Perspective

According to the Fifth Amendment, private property can be taken by eminent domain only for a "public use" - and only with just compensation - usually for the purpose of building schools, hospitals, roads, rail and utility lines, etc.

But in 2005 the Supreme Court of the United States deliberated the case of Kelo v. City of New London. Essentially, the decision gives municipal governments authority to take private property by eminent domain for economic development purposes.

In the Kelo case, the City of New London exercised eminent domain in a working class waterfront neighborhood, with the intent of leveling homes and businesses to make way for a large pharmaceutical company, hotel, upscale housing and a health club. The "public use" in this case being the presumed benefit of additional jobs, a more lucrative tax base and revitalization of the waterfront area.

The Court's decision, which came down 5-4 in favor of New London, has been one of the most despised and controversial Supreme Court rulings in modern history.

There is something very un-American about a government forcing people off their own property. Ownership is the tangible reward of hard work and dreams. It's often a source of livliehood and comfort, and it provides an personal connection to history, to family and to community.

Which is probably why the framers of the Constitution added the Fifth Amendment to the Bill of Rights to ensure that eminent domain could only be exercised for "public use". But in Kelo, the court essentially interpreted the Fifth amendment to equate "public use" with "public benefit", giving government enormous and unprecedented power to take private property.

According to Justice Sandra Day O'Connor who, in her dissenting opinion, found that "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Additionally, "any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

Yikes.

No one likes eminent domain, but it's certainly less loathsome to the property owner when it's used for the benefit of those those things that he also enjoys as member of the larger community.

For example, he drives on the highway, plugs into the electrical grid to power his home, educates his children in the school, and may seek emergency treatment at the hospital. The decision to enact eminent domain is subject to public review and discussion, possibly even a public vote. The end result generally has a long shelf life. It may remain on that same site for a hundred or more years.

The benefit from economic development, however, is less certain. A more lucrative tax base equates to more money in municipal budgets - but that money won't necessarily be spent on something directly beneficial to the private property owner being displaced, nor for the greater good of the general public. And expenditure of additional tax revenue may not necessarily be subject to public review. It could even be misspent, misappropriated, or mislaid. A private developer is subject to the whims of the market. The end result may not only not have a long shelf life - it may never be built. There may be purpose of public benefit in these uses of eminent domain, but there is no certainty of it.

Understandably, the outcry across the country over Kelo was intense and far-reaching. In fact, as I recall, it was the one and only time I ever found myself in complete agreement with George Will.

The decision was so odious that then-President George W. Bush issued an executive order directing that eminent domain be used only for “ ...the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

Public response to Kelo was so overwhelming that Congress was pressured to introduce several bills to limit it's ramifications.

And in the wake of Kelo, 42 States would later enact legislation which restricts the power of government to take private property for economic development.

But you're asking - what does any of this have to do with us?

Well, I think there's some of you who still have some lingering anxiety over the notion of a "fix" to Carceiri v. Salazaar.

So let's get some perspective, - if there was ever a Supreme Court case that needed fixing, it's Kelo v. The City of New London. Right?

Then, how does the Kelo ruling compare with Carcieri?

Well, for one thing, there won't be any Presidential executive order thanks to another Supreme Court ruling. In United States v. Kagama, the Supreme Court ruled that Congress alone, not the President, holds plenary (absolute) powers over Indian affairs.

And while there might be rumblings in Congress, they won't get far because the States are siding with Carcieri. States do not want the Federal government taking land off the tax rolls and telling them what they have to do. Never have. But most especially when it comes to "gaming".

In fact, when you think about it - giving the Federal government authority to take land into trust is sort of like exercising eminent domain on States.

After Kelo, Congress introduced legislation to limit the ruling, but these bills have not been passed.

In fact, the only "fix" to Kelo came at the State level - the result of a huge groundswell of outrage from coast to coast that resulted in changes to eminent domain laws in the majority of States to prevent another situation like Kelo.

What do you think? Would there be a huge groundswell of outrage in Massachusetts if the Mashpee Wampanoag can't get their casino?

Let's take a look at 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.

This excellent article in Indian Country Today outlines the potential for various "fixes" to Carcieri, but still agrees with many of the points I've made in several posts on this blog.

Apparently, even Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University, who, immediately after the Carcieri announcement was saying that the definition of "now" would be pretty easy to fix with a "technical ammendment" to the Indian Reorganization Act is singing a different tune:

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.”

Talk about a new perspective...

So... want to do your best to seal the deal on Carcieri? Then write a letter, or several, to your Congressmen, letting them, in no uncertain terms, know how "unpopular" Indian gaming has been with you. Fill them in on all the fun things you've had to endure thanks to screwed up Federal Policy, and how inappropriate casinos are not only for your neighborhood, for for the whole State.

Carcieri v. Salazar has been a step in the right direction. Now, taking a cue from Kelo, we should be gathering momentum - like those Statewide grassroots movements across the country did after Kelo, and which lead to major changes in eminent domain laws. We should push for an amendment to our own State's Constitution preventing the future collection of revenue from predatory gambling practices.

Think little guys like us can't change the world?

"Indeed, it's the only thing that ever has." -Margaret Mead

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Friends, if you're looking for a good book, do yourself the favor of checking out the newly released "Little Pink House", by Jeff Benedict.

Benedict is also the author of my well-worn, much beloved and irreparably highlighted, dog eared copy of "Without Reservation: How a Controversial Indian Tribe Rose to Power and Built the World's Largest Casino" - the enlightening tale of how Foxwoods casino came to be.

"Little Pink House" is not only about the all-true David and Goliath battle that was Kelo v. City of New London, it's a story of grassroots, strength, commitment, and courage. It's about real-life people facing down a colorful cast of variously zealous, indifferent, self-important and hostile characters to protect their homes and way of life.

And so, it might sound a little bit familiar.