Monday, December 19, 2011

It's Carcieri not Malik that poses Bigger Problems for the Shinnecock Nation

The Indian Gaming Regulatory Act (IGRA) only allows for gaming on Indian lands held in trust by the U.S. Secretary of Interior. The Shinnecock Indian Nation currently has no land in trust with the Secretary. The lands designated as the Shinnecock Indian Nation reservation on Long Island near Southampton, New York, are not held in trust with the Secretary of Interior. Today, the Shinnecock Nation has no land eligible for Indian Gaming under IGRA -- not even the land designated as the Nation's Long Island reservation.

This presents big, perhaps insurmountable hurdles for the Shinnecock Nation and its Detroit casino backers.

That the Shinnecock Nation would be eligible to have land taken into trust for the purpose of developing a casino, or for any other purpose, appears unlikely at this time.

It was revealed this week that developers behind the Shinnecock Indian Nation's casino schemes had planned to introduce "Mandatory Acquisition" legislation in Congress next year. This suggests tribal leaders and their casino partners now realize they have bigger problems relative to the U.S. Supreme Court's Carcieri decision.  And in fact, it appears Shinnecock leaders have abandoned the attempt by other tribes to advance a so-called Carcieri Fix in Congress.

SCOTUS: Carcieri v. Salazar

In Carcieri, the U.S. Supreme Court said that the Secretary can’t take land into trust for tribes that weren’t “under federal jurisdiction as of 1934.” This has been read to mean that only tribes recognized in 1934 can have land taken into trust. This doesn’t necessarily mean that a tribe has to be on the list of recognized tribes in 1934, but must at least have had a relationship with the federal government as a tribal entity as of 1934.

The Shinnecock Nation's Carcieri problems are made worse by Interior Department acknowledgments published in 2010.

Interior, in granting federal recognition to the Shinnecock in 2010, made several findings that pose Carcieri problems for the Shinnecock. Most relevant, the Interior Department found that it never had a pre-existing relationship with the Shinnecock prior to their recent federal acknowledgment. The Final Determination for Federal Recognition of the Tribe published 6.18.2010 states:
The Department “finds that evidence in the record does not show that the Federal Government established, by its actions, a relationship between the United States and the petitioner [Shinnecock Tribe] as an Indian tribe at any time… .” “…the Department was aware of the Shinnecock of Long Island and held internal discussions as to whether the Department should establish a Federal relationship with them, but the Department took no action to do so.” “The Federal Government explicitly rejected the opportunity to establish a relationship with the petitioner [Shinnecock], sometimes stating that the petitioner [Shinnecock] was the State of New York’s responsibility.”
Clearly the Interior Department found that it had no previous relationship with the Shinnecock Indians, and thought that they were New York’s responsibility. The Shinnecock viewed this as a problem and offered additional evidence to try and show a relationship but the Interior Department rejected that evidence as showing a previously existing relationship. Thus, the Shinnecock wouldn’t have been “under federal jurisdiction” in 1934. So, Carcieri restrictions apply to the Shinnecock Nation.

Under current federal law the Shinnecock are not eligible for federal trust land, thus unable to open an IGRA casino.

That the Shinnecock would be ineligible to have any lands taken into trust by the U.S. Secretary of Interior, for gaming purposes or otherwise, seems only likely if Congress enacts new legislation specifically allowing such -- that remains highly unlikely.

Throughout the last decade the casino syndicators behind the Shinnecock schemes attempted numerous times -- both forthright and sneaky -- to have Congress enact special legislation that would have allowed the Shinnecock or the casino syndicator's other tribal partners to establish casinos.

Despite spending hundreds of millions on lobbying and campaign contributions, the Detroit casino syndicators failed, repeatedly. The only winners were the lawyers, lobbyists and politicians who willingly took millions from the perennial cockeyed optimist who managed the syndicate -- and apparently the handful of tribal leaders on his payroll. The losers remain the naive tribes at-large and economically depressed communities that pin their hopes for the future on the anticipated riches of gaming hopelessly dangled before them, like a carrot to a hungry horse.

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