US Supreme Court to review critical Narragansett land-into-trust case
WASHINGTON - The U.S. Supreme Court has agreed to review an appeal that could threaten the sovereign status of tribes that were federally acknowledged after 1934 and undermine the Interior Department's authority to take land into trust for them.
The case pits Rhode Island Gov. Donald Carcieri, the state of Rhode Island and the town of Charlestown against Interior Secretary Dirk Kempthorne over the department's decision to take 31 acres of land into trust for the Narragansett Indian Tribe.
The 31-acre property lies outside of the tribe's 1,800-acre settlement lands, and was purchased in the early 1990s for elder housing. The project has been blocked by litigation ever since.
A three-judge panel of the 1st Circuit Court of Appeals in Boston upheld Interior's decision in March and September of 2005, ruling that said the state cannot exercise jurisdiction over the 31 acres because it is outside the tribe's settlement lands.
The full six-member panel re-heard the case and last July affirmed its earlier decision upholding Interior's authority to take the Narragansett land into trust under the 1934 Indian Reorganization Act.
The high court announced its decision Feb. 26 and will review the case this fall.
Narragansett Chief Sachem Matthew Thomas told Indian Country Today that the case is ''critical,'' and he called for solidarity and support from the nations, including amicus briefs.
''This is a very, very huge issue which would have big implications across Indian country, and we've got to stand up and defend not just the Narragansett Tribe but other tribes trying to take land into trust. We need to say, 'Look, enough is enough.' We need to start standing up for what we legally under the Constitution have the right to do,'' Thomas said.
''I know that some tribes, when they become economically viable, they don't care about other tribes; but when you stop caring about your brother and sister tribes, that's when the weakness occurs. If you don't start looking to what's happening with other tribes, it may become a burden to you 10 years later, because when you get a kink in the armor that's when they're going to try to take the armor apart.''
The Narragansett's land-into-trust case was deemed so important to Indian country - and its opponents - that it drew briefs and amicus curiae briefs from the Native American Rights Fund, the National Congress of American Indians, individual tribes and organizations, 10 state attorneys general and the National Coalition Against Gambling Expansion.
Both the United Eastern and Southern Tribes and NCAI plan to vigorously support Interior's position.
''Narragansett is a member of USET and what befalls one befalls all of us. There is strength in unity and we stand by our member tribes,'' said USET President Brian Patterson, Oneida Indian Nation of New York. (The OIN owns Four Directions Media, parent company of Indian Country Today.)
In its appeal, the state posed three questions to the U.S. Supreme Court: Is the Narragansett Indian Tribe eligible to receive benefits under the IRA although the tribe was not ''federally recognized'' when IRA was passed in 1934? Did the Rhode Island Indian Claims Settlement Act foreclose the tribe's right to exercise sovereignty over any land located in the state? Does the Constitution prohibit the delegation of legislative authority to the Interior secretary? The high court will take up only the first two questions.
The first issue has the potential to affect dozens of tribes that gained recognition after 1934.
''This is a vital issue for USET as many of our tribes received their federal recognition after 1934, the date of the Indian Reorganization Act that the state of Rhode Island cites in its effort to undermine tribal sovereignty and rights,'' Patterson said, noting that Rhode Island's appeal is part of an ongoing effort to curtail tribal sovereignty that has long been recognized under the Constitution and the laws of the United States.
''Congress intended that all tribes could go through an administrative process to have land taken into trust. The state of Rhode Island's position directly contradicts Congress' intent and attacks a fundamental component of the federal-tribal relationship, which is the opportunity for tribes to buy back lands and have the federal government put those lands in trust status. This process, which has been in place for years and is used by tribes from across the United States, provides, in some small way, a means for addressing the egregious land swindles of the past,'' he said.
NCAI will again file an amicus brief, said John Dossett, the organization's general counsel.
''It's a very important statutory interpretation issue, but we've been successful so far on this question in the 1st Circuit and we're going to continue forward with the U.S. Supreme Court and hope they see it in the same way,'' he said.
The second issue is also critical, although fewer tribes would be affected. Congress has settled land claims since the 1970s for tribes in Connecticut, Maine, Massachusetts, Rhode Island and South Carolina by extinguishing aboriginal land title. If the high court upholds Rhode Island's position, the sovereign rights of these tribes, many of which have been battered recently in state and federal courts, could be further eroded.
Carcieri hailed the Supreme Court's decision to hear Rhode Island's appeal.
''This is great news for the people of Rhode Island and an important step for every state facing similar issues. For too long, the legitimate concerns of states in the federal land-to-trust process have been ignored. It is simply not acceptable for any state to be stripped of its sovereignty over land within its borders by mid-level bureaucrats in Washington,'' Carcieri said.
Thomas said that Carcieri's comment reflects the colonist-settler mindset. ''I think his mentality is no different than his ancestors who got off the boat and I think his mentality will remain until Armageddon.''
While the current appeal argues for ''states rights,'' the U.S. Supreme Court recently refused to review two petitions which questioned the interpretation of federal law that allows the state to control all aspects of tribal government.
In November 2006, the court refused to review of a 1st Circuit ruling that Narragansett could not operate a smokeshop 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. And last November, the high court denied petitions from the Aroostook Band of Micmac Indians and the Houlton Band of Maliseet Indians in a sovereignty case that stripped them of jurisdiction over employment issues on tribal lands.