The Wampanoag Tribe of Gay Head (Aquinnah) is rejecting a federal judge’s decision to keep the tribe from intervening in a lawsuit brought by a prospective casino developer.
“We are understandably disappointed with the decision,” Cheryl Andrews-Maltais, chairwoman of the Aquinnah tribal council, said in an email to the Times on Friday. She said the tribe is considering its legal options.
On Thursday, U.S. District Judge Nathan Gorton ruled that neither the Aquinnah nor the Mashpee Wampanoag Tribe could intervene in the lawsuit brought by KG Urban Enterprises, a developer that wants to build a New Bedford waterfront casino. KG Urban opposes a provision of the state Expanded Gaming Act that gave federally recognized tribes exclusive rights to a Southeastern Massachusetts casino.
The Massachusetts law recognized that the Indian Gaming Regulatory Act of 1988 gives tribes the right to provide gambling on reservations equivalent to what’s allowed under state law.
Gorton ruled that in the case of the Aquinnah tribe, its rights could be protected by the state’s defense of the lawsuit.
But the state and the Aquinnah tribe are at odds. The state asserts that the Aquinnah waived their rights in a 1987 land settlement. Tribe leaders reject that claim and had hoped that by intervening in the KG Urban suit that question would be resolved legally.
“The Aquinnah Tribe currently has land that qualifies under IGRA, and under First Circuit’s decision that land justifies the state’s special treatment of Indian tribes,” Andrews-Maltais wrote. “We disagree that the state, which refuses to accept our tribe’s legal right under IGRA to offer gaming on our existing trust land, can adequately represent our interest in this matter.”
Gorton wrote in his decision that the tribe may be allowed to assert its position in an amicus brief, but added that bringing in the dispute between the state and the tribe over the settlement act “would involve evidence and legal argument wholly unrelated to the constitutionality of the Gaming Act.”
The Aquinnah tribe has said if the state refuses to negotiate a compact, it will put a casino in its community building on the island.
Any attempt to do that is likely to prompt legal action by the town of Aquinnah and the Aquinnah Gay Head Community Association, which both tried to intervene in the KG Urban lawsuit to protect their rights if the Aquinnah tribe were successful.
Meanwhile, on Friday, the Massachusetts Gaming Commission took a major step toward accepting bids for a commercial casino in Southeastern Massachusetts. The commission posted the request for applications on its website. Developers interested in the region’s license will have to pay a $400,000 nonrefundable fee and agree to criminal and financial background checks.
Applications are due by Sept. 30.
The Mashpee Wampanoag are proposing a $500 million casino in Taunton. The tribe is continuing with its application to have 151 acres in the city taken into trust by the federal Bureau of Indian Affairs and hopes to have that process completed before the commission issues a commercial license in the region.
by George Brennan