This has been a week of celebration and pride for the Wampanoag Tribe of Gay Head (Aquinnah).
It began on Monday, when close to 200 tribal members and others gathered at Felix Neck Sanctuary for Indigenous Peoples’ Day, an event filled with songs, drumming, games and compelling, sometimes fiery speeches.
Then on Tuesday, elders and children alike celebrated the tribe’s most important holiday, Cranberry Day, an annual rite that dates back centuries. Tribal members fanned out into the bogs to harvest wild cranberries — sasumuneash in Wampanoag.
Yet still looming large over the tribe’s immediate future is the fate of a vacant parcel near its tribal headquarters, the proposed site for a 10,000-square-foot electronic bingo parlor. Work on the site was halted by court order two years ago over the tribe’s refusal to seek local building permits. Its appeals have been exhausted and the court order remains in place, leaving the tribe with a stark choice, according to lawyers representing the town: Either comply with local building permit requirements or scrap plans to construct the gaming facility.
“And now it’s up to the tribe,” said William M. Jay, a lawyer with the firm of Goodwin Procter who argued the town’s case before the U.S. First Circuit Court of Appeals. “In each of the filings that the town has made in court, the town has said it values its relationship with the tribe and with the tribe’s members and that it hopes that the tribe will choose cooperation over litigation. Now the litigation is over.”
The tribe’s deadline to ask the U.S. Supreme Court to intervene passed quietly around Labor Day. It’s unclear whether the tribe will seek the permits to resume the project; there has been no announcement to its members or the general public about its plans. And town officials said they have yet to receive a request to start the permitting process.
At press time Thursday, phone messages and emails to tribal chairman Cheryl Andrews-Maltais and two of the lawyers who represented the tribe in court, Scott Crowell and Lael Echo-Hawk, had gone unanswered. The Gazette emailed questions to Ms. Andrews-Maltais at noontime Wednesday, but her administrative assistant said the chairman would not have time to reply by deadline.
The proposed gaming facility has served as a bit of a Rorschach test for tribe members and town residents, representing something different depending on who’s looking: a potential engine for economic development that’s sorely lacking in Aquinnah, say tribal leaders and many members; or a violation of the character and natural beauty of the Vineyard’s smallest town at the westernmost tip of the Island, say many town residents and tribe members.
While tribe members are split over the merits of such a facility on the Island — many who live on the Island oppose the project — there appears to be more solidarity around the principle of the tribe’s sovereignty to make its own decisions. Even many members who oppose the casino nevertheless insist it is the tribe’s choice — and no one else’s — whether or not to build it.
The First Circuit resolved that particular issue in 2017 when it came to gaming, siding with the tribe’s right to build a Class II gambling facility. But hold on, the courts seemed to say, when the tribe announced plans to actually build it in 2019: when it comes to the construction itself, the tribe must seek local building permits.
The legal fight over the gambling facility and other local restrictions on the tribe have fueled frustration and resentment among many members whose ancestors predated Europeans on Martha’s Vineyard by more than 10,000 years, still feeling the sting of disenfranchisement. At Monday’s Indigenous Peoples’ event, that resentment surfaced on several occasions.
“Any time we got to build we still got to ask the town of Aquinnah,” tribal member Durwood (Woody) Vanderhoop told a sympathetic crowd. “What is that?”
“We’re still under the United States, we’re still under a local township that is really not very friendly,” he added. “Half the time [since] we have been federally recognized we’re in litigation with the town. All that [does] is make lots of lawyers rich and well fed.
“We need the understanding of the greater community, that all most of us are looking for is to be able to survive, to be able to pass along a little bit to our kids here, to be able to be out here in our native homelands,” he said.
Whether or not the tribe ultimately seeks building permits, lines of communication between town government and tribal leadership recently have, at best, crackled with static or been silent altogether.
Jim Newman, who was a select board member for 18 years before retiring earlier this year, recalls that when the courts found for the tribe’s right to conduct gaming, town officials sat down with tribal leaders and said, “We want to work with you. What can we do to cooperate?”
The town was concerned about the ability of police and emergency services to handle any issues at the gaming facility. After that, requests from the select board to meet went unanswered, Mr. Newman and other town officials said.
“The town doesn’t want to necessarily tie the tribe’s hands, but we would like a mutual communication on what is going to happen with the lands,” said Juli Vanderhoop, who is both a tribal member and select board member.
Ms. Vanderhoop said she favors a change in tribal leadership, in part because of its lack of communication with the town — and its own members. For example, Ms. Vanderhoop said there was no discussion with members about clearing the parcel for the bingo parlor and tearing down a “structurally sound” house on the site, a particularly sensitive issue in a town with a dearth of affordable housing. Asked whether she has heard what tribal leadership plans to do at the site now, she responded simply:
“Nothing, nothing.”
Ms. Vanderhoop is skeptical that the gaming facility will ever get built, but she kept the door open for another use of the land, one she says town government would probably consider favorably.
“They could build a resort, a health and wellness resort, if they wanted to,” said Ms. Vanderhoop, tending to the outdoor pizza oven at her Orange Peel Bakery in Aquinnah. “And I’m pretty sure that the town would say, ‘That is something that would work on the Island.’”
She warned, however, that there would have to be substantial give and take on both sides. The town needs to understand that tribal members have moved off-Island as a matter of necessity, not by choice, deprived of opportunity, housing and their land, she said. And now the town needs to consider how to “repatriate” those tribal members, she added.
“With the right kind of development, we need to give a lot of slack to this tribal government,” she said. “They haven’t heard that because they have closed the door to the negotiations that we would like to have. We would like to mediate, we would like to partner. We would like to be an example for other communities that surround tribal governments.”
In its decision earlier this year, the First Circuit said nothing prevented the tribe from taking legal action if the town acted “in a non-neutral way in order to unduly burden or harass the [T]ribe or prevent them from opening the casino.”
Attorney Ronald H. Rappaport said in an interview that in his nearly 40 years as town counsel, the town has prided itself on cooperating with the tribe on the vast majority of issues.
“We recognize the tribe is a sovereign government, other than constrained by the Settlement Agreement,” Mr. Rappaport said, referring to a 1983 pact between the tribe and town that resolved land dispute claims. “We want to continue to treat them with respect as another government.”
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