Editor’s Note: The following is the text of an opinion written by the Aquinnah town counsel for the Aquinnah selectmen.
By RONALD H. RAPPAPORT

You have requested that I provide the Aquinnah board of selectmen with an opinion as to whether the Wampanoag Tribal Council of Gay Head, Inc. (Aquinnah) can operate a gaming casino in Aquinnah. The simple answer to the question is no.

I previously did extensive research in connection with a lawsuit filed by the building inspector against the Wampanoag Aquinnah Shellfish Hatchery Corporation and the tribe arising from the tribe’s construction of a shed on the Cook Lands without town permits, which concluded with a decision from the Supreme Judicial Court holding that the tribe must comply with town zoning as it existed in 1983. I have drawn on our extensive research in that case for most of this opinion.

In 1974, the tribe, which was not then recognized by the Secretary of Interior as a Native American Tribe, but which was incorporated under Massachusetts law, commenced litigation against the town — then known as Gay Head — claiming that certain transfers of public land in the town violated the Indian Non-Intercourse Act.

In 1983 the tribe and the town settled the tribal lands litigation. As part of the settlement, they entered into an agreement. The settlement agreement incorporated by reference an attached land use plan.

The settlement agreement includes the following provisions:

The [tribe] shall hold the settlement lands, and any other land it may acquire, in the same manner and subject to the same laws as any other Massachusetts corporation, except to the extent specifically modified by this agreement and the accompanied proposed legislation. Under no circumstances, including any future recognition of the existence of an Indian tribe in the town of Gay Head, shall the civil or criminal jurisdiction of the Commonwealth of Massachusetts, or any of its political subdivisions, over the settlement lands, or any land owned by the [tribe] in the town of Gay Head or the Commonwealth of Massachusetts, be impaired or otherwise altered, except to the extent modified in this agreement and in the accompanying proposed legislation.

The settlement lands shall comprise the following: The Common Lands [which include the Cranberry Lands, the face of the Cliffs, and the Herring Creek]; [t]he three parcels of the former Strock Estate; and the Menemsha Neck Lands.

The settlement land shall be subject to an express federal statutory restriction against alienation. This statutory provision against alienation shall state explicitly that no Indian tribe or band shall ever exercise sovereign jurisdiction as an Indian tribe other than to the extent agreed herein, over all or any part of the settlement lands, or over any other land that may now or in the future be owned by or held in trust for, any Indian entity . . .

The settlement lands will be subject to the land use plan attached hereto and made a part hereof.

The land use plan describes that various uses of the settlement lands are subject to the zoning regulations in effect in 1983. The town’s zoning bylaw, as of that date, does not allow a casino, gambling facility or other gaming activities as permissible uses.

The Massachusetts legislature subsequently enacted legislation implementing the terms of the settlement agreement and the accompanying land use plan. Section five of the state act provides:

Except as provided in this act, all laws, statutes and bylaws of the commonwealth, the town of Gay Head, and any other properly constituted legal body, shall apply to all settlement lands and any other lands owned now or at any time in the future by the tribal council or any successor organization.

During the course of the tribal lands litigation, the tribe petitioned for federal recognition of its existence as a Native American tribe. After the Secretary of the Interior responded favorably to the petition on Feb. 10, 1987, a final determination of federal acknowledgment was noted in the Federal Register.

As the final step in effectuating the settlement, Congress enacted the Massachusetts Settlement Act on August 18, 1987. While the federal act noted that the tribe would enjoy a government-to-government relationship with the United States, it made the tribe subject to the laws identified and incorporated in the settlement agreement (and the accompanying land use plan). The Federal Act includes the following provisions:

Any lands acquired pursuant to this section, and any other lands which are hereafter held in trust for the [tribe] . . . shall be subject to this act, the settlement agreement and other applicable laws.

[The tribe] shall not exercise any jurisdiction over any part of the settlement lands in contravention of this act, the civil regulatory and criminal laws of the commonwealth of Massachusetts, the town of Gay Head, Massachusetts, and applicable federal laws.

. . . the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts and the town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).

In 1992, pursuant to the settlement agreement, the town conveyed by deed certain town lands, identified as the settlement lands, to the United States of America, to be held in trust for the tribe. Pursuant to the deed’s terms, the settlement lands were specifically made subject to: the federal act; the state act; and the settlement agreement, including the accompanying land use plan.

In or about 1999, the Wampanoag Aquinnah Shellfish Hatchery Corporation erected a shed on the Cook Lands (one of the settlement lands) without obtaining a building permit from the town. The building inspector filed an enforcement action in Dukes Superior Court, and a judge ruled that sovereign immunity barred zoning enforcement. On appeal, the SJC reversed.

A central issue in the litigation was whether the tribe had waived its sovereign immunity, making it subject to the zoning bylaws and other laws and ordinances of the town and the commonwealth. The SJC specifically ruled as follows:

“Here, the facts clearly establish a waiver of sovereign immunity stated, in no uncertain terms, in a duly executed agreement and the facts show that the tribe bargained for and knowingly agreed to that waiver.

“More specifically, the tribe expressly memorialized a waiver of its sovereign immunity, with respect to municipal zoning and enforcement, by agreeing in paragraph three the settlement agreement to hold its land, including the Cook Lands, ‘in the same manner and subject to the same laws, as any other Massachusetts corporation.’ ”

In or about 1988, Congress enacted the Indian Gaming Regulatory Act (IGRA). In 1997, counsel for the tribe requested an opinion from the Office of the Secretary of the United States Department of the Interior as to whether the IGRA superseded the terms of the settlement agreement. The Assistant Secretary for Indian Affairs issued a five-page opinion, in which the department concluded that the IGRA did not supersede the settlement agreement, or the implementing state and federal acts, and that the tribe could not conduct gaming in Aquinnah. The gravamen of the opinion is that the tribe enjoys the ability, under the IGRA, to seek gaming operations elsewhere in the commonwealth, but not in Aquinnah (then Gay Head). The letter expressly states:

“For instance . . . relating to the application of state and local civil and criminal laws, including laws and regulations governing bingo and other games of chance, and limiting tribal jurisdiction over settlement lands, only apply to lands within the town of Gay Head, Massachusetts.”

“These provisions do not grant exclusive jurisdiction to the Commonwealth of Massachusetts or divest the tribe of concurrent jurisdiction over tribal lands located outside of the town of Gay Head.”

While I express no opinion as to whether the settlement agreement and the implementing state and federal acts would preclude the tribe from conducting gaming activities elsewhere in the commonwealth, it is clear that the tribe has no right to seek any gaming rights under the IGRA in Aquinnah.

Recently, the Massachusetts legislature enacted An Act Establishing Expanded Gaming in the Commonwealth. Based on my review, there is nothing in the state gaming act which purports to abrogate, supersede or override any of the provisions of the settlement agreement or the state and federal enabling acts. Stated simply, the state gaming act does not allow the tribe to undertake gaming in Aquinnah.

For all the reasons set forth above, the tribe has no authority to conduct gaming activities in Aquinnah.