The U.S. Justice Department has filed a brief siding with the Wampanoag Tribe of Gay Head (Aquinnah) in its battle to be allowed to build a Class II electronic bingo hall on its reservation in Aquinnah on Martha’s Vineyard.
The tribe appealed federal Judge F. Dennis Saylor November rejection of the tribe’s attempt to build casino to the U.S. Court of Appeals for the 1st Circuit.
Saylor said that the tribe is bound by an agreement it signed with the state, the town of Aquinnah and federal government as part of the 1987 Massachusetts Indian Land Claims Settlement Act of Congress where the tribe got 400 acres. The tribe argues, and the U.S. Justice Department now agrees, that the agreement was overturned a few months later in 1988 when Congress passed the Indian Gaming Regulatory Act (IGRA), which says that tribes may have gaming in any state where it is not expressly forbidden.
In its brief Justice wrote that the passage of IGRA “impliedly repealed” repealed the provisions of the agreement that related to gaming, especially the part that said the tribe agreed to abide by local zoning and land regulations.
The brief states, “If they are not absolutely prohibited under state law, tribes as a matter of federal law may conduct such gaming even though a state regulates that activity on non-Indian lands.”
The Aquinnah seek to open a small Class II casino and are opposed by the state of Massachusetts and the town of Aquinnah. In January federal Judge F. Dennis Saylor IV issued a permanent injunction that prevents the tribe from using an unfinished community center for the casino. He called the 1987 agreement “valid and enforceable.” Before that the judge ruled that the tribe had not demonstrated that it was a legitimate governmental entity with authority over the 400 acres.
Saylor wrote, “Although the tribe asserts that it is ‘responsible for’ many other governmental services unrelated to law enforcement and public safety, it does not provide concrete example of what the tribe actually does.” He noted that it does not have a tribal jail, no health inspector, no ordinances, and no taxing structure to fund government activities.
He wrote, “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.”
The Justice Department also contests that point.
The department does not agree with the tribe that the National Indian Gaming Commission (NIGC) should be included in the tribe’s lawsuit, however.
The Department of Justice writes that the legal issues of the case boil down the Settlement Act of 1987 and IGRA, which came a year later. It argues that the Settlement was enacted before the U.S. Supreme Court ruled that states lacked authority over gaming conducted on the reservation. That ruling prompted Congress to pass IGRA.
Justice wrote: “The two statutes cannot be reconciled because the Settlement Act permits state and local regulation of gaming, but IGRA allows Class II gaming, free from state and local regulation, unless the state has imposed a total ban on all forms of a game, such as all forms of gaming akin to bingo. IGRA, through which Congress intended to create a comprehensive scheme for Indian gaming, implicitly repealed the Settlement Act’s provision for state and local jurisdiction over gaming. To conclude otherwise ‘would honor the Settlement Act, but would do great violence to the essential structure and purpose of IGRA.”
The Department wrote: “The United States has a substantial interest in the administration of these two federal statutes and how they interrelate. The United States has a trust responsibility to the tribe and an interest in ensuring that its Settlement Act is fairly administered. It also has an interest in the proper implementation of IGRA, by which Congress ‘struck a careful balance among federal, state, and tribal interests’ in adopting a ‘comprehensive approach to tribal gaming.’ ”
The Department also disagreed with Saylor that the tribe doesn’t exercise enough governmental authority. “The district court applied too demanding a standard — requiring far more than this Court did in Narragansett — in concluding that the Tribe did not exercise sufficient governmental power over its lands to be deemed ‘Indian lands’ under Indian Gaming Regulatory Act,” said the brief.
The Justice Department brief does not have legal force, nor does it mean that the department will be arguing the tribe’s case in court, but it does add weight to the tribe’s argument.
The Court of Appeals has not yet set a date for oral arguments.
In May the tribe’s attorney, Scott Crowell, filed a brief with the Appeals Court detailing the tribe’s arguments. He drew comparisons between the Aquinnahs’ case and that of two tribes in Texas, the Ysleta del Sur Pueblo and Alabama-Coushatta Tribe. Last October the Department of the Interior and the NIGC agreed that both have a right to operate Class II gaming on their lands, despite Texas’s ban on gambling.
Crowell wrote, “The Commonwealth does not object to one Indian tribe, the Wampanoag Mashpee, conducting gaming within the exterior boundaries of the Commonwealth, while simultaneously and vigorously opposing Aquinnah conducting gaming within its exterior state boundaries, just as the State of Texas does not object to one Indian tribe, the Traditional Kickapoo, conducting gaming within the exterior boundaries of Texas, while simultaneously and vigorously opposing the Texas Tribes conducting.”
Crowell reacted to the Justice Department brief in an email to the Martha’s Vineyard Times: “Throughout the District Court’s proceedings, the Commonwealth and the homeowners association were dismissive of the tribe’s argument that the United State’s exercises jurisdiction over the tribe’s gaming activities to the exclusion of the Commonwealth. They can be dismissive no longer.”
Aquinnah attorney Ron Rappaport said he plans to file a brief for the tribe within the next two months. “We do not agree with the assertions made by the Department of Justice, and we will strenuously oppose them,” he told the Times.
When the Bay State legislature passed the expanding gaming act of 2011, it set aside three licenses for casino resorts and one for a slots parlor. One of the casino resort licenses was intended for the Mashpee Wampanoag, but none was set aside for the Aquinnah, because of the 1987 agreement. That same year the tribe’s members narrowly voted to convert the unfinished community center into a Class II bingo hall.
Most tribal members living on the island itself opposed this vote. The majority of those living on the mainland supported it. There are about 300 tribal members living on the island.
In late 2013 then Governor Deval Patrick challenged the tribe’s action in federal court. The state was later joined by the town of Aquinnah and the Aquinnah Gay Head Community Association (AGHCA).
If the tribe eventually prevails, it would still need to nail down where the casino would go. In January the tribal council voted to complete the 6,500 square foot community center as a casino. The tribe’s position is that that hasn’t changed. The tribe must complete the structure or repay the federal government for the $1.1 million in Community Development Block Grants that funded the building, which was largely done in 2004 with labor provided by Air Force Reserve volunteers. The Department of Housing & Urban Development (HUD) has given the tribe until September to finish the building or pay the grants back. The tribe has spent the great majority of the grants.
The tribe estimates that its casino would generate about $4.5 million annually.
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In another legal battle, the attorney representing some residents of Taunton seeking to stop construction of the $1 billion Mashpee Wampanoag casino resort last week explained why his clients seek an injunction to halt the building until the case is tried.
Attorney Adam Bond explained to WATD why his clients did not ask for an injunction when they first filed the case in U.S. District Court in Boston.
“It had a lot to do with the fact that nobody had started doing anything on the land yet. And if you take a look at a lot of the cases where people try and enjoin the building of the casino or enjoin building on Indian land, a lot of the denials of those motions come from the fact that it’s speculative because nobody’s started to build anything yet,” he said.
The game changer, according to Bond, occurred when, “The Mashpee turned around and said ‘Genting’s behind us 100 percent, we’re going to fast track this thing even though we’re building a half of the gaming platform we were proposing, we’re gonna fast track this thing and be ready for 2017 to open.”
The plaintiffs in the case allege that the Bureau of Indian Affairs exceeded its authority when it put the 151 acres in Taunton into trust, making it eligible for gaming.
