MVC spent $89,000 in Aquinnah legal fees

Commission wants oversight over planning of bingo facility.

Through November 2019, the Martha’s Vineyard Commission (MVC) has spent $89,012 in legal fees on a potential lawsuit concerning the planned Wampanoag Tribe of Gay Head (Aquinnah) gambling facility.

At an MVC meeting Thursday night, executive director Adam Turner told commissioners he spoke to each of the Island towns’ finance committees about the drastic rise in legal expenses. 

On its FY2021 budget, the commission separated regular legal fees from legal fees concerning Aquinnah. Legal fees for general matters remained low, at $16,051 for FY19.

“I think it’s important it’s out there, written the way it is, so that we know how much this whole fiasco up there in Aquinnah has cost us,” commissioner Jim Joyce said.

The tribe hopes to open a Class II gaming facility. The project would create an electronic bingo facility with games that have the look and feel of slot machines. The tribe is a sovereign nation, and uses a centralized tribal government, apart from Aquinnah town government and the Martha’s Vineyard Commission.

Chilmark and Aquinnah both referred the casino project to the commission as a DRI. Under DRI protocol, MVC staff review the project and schedule a meeting with the applicant.

The Wampanoag Tribe of Gay Head (Aquinnah) and the MVC held a “productive meeting” on March 13 to discuss traffic, drainage, housing, and other impacts a gambling facility would have in Aquinnah. 

The two groups planned to meet again, but in a May 18 letter, Scott Crowell, a lawyer for the tribe, told Turner that due to litigation filed by the town of Aquinnah, the tribe would be unable to continue dialogue with the MVC.

The DRI process began on June 6 despite radio silence from the tribe. Aquinnah town administrator, tribal member, and lawyer Jeff Madison told the commission there wasn’t a question of whether the tribe had a right to build a gaming facility, but he wanted more information on the public safety and environmental impacts a gaming facility could create.

The commission unanimously voted to deny the casino, though it had no detailed application to consider from the tribe. The project can still be applied for at any time in the future.

The tribe took its first steps in constructing the facility by building rebar and footings on the site.

The back and forth in federal court has been going on for six years. It began with a lawsuit filed in state court by then-Gov. Deval Patrick against the tribe for breach of contract. The state’s contention was that the tribe was violating the terms of its 1983 settlement agreement, which was codified by Congress in 1987. In exchange for tribal lands, the tribe agreed to follow local and state laws.

The tribe successfully had the case moved to federal court, where U.S. District Court Judge F. Dennis Saylor IV found in favor of the town, state, and the Aquinnah/GayHead Community Association. The tribe appealed, and the lower court ruling was overturned, but the tribe failed to appeal Saylor’s entire ruling. When the U.S. Supreme Court refused to hear the case, the town filed a motion seeking final judgment, and on June 19 Saylor found that while the town cannot stand in the way of a casino project on the tribe’s reservation, the tribe is required to obtain local permits for the project.

Saylor issued his ruling on July 26, rejecting the tribe’s motion for a stay of his final judgment, saying the tribe had failed to make the case that it would succeed upon appeal.

In August, the tribe and the town reached an agreement on securing the casino site until the tribe’s appeal, filed with the First Circuit Court of Appeals, is completed.

Briefs are due on Jan. 21 in the First Circuit Court of Appeals.