The Wampanoag Tribe of Gay Head (Aquinnah) plans to appeal a federal judge’s ruling that said it doesn’t have the right to open a casino in an uncompleted community center on Martha’s Vineyard because it signed an agreement in the 1980s promising to abide by state and local land use rules.
The tribal council voted to seek to overturn U.S. District Judge F. Dennis Saylor IV’s ruling. Tribal attorney Scott Crowell declared that the ruling was in “clear error.” He said the tribe might seek a rehearing from the same judge before going to the U.S. Court of Appeals for the First Circuit. “We disagree with the decision on several levels.”
He told the Martha’s Vineyard Times, “There are development in other jurisdictions that we want to bring to his attention, but the tribal council has authorized an appeal with the First Circuit.” Crowell said an action the Department of the Interior took about two tribes in Texas will be cited, although he didn’t specify what actions those were.
Saylor’s November 13 ruling, which took up 40 pages, said that the tribe did not demonstrate that it exerted enough “governmental power” over its lands to quality for Class II gaming under federal law. The tribe, for example, does not provide its own police, fire or emergency services, he said.
This caused Crowell to comment to the Vineyard Gazette, “the irony is not lost on us that he has ruled that the tribe’s programs are not sufficiently funded to exercise governmental power, yet he’s depriving the tribe of the means that hundreds of tribes around the country use.”
Saylor also ruled that the Indian Gaming Regulatory Act (IGRA) did not trump the Massachusetts Settlement Act passed by Congress in 1987 and signed by the tribe in exchange for the settlement of 485 acres in the town of Aquinnah.
He wrote that the tribe “cannot build a gaming facility on the settlement lands without complying with the laws and regulations of the commonwealth and the town.”
It was the state of Massachusetts, the town of Aquinnah and the Aquinnah/Gay Head Community Association which brought the suit. Aquinnah town counsel Ronald H. Rappaport hailed the decision: “The judge explicitly held that there is no right to game on any settlement lands, and the only settlement lands the tribe has are in Aquinnah. What this decision means is no gaming in Aquinnah. This is a great result for the town and for the Island.”
The tribe had hoped to use the revenues raised from the small casino to help promote economic development and fund programs.
The issue of the casino has been very divisive to the tribe, with the larger segment of off island members supporting it while the members who live on the island generally oppose it.
As Juli Vanderhoop, a member of the tribe but also an Aquinnah selectman told the Vineyard Gazette after the judge’s decision: “I have heard a lot of great response from people around the community, and then the tribal community as well A lot of relief. I think that some of the people really thought that this was the key to our economic success. But I think that we are no worse off than we were going in. I don’t think that there were hard feelings.”
Although the issue divided the tribe, the town itself was nearly united behind stopping the casino, according to Selectman Jim Newman. He told the Gazette: “This was a big issue, but it was not a divisive issue in terms of the town of Aquinnah. All the residents were behind it. So that makes it even better.”
In 1983 the tribe, the state of Massachusetts, the town of Gay Head and the taxpayer group that taxpayer group that eventually became the community association signed the land claims agreement. The legislature ratified it two years later and in 1987 Congress did also. The congressional language specifically included the phrase “the conduct of bingo or any other game of chance,” to define what the local government and state could regulate on tribal land.
The tribe never disputed that it signed the agreement, but argued that IGRA, passed two years later, superseded it. The National Indian Gaming Commission supported the tribe’s ability to open a casino.
Saylor, however, reasoned that IGRA and the settlement act are not mutually exclusive since IGRA allows for restrictions on tribal game as long as they are addressed by federal law. Saylor noted that the same Congress passed both laws.
Saylor wrote: “The two statutes are not merely capable of co-existence; rather, both can be given full effect. IGRA permits tribes to engage in class II gaming on their land unless it is specifically prohibited by federal law . . . . When Congress passed IGRA, the settlement act was an existing federal law that specifically prohibited gaming on the settlement lands.”
The question of whether or not the tribe should be permitted to operate a casino on Martha’s Vineyard is a political question, Saylor wrote, and should be left to a political resolution. He limited himself, he said, to ruling on the law. “The role of the court here is a narrow one, and it expresses no opinion of any kind about the broader issues underlying this dispute,” he wrote.
The 6,500 square foot unfinished community building the tribe hopes to transform into a small Class II casino with 300 slot machines was built using $1.1 million federal housing funds with the assistance of a work force of Air Force reservists. The tribe must pay back the funds if the community building is not used for that purpose. According to Crowell, the tribe is negotiating with the Department of Housing and Urban Development over repayment of the funds.
