Tribe bets on its federal rights

Updated Feb. 27

The Wampanoag Tribe of Gay Head (Aquinnah) is clearing the way for the Aquinnah Cliffs Casino, saying that review by the Martha’s Vineyard Commission is not required for the federally approved project.

In her first interview since announcing the construction Sunday, Cheryl Andrews-Maltais, chairman of the tribal council, doubled down on the tribe’s right to build without meddling by the up-Island towns or the commission.

“We said back at the beginning, even before the litigation started, we were willing to come to the table and share what our plans are, but we’re not asking permission because we don’t need to,” Andrews-Maltais told The Times.

As she wrote in letters to the town of Aquinnah and the commission, the tribe is open to “respectful government-to-government dialogue,” she said.

Andrews-Maltais issued the release over the weekend, a direct response to a letter from the Martha’s Vineyard Commission urging the tribe to submit to commission review.

“We remain committed to bringing positive economic development to our Tribe, the Town of Aquinnah and our neighbors in the larger Island community,” Andrews-Maltais said in the release. “At the start of construction, we bring to life the vision for this entertainment experience. We look forward to the creation of new jobs, supporting the local economy and local businesses, and bringing a new and exciting entertainment venue to our Island.”

Construction is expected to begin in March and completed in six months, according to the release. The official address is 1 Black Brook Road.

Both the towns of Aquinnah and Chilmark referred to the electronic bingo facility as a development of regional impact. On Thursday, the commission met in executive session to discuss possible litigation with the tribe. But a letter dated Feb. 20 urges the tribe to work with the commission to “preserve and conserve” the Vineyard for present and future generations.
“We trust as the representatives of the original Islanders you share our desire to preserve the unique values of the Vineyard,” the letter states. “DRI review has been used for 45 years to improve projects and protect the health, safety, and general welfare of the Island we have all come to know and love. Regardless of political boundaries we are one Island.”

The letter asks the tribe to respond by Monday to set up a meeting. There is no mention of litigation.

The state, town, and the Aquinnah/Gay Head Community Association already lost a protracted legal battle over the gambling facility when the U.S. Supreme Court refused to hear the case in January 2018.

In letters to both the town of Aquinnah and the commission, Andrews-Maltais writes that the commission has no jurisdiction over the project. “This issue has been litigated all the way to the United States Supreme Court, the Tribe has prevailed, and this issue is now settled law,” she wrote.

“Even after losing in the highest court in the land (at no small monetary cost to all parties), the town now seeks to do indirectly what it now knows cannot be done directly,” Andrews-Maltais continued. “Therefore, unless the town formally withdraws its letter to the MVC, and acknowledges that the town lacks jurisdiction over all matters integral to the tribe’s gaming operation, the tribe will no longer engage in discussions with the town on gaming matters whatsoever.”

The Aquinnah tribe has met all of the federal requirements from the National Indian Gaming Commission (NIGC), Keith Martinez, an NIGC spokesman, wrote in an email responding to questions from The Times. “The Indian Gaming Regulatory Act (IGRA) requires that a tribe license its gaming operation and submit that license to the NIGC along with an attestation that the facility will meet the tribally mandated environmental, public health, and safety regulations the tribe has imposed on its facility,” the email states. “IGRA also requires a tribe submit a gaming ordinance for the NIGC Chairman to review and approve prior to opening.”

According to the NIGC general counsel, local boards have no jurisdiction over gambling on tribal lands. “Under the act, a tribe has sole jurisdiction over Class II gaming on its Indian lands subject to the requirements of the IGRA, including regulatory oversight by the NIGC. IGRA does not give state and local authorities any jurisdiction over Class II gaming operations.”

Questions about the tribe’s settlement agreement with the state and town were referred to the Bureau of Indian Affairs.

Under federal oversight, the tribe is obligated to meet the same building and environmental regulations that govern towns, Andrews-Maltais told The Times. “We have our own structure, and we have to report up to the federal government, and they have very specific public environmental safety concerns, issues,” she said. “There is nothing here locally that is more compelling than the federal government.”

Douglas Sederholm, chairman of the commission, told The Times that the executive committee met Tuesday in executive session. He couldn’t say what was discussed, but said a meeting is being set up between representatives of the commission and the tribe.

“We want to better understand the project, and we want them to better understand our concerns,” he said.

Aquinnah officials are likely to discuss the latest developments at a meeting Thursday, March 7, town administrator Jeffrey Madison said. “The selectmen are out of town, and I haven’t had an opportunity to discuss it with them,” he said.

Madison, who is a tribe member, said the Island casino is contentious within the membership. “I don’t know any long-term resident, tribal member resident of Aquinnah that supports this project,” he said.

Andrews-Maltais said that’s not true. The tribe has had several votes on the casino project, and it has prevailed. “I didn’t realize Jeffrey Madison spoke for the tribal community, because he doesn’t,” she said. “The bottom line is there are people right here on our tribal lands who are supportive. I don’t know with whom he speaks on a regular, daily basis. That is not what I’ve gotten from people who live in Aquinnah, on tribal lands, or on the mainland.”

Jim Malkin, chairman of the Chilmark board of selectmen, said his board’s discretionary referral to the MVC is about public safety.

“What Chilmark is doing doesn’t have to do with the tribe’s ability to build a casino, that’s been settled by the courts,” Malkin said. Anyone traveling to the casino, particularly from down-Island ferry terminals, will have to pass through Chilmark to get there, he said. “That’s going to have an impact in terms of public safety,” Malkin said. The town wants to know whether it will need more officers on patrol or more emergency medical technicians on call at Tri-Town EMS, he said.

Andrews-Maltais reiterated the tribe’s willingness to talk with towns about public safety needs, but thus far those talks have been unrealistic. “We’ve said we’re willing to pay our fair share, but you can’t come to us and say give us a check for $5 million. A) we can’t do that and B) what are you basing that on?” she said. “It has to be legitimately attributable to the additional costs it would take to maintain the public safety based upon the facility. It’s not arbitrary like that.”

The tribe’s announcement has already generated more than 100 of comments on The Times Facebook page — some supporting the tribe’s federal rights, but the vast majority saying it will destroy the natural beauty up-Island.

Andrews-Maltais said most of the comments are based on a misunderstanding of federal gambling laws. “I don’t Facebook. The negativity is just not productive. Part of the problems on Facebook and [online] comments is you have a lot of people who may have ill intent who get a giant platform, and they’re speaking from a lack of knowledge or understanding of the process, the law, the court cases,” she said. “It just spews a lot of incorrect information and negativity, and then the whole discussion goes off into an area that has nothing to do with what we do.”

Work underway

Clearing of the land has already started at the 4.1-acre site on South Road that abuts tribal housing.

The tribe is working within the Indian Gaming Regulatory Act of 1988, which gives it the right to provide Class II gaming on reservation land. Under that law, tribes are allowed to provide Class II gaming without negotiating a compact with the state. A Class III casino, which would include table games like blackjack, poker, and roulette, would require negotiations with Gov. Charlie Baker and some oversight by the Massachusetts Gaming Commission.

According to the release, the tribe seeks to have a 10,000-square-foot facility with about 250 electronic gaming machines. Plans also call for a beer and wine bar, outdoor seating area, and mobile food vendor area, the release states. The gambling facility would employ 100 full- and part-time employees when operational.

The press release announced Williams Building Co. of Hyannis as the general contractor.

“Williams Building is very excited to begin this phase of development for the project,” Tim Williams, owner of the construction company, said in the release. “We are honored to be selected by the Aquinnah Wampanoag Gaming Corp., and look forward to making this long-term goal of the Tribe into a reality.”

According to the company website, Williams Building has worked on renovations at the Harbor View Hotel in Edgartown.

The proposed building, a Sprung Construction design, has been criticized on public forums.

Andrews-Maltais said it’s a design used by a lot of tribes starting out. “The one thing I want to emphasize and keep in mind is, this is a temporary facility while we determine what the market yield or the demand is going to be,” she said. “So most tribes that have started out have started out with the Sprung Built structure, that doesn’t require as much investment up front.”

Last August, the tribe announced it had partnered with Global Gaming Solutions, which has assisted other tribes in launching successful casinos. “We are thrilled to have such a wonderful development partner like Global Gaming Solutions, to help us achieve economic self-sufficiency in order to supplement our necessary programs and services,” Andrews-Maltais said in the release. “We look forward to the day when we too can assist another tribe who is struggling to provide for their community.”

In court documents, the tribe stated an Island casino could yield $4.5 million per year. Andrews-Maltais wouldn’t say exactly what the projections are, but did say those were “uber-conservative.” Global Gaming, which has casinos all over the U.S., is a key indication that there is a market on the Vineyard, she said. “They are truly experts in the field, and they wouldn’t be partnering with us if they didn’t think it was a lucrative venture — that they would be getting paid back,” Andrews-Maltais said.

The Aquinnah tribe attempted to join the off-Island emerging gambling market in Massachusetts after Gov. Deval Patrick signed casino legislation into law in 2011. A deal to purchase 200-plus acres on the Freetown-Lakeville line fell through when Gov. Patrick refused to negotiate a compact with the Aquinnah tribe and, instead, turned his attention to the Mashpee Wampanoag, the state’s only other federally recognized tribe.

It was that rejection that set the wheels for an Island casino in motion for the Aquinnah Wampanoag.

The Mashpee tribe lost a legal battle to keep its land in Taunton in federal trust, and federal legislation that would restore those lands has not been acted on by Congress. In a recent letter to the Massachusetts Gaming Commision, Andrews-Maltais asked that the Aquinnah tribe be considered in any talks about allowing a casino in southeastern Massachusetts, known as Region C in the original legislation.

Andrews-Maltais said the tribe is still willing to look off-Island, but remains focused on the project at hand.

“We’ve used the term crawl, walk, run, because we have an unknown market. We’re trying to establish what it is that’s going to be profitable, and where that line is that it’s not. We always keep all options on the table,” she said.

The Mashpee experience is a cautionary tale. The Cape-based tribe has reportedly borrowed nearly $500 million from its Malaysian investors, Genting Group, with the prospects of paying that back through casinos in flux. “Not to be besmirching my cousins, but we simply do not want to end up with having a half-a-billion-dollar debt on our backs for our community.”

Updated to include comments from Andrews-Maltais and Sederholm. -Ed.