Wampanoag community center

Last May, the Gay Head Wampanoag tribe voted to turn its unused community center into a boutique casino.

In a ruling dated June 6 and made public Thursday, U.S. District Court Judge Nathaniel Gorton denied a request by the Wampanoag Tribe of Gay Head (Aquinnah) to intervene as a defendant in a suit brought by KG Urban, a private casino developer that would build a casino in New Bedford.

Judge Gorton denied a similar request by the Mashpee Wampanoag Tribe.

He denied “as moot” conditional motions to intervene that the town of Aquinnah and the Aquinnah/Gay Head Community Association Inc. filed to join the legal fray.

In February 2012, KG Urban sued the state over legislative language that allowed the Mashpee tribe to put a lock on the one commercial casino license designated for Southeastern Massachusetts.

KG Urban said language in the state casino law that blocked some casino developers in favor of federally recognized tribes was race-based and violates the equal protection clause of the U.S. Constitution.

On September 7, 2012, attorneys for the Gay Head tribe asked the court for permission to intervene as a defendant in the lawsuit KG Urban filed in U.S. District Court. The tribe’s legal arguments rested, in part, on the argument that the federal Indian Gaming Regulatory Act (IGRA), passed in 1988, nullified the settlement act that led to federal recognition for the Gay Headers and appears to have hobbled the tribe in its casino negotiations with the state.

The Aquinnah tribe said it moved to intervene to protect its ability to negotiate a Class III gaming license, which allows for a full-blown casino. And, they argued, the tribe cannot rely on KG Urban or the Commonwealth to protects its interests.

In his decision, Judge Gorton said that to date, the Aquinnah tribe had not entered into a gaming compact with the state, and its interest was too remote to justify intervention.

Judge Gorton said that even if KG Urban is successful in its suit, the rights of the Aquinnah, if any, will not be affected,” and that the Commonwealth was obligated to represent those rights under the gaming statute.

He added that any interest the Aquinnah tribe has in the outcome of the litigation is unclear, because it depends upon several unresolved legal questions.

“Most notably, the Aquinnah cannot benefit from [provisions of the state Gaming Act] unless it did not waive its rights to conduct gaming on Aquinnah lands as a condition of the 1985 settlement agreement, entered into with the conditional intervenors and the Commonwealth. That matter is currently the subject of a dispute among those parties.”

The 1983 settlement agreement that led to federal recognition of the Martha’s Vineyard Wampanoags was signed by the tribe, the Gay Head Taxpayers Association (since renamed the Aquinnah/Gay Head Community Association Inc.), the town, and the state. It specifically provides that the settlement lands shall be subject to all federal, state, and local laws, including town zoning laws, state and federal conservation laws, and the regulations of the Martha’s Vineyard Commission.

Town counsel Ron Rappaport said he was pleased with the judge’s decision, because it means the town does not have to spend on legal fees to defend its position.

Legal thicket

The legal sparring takes place against the background provisions of the federal Indian Gaming Regulatory Act (IGRA), passed in 1988, which requires states that allow gambling to negotiate gaming agreements with federally recognized tribes. The law gives broad rights to those tribes to construct gambling facilities on lands held “in trust” for those tribes by the federal Bureau of Indian Affairs (BIA).

Tribe lawyers had argued that the terms of the Indian Regulatory Gaming Act supersede the 1983 Settlement Act. To the extent that the KG Urban lawsuit would affect the rights of federally recognized tribes to run gaming operations in Massachusetts, the tribe should be allowed to intervene, the lawyers argued.

Further complicating the casino landscape is a recent Supreme Court ruling that the U.S. Secretary of the Interior does not have the authority to take land into trust for recognized tribes that received federal recognition after the 1934 Indian Reorganization Act. The Mashpee Wampanoags received federal recognition in 2007. The Aquinnah Wampanoags gained recognition in 1987, prior to passage of the Indian Gaming Regulatory Act, which set up a regulatory structure for Indian gaming.

September deadline

The November 2011 gaming law explicitly allowed for up to three full casino licenses in Massachusetts, one for each of three regions. It set aside the southeast for an American Indian tribe license, if the tribe can negotiate a compact with Gov. Deval Patrick by July 31.

The Mashpee tribe and the governor signed a deal, and it was approved by the state legislature, but then the federal Department of the Interior rejected the agreement.

The law allows the commission to seek commercial bids for the southeast region if the commission “determines” the federal government will not agree to take land into trust, a necessary step for the establishment of a tribe-run casino.

In June, the gaming commission made the controversial decision to open the third gaming region, created by the 2011 expanded gaming law, to commercial bidders, soliciting project proposals to compete in a region that had previously been reserved for a tribal casino.

Though commissioners said they would continue to monitor the Mashpee Wampanoag’s casino bid and reserve their right to award the license to the tribe, there was a growing concern that the process could take years or fail, leaving an entire region without the economic development opportunities envisioned by the legalization of casinos.

KG managing director Andrew Stern testified to lawmakers this month at a hearing on the Patrick administration revenue sharing compact with the Mashpee tribe that his company had already spent $7 million on its potential project to transform a polluted former power plant along the New Bedford waterfront into a casino.

“All we’ve ever asked for is a level playing field,” Mr. Stern said.

It remains unclear how fierce the private competition in Region C will be for one of the state’s three casino licenses, with much of the focus until now on the Mashpee tribe and their hopes to build a resort casino in Taunton, according to the State House News Service.

The Gaming Commission has given potential commercial casino developers in the southeastern region until the end of September.

Aquinnah selectmen have said they would oppose any effort to develop a casino in the Island’s smallest town. Town counsel Rappaport has said the Wampanoag Tribal Council of Gay Head Inc. cannot legally operate a gaming casino in Aquinnah, based on the terms of the Settlement Act.

by Nelson Sigelman