The Wampanoag tribe of Gay Head (Aquinnah), fresh on the heels of a tribal council vote to complete its long-unfinished community center for its original intended purpose — a community center and not an electronic gaming hall — took the first legal step to appeal a judge’s decision barring it from gaming in Aquinnah.
On Monday, Feb. 1, tribe lawyer Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, based in Sedona, Ariz., filed a three-page notice of appeal in U.S. District Court for the First Circuit, a procedural step as it seeks to overturn a ruling by U.S. District Court Judge F. Dennis Saylor IV that the tribe cannot turn the building into a gambling facility. The next legal venue is the U.S. Court of Appeals for the First Circuit and a detailed brief outlining the tribe’s legal arguments.
Asked how the decision of the tribal council to move forward with completion of the community center dovetails with the appeal, Mr. Crowell said he has no reason to believe the tribe’s position has changed. “The appeal is about the tribe’s right to game on its Indian lands, and not about completion of the community center,” he said in an email to The Times. “The decision to complete the community center for nongaming purposes is not relevant to the appeal.”
Even as the legal battle continues, the tribe has taken steps to meet a deadline to complete the building or repay federal grants totaling $1.1 million. On Jan. 24, the tribal council voted 9-2 to finish off the the 6,500-square-foot building that sits just off the entrance road to the tribal lands.
The Wampanoag Tribe of Gay Head (Aquinnah) is the recipient of two Indian Community Development Block Grants (ICDBG), one for $500,000 and one for $600,000 to construct a multipurpose community center on tribal land, according to Housing and Urban Development (HUD) spokesman Rhonda Siciliano.
“The $500,000 ICDBG is fully expended, and there is a balance of approximately $30,000 in the $600,000 ICDBG, and those funds are on a hold and not available for expenditure at present,” Ms. Siciliano said.
Under normal circumstances, funds are available for eight years. “Tribes normally expend all funds well within the eight-year appropriation time frame; however, this is obviously not the case with the Wampanoag Tribe,” Ms. Siciliano said.
According to HUD, the tribe has expended over 99 percent of the funds but did not complete the project, and has been granted “a final extension” until Sept. 1, 2016, to complete the project.
In the summer of 2004, two teams of Air Force reservists traveled from their home base, Tinker Air Force Base in Oklahoma City, Okla., to Aquinnah to begin erecting the steel frame for a new community center building for the Wampanoag Tribe of Gay Head.
They were followed by members of the 908th civil engineering squadron, part of the Air Lift Wing based in Maxwell Air Force Base in Montgomery, Ala. In all, over six weeks, three squadrons of approximately 20 reservists in civil engineering groups worked on the project as part of the Air Reserve Command Innovative Readiness Training (IRT) program. The tribe was obligated to complete the remaining 20 percent of the project.
Twelve years later, the 6,200-square-foot structure that was to include a gymnasium, kitchen facilities, and meeting space may finally be completed.
In a statement emailed to The Times Tuesday, Wampanoag chairman Tobias Vanderhoop explained the tribe’s position.
“Since late 2015, the tribe has been faced with a series of decision points about the way to move forward in the best interest of our citizens. In light of the ruling by Judge Saylor, the prospect of completing the community center has been the main subject of many discussions within the tribal administration and in the tribal council chamber. In consultation with our federal partners at the US. Department of Housing and Urban Development, the tribe has been granted additional time to complete the community center project, the deadline for which is September 2016. Our team is currently completing a plan that will define the requirements necessary to finalize the project. It is clear that completing the community center is in the best interest of our people.”
In the dark
Despite the intimacy of the Island’s smallest town in winter, and the significance of the tribal council vote, more than a week and a half later, town leaders said they have not received any communication from Chairman Vanderhoop that the tribe will complete the community center.
Aquinnah town administrator Adam Wilson said he has not heard anything from Mr. Vanderhoop, either in the form of an email, phone call, or a visit. Mr. Wilson said the community center is still subject to town building regulations. Mr. Wilson said he would have expected to hear from the tribe, but acknowledging the local quirks, he said sometimes news travels a more informal route.
Aquinnah selectman Julianne Vanderhoop, who is also a tribal member and a foe of the tribe’s effort to build a gaming facility on tribal lands, said she was happy to hear that the building would be used for its original purpose, but she has heard nothing from the tribe about its plans.
“It’s been unfortunate, the relationship between this tribal administration and the town,” she said.
Ms. Vanderhoop lay the blame at the feet of Tobias Vanderhoop, who she said has shown little respect for the three-member board of selectmen, on which two tribal members, Ms. Vanderhoop and Spencer Booker, serve, and the board’s opposition to gaming. The board is a party to the federal lawsuit.
Judge Saylor’s 40-page decision, issued Nov. 13, was a sweeping victory for the town of Aquinnah, the Aquinnah/Gay Head Community Association, and the Commonwealth of Massachusetts. Judge Saylor said the Indian Gaming Regulatory Act (IGRA), signed in 1988, does not trump the Settlement Act, 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, and it has formed the bedrock of the longstanding legal relationship between the tribe and the rest of the Martha’s Vineyard community.
Following a detailed analysis of the issues in the case, Judge Saylor said, “In summary, the tribe has not met its burden of demonstrating that it exercises sufficient ‘governmental power’ over the settlement lands, and therefore IGRA does not apply. Furthermore, and in any event, it is clear that IGRA did not repeal by implication the Massachusetts Settlement Act.”
In making his decision, Judge Saylor said, “Whether an Indian tribe should be permitted to operate a casino on Martha’s Vineyard is a matter of considerable public interest, and the question touches upon a variety of complex and significant policy issues.”
by Nelson Sigelman