Boxed out politically at every turn by the Mashpee Wampanoag Tribe and Gov. Deval Patrick, the Wampanoag Tribe of Gay Head (Aquinnah) has gone to federal court in an effort to clear the path to a long-sought casino development.
In doing so, the tribe has moved to neuter the Settlement Act that led to federal recognition and appears to have hobbled the tribe in its casino negotiations with the state. Governor Patrick has taken the position that the Gay Head tribe waived it rights to a casino when it signed the act in 1983.
The Gay Head tribe has asked the court for permission to intervene as a defendant in a suit brought by KG Urban, a private casino developer that would build a casino in New Bedford. The developer 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.
On September 7, attorneys for the Gay Head tribe moved to intervene in the lawsuit KG Urban filed last November in U.S. District Court. 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.
In February, U.S. District Judge Nathaniel Gorton upheld the state casino law. KG Urban appealed, and the case is now back before Judge Gorton.
At a status conference Monday, Judge Gorton gave both parties until September 19 to file a response to the tribe’s motion to intervene.
On the face of it, KG Urban has asked the court to toss out the advantage the law gave the Mashpees. The Mashpee tribe has plans to construct a $500 million resort casino in the Liberty and Union Industrial Park, at the intersection of Routes 24 and 140 in Taunton.
The Gay Head Wampanoags are represented by Scott D. Crowell, a Seattle-based lawyer and Indian advocate, and lawyers from the firm of Steptoe and Johnson, based in Washington, D.C.
The lawyers said that the Aquinnah tribe has moved to intervene to protect its ability to negotiate a Class III gaming license, which allows for a full-blown casino. And, they argue, the tribe cannot rely on KG Urban or the Commonwealth to protects its interests.
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).
The legal filings draw a distinction between the Mashpee tribe, which has no land held in trust for it, and their Gay Head cousins who hold land in Aquinnah and have proposed to turn an unused government-built community center into a boutique casino. The Mashpees are working with the Patrick administration to push the BIA to act speedily and take the mainland site into trust for the tribe.
“Denial of Aquinnah’s motion, however, will result in immense prejudice to the tribe, because Aquinnah is uniquely situated to demonstrate its eligibility to game on its existing trust lands,” the lawyers argued.
Tribe lawyers have 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.
Aquinnah selectmen and the members of the Aquinnah/Gay Head Community Association (AGHCA) are evaluating the tribe’s arguments carefully.
AGHCA president Larry Hohlt, in comments at a public meetings held in both July and August, said the group would not hesitate to intervene in any litigation that could potentially materially adversely affect the interpretation or implementation of the 1983 Settlement Act or the subsequent enabling Federal and Commonwealth Acts.
The AGHCA has gone to court to defend the settlement agreement in the past.
The 1983 settlement agreement that led to federal recognition of the 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.
In the winter of 2001, the Wampanoag tribe erected a small shed on the Cook property without a town building permit. The resulting legal battle reached the state Supreme Judicial Court.
In December 2004, the state’s highest court ruled that the tribe, then the only federally recognized tribe in Massachusetts, was not immune from zoning enforcement under its claim of sovereign immunity.
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.
The Aquinnah tribe struck out in its efforts to convince the voters in Freetown and Lakeville to support a $167 million casino resort on 500 acres straddling the two communities along Route 140.
At a general membership meeting of the Aquinnah tribe on May 6, a fraction of the membership voted to use their long unfinished community center for Class II gaming.
Class II gaming encompasses high stakes bingo, poker, pull-tab cards and associated electronic games that do not require coin slots. Unlike class III 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.
Kevin Dwyer, a principal in KMD Consulting services of California, the tribe’s current casino backers, said the community center could accommodate more than 500 coinless slot machines, with buses arriving every 45 minutes.
Tribe chairman Cheryl Andrews Maltais responded late Wednesday to an email from The Times seeking comment on the lawsuit, the current status of the boutique casino plans and KMD Consulting.
“The tribe has chosen to intervene in the KG Urban law suit because we need to protect our rights ourselves, since no other party to the suit can or will protect our rights or interests,” Ms. Maltais said in an email
“The Appellate Court essentially invited us into the argument by way of the footnote that the IGRA only applies to “Indian Lands” and that we, the Wampanoag Tribe of Gay Head (Aquinnah), are the only federally recognized tribe with Indian lands currently held in trust.”
She said it is the Gay Head and Mashpee tribes’ best interests to see that the provisions of the expanded gaming law is upheld. Asked who was funding the legal effort, Ms. Maltais said, “No one is funding our legal efforts.
“As previously stated, our legal team is comprised of a ‘dream team’ of first rate lawyers who have decades of specialized expertise in Indian Law and Indian Gaming Law. We have been so blessed by the fact that they, the Crowell Law Office-Tribal Advocacy Group, and Steptoe and Johnson, are providing us with pro-bono and other special billing considerations, because they want to help us. They have watched the unjust way of how we have been treated and marginalized and are assisting us, because they want us to be able to have our rights upheld, so we too can provide economic self-sufficiency for our people, as all other tribes are afforded.”
Ms. Maltais said the tribe is pursing its casino effort and there has been no change in the relationship with KMD.
Aquinnah selectmen have said they would oppose any effort to develop a casino in the Island’s smallest town. Town counsel Ron 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