Color Blind

In case you missed it, which I am sure you have not, Gladys has an excellent blog - Waiting to Exhale - that really puts today’s Enterprise article into perspective. I love how the enterprise article's title really grabs your attention….Despite setbacks?? I would hardly call the recent SCOTUS decision that takes the power (rightfully) from the Secretary of the Interior to place land into trust to Tribes recognized after 1934 back into the hands of Congress a mere setback. I mean, holy cow….what is it going to take to make the Mashpee Wampanoag Tribe understand that the casino pipedream is…well…a Dead Parrot. I nearly choked on my lunch today reading this article….really. Apparently Scott Ferson is not giving PR advice to the new Tribal Leader Cedric Cromwell. This really caught my attention…..

But Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell said the Bureau of Indian Affairs has given his tribe the “green light” to continue with the process that began with its August 2007 application

Really??? Huh….thats kind of funny because a discussion with the BIA office left me with a completely different perspective….but that is neither here nor there. Here is the clincher quote for me:

The tribe contends that the court decision ruled it would take an act of Congress to take land into trust for tribes that were recognized after the 1934 Indian Reorganization Act. Cromwell said the tribe was under federal jurisdiction in the 1800s, and therefore not constrained by the decision.

“We were under federal jurisdiction as part of the 13 Colonies,” Cromwell said.

Oooookay….so sorry Mr. Cromwell, but the Tribe was not under Federal Jurisdiction as part of the original 13 colonies because the Federal Government did not have federal jurisdiction over the original thirteen since it didn't exist, and the Federal Government does not have federal jurisdiciton over States or their citizens unless specifically given that power under the articles of the United States Constitution. You must have missed that class in American History. The Tribe gained federal recognition in 2007 - of which the Tribe's own historical timeline shows.

As Gladys’ poster on her blog stated, the Tribe was, if anything, under State jurisdiction and if I remember correctly, the State decided way back in 1978 that it was not a Tribe…and that decision was upheld in an appeal in 1979.

January 1978: Following a 40-day trial, the judge instructs the jury that they cannot find the Wampanoag are a tribe, unless the tribe falls within certain definitions at six points in history.
The jury responds that the Mashpee Wampanoag were a tribe in 1834 and 1842 - but not 1790, 1869, 1870 and 1976. The dates correspond to key dates in the history of the tribe and its suit, such as the 1834 Mashpee District Act and the 1870 incorporation of Mashpee.

- 1978: Judge Skinner dismisses the land suit, saying that the Wampanoag are not a tribe and have no standing to sue.

- 1979: The First Circuit Court of Appeals upholds Skinner's decision. Later that year, the U.S. Supreme Court declines to hear the case.

- courtesy of the Cape Cod Times -

Yet still, the Tribe did manage to gain Federal Recognition and all the benefits that go with that recognition. Yet they had to push the envelope by teaming up with foreign casino developers and declaring their “right” to build a casino over 39 miles away from Mashpee - in Middleboro, MA under the guise of the IRA and under the exceptions listed in IGRA.

…and there was nothing we could do about it….it was inevitable….heck - even our own Governor, Deval Patrick, apparently bought into that fairytale…that or just pretended to so he could push his own casino bill. Shame on him, either way…

Aside from the fact that the Mashpee Wampanoag Tribe has no historical ties to Middleboro, they certainly did not fall under Federal Jurisdiction in the 1800’s. I mean, if they did, wouldn’t they have included that in their own timeline?

And the funny thing here is, the Mashpee Tribal Council Leader cannot seem to understand that even if the Tribe does go to Congress, and somehow manages to convince Congress that they were under federal jurisdiction in 1934, they still won’t have the land in Middleboro placed into trust because it is unconstitutional – it treads on the sovereignty of the State.

The fact of the matter here is that in the United States, there are two separate and distinct jurisdictions - the jurisdiction of the States within their own territorial boundaries and federal jurisdiction. Broadly speaking, state jurisdiction encompasses the legislative power to regulate, control and govern real and personal property, individuals and enterprises within the territorial boundaries of any given State while federal jurisdiction is extremely limited, with the same being exercised only in areas external to state legislative power and territory.

The original thirteen colonies were each separately established by charters from the English Crown. Each had its own governor, legislative assembly and courts, and each was governed separately and independently by the English Parliament until that dastardly tea was thrown in the harbor and the Declaration of Independence was born.

The Declaration of Independence made each new State a separate and independent sovereign over which there was no other government of superior power or jurisdiction. This was clearly shown in Harcourt v. Gaillard, where the Court stated:

"There was no territory within the United States that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States distinct from, or independent of some one of the states.
"Each declared itself sovereign and independent, according to the limits of its territory.
"[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour."

So in a nutshell, on a hot July day in 1776, the new States possessed all sovereignty, power, and jurisdiction over all the soil and persons in their respective territorial limits.

This condition of supreme sovereignty of each State over all property and persons within the borders was expressed with the adoption of the Articles of Confederation. In Article II of that document, it was expressly stated:

"Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

The history of the confederation government clearly shows that each State was indeed sovereign and independent to the degree that it made the central government created by the confederation fairly ineffectual. These defects of the confederation government strained the relations between and among the States and the solution to the problem was through the calling of a constitutional convention…and the birth of our Constitution.

During the penning of our United States Constitution there was not any intention demonstrated for the States to surrender the jurisdiction each States possessed, at that time. As a matter of fact, the Constitution as finally drafted continued the same territorial jurisdiction of the States as existed under the Articles of Confederation.

Art. I, Sec. 8, Cl. 17 of the U.S. Constitution:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."

The reason for the inclusion of this clause in the Constitution was and is obvious. Under the Articles of Confederation, the States retained full and complete jurisdiction over lands and persons within their borders. The Congress under the Articles was merely a body which represented and acted as liaisons to the States for external issues, and had no jurisdiction within the States. It would seem in reading, that this clause was included in the Constitution to give jurisdiction to Congress over the Nation’s Capital, and such other places as Congress might purchase for forts, magazines, arsenals, and other needful buildings where the State ceded jurisdiction of such lands to the federal government, and it certainly does not include jurisdiction over non-ceded areas – those remain within the power of the States.

So what does this mean? Well, to me, it means that Congress cannot take land from the State of Massachusetts (or any other State for that matter) unless it is federal land. That, or if the State gives permission for Congress to take it. It would be unconstitutional.

I define jurisdiction as this: The authority to act.

So as I see it, according to the Constitution, if the government has jurisdiction, it has the power to act. If it does not have jurisdiction, it does not have the power to act. The geographic jurisdiction of the United States is very limited and well defined. Federal geographic jurisdiction is limited to those places where the Unites States is the sovereign – when it is federal owned land.

In the United States there are only two kinds of reserved federal lands that are well-known: military and Indian. An Indian Reservation is federal land reserved for a tribe when it relinquished its other land areas to the United States through treaties. Military reservations are managed by the Department of Defense. Examples include army posts, marine bases, naval stations, and air force bases, such as Otis Air Force Base. I bring this up because the last thing I want to be reading is that one of the Mashpee Wampanoag Tribal leaders being quoted that there is Federal reserve land right on the Cape that Congress could potentially take into trust for them. The truth of the matter is, yes, Otis Air Base is federal land….but the other truth of the matter is Otis is still quite active, serving as the Massachusetts Military Reservation (MMR) and it also sits on a sole source aquifer, which is Federally protected.

Massachusetts Military Reservation (MMR), a military training facility, is located on the upper western portion of Cape Cod, immediately south of the Cape Cod Canal in Barnstable County, Massachusetts. It includes parts of the towns of Bourne, Mashpee, and Sandwich and abuts the town of Falmouth. MMR covers about 22,000 acres—approximately 30 square miles.

The Massachusetts Military Reservation is located over a sole source aquifer that provides drinking water for 200,000 year-round and 500,000 seasonal residents of Cape Cod. The aquifer, referred to as the Sagamore Lens, is a valuable water supply resource. – MMR website

So, in this chick’s eyes….the BIA can give all the “green lights” it wants to give, and the Mashpee Tribe can continue to insist they were under federal jurisdiction in 1934, it doesn’t matter. The BIA has no authority over the application - the best they can do is send it to the SOI, who can't do anything about it either. There will be no Mashpee Tribal casino built on sovereign land in Middleboro because the Supreme Court and the Constitution of the United States says so. The decision does apply to the Mashpee Tribe, much as the new section 20 regulations applied to them also. No grandfathering….no name on the list…..no land in Massachusetts for Congress to give….no Land in Trust…no casino…no green light. Heck, there isn’t even a dilemma zone here. I am afraid that Mr. Cromwell might be a bit color blind. The only light glaring on this entire casino pipedream is the color red.

While the Mashpee leadership contends the tribe is exempt from the ruling, Joseph S. Larisa, Jr., the assistant solicitor for Indian Affairs for the town of Charlestown, R.I., disagrees. Larisa, who handled the Rhode Island case that made it to the Supreme Court, said the Mashpee were not on the 1934 list of tribes under federal jurisdiction.

“The decision applies to the Mashpee, the same way it applies to the Narragansett. They don’t have the right to strip state and town jurisdiction (from the land),” Larisa said.

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