Appeals court hears land-into-trust dispute

Wednesday, January 10, 2007  

Congress has created different categories of tribes, some with the right to acquire new trust lands and others without, lawyers from the state of Rhode Island told a federal appeals court on Tuesday.

Tribes in Western states fall into the first category because they were federally recognized when the Indian Reorganization Act was passed in 1934, the court was told. That means they can follow the land-into-trust process that was created by the law, the attorneys said.

"The IRA was designed to eliminate the allotment policy," Joseph S. Larisa Jr., a lawyer for the town of Charlestown, told the 1st Circuit Court of Appeals. The land-into-trust process helps Western tribes recover their lost acreage, he said.

But others fall into a different category, the attorneys argued. By settling a land claim for an 1,800-acre reservation, the Narragansett Tribe gave up its right to acquire any new trust properties, they said.

"The experience in Rhode Island is significantly different from the Western states," assistant attorney general Neal Kelly said. "We believe the land in Rhode Island is very different from other land in the United States."

That sweeping characterization kept six judges of the court occupied during a 90-minute hearing in Boston, Massachusetts, yesterday afternoon. They tried to decide whether the use of the word "now" in the IRA prevents tribes who weren't recognized in 1934 from following the land-into-trust process.

The IRA's definition of Indian includes the phrase "any recognized Indian tribe now under federal jurisdiction." "By anchoring the date of 1934, you are arguing that Congress created two categories of tribes?" asked Judge Juan R. Torruella.

Yes, replied Larisa, who said the Interior Department cannot take land into trust for tribes that weren't recognized or weren't under federal supervision as of that date. "This tribe is not a tribe under the 1934 Indian Reorganization Act," he said in reference to the Narragansetts.

That statement drew objections from Elizabeth Peterson, a government attorney who is representing Interior Secretary Dirk Kempthorne in the case. She said the Interior Department has never interpreted the word "now" to prevent tribes who were recognized after 1934 from acquiring trust lands.

Ian Gershengorn, a Washington, D.C., attorney who represents the National Congress of American Indians and dozens of other tribes as friends of the court, said it was "absurd" to argue that newly recognized tribes can't benefit from the land-into-trust process. "It makes a mockery of the whole acknowledgment process that the tribes have gone through," he said.

At least three of the judges on the court appeared to treat the state's argument with skepticism. They included Chief Judge Michael Boudin, who questioned why Congress would want to create different categories of tribes.

"If the Indians have title and there is no prohibition, then the federal government can take it into trust," said Boudin.

The tribe wants to use 31 acres in the town of Charlestown to build housing for low-income and elderly members. The land was purchased with Department of Housing and Urban Development funds and can only be used for that purpose.

But one judge said the state's real concerns had nothing to do with housing. "They're afraid of a casino or a smokeshop or something else like that," said Judge Sandra L. Lynch.

Under a different case that was resolved by the same six judges, the tribe was barred from operating a tax-free smokeshop on its settlement lands. By a 4-2 vote, the court said the tribe accepted state jurisdiction on the reservation as part of its "bargain" with Rhode Island. Torruella and Judge Kermit V. Lipez dissented.

Peterson acknowledged that state laws won't apply on the 31 acres because they are located outside the settlement reservation. "This tribe is entitled to recognition as a sovereign entity" and all the rights that go with it, she told the court.

"That completely erodes the bargain," responded Judge Bruce M. Selya, who appeared to be more sympathetic to the state.

Another member of the panel, Judge Jeffrey R. Howard, remained silent during the entire hearing. He previously authored a dissent that said state laws should apply on the newly acquired land.

The case began when the Bureau of Indian Affairs agreed to take the land into trust. In September 2003, a federal judge sided with the BIA and the tribe, a ruling that was upheld on appeal by a panel of three judges of the 1st Circuit in February 2005.

Unhappy with the outcome amid the battle over the tax-free cigarettes, the state asked for a rehearing. By a 2-1 vote, the three judges again sided with the BIA and the tribe, though Howard dissented in the September 2005 ruling.

Once again, the state sought a rehearing before an en banc panel of the court. The request went unanswered for nearly a year when the 1st Circuit last month suddenly scheduled oral arguments.

Whatever the outcome of the case, it is likely to be appealed to the U.S. Supreme Court. Last October, the justices refused to hear two similar land-into-trust disputes that originated in Western states.

All three cases involved a challenge to the constitutionality of the IRA. States have claimed the land-into-trust provisions are an illegal delegation of power to the Interior Department.

The Narragansett case is more complex due to the existence of a special act of Congress that settled the tribe's land claim. In the other two cases -- one from the 8th Circuit and the other from the 10th Circuit -- there were no other laws to reconcile and the tribes affected had been federally recognized as of 1934.

A similar case arose in the 2nd Circuit involving the Mashantucket Pequot Tribal Nation. The court ruled there was no prohibition on new trust land acquisitions even though the tribe wasn't recently until 1984 and falls under a land claim settlement act.

Rhode Island says the Pequot case, and others like it, differ from the Narragansett one because Congress was more specific with respect to the lands that could be taken into trust. The state says Congress extinguished all forms of tribal rights when it settled the Narragansett claim.

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