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Appeals court to rehear land-into-trust dispute
Thursday, December 7, 2006

A federal appeals court this week agreed to reconsider a land-into-trust case that tribes nationwide have been closely watching.

On Tuesday, the 1st Circuit Court of Appeals ordered five judges -- the same ones who ruled on a sovereignty case -- to hear a dispute involving the Narragansett Tribe, the state of Rhode Island and the Interior Department. Oral arguments take place in Boston, Massachusetts, on January 9, 2007.

The court aims to settle some crucial issues for the tribe, whose reservation was created by an act of Congress. In the sovereignty case, the 1st Circuit ruled that all state criminal and civil laws apply on the reservation.

But the tribe submitted a land-into-trust petition for a 31-acre parcel off the reservation. The Bureau of Indian Affairs approved the application, a move that presumably places the site outside the reach of state laws.

And while the BIA's approval only allows the tribe to use the site for housing, the state has raised alarms about the possibility that it could be used for gaming. The tribe has unsuccessfully sought a casino for more than a decade.

The intersection of these key issues -- sovereignty, land-into-trust and gaming -- has tribes across the country extremely interested in the outcome of the case. More than 40 tribes and two organizations representing more than 200 tribes submitted briefs when the case was first heard by the 1st Circuit.

Their views led the 1st Circuit to reject a constitutional challenge to the Indian Reorganization Act, the 1934 law that authorized the BIA to acquire land for tribes. The court joined the 8th Circuit and the 10th Circuit in upholding the legality of Section 5 of the IRA.

In October, the U.S. Supreme Court rejected petitions to review the 8th Circuit and 10th Circuit cases. But the Narragansett dispute raises the land-into-trust issue once again amid Congressional efforts to change the process.

Additionally, the case presents an issue that has not been considered fully by the Supreme Court. The 1st Circuit, by a 2-1 vote, said the state can't exercise jurisdiction over the 31-acre parcel because it sits outside the 1,800-acre reservation created by Congress.

Rhode Island claims the BIA can't acquire new land for the Narragansetts because the tribe is subject to a land claim settlement act. In a dispute between the state of Connecticut and the Mashantucket Pequot Tribal Nation, the 2nd Circuit rejected this argument.

The issue primarily impacts tribes in New England whose land claims were settled by Congress but affects others in Texas and South Carolina who come under similar acts. A handful of states, most notably California, also exercise jurisdiction over Indian Country under Public Law 280.

The complex matters have tied the case up in the 1st Circuit for nearly two years. The first ruling was issued in February 2005 but after a rehearing, another one came in September 2005.

The state then filed a petition for a rehearing before an en banc panel of the 1st Circuit. The panel consists of Chief Judge Michael Boudin, Judge Juan R. Torruella, Judge Bruce M. Selya, Judge Sandra L. Lynch, Judge Kermit V. Lipez, and Judge Jeffrey R. Howard.

In the sovereignty case, Lipez and Torruella dissented and criticized Rhode Island state troopers for raiding the reservation to shut down a tax-free smoke shop. On Tuesday, Torruella objected to scheduling the January 7 hearing on such short notice amid the holiday season.

Howard was the sole dissenter in the September 2005 land-into-trust decision. He said the state should be able to exercise jurisdiction over all Narragansett lands, whether on or off the reservation.

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