Updated 2:10 pm, May 8, 2011
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 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.
“I think it would have a negative impact on this community,” Mr. Newman said in a telephone conversation Tuesday. “It just would change the tenor of this town. The ambience of the town would be changed. You don’t think of Aquinnah as being a mini-Atlantic City.”
Selectman Beverly Wright expressed similar concerns. She said the proposal could threaten the small town atmosphere in Aquinnah, “where we know everyone.”
Ms. Wright was chairman of the Wampanoag tribe for five terms, from 1992 to 2004, and she began the tribe’s effort to build a casino, at a time when the state’s political climate was less favorable to gaming.
“I have always been in favor of our tribe to game in Massachusetts, but never to game on Martha’s Vineyard,” selectman Wright said.
She said the board would discuss the issue, “if it comes to fruition. I think that is a matter of debate, whether it is going to come to fruition.”
Change in character
The vote Sunday occurred at a special, general membership meeting, preceded by no announcement about Class II gaming proposals.
Jim McManus of Slowey/McManus Communications, the tribe’s Boston public relations firm, told The Times in a telephone call Tuesday that the meeting was called to introduce members of the tribe’s gaming team to the tribal council.
The attendees included representatives of KMD Consulting services of California, publically unveiled Monday as the tribe’s casino development partner.
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 21-10 with 7 abstentions, according to Mr. McManus, who attended the meeting. The vote came on a motion from the floor.
“It seemed like the right time,” Mr. McManus said. He added that the vote arose out of prior discussions about Class II gaming and the tribe’s various options.
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 are specific to the Cook Lands, approximately 10 acres surrounding the Herring Creek, and do not apply to the tribe’s 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.
Gaming trumps act
For now, the Aquinnah tribe appears firmly focused on the mainland. This week, the tribe and its team held meet and greet sessions in the towns of Lakeville and Freetown, where it wants develop a casino on land straddling the two towns. The tribe also has its eye on property in Fall River.
But first it must gain the approval of the host communities, outmaneuver the Mashpee Aquinnah and overcome the legal view, outlined by Mr. Rappaport and shared by Governor Patrick, that the Settlement Act precludes the Wampanoag tribe from exercising its rights to game, on the mainland or in Aquinnah.
Lawyer Scott Crowell of the Crowell law office’s Tribal Advocacy Group, based in Spokane, Washington, represents the tribe.
In a telephone conversation Tuesday from his home in Sedona, Arizona, Mr. Crowell said that Mr. Rappaport’s opinion relied heavily on a decision that found the the construction of a shed on tribal property violated the [Settlement] Act and a September 5, 1997 letter from the Department of the Interior that answered the question of whether the tribe would be eligible to construct a Class II gaming facility in Fall River, if the federal government agreed to take the land into trust for the tribe. The department said the tribe would be eligible.
“Our position is that the Indian Gaming Regulatory Act (IGRA) supersedes the Settlement Act, as it relates to any gaming activity by the tribe,” he said. “To the extent that something is not related to the gaming operation, then the Settlement Act would still be viable law. And for him [Mr. Rappaport] to conflate a non-gaming related case to the issue of the tribe’s jurisdiction over gaming is just inappropriate and wrong.”
Mr. Crowell said the Department of the Interior letter said exactly the opposite of what Mr. Rappaport claimed.
“The Department of Interior letter correctly laid out the factual history of what the tribe had done, in terms of entering into the Settlement Act, but then he takes that statement of history and says therefore the department concluded that state law would govern lands in trust on the Island, and that’s just totally disingenuous. It’s not what the letter said, and if you take the analysis of the letter and apply it to the Aquinnah lands, it comes to the same conclusion. The Indian Gaming Regulatory Act trumps any prior grants of state jurisdiction over indian lands, as it relates to 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 requirements.
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.
Contractor Mike Sullivan told The Times he has been in discussion with the tribe since last year about how to complete the building. Work began last October. Last week, the community center was in the process of being shingled.
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.”