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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 -
Tribal Supreme Court Project -

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)

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