Casino Stalker | Litigation

Aquinnah Wampanoag Tribe sees major blow in casino case

Monday, November 16, 2015

The clay cliffs in the town of Aquinnah, Massachusetts, the home of the Aquinnah Wampanoag Tribe. Photo from Wikipedia

The Aquinnah Wampanoag Tribe of Massachusetts cannot use its reservation for gaming, a federal judge ruled on Friday.

Judge F. Dennis Saylor IV acknowledged that the tribe exercises "some level of jurisdiction" on its reservation on the island of Martha's Vineyard. But he said the tribe does not exercise "governmental power" over its own territory.

"The tribe does not have a public school. Nor does the tribe provide any public housing beyond that which is funded by the U.S. Department of Housing and Urban Development. There is no tribal criminal code, prosecutor, or jail," Saylor wrote in the 40-page decision. "The tribe’s judiciary, which was organized two years ago, offers only a limited judicial function. Its cases are heard by a judge who is hired on a case-by-case basis and who presides by teleconference from Washington state over proceedings that are conducted in a building off the settlement lands And, importantly, the tribe has no tax system in place on the lands to fund any future governmental services."

But even if the tribe did exercise governmental power, Saylor said the Indian Gaming Regulatory Act of 1988 does not apply on the reservation. He said Congress, through the Massachusetts Indian Land Claims Settlement Act of 1987, required the tribe to follow local and state laws that do not otherwise authorize a casino.

The New England Casino Race: Tribal and commercial gaming facilities in Connecticut, Massachusetts and Rhode Island

"IGRA permits tribes to engage in class II gaming on their land unless it is specifically prohibited by federal law," Saylor wrote. "When Congress passed IGRA, the settlement act was an existing federal law that specifically prohibited gaming on the settlement lands."

The decision runs counter to an analysis from the Interior Department and the National Indian Gaming Commission. The two agencies concluded that IGRA repealed key provisions of the settlement act, a move that prompted the tribe to start work on a Class II facility in the town of Aquinnah. The agencies, however, are not parties to the lawsuit.

The tribe could take the dispute to the 1st Circuit Court of Appeals. In an earlier case, the court concluded that IGRA repealed key provisions of a settlement act with the Narragansett Tribe of Rhode Island.

Saylor, however, said the Massachusetts and Rhode Island settlements were different. He also noted that Congress has since barred the Narragansetts from following IGRA.

Turtle Talk has posted briefs from the case, Commonwealth of Massachusetts v. The Wampanoag Tribe of Gay Head.

Get the Story:
Judge says Wampanoag tribe may not build a gaming hall in Aquinnah (The Martha's Vineyard Times 11/14)
Court Denies Tribe Rights to Pursue Gambling on Martha's Vineyard (The Vineyard Gazette 11/14)
Federal judge denies island tribe's bingo hall plan (The Cape Cod Times 11/14)
Federal judge issues ruling against tribal casino on Martha’s Vineyard (The Boston Globe 11/14)
Casino Plan for Martha’s Vineyard Blocked by Judge (The Wall Street Journal 11/14)

An Opinion:
Scott Van Voorhis: Casino Bill Oversold (Banker & Tradesman 11/15)

Relevant Documents:
Solicitor Letter to Aquinnah Wampanoag Tribe (August 23, 2013)
NIGC Letter to Aquinnah Wampanoag Tribe (October 25, 2013)
Press Release: GSB Client Aquinnah Wampanoag to be First to Game in Massachusetts (November 12, 2013)