What the Hell is that Smell?

A few days ago I made a comment regarding the Mashpee Wampanoag's Land in Trust Application...or lack thereof.  The application reads like an amicus brief...arguing how the regulations are unfair...but the tribe will proceed as if said regulations actually mean anything.  Reading the application and trying to figure out what the hell this Tribe was trying accomplish was akin to solving a rubiks cube.  Luckily, we had the handbook, which was quite handy indeed -- but this post isn't about the content of the application. However, I will say  - very sneaky Cedric...but we know your game...it ain't gonna work and all the lobbying in the world won't change that.   My comment regarding the application was "we are so far down the rabbit hole with this thing that I keep expecting to hear the doorknob say Read the directions and directly you will be directed in the right direction.  Ahhh...sound advice doorknob - we read the directions in the handbook and they DID directly lead us in the right direction.....but I digresss.

What has me knowing we are so far down in the rabbit hole is the fact the our dishonorable Governor Deval Patrick has hired a law firm to lobby the Department of the Interior to grant land in trust to the Mashpee Wampanoag Tribe.  Seriously???  I really want to know if Cedric's BFF Deval plans on paying for this himself or is it the taxpayers of the Commonwealth getting stuck with that bill?  Why is it exactly that we have to foot the bill for the Mashpee Wampanoag's lobbyists??  It seems to me that Cedric's other BFF's from Genting should be footing the bill -- especially since the land in trust deal will not benefit the Commonweatlth in any way...only the tribe.  Don't believe me?  Okay...here are a few things to mull over....

1.  The Tribe does not qualify for Land in Trust regardless of the lame argument laid out in their application.  So sorry to tell you Cedric -- the intent of the IRA was not to determine which tribes were under federal jurisdiction in 1934 so your argument that the tribe was under federal jurisdiction then because you were recognized in 2007 doesn't hold water.  The intent of the IRA was to return land to Tribes that were disinfranchised under the Alloment Act.  The Mashpee Wampanoag were never disinfranchised under the Allotment Act and therefore it cannot be successfully argued that the tribe was under federal jurisdiction in 1934 as claimed in the application.  No doubt it is an interesting arguement, but it is not the intent of the law. 

2.  Why is Deval Patrick suddenly backing this tribe?  He freely admits that he does not have to enter into a compact with the Mashpee Wampanaog Tribe but he did anyway.  He negotiated a compact with the Tribe behind closed doors and without input or a care in the world about the concerns of the host community and the surrounding communities.  Deval Patrick seems to have no issue at all with handing private land over to the Tribe, has no problem with super water right issues and for some reason thinks that land claims are still a valid means fo tribes to get land regardless of the City of Sherrill SCOTUS decision.  He just went ahead and promised land in Mashpee to the Tribe without even discussing it with the Town of Mashpee....and then hires a lobbying firm to support the Tribe, on our dime. 

What the hell is that smell?    Could it be the stench of a corrupt and bought out Governor? 

Gosh Governor Patrick....I am wondering, do you have sights for a Presidental run in 2016?  Is that it?  Has a little seed been planted in your head that promises to grow into a campaign money tree?  Is it the idea of endless amounts of money coming from trust land that doesn't need to be reported to the Federal Election Committee that turned you?  It is no secret that trust land does not fall under the Federal Election Campaigns Act.  In fact, this little factoid was quite the discussion at the Senate Committee on Indian Affairs a few years ago....you know...how federally recognized tribes on trust land aren't  "people" under this act since "people" are taxable and federal tribes on trust land cannot be taxed so they don't fall under the definition.

Come on Governor - the people want to know - tell us why you sold out the citizens of this State...sent us packing....completely ignored your duty under the Constitution of Massachusetts....which in part reads:

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

Was it not enough that you provided the legal means for the Tribe to open a casino under the new gambling law - you know...equal footing to open a gambling facility on trust land - if they can get trust land - which they cannot....now you have happily signed a compact with a tribe that has no trust land and then proceed to spend taxpayer money to lobby for them?  Are you kidding me???

Here is a thought...how about letting the Tribe wash it's own dirty Land in Trust laundry and refrain from staining the the sovereign rights of this Commonwealth.  Your stench of betrayal to this Commonwealth disgusts me. 

3.  The Compact that was signed is not legal.  I have heard from a very reliable source that the BIA has already told the State that they do not like the 21.5% revenue on gambling profits being paid to the State under the compact -- they consider that a TAX which is ILLEGAL under the Indian Gaming Regulatory Act and therefore unenforcable as proven in the Rincon Band of Indians ruling out of California.    What about the land claims in the Compact ....do you plan on handing Otis Airforce Base over to the Tribe to build a casino there, thus freeing up SE MA on this side of the bridge for a commercial venue?  That would be a great way to quell the unsettling KG Urban Enterprises lawsuit now wouldn't it Governor...oh -- by the way -- kudos to Ken Salinger for his newly appointed judgeship by the Governor's Council....hmmmm....correct me if I am wrong, but wasn't he the lawyer who argued for the State against KG Urban Enterprises in the lawsuit in New Beford?  Either way....back to land claims....there are no land claims!!  A landmark SCOTUS decision effectively ended land claims.

Do you know what the Sherill decision did to land claims for tribes? Do you Governor?  No?....too bad...look it up.  I am sick and tired of doing it for you because you don't listen anyway...and based on your recent actions, I can honestly say you don't care either.  But I will tell you one thing...and I hope you remember this when all of this blows up in your face -- The only thing final in a final negotiated settlelment with a tribe is that the tribe never gives back what it takes.

So Governor Patrick -- I know you must be super-duper busy getting ready for the fundraiser dinner at your home for President Obama....you must be so excited to see him again and I am sure Cedric Cromwell is just giddy over his invitation to join you and the President.  How wonderful....you get to listen to President Obama yammer on about how reversing trust land decisions is "his Administration's top priority for Indian Country" and giving away land in one of the original 13 colonies is "an important step toward reconciliation" for the wrongs of the General Allotment Act of 1887.  Nevermind the Allotment Act had absolutely NOTHING to do with the Mashpee Wampanoag Tribe as they were never disinfranchised and were actually quitely living in the town of Mashpee as full citizens of the Commonwealth....Oh - or maybe he will tell you all about the $1.5 million dollars he received in campaign contributions from tribal donors on July 18th, but I don't want to take up any more of your time...really.  I just want to know why you walked away from your duty as Governor of this State, to spend our hard earned money lobbying for something that isn't going to happen. 

Yep -- something sure does stink up on the Hill......



I wonder if I've been changed in the night? Let me think. Was I the same when I got up this morning? I almost think I can remember feeling a little different. But if I'm not the same, the next question is 'Who in the world am I?' Ah, that's the great puzzle!

Better read it first, for if one drinks much from a bottle marked "Poison", it's almost certain to disagree with one sooner or later.  - Alice


 
- Be the Change you want to see in the World -

A Public Service Announcement......

We are in the process of reviewing the Mashpee Wampanoag Land in Trust Application against all applicable regulations....and the Proclamation Checklist (which they reference in their application) as well as the Fee to Trust Handbook (which they also reference).

....all I can say at this point is this...

And this......

"He has achieved success who has lived well, laughed often, and loved much.” - Bessie Stanley

“I am for integrity, if only because life is very short and truth is hard to come by.”

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

To Be Submitted.....

So we FINALLY got the Land in Trust application for the Mashpeee Wampanoag Tribe for land in Mashpee and in Taunton....Taunton specific for building a casino...they apparently don't know what "area", "significant" or "historical" means but that is okay....they have plenty of time to figure it out -- or perhaps read the actual definitions as stated in the Federal Register...but okay....all their historical proof and super secret documents are referenced in tabs but go to the tab and read....TO BE SUBMITTED.....as is all of their so called proof that they were:

A.  Under federal jurisdiction in 1934 - more on THAT claim to come...
B.  Have significant (or any) modern and historical ties to the land in Taunton
C.  Their economic proof that they are a tribe in need...oh wait...they did submit that evidence -  a Cape Cod Times article stating they need 30 Million dollars to self govern....wow....
D.  And so much more that still needs to be submitted.

More on all of the application to come...stay tuned. 

I could amost feel bad for our Governor for negotiating a compact based on this application...the application he obviously didn't even make an effort to get, nevermind read and use to ensure a "great" compact for the citizens of Massachusetts and a "fair" deal for the tribe.

To Be Submitted:   My break down of their arguement as to why they think they were federally recognized in 1934 -- and why it won't stand up in a court of law.




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

Viva la Revolution

The 2008 Ron Paul Grassroots Presidental campaign was apparently the largest in American history....this video recaps the message Dr. Paul started in 2008 and the same message that continues today....it is an idea that resonates with democrats, republicans, libertarians and independents across the board, and it's time has come :)

The funniest and yet so right on line in this documentary is the response by Ron Paul supporters at an Iowa Candidates forum being put on by the Iowas for Tax Reform.  They didn't want to let Ron Paul participate.  This idea was compared to "...not inviting Batman to your convention against the Riddler..."

.....Yup! 
 


- Nothing is as powerful as an idea whose time has come - Victor Hugo

- One thing is clear: The Founding Fathers never intended a nation where citizens would pay nearly half of everything they earn to the government” - Presidential Candidate, Ron Paul

- Be the Change you want to see in the World-

EXTRA! EXRA! Read all about it....

Did you hear the news?! According to a press release issued today by the Mashpee Wampanoag Tribe, the National Indian Gaming Commission has approved the tribe’s gaming ordinance!!!!      






Ooohhhh…..ahhhhhh….casinoooooo……

This must absolutely, without a doubt mean that along with an approved but yet to be signed IGA, and the super duper negotiations happening behind closed doors with our “honorable” Governor Deval Patrick – the Tribe is moving full steam ahead with their goal to take land in trust to build the best casino ever on sovereign land!

Can anyone say….awesoooome.....

Well, I am sure Cedric Cromwell is thinking that it is totally awesome…that, and will use it as propaganda...errrr...proof.....that the casino is inevitable in Taunton.   Me?  .…I think it is them getting things done out of sequence of how they are normally done in order to speed up the process…but I get it – they are under a non-enforceable deadline as outlined in the State Gambling Legislation….that and the Aquinnah Wampanoag Tribe are really breathing down Deval's neck in their own bid to get a tribal casino in southeast Massachusetts.

So it begins again -

I swear I would love to know where the hell I left my Delorean because it honestly feels like 2007 again - only we are now at the other sign post up ahead (hands down- this is my all time favorite Gladys video).....Here we have Cedric Cromwell sharing his great news to anyone who is following this casino trainwreck - and he makes it almost sound like they have just conquered another ginormous hurdle to get land in trust and a casino, when the reality is – it’s the NIGC‘s job to determine if a tribe’s gaming ordinance meets the requirements in IGRA or not….if it does – approved! If it doesn’t – denied: please amend and resubmit for approval!

What Cedric fails to mention is that this approval – which is an approval of the amended (i.e previously denied) ordinance, is contingent on the tribe actually being able to get the land in trust. Good luck with that.

The letter clearly states:

…It is also my understanding that the Tribe has not yet acquired Indian lands as defined by IGRA. It is therefore important to note that approval is granted for gaming only on Indian lands, as defined in IGRA, over which the Tribe has jurisdiction….

yeeeahh....not quite there yet....kinda like putting the proverbial cart before the horse.

Not sure what the excitement is or why it is even newsworthy – except for maybe that the news came out a mere three days before the City of Taunton's non-binding vote for or against an Indian Casino...on sovereign land....land exempt from local, state and many federal regulations (regardless of what the uninformed, IGRA ignorant pros say – but I digress)

Long story short, the NIGC reviewed the Tribal Ordinance and confirmed that it met all the requirements of the law and is approved IF ...and that is one mother of an IF.....the land in Taunton is approved for gaming under IGRA. Too bad the article didn’t mention that part…or Cedric for that matter, but okay. Considering that the tribe is seeking gaming on the equal footing exception for an initial reservation under IGRA, this chick sees nothing newsworthy here because the land does not qualify for gaming under IGRA – nor does the tribe qualify for Land in Trust under the IRA as determined by the Supreme Court in the Carcieri decision. Now, if the Tribe actually did qualify to get the Taunton land in trust ….totally different story…but they don’t….and they won’t.

As to the tribe’s negotiations with the “ahem” honorable Governor Deval Patrick…..another non story in this chick's eyes...well, at least up until the tribe’s application is rejected for entering into a compact with the Governor before land has been placed in trust – ahhh...yes...then that will be quite the story - but I digress again. That is another requirement of IGRA altogether – oh well…nevermind those pesky details for now….just keep the voters of Taunton believing it is inevitable and the casino is the equivalent of their goose who lays golden eggs…golden eggs filled with jobs and money and jobs and police cars and jobs and firetrucks and jobs and more money and jobs and “city saving” revenue and jobs and most importantly….a magic economic engine that will revitalize downtown....aside from those jobs... 

Anyway – congrats Cedric, for finally submitting...or shall I say, re-submitting....a document that actually meets the requirements of the law regarding a tribal ordinance for gaming…well, minus the actual - having land in trust- part.

To every people the land is given on condition. Perceived or not, there is a Covenant, beyond the constitution, beyond sovereign guarantee, beyond the nation's sweetest dreams of itself - Leonard Cohen

The whole basis of the Constitution was a restriction of power, and the whole basis of the federalist system was that there was not one sovereign centralized power from which all authority flows  - Roy Moore

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

Needful Things

Last year I was asked by CERA (Citizens Equal Rights Alliance) to write two articles for an informational booket of articles called Voices Across America they were preparing to send to every sitting member of Congress - one speaking to Fee to Trust and one personal article regarding the story in Middleboro - I agreed to both and would like not only share the Middleboro article I submitted with you, but to again personally thank all CERA members for all that they do....In the 2011 edition of Voices Across America that was handed to Congress - I submitted the following article about the Mashpee Wampanoag's bid for Land in Trust specifically to build a mega casino resort in Middleboro Massachusetts.

Needful Things

- Ladies and Gentlemen, attention please!  Come in close where everyone can see!  I got a tale to tell, it  isn't gonna cost a dime!  And if you believe that, we're gonna ge along just fine! - Steve Earl 'snakoil"


In a picturesque New England town - in a small community - the announcement of plans for a newly recognized Federal Indian Tribe’s plans to build a Tribal Casino-Resort built to the likes of Foxwoods or Mohegan Sun- or more accurately “the largest casino in the world” was shocking, and at the time, unbelievable news, to say the least. Especially when said Tribe’s so called “home base” was located over 40 miles away from the proposed casino and my home was located less than 4 miles from that site and in another town altogether. I could write a best selling novel around what I witnessed first hand between 2007 through now…but I only have two pages to tell a story that is akin to a Stephen King novel. A story that started with a now convicted felon who at the time was a tribal leader, a man and a corrupt Tribal Government that was at the epicenter of the destruction of an entire town….an entire community. A man who headed a corrupt Tribal government that hid behind the thinly disguised veil of tribal sovereignty that succeeded in pitting neighbor against neighbor, friend against friend, family member against family member and community against community....all under the guise of the “right under IGRA” to build a mega casino resort on land exempt from local, state and many federal regulations….an entire region that to this day is still trying to heal from the aftermath of fighting flawed federal policy while watching it unfold all over again in an unsuspecting community located just 26 miles to the south, in the same State. Why?

 ....So this Tribe can build a casino....Period.

Land in Trust isn’t about supporting a Tribe's ability to self govern, it is about abuses to our Government, who at the time, wanted to right the wrongs done in the past….a Government who in effect is supporting the segregation of American citizens into federally recognized Native American Tribes and the rest of us…a government that has become weak and ineffective in protecting the basic freedoms for all it’s citizens out of misplaced guilt and flawed federal policies.

So instead of rehashing the same story that is repeated over and over again in communities throughout this nation, this narrator would prefer to inform this Congress of the integrity, bravery and unprecedented unity of the communities located in Southeast Massachusetts…communities that were made to feel as if they had no rights, no say in their futures as American citizens. People who questioned the lies told to them and communities who began educating themselves on Federal Indian Policy, specifically the Land in Trust process and who slowly began to realize that under current Federal Indian Policy, they had little to no rights. People who realized that what was happening in their little corner of the world was wrong…unconstitutional and biased…and it didn’t matter unless they united together to stand up and question the injustice instilled upon them by their own Federal Government...and fight…and hope to win.

 The Mashpee Wampanoag’s bid for Land in Trust in Middleboro Massachusetts is a story about corruption, lies, violence and deception. It is a story about the truth behind the true LIT process and how with no Congressional oversight Tribal Governments can attempt to bully a State Government into relinquishing it‘s own sovereign rights. A story of how communities can be raped and disseminated by the BIA, how individuals can so easily be stripped of their basic rights and people left wondering if anyone in their Government is even listening or protecting them. It is a story of the ignorance of a State Government who only sees opportunity for “revenue” without recognizing costs out of fear of “doing it ourselves or having it done to us“….it is about a so called “Native American Tribe’s” claiming aboriginal rights to land located over 40 miles from their headquarters so they can build the largest casino in the world. The truth is this is a story that has nothing to do with aboriginal rights or bettering a tribe or it’s members, and everything to do with a corrupt Tribal Government trying to take advantage of an unsuspecting community to build a mega casino resort.


Being one who was on the front lines of opposition of this casino, I witnessed firsthand how this Tribal Government and casino supporters harassed, threatened and bullied those of us against the casino, against the process of Land in Trust and who questioned Tribal Sovereignty. How could a Tribe claim sovereignty when it is being given millions of dollars in federal funding and the opportunity to take away the quality of life for those of us who chose this little corner of the world to call home? What gave this tribal government the right to try and take away our individual freedoms without due process and how in the world can one group of “American Citizens” have more rights and advantages over another group of American Citizens?

Through lies and deception…by making a small Town Board of Selectmen in desperate need of revenue believe that a mega Casino Resort on Trust land was their answer. A Board that ignored it’s citizens when they voted against having a casino on a hot July day in 2007...a meeting that has gone down in history as the Town Meeting From Hell. A Board so enumerated by the lies fed to them that they would gavel down their own citizens at meetings if they spoke against the Casino. This town had no hope…not until a small group of citizens banded together as a grassroots organization and started educating their own town and the other surrounding communities. Soon 17 communities in Plymouth County surrounding the Middleboro township organized a Regional Task Force of selectmen representing each town in opposing the land in trust process and publicly opposing the Casino in Middleboro. Through the RTF, CasinoFacts.org and bloggers, we were able get the truth out to the community and stop the casino in Middleboro. Unfortunately, the Tribe moved on to Fall River (well....now Taunton) Massachusetts….another struggling community and have begun the fear, lies and misconceptions on that unsuspecting Town. We won the battle in Middleboro, but we haven’t won the war…and we are far from healed.


The Truth. What is truth in this? The truth is the Mashpee Tribe never met the Pilgrims. That is revisionist history created by the tribe in their application for recognition. The truth is it was the Nauset Tribe who met the Pilgrims…but yet the Tribal Government would let you believe it was the them. The truth is the Mashpee tribe is a polyglot of eastern Indians who were grouped together on Cape Cod and organized by Richard Bourne in 1665 as a “praying town”. They have no historical, cultural, governmental, or geographical ties to the land in Middleboro (or Taunton for that matter). The truth is that every American citizen living today in the Commonwealth are under the civil, criminal, and taxing authority of the Commonwealth, regardless of race, ethnicity, creed, religion or sex and has been so since the state’s Indian population were made full citizens of the Commonwealth 82 years before they were made full citizens of the United States in 1924.


The truth is that flawed Federal Indian Policy disrupted the lives of thousands of Massachusetts citizens, has created a rift in a community that may never heal and this same flawed policy is allowing this Tribe to do it all over again in another town. Watching the battle against the casino unfold in Middleboro and watching what it did to me, my community, my family, friends and neighbors reminded me of that Stephen King novel, Needful Things.

...That was a story about a man named Leland Gaunt who opens a shop in a small town. Anyone who enters his store finds the object of his or her lifelong dreams and desires at no cost, yet in addition to a token payment, Gaunt requests that each person perform a seemingly innocent prank played on someone else from town. These pranks cascade out of control and soon the entire town is doing battle with itself. The antics and fighting witnessed while fighting the casino reminded me of the destruction in that novel and this is happening all over our country. It is happening all over again in my State.

The truth is that communities fighting LIT and Tribal casinos are not able to rely on our Federal Government to protect them and their communities…they can only rely on themselves. Grassroots organizations are battling flawed Federal Indian Policy all across this Nation and something needs to be done about it. I cannot speak for other communities and how or why they fight this process, but I can speak for mine. Without the tireless dedication of the people of this community I don’t know what would have happened here. I just know that the lies and deceits of the Tribe were exposed and that took away some of their power. We weren’t so much fighting against a casino as fighting for our rights granted to us under the Constitution…we were fighting to preserve our communities and way of life…we were fighting for our freedom in a time where our own government turns a blind eye to us. Here is an example of the bravery and dedication of these people:

What keeps me fighting is the wrongness of this entire situation. The more I learn, the more I want to fight. I got into this because I am worried about the future of our community and the irrepairable damage to our quality of life a casino would bring. I do it for my family...I do it for my friends…I do it for my neighbors....I do it for my community...


I do it for me because I know in my heart, not fighting, not standing up for my own rights, for all of our rights, and not demanding a fair and honest process is even more wrong than the casino itself.


Why do I keep fighting? Because it's wrong. It's wrong to be blindsided by a land sale whether or not you've been involved in the politics of the town or not. Our elected officials should have had the forethought to warn us all, knowing the potential impact a sale like this could have to a town and community. I fight because we live in a country where things like this should not happen. The process is done so coyly that unless you've lived through it, noone would believe you. I fight because it's important to have a voice and speak out....this is America after all, although that past year has made me wonder how this could happen here.


I fight the casino knowing that it is the symptom of a bigger problem, and that communities all over the country are faced with the very same "done deal" scenario, complete with local elected leaders who have failed to successfully manage a budget and need an easy answer to their fiscal problems. I fight the casino because the M'boro BOS didn't. I fight the casino because through research I have learned that an apathetic public has saddled me with an inept government, and maybe our battle will help change some of that. I fight this casino because I was one of those people who wasn't paying attention, and I was forced to fight if I wanted to have a say in what I wanted for my community. And I continue to fight because I am paying attention now, and after the casino issue is done, my job as a citizen isn't.


Kim Shea, Carver MA
Director Casinofacts.org


For the full story of what transpired in Middleboro, MA between 2007 - 2010 go to casinofacts.org or visit my blog at carverchick.blogspot.com


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

Ignorance is Bliss…or is it Deference Bliss

Deference (noun)
1. a yielding in opinion, judgment, or wishes
2. Ignorance

Ignorance (noun)
1. The condition of being uneducated, unaware, or uninformed

I recently had the opportunity to hear of a discussion a friend of mine had with someone regarding the Mashpee Wampanoag Tribe and how this person believes the Tribe will be able to get Land in Trust regardless of the Carcieri decision and regardless of the lack of a “Carcieri fix”….my dear friend was intrigued so naturally they looked into this claim. Normally I would disregard this kind of statement, but the person claiming this is extremely knowledgeable regarding this issue and anything this person says, I may take with a grain of salt…but I do take it seriously. That coupled with some fly-by-night comments on a Taunton casino forum about a so-called "clerical mistake" on the IRA 1934 list of recognized tribes (or so I assume that is the list they are talking about) that left out the Mashpee tribe and how it would easily be fixed....you know.... being a “clerical mistake” and all, I wanted to find out more since it is well documented that the Mashpee Wampanoag Tribe was not a recognized tribe under federal jurisdiction in 1934…..So my friend did some digging, as did I….what fun! How I do love to do research with this friend of mine – she is by far one of the most articulate and well informed persons I have met regarding FIP,  and truth be told…we both love a good challenge.

So it begins….again….

It’s kind of funny how this all came about – what was said to my friend and what I had read on this forum (which I seriously did not take seriously – and still don’t because the notion is so downright ridiculous it is actually amusing – at least regarding the Mashpee Tribe). However, coupled with the discussion my friend had which was NOT ridiculous nor amusing…..things just kind of “clicked” in my head in regards to Cedric Cromwell making claims that the Tribe will get Land in Trust…. I honestly believe he believes it….and I think I know why. With the loss of the Carcieri Fix introduced by Senator Delahunt in 2009 - arguing that the 1994 Federally Recognized Tribe List Act ensures that all Tribes are treated equally regardless of when they were recognized, I can see why the Tribe may try to say they were under federal jurisdiction in 1934 and left off "the list" – a clerical mistake – but to be clear, I have not read nor heard of the Tribe claiming a clerical error…only the musings of a faceless person on facebook.

Argument from faceless person on facebook – the Tribe was left off the list by accident, it was a clerical error that will easily be fixed (my summary, and by no means an actual quote, but you get the drift). Which “list” would that be exactly? That was never made clear in the posts….I assume this person is speaking of the list used in the Carcieri Amicus…but who knows….

The argument from the knowledgeable person who I take seriously is this: The Tribe can and will get Land in Trust because of Chevron….basically, if I am understanding what he claims correctly – the Tribe can pursue a Chevron deference to have the Secretary of the Interior take land in trust on their behalf….this has got to be hands down one of the best arguments I have heard in a long time….and it worried me….but only for a second….okay, two seconds…..maybe three.

In Chevron v. Natural Resources Defense Council (1984), the Supreme Court ruled that courts were to defer to agency interpretations of the statutes they administer unless Congress had directly spoken to the issue and the agency interpretation contradicted Congress’s expressed wish or unless the agency’s decision was “unreasonable.” Furthermore, this argument had been used in the lower courts to uphold the Secretary of Interior decisions to take land into trust for tribes in the past, and it had worked. Even after the Carcieri decision, the Secretary was working with tribes to further define their regulations to use this argument as a way around Carcieri.

In fact, during the June 29, 2009 Tribal Consultation regarding the Carcieri decision, one question brought to the group was:

1. Should the Department revise 25 CFR 151 to define the term “under federal jurisdiction in 1934?”

and

2. What should it say?

At this consultation, Deputy Assistant Secretary Skibine discussed how The Department of the Interior, working with the NCAI (National Congress of American Indians) was involved in litigation defending its decision to take land into trust for the Gun Lake Tribe under the Quiet Title Act. The Interiors defense was based on the argument that the Quiet Title Act protects the title to the land. Since litigation could last for several years, the Interior believed that if they pursued prospective legislation and amended 25 CFR 151 to define what under federal jurisdiction means, it would clarify that the Interior has legal authority to take land into trust for tribes not under federal jurisdiction in 1934….the reasoning was that the benefit of the amended regulation would be that courts could grant Chevron deference to Interior’s interpretation, as stated in the revised regulation.

Here is the issue – litigation regarding the Gun Lake Tribe was actually heard today in the Supreme Court and how this pans out will be interesting, if not historic. Also, any attempt to use the Chevron deference as a fix isn’t exactly plausible because the Chevron deference was already addressed in the Opinion of the Court in the Carcieri case and supported in the Justices' discussion.

In the Carcieri decision, the Court turned over a previous ruling in the Court of Appeals in Carcieri v. Norton. In that case, the Court of Appeals found that the particular statutory context of 479 did not clarify the meaning of “now” and having found the statue ambiguous, the Court of Appeals applied the principles set forth in Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., and deferred to the Secretary’s construction of the provision. The Court of Appeals also held that the petitioners had failed to demonstrate that the Secretary’s interpretation was inconsistent with earlier practices of the Department of Interior…and determined that the decision should be affirmed based on the Secretary’s “reasoned explanation for his interpretation”.

Carcieri v. Salazar Supreme Court statement: We granted certiorari, 552 U.S. ___ (2008), and now reverse.

i.e. The Supreme Court reversed the Lower Courts decision.

It gets better….In the concurring opinion written by Justice Breyer, he states (highlight inserted):

…Neither can Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984), help the Department. The scope of the word “now” raises an interpretive question of considerable importance; the provision’s legislative history makes clear that Congress focused directly upon that language, believing it definitively resolved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing the temporal reference of the word “now”. These circumstances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity…

Well, if that language isn’t clear as day I honestly don’t know how else to put it. However, Justice Breyer also did state that the Court’s holding “may prove somewhat less restrictive than it at first appears” because a tribe may have been “under Federal jurisdiction” in 1934 without the federal government knowing it. He noted that DOI produced a list of tribes to which the IRA applied, that a number of tribes were wrongly left off the list, that DOI later recognized those tribes and that they should have been on the 1934 list. Moreover, he noted that DOI’s administrative practices with respect to a tribe that is not recognized could be the basis for proving it was under federal jurisdiction in 1934. He specifically referred to the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe.

Also, Justice Souter’s opinion recognized the possibility that recognition and jurisdiction may be separate characteristics. Using Justice Breyer’s concurrence to support his argument, Justice Souter stated, “the statute imposes no time limit upon recognition, and in the past, the DOI has stated that the fact that the United States Government was ignorant of a tribe in 1934 does not preclude that tribe from having been under federal jurisdiction at that time.” He notes that since there is no precedent or history of practice to gauge whether a tribe was under federal jurisdiction in 1934, the Tribe should be given an opportunity to prove it.

Okay….fair enough….but prove it to Congress. The fact that there is no precedent or history of practice to gauge whether a tribe was under federal jurisdiction in 1934 is reason enough to make sure it is Congress who decides if a Tribe was left off a list or not – not go about it by having the Department of Interior change their regulations to define what they believe to be “under federal jurisdiction” is and to perhaps once again try to apply Chevron deference – assuming that is what they are attempting to do based on their discussions at the 2009 Tribal Consultation. The bottom line is, argument about the word “now” also holds true for the word “jurisdiction”.

Why?  Because these circumstances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity…and that opinion holds true for Congress' intention for the entire IRA - not just one word in the IRA.

It seems obvious to me that the Department of Interior wants to and Tribes support redefining “under federal jurisdiction” in its regulations and may possibly try to use the Chevron deference as a means to get around the SCOTUS decision. So….they lost in court as to what “now” means so the idea is to more clearly define what they consider what “under federal jurisdiction” means…well, it is clear that the Tribes that were under federal jurisdiction under the IRA in 1934 have been listed….and any argument that the Interior should recognize that the 1937 IRA list is not comprehensive because perhaps many tribes were under federal jurisdiction in 1934 - or perhaps had treaties with the federal government, but just chose not to reorganize under the IRA – or were under federal jurisdiction and the government was ignorant of it so therefore should change its regulations to apply Chevron deference is weak at best.

The way I see it….if a Tribe chose not to reorganize under the IRA when they had the chance, then they cannot and should not be able to claim they fall under the IRA now…oh, there’s that pesky word again….that ship has sailed…and for the life of me, I cannot understand how a Tribe could be able to prove it was under federal jurisdiction in 1934 or even after 1947 and argue that the Federal Government was ignorant of their existence….but okay…

Jurisdiction (noun)

1. the right, power, or authority to administer justice by hearing and determining    controversies.

2. power; authority; control

3. the extent or range of judicial, law enforcement, or other authority

4. the territory over which authority is exercised

SCOTUS has made its decision and has effectively dismantled the Chevron deference in regards to the DOI placing land into trust for tribes recognized after 1934….so as I see it, Tribes need to go to Congress and plead their case and allow Congress to determine if they were actually under federal jurisdiction in 1934 or not – arguing that our federal government may have been ignorant of a tribes existence is the perfect example of ignorance of the true intention of the IRA…

“The only thing more expensive than education is ignorance.” – Benjamin Franklin

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