Aquinnah Wampanaog Tribe scores major win in sovereignty case

Tuesday, April 11, 2017

The Aquinnah Wampanoag Tribe has secured a huge victory in a long-running sovereignty dispute in Massachusetts.

In a unanimous decision, the 1st Circuit Court of Appeals on Tuesday confirmed that the tribe can use its reservation for a modest casino. A land claim settlement that granted some authority to the state was effectively overturned by the Indian Gaming Regulatory Act, a panel of three judges concluded.

"Pursuant to IGRA, 'the operation of gaming by Indian tribes [is] a means of promoting tribal economic development, self-sufficiency, and strong tribal governments,'" Judge Juan R. Torruella wrote in the 23-page decision.

State and local officials asserted "exclusive" jurisdiction over the reservation but the court said that clearly wasn't the case. The tribe operates a fully functioning government that provides housing, health care, judicial and other services to its citizens, the decision read.

Even so, if Congress didn't want the tribe to benefit from federal Indian laws, such as IGRA, it could have done so in the land claim settlement. Since that didn't happen, there is no reason why the tribe can't engage in gaming on its homeland, the court determined.

The Massachusetts Indian Land Claims Settlement Act, which became law in 1987, "merely grants Massachusetts jurisdiction over gaming, Torruella wrote in the decision. "And, as the tribe points out, even Massachusetts law does not prohibit gaming altogether. Rather, it merely regulates such gaming."

The clay cliffs in Aquinnah, Massachusetts, the home of the Aquinnah Wampanoag Tribe. Photo: Jens Dahlin

The last finding appears significant in that similar language is found in the U.S. Supreme Court decision in California v. Cabazon Band of Mission Indians. The landmark ruling opened the door to IGRA, which became law in 1988, a year after the land claim settlement.

Indian gaming has since grown into a $27 billion industry. and the Wampanoags now stand poised to exercise a right enjoyed by almost all of their fellow tribes across the nation. And even though it took more than three years for the courts to rule on the matter, it appears the tribe will indeed be the "first to game" in Massachusetts, as a press release boasted back in November 2013.

The tribe announced the decision earlier on Tuesday and Chairwoman Cheryl Andrews-Maltais is expected to issue a statement later in the day. She has been a champion of gaming and serves on the tribe's nascent gaming corporation.

Plans call for a facility in the town of Aquinnah, where the tribe's headquarters are located, that offers Class II games like bingo and electronic forms of bingo. The tribe had been converting a community building for the project until a federal judge halted the effort at the request of the state and the town.

While the 1st Circuit has completely reversed the lower court's ruling, the state and the town could ask for a rehearing. They also could ask the Supreme Court -- which has historically been averse to Indian gaming cases since 1988 -- to take up the matter.

But taking that path would expose the conflicts in the state's treatment of its first inhabitants. The state willingly negotiated a Class III gaming compact with the Mashpee Wampanoag Tribe while refusing to do the same for the Aquinnah Wampanoag Tribe.

The Mashpees are now stuck in limbo as their $1 billion First Light Resort and Casino faces its own legal challenges. Opponents are fighting the establishment of the tribe's reservation -- an appeal is pending in the 1st Circuit as well.

The Aquinnah Wampanoag Tribe, on the other hand, already has a reservation, on the island of Martha's Vineyard. The 1st Circuit's ruling means the state might not be able to refuse negotiations for more lucrative Class III games like slot machines and blackjack.

Andrews-Maltais, in fact, had asked the state to come to the table during her prior term as chair of the tribe. After leaving the reservation for a job in the Obama administration, she was returned to the position last November.

Turtle Talk has posted briefs from the case Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah).

1st Circuit Court of Appeals Decision:
Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) (April 11, 2017)