The Great Gadfly

Vista Stinks!

In technical terms – it’s a pig

Bully Gates rides again

By Peter Kenney

Perhaps “Bully” would be a better name for Bill Gates than Billy. He may have built one of the largest fortunes in history by becoming the king of software but his marketing methods are pure hard sell. Consider his latest offering, the operating system known as Vista. My personal choice is anything by Apple for a number of reasons, but none of these really has anything to do with this piece. So, let's just deal with Mr. Gates and Vista. In a word, and according to many, many people whose comments I heave heard, Microsoft's newest operating system stinks. But, anyone who buys a new computer other than one made by Apple with an Apple software system installed will be forced to have the Vista experience.

She's some slow, ain't she?
The problem with Vista is that it has a few large problems. The first and most obvious is that it is, in the latest technical terms, a pig. This means it consumes a lot of the space in a computer's memory that could be used for other applications. A further problem is that it is slow.

Example: I have a friend here on the Cape who is a master carpenter and an accomplished videographer. In fact, he has won several awards, first as an amateur and then as a professional videographer. He has become very computer savvy as his editing methods progressed from old-fashioned tape to the off-line and digital technologies.

He recently helped his neighbor set up a new home computer, one that came with the Vista operating system software installed. (The instruction book for Vista is intimidating both in its size and in the fact that it reads something like the instruction manual for a nuclear submarine, or perhaps a space shuttle. Mere humans need not apply.) Once the computer was plugged in and booted up, he and the neighbor took it out for a test spin on the information super highway, the World Wide Web.

Armed with Microsoft's latest software and a brand new and highly rated computer -- not to mention the fastest Internet connection available to mortals -- the two watched the monitor expectantly. They watched and held their breaths for as long as they could, then took another deep breath and waited some more. It appears that Vista resembles the old Mercedes diesel engines...zero to sixty sometime before lunch. In his best Cape Cod drawl the neighbor observed, "She's some slow, ain't she?"

In fact, just for comparison's sake, my friend uses a ten-year-old computer that has never failed him. He has added considerable memory for video editing and various software packages -- all Windows-based -- for editing and word processing and he has even added Photoshop. Being thrifty, he still uses his original dial-up web access, which also seems to serve his needs quite nicely. He can boot up his ten-year old computer and be well beyond the entrance ramp to the information super highway before his neighbor’s Vista machine is any where near up and running.

Any operating system you want…as long as it’s Vista
I know another fellow, a man whose full time employment finds him producing video, editing video, and doing countless other very technical things with his computer. This is a man who used to build all of his own computer hardware. He just bought a brand new (and huge) HP laptop. This thing is a monster with a twenty-inch-wide screen and allegedly all the bells and whistles needed to run a major film studio's production department or, perhaps, even a small country.

This fellows comment on the Vista system is damning indeed: "I don't like it. It's slow and it doesn't do all the things they said it would or all the things I need it to do. The older Windows XP was much better." Hmm, my carpenter friend is still using exactly that, Windows XP, with superb results. Microsoft claims it is obsolete, but for my award-winning friend it is fast and reliable.

But here is the point: Microsoft leaves purchasers of new computers no choice. Remember, Microsoft does not produce, assemble or sell hardware. It is strictly a software company. So, every so often it must roll out a major new product and sell it to huge numbers of people or it will wither as a company. And, it must find ways to force, er...convince people to buy these new products.

Gates and his cronies have hit on an interesting, almost novel approach. It is called extortion. Undue pressure. Some might even say monopoly. This arm-twisting works in a deceptively simple way: any computer hardware manufacturer...any one...even the mighty companies such as HP and Dell must agree to sell all their new computers with only the Vista operating system. Dealers will and do tell prospective computer purchasers that they can still buy older Microsoft systems such as XP.

But as my professional video friend found with his new HP laptop, it appears impossible to install the Windows XP operating system once the Vista monster is in place. HP told him he could do so, but with all his years of technical expertise he has been unable to pull it off.

Software but hard sell
Leaving aside the issues of undue market influence and all the other nasty descriptors that might be applied to the Gates/Microsoft marketing strategies we must still reckon with one inescapable fact: Microsoft is forcing virtually every one who purchases a new computer -- other than those who opt for Apple -- to use an operating system that is slow, cumbersome and piggy when it comes to memory. If the people with whom I have spoken, including friends, computer professionals, and computer sales and marketing people are any indication -- Vista stinks!

But, should we assume Microsoft cares? Let's see...software but hard sell, hmmmmm. Bill Gates has certainly realized the ultimate American dream. But has he created the ultimate software nightmare? He truly is a genius. Who else in today's world can gain a net worth north of fifty billion dollars and maintain it by forcing people to buy crap?

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If gambling is the new buffalo, what does that make the Guv?

   No Candy for Deval

State vs. Tribe – follow the money 

By Peter Kenney

The first non-white governor in Massachusetts history has filed a formal opposition to the petition of the Mashpee Wampanoag tribeWhat would life be without irony? The first non-white governor in Massachusetts history has filed a formal opposition to the petition of the Mashpee Wampanoag tribe to place land in federal trust for various purposes. The Mashpee are primarily interested in placing into federal trust more than 500 acres of land they own in Middleboro so they can develop a gambling resort there. However, they also want to place land they own in Mashpee into trust, land on which they have their tribal council headquarters and where they hold their annual powwow and other tribal functions.

Outside looking in
Last fall the governor released his 78-page proposal for gambling legislation in Massachusetts. His opposition to the land trust application, filed with the Bureau of Indian Affairs (BIA), a division within the United States Department of the Interior, is 125 pages long. Even in summary form the governor's document is poorly camouflaged. Stated simply, here is the governor's objection: if the Mashpee are allowed to exercise their rights fully under the terms of their unconditional federal recognition as a tribe, a sovereign nation, and if in exercising those rights the Mashpee develop a gambling enterprise, the Commonwealth will be left like a child with his nose pressed against a candy-store window looking at the sweets inside but unable to reach them...no tax revenues will flow to the state.

For all the governor's posturing in his BIA objection, talking about issues such as affordable housing, consumer protection, employment opportunities, traffic and environmental concerns, the simple and unavoidable fact is that if the tribe tomorrow agreed to pay the  $100-million-plus application fee and the minimum annual tariff contained in Patrick's gaming proposal plus sales and other taxes collected at the casino he would not object for one minute. He would drill a hole for a scallop shell earring through his tweedy ear lobe, stick feathers in his hair and dance for joy that the tribe would build its casino. But, in fact, he has made it very clear from the start that he opposes tribal gambling development in Massachusetts. That was the clear intent behind his statement last fall that he would consider reserving one of his proposed three gaming licenses for one of the Commonwealth's two recognized tribes.

A series of troubling questions
Out of all this there does – or should -- emerge -- a series of troubling questions. Supporter though I am of tribal gambling being allowed if that is what the Mashpee want, there are some very serious issues yet to be addressed by the Commonwealth and the federal government. Normally, the development of five-hundred acres for anything would trigger a review process at the state level that would resemble the planning of the D-Day assault on Europe. It would also trigger at the town level reviews by the conservation commission, the health department, the planning board, the police and fire chiefs, the zoning board of appeals, the building department, the public works/highway department and perhaps even the town meeting but certainly, at least, the Middleboro board of selectmen.

Another Harvard lawyer
This is not Connecticut and what the Mashpee are proposing has never been done in Massachusetts before. There is precedent -- although it involves only an oyster shack on Martha's Vineyard -- for saying that the local authorities can enforce various state regulations, including the state building and zoning codes, on structures erected on Indian land. But, here is a list of questions that have bothered me for some time around the whole issue of tribal sovereignty versus the rights and powers of the states in which the sovereign tribes live. Without answers to these questions non-Indian governments will always have the ability to oppose Indian enterprise. Make no mistake, Deval Patrick and his opposition to the Mashpee is all about taxes, money, gold. The environment, traffic, employment (except as jobs generate taxes for the state) have nothing to do with his latest ambush. Follow the money...

Questions:

1. Will structures built on tribal land be required to comply with Massachusetts building, fire and other safety codes?
2. Will Massachusetts law enforcement personnel be allowed free access to the tribe's property?
3. Will the tribe or its casino enterprise be liable for damages should a patron become drunk on its property and then cause property damage or personal injury outside the tribe's property? 
4. Will various state and federal laws apply within the boundaries of tribal property in such matters as employee and patron safety, employment conditions, environmental matters, drinking age, and so forth?
5. Will tribal gambling operations be required to report winnings to either the state or the IRS? What about employee withholding taxes?
6. Will the tribe and/or its investors or its gambling entity maintain their own internal security operation/personnel? Will there be armed agents of the tribe on the casino property?
7. Will Massachusetts companies be allowed free entry onto tribal property for purposes of general commerce without any penalty or restriction by the state? (Liquor wholesalers, food wholesalers, etc.)
8. Will tribal casino employees be protected to the same extent as other workers in Massachusetts by worker's compensation insurance, social security, etc.?
9. Will the tribe be afforded the protections of Massachusetts and federal law in contract matters involving the tribe and its investors, suppliers, contractors, etc.?
10. To what extent will the tribe continue functioning as a tax exempt organization using the federal 501(c)(3) IRS designation as opposed to operating simply as a sovereign nation?

Missing: A fair and predictable process
These are some of the questions that occur to me. It is clear from what Governor Deval Patrick has filed with the BIA that he will pose -- and already has posed -- many of the same questions and more. The point is this; after more than three centuries of history involving American Indians and everyone else, and after more than two centuries of the United States of America's sovereign existence and after the nearly thirty-year struggle by the Mashpee Wampanoag tribe to gain federal recognition we appear to have more questions than answers. Is it not time for someone, some courageous figure -- with or without a Harvard Law degree -- to demand answers? Or to propose answers? I do not see a whole hell of a lot of progress toward anything remotely resembling a fair and predictable process for the Indians or for us or for the combined issues that affect us all. Congress and virtually every state have failed utterly to clarify what exactly is meant by the sovereignty implied when the federal government grants recognition to a tribe. The tribes and all the rest of us deserve answers. The tribes deserve a clear statement of what they can do and where and under what conditions.

In the state we trust?

I am reminded of what happened nearly a year ago when two Mashpee Wampanoags met with state senator Dianne Wilkerson in her Beacon Hill office -- at her invitation -- to discuss the tribal turmoil surrounding the leadership of Glenn Marshall and his handling of tribal finances. Claiming that he just happened to stop by while they were there, David Friedman, Attorney General Martha Coakley's assistant, told Amelia Bingham and her son, Stephen, that he wanted to assure them that things would be taken care of, that a full investigation would be undertaken and that the wrongs would be made right. To date, nothing has happened.

And now, after their lands have been carved up by and for others, after a largely successful effort to bury their language and an unsuccessful effort to destroy their culture and cultural identity, after enduring two centuries during which it was a crime punishable at law for anyone in Massachusetts to teach an Indian to read and write; now that the Mashpees' long awaited dream of economic prosperity for them and their descendants appears to be nearing final realization...now this state's first non-white governor has formally declared the Commonwealth's opposition to the tribe's plans.

The never-ending larceny
It appears to this spectator that Governor Deval Patrick has declared war without any attempt to negotiate a peaceful solution to this controversy. What further indignities must the Mashpee endure before they gain what should be theirs? Perhaps they need a good civil rights lawyer. Then again, Deval Patrick used to be one. Now he is no more than a glorified tax collector. History seems to tell us that -- little by little -- the Mashpee were robbed of everything that was rightfully theirs. Now our governor wants to rob them of the benefits of federal recognition in the name of the taxes they might not pay to Massachusetts.

If gambling is the new buffalo, what should we call Deval Patrick?

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Skinner’s Version of Justice

Following the evidence from Woburn to Mashpee

By Peter Kenney

Federal judges are powerful people. How they conduct themselves and, more importantly, how they direct the trials over which they preside have an enormous effect on all of us. Often we do not see the effect, are not aware that a particular federal judge has done something to affect our lives, but the fact remains that what federal judges do -- what they allow and disallow -- has a definite impact on our everyday lives.

The epitome of judicial reality

Walter J. Skinner, judge in the Boston Federal District court, enjoyed the power and prestige of his office. Having elected not to take Humility 101 during his three years at Harvard Law School, he was, perhaps, perfect for the federal bench. Well known in the Boston legal community, he served as defense counsel for the first Christian Scientist tried in the death of a child (Dorothy Sheridan of Harwich, convicted in 1967 of manslaughter in her daughter's death). He was friendly with many members of New England's largest law firm -- Hale and Dorr -- who regularly appeared in his court. Skinner was, in short, the epitome of judicial reality in Boston. It is easy for judges to appear humorous and good-natured since they are too powerful to have any fear of the populace and, on the federal bench, they are untouchable except by congress.

Judging the judge

As a way of deciding if this judge might have been more of an advocate for those who oppose the Mashpee Land Claims Suit of 1976, let's look at some facts from his handling of the suit brought by residents of Woburn against W. R. Grace and Beatrice foods in 1978. The case involved the deaths of children from leukemia, which their parents claimed resulted from the poisoning of the water supply by the dumping of toxic chemicals and chemical waste into the ground by the two defendant firms.

It was charged at the time that Beatrice Foods and the operator of a tannery it owned in Woburn committed perjury in order to escape blame. After Skinner's skillfully manipulated federal jury handed the plaintiffs a humiliating defeat, it was proven beyond a doubt that the perjury had happened. Walter J. Skinner refused plaintiffs’ motion for a new trial. This is a matter of historic and documented fact. The perjury was undeniable, even admitted, but Skinner did not feel a new trial was warranted.

Skinner also made claims from the bench as to his opinion of what state and federal authorities had to say about the likelihood that certain forms of pollution had causative roles in disease, such as leukemia. He disallowed evidence submitted by the plaintiffs which they claimed established a clear link between the dumping of toxins and chemicals into the ground and the deaths of their children. He also threw out the testimony of a string of plaintiffs’ witnesses, technical experts, and refused to allow one particular scientist's damaging evidence to be heard at all.

Skinner said that he could not allow testimony validating the plaintiffs’ cause-and-effect theory because the federal and state governments had not already ruled similarly. Not many years after this trial both the federal government and the Commonwealth of Massachusetts finally overcame the blindness that had been subsidized by industry lobbyists for decades and made rulings that directly contradicted Skinner.

The dumping of the same substances into the water table that Grace and Beatrice had dumped in Woburn was not to be allowed and was deemed to be a cause of cancer in humans. Perhaps Skinner should have studied his chemistry somewhere other than Harvard Law School.

It’s a small world

Believing as I do in the small world theory, that if one just keeps one's mouth closed and ears and eyes open incredible stories will come his/her way, I encountered just one such story in the mid 1990s in the form of an immigrant Hungarian Ph.D. in chemistry who was teaching at a woman's college in the Pioneer Valley of Massachusetts. Michael, as he was introduced to me, had come to this country from then Soviet Hungary to teach and to do research in chemistry unfettered by government controls. He could have become a key player in the Woburn case.

Through a chain of coincidental meetings and chance encounters he was introduced to another expert witness working for the plaintiffs. These two men talked about the case and Michael thought he saw a way to prove what had or had not happened to the groundwater in Woburn. He went to work for the plaintiffs in his laboratory and painstakingly reproduced the various chemical chain reactions that would have occurred in Woburn's soil and water if Grace and Beatrice had actually been dumping the substances they were charged with dumping.

Justice -- available by appointment only

What he proved was stunning. He was able to replicate in a laboratory the formation of various chemical compounds -- all toxic -- using the same chemistry as that found in Woburn. He produced a gelatinous goo identical to what had been excavated in Woburn and showed conclusively how this goo, a combination of soil, water and the many waste substances dumped from the old tanneries and chemical facilities, had leached toxins into the groundwater and identified the specific elements that found their way into the groundwater. He identified known carcinogens. Michael had cracked the case beyond any doubt.

Walter J. Skinner would not allow any of this work to be introduced into evidence and would not allow Michael to testify. Skinner found a convenient deadline of some sort, which he declared prohibited further submissions of evidence. Apparently justice in Skinner's courtroom was available by appointment only.

Both W. R. Grace and Beatrice knew what had happened in Woburn and both had lied about it in federal court. It is clear that they held no fear of Walter Skinner, that they were confident in his brand of justice. Grace did settle for a low-ball amount with the Woburn plaintiffs, even though Skinner had delivered them a favorable jury verdict. Why did they pay anything? Was it conscience or were they afraid that Skinner might someday tell another lawyer during a chance encounter, "I made a lot of mistakes in that case."?

I asked Michael in very clear language if he believed that Grace and Beatrice had poisoned the water in Woburn and if he believed that the children who died of leukemia had been their victims. He hesitated not one instant and said angrily, "They killed those kids." He told me how he had developed his laboratory method, how he had waited for the reactions to occur, how he had recorded every tiny detail of his work, how Skinner knew his work was progressing, of the stupid and ill-informed comments Skinner had made about technical matters and of how he wept when he learned that his work would not be admitted into evidence. He told me with a defiant fire in his eyes that he had proven exactly what had happened in the ground at Woburn and he spoke of how he thought he had left such so-called justice behind when he fled the Soviet Union.

Any one who would say that Walter J. Skinner did not do some very bad things while he was a federal judge just does not know the whole story. There are parents in Woburn who can tell the story of Skinner's version of justice and there are many in Mashpee also.

Read the previous reorts on Judge Skinner below;

• Mashpee: On the Edge of the Abyss
• Judge in Mashpee Land Case Admits Making Mistakes

 

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Mashpee: On the Edge of the Abyss

The continuing drama of sovereignty and land claims
Mashpee-Wampanoag land-claim issue is far from settled

By Peter Kenney

Last fall, the Town of Mashpee was unable to present to its special town meeting a completed agreement between the town and the Mashpee Wampanoag tribe.

This agreement, if ratified by town meeting, would have clarified and resolved the various issues confronting the two players in the continuing drama of Indian sovereignty and Wampanoag land claims. Many people in Mashpee, some of them in town hall, still worry that the tribe might attempt to claim land in town.

Agreement hopes dashed by Marshall imbroglio
At the time, the failure to present an agreement to town meeting was generally thought to be caused by the storm of publicity surrounding Mashpee Wampanoag Tribal Council Chairman Glenn Marshall. He was forced out of office when news broke on CapeCodToday.com that he had lied about his military record and had been convicted of rape twenty years earlier. News of an ongoing federal investigation into Marshall and his handling of tribal affairs did not help things to go smoothly; nor did the man who automatically succeeded Marshall as chairman of the Tribal Council, Shawn Hendricks, a shellfisherman and landscaper. His obvious lack of polish can only be a detriment to the tribe as it strives to make progress using its newly won federal recognition as a tool to acquire grants and other assistance for the tribe.

Hendricks was Glenn Marshall's chosen right-hand man. Burly, with tattooed arms and a scowl on his face when he sees adversaries, he is well known for making single-finger gestures at people who oppose him as drives through town in his shiny, black luxury SUV. While it is true that, under Marshall, the tribe had made the final successful push for recognition, it may also be true that Marshall accomplished the grant of recognition by making a deal with the devil -- outside "investors" who poured as much as $15 million into the effort in return for concessions contained in a contract tribe members have never been allowed to see.

Bureau of Indian Affairs refused the application by eleven tribes to place land in trust. Federal trust in jeopardy
Now, with federal recognition in hand, the tribe, using investors' money, has purchased over five hundred acres of land in Middleboro with the intention of placing it in federal trust and building a lavish gambling complex there. However, in January of this year the U.S. Department of Interior, through the Bureau of Indian Affairs (BIA), refused application by eleven tribes to place land in trust. This has brought to a halt casino plans in New York state, Wisconsin, and virtually every region of the country. In Wisconsin, Sol Kirzner and Len Wolman -- principal backers of the Wampanoag effort -- backed the application submitted by the Stockbridge band. Unless they are allowed to place their land into federal trust, the Wampanoags will not be able to reap any of the rewards associated with Indian gambling.

The Town of Mashpee has added a new element of drama to the proceedings. The town, faced with a deadline for making comments to the BIA favoring or opposing the Wampanoag petition, has retained a powerful Washington, D. C., law firm and, through that firm, has sent a twenty-eight page letter of opposition, dated January 25 of this year. While the town claims its objection is to the possibility of gambling operations by the tribe in Mashpee and to the possibility of further Wampanoag land claims in town, the opposition it has stated also includes the Middleboro property because it is a statement of opposition to the tribe's entire application. The Wampanoags included in their land trust petition the fifty-nine acres already owned in Mashpee and used as the site for the tribal council headquarters, the annual powwow and other tribal functions. Mashpee's opposition could have far-reaching effects on the tribe's plans for gambling as well as on its existing presence in town.

Federal recognition of an Indian tribe as a sovereign entity is supposed to be unconditional. It appears that the town of Mashpee wants to impose conditions on what is, otherwise, an inviolate grant of independence and freedom.

Mashpee officials continue to demand that the tribe agree never to pursue land claims.Thanks to the Commonwealth
For all their statements that the age-old issue of Wampanoag land claims are long settled, Mashpee officials continue to demand that the tribe agree, in a binding way, never to pursue any further land claims against public or private property. More than a few within the tribe find this insulting and arrogant and point out that a 1790 federal law should have prevented the wholesale co-opting of Indian lands by non-Indian citizens and the town itself.

The reason is that the Commonwealth of Massachusetts itself acted unlawfully in 1870 by permitting the incorporation of the Town of Mashpee, forever destroying aboriginal title to and use of the area's lands and coastal waters. Virtually every map of the Cape Cod region prior to 1870 identified what is now the Town of Mashpee as Indian Territory, unincorporated and not subject to any non-Indian governance. At the time of the 1870 incorporation, furious political maneuvering deleted from the new Town of Mashpee certain areas of East Falmouth and Sandwich whose residents apparently did not want to be part of what, essentially, became an Indian town. For example, the "Mashpee District" originally extended to the Mashpee side of the Childs River.
Chief Lopes has reiterated the tribe's lack of desire to threaten private property.
A good-neighbor guarantee
During the famous Mashpee Land Claims suit filed in 1976, the presiding federal judge, Walter J. Skinner, allowed an amendment to the suit that stated clearly that the Wampanoags would not target any private property for reclamation. Chief Vernon “Silent Drum” Lopes has reiterated the tribe's lack of desire to threaten private property. He has said that the tribe wants to be good neighbors with all. Yet the town still demands a guarantee that the Wampanoag, on whose land the town has grown and prospered while the indigenous people have been made trespassers in their own forests and coastal waters, will not seek to claim even small amounts of vacant public land for their own uses.

One of Judge Skinner's rulings during the original trial stands in stark opposition to federal law.Land-claim issue is far from settled
It is clear to even a casual observer that the Mashpee Land Claims issue is far from settled. Many Wampanoags and others note that one of Judge Skinner's rulings during the original trial stands in stark opposition to federal law: Skinner declared that the Mashpee Land Claim suit was to be considered an action by a group claiming to be the Mashpee Wampanoag tribe. However, Wampanoag land claims appear within the context of established and settled federal law to apply to "descendants" of the aboriginal people of the area -- to individuals who can demonstrate their ancestry as being of the Mashpee Wampanoags. In theory this means that any one Wampanoag descendant can file a land claim action.

Events in Mashpee tell us that such openness may be a long way off.Opening up a bizarre and secretive process
How then can the Town of Mashpee hope to negotiate any satisfactory agreement with the Mashpee Wampanoag Tribal Council? It would appear that the only way to achieve such an agreement would be for the Tribal Council to open its bizarre and secretive process to the entire tribe so, that by a democratic vote on the issue, the actual Wampanoag Indians, one and all and individually, can make their will known.

Recent events in Mashpee tell us that such openness may be a long way off. We can certainly see that open government is not something Shawn Hendricks or his masters -- Ferson, McDermott, Kirzner and Wolman -- want. Instead of shunning tribe members who demand access to the records of their own affairs and instead of allowing outsiders to run their tribe's future, perhaps the Mashpee Wampanoag should fire the outsiders who have corrupted their culture and sold their future, elect a Tribal Council that responds to members and hire some real fire eaters -- lawyers of the type who can gain for the tribe and all Wampanoag descendants what is rightfully theirs. Let the Kirzners and Wolmans of the world then deal with a strong, healthy, self-determined tribe for the billions they so obviously crave.

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Judge in Mashpee Land Case Admits Making Mistakes

Land claim could be far from a dead issue

By Peter Kenney

It should all have been settled in 1790, the year when President George Washington signed into law the Trade and Non-Intercourse Act. That is the federal law that requires congressional approval for any sale or transfer of Indian lands. By 1976, sales of Indian land in the town of Mashpee and surrounding towns as well as the taking of Indian lands for various public purposes had left the Mashpee Wampanoag tribe without the very thing that is most visible in the identity of a tribe -- land.

The legal equivalent of civil war

So, in 1976 a group of Mashpee Wampanoags brought a suit in U.S. District Court in Boston to recover thousands of acres of land they claimed were unlawfully taken from them by various means. What followed was the legal equivalent of civil war. Three men trained at Harvard Law School were the combatants: Judge Walter J. Skinner; Atty. James St. Clair (of Nixon/Watergate fame) representing the town of Mashpee; and Atty. Lawrence Shubow representing the tribe until he recused himself to accept a nomination to the Massachusetts District Court.

"YOU KNOW, I MADE A LOT OF MISTAKES IN THAT MASHPEE CASE."
Walter J. Skinner, Judge.Both Skinner and St. Clair have since died. Shubow is retired, living in Mashpee and not well enough to be interviewed further on this matter. However, he and I did speak by telephone last October and what he had to say is certain to cause someone some difficulty. I still have the notes of our conversation. If what Shubow said is true, the original Mashpee Land Claim suit could be far from a dead issue. When I asked him to repeat what he had told me he did so without hesitation.

Skinner’s skillful manipulation

Skinner skillfully manipulated the trial by setting six benchmarks in history and telling the jury that in order for them to ratify the tribe's land claims they must find that the Mashpee Wampanoags had existed as a tribe at all six of those dates. According to the jury, the tribe failed on at least two of those dates. After losing the original suit the Wampanoags appealed and lost again. A final appeal to the United States Supreme Court ended moot when the court declined even to hear the case.

There are three problems with all this:

1.    Shubow told me: "I ran into Skinner downtown at lunch one day while the appeal was underway. We talked about some old cases and he said to me, 'You know, I made a lot of mistakes in that Mashpee case.'"

2.    According to federal law, it is not necessary for a recognized tribe to bring a land claim action. That right applies also to "descendants" of Indian tribe members. This may well be one of Skinner's admitted mistakes.

3.    Shubow also told me: "After the trial Skinner said that the tribe would not be prevented from bringing the case again if the federal government ever recognized them."

It has always struck me as odd that, on the one hand, the Town of Mashpee says the land claims case is settled but, on the other, wants a firm agreement by the Wampanoag tribe not to pursue any new land claims. A tribe whose people were once able to roam freely throughout their ancestral lands now have legal claim to only fifty or so acres and even have to pay to bury their tribal dead in the tribe's ancient cemetery -- now owned by the town. Add to this Shubow's statements about Skinner's mistakes and the judge's opinion that federal recognition would allow the tribe to sue again and suddenly Mashpee's nervousness becomes comprehensible.

Think about it: "YOU KNOW, I MADE A LOT OF MISTAKES IN THAT MASHPEE CASE."
Walter J. Skinner, Judge.

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MMS DEIS DOA – Disaster on Arrival

MMS DEIS DOA – Disaster on Arrival

By Peter Kenney

The long-awaited Draft Environmental Impact Statement (DEIS) on the Cape Wind application to place 130 wind turbines in the waters of Nantucket Sound is finally out. Written by the United States Department of Interior's Minerals Management Service (MMS), it endorses the project.

The report totals 2,000 pages of text, maps, and charts/graphs. It contains five appendices where the real substance of the report is to be found. After wading through this document completely three times -- and in sections many more -- I can only say it is embarrassing that such a document is actually credited to a U.S. government agency.

Whether one supports or opposes the Cape Wind proposal this DEIS is a disaster. More important, for those who know little of the Cape Wind proposal, or of the history of the project's public comment and government review, the MMS does not present a compellingly complete analysis of the Cape Wind proposal.

Although the MMS DEIS seems to clear the way for Cape Wind to build its Nantucket Sound wind farm, CapeCodToday.com will be printing remarks made by experts in the wind-energy/finance fields that identify many serious flaws in the DEIS and in the methods and information used to paint a healthy picture of the Cape Wind project. MMS's own peer review raises serious questions about how MMS arrived at the conclusions their report contains.

When down is up

Let us start with Appendix F, which deals with the economics of the project. It is authored by Robert S. D. Mense of the Economics Division of the MMS and is dated May 25, 2007. (The report was released in January of 2008.)

Mense begins by telling how he developed a Microsoft cash-flow spreadsheet to accomplish his economic analysis. In layman's terms, Appendix F is intended to be a thorough cost/benefit analysis. It should be noted that the project's proponent, Jim Gordon of Boston, said early and often in his presentations in support of the wind farm that one of the main reasons for supporting it was the fact that it would save money for electric consumers in New England.

His original claim was that Cape Wind would save $25 million across New England, or twelve cents per month per household. As the permit review process wore on, Gordon's costs predictably rose until now we see a very different forecast. When it became clear two or three years ago that Cape Wind's cost escalation had cancelled out its production savings, the new Cape Wind position became the "downward pressure" the wind farm would exert on regional and local energy prices.

Page one of Appendix F in the MMS report says in its fourth paragraph: "Economic performance was measured in terms of cost of energy…" This is a devastating statement in light of the fact that, on page 17 of Appendix F, Mense writes that Cape Wind electricity will cost 12.2 cents per kilowatt hour  (KWH) but that the average price for a KWH of electricity from the New England grid for January of 2007 was 5.87 cents. In other words, Cape Wind's electricity will cost more than twice what it claims to be able to compete with. In order to read this cost data one must go to the last full page of text in Appendix F.

The simple fact is that, even according to MMS, Cape Wind's electricity will raise New England electric rates.

How is that for "downward pressure?"
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A Jury of Your Peers 

What happens when your own experts say you are wrong?

By Peter Kenney

Jim Gordon, head of Cape Wind associates, wants to erect 130 wind turbines on Horseshoe Shoals in Nantucket Sound. He tells us that these 440-foot tall industrial power plants will be good for all of us and that the project is economically viable as well as environmentally beneficial. However, the recently released federal report touted by Cape Wind as proving its contentions, takes serious issue with the economics of the project as presented by Cape Wind. The two objections are that Gordon's financing projections are both unrealistic and not fully supported by hard facts and that his projected costs far exceed his projected income.

The expert’s view

Appendix F of the Minerals Management Service (MMS) Draft Environmental Impact Statement (DEIS) on the Cape Wind application could keep a few people busy for some time wrestling with its mass of information. BCR has been grappling with this mass one-on-one. Most interesting to us were the comments made by two experts MMS hired to conduct a peer review of the draft before it was made public.

The complete text of two peer review reports is included in Appendix F. BCR is presenting here an overview of the several dozen pages of Appendix F. This section of the MMS DEIS is densely packed with information and analysis; it is definitely served “straight up.” So, this BCR (part three) will look at how the peer review conducted by Lessly Goudarzi, CEO of OnLocation, Inc./Energy Systems Consulting (Herndon, Virginia) views the MMS DEIS.

An overall impression of the Goudarzi review is that Cape Wind has not provided sufficient information to MMS, has probably gilded the lily with aggressively optimistic projections of costs and profits and that MMS has not done as thorough a review as it could have and should have.

…has deficiencies and should be revisited

The last paragraph on page one of the report summary says, "As discussed in more detail in the conclusions to this review, the evaluation by MMS using the model and its assumptions has deficiencies and should be revisited. At a minimum, after fuller disclosure of the underlying data sources and a treatment of the relative risks associated with each site are recommended."

… purposely avoids observing this obstacle

Goudarzi states that Cape Wind's estimated production cost will be double the current market paid for electricity and, "...this is after the full benefit of tax and RPS incentives..." This, the review states, makes the likelihood of Gordon getting long-term power contracts "low." Throughout the economic evaluation of the project, though, MMS and its experts point out the fact that Gordon needs to have long-term contracts to sell his electricity in order to find lenders and investors, let alone to cover his costs. Then comes the coup de grace: "The analysis apparently purposely avoids observing this obstacle." In other words, the numbers and methods do not work. This is clear to any sensible person. But the MMS has avoided dealing with this issue in the correct way. In fact, they simply ignore it.

Other tidbits from this review:

1.    "References to the Energy Information Administration's Annual Outlook (AEO) are confusing." (p.3)

2.     "First, the math is confusing. How do you arrive at a weighted average cost of capital that is lower than either of the component costs (i.e., 5.24% compared to 7.0% and 10.5%)? (p.3)

3.     "Again, the target values appear on the low end for this type of project." (p. 4 speaking of Gordon's debt projections)

4.     "Similarly, there is no consideration for the potential impact of a severe storm on the operations of the period over a 15 year debt repayment period. These types of stress tests are standard in any risk assessment of the project and would be expected of any lending institution with a risk management program. To not discuss these exposures and the potential differences across the sites leaves the assessment incomplete at best." (pp 4 - 5)

5.      "The level of risks associated with this project at those investment levels should not be overlooked." (p. 5)

It’s just not clear

On page 6 Goudarzi asks, "Are the conclusions reached logical and supported by the evidence and analysis provided?" The answer given in this peer review is chilling. "It is not clear what the conclusion of the analysis is supposed to be." This is not a good sign for the MMS. In fact, it calls into question the validity of their entire report, of the very notion that anyone knows enough about the issues involved in the Cape Wind project even to think about granting approval for it. If one reduces the tens of thousands of pages of review and application documents and the past seven years of public comment and government review to a simple statement about this project, here is what we might say:

Jim Gordon says he can build and operate a 130-unit wind farm on Nantucket Shoals that will generate a reliable supply of clean energy using no fossil fuels and will save everyone in New England money and will pay his costs and yield a profit.

To prove this he has submitted reams of information to the MMS including assertions by an unnamed lender. Gordon's debt-to-equity ratio seems too risky to outside observers and his costs are projected to exceed his income, but he sticks to his claims of profitability. One of the two experts hired by MMS to evaluate the economics of Gordon's proposal and the quality of work MMS itself put into its evaluation closes a seven-page peer review with this comment:

"Support for the selection of the financial assumptions appears to rely extensively on an unnamed investment bank. If this bank were to provide an irrevocable set of terms consistent with these assumptions, then perhaps this is adequate. Absent that, a greater investigation into the financing of these kinds of projects would seem a key improvement to the analysis."

Appendix F gets an F

This very expensive term paper appears to get a failing grade from people paid to evaluate it. Since Jim Gordon has assured one and all that the Cape Wind project is economically sound, and since leading experts in such matters say differently, why should anyone even consider allowing this project to go forward? While Gordon's preferred location is in Nantucket Sound, his plan appears very unsound. This first of two peer reviews says, in a diplomatic way, that the MMS report is full of holes, unanswered questions and poor methodology. In part four, BCR will look at yet another critical review of the MMS report.
_________

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When news was news

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Pistol-packin’ Peter hoisted by his own petard

Truro’s Town Fool
Peter Manso, meet Bartley-Fox
 
By Peter Kenney

I have never met Peter Manso. But I feel there is good reason for me to dislike him. And I do. Five years ago I read his book, “Ptown: Art, Sex, and Money on the Outer Cape.” At the time I was working as a carpenter on a house in Chatham. Among the thirty or so other folks working there were three who hailed from Truro and Provincetown. They were all very familiar with and well known in Provincetown. One thing in Manso’s book made them just plain angry: his description of an old timer -- a genuine local character -- as the “town drunk.” They all knew the man well and had known him for years. He died shortly after this incident and received a touching bit of press coverage, beyond just an obituary.

What did he ever do to you?
The common opinion seemed to be in two parts: first, it was observed that there could be no such thing as THE town drunk in Provincetown. A town drunk (out of a few or even many, perhaps) but not THE town drunk. Better yet, Manso should have left out any mention of this old man’s drinking and, if he insisted on naming him at all, he should have spoken of how gentle and well received he had been for all of his eighty-plus years. But no, Manso had to be mean, catty, superior.

The second opinion was that Manso had defamed one of the reigning characters of Provincetown, a man who led his own life his own way without harming anyone but himself and who was known as an outgoing, friendly, entertaining and welcome sort. Those who knew this old chap felt that his passing marked yet another sign that old Provincetown was becoming merely a shadowy memory against the harsh light of the new and newly rich Provincetown filled with outsiders, such as Manso. My three friends who knew Manso’s target all asked the same question, “What did that old man ever do to that @#%#$@ Peter Manso?”

A developing dislike
That is one reason I developed a dislike for Manso. Another is the way he treated people, generally, in his book. One person in particular is a woman I have known for some time whose principal fault in Manso’s eyes seems to be that she generously endows causes and organizations she likes. Manso flatly accuses her of using her wealth to buy her way into Provincetown’s power elite. In fact, this woman has been living in Provincetown for more than two decades while Manso lives in Truro. She has served in a number of appointed positions in various organizations, both governmental and private, which have profound influence on the entire Cape. I have yet to see the almighty Peter Manso pour dozens of hours per week, even one or two, into some worthwhile volunteer activity. I do not like Peter Manso. His book planted in me the notion that he is arrogant, snobby -- perhaps homophobic -- and definitely not to be trusted. Worst of all, he is just plain mean.

Peter’s packin’
Now we learn that he is hypocritical – and in a way dangerous to those around him. Manso has been found to have three firearms in his Truro house. But he is not properly licensed to own any and has not been since the year 2000. Two of the weapons are rifles and one is a five-shot Smith & Wesson .38 caliber revolver with a two-inch barrel.

One of the rifles -- a .22 caliber Browning -- was found loaded but neither trigger-locked nor stored in an approved storage locker. The other was an AR-15, the semi-automatic version of the military’s M-16. It is a fearsome weapon. Not only has Manso allegedly been illegally in possession of deadly weapons, he has done so, allegedly, in an unsafe manner and in so doing has posed a hidden risk to his neighbors, indeed to all of us.

What was he thinking?
This is the Peter Manso who has written extensively in any journal that will print his words, and has been interviewed ad nauseam on various television programs about the Christa Worthington murder case in Truro. From the start, Manso has been hypercritical of everyone involved in the case, both in law enforcement and the judiciary. His clearly superior mind found endless flaws in the way in which the case was investigated.

He lambasted the police, the District Attorney, the jury and the judge...the entire criminal justice and court system here on Cape Cod, where he kept three unregistered weapons without a permit, one loaded, in an empty house. Manso’s proclaimed understanding of criminal law, investigative and prosecutorial procedure and court process apparently stopped short of informing him about firearms safety practices and law.

Although Peter Manso's house in Truro has a working alarm system, the nature of Truro in the off-season is such that a quick smash-and-grab burglary could easily have caused these three weapons to go missing...in the hands of criminals. And then what? How many people would have become subjects for other shabby books about murder if Manso’s illegal guns had made it to the streets?

Divine justice
The justice in all this is simply divine. Now Manso will experience firsthand the effectiveness of all those same law enforcement officers he so arrogantly dismissed as fools and incompetents. He will be afforded the opportunity of facing the public as a defendant this time, not a self-appointed court overseer, as he pleads to three counts of violating the Bartley-Fox Act, each carrying a one-year jail sentence. There could, and probably should be other charges as well, such as failure to secure his weapons properly.

Book ‘em, Danno
I personally hope the judge throws the book at him...or maybe an empty book so that Manso can spend a few years in jail applying his superior intellect to the task of telling us what is wrong with our penal system. Who knows? Possibly a bestseller?

I never liked Peter Manso. Perhaps it is true that Provincetown cannot have just one town drunk. But surely Truro can have no greater town fool than Peter Manso. His guns should have been locked up...but maybe locking him up is a good second choice.

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A black sheep among the Kennedys?

A Black Sheep Among the Kennedy Clan
Or a white one among all the rest?

By Peter Kenney

Has anyone noticed the 40-year-old correspondent on Fox news with the familiar hooded eyes? He is the youngest child of Robert and Ethel Kennedy, Douglas Harriman Kennedy. After graduating Brown University Kennedy worked as a print journalist in New York City. He was highly regarded for his ability to break stories, once discovering the body of a murder victim before the police did. He also covered health care and other stories with great effectiveness.

Ancestral versus employer politics 

Employed by Fox since 1996 Kennedy has covered three presidential races and has become a familiar face across the country. It is interesting, however, to think of a Kennedy working for and rubbing intellectual elbows with the likes of Rupert Murdoch, Roger Ailes and Oliver North. The network’s oft-repeated slogan about being fair and balanced fools no one, not even people at Fox. This is about as right wing a press operation as anything since William F. Buckley’s National Review, or perhaps the John Birch Society newsletter. Kennedy appears to have retained his unbiased journalist’s eye but the contrast between his ancestral politics and those of his current employer is, to say the least, striking.

Breaching the fortress

I was recently asked if I thought of Douglas Kennedy as the black sheep of the Kennedy family. Then, before I could answer, this same person chuckled and observed, “Maybe he is the white sheep among all those black ones.” Another Kennedy, Maria Shriver, is also a working television journalist and the wife of California’s Republican governor, Arnold Schwarzenegger. It would appear that even the strongest of Irish Catholic Democrat fortresses can be breached.

(Above image from FOXNEWS.COM) 

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A Christmas Menu for the Ages

A feast not for the faint of heart

By Peter Kenney

While some people would gladly run over a helpless child in order to get to a stranded whale or seal, we take a more enlightened view of the issue of threatened and endangered species. Think about it; if we pass up this opportunity during the holiday feasting time to savor some of the more rarely available delicacies, we may lose the chance forever of savoring their mouth-watering flavors. After all, extinction is permanent. Good friends, vintage wine and a delightful selection of exotic treats...this is the spirit of Christmas. Of course, here on the Cape the friends are likely to be as aged as the wines.

Our festive holiday menu
This year's extravagant star of the appetizer tray is a stunning Bengal Pate (tiger of course) served on warm brochettes.

For the soup course we offer an extraordinary Eastern Box Turtle soup, somewhat lighter than its Ridley cousin. This delicate clear soup is dense with chunks of the last available turtle and is accompanied by pan-fried snail darters floating on the broth. For those whose pallets can stand richer fare we offer harbor seal bisque with tender bits of seal flipper skimming the surface. This is a creamy bisque made all the richer by the addition of rendered Right Whale blubber.

The salad course features several different types of lettuce, whole cranberries and sautéed owl filets, all tossed in a delicate Caesar salad dressing. Owls’ eggs are used in the dressing. Snowy owls are best but any owl will do. Hard-boiled eggs from the piping plover are shredded and used as garnish on this superb salad.

Next comes a light poultry course: each person will be served two (because they are so small) complete roasted piping hot plovers stuffed with abalone and hatchling duckling mousse.

The palate is cleansed after the poultry course with an outstanding little wine from the George W. Bush ranch in Texas, a sassy little 2006 vintage -- Chateau Rattlesnake. This is accompanied by a delightful little nosh of Bear Tartar (raw, ground polar Bear).

The fish course is an incredible mélange of undersized Nantucket Bay scallops sautéed in plover fat together with sub-juvenile Cape oysters  and served  with tiny squares of toasted bred with a Mousse of  half-pound albino Maine lobster. A pungent little chilled Thunderbird or robust muscatel will complete this course admirably. Absinthe would also work.

On to the main course
Now for the main course, a selection of various meats and fish offerings: Medallions of Blue Whale in a cream reduction sauce with peppercorns and dill; breast of bald eagle with a cranberry vinaigrette, or standing rib roast of mountain lion au jus. For those with Christmas-sized appetites there will be a special offering this year, flank of giant panda, pit roasted over eucalyptus wood. This course is served with choice of mashed or pan roasted potato, assorted mushrooms, onions, turnips, squash and asparagus.

Recommended wines for this course are your choice of anything full bodied, red and expensive. Mountain rye or Tennessee white lightening would also be a fitting accompaniment, particularly for the Giant Panda flank.

A treat for the sweet tooth
Beyond question the high point of this entire meal will be the desert. Desert you ask? Yes, desert. In honor of our late friend and fellow gourmand, Charles Belcher, fourth Duke of Up Chuck, nephew of the beloved Mr. Creosote, we have spared no expense to offer a splendid Crème Brule. This magnificent and once-in-a-lifetime extravagance is made of carefully select eggs from the Yellowstone National Park nests of the great American bald eagle. Being from birds raised inside the protective boundaries of the great national park at Yellowstone, these eggs are sure to be of the best quality and taste ever served at our Christmas gala. And, of course, serving them in this fashion more or less assures that they will never be available again as Crème Brule. Madagascar vanilla from the last of the Madagascar vanilla beans makes these Crèmes compelling taste sensations. Each serving will be covered in scorched sugar from the last stores of pre-Castro Cuban White.

A fully stocked humidor
This year the Cape Christmas Gourmand Society is proud to offer the most rare of after-dinner smoking treats, pre-Castro cigars once stored in the New York location of Alfred Dunhill & Co. in the personal humidor of President John Fitzgerald Kennedy. Mr. Kennedy had the presence of mind not to impose the Cuban embargo that we still maintain until he received word that his humidor was fully stocked.

Location: TBA
This year's Fiasco Fantastique will, as always, be held in a location to be disclosed on Christmas morning, after the Fish and Wildlife Service personnel and the International Fund for Animal Welfare have lost interest in surveilling us. That usually happens around 10 a.m. This year's special guest will be Julia Child, en ghoul. Each guest will leave with an original Nantucket basket filled with reindeer sandwiches for the ride home and the ladies will each receive a little trinket made with Conflict Diamonds.

Merry Christmas, one and all!

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