A Putz for All Seasons

"You're gonna give the state of Connecticut $100 million a year and it's not going to cost us anything?" Weicker asked.

--From Without Reservation: How a Controversial Indian Tribe
Rose to Power and Built the World's Largest Casino

by Jeff Benedict

In 1993, facing a serious budget deficit, Governor Lowell Weicker of CT signed an agreement with the Manshatucket Pequots, giving them the right to plug in slot machines at their casino on a reservation in Ledyard Connecticut.

He didn't have to approve slots. There was nothing inevitable about gambling in Connecticut. It was all those dollar signs - dancing apparently guilt-free in the Governor's eyes - when, in his darkest fiduciary hour, he was promised a magical, cost-free source of new income.

For well over three years people have been saying that here in Massachusetts, federally recognized Indian tribes make expanded gambling inevitable, when the fact is, it's even less inevitable here and now than it was in Connecticut - a place where it wasn't inevitable in the first place.

Massachusetts Tribes do not have reservation land on which they can build casinos, and numerous new regulations have also been put into place since then which make the taking of new reservation land  into federal trust - especially for gambling purposes and especially for newly recognized New England tribes - Sisyphean at best.

Not the least of which is the February 2009 Supreme Court ruling in Carceiri v. Salazar.which states that the federal government cannot take any land out of a sovereign state (like Massachusetts) and give it to an Indian tribe recognized after 1934.

The Aquinnah were recognized in 1987, and the Mashpee in 2007.

A further Supreme Court ruling in Hawaii v. Office of Hawaii Affairs states that Congress cannot take any land out a sovereign of a state and give it away to anyone.

There's a whole bunch of other reasons tribal gambling in 2010 is a whole lot different in our state than it was in Connecticut in 1993 - where it wasn't inevitable at all - which I've outlined here and here and here and in lots of other places - and to a lot of people - for two very long years.

Including, that putz for all seasons, Stan Rosenberg, who currently sits on 6-person conference committee hammering out legislation to expand gambling in the Commonwealth.

We need to get this done," Rosenberg said, citing the need for a regulatory structure to be in place if the Mashpee Wampanoag, who hope to build a casino, are able to place land in trust.

- Stanley Rosenberg in State House News Service, July 23, 2010

Now, I can't tell if Stan's lying or just plain stupid, but neither of those options seem a particularly good reflection on our leadership on Beacon Hill.

But what I really can't understand is why he continues to go unchallenged on this by the media.

Not so for the Governor, who back in June of 2008 announced that he was ready to negotiate a contract with the Mashpee, and who was ultimately forced to backtrack on those statements to State House news when a TV reporter, armed with certain facts provided by local gambling opponents among others, called him on it.

"I'll be prepared when I have to be, but we don't have to be yet." Patrick said the tribe will "really drive" the negotiation timetable.  "It doesn't start until they say it starts. And there's not a lot of point in starting until the land-in-trust process is finished. Now, we're in regular touch with them, not me directly, but members of my team are, certainly, and they have expressed an interest in working with us when the time comes. But, no, there's no negotiation happening yet."  

But Rosenberg, on whose feeble grasp of the tribal gaming issue rests the future of the South Shore, Cape and Islands, gets off without so much as a raised eyebrow in the press.

Simply put, Rosenberg thinks he's smarter than everyone else, that his contacts, insider information and understanding of the issue are superior by mere virtue of his position - despite his transparently Kool-Aid tinged view of gambling in general.

Recently Rosenberg has justified his position on the inevitability of tribal casinos based on some calls he's made to Washington, a certain memo, advice from a competent legal council, and conversations with a couple of his fellow senators who also happen to have law degrees.

Allow me break Rosenberg's statements down, piece by piece.

Warning: Big Fat Ego at Work
Here is what the senator had to say to a Massachusetts citizen, who contacted him with information that dared contradict his own, and who, unbeknownst to the senator, is also an expert in Indian case law with over 30 years of first-hand experience, and who had a direct hand in crafting the winning Carcieri argument.   

With all due respect if you have not spoken directly with the BIA then you do not have all the information you need in order to understand the full scope. You are reading what you see accurately but you probably have not had the direct conversations with the BIA that I and others have had which provide the additional background.  If you have I would appreciate information about those meetings. Neither you nor I were part of additional meetings with Secretary's office and the BIA and the heads of landless tribes in which he committed to resolve the issues both of landless tribes and those seeking additional land. All of the meetings we have had and all of the reports we have received from Washington add up to a commitment to resolve land in trust issues in a timely fashion.

That's it for now. Thanks for the dialogue.

For the record, Rosenberg has also been contacted by, and likewise dismissed, other members of the grassroots opposition in Massachusetts - people who have made daily calls to the BIA, the Deptarment of the Interior, and several other Washington Bureaus.

People who have not only spoken directly to representatives of those organizations, but have traveled to DC on fact finding missions, even meeting with the chairman of the National Indian Gaming Commission.

People who have taken a great deal of time to research federal regulations, fully comprehend the historical and political climate in which they were created, and how they apply to the the situation here in Massachusetts.

People who became part of a national information-sharing network of activists - many of whom also happen to be experts in Indian law.

Unlike Rosenberg.  Who is just an ass.

Then the Law is an Ass!
Rosenberg has defended his statements by claiming to have 

consulted with competent legal council and with the BIA and they say the Mashpee will get land in trust within a reasonable period of time. They appear to be the only tribe in the foreseeable future that is expected to get there and be able to install gaming.

And that he's

not the only senator researching these issues. Senator Morrissey and Spilka both of whom are attorneys have also researched this exhaustively and have come to the same conclusions.

Jeez, where do I start?

Well, I, for one, would love to know the name of this "competent legal council".

I mean, for all  we know, it could be Dennis Whittlesey, the 'competent legal council' hired by the town of Middleboro who, a year and a half later was revealed to be an affiliated member of Casino Lawyer magazine, and a featured speaker at CasinoFest7.

Ladies and gentlemen, the truth is, experts in tribal law can often be found walking  both sides of the street.  And I'll give you one guess as to which of that street pays more.

Indian law or gaming experts seem to appear out of nowhere when the casino word is whispered - I recall attorney Dennis Whitten of Duxbury - the first lawyer on the scene after the Mashpee Tribe announced it's intention of building a casino in Middleboro who urged us to abandon all hope and sign an agreement with the Tribe ASAP.  Apparently, he was a lawyer, and had some dealings with the Mashpee.  Ergo, Indian law expert. 

In fact, after the negotiations in Middleboro were complete, former selectman Adam Bond became an Indian Gaming Lawyer too.

As for Karen Spilka, this is from her web site:

Prior to becoming a legislator, Senator Spilka was in private practice as an arbitrator and mediator, specializing in labor and employment law and community and court mediation.

And Morrissey?  Don't get me started.

Just a few months before the Carcieri ruling,  Morrissey represented the pro-casino sentiment at a debate in New Bedford, and readily admitted he didn't know a thing about the case after better-informed opponents filled him in.   He didn't seem to know much about anything, just kept repeating the word "inevitable".

So much for that exhaustive research, on the part of your colleagues, Stan.

I recall another expert, who was brought in by the state to testifiy that Massachusetts tribal casinos were inevitable at the 2008 casino hearings.  Clearly conflicted, she avoided the question a good five times before stating:

“It’s inevitable... in my mind... that it could.”

And that less than emphatic statement, my friends, was made before the Carcieri and Hawaii rulings came down.

However, there are Indian gaming attorneys who helped research and write the Carcieri amicus brief.  And, not for nothing, Theodore Olson, former Solicitor General of the United States, was the lawyer who argued, and won, the Carcieri case before the U.S. Supreme court.  But hey, what do I know?  Maybe Ted and Morrissey were college roommates. 

THE MEMO
In three years, I've never known Mashpee Tribal leadership to let the truth stand in the way of a casino.  In fact, their current leadership's refusal to acknowledge Carcieri has been going on since the ruling came down.  It would appear to be a strategy of sorts - just keep denying reality, keep saying you're coming and, eventually, some pompous ignoramus with a vote - like Rosenberg - will fall for it.

Take, for instance, the memo from Assistant Secretary of Indian Affairs Lary Echo Hawk stating that the Department of the Interior will continue to process eligible pending applications for gaming on Indian lands, that was referenced by Rosenberg at the Senate hearings as incontrovertible proof that Tribal casinos are on the move here in Massachusetts.

Since I find no reason for reinventing the wheel - I will defer to my friend and esteemed colleague, Carverchick who has already done the heavy lifting regarding this memo:

What our dear Senator doesn't seem to understand is that the BIA has no jurisdiction or authority to place land into trust...neither does the SOI at this point...in fact, the BIA is only responsible for determining if the applications submitted prior to the Carcieri decision are still eligible under the new rules.

By no means is the letter or any other "memo" that is circulating saying that all applications are being processed by the BIA...nor does it say any decision on land in trust is being made by the BIA.

In fact, the letters coming out of the BIA and SOI's office regarding the processing of applications are deliberately ambiguous. Let us all keep in mind here that they do consistently say that applications will be processed if and only if they fully satisfy the requirements of the law.

That's a big IF Senator and one the Mashpee and the Aquinna don’t meet.

Hey, I get it....the reason for these letters is understandable... frustration has been building with tribes who are awaiting decisions on applications - shortly after the Carcieri decision they were told to consult with their lawyers on the legality of their request. Nothing has moved forward since.

The only thing that's changed now is that the responsibility for determining eligibility for applicants has shifted from the tribes to the BIA and the BIA is only now evaluating the pending applications for applicable legal standards. After all..there were tribes that were recognized before 1934 and they may have applications awaiting a decision.

Because Rosenberg really wants gambling legislation to pass, he either can't understand the context of this memo, or wants everyone else to misunderstand it.  And that's the truth, plain and simple.

I realize that there is a great deal of conversation about overturning Carcieri.  But wishing and talking don't make it so.  Overturning a SCOUTUS ruling just isn't that easy.

Back in March of 2009 I tried to give some perspective on this by comparing Carcieri to another SCOTUS ruling, the controversial and universally reviled Kelo v. City of New London.

This was not a case that could negatively effect a percentage of 2 million Native Americans, some land claims and a handful of casino investors. This was a case that had ominous negative repercussions for every home and business owner in America.

And it still has not been "overturned".

So, putting things in perspective, a "fix" to Carcieri is neither imminent nor likely.

But since Rosenberg is fond of "real" experts like Spilka and Morrissey, I'll leave it to Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University.

Some Indian country officials believe that a favorable legislative resolution for tribes must happen in short order. Otherwise, current and past Indian land claims will not only sit in possible jeopardy, but also more state and local interests will have time to make arguments to Congress members to try to sway their minds to leave the Supreme Court decision alone.

Fletcher cautioned that just because the Congress is now controlled by a Democratic majority does not mean a fix positive for tribes will sail through. After all, many Congress members hail from districts where Indian issues, especially gaming, are unpopular with non-Indian constituents. As a result, some legislators could see an opportunity to create a fix that might limit Indian gaming or other issues.

“There are so many political entities [including states and localities] that have just been waiting to go in and rehash a lot of things that have been going on in Indian gaming,” Fletcher said. “It doesn’t mean a quick fix is not doable, but you might end up with radical changes in the IRA.”

And I can guarantee that any changes in the IRA will include putting a stop to the odious practice known as reservation shopping like we've seen here in Massachusetts, used as a convenient device by politicians who count on us for ignorance, and the media for apathy. 
 

The Challenge
And so, I'm left wondering why the press appears so reluctant to challenge the great and powerful Rosenberg on this issue.

I mean, I would think they'd savor writing a story about some patronizing, uninformed lawmaker from Western Mass (senate pro tempore, no less) who's currently making heavily-biased and seriously flawed decisions that will effect the economy and quality of life from Cranberry Country to Nantucket.

Heck, I know I would.