With the recent ruling by the U.S. Supreme Court that refused to hear an appeal to its right to build a Class II casino on Martha’s Vineyard in its pocket, the Wampanoag Tribe of Gay Head (Aquinnah) has surprised some by announcing that it won’t actually put that casino in a community center on its reservation that it had long said would be the location.
In making that announcement, Tribal Chairman Cheryl Andrews-Maltais did not say what other location on tribal land they would use. She told the Vineyard Gazette, “We’re determined, slow and steady, but we will finish the race,” Andrews-Maltais told the paper. She added, “We are not going to build a monstrosity.”
The chairman reconfirmed the tribe’s interest in putting its casino on the mainland. “That had always been our long-term goal.” She added that now that the tribe has won its suit that financial backers have come forward.
Two weeks ago, the Supreme Court ruling cleared away all impediments to the tribe, confirming that it had a right to do gaming on its reservation, despite signing an agreement in 1987—the Massachusetts Settlement Act—promising not to do so.
The high court’s decision to deny the plaintiff’s writ of certiorari leaves standing the federal appeals court’s ruling that the 1988 Indian Gaming Regulatory Act, which came a year later, superseded that act’s restrictions on gaming. Under IGRA Class II gaming cannot be regulated by the state. However, the ruling does not address whether the tribe could offer Class III gaming, i.e. Las Vegas style gaming. Since it is a federally-recognized tribe it is likely to try to claim that right.
Opponents of the casino recognized the new reality. Ron Rappaport, the attorney for the town of Aquinnah, one of the plaintiffs in the lawsuit that tried to stop the casino, commented: “They won the lawsuit on the right to game and congratulations to them and we’ll move on to the next phase.”
At the public meeting following the decision, the three-member town board of selectmen, after meeting with Rappaport announced that it will drop further litigation to try to tie up the casino. The board chairman, Jim Newman, added, “The ball stops at the Supreme Court.” The attorney issued this statement: “We want to congratulate the tribe. They won the lawsuit on the right to game>’
Rappaport added that the board had asked him to open a dialogue with the tribe. “The selectmen have authorized me to do that. Then I will report back to the selectmen and we’ll take it from there. We’re hoping that the discussions will find common ground. We’re not looking at lawsuits right now.”
Andrews-Maltais indicated a willingness to work with the town. “Now that this issue is finally resolved, we’d like to put the legal battles behind us, and focus on working with the town and Commonwealth; to weigh our options and determine the best pathway forward for us to provide the necessary services of health care, elders’ and children’s services, education, housing, and employment opportunities for all of our tribal members,” she said in a statement.
The Bay State government has so far declined to give up—or to open talks with the tribe for a tribal state gaming compact—something it would need for a Class III casino. The other plaintiff, the community group AGHCA has said it will continue to oppose the casino at Aquinnah.
The tribe would prefer a casino on the mainland to one on its reservation on the island, which is at the western end, and accessed from a winding, two lane country road. If that’s the only option, the tribe has shown it will take it—but it would prefer another option.
The tribe tried in the 1990s to negotiate with Governor William Weld to build a casino in New Bedford. But those plans later collapsed.
In the opinion of Clyde Barrow of the University of Texas, who has been an expert in New England gaming for many years, it might require amending the 2011 gaming expansion law to give the Wampanoag tribe a place at the table. And in the current state of Bay State politics, lawmakers are loath to revisit that issue.
Barrow told the Boston Globe: “If they were to go down that road, it’s another decade away, in my view. It’s way down the road, and a lot of politics.” But without that, the tribe will be forced to market a casino that is on a remote corner of an island that is mainly a summer getaway for the rich and famous.
Such a casino will also be competing with the three big casinos authorized by the 2011 act, including the Wynn Boston Harbor and the MGM Springfield. On the positive side, the Indian casino won’t be required to pay a state tax, making it more competitive by being able to pay a higher percentage in winnings.
