Wag the Dog

Why does a dog wag its tail? Because a dog is smarter than its tail. If the tail was smarter, the tail would wag the dog!

Do you remember the movie “Wag the Dog”? This is the one where Robert DeNiro stars as a Washington spinmaster who needs a war to distract public's attention from a sex scandal involving the President. In the movie, De Niro plays a presidential spin doctor, who is hired to do what he does best: con the American public on behalf of his clients, in this case, the American Government. All in all, it was a pretty funny movie based on the the old “tail wagging the dog” joke that to me is not so much a joke, but more of a metaphor or philosophical observation about how politics and propaganda influence the public into thinking how things should be – or are. In this case, the dog is the people and the tail is the government.

In our case, it is the Tribe or the Town of Middleboro BoS or even our own Governor telling us how things should be – or are….

Kind of like “there is an Indian Casino coming to Middleboro and there is nothing you can do about it….it is inevitable….”

Kind of like “casinos are economic engines that will bring jobs and stimulate the local economy, and heck…we need these jobs and we need the money from casino revenue or else we are doomed.”

Kind of like “the communities surrounding Middleboro had better put together their impacts – put together their numbers and give them to the Governor…”

The only joke here is that we are constantly being told by casino supporters that this isn’t a casino we are talking about, merely a resort which happens to have a casino. This entire thought process - no, this entire LIT process has really cranked up public opposition to the Land in Trust process and the support for an entire region to defend its quality of life – not be told a casino is inevitable, so take some money and live with it.

I recently spoke at the Regional Task Force Meeting held in Taunton in regards to where the Mashpee Wampanoag Tribe was in the process of gaining Land in Trust in Middleboro as an initial reservation – land as an initial reservation wanted by the Tribe solely to build a mega-casino resort. I mainly spoke to the recently released regulations enhancing section 20 of IGRA and why these changes make the land in Middleboro ineligible for an initial reservation. It is important to understand that the new regulations do not change IGRA. IGRA prohibits gaming on Indian lands acquired after 1988, with a few exceptions. The new regulations were put into place to define and clarify these exceptions. As such, the regulations are a positive improvement towards maintaining a fair and well-regulated industry.

Here is a breakdown of my update on the changes to IGRA and how they relate to the Mashpee Wampanoag’s application for Land in Trust in Middleboro.

I told the RTF that CFO had confirmed with the Office of Indian Gaming that the regulations of section 20 went into effect on August 25, 2008.

There were significant clarifications to the initial reservation exceptions that make initial reservations eligible for gaming.

Under the new regulations, the Mashpee Tribe must demonstrate the land is located within an area where the Tribe has significant historical and modern ties to the land. Modern connections requirements are met when a Tribe can demonstrate the land is near where a significant number of tribal members reside. Well, according to their own application, the Mashpee Tribe has 1531 members – of the 1531 members, 838 live within 10 miles of Mashpee, 88 live in Plymouth County and 70 live in Bristol County.

The land to be placed into trust as an initial reservation must be within a 25 mile radius of the tribal headquarters or other government facility that has existed at that location for at least two years at the time of the application. The land in Middleboro is 39 miles away from their headquarters in Mashpee.

The Tribe must demonstrate other factors that establish the tribe’s current connection to the land.

According to the exception rule, the Tribe needs to meet at least one of the other requirements in order for the land to be eligible as an initial reservation and used for gambling. Well, as far as having modern connections demonstrated by having a significant number of tribal members residing near that land…I gave you the numbers they provided in their application, you do the math. They must also show significant historical ties to the land – I love that the comment from the government in the Federal Register says, “…it can’t be any ties to the land, it must be significant”.

So what is considered significant historical ties? The new regulations define this for us: The tribe must provide evidence to show that, at one time, they had lived on that site, or that they had a burial ground on that site, or even that they had hunted the land as a means to feed the tribe.

One could argue this point, but the Tribe’s other application, the one where they provided evidence to gain federal recognition, very clearly states, in all seven required criteria for historical ties, that their history is in Mashpee...no mention of Middleboro. It actually says that the Tribe has proved its presence since first contact to present day in Mashpee. In another section, the Tribe states that historically, a majority of their members lived in Mashpee, and some occasionally moved into communities adjacent to Mashpee or other areas of Cape Cod, but always with a high rate of return migration to Mashpee.

That is not evidence of significant historical ties to Middleboro. Unless adjacent means within 50 miles or so….which the last time I checked, it didn’t.

To the second point, as I said, the land in Middleboro is 39 miles away from their headquarters in Mashpee and even provided a map in their application that counted out the miles. Also, did you notice the wording “…or other governmental facility that has existed at that location for at least two years at the time of the application….” If I am reading this requirement correctly, the land is not within 25 miles of the Tribe’s headquarters and there certainly is no tribal government facility on the land in Middleboro.

To the third, and seemingly most vague requirement of “other factors” to determine the tribe’s current connection to the land, we need to know what else the modern requirement connection entails. Well, according to the lengthy explanation provided in the Federal Register, aside from the significant number of tribal members living near the land in question, the modern connection requirement is meant to provide an element of notice to the surrounding community -- the FR’s words, not mine. So the bottom line is if the Tribe has modern connections to the land, the surrounding community has notice of the tribal presence (again…the FR’s words, not mine). Yes, I can see them meeting this requirement in Mashpee…..but not in Middleboro – well, at least not until they announced that they had some foreign casino investors agree to build a casino on their behalf and had their buddy Herb Strathers back them financially and purchase land for them in Middleboro to be placed in trust to build a casino. Yeah – they certainly got their “community awareness” then….yet the community wasn’t even allowed to speak, at least not speak negatively about the casino and the host Town BOS is legally required to support the Tribe in their efforts, thanks to good old section 22B in the agreement between Tribe and Town. The only thing the Middleboro residents knew last year was that It’s coming so sign an agreement to get mitigation money – or get no money and a casino…..

Then I hear on a local radio show that I had apparently avoided talking about the grandfather clause in the new section 20 regulations and that the Tribe’s application is grandfathered in and the RTF would be better off getting their impacts and cost figures together and give them to the Governor so he can negotiate for these Towns with the Tribe. The conversation went on to say that the Towns will not get a seat at the table and their only hope was to tell the Governor how much money they needed.

Resistance is futile…..

Ummm…..huh?! Didn’t the Town of Middleboro do just that 18 months ago to the tune of 7 million dollars, an amount which is looking smaller and smaller even to casino proponents as time goes by and no casino is built. So small in fact, that the Town feels the need to also ensure they get more money from the State because 7 Million just isn’t going to cut it where mitigation and infrastructure and local public safety support are concerned. Yet, the same individual who helped push the Middleboro agreement through is now telling the surrounding communities to come up with a number and hope they get it. It is a situation of the tail wagging the dog, but it is better to be prepared than to get nothing or not enough.

My goodness, how we have come full circle and yes, all I can see is that pesky tail desperately trying to wag the dog casino style. Eighteen months ago the town of Middleboro was told to take the money because it was coming anyway…now we have someone who sits on the Middleboro BoS telling the other Towns the exact same thing. We even had the Tribe attempting to convince our Governor that he had better start negotiations because no matter what ultimately happens with the negotiations, please know that it is the tribe’s intent to operate America’s most successful casino resort in Middleboro.

I could say the tribe meant to say bingo hall resort because the Governor can’t be forced into a compact, but there is no need. The application does not meet the requirements for an initial reservation, and the land itself does not qualify for gaming under IGRA….and the application is not grandfathered.

I did have the opportunity discuss the grandfathering position with Adam Bond recently on his radio show. For the record, he was a gracious host and I truly appreciate that. I also appreciate his willingness to discuss his position that the application is grandfathered and allowing me to discuss my position that it is not. Under the grandfathering section of the regulation there are certain situations where an application will be processed under the old regulations.

According to section 292.26 Subpart D – Effect of the Regulations – the new regulations apply to all requests except they do not alter final agency decisions made before the date of enactment of the new regulations and….the new regulations apply to final agency action taken after the effective date except that they shall not apply to applicable agency actions when, before the effective date the Department (Department of Interior) or the National Indian Gaming Commission (NIGC) issued a written opinion regarding the applicability of the land to be used for gaming and provides that the Department or the NIGC retains full discretion to qualify, withdraw or modify such opinions.

Here is how the Grandfather section is explained:

Section 292.26 was added in order to address these issues. During the course of implementing IGRA section 20, the Department and the NIGC have issued a number of legal opinions to address the ambiguities left by Congress and provide legal advice for agency decision makers, or in some cases, for the interested parties facing an unresolved legal issue. These legal opinions typically have been issued by the Department's Office of the Solicitor or the NIGC's Office of General Counsel. In some cases, the Department or the NIGC subsequently relied on the legal opinion to take some final agency action. In those cases, section 292.26(a) makes clear that these regulations will have no retroactive effect to alter any final agency decision made prior to the effective date of these regulations. In other cases, however, the Department or the NIGC may have issued a legal opinion without any subsequent final agency action. It is expected that in those cases, the tribe and perhaps other parties may have relied on the legal opinion to make investments into the subject property or taken some other actions that were based on their understanding that the land was eligible for gaming. Therefore, section 292.26(b) states that these regulations also shall not apply to applicable agency actions taken after the effective date of these regulations when the Department or the NIGC has issued a written opinion regarding the applicability of 25 U.S.C. 2719 before the effective date of these regulations. In this way, the Federal Government may be able to follow through with its prior legal opinions and take final agency actions consistent with those opinions, even if these regulations now have created a conflict. However, these regulations will not affect the Department's or the NIGC's ability to qualify, modify or withdraw its prior legal opinions. In addition, these regulations do not alter the fact that the legal opinions are advisory in nature and thus do not legally bind the persons vested with the authority to make final agency decisions.

Here is how a Tribe would go about getting a legal written opinion in order to meet the exceptions in IGRA, and please keep in mind that the Mashpee Tribe has no newly acquired lands….

Section 292.3 How does a tribe seek an opinion on whether its newly acquired lands meet, or will meet, one of the exceptions in this subpart?

(a) If the newly acquired lands are already in trust and the request does not concern whether a specific area of land is a ``reservation,'' the tribe may submit a request for an opinion to either the National Indian Gaming Commission or the Office of Indian Gaming.

(b) If the tribe seeks to game on newly acquired lands that require a land-into-trust application or the request concerns whether a specific area of land is a ``reservation,'' the tribe must submit a request for an opinion to the Office of Indian Gaming.

The land in Middleboro falls under paragraph (b).

Let’s look at this for a minute. Tribes are able to submit a request for an Indian lands opinion to either the NIGC or to the Office of Indian Gaming (OIG). A tribe should only submit a request to the NIGC when newly acquired lands are already in trust and, for example, there is a pending gaming ordinance or management contract before the NIGC and should submit a request to the OIG if the request concerns reservation boundaries or reservation status. In the case of the Mashpee Wampanoag Tribe, the NIGC could not have written an opinion on the Middleboro land because the land is not in trust, and neither did the OIG or it would have been listed, which was so kindly pointed out by Gladys Kravitz recently.

Even so, if there was an opinion written about the Mashpee Wampanoag’s application, it needs to be stressed that an opinion provided in response to a request is not a final agency action under the Administrative Procedures Act (APA). According to APA, final agency actions only occur when agency official’s act on a determination pursuant to powers granted them by Congress. Therefore, any communications by the opining Agency are informal pronouncements. But again, there is no record of an opinion listed with the BIA or with the State of Massachusetts.

Now, before these new regulations went into effect, there were six hearings held to discuss the proposed changes to IGRA. Because of the six hearings by the Senate Committee on Indian Affairs, and what they had learned about the abuses of IGRA, the new regulations were meant to apply to all of the active applications, most of which had been on hold since the regulations were first withdrawn from the Federal Register. Because the old regulations were so ineffective at preventing “reservation shopping”, which was heavily frowned on by the government, the Committee wanted to be sure that no more abuses of this process would continue. It was for that reason, most of the pending applications at that time are now being processed under the new regulations.

The only applications that were allowed to be grandfathered in were the ones that had land opinions written by NIGC (because IGRA only allows gaming on Indian Lands, no matter when they were taken into trust). These opinions were for gaming on land that was already in trust (state or federal) or within a Tribe’s reservation boundaries. This was allowed because some Tribes already had governorship over land in which the NIGC had written an opinion and the BIA thought it would be fair to process these applications under the previous regulations due to the assumption that the tribe may already have made an investment, or had taken steps towards building a casino. But even then, the new regulations still do say that an opinion by NIGC could be withdrawn, or modified.

This is why the Mashpee Tribe’s application will be processed under the new regulations and are not grandfathered in….they do not have land already in trust and they do not have an opinion written for the land they want Herb Strathers to give to the Federal Government on their behalf to be taken into trust. The Mashpee Tribe has asked for two pieces of land, both as Initial Reservations. Unfortunately for them, requirements that were difficult to start with now just got all that much harder under the new regulations.

So try and explain all that in five minutes or less at an RTF meeting – or on a radio show for that matter….

In short, the expression “the tail wagging the dog” refers to any case where something of greater significance to one group of people (such as greed and money) is driven by something less significant to another group of people (such as not wanting a casino built in their community). The fact that the Mashpee Wampanoag’s application is weak at best and the notion of a casino actually being built in Middleboro is nothing short of a pipe dream, casino advocates still continue to try and wag that dog. Tell everyone it is coming…. tell every surrounding town they had better throw mitigation figures at the Governor now before it is too late….tell the Governor and the entire state that they are going to build America’s most successful casino resort….wag wag wag..

Say what they will, or assume what they will and present it as truth, they cannot change the fact that around here, the tail is not smarter than the dog….and the dog ain’t listening anyway.

- be the change you want to see in the world -