Friday, December 26, 2008


As 2008 draws to a close (an Annus Horribilis by any measure) and 2009 draws closer, it's gotten me thinking about beginnings.

If you want a clear understanding of how the idea of a resort bingo hall in Middleboro began, read this article in CommonWealth (Fall 2007), it offers a very good, accurate overview of the major events in the Middleboro resort bingo hall timeline, and it is definitely worth revisiting in light of what we now know about the activities of Mr. Marshall during the final stages of obtaining federal recognition for the Mashpee Wampanoag tribe. It is also salutary to consider the murky beginnings of the resort bingo hall project as we consider what the impact of the guilty plea may be, on Middleboro's partnership with the tribe and its financial backers.

A reading of this article should also make clear to everyone why we need to pay attention to what our representatives are doing on our behalf. If we as a community had been paying closer attention, I argue that we would not have been in the position of feeling that anything was "inevitable" in the summer of 2007. Perhaps we would to this day retain the major bargaining chip -- the land itself. Even proponents of the project (or the subsequent deal) understand that possession of the land was the community's main leverage, and that the community sold it very cheaply.

The essay by Mr. James Lynch, included in Carverchick's post, offers a useful dissection of the truth (defined as that which is supported by evidence from the historical record) --from the assertions (defined as public utterances by tribal leaders and Middleboro advocates of the Resort Bingo Hall project) --of the historical beginnings of the present-day Mashpee Wampanoag tribe. It paints a very clear picture of the historical development of the present-day Mashpee Wampanoag tribe and is very useful and informative reading for anyone interested in the resort bingo hall issue.

Most importantly, it outlines what the historical record says about the links between the Mashpee Wampanoag tribe and the land in Middleboro. In short, that there aren't any, beyond those created in 2007 by the sale of the land on Precinct Street to the tribe's financial backers.

Many reading the news over the past 2 weeks who are interested in the final outcome of the resort bingo hall project may well ask, How did the tribe get into this position? How was their then-chairman able to carry out the illegal activity that he has admitted to in his guilty plea? The recent editorial by Ms. Paula Peters, a current member of the Mashpee Wampanoag Tribe and former Cape Cod Times reporter, gives some insight into the conditions within the tribe that enabled Mr. Marshall to pursue his strategy. She calls on tribal members to put an end to those conditions once and for all on February 8. One can only hope that the members of the tribe heed her call.

It is interesting to read the counterpoint offered in Mr. Michael Decker's opinion piece in response to Ms. Peters. In it, he asks if it is indeed possible to avoid the taint of corruption, given the convoluted nature of the federal recognition process, and the financial opportunities available to those who achieve federal recognition, thanks to IGRA. He also makes some interesting observations about how the Mashpee Wampanoag tribe had fared under Massachusetts stewardship:

The Wampanoag were under the stewardship of the commonwealth of Massachusetts for 200 years. That's an undeniable fact. Subsequently, they were known as a state tribe. As far as we can see, the tribe did well under the commonwealth's stewardship. They established a town, Mashpee, learned the language, learned new trades and occupations, accepted Christianity and married settlers and immigrants for over 12 generations.

Finally, in relation to Mr. Decker's opinion piece, I'd like to bring to your attention a very interesting (if somewhat lengthy) article, again by Mr. James Lynch, giving an historical perspective on the concept of tribal sovereignty. The points Mr. Decker makes about the Mashpee Wampanoag tribe are echoed by Mr. Lynch in this article. The article appeared in the Fall 2006 supplement to the One Nation United Newsletter, and provides a clear overview of the historical development of this important concept. I'll summarize what I feel are the key points below, but Mr. Lynch's article is worth reading in its entirety.

Lynch demonstrates the fluid and cyclic nature of the political relationship between recognized tribes and the United States. During the course of the past 300+ years, he shows how tribes that were once

distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States…

were ultimately transformed into dependent wards of individual states, subject to the jurisdiction of those states.

Lynch then states "what Congress giveth, Congress may also [taketh] away," and outlines the legal basis for this change in status. Ultimately, the evolution of the political relationship between recognized Indian tribes and the Federal government led, in 1871, to Congress ceasing to recognize Indian tribes as sovereigns by the simple expedient of denying to itself the right to recognize such relationships, via an amendment to the 1871 Indian Appropriation bill. This in its turn led to a rather important shift in the relationship between tribes, and the United States government, as explained by Lynch:

Prior to [the 1871 amendment], Congress did not exert any direct legislative control over recognized sovereign tribes. After the enactment of the 1871 amendment, Congress for the first time had the legal right to exert full plenary powers over Indian tribes that came under Federal jurisdiction.[emphasis mine]

Lynch argues that, after the 1871 amendment, "the political status of Indian tribes was on a level parallel to that of a community", but with one important distinction. Instead of being a community subordinate to a state’s jurisdiction, Indian tribes had now became communities subordinate to the plenary powers of Congress itself.

By 1901, Lynch explains, there were in effect, no sovereign Indian tribes within the United States. All Indian tribes were subject to the jurisdiction of either the individual states in which they resided, or were subject to the jurisdiction of the Federal government.

Having outlined the historical development of the concept of sovereignty as applied to Indian tribes and their relationships with the United States government, Lynch then asks, "Where does this concept of tribal sovereignty stand today?" He then goes on to explain:

Tribes today are certainly being urged towards “inherent” self-government. the [purpose of] The Bureau of Indian Affairs in its post 1978 acts of tribal recognition (which are not congressionally sanctioned) was to simply declare an Indian community as a tribe for purposes of receiving Federal benefits, not to bestow political power outside the tribal community.[emphasis mine]

Yet when the political term "government–to-government relationship" began being used to describe federal/tribe relationships it began an erosion of the intent of the 1871 Amendment, which stipulated that relations between Indian tribal communities and the Federal government [were] to be regulated only by contracts, not treaties, and only with the approval of Congress.

According to Lynch, erroneous use of the term 'sovereign' began to appear in [descriptions of] tribal ‘community’ powers. "Most notably its usage began creeping beyond Cohen’s incorrect concept of ‘inherent sovereignty’"

Lynch explains that the concept of ‘inherent sovereignty’ was developed by Cohen in his seminal Handbook of Federal Indian Law, published in 1941. In Lynch's view, "The concept is roughly synonymous with just being a ‘little bit pregnant.’" Lynch argues,“It appears that Cohen ignored the implication of the term sovereignty and its notions of supreme or absolute authority.” He states that Cohen may have been misled by the erroneous “sovereign power more or less absolute” concept articulated in United States v. Montoya, and that Cohen ignored the findings regarding the absolute nature of sovereignty in Cherokee v. Georgia. According to Lynch, Cohen apparently did not fully understand the intent of Congress when it enacted the 1871 amendment: the political reduction of tribes from entities having sovereignty to the status of communities, and the establishment of Congress’ right to exercise complete plenary power over those tribes as communities (in place of what had been the right of individual states to exercise plenary power over tribes located within their borders). In developing his concept of ‘inherent sovereignty’, Lynch states that Cohen also ignored the 1886 US. v. Kagama decision. Lynch goes on, “If Cohen had instead framed his concept as ‘inherent self government’ [instead of ‘inherent sovereignty’] he would have been right on the mark.”

Lynch argues that there is no basis for the application of Cohen’s flawed concept to of inherent sovereignty to tribal community powers, he then states: "it appears that a conscious act of promoting a ‘self-fulfilling prophecy’ is in play. In other words if you repeat something that is not true often enough it gains the aura of truth." We in Middleboro are intimately familiar with "self fulfilling prophecy" - we've seen it in action for the past 19 months.

Lynch goes on to conclude that the concept of sovereignty is not the only thing at work. There is also "tension between states rights and [the rights of] of the Federal government.:"

Lynch concludes:

On the basis of the preceding arguments, by recognizing a tribe, the Federal government is not declaring a tribe ‘sovereign.’ It is merely removing this recognized Indian community and its lands from state jurisdiction and placing it under the plenary authority and control of Congress. No sovereign nation has been created. So we come back to the statement or rhetoric, “we are a sovereign nation.”

As Lynch says:


Things to ponder as the old year passes, and a new one dawns.

Thursday, December 18, 2008

Casino Capitalism, Anyone?

Thank you Bumpkin, for posting the vids of Chairman Bond discussing the guilty plea and his perception of what it may mean for the continued enforceability of the IGA as a contract between the Town of Middleboro and the Mashpee Wampanoag Tribe. I remain bemused at Chariman Bond's willingness to set aside Mr. Marshall's concealment of a rape conviction, and lying to a government body as "personal" matters, completely separate from and non-indicative of how Mr. Marshall might discharge a public trust, or how he might interpret "good faith," but I digress.

I received something interesting in the mail today, a letter from StopPredatoryGambling.Their focus is combatting the proliferation of aggressive advertising for state lottery product. In it, Mr. Les Bernal, their Executive Director, made some interesting observations: "in the midst of a global economic crisis, plummeting pension values, unaffordable health care, high food costs, and millions of American families facing foreclosure ::Fiferstone raises hand:: --state government...continues to agressively advertise predatory lottery products."

In our case, we might substitute -"our chairman of the Board of Selectmen continues to state his faith in the revenue potential of a predatory gambling enterprise."

Mr. Bernal goes on to say, "This is not about whether people can gamble, or about people playing poker on Friday nights...It is about the practice of using gambling to prey on human weakness for profit [that] has become the preferred method for governments to raise money for public services." Remember that stewardship thing? I think may have mentioned it...

Mr. Bernal's letter also made another interesting and fairly disturbing point. There are unsettling similarities between the present addiction of governments (large and small) to gambling proceeds as a revenue source, and the feeding frenzy that preceded the subprime mortgage meltdown. "AIG and Lehman Brothers executives were part of what has been recently called "casino capitalism", using predatory practices and financial gimmicks to promote an illusion of free money, at the expense of unsuspecting Americans." Speaking of the subprime mortgage mess, and casinos, and capitalism, and meltdown, Nevada currently has the highest foreclosure rate in the country. Las Vegas, long the glittering jewel in the crown of the U.S. casino industry, and a real-estate success story, now has an astonishing 48% of mortages on single-family houses in its metropolitan area underwater (the owner owes more than the house is worth). By contrast the national average for single family houses in which the owner owes more than the house is worth, is 18%. That's definitely good, but certainly it's better than something approaching "1 in 2."

As Mr. Bernal says, "Why would anyone think a government run like a casino {or for the benefit of of a casino, for that matter} is going to turn out any better?"--emphasis mine

Given the recent revelations about incomes earned by tribal leaders, and Mr. Marshall's antics leading up to federal recognition, some of the things that I'm annoyed [read mad as hell] about are:

1. The lack of contingency in the IGA. Any agreement of the magnitude of the IGA should have had a contingency spelled out explicitly within it, as a matter of course. What happens if, for whatever reason, the agreed-upon enterprise does not go forward? Most divorce and separation agreements (the effective ones, anyway) have a contingency of some kind. For example, what happens to monies set aside for college education for a dependent child if, for whatever reason, that child does not attend college? What do the parties agree to do in that event? Last summer (after the meeting at which the vote was taken and the IGA signed) I pointed out to Mr. Bond that it appeared to me that the agreement lacked a contingency, and I wondered if that might be a problem. Now Mr. Bond has articulated publicly that this could be a problem, or at the very least, that the town may now be running more risk than it factored into its calculus when it decided to accept the proffered annual mitigation payment and enter into the agreement in the first place (gosh, that sounds depressingly familiar).

I feel sorry for the people who grudgingly supported the casino idea because they thought it was "better than low income housing." Given the fact that there is no contingency in the IGA, and the fact that the land is owned by a private entity (Trading Cove at Mashpee is an equity partnership and is definitely not the Mashpee Wampanoag tribe) , which has a perfect right to dispose of the property as and how it sees fit. Those who sought to prevent the use of the land for low-income housing by voting in favor of signing the IGA may very well find that the land on Precinct street is ultimately used for exactly that which they sought to prevent with their vote at the TMFH. If such a thing comes to pass, those folks have my condolences, and I will welcome my new neighbors to the neighborhood. After all, it's just a short walk from my house.

2. The concept that we can now negotiate the mitigation upward, to what it should have been in the first place. I'm sorry, but no amount of money will offset the damage this thing will do to us if it is "successful." Conversely, no figure anyone chooses to write on a piece of paper will actually translate into money in the town's bank account if the enterprise fails to succeed because there are too many others of its kind in existence already, it is too similar to the all the others in all important respects, and if the others are overleveraged, and resort to cannibalizing each other in a grim effort to stay alive in a shrinking economy. In short, if Middleboro builds it, who's to say anyone will come? Gamblers seem to be staying away from the enhanced, hyperthyroid Connecticuit casinos in droves. Lurk on and check out the reservation casino news from Indian Country - in three words, it's not good. I also wonder what will happen to Michigan's 20 and counting casinos (and their deep-pockets financial backers) when the auto industry finally collapses. I wonder how they, and the state, are going to fare? Probably not well.

3. The continued reliance upon legal experts enmeshed with the gambling industry. Nuf said. I think we ought not to draw from the same poisoned well whence was drawn the water for the first batch of Kool-Aid. At the very least, we need a second opinion, from someone prepared to advocate on behalf of the town, and preferably someone who has some expertise in civil and criminal liability exposure connected with financial malfeasance. I agree with Bumpkin that that no one in our town government is guilty of wrongdoing, but again, what is the risk and exposure to the town and its officers, given the antics of the former tribal chairman and any other tribal officers that he may name? Middleboro needs a legal advocate who can effectively gauge that risk. I'm not convinced that Mr. Whittlesey is thus equipped.

4. The continued silence of the current Mashpee Wampanoag Tribal Leadership. Ms. Andrews, you have some explaining to do, most of all to the members of the tribe. But by all means, maintain your silence. What is it that a spokesperson does, again? Mr. Hendricks, why are Ms. Bingham and her son Steven not reinstated to full tribal rights and priviledges immediately? Has the tribe not spoken on this matter, and was she not right after all?

In my very humble opinion, it's time to stake the "magical casino" vampire for the final time, bury it, and then sow salt on the ground where we've buried it. There's some land on Precinct street where such a healing ceremony might be carried out, but we'll have to get permission from the property owner first. I'm definitely in favor of job creation and economic development. I was out of work most of this past summer, and in November my husband was laid off after 15 years at the same place of business. However, neither he, nor I, believe in the tooth fairy anymore. We never believed in the casino fairy either, not even when he stood before us in the High School auditorium, and promised us that anyone needing a job would find one at the Resort-Bingo-hall.

I firmly believe that we're not going to achieve economic development for Middleboro by revisiting our now-soured deal with the devil. If we do that we'll have no one but ourselves to blame. Ms. Bingham no longer needs to try to tell us exactly what sort of people we're dealing with. Now we know. The disgraced former tribal chairperson has convicted himself out of his own rascally mouth rather than face a jury of his peers. He will cooperate fully or do serious time. He will tell the federal investigators everything, and omit nothing.

The casino fairy and his magical enterprise were a fever-dream. It's time to wake up. We have to give up the idea that any one enterprise will rescue us in one fell swoop, from the effects of decades-long crisis management and shortsightedness. By all means, we should hope and pray for the best, but the hard, cold reality is that we must arrive at a consensus on how we want our town to propsper, and then be willing to work hard, together, to achieve that common purpose.

To continue to believe in this "easy money" fairy-tale of a mega-destination-resort-whatever (whether reservation or commercial) or that the legalization of class III gambling will cause the Town of Middleboro"get well" fiscally, is to sow the wind. If we continue selfishly and destructively to prey on the weakness of others for our own profit, we will reap what we sow. ...the bud shall yield no meal: if so be it yield, the strangers shall swallow it up.

I may not believe in the tooth fairy, and I'm definitely much too old for Santa Claus, but I do believe in community preservation. I plan to support the CPA. Better the CPA than the IGA. The CPA, to me, is a windmill. Who knows? In an economic whirlwind, windmills just might prove useful.

Monday, December 8, 2008

Lord how the money rolls in

This is nothing short of obscene.

I am utterly disgusted, but not at all surprised. Conflict of interest much?