Legal challenges just delaying inevitable
THE PURSUIT of a casino by the Aquinnah Wampanoag Tribe on Martha’s Vineyard may be one of the most under-covered stories in Massachusetts.
The tribe is trying to open a so-called Class II gaming facility, which is typically referred to as a high-stakes bingo operation. It is bingo, but not with balls dropping and people yelling out they’ve won. Instead, players sit at individual machines and play games that look and feel like those on regular slot machines, but they are programmed differently. Instead of playing against the “house,” as in a regular Class III casino, you are playing against other players in the same gaming facility, almost mimicking a card-based bingo game.
The tribe decided to construct a Class II facility because, under the Indian Gaming Regulatory Act of 1988, Class II gaming is allowed as a matter of right, and does not require a compact or agreement with the Commonwealth.
The tribe has been trying since the 1970s to get its facility up and running, and it’s getting pretty close despite the efforts of state and local officials to block it. My suggestion to state and local officials would be to get on board soon. Unlike the casino pursuit of the Mashpee Wampanoag Tribe, which revolves around the question of lands in trust and if the tribe will be able to open a casino; for the Aquinnah Wampanoags, the question is when they will be able to open a casino.
Here’s some background. In the late 1970s, the Aquinnah Wampanoag Tribe filed a lawsuit against the Commonwealth of Massachusetts and the town of Aquinnah (or Gay Head, as it was named back then) claiming title to certain aboriginal lands on the island of Martha’s Vineyard. In 1983, the tribe and the Commonwealth, the town, and the Aquinnah/Gay Head Community Association entered into a settlement agreement, under which the town agreed to transfer ownership to several hundred acres of land in exchange for the tribe’s release of claims on other aboriginal lands on Martha’s Vineyard. The settlement agreement was approved by the Bureau of Indian Affairs and, in 1987, Congress enacted legislation codifying the terms of the settlement agreement.
In 2013, the tribe received an opinion from the National Indian Gaming Commission that concluded the lands received under the settlement agreement were eligible for tribal gaming under the Indian Gaming Regulatory Act. The tribe then informed the town and the state that it would be starting construction on a Class II facility.
The Commonwealth, the town, and the Aquinnah/Gay Head Community Association filed suit, and in 2017 they prevailed in US District Court. The tribe appealed, and won. The appeals court concluded that the settlement lands were eligible for gaming under federal law and that the tribe could move forward with its planned Class II gaming facility. The Commonwealth, the town, and the association appealed this decision to the US Supreme Court, but the court declined to consider the case.
The tribe then began construction of its gaming facility, but it didn’t take long before it encountered new roadblocks. When the tribe applied to the town for a routine electrical permit, the request was rejected and the local electric utility disconnected service to the construction site. The town went back to US District Court, seeking to assert its regulatory authority over the project. The district court agreed with the town and placed the tribal lands under the Town’s jurisdiction for permitting and zoning authority. The tribe then appealed that decision to the First Circuit Court of Appeals, which recently held a hearing on the issue.
Scott Crowell, an attorney who represents the Aquinnah Wampanoag Tribe, said in his closing statement that unless the lower court ruling is overturned local officials would be able to kill the gaming facility with a 1,000 cuts. “There is no tribe operating a Class II gaming facility [in the United States] that is subject to county or local zoning laws, and this will make Aquinnah an aberration,” he said. “The ability for the town to interfere and do indirectly what it can’t do directly is the interference that makes the application of town laws inapplicable.”
Crowell’s argument seemed persuasive. One thing to keep in mind is that there is no agreement in place to siphon a portion of any future gaming revenue to Martha’s Vineyard or the state. An agreement was drafted back in the 1990s but never ratified because the Bureau of Indian Affairs deemed the proposed 25 percent revenue share with the state too generous.
If the tribe prevails, a gaming facility could open on Martha’s Vineyard and the state could end up with nothing. My advice would be to all parties would be to put the legal bickering to rest, and strike some sort of deal.
Paul L. DeBole is assistant professor of political science at Lasell University.