Judge says Wampanoag tribe may not build a gaming hall in Aquinnah

The Wampanoag tribe said it plans to complete its community center even as it continues to battle for the right to open a gaming facility on tribal lands.

Updated 1:30 pm, Monday

In a sweeping decision for the town of Aquinnah, the Aquinnah/Gay Head Community Association and the Commonwealth of Massachusetts, U.S. District Court Judge F. Dennis Saylor IV said Friday the Wampanoag Tribe of Gay Head (Aquinnah) cannot turn its long-unused community center into a gambling hall.

The 40-page decision has significant implications for the Wampanoag Tribe, the town, and Martha’s Vineyard. Judge Saylor said the Indian Gaming Regulatory Act (IGRA) signed in 1988 does not trump the Settlement Act 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, and it has formed the bedrock of the longstanding legal relationship between the tribe and the Martha’s Vineyard community.

Following a detailed analysis of the issues in the case, Judge Saylor said, “In summary, the tribe has not met its burden of demonstrating that it exercises sufficient ‘governmental power’ over the settlement lands, and therefore IGRA does not apply. Furthermore, and in any event, it is clear that IGRA did not repeal by implication the Massachusetts Settlement Act. Accordingly, the tribe cannot build a gaming facility on the settlement lands without complying with the laws and regulations of the Commonwealth and town.”

The 6,500-square-foot building slated to become a bingo hall was originally intended to be a community center. It 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 has sat dormant and unfinished since the citizen-soldiers departed.

It was not until Gov. 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, in May 2011 the Gay Head tribal membership narrowly voted to turn its community center into a Class 2 gaming facility.

The gaming vote revealed a clear split between tribal members who live on the mainland and Island residents. A second vote followed in May 2012 that affirmed the earlier vote, but by a narrower margin.

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 (AGHCA).

The heart of the legal case was always whether the Indian Gaming Regulatory Act (IGRA) signed in 1988 vacated the Settlement Act Congress approved in 1987.

In making his decision, Judge Saylor said the case presented “two fairly narrow issues.”

The first was whether a statute passed by Congress in 1988, IGRA, applies to the lands in question, “which in turn raises the questions whether the tribe exercises ‘jurisdiction’ and ‘governmental power’ over the lands.”

The second, he said, is whether IGRA repealed by implication, the Settlement Act.

“If the 1988 law (IGRA) controls, the tribe can build a gaming facility in Aquinnah. If the 1987 law controls, it cannot.”

“Whether an Indian tribe should be permitted to operate a casino on Martha’s Vineyard is a matter of considerable public interest, and the question touches upon a variety of complex and significant policy issues,” Judge Saylor wrote.

“This lawsuit is not, however about the advisability of legalized gambling. Nor is it about the proper course of land development on Martha’s Vineyard, or how best to preserve the unique environment and heritage of the Island. And it is not about the appropriate future path for the Wampanoag people. If there are answers to those questions, they are properly left to the political branches in our system of government. The role of the court here is a narrow one, and it expresses no opinion of any kind about the broader issues underlying this dispute.”

Victory for Island

“I am dismayed with the ruling by Judge Saylor, as it directly impacts the tribe’s ability to pursue a proven economic development path that has positively impacted many federally-recognized Indian tribes,” tribal chairman Tobias Vanderhoop said in an email to The Times Monday. “The Tribal Council’s next step is to fully review the ruling, its implications and all options including an appeal with our legal team. We believe that the exercise of our governmental authority is inherent in the intergovernmental agreements that we have chosen to establish and we will pursue a course of action that will defend our rights and status as a tribal government. Meanwhile, the tribe will continue to pursue opportunities that enhance its ability to govern and provide for the needs of our citizens.

In a seven-page opinion dated April 27, 2012, Aquinnah town counsel Ron Rappaport said that the Wampanoag Tribal Council of Gay Head Inc. could not 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.

On Friday, Mr. Rappaport said Judge Saylor “handed the town an across-the-board victory in that the court found that the tribe has no right to game in the town of Aquinnah.”

Mr. Rappaport said the decision has broader implications, but the specific concern is the town of Aquinnah. “The decision is explicit — no right to game in the town of Aquinnah,” Mr. Rappaport said. “It’s a victory for the town and really the whole Island.”

In August, tribal opponents of the gaming hall led by Julianne Vanderhoop, an Aquinnah selectman and tribal member, mounted a referendum effort to overturn two earlier tribal resolutions. The vote of the tribal membership was 110 to 110 on the question of using the unfinished community center building for a gaming facility. A two-thirds majority was needed.

At the time of the failed vote, Ms. Vanderhoop attributed the loss to the voting power of mainland members of the tribe who no longer have any connection to Aquinnah, “this place, this beautiful place, the place where we all came from.”

On Friday, Ms. Vanderhoop was elated. “I am very, very happy,” she told The Times in a phone call from her small bakery in town. “We will not be seeing this gaming facility.”

Ms. Vanderhoop said there were many areas in which the tribe and town could work together for their mutual benefit, and that the gaming issue should not define the relationship. “We have other work to do,” she said.

Asked about the future of the community center building and whether it will now be used for the purpose for which it was built, Ms. Vanderhoop said that has yet to be determined.

She said the judge’s decision comes on the eve of a general membership meeting of the tribe and tribal council elections on Sunday.

“It’s hard,” Ms. Vanderhoop said, “because as a tribal member, I do want the tribe to find its economic path. I just did not think that [a community center gaming hall] was the right direction, and we have a lot of choices I would like to see us move in.”

Ms. Vanderhoop added, “But as a selectman, I would have to say, I’m happy we will not see a facility that not a lot of people in Aquinnah wanted, and I’m speaking for the Island as well. So I think we can all celebrate.”

The AGHCA’s predecessor, the Gay Head Taxpayers Association, was a signatory to the Settlement Agreement, and the community group has continually fought at great expense to defend it.

Seasonal Aquinnah resident Larry Hohlt, a retired lawyer and longtime AGHCA president, has stood on the legal ramparts for more than three decades. “It is very gratifying that Judge Saylor’s order and case rulings strongly uphold our, the town’s, and the Commonwealth’s assertions in all material respects,” Mr. Hohlt said in an email to The Times late Friday. “One would hope that this thorough and well-reasoned decision will bring this matter to a close.”

Cheryl Andrews Maltais, chairman of the Aquinnah Wampanoag Gaming Corporation, could not be reached for comment.

Actions not resolutions

On August 12, Judge Saylor held a hearing on cross-motions for summary judgement at the Moakley Courthouse in Boston.

Appearing before Judge Saylor, attorneys for the state, the tribe, the Aquinnah/Gay Head Community Association, and the town argued for more than an hour about the extent of the tribe’s governance on its land, the intentions of federal lawmakers nearly three decades ago, and whether case law applies to the Aquinnah case.

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,” represented the tribe.

Judge Saylor said for opponents of tribal gaming to prevail, they would need to distinguish the situation on Martha’s Vineyard from a 20-year-old case where a federal appeals court, citing IGRA, required that the state of Rhode Island enter into “good faith negotiations” on a gaming compact with the Narragansett Indian Tribe.

In his Nov. 13 decision, Judge Saylor said “gaming facilities of any kind have always proved to be an attraction for crime.” IGRA requires that the tribe demonstrate “concrete manifestations” of governmental power and be in a position to provide some portion of law enforcement, public safety, and emergency services to mitigate the effects of a gaming facility on the community, such as traffic, and guard against criminal infiltration and corruption.

Judge Saylor said it is “undisputed” that the town, and not the tribe, “provides the basic law enforcement and public safety services that are indicative of governmental authority.”

He said the only two law enforcement officers that the tribe does employ — both conservation rangers — cannot enforce town or state laws except when acting as special police officers authorized by the town police chief.

Judge Saylor said “although the tribe asserts that it is ‘responsible for’ many other governmental services unrelated to law enforcement and public safety, it does not provide concrete example of what the tribe actually does.”

Judge Saylor noted that tribe asserted its passage of ordinances and execution of agreements was sufficient proof. “But the mere passage of ordinances in and of itself does not establish that the tribe actually exercises governmental power over the land,” he said.

The tribe has no board of health inspector, he said. There is no tribal code, prosecutor, or jail. The tribe’s judiciary offers only a limited function, he said. “And, importantly, the tribe has no tax system in place on the lands to fund any future governmental services.”

“In short, the tribe’s demonstrations of governmental authority fall short of establishing sufficient actual manifestations of that authority.”

Judge Saylor’s decision marks the second significant legal defeat the tribe has suffered in its efforts to reinterpret the settlement agreement.  In December 2004, the Massachusetts Supreme Judicial Court 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.