The Wampanoag Tribe of Gay Head (Aquinnah) has raised the stakes in the casino race. Tribe members met Sunday and voted to use their long unfinished community center for Class II gaming. The decision places Martha’s Vineyard’s smallest town in the middle of the state’s gaming scrum.

Class II gaming encompasses high stakes bingo, poker, pull-tab cards and associated electronic games that do not require coin slots. Unlike class III gaming, which encompasses all types of gaming and requires a tribe-state agreement, tribes may regulate Class II gaming on their own lands without state authority, as long as the state in which the tribe is located permits that type of gaming.

The path to a Class II facility in Aquinnah runs smack into the 1983 Settlement Act, that led to federal recognition for the tribe. Governor Deval Patrick has taken the position that the tribe waived its rights to gaming.

Ultimately, the issue may rest on the ability of the tribe to comply with town zoning regulations. Last month, Jim Newman, chairman of the Aquinnah board of selectmen, requested a legal opinion from town counsel Ron Rappaport. In a seven-page opinion dated April 27, Mr. Rappaport said the Wampanoag Tribal Council of Gay Head Inc. cannot operate a gaming casino in Aquinnah.

Mr. Rappaport said the lands described in the Settlement Act are subject to the zoning regulations in effect at that time. “The town’s zoning bylaw, as of that date, does not allow a casino, gambling facility, or other gaming activities as permissible uses,” he said.

Should the tribe press ahead, the three member board of selectmen, which includes two tribe members, could face the question of whether to challenge the tribe’s actions in court.

Change in character

The vote Sunday occurred at a special general membership meeting, preceded by no announcement about Class II gaming proposals.

In a telephone conversation Monday, selectman Spencer Booker, a tribe member, said he attended the meeting. “It was by no means a unanimous vote,” Mr. Booker said.

The vote was 35-27, according to one source who asked not to be identified. The vote came on a motion from the floor.

Mr. Booker said there was a clear split between tribe members who live on the Island and those who do not. He said there was some some surprise that the vote, unanticipated, even occurred.

Mr. Booker questioned whether government grant restrictions would prevent the tribe from using the community center for gaming purposes.

“I think more homework needs to be done on the tribe’s part,” Mr. Booker said.

Mr. Booker said the tribe’s lawyer expressed the view that the Settlement Act, and the Massachusetts Supreme Court decision, is specific to the Cook Lands, approximately 10 acres surrounding the Herring Creek, and does not apply to the entire land base of 458 acres.

Mr. Booker, a resident with his family of tribe housing, said he is concerned about any proposal to site a gaming facility in the town that would lead to an influx of traffic and strangers. Mr. Booker said, speaking as a selectman, he is very concerned about the lasting impact on the town’s quality of life and character.

Community gaming

The building where the tribe would house a Class II gaming facility was built by the nation’s citizen soldiers. It has sat unfinished for more than eight years. The tribe, now engaged in a multimillion dollar casino effort, said it lacked the funds to complete it.

In the summer of 2004, two teams of Air Force reservists traveled from their home base, Tinker Air Force Base in Oklahoma City, Oklahoma, to Aquinnah to begin erecting the steel frame for a new community center building for the Wampanoag Tribe of Gay Head.

They were followed by members of the 908th civil engineering squadron, part of the Air Lift Wing based in Maxwell Air Force Base in Montgomery, Alabama. In all, over six weeks, three squadrons of approximately 20 reservists in civil engineering groups worked on the project.

For years, the 6,200-square-foot structure, erected at taxpayer expense, that was to include a gymnasium, kitchen facilities, and meeting space remained unfinished and open to the weather, despite an agreement under which the tribe was to complete the remaining 20 percent of the project.

At the time of the initial construction, the Air Force said it was not at liberty to provide information about the cost of the project. The U.S. Department of Housing and Urban Development gave a $500,000 grant. The Bureau of Indian Affairs added $200,000 for road work.

In November 2007, the Martha’s Vineyard Commission (MVC) held a formal review of the project — erected without going through the usual permitting process with any town, regional, or state authorities — in the aftermath of a Massachusetts Supreme Judicial Court ruling that the tribe is subject to local zoning procedures.

After meeting with the commissioners, associate planner Durwood Vanderhoop said the tribe hoped to complete the project by the fall of 2008. Mr. Vanderhoop estimated it would take $500,000 to $600,000 to complete the building that he estimated was 80 percent complete.

“We see it as a place that all of our people can gather, a central place of Wampanoag culture — a system that is constantly under stress,” Mr. Vanderhoop told the MVC members at the time.

Last week, the community center was in the process of being reshingled.

Stepping stone

Class II gaming could provide a fallback position for the Aquinnah tribe as it jockeys to be the first to cross the finish line in the race to secure one of the state’s three casino licenses, or goes to court to assert its rights to develop a mainland casino under the federal Indian Gaming Regulatory Act.

A story that appeared on October 4, 2011, “Legal Distinction Between Class II and III Gaming Causes Innovation, Anguish,” in the publication Indian Country Today, said that more than 20 years after the Indian Gaming Regulatory Act (IGRA) became federal law, “the three-tier class system it created is still evolving, often in ways that no one could have predicted.”

The story described how tribes that had been blocked in their efforts to build casinos had used the Class II category to their advantage. “When the Seminole tribe of Florida was embroiled in a long battle with the state to get a Class III contract until it finally won one in 2010, it was able to game the system, if you will—inventing and investing in technology that enabled the tribe to offer new ways to play Class II games,” the story reported. “In fact, the tribe’s entire Hard Rock group of casinos was populated by such games and continued until early 2010, when the tribe was finally able to secure a true compact from that state so they could have traditional slots.”

In many instances, the story reported, tribes developed innovative games “in order to compete financially with the non-Indian big boys.”

by Nelson Sigelman