Amicus Briefly

Where the Middleboro casino issue is concerned, when it rains it pours. The just released Spectrum report has re-kindled the casino debate with it’s not so independent analysis of casino gambling in Massachusetts and actually, I am happy about this. No, not about the content of the so called independent analysis…which can hardly be called independent., but because this report seems to have knocked some sense into our Governor where the Mashpee Wampanoag Tribe’s LIT application and specifically the tribal/state compact is concerned. It is now being reported that the Governor will not entertain compact negotiations unless the land is put into trust. This is good news because I recently received notification that the Supreme Court of the United States will be hearing the Carcieri v. Kempthorne case on November 3rd, 2008. The outcome of this case is a huge deal and is being watched by tribes and casino opposition groups alike nationwide. The bottom line is, the outcome of this case has the potential to change how LIT applications are reviewed and approved for tribes recognized after 1934. The Supreme Court has decided to hear this case and rule on two very important questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indiantribes that werenot recognized and under federal jurisdiction in 1934.

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

The argument for these two questions is summarized below:

The Indian Reorganization Act of 1934 permits the Secretary to take land into trust for certain Indian tribes, significantly impairing state jurisdiction. The Fifth Circuit held that the 1934 Act “positively dictates” that the only Indian tribes for whom land can be taken into trust are those that were “recognized” and “under federal jurisdiction” as of “June 1934”. This Court similarly concluded in that the 1934 Act contained a temporal “recognized [in 1934] tribe” limitation. United States v. John, 437 U.S. 634 (1978). The Ninth Circuit affirmed a district court decision to the same effect.
The Rhode Island Indian Land Claims Settlement Act provides land specifically for the later recognized Narragansett Indian Tribe and comprehensively disposes of all Indian land claims in Rhode Island. The Tribe received 1,800 acres of land for free. In exchange, Congress extinguished aboriginal title and all Indian interests in land in Rhode Island.

- lower court case number 03-2647 -

Simply put, the Governor of Rhode Island is challenging the Secretary of the Interior’s power to take land into trust for Indian Tribes recognized after June of 1934, after the enactment of the Indian Reorganization Act. This is the Act that gives the Secretary the authority to take land into trust for Indian tribes. The questions posed in the petition challenges the First Circuits decision to uphold the decision made by the Secretary of the Interior to remove 31 acres of land in Charlestown, RI from the State’s civil and criminal jurisdiction by acquiring the land in trust for the Narragansett Tribe. The Governor of Rhode Island is challenging this decision because there are two independent statutory provisions that prohibit the Secretary from using his trust authority to divest the State of jurisdiction over the 31 acres of land and create sovereign Indian territory in Rhode Island. Twenty-one other States have signed on to this case as Amici Curiae in support of the petitioners. These States are: Alabama, Alaska, Arkansas, Connecticut, Florida, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Mississippi, Missouri, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas and Utah.

I had the opportunity to read the arguments presented by both Rhode Island and the other Amici States. What I thought would be a boring read actually was quite interesting, and addressed a particular section of the IRA that I have pondered over since the day I read it for the first time. Question one asks that very question so I thought I would share what twenty-two states are saying about the powers of the Secretary to take land into trust for Indian Tribes recognized after 1934. Let’s face it, if the Supreme Court rules in favor of Carcieri then in my opinion, they will be upholding Congress’ intent of the regulation, and what they meant when they used the phrase “...any recognized Indian tribe now under Federal jurisdiction…”

I will save question two - which speaks to the misconstrue of the Settlement Act - for another day. For now, here are the arguments for question one.

What Rhode Island Says

The argument submitted by the petitioner (Donald L. Carcieri), is 88 pages long. In a nutshell, the Governor is arguing that the Secretary may not take land into trust on behalf of the Narragansetts because they were neither federally recognized nor under federal jurisdiction in 1934 and because the text of the IRA unambiguously establishes that the Secretary lacks the authority to take land into trust on behalf of the Naragansettts. He argues that Section 5 of the IRA provides that the Secretary may “acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands …..for the purpose of providing land for Indians.” Therefore, the Secretary must establish that the members of the tribe are “Indians” within the meaning of the IRA.

Section 19 of the IRA provides that “..the term “Indian” …shall include [1] all persons of Indian decent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendents of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of on-half or more Indian blood”.

Rhode Island goes on to say that when the Secretary relies upon tribal membership – rather than descent or blood quantum – to establish that trust beneficiaries are “Indians” under the IRA, the plain language of Section 19 – which encompasses “any recognized Indian tribe now under federal jurisdiction” – restricts the Secretary’s trust authority to property acquired for person who are members of tribes that were both federally recognized and under federal jurisdiction at the time of the IRA’s enactment in 1934. The Secretary may not – through the promulgation of a regulation, or otherwise – expand his trust authority beyond this statutorily imposed boundary.

The argument goes on to define the word “now” from dictionaries published shortly before, or contemporaneously with the enactment of the IRA. The definitions establish that the word “now” means “at the present time” or, synonymously, “at the time of speaking” so to interpret the word “now” to refer to the time that it the IRA is applied, rather than to the time it was enacted, would render the term utterly superfluous.

- brief for petitioner Donald L. Carcieri -

What the other 21 States say

The amici curiae states submitted a 34 page brief in support of the brief filed by Rhode Island. These States have vital interest in this case because of the misinterpretations of the two federal statues, the Indian Reorganization Act of 1934 and the Rhode Island Indian Claims Settlement Act. The States argue that land taken into trust for Indians by the Secretary and removed from state authority in several significant respects (including taxation, land use restrictions and certain environmental regulations) limits the States’ ability to exercise their sovereign powers to protect the public on the trust land, which results in the creation of an area largely controlled by a competing sovereign within a state’s borders without its consent. This is contrary to core principles of federalism.

The States point out that the Secretary has already taken into trust several million acres nationwide under the IRA – an area approximately twice the size of Connecticut and Rhode Island combined. The Amici States have a compelling sovereign interest in having the Supreme Court define the proper application of the IRA, particularly in conjunction with settlement acts.

When the Secretary exercises his power to take land into trust, there are substantial and permanent consequences for the impacted state and local communities. This power gives the Secretary the capacity to change the entire character of a state, particularly when the Secretary uses it in coordination with modern Tribes who build casinos that are located in populated areas and existing communities. The States feel that it is incumbent on the courts to vigilantly enforce the limits Congress has placed on the Secretary’s power in order to maintain the proper segregation of powers.

The precise question at issue regarding the Secretary’s power to take land into trust in this case is whether Congress in the IRA intended to allow the Secretary to take land into trust on behalf of Indian Tribes that were not recognized and under federal jurisdiction in 1934, when the IRA was enacted. Congress addressed that precise temporal question in the IRAs text and clearly provided that the Secretary’s authority to take land into trust is limited to pre-1934 tribes. The IRA allows the Secretary to take land into trust “for the purpose of providing land for Indians” (25 USC 465), and defines the term “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” (25 USC 479). The States argue that Congress’ use of the word “now” in the definition of an “Indian” unambiguously expresses its intent to limit the Secretary’s trust authority to tribes that were recognized and under federal jurisdiction at the time of the IRAs enactment in 1934. The argument cites several cases where courts have repeatedly held in similar circumstances – both before and after the passage of the IRA – that when Congress uses the word “now” in a statute, it intends to incorporate a temporal limitation as of the date of enactment. Therefore, the context of the IRA strongly supports the conclusion that by using “now” Congress intended to limit the Act’s application to tribes recognized and under Federal jurisdiction in 1934. If Congress had intended that land can be taken into trust on behalf of tribes recognized at any time, they would have used the phrase “now or hereafter”, or similar language, or simply deleted the word “now” altogether. There is simply nothing in either the text or the context of section 479 to support the Secretary’s reading of “now” to mean whenever in the future the Secretary chooses to act.

The States also argue that the plain reading of the IRA is consistent with its background and legislative history, meaning the circumstances surrounding the enactment. They argue that the legislative history of the IRAs “now” limitation is consistent with Congress’ intent to limit the IRAs application to 1934 tribes. Representative Howard and Commission of Indian Affairs Collier – two key players in the IRAs enactment – made statements that directly indicate that the IRA was intended to apply only to tribes recognized as of 1934.

“….section 479 defines the persons who shall be classified as Indian. In essence, it recognizes the status quo of present reservation Indians and further includes all other persons of one-fourth Indian blood”

- Representative Howard on the IRA-

Commissioner Collier spoke even more clearly on this issue. An early draft of the IRA defined “Indian” to among other things “include all persons of Indian descent who are members of any recognized Indian tribe.” Senators expressed concern about whether that definition would sufficiently ensure bona fide status and, in response, Commissioner Collier proposed the “now” limitation, which Congress adopted.

The Amici States conclude that reading the IRA to apply only to tribes recognized and under federal jurisdiction in 1934 is not only consistent with the legislative history directly related to the “now” limitation, it is also entirely consistent with the Act’s broader purposes and history. The IRA intended to help remediate the impact on the then recognized tribes of pre-1934 federal policies and bureaucratic failings, and the intent and purpose of the IRA was “to rehabilitate the Indians economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism” resulting from the government’s allotment policy, which began with the passage of the General Allotment Act of 1887 and lasted until 1934, when the IRA was enacted. It was reasonable for Congress to direct remedial efforts toward the tribes that has suffered as a result of disastrous federal policies and bureaucratic failings, rather than allocating scarce resources to tribes that, from the federal government’s perspective, did not yet exist and would not be subjected to those policies.

The Amici States also point out that reading the IRA as it is written does not leave post-1934 tribes unable to obtain land. It simply insures that such grants of land are made by Congress, not the Secretary, thus guaranteeing that the States and their citizens have the full ability to protect their interests through the democratic process.

- brief for Amici Curiae States -

I must say that I am extremely pleased that our Attorney General, Martha Coakley signed onto this brief. If anything, it gives weight to the idea that perhaps our State isn’t so enamored with the idea of an Indian Casino. Even our legislature has shown its reluctance to legalize class III gambling or allow Deval Patrick’s casino dream to come to fruition so voting quickly to approve a tribal/state compact is highly unlikely. Also, the State's newfound reluctance to even think about compacts before a LIT decision is made is a good thing. Best to wait and see how the Supreme Court rules on this case. If they favor Carcieri, then it will take an act of Congress to approve that land in Middleboro – and it will allow us the full ability to protect our interests through the democratic process.

Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. - James Maddison

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

The big bad wolf is not so big and bad

Can the antics on the topix forum bring down the CFO house?

not by the hair of our chinny, chin, chin............so huff and puff, but you can't blow this house in.





No Casino!


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

Left Ahead..Invasion of the Anti Casino Pod People!

Who needs a radio show when you can podcast your thoughts, feelings, and most importantly your facts regarding local and State politics on the web? Apparently not Ryan Adams, blogger extrordinare. He is an advoacate for a better future by giving an analysis of the current political situation in our wonderful State. It is no wonder that he has much to say about politics in Massachusetts and is a powerful adversary of expanded gambling in Massachusetts. I have recently had the pleasure of meeting Ryan in person and I must say that he is a wonderful, passionate and extremely dedicated political voice. I highly recommend reading his blogs. He has been and continues to be, a strong voice in the CasinoFreeMass movement, as well as other anti gambling issues our State faces year after year.

So on that note, if you missed it, our beloved (not to mention educational and enternaining) blogger friend Gladys Kravitz was a guest speaker on Ryan's podcast. You can listen to the podcast at Left Ahead.

Thank you to Ryan and thank you to Gladys. I think my favorite quote of the podcast was "...it's like a flesh eating bacteria..."

Note to Ryan:

I too love the Gladys Kravitz videos you posted, but my personal favorite is.......

"Give me the liberty to know, to utter, and to argue freely according to conscience above all other liberties." - John Milton, Areopagitica, 1644

"Let thy speech be better than silence, or be silent." - Dionysius of Halicarnassus

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

The BIA Behaving Badly

So here I was having a perfectly glorious summer when I hear something that brought my lazy summer days to a screeching halt. Apparently there is this rumor floating around the area that the Mashpee Wampanoag Land In Trust Application will be approved this summer. Now I am not one to take any rumor too seriously but I must admit, I was a bit taken aback by this one. So of course, I looked into it….or, more accurately, several of us looked into it.

Come to find out by doing a bit of research, the BIA has this nasty little habit of approving LIT applications for Tribes before an Environmental Impact Statement (EIS) has been completed for the land in question. This news is a bit distressing, especially when you consider the fact that Land in Trust regulations requires compliance with NEPA (National Environmental Policy Act) Regulations. As stated on their home page, NEPA requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet NEPA requirements federal agencies must prepare a detailed statement known as an Environmental Impact Statement (EIS).

Basically, NEPA requires an environmental scoping session and a completed Environmental Impact Statement for all Land in Trust Application decisions. It would seem however, that in some instances, the BIA has approved Land in Trust applications without a completed EIS, such as what happened recently in Rohnert Park, California. Here is what the Attorney who filed the suit has to say:

The Bureau of Indian Affairs jumped the gun by attempting to transfer title to this poorly planned site even before completing the environmental impact statement,” Volker said. “Operating a casino at this site poses huge environmental impacts, including massive traffic congestion on Highway 101 and over-pumping of local wells."

“The BIA has thumbed its nose at the public by attempting to end-run the laws that protect the public from needless environmental harm,” Volker said. - the press democrat

This bad habit is causing some major waves throughout several States. Throughout this Country, individual communities and States are standing up for their inalienable sovereign rights granted to them in the United States Constitution. They are questioning the BIA's decision making process and in some instances, the SOI’s right to take land off the tax rolls regardless of a State’s or community's position on the matter.

Consider the Buffalo, New York case that my friend Gladys Kravitz recently blogged about….or how about the Columbia River Gorge case in Oregon. These are but a few examples of the BIA behaving badly.

So what about us?

Please allow me clarify the Mashpee Wampanoag Tribe's position with regards to their Land in Trust application.

The application is specific in that it asks approval for three things:

1. Land(s) into Trust
2. Reservation status for said land(s)
3. Permission to game under the initial reservation exception of IGRA.

This is an all or nothing situation for the Mashpee Tribe. They can't get just one of these things....the application has to be approved for all three requests or the application will be denied. Since we already know the land in Middleboro does not meet the requirements for an initial reservation, this application should be, and most certainly will be denied.

Furthermore, neither office of the BIA in Tennessee or Washington DC has the authority to approve the application because of the initial reservation proclamation request. This request leaves the authority squarely on the shoulders of the Secretary of the Interior. In the Mashpee Tribe's case, the BIA does not have the authority to make the decision on thier application. If they do, they are essentially violating federal statutes.

The question being raised in the Carcieri v Kempthorne case is whether or not it is unconstitutional even for the Secretary of the Interior to take land into Trust in certain circumstances. I had blogged about this several months ago. Recently, I received the following comment on that particular blog.

Adam B has left a new comment on your post "Don't Tread on Me":

CONGRESS delegated the authority to take lands into trust for Indians to the Secretary of Interior in the Indian Reorganization Act of 1934. CONGRESS has plenary power regarding Indians and Indian tribes, leaving the States out of the mix (with the exception of the ability to appeal decision by the BIA). Since Congress has delegated the authority to the Secretary to do what the 1934 act proscribed there is left no claim that the BIA/Secretary is acting beyond their authority. - Posted by Adam B to carverchick at July 14, 2008 11:12 PM

This is an excellent, albeit misleading comment. First of all, States are not kept out of the mix in regards to LIT decisions. In fact, the regulations clearly state that once an application is received, the affected State, community and interested parties will be notified and allowed to comment. As far as Congress having plenary power regarding Indians and Indian tribes, this is the very argument that the Amicus Brief for the Carcieri v Kempthorne case is tackling, and which will be heard by the Supreme Court this fall or early next year.

This case is essentially questioning whether or not a Tribe recognized after the enactment of the Indian Reorganization Act of 1934 is actually covered under the Act. Several States, including Massachusetts have signed on to this case.

The Indian Reorganization Act (IRA) was enacted by the U.S. Congress on June 18, 1934 and its purpose was to decrease federal control of American Indians and to increase tribal self-government. The act sought to strengthen tribal structure by encouraging written constitutions and to undo the damage caused by the Dawes General Allotment Act by returning surplus lands to the tribes. The IRA says:

The term "Indian" in this Act shall include all person of Indian decent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any reservation, and shall further include all other persons of one-half or more Indian blood.

It also says:

The term "tribe" wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo or the Indians residing on one reservation.

It goes on to say that the Act shall not apply to any reservation which votes against its application. The elections were to be held within one year of the passage of the Act, and it was the responsibility of the SOI to conduct the elections.

Sec. 18. This Act shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against it application. It shall be the duty of the Secretary of the Interior, within one year after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days' notice.

The way I read this is a majority of the Indians (identified in the first paragraph) in all tribes (identified in the second paragraph) had to vote to accept or reject the application of the IRA within one year of it's passage. Since the Act says that it covers all of the tribes that are recognized now and it requires all recognized tribes to vote on the Act, then it stands to reason if they didn't exist to vote on whether or not to reject the IRA, how are they one of the tribes covered under the Act? This is in essence, one of the arguments in the Amicus Brief.

So if the tribe is not recognized under the Act, then the only other way for the Mashpee tribe to acquire land is through an act Congress, as I tried to explain in Lucky Thirteen, and unless Adam B or anyone can provide me with irrefutable evidence and not some sentence that is cherry picked to make his argument, then I stand by what I say, and I stand by 25 CFR 151.3.

§ 151.3 Land acquisition policy.
Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress.

So the question is, does an Act passed by Congress (in this case the IRA) have authority over a States constitutional rights covered under the tenth amendment? I don't think it does, and apparently neither do the individual States. I guess that is for the US Supreme Court to decide.

Additional clarification on the Carcieri v Kempthorne case arguement: The Carcieri v Kempthorne case before the Supreme Court in November is not challenging the Constitutionality of the Indian Reorganization Act. The Act is constitutional as passed by Congress but it does not apply in the eastern states. It only applies to Federal reservations which already existed in the West.

So back to this rumor about the Mashpee Tribe’s application…..I find it highly unlikely that the BIA will behave badly with this application. In fact, given the testimony they heard at the March 25th EIS scoping session, the complications surrounding the Mashpee Tribe’s application asking for two parcels of land that are 39 miles apart as an initial reservation – one parcel specifically slated for a mega-casino resort, and the already pending legal battles from other States, I think the BIA will be on it’s best behavior in regards to the Middleboro land decision. But if they chose to try and circumvent Federal laws, we will be there to call them out on it. In a court of Law.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it. - The Declaration of Independence

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

America the Beautiful

Did you know that Gladys Kravitz has been blogging for an entire year now?! Gosh, time sure does fly when you’re fighting a mega-resort casino from being built in your community. Well, as I was reading her latest, she linked to an earlier blog of hers, Gladys Kravitz Goes to Raynham, and it reminded me of a question she posed while commenting on the highlights of her evening listening to the Chairman of the Casino Resort Advisory Committee (CRAC) try to assure the Raynham Board of Selectmen that Middleboro has everything under control, to which Selectman McKinnon replied:

“Son, I guess I just don’t understand why your town would…give up it’s own control, and chose to depend on the Tribe’s benevolence.”

Gladys goes on to pose the question that I have been pondering about since the day she posted this blog:

But it’s clear that this is one of those infinitesimally few things that Brian has no answer for. And I don’t have any profound wisdom to impart to help him understand. I mean, how do you explain America? -- (courtesy of Gladys Kravits – thank you Gladys!)

When she asked this, I couldn’t help but wonder….how do you explain America? Seriously, how does one explain a Country’s soul…it’s spirit and how the concept of Life, Liberty and the Pursuit of Happiness is the foundation on which this Country stands?

In the Declaration of Independence, our founding fathers, ..”held certain truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, Liberty and the Pursuit of Happiness.” So is this how you describe America?

Many say that America is all about the American Dream…a term first used by James Truslow Adams in his book The Epic of America written in 1931. In his book, he says, "The American Dream is that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement. It is a difficult dream for the European upper classes to interpret adequately, and too many of us ourselves have grown weary and mistrustful of it. It is not a dream of motor cars and high wages merely, but a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position."

Many people seem to feel that the American Dream has become the pursuit of material prosperity because the more stuff you have, the happier you will be. . Yet others live the American Dream with less focus on financial gain and more emphasis on living a simple, fulfilling life that does not include living in the vicinity of a mega-casino resort on sovereign land, you know....a seperate country, like England.

Our Country could also be explained by our Flag, and what it stands for:

The 13 stripes in the American flag represent the original 13 colonies . The 50 stars represent the States and a new constellation, a new nation dedicated to the personal and religious liberty of mankind.

Red stripes proclaim the fearless courage and integrity of American men and boys and the self-sacrifice and devotion of American mothers and daughters. White stripes stand for liberty and equality for all. blue is the blue of heaven, loyalty, and faith.

But what does that mean to me, to you, to anyone….heck, I couldn’t even explain America to myself when I read the question, at least not without taking the time to really think about it. I really find this to be a fundamentally profound question and it really got me thinking a lot about it off and on for the past several weeks. America means so many things to so many people….how does one explain that?

So, in the spirit of Independence Day, I have decided to go out and find the answer to Gladys’ super important question, but wanted to keep it simple, and honest, and true. So I asked some friends and family one simple question….

If you had to describe America in three words, what would those words be?

Here is some feedback to my question. No editing....only the freedom of my family and friends expressing their right to free speech...ain't this an awesome country?

Home, Family, Liberty

GENEROUS CARING GREAT

LAND OF HOPE.

Beware of Bush

Corrupt government officials

No educational investment

Arrogant political leaders

Too much violence

Life, Liberty, Happiness

Freedom to Blog!

Freedom, Rights, Independence

beautiful,free and home

Frustrated, Worried And, I am very, very confused that the “ US ” could be in such trouble/need from more than one area.

Freedom to be

opportunity to excell

Freedom, choice, liberty

But by far, the one answer that left me speechless came from no other than my blogger friend herself, Gladys Kravitz:

“Never Give Up”

...and to me....the three words America the Beautiful says it all.




So, how would you describe America in three words?

“Patriotism is easy to understand in America; it means looking out for yourself by looking out for your country." - Calvin Coolidge, 29th President of the United States of America

"Let every nation know, whether it wishes us well or ill,that we shall pay any price,bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and success of liberty." - John Fitzgerald Kennedy, 35th president of the United States of America


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

Nothing Good Ever Comes

All violence, all that is dreary and repels, is not power, but the absence of power. Ralph Waldo Emerson

So the Cape Cod Times is reporting today that the restraining order on Mashpee Wampanoag Tribal Leader Shawn Hendricks has been lifted. Our blogger friend Bellicose Bumpkin posted the article today on his blog. You know...when I read this I was really surprised. Here is a guy who has scared his wife and kids to death with his spur of the moment rages and bad temper. He has also admitted to steroid use. Steroids? Gosh, where is the Senate when you need them? Too busy looking into the alleged steroid use of professional baseball players....to heck with one certain Tribal Leader who wants to build a mega-casino resort on sovereign land. Honesty and integrity in baseball is obviously way more important than honesty and integrity in LIT applications.

From the Cape Cod Times:

In court yesterday, she spoke of her husband's violent temper, which she says escalated over the past three years, and even more so since he stepped into the role of tribal council chairman last August when his mentor, Glenn Marshall, was forced to resign.

Federal investigators launched a probe into the finances of Marshall, Hendricks and other tribal council leaders shortly after Marshall stepped down.

"It'll be a spur-of-the-moment rage that he'll burst into," Elizabeth said. "Most of his (anger) is directed toward me."

"My husband is a fourth-degree black belt and has firearms," she wrote in the affidavit. "He has a very bad temper toward me and enjoys intimidating me."

My goodness, my heart really goes out to this woman. No wonder she declined comment after the hearing! This guy has firearms, a third degree black belt and has a history of steroid use. The sad thing here is that victims of domestic violence almost always go back to their abuser. I say almost, because some are actually able to find the strength and courage to just leave....that is not an easy thing to do especially when you consider that physical abuse is always coupled with psychological abuse, leaving the victim to feel like they can't leave. So, I guess it is back to the "honeymoon stage" for this couple. I hope it works out for them and I really hope that Shawn Hendricks gets some help so that they and their children have a chance at some sort of happiness.

So, here is where I become dumbfounded at this restraining order being lifted. Our Governor just recently announced his plans to combat domestic violence. Apparently Governor Patrick is alarmed by the sharp increase in domestic violent related deaths in our State. The article in the Cape Cod Times reports the unveiling of his plans to bolster police training and a statewide review of the data to determine the reasons for the rise.

"We have a public health emergency on our hands," he said.

Domestic violence-related deaths have nearly tripled in Massachusetts during the past three years, from 19 in 2005 to 55 last year, according to the nonprofit Jane Doe Inc., which advocates against domestic violence and sexual assault. There have been 24 deaths this year. - Cape Cod Times

Well, I give a big huge kudos to our Governor for this! He has certainly scored some major points with this chick. Domestic violence has apparently become an epidemic in our State and something needs to be done about it. Lifting restraining orders from men who carry firearms and could kick the living heck out of someone without even trying is probably not the most responsible thing for a court to do. It shouldn't matter that he had no prior record.....his own wife is afraid of him. Too bad the Probate Court in Barnstable County missed the Public Health Advisory released earlier this month by Massachusetts Health and Human Services. Maybe Judge's across the commonwealth will read this advisory and think twice before making decisions that could put victims of domestic violence in further danger.

June 05, 2008 - For immediate release:

Public Health Advisory: Massachusetts Health Officials Issue Advisory to Public and Health Care Providers on Domestic Violence

Increase in domestic violence deaths spur call to action.

Download Word version of advisory in available foreign languages

Portuguese
Spanish

BOSTON — Driven by recent domestic violence killings, the Massachusetts Department of Public Health (DPH) today issued a public health advisory on domestic violence.

Public health advisories are tools reserved for communicating urgent information to the public on health issues facing the community. Such advisories define the scope of the problem and provide important information on prevention and treatment.

“We use these advisories to alert the public and health care providers throughout our state to pay attention to a pressing health issue,” said DPH Commissioner John Auerbach. “The recent spate of domestic violence-related deaths in Massachusetts is disturbing. Domestic violence in any form is unacceptable and we can all play a part in preventing abuse from happening to anyone in the Commonwealth.”

Commissioner Auerbach added that he wanted to assure the public and health care providers that resources exist for victim advocacy, counseling and shelter services, as well as programs to hold batterers accountable and prevent domestic violence incidents. In addition to issuing the advisory through the media, DPH will also send a copy to all health care facilities in Massachusetts.

The Problem

The statistics on the impact of domestic violence are sobering, and point clearly to the extent of this serious public health problem.

The number of domestic violence deaths in Massachusetts was nearly three times higher in 2007 than in 2005. According to statistics maintained by Jane Doe, Inc., there were 15 murders and four domestic violence-related suicides in 2005, 28 murders and three suicides in 2006, and 42 murders and 13 suicides in 2007.

Additionally, according to Jane Doe, Inc., a total of 31 children were directly impacted by domestic violence in 2007. Five children were killed, 13 orphaned, 11 lost their mother, and two lost their father.

So far in 2008, Jane Doe, Inc. reports that there have been 19 domestic violence homicides and five domestic violence-related suicides for a total of 24 deaths.

A 2003 CDC study estimated that each year domestic violence involving an intimate partner results in 1,200 deaths, two million injuries among women, and 600,000 injuries among men.
That same CDC study estimated the costs of intimate partner violence exceeded $5.8 billion per year, including direct medical and mental health costs for victims and lost productivity.

Help for Victims and their Children

Health officials stressed that more can be done by government, the public, health care providers, and the media to inform victims about services that can help them.

“There are important messages that we can give victims of domestic violence. First, what they are going through is not their fault, next, that violence affects their health in many ways, and finally, that help is available and healing is possible,” said Carlene Pavlos, Director of the Violence and Injury Prevention Program at DPH.

If you or someone you care about is a victim of domestic violence, you are not alone. Programs across Massachusetts can provide free, confidential services to victims.

If you are in immediate danger, call 9-1-1.

For help you can also contact SafeLink, the Massachusetts Statewide Domestic Violence hotline. The SafeLink hotline is staffed 24 hours a day with trained domestic violence counselors who can provide help in multiple languages. If you need help, call the SafeLink toll-free number: 1-877-785-2020.

www.janedoe.org/safety.htm for a listing of local victim service programs.

Information for People who Are Using Violence in Relationships

If you are using violent, controlling and/or intimidating behaviors, your entire family including your children are impacted. You can stop. There are educational programs available to help you to recognize and change your behavior. People who attend batterer intervention programs are less likely to commit new acts of violence or to violate restraining orders. For information on a Batterer Intervention Program near you, call 617-624-5497.

Information for the Public

Domestic violence is sometimes referred to as a “silent crime” because victims are often too afraid to come forward, and friends and family often do not want to become involved in something that they consider a personal matter. The abuse can take many different forms including physical, sexual, economic, emotional and psychological abuse, and is often a pattern of these behaviors. Domestic violence is a crime and stopping it requires help from family, friends and neighbors.

Tips for the Public to Help Identify and Prevent Domestic Violence in Their Community
Educate yourself on what domestic violence is and how to stop it. There are many resources available including these web sites:

www.cdc.gov/ncipc/dvp/ipv_factsheet.pdf
www.ovw.usdoj.gov/pledge.htm
www.janedoe.org/involved/involved_whiteribbonday.htm
www.endabuse.org/programs/publiceducation
www.janedoe.org/know.htm

Call the SafeLink number (1-877-785-2020). They can give you advice if you are trying to help someone you know who is being abused. They can also provide you the name of a Batterer Intervention Program if you are concerned about someone’s jealous, obsessive, controlling or abusive behavior.

If you hear or see a domestic violence crime, call 9-1-1 and report it to the police. If possible, write down specifics as to location, license plate numbers, and any other information that may be of help to law enforcement.

Speak out against domestic violence with your family, neighbors, and friends. Let people know in your house of worship, at work, school, and elsewhere that domestic violence is unacceptable in your community and share tips on how to identify and prevent it from happening.

If you belong to a civic organization, invite a speaker from your local domestic violence program to educate your group on the issue. Ask your local library to prominently display books on domestic violence and resource information on how victims can get the help they need.

Volunteer or donate to a domestic violence organization in your area. To find one close by, contact Jane Doe, Inc. at 617-248-0922, or visit www.janedoe.org.

Information for Health Care Providers

Domestic violence is a serious, underlying cause of poor health for many people in the Commonwealth. Health care providers can play an important role in identifying and responding to victims of domestic violence through routine screening and appropriate referral.
The Massachusetts Department of Public Health recommends routine screening for domestic violence victimization in all health care settings. Providers should be appropriately trained in the dynamics of domestic violence in order to screen appropriately, and should be well-versed in appropriate and safe referrals for those victims who come forward.

Appropriate screening and referral has several important health implications:

An 11-city study of victims of intimate partner homicide and attempted homicide published in 2001 found that the majority of victims (74% of the nearly 240 murdered women and 88% of victims of attempted homicide) had been seen in hospital ERs for some ailment at some point in the year before the incident. Furthermore, nearly two-thirds of these women were evaluated in ERs, hospital in-patient or ambulatory care settings for injuries related to the domestic violence. (Sharps, et al, “Health care providers missed opportunities for preventing femicide”, Prev. Med. 2001; 33:373-380). Identification, assessment and referral of these victims could have been life-saving.

The February 8, 2008 edition of Mortality and Morbidity Weekly reported dramatic prevalence of violent victimization (1,200 deaths and two million injuries to women from intimate partner violence each year, and nearly 600,000 injuries to men) and further reported that women who have experienced partner violence are at significantly greater risk for heart disease, stroke, asthma, arthritis, heavy drinking, risky sex, and for needing a cane or wheelchair than women who have not experienced partner violence. Identification and referral can have important implications for a myriad of health risks, as well as implications for reducing health care costs.
For information on training resources and screening and referral protocols for health care providers, go to:

www.endabuse.org/programs/healthcare – materials at this website include the National Consensus Guidelines on Identifying and Responding to Domestic Violence Victimization in Health Care Settings

www.massmed.org (see the public health materials regarding partner violence)

www.cobth.org/dom_violence.html for a listing of health care-based domestic violence programs in the greater Boston area and their available resources

Or call the Department of Public Health’s Division of Violence and Injury Prevention at (617) 624-5463.

For a listing of local programs that can provide critical victim services to patients/clients go to: www.janedoe.org/safety.htm

Information for Safely Addressing Someone You Think Might Be Abusive and Controlling
If you recognize someone who exhibits behaviors such as jealousy, obsession or possessiveness, take steps to assist that person to get help. This can be critical to the safety and well-being of intimate partners and families. Talk with others about your options. Call your local Batterer Intervention Program, SAFELINK 1-877-785-2020 or the DPH Batterer Intervention Program Services at 617-624-5497 for help.

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

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

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