By Dennis J. Whittlesey

Just when the Wampanoag Tribe of Gay Head (Aquinnah) appeared to have finally overcome decades of legal and political problems in its quest to develop gaming, a new problem has arisen, and this one may well insure that there never will be an Aquinnah casino either on the mainland or the tribal lands within the Town of Aquinnah on Martha’s Vineyard. Tribal interest in a mainland project was universally opposed throughout Southeast Massachusetts, and any such plans previously appeared to have been dropped in favor of pursuing gaming on the Vineyard land.

The latest – and perhaps fatal – blow does not come from competitors or even the non-Indian population of the Vineyard that has voiced concerns about a project on the Tribe’s trust lands in the town. Rather, it is purely an intra-tribal development that likely will lead to an indefinite hold on all casino discussion.

The new problem is the product of a tribal election conducted last month resulting in the pro-casino Chairman being defeated for reelection. The new Chairman is far from enthusiastic about development of a gaming facility, and there now are questions as to whether the entire casino proposal will merely be deferred or cancelled outright. In any event, the vote followed pronouncements of opposition at both the local and state level, the latter of which comes directly from the office of Governor Deval Patrick, who has stated that the Tribe forfeited all tribal gaming rights over 20 years ago. The Governor’s conclusion is shared by the Aquinnah Board of Selectman and Town Counsel.

The effort to establish an economic engine for the Gay Head Tribe is decades old and began some 15 years before the federal government’s formal federal recognition of the Tribe, when tribal members formed the Wampanoag Tribal Council of Gay Head, Inc. for the purposes of “cultural preservation and political self-determination.” Recognition in April 1987 was part of a comprehensive resolution of tribal land aboriginal claims and attempts to secure federal recognition that was memorialized in the Joint Memorandum of Understanding executed on November 22, 1983, for the purpose of settling tribal land claims. Signatories were the Tribe, the Town, and the Commonwealth of Massachusetts.

The Joint Memorandum settlement was implemented in major part by Congressional enactment of The Massachusetts Indian Land Claim Settlement Act of August 18, 1987. The current debate about Gay Head gaming entitlement will turn on the provisions of the federal Settlement Act read in context with the federal Indian Gaming Regulatory Act of 1988 (“IGRA”), and legal counsel for the Town and the Commonwealth contend that IGRA cannot legalize tribal gaming. In the words of the Governor’s legal counsel, Kate Cook, the 1987 Settlement Act, and the related settlement agreement, “acknowledges, preserves and protects the Commonwealth’s authority to regulate gaming both on the Aquinnah’s land in Gay Head and on any [other tribal]…land within Massachusetts.”

In contrast, the federal government has sided with the Tribe and reached an entirely different legal conclusion. Indeed, the debate was energized on August 29 with federal approval of a site-specific tribal gaming ordinance approving gaming on tribal lands within the town. In addition, the federal support for the project was reinforced on October 25 when the National Indian Gaming Commission’s Acting General Counsel Eric Shepard propounded an opinion unequivocally declaring that the Tribe has a right under IGRA to conduct the gaming on the Gay Head lands. That opinion cited other federal legal determinations, including the conclusion that IGRA “implicitly” repealed any provisions of the federal Settlement Act that are “repugnant to IGRA.”

With this, the battle lines were clearly drawn with both the Commonwealth and Town Board of Selectmen openly threatening litigation to stop any tribal gaming operations. The confrontations seemed inevitable until last month’s tribal election in which Tribal Chair Cheryl Andrews-Maltais was defeated for reelection by Tobias Vanderhoop whose rhetoric on gaming was decidedly more low-key than that of his predecessor who aggressively pursued tribal casino development. During the closing days of the election campaign, Vanderhoop stated in an interview that he favors a “gaming initiative” for tribal members only after they have defined “what is appropriate” and following a public in-depth discussion within the tribal community. This low-key rhetoric seems to signal a “go slow” approach.

In any event, the new Chairman clearly has backed away from the full-court press favored by his predecessor. Whether the delay in casino planning is merely temporary remains to be seen. However, the fact is that Aquinnah is facing certain legal challenges to any gaming development within the state, a factor that surely will hamper tribal efforts to contract with developers and secure financing for a casino project. In light of the unresolved difficulties faced by the Tribe, this retreat could become permanent.