AP Photo/The Canadian Press, Ryan Remiorz
The Commonwealth of Massachusetts' lawsuit against the Aquinnah Wampanoag Tribe was filed by Attorney General Martha Coakley on behalf of Gov. Deval Patrick (pictured) in the state’s Supreme Judicial Court on December 2

Massachusetts Sues Aquinnah Wampanoag to Stop Class II Gaming

Gale Courey Toensing
12/5/13

The Commonwealth of Massachusetts has sued the Aquinnah Wampanoag Tribe to stop the tribe from operating a small Class II gaming facility on its island trust lands on Martha’s Vineyard.

The lawsuit was filed by Attorney General Martha Coakley on behalf of Gov. Deval Patrick in the state’s Supreme Judicial Court on December 2, alleging a breach of contract of the 1983 Settlement Agreement among the tribe, the state, the Town of Aquinnah and the Taxpayers’ Association of Gay Head, Inc., and seeking a declaratory judgment to stop the tribe from moving forward with its gaming plan.

The suit was filed in reaction to an opinion from the National Indian Gaming Commission (NIGC) to Aquinnah Chairwoman Cheryl Andrews-Maltais October 25, affirming the tribe’s right to operate gaming on its settlement lands under the Indian Gaming Regulatory Act and approval of the tribe’s amended gaming ordinance. Andrews-Maltais announced last month that the tribe would move forward quickly to convert an unfinished community center in Aquinnah into a temporary gaming facility.

RELATED: Aquinnah Wampanoag Tribe Gets Federal Approvals for Class II Gaming on Martha's Vineyard

“We’re still in the process of reviewing the complaint so I can’t comment on too much of the specifics but we’re confident that we’ll be able to defend our rights,´ Andrews-Maltais said. .  We’ve gone through a process to reaffirm our rights through IGRA and the NIGC and Interior have reaffirmed those rights. We have no intention of giving up our rights to game under federal law and we’ll continue to vigorously pursue and defend them.”

The lawsuit argues that the Aquinnah Wampanoag Tribe relinquished all rights to gaming when it entered into the 1983 land Settlement Agreement in which the tribe gave up its land claim lawsuit for 3,000 acres in exchange for more than 400 acres of land on Martha’s Vineyard.  The lawsuit says the tribe agreed that the land “would remain subject to the Commonwealth’s (and local) laws and jurisdiction . . . including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance." The lawsuit also asserts that the tribe is now subject to Massachusetts’ expanded gaming law of 2011 and to the authority of the newly created Massachusetts Gaming Commission, the only entity with the authority to issue a gaming license.

But two federal agencies affirm the tribe’s right to operate gaming on its settlement lands under IGRA.  The NIGC offered its approval of Aquinnah’s amended gaming ordinance after receiving an 18-page comprehensive opinion from the Interior Department’s Office of the Solicitor in late August. Among its analyses, the Interior Department cited a precedent-setting case—Rhode Island v. Narragansett—that set out a method for determining whether a tribe’s settlement act prohibited gaming.  In the 1994 case, the 1st Circuit Court  determined that the Narragansett Indian Tribe possessed the requisite jurisdiction for the IGRA to apply to its settlement lands  and that IGRA trumped the tribe’s Settlement Act by repealing portions of the Settlement Act that were “repugnant” to IGRA. (The ruling was later completely undermined when a Rhode Island congressman passed legislation specifically removed the Narragansett Tribe from IGRA.)
Matthew Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center at Michigan State University College of Law, said the agency opinions “are entitled to considerable weight. Perhaps that's why Massachusetts sued the tribe. If the tribe is lucky, the feds intervene and remove the case to federal court.”

The outcome of Michigan v. Bay Mills, now awaiting a Supreme Court ruling, will determine whether states suing tribes is a new trend. “If Michigan wins any part of the case—abrogation of tribal immunity or any of the other [provisions] – you can bet there will be a trend,” Fletcher said. “Right after the Supreme Court decided Nevada v. Hicks, which vaguely backed state law enforcement inside of Indian country, there was a rash of raids. Narragansett smoke shop, for example.”

RELATED: Bay Mills at Supreme Court; Tribal Sovereignty Under Trial

But a win by the Aquinnah Tribe could benefit the various east coast tribes that continue to struggle under restrictive settlement acts that prohibit them from benefitting from federal laws enjoyed by tribes all over the country, said an Indian law expert who asked not to be named. “The Aquinnah Wampanoag is one of several tribes that entered into flawed, one-sided agreement when they were at their weakest and most vulnerable,” he said, adding that it’s past time that those acts are revised.

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