The long court battle to prevent the Wampanoag Tribe of Gay Head (Aquinnah) from building a small Class II casino on Martha’s Vineyard, Massachusetts has ended with the Supreme Court refusing to hear an appeal by opponents—removing the last obstacle to the casino.
The court refused to grant a writ of certiorari or “cert” to review the lower appeals court decision. That leaves intact the lower court ruling that the tribe could operate a casino with 300 electronic bingo machines in a 6,500-square foot community building at the far western tip of the island. The tribe has 1,300 members, most of who live on the mainland.
That ruling said the federally recognized tribe was not obliged to follow an agreement that it signed with the state, and the town of Aquinnah to abide by state and local zoning laws as part of the 1987 Massachusetts Settlement Act that granted the tribe 500 acres for a reservation and did not allow gaming. It ruled that the tribe was correct when it said that agreement was obviated when Congress passed the Indian Gaming Regulatory Act the following year.
With this ruling in its pocket, the tribe is indicating it might be interested in moving the location of the casino from Martha’s Vineyard to the mainland. This is something the tribe has always wanted to it, but settled for operating on the island when it had no other place to go. This would probably make the casino foes happy since their objection all along was that a casino would corrupt the image of the summer resort. Most of the island’s tourist activities occur on the eastern portion, opposite from where the casino would be located, in the villages of Edgartown, Oak Bluffs, and Vineyard Haven.
A casino on the mainland would probably bring in more money for the tribe, since patrons wouldn’t need to cross over to the island and drive on winding two-lane country roads. “From a marketing standpoint” a remote spot on a summer resort island “is just a horrible location for a casino,” Clyde Barrow, the Texas professor who has specialized in the New England gaming scene for many years told the Boston Globe. “You don’t go to Martha’s Vineyard to play slot machines.”
An anonymous source supposedly close to the tribe told the Globe, “If the Vineyard is the only alternative, they’ll build on the Vineyard. If there is another alternative, they’ll build there.” The tribe has sought to operate a casino on the mainland since the 1990s. At one time, it signed an agreement with then Governor William Weld to operate a casino in New Bedford, but the deal fell through. In 2012 the tribe sought support for a casino in Freetown and Lakeville, but residents voted against it.
Tribal Chairman Cheryl Andrews-Maltais released a statement after the high court declined to review the case: “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 also said, “It was a great and historic day for the Aquinnah Wampanoag people.” She made special mention of the tribe’s attorneys for their “extraordinary work and commitment to helping us throughout this challenging litigation.”
Speaking for the defeated opponents, Aquinnah/Gay Head Community Association President Larry Hohlt, interviewed by the Vineyard Gazette, said, “I think it’s a wrong decision, but realistically I’m not surprised because the odds of getting a case before the Supreme Court are daunting.” He later told the MV Times: “Frankly, the underlying issue is, even if they have the right to do it, how much sense does it make?”
For the tribe to build on the mainland would likely require amending the 2011 gaming expansion law, Clyde Barrow, the Texas professor who has specialized in the New England gaming scene for many years says. He told the Globe, “If they were to go down that road, it’s another decade away, in my view,” Barrow said. “It’s way down the road, and a lot of politics.”
Few Bay State politicians want to revisit that law until they see how the casinos that are now being built in Springfield and in Everett, across the Mystic River from Boston, pan out.
But even if the casino remains on the island, it could still earn about $3 million a year, according to some estimates. And it won’t be subject to state taxation. This might allow the casino to be more welcoming to patrons than its mainland competition by offering more favorable odds and bigger payouts.
The tribe itself has said it believes the casino could generate about $5 million.
That’s if it limits itself to Class II gaming. For the tribe to offer the more lucrative Class III games would require a tribal state gaming compact with the state.
Now that no other path lies for it to take, the town of Aquinnah, which was one of the plaintiffs in the case, has scheduled a meeting of the board of selectmen. The town’s attorney, Ronald Rappaport told the MV Times: “We’re disappointed that cert was denied, but know it’s only granted in a small number of cases. I’ll be meeting with selectmen later this week to discuss options.” What those options might be is unclear.
Up until now, the town was a ride along in a case that was moved by Massachusetts State Attorney General Maura Healey, whose office declined to comment. The state became involved in the case in 2013 when Governor Deval Patrick sued in state court, claiming that the tribe was violating its 1987 contract. The tribe was able to get the case moved to federal court, where ultimately it prevailed.
Hohlt, in a letter to the association’s members, noted that the lower court ruling left open whether the tribe must submit to local zoning, even if it is allowed to open a casino. In the letter Hohlt wrote, “The legal issues aside, the AGHCA will continue to oppose a casino located in Aquinnah and will follow developments accordingly.”
The tribal casino will not be regulated or overseen by the Massachusetts Gaming Commission, which has watched over the genesis of the state’s commercial gaming industry since 2011. Just in case anyone didn’t know this fact, the commission’s spokesman Elaine Driscoll put out this statement: “The Massachusetts Gaming Commission does not currently have any statutory role or authority over the matter involving the Town of Aquinnah and the Wampanoag Tribe of Gay Head. The commission has a fundamental interest in all gaming-related issues that impact the commonwealth and will continue to monitor any developments closely.”
The high court victory highlights the fact that in December the Bureau of Indian Affairs put into trust 15 acres for the tribe that is adjacent to the original 160 acres and to the community center where the tribe plans to operate its Class II casino.
If the tribe actually decides to convert the community center to a casino, it would have to repay the federal Housing and Urban Development several hundred thousand dollars. HUD provided the money for the community center.
