The Man Behind the Curtain

Three years ago last month (to be exact), I drove to an “informational meeting” at Middleboro Town Hall, not understanding much about casinos –  other than having been to them – and knowing absolutely zero about Indian gaming law.

Once there, a man who claimed to be an Indian gaming attorney informed the audience that a casino in Middleboro was inevitable, and that local leadership should eagerly sign an agreement with the Mashpee Wampanoag Tribe to avoid being stuck with a casino and no money to “mitigate” the costs.

Well, that didn’t sound right to me. It didn’t even sound American to me.

Before I’d realized it, it was as if I’d been picked up by a tornado and set down with a thud in a strange new place, with strange new rules.

My skepticism that evening had unknowingly added my name to a diverse, rapidly expanding network of people across the country who’ve swapped inevitability and other fairy tales for the truth about slots and casinos, Indian gaming, land in trust, and tribal sovereignty.

The last three years haven’t been terribly unlike that other other journey down the yellow brick road.  I made unexpected new friends, fought off flying monkeys, survived poppy fields, and just kept trying to do whatever it took to get back to my own backyard – only to find that, more often than not, the “great and powerful” someone to whom I’d turned for help was no more than a coward hiding behind a curtain pulling levers.

After more than 2 decades of expansion, tribal  gambling expansion and Indian land-in-trust regulations has begun to face real challenges across the country.

In February 2009, the wicked witch of off-reservation gaming for newly recognized Tribes – meaning those recognized after 1934 – was extinguished by a bucket of water from the Supreme Court of the United States known as Carceiri v. Salazar.  Very shortly thereafter, SCOTUS created further serious hurdles for the Federal government to take land (as in taking land into trust) from within state borders, when it rendered a 9-0 decision in Hawaii

v. the Office of Hawaiian Affairs.

Justice Alito wrote:

We have emphasized that Congress cannot, after statehood reserve or convey….lands that have already been bestowed upon a state”.

But at Monday’s Senate hearing on expanded gambling, the decaying corpse of the Wicked witch was dragged out, yet again, in the form of a memo from the Bureau of Indian affairs, as proof that the State is still under the threat of being forced to embraced gambling by our two federally recognized Indian tribes.

For those veterans, like me, of the Yellow Brick Road, we know that inevitability is a just a poppy field.  Memos, rumors, and threats not-withstanding, the witch is still dead.  And her broomstick is safe with me.

Down here in cranberry country, we’ve learned that every memo from the Bureau of Indian Affairs will be taken out of context, every presidential nod inflated out of proportion, and every rumor floated to the media as if gospel – all in the name of cowering the uninformed.  Just like that first night in Middleboro.

But when a colleague of mine from Middleboro contacted senate casino “guru” Stan Rosenberg to give him the benefit of her experience, this was his response:

We have consulted with competent legal council and with the BIA and they say the Mashpee will get land in trust within a reasonable period of time. They appear to be the only tribe in the foreseeable future that is expected to get there and be able to install gaming.

If the state does nothing there is ample precedents for class II machines with no taxation, community mitigation or regulation. This has been thoroughly researched and documented. I am not the only Senator researching these issues. Senator Morrissey and Spilka both of whom are attorneys have also researched this exhaustively and have come to the same conclusions.

I know this conflicts with your perspective but it is an honest difference of opinions.

Stan Rosenberg

Ok. Allow me to sprinkle some snow on this poppy field.

1.)  Can anyone name this “competent” attorney?  What is their self-interest?  Perhaps they have something in common with that other great expert the legislature and Governor has contacted in the past – Prof. Clyde Barrow – who just happens to work the other side of the casino street for profit.

2.)  Most people probably don’t realize the BIA is staffed almost completely with Native Indians (the correct title) and that this governmental bureaucracy has never truly acknowledged the Carceiri ruling.

3.) Has the BIA given Senator Rosenberg an exact timeline for the Tribe’s application to be complete, including a completed Environmental Impact Study and how they have gotten around regulations limiting distance and historical connections that were lacking from their application?  No, I thought not.  I wouldn’t recommend you hold your breath.

4.)  Does Senator Rosenbert have an explanation for how the Tribe will be able to proceed with class II gaming when it does not currently have any land in trust, and the Carcieri decision still stands?  Or how the Tribe would profit from such an enterprise when class III gaming exists only two hours away in RI and CT?

5.) I can’t speak for Senator Spilka, but Senator Morrissey participated, shortly before the Carcieri decision was returned,in a casino debate in New Bedford, where he demonstrated absolutely no knowledge of the case, and repeated the word “inevitable” numerous times.  He later admitted that he was uninformed about it.  Not that it stopped him from presenting himself as an expert.

6.)  For the record, it’s not a difference of opinions – it’s watching one law maker providing other lawmakers with information that is misleading and inaccurate.

The truth is that no governmental agency or Massachusetts tribe makes casinos inevitable in Massachusetts.

The legislature and the Governor make them inevitable.  (Not that it’s often convenient for them to point the finger in some other direction.)

Tribal leadership has a vested interest in trying to convinced State and local leadership that they’re interests in gambling will prevail.  They’ve proved, time and time again, that they are willing to say anything to convince stakeholders and decision makers that tribal casinos are inevitable.

The opposition to off-reservation also includes many learned Indian gaming attorneys – who incidentally helped with the research for Carcieri.  

There has been a national backlash against off-reservation gaming in this country – evidenced by how many states Attorney General (including ours) signed on as Amicus Curea to Carcieri v. Salazar.

Sometimes, just sometimes, stakeholders and grassroots activists, like those who live in regions targeted by tribal casino interests, have done been more thorough on their homework than a so-called senate “guru”, appointed by the pro-casino senate president.

The reality is that, for more than three years, our “great and powerful” leaders have promoted a pro-gambling agenda through misinformation, intimidation the myth of inevitability, while farm girls and their friends do the dirty (and sometimes dangerous) work of bringing back the truth and pulling back the curtain.