The land also qualifies under the Department of the Interior’s regulations for “Gaming on
Trust Lands Acquired After October 17, 1988,”'? which implement the IGRA exceptions, including
the land claim settlement exception. Section 292.5 of the regulations “contains criteria for meeting
the requirements of . . . the ‘settlement of a land claim’ exception.””° Pursuant to the regulation,
“[g]aming may occur on newly acquired lands if the land at issue is. . . [a]cquired under a settlement
ofa land claim that resolves or extinguishes with finality the tribe’s land claim in whole or in part,
thereby resulting in the alienation or loss of possession of some or all of the lands claimed by the
tribe, in legislation enacted by Congress.””!

Here, the Tribe’s land was acquired pursuant to settlement of its land claim against the State
of Massachusetts and the Town of Gay Head,” and the settlement agreement was ratified by the
United States Congress in the Settlement Act.” The Settlement Act specifies the lands to be taken
into trust as part of the settlement agreement, which are the same as those specified by the Tribe in its
ordinance amendment.” Finally, the Settlement Act extinguishes the Tribe’s land claim with
finality.?> Accordingly, the land qualifies for the exception as required by the regulations.

In conclusion, because the Tribe possesses sufficient legal jurisdiction over its settlement
lands, IGRA applies to them. Further, because the lands qualify as Indian lands under IGRA and the
lands satisfy the settlement of a land claim exception to Section 2719, the lands are eligible for
gaming under the Act.

If you have any further questions, please don’t hesitate to contact the NIGC Acting Associate
General Counsel, Michael Hoenig.

Sincerely,

SO

Eric Shepard
Acting General Counsel

"925 C.F.R. Part 292.

2095 CFR. § 292.5.

2115 CER. § 292.5(a).

22 Joint Memorandum of Understanding Concerning Settlement of the Gay Head Massachusetts Indian Land
Claims, § 4.

% 25 U.S.C. § 1771.

495 U.S.C. § 17714.

525 U.S.C. § 1771b.


as part of this legal opinion. ° In that regard, because the Secretary of the Interior administers land
claim settlement acts,'° the NIGC Office of General Counsel requested the Solicitor’s Office’s legal
opinion as to whether the Settlement Act prohibits IGRA’s application to the lands. The Solicitor’s
Office provided an opinion on August 23, 2013, that it does not.'' Specifically, the Solicitor’s Office
opined that the Tribe possesses sufficient legal jurisdiction over its settlement lands for IGRA to
apply and, if the land qualifies as Indian lands, IGRA impliedly repeals the portions of the Settlement
Act repugnant to IGRA." Therefore, the only remaining questions are whether those lands qualify as
Indian lands as defined in IGRA and whether they are eligible for gaming under the Act.

Indian Lands

GRA defines Indian lands to include trust land over which a tribe exercises governmental
power.'? The land specified in the Tribe’s ordinance amendment was taken into trust by the
Department of the Interior on December 21, 1988, and March 2, 1993." As discussed in the
Solicitor’s Office’s August 23, 2013 opinion, the tribal government “is responsible for providing a
full range of services to the Tribe’s members, including education, health and recreation, public
safety and law enforcement, public utilities, natural resources management, economic development,
and community assistance.” Many of these services are provided on the Tribe’s land on Martha’s
Vineyard, including its trust lands. '° The Tribe therefore exercises governmental power over the
land. Accordingly, the settlement lands qualify as Indian lands as defined by IGRA.

Land Claim Exception

The determination of whether the land specified in the ordinance amendment constitutes
Indian lands, however, is not the end of the inquiry. Section 2719 of IGRA generally prohibits
gaming on lands acquired in trust after October 17, 1988, unless certain exceptions apply. Because
the Tribe’s settlement lands were taken into trust in December of 1988 and in 1993, the issue is
whether section 2719 prohibits the Tribe from gaming on the parcels.

One of the enumerated exceptions from IGRA’s general prohibition is for land that was taken
into trust as part of a land claim settlement.'® As the settlement lands were taken into trust as part of
the Tribe’s land claim Settlement Act,” the land qualifies for the exception and the Tribe may
operate Class II gaming pursuant to IGRA.'®

°25 U.S.C. §§ 177le, 17713.
Ld Passamaquoddy Tribe v. Maine 75 F.3d 784, 794 (Ist Cir. 1994) (“Deference is appropriate under Chevron only
when an agency interprets a statute that it administers. Here, the question of the Gaming Act’s applicability cannot
be addressed in a vacuum, and the [NIGC], whatever else might be its prerogatives, does not administer the
Settlement Act. That role belongs to the Secretary of the Interior ....”)
"' Letter from Michael Berrigan to Jo-Ann Shyloski of 8/23/2013.
? Id.
B 124 US.C. § 2703(4).

* See Trust deeds of 12/21/1988 and 3/2/1993.
'S Letter from Lael Echo-Hawk to Michael Hoenig of 5/23/2012 at 2.
'® 25 U.S.C. § 2719(b)(1)(B)(i).
"25 U.S.C. §§ 177la, 1771b, & 17714.
'® Although the Tribe’s gaming Ordinance is limited to Class I and Class II gaming, the land is also eligible for
Class III gaming should the Tribe meet IGRA’s prerequisites to do so.


October 25, 2013

The Honorable Cheryl Andrews-Maltais, Chairwoman
The Wampanoag Tribe of Gay Head (Aquinnah)

20 Black Brook Road

Aquinnah, MA 02535

Re: Wampanoag Tribe of Gay Head (Aquinnah) Settlement Lands
Dear Chairwoman Andrews-Maltais:

Thank you for your August 29, 2013 letter requesting a legal opinion as to whether certain
land held in trust on behalf of the Wampanoag Tribe of Gay Head (Aquinnah) is eligible for gaming
under the Indian Gaming Regulatory Act. Your request stems from the recent approval, by operation
of law, of the Tribe’s site specific gaming ordinance.' Because the ordinance was not acted upon
within 90 days of its submission to the NIGC, it is considered to have been approved by the Chair to
the extent that it is consistent with the provisions of IGRA.” You now request clarification as to
whether the Tribe’s definition of Indian lands is consistent with IGRA’s requirements. I have
reviewed your request and it is my opinion that the specified lands are Indian lands as defined by
IGRA and are eligible for gaming.

Background

The lands at issue are specified in the Tribe’s recent amendment to its Class II gaming
ordinance, which was approved by operation of law on August 28, 2013. The amended ordinance
defines Indian Lands as:

(1) "Indian Lands" means: all “Settlement Lands” as defined by the Massachusetts Indian
Land Claim Settlement Act, 25 U.S.C. § 1771 et seq., as the “private settlement lands”
described in paragraph 6 of the Joint Memorandum of Understanding Concerning Settlement
of the Gay Head, Massachusetts, Indian Land Claims executed on November 22. 1983
(“Settlement Agreement”) and “public settlement lands” described in paragraph 4 of the
Settlement Agreement as:

a. Public Settlement Lands: The Common Lands consisting of 238 acres (which include
the Cranberry Lands, the Face of the Cliffs, and the Herring Creek), including the
Menemsha Lands legally described as:

Parcel One: The Cranberry Lands

" See Letter from Acting General Counsel Eric Shepard to Chairwoman Cheryl Andrews-Maltais of Augsut 29, 2013
re: Wampanoag Tribe of Gay Head (Aquinnah) Gaming Ordinance Amendment.
725 US.C. § 2710(e).

NATIONAL HEADQUARTERS 144 NW, Suite 9100, Washington, DC 20005 Tel: 202.632.7003 Fax 202.632.7066 WWW.NIGC.cov

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK


These lands consist of the parcels shown on the Assessors Maps of the Town of Gay
Head, as those maps configured on the date of this deed (the “Assessors Maps”) as
follows: Map 3. Parcel 1 and Map 4, Parcel 63.

Parcel Two: The Face of the Cliffs

“The clay in the cliffs” as set forth in a set-off of the same dated December 21, 1878
in Dukes County Probate Court Proceedings Case No. DI-235, EXCEPTING AND
EXCLUDING all property shown as Lot A on a “Plan of Land in Gay Head, Mass.
Surveyed for Trustees of Aquinnah Realty Trust, June 8, 1989, scale 1 in.= 30 ft.,
Vineyard Haven Surveying, Box 1548, Beach Road, Vineyard Haven, MA 02568.”
and consisting of 504 Sq. Ft., which Plan is recorded in the Dukes County Registry of
Deeds as Gay Head Case File No. 85.

Parcel Four: The Herring Creek

Those rights reserved in a set off dated December 21, 1878 in Dukes County Probate
Proceeding Case No. DI-235, in the Herring Fishery, for the purpose of fishing and
clearing the creeks, a strip of land one rod wide on each side of the creek, so long as
the said reservation may be needed for that purpose. The approximate location of
Herring Creek is shown on Gay Head Assessor's Map 11. Said Creek runs through
Lots 381, 382, 383 and 384 on said Partition Plan, above mentioned and said Creek
also runs through The Cook Lands. which is Parcel Three, above mentioned.

Private Settlement Lands: The former Strock Estate consisting of three parcels of
about 175 acres legally described as “The land in Gay Head, Dukes County,
Massachusetts, shown as Lots 68, 71, 72, 73, 80, 86, 179, 246, 254, 294, 299, 300,
309, 316, 319, 324, and 325 on a “Plan of Gay Head Showing the Partition of the
Common Lands as Made by Joseph T. Pease and Richard L. Pease. Commissioners,
by John H. Millen, Civil Engineer on file with Dukes County Probate Court.”

(2) any lands title to which is held in trust by the United States for the benefit of the Tribe or
individual tribal member of the Tribe, or held by the Tribe or individual member of the Tribe
subject to restriction by the United States against alienation and over which the Tribe
exercises governmental power; and

(3) for all lands acquired into trust for the benefit of the Tribe after October 17, 1988,
lands that meet the requirements set forth in 25 U.S.C. § 2719”

Applicable Law

IGRA permits an Indian tribe to “engage in, or license and regulate, gaming on Indian lands
within such Tribe’s jurisdiction. The Act defines Indian lands to include trust land over which a
tribe exercises government authority.> However, IGRA also prohibits gaming on lands acquired into
trust after October 17, 1988, unless—

5 Resolution 2012-23 Identification of Indian Lands For the Purposes of the Wampanoag Tribe of Gay Head
(Aquinnah) Gaming Ordinance 2011-01.

“25 U.S.C. § 2710(b)(1).

°25 U.S.C. § 2703(4).


(1) such lands are located within or contiguous to the boundaries of the reservation of the Indian
tribe on Oct. 17, 1988; or

(2) the Indian tribe has no reservation on Oct. 17, 1988 and—
(A) such lands are located in Oklahoma and-
(i) are within the boundaries of the Indian tribe's former reservation, as defined
by the Secretary, or
(ii) are contiguous to other land held in trust or restricted status by the United
States for the Indian tribe in Oklahoma....°

IGRA also provides a number of exceptions to the after-acquired lands prohibition, including land
taken into trust as part of —

(i) a settlement of a land claim,

(ii) _ the initial reservation of an Indian tribe acknowledged by the Secretary
under the Federal acknowledgment process, or

(iii) the restoration of lands for an Indian tribe that is restored to Federal
recognition.”

Moreover, Department of the Interior regulations specify that for the settlement of a land
claim exception, gaming may occur on newly acquired lands if the land at issue is either:

(a) Acquired under a settlement of a land claim that resolves or extinguishes with
finality the tribe’s land claim in whole or in part, thereby resulting in the
alienation or loss of possession of some or all of the lands claimed by the
tribe, in legislation enacted by Congress; or

(b) Acquired under a settlement of a land claim that:

(1) Is executed by the parties, which includes the United States, returns to
the tribe all or part of the land claimed by the tribe, and resolves or
extinguishes with finality the claims regarding the returned land; or

(2) Is not executed by the United States, but is entered as a final order by
a court of competent jurisdiction or is an enforceable agreement that
in either case predates October 17, 1988 and resolves or extinguishes
with finality the land claim at issue.*

Analysis

As discussed in greater detail below, the lands specified in the amendment are Indian lands as
defined by the Indian Gaming Regulatory Act (“IGRA”) and are eligible for gaming under the Act.
However, because the lands are the subject of the Tribe’s Settlement Act, which both grants the
Commonwealth of Massachusetts jurisdiction over the settlement lands and limits the Tribe’s
authority to exercise its jurisdiction on the land, the Settlement Act must be taken into consideration

625 U.S.C. § 271%a).
725 U.S.C. § 2719(b)(1)(B).
525 CFR. § 292.5.