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Appeals court to rehear Narragansett land into trust case

CHARLESTOWN, R.I. – A lawsuit that is crucial to the issues of land into trust, tribal sovereignty and casinos in Indian country will be reconsidered for the third time by a federal appeals court.

The 1st Circuit Court of Appeals agreed Dec. 5 to re-hear arguments in an appeal by the state of Rhode Island and the town of Charlestown against the BIA’s decision in 1998 to take 31 acres of land into trust for the Narragansett Indian Tribe. The tribe bought the land in fee simple in the early 1990s for housing, but its efforts to move forward with construction have been thwarted by litigation ever since.

A three-judge panel upheld the BIA’s decision in March and September 2005. In the latter decision, the panel voted 2 – 1 that the state cannot exercise jurisdiction over the 31-acre parcel because it is outside the tribe’s 1,800-acre settlement lands that were established by an act of Congress. The dissenting judge said the state should be able to exercise jurisdiction over all Narragansett lands, whether on or off the 1,800-acre settlement lands.

The decision to re-visit the disputed land-into-trust case came on the heels of a Nov. 27 U.S. Supreme Court rejection of the tribe’s appeal of another 1st Circuit Court decision that said the state can enforce all of its civil and criminal laws on the 1,800-acre settlement lands.

That case emerged from a state police raid on the tribe’s tax-free smokeshop in 2003. A three-judge ruling that the state had violated the tribe’s sovereign immunity on its settlement lands was later reversed in a 4 – 2 decision by the full panel.

The same six judges will hear arguments in the land-into-trust case at the Boston court on Jan. 9.

“Clearly, the 1st Circuit Court was waiting for the resolution of the smokeshop case to move on the land into trust case. The state and town made the request for en banc in the spring of 2005 and it was just in abeyance,” Douglas Luckerman, the tribe’s attorney, told Indian Country Today.

Luckerman said that all of the state and town’s litigation and delaying tactics screen the real reason for the opposition – to deny the Narragansetts the opportunity to open a casino. After a massive opposition campaign by elected officials and anti-Indian casino groups, around 63 percent of voters in November’s elections said no to a referendum question that would have allowed the tribe to open a casino.

“Gaming is the word they throw around, but the arguments they use go well beyond just gaming. Their arguments go to the very heart of whether these tribes have any authority at all: whether they are sovereign is what’s really going on here,” Luckerman said.

The tribe said “from day one” that it had no intention of building a casino on the 31 acres, Luckerman said.

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“But in a move which I think still deserves some level of scrutiny that it hasn’t had, the town said, ‘We’re not going to allow you to hook up sewer and water to this land unless you sign an agreement saying you’ll never, never do a casino.’ The tribe refused to sign and that’s what led to all of this litigation,” Luckerman said.

The town and state are presenting a double-whammy argument attacking both the tribe’s federal acknowledgement and its right to take land into trust. But if successful, the ruling would apply to numerous tribes and their lands, according to town attorney Joseph Larisa Jr.

“We’re challenging Interior’s right to take land into trust for this tribe and other tribes that were not both federally recognized and under federal jurisdiction at the time of passage of the Indian Reorganization Act of 1934 without an act of Congress,” Larisa told ICT.

Larisa and the state also argue that the tribe gave up its sovereignty over the 1,800-acre settlement lands and all other lands in the process of acquiring those lands. But Luckerman said there is no such language in the settlement act Congress passed for the tribe, which supersedes the state’s settlement act.

“The courts are creating settlement terms that neither the state asked for at the time nor the tribe gave, so they are filling in the gaps rather than holding the line and saying if it’s not there in the language the tribe didn’t give it up and you didn’t get it,” Luckerman said.

As for tribal sovereignty, the state and town say it’s the power a tribe has to determine its membership and other internal issues.

“Tribal sovereignty is exactly what the appeals court said it was, and we were gratified that the U.S. Supreme Court agreed. They defined tribal sovereignty with respect to the relationship between the tribe and the state where the state can interfere, and that’s the definition we’re operating under because it’s the law under the 1st Circuit, and we believe it’s the law nationwide,” Larisa said.

The tribe’s land-into-trust case was deemed so important to Indian country – and its opponents – that it drew briefs and amicus curiae status 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.

Luckerman pointed to a recent decision by the U.S. Supreme Court to reject petitions to review similar cases in the 8th and 10th Circuit Court, which upheld the BIA’s authority to take land into trust.

If the 1st Circuit reverses its earlier decisions supporting the BIA, the tribe’s only recourse is an appeal to the U.S. Supreme Court.