A federal appeals court has overturned a lower court ruling that prevented the Aquinnah Wampanoag Tribe from building a small bingo parlor on Martha’s Vineyard in Massachusetts.
The 1,200-member tribe has long sought the ability to transform an unfinished community center into a small casino with 300 slots and some table games, but was prevented from doing so because when it acquired 500 acres in the 1980s in a land deal it signed an agreement promising to obey local land use laws and not to build a casino. The tribe has argued that when the Indian Gaming Regulatory Act (IGRA) was passed in 1988 that it superseded that agreement.
Where the appeals court overturned the lower court was in that Judge Dennis Saylor’s 2015 judgment that the tribe didn’t exercise enough governmental powers to be considered a sovereign tribal nation. He ordered the tribe not to open a casino without the prior approval of the state and the town.
The three-judge panel of the 1st U.S. Circuit Court of Appeal rejected that reasoning, noting that the tribe has created a housing program that built 30 residences, that it operates a health clinic and administers social services and education programs. It also employs two rangers and a part-time judge.
Writing for the majority Judge Juan Torruella declared, “The Tribe: has established a housing program that receives HUD assistance, and has built approximately 30 units of housing under that program; has entered into an intergovernmental agreement with the EPA; operates a health care clinic with the aid of the Indian Health Service; administers a program for education with scholarships financed with Bureau of Indian Affairs funding; administers social services with a human services director responsible for child welfare work; administers conservation policy … and administers a public safety program.”
He added, “The district court reasoned that IGRA did not apply, because the Tribe had failed to exercise sufficient governmental power; and that even if the Tribe had exercised sufficient governmental power, the tribal land in trust agreement … which provides that the Settlement Lands are subject to state laws and regulations (including gaming laws and regulations), governed. . . Because we find that the Tribe has exercised more than sufficient governmental power to satisfy the requirements of IGRA, and the Federal Act has been impliedly repealed by IGRA in relevant part, we reverse.”
The casino is controversial, even among tribal members. Most of the members who live on the island oppose the casino, while the members who live on the mainland support it.
The tribe estimates it could generate $4.5 million a year with the casino and employ 100 tribal members.
The town of Aquinnah, which challenged the tribe in court, is considering whether to appeal, as is State Attorney General Maura Healey.
Tribal Chairman Cheryl Andrews-Maltais urged the state of Massachusetts and the town to drop their lawsuits. “As we have always asserted, the Aquinnah Wampanoag has every right to conduct gaming on our tribal lands just as any other tribe in the country,” she said. “This decision affirms our sovereign rights and jurisdiction over the land that has always been ours and solidifies our place in the gaming market.”
The state government negotiated a tribal state gaming compact with the other federally-recognized tribe in Massachusetts, the Mashpee Wampanoag, which was able to put land into trust last year and began work on the $1 billion First Light Resort & Casino in Taunton. However, a federal court a year ago ruled that the Bureau of Indian erred when it put the land into trust. The tribe is considering an appeal.
