US appeals court rules for proposed casino on Martha’s Vineyard

Aquinnah, MA - 9/17/2015: On Martha's Vineyard at Aquinnah ....... Aquinnah Wampanoag Tribal properties at Menemsha Pond. The odyssey of the Aquinnah, who once swore off a casino in return for their ancestral lands, but now want both. (David L Ryan/Globe Staff Photo) SECTION: METRO TOPIC xxaquinnah
David L. Ryan/Globe Staff/file 2015
State and town officials had asserted that the land settlement deal signed by the Aquinnah plainly prohibited a tribal casino, no matter what laws Congress later approved.

A federal appeals court has ruled in favor of a longstanding bid by the Aquinnah Wampanoags to open a casino on Martha’s Vineyard, unanimously overturning a 2015 decision and handing the tribe a major victory.

A lower court had held that the federally recognized tribe had not exercised sufficient “actual manifestations” of government authority to claim the right to open a casino. But on Monday, the First Circuit Court of Appeals in Boston reversed that ruling, noting that the tribe had entered into several intergovernmental agreements, passed numerous ordinances, and employed a judge.

In blunt language, the three-member court ruled that the Aquinnah’s status as a functioning tribe was clear and “need not detain us” for long. Tribal leaders hailed the ruling as “exactly on point.”


“We are simply thrilled with” the court decision, tribal chairwoman Cheryl Andrews-Maltais said in a statement. “Hopefully this decision will help people better understand the responsibilities, rights and privileges of our tribe.”

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The decision “solidifies our place in the gaming market,” she said.

But for residents who considered the casino a lost cause after the 2015 ruling, the decision came as a shock.

“That’s really surprising,” said John Tiernan, a local business owner. “Ever since the tribe lost in court two years ago, everyone counted them out. I certainly did.”

Tribal leaders want to build a casino with 300 slot machines on the western tip of the island, saying it could earn close to $5 million a year. Residents have long opposed the plan as a potential blight, and filed a lawsuit to stop it. The Town of Aquinnah and the state joined the suit.


Ronald Rappaport, a lawyer for the town, said he plans to meet with the Board of Selectmen this week to determine how to proceed.

“I still think our position is the correct one, and we’ll explore where we go from here,” he said.

The town could seek review from a larger appeals court panel or the US Supreme Court.

But Dennis Whittlesey, a Washington, D.C., lawyer with extensive experience with Native American legal issues, said the appeals court ruling is likely to stand.

“The odds are this is final,” he said, noting the Supreme Court agrees to review only a handful of the hundreds of requests it receives.


The ruling brings a new wrinkle to the state’s fledging casino industry. When Massachusetts lawmakers passed the casino law in 2011, they considered the Aquinnah legally disqualified from seeking a license, citing a deal the tribe struck with the state and town in the 1980s.

At that time, the tribe had sued for the return of a large tract of its ancestral tribal lands, claiming they had been wrongly taken. In the settlement, the tribe received almost 500 acres, along with federal recognition as a tribe. But the tribe also agreed to abide by state and local laws that “prohibit or regulate the conduct of bingo or any other game of chance.”

That agreement, with its explicit casino prohibition, was enacted into law by Congress. But the appeals court brushed it aside, saying it became void when Congress later passed a comprehensive measure specifically recognizing the rights of hundreds of tribes such as the Aquinnah to operate casinos on reservations, free from state interference.

State and town officials had asserted that the land settlement deal signed by the Aquinnah plainly prohibited a tribal casino, no matter what laws Congress later approved. But the appeals courts held that when two federal laws conflict, as in this case, the more recent legislation serves “as a substitute for the first act.”

Under federal law, tribes can operate slots parlors — video bingo machines in this case — without a state’s blessing. That means the Aquinnah casino could operate outside the purview of the state’s Gaming Commission, which has received hundreds of millions of dollars for the licenses it has awarded to resort casinos in Springfield and Everett.

Plainridge Park Casino, the state’s only operating casino, also paid a hefty sum for its license.

The state’s only other federally recognized tribe, the Cape Cod-based Mashpee Wampanoag, have plans for a $1 billion casino on reservation land in Taunton. But like the Aquinnah, the Mashpee have been slowed down in court, and put construction on hold.

Tiernan said he respects the tribe and wishes them well, but worries about problem gambling and added traffic.

“I don’t think a slot parlor will be a huge success on the island, but maybe I’m wrong,” he said. “Whatever happens, I can’t see the casino being big enough to change the character of the island.”

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