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Casino bid may be bound for court

Aquinnah land deal could alter standing

By Mark Arsenault
Globe Staff / March 12, 2012
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The late bid by the Wampanoag Tribe of Gay Head-Aquinnah to enter the state’s casino sweepstakes is likely to end up before a judge over the question of whether the tribe has legal standing to pursue a gambling resort in Southeastern Massachusetts.

The thorniest legal issue appears to be whether the Aquinnah, as the tribe is commonly known, lost their rights to pursue tribal gambling when in the 1980s the tribe agreed to settle a longstanding land dispute. In exchange for land on Martha’s Vineyard, the tribe agreed its property would be subject to state law, according to legal observers, which may disqualify the Aquinnah from the federal process under which sovereign tribes can open casinos.

The Aquinnah dispute that interpretation and are pushing ahead.

“In the end, this is going to be an issue for the lawyers and the courts,’’ said state Senator Stanley Rosenberg, an Amherst Democrat and one of the architects of the 2011 legislation that legalized casino gambling in Massachusetts.

The Aquinnah, who gained federal recognition in 1987, are the second tribe to publicly declare its pursuit of a casino in the state’s southeast. The Mashpee Wampanoag, who have no similar restrictions on tribal land, have secured an option to buy land for a casino in Taunton.

State law authorizes up to one gambling resort in each of three regions in the state. The law delays bidding on any commercial casino in the southeast until at least August, to give a federally-recognized tribe, unspecified in the law, time to make progress on a tribal casino.

A tribal casino would have to be approved under the Indian Gaming Regulatory Act, a federal law that enables tribes to run casinos on their land. It is a separate approval process from that required of commercial casino operators under the state’s new casino law.

Until last week, it was largely presumed that the Mashpee Wampanoag would be the tribe to pursue a casino in the southeast part of the state. But then the Aquinnah, based on Martha’s Vineyard, launched their push, shocking officials in Fall River, Freetown, and Lakeville by asking each community to schedule a voter referendum on the question of hosting a tribal casino.

The tribe has secured options on land in each of those communities, according to James G. McManus, principal partner of Slowey/McManus Communications, which represents the tribe.

Lakeville Town Administrator Rita Garbitt said the tribe’s request, which came in a letter, promised that a casino would deliver “economic stimulus to the town’s economy.’’

“I think we were all surprised,’’ said Garbitt, who followed up by phone with the tribe’s chairwoman, Cheryl Andrews-Maltais, who would not disclose which parcels the tribe has under option.

Lakeville selectmen are scheduled to discuss the tribe’s overture at a public meeting Monday, but “without all the facts, especially the location, it’s hard to know what to say,’’ said Garbitt.

The tribe also sent a formal request to Governor Deval Patrick to negotiate a compact to govern the operating terms of a casino run by the Aquinnah. A compact, which would spell out how the casino would be regulated and what percentage of its revenue, if any, would go to the state, is a necessary step toward winning approval for a tribal casino under the federal law.

“The tribe is confident that we have a solid legal basis, under the new Massachusetts Gaming Act and the Indian Gaming Regulatory Act of 1988, for developing a casino,’’ said Andrews-Maltais, in a statement. “We are currently assembling a development team and we will have more information shortly. We are committed to pursuing every viable opportunity as we continue on our path of self-reliance.’’

The Patrick administration, which is expected to begin compact negotiations soon with the Mashpee Wampanoag, declined to comment on the request from the Aquinnah.

The initial legal obstacle for the Aquinnah would appear to be the settlement in the 1980s that provided the tribe its land on Martha’s Vineyard, said Clyde Barrow, a University of Massachusetts Dartmouth casino specialist. As part of the deal, which included money for tribal services, the Aquinnah agreed to abide by all state laws, he said.

“That sounded like a good deal at the time, because they got land and money and all they were agreeing to was something they were doing anyway,’’ said Barrow.

But shortly after the settlement, the federal Indian Gaming Regulatory Act of 1988 opened the door for federally recognized tribes to run casinos on tribal land. The state has maintained since the 1980s that the Aquinnah’s land settlement subjects the tribe to the same state gambling laws as any other landowner, and therefore the tribe cannot pursue a tribal casino.

In 1997, the state attorney general’s office produced a legal memo asserting: “The Settlement Act could not be clearer in preserving the Commonwealth’s authority to regulate or prohibit gambling both on tribal land in Gay Head and on any after-acquired site.’’

In 2004, the Massachusetts Supreme Judicial Court affirmed that the Aquinnah land was bound by state law, ruling that the tribe was subject to local zoning in a dispute over a shed erected without a permit. The Aquinnah had claimed that the tribe’s right to self-governance exempted it from municipal zoning.

The Aquinnah “basically waived their IGRA [Indian Gaming Regulatory Act] rights before they had them,’’ said Barrow.

The tribe disagrees. It says the federal statute permitting tribal casinos supersedes state gambling laws and gives the tribe rights to pursue a gambling resort, said McManus.

The Mashpee Wampanoag do not face a similar hurdle. Cedric Cromwell, chairman of the Mashpee Wampanoag, declined to comment on the Aquinnah’s plans. But in a statement, Cromwell said: “Like the Aquinnah, the Mashpee Wampanoag were offered a settlement back in the early 1980s in which we would have waived some of our sovereign rights in exchange for federal recognition. We refused to do this. We then endured a much longer and more arduous administrative recognition process, but we retained all of our sovereign rights. Those rights now include the right to conduct gaming on our initial reservation.’’

The Mashpee Wampanoag earned federal recognition in 2007.

Negotiating a compact with the governor is just one step in the federal tribal gambling approval process, and either tribe would still face other legal hurdles to developing a tribal casino.

Mark Arsenault can be reached at marsenault@globe.com. Follow him on Twitter @bostonglobemark

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