Wednesday, November 12, 2008

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.


cdplakeville said...

It would be a long winding road for the Mashpee to get their bingo hall when the decision is published. (It has already been decided, the justices are writing their opinions and will be announced and published probably in Feb.)
Any legislative change will take months. This thing will not be some lets file a bill today and voted on tomorrow. We are talking months, if not well over a year.
There could even be fighting amongst tribes on this where those who went through the process, however flawed, will want to prevent others from gaining greater access by giving the SOI that authority.
This would not be an easy fix. Good luck with that.

Anonymous said...

I hope the esteemed Mr Bond reads your blogs. Cause it don't matter if Congress takes land into trust for the tribe. They still have IGRA to contend with.

I love seeing all the blustering about how Congress and a sympathetic administration will make things easier for tribes to get land into trust.

Well so what? Let 'em. IGRA still requires significant historical ties to the land, and the only evidence the tribe has ever presented to the federal government has tied them to Mashpee.

Translation: It ain't comin'!!

Anonymous said...

When I read Peter Kenney's article,
Horsing around at Maushop Stables, it sounded like 'inevitability' just died.

Anonymous said...

Amazing!! If you can read and study all this, why oh why can't the pro-casino side and the reporters. You make them all look, well I have to say it, STUPID!
Anyone can go (on-line) into the Federal Dept.s and read all the requirements a tribe will need to validate their request whatever it is. Ok, maybe they did and as usual THEY DON'T GET IT! Even one pro, please, just one of them has to have a "brain" even if it's shared.

Reporters, I give up on them, they will still be reporting "it's comming" years after "it hasen't!"

Long hrs. of reading, but your dedicated to "getting it right" and you always keep yourself updated on what is currently happening, then put it out there for us to read! THANK YOU!


carverchick said...

Fantastic breakdown of what this "fix" will be if the SC rules in favor of Carceiri!

Anon 438 has sure got it right. The Mashpee Tribe's application falls under IGRA because they are specifically asking for the land in Middleboro to be an initial reservation so they can build a casino. They can't prove significant historical ties, they can't prove a majority of their Tribal members lives in the area and certainly cannot show community presence -- well, at least not until they showed up and told Middleboro they were going to build a casino.

Great job Gladys, as aways!

Gladys Kravitz said...

To me, the irony is, Tribes have done such a wonderful job insisting that States can reap a fabulous revenue stream from making tribal/state gambling compacts that the States finally figured, heck, they could do it on their own and make even more $$. Who needs the middle man? And, if Carcieri should triumph, Tribes and investors attempting to "fix" it, will lose. States don't want to share. If you're going to bring in an industry with that many impacts and social blight, darn it, you want to be able to squeeze every living dime out of it. And then some.

(Ok, that was my cynical response.
My non-cynical, idealistic and hopeful response follows:)

States rights are the cornerstone our democracy. And of course it is the obligation of our home State to protect our home interests. Massachusetts is not Arkansas. Texas is not Michigan. And because some states have legalized slots, it doesn't mean the rest of them have to toe the same line. Dammit.

They shoulda stuck to 'inevitability'. It works on so many levels.

Anonymous said...

A minor fix for your blog.
Indian Gaming Regulatory Act of 1934. here you mean the Indian Reorganization Act of 1934.

Fantastic blog as usual Gladys. Factual, intellectual pursuit of the real truth!!

There were over 30 states represented by lawyers at the Carcieri v Kempthorne oral argument. With that many legal minds from all over the country absorbing the facts, it would seem no "Carcieri fix" will be forthcoming from Congress. WAAAAAAY too much opposition! State's rights still hold the key. "that powers not granted to the United States were reserved to the States or to the people".

A significant majority of Justices were clearly inclined to rule that unless a tribe was federally recognized or under federal juridicdiction in 1934, the tribe is not eligible for a land-in-trust acquistion. Chief Justice Roberts and Justices Scalia, Kennedy, Alito, Souter, Breyer, and Ginsberg all expressed some variation of that view. Only Justice Stevens suggested an opposing view.


Gladys Kravitz said...

Thanks Anon: 9:02!

I have made the correction to the post.


Anonymous said...

Anon 9:02 makes a good point about the 30 states that joined Carcieri. Other states with more experience in Indian Gaming are recognizing the detrimental effects to their tax base. We have too many other problems to address to believe Congress will rush ahead and overturn the SC decision.