Now is the Winter of Our Discontent

It's a funny thing about words. Especially the word "Now."

Take that line about winter in Shakespeare's Richard III. It sounds like Richard is kicking around in the middle of a snow drift, beset by freezing rain, a long way from home, with a hole in his boot, and no warm mead for forty miles. Now, that's a winter of discontent.

And that's exactly how most people interpret it.

But actually, the line "Now is the winter of our discontent" is followed by:

Made glorious summer by this son of York;
And all the clouds that low'r'd upon our house
In the deep bosom of the ocean buried.

And, if you know the rest of the play, you know that Richard is expressing delight that the dark days of King Henry VI (of the house of Lancaster) have come to an end, making his brother Edward (of the house of York) whose emblem is the sun, the new King.

Personally, I find Shakespeare a lot easier to understand, and heck of a lot more enjoyable, than the Indian Gaming Reorganization Act of 1934. But then, King Richard and the House of York aren't trying to build a casino down the street from me. So I've tried to understand as much of it as possible, especially the case of Carceiri v. Kempthorne which has recently been heard before the Supreme Court of the United States.

Now, like I explained back in February, the Supreme Court doesn't listen to just any case. Most cases that petition to be heard by the highest court in the land are rejected. Just getting to that point was a bit of a Shakespearean drama in itself, but Carceiri v. Kempthorne had something going for it, and on November 3rd the justices listened to esteemed attorneys Theodore Olson and Deanne Maynard argue the meaning of "now" - back in 1934 and well, now.

Theodore Olson in his oral argument to the Supreme Court:

Mr. Chief Justice, and may it please the Court:
Congress squarely addressed and unambiguously answered the first question in this case when it enacted the Indian Reorganization Act of 1934. It authorized the Secretary to take land in trust for Indians, and it declared, as used in this Act, Indians were "members of any recognized Indian tribe now under Federal jurisdiction."

But does "now" mean "now" as in a specific point in time in 1934? Or did "now" mean, you know, "whenever".

I don't want to rehash those arguments here, since they've been excellently presented and clearly explained here and here.

And I won't waste any space talking about what would happen if the Supreme Court upholds Kempthorne, because that's pretty much where we are right now anyway. No, instead I want to talk about what happens in the event Carieri triumphs.

Because awhile back I was talking to a friend about the case and remember saying, "there are, as we speak, packs of lawyers at late hours congregating in oak paneled board rooms trying to figure out Plan B.

Turns out it's called "The Carcieri Fix".

And it's much simpler than Shakespeare.

According to Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University Tribes could team up with non-tribal business partners to petition Congress to define “now” as "whenever".

Now, when I say "non-tribal business partners", you know I'm not referring to the small business guy who picks up the dirty linens at the 'resort' or the company that manufactures the wall to wall carpeting in the slot parlors. We're talking, wink wink nudge nudge, about BILLIONAIRE CASINO INVESTORS WITH DEEP POCKETS.

Which, ironically, is exactly how the Mashpee Wampanoag Tribe got recognized in the first place! They teamed up with Herb Strather who bankrolled their lobbyists, one of whom is now famously doing time in the big house.

Go figure. It turns out that Plan B is actually Plan A.

That being accomplished, they will lobby for a measure to make the Department of the Interior the Alpha and Omega of all land into trust decisions.

Hey, it's good to be king.

Oh wait! That's right. This is America.

King's ransoms' aside, this will be an uphill battle. States' rights aren't easily trumped. Especially for a political appointee. And don't forget, twenty-one states signed on to Carieri v. Kempthorne. That's a lot of momentum.

But, measure for measure, with their already tenuous and certainly weird 'dual reservation' application, what does Plan B entail for the Mashpee?

First, they have to team up with their two INTERNATIONAL investors to out bribe lobby congress to see things their way. This time, maybe they could create a tempest by labeling the entire non-Indian population of the State of Massachusetts as racists, have the major media convince the little guy he's got no say in the matter, and move a good third of the Tribe to Middleboro. Oh and yeah, mention meeting the Pilgrims. A lot.

And what of us in the case of Plan B?

Well, we can go to Congress too. We can point out, as did Mr. Olson, that the 1934 regulations were a remedy to Tribes which had suffered under the old system of land allocation and was not intended as a open door to unequivocally benefit all Tribes recognized hereafter, regardless of need, at the expense of State's rights.

Tribes could attempt to lobby Congress individually. But individually, the Masphee have already had their own land claims settled. And, as I've repeatedly pointed out, in a revealing comedy of errors, the Tribe has employed a crooked lobbyist to help them achieve recognition. And lest we forget, the Tribe is experienced going before Congress, the very body of law makers which may be requested in future times to make land into trust decisions. Their galant silver haired chairman - a man so brave, so noble that he managed to survive the siege of Khe Sanh in Vietnam while still a senior at Lawrence High School in Falmouth - convinced them to grant his Tribe recognition, upon which he made a beeline for the town of Middleboro.

So, ok. Say love's labor's lost and Congress takes a match to the Constitution and makes the Secretary of the Interior King of all Land into Trust, now and forever, whenever, Amen.

Not to worry. All's well that end's well - because the Mashpee are still trying to put land into trust for gaming. And that's where the Indian Gaming Act of 1988, and all sorts of new regulations come in.

As of Now.

Which means that this winter's tale is all much ado about nothing.

Because it still ain't comin.