming was unannounced, and revealed a clear split between tribal members who live on the mainland and Island residents. The vote was 21-10 with 7 abstentions. A second vote followed in May 2012 that affirmed the earlier vote but by a narrower margin.
This week, tribal members submitted a petition calling for another vote on the use of the building by the general membership. That vote will be scheduled later this summer, tribe chairman Tobias Vanderhoop told The Times in a telephone conversation Tuesday.
Mr. Vanderhoop said the cease and desist order was not unexpected. He referred all questions about work on the building to Ms. Andrews-Maltais.
Mr. Vanderhoop said there is no question that the question of gaming in town has created divisions among the membership. He said he has tried to mitigate the concerns of tribal members through additional discussion.
Asked for his personal view on the question of gaming, Mr. Vanderhoop said, “It is my responsibility as the elected chairman of the tribe to represent the interests of all the tribal citizens. My point of view is that I stand with the actions that the membership takes and I carry out my duty.”
Asked if he agrees with the idea of constructing a casino in town, Mr. Vanderhoop said, “As long as it is the will of the people that is what we will do.”
Mr. Vanderhoop said it is important that people understand the benefits the proposed gaming facility would bring to the tribe, in terms of increased funding for a variety of social services that include health care, scholarships and youth programs, as well as “additional housing to allow tribal citizens to return home.”
Mr. Vanderhoop said there would be benefits for the wider community. “The gaming facility has the potential to increase tourism on this end of the Island,” he said, “increase patronage to the existing businesses across the Island and will create more jobs, not only in the facility but for ancillary businesses that will have the opportunity to benefit from the tourists.”
Two of the three members of the Aquinnah board of selectmen, chairman Spencer Booker and Julianne Vanderhoop, are tribal members and do not share that rosy assessment of the impact.
Mr. Booker said the selectmen were unaware of the tribe’s plans. He said that on most issues there has been communication between the town and tribe, but where gaming is concerned, the town has been left out of the loop.
Mr. Booker said he is opposed to gaming in town, and fears its effect on a cultural and spiritual level. He said he is not alone in that view.
“A casino in Aquinnah would impact the tribe and tribal people greatly on a very deep level,” Mr. Booker said. “People have hunted these lands for generations, and what would it do with the masses teeming all over our lands?”
Selectman Julianne Vanderhoop said she is perplexed by the tribe’s actions, and said the notion of creating a gaming hall in the Island’s smallest town is “far-fetched.”
Ms. Vanderhoop said the tribe has been sold a bill of goods, and is not considering the implications of a project that would ultimately be more harmful than good.
“It’s disappointing to me, not only as a town official but as a tribal member,” Ms. Vanderhoop said. “I really don’t know how this is viable at all.”
Ms. Vanderhoop said the push for a casino on tribal lands is driven by the off-Island membership who are not connected to the rhythm and culture of the Island. “I think that everyone in town is unprepared for this,” she said.
At the least, she said, the tribe ought to wait until there is a decision in the case now before Judge Saylor.
In an earlier procedural ruling, Judge Saylor said that the tribe remains bound by the terms of the settlement agreement, and knowingly waived its sovereign immunity with respect to tribal lands.
In that instance, Judge Saylor was ruling on a motion filed by the tribe to dismiss the AGHCA complaint.
In a 33-page decision, dated Feb. 27, 2015, 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.
Judge Saylor did not address the overarching question of the IGRA, but he 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.”
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.”