Somewhere between Now and Never

There is an interesting article in the Cape Cod Times explaining that the Mashpee Wampanoag Tribe is “going on the offensive” in regards to region C.  Cedric Cromwell apparently had some fancy lawyer from Boston by the name of Howard M. Cooper write up this nifty letter to the Massachusetts Gaming Commission on behalf of the Tribe telling them that they “lack the lawful authority” to seek competitive bids in Southeastern Massachusetts in the Expanded Gaming Act.  Huh….oookay….gee, nothing screams douchebag better than telling a State Gaming Commission that they have no authority to exercise a law they have been commissioned to exercise based on language in a compact that has not been approved by anyone...anywhere.  Awesome move. 

Yes , this demand by the lawyer on behalf of the Mashpee Wampanoag Tribe was made regardless of the fact that the law clearly gives timelines in what is expected as reasonable..…but what does the Commission know about exercising their authority?  Apparently not much according to this letter.  In fact, Howard here felt the need to point out that the Tribe has made significant progress on it's land in trust application even though the Tribe did not get an approved compact in July of 2012 (because it was REJECTED by the BIA - which he neglects to mention)  but also felt the need to quote the language in said compact in regards to legislative intent and the not voted on or BIA approved latest and greatest state compact as affirmation of that intent - to the Commission - and then felt the need to quote the section in the not voted on or approved latest and greatest compact, while pointing out that the exact same language was used in the rejected compact -- that the Commission is unable to open region C "unless and until it determines that the Tribe will not have land taken into trust". 
 
Psssst…Howard…..it doesn’t matter if the State Legislation approved the compact in 2012– it only matters that the BIA did not approve it, hence...not approved...and dictating what this Commission can or cannot do based on section 2.6 of a rejected compact  and one that hasn't even been submitted to the State legislature for vote is downright, well …. silly .... and couple that with what the actual law says...weeeell...lets just say the silly line has been surpassed and you have now crossed over into the ridiculous and leave it at that.  The actual gaming law...you know...the one the Commission has been granted authority to exercise says this:

Notwithstanding any general or special law or rule or regulation to the contrary, if a mutually agreed-upon compact has not been negotiated by the governor and Indian tribe or if such compact has not been approved by the general court before July 31, 2012, the [state gaming] commission shall issue a request for applications for a category 1 license in Region C pursuant to chapter 23K of the General Laws not later than October 31, 2012; provided, however, that if, at any time on or after August 1, 2012, the commission determines that the tribe will not have land taken into trust by the United States Secretary of the Interior, the commission shall consider bids for a category 1 license in Region C under said chapter 23K.

I don't know....the way I see it, perhaps Howie here should have read the actual law before telling the Gaming Commission that they lack authority to open region C while also claiming that opponents gave specific misstatements to the Commission regarding the tribe's ability to get land in trust under the Indian Reorganization Act....but that's just me.

This letter also blathers on about how the Carcieri ruling doesn’t apply and that somehow everyone has it wrong….in fact, according to this lawyer, the Tribe has already submitted documentation as to why it believes it was under federal jurisdiction in 1934.  Oh, goodie….if this documentation is anything like the argument the tribe used in the Land in Trust Application then there certainly is nothing to worry about…and oh yeah….documentation to the contrary – actual documentation that is, and not some “opinion piece based on some 18th Century Treaty with King George” by a tribe who desperately wants to build a casino in Taunton – has been submitted to the DOI and the BIA….and to the Governor….and to the State Legislators.  You know…  actual letters from the DOI to the tribe itself stating that….wait for it….they were NOT under federal JURISDICTION….not one letter….two letters – also included in that package was the actual list of federally recognized tribes under the IRA in 1934….oh – and we’re not done yet….not by a long shot. Also, maybe someone needs to remind Cedric who won the Revolutionary War...last time I checked, it wasn't England. 

Yeah, yeah…I get the flaccid argument being used by this lawyer and Cedric Cromwell that the dissenting opinion in Carcieri v Salazar says that it is possible that tribes were under federal jurisdiction without the government knowing about it…and that is probably true.  Unfortunately for Cedric, it isn’t true for the Mashpee Wampanoag Tribe and trying to argue your point by using the Oneida Indian Nation  v County of Oneida court ruling is like saying my dog is exactly like my cat in every aspect because they both drink water….making claims that “such statements to Native Americans from a federal government then seeking to disclaim its responsibilities are common and do not determine the inquiry.  Interior has taken land into trust in situations where such erroneous correspondence from the federal government exists."…..really??? Where???  Certainly not in the case of the Oneida’s…or the Narragansett’s for that matter. 

The truth is…now pay attention here, Howard….the Oneida Nation case concerned aboriginal title in the United States.  The Mashpee Wampanoag Tribe is applying for fee to trust land in Massachusetts and not claiming aboriginal title to land in Taunton….get a clue.  The Oneida case is a land claim case argued under aboriginal title and the Non-Intercourse Act….the Mashpee Wampanoag are trying to have fee land placed in trust under the IRA. 

Also, lest we forget that in the Oneida case, the United States backed the Oneida Nation against the county of Oneida and yeeeeah….that didn’t happen in Massachusetts in the Mashpee Tribe v. Town of Mashpee, et als. v. United States of America 1977-1978 (no I will not link to this case-- google it if you want to find it - we did).  This is when the Mashpee Wampanoag Tribe tried to take claim to land in the town of Mashpee under the Non-Intercourse Act.  In fact, the tribe tried to gain the assistance of the federal government to argue on their behalf and the United States Government denied their request…why?...because – again, the government clearly stated that they could not assist an Indian tribe that is NOT UNDER FEDERAL JURISDICTION.  Which is why the United States is also listed as a defendant in the Mashpee Wampanoag land claim argument - which they lost....twice.   Also, the solicitor for the Department of the Interior actually came to Massachusetts as a witness, under oath in a court of law and testified against the Tribe having Federal Jurisdiction - which means NO LAND CLAIM…..that didn’t happen in Oneida, now did it - in fact - it was the exact opposite in the Oneida land claim.  Bad example there Howie….

Moving on….

So I say this…go ahead and try to say the evidence the opponents of trust land in Massachusetts have is irrelevant because the tribe will argue the dissenting opinion in the SCOTUS decision….that’s fine.  If it heads to court, and we have to sue the Secretary of the Interior for placing land in trust for a tribe that does not meet the requirements under the IRA, we will….and the Secretary will lose just like it did in Carcieri.  Also Howie  – you got Patchak wrong too….but I will leave that to you to figure out. 

 

The real question here is this….if the Mashpee Wampanoag Tribe is “light years” ahead in getting land in trust and a casino in Region C, then why such a fight to keep the region closed to commercial bids?  I mean, the State Compact clearly states that if a commercial casino is built in region C then the Tribe will pay ZERO to the state for mitigation….and since Cedric claims that the tribe is light years ahead of any other commercial casino being built in the State, and is clearly hell bent on using the language in the state compact to keep region C closed, then why not just allow the Gaming Commission to open region C for commercial gaming - it makes no sense…I mean, according to Cedric Cromwell, casino shovels will be in the ground by this time next year. So what exactly is the worry?  Why take the offensive?  What’s the big deal….if Cedric is so certain about land in trust approval, then wouldn't the Tribe actually benefit financially if another casino was built in the region?  So why fight it?…but hey, don’t get me wrong.  I actually agree with Cedric – by all means, keep the region closed! 

Its no secret that I am not a fan of the Massachusetts Expanded Gaming Act and would prefer if the State did not prostitute itself to casino interests, but I also realize and am adult enough to accept that it is now the law.  By keeping region C closed for the Tribe to get Land in Trust absolutely guarantees that region C will not ever see a Tribal Casino on trust land and certainly won’t be seeing a commercial casino for a very, very long time – if ever.  I am perfectly happy to support Cedric’s desperate plea to keep region C closed and allow region C to sit in casino purgatory between now and never..…that works for me.  

In all honesty, the letter sent by Howard M. Cooper to the Massachusetts Gaming Commission demanding that the region remain closed because they “lack the lawful authority” to accept competitive bids is just plain bizarre…as are the arguments used to disclaim the fact and provided evidence that the only one lacking anything in all of this is the Secretary of the Interior to take land in trust for the Mashpee Wampanoag Tribe under the IRA.  In a nutshell, this chick thinks this letter is a lesson about it being best to say nothing at all when what you have to say only proves the other sides point. 

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