Obama administration sides with Wampanoag tribe in casino appeal

The Department of Justice Friday filed a brief in support of the tribe’s efforts to overturn a district court ruling barring a casino on Martha’s Vineyard.

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 9:24 pm, Monday

The U.S. Department of Justice has stepped into the legal battle over the rights of the Wampanoag Tribe of Gay Head (Aquinnah) to build a casino on tribal lands in the smallest town on Martha’s Vineyard. In a brief filed Friday in the U.S. Court of Appeals for the First Circuit, Justice Department lawyers argued that the Indian Gaming Regulatory Act “implicitly repealed” the Settlement Act that has checked the tribe’s gaming ambitions for almost three decades.

The tribe is seeking to overturn a ruling by U.S. District Court Judge F. Dennis Saylor IV, issued Nov. 13, 2015, that the tribe could not turn its unfinished community center into a class II gaming facility. 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 rest of 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.”

The Department of Justice (DOJ) brief states: The district court’s judgement should be reversed and the case remanded with instructions to direct judgement in favor of the tribe because 1) the tribe exercises sufficient governmental power over its settlement lands to qualify under IGRA, and 2) IGRA implicitly repealed the Massachusetts Settlement Act provision authorizing state and local regulation over gaming on those lands.

While the brief adds heft to the tribe’s legal arguments, it does not make the federal government a party to the suit brought by the  town of Aquinnah, the Aquinnah/Gay Head Community Association (AGHCA), and the Commonwealth of Massachusetts against the Wampanoag tribe and the Wampanoag Gaming Corporation.

No date has been set for legal arguments before the Court of Appeals.

‘Dismissive no longer’

On May 31, tribe lawyer Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, based in Sedona, Ariz., filed a brief laying out the tribe’s argument with the Circuit Court of Appeals.

Mr. Crowell pointed to parallels with the efforts of two tribes in Texas to operate gaming facilities despite efforts by the state to limit the tribes. In October, the U.S. Interior Department and the National Indian Gaming Commission agreed that the Tiguas (also known as the Ysleta del Sur Pueblo), as well as the Alabama-Coushatta Tribe of Texas, have a right to operate a Class II gaming facility on tribal lands.

In an email to The Times late Saturday Mr. Crowell said he welcomed the federal support. “The tribe welcomes the United States’ involvement in the appeal,” Mr. Crowell said. “Throughout the District Court’s proceedings, the Commonwealth and the homeowners association were dismissive of the tribe’s argument that the United States exercises jurisdiction over the tribe’s gaming activities to the exclusion of the Commonwealth. They can be dismissive no longer.”

In a prepared statement emailed to The Times Monday, Tobias J. Vanderhoop, tribal chairman, said the tribe is pleased to have the support of the federal government. “For the Aquinnah people, this dispute is much more than a simple dispute over gaming,” Mr. Vanderhoop said; “rather, this dispute goes to the heart of our sovereign right to govern our people and land.”

Mr. Vanderhoop said Judge Saylor’s conclusion that tribal government possesses jurisdiction over its lands but does not “exercise sufficient governmental power was simply absurd.”

He said, “The United States brief reaffirms our right to govern our ancestral tribal lands. Our continued effort in this case remains focused on the proper application of laws enacted for the benefit of all tribes — including Aquinnah.”

Law ‘is clear’

Julianne Vanderhoop, chairman of the Aquinnah board of selectmen and a member of the tribe, said she is disappointed that the federal government has lent its support to the tribe’s gaming effort. Ms. Vanderhoop, a strong opponent of casino gambling in Aquinnah, said the case will continue and the town will present its arguments, which have prevailed in the past.

Ms. Vanderhoop said she is pleased that the tribe is now moving to complete its community center. “That being said, I just hope that we can keep moving forward and look for more viable economic entities for the tribe to move into rather than gaming,” she said.

In a telephone conversation Saturday, Aquinnah town counsel Ron Rappaport said he was not aware the Department of Justice planned to file in support of the tribe. Mr. Rappaport said he expects to file a brief in the next 60 days. “We do not agree with the assertions made by the Department of Justice, and we will strenuously oppose them,” Mr. Rappaport said.

In an email to The Times Sunday, Larry Hohlt, a retired lawyer and AGHCA president, said, “The interplay between the 1987 Federal Act which enabled our 1983 Settlement Agreement and the 1988 IGRA is clear based on the language in the 1987 Federal Act that specifically subjects the tribe to state and town regulation over gaming, and we are confident that the positions espoused by the Commonwealth, the town, and AGHCA as reflected in Judge Saylor’s opinion will be upheld.”

Feds have an interest

In 2011, Governor Deval Patrick signed an expanded gaming law, which authorized up to three licenses for resort casinos in Massachusetts. 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 unfinished community center into a Class 2 gaming facility, which allows for high-stakes bingo and electronic games of chance.

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, Gov. 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).

In the preface to their arguments, the DOJ lawyers said the issue turns on which of two federal statutes, the Settlement Act or IGRA, regulates the tribe’s gaming plans. The DOJ said the Settlement Act was enacted during a “gap” period just after the U.S. Supreme Court held that California and other states lacked civil regulatory authority over on-reservation gaming and before Congress filled the gap by enacting IGRA, which established a scheme for regulating gaming on tribal lands.

The DOJ said, “The United States has a substantial interest in the administration of these two federal statutes and how they interrelate. The United States has a trust responsibility to the tribe and an interest in ensuring that its Settlement Act is fairly administered. It also has an interest in the proper implementation of IGRA, by which Congress ‘struck a careful balance among federal, state, and tribal interests’ in adopting a ‘comprehensive approach to tribal gaming.’”

Demanding standard

One issue is whether the tribe exercises sufficient governmental powers over its lands for them to be deemed “Indian lands” under IGRA, the DOJ said. “The district court applied too demanding a standard,” the DOJ said, pointing to a ruling concerning the Narragansett tribe in Rhode Island.

In his 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.”

The tribe has no 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.”

The DOJ said, “In Narragansett, this Court determined that ‘strides’ the tribe had taken ‘in the direction of self-government’ were more than adequate. The record contains evidence of similar strides by Aquinnah: the tribe’s codes, ordinances, and intergovernmental agreements; its administration of federal funds and programs for housing, environmental pollution, and health care; and the exercise of law enforcement authority by tribal rangers.”

In arguing the other key point, that IGRA trumped the Settlement Act, the DOJ said, “The two statutes cannot be reconciled because the Settlement Act permits state and local regulation of gaming, but IGRA allows Class II gaming, free from state and local regulation, unless the state has imposed a total ban on all forms of a game, such as all forms of gaming akin to bingo. IGRA, through which Congress intended to create a comprehensive scheme for Indian gaming, implicitly repealed the Settlement Act’s provision for state and local jurisdiction over gaming. To conclude otherwise ‘would honor the Settlement Act, but would do great violence to the essential structure and purpose of [IGRA.]’”

Community center, not bingo hall

Should the tribe prevail in its appeal — and the case not go to the U.S. Supreme Court — the next question would be whether, and where, the tribe might build a gaming hall. In January, the Wampanoag tribal council voted to complete its long-unfinished community center for its original intended purpose — a community center, not an electronic gaming hall. At the time, Mr. Crowell said the tribe’s position had not changed. “The appeal is about the tribe’s right to game on its Indian lands, and not about completion of the community center,” he said in an email to The Times. “The decision to complete the community center for nongaming purposes is not relevant to the appeal.”

Even as the legal battle continues, the tribe must complete the building or repay federal grants totaling $1.1 million. On Jan. 24, the tribal council voted 9-2 to finish off the the 6,500-square-foot building that sits just off the entrance road to the tribal lands.

The Wampanoag Tribe of Gay Head (Aquinnah) is the recipient of two Indian Community Development Block Grants (ICDBG), one for $500,000 and one for $600,000 to construct a multipurpose community center on tribal land, according to Housing and Urban Development (HUD) spokesman Rhonda Siciliano.

According to HUD, the tribe has expended over 99 percent of the funds but did not complete the project, and has been granted “a final extension” until Sept. 1, 2016, to complete the project.

In the summer of 2004, two teams of Air Force reservists traveled from their home base, Tinker Air Force Base in Oklahoma City, Okla., to Aquinnah to begin erecting the steel frame for a new community center building for the Wampanoag Tribe of Gay Head.

They were followed by members of the 908th civil engineering squadron, part of the Air Lift Wing based in Maxwell Air Force Base in Montgomery, Ala. In all, over six weeks, three squadrons of approximately 20 reservists in civil engineering groups worked on the project as part of the Air Reserve Command Innovative Readiness Training (IRT) program. The tribe was obligated to complete the remaining 20 percent of the project.

Twelve years later, the 6,200-square-foot structure that was to include a gymnasium, kitchen facilities, and meeting space remains uncompleted.

This week, town building inspector Mark Barbadoro confirmed that the tribe has applied for building permits and hired a contractor. In an email to The Times Monday, Mr. Vanderhoop said, “The Wampanoag Community Center project is moving forward for the benefit of the Tribal community. Our team is working diligently to meet the September completion date.”