Narragansett case may undermine legal ownership of tribal land nationwide, Indian rights advocates say
BOSTON - By the end of a Jan. 9 federal appeals court hearing on the Interior Department's decision to take 31 acres of land into trust for the Narragansett Indian Tribe, one thing was clear: If the court upholds Interior's decision, state officials will tie up the land in ''years and years of litigation.''
Those were the words of attorney Joseph S. Larisa Jr., who represents the municipality of Charlestown, R.I., in which the tribe has 1,800 acres of settlement lands acquired by an act of Congress. The town and state appealed Interior's 1998 decision to take the land into trust.
The 31-acre property at the center of the current appeals case lies outside of the settlement lands. The land was purchased for elder housing in the early 1990s with funds from the Department of Housing and Urban Development, but has been blocked by litigation ever since by state officials who claim Rhode Island and the Narragansetts are uniquely exempt from the federal laws that recognize tribes and tribal sovereignty in every other state.
In November, the Supreme Court let stand the 1st Circuit Court's decision by the same six-judge panel that the tribe could not operate a smoke shop on its 1,800-acre settlement lands and that the state has civil and criminal jurisdiction on those lands as part of the settlement agreement. Judges Juan Torruella and Kermit Lipez were the dissenters in the 4 - 2 vote.
Larisa and other state officials want the same deal - total state authority - on the tribe's 31 acres. It's really about jurisdiction, Larisa said.
''If this court decides the same laws apply [on the 31 acres as on the settlement lands], you will see housing go up very quickly. If not, there will be years and years of litigation on what the heck 'Indian country' means,'' Larisa told the judges.
A three-judge panel of the 1st Circuit upheld Interior's decision in March and September of 2005, the latter in a 2 - 1 ruling that said the state cannot exercise jurisdiction over the 31 acres because it is outside the tribe's settlement lands. At the request of the state, the full six-member panel re-heard the case Jan. 9.
Larisa used an argument often used by the anti-Indian sovereignty groups opposing the federal recognition of, or the establishment of casinos by, Eastern tribes: that Congress passed laws that were meant for Western tribes only.
''The Indian Reorganization Act [of 1934] was designed to eliminate the allotment policy'' and help Western tribes regain their expropriated lands, Larisa said. That means Western tribes are eligible for land into trust, Larisa said.
The Narragansetts gave up all of their rights - including the right to acquire trust land - when they agreed to the 1,800-acre settlement lands, the state argued.
''The experience in Rhode Island is significantly different from the Western states. We believe the land in Rhode Island is very different from other land in the United States because of the settlement act,'' Assistant Attorney General Neal Kelly said.
In an argument that left several judges puzzled, Larisa also interpreted the use of the word ''now'' in the phrase ''tribes now under federal jurisdiction'' in the 1934 IRA to mean that the act - and the land into trust provision - extends only to tribes recognized by the federal government in 1934. The Narragansetts achieved federal recognition in 1983.
Chief Judge Michael Boudin asked why Congress would create different categories for different tribes.
''If the Indians have title and there is no prohibition, then the federal government can take it into trust,'' Boudin said.
Elizabeth Peterson, an attorney from the Department of Justice representing Interior in the case, said Interior 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 representing
the National Congress of American Indians and dozens of other tribes and organizations that filed briefs 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.
Judge Sandra Lynch cut to what many people think is the heart of the state's objection.
''What they're really afraid of is not housing - it's a casino or smoke shop,'' Lynch said.
Rhode Island voters said ''no'' to a referendum question in November that would have allowed the tribe to open a casino on another property in partnership with Harrah's Entertainment.
The tribe could not build a casino on the 31 acres, because ''HUD rules would prevent that,'' Peterson said.
The judges questioned the balancing of the tribal government with the state government.
''Suppose there's a murder, not an Indian, but a guy is in to fix the sewer and he's murdered,'' Lynch said.
''That's a federal crime,'' Peterson said.
Peterson acknowledged that state laws will not apply on the 31 acres of trust land because they are located outside the settlement lands.
''This tribe is acknowledged as a sovereign nation by the federal government,'' with all the rights of a sovereign Indian nation, Peterson said.
''Ordinarily, states and tribes across the nation work cooperatively'' to balance the jurisdictional issues that come up between them, Peterson said.
Whatever the outcome of the case, the losing side is likely to appeal to the U.S. Supreme Court.