Spin City

Sigh....here we go again, or so I thought at the begining of this past week. Once again the news was reporting that our dis-honorable Governor was once again spinning his web of inevitability in order to resurrect his three casino plan for the Commonwealth. In case you missed the 11:00 news on Monday night, here is the story that was originally reported by Joe Shortsleeve on WBZ local news with a story about the Governor entering into negotiations with the Mashpee Wampanoag Tribe which would make an Indian Casino a reality in Massachusetts. Some great quotes from that story were:

"We are prepared to negotiate within the parameters we have under existing law," said Massachusetts Governor Patrick on Monday.

and.......

"Some form of expanded gaming is coming because the tribe has some tribal rights and we want to be ahead of that," said Patrick.

followed by the shot of inevitability.....

...the clock is ticking and WBZ has learned negotiations between the state and the chairman of the tribe, Shawn Hendricks, are expected to start this month.

So there I was, thinking....Wow!....REALLY?! I wonder who told WBZ that line of bull, and was our Governor really buying into it? I was dumbfounded and I couldn't even blame the reporter here. It was quite obvious from that report he is not familiar with Indian Gaming Law and from the sound of it, neither is our Governor.

Needless to say, all of us anti casino people went into DEFCON 1 mode on Tuesday, contacting the reporter and giving him the truth about the Land in Trust process and preparing and releasing a formal press release outlining the reasons why this news story was way off base. Well, the efforts paid off because shortly after, WBZ released another news story stating that compact negotiations were premature. Then on Thursday, the Governor was reported as saying there are no negotiations going on, and no compact is near. Apparently his words were overstated on Monday. Phew! Yeah right....not so fast...

Here are some words of.......ummmm....wisdom from our Governor.

"some form of expanded gaming is coming because the tribe has some tribal rights to that, and we want to be ahead of that, and we'd like that to be within the framework we define rather than having it defined for us."

okay.....so untrue! This Governor is so transparent, it is embarrassing at this point.

It gets better because the Governor's spokesperson Kofi Jones is quoted as saying:

"As a sovereign nation, the Mashpee Wampanoag tribe will have rights to open a casino on any federally recognized land, and it is in the best interests of the Commonwealth for the administration to remain in active conversations with respect to their plans,"

Huh? Where are these people getting their information? Has Kofi Jones or the Governor even attempted to read or understand IGRA laws or are they just spinning their web of inevitability to push their already dead three casino plan for the Commonwealth?

I really feel the need to point out that a federally recognized Indian Tribe does not automatically get federally recognized land, nor do they automatically get to build a gambling establishment on federally recognized land. It appears that the Governor is trying to resurrect his three casino plan for the Commonwealth with his “we can either do this ourselves or have this done to us” attitude, or he and his advisors really have no understanding of the Indian Gaming Regulatory Act or the Land in Trust process.

So, here is Land in Trust Process and IGRA process 101. I hope the Governor is paying attention, he has a lot to learn.

The Indian Gaming Regulatory Act was signed into law on October 17, 1988 and section 20 of that law prohibits gaming on lands taken into trust after this date unless the land qualifies for at least one of the exceptions contained in that section. Under the new section 20 regulations the land in Middleboro does not meet any of these exceptions. This was pointed out quite well by both Fiferstone and myself not too long ago.

It is quite simple, really. Recent changes to the exceptions rule in IGRA regulations have made the land in Middleboro ineligible for gaming. Under the new rules, the land to be taken into trust for gaming purposes must be within 25 miles of their existing Tribal Government. The land in Middleboro is 39 miles away from Mashpee where their Tribal Government presides. Also, under the new rules, the Tribe is required to prove it has historical and present ties to the land. Their Land in Trust Application does not show these ties.

Since the land in Middleboro does not meet requirements for an initial reservation, the application will most likely be denied. Sure, they can reapply but the land would then need to go through a two-part determination to gain approval for gambling if it is taken into trust by the Secretary of the Interior. The two part determination requires a consultation with State and local officials, including officials of other nearby tribes, and only then will the Secretary determine if gaming on newly acquired lands would not be detrimental to the surrounding community. If the Secretary finds that gaming will be detrimental to surrounding communities then gaming will not be allowed on the land.

There are several reasons why the casino in Middleboro is far from being a “done deal” so even thinking about compact negotiations on our Governor's part is extremely premature. My wonderfully educational and entertaining blogger friend Gladys Kravitz even offered up the Top 10 reasons why a casino isn't coming to Middleboro. Making statements saying that some form of expanded gambling is coming to the Commonwealth is quite a spin on the facts of this situation. The Commonwealth currently does not allow class III gambling and the likelihood of the casino investors putting money into a class II bingo hall is unlikely. The agreement between the investors and the Tribe has no stipulation for funding a bingo hall, and in fact, allows for the investors to back out of the agreement if a class III gambling facility cannot be built. The intergovernmental agreement between Middleboro and the Tribe outlines $220 million dollars of infrastructure improvements the Tribe will be responsible for, even with a class II bingo hall. There are three other casino’s within 2 hour driving distance that have class III gambling, including slot machines so the potential for profit at a bingo hall in Middleboro is extremely questionable. Take into consideration the financial woes of Twin Rivers and it would be fair to say, extremely unlikely. Maybe the Governor should take the time to read this article before he starts force feeding us the delusional financial security he believes casinos will bring to our State.

Also, let us please not forget that seven surrounding communities and the Governor himself in a 70 page document, have formally protested the Land in Trust application and the Town of Middleboro voted against having a casino in their community in a non-binding vote during last years Town Meeting in July. Other Tribes in the area have made claims to this land and have formally protested to the BIA and the DOI the Mashpee Wampanoag’s Land in Trust Application.

The Governor seems to not understand that he himself cannot negotiate and approve a compact with the Tribe. Any compact would need to be approved by the Legislature, which would be a difficult task considering that they have already voted against expanded gambling and any real inquiry into the Tribe’s application would quickly reveal the major milestones the Tribe faces in order to have the land placed into trust.....which it won't.

Most importantly, the State is not required to negotiate a compact with the Tribe, as determined in the Seminole Tribe of Florida vs. Florida case. The courts decided in that case, under the Eleventh Amendment, States cannot be forced to negotiate compacts with Indian Tribes. Under the Eleventh Amendment, the State has sovereign rights and a Tribe cannot force a State to negotiate a compact. The Mashpee Tribe should not be directing timelines or making the call on compact discussions, nor should our Governor allow them to. If we as a State stand up and protest this land in trust application and refuse to negotiate with the Tribe for gambling on the land in Middleboro, there will be no casino in Middleboro.

Lastly, the Supreme Court will be reviewing the case of Carcieri vs. Kempthorne this Fall or next Spring and Massachusetts is one of the States listed on the docket. This case will decide if land can be taken into trust for Indian Tribes recognized after 1934. If the court rules in favor of Carcieri, there will be no Land in Trust in Massachusetts. At the very least, our Governor should be holding his hat until that case is decided.

So the bottom line here is, the Governor is either lying or he just doesn't get it...and his spokesperson has no concept of how land is placed into trust nor how IGRA works. Shame on them for making such irresponsible and misleading statements to the citizens of this State!

Oh....and one more thing. The Tribe cannot begin negotiations with the State for class III gambling until the land is placed into trust and approved for gaming by the DOI. One news report stated:

Neither side would predict exactly when actual talks about a deal would begin. One possibility is later this summer or fall, just in time to set the agenda for next year’s legislative session.

Wow....just in time for next year's legislative session? Our Governor hard at work spinning his web and force feeding us his "we can do this ourselves or have this done to us" attitude. The truth is, any compact he starts means absolutely nothing because this land is not in trust. As a matter of fact, trying to negotiate a compact before the land is placed into trust is a big no-no in the eyes of the BIA and DOI....

Here's some food for thought.... some documentation (proof for our pro-casino friends) that land must be in trust. I offer this up because I certainly don't want me, any of my fellow bloggers or my wonderfully educated CFO friends to be called liars on a trashy public forum again.


Honorable Theodore R. Kulongoski
Governor, State of Oregon
State Capital,
Salem, Oregon 97301-4047

Dear Governor Kulongoski:

On April 8, 2005, we received the Tribal-State Compact for the regulation of Class III Gaming between the Confederated Tribes of the Warm Springs Reservation of Oregon(Tribes) and the State of Oregon (State), executed on April 6, 2005 (Compact). Under the Indian Gaming regulatory Act (IGRA) 25 U.S.C. § 2710 (d)(8)(C), the Secretary of the Interior (Secretary) may approve or disapprove the compact within forty-five days of its submission. Under IGRA, the Secretary can disapprove the Compact if she determines that the Compact violates IGRA, any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or the trust obligation of the United States to Indians.

Decision

We have completed our review of the Compact along with the submission of additional documentation submitted by the parties and some third parties. For the following reason, the Compact is hereby disapproved.

Discussion

Article V(C) of the Compact authorizes a gaming facility on the Cascade Locks Land, “provided that the federal government takes the Cascade Locks Land into trust for the Tribes for gaming purposes pursuant to Section 20(b)(1)(A) of IGRA, 25 U.S.C. § 2719(b)(1)(A) .” Section 2710(d)(8)(A) of IGRA authorizes the Secretary “to approve any Tribal–State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe.” This section does not authorize the Secretary to approve a compact for the conduct of Class III gaming activities on lands that are not now, and may never be, Indian lands of such Indian tribe.

In addition, IGRA requires that gaming may only occur on lands subject to the tribe’s jurisdiction and over which the tribe exercises governmental power. Currently, the Cascade Locks Land is not currently held in trust for the benefit of the Tribes and will have to undergo a rigorous process under 25 C.F.R. Part 151 before a decision can be made regarding whether to take the land into trust. In addition, compliance with the requirements of Section 20(b)(1)(A) of IGRA will have to be addressed before the land is eligible for gaming. This provision of IGRA requires a Secretarial determination, following consultation with appropriate State and local officials, including officials of nearby tribes, that a gaming establishment on the newly-acquired trust lands is in the best interest of the Tribes and their members, and not detrimental to the surrounding community. After this determination is made, the Governor of the State must decide whether he will concur in the Secretary’s determination. Therefore, approval of the Compact before the Cascade Locks Land is taken into trust would violate Section 2710 (d)(8)(A) of IGRA, and thus, the Compact must be disapproved.

We are aware that the Department has previously approved compacts for the regulation of class III gaming activities before the specified lands qualified as Indian lands under IGRA. However, on closer examination of the statute, we have concluded that the Secretary’s authority to act on proposed compacts under 25 U.S.C. § 2710(d)(8)(A) is informed by Section 20 of IGRA. Thus, the proposed gaming lands are subject to a two- part determination and State Governor concurrence under section 20. These two conditions must be complete before Departmental action on a compact can occur.

This decision does not address the other terms and conditions embodied by the proposed compact. The Department is supportive of the efforts of the Tribes and the Governor to discuss Indian gaming. The Department is encouraged by the prospects that there is a foundation for mutual agreement on these issues at some point in the future.

Only after the Tribes have acquired the Cascade Locks Land into trust, will the Department consider the terms and conditions of a timely submitted compact pursuant to the applicable provision of IGRA. Until then, we trust that the Warm Springs Tribes will continue to engage in Class III gaming activities on its reservation.

We regret that our decision could not be more favorable at this time. A similar letter is being sent to the Honorable Ron Suppah, Chairman, Confederated Tribes of the Warm Springs Reservation of Oregon.

Sincerely,

James E. Cason
Associate Deputy Secretary

In this chick's eyes, it is quite apparent that compact negotiations cannot take place until the land is placed into trust and we all know that is not going to happen. The Governor is either clueless or is spinning the facts again to fit his own agenda. Think about it for a minute...why did he oppose the land into trust to the BIA to turn around after his casino dream was defeated and say he is ready to negotiate? Simple...he wants to ressurect his own casino pipedream.

Once again our Governor is spinning his tale of inevitability to push his casino bill and the Mashpee Tribal leaders and casino investors are trying to mask the fact that the Mashpee Wampanoag’s application is at serious risk of being denied by the DOI. The Governor is choosing to set aside and ignore the Commonwealth’s sovereign rights as a State as well as the major hurdles the Tribe needs to overcome to scare the pants off the citizens of this State to push his personal agenda for commercial casinos. The way I see it, the only way we are “going to have this done to us” is if Governor Patrick allows it to be done to us.

" I don't make jokes. I just watch the government and report the facts." Will Rogers

" Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption." -- James Garfield

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