Appeals court backs tribe in land-into-trust dispute

Monday, July 23, 2007  

A federal appeals court on Friday handed another victory to the Narragansett Tribe of Rhode Island in its long-running battle against the state.

In a case watched across Indian Country, the 1st Circuit Court of Appeals said nothing in federal law bars the tribe from following the land-into-trust process. The 4-2 decision by an en banc panel of the court marks the second time the tribe has prevailed on the issue.

But the war appears far from over. Rhode Island Attorney General Patrick Lynch plans to take the case to the U.S. Supreme Court, a spokesperson said.

The justices have so far resisted taking on land-into-trust. In the past few years, they have declined to hear three cases that have raised challenges to the Indian Reorganization Act of 1934.

Tribal interests hope the high court will do the same if presented with the latest case. The Native American Rights Fund, the National Congress of American Indians, the largest inter-tribal organization, and more than two dozen tribes filed briefs at the 1st Circuit to defend the Narragansetts.

The effort paid off for the tribe and Interior Secretary Dirk Kempthorne, the defendant in the case. The state argued that the tribe's land claim settlement act, passed in 1983, barred the acquisition of new lands.

Writing for the majority, Judge Sandra L. Lynch disagreed. She said nothing in the Rhode Island Indian Claims Settlement Act prevents the Narragansetts from being treated just like every other tribe in the nation when it comes to land-into-trust.

"While the state apparently failed to anticipate this particular problem at the time of the settlement, the settlement act did specifically contemplate the event of federal recognition of the tribe and did not restrict the Secretary's power, should the tribe be recognized, to take into trust land outside of the settlement lands," Lynch wrote.

"We are not free to reform the act," she added, in a nod to judicial restraint. If aggrieved, the state must turn to Congress."

The majority also rejected the state's attempt to limit the IRA to those tribes that were federally recognized as of 1934. The court said "it is not seriously disputed that the Secretary has never rejected an application to take land into trust for a federally recognized tribe on the ground that the tribe was not recognized and under federal jurisdiction in 1934."

Finally, the court rejected the state's claim that the land-into-trust process violates the U.S. Constitution. The 1st Circuit now joins the 8th Circuit and the 10th Circuit in reaching the same conclusion, which so far has survived Supreme Court review.

Despite the similar backgrounds, the Narragansett case differs from the 8th Circuit and 10th Circuit cases in one significant way. The tribes involved on those land-into-trust disputes were not subject to a land claims settlement act.

The 2nd Circuit, however, has considered a similar set of facts in a case involving the Mashantucket Pequot Tribal Nation of Connecticut. The state claimed the tribe's land claim settlement act barred the acquisition of new lands but the court rejected the argument. The Supreme Court refused to review the case.

The 1st Circuit decision has implications beyond land-into-trust. If the Narragansett Tribe acquires lands outside of its 1,800-acre reservation, those lands will not be subject to state civil or criminal jurisdiction.

The 31-acre parcel at issue in the case was to be used for housing. But the tribe could presumably acquire new lands to support projects that would otherwise be illegal on its reservation, such as a smokeshop. The 1st Circuit previously said the tribe could not sell cigarettes without state tax stamps.

The tribe would not be able to acquire land for a casino, though. An appropriations rider passed in 1997 bars the tribe from falling under the Indian Gaming Regulatory Act. The tribe has been lobbying Congress to lift the restriction but has been met with opposition.

Get the Decision:
Carcieri v. Kempthorne (July 20, 2007)

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