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.”
by Nelson Sigelman