More Mashpee Wampanoag Fantasies

Ruling backs Mashpee tribe's land claims

Tribal chairman Cedric Cromwell, left, and chief Vernon Lopez chat with guests as members
of the Mashpee Wampanoag Tribe hosted an open house last May for residents of Taunton
at the high school to showcase the tribe's plans for a casino in the town.
Cape Cod Times File/Steve Heaslip

By George Brennan

gbrennan@capecodonline.com

February 13, 2013

 

The Mashpee Wampanoag Tribe's application to have 146 acres taken into federal trust in Taunton for an Indian casino can move forward under a ruling by the federal Bureau of Indian Affairs.

 

The decision does not completely clear the path for the tribe's proposed $500 million casino, but it does eliminate a significant hurdle.

 

In a letter to the tribe dated Feb. 7, Assistant Secretary Kevin Washburn wrote that a "preliminary advisory opinion" indicates the Taunton land and 170 acres in Mashpee qualify as an initial reservation. The exemption is part of the Indian Gaming Regulatory Act that would allow the tribe to offer gambling on the land if other criteria are met.

 

In a press release, tribal council Chairman Cedric Cromwell called the letter "another huge step forward toward the development of a first-class destination resort casino in Taunton."

Cromwell praised the speed of the review process.

 

"They truly understand how important it is for our people to have land, to maintain our history, our language and our culture. This will enable us to fully operate as a sovereign tribal government, to secure the resources necessary to support ourselves, and to provide services such as housing, health care and education to our people," he said.

 

The ruling is evidence that the BIA is convinced the tribe has "significant historic and modern ties" to the land.

 

"It further demonstrates an Interior Department that is more willing to move quickly and definitively on these types of determinations," Steven Light, an Indian gaming expert at the University of North Dakota, said. "Put this federal action together with the groundwork the tribe has laid — land option, local political support, conversations with the state, application for land into trust — and the trajectory points toward success for the Mashpee."

 

It's also significant because, if the application is approved completely, it gives the tribe authority to offer Class II gaming — bingo and so-called bingo slots — on the land with or without state approval. With a compact between the tribe and state, the Mashpee Wampanoag would be entitled to offer Class III gambling, which includes slots and table games like blackjack.

 

A historian hired by the tribe, along with two tribe members, filed a report outlining the ties to land in Taunton. In essence, the document makes the case that the Mashpee Wampanoag is the only remaining mainland tribe of what was once the Pokanoket Nation. The Pokanoket homeland stretched from Rhode Island, east to the Cape and Islands and north to Gloucester covering all of Southeastern Massachusetts.

 

Cohannut, which encompasses modern Taunton, Lakeville, Middleboro and Bridgewater, was an important "resource rich" area used by the Wampanoag for hunting, gathering and planting before English settlers took over the region, according to the tribe's historical account. After the bloody and deadly King Philip's War in 1675 and 1676, the Mashpee tribe, which stayed neutral, took in surviving Indians who weren't sold off as slaves, according to the report.

 

The Mashpee tribe's claims to the land are disputed by state-recognized tribes and will likely be challenged in court, but the BIA's approval is a significant step for the Mashpee Wampanoag — one that critics have said they doubted would ever happen.

 

Next, the tribe must convince the BIA that a 2009 U.S. Supreme Court ruling, known as the Carcieri decision, does not apply to them, Light said. That ruling called into question the federal government's authority to take land in trust for tribes recognized after 1934, the year of the Indian Reorganization Act, but left open the door that tribes might be able to show they were under federal jurisdiction.

That's one of several "big hurdles" remaining for the tribe, Light said.

 

Though the tribe was not federally recognized until 2007, it has made a legal argument that, among other things, an agreement with King George III to protect Mashpee Indian land should have been enforced by the United States.

 

The BIA has yet to rule on whether Carcieri applies, but in a similar case the Cowlitz Tribe in Washington State was recently found to be under federal jurisdiction and its land was taken into trust.

 

That decision was challenged immediately and the ongoing lawsuit is being watched closely by the Mashpee tribe and others across the country.

 

An environmental review must also be completed by the Mashpee Wampanoag before the BIA makes its final decision on the tribe's land application.

 

KG Urban Enterprises, a developer that hopes to build a commercial casino in New Bedford, declined to comment on the BIA letter.

 

Elaine Driscoll, a spokeswoman for the Massachusetts Gaming Commission, said the BIA's action is one of several factors the commission will take into effect when it makes a decision next month whether to open Southeastern Massachusetts to commercial bids.

 

Meanwhile, negotiations continue between the tribe and Gov. Deval Patrick to renegotiate a compact that was rejected by the BIA.

 

"We remain focused on reaching an agreement that is fair to the commonwealth and the tribe," said Jason Lefferts, a spokesman for the state Executive Office of Housing and Economic Development.

 

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20130213/NEWS/302130316/-1/NEWSLETTER100

18th-century pact an ace in Mashpee tribe's pocket?

18th-century pact an ace in Mashpee tribe's pocket?

By George Brennan

gbrennan@capecodonline.com

January 27, 2013

 

The Mashpee Wampanoag Tribe is banking on a 250-year-old agreement with King George III as a key to overcome what experts have called the biggest hurdle to building a $500 million casino in Taunton.

 

The tribe argues in a document filed with the federal Bureau of Indian Affairs that it has been under federal jurisdiction since this country's inception because of the deal with the king. It also asserts that the United States has repeatedly failed in its responsibility to protect the Mashpee Wampanoag, leaving it "impoverished and nearly landless."

Related Links

• More: Times coverage of the Mashpee Wampanoag's quest for a casino

TRIBE TIMELINE

1665 - Mashpee becomes the first deeded Indian town with the assistance of sachems Tookenchosen and Webquash and the Rev. Richard Bourne. The deed restricts the sale of land without permission of the South Sea Indians, the tribe's name at that time.T

1685 - Tribe successfully petitions the Plymouth Colony to recognize the deed, which stipulates Mashpee as a reservation.

1694 - Colony appoints overseers to "outlaw the sale of liquor to the Indians."

1763 - Wampanoag school teacher Reuben Cognehew visits England where King George III grants Mashpee the unique status of "Indian district." Agreement gives tribe control over local government and fishing rights.

1789 - U.S. Constitution goes into effect, which requires it to uphold the "treaty" between the king and tribe.

1790 - U.S. Congress passes the Nonintercourse Act, which stipulates Indian rights to their land.

1822 - The Secretary of War directs the Rev. Jedediah Morse to visit and inspect Indian tribes to determine which ones should be moved to Oklahoma. He reports that Mashpee removal would not be appropriate because of ties to the whale industry, among other things. "Their local attachments are strong; they are tenacious of their lands," he wrote in part.

1870 - Massachusetts incorporates Mashpee as a town and allots its land to tribe members, though some land, including the meetinghouse and cemetery, remained common lands.

1934 - Congress approves the Indian Reorganization Act, which restores tribe rights to self-govern. Mashpee petitions for inclusion in that act, but not considered under federal jurisdiction

.

1975 - Mashpee Wampanoag files suit against property owners in federal court seeking restoration of tribal lands.

1978 - After losing the land suit, tribe files its application for federal recognition.

2007 - Tribe is recognized by the federal government.

2009 - U.S. Supreme Court questions authority of the Department of the Interior to take lands into federal trusts for tribes recognized after 1934 - the "Carcieri decision."

2011 - Interior Department approves taking land in trust for the Cowlitz tribe, saying it can show it was under federal jurisdiction on and before 1934

.

2012 - Mashpee tribe amends its land in trust application to include Taunton.

Source: Mashpee Wampanoag application for land in trust
 

"Now, as the tribe's trustee, the department can and should reverse this shameful history by accepting the proposed land in trust," the document states.

 

The legal arguments are made in a nearly 60-page document submitted along with the tribe's application to have 146 acres in Taunton and 170 acres in Mashpee taken into federal trust by the Department of the Interior. It comes as the federal Bureau of Indian Affairs is reviewing the tribe's application and expects to rule on part of it by the end of this month.

 

The 1763 agreement with King George III, which tribe attorneys equate to a treaty, is one of a half-dozen arguments aimed at showing why a 2009 ruling by the U.S. Supreme Court known as the Carcieri decision does not apply to the Mashpee Wampanoag. The ruling called into question the Interior Department's authority to take land in trust for tribes recognized after the 1934 Indian Reorganization Act. The act restored certain rights to tribes, including self governance.

The Mashpee tribe was federally recognized in 2007.

 

The Times obtained a copy of the document through a tribal source in advance of its release publicly by the bureau.

 

Tribe leaders have said the 2009 ruling does not apply to the Mashpee tribe, but this report provides the first details of how the tribe hopes to get beyond it.

 

The Mashpee Wampanoag legal argument was authored by Arlinda Locklear and Judith Shapiro.

Locklear is described in a Duke University biography as a Native American law pioneer who worked toward getting federal recognition for her own tribe, the Lumbee in North Carolina, and in 1984 was the first American Indian woman to argue before the Supreme Court, according to the profile.

 

Shapiro has practiced Indian gaming law for 25 years, according to her firm's website, including work for the Mohegan tribe in Connecticut.

 

Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell declined to answer specific questions about the tribe's application because it remains under review.

 

"I can say that the information we have presented to the Department of Interior is compelling, and supports the fact that our people have inhabited present-day Southeastern Massachusetts, including the Taunton area, for thousands of years," Cromwell said in a statement. "In addition, it proves that our tribe satisfies all requirements for our land to be taken into trust."

 

The Carcieri decision, so named because it involved an ongoing dispute between Rhode Island Gov. Donald Carcieri and the Narragansett tribe, centered on the phrase "now under federal jurisdiction."

 

In a concurring opinion, Supreme Court Associate Justice Stephen Breyer gave tribes like the Mashpee hope by saying if they could prove they were under federal jurisdiction prior to 1934 through a treaty, they might have a case for trust lands. In 2011, the bureau approved the trust application of the Cowlitz tribe in Washington, which was federally recognized in 2000, on those grounds.

 

The Mashpee tribe contends that it meets standards established in the Cowlitz decision, especially in light of the agreement between the king and the tribe to protect Mashpee lands and fishing rights.

 

In 1763, Wampanoag school teacher Reuben Cognehew traveled to England to complain that Colonial overseers were not doing enough to protect the tribe's land.

 

The king granted the Mashpee tribe the authority to "annually elect a moderator and five overseers, three of which were to be Mashpees, a town clerk, treasurer, and one or more constables. The overseers were to regulate fisheries, lease lands, and apportion land and meadow among the Mashpee proprietors themselves."

 

When the U.S. Constitution was enacted 23 years later, the federal government took over the responsibility for enforcing that agreement, the tribe asserts. "As the Supreme Court has long held, the United States, upon acquisition of territory from another sovereign, is bound by the rights and property confirmed to tribes by that sovereign, whether those appear in treaty or statute," the report says.

 

The report argues that the tribe was under federal jurisdiction well before 1934 and after, even though the federal government didn't recognize it officially until 2007.

 

Not only was the tribe under federal jurisdiction, but there is no evidence the federal government attempted to end its control — standards established in the Cowlitz decision, the report says. "Federal jurisdiction continues unless and until explicitly terminated by Congress," it reads.

 

When Mashpee was incorporated as a town in 1870 and its land allotted to tribe members, that constituted an illegal act by the state, the report says. "The United States had a legal responsibility to protect the tribe in occupation of its lands and failed to do so at the time."

 

Evidence of the Mashpee tribe being under federal jurisdiction goes beyond the 1763 agreement with the British crown, according to the document. The Mashpee tribe's fishing rights are similar to those of the Stillaguamish tribe, which are cited by the Interior Department in the Cowlitz decision.

 

The Stillaguamish were recognized in 1976.

 

The report also points to tribe members attending a school for American Indians only called the Carlisle Indian Industrial School in Pennsylvania as proof of federal control over tribe members. The tribe was also included in federal census counts in the early part of the 20th century.

 

Also, the federal government investigated the tribe and decided not to move it in the 1820s, as it did other tribes — an exercise of federal authority over the Mashpee Wampanoag, the attorneys contend.

 

One potential problem for the tribe is that when it petitioned to be included in the Indian Reorganization Act of 1934, an official at the Indian Office concluded the Mashpee tribe was not under federal jurisdiction.

 

"This federal official was obviously ignorant both of the prior federal relationship with the tribe and of the continued existence of the tribe's reservation "»," the tribe's attorneys argue. The tribe should have qualified because it had occupied territory "continuously and without interruption."

 

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20130127/NEWS/301270322/-1/NEWSLETTER100

Is Mashpee Wampanoag Tribe 'under federal jurisdiction?'

GUEST OPINION: Is Mashpee Wampanoag Tribe 'under federal jurisdiction?'

By James P. Lynch

Posted Jan 17, 2013

 

Purchase this photo

Taunton Gazette

Gov. Deval Patrick, left, and the Mashpee Wampanoag Tribe, whose tribal Chairman Cedric Cromwell is at right, reached a casino compact on Wednesday, July 10, 2012. The compact, which would govern the operation of a proposed tribal casino in Taunton, calls for 21.5 percent of gross gaming revenue from the tribe to go to the state. A 6.5 percent share of that amount would be used for mitigation in communities affected by the casino, but no specific projects are identified.

As we are all aware, the Mashpee Wampanoag Tribe has been publicly stating that the tribe is actively in the process of petitioning the Bureau of Indian Affairs (BIA) to have land within the city of Taunton taken into federal trust as a federal Indian reservation. As of this writing, their petition to the BIA is incomplete, in that it is still lacking the required historical narrative proving, as required by federal regulations, that the tribe maintained a ”significant historical presence” in southeastern Massachusetts. Thus, the Mashpee’s persistent claims to the contrary, BIA’s consideration of their petition to have lands taken into federal trust cannot proceed without this essential information.

Additionally, the tribe is faced with the legal barrier placed before it to have land taken into federal trust by virtue of the 2009 U.S. Supreme Court Decision in the matter of Carcieri v. Salazar. In this decision the Court decided that Indian tribes not “under federal jurisdiction” prior to the 1934 enactment of the Indian Reorganization Act could not have lands taken into trust after that date.

I would be the first to agree that from the outside the matter of “under federal jurisdiction” is confusing. What is this concept or status? The Mashpee have argued that they were under federal jurisdiction prior to 1934 citing the on-going litigation concerning the Cowlitz tribe of Washington State and their interpretation of “under federal jurisdiction” made in their quest to also have land taken into federal trust as an Indian reservation for gaming purposes. This issue is currently in federal appellate court.

Here is the underlying problem. The Cowlitz are claiming that prior to 1934 individual members of the Cowlitz Indian community received assistance from the regional Indian Agent. They are interpreting such individual Indian assistance writ large as proof that the tribe was under or subject to federal jurisdiction.

At that time, BIA assistance was based upon two criteria: assistance to Indian individuals regardless of tribal affiliation who could prove that they met the federal Indian blood quantum requirement (usually 50 percent) to be recognized as a qualified Indian. Such qualified individuals regardless of any tribal affiliation could, and did as individuals, receive assistance from the Indian agency such as medical services, land allotments, school attendance etc. This criteria was an ethnic-phenotypically -based non-tribal and non-jurisdictional form of assistance.

Secondly, recognized Indian tribes residing upon federally established Indian reservations or restricted fee federal public domain lands set aside for Indian use, such as treaty tribes, pueblos, and rancherias received block aid via annual Congressional budgetary enactments disbursed by BIA. Such land set-asides involved jurisdictional and at times non-jurisdictional matters.

That is why the BIA has always maintained two legal definitions that governed its ability to provide assistance or aid. A definition of tribe, and a separate definition of what constitutes an Indian individual. Each had its own regulatory stream governing such aid. But neither definition depended on the concept of jurisdiction as a functional necessity for providing assistance to a tribe or individual. Currently both BIA and the Cowlitz are trying to merge both aid and jurisdiction as one and the same. This is not the case.

Federal jurisdiction means, under, or, completely subject to federal law vs. under state jurisdiction which means under or subject to state law. In 1928 there were extensive congressional hearings on this very subject which addressed the issue of extending the scope of federal jurisdiction over Indian reservations. On some Indian reservations its occupants were subject to federal law for specific serious offenses and subject to state law or jurisdiction otherwise. Thus, such an entity was not under federal jurisdiction as called for in the Carceri decision.

On the other hand, some tribal reservations, especially treaty-established reservations that were created on lands that, at the time, were not states, but federal territories, were completely subject to federal jurisdiction or law. Then, there were some Indian settlements such as California Indian rancherias, whilst residing upon federally-owned lands, its Indian occupants were completely subject to state legal jurisdiction.

This is what the U.S. Supreme Court was addressing in its Carceri v. Salazar decision. The court found that circa 1937 the Narragansett Indian tribe of Rhode Island was not under federal jurisdiction but subject solely to Rhode Island state law or jurisdiction. Thus the tribe could not have land taken into federal trust.

In regards to the Mashpee, the bottom line is, that from its founding in 1651 as a distinct Christian Indian community, the Indians at Mashpee were always totally subject to colony, provincial, or commonwealth legal jurisdiction. This was their status as a state created municipality in 1934.

In sum, the Mashpee cannot validly prove that they maintained a “significant historical presence in Southeastern Massachusetts as defined by federal regulations (25 CFR 292) nor, can they meet the “under federal jurisdiction” requirement as posited in the Carceri decision. Barring congressional action enacting specific legislation establishing a reservation for the tribe in Taunton (a highly unlikely action by the Congress), Mashpee cannot hope to acquire the land and legal status necessary to establish a tribal-based gaming facility under the 1988 Indian Gaming Regulatory Act in Massachusetts.

James P. Lynch is principal and owner of Waterbury, Conn.-based, Historical Consulting & Research Services. He has been a practicing ethno-historical researcher and consultant for more than 25 years. He is also the author of four books on tribal history, colonial-tribal land relations and federal Indian policy.
Read more: http://www.tauntongazette.com/newsnow/x1922393572/GUEST-OPINION-Is-Mashpee-Wampanoag-Tribe-under-federal-jurisdiction#ixzz2ItkbAQIL

More Woes for Casino

There are important similarities between the Cowlitz Tribe and the Mashpee Wampanoag/Genting proposal in Massachusetts.

The Mashpee Wampanoag/Genting proposal ignores the Tribe's lack of historical ties to Taunton, as well as their recent recognition, among other things.

The BIA's failures destroyed that fantasy.

In Our View: More Woes for Casino

Federal judge imposes deadline as Cowlitz Tribe and BIA lose momentum

 

Fortunately for Clark County residents who want to maintain the community's high quality of life, the Cowlitz Indian Tribe's proposal for a mega-casino near La Center has encountered yet another obstacle, this one placed by the federal agency that tribal officials have long hoped would champion their cause.As we've learned recently, the Bureau of Indian Affairs either lost or never reviewed important historical documents provided by casino opponents. That led the Justice Department to seek a delay in the federal proceedings.

But U.S. District Judge Richard W. Roberts recently denied that request and — to make matters worse for casino hopefuls and BIA official — set an Oct. 5 deadline for making a difficult choice:

The federal government must decide if it will defend itself in court or rescind the BIA's 2010 decision that supported the casino proposal, which lacked the crucial information from casino foes. Clearly, the BIA and tribal officials are backed into a corner by the federal agency's blunder, and the lingering reality that casino opponents are making a compelling case.

A year and a half ago The Columbian applauded the decision by several casino foes to appeal the BIA ruling to the U.S. District Court in Washington, D.C.

Those parties included Clark County, the city of Vancouver, owners of property near the proposed casino site on Interstate 5, La Center cardrooms and Citizens Against Reservation Shopping (CARS).

And now, that appeal reveals itself to be eminently valid. (Among CARS members is Columbian Publisher Scott Campbell. The newspaper has long opposed the proposed casino because it would negatively impact the local quality of life).

How the BIA could've lost or ignored key data provided by casino foes is a question that must be answered after close scrutiny by the U.S. Justice Department. For now, the second in a double whammy has been delivered to casino supporters.

The first haymaker was thrown by the worst recession in seven decades. Few visible efforts have been made by casino proponents in the past few years, no surprise considering the financial hole that all of America has been digging itself out of.

The second severe setback was this recent confusion and legal desperation within the BIA. According to a Thursday Columbian story by Stephanie Rice, some of the overlooked documents dispute tribal claims that the Cowlitz have historical ties to the land near La Center. That tribal argument was countered years ago, as revealed by these assertions we presented in a 2007 editorial: "Tribal headquarters are in Longview (Cowlitz County), a housing center is farther north in Toledo (Lewis County) and ample historical evidence" places the tribal homeland to the north of Clark County.

Another matter of dispute pertains to federal recognition. The U.S. Supreme Court ruled in 2009 that the federal government can only put land into trust for tribes that were under federal jurisdiction in 1934. But the Cowlitz tribe was federally recognized in 2000.

Thus, we see the Cowlitz casino proposal sinking deeper into a regulatory abyss from which it might never escape. And that's good for Clark County.

http://www.columbian.com/news/2012/sep/14/more-woes-for-casino/

Feds seek to revisit Cowlitz decision

Feds seek to revisit casino decision

Agency initially ruled Cowlitz could establish reservation near La Center

Columbian files
The site of a proposed casino along Interstate 5 in La Center.
By Stephanie Rice
Columbian Staff Reporter
Wednesday, September 12, 2012

In a surprising twist in the federal legal battle over the Cowlitz Indian Tribe's proposal to build a casino near La Center, the federal government asked a judge to temporarily halt the proceedings in order to reconsider its initial determination that the tribe could establish a reservation.

The request was made after federal attorneys acknowledged they never received key documents that had been submitted by local opponents to the tribe's proposal.

U.S. District Judge Richard W. Roberts denied the request, however, and ordered the federal government to decide by Oct. 5 whether it wants to proceed in defending itself in court or rescind the Bureau of Indian Affairs' 2010 decision.

The case is being argued in U.S. District Court in Washington, D.C.

The tribe cannot build a casino unless it has an established reservation near La Center.

According to court documents, attorneys from the Justice Department asked for the delay after discovering that the Bureau of Indian Affairs either lost or never considered historical documents submitted by opponents of the tribe's casino plans. The opponents' documents challenged the tribe's assertions that it had significant historical ties to the land near La Center.

The decision to put the land into trust needs to be reconsidered, wrote Justice Department attorney Gina L. Allery in a July 19 motion. "Depending on the decision reached by (the U.S. Department of the Interior, which includes the Bureau of Indian Affairs), it is possible that some or all of plaintiff's claims in this lawsuit become moot."

In an Aug. 29 decision, Judge Roberts said a delay was unnecessary.

The plaintiffs have asked Roberts for summary judgment, meaning he would decide the case based on documents that have been filed and not proceed to trial.

"Neither a remand nor a stay, however, is necessary to enable the federal government to review and reconsider the determination," Roberts wrote. "Instead, the deadline for the defendants to file oppositions to the plaintiffs' summary judgment motion will be extended. Should the federal defendants decide in the interim to rescind or otherwise alter their determination, they shall file promptly a notice of such action."

The 2010 Bureau of Indian Affairs decision was appealed by Clark County, the city of Vancouver, nearby property owners Al Alexanderson and Greg and Susan Gilbert; Dragonslayer Inc. and Michels Development, operators of the four La Center cardrooms; and Citizens Against Reservation Shopping, a group that includes Scott Campbell, publisher of The Columbian.

Clark County Deputy Prosecutor Lawrence Watters said federal attorneys learned about the missing documents months ago when they received them from plaintiffs' attorneys during the course of exchanging evidence. Yet federal attorneys waited until after the plaintiffs submitted their arguments for summary judgment before raising the issue with the judge, Watters said.
"It's an odd scenario," Watters said Wednesday.

The legal challenge has taken on special significance after the Obama administration chose to make the Cowlitz land trust case a test case of a 2009 ruling by the U.S. Supreme Court.

In that ruling, known as Carcieri, the high court said the government can only put land into trust for tribes that were under federal jurisdiction in 1934.

In saying the Cowlitz could establish a reservation, Assistant Secretary for Indian Affairs Larry Echo Hawk addressed Carcieri at some length in his December 2010 decision.

"For purposes of our decision here, I need not reach the question of the precise meaning of 'recognized Indian tribe,' as used in the (Indian Reorganization Act), nor need I ascertain whether the

Cowlitz Tribe was recognized by the federal government in the formal sense in 1934, in order to determine whether land may be acquired in trust for the Cowlitz Tribe," Echo Hawk wrote in his ruling.

The Cowlitz were federally recognized in 2000; that ruling was challenged and reaffirmed in 2002.

"The Cowlitz Tribe's federal acknowledgment in 2002, therefore, satisfies the IRA's requirement that the tribe be 'recognized,'" Echo Hawk wrote.

Additional concerns

In addition to questioning the Cowlitz ties to the La Center parcel, plaintiffs also argue, and the defendants and the tribe deny, that the current plans have inadequate mitigation for stormwater, traffic, light and noise issues.

The defendants are the U.S. Department of the Interior, the Bureau of Indian Affairs and the National Indian Gaming Commission.

The plans for the Cowlitz site, which would be west of the Interstate 5 interchange in La Center, call for a two-story casino with 3,000 slot machines, 135 gaming tables, 20 poker tables and a 250-room hotel, plus an RV park, 10 restaurants and retail shops.

But that $510-million complex was proposed before the economy tanked.

The Connecticut-based Mohegan Tribal Gaming Authority partnered with Cowlitz tribal member and real estate developer David Barnett of Seattle on casino operation.

http://www.columbian.com/news/2012/sep/12/feds-ask-to-revisit-casino-decision/

The trouble with the Mashpee Wampanoag land claim

 

GUEST OPINION: The trouble with the Mashpee Wampanoag land claim

By Allin Frawley

Posted Jul 24, 2012

“Sometimes it’s easier to ask for forgiveness than ask for permission.” I don’t know who said it, but it sure feels like that is what the State House and governor are doing as far as a state-tribal compact is concerned.

 

Recently, an article appeared in the Boston Globe, (Mark Arsenault, July 16), regarding the Mashpee Wampanoag Tribe and the Cowlitz Tribe in the Pacific Northwest. If this is the thought process that is being referenced by the proponents of the tribe for the Mashpee land-into-trust issue, then I believe that the proponents must first admit that at this time there is no legal vehicle present for the Mashpee to acquire land-into-trust.

 

This article is referencing a strategy to circumvent the current law. An argument could be made that the state is going into this compact in the “hopes” that the Mashpee will be successful. What if the state and the tribe are wrong? Where does that leave us, residents of Southeastern Massachusetts?

Why hasn’t the governor’s legal team reviewed the Mashpee Wampanoag’s historical evidence? Are we now taking them at their word? Historically, that has not gone well for anyone who has been partners with the tribe. (Please just ask Middleboro). What kind of timeline is the tribe looking at?

 

In 2007, when the tribe signed their first intergovernmental agreement, we were 18 months. In 2009, after Carcieri v. Salazar, we were again told 18 months. Still nothing.

 

This Cowlitz case is in court now and will be for years to come. Then and only then will the Mashpee Wampanoag’s get their chance, and there are some very important differences:

 

1. The Mashpee are looking to take two different parcels into trust. A “dual initial reservation” has NEVER been granted.

 

2. Taunton is not ever mentioned in the Mashpee Wampanoag’s federal application for recognition. Ask any other tribe about the Mashpee’s ties to Taunton. This is a clear case of “reservation shopping,” looking for land for a casino then laying claims to it. The BIA has ruled against this ploy many times. This is not the Mashpee Tribe’s first try, or second or third. They went to Middleboro, Fall River, New Bedford and finally settled on Taunton. And this compact will allow them to try elsewhere as well.

 

3. The Mashpee were never under federal recognition, The commonwealth of Massachusetts predates the federal government. There is no federal land to give to the Mashpee; there never was. The Supreme Court decision in Hawaii v. Office of Hawaiian Affairs tells you that you cannot give state sovereign land to the federal government or an Indian tribe.

 

Those are just three examples of differences between the Mashpee and Cowlitz, there are plenty more and there are other troubling aspects to the proponent’s arguments. And yet the state has decided to take a chance on this tribe and ignore the Supreme Court's decisions regarding this matter.

 

I hope Southeastern Massachusetts is in a forgiving mood when this deal falls apart.

 

Allin Frawley is the vice chairman of the Middleboro Board of Selectmen. He has been involved in the Mashpee Wampanoags’ land-in-trust issues since the tribe initially approached the town of Middleboro with a casino proposal in 2007.

Read more: http://www.heraldnews.com/newsnow/x2078605164/GUEST-OPINION-The-trouble-with-the-Mashpee-Wampanoag-land-claim#ixzz21aPvf1Jn

Taunton casino’s fate tied to landless tribe’s legal battle

Taunton casino’s fate tied to landless tribe’s legal battle
By Mark Arsenault Globe Staff July 16, 2012

Wendy Maeda/globe staff Governor Deval Patrick finalized an agreement with the Mashpee Wampanoag last week about the terms under which a Taunton tribal casino would operate.
In 2010, the Cowlitz Indians, a landless tribe in the Pacific Northwest, celebrated a long-fought victory after finally persuading the federal government to take 152 acres in Washington state into trust as the tribe’s reservation.

The Cowlitz had grand plans for their land: a gambling resort with 3,000 slots and Las Vegas-style table games, a hotel and RV park, restaurants, and retail stores.

But two years later the project is on hold, frozen by federal lawsuits challenging the government’s right to take land into the trust for the tribe. Tribal gambling can take place only on sovereign Indian land, and until the lawsuits are resolved the tribe is technically still landless.

The travails of the Cowlitz are resonating across the country, all the way to Taunton, where another landless tribe, the Mashpee Wampanoag, was last week celebrating its own incremental victory in an effort to build a resort casino.

The fates of the tribes may be related: The Mashpee Wampanoag are following the Cowlitz blueprint for getting trust land.

And final decisions in the lawsuits over the Cowlitz project could determine if the Mashpee ever realize their casino dreams.

“Everyone seems to think we’re the test case,” said Phil Harju, vice chairman and tribal attorney for the Cowlitz.

No answers are expected soon.

Harju hopes the US District Court in Washington, D.C., will rule on the two pending cases by the end of this year or in early 2013. Appeals are a foregone conclusion, no matter which side wins the first round, probably adding at least one more year of delay before the courts have clarified the government’s authority to take land into trust for the Cowlitz — and perhaps the Mashpee.

In recent months, the Mashpee have made important progress toward winning federal approval for their casino plans. The tribe secured options to buy land in Taunton near the junction of routes 24 and 140, where it hopes to build a $500 million resort. Local voters gave their blessing in a nonbinding vote.

And last Wednesday, the tribe finalized an agreement with Governor Deval Patrick about the terms under which a Taunton tribal casino would operate. The Mashpee agreed to give the state 21.5 percent of gambling revenue should they manage to open a casino, in exchange for a prohibition on commercially run gambling resorts in Southeastern Massachusetts, and other considerations.

But the biggest obstacle between the Mashpee tribe and its multimillion-dollar plan is figuring out how to get its land into federal trust.

The Mashpee have been reluctant to detail their strategy, but a source close to the tribe confirms that the Mashpee will follow the same method employed by the Cowlitz. That arduous administrative process took the Cowlitz eight years, according to federal documents, and has so far resulted in no gambling revenue and two federal lawsuits.

Tribes for years have routinely made use of the Department of the Interior’s administrative land-in-trust procedures. Hundreds of tribal casinos have been built on Native American land since passage of the Indian Gaming Regulatory Act in 1988, a federal law that permits tribes to pursue gambling on their reservations as a means of self-support and economic development.

But things became much more difficult for tribes in 2009, when the US Supreme Court limited the power of the government to take land into trust. In a Rhode Island case involving former Governor Donald Carcieri and the Narragansett tribe, the high court ruled that the federal government may take land into trust only for tribes that were “under federal jurisdiction” at the time Congress enacted the Indian Reorganization Act in 1934.

The ruling appeared to prevent recently recognized tribes, such as the Cowlitz, which earned federal recognition in 2002, and the Mashpee, recognized in 2007, from getting eligible land for gambling. Tribes have lobbied lawmakers to fix the problem; the gridlocked Congress is not expected to act anytime soon.

In the meantime, the court ruling left enough wiggle room for the Department of the Interior to take a generous interpretation of what it meant for a tribe to be “under federal jurisdiction” in 1934.

The Cowlitz got around the Carcieri decision by arguing they met the Supreme Court’s standard, due to the tribe’s historical engagement with the US government. The Cowlitz presented evidence of a lengthy relationship with US authorities, dating back to treaty negotiations in 1855, Harju said.

Evidence supplied by the tribe, summarized in the Department of the Interior’s final report granting trust land to the Cowlitz, includes documented attempts by the federal government to consolidate the Cowlitz with another tribe in the 1860s; the government’s identification of Cowlitz chiefs in the 1870s; and references in the 1920s to the federal government’s representing Cowlitz tribal interests in asserting fishing rights. A 1937 government report mentioned 500 “unattached Indians largely of
Cowlitz tribe” under the supervision of the Office of Indian Affairs.

“There is an overwhelming record that we were under federal jurisdiction,” Harju said.
The Department of the Interior agreed, approving the tribe’s land-in-trust application in December 2010.

Soon after, opponents of the tribal casino sued the federal government to overturn the decision to grant trust land to the tribe. The legal challenges are based in large part on the 2009 Supreme Court ruling in the Carcieri case.

The Mashpee Wampanoag hope to follow the trail blazed by the Cowlitz around the Carcieri decision, by proving the tribe had an ongoing relationship with the federal government into the 1930s, based on evidence gathered by Mashpee tribal historians. The tribe declines to release its evidence.

The Patrick administration, which has pledged to actively support the tribe’s land-in-trust application, has not reviewed the tribe’s evidence that it qualifies under the Supreme Court’s standard.

James P. Lynch, a Connecticut historical research consultant who has studied the Mashpee’s claims for a rival tribe, the Pocasset Wampanoag, said the Mashpee cannot qualify because they, historically, were under state jurisdiction.

Edward Gray Fox Page, chief of the Pocasset Wampanoags, says his tribe has no interest in building a casino on its land in Fall River and Freetown.

Daryl Black Eagle Jamieson, vice chairman of the Pocasset Tribal Council,… (George Rizer for the Boston Globe)

There is a chance the Cowlitz dispute could reach the Supreme Court. That would add to the delay, but another high court review would be valuable, Lynch said: “It would give the court a chance to say what it meant by ‘under federal jurisdiction.’ ”


http://bostonglobe.com/metro/2012/07/15/fate-mashpee-wampanoag-tribal-casino-tied-lawsuits-over-tribal-project-washington-state/3jDKM51UoamNy4xlKnXqnI/story.html

Only a handful of off-reservation casinos have been approved

Only a handful of off-reservation casinos have been approved

Posted: Saturday, July 7, 2012                

McClatchy News Service

Indian casinos in the U.S.

The 1988 law passed by Congress has always allowed off-reservation casinos. But they’re extremely rare, with only a handful approved by the federal government.
Backers say that dropping the “commutable distance standard” adopted by the Bush administration will lead to more off-reservation casinos and help tribes create more jobs. That, they say, is just as President Ronald Reagan and Congress envisioned when they passed the law allowing tribes to get into the big leagues of gambling.
But even some tribal officials are leery, worried that off-reservation casinos stray far from the original intent of the law, which they say clearly was aimed at keeping the casinos on reservation land.

“I think Indian gaming had good intentions — it was intended to help tribes, but there are ways that I think it can be used to get away from what its intentions were. ... We’ve been worried about off-reservation gaming,” said Chris Mercier, a tribal council member for the Confederated Tribes of Grand Ronde in Oregon. The tribe has gone to court to try to block its neighboring tribe, the once landless Cowlitz Indian Tribe of Washington state, from opening a casino on a 152-acre site it bought near La Center, Wash.

Because it still takes years to plow through the bureaucracy to actually open a casino, it’s far too soon to know whether the tribes will experience large-scale success in moving beyond their borders.
But the early signs are telling.

In California, gambling opponents say the new approach already has resulted in a flood of new applications for tribes to acquire more property. The Bureau of Indian Affairs would not disclose how many applications it has received in other states or across the country and has yet to respond to a formal request for the data, filed in May by McClatchy Newspapers under the federal Freedom of Information Act.

http://www.heraldandnews.com/article_9d0ca1f2-c8c5-11e1-bf2b-0019bb2963f4.html

Cowlitz Tribe awaits trial on opposition to casino land acquisition

More Carcieri creep .....

Cowlitz Tribe awaits trial on opposition to casino land acquisition

Friday, July 6, 2012

The Cowlitz Tribe of Washington waited 26 years for federal recognition and 10 more for approval of its land-into-trust application.

The tribe has to wait even longer to open a casino because the record of decision by the Bureau of Indian Affairs is being challenged in court. At issue is whether the Cowlitz were "under federal jurisdiction" in 1934 even though the tribe didn't gain federal status until 2000.

The plaintiffs include local governments and local groups. But the Confederated Tribes of Grand Ronde in Oregon, whose federal recognition was restored to Congress in 1983, are also fighting the Cowlitz Casino Resort.

"As the Supreme Court made clear in Carcieri v. Salazar, the term 'now under federal jurisdiction' refers to tribes that were 'under federal jurisdiction' when the statute was enacted in 1934," the Grand Ronde Tribes wrote in a brief, quoting from the U.S. Supreme Court decision in Carcieri v. Salazar.

"But the [Interior] Department has consistently taken the position that the Cowlitz did not even exist as a tribal entity in 1934, and the Secretary conceded below that the Cowlitz were terminated throughout the twentieth century," the brief continued.

A trial is expected in federal court in Washington, D.C., later this year, McClatchy Newspapers reported. Appeals could tie up the process for a couple more years.

Get the Story:
Even with relaxed casino rules, tribes could face many pitfalls (McClatchy Newspapers 7/5)

Related Stories:
Cowlitz Tribe negotiating gaming agreement with former rival (9/14)

http://64.38.12.138/IndianGaming/2012/025134.asp

Reservation Shopping: Opening the Floodgates

In a new twist, Indian tribes moving to open more casinos far from home

After buying a new chunk of land 50 miles north of San Francisco, the Federated Indians of Graton Rancheria just broke ground on a new, Las Vegas-style casino. It will be the largest in the Bay Area, with 3,000 slot machines, 200 hotel rooms, a spa, bars, restaurants and parking for more than 5,000 cars.

ROB HOTAKAINEN; staff writer

ROB HOTAKAINEN The News Tribune

Published: 07/05/12

 

 

WASHINGTON — After buying a new chunk of land 50 miles north of San Francisco, the Federated Indians of Graton Rancheria just broke ground on a new, Las Vegas-style casino. It will be the largest in the Bay Area, with 3,000 slot machines, 200 hotel rooms, a spa, bars, restaurants and parking for more than 5,000 cars.

In New York, the Shinnecock Indian Nation is considering Long Island as a site on which to build the Big Apple’s first tribal casino. And in Washington state, the Spokane Tribe of Indians wants a new 13-story casino and hotel next to the Fairchild Air Force Base, prompting fears that the city will become “Spo-Vegas.”

The plans are extraordinary for one reason: In all three cases, the tribes want to build their palaces on new land that’s not part of their original reservations.

The expansions are the latest twist in the nation’s Indian casino wars, and they mark a major shift for the tribes, which already run 385 casinos and bingo halls in 29 states.

Since the U.S. Supreme Court cleared the way for large-scale Indian gambling 25 years ago, tribes have been forced to keep the majority of their casinos on reservation land held in trust by the federal government, usually in remote regions far from public view.

But now, thanks in part to the Obama administration, Indian tribes across the country are ready to bust out, bringing gambling to the same land that was taken from them so long ago, when the U.S. government executed its bloody campaign to relocate Indians to a patchwork of lands across the country and eventually to reservations.

In Oklahoma, the Kialegee Tribal Town went so far as to propose a casino half a continent away, on the coast of Georgia, on land that it said it once occupied, raising the specter of tribes going across state lines to pursue new gambling ventures.

Tribes are seeking to cash in on a loosening of the rules, announced in June 2011, when the Bureau of Indian Affairs junked a Bush-era requirement that a casino had to be within easy driving distance from a tribe’s reservation.

The decision by Larry Echo Hawk, who at the time was head of the bureau and is an enrolled member of the Pawnee Nation of Oklahoma, marked a clear win for the tribes, which have become big players in Washington’s power-and-money politics. In recent years, they’ve steered 70 percent of their political contributions toward the Democratic Party and President Barack Obama.

Casino opponents now fear that the tribes, with their sovereign status, will have far too much authority to do as they please on their new land, especially as they press for even less federal control.

And from coast to coast, the tribes are finding plenty of resistance as they angle to get closer to big cities, busy freeways, military bases, even popular national parks.

In the small desert town of Joshua Tree, Calif., Victoria Fuller said she worries what might happen if the Twenty-Nine Palms Band of Mission Indians is allowed to open a new off-reservation casino near the entrance to the popular Joshua Tree National Park.

"They could do anything they want,” said Fuller, the president of the Joshua Tree Community Association and a leading opponent of the plan. “They could put a 20-story building with spotlights on it, and we would have no say.”

The new push by the tribes is aimed at reviving a $28 billion-a-year industry hit hard by the recession. After growing at a brisk 14 percent annual rate from 1995 to 2007, gaming revenues have essentially stalled out, increasing by only 1 percent a year.

And it comes as the 240 tribes that run casinos face an onslaught of new competition, from states eager to get a cut of the gaming business with lotteries and new casinos of their own, to poker players who want Congress to legalize online gaming this year. The changes will allow tribes to move into new markets creating competition not only for existing Indian casinos, but also for gambling centers such as Las Vegas and Atlantic City, N.J.

The move already has ignited a debate over how quickly the U.S. will hit a saturation point with casinos. While polls show broad public support for gambling, some say the tribes are ready to push the envelope.

“The tribes are going to try to run the table, which means they’re going to try to move as many casinos off-reservation as quickly as possible,” said John Kindt, a gambling researcher and professor of business and legal policy at the University of Illinois. “It’s just all about the money, and the model is very simple: It’s to get as many slot machines as possible as close to maximum-population areas. … They’re going to go everywhere.”

Art Reber, a retired professor from Point Roberts, Wash., and the co-author of “Gambling for Dummies,” said that the market ultimately will determine whether the tribes are overplaying their hands.

“When you start sticking neon signs and huge casinos at the Joshua Tree entrance, it starts to get a little ugly,” Reber said. “If you overbuild, you will hurt yourself, and I’m not sure the tribes are necessarily sensitive to these market issues. There’s a saturation point here that you can’t go beyond.”

The epicenter of the battle is in California, one of six states — along with Washington, Florida, Oklahoma, Arizona and Connecticut — that account for more than two-thirds of all Indian gaming revenue.

The Golden State already has more than 60 Indian casinos, the most in the nation. And when Democratic Sen. Dianne Feinstein of California introduced a bill last year that would make it harder for tribes to buy new land for gaming, she said the state could easily have another 50 casinos in coming years if Congress doesn’t stop them. Feinstein warned that another 67 tribes in the state were already seeking federal recognition, the first step toward getting a casino. And she said “the problem is only going to get worse,” with some tribes vying to open new casinos more than 100 miles from their tribal headquarters.

In many ways, the move marks the coming of age for Indian gaming, which started small with bingo halls in Florida in the late 1970s but then exploded in a way that few envisioned. But experts say it’s just common business sense for tribes to try to go to places where they can woo more gamblers.

“Just like real estate, it’s all location, location, location,” said Barry Brandon, the former chief of staff for the National Indian Gaming Commission and now a New York-based consultant who works with tribes. An enrolled member of the Muscogee Nation and the former senior president of the Seneca Gaming Corp., he helped the Seneca Nation of Indians open an off-reservation casino in downtown Buffalo, N.Y., which now is being expanded and which tribal officials tout as a national model for urban settings.

The 1988 law passed by Congress has always allowed off-reservation casinos. But they’re extremely rare, with only a handful approved by the federal government.

Backers say that dropping the “commutable distance standard” adopted by the Bush administration will lead to more off-reservation casinos and help tribes create more jobs. That, they say, is just as President Ronald Reagan and Congress envisioned when they passed the law allowing tribes to get into the big leagues of gambling.

But even some tribal officials are leery, worried that off-reservation casinos stray far from the original intent of the law, which they say clearly was aimed at keeping the casinos on reservation land.

“I think Indian gaming had good intentions — it was intended to help tribes, but there are ways that I think it can be used to get away from what its intentions were. … We’ve been worried about off-reservation gaming,” said Chris Mercier, a tribal council member for the Confederated Tribes of Grand Ronde in Oregon. The tribe has gone to court to try to block its neighboring tribe, the once landless Cowlitz Indian Tribe of Washington state, from opening a casino on a 152-acre site it bought near La Center.

Because it still takes years to plow through the bureaucracy to actually open a casino, it’s far too soon to know whether the tribes will experience large-scale success in moving beyond their borders.
But the early signs are telling.

In California, gambling opponents say the new approach already has resulted in a flood of new applications for tribes to acquire more property. Casino opponents who are tracking the tribes’ activities said that at least 137 applications from California are pending with the Bureau of Indian Affairs, which must sign off on the land transfers before casinos can be built. The bureau would not disclose how many applications it has received in other states or across the country and has yet to respond to a formal request for the data, filed in May by McClatchy under the federal Freedom of Information Act.

Cheryl Schmit, founder and director of Stand Up For California, a statewide organization that has been leading the fight against more casinos, called the rule change a mistake and said, if allowed to stand, it could result in casinos opening “on every off-ramp.”

The tribes already have the largest land trust in the nation, at more than 56 million acres. And when the Bureau of Indian Affairs pitched its $2.5 billion budget request to Congress in February, Echo Hawk, who resigned in April to accept a position with the Mormon church, boasted that it had processed 697 applications from 2009 to 2011, acquiring more than 157,000 acres of new trust land for the tribes and individual members.

Nedra Darling, a spokeswoman for the BIA, said the amount of land held by the Indians actually represents a sharp decline from the 130 million acres they had in 1887. And she said the bulk of the land applications approved for tribes in the past few years have been for agriculture, infrastructure, housing and other projects, with only seven of 781 for gaming purposes, she said.

Schmit told a House subcommittee last year that tribes can easily change their minds and use their new land for gaming once it is placed into trust, even if they don’t make that clear in their initial applications.

She said that if the tribes’ new requests for land in California are approved, more than 15,000 acres will be transferred from local jurisdictions and put into federally protected trust land.

“Some of these are just land grabs by wealthy tribes,” Schmit said, lamenting that the tribes are making their push to expand with little attention from either the press or the public. “It’s huge, but everybody’s kind of been numbed by all the gambling,” she said. “It’s here, but nobody really sees the expansion of it.”

With the financial stakes so high, the push to expand has ignited growing warfare among the tribes, which are quick to feud over everything from the placement of new casinos to whether smaller tribes that lack casinos will be allowed to enter the fray.

“Tribes are acting more like states now,” said Kathryn Rand, co-director and a founder of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

She said that there already has been one big change caused by Indian gaming: Tribes can now spend millions on Capitol Hill and in statehouses across the nation to try to get their way. While the tribes did nothing illegal, their money fueled the Jack Abramoff scandal, one of the biggest to hit the nation’s capital in the past decade, in which the super-lobbyist known as “Casino Jack” represented tribes with gambling interests and ended up in prison.

Since 1990, the Indian gaming industry has made political contributions of nearly $58 million, with 70 percent of the money going to Democrats, according to the Center for Responsive Politics. And the tribes also have been spending heavily on lobbying, more than $20 million in 2011 alone.

“The thing that makes that remarkable is that 20 years ago it wouldn’t have occurred to anyone that tribes would ever have enough money to have that kind of political influence,” Rand said.

Schmit and other opponents say the relaxed rules on off-reservation casinos are merely a payoff to the tribes, which have made the president their top recipient of campaign cash in the last two years.

Obama was a favorite for the tribes even as a senator from Illinois: Among all senators who have served since 1990, he ranks fourth in contributions, with $259,000, trailing only Democratic Sens. Maria Cantwell and Patty Murray of casino-rich Washington state and Hawaii Democratic Sen. Daniel Inouye. In 2011 and 2012, Obama has received $140,500 from Indian gaming interests, more than any other presidential candidate or member of Congress, according to the Center for Responsive Politics, a nonpartisan research group.

Opponents hope that both the courts and Congress ultimately will slow the tribes’ momentum.

Last month, the Supreme Court denied a request by Interior Secretary Ken Salazar to stop a lawsuit filed by a Michigan man who’s out to shut down the off-reservation Gun Lake Casino in southwestern Michigan. The case is significant because, if it ultimately succeeds, it could force the closing of an off-reservation casino long after it opened.

With the high court ruling against Salazar in an 8-1 decision on June 18, Schmit said the justices delivered a strong rebuke.


“The justices didn’t just say no to Secretary of the Interior Salazar’s argument and policy — they said, `Hell no!’ . . . The ruling is a game-changer,” said Schmit.

In Congress, both Feinstein and Republican Sen. John McCain of Arizona are pushing bills to clamp down on off-reservation casinos. When she introduced the Tribal Gaming Eligibility Act last year, Feinstein said she wanted to end the practice of “unbridled reservation shopping.” Without congressional action, she warned, “Californians have no power to stop these tribes from opening unwanted casinos in their backyards.”

Feinstein personally intervened in one of the hottest fights in California, lobbying Salazar to kill the plan to open a casino in Joshua Tree. She has emerged as a powerful ally for casino opponents, serving as a veteran member on the appropriations subcommittee that’s in charge of the budget for the Interior Department and the BIA.

Fuller cheered Feinstein’s entry into the fray and said there is no shortage of gambling opportunities in Joshua Tree, with seven casinos already operating within an hour of the city. She said the tribes have created “a real ticking time bomb for communities and states.”

“I don’t think anybody ever envisioned that they would be able to go out and buy land and have casinos everywhere,” she said.

But Steve Gralla, chief financial officer for the Twenty-Nine Palms Band, said a new casino would create at least 100 new jobs. And he defended Obama’s new policy, saying, “It’s good to have options to continue to create economic development.”

The tribe has had its share of headaches. In May, a grand jury indicted its attorney in a land-buying scheme that led to bribery and money-laundering charges involving alleged kickbacks to others involved in construction projects. Gralla said the indictment would not affect the tribe’s casino plans, which are still under review.

“Nothing’s been 100 percent decided, so there’s not much to say, other than we’re still looking at all the different ways to go,” Gralla said.

Tribes are encountering many roadblocks elsewhere, too.

In California, a group called the Stop the Casino 101 Coalition has gone to court to try to block the Graton Rancheria tribe from building its off-reservation casino on a 252-acre site in Rohnert Park in Sonoma County. While Democratic Gov. Jerry Brown in March signed a tribal-state gaming compact allowing the tribe to build the casino, the citizens’ coalition said the federal government erred in allowing the land to be placed in trust for the tribe and that Brown had no right to sign the compact.

In New York, the Shinnecocks’ drive to open a casino has run into a headwind from Democratic Gov. Andrew Cuomo and many state legislators who are pushing to have the state open casinos of its own.

And in Washington state, the Spokane Tribe of Indians’ drive to open a casino in Airway Heights, a suburb of Spokane, has encountered opposition from the military, from the neighboring Kalispell Tribe of Indians and from a group called Citizens Against Casino Expansion.

But even with the new policy change, Brandon, the tribal consultant, said that tribes face a hard fight, noting that “getting land taken into trust off-reservation for gaming is a very, very difficult proposition.” He’s among those who argue that the current system is working and that there’s no need for Congress to get involved. He said the Bush administration “created the chilling effect that just stopped everything dead in its tracks.”

And with the change by the Obama administration, Brandon said, “You’re really kind of seeing the jam in the pipeline is being cleaned out.”

Kindt, the University of Illinois business professor who has testified on gambling issues on Capitol Hill, said that the tribes are expanding their operations with “just the illusion of regulation and the illusion of control,” and that Congress definitely needs to intervene. He said the situation is “like throwing gasoline on the fires of recession,” because gamblers are just transferring assets instead of spending their money to help the economy.

“It’s just out of control,” he said. “And if Congress doesn’t step in quickly, this is going to take our economy further into the quagmire. … I wish it would work, but you can’t gamble your way into prosperity.”

With so many new proposals pending, Rand, with the University of North Dakota’s Institute for the Study of Tribal Gaming Law and Policy, said the tribes run the risk of a public backlash as more casinos move into higher-profile locations. But she said that Indian gaming “is expanding not in a vacuum, but in response to a market.”

“Part of the reason — and perhaps the biggest reason — that we’ve seen such a rapid expansion in tribal gaming is because Americans love to gamble, and we have a much higher tolerance for legalized gambling than we did even 20 or 30 years ago,” Rand said.

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Isaac Brekken MCT

Art Reber, a retired professor from Point Roberts, Washington, and the co-author of "Gambling For Dummies," said that the market ultimately will determine if the tribes are overplaying their hands. "When you start sticking neon signs and huge casinos at the Joshua Tree entrance, it starts to get a little ugly," he said. "If you overbuild, you will hurt yourself, and I'm not sure the tribes are necessarily sensitive to these market issues. There's a saturation point here that you can't go beyond." Reber is photographed at a satellite poker game, Monday, June 11, 2012 in Las Vegas, Nevada. (Isaac Brekken/MCT)

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Even with relaxed casino rules, tribes could face many pitfalls
It’s unlikely that anyone will ever accuse the Bureau of Indian Affairs of acting in haste.

Just ask Bill Iyall, the chairman of the Cowlitz Tribe in Washington state: It took 26 years for the tribe to win federal recognition from the BIA, the first requirement for opening a casino. That happened in 2000. And after getting the Bureau of Indian Affairs to sign off on its purchase of 152 acres of new land — another requirement — the tribe is still fighting off opponents in federal court for the right to begin building its gambling empire near the town of La Center.

The Cowlitz Tribe’s experience offers an obvious lesson: Even with the Obama administration moving to make it easier to open off-reservation casinos, tribes still face a long, long road, with many potential pitfalls.

Under the change announced in June 2011, Larry Echo Hawk, then-head of the BIA, rescinded a 2008 Bush administration policy that banned off-reservation casinos if they were not within easy driving distance.

Echo Hawk, who resigned in April, said he was scrapping the so-called “commutable distance” rule because it had been adopted without any consultation with the tribes. The Bush administration’s rule had essentially frozen attempts by tribes to open new casinos beyond their reservations.

While that roadblock has been removed, tribes still must show a historical or legal connection to any new land that they seek to place in trust. If that is not possible, tribes must satisfy the BIA’s “two-part determination” in getting approval for an off-reservation casino.

Under that test, the secretary of the interior, who oversees the BIA, must consult with the tribe, neighboring tribes and state and local officials to assess whether the proposed casino is in the “best interests” of the community.

If the secretary decides that’s the case, the governor of a state must then agree.

The new proposals are likely to force the BIA to tackle tougher cases, with more landless tribes eager to begin gambling ventures.

“All of the easy and clear-cut decisions with respect with tribes being able to engage in gaming have been answered,” said Barry Brandon, former chief of staff for the National Indian Gaming Commission and now a New York-based consultant who works with tribes around the nation.

He predicted more applications from tribes “off the beaten track” that will assert that they have historical connections to land that might be more than 100 miles away from their headquarters.
Even if tribes can satisfy the BIA’s requirement, they could run into more snags from both Congress and the courts.

In the Senate, John McCain of Arizona and Dianne Feinstein of California have introduced bills to make it harder for tribes to buy new land for casinos.

McCain wants to reinstate the commutable-distance standard.

Feinstein wants to force tribes to show that their current members and ancestors have a link to the land, with a requirement that they prove both a “substantial direct modern connection” and a “substantial direct aboriginal connection.”

Two court cases, one involving the Cowlitz casino and another involving the Gun Lake Casino in Michigan, could go a long way toward settling the issue. In both cases, opponents claim the casinos on newly acquired land should not be allowed because they violate a 2009 Supreme Court ruling that said tribes not under federal jurisdiction by 1934 could not take new land into trust.

The Cowlitz case is expected to go to trial later this year in U.S. District Court in Washington, D.C.

And just two weeks ago, the Supreme Court said the Michigan case could go to trial as well, rejecting a request by the Obama administration to have the case dismissed. The administration argued unsuccessfully that it had sovereign immunity from lawsuits challenging its title to Indian trust lands.

Rob Hotakainen, staff writer

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The Mashpee Wampanoag Pipe Dream in San Diego

Wampanoag leaders in San Diego to chart future
By George Brennan
April 03, 2012

SAN DIEGO, Calif. — Getting land into federal trust remains one of the key hurdles for the Mashpee Wampanoag Tribe's pursuit of an Indian casino, but legal experts say it's far from insurmountable.

The National Indian Gaming Association is hosting its annual convention and trade show in San Diego through Wednesday.

Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell, Treasurer Mark Harding and several members of the tribe's legal team are attending the conference, which features workshops in all aspects of Indian casinos, from intergovernmental agreements to what types of betting to offer.

In the lobby of the San Diego Convention Center, Cromwell exchanged well-wishes from other tribal leaders from across the country and was interrupted several times by business card-toting men and women interested in doing business with the tribe.

Despite the tribe's tight deadline of July 31 to negotiate a compact with Massachusetts for an Indian casino, Cromwell said it's important to keep up with what's happening in the Indian casino industry and that's why he's here.

"You're going to get all the latest and greatest information here," Cromwell said. "You're going to meet the people with the Department of the Interior that are working on (regulations) and policies, so you're getting all the information firsthand, so it's important to be here."



Land into trust
Cromwell and Harding attended a session on the process for getting land into trust and what some of the legal impediments are to that process — chief among them the 2009 ruling by the U.S. Supreme Court known as Carcieri v. Salazar.

In that ruling, the court questioned the Interior Department's authority to take land into trust for the Narragansett Tribe in Rhode Island because the tribe's federal recognition came after the Indian Reorganization Act of 1934. That ruling stalled land-into-trust applications for other tribes, which now have to undergo a "Carcieri analysis," a Bureau of Indian Affairs official said during the workshop.

But while Carcieri can be used to delay a project like the Mashpee tribe's plans for a casino in Taunton, it's not likely to block it completely based on comments by legal experts during the session.

Though she never mentioned the Mashpee Wampanoag specifically, Judith Shapiro, an attorney for the tribe and a speaker during the session, said opponents to Indian casinos latched on to the Carcieri decision to slow the process down, but decisions by the federal government offer tribes hope.

The Interior Department has taken land into trust for the Cowlitz Tribe in Washington state since the high court decision, she said. That trust land is tied up in legal challenges, but ultimately Shapiro believes the courts will find federally recognized tribes had relationships with the federal government before 1934.

In the case of the Narragansett tribe, she said, the tribe conceded they had never been under federal jurisdiction.

What this means for the Mashpee tribe and the Wampanoag Tribe of Gay Head (Aquinnah), which is pursuing an Indian casino in Freetown, Lakeville or Fall River, is that if they can meet other elements of their July 31 deadline imposed by the state, they will be able to demonstrate through legal opinions that land into trust remains a real possibility.

If the state gaming commission were to determine otherwise, the Southeastern Massachusetts casino license would be put out to competitive bid.

The Aquinnah tribe is not represented at the convention, but a law firm representing it is in San Diego, spokesman James McManus said in an email.



The Carcieri fix [Ignoring the Hawaii SCOTUS decision!]
Meanwhile, Loretta Tuell, chief of staff for U.S. Sen. Daniel Kahikina Akaka, D-Hawaii, chairman of the Senate Committee on Indian Affairs, said his office continues to push for congressional action, a so-called "Carcieri fix" and has undertaken a study to show the ramifications the court ruling is having on tribes not just in economic development, but housing, education and health care.

Tuell, a member of the Nez Perce Tribe, said: "We need to learn how to message the issue. Land is fundamental to who we are as people."

There can't be two classes of tribes — some blessed with land and others without, Tuell said.

Cromwell liked what he heard during the land-into-trust session. "It's rewarding and fulfilling to hear what we've always known," Cromwell said. Tribes need land to practice self-determination and self-governance and the Mashpee tribe is seeking to put land into trust in Mashpee and Taunton [and Middleboro and Fall River and...the endless list, even though only Mashpee was listed on the application for recognition] as an initial reservation, he said.

"It's not just about gaming," Cromwell said. "It's about land."

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