Narragansetts to seek congressional remedy to Carcieri

Gale Courey Toensing
2/27/09

CHARLESTOWN, R.I. – The U.S. Supreme Court decision to curb the federal government’s authority to take land into trust for Indian nations acknowledged after 1934 is a victory for states seeking control over tribal lands and economies.

But that victory may be short-lived.

John Killoy, attorney for the Narragansett Indian Tribe whose land into trust application formed the basis of Carcieri v. Salazar, said the Narragansetts will work with other tribes throughout Indian country to seek a congressional remedy to the Supremes’ ruling.

“To narrowly construe a statute that was intended in 1934 to benefit all tribes is detrimental not only to the Narragansetts, but to many other tribes in the United States,” Killoy said. “Congress has the ability to amend that act to address what the Supreme Court has said is a deficiency – that tribes that weren’t recognized in 1934 don’t have the right to take lands into trust under the Indian Reorganization Act.”

“That hasn’t been the policy of the federal government for the last 75 years. They have taken land into trust for tribes that were recognized after 1934. So the solution is for Congress to amend the IRA,” Killoy said.

“We intend on pursuing justice until we receive it,” said Narragansett Chief Sachem Matthew Thomas.

In Carcieri v. Salazar, Rhode Island Gov. Donald Carcieri challenged the interior secretary’s authority to take land into trust for tribes that were not under federal jurisdiction in 1934.

The case centered on the interpretation of the word “now” in the IRA’s reference to “recognized Indian tribes now under federal jurisdiction.” In the 6-3 ruling, the majority of justices interpreted “now” to mean then – 1934 – as opposed to “going forward as of now.”

Congress could address the problem simply by deleting the phrase “now under federal jurisdiction,” said Eric Eberhard of the firm Dorsey & Whitney.

“Doing so would be consistent with the purposes of the IRA, the Indian Land Consolidation Act, the Self-Determination Act and the compelling need for tribes to be able to govern their reservations,” Eberhard said.

The Narragansetts bought 31 acres of land in 1991 for elder housing. The interior agreed to take the land into trust in 1998, but since then the town and state have tied the property up in litigation through the federal district court and the appeals court where they lost their challenge to the interior twice.

“The long term impact is the court has failed to recognize what federal recognition means and this is the recognition of long established sovereignty – one that predates the United States. Certainly having all lands put into trust for governmental purposes, such as housing and health care and administrative buildings is going to be immediately impacted. Those decisions currently in the pipeline at the BIA will be put on hold until there’s a resolve in Congress to find a solution,” Killoy said.

The Mohegan Tribe and the Mashantucket Pequot Tribal Nation, the Narragansetts’ neighbors in nearby Connecticut, issued statements critical of the high court’s ruling.

“I believe the court took a very narrow reading of the IRA and I do believe it’s incorrect, but I’m very saddened for the tribes that may be affected adversely by this. I do also believe, though, that the Interior Department and our friends in Congress will understand that there needs to be a legislative fix,” said Mohegan Vice Chairwoman Lynn Malerba.

Jackson T. King, general counsel for the Mashantucket Pequot Tribal Council said the ruling “does not apply to tribes like Mashantucket where the Congressional Settlement Act specifically provides that laws such as the one in question are applicable?”

The Oneida Indian Nation of New York state would not be affected by the ruling, according to a statement issued by the nation’s public affairs office.

“This decision turns on whether a tribe was recognized by the United States in 1934 and, therefore, has no applicability here. The United States’ annual delivery to the Oneida Nation of treaty cloth for more than 200 years evidences this country’s recognition of the Oneidas under the 1794 Treaty of Canandaigua and soundly rejects any claim that the United States did not recognize the Oneida Nation in 1934.”

Ironically, last month the U.S. Supreme Court denied a petition from an anti-Indian casino group in Michigan also challenging the interior secretary’s authority to take land into trust for the Gun Lake Tribe, clearing the way for the interior to take 147 acres of land into trust for the tribe Jan. 30.

The Gun Lake Tribe could not be reached for comment, but the attorneys said that Gun Lake and other tribes with land in trust are protected by the Quiet Title Act, which protects lands held by the federal government from third party challenges.

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