Land of the Lost Part Two - The Double Whammy

This has been a great day…well, a great day if you are against a mega casino resort being built in your community. Yeah...not such a great day if you are a foreign casino investor banking on building that mega casino resort in a Town where the tribe you are sponsoring doesn’t have any significant historical or present ties to the land. Today I received two significant developments in our battle against having a casino in our community and feel they are significant enough to qualify as Land of the Lost blog series material. After today, the Middleboro land being placed into trust by the Secretary of the Interior has become, in my eyes, a lost cause for the Tribe and the casino investors.

If you remember, in part one of Land of the Lost, our fearless casino investors and the Mashpee Wampanoag Indian Tribe were hoping to get 539 acres of land in Middleboro put into trust for the specific purpose of building a mega resort casino. Their catch…..that gaping loophole in the IGRA regulations for land taken into trust after October 17, 1988. Specifically the exception to this rule that states an exception is granted for lands that are taken into trust as part of the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process. Well, as of June 19, 2008 the Department of the Interior will make that loophole much smaller with a bold move that redefines section 20 regulations for taking land into trust for gaming purposes, as posted in today's Federal Register.

Section 20 of the IGRA sets forth exceptions to its general ban on tribal gaming operations on land acquired in trust after IGRA's enactment on Oct. 17, 1988. Section 20 does nothing in itself to authorize taking tribal land into trust status, Interior officials have testified before Congress. Rather, the secretary of Interior must consider the Section 20 exceptions with regard to any tribal land that would be taken into trust for gaming purposes. The purpose of the regulations is to establish the criteria for Interior's consideration of whether ''after-acquired'' tribal land qualifies for gaming purposes under the Section 20 exceptions. – Indian Country Today

IGRA - Section 20

This section contains criteria for meeting the requirements of 25
U.S.C. 2719(b)(1)(B) (ii), known as the ``initial reservation' '
exception. Gaming may occur on newly acquired lands under this
exception only when all of the following conditions in this section are
met:
(a) The tribe has been acknowledged (federally recognized) through
the administrative process under part 83 of this chapter.
(b) The tribe has no gaming facility on newly acquired lands under
the restored land exception of these regulations.
(c) The land has been proclaimed to be a reservation under 25
U.S.C. 467 and is the first proclaimed reservation of the tribe
following acknowledgment.
(d) If a tribe does not have a proclaimed reservation on the
effective date of these regulations, to be proclaimed an initial
reservation under this exception, the tribe must demonstrate the land
is located within the State or States where the Indian tribe is now
located, as evidenced by the tribe's governmental presence and tribal
population, and within an area where the tribe has significant
historical connections and one or more of the following modern
connections to the land:
(1) The land is near where a significant number of tribal members
reside; or
(2) The land is within a 25-mile radius of the tribe's headquarters
or other tribal governmental facilities that have existed at that
location for at least 2 years at the time of the application for land-
into-trust; or
(3) The tribe can demonstrate other factors that establish the
tribe's current connection to the land.

This is an interesting development in our crusade to stop this casino because essentially the DOI is not only tightening the criteria for the IGRA exceptions for land taken into trust for gaming purposes, but is clearly defining what constitutes an "initial reservation". The prior regulation only stated that execptions were for lands that are taken into trust as part of the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process. This was a huge loophole and the only way to challenge a trust decision was to go to court and argue the July 2005 testimony before the Senate Committee on Indian Affairs that decided in order to qualify for initial reservation exception, a tribe must show that it has strong geographic and historical ties to the land. It could be done and it could be won....but it would cost a lot of money to do.

However, under the revised regulation, in order for land to qualify as an initial reservation, the Tribe must have present and historical ties to the land as clearly defined in section 20 of IGRA. If you remember, the Mashpee Wampanoag Tribe tried to show ties to the land in Middleboro in their application by stating:

The Tribe currently has 1531 members, of whom over half – 838- live in Barnstable County (i.e. within 10 miles of Mashpee). Another 88 members live in Plymouth County (which includes Middleboro) and 70 live in neighboring Bristol County for a total of 984 members living within an approximate 50 mile radius of Mashpee Town.

Under the revised regulations, the land in question needs to be within a 25 mile radius of their headquarters, i.e. their governmental facilities that have been in existence for at least two years at the time of the application for land-into-trust. In the case of the Mashpee Wampanoag’s, that would be Mashpee. The last time I checked, the land in Middleboro was 39 miles from Mashpee and only six percent of their tribal members live in Plymouth County which is hardly a significant number of tribal members. I wonder how many tribal members actually live in Middleboro?

Prior to this regulation change, the Secretary of the Interior would receive the application from the BIA and make a determination to place the land into trust. The way I see this, with the regulation change, this land will not be placed into trust status and the application should be rejected by the BIA because under IGRA rules, the land is not within the 25 mile radius of their headquarters and the Tribe has failed to prove historic or present ties to the land in Middleboro. In a nutshell, they have failed to meet the requirements of the new regulations.

On top of this news, we also received the 881 pages of comments from the March 25th BIA hearing, most of which were from people opposing the casino. It would seem that many, many anti-casino people submitted letters to the BIA challenging the Tribe’s historical ties to the land under the ethno-historical section of the NEPA scoping process. The BIA has flagged these comments regarding historical ties as well as several other significant environmental issues that were raised by concerned citizens. It would seem that the BIA is taking a close and serious look at the questionable historic ties to the land and the claims made by so many of us that choosing the land in Middleboro was nothing short of reservation shopping. It will be interesting to see if this application even makes past the BIA, nevermind making it onto the desk of the Secretary of the Interior.

Everyone who took the time to write letters to the BIA should be proud of their accomplishments. Your voices have been heard! I would like to personally thank each and every one of you for your efforts, for speaking out against something you know is wrong for your community, without fear and without reproach. It is appreciated more than I could ever put into words. To those of you who are now working diligently at writing letters to the DOI, keep up the good work! We need to continue our efforts at ferreting out the endless flaws in the application. We had a good day….lets make sure we have a wonderful casino free future.

"Fear is not in the habit of speaking truth; when perfect sincerity is expected, perfect freedom must be allowed; nor has anyone who is apt to be angry when he hears the truth any cause to wonder that he does not hear it." --- Tacitus

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter" - George Washington

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