Lucky Thirteen

I must admit that when I heard that Deval Patrick had formally rejected the Mashpee Wampanoag Indian Land into Trust Application I was thrilled. Yes….thrilled. Not because I thought we had won, but because I knew that his rejection of the application as well as the Town of Mashpee’s rejection is yet another major hurdle that needs to be defeated by the casino investors. I also knew that this rejection by the Governor was his own political tactic to push his three casino agenda and force the Mashpee Wampanoag Tribe to go the commercial route as so poignantly addressed by Gladys Kravitz in Casino Roulette.

Perhaps the casino investors would have been better off teaming up with Deval because then maybe they would actually have had a chance to build their pipe dream. As it stands, going the federal route will most likely result in a long drawn out legal battle. A battle that if by some miracle they did eventually win, would result in a big fat zero because we all know that Deval’s casino plan has little and no chance of passing. Our legislators are much too smart to play his “special interests” game.

Let’s face it…the only way the casino investors are going to get a casino in the commonwealth is if we allow them to…and they go commercial. As I said before in my previous blog, the federal government placing land into trust in the original thirteen colonies is unconstitutional. Contrary to what you may have been told, or what you might be bullied into believing, the Bureau of Indian Affairs has absolutely no legal grounds to decide if this land can go into trust ….only an act of Congress can do that . I refer you to title 25 section 151 of the Code of Federal Regulations….

25 CFR 151.3 Indian 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.”

Since the land in Middleboro is not held in trust or restricted status, the Secretary of the Interior is not permitted to place land into trust as outlined in 25 USC 465; Protection of Indians and Conservation of Resources - Acquisition of lands, water rights or surface rights; appropriation; title to lands; tax exemption.

But there is another catch….even Congress has no legal jurisdiction to force the State into allowing land into trust because land in the original thirteen colonies was never federal territory. If you know your history, then you know that from the day the first settler’s came to these shores, land was the principal basis for wealth. Wars were fought, treaties were made and by 1870 the Mashpee and Gay Head on Martha’s Vineyard Indian Districts became incorporated as towns of the commonwealth. They were made citizens of the commonwealth 54 years before they were made full citizens of the United States and every single citizen of this Commonwealth is under the civil, criminal, and taxing authority of this State regardless of race, ethnicity, creed, religion or sex.

But wait....even before the Mashpee Wampanoag Tribe became incorporated into the commonwealth, the original 13 colonies ratified the Constitution and the Federal Government was born….the United States Government did not exist prior to September 17, 1787.

Then in the 1800’s America began moving west and laid claim to land and made them federal territories of the United States. It is this land that was originally owned by the US Government. Nearly all of the territory in the United States outside the original thirteen colonies was comprised of public lands of the federal government which they acquired from foreign powers and from native Indians. It is these public lands that over time became the other 37 States. The founding fathers must have foreseen westward expansion…..

Article IV, section 3 (property clause) of the United States Constitution empowered Congress to make appropriate “rules and regulations” for Federal territory and allowed new states to be admitted by the Congress into the Union. The Federal Government’s authority over its land is defined in Constitution’s enumerated powers of Congress and in this clause.

Article IV, section 3
“The Congress shall have power to dispose of and to make all needful Rules and Regulations respecting Territory and other Property belonging to the United States.”

From what I can gather, the Supreme Court has read the Property Clause extensively and has stated that the clause gives congress both a general legislative power and the power of a proprietor over federal lands – therefore, it seems that because Massachusetts is an original colony this clause does not allow Congress to have legislative power over the land in the commonwealth. There is not now, nor has there ever been federal lands existing in Massachusetts. Only after the constitution was adopted did the federal government even exist.

So in a nutshell….

Federal lands never existed in Massachusetts, nor can they be created - 25 USC 465 along with 25 CFR 151.9 only applies to surplus federal public domain lands that may be restored to federal Indian reservation for the use of an Indian tribe. Only Congress, by passing a statue under its constitutional authority as outlined above in the Property Clause has the legal ability to purchase lands…..but not in the original thirteen colonies!

There is no federal power or authority to set aside the proposed 539 acres in Middleboro and the 140 acres in Mashpee and put it into federal trust.

Whoops!….I guess the casino investors didn’t do all their homework! Good thing Attorney General Martha Coakley did ....she joined the Carcieri v. Kempthorne Supreme Court Case knowing all the facts about land into trust.

I do encourage each and every one of you to write your letters to the Secretary of the Interior opposing the land into trust application – he needs to know how we as a community feel about living next to a mega resort casino.... because for now, he is the one making the decision.

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