The only real surprise in the announcement from tribal chairman Cheryl Andrews-Maltais this week that the Wampanoag Tribe of Gay Head (Aquinnah) intends to move forward with gaming on the Vineyard was in the way the news was delivered.
The chairman has been claiming for more than a year that the tribe has the right to conduct what is known as Class II gaming on tribal lands without the approval of the state, under a section of the Indian Gaming Rights Act of 1988 that is different from the one at play with the Mashpee Wampanoags’ proposed mainland casino. The Gazette reported a year ago that work had quietly begun on the tribe’s unfinished community center in Aquinnah to turn it into a glorified bingo hall.
The development on Tuesday was that Mrs. Andrews-Maltais has some support for her view from the National Indian Gaming Commission, an independent federal agency that regulates Indian gaming. In a story published online Tuesday morning by the Boston Globe, the tribal chairman referred to a letter opinion dated October twenty fifth from the acting general counsel of the NIGC offering the view that the tribe was not bound by a 1983 settlement agreement with the town of Aquinnah.
Town and state officials have repeatedly contended that that agreement, settling longstanding land claims and leading to the Aquinnah tribe’s formal federal recognition, set limits on the tribe’s sovereignty, including its ability to conduct gaming. The agreement was tested in the Massachusetts Supreme Court nearly a decade ago. The state’s highest court found that on the subject of land use, the tribe had waived its sovereignty and was bound to follow state and local zoning laws under the terms of the agreement.
That there are two decidedly different views of this issue is par for the course in Indian gaming law, which has become a battleground nationwide for the many complicated questions around how much self-determination Indian tribes really have. Next month, the U.S. Supreme Court will take up a case involving a small tribe in Michigan that tried to open a casino. Though the specific issues are very different, the same broad questions of sovereignty are at issue.
Given the complexity of the issues and the likelihood of a legal challenge if the tribe actually tries to open a gaming facility, it seems highly unlikely that high-stakes bingo will come to the Vineyard anytime soon.
Though we dislike the idea of gambling, especially on the Vineyard, we have some sympathy for the tribe’s longheld desire to find its own engine for economic development. The tribe has been trying unsuccessfully over many years to get into the casino business.
Most recently, the Aquinnah tribe was shut out by Gov. Deval Patrick in favor of its sister tribe, the Mashpee Wampanoags, for the one of three authorized state casino licenses promised to an Indian tribe. The Aquinnah Wampanoags had a proposal to build a casino on a five hundred and fifteen-acre parcel of land in Freetown and Lakeview, but the governor refused to negotiate with the Vineyard tribe based on the 1983 settlement agreement.
Perhaps Mrs. Andrews-Maltais honestly believes the tribe has no alternative but to take a bold step and see what transpires. But her abrupt disclosure in the media of a letter dated more than two weeks ago came just five days before she faces a tough re-election battle against former tribal administrator Tobias Vanderhoop.
Tribal members have a clear choice in this election and we will be watching to see how they react.