I have to admit....I needed to really think about it for a while...how could putting land into trust in the original thirteen colonies be legally considered unconstitutional? So of course I did what probably many of you did....I read the United States Constitution. From reading this document and the conclusions from the previous 2007 United States Court of Appeals Carcieri v. Kempthorne - this is what I can surmise....
Preamble to the United States Constitution
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Tenth Amendment states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Tenth Amendment of the Constitution clearly shows that the original thirteen States had carefully and resolutely reserved the majority of political power to themselves. The powers which they delegated to the Federal Government were limited and general in their character and the powers which the States reserved embraced their original and inalienable sovereignty. I think it is safe to argue that no State intended to surrender it's sovereignty when the Constitution was adopted. In fact, it was James Madison who pointed out the fact that "a delegated power is not a surrendered power."
Fisher Aimes, a founding father of our wonderful Country and the author of the First Amendment, made a statement regarding the protection of State Sovereignty: "...The State Governments represent the wishes and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights."
It is quite clear to me that the intent of the Tenth Amendment was to emphasize the limited nature of the powers that the original States so carefully and cautiously delegated to the Federal Government. In regards to the BIA taking land into trust in Massachusetts under the IGRA, it is critical to understand one very important fact of American history - the fact that the federal government was created by the original thirteen States. It is this fact and this amendment that makes the IGRA and the BIA placing land into trust without the State's permission unconstitutional.
Since Massachusetts wants to pass the resolution proclaiming its sovereignty, then it may claim exemption to the Federal IGRA mandates under the Tenth Amendment of the U.S. Constitution. The State is basically saying that the BIA cannot put land into trust and force Massachusetts into a compact with the Wamanoag Indian Tribe for gaming rights using the argument "It's a federal mandate. You have to do it".
The bottom line in my opinion is, the State isn't saying the Mashpee Wampanoag Indians can't have land into trust, or that they can't have gaming. What the State is saying is, if the Tribe wants to put land into trust for the sole purpose of gambling, then they should be required to follow State and Local laws regardling land use (zoning), taxation, labor laws, water and wastewater use, air quality standards, MA Wildlife regulations, as well as every single other State Law required by all businesses... and not hide behind the Federal Government's grant of sovereignty, left to do whatever they please.
- be the change you want to see in the world -
13 comments:
Good explanation of a complex topic. Well done as usual!
I wonder how Native American Indians that were displaced feel about this?
Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the exclusive authority to manage trade activities between the states and with foreign nations and Indian tribes. Courts and commentators have tended to discuss each of these three areas as a separate power granted to Congress. It is common to see the Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce Clause", each of which refers to the same single sentence in the constitution that covers all three.
How does this fit into your analysis (which is quite good, by the way)?
As usual, well researched and executed. Your work is helping us to save us from ourselves. Kudos.
mrlimo:
Somehow I doubt that your real concern is the displacement of Native Americans. You've made it obvious by everything you've written that your interests in the casino revolve around the survival of your business.
anonymous,
Article 1, section 8 is an interesting discussion in itself, and I was wondering if anyone would bring it up. Perhaps I will blog on it. But for now, in short and IMO, section 8 as originally written was for exclusive grants to Congress to have power over commerce and trade - it does not give the Federal Government the power of forcing States to give up land to another sovereign nation, or Indian Tribe with little or no say. It can be argued that the Federal Government has no right to force the original 13 States to put land into trust for Native Americans under the IGRA and use article 1, section 8 as a means to deny a State it's sovereign rights...it is an abuse of power on behalf of the Federal Government and was not the original intention of the artice. Article 1, section 8 is specifically in regards to trade and commerce between the States, foreign nations and the Indian Tribes, as recognized at the time (whole other issue) - it is not about forcing a State to give up its sovereignty and hand over land to an Indian Tribe and allow the land which is under control of the State (through commerce and taxes)to become a sovereign nation under Ferderal guise - The intent of the Constitution when written was this - under no circumstances should Federal Law trump State Law...it is unconstitutional as well as a whole other discussion.
The precise intent of Art. I,Sec.8 is to override state sovereignty, so that the federal government can have exclusive authority over certain things--such as foreign relations and relations with indians. It is precisely the issue, and your opinion, although well written, is not consistent with the Article I powers of Congress.
Additionally, the RI case that Coakley signed on for seems to have no impact on the Mashpee, as they are not a Tribe that is under any settlement act with Massachusetts. It may, however, limit the Gay Head. Also, while the meaning of NOW under IRA may have had some impact at some time, after the IGRA was enacted--with full knowledge of the existence of IRA--it seems that Congress clearly picked their direction with respect to the taking of land into trust. Otherwise, your interpretation would simply erase an entire statutory scheme created by Congress (which is not the way the rules of statutory interpretation work).
Although I can agree partially with your statement, I do not agree that the intent of article 8 was to overide state sovereignty. As I understand it, or interpret it is that the article was put in place for Congress to oversee relations, yes, but relations regarding commerce and trade. It is a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce - it is there to ensure free trade with other states, foreign nations and Indian Tribes. IMO, there is a big difference between rules regarding free trade and forcing a State to give up land and have no jurisdiction over it. In regards to powers of Congress, handing over land into trust decisions to the BIA is obviously another big issue and yes, IMO is unconstitutional. According to this section of article one, Congress - not Dick Kempthorne or the BIA has the power to regulate trade activities.
I do realize that the Mashpee Tribe is under no land settlement with the State, however, from what I have read, the lawsuit is in regards to Congress giving the BIA the power to make land into trust decisions as well as questions regarding the intend of the IGRA and specific wording in the reguation. The lawsuit challenges Tribes being able to become Federally recognized after this act was adopted. This lawsuit can affect the Mashpee tribe, depending on the ruling of the Supreme Court.
My first comment is to Mr. Limo. The Native American Indians that were displaced are no longer with us. Yes, we did them an injustice, no doubt about that. But you can't change history, so how many generations do you think should pay? Does giving the tribe a casino right the wrongs? And what about the Mashpee Indians? Mashpee was a praying community, and as such, it is obvious they embraced Christianity. That doesn't exactly sound like the settlers had an adversarial relationship with the Mashpee Indians now does it?
To Anonymous:
The Commerce Clause gives congress the right to manage trade between states and with foreign nations and Indian Tribes. Read that again. It says CONGRESS. The process we are talking about in Middleboro is the BIA/DOI taking the land into trust. Not CONGRESS, as Article I states. So if you are right, and Article I gives CONGRESS the right to take land into trust (and you seem to understand the law so well) doesn't it bother you that we are talking about a government agency doing what only CONGRESS has the right to do?
CONGRESS delegated the authority to take lands into trust for Indians to the Secretary of Interior in the Indian Reorganization Act of 1934. CONGRESS has plenary power regarding Indians and Indian tribes, leaving the States out of the mix (with the exception of the ability to appeal decision by the BIA). Since Congress has delegated the authority to the Secretary to do what the 1934 act proscribed there is left no claim that the BIA/Secretary is acting beyond their authority.
Adam, the States have not been left out of the mix regarding land trust. When a LIT application is submitted to the BIA, a notice is sent to the State and local governering body of the land to be taken. The State and local governments have the opportunity to comment on the application before a decision is made. Governor Patrick has opposed the LIT application and we already know what Middleboro did. Saying a State is left out of the mix is quite misleading and incorrect. Also, when land is to be taken into trust for the sole purpose of gaming, the State AND surrounding communities have a say in the decision process. May I suggest you read the BIA regulations regarding LIT decisions as well as the IGRA regs. It would be enlightening for you.
This blog is about the constitutional validity of circumventing a States sovereignty when making Trust decisions, and the power Congress has over States that existed before the Federal Government was even created. The BIA has no authority according to their own regulations to decide if land can be placed into trust for the specific purpose of gaming. It requires the decision of the Secretray of the Interior, or more accurately in our case, an act of Congress. The Carcieri case questions the Secretary's power to take land into trust in the original 13 colonies because there is no federal reserve lands in the original 13 colonies for the federal government to take. It appears that the States are quite done with Congress, the BIA and the SOI telling them they have no rights when it comes to taking land off their tax rolls, hence the lawsuit. It is about time the States question the Secretary's power over their sovereignty in these matters.
The powers which they (the States) delegated to the Federal Government are limited and general in their character and the powers which the States reserved embraced their original and inalienable sovereignty.
It was James Madison himself who pointed out the fact that "a delegated power is not a surrendered power." and I agree with that statement.
Adam B.,
"CONGRESS has plenary power regarding Indians and Indian tribes, leaving the States out of the mix (with the exception of the ability to appeal decision by the BIA)."
And that's OK with you??
Oh... nevermind. You don't seem to understand the difference between adherence to the law and being a doormat.
Interesting leadership style, though...
Gladys
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