The Wampanoag Tribe of Gay Head (Aquinnah) will appeal a judge’s ruling denying it the right to operate a gambling hall in Aquinnah, a lawyer representing the tribe said Sunday.
Tribal council members last week gave the go-ahead to a legal attempt to overturn the ruling by U.S. District Judge F. Dennis Saylor 4th, who rejected the tribe’s bid to convert its unfinished and vacant community center into a class II (electronic bingo) gaming operation, said Scott Crowell, a Sedona, Arizona-based attorney.
Mr. Crowell said the tribe would certainly appeal to the U.S. Court of Appeals for the First Circuit, but might first ask the judge to reconsider the ruling. “We disagree with the decision on several levels,” he said.
Town and homeowners have been battling in court over whether tribe can build a casino at western tip of Island. Mark Lovewell
As it turns out, a gambling facility is not in Martha’s Vineyard’s foreseeable future. A federal judge has rejected legal arguments by the Wampanoag Tribe of Gay Head (Aquinnah) that it has the right to open a class II casino, which features electronic bingo machines, on tribal land at the western tip of the Island. The decision on Nov. 13 by U.S. District Judge F. Dennis Saylor 4th was a sweeping legal victory for the town of Aquinnah, the state and the Aquinnah/Gay Head Community Association, which argued that the tribe must submit to local and state gambling prohibitions.
Tribal leaders said they were considering their options — an appeal is expected — but their legal effort to convert a vacant and unfinished community center to a gambling hall now faces a steeper hill to climb. Only last July, they had expressed hopes of opening the gaming hall by the end of the year.
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
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 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 [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.
Tribal chairman Tobias Vanderhoop did not respond to an email seeking 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.
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 health 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.
A federal judge Friday handed a significant legal victory to the state, the town of Aquinnah and a homeowners group in a decision rejecting assertions by the Wampanoag Tribe of Gay Head (Aquinnah) that it has the right to open a gambling hall at the western tip of the Island. U.S. District Judge F. Dennis Saylor IV, in a 40-page decision, ruled that the tribe’s bid fell short on two legal grounds. First, it had not exercised “sufficient governmental power” over its lands to qualify for gaming rights under the Indian Gaming Rights Act.
In addition, the judge said, the IGRA, passed by Congress in 1988, did not invalidate a 1987 settlement act that gave the tribe about 485 acres of land in Aquinnah but placed it under the jurisdiction of state and local laws, including prohibitions on gambling.
Off-Island members of the Wampanoag tribe boarded a bus at the Vineyard Haven Steamship Authority terminal Sunday for the trip to the general membership meeting. Photo by Nelson Sigelman.
Meeting Sunday just a short distance from their long-unfinished community center building, members of the the Wampanoag tribe of Gay Head (Aquinnah) split evenly and rejected a petition request that the tribe give up its efforts to build a gaming facility on tribal lands in the smallest town on Martha’s Vineyard.
The vote was 110 to 110, with 8 votes disqualified due to “nonconformity,” Tobias Vanderhoop, chairman of the Wampanoag Tribe of Gay Head, said in an email to The Times.
Mr. Vanderhoop said voters were asked to take action on the question, “Do you vote to repeal tribal council enacted resolutions on change of use of the unfinished community center building on tribal lands?”
“According to the tribal constitution, a referendum requires a two-thirds majority to pass,” Mr. Vanderhoop said, “and this initiative did not attain the required number of votes to become binding on the tribe. The will of our citizens, based on the result of today’s vote, is that there will be no change in the present course of the tribe.”
“The referendum did not pass, so we continue to pursue gaming on our tribal lands,” Cheryl Andrews-Maltais, chairman of the Aquinnah Wampanoag Gaming Corporation (AWGC), said in an email to The Times just after 6 pm Sunday.
Beverly Wright, a former five-time chairman of the Wampanoag Tribe from 1991 to 2004, and an opponent of building a gaming facility in town, told The Times following the vote that she was disappointed that the vote failed. “I guess it shows that the tribe is split evenly,” she said. “I’m thankful that the Vineyard population really turned out for us.”
Going forward, Ms. Wright said, it is time for the gaming corporation to be more transparent and inform tribal members of its plans. “It’s been cloak and dagger, we don’t even know who the backers are,” she said. “I certainly was not pleased with the slick and glitzy informational packages sent out to the tribal members.”
Ms. Wright said the packets implied that the tribe’s sovereignty was on the line. “That’s not true,” she said.
The Aquinnah/Gay Head Community Association (AGHCA) has stood with the town and tribal members in opposition to gaming, and is a party to the suit now in federal court that will ultimately decide if the gaming hall will be built.
In an email to The Times, retired lawyer and longtime AGHCA president Larry Hohlt said, “We extend our appreciation to those tribal members who worked so hard to try to curb the tribal leadership’s efforts to establish a casino in Aquinnah. It is difficult to think of many locales less suited, on so many levels, for a casino.”
A petition circulated last month and signed by 73 members of the tribe set the stage for the Sunday general membership vote on whether to proceed with the bingo hall. The petition stated in part, “We the undersigned, being eligible voters, believe that gaming on ancestral lands will dramatically impact our culture, and believe that the social costs will far outweigh the uncertain economic benefits.”
Opponents faced a high bar in the needed two-thirds majority. The tribe’s membership currently stands at 1,289, according to recent court filings. Of those, 315 live on Martha’s Vineyard, while the majority live in high concentrations within Suffolk, Norfolk, Bristol, Plymouth, Barnstable, and Worcester counties.
Backers of the gaming effort mounted a strenuous and professional lobbying effort in the days leading up to the vote. Buses and vans were available Sunday to transport members to the Steamship Authority terminal in Woods Hole.
Good for the tribe and Aquinnah
On Sunday morning, as tourists arrived and departed in the summer heat, tribal members walked from the 11:30 am ferry to a waiting tour bus hired to transport them to the general membership meeting in Aquinnah. The bus with a capacity of 44 passengers departed nearly full.
A man who identified himself by the name Beating Drum, wearing a red baseball cap that said “Native Pride” and a T shirt with the caption “Honoring Mother Earth,” from Bourne, declined to say how he intended to vote. “I will say one thing,” he said; “if it does come about, it will open up a lot of jobs for people, for nontribal members and tribal members.”
Father and son Wes James, 68, and Jared James, 34, traveled from Plymouth for the vote.
The younger Mr. James did not hesitate to state his opinion. “It’s good for the tribe,” he said of the proposed bingo hall, citing the money it would provide for a variety of social programs.
Mr. James did not share the view of Island tribal members that the Island’s smallest town was the wrong location for a gaming facility. The tribe’s land was the right place and the only place, he said.
“Of course Aquinnah is the right place for it; where else do you have it?” he said. “There’s nowhere else out here. People are going to gamble no matter where it is. You can’t stop people from gambling; they’re going to gamble. Just because you put a building up doesn’t mean you’re going to make them do it … They’re going to leave the Island to go somewhere else to gamble if they want, so why not have it here? Bring some money into the tribe.”
Mr. James disputed the notion that changing the community center to a bingo hall would affect the town. He said it is not a casino and will change “nothing.”
Community center languished
The building slated to become a bingo hall was originally intended to be a community center. The 6,500-square-foot building 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.
In the past, tribal leaders said they did not have the funds to complete the building. If the community center is not built, the tribe must repay a $1.2 million federal grant.
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 unfinished community center into a Class 2 gaming facility.
The gaming vote 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.
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 AGHCA.
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.
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.
Awaiting a ruling
The battle now moves back to federal court. On August 12, U.S. District Court Judge F. Dennis Saylor IV held a hearing on cross-motions for summary judgement.
Judge Saylor complimented all parties on their arguments, and said he would come to a decision “as quickly as I can.”
Appearing before Judge Saylor at the Moakley Courthouse, 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.
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 required that the state of Rhode Island enter into “good faith negotiations” on a gaming compact with the Narragansett Indian Tribe.
The Wampanoag 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 Congress’s passage of the Indian Gaming Regulatory Act “implied repeal” of any special restrictions on gaming in the special act.
Aquinnah town counsel Ronald Rappaport argued it would be nonsensical for Congress to supersede a law it passed only a year earlier. Mr. Rappaport also said the town prohibits gaming on the land in question.
In his written arguments, Mr. Rappaport included as a fact that before Congress passed the federal act, the chairman of the Wampanoag Tribal Corporation at the time, who was Gladys Widdiss, testified at a Senate hearing that “We recognize and accept that no gaming on our lands is now or will in the future be possible.”
Assistant Attorney General Juliana Rice noted the tribe’s agreement with the town stems from a 1974 lawsuit the tribe brought against the town. Ms. Rice said the omnibus Indian gaming law “did nothing to disturb” the agreement that gives the state jurisdiction over the land that was granted to the tribe in the settlement.
Mr. Crowell said the state “refuses” to negotiate a gaming compact in good faith with the Aquinnah Wampanoags, and said Massachusetts has “turned its back on the very opportunity to have a voice” in its gaming plans.
On July 28, Judge Saylor enjoined the tribe from any further construction on the facility.
Tobias Vanderhoop, the chairman of the Wampanoag Tribe of Gay Head, told the News Service the tribe could seek to expand beyond an electronic bingo hall, depending how the current project proceeds.
“This is a temporary project,” Mr. Vanderhoop told the State House News Service, following the hearing.
Earlier decisions have not favored the tribe. 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.
Pot of gold
The Wampanoag Tribe of Gay Head (Aquinnah) said it expects to reap almost $400,000 per month — $4.5 million in the first year of operation — from its planned gaming hall, money that is sorely needed to fund a variety of tribal programs, according to court documents.
Tribal Chairman Tobias Vanderhoop said the tribe “currently has no economic base of its own” and is “almost entirely dependent on federal funds to support all governmental operations.”
In a meeting last month called to discuss opposition to the gaming hall, members of the Wampanoag tribe, including two former chairmen of the tribe, Beverly Wright and Donald Widdiss, Aquinnah selectman and tribal member Julianne Vanderhoop, and Kristina Hook, a former member of the tribal council, decried the lack of any information or openness within the tribe about its business plan.
Speakers said that an Aquinnah-based bingo parlor would be an economic and cultural folly.
In previous comments, Clyde W. Barrow, a director of the Center for Public Policy Analysis at the University of Massachusetts at Dartmouth and a national expert on gaming, said the location makes it unlikely that a casino in Aquinnah would be very successful, were it even able to overcome significant legal hurdles.
Mr. Barrow, director of the Northeastern Gaming Research Project, which studies casino gaming in the Northeast, said, “People who are already there and already traveling in that direction might choose to spend some time at the facility, but my perception is that people don’t go to Martha’s Vineyard to gamble.”