The Irony of it All

There was an interesting article in Monday’s Enterprise titled “Magazine Blasts Casino”. I call it interesting only because of the title. I would Oliver Mill Herring Run

think a more appropriate title would have been “Magazine Exposes Casino Impacts” because that is really what the Massachusetts Audubon’s recent magazine article is really about. You can read the Mass Audubon article in it’s entirely at CasinoFacts.org.

I must say I was moved by this article, because of its message, and specifically because it reiterates the haunting, yet moving words of Faries Dreaming Bear Gray, spiritual leader of the Massachusett Tribe when he spoke at the BIA EIS scoping meeting last March….his was a powerful and moving speech – here is what he had to say.
(please note that I am reprinting only a portion of his words. If you would like, you can watch and listen to his powerful speech yourself.)

My concerns in Middleboro are twofold. One - this is not Mashpee territory. Two - destroying trees, the four-legged, the winged ones, all the creatures that will be destroyed if they build a casino is not the native way. And I don't know how the Mashpee can not be ashamed to kill such things and then say that they are still connected to the land. That is not the way. I am the spiritual leader of the Massachusett. I have spoken with our ancestors - Massachusett and Wampanaog are not happy.

What about the trees. How many trees are going to die. How many? Does anyone know? What about the creatures? How many will lose their homes? The eagle, the hawks, which the Creator sees us through, will see the Mashpee destroying the land. The Mashpee should be ashamed. I don't understand how the Mashpee can make sense of what they are attempting to do. They say that they care about the land, they have been good stewards of the land. But they are going to destroy land. What little we have left they will destroy for financial reasons - to build a casino - because their tribe is struggling. What gives the Mashpee the right to take the lives of our brothers and sisters, our cousins - the creatures that live there? That is not the native way. That is the way of the settlers. That is not the native way - it never has been. I will not question the blood of the Mashpee .. but their spirit is gone. If their spirit is intact, they would know this is the wrong thing to do. You cannot replace those things that will die. As a native, they should know this.

- Faries Dreaming Bear Gray -

Well, it is quite apparent to me that there are many Native Americans who do know this …and many settlers, also. Unfortunately, we settlers do not have the same spiritual connection to nature as the Native Americans do, but there are many who honestly do try – and dedicate their lives to it.

For those who are not aware, Mass Audubon works to protect the nature of Massachusetts for people and wildlife and they are the largest conservation organization in all of New England.

THEIR MISSION: To Protect The Nature of Massachusetts.

THEIR VISION: A Commonwealth in which people appreciate and understand native plants and animals and their habitats and work together to ensure that they are truly protected.

THEIR ROLE: To serve both as a leader and a catalyst for conservation, by acting directly to Protect The Nature of Massachusetts and by stimulating individual and institutional action through education, advocacy, and habitat protection.

THEIR GOALS: To abate the principal threats to The Nature of Massachusetts. Broadly defined, these threats are:

-- habitat fragmentation
-- habitat loss
-- disruption of ecological processes
-- invasive species
-- incompatible human uses of the land.

- Mass Audubon website -

Well it is no wonder this carefully thought out and well written article gives us a true insight into what a mega resort casino can and will do to not only Middleboro…but to all the surrounding communities. It would seem to any rational person, that the Mashpee Wampanoag’s plan to build a mega casino-resort smack dab in the middle of forested wetlands easily falls under all five broadly defined principal threats to nature.

Heidi Ricci, senior policy analyst for the Audubon Society, and someone I would call a true steward to the land understands the threat we all face…and it is a threat….a threat to that land’s specific, fragile ecosystem and the wildlife that relies on it for survival. It is a threat to our quality of life and to our natural resources – those resources we so readily take for granted every time we turn the faucet, stop to admire the flight of a hunting hawk circling overhead, or look up at the stars on a warm summer night.

“It is a very environmentally sensitive site,” Ricci said of the 539 acres proposed for a casino. Ricci said if the land is taken into a trust for the tribe, it will be exempt from state and federal environmental law.

She said the impact to water, habitat and the transportation system in a remote rural area without infrastructure could be disastrous and far reaching.

And the effects won’t be limited to Middleboro, she said. She predicts substantial impact to natural resources and infrastructure in surrounding communities — the possible filling of wetlands, threats to the Taunton River and its 582-square-mile watershed and irreplaceable ecosystems, air pollution and threats to several aquifers in the region.“The impacts are far more than local. While the Native Americans negotiated with Middleboro, nothing’s in place to address the impacts to the rest of the region,” Ricci said.
- enterprise article -

Yes, the impacts are far more reaching than Middleboro, and are far from being easily mitigated. As you all know, I am a bit passionate about the environment. I am because I truly believe that we are responsible and need to be held accountable for the health and well being of this planet we call home. I have no real problems with development, just a really big and huge problem with a project slated to destroy pristine forested wetlands that under any other circumstances, would be considered too sensitive for development. Oh, and the one other thing that really grinds my gears is people who continue to tout that the impacts can be mitigated and no harm will come to anyone because the EIS will fix it all!

Phew!....and here I was, actually worried, that building a casino that rivals the likes of Foxwoods might actually ruin this forested wetland area – hey, that land isn’t called Meeting House Swamp because it’s uplands – is it??

Well, here is some food for thought. The environmental consulting company (one of many) that has been hired by the Mashpee Wampanoag Indian Tribe...eeer...I mean hired by the Tribe's investors.....have a few interesting things to say about “the project” (aka – the casino). Please keep in mind that this consulting company was hired solely for the purpose of gathering information for the EIS because it is a requirement for the LIT process. If the Tribe can get the land placed into trust, then what the Tribe does after the fact will essentially be none of our business because they are a sovereign nation – and all the blogging by a certain Middlboro BoS member won’t mean a darned thing because the Tribe will have gotten what they wanted from the Town….land....land for a casino - land that will be exempt from local, state and most federal regulations – the very regulations that have been put in place specifically to protect the very same natural resources we all rely upon for survival…two legged, four legged and winged alike.

So, here is a breakdown of the scope of environmental work to be done by this company. This company’s job will be to assess the land for wetland delineation, secure specific permits under the Clean Water Act and ensure “the project” will be able to go forward smoothly. I have purposefully left out the name of the environmental company.

Based upon the current concept plan, XXX understands that 3 to 5 acres of wetland will be filled for this project. It is XXX’s experience that, for this amount of wetland impact, it will be difficult to obtain permits at the federal review level…

Now pay attention here…this is important….

At the federal level, there will be a standard of avoidance of wetland impacts that will need to be addressed. For example, under Section 404 of the federal Clean Water Act, no filling of wetlands or waters is to be allowed unless it is the “least damaging alternative” (or LEDPA). Accordingly, both on-site alternative layouts as well as alternative sites will need to be evaluated.

Huh…I wonder what alternative sites the Tribe has looked at in the area that would be of less impact to wetlands? I mean, the letter I am quoting was dated August 16, 2007 and was submitted as part of the LIT application. Did they look at alternative sites even though their buddy Herb Strathers had already bought the land in Middleboro long before August of 2007 for them specifically to build an Indian Casino – to which good ‘ol Herb was hoping to cash in on???

In short, the regulatory process of reviewing and permitting this project will be long and complex, and it is not possible to fully predict the course that will be taken or the fee required for it….

The amount of wetland fill propped in association with this project will undergo an intensive review under the Section 404(b)(1) guidelines of the Clean Water Act…as proposed impacts exceed the one acre threshold……the amount of wetland impact proposed for this project is relatively high for the Corps New England District. The federal agencies are likely to view this site as essentially wetland dominated, with high value wetlands surrounding the site.

Wow…even the engineering company the Tribe ...whoops....I mean investors, hired recognizes that this property is forested wetland, and will run into issues with the project as it is being proposed for the EIS.

Now the thing here is that this project clearly does not meet Clean Water Act requirements, yet the Tribe will insist on doing whatever they can to fill these wetlands and build their casino. Don’t get me wrong here…the CWA does have provisions for allowing projects to go through even though they may exceed one acre of wetlands filled, but let us please keep in mind why we even have and act called “Clean Water”.

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.

It is the national goal, that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by 1981.

The Clean Water Act also has regulations to protect wetland areas. The EPA does realize the critical importance of wetland areas for the propagation of wildlife, and as a system unto itself that actually helps ensure clean groundwater. In fact, if you go to their wetland webpage, here is what they have to say….

Wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs. An immense variety of species of microbes, plants, insects, amphibians, reptiles, birds, fish, and mammals can be part of a wetland ecosystem.

In a nutshell, wetlands are very special and sensitive areas. They are where water and land come together, much like an estuary, the areas on the coast where fresh and salt water mix… and a place where the plants have wet feet themselves, while enjoying a warm summer breeze. Wetlands are the place where upland and aquatic wildlife gather and thrive. These wetlands provide the most productive habitat possible and a critical habitat for an abundance of wildlife, including ducks, geese, swans, herons, frogs, turtles, snakes, otters, beavers, and scores of other animals. Wetlands provide spawning and feeding areas for fish and homes for rare plants and insects. They are considered the base of several major food webs.

Oh – but that can be mitigated!

Here is what that environmental consulting company said about on-site and off-site mitigation:

…XXX will work with the proponent to identify on-site and off-site mitigation areas....at a minimum XXX anticipates wetland creation or compensation on the order of at least twice the amount of area to be filled and this may greatly increase based on the…Corps compensatory mitigation guidance which requires 3:1 wetland restoration, 4:1 wetland replication and 20:1 wetland protection/preservation of forested wetlands.

Well, since the “Stewards of the Land” obviously have no interest in forested wetland protection/preservation to the tune of 20:1 ratio (if they did, they wouldn’t be destroying any to begin with)….XXX gives them this as an alternative…

There appears to be opportunities for wetland mitigation on or in proximity to the current K.F. Brick site in Middleboro.

Huh? Correct me if I am wrong here, but isn’t this the long abandoned brick site that is currently being used as a trash transfer station??? Gosh, the frogs, turtles, and all the other wetland dependent critters must be absolutely thrilled with this…..not to mention, when you consider the success rate – or lack there of – with wetland mitigation, one tends to worry just a tinsy bit about this little plan….

Here is what the CWA says:

Under the federal, and various state and local, regulatory programs, land development activities which may adversely impact wetlands require consent through permit approval from the regulating agency. At the federal level, under the Clean Water Act Section 404(b)(1) Guidelines of the CWA (codified at 40 CFR 230) and U.S. Army Corps of Engineers (Corps) regulations (codified at 33 CFR 320.4(r)), the Corps is obligated to require mitigation (i.e., compensation) for any unavoidable impacts on a wetland as a condition of permit approval. The developer can be required to enhance, restore, or create wetlands on or near the development site. Mitigation projects are meant to replace, on at least a one-to-one basis, the lost functions and values of natural wetlands affected by development activities.

Here is some interesting insight into wetland mitigation:

Although mitigation ideally provides a mechanism for accommodating both development and the protection of wetland functions and values, the low rate of success of mitigation projects is a subject of concern (Wolf et al. 1986, Kusler and Kentula 1990, Dobberteen and Nickerson 1991, Salveson 1995).

Successful wetland creation and major restoration projects still involve a great deal of uncertainty, particularly those that attempt to create or restore difficult wetland types (Kusler and Kentula 1990). Many types of freshwater wetlands that are slated for development are difficult or perhaps impossible to reproduce (Dahl and Johnson 1991, Kentula et al. 1992b 1990).

In a given permitting scenario, a decisionmaker faced with proposed wetland impacts must decide whether a functional equivalent of the wetland that will be eliminated by the permitted activity can be successfully created. Given the uncertain technology of mitigation, regulators sometimes face difficult decisions on what is too questionable, often in the face of substantial pressure to permit the activity.

Mitigation activities for forested and shrub wetlands typically result in out-of-kind creation because of the difficulty, expense, and uncertainty associated with creating such wetland systems (Kentula et al. 1992a, Bohlen and King 1994). Some forested wetlands represent advanced successional stages, and perhaps the most successful replacement efforts for these systems to-date have attempted to relocate system components intact, which has required large up-front financial expenditures (Gannon, pers. comm.). These efforts have been few in number. In a significant percentage of cases, the verdict is not yet in because of the decades-long time frames minimally required for the functional establishment of these mature systems.
- information courtesy of North Carolina State University-

Gee…..I guess Herb better had get some investors real quick…he is going to need all the money he can get for wetland mitigation…or will that cost fall to Sol and gang?

The letter goes on to explain that under the CWA and the Massachusetts Water Quality Certification Program (314 CMR 9.00) a 401 Water Quality Certification (WQC) is required for the proposed fill of wetlands over 5,000 square feet to ensure the project will comply with state water quality standards and protection of state and federal wetland resource areas…..

Wait a minute….who cares, right? The Tribe is federally recognized, deserves the land, so I am told, and has already stated in their scoping report that they will not be following state environmental protection laws….but here is the thing… this is a federal statute, so they need this permit....but it is the state DEP who typically issues said permit.

Tsk..tsk….now, I have to imagine that the MA DEP is going to be none too happy about the Mashpee Wampanoag Tribe…aka…people of the first light…aka…stewards of the land, totally dissing their regulations in their EIS scoping report – the very regulations that have been put in place specifically to protect the natural resources unique to the needs of our state. Yes, it will be quite interesting to see if the MA DEP will follow Massachusetts or federal laws for this permitting process – and please keep in mind that Massachusetts environmental regulations are more stringent than Federal environmental regulations.

The irony of this entire situation is that the Mashpee Wampanoag cannot or will not build a casino in Mashpee. Want to know why? Well, let me have the Tribe explain it to you as they did to the BIA and DOI in their Land in Trust application.

Lands in the town of Mashpee are unsuitable for a gaming facility or for other economic development ventures. First, lands owned by the Tribe or related entities in the Town of Mashpee are already being used for other purposes, and are not available for a gaming facility, hotel, etc. In addition, there are no readily available large tracts of land in the Town of Mashpee that could be used for a major economic development project such as that contemplated by the Tribe. There just are not sufficient lands available for purchase and/or development, and the available lands that are not developed are environmentally sensitive due to wetlands. In addition, the Mashpee area could not handle the traffic that would be created by a major casino resort given that Mashpee is located on Cape Cod which is accessed by only two bridges of four lanes each and all roads to Mashpee are two lane. This road infrastructure simply could not handle thousands of additional cars per day nor is it economically feasible to expand that road system.
- taken verbatim from the Mashpee Wampanoag Land in Trust Application-

Jeekers….that sounds a lot like our concerns! First of all, the available undeveloped land in Middleboro that the Tribe bought to build their monstrosity is also environmentally sensitive due to wetlands. How is it that they can mitigate the wetlands in Middleboro and not in Mashpee??

Oh, and the last time I checked….the land in Middleboro may not have a bridge separating it from 495, but it does have a nightmare of a rotary and only two lanes as opposed to the four lanes on the two bridges going to the Cape – which actually makes it eight lanes…ooh….sure….the new route 44 extension coming from route 3 is really nice – until it loses a lane at route 58 in Carver, that is. That, and all the other side roads going to the land in Middleboro are also two lanes…heck – on some of those back roads, your lucky if you have 1 ½ lanes….So again, how is that the road infrastructure in Mashpee is so less economically feasible than the roads in Middleboro…and Carver…and Plympton…and Bridgewater….and Lakeville…and Halifax….?

Sigh……the irony of it all.

I want to extend a big thank you to MA Audubon for the fantastic article, and for all that the organization and its members do to protect our wildlife, and educate the public about its wonderous opportunities as well as its much needed contribution to the health and well being of Mother Earth. In this chick's eyes, you are true stewards of the land.

The love for all living creatures is the most noble attribute of man.
- Charles Darwin

The question is not, Can they reason? nor Can they talk? but, Can they suffer?
- Jeremy Bentham (1748-1832)

“And he called him, and said unto him, How is it that I hear this of thee? give an account of thy stewardship; for thou mayest be no longer steward.”

Bald Eagle over casino site


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

A Shadow of Doubt

The indictment of Glenn Marshall has brought into question the Mashpee Wampanoag's Federal Recognition process and whether or not illegal contributions played a part in them receiving said recognition. Let's face it, Glenn Marshall has plead guilty to federal charges of illegal campaign contributions and embezzlement of Tribal money. These are some serious charges, and if you take the time to read the indictment, it is painfully clear that Glenn Marshall, in kahoots with casino investors attempted to influence political decision makers through this entire process from Federal Recognition to where we are now....Land in Trust to build a casino on sovereign land exempt from local and state regulations. Wow....is it any wonder why people are questioning this?

I was really happy to see that CasinoFreeMass is calling on Massachusetts Attorney General Martha Coakley to open an investigation into the Mashpee Wampanoag's federal recognition process. President Rich Young, who is also the president for CasinoFacts.org really said it best:

"The citizens of Massachusetts should be able to feel confident in the legality and truthfulness of the Wampanoag's claims, and clearly, these guilty pleas and very serious breaches of public trust cast doubt over the entire process"

Yes, the citizens of Massachusetts should feel confident that the Federal Recognition process was legal and truthful, and right now, many of us really don't. I find myself questioning how the Mashpee Wampanoags were able to meet the seven criteria for recognition. In fact, people should write letters to their senators in DC asking that the Mashpee Wampanoag Tribe's federal recognition be “re-examined”. In light of Glenn Marshall's recent indictment and guilty plea, it seems that the tribe may have had to resort to bribery to get their recognition, and it’s possible that they did this because they weren’t eligible under the 7 criteria. Not to mention, anyone who has taken the time to read the findings for the final determination can easily see that the tribe didn’t have sufficient evidence - yet they got it anyway.

I have always brought into question the Tribe's claim of historical ties to the land in Middleboro, and I am certainly not the only one.......... (video courtesy of Bellicose Bumpkin)

Below is an essay that was written by Jim Lynch, a nationally recognized Ethno-historical research consultant. With permission, I am sharing his findings with you. I think it is important to understand why so many of us question the Tribe's claim to historical ties in Middleboro and why we continue to question everything about their application. It's quite simple really.....we have had this cloud of doubt and mistrust hanging over our heads for 19 months now. If you haven't already, then maybe you too will begin to question this entire process and how we wound up in the fight of our lives, for our lives - for our quality of life, and for our right as American citizens to have a fair and honest process for federal recognition and land in trust decisions made by our elected officials. Thank you Mr. Lynch for this well written and insightful look into the historical claims to the land in Middleboro made by the Mashpee Wampanoag Tribe.

Mashpee: A Question of Fact versus Fiction

James P. Lynch
Historical Consulting and Research Services LLC.


In the shortest, yet most instructive of his published writings, “History: Remembered, Recovered and Invented,” the eminent historian Bernard Lewis wrote of three different types of history that confronts the contemporary reader in the various media.

In his 1972 book, Professor Lewis noted “critical [recovered] history begins with dissatisfaction with memory and a desire to remedy its deficiencies.” Invention, as he noted, passes over recovered history and resorts to the “embellishment” of the past,” which Lewis noted, “influences inscriptions and chronicles, monographs and textbooks, and all the other media used to project an image and present a case” It is to certain “inventions” of Mashpee history that this short essay will address: the Mashpee are Wampanoag; the Mashpee greeted the Pilgrims when they landed at Plymouth in 1620; the Mashpee have historical and cultural ties to the lands in the southeastern Massachusetts Town of Middleboro.

How does a historical “invention” contrast with historical fact? Let’s start with the question of “Wampanoag.” Historically there was never a Wampanoag tribe per se. The term Wampanoag is a general linguistic descriptor. Its root lies in the Algonquian “Wa.panwi” which literally means “it dawns” or “easterner” It was a generalized term used by Algonquian-speaking tribes to refer to peoples to their east where the sun rises. In the case of “Wampanoag” we find the suffix “oag” (some Algonquian tribal dialects use “aug”) which denotes near water, or near a body of water. Thus a literal interpretation of “Wampanoag” is: a people who live where the sun rises near a body of water. In the case of southeastern Massachusetts , this descriptor was used as a term of reference by the Indians residing to the west of those Indians who resided along Buzzards Bay , most notably the Pokanoket. This term of reference was picked up by the early colonists at Plymouth who equated the term Wampanoag with the Pokanoket tribe in contrast to the neighboring Massachusett, Nipmuck and Narragansett tribes. With the advent of King Phillips War in 1675, the term became associated with those regional (eastern) Indian groups that joined Phillip (Metacom) in his conflict against the colonists. Thus we hear of a Wampanoag confederation in various historical writings.

Did any “Wampanoag” greet the first arrivals at Plymouth ? No. No Indians did. What William Bradford and those other first arrivals found were deserted Indian villages, the victims of smallpox epidemic that had spread south from Newfoundland . Were there “Wampanoag” in the region? Yes. The boundary between the Pokanoket and Massachusett tribal lands was in this area. Were these “Wampanoag” members of the Mashpee tribe? No.

Why weren’t the Mashpee there? Simply there was not a Mashpee tribe in existence at the time of historical contact (1620) in Massachusetts . Mashpee, as a self-governing distinct Indian community or enclave, having its own defined territory did not come into existence until 1665, that is, some forty-five years after the point of first sustained Indian contact with non-Indians (1620) in this region. Mashpee was a product of the collision between two cultures, English and Indian. Mashpee is not what is commonly called an “historic or historical tribe” that is, a politically organized tribe, having its own defined territory that was inexistence at the time of first sustained contact with the colonists (1620). Mashpee was the produce of tribal disintegration and fissioning as a result of this bi-cultural collision. The Mashpee enclave that came into existence in 1665 consisted of expatriate Indians from many different tribal groups who, having adopted Christianity, shed their previous tribal political relations and portions of their own cultural ideology, and came together into what was known as a “Praying Indian Town ” or simply “Praying Town .” There were many such towns established in eastern Massachusetts for these convert tribal fragments. Most importantly, the Mashpee did not represent a political or social continuation of a specific historic tribe or historic tribes that voluntarily and politically merged to form a new tribe. These converts, with their new Christian ideology were drawn together mainly through the efforts of a colonist named Richard Bourne who, being a friend to the Indian groups residing at the western end of Cape Cod convinced the sachems of two of these groups (Tookonchasm and Weepquish) to convey via a legal deed dated December 11, 1665, lands belonging to their respective groups to the convert community that had congregated on the Capes south shore. These extra-tribal convert Indians who initially resided on these conveyed lands became known as the “South Sea Indians” which later morphed into the name “Mashpee.” At this point in time the Mashpee formed their own town government, established land governance rules based in large part upon English law (Proprietorship) and town organization, had a defined bounded territory in which to live over which they asserted local jurisdiction. We find even as late as 1753, the Mashpee reminding the Massachusetts General Court “that the same sachems who had given most of the Cape to the English had also created Mashpee.” How Mashpee passed muster concerning the descent from a historic tribe requirement (25CFR 83.7 (e)) with the Bureau of Indian Affairs, thus gaining federal recognition leaves one wondering. With the name of the notorious Washington lobbyist Jack Abramoff now connected with the Mashpee’s recognition quest and his close association with former disgraced Interior Department administrator Steven Giles, one begins to see a picture, a not very pleasant one at that.

Thus the Mashpee cannot be considered Wampanoag in any political or tribal sense in that they were never part of the Pokanoket tribe nor were they part of King Phillips wartime confederation. Mashpee came into existence in 1665 as a Praying Town under colonial jurisdiction. As a matter of fact, Mashpee remained loyal to the colonists during King Phillip’s 1675 conflict, with some members of the community fighting against the Wampanoag confederation of tribes. Mashpee did not come into existence until 1665, thus making it an historical impossibility of having met the Plymouth colonists upon their landing in 1620, nor was there a Mashpee tribe present to have aided the new colony during those first terrible and trying years of Plymouth’s existence.

Now what about Middleboro, a town at the center of present-day controversy concerning Mashpee historical claims and assertions to the area? First, if the Mashpee were never politically or culturally affiliated with either the Massachusett or Pokanoket tribes, how can they make such a claim, especially given the fact that the Mashpee sided against the Pokanoket-Wampanoag confederation during King Phillips war? Second, the Mashpee cannot make a cultural affiliation with either tribe. They maintained a particular cultural and ideological base (Christianity) from their very inception that was vastly at odds with that of the traditional Pokanoket-Wampanoag. Third, from a historical perspective there was prior to Middleboro’s 1669 founding one named Indian village in the Middleboro area (Nemasket) which in 1622 was under the dominion of the Pokanoket sachem Massasoit, Yet we later find two such villages, “Assawompsett” and “Titicut” located near Middleboro. The historical records clearly depict Titicut as a Massachusett tribal village, while Assawompsett appears to have had a polyglot Indian population of former Pokanoket and Massachusett (with many moving there from the former Massachusett village of “Mattakesitt” in 1674). There is also evidence of Abenaki Indians who had been re-settled on the Freetown reserve having moved into and settled at Assawomptset. It was from the remnants of these two village populations that the name “Middleborough Indians” evolved during the eighteenth century. No where’s in this matrix is Mashpee to be found. In fact, presently only two associations directly mentioning an association between Middleboro and Mashpee are to be found in the April 1859 Report to the Governor and Council concerning the Indians of the Commonwealth, (Earle Report) a William Lee from Middleboro who had married a Mashpee woman and was presently residing in California, and a widowed state pauper named Sylvia Casco also from Middleboro.

One fails to see any Mashpee historical or cultural connection to Middleboro without the coverage of the historically unsupportable “Wampanoag” umbrella. Their request to have lands that they purchased in that town taken into trust by the Department of the Interior appears to lack a necessary historical or cultural foundation.

As is so often the case, the chasm between invented history and historical fact only widens with the application of what the late anthropologist Clifford Geertz called “thick description” or critical historical analysis.

Mr. James P. Lynch is a nationally recognized Ethno-historical, research consultant. He has authored numerous books, research publications, and articles on tribal land claims, tribal sovereignty, tribal recognition, tribal land into trust issues, and tribal history. His professional services are used by law firms, local, state and federal officials and agencies, and private sectors such as businesses, authors, and network news media. He has also testified as a qualified expert witness on historical and anthropological issues in federal and state courts. Mr. Lynch is the owner of Connecticut-based Historical Consulting and Research Services LLC.

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

A Charlie Brown Thanksgiving

So after a long and wonderful day feasting with friends and family, I cleaned the kitchen, packed up the leftovers for later and snuggled up on the couch with my son to watch A Charlie Brown Thanksgiving. The cool thing was, there was a bonus cartoon after called This is America, Charlie Brown - a Charlie Brown cartoon I had never seen? Awesome....

It's not surprising that I had never seen it because it was aired originally as an eight part mini-series in 1988 and I was much too busy doing teenager things to care about a Charlie Brown cartoon. Funny how now, 20 years later I was more than happy to watch it and just relax. Here is the other funny thing....as we were watching the Charles Shultz version of the pilgrims landing and subsequent salvation due to the kindness of the local Indian Tribe....I felt myself being vindicated. Here I and my fellow blogger have been berated on the local cesspool topix as a racist, a liar and an Indian hater. Wow.....all because Gladys Kravitz blogged about the true history of the pilgrims landing and how it was not the Mashpee Wampanoag Tribe that welcomed them.....and I commented on her blog about some of the not so nice past actions we have read about over the past year regarding Mashpee Tribal leaders and members. How horrible of Gladys to debunk the Mashpee Tribe's claim to fame as being the tribe that met the pilgrims and how absolutely scandalous of me to remind everyone of the only times we hear anything about the Tribe....heck, it's not like they have come to any public forums and talked to the the community about their casino-resort plans....but I digress.

So I am watching this new to me Charlie Brown cartoon and guess what??? According to Mr. Shultz in 1988, it was not the Mashpee Tribe who met the pilgrims. Huh.....go figure....but hey, it is just a cartoon, right?

Could Charles Shultz have gotten it wrong too?






Happy Thanksgiving everyone. I hope your day was full of good times, close family and good friends. I am truely thankful for all of you who continue to fight for our quality of life, get the real stories out there, and never ever give in to our adversaries.

Here is a little update for my dear flying monkey friends who seem to think I take history lessons from cartoons. Well, at least I don't take history lessons from the Mashpee Wampanoag website....by the way, it would seem that Charlie Brown is smarter than a flying monkey....go figure.

It was an ordinary day when a cry suddenly went out among the settlement of “Indian!” Everyone became on guard. The figure of a lone Indian came walking towards them. What could this Indian want? They were all shocked when the Indian began speaking to them in English! How had this Indian from this wild land come to know English? He introduced himself as Samoset and told them his story: Samoset was a chief of the Algonquins of Maine. He had been exploring these parts for the Council of New England, having begged a ride with a Captain Thomas Derman, an English sea captain. Samoset had learned English over the years from the various sea captains who had ported in Maine, and he had a love for travel.

It was Samoset who told the Pilgrims of the Patuxet tribe who had lived on the very place the Pilgrims had settled but had been wiped out by a mysterious illness four years before. It was they who had cleared the land. No other tribe would live on this ground because of how the Patuxets had been wiped out. Their nearest neighbors were the Wampanoags, fifty miles west. The Pilgrims then wondered who it was that had attacked them upon their landing on the shore. Samoset told them it was the Nausets. They hated the white man because of the trickery of an English sea captain named Thomas Hunt. Hunt had deceived several Patuxets into coming aboard his ship. He then took them to Spain to be sold into slavery.

Samoset left the Pilgrims but returned a week later with yet another English-speaking Indian. This Indian’s name was Tisquantum, or Squanto, as he is better known. Squanto had quite a story to tell the Pilgrims: He had been taken captive, along with four other Indians, by Captain George Weymouth. They were taken to England and taught English so they could be questioned as to the best places to settle in the New World. Squanto spent nine long years in England until he met a Captain John Smith of Jamestown,VA. Captain Smith returned Squanto to his village on his 1614 voyage. The former mentioned Thomas Hunt was sailing with Smith on a separate vessel. Smith had ordered Hunt to stay behind while Smith attended to some business elsewhere. But, alas, Thomas Hunt had something else up his sleeve! No sooner had Squanto returned home than he was captured again! Squanto, along with 19 other Patuxets were of those who were lured aboard Hunt’s ship under the pretense of trading beaver pelts only to be captured again! So once again Squanto was taken to Spain and sold into slavery. How discouraging it must have been for Squanto. But God’s providence was at work. Some local friars bought (rescued) a few of the Indians, including Squanto. They introduced them to the Christian faith. Squanto later left the monastery, found a way to England, and attached himself to a wealthy merchant there. He lived there until he departed with a Captain Dermer in 1619. It was on this trip that he first met Samoset, who was traveling with Dermer. They were both dropped off at Plymouth just six months before the Pilgrims would be arriving. But it was then that Squanto learned of the tragic end of his tribe. Squanto, having no one, attached himself to the neighboring Wampanoag tribe. However, once he found the Pilgrims, he had found a new home and family. He stayed with the Pilgrims and as Bradford wrote, “was a special instrument sent of God for their good, beyond their expectation.” (1) It was Squanto who taught the Pilgrims many things about living in the wilderness, such as planting corn with fish for fertilizer, hunting, and many other life-saving skills. http://www.americandestiny.com/settlement.htm

Oh, and if this website causes the flying monkeys to start throwing poo again, I can certainly provide many other links to this time in history that also reference Samoset and Tisquantum as helping the pilgrims, such as this one and this one. Then again, according to monkey philosophy, every historian who writes about the first meeting with the pilgrims must be wrong and a lying, racist, indian hater because it had to be the Mashpee Wampanoag Tribe that met the pilgrims....they said so.

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

The Real McCoy

On Monday, there was an article in the Enterprise reporting that a draft environmental report was released regarding the land in Middleboro, land the Mashpee Wampanoag Tribe is attempting to place into trust for the specific purpose of building a casino – I mean bingo hall. This report has been recently released a short 8 months after the scoping hearing held in Middleboro in March. The article states:

The questions that will have to be answered by the Mashpee Wampanoag tribe concerning its proposed casino have been outlined in a newly released draft environmental report.

The 1,306-page report, prepared according to the National Environmental Policy Act for the Bureau of Indian Affairs, contains written and verbal comments submitted in response to the proposed land-taking by the Mashpee.

The interesting thing here is that suddenly, a scoping report that outlines and categorizes the comments submitted from the March hearing has, according to some casino advocates, morphed into the Tribe’s Draft Environmental Impact Statement. According to some, this is the actual Draft EIS, which it is not. This report is just that….a scoping report and not the draft EIS we are all patiently waiting for. If this was the actual draft EIS, it would have been posted in the Federal Register (which it is not), and the public would be given a 45 day comment period and another public hearing to address the content of the draft EIS itself.

I can’t say I really blame the pro casino side for thinking this, especially after reading the article in the Enterprise and reading the summary of the article on Indianz.com. Jeesh, just by reading what the Indianz website posted, I can see why some may actually believe this is the Real McCoy. Unfortunately but not surprisingly, both the Enterprise and Indianz.com got it wrong. The funny thing is, we have had this report in our hands for over a month now and have had the opportunity to read it…..and get a good laugh, at that. Seems the Enterprise is not on top of its game regarding Middleboro casino news ‘cause if they were, they would have been a bit less misleading on what the report really is AND they would have reported on it weeks ago. Again, I can’t blame the newspaper itself or the author of the article….they just repeat what they are told and it would seem to this Chick that they are getting their information from people who want to continue the myth of inevitability…….sigh……..

The other interesting thing is that for some reason, casino advocates see this report as a blow to the anti-casino movement when in actuality, it has helped us tremendously. Heck, we already know and expect a draft EIS to be written…..duuuuh…..that is why we have spent the past 8 months going through and categorizing the marked comments from letters submitted to the BIA. The nice thing is this report has done the same thing so now we actually know what comments are being addressed and which ones are being dismissed.

The majority of the concerns will be addressed in a final report, but some of the issues have already been dismissed.

Yes, some very important concerns have been dismissed - like the concerns regarding the socioeconomic issues of violent crime or the fact that the mitigation money the Town will be receiving isn’t nearly enough to cover the costs of the negative impacts. Well at least from reading the scoping report, we know how the Tribe is going to try and address some issues while skirting around others. The Scoping Document was reviewed by members of the CFO environmental subcommittee when it was first received over a month ago. Let me break it down for you…..

The Mashpee Wampanoag Tribe is pursuing a Dual Initial Reservation which we already know and have already addressed. As we know, the Tribe’s complete lack of historical ties to the land in Middleboro makes it ineligible as an initial reservation. However, seeking a dual initial reservation status is serious business because this has never been done before. It really is a precedent setting case and anything can happen. Yet again, the Tribe has no significant historical ties to the land so I cannot see how the Secretary of the Department of the Interior would ever place this land into trust.

The Tribe has stated that the Massachusetts Environmental Protection Act (MEPA) will not be followed because is illegal for them to do so. This means that no State Environmental laws will be considered in the EIS. The Tribe will only follow the National Environmental Policy Act which does not address environmental issues specific to our region. This is bad news for our area. If you consider only one MEPA law that won’t be followed – Massachusetts Water Management Act - you will understand why this will impact us – and how far reaching the impacts will be…..not to mention the host of other Massachusetts Environmental Laws that are designed to protect our air, water, open space, threatened species, and so on and how that will impact our lives and our livelihoods…..and the Tribe calls themselves the stewards of the land….

The Tribe has stated that it will not look at alternate sites for the casino because they are unable to prove historical significance to anywhere else, which is funny because they certainly can’t prove it in Middleboro either. In addition, they will not consider non-gaming revenue and will only settle for casino gambling. The interesting thing is, they don’t actually mention slot machines in the report, only video lottery terminals – probably because they know slot machines are illegal in this State and they can’t have them. Oh, and our Governor can’t be forced to negotiate with them and the tribe won’t negotiate anyway because there is no compact required for Class II gaming, otherwise known as bingo hall. Sigh….so much for all the promises about further mitigation being negotiated by our Governor.

The Tribe is claiming that the BIA has authority to take the land into trust because the Aquinnah Tribe has trust land. Ummmmm….okay…..the problem here is that the Aquinnah have a land claim settlement with the State of Massachusetts so that argument just doesn’t wash. Gosh, they must think we are dumb as stumps…..they continue down this path by mentioning the First Circuit Court of Appeals being a basis for taking the land into trust, but that’s misleading because that Court ruled that a 1983 land claim settlement, where the tribe agreed to abide by state and local zoning laws, trumped the federal sovereign doctrine of immunity. The land for the Aquinnah was not taken out of the state tax rolls, and the tribe must obey all of the local and state zoning laws with respect to use of that land. So the case doesn’t actually support the DOI’s ability to take land into trust, and it’s not exactly the “land into trust” scenario the BIA would have you believe.

The Mashpee tribe is also stating that Mashpee is not suitable for a casino because there is a strong anti-gaming sentiment.

Really?….how nice of them to consider the anti casino sentiment in Mashpee. Perhaps they could be so kind as to consider the anti casino sentiment that was clearly expressed by the citizens from Middleboro with the Article 3 vote. You know the one….the vote that said the residents did NOT want a casino in their town….

Also, here is some food for thought….we did have an opportunity to speak with the EPA officer in Boston who is overseeing the Tribe’s EIS. We were told that the Draft EIS (DEIS) should come out in the next couple of weeks, which we already know and anticipate. This would actually be a good thing for us because issuing it so quickly will only mean a poorly written draft EIS which should be easily defeated.

It would seem that apparently the Tribe is not looking at the broad effects of the project - meaning they are not addressing issues with roadways such as Rte 44. The reason for this is if they did look at altering these roadways they would be subject to MEPA , which they have clearly stated they will not follow. This translates to meaning the promised $200+ million in road improvements including the rotary elimination is not going to happen. This also means, at least to me, that they could care less about the broad effects a mega casino resort will have on our communities and we will need to address that when the real draft EIS is released and we are given our 45 day comment period including another public hearing.

So no…this scoping report that was written by a local environmental consulting company and reported on by the Enterprise is not the Real McCoy, but considering that the same environmental consulting company is also producing the draft EIS, we can look at this scoping report as an outline of the draft EIS. We can look at this report and easily identify issues we will have with the draft EIS and inform our towns and our residents of the issues. So far, it has been a huge help! The report will actually give all of us equal opportunity to prepare comments for the draft EIS and focus on the things that concern us the most – to be heard and to demand that the Tribe be held accountable for all our concerns and not allow them to be labeled “not applicable”.

Rest assured, when the Real McCoy is actually released….we will let you know. In the meantime, this scoping report has been a huge help in our efforts and we can actually start drafting comments based on the information contained in the scoping report. If you can, take the time to borrow the report from the Middleboro library – read it. If you are unable to do that then I urge you to check the CFO website for updates and information so when the time comes, we can all be prepared for another Call to Arms!

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

The Ties That Bind

When one thinks of the phrase “the ties that bind”, many different thoughts come to mind. In the course of our lifetimes, we all become bound by invisible chains that bind us to people, places and things. These ties can either help us or hurt us depending on the situation. For example, one could reasonably argue that the first lines in the Constitution are words, or rather, ties that bind the American people in a common cause "….. in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." To me, these words are about the ties that bind the American people, not twist the fundamental fabric of our Nation, yet I have been told again and again over the past year that I have no rights in regards to the Mashpee Wampanoag Land in Trust process. I have no say in what happens in my community and all I can think is….why? Having been witness to the so called process of Land in Trust as it has unfolded here in our small corner of the world, I wonder about those words written in the Constitution and I wonder about the written words of the Tribe itself…the words, or ties that bind them, and where those ties bind them.

So I find myself still arguing about the Mashpee Wampanoag’s claims to significant historical ties to land in a Town that I don’t even live in. I am speaking out because our Constitution gives me that right even if the land in trust process doesn't. But why even bother, right? I mean, they were here first so who am I to say they don’t have significant historical ties to Middleboro? All I can say to that is, I am an American citizen who happens to believe in life, liberty and the pursuit of happiness for all…and I just so happen to be someone who has read the Tribe’s Final Determination..you know, the evidence they used to gain Federal Recognition, and are now using in their mad dash attempt to build a casino on land they have no right calling an “initial reservation”. The enhancements in the Section 20 regulations clearly and distinctly define the requirements for significant historical ties to land being sought as an initial reservation. In reading the Federal Register to learn about the new regulations I quickly realized that they are written so clearly that even your average citizen – John Q. Public – can understand and follow what the Federal Government is requiring for proof of significant historical ties to land.

When talking about “significant historical ties”, aren’t we really talking about a cultural landscape? I am talking about a landscape created by humans in the natural world, one that reveals fundamental ties between people and the land – ties based on the basic human need to grow food, give form to settlements, to provide recreation and even suitable places to bury our dead….our cultural landscape that we call home. In the case of the Mashpee Wampanoag Tribe, claiming the land in Middleboro as their own is more than just saying “I was here first”…it is about demonstrating that the Mashpee Wampanoag Tribal ancestors lived on the land in Middleboro, had a burial ground on the land in Middleboro or hunted the land in Middleboro to feed their tribal members. This is about significant historical ties to the land, which according to their own Final Determination that was submitted as part of the application, there are none. There is no documented evidence that the Mashpee Wampanoag Tribe has significant historical ties to the land in Middleboro. But there is evidence that it belonged to another Tribe…..but that is not why I am writing this. I am writing this because I want to clarify why we say the Mashpee Wampanoag Tribe does not have significant historical ties to the land in Middleboro…why they are not bound to Middleboro, but to Mashpee.

If we could, let us take a moment and examine the Tribe’s trust application through the eyes of the Secretary of the Interior and look for evidence of the Tribe’s significant history to the land in Middleboro. In order to do this, we need to look at the Tribe’s Final Determination, which as I stated, was included in the trust application. But first, let’s clarify the significance of the Final Determination to the Tribe itself.

In order to receive Federal acknowledgement as an Indian tribe, the following seven (mandatory) criteria had to be applicable and demonstrated in the Tribes Final Determination:

1. The tribe has been identified as an American Indian entity on a substantially continual basis since 1900.

2. A predominant portion of the tribe comprises a distinct community and has existed as a community from historical times until the present.

3. The tribe has maintained political influence or authority over its members as an autonomous entity from historical times to the present

4. The tribe must provide a copy of the group’s present governing document including its membership criteria. In the absence of a written document, the tribe must provide a statement describing in full its membership criteria and current governing procedures.

5. The tribe’s membership must consist of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.

6. None of the tribe’s members can be part of any other federally acknowledged Indian tribe.

7. The tribe nor its members cannot be the subject of a congressional legislation that has expressly terminated or forbidden the federal relationship.

The first requirement regarding their existence as a tribe since 1900 is accomplished mostly through newspaper or magazine articles that mention the tribe. The next four requirements are important because of what they show in the way of the Tribe’s history and geography. The last two items on this list requires no action from the Tribe as it’s the Federal Governments’ job to check these out.

When the Federal Government acknowledged the Mashpee tribe, they provided a summary of the evidence they had considered. Because there are so many details in the summary itself, I have abbreviated the comments so as to focus only on the geographical references and how these references pertain to the Tribe’s significant historical ties to Middleboro….or more accurately, how they don’t……

Distinct Community

“….since first contact to the present day they comprised a distinct community from non-members in and around the Town of Mashpee.”

“….almost all of the Mashpee lived in a defined geographical area, the Town of Mashpee.”

“….defined geographical area comprised almost exclusively of their members, while those who lived elsewhere usually did so on a temporary basis….”

“….those few who lived elsewhere were very close by in adjacent communities….”

“….few Mashpee who lived outside of the town, often in adjacent towns or other areas of Cape Cod, maintained contact with those in town as evidenced through a high rate of return migration.”

“….concentrated residential patterns indicating that a significant part of the group still lived in an exclusive settlement in the Town of Mashpee.”

“….residency patterns were good evidence of community.”

“….significant number of members living within or very near the group’s traditional location in the center of the Town of Mashpee.”

Political Influence

“….political control of the Town of Mashpee….”

“….evidence of the Mashpee’s residential patterns….was also sufficient to demonstrate political influence.”

“….gave the Mashpee greater self-government by establishing an “Indian District” in Mashpee, Massachusetts.”

“….as part of an Indian District….the Mashpee gained complete control of political, legal, and economic affairs in the town...”

“….Mashpee adapted the principal elements of the town governmental system….”

Criteria for Membership

“….'near Mashpee' means having a residence within 20 miles of Mashpee.”

Descended from a Historical Tribe

“….historical Indian tribe was the Wampanoag Indians residing at Mashpee, Barnstable County…”

“….88 percent of the petitioner’s members descended from the historical Mashpee tribe…”

“….petitioner submitted evidence that 97 percent of its members descended from the historical tribe…”

(Note: this number increased when new records were produced after the preliminary report was compiled).

I have two personal favorites from this list:

The first being the Tribe requiring their members to live near Mashpee….within 20 miles of Mashpee to be exact. Middleboro is definitely within 20 miles of Mashpee, right? Ummmmm….weelll…. it is if you fold the map like one of those back pages from a Mad Magazine. Remember those? First there is the original picture but you could fold the page and it would become another (usually more comical) picture. Yeah, it’s just like that. A quick fold here….and viola!

Or, perhaps they meant 20 miles as the crow flies….or a flying monkey…

I also love that the Tribe’s current members must be descendants of a historical tribe and in this case, the Federal Government defines historical tribe as ‘the Wampanoag Indians residing at Mashpee, Barnstable County”. Yet the Tribe is trying to claim significant historical ties to Middleboro. Really….I couldn’t make up stuff this amusing!

Here are some more fun facts from the Final Determination:

The number of times Mashpee is mentioned: 265
(this number does not include the footnotes or page headings)

The number of time Middleboro is mentioned: 0
(this number does include the footnotes or page headings)

So if I was reading this from the Secretary of the Interior’s point of view, I would have to conclude based on the Tribe’s own Final Determination, the Mashpee Wampanoag Indian Tribe has significant historical ties to Mashpee….not to Middleboro. In fact, Middleboro is so insignificant, it wasn’t even mentioned at all in the Final Determination – yet the Tribe wants to claim significant historical ties after the fact so they can build a casino that happens to have a resort attached to it. Well, all I can say here is that the ties that bind have bound this Tribe not to Middleboro at all -- but to Mashpee alone. Claiming significant historical ties to the land in Middleboro at this point is nothing short of a hysterical attempt to try and hold onto the casino pipedream.

So if you were reading the Final Determination through the eyes of the Secretary of the Interior and trying to make a decision that will affect an entire region and making that decision in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….and ensure fairness to both the Tribe and the surrounding community, I must ask dear reader…… do you see any significant hysterical…..eeerrr….historical ties that bind the Mashpee Wampanoag Tribe to Middleboro?

“Bound by hundreds of ties of desire and enslaved by lust and anger; they strive to obtain wealth by unlawful means for the fulfillment of desires.” - Bhagavad Gita

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

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 -

The Elephant has left the Building

Mere hours after I posted “When Elephants Speak”, the Enterprise posted yet another casino related article that in my eyes, really showed the Tribe’s and investors true colors. They have made it perfectly clear how much they care about the host community of Middleboro by excluding them in the negotiations and their actions left me thinking “this is proof positive they don’t care at all about any of us”.

The Tribe had planned on hand delivering a letter to Governor Deval Patrick this morning, formally asking to begin compact negotiation talks….it seems they forgot to mention one tiny little request that has not sat well with some….

The tribe’s seven-page formal letter to the governor, scheduled to be hand-delivered today, makes no provision for a representative of Middleboro to be at the bargaining table.

Middleboro Chairman to the BOS, and avid casino proponent, Adam Bond, had a few things to say this morning on his blog about the exclusion of Middleboro in the letter. I read his blog and I could have sworn that Hell had frozen over because I found myself not only agreeing with him, but actually outraged for him , his Town and for all the good (and not so good) folks who have supported this Tribe’s plan from day one. No….I don’t agree that the casino is a good thing, nor do I agree with his and others infallible support of this project, but I most certainly do agree that the Tribe had an agreement with the Town and they had better damned well stick to it! I mean, how dare they attempt to ignore provisions in the IGA and exclude Middleboro? Makes one wonder how many other provisions in that agreement they may attempt to ignore in the future if that land is ever actually placed in trust.

He calls on the tribe to “repair the wound” caused by the lack of an invitation to the bargaining table and wrote: “If it doesn’t, is there any reason to continue to support an illusory partnership?”

Yes…why support an illusory partnership? I guess when you have been sucked into the illusion long enough, you actually start to believe it is real. I hope this is a wake up call for all the pro casino people out there. I am not saying its time to stop supporting the casino, I am merely saying that it is time to hold the Tribe accountable for all the promises, written or said, public or private that were made. Hold them accountable and don’t let them continue to bamboozle you too.

And the saga continues. This is Middleboro, you know….

I just finished reading the latest installment of the Casino Chronicles in the Enterprise and in the course of minutes my outrage had morphed into….you got it….jaw dropping amazement. It has been a matter of hours since the first article came out and it is now being reported that the Tribe had every intention of including Middleboro in the letter and it is so unfortunate that the letter they gave the press was a draft….yes…..a draft letter and they hadn’t yet finished the final letter – the one that will include Middleboro – the one that wasn’t delivered today, and it is unclear when the revised letter will be delivered to the Governor.

The Mashpee Wampanoag tribe says a letter floated yesterday requesting official compact negotiations with the state about a proposed casino was just a draft, and tribal leaders are now revising it to include a representative of the town of Middleboro at the bargaining table.

Hmmmm…..I see a pattern here. Poor Mr. Hendricks, his legs must be exhausted from all that back- peddling he has done today. Funny thing about this “draft” letter…..it was signed by Mr. Hendricks in the presence of the media. Now why in the world would he sign a draft letter and give it to the media?

Anyone?.....anyone?.....

On a brighter note, it seems that our Governor has seen the light and is now clearly not ready to pull the rope for the Tribe. Be sure to watch the video...

He said the tribe needs to get a hold of the land first before formal negotiations can really take place. "We want to be constructive, we need to be responsible. We don't want to be hasty," he said.

The governor said any talks right now would be hypothetical. "I respect the tribe, and I respect their interests, but until the land and trust is sorted out, there's not a whole lot that's meaningful about those conversations."

Finally!! Our Governor seems to be working in our best interests. Thank you Governor Patrick…..haste makes waste!

If you have integrity, nothing else matters. If you don't have integrity, nothing else matters. ~Alan Simpson

You can easily judge the character of a man by how he treats those who can do nothing for him. ~James D. Miles

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