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Judge denies Aquinnah bid for Vineyard casino

Aquinnah Wampanoag Tribal Chairman Tobias Vanderhoop at Aquinnah Wampanoag Tribal properties.David L Ryan/Globe Staff/Globe Staff

A federal judge on Friday rejected a bid by the Aquinnah Wampanoag Indians to open a casino on Martha's Vineyard, saying the tribe's failure to exercise self-governance disqualifies it from asserting rights to operate a gaming facility.

The ruling by Judge F. Dennis Saylor IV, widely anticipated by about 1,300 tribal members and their supporters and by those opposing a casino on the bucolic island, is a major defeat for the tribe, which had already begun converting a 6,500-square-foot community center on its reservation land into a casino.

Tobias Vanderhoop, the tribal chairman, said in an interview in September that the tribe wanted to be treated under the law like the hundreds of other tribes that have opened casinos in the last 25 years to help pay for programs and services for their people.


"We are not just some corporation" looking to capitalize on a casino, he said. "We are a sovereign tribal government."

Saylor's ruling in federal court in Boston focused on whether the tribe truly acted like a sovereign government, and the judge ultimately determined it had not.

After considering such factors as whether the tribe provided basic law enforcement and public safety services, Saylor concluded the Aquinnah failed to demonstrate "sufficient actual manifestations" of government authority.

The absence of such a demonstration, he wrote, meant that under the law "the tribe can not build a gaming facility on" its lands.

E-mails to Vanderhoop asking for comment on whether the tribe would appeal the decision were not answered on Friday evening, and telephone messages left with the tribe's lawyer and other tribal members were not immediately returned.

Saylor emphasized that his 40-page ruling was extremely narrow, and that other branches of government should grapple "with the broader issues underlying" the dispute over a casino.

"Whether an Indian tribe should be permitted to operate a casino on Martha's Vineyard is a matter of considerable public interest," he wrote. "This lawsuit is not, however, about the advisability of legalized gambling.


"Nor is it about the proper course of land development on Martha's Vineyard, or how best to preserve the unique environment and heritage of the island," he wrote. "And it is not about the appropriate future path of the Wampanoag people."

Answers to those questions must come through the passage of laws, not in judicial rulings, he wrote.

The tribe's ambition for a casino has gone mostly unnoticed in the state, while attention has focused on large resort casinos planned by industry behemoths Wynn Resorts and MGM Resorts, and by the Aquinnah's cousins, the Mashpee Wampanoag.

On Sept. 18, the Mashpee vaulted far ahead of the Aquinnah in the two tribes' pursuit of casinos when the federal Bureau of Indian Affairs gave final approval to the Mashpee to take control of the parcel of land in Taunton where it plans to build a $500 million resort casino.

The Aquinnah leaders have said a marketing study commissioned by the tribe shows that it could earn close to $5 million a year from a casino equipped with 300 slot machines. But Martha's Vineyard property owners who have long opposed a casino went to court to block the tribe.

The dispute over the extent of the Aquinnah's rights dates back to the 1980s, when the tribe negotiated a settlement with landowners for the return of hundreds of acres they claimed had been taken from them by force or subterfuge by settlers and their descendents.


In return, the Aquinnah, then landless and unrecognized as a tribe by the federal government, agreed to abide by state and local laws that "prohibit or regulate the conduct of bingo or any other game of chance." That phrase became the rallying cry of forces aligned against the tribal casino, including Attorney General Maura Healey.

Congress ratified the settlement in 1987, and in doing so granted the tribe the status of a sovereign nation with the right to govern themselves on their lands.

A year later, Congress passed comprehensive regulations about what federally recognized tribes could do on their lands that have been since interpreted to mean they could operate casinos without state or local interference.

Lawyers for the tribe have argued that the 1988 Congressional enactment superceded the previous year's settlement, making it -- and its promise not to open a casino -- null and void.

But Saylor ruled that the 1988 Congressional enactment known as the Indian Gaming Regulatory Act did not apply to the tribe because it applied only to tribes exercising governmental powers on their reservation land. He wrote that without the 1988 act being applied, the tribe had to abide by the more restrictive settlement.

"Although the tribe asserts that it is 'responsible for' providing" such services as health care, job training, education and community services "it provides little evidence of actually providing those services," Saylor wrote.


Healey, in a statement, lauded the decision.

"We think the judge got it right and we appreciate his thoughtful, careful ruling," Healey said.

John Tiernan, a hotel owner in Oak Bluffs, agreed.

"I think the court made the right decision," he said. "We are not going to feel like we're missing anything on the island because there's no casino."

Sean P. Murphy can be reached at Follow him on Twitter @spmurphyboston.