MASHPEE WAMPANOAG: Lawsuit challenges tribe-town pact

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REEL WAMPS

Lawsuit challenges tribe-town pact

By Tanner Stening


Posted Aug 20, 2018 

Unilateral action to amend reservation bill called unconstitutional. 

MASHPEE — The former vice chairman of the Mashpee Wampanoag Tribal Council is suing Chairman Cedric Cromwell and one of his attorneys in tribal court, questioning the constitutionality of a decision to amend legislation that would end a legal challenge to the tribe’s reservation, according to documents obtained by the Times. 

Aaron Tobey Jr. filed the action Monday, alleging the tribal council never got the chance to vote on a town-proposed amendment to the bill. The amendment adds language about a 2008 intergovernmental agreement between the town and the tribe. Tobey said there are still questions as to whether that agreement is legally enforceable. 

The federal legislation was introduced by U.S. Rep. William Keating, D-Mass., earlier this year, and a twin bill was introduced in the Senate. If passed, it would reaffirm the tribe’s reservation status and effectively bar future legal challenges to the land in federal court. 

Town lawyers worked out a deal with tribal attorneys to amend Keating’s bill to include language about the agreement after town officials said they worried about “legal ambiguities,” citing fears the tribe would reopen land claims that bitterly divided the two governments in 1976. 

The new language spells out a commitment that the tribe will not reopen those claims against the town. 

The suit alleges Cromwell and tribal attorney Rebekah Salguero were involved in negotiations with the town of Mashpee “to address issues with the federal process of placing land into trust” and “in adopting an amendment to legislation before the United States Congress without authority from the Tribal Council,” according to documents. 

Cromwell declined to comment on the suit through a spokesman Monday, and Salguero did not immediately respond to a call requesting comment. 

Section 2 of the tribe’s constitution states that the tribal council is empowered to, among other things, “negotiate and enter into contracts and agreements with tribal, foreign, federal, state and local governments, private persons and corporate entities.” 

In a letter addressed to Keating dated Aug. 21, Tobey asks the lawmaker to place the amendment in abeyance until the tribal council has a chance to vote on it. 

“Let me restate that to date, no such vote has occurred, and yet the matter is being represented on Capitol Hill as if it has tribal council approval,” Tobey writes. 

In 2008, then-council member Cromwell voted against the agreement before abstaining, documents show. Tobey, who was also a council member, voted against it. 

Should the legislation pass with the amended language, it would enshrine the town-tribe agreement in federal law, which Tobey says could jeopardize the tribe’s federal rights by fastening them to the terms of the agreement. 

“The proposed amendment makes the honey taste bitter,” Tobey said. 

Since losing a bid to unseat the chairman in last year’s election, Tobey has become a prominent critic of Cromwell, calling for more transparency of tribe finances and criticizing attempts to raise the salaries of council members, including Cromwell’s. 

Selectman Andrew Gottlieb, who did not respond to a request for comment Monday, said previously that he always viewed the agreement as “binding and enforceable.” 

“We think the agreed-upon language that we settled on with the tribe lawyers a couple weeks ago is in the town’s and the tribe’s best interest in that it preserves the tribe’s trust status and recognizes and reaffirms all prior agreements with the tribe,” he said last month. 

Gottlieb also said previously that the tribe’s legal counsel had represented to town attorneys that the tribal council agreed with the amendment. 

http://www.capecodtimes.com/news/20180820/lawsuit-challenges-tribe-town-pact

Mashpee Town Officials Still Oblivious

Naive doesn't even define the Town of Mashpee that hasn't read the fine print.



Mashpee officials discuss relations with Mashpee Wampanoag Tribe

By Scott A. Giordano

THE BULLETIN

Posted Jun 28, 2013

MASHPEE —

The Mashpee Board of Selectmen and the Mashpee School Committee held a joint meeting on June 25 to discuss ongoing relations with the Mashpee Wampanoag Tribe.

"The Mashpee Wampanoag Tribe, as we all know, has always been a very historical presence and influence in the town and an integral component to our community in Mashpee,” Mashpee Town Counsel Pat Costello said. “Back in 2007, when they were formally recognized as a Native American

Tribe by the federal government, it opened a whole new chapter.

“With that recognition came numerous rights, numerous opportunities for the tribe to create its own governmental structure and agencies,” he added. “The Board of Selectmen … has maintained the position that we want to work cooperatively and for the joint benefit of both the citizens of the town and the members of the tribe.”

Mashpee first negotiated an inter-governmental agreement with the tribe in April of 2008, primarily dealing with land conveyances and land use issues in Mashpee and setting principles for the town and the tribe to work cooperatively.

Moving forward, Costello anticipates the town will have to engage in further negotiations with the tribe with regards to issues like public safety, public works, and public education.

Mashpee Selectmen Chairman John Cahalane said the tribe felt it could bring a lot of federal money to the table when it first entered into the inter-governmental agreement with the town of Mashpee, saying it was a considered a "win-win" by all parties back in 2008. But town officials did not then expect a protracted legal struggle for the Mashpee Wampanoag to take land into trust.

[Is that the inter-governmental agreement never approved by Congress?]

A lot of the informal discussion centered on education.

Mashpee School Committee Chairman Scott McGee said he’s not certain if the tribe legally can have input on major decisions on things like hiring a superintendent search or budgetary policy. “The first thing we need to do is sit down and talk,” he said.

Potentially, the tribe could open its own school that would compete with Mashpee public schools. If it were to do so, it would need to be on its own land. If the now landless tribe gets land in trust, the Mashpee Wampanoag could open a school on its land, to be funded by the U.S government’s Bureau of Indian Affairs. It also could choose to open a school on private land, Costello said.

Brian Hyde, who replaces Ann Bradshaw as superintendent on July 1, attended the June 25 meeting. "The tribe needs to, I assume, submit a list of proposals in writing of issues they would like to discuss with the schools," he said.

Read more: http://www.wickedlocal.com/mashpee/news/x273425845/Mashpee-officials-discuss-relations-with-Mashpee-Wampanoag-Tribe#ixzz2XgnUbclo
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The Universal Delusion of Proponents

The proliferation of OTB Parlors in New York, carefully placed in low income neighborhoods, invited crime, sucked discretionary income from the local economy, eliminated local businesses no longer able to compete with the crime and impoverished wide swaths.

Incapable of learning from experience, lawmakers pursue predatory gambling and delude themselves,  just as Massachusetts has, that somehow tourists will flock.

Cuomo deals LI out

Rejects OTB slots in Nassau, Suffolk

• By BETH DEFALCO Post Correspondent
• From Post Wire Services
• Posted: 1:30 AM, May 17, 2013

ALBANY — Nassau and Suffolk county officials are pushing Gov. Cuomo to allow slot machines on Long Island as part of his plan to expand legalized gambling in the state.
Cuomo’s response? No dice.

Joseph G. Cairo, president and CEO of Nassau Off-Track Betting Corp., said the campaign to get state authorization for video slots at Nassau off-track-betting sites is part of a “multifaceted plan” to offer the public a “wider range of gaming options.”

While both counties for years have been lobbying for the proposal, Cuomo spokesman Matthew Wing said the idea wasn’t being discussed as part of casino-gambling talks with legislative leaders.

AP

 

$PIN THE WHEEL: Gov. Cuomo and Oneida Indian Nation leader Ray Halbritter sign upstate-casino deal yesterday.

But GOP Sen. Dean Skelos of Nassau, the co-head of the state Senate, supports video slots at Belmont Park racetrack.

A spokesman said Skelos has had conversations with Nassau and Suffolk officials about offering slots and is reviewing a bill sponsored by two Long Island lawmakers, Democratic Assemblyman Steven Englebright and Republican Sen. Phil Boyle, promoting the issue.

The measure specifies that such a facility would include “superior consumer amenities and conveniences to encourage and attract the patronage of tourists and other visitors from across the region, state and nation.”

Cuomo’s vision to bring Las Vegas-style casinos to the Empire State includes putting three upstate but none in the Big Apple and its suburbs for at least five years. He argues that downstate casinos “would be eating at the buffet table of an upstate casino.”

Cuomo’s plan also calls for letting a gambling commission — not the Legislature — choose vendors and the sites. A video-slot-machine casino run by Nassau and Suffolk OTBs would allow the Legislature to keep control of patronage jobs at such a gambling emporium.

The state’s existing nine racinos, which offer video slot machines and electronic table games without live dealers, have grown quickly. Racino operators say it makes the most sense to expand their facilities into full-fledged, Vegas-style casinos.

The Resorts World Aqueduct racino in Queens has generated more than $1 billion in total revenue since opening in October 2011, pulling in nearly $2 million a day.

From April 2012 to April 2013, Resorts World posted an impressive, 17 percent revenue increase.
In comparison, slot revenues slid 14 percent in Atlantic City, NJ, and 7 percent in Connecticut and declined for a fifth straight month in Pennsylvania.

“Resorts World Casino has been nothing short of an absolute success for the Queens community,” said Democratic State Sen. James Sanders.

Meanwhile, Cuomo struck a deal with the Oneida Indian Nation to give it exclusive casino rights in central New York in exchange for the state treasury’s receiving 25 percent of slot revenue from the Turning Stone Resort Casino in Verona. The deal also settles a decades-old land dispute.

 

http://www.nypost.com/p/news/local/cuomo_deals_li_out_Yq92kLPiuNUYeCvoxlXxcO?utm_medium=rss&utm_content=Local

 

Long Island casino in play in NY negotiations

MICHAEL GORMLE, Associated PressCopyright 2013 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

By MICHAEL GORMLEY, Associated Press

Updated 1:44 pm, Thursday, May 16, 2013

 

ALBANY, N.Y. (AP) — Support grew Thursday for a proposal to build a casino on Long Island with video slot machines as legislators and the governor negotiated behind closed doors to expand casino gambling in New York.

 

A legislative bill with majority party sponsors proposes a casino with 2,000 video slot machines run by the off-track betting agencies in Nassau and Suffolk counties. That could cement critical Republican support from the region's senators for Gov. Andrew Cuomo's statewide casino proposal.

 

"We are working closely with our state delegation to allow a regional video lottery terminal facility," said Suffolk County Executive Steve Bellone on Thursday. "By operating this facility through a partnership between Nassau and Suffolk OTB, we will ensure that the maximum amount of revenue benefits Long Island residents."

 

Cuomo and legislative leaders are negotiating a plan to authorize three Las Vegas-style casinos. The idea of a Long Island slots-only casino runs counter to Cuomo's public proposal of placing only three casinos upstate.

 

"It's huge," Nassau County OTB President and CEO Joseph Cairo told The Associated Press. "The Senate has indicated to me it is part of the discussions of the overall (casino) package."

 

Cairo, who is also a county Republican committee first vice chairman, said he has spoken to Senate Republican leader Dean Skelos of Nassau County about the proposal, which has quietly been discussed for months in Albany. He said they spoke of a proposal to build a video slot casino on the Nassau-Suffolk line, where it could draw from Long Island's 3 million residents. He said another version would create two facilities, each with 1,000 video slot machines.

 

"I think the senator is conceptually behind it and I spoke to him many times," Cairo said. "I think it will be on the table for rest of the session."

 

Within hours of the AP publishing a story about the Long Island casino negotiations, Cairo put out statement contradicting his initial comments on the sensitive, closed-door talks. Cairo, through a spokesman, refused to say why he changed his position or if he had been contacted by the Cuomo administration, which strongly denies the proposal is part of negotiations.

 

Cuomo spokesman Matt Wing said the Cuomo administration didn't contact Cairo.

 

Asked about the role of the proposal in closed-door casino negotiations, Skelos' spokeswoman Kelly Cummings said: "We continue to discuss all aspect of the gaming and casino issues in the five weeks that remain in session."

 

The bill sponsored by Assemblyman Steven Englebright, a Suffolk County Democrat, states the facility would include "superior consumer amenities and conveniences to encourage and attract the patronage of tourists and other visitors from across the region, state and nation." He didn't respond to a request for comment. 

 

The Senate bill is sponsored by Republican Sen. Phil Boyle of Long Island.

 

"Nassau and Suffolk have been pushing this proposal for several years," Wing said. "It has and is not part of any casino gaming negotiations or discussions."

 

In Albany, the closed-door "leaders meetings" between the governor and legislative leaders are secret. Major proposals often aren't announced until a deal is struck and quickly rushed to a vote in the Legislature without public hearings.

 

The proposal would be contrary to Cuomo's public demands that his gambling commission chose vendors; that operators, not the Legislature, be involved in choosing sites; and that privately run casinos be restricted to upstate.

 

A video slot machine casino run by Nassau and Suffolk OTBs would maintain the Legislature's hold on patronage jobs in the facility.

 

Most of the nine existing "racino" centers [Slot Barns], which offer video slot machines but not table games, have grown quickly. Their operators argue they are the best candidates to be turned into the privately run casinos Cuomo proposes for upstate and, five years later, the New York City area.

 

One of Albany's most powerful lobbyists, former Sen. Alfonse D'Amato, lobbies for Nassau and Suffolk counties OTBs and on state casino issues, according to his state lobbying registration. He didn't respond to a request for comment on the proposal.

Read more: http://www.sfgate.com/business/article/Long-Island-casino-in-play-in-NY-negotiations-4522004.php#ixzz2TXxUh8Iz

 

The Absurdity of Mashpee Wampanoags

Plaintiff argues that tribe's bid to have gaming suit dismissed is 'absurd'

 

By Steve Decosta

October 06, 2012

 

KG Urban Enterprises is objecting to the Mashpee Wampanoag's motion to intervene in its lawsuit against the state's Expanded Gaming Act, ridiculing the tribe's "Catch-22" argument to dismiss the case.

 

"The Mashpee's motion is remarkable for its sheer audacity," Paul Clement, KG's lead attorney, wrote in papers filed Friday in U.S. District Court.

 

"This case involves a private party's constitutional challenge to a state statute," he wrote. "The notion that KG's equal protection claims must be dismissed solely because one economic beneficiary of the challenged state action has sovereign immunity is nothing short of absurd."

 

KG, which hopes to develop a commercial casino on the New Bedford waterfront, is challenging the preference given to federally recognized Indian tribes for exclusive rights to casino gaming in Southeastern Massachusetts. The Mashpee have used that preference to gain the inside track to operate a sovereign, federally regulated casino, exclusive to Southeastern Massachusetts, in Taunton.

 

Last month, the tribe asked to become a party in KG's case. But, because it is a sovereign nation that has no right to intervene, it claimed the case must be dismissed.

 

"The upshot of the Mashpee's remarkable pleading is that a non-tribal party can never vindicate its federal constitutional right to equal protection if the statute unconstitutionally benefits a tribe that declines to waive its sovereign immunity," Clement wrote. "This heads-I-win-tails-you-lose assertion is not and cannot be the law."

 

KG claimed the Mashpee's only interest in the case is financial, which is not legally protected.

 

The developer argued that if the tribe feels so aggrieved by the lawsuit, it should waive its sovereign immunity and become party to the proceedings.

 

And, going further, the developer threatened to pull tribal officials headlong into the legal fray should Judge Nathaniel Gorton grant the Mashpee motion.

 

"KG could always name tribal officers as defendants," the filing states. "Tribal officers have no more claim to sovereign immunity than the state officers named in their official capacity.

 

"If the court were to conclude that this suit should not proceed without the participation of a representative of the Mashpee, it should not dismiss this case, but should grant KG leave to amend its complaint to add as defendants Chairman Cedric Cromwell and the other members of the Mashpee Wampanoag Tribal Council, in their official capacities."

 

KG also refuted the Mashpee's claims that its challenge of the tribal preference seeks to invalidate the tribe's casino compact with the state and that it would interfere with the process under which the tribe is seeking to have the Taunton land taken into trust by the federal Department of the Interior.

 

Also pending before Judge Gorton is a motion by the Wampanoag Tribe of Gay Head (Aquinnah), the state's only other federally recognized tribe, to intervene in the case, seeking to protect gaming rights on land it holds in trust. KG is opposing that request, while a filing by the state takes no position on it.

 

KG, a New York-based development firm that hopes to build a commercial casino at the site of an abandoned power plant on the New Bedford waterfront, challenged the Expanded Gaming Act on the day Gov. Deval Patrick signed it, claiming its preference for a tribe to receive the Southeastern Massachusetts casino license amounted to an illegal, race-based set-aside.

 

Judge Gorton threw out the case in February but, five months later, a federal appeals court panel of three judges ruled the dismissal was improper and ordered him to reconsider.

 

 

http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20121006/NEWS/210060348/-1/archive

KG Urban's Lawsuit

KG Urban files legal response to oppose Mashpee Wampanoag lawsuit intervention request

By Gerry Tuoti

Taunton Gazette Staff Reports

Posted Oct 05, 2012



KG Urban equity partner Barry Gosin speaks to the
New Bedford Area Chamber of Commerce on Wednesday


Already locked in a courtroom battle with the commonwealth, the firm that hopes to build a commercial casino on the New Bedford waterfront continues to find itself at legal odds with the American Indian tribe that’s pursuing a casino in Taunton.

KG Urban Enterprises filed a legal response Friday to formally oppose the Mashpee Wampanoag tribe’s request that the firm’s pending lawsuit against the state be dismissed.

“The Mashpee’s motion is remarkable for its sheer audacity,” KG Urban’s attorneys say in the response filed in federal court. “Notwithstanding that this litigation was initiated nearly a year ago and has already been the subject of decisions by this Court and the First Circuit, and notwithstanding that KG’s complaint concerns the constitutionality of a state statute, the tribe moves to intervene in this case at this late stage, while purporting not to waive its tribal sovereign immunity.”

Under the section of the law KG Urban is challenging, commercial developers in southeastern Massachusetts would only get a chance to bid for a gaming license if the Mashpee fail or hit significant delays in their quest to build an American Indian casino in Taunton. The fate of that provision rests in the outcome of the lawsuit, which claims the state law violates federal and state equal protection clauses.

KG Urban said in a previous court motion that it is “challenging the Commonwealth’s grant of a race-based regional gaming monopoly to a single, landless tribe — the Mashpee Wampanoag.”

The Mashpee and the Aquinnah Wampanoag tribes have each requested in recent weeks to intervene in KG Urban’s suit against the state.

“The Tribe’s rights cannot be protected by any of the parties already in this case or by the Aquinnah,” the Mashpee tribe’s attorneys said in a motion to intervene in KG’s suit against the state for the sole purpose of seeking dismissal. “While the Commonwealth and the Tribe both have an interest in upholding the Act and the Compact, the Tribe’s interests are unique to it and the Commonwealth is not in a position to protect them. The Commonwealth and the Tribe were on opposite sides of the negotiating table vis-à-vis the Compact and do not have the same interests in ensuring it is enforced as written.”

The commonwealth, in a response filed Friday by Attorney General Martha Coakley, took no position on the Mashpee’s request to intervene in the case.

The state law allows for up to one casino in each of three regions of Massachusetts, but the commonwealth won’t solicit bids for a commercial casino in the southeastern region unless the Massachusetts Gaming Commission determines the Mashpee are unlikely to have land taken in trust by the federal government. The tribe has signed a compact with the state and has a land application pending with the U.S. Department of the Interior.

The Department of the Interior is expected to act on the compact by Oct. 15. There is no deadline by which it’s required to take action on the land-in-trust application.

“This is fundamentally a dispute between KG and the Commonwealth, and the Commonwealth is quite capable of defending the constitutionality of its own statute,” KG Urban’s attorneys state in the legal response. “The Mashpee may have an economic interest in the outcome of this suit — namely, their desire to build a casino free from non-tribal competition — but courts have repeatedly held that economic self-interest is not a ‘legally protected’ interest …”

Since the federal Indian Gaming Regulatory Act allows a casino to be built by any federally recognized tribe with sovereign land in a state that allows casino gambling, Massachusetts decided to give the Mashpee a chance to resolve their land issues before deciding whether to open up the southeastern region to competitive commercial bids. Gov. Deval Patrick has said that he doesn’t believe the market in Massachusetts can sustain more than three casinos statewide.

The Aquinnah are also pursuing a casino, but the Patrick administration has refused to negotiate a compact with them, maintaining that they forfeited their rights to gaming in a 1980s land settlement. The Aquinnah dispute the governor’s assessment.


http://www.tauntongazette.com/news/x1784018527/KG-Urban-files-legal-response-to-oppose-Mashpee-Wampanoag-lawsuit-intervention-request?zc_p=1

From a previous article:

Barry M. Gosin, equity partner and principal in KG Urban Enterprises, is expected to speak about the group's proposal to build a casino at the site of the abandoned Cannon Street power plant in New Bedford. Gosin also serves as CEO of Newmark Grubb Knight Frank, a New York-based real estate firm that is not affiliated with KG Urban.

Read more: http://www.tauntongazette.com/news/x1843771282/Company-seeking-New-Bedford-casino-to-present-proposal-at-forum#ixzz28WwvMzOt

The decision below has significance in Massachusetts with both the Mashpee Wampanoag Tribe and the Aquinnah Tribe.

Oneida Indian Nation Trust Status Encounters Setback

Madison County
(Wampsville, NY – Oct. 2012) U.S. District Court remands land into trust case back to the Department of the Interior for reconsideration and to determine if the Oneida Indian Nation of New York was under federal jurisdiction in 1934 so as to qualify for tax-free land into trust

County officials say that, in a 46-page decision issued last week, Federal District Court Judge Lawrence E. Kahn determined that the Oneida Indian Nation of New York’s ability to place land into a tax-free federal trust depended on whether the OIN was under federal jurisdiction in 1934.

Following the clear direction of the U.S. Supreme Court’s 2009 decision in Carcieri v. Salazar, Kahn wrote “[I]n order for DOI to have placed the land into trust for the OIN lawfully, the OIN must have been under federal jurisdiction in 1934.”

According to county officials, the Court went on to hold “that a remand to DOI to establish a record on and determine the outcome of the jurisdictional question raised by Carcieri is the proper course of action at this point.”

The decision reads that following the DOI determination, a new Record of Decision would be issued that would be subject to further court review and, at that time, each of the parties’ arguments in their current motions for summary judgment could be renewed and considered.

“This is a clear setback to the OIN’s plans to place thousands of acres of lands scattered over Central New York into a real property tax-free trust status,” said Supervisor Rocco DiVeronica (R – Lenox) chairman of the Madison County Board of Supervisors Native American Affairs Committee. “The counties and state have presented extensive historical documents and expert reports showing that this group, the modern day ‘Oneida Indian Nation of New York,’ was not under federal jurisdiction in 1934 and are not entitled to the benefit of the Indian Reorganization Act’s land-into-trust provisions.”

In the meantime, county officials said in a statement last week, the OIN refuses to pay real property taxes, interest and penalties. Those sums are nearing $10 million, DiVeronica said.

“With the land not in trust, interest on the unpaid taxes will continue to accrue and will be part of the collection effort in separate proceedings,” DiVeronica said.

Pictured is Rocco J. DiVeronica.

http://madisoncountycourier.com/?p=36093

Oneida Indian Land Claims Bears on Massachusetts

This case has great bearing on Massachusetts --

Oneida Indian Nation land intro trust dispute stalled in court again

Published: Wednesday, September 26, 2012

 

By CAITLIN TRAYNOR
Contributing Writer
Twitter.com/DispatchCaitlin

 

ALBANY — As it has been in decades of court battles between the Oneida Indian Nation and local municipalities, the status of the Nation’s reservation continued to be at the epicenter of debate in a district court decision in the land-into-trust case.

The decision, issued Monday, combined similar lawsuits filed against the Nation and the Department of Interior by Madison and Oneida counties, the Town of Verona, City of Oneida, the Central New York Fair Business Association and Upstate Citizens for Equality over the Nation’s 2005 request to put more than 17,000 acres into federal trust for the exclusive use of the tribe. District Court Judge Lawrence Kahn ruled Monday that the DOI’s 2008 decision to accept more than 13,000 acres inadequately considered the request before its approval.

CHECK IT OUT: Read Judge Kahn's decision here.

Prior Supreme Court decisions have ruled that the Indian Reorganization Act of 1934, which allows tribal land to be placed into trust, limits the DOI’s ability to only accept land for tribes under federal jurisdiction in 1934 when the IRA was enacted. It was clear the DOI’s acceptance of the land into trust did not consider that requirement, Kahn says.

“That is, the operative question for a court or the agency in determining whether trust authority may properly be exercised is whether the tribe in question was federally recognized and under federal jurisdiction in 1934 – not whether the tribe was federally recognized and under federal jurisdiction at the time of the trust decision,” Kahn says.

Instead of issuing a decision by the court on the Nation’s status in 1934, Kahn remanded the review of the land into trust application to the DOI, defaulting to its “specific expertise that the court lacks.” Kahn recognizes his decision will result in more litigation and that the issue has “languished” in courts for “too long.” This issue must be decided before anything else in the remaining land-into-trust lawsuits can be resolved. Once the DOI extensively revisits the status and issues a revised decision for the court to review, the remaining arguments will be heard.

Both Madison County and the Nation continue to aggressively back their respective arguments in regards to the reservation’s status. “The counties and state have presented extensive historical documents and expert reports showing that this group, the modern day ‘Oneida Indian Nation of New York,’ was not under federal jurisdiction in 1934 and are not entitled to the benefit of the Indian Reorganization Act’s land into trust provisions,” Madison County Native American Affairs Committee Chairman Rocky DiVeronica said in a statement. “This is a clear setback to the OIN’s plans to place thousands of acres of lands scattered over Central New York into a real property tax-free trust status.”

Until the issue is resolved, land owned by the Nation continues to accrue unpaid property taxes that the county estimates to be nearly $10 million.

Similarly, the Nation upholds its argument that its reservation was established long before 1934.

“The action was a procedural direction by the court asking for a supplemental finding by the federal agency that has already placed 13,000 acres of Oneida Indian Nation land into federal trust,” OIN spokesman Dan Smith said in a statement. “The evidence is overwhelming that the federal government recognized the Oneida Nation in 1934 and the courts and the Department of Interior repeatedly have stated that the Oneida Indian reservation has remained intact since 1794. It is time to move beyond these legal conflicts and instead work to build a more prosperous path for the future of all of our communities.”

The Nation’s original request included more than 17,000 acres of land to be placed into federal trust. It consisted of almost 3,500 acres in Oneida County, including the Turning Stone Casino Resort, several golf courses and convenience stores, along with 6,500 acres in both counties where the Nation has housing, government, activities, gas stations, agricultural land, marinas and hunting land, and an additional 7,500 acres of agricultural lands.

http://oneidadispatch.com/articles/2012/09/26/news/doc5063a1e7519f8045728064.txt

Genting/Mashpee Wampanoag compact is worst ever

Governor Slot Barns Patrick will depart the Commonwealth leaving behind a legacy of expensive court cases that will require a decade to untangle.

Thanks, Guv!

Harold Monteau: Mashpee Wampanoag compact is worst ever

Friday, September 21, 2012

"The tribal-state gaming compact between the Mashpee Wampanoag Tribe of Massachusetts and the Commonwealth of Massachusetts, recently submitted to the Department of Interior (DOI or Secretary) appears to have bumped Montana (tribes treated like tavern owners) out of 1st place for the distinction for the Worst Tribal-State Gaming Compact in Indian Country. The Secretary of Interior should disapprove it outright, if not for the sake of the Mashpee Wampanoag, than for the sake of protecting tribes across Indian Country from state over-reaching; some might call it extortion. The Mashpee Compact is a case study in how states attempt to create illusory exclusivity in exchange for extracting revenue sharing (a disguised tax) from tribes. In this case the state and municipalities are extracting what may exceed 25% of gross revenue over “all gaming” from the Mashpee, including from Class II. As a quid pro quo Massachusetts gives only what it is already obligated to give under the Federal Indian Gaming Regulatory Act (IGRA) and includes non-substantive concessions having to do with matters that fall far outside the scope of negotiations authorized by IGRA such as hunting, fishing, and water and land rights. The state ad nauseam claims to be giving Mashpee exclusivity while authorizing other casino gambling all over the state and the compact states that Massachusetts can still collect revenue sharing even if they authorize gambling near the proposed Mashpee Casino. It is as if the State believes that if it says exclusivity enough times in the compact that it starts to be real." Get the Story: Harold Monteau: Regarding Gaming Compacts and Their ‘Illusory Exclusivity’ (Indian Country Today 9/21)

Regarding Gaming Compacts and Their ‘Illusory Exclusivity’

By Harold Monteau

September 21, 2012

The tribal-state gaming compact between the Mashpee Wampanoag Tribe of Massachusetts and the Commonwealth of Massachusetts, recently submitted to the Department of Interior (DOI or Secretary) appears to have bumped Montana (tribes treated like tavern owners) out of 1st place for the distinction for the Worst Tribal-State Gaming Compact in Indian Country. The Secretary of Interior should disapprove it outright, if not for the sake of the Mashpee Wampanoag, than for the sake of protecting tribes across Indian Country from state over-reaching; some might call it extortion.

The Mashpee Compact is a case study in how states attempt to create illusory exclusivity in exchange for extracting revenue sharing (a disguised tax) from tribes. In this case the state and municipalities are extracting what may exceed 25% of gross revenue over “all gaming” from the Mashpee, including from Class II. As a quid pro quo Massachusetts gives only what it is already obligated to give under the Federal Indian Gaming Regulatory Act (IGRA) and includes non-substantive concessions having to do with matters that fall far outside the scope of negotiations authorized by IGRA such as hunting, fishing, and water and land rights. The state ad nauseam claims to be giving Mashpee exclusivity while authorizing other casino gambling all over the state and the compact states that Massachusetts can still collect revenue sharing even if they authorize gambling near the proposed Mashpee Casino. It is as if the State believes that if it says exclusivity enough times in the compact that it starts to be real.

The State even attempts to restrict the Mashpee’s Class II rights and would allow only what is commonly referred to church bingo and would restrict the tribe to paper Bingo with severe day, time and prize limitations ($100). The State has hired the high profile Indian Country firm of Holland & Knight to shepherd the Mashpee Compact though the DOI approval process on behalf of the State of Massachusetts. Holland and Knight have represented many tribes in the gaming arena.

Tribal responsibility in the community of tribal nations aside, the Mashpee Compact violates the Indian Gaming Regulatory Act (IGRA) in so many instances I do not have enough space to list them all. As a general matter, the compact violates the purpose and spirit of the IGRA by transferring the intended befits of the IGRA over to the state and municipalities. The effective rate of “revenue sharing” in the agreement may add up to over 25% of all gaming revenue, including Class II.

Assuming that the Financial Contract with its financier, Genting, calls for another double digit percent of its revenue for double digit years, the tribe comes out on the short end of the stick.

Additionally, the machinations which took place in Massachusetts that produced this unprecedented intrusion into Tribal Sovereignty were as unfair and as one-sided as when Bows and Arrows went up against Canons when Massachusetts was a Colony. Massachusetts treatment of its indigenous populations thereby has not changed much nor has its tactic of pitting one tribe against another. In passing the state law that authorizes casino gambling, Massachusetts Gaming Act (Section 91), the State intentionally attempted to exclude Mashpee’s’ sister tribe, the Aquinnah Wampanoag, from the compacting process by authorizing only one (1) Tribal Casino. Aquinnah Wampanoag is the only tribe in the state that actually has trust lands that qualify for gaming under IGRA and the Massachusetts Gaming Act. The Mashpee do not have trust lands. The State argues that the Aquinnah are banned from gaming by their Congressional Settlement Act (1987) even though the Aquinnah Settlement Act was preempted by the IGRA, which was passed the next year (1988) by Congress.

Congress excluded several tribes from the effect of certain sections of the IGRA, so Congress knows how to exclude tribes from the coverage of general acts and it certainly didn’t exclude the Aquinnah from the benefits of IGRA.

Ironically,in attempting to leave out Aquinnah, the state may have unwittingly made Aquinnah the only tribe in Massachusetts that has Indian Lands under the definitions in IGRA and the Massachusetts Gaming Act, and thus the only Tribe entitled to a compact under the provisions of Massachusetts Gaming Act. Talk about getting trapped in your own backfire.

The Aquinnah Wampanoag recently intervened in the Federal Court case of KG Urban Enterprises v. Governor Duval Patrick, which is on remand from the 1st Circuit Court of Appeals. The case will potentially determine the constitutional validity of Massachusetts’ Gaming Act which has been challenged on the basis that it gives a constitutionally impermissible racial preference to “an Indian Tribe”. The intervention of the Aquinnah may very well save the state from having its Gaming Act declared unconstitutional. The Aquinnah, being the only tribe in Massachusetts that has “Indian Lands”, under both IGRA and the State Gaming Act definitions, becomes the only tribe that offers a basis upon which the state can argue that its Gaming Act gives a political status preference to a tribe as opposed to a racial preference. A political status preference could survive the constitutional challenge since it is supported by a federal act, the IGRA. The state has to accept the Aquinnah’s right to a compact in order to save its Gaming Act from being declared unconstitutional. The law of unintended consequences; the state law only authorizes a tribal-state gaming compact with the very tribe it tried to leave out, the Aquinnah Wampanoag.

One will not find a specific provision in the IGRA which authorizes states to request a revenue share from tribes. It’s not there. The concept that exclusivity can justify a substantial revenue share to the state was first articulated in the approval of the Mashantucket Pequot Gaming Compact with the State of Connecticut that included a 25 percent revenue share of only Slot Revenue to the state of Connecticut. The BIA Solicitor’s created the legal theory of the exclusivity quid pro quo, which may be implicitly authorized in the IGRA, in order to justify Connecticut’s 25 percent revenue share. The concept has justified numerous states imposing a de facto tax on Indian Gaming in the form of revenue sharing. Many states are now in violation of the exclusivity quid pro quo, having authorized other gaming in those states for other entities that compete with the tribal casinos that were supposed to have exclusivity. This renders the “exclusivity” that numerous states agreed to illusory or non-existent. By authorizing more and more privately held and state sponsored gambling while still demanding the revenue share from the tribes those states appear to be imposing a tax in contravention of the explicit prohibition in the IGRA. California and New York are the worst among them. I don’t think this is what Congress Authorized in the IGRA. The states appear to be taxing Indian Gaming.

California lost in the 9th Circuit Court of Appeals on the question of whether “illusory exclusivity and illusory state concessions” justified the taking of a 15 percent revenue share from Rincon Tribe.

In the Rincon Band of Luiseno v. Schwarzenegger (2009) the court ruled that “The states demand for 10-15 percent of Rincon’s net win, to be paid into the State’s general fund, is simply an impermissible demand for the payment of a tax.” Here the Commonwealth of Massachusetts and municipalities will get 25 percent. For what? Massachusetts attempts to characterize as concessions the very matters that it is obligated to negotiate in good faith under the IGRA. Massachusetts also attempts to describe as a concession its willingness to bring closure to Mashpee Claims to land, water, hunting and fishing. Not only is this alleged concession a bit mushy but it looks more like a concession on the part of the tribe, not the state. The state further attempts to skirt the IGRA prohibition on taxation-by-compact simply by having the Municipality of Taunton enter into an Intergovernmental Agreement with the Mashpee under which the municipality extracts what amounts to another 3.5 percent of gross revenue and one time mitigation charges that will obligate the Mashpee to pay $27.62 per assessed $1000 valuation (sound like a tax). It further obligates the tribe to pay yearly for fire, ambulance, police protection, traffic mitigation and improvements and solid waste disposal, sewer and water (sounds like more taxes).

The DOI in the last decade has disapproved the Pinoleville Rancheria and Upper Lake Rancheria compacts with California that had similar provisions to the Mashpee Compact. The Assistant Secretary (BIA) found similar provisions to not be “meaningful concessions” and ruled that “gaming rights that tribes are entitled to under IGRA….cannot serve as consideration for revenue sharing; the consideration must be something separate than basic gaming rights”. While the Massachusetts grant to the Mashpee of some form of exclusivity might be found to be a concession by the Secretary, under Rincon and the Denial Decisions on the Pinoleville and Upper Lake Compacts, there would have to be substantial exclusivity in order for the Secretary to justify a 25 % revenue share for the Commonwealth of Massachusetts and its political subdivisions. It would be a stretch for the DOI to find substantial exclusivity where the state law authorizes substantial private gaming even in the region of the proposed Mashpee Casino. The exclusivity becomes even more illusory when the locale is within a couple hours drive from the two largest Casinos in the U.S., Foxwoods and Mohegan Sun.

 The exclusivity offered by Massachusetts is rendered even more illusory by the language in the compact that says that the State can still collect 15% even if it allows other gambling operations in the same region as Mashpee’s proposed Casino. This severely limited exclusivity man not be just illusory, it looks to be nonexistent.

As the 9th Circuit so elegantly put it in the Rincon case “no amount of semantic sophistry can undermine the obvious; a non-negotiable, mandatory payment of 10 percent of net profits into the State Treasury for unrestricted use yields public revenue, and is a tax.” I would say that the 25 percent revenue share proposed to be extracted from the Mashpee is more than just semantic sophistry, it is appears to be at the least a tax and, at the worst, a shakedown.

Harold Monteau is a Chippewa Cree Attorney and Gaming Consultant and former Chairman of the National Indian Gaming Commission.


Read more: http://indiancountrytodaymedianetwork.com/ict_sbc/regarding-gaming-compacts-and-their-illusory-exclusivity#ixzz27Cm9hu2l

Oneida foreclosure

N.Y. Second Circuit Court won’t rule on Oneida Indian Nation reservation status in foreclosure case

Published: Tuesday, August 21, 2012

 

By CAITLIN TRAYNOR
Dispatch Staff Writer
Twitter.com/DispatchCaitlin

NEW YORK -- One decision is left to be made in the foreclosure case between the Oneida Indian Nation and Madison and Oneida counties in federal courts. And the Second Circuit Court of Appeals ruled last week that it won’t do it.

In a decision dated Aug. 16, the Second Circuit said it wouldn’t rehear arguments in the case over whether or not the Nation’s reservation was ever disestablished.

The foreclosure case between the Oneida Indian Nation and Madison and Oneida counties reached the Supreme Court last year but after the Nation waived its sovereign immunity, which voided half of the arguments in the case, the Supreme Court kicked the decision on the status of its reservation back to the Second Circuit.

Later last year the Second Circuit said it wouldn’t make a decision on its status, advised the lower court to do the same and asked that the issue be sent back to state court for clarification.

Before that could happen, Madison County submitted an application for the entire Second Circuit Court to rehear the case.

Because of the 2003 ruling in Sherrill, which said the reservation wasn’t disestablished, the court said it didn’t have authority to reverse that decision without an en banc hearing, or arguments heard by the entire court instead of just a three-judge panel.

Last week, the court ruled that it would not do that.

Although disappointed but not surprised, county officials are expected to meet Wednesday to decide what their next step will be, but Administrative Assistant Mark Scimone said “since the Supreme Court recently granted review of this issue, it hopefully will again.”

David Shraver, an attorney from Nixon Peabody, the law firm that represents the county in this case, said “applications for rehearing en banc (by the full court) are rarely granted by the Second Circuit.”

“Since the Supreme Court granted review of this question once, it may look favorably on a petition for a writ of certiorari to review it again,” he said. “The land claim has been dismissed and is not affected by this development.”

Nation Spokesman Dan Smith said “we are pleased that today’s ruling puts an end to legal challenges to the status of the Oneida reservation. This ruling is good news for Oneida members, our more than 4,500 employees and their families and for the entire Central New York region. This decision allows everyone to finally move beyond the conflicts of the past and chart a new, more prosperous path for the future.

“This Second Circuit Court of Appeals ruling falls in line with two previous U.S. Supreme Court rulings that the Oneida Nation reservation was never disestablished and that the Treaty of Canandaigua remains valid in the eyes of the federal government. This ruling puts an end to more than a decade of litigation over the existence of the Oneida reservation.”

http://www.oneidadispatch.com/articles/2012/08/21/news/doc50342697719ed543333191.txt

Oneidas, counties head to court again

Oneidas, counties might head to court again
By ELIZABETH COOPER

Observer-Dispatch

 

Posted Sep 08, 2012

 

UTICA —

The lawsuits between the Oneida Indian Nation and the governments that surround it could be heading back to the U.S. Supreme Court.

Oneida County Executive Anthony Picente said county lawyers might bring the question to the highest court about whether the Nation's historic 300,000-acre reservation still has legal standing.

That land now belongs mostly to hundreds of separate non-Indian property owners. The Nation still holds about 32 acres, which are home to its Turning Stone Resort Casino.

“The lawyers are looking it over,” he said.

Picente still hopes to reach a negotiated settlement with the Nation, but the reservation's status is an important issue in the ongoing litigation.

County lawyers also must confer with New York state, which has been party to the litigation in the past, Picente said.

Madison County Attorney John Campanie confirmed that his county is moving along similar lines.
Nation officials declined to comment.

A possible U.S. Supreme Court ruling could have an impact on the Oneidas' ability to put 13,000 acres of land they purchased in Madison and Oneida counties into federal Indian trust.

Trust lands are not subject to state and local tax laws and other regulations. It might be easier for Indian nations to place historic reservation land into trust than other land.

If it goes to the Supreme Court, the case could have national impact, Albany Law School's Robert Batson said.

“It depends on how their question is framed,” he said of the impacts.

 Across the country, particularly in the western United States, there are reservations that still exist on maps despite the fact that many lots have been sold to non-Indians, he said.

If such land is sold back to an individual Indian or to a tribe, it can become Indian country again through the federal land-into trust process.

Seen this before?

These questions might sound familiar, and there is a reason.

In the 2005 case of the City of Sherrill vs. Oneida Indian Nation of New York, the U.S. Supreme Court ruled that the Oneidas could not declare land it purchased within its historic reservation sovereign Indian country.

Prior to the ruling, the Oneidas had bought more than 13,000 acres within the historic boundaries in Oneida and Madison counties. They had declared it exempt from state and local tax laws and other regulations and had not paid property taxes on it for years.

After that ruling, Oneida and Madison counties moved to foreclose on the land over delinquent property taxes. The Nation filed suit, and among its arguments was that the parcels could not be foreclosed upon because of New York state property tax exemption laws for Indian land.

The question of whether the reservation still exists is key to the Nation's argument in the foreclosure case.

Assistant Oneida County Attorney Harris Samuels said the Sherrill decision applied to federal laws and not to the state law to which the Oneidas referred.

Also, it said only that the Nation could not impose its own laws over land they purchased within the historic reservation, and did not specify whether the reservation still exists.

Centuries-old treaties

Like many of the lawsuits between the Nation and its neighbors, the arguments center on treaties signed long ago.

The Oneidas' reservation was established in 1788.

But county officials point to a treaty from 1843 that paved the way for the 5,000 acres of land the Nation still owned to be sold to the state of New York.

The Oneidas, however, point to a decision by a lower federal court, the Second Circuit Court of Appeals, not to hear the question of whether the reservation exists. The same court ruled in 2003 that the reservation had not been disestablished.

It's the second Circuit Court's decision that the counties are taking to the U.S. Supreme Court.

http://www.uticaod.com/latestnews/x764811631/Oneidas-counties-might-head-to-court-again
 

Ayup! We can trust them!

Ignoring the conduct of the Mashpee Wampanoag Tribe elsewhere.....ignoring Sovereignty....Amazing!

Concerns ebb over tribal-state casino compact

By George Brennan

gbrennan@capecodonline.com

August 07, 2012

 

MASHPEE — Town leaders are breathing a little easier after their attorney spoke with an attorney for the Mashpee Wampanoag Tribe about a provision in the tribal-state casino compact that offers state help to settle land claims in and around Mashpee.

Although a meeting has still yet to be held between the town and tribe, town attorney Patrick Costello said he remains confident that the provisions of a 2008 agreement reached between the two parties are valid.

"I have all the confidence in the world in (our attorneys) that our agreement with the tribe is very enforceable," said Selectman John Cahalane, who is the town's liaison with the tribe.

In that 2008 deal, the town agreed to convey certain parcels of land to the tribe in exchange for the tribe not seeking its federal rights to a casino in Mashpee. Both town meeting and the tribal membership endorsed the agreement.

There is a provision in the intergovernmental agreement for the two sides to talk about additional land and Costello said he believes that is the tribe's intent, but Wampanoag leaders aren't ready to talk specifics. "We didn't see any reason to speak about generalities," Costello said. "We don't believe there's any imminent threat of action by the tribe."

There is no worry, he said, that the tribe is seeking to make land claims as it did during the 1970s when it also went after private land.

Outside the post office at Mashpee Commons, town hall and the town library, more than a dozen people asked about the compact either had no comment or no idea that there was wording in it having to do with Mashpee land.

The compact is the agreement between Gov. Deval Patrick and the Mashpee Wampanoag that sets the amount of gaming revenue the tribe will pay the state in lieu of taxes. The tribe plans to build a $500 million casino complex in Taunton.

Cahalane said he received calls from constituents after it was initially reported on last month, but the level of anxiety has ebbed.

"When it first came up there seemed to be concern, but all five selectmen have been on top of this and word has spread that there's nothing to worry about," he said.

The selectmen were expected to discuss the issue during an executive session Monday night, Costello said, merely to make sure all board members were fully up to speed with his conversation with the tribe attorney.

Town assessor's records show the town owns 3,051 acres and the state holds 1,189 acres in Mashpee. The tribe is seeking to have 170 acres taken into federal trust as part of its initial reservation.

"Representatives from the town of Mashpee and the Mashpee Wampanoag Tribe are in communication," tribal council Chairman Cedric Cromwell said in a statement. "Preliminary conversations have been respectful and productive, and we expect that these open lines of communication and cooperative spirit will continue."

During his conversation with a tribe attorney, Costello said he did express disappointment that the town was left out of the loop when the tribe and state briefed key officials on the compact. He said the town has been assured it will have a seat at the table during future discussions about land within its borders.

http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20120807/NEWS/208070323/-1/NEWSLETTER100

Ayup!

No Meeting About Mashpee Tribe Land Claim, But Town Counsel Expresses Little Concern
By: Geoff Spillane
Published: 08/03/12

A provision in the state-tribal compact that calls for the governor to assist the tribe in resolving unsettled title claims for and in and around Mashpee caused concern among town officials and residents, but the initial shock appears to be settling down a bit.

A meeting between the tribe and town officials scheduled for last week was canceled at the last minute and has not been rescheduled. But that is okay, according to Mashpee Town Counsel Patrick J. Costello.

“I have had a discussion with an attorney for the tribe, and based on our discussion, I do not see any imminent threat or concern for the town. There is no need to schedule a meeting until additional specific information is available,” Mr. Costello said, adding that the town feels very comfortable that the intergovernmental agreement (IGA) with the tribe remains solid.

Mr. Costello did note that there is a clause in the IGA that states, “Furthermore, nothing herein shall prevent or preclude the tribe and town from engaging in negotiations or transactions subsequent to the date of this agreement regarding the transfer of title to or interest in any town property upon terms mutually acceptable to the parties.”

“Representatives from the Town of Mashpee and the Mashpee Wampanoag Tribe are in communication. Preliminary conversations have been respectful and productive, and we expect that these open lines of communication and cooperative spirit will continue,” Mashpee Wampanoag Tribe Chairman Cedric Cromwell said in a written statement.

Nonetheless, the Mashpee Board of Selectmen will take up the matter in executive session Monday evening. According to the meeting agenda, there will be a discussion about the “purchase or exchange of real property in relation to the compact executed by and between the Commonwealth of Massachusetts and the Mashpee Wampanoag Tribe on July 12, 2012.”

Town officials have referred all inquiries about the land claim provision in the compact to Mr. Costello.

Tribal council officials have said they are interested in discussing land issues with the town, including the possibility of pursuing town-owned land. Vicechairman Aaron Tobey Jr. said the negotiations are an opportunity to "correct some wrongs."

Mr. Tobey and Mr. Cromwell have repeatedly emphasized a desire to build on the positive relationship between the town government and the tribal council in recent years.

http://www.capenews.net/communities/mashpee/news/2011

Tribal Chairman Says Mashpee Land Claims To Include Town Property
By: Geoff Spillane and Brian H. Kehrl
Published: 07/20/12

Where is the land that Governor Deval L. Patrick has committed to help settle on behalf of the Mashpee Wampanoag Tribe? Is it South Cape Beach? The Massachusetts Military Reservation? Attaquin Park? Property outside of Mashpee?

The guessing game is on, and all bets are off.

More than a week after the governor and the tribe reached agreement on a compact outlining terms under which the tribe can operate a destination resort and casino in Taunton, blindsided town officials and residents still have little or no information about a land claim provision that was tucked away in the pact.

The signed compact states that the commonwealth will next year use its best efforts to resolve unsettled title claims “involving land and water in and around Mashpee,” with the goal of conveying some publicly-held land and water to the tribe.

To date, there has been no contact between town officials and tribal leaders to discuss the land claims.

The town’s legislative contingent has also been kept in the dark about the issue. State Representative Randy Hunt (R-Sandwich) said that he has not been told of any specific land that may be targeted, nor had he been contacted by Mashpee Town Manager Joyce M. Mason, which he found surprising given the passion surrounding this issue.

“I will vote for the compact, but we should at least have a letter detailing what this side deal is all about, and who it will affect—people need to know and understand what this is all about,” Rep. Hunt said.

Ms. Mason has referred all inquiries to the Boston office of Town Counsel Patrick J. Costello.

A spokesman for State Senator Daniel A. Wolf (D-Harwich) told the Enterprise that his office has not yet been able to obtain any additional information regarding the land claim provision, either.

State Representative David T. Vieira (R-Falmouth) did not return a call for comment.

http://www.capenews.net/communities/mashpee/news/1975

There can never be any land in trust in the original 13 colonies

CAROL KELLEY, Plymouth: Senate should vote against casino compact

EDITOR’S NOTE: Gov. Deval Patrick has signed a casino compact with the Mashpee Wampanoag tribe, but before the tribe can build its proposed $500 million casino in Taunton, it needs to obtain U.S. Department of the Interior approval of a land-into-trust agreement.

There can never be any land in trust in the original 13 colonies because of the following court decisions:

The “property clause” of the United States Constitution (Article IV, Section 3, Clause 2),which concerns itself with federal territorial lands owned by the United States, has never applied in Massachusetts. In fact, the U.S. Supreme Court has already ruled on this. In a case known as Fletcher v. Peck, the court upheld the pre-emptive right of the original 13 colonies over their state land. There is no federal public domain land or federal reservation currently in the commonwealth, there never has been, nor can any be created since 25 USC. 465 with regulation 25 C.F.R. 151.9 only applies to other federal public domain lands that may be added to federal Indian reservations for the use of an Indian tribe which was recognized in 1934. No tribes in the 13 states were ever under federal jurisdiction or living on federal reserved land.

Alaska v. U.S. (2005): The federal government cannot establish reservation land without reserved rights. There is no federally owned land in any of the original 13 colonies. We entered the union with all of the land under state jurisdiction.

Hawaii v. Office of Hawaiian Affairs: Once land is transferred to state jurisdiction it is not eligible to be taken into federal jurisdiction. Feds can’t take land and give it to an Indian tribe.

Carcieri v. Salazar: No land in trust can be given to Indian tribes unless they were under federal jurisdiction in 1934. Lists of tribes that were recognized are available and were presented to the Supreme Court in Carcieri. They do not include the Mashpee Wampanoag.

Oneida Indian Nation v. Oneida County, New York, and United States v. New York: Upheld the U.S. Court of Appeals, which said that granting the Oneida Indian Nation’s land claims would be too disruptive to the state, local government and current owners of the land.

Land claims are dead, yet Gov. Deval Patrick put it in the compact. This is illegal according to federal law and would be too disruptive to the town of Mashpee.

  

Carol Kelley lives in Plymouth.

Speak Outs can be up to 400 words. They should be about issues of broad appeal. Please submit articles to: Commentary Page, The Patriot Ledger, P.O. Box 699159, Quincy 02269-9159 or by e-mail to editpage@ledger.com.

Read more: http://www.patriotledger.com/letters/x181547024/CAROL-KELLEY-Plymouth-Senate-should-vote-against-casino-compact#ixzz22EI9Sdca