<p>The U.S. Court of Appeals this week delivered a sharp, clear message to the Wampanoag tribe — it has the right to operate an electronic bingo parlor on protected tribal lands.</p>
The U.S. Court of Appeals for the 1st Circuit this week delivered a sharp, clear message to the Wampanoag Tribe of Gay Head (Aquinnah) — it has the right to operate an electronic bingo parlor on its protected tribal lands.
In a stunning reversal, a three-judge panel on Monday unanimously rejected arguments by the town of Aquinnah, the state and a community group, and sided with the tribe on critical points.
The pivotal issues were whether the tribe qualified for gaming under the federal Indian Gaming Regulatory Act (IGRA) and, if so, whether IGRA trumped an earlier settlement act for the Aquinnah tribe that was endorsed by Congress.
U.S. District Judge F. Dennis Saylor 4th had ruled for the town, state and Aquinnah/Gay Head Community Association in late 2015, finding that the tribe does not have the right to conduct Class II gambling (electronic bingo). The decision issued Monday by the appeals court panel reversed Judge Saylor and remanded the case back to the district court for entry of judgment in favor of the tribe.
“Because we find that the tribe has exercised more than sufficient governmental power to satisfy the requirements of IGRA, and the federal [settlement] Act has been impliedly repealed by IGRA in relevant part, we reverse,” wrote Judge Juan R. Torruella for the court.
The decision was released on the same day that members were celebrating the tribe’s 30th anniversary of receiving federal recognition. In a statement, tribal chairman Cheryl Andrews-Maltais hailed the ruling. “This decision affirms our sovereign rights and jurisdiction over the land that has always been ours and solidifies our place in the gaming market,” she said.
Attorney General Maura Healey’s office said it was reviewing the decision and had no immediate comment.
At a special meeting early Thursday afternoon, Aquinnah selectmen met in executive session to discuss strategy. Following the meeting town administrator Adam Wilson said the selectmen agreed “to pursue and research every aspect of an appeal,” consult lawyers for the state and community association and meet again April 20. Selectman Jim Newman is away and did not attend the meeting.
“The bottom line is the board wants to move forward,” said town counsel Ronald H. Rappaport, after the session. “They’re just trying to find out who else is moving forward and what the other cost implications, etc., might be.” He declined to outline all the options, but said asking the full circuit court to consider the case and asking for Supreme Court review are examples.
Speaking to the Gazette earlier in the week, selectman Juli Vanderhoop, who is also a member of the tribe, reiterated her opposition to a casino in town. “We do not have the infrastructure on the Island to carry something like this,” she said by phone, noting ongoing efforts to manage the town budget in Aquinnah.
Larry Hohlt, president of the community association, said his organization would meet within the next few weeks to decide a way forward.“We were disappointed in this opinion and are assessing what is the appropriate for us and all parties to proceed,” he said. “We haven’t really decided at this point.”
The ruling is the latest dramatic turn in a legal battle over the tribe’s attempts to build a gaming operation in a 6,500-square foot community center at the western tip of the Island. Tribal leaders have insisted they have the right to decide whether or not to conduct class II gaming on its lands, and point to a gaming facility’s potential for economic development.
The latest ruling substantially narrows the town’s options to block any such facility. While no one expects a gambling hall to open overnight, the town, state and community group face a steep climb either to get the full circuit court to reconsider the decision or to prevail before the U.S. Supreme Court.
After Judge Saylor’s decision in November 2015, tribal leaders announced that the vacant, unfinished building targeted for the casino would instead be completed for its original purpose — as a community center. The ruling from the appeals court this week could portend an about face for that plan, although in her statement, Ms. Andrews-Maltais said the tribe is still reviewing the ruling and did not address the immediate future of the community center. She did say she hoped the legal opposition to the facility would now end and lead to greater cooperation between tribe and town.
“All tribal economic development is for the express purpose of providing the necessary governmental programs and services for tribal members, but those benefits expand to the community as a whole,” the statement said. “This decision benefits us all.”
The town has consistently argued that the tribe forfeited its right to operate a gambling facility in Aquinnah when it signed a land claims settlement agreement in 1983 that four years later was codified by Congress. Coming soon after the Gay Head Wampanoags had won federal recognition, the 1987 compact gave the tribe 485 acres of land and expressly required compliance with state and local laws, including prohibitions on gaming. IGRA was passed the next year by the same Congress, setting up a national regulatory system for tribes to conduct gaming, but it did not invalidate the prohibitions in the earlier settlement act, according to Judge Saylor’s decision.
The appellate court disagreed, ruling that the tribe exerted sufficient governmental authority to trigger IGRA, and that IGRA trumps the settlement act. Judge Torruella found that the appellants’ legal arguments framing the standard for sufficient governmental authority missed the mark.
“The town gets it backward,” he wrote in part, quoting IGRA as intending gaming to promote economic development, self-sufficiency and strong tribal government. “The town now seeks to put this logic on its head by requiring the tribe’s government to be fully developed before it can have the benefit of gaming revenues. This is not what IGRA requires, nor is it our case law.”
The appellate panel contrasted the Aquinnah case with the court’s past ruling over the Passamaquoddy tribe of Maine, and the reasons IGRA did not trump that tribe’s settlement act.
The Passamaquoddy tribe’s prohibition survived because its settlement act had specific language warning Congress that subsequent laws like IGRA would not apply “unless specifically made applicable within the state of Maine.” IGRA did not contain such specific language.
The gambling prohibition in the settlement acts of the Aquinnah and also the Narragansett tribe of Rhode Island say “nothing about the effect of future federal laws …” the appeals court said. Therefore, IGRA and their settlement acts were in conflict and IGRA, as the more recent federal legislation, must prevail, the appellate court found.
Experts who follow the industry in New England were not surprised by the decision, but pointed to a gaming market that has grown increasingly competitive and could be showing signs of saturation.
Richard A. McGowan, a professor of economics and management at Boston College, said a tribal gaming facility in Aquinnah would face a host of challenges, including competition from the bigger, well-heeled projects. And the remote location at the western end of the Vineyard would discourage repeat patrons who are the lifeblood of casinos, he said.
“The market is really getting saturated,” said Mr. McGowan. “They [the Aquinnah] won all right, but they won way too late.”
The state law that allows casino gambling provides for one license to be issued to a native American tribe, but that license has already been awarded to the Mashpee Wampanoags, whose plans to open a casino are currently tied up in federal court.
Tribal leaders have viewed a gambling operation as the best available opportunity to create revenue for its programs and services — as much as $5 million annually, according to a tribe-commissioned study — while gaining some self-sufficiency.
The town of Aquinnah, one of the poorest in the state, has warned about the impact of a gambling facility on fire, police and other services.
More abstractly, the culture clash of a gambling culture and the Island ethic of natural beauty and pristine environment has worried many Vineyard residents, both inside and outside the tribe.
Ms. Vanderhoop, the selectman and tribal member, concluded : “It doesn’t matter whether it’s big or small, I know only the ill that gaming would bring to any community, never mind a small community like this. Speaking from a tribal point of view, this land is our homeland . . . . I think it might be great for saying that the tribe is sovereign by itself, but what it says for the community is unfortunate.”

Comments
AMEN!
Tribal Member AquinnahAMEN!
Yes! I am a visitor and love
JE Brooklyn, NYYes! I am a visitor and love MV not just for what it looks like but for the values of the island, its culture, and I am shocked and dismayed by the tone in many comments and by the NIMBY selfishness. My family owned banks in several tiny towns around Mille Lacs band Ojibwe casino in Minnesota, a place where like MV, there is not a lot to do in Winter. The casino didn't bring crime or do any of the things people fear, and that's a much larger operation than what is proposed for MV. But that's not the issue at hand, anyway. It's about the tribe's rights. Period. This was the right decision by the judge.
The 'values' seem to point
Diane NJ (but 3x a year visiting in MVY)The 'values' seem to point towards selling out to commercialism in the name of making a buck. Do people have a 'right' to ruin the land ? Would the judge have reached a different decision if a land developer (not a tribe) were coming to count on this ?
Thank you for taking the time
Non-Tribal Member UpislandThank you for taking the time to reach out and write in these comments. People are quick to judge and hate. We all understand the doubts that surround an AQ bingo hall; however, I personally think it's great the tribe is engaging with the tourist industry. Maybe this bingo hall isnt the answer, but if the tribe is looking to open new businesses upisland, i'm all for it!
Sadly, the death knell has
Diane NJ (but 3x a year visiting in MVY)Sadly, the death knell has just been sounded for Martha's Vineyard. To support the casino, there will be more development, more hotels, more drunken day-trippers with their litter and noise. You will be able to see the Foxwoods-like high-rise (which is sure to come )even from out to sea.
Please stop the madness....
Clearly it is time for all
Nancy Kilson West Tisbury and Brooklyn, New YorkClearly it is time for all parties to get together and talk, hopefully without any statements of fear, hate or condemnation, but in a sincere effort to find ways to bring economic development to the Wampanoag people without detriment to the island we all love.
Great News!!
Bruce EdgartownGreat News!!
Ye cannot serve Great Spirit
Martha MageeYe cannot serve Great Spirit and mammon. Sovereignty, yes. Casino, NO. Wampanoag Tribe, protect the native sacredness of your land and the spirit of your ancestors who are counting on you to preserve it. You are the caretakers of the reservation. May You Be Blessed with Wisdom in this decision. Think of the big picture, the whole. Do what is good for all. Thank you. Aho.
I new this sad day would come
Robert EdgartownI knew this sad day would come. This tribe and many others have traded the beauty of their land for the lure of the casino. I have visited many tribal lands and found that not far from the beautiful casino building the tribal familes live in disgusting conditions. The money promise isn't true. The cost financially and spiritually to the tribe and the community never equals the reward. For all the retoric about the love of the land from the tribe. It seems like they sold out. Sad day.
There is virtually no social
Frank Partel Chappaquiddick,There is virtually no social value to gambling. It is a zero-sum, wealth transfer system where the odds are deliberately, mathematically created in favor of the house and against the gambler. While Bingo is a low-wager form of gambling, it might be more worrisome if it is the first step to more serious gambling. Some might see some historical social justice in Native American owned gambling houses. I lived in Minnesota when gambling became fairly wide-spread in the state. As it expanded, coincidentally, so did personal bankruptcies in a very vibrant economy. Moreover it created tensions between "have" and "have-not" tribes, and within "have" bands, there arose jealousies and power struggles for control, especially over the definition of a tribal member and who might qualify or not qualify for the disbursement of earnings. Said another way, those who qualify resist expanding membership which dilutes the share of funds to be disbursed.
There are both positives and
Chip Coblyn OBThere are both positives and negatives to this, but from a strictly practical standpoint, I can't inagine that such a small structure can support the busloads of gamblers some have predicted. The fire marshal simply won't allow it to operate beyond a set capacity. I can't imagine that this 'casino' will earn much more than supplemental income for the tribe, but that in itself is one in the positive column.
Vineyard Gazette: Please be
Marty B EdgartownVineyard Gazette: Please be sure to load ALL the comments that will continue to pour in on this highly charged issue so that everyone in the online community has a chance to read them. I've noticed a slow uptake on comments that come in after the day an article is posted and sometimes they don't get posted at all. For example, comments people I know wrote early this morning have not yet been posted. Somebody ought to stay on top of the commnents and post them in a more timely fashion. After all, this is the Vineyard Gazette!
The word, “Gaming” belongs in
Thoughtful Island PersonThe word, “Gaming” belongs in the euphemism Hall of Fame. Gambling which produces nothing, is a money transfer from people who, most always have little to begin.
Yes. The transferee pays people to operate the transfer machinery including food and beverage services to fool people into thinking they are having a good time depleting their wealth.
Years ago, we asked ourselves: “Where’s the redeeming value [to the community]?” Is now the thinking: “Who cares? We get a few dozen food & beverage and other service jobs into our town, don’t we?”
Could this extraordinary venue be a place where value happens? Say, a dinner theater – food & beverage, service support jobs – tickets paid for start-up playwriters and stand ups and musicians and unusual films and lectures – real entertainment and socializing.
Wampanoag Tribespeople, you have a world-class, one of a kind Aquinnah. You have an Island filled with extraordinary talented people, from chefs to artists to show-people to writers and speakers to inventors to business geniuses. And you have you, your parents, grandparents, kids and grandkids. Please, go to work and do something worthy of who you are.
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