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Carcieri fix removed

December 15th, 2010 No comments

From ProJo:

The authors of a must-pass Senate spending bill have omitted any provision that would allow the Narragansett Indian tribe to secure coveted federal trust status for a parcel of their land.
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The $1.27-trillion, catch-all Senate spending bill — circulated in draft form late Tuesday after weeks of negotiations — represents a setback for the Narragansetts and an advance for supporters of a 2009 Supreme Court ruling that denied them and numerous other tribes trust status, which generally exempts Indian lands from state and local laws and taxation.

In English that means that the Carcieri fix was pulled out of the senate version of the appropriations bill. Even with passage, the chances of a Middleboro casino would have remained slim – but impossible is better.
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While I don’t think it possible/likely that the fix will be added back in, it never hurts to contact your senators and express your opinion on this issue.

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Rep. Barney Frank on Middleboro casino

April 17th, 2010 No comments

A couple of weeks ago, I sent an email to my representative – Congressman Barney Frank to urge him to oppose any Carcieri fix. Short background – a “Carcieri fix” would reverse the Supreme Court’s ruling in Carcier v. Salazar(Kempthorne) which said that the Secretary of the Interior can’t take land into trust for tribes recognized after 1934. More than anything else, this ruling has slammed the brakes on Mashpee Wampanoag casino being planned for Middleboro – a project that was rammed down our throats in a rushed and flawed process that drove a wedge through the heart of our community – resulting in a deal that would pay Middleboro less than half of what it could have negotiated(I had to throw that in). I had heard from various sources that Mr. Frank didn’t think there was any appetite in the House for the fix – but his response to my letter leaves no doubt.
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I will say that I’m very appreciative that Rep. Frank got back to me and was very unequivocal about his position. It’s great that he’s on my side on this particular issue, but either way I’d rather be given a clear statement than political weasel words. Also – if you haven’t contacted your Representative and Senators … you should. My letter to Senator Scott Brown is unanswered – over four months after sending it.
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Here is the letter in full:

Dear Friend,
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Thank you for contacting me about your opposition to a bill in Congress that would effectively undue the Supreme Court’s decision in Carcieri v. Salazar by authorizing the Interior Secretary to entrust Indian land for the special protection of any tribe upon recognition by the Department. I agree with you and I do not think that a proposal to circumvent the Court’s interpretation of the 1934 Indian law is likely to be considered on the House floor for a vote. Should that occur, however, I will not be supportive of passage. As for the gambling issue, I believe it is one for the state legislatures and not the federal government. As you know, there are proposals in Boston to allow and tax commercial casinos as well as expand the types of permissible gambling to include slots. What shall come from them will be something decided through the democratic process at the state level, which as I said is where I believe the proper forum should be for that policy debate. If you have not done so already, you may wish to contact your local representatives in Massachusetts so that your views on the question of gambling in the state may be more fully weighed in. But again, as a member of the U.S. Congress, I will not support House passage of a measure that would entitle the Mashpee Wampanoag to override local laws in that regard. Thank you again for contacting me.
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Carcieri no-fix

May 1st, 2009 5 comments

This Turtle Talk post discusses a letter signed by seventeen Attorneys General opposing a Carcieri fix for the recent SCOTUS ruling that prevents the Secretary of the Interior from taking land into trust for tribes that were not under federal jurisdiction in 1934 (like the Mashpee Wampanoag).

The post makes an interesting observation that a Carcieri fix might be worse than the disease. This echoes things I’ve heard from my friends who are well versed in federal regulations and LIT in general – that a Carcieri fix would be even worse for tribes and possibly set the ground work for an end to LIT altogether.


And second, maybe these state AGs are leaving unsaid the obvious — they want more control over Indian lands, perhaps even veto power over fee to trust transfers and over activities on trust land.

And that’s what the Supreme Court handed state governments with their very wrongheaded decision in Carcieri. A Carcieri cure might be worse than the disease.

I’ve heard several of my anti-casino friends talk about the prospect of a Carcier fix saying more or less “Bring it on” – confident that any action Congress is likely to take would make the proposed Middleboro Casino even less likely than it already is.

Is it possible for the chances of this casino to actually become negative? If any casino can do it, this one can.

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SCOTUS understands "now"

November 4th, 2008 9 comments

Carcier v. Kempthorn was heard yesterday – a case that could have a major negative impact on the prospects for a casino in Middleboro Massachusetts. Based on this article it looks to me like the Supreme Court of the United States understands what the word “now” means.

Update

The full transcript of the oral arguments is here. There is also a very interesting blog post for the Indigenous Law and Policy Center at Michigan State University College of Law.

Depends on what your meaning of “now” is
A key point is the question of what “now” means in the Indian Reorganization Act of 1934. The court seems to be leaning toward a definition of “now” that is consistent with it’s meaning in the rest of the known universe:

Olson argued that for purposes of identifying who would be eligible, the 1934 law defined the word “Indian” as including “all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.”

“‘Now’ must be given its ordinary meaning,” Olson told the justices, arguing that when Congress said “now” in the language of IRA, it meant 1934. Thus, the Narragansetts don’t qualify for IRA trust benefits because they did not win federal recognition as a tribe until 1983, Olson argued. “The word ‘now’ had the same meaning in 1934 as it does every morning in this Court when the Marshal announces that ‘The Court is now sitting,’ ” Olson said.

Maynard countered that “now” indicates the moment when the Interior Department exercised the law by taking land into trust for a tribe. Maynard represented the Department of Interior, which took the Narragansett tribe’s 31 acres into trust in 1998.

Several of the justices zeroed in on Maynard’s argument with pointed questions. Justice Antonin Scalia said, with characteristic bite, that Interior Secretary Dirk Kempthorne “interprets ‘now’ to mean nothing. Does he understand that we usually do not interpret words to have no meaning?”

Justice Stephen G. Breyer said he found it “hard to swallow” that Congress intended to leave the interpretation of the word “now” to the Interior Department.

“We are talking about an extraordinary assertion of power,” warned Chief Justice John G. Roberts. “The secretary gets to take land and give it a whole different jurisdictional status, apart from state law and all.”

Feeling good, looking marvelous
After the hearing, a number of people expressed optimism for RI’s chances of winning the case.

But Richard Guest, a lawyer with the Native American Rights Fund, came away from the proceedings with a grim view of the tribe’s prospects for a favorable ruling.

“The court asked no question with respect to what the tribe’s interests were in the case,” said Guest. “I just don’t see five justices coming out in favor of the tribe’s interests, and that tribe can be plural or singular.”

Carcieri and other state leaders expressed optimism.

“Ted Olson made a great case on our behalf,” Carcieri said on the steps of the court.

“I’m feeling good about it,” Waterman said. “Justice Breyer impressed me much with his knowledge of the case and his questions. I feel confident we will win this one.”

Even Joseph S. Larisa Jr., Charlestown’s lawyer who fought hard to argue the case before bowing out last Friday, seemed pleased. “I think we’ve got it,” he said, before rushing to catch a flight back to East Providence where he is running for City Council in today’s election. “It seems clear that the justices understand [IRA] is limited to 1934.”

So if the case is decided in RI’s favor, then the Secretary of the Interior can not take land into trust for any tribe recognized after 1934 – like say the Mashpee Wampanoag.

View from the pro-casino edge
Attn. Dennis Whittlesey who negotiated the Middleboro/Mashpee IGA has been downplaying the fallout for this by arguing that Congress would enact some legislation to get around it. The question is, will they pass a law that specifically grants land into trust power to the SOI, or will they grant land into trust themselves on a case by case basis – a more difficult proposition for Indian country.

As yesterday’s arguments wound down, Roberts went so far as to suggest that if the court decides in the state’s favor, the Narragansetts and the Interior Department would have recourse to Congress.

“[I]f we disagree with your interpretation, and Congress thinks we are wrong, they can pass” a bill explicitly granting land trust benefits to the Narragansetts under the terms of the New Deal-era law. Congress has already done so for 15 other tribes since 1934, the chief justice said, referring to one of Olson’s key arguments.

A timetable for a ruling is not known for sure, but it is expected to come late next spring. I’ll leave it to Mashpee Tribal Spokesman and white guy Scott (Fearsome) Ferson to explain how this will have no effect on the Mashpee Bingo Hall juggernaut.

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CCT on CvK

November 1st, 2008 2 comments

Is that title cryptic enough?

Cape Cod Times on Carcieri v. Kempthorne.

Stephanie Vosk gives an overview of the the upcoming Supreme Court case.

The Supreme Court will hear oral arguments Monday in a case out of Rhode Island that could upend the Mashpee Wampanoag Tribe’s casino pursuit.

During the hour-long hearing, a representative for the state will argue that the Indian Reorganization Act of 1934 prevents the federal government from taking land into trust for tribes that were not federally recognized before that date.

The Mashpee Wampanoag tribe was recognized last year and has applied to put 539 acres in Middleboro and Mashpee into trust for its initial reservation. The Middleboro land is intended for a$1 billion casino.

I have fond memories of Stephanie – she was my first. No No not that first .. I mean the first print reporter who ever contacted me about a casino.

Looks like Ms. Vosk went into the back of the pro-casino freezer, pushed aside a carton of pickled Clyde Barrows, and wheeled out a case of imitation cheese n’ garlic flavored Dennis Whittlesey and defrosted him:

Experts say that if the case is successful, it could also disrupt existing operations such as Foxwoods Resort & Casino and Mohegan Sun.

Both Connecticut tribes that operate those casinos on reservation land were recognized after 1934.

“The stakes are high and, depending on what the Supreme Court does, it could have an extraordinary effect on tribe holdings in this country right now,” Washington D.C.-based attorney Dennis Whittlesey, who represents the town of Middleboro in negotiations with the Mashpee tribe, said in February after the court agreed to hear the case.

Congress could follow the decision by amending the reorganization act, he said.

Of course Dennis. I’m quite sure that Congress is chomping at the bit to do an end-run around the checks and balances provided for in the U.S. Constitution by passing legislation designed to get around a SCOTUS ruling.

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How dumb is dumb

October 30th, 2008 2 comments

What level of stupidity is required to be on the verge of appearing before the US Supreme Court and still be engaged in a pissing contest over which lawyer is going to represent you?

Governor Carcieri last night blasted the Charlestown Town Council for refusing to go along with his plan to have a prominent attorney represent the state in a landmark case before the U.S. Supreme Court that will ultimately decide who will control 31 acres of Narragansett Indian land in Charlestown.

In a letter hand-delivered to the four council members’ homes last night, Carcieri said he was writing to express his “extreme outrage at the irresponsible actions” of the council. “You have helped create a circus-like atmosphere that has made the town appear indecisive, arrogant and indifferent to the best interests of all the residents of our state.”

The thing about pissing contests is that nobody usually wins them. The participants generally just wind up covered in urine …… or casinos.

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