Of Indian casino in Aquinnah, town counsel says simply 'No'

Of Indian casino in Aquinnah, town counsel says simply 'No'
By Nelson Sigelman
May 2, 2012


Last month, the Wampanoag Tribe of Gay Head (Aquinnah) again raised the prospect of a casino on tribal lands on Martha's Vineyard. The three Aquinnah selectmen requested an opinion from town counsel Ron Rappaport.

"As to whether the Wampanoag Tribal Council of Gay Head, Inc. can operate a gaming casino in Aquinnah," Mr. Rappaport said in a seven-page opinion dated April 27 addressed to Jim Newman, board chairman, "the simple answer to the question is no."

The lands described in the 1983 Settlement Act, that led to federal recognition for the tribe, are subject to the zoning regulations in effect at that time, Mr. Rappaport said. "The town's zoning bylaw, as of that date, does not allow a casino, gambling facility, or other gaming activities as permissible uses," he said.

The issue came to light when the Aquinnah Wampanoag Gaming Corporation announced the launch of a website, AquinnahGaming.com, to target voters in the communities of Freetown, Lakeville, and Fall River.

Under a section titled "frequently asked questions," the tribe claimed "there is no legal impediment for us to open a casino on our trust land. Martha's Vineyard is a very popular tourist destination that could certainly support a smaller-scale casino."

In a telephone conversation Wednesday morning, Jim Newman, the chairman of the Aquinnah board of selectmen, told The Times he requested a formal opinion so the town would be informed. "I thought townspeople might ask me what was going on and what the rights of the town were," he said.

The three-member board of selectmen includes two members of the Wampanoag Tribe, Spencer Booker and Beverly Wright, who is a member of the tribal council and former tribal chairman.

Asked if he thought the tribe is posturing or is seriously exploring the option of a casino on town land, Mr. Newman said, "I don't really have any idea. I can tell you I am not jumping up and down."

Mr. Newman said he is in regular contact with tribe chairman Cheryl Andrews-Maltais. Asked if he had discussed the prospect of an Aquinnah casino, Mr. Newman said, "No, although she and I speak all the time, we are on very good terms."

Mr. Newman said he had not raised the topic because he does not get involved in tribal business unless it directly impacts the town. He said that at the moment the tribe had only suggested the possibility.

In an email sent Tuesday, The Times asked Ms. Andrews-Maltais to comment on Mr. Rappaport's opinion. The Times also asked the chairman to provide The Times with an opinion from the tribe's lawyers supporting its claim to be able to build a casino in Aquinnah.

Ms. Andrews-Maltais responded, "Without having a copy of Attorney Rappaport's legal opinion, I am unable to comment."

The Times forwarded the opinion to her but received no response as of press time.

At the moment, the Aquinnah Wampanoag Tribe has its eyes firmly fixed on the mainland towns of Freetown and Lakeville. The tribe has agreed to pay $15 million for 500 acres straddling the two communities.

The tribe agreed to pay $10,000 per month as a down payment but, if the purchase hasn't been closed within 12 months, $100,000 of the deposit becomes nonrefundable, the Cape Cod Times reported.
The casino bill that Gov. Deval Patrick signed last year permits up to three casinos in Massachusetts, with the southeastern region license temporarily reserved for a federally recognized tribe.

Local approval is a requirement of the law that provides the only two federally recognized tribes in the state with a head start before the process is thrown open to a commercial casino developer on July 31.

Freetown has scheduled a May 29 referendum and Lakeville residents are scheduled to vote June 2.
Should the tribe fail to secure a mainland option attention would likely focus on Martha's Vineyard.

No authority

Following reports of renewed talk of an Aquinnah casino, Mr. Rappaport told The Times that the tribe is bound by town zoning laws and those laws do not allow the construction and operation of a casino. In his opinion, Mr. Rappaport cited the specific state and federal laws and judicial opinions that underpin that view.

He began with a history of the litigation that goes to the heart of his legal opinion, the Settlement Agreement. In 1974, the tribe commenced litigation against the town, then known as Gay Head, claiming that certain transfers of public land in the town violated the Indian Non-Intercourse Act.
In 1983, the tribe and the town settled the tribal lands litigation. As part of the settlement, they entered into an agreement entitled "Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims (the Settlement Agreement)."

The Massachusetts Legislature subsequently enacted legislation implementing the terms of the Settlement Agreement and the accompanying Land Use Plan. At the same time, the tribe petitioned for federal recognition of its existence as a Native American tribe.

Congress enacted the "Massachusetts Settlement Act" on August 18, 1987. While the Federal Act noted that the tribe would enjoy a government-to-government relationship with the United States, it made the Tribe subject to the laws identified and incorporated in the Settlement Agreement.

The Federal Act includes the following provision: "the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity in the Town of Gay Head, Massachusetts, shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts and the Town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance)."
The opinion also references the lawsuit that began in 1999 when the Wampanoag Aquinnah Shellfish Hatchery Corporation erected a shed on the Cook Lands (one of the Settlement Lands) without obtaining a building permit from the town.

"A central issue in the litigation was whether the tribe had waived its sovereign immunity, making it subject to the zoning by-laws and other laws and ordinances of the town and the Commonwealth,"

Mr. Rappaport said. "The SJC specifically ruled as follows: 'Here, the facts clearly establish a waiver of sovereign immunity stated, in no uncertain terms, in a duly executed agreement and the facts show that the Tribe bargained for and knowingly agreed to that waiver...'"

As for the tribe's view that the Indian Gaming Regulatory Act (IGRA) superseded the terms of the Settlement Agreement, Mr. Rappaport cited a five-page opinion issued by the Assistant Secretary for Indian Affairs: "The gravamen of the opinion is that the Tribe enjoys the ability, under the IGRA, to seek gaming operations elsewhere in the Commonwealth, but not in Aquinnah (then Gay Head)."

Mr. Rapport concluded, "While I express no opinion as to whether the Settlement Agreement and the implementing State and Federal Acts would preclude the Tribe from conducting gaming activities elsewhere in the Commonwealth, it is clear that the Tribe has no right to seek any gaming rights under the IGRA in Aquinnah."