The Aquinnah Wampanoag Tribe plans to convert an unfinished community center in Aquinnah, Massachusetts, into a gaming facility. Photo courtesy Wampanoag Tribe of Gay Head (Aquinnah)

Litigation

Aquinnah Wampanoag Tribe awaits answer from Supreme Court in sovereignty case

Tuesday, November 28, 2017

Except for some dissenting drama and one beefy-ish case that is looking favorable for tribal interests, the U.S. Supreme Court has been relatively quiet for Indian Country so far.

The Aquinnah Wampanoag Tribe is hoping it stays that way. As the justices debate whether to hear a case affecting its sovereign rights, the tribe is hoping to move forward with plans for a long-awaited casino on its reservation in Massachusetts.

Efforts took a major step forward when the 1st Circuit Court of Appeals in April confirmed that the tribe can use its own lands for a modest gaming facility. The unanimous decision put the Aquinnah people on the same footing as nearly every other Indian nation.

"We need to be able to chart our own course and land is one of the major components of who we are," Chairwoman Cheryl Andrews-Maltais told a senior Trump administration official at the National Congress of American Indians annual convention last month.

But state and local opponents are trying to overturn the victory. They have asked the Supreme Court to prevent the tribe from following the Indian Gaming Regulatory Act, a federal law that has helped countless other governments in Indian Country chart new futures.

Indianz.Com on SoundCloud: 1st Circuit Court of Appeals oral arguments in Commonwealth of Massachusetts v Wampanoag Tribe of Gay Head December 6, 2016

"Particularly in a case implicating such important sovereign interests, this court should grant certiorari to resolve this conflict," Massachusetts attorney general Maura Healey (D) wrote in the state's opening brief for the petition in Massachusetts v. Wampanoag Tribe of Gay Head

The tribe responded with a brief on November 6 and Andrews-Maltais reiterated her offer to work, on a government-to-government basis, with the state and the town of Aquinanh on issues surrounding the gaming project. The town is responsible for the second petition in the case, Town of Aquinnah v. Wampanoag Tribe of Gay Head.

The state and the town haven't officially accepted the offer. They submitted their final replies on November 20 and the Supreme Court has scheduled a closed-door conference on December 8 to consider both petitions.

An announcement from the court, on whether the justices will hear the case or not, is expected sometime after that conference.

Andrews-Maltais believes both will be rejected. "Once the petitions are denied, we hope the commonwealth and the town will take the tribe up on its longstanding offers to coordinate efforts between our governments so that the entire community will benefit from the tribe's economic development activities," she said.

Cheryl Andrews-Maltais serves as chairwoman of the Aquinnah Wampanoag Tribe. Photo: Senate Committee on Indian Affairs

The tribe is planning to open the casino in an unfinished community center in Aquinnah, its headquarters on the island of Martha's Vineyard. The facility would only be able to offer Class II games like bingo and electronic versions of bingo because the state refuses to negotiate a Class III agreement for more lucrative slot machines, card games and similar offerings.

The state didn't take the same position with respect to the Mashpee Wampanoag Tribe, whose headquarters are on the mainland. A gaming compact the two parties negotiated requires the tribe to share 21 percent of Class III revenues with the state.

The Mashpees, however, have yet to open their long-awaited First Light Resort and Casino due to litigation from local opponents. The Trump administration was on the verge of siding with those opponents but has not made a final decision on the tribe's land-into-trust application for the project despite calls to President Donald Trump to live up to the sentiments in his first-ever proclamation for National Native American Heritage Month.

"A great nation keeps its word, and this administration will continue to uphold and defend its responsibilities to American Indians and Alaska Natives," Trump stated in the proclamation.

With the Mashpee project in limbo, the Aquinnah may end up being the "first to game" in Massachusetts, as a press release boasted four years ago this month. The last legal hurdle is clearing the two petitions before the Supreme Court.

The Supreme Court's current term, which began in October, has been mostly uneventful for tribal interests. The sole Indian law case accepted by the justices is Patchak v. Zinke, which was heard on November 7. The outcome will determine whether Congress can protect a Michigan tribe's already-operating casino from litigation.

1st Circuit Court of Appeals Decision:
Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) (April 11, 2017)