Thursday, December 11, 2008

It Rhymes with "Need"...

One thing I hear a lot of people say is that the Mashpee Wampanoag Tribe, being federally recognized, has the right to open up a casino.

The right.

But actually, that's not right.

Most especially if the tribe in question does not have an existing reservation.

Because, as we've seen, turning land over to a sovereign tribe and removing it forever from the tax roles, as well as from State and local oversight, creates an obvious conflict.

Therefore, to balance the interests of the State with those of federally recognized tribes, Congress made provisions for tribes to have land placed into trust for gambling purposes, only if they met certain criteria.

So, for the record, the Indian Gaming Regulatory Act (IGRA) prohibits gambling on any non-reservation lands, or lands acquired in trust after 1988 unless the land, and the tribes meet certain exceptions as laid out in § 2719 of the IGRA.25

These exceptions include taking land into trust in the following ways:
  1. as part of a Tribe's initial reservation
  2. as part of a settlement of a land claim
  3. in a two-part determination with gubernatorial concurrence
My exquisitely gifted friend and fellow blogger, Carverchick has already explained in quite a bit of detail how the Mashpee Wampanoag tribe's application was submitted with the intention of taking the land in Middleboro into trust as it's initial reservation.

Now, prior to this year, when new regulations were published, the initial reservation exception was the closest thing there ever was to the mythical 'done deal'. It was written in order to put newly recognized tribes on a level playing field with recognized tribes which already had a reservation to game on. And essentially, if you were a recognized tribe and could get NEPA to see things your way, you were half-way to building a casino in someone else's backyard.

Naturally, this lead to abuses - such as tribes acquiring casino land in trust hundreds, or even thousands of miles from where they lived, or where they had no historical ties to the land, etc.

And this not only angered the people who did live there, but it also outraged many States, which were told they had no right to refuse to sign tribal compacts. And more importantly (at least when it came to the initial reservation exception which attempts to put all recognized tribes on equal footing) it ticked off other tribes that didn't have the luxury of picking and choosing some lucrative market way off the reservation to build a casino.

And so, after a mere 20 years of excess and abuse, IGRA was finally amended to make it harder for Tribes to pick out a new reservation for the sole purpose of building a casino.

But now, with the new regulations, the initial reservation exception is a lot more like the situational two-part determination exception always was because - like that exception - it simply asks more questions.

Carverchick has, once again, brilliantly and exhaustively explained the requirements of these new regulations here and here.

But what I'm trying to explain in this post is that the purpose of creating these new regs wasn't to make things harder for tribes. The initial reservation exception was written to, once again, put tribes without a reservation on equal footing with Tribes that do. And these other established tribes didn't get to pick and choose a place with decent highway access near population centers to put their casinos - their "initial" reservations are the place they've called home for hundreds (not thousands) of years. And IGRA finally agreed.

And so now, the whole process is supposed to seem more "fair" and subject to less criticism from, well from basically everybody.

What would "fair" under this interpretation be? Well, ok, what if Mashpee Wampanoag territory had been concentrated in the vicinity of the corner of Plymouth Street and Rte. 44 for the past several hundred years. Which we all know isn't true. I grew up in Middleboro and never heard the term "Mashpee Wampanoag" or even the term "Wampanoag" until they were in the news in the 70's suing everyone in the town of Mashpee for what it claimed was it's land. And even then, no one ever mentioned them in Middleboro. You tell me, is that "fair" or is that reservation shopping?

Many folks showed up at the BIA hearings this Spring or wrote to the Department of the Interior with evidence of reservation shopping on the part of the Tribe and it's investors. A lot of communities across this nation have not had such overwhelming evidence.

Tribes with reservations, tribes which have been living in the same area for hundreds of years, for better or for worse, have a certain relationship with the local community. And I'm not talking about the kind of relationship which require an intergovernmental agreements or a Section 22 B.

This relationship is not about 'coming home' to someplace down the road or even across the country where you might have once lived, or hunted or passed through. We all know that, throughout history, myriad tribes have been geographically displaced. And it's not about settling age-old scores, wars, and injustices between tribes and settlers or other Native Americans. The new IGRA requirements are about the place a Tribe has called home for so long that there already exists a viable and documented relationship between them and the current inhabitants.

That is why the new IGRA regulations require significant historical and modern ties to the land.

Because, you should know the folks who want to napalm your backyard and build something that's potentially going to wipe out a few endangered species, increase all sorts of social and criminal problems in your area and even suck the water right out of your well, don't you think? You should at least be aware of them. Just like the folks who live in Mashpee are and have been since time out of mind. IGRA thinks so too.

But real or imagined ties to the land or not, for me, there has always remained a nagging question I wish I could have answered - and that is, why does a tribe of 1,531 people, who are not impoverished, and who are not remote, actually need a casino? I mean, I can understand why they want one. Heck who doesn't want to be rich? But more importantly, why should casinos be sanctioned under Federal law?

Federal law isn't just for Native Americans. It's for all Americans. And I know this because every year the Kravitz's send a overly large portion their income to the Federal government to, among other things, cover it's care and feeding.

And sure enough, whether a Tribe is going for a initial reservation or an acquisition under the two-part determination, it still needs to justify it's need for the land.

And gosh darnit, just because you'd have to take a congested bridge in the summer to get there, and just because it's farther from New Hampshire and other potential markets, and just because the town of Mashpee doesn't want a casino - well that doesn't imply actual need. And anyone who thinks that land in Mashpee isn't as suitable for development as the land in Middleboro obviously wasn't at the BIA hearing this Spring to hear the hundreds of reasons why that land has never been and should never be developed.

So once again, why does it seem that the Federal government is in the business of sanctioning casinos at all?

Because make no mistake, no matter how many times you may hear that casino impacts can be mitigated or that their social and environmental impacts are negligible, and no matter how soft a pillow casino interests try desperately to place underneath your head to cushion any negative perceptions of mega-resort destination casino gambling, and no matter how many TV commercial try to sell you on the wonder of it all, the truth is, for eons, generation after generation of humanity have experimented with gambling only to re-learn and re-learn again the same simple lesson:

The house always wins.

And the bigger that house gets - the more that more people lose. Eventually it's impacts touch so many lives they can't be ignored. Time after time over the course of human history gambling has been curtailed, regulated or shut down entirely.

Now, in the era of mega-resort tribal casinos, with their traffic, idling tour buses, trash, effluent, excessive water usage, lack of local oversight, and a nasty habit of displacing threatened species, not even the environment gets a pass from gambling's predatory after-effects anymore.

And with all this potential damage, to both our region and the environment, I ask again, why does a tribe of 1,531 people need one of the world's largest casinos?

Prior to the downturn in the economy, just one of the Connecticut tribal casinos raked in $1.25 Billion annually. For the Mashpee, with 1,531 Tribe members, after their contract with Sol and Len and runs out, that translates into $816,460 per year each. Ok, minus a crumb here and there to the State as impact hush money.

So... do you suppose they'll build hospitals and schools with all that loot?

The folks who got rich from Foxwoods are now investing in casinos in backyards from Pennsylvania to Wisconsin.

I recently blogged about a Canadian tribe which managed to come up with an idea to capitalize on their sovereign status without the need to inflict the surrounding communities with environmentally, economically and socially destructive impacts of brick and motar gambling monoliths by licensing and maintaining on-line gambling server farms on it's reservation.

A comment to that blog post struck me as particularly incisive:
OK, at the risk of sounding racist and anti-Native American, or anti-Wampanoag, let me ask this. While the Western Native American tribes were being forced onto reservations, where were the Wampanoags? The western tribes were being forced off their land and onto reservations in the 1860s-1890s. By that time the Wampanoags were assimilated into the white culture here in Massachusetts. Many Wampanoags were serving on whaling ships during that time or working at other trades. They were not forced onto reservations and forced to endure hardship at the hands of the U.S. Government.

How many Wampanoags today are living in poverty, like their western counterparts on reservations in Oklahoma, Arizona, or North and South Dakota? I contend the standard of living of most Wampanoags is probably much better than their fellow Native Americans in other parts of our country. With that said, why on earth do they feel the need for a casino? Do they really need a casino or are they being used as pawns to justify an end to the means for wealthy casino developers?

Native American philosophy always says, do not take more from the land than what you need. My question for the Wampanoags is, do you already have what you need in life? What happiness will a casino bring into your life at the expense of the happiness of others?

I think this comment crystallizes the frustration so many of us feel at having the place we call home - the place we've chosen to live and raise our families - hijacked to build a mega resort casino, with all of it's many well-established ills, for the enrichment of a Tribe of 1,531 people and several billionaire investors.

For the record, under IGRA a tribe demonstrates that a casino is in it's best interests by submitting

"projections of income statements; balance sheets; fixed assets accounting; and cash flow statements for the gaming entity pursuant to Generally Accepted Accounting Principles and the National Indian Gaming Commission standards for at least a three-year period; projected tribal employment, job training, and career development; projected benefits to tribe from tourism and the basis for this projection; projected benefits to the tribe and its members from the proposed uses of the increased tribal income; projected benefits to the relationship between the tribe and the surrounding community; possible adverse impacts on the tribe and plans for dealing with these impacts; and any other information for the acquisition..."

Now, just this past week, the Cape Cod Times enlightened us with a revealing article about some of the Tribe's expenditures, including healthy salaries for some Tribal officers, and some hefty paychecks for various consultants such as public relations professionals, lobbyists and a whole cadre of lawyers. Apparently there's also money in their budget to distribute to assorted member-owned enterprises.

Tribal spokeswoman Gayle Andrews is quoted as saying "I don't think that there is a conflict in what's in the best interest for the tribe," in regards to the seven tribal council members who received a total of $488,000 in annual salaries in 2008.

Interestingly enough, at a cost of $378,000 Andrews also heads up the Tribe's biggest expenditure - Weetompain, Inc. - which puts out a cable access show and a newsletter, and which also conveniently employees her son.

Not surprisingly, according to the Times article, "the casino investors provided $4 million for the tribe's budget including nearly $1 million for pay and benefits of tribal council officers and staff members."

Ah yes, casino investors - that other tiny demographic which thinks it needs a casino even if it is at our expense. The same demographic which tries to sell casinos as a benefit. And the one which waves million dollar bills in front of our legislators - our voice and our leadership - as enticement.

The Mashpee Wampanoag tribe consist of 1,531 people. Comparatively, that is a very small tribe. The Apache, on the other hand, numbered 96,833 in the 2000 census. The Navajo number 298,197, and the Cherokee 729,533.

Please take a gander at this map, based on the 2000 census depicting the concentration of Native American peoples across the U.S. (You can click on it to get a better look)

The darkest blue designates the highest concentration of Native Americans. Now take a look at this same map of total population density in the U.S. at the same time.
Once again the darkest blue indicates the highest population. Note how the highest populations of Native Americans seem concentrated in the least densely populated areas of the United States.

Now the reason for the new regulations becomes more clear.

Until the practice of reservation shopping really got rolling, casinos were restricted to remote impoverished tribes. These tribes didn't even have schools or doctors or dentists, let alone newsletters and cable access shows. These Western tribes are generally quite large. Still, those tribes with casinos also pay tribal officers well - but despite what you might have heard, the casino money doesn't necessarily filter into the pockets of all tribe members, or translate into quality of life improvements. Even with casinos, very many of these tribes aren't 'rolling in it'.

This is usually the part where someone asks about the Mashantucket Pequots or the Mohegans - small Eastern tribes in Connecticut with large casinos. But remember, those cases were very different from the situation in Middleboro and the initial reservation exception did not apply. They had existing reservations.

But those nifty population density maps above - they're what make the casino investors drool. They see those dark blue splotches as just more victims at the altar. More folks playing - and losing - and lining their pockets. They look at the examples of Foxwoods and Mohegan Sun with their excessive wealth. The needs of their partners - the Tribe - are inconsequential. They are a means to an end.

Of course, being located near lucrative markets isn't at odds with a Tribe's goal of economic independence. Sean Hendricks once said that a casino was a tool to fund health, education, housing and the needs of the Tribe. No different a reason than that cited by other, larger, more remote Western tribes - tribes with more members, greater needs.

And so, I guess I'd like to know exactly what it is that his Tribe needs so desperately that it is prepared to ravage the land in Middleboro - in complete contrast to their self-proclaimed reputations as "stewards of the land".

This Spring, we told our we told our Governor that he needed to come up with something better than casino gambling to solve our State's budget woes. So why should he sign off on a compact for a form of economic development for the Mashpee Wampanoags that the Commonwealth itself considers inappropriate?

The Mashpee Wampanoag, following every step of the Foxwoods/Mohegan Sun model, haven't exactly proven to be very creative in their approach to a economic development. Perhaps that's because, to their backers from Detroit, Connecticut and South Africa, Middleboro is just another splotch on a map, viewed a distance. It's not real. From a distance, they can see population density, but not what makes this region unique or environmentally sensitive, or what gives it's residents a certain quality of life.

To their credit, the Aquinnah Tribe of Gay Head, Martha's Vineyard, look to the depressed seaside cities of New Bedford and Fall River to build their casino. But still, why casinos? Why gambling? Why an industry that brings so many impacts? Their tax-free status and lack of oversight allows Tribes with land in trust so many more opportunities than the rest of us.

And furthermore, with the Federal Government's increasing hostility towards the process of reservation shopping, not to mention the difficulty of putting off-reservation land into trust, the downturn in the economy, and the inappropriateness of the Mashpee casino site, a deeper question needs to be asked - why should a tribe continue to pin it's economic future on gambling?

Other alternatives always exist. Anyone who's ever seen the movie Apollo 13 knows how a bucket of available parts, ingenuity and real need saved a handful of Astronauts and the entire space program.

It is time that Tribes and their consultants consider better ways to gain economic independence that at the expense of others. And for those of you inclined to say that's impossible - I'd ask you to consider the puzzle of the 13 nails:

You are given 13 nails and a block of wood and are asked to assemble them all onto the block while only nailing one - and do it without using adhesive, magnets or fasteners.

Think it's impossible?

Think again.

My nine-year-old thought it was impossible, too, until he did it. Hey guess what? It's all about balance.

Some things always seem hard or even impossible - until we make the effort to find a way to make it work. And isn't 'making it work' worth the effort to reduce negative impact - not of nails on a block of wood - but on the health, safety, infrastructure and quality of life in our region.

This isn't the age of Aquarius. The twenty-first century is the age of much-needed alternatives. Tribes, States, local governments and the rest of us need to find a better, smarter ways of existing, and thriving in this world together. And we need to stop giving up on a better way, just because we just assume it's impossible or because somebody hasn't thought of it yet.

I've heard Indian 'gaming' referred to many times as "the new buffalo". But from what I've always been told, Native Americans didn't kill more buffalo than they needed. No, that's what the settlers did.

And we all know how well that worked out.

Health, education, housing and the needs of the Tribe... That is the justification for a casino in Middleboro. But why does one group's need for a newsletter or cable access show necessarily need to come at the expense of the health and safety of an entire region? At the lower values for our homes? And the stresses on our schools? Or the lesson to our children that gambling is more than a form of entertainment - that it's type of work ethic?

I believe that most of us truly wish the Mashpee Wampanoag tribe well in all it's non-detrimental economic endeavors. But certainly, a mega-casino development was never meant to occur in densely populated residential areas where the potential for impacts is so high - for the benefit of a tribe which struggles no more than the rest of us for survival. Unlike other tribes.

It's all about balance.

Sure, a casino in our area will bring with it a smattering of low-paying jobs and other opportunities along with a temporary revenue stream that our State will soon manage to spend up to.

But prove to me and the Department of the Interior why a tribe of 1,531 people and a couple of international billionaires have to have a casino at the expense of lower property values, the loss of future economic development opportunities for the region, and an increase in crime, foreclosures, bankruptcies, siphoning of local business, pressure on local schools and emergency services, traffic, road trash, noise, safety, environmental destruction, political corruption, underage gambling, addiction, divorce, spousal abuse, child abuse and neglect and suicide - and the loss of the stars above the heads of a quarter million people who now live in the 10 miles surrounding it.

Well, I'll tell you why. And, if nothing else, at least it rhymes with "need".


Anonymous said...

Great post, as usual!

Mark Belanger said...

I touched on a similar theme albeit far less eloquently towards the end of Casino Summer '07.

Anyone with half a brain could take that 500 some-odd acres of reservation land and earn a fortune. Since it doesn't have to abide by state/local regulation, particularly MEPA, and doesn't pay state/local taxes, it enjoys a huge competitive advantage.

If the Mashpee were smart, they would give up on the the idea of gaming in Middleborough. They could open a small class two facility in Mashpee without the meddlesome investors - a real tribal endeavor. Maybe sell gas and smokes as well. With that money, they could buy up adjacent land and really have a place where there tribe could prosper .... in Mashpee. Then they could open up some sort of traditional business in Middleboro or maybe something innovative like a green power plant of some sort.

The investors don't want economic benefit for the tribe - they could care less. This is just a tiny somewhat risky investment for them that has the potential to return huge returns. With very little capital, the tribe could create economic opportunity themselves, for themselves, without laying waste to Middleboro.

Anonymous said...

Some Western Tribes have reservation land with an area as large as at least half the area of the State of Massachusetts. Their casinos sure aren't sharing a driveway with the house next door. Casinos in residential neighborhoods is just wrong. Plain and simple, it's wrong.