indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Appeals court upholds legality of land-into-trust process
Wednesday, September 14, 2005

For the second time in a year, a federal appeals court on Tuesday soundly rejected a state's challenge to the legality of the land-into-trust process.

In a closely-watched case, the state of Rhode Island tried to invalidate the Interior Department's ability to acquire land for tribes and individual Indians. The state claimed the Indian Reorganization Act of 1934, the law that created the land-into-trust process, was unconstitutional because it places no standards and no limits on the federal government.

The state brought the case in its attempt to block the Narragansett Tribe from placing 31 acres in trust for a housing project. The state said the tribe couldn't follow the land-into-trust process because it wasn't federally recognized at the time of the IRA's passage in 1934. The state also said the tribe's land claims settlement act barred the acquisition of new lands.

But the 1st Circuit Court of Appeals rejected every one of the state's arguments. In a unanimous decision, a three-judge panel said the IRA doesn't violate the U.S. Constitution because it provides standards for acquiring trust lands under the "discretion" of the Interior Department.

The judges also held the Narragansett Tribe can follow the IRA "regardless of the status of its acknowledgment in 1934." The court said the Interior Department's interpretation of the IRA "should be accorded particular deference."

"Thus, to change this reading of the statute here would impact scores of trusts created for the benefit of Indians over the last 70 years," Judge Juan R. Torruella wrote for the majority.

The court further concluded that the Rhode Island Indian Claims Settlement Act of 1978 doesn't bar the Interior Department from taking land into trust for the Narragansett Tribe. The law extinguished all aboriginal title in the state but doesn't preclude the tribe from expanding the 1,800-acre reservation created by the settlement, the court said.

By a 2-1 vote, however, the judges disagreed on whether newly acquired lands should be subject to the criminal and civil jurisdiction of the state. Judge Jeffrey R. Howard, in a short dissent, said Rhode Island is entitled to exercise some sovereignty over all land in the state regardless of its trust status.

"In the circumstances of this case, holding that Rhode Island is divested of jurisdiction by the [Interior] Secretary taking into trust the adjacent parcel that was part of the original disputed lands upsets the fairly expressed expectations of the parties," he wrote. Otherwise, he agreed with the court's opinion.

With the decision, the 1st Circuit joins the 2nd Circuit in rejecting state attempts to limit the rights of New England tribes. In a dispute involving the Mashantucket Pequot Tribal Nation, officials in Connecticut unsuccessfully raised many of the same arguments presented in the Narragansett case. The U.S. Supreme Court later refused to hear the case.

The 1st Circuit also joins the 10th Circuit in rejecting constitutional challenges to the IRA. The Native American Rights Fund and the National Congress of American Indians participated in the Narragansett case in hopes of preserving tribal rights under the land-into-trust process and out of concern it might go before the Supreme Court.

The constitutional issue has been up in the air ever since the state of South Dakota raised it over 10 years ago in a case involving the Lower Brule Sioux Tribe. The 8th Circuit, in an infamous opinion, held that the IRA was illegal because "it would permit the [Interior] Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present."

The Clinton administration appealed to the Supreme Court but the justices, in an unusual move, accepted the case, vacated the 8th Circuit opinion and returned it for further consideration. But since no decision was published by the high court, the state was free to raise the constitutional questions again.

Just one week ago, on September 6, the 8th Circuit answered the doubts and upheld the legality of the IRA. "We conclude that the purposes evident in the whole of the IRA and its legislative history sufficiently narrow the delegation and guide the [Interior] Secretary’s discretion in deciding when to take land into trust," Judge Roger Leland Wollman wrote for the majority.

George Skibine, the acting deputy assistant secretary for policy and economic development at the Bureau of Indian Affairs, addressed the debate during a gaming conference in Las Vegas yesterday. He noted that court rulings on the constitutional issue were finally coming in after years of litigation.

As a result of the new decisions, "we hope these sort of challenges will be put to rest," Skibine said during a land-into-trust panel at the Global Gaming Expo.

The opinion issued yesterday by the 1st Circuit was based on a rehearing of the case. In February 2005, the same panel of three judges had reached the same conclusion regarding the IRA and the Narragansett Tribe's ability to follow the land-into-trust process but didn't answer the civil and criminal jurisdiction question.

Both times, the panel refused to force the Interior Department to consider that the Narragansett Tribe might use the 31 acres for a casino.

"There is no evidence that the Tribe intended to use the parcel for anything other than tribal housing, as determined by the BIA," the court wrote yesterday.

The state of Rhode Island could ask the full panel of judges on the 1st Circuit to rehear the case. Or it could seek Supreme Court review, a step that is likely in the 8th Circuit case involving the state of South Dakota and the Lower Brule Sioux Tribe.

1st Circuit Decision:
Carcieri v. Norton (September 13, 2005)

8th Circuit Decision:
South Dakota v. DOI (September 6, 2005)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
Tribal Supreme Court Project - http://www.narf.org/sct/index.html

Related Stories:
Appeals court agrees to rehear sovereignty case (07/11)
Tribal sovereignty must be respected, court rules (05/13)
Appeals court sides with tribe in trust land dispute (02/10)
Court won't rehear challenge to tribal land base (05/21)
Massachusetts court deals blow to tribe's sovereignty (12/10)
R.I. tribe takes smokeshop case to higher court (01/27)
State's raid on tribal land sparks strong reactions (07/16)
R.I. to appeal Narragansett land-into-trust case (10/1)
Judge affirms Narragansett Tribe land-into-trust (9/30)
Court says U.S. can protect tribe's interests (02/04)
Land still in limbo after decade-long fight (10/16)
The day the Supreme Court said no (10/16)

Copyright © 2000-2005 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
White House to host first-ever Native youth conference on July 9 (4/24)
Native Sun News: Northern Cheyenne Tribe fires casino manager (4/24)
Lakota Country Times: Timothy Standing Soldier passes on at 54 (4/24)
Mark Trahant: Invest in our Native youth for long-term success (4/24)
James Giago Davies: True believerism and comic book solutions (4/24)
Brandon Ecoffey: Oglala Sioux Tribe must act on legal marijuana (4/24)
Ed Rice: Cleveland team comes up with excuse for racist mascot (4/24)
White House Blog: Recognizing tribal Climate Action Champions (4/24)
House subcommittee looks at poor conditions at Indian schools (4/24)
Navajo actress was put in darker makeup for Adam Sandler film (4/24)
Eastern Cherokee group plans lawsuit over tribal council raises (4/24)
Column: Commission takes on truth and reconciliation in Maine (4/24)
Senate votes to confirm Loretta Lynch as next attorney general (4/24)
ICT interview with confirmed NIGC Chairman Jonodev Chaudhuri (4/24)
Dave Palermo: Tribes in California assert right to Internet poker (4/24)
Pokagon Band casino remains a concern for Indiana lawmakers (4/24)
Pojoaque Pueblo places casino manager on administrative leave (4/24)
White Earth Nation promotes tribal members in casino positions (4/24)
Native Sun News: Oglala Sioux student vies for Miss Indian World (4/23)
Lakota Country Times: Tribal citizens named to education board (4/23)
Ivan Star: Struggling with the warrior heritage in Indian Country (4/23)
Dana Lone Elk: Lakota people still carry on fight of Crazy Horse (4/23)
Senate Indian Affairs Committee passes bill to renew NAHASDA (4/23)
BIA faces fire over latest reforms to federal recognition process (4/23)
Opinion: First Lady brings truth with remarks about Native youth (4/23)
Incoming leader of Navajo Nation stresses importance of youth (4/23)
Native actors storm off set of Adam Sandler film in New Mexico (4/23)
Marijuana seen as new frontier in tribal economic development (4/23)
Senate approves anti-trafficking measure with tribal provisions (4/23)
Interview with Gyasi Ross about spoken word release Isskootsik (4/23)
Blackfeet Nation launches campaign to ban drilling at sacred site (4/23)
Cherokee Nation celebrates births of first calves from bison herd (4/23)
Burns Paiute Tribe investigates fire that destroyed two bulidings (4/23)
Kaibab Paiute Tribe welcomes designation as 1st dark sky nation (4/23)
University of Minnesota sees surge in Native student enrollment (4/23)
Editorial: Minnesota tribes work together to address treaty rights (4/23)
Editorial: Maine governor fails to treat sovereign tribes as equals (4/23)
Brazil to host inaugural World Indigenous Games this September (4/23)
Prairie Band Potawatomi Nation probes woman's death at casino (4/23)
Tohono O'odham Nation vows defense for off-reservation casino (4/23)
Seminole Tribe talks with lawmakers about Class III casino deal (4/23)
Editorial: State needs assurances from Quapaw Tribe on gaming (4/23)
Native Sun News: Tribes take DOI to task over grizzly bear policy (4/22)
Native Sun News: Lakota rodeo legend Howard Hunter passes on (4/22)
Bill John Baker: Cherokee Nation language programs are working (4/22)
White House Blog: Improving the lives of Native American youth (4/22)
Bob Gough: Indigenous people most affected by climate change (4/22)
Duane Champagne: Indigenous accommodation for colonialism (4/22)
Audio from Senate Indian Affairs Committee on transportation (4/22)
Navajo Nation voters choose Russell Begaye as next president (4/22)
Appeals court sides with Indian inmate in religious rights case (4/22)
Kashia Band interested in timber not marijuana on new lands (4/22)
Kaw Nation to return to ancestral land in Kansas for ceremony (4/22)
Moapa Band to host Further Future music festival next month (4/22)
Lower Elwha Klallam Tribe runs into opposition to fish hatchery (4/22)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.