Dorgan’s ‘Carcieri fix’ introduced to Senate

WASHINGTON – At a hearing in front of the 1st Circuit Court of Appeals in Boston Jan. 7, 2007, an attorney for the state of Rhode Island made an interesting threat: If the court were to uphold the Interior Department’s decision to take around 32 acres of land into trust for the Narragansett Indian Tribe, state officials would tie up the land in “years and years of litigation,” Joseph S. Larissa Jr. said.

The 1st Circuit ignored the threat, and after seven months of deliberations issued a 4-2 ruling upholding Interior’s decision to take into trust the 32-acre parcel Narragansett had purchased in the late 1990s for housing for its elders.

But Larissa was right about tying up the land.

The state of Rhode Island appealed the 1st Circuit’s decision to the U.S. Supreme Court, suing the Interior Department in a case called Carcieri v. Salazar, named after Rhode Island Gov. Donald Carcieri. Last February the high court reversed the lower court’s ruling, throwing into chaos and uncertainty the entire issue of trust lands acquired and proposed for Indian nations recognized after the Indian Reorganization Act of 1934.

Now the Supreme Court decision is up for reversal in what has come to be known as the “Carcieri fix.”

Sen. Byron Dorgan, D-N.D., Senate Indian Affairs Committee chairman, introduced legislation in the Senate Sept. 24 to amend the 1934 Indian Reorganization Act.

The bill affirms the Interior secretary’s authority to take land into trust for all tribes, regardless of when they were recognized, Dorgan said in his introductory statement.

“Inaction by Congress could significantly impact development projects on Indian trust lands, including the building of homes and community centers; result in a loss of jobs in an already challenging economic environment, and create costly and unnecessary litigation,” Dorgan said.

Furthermore, if the Supreme Court decision is allowed to stand, it would create two classes of Indian tribes – a situation that “is unacceptable and is contrary to prior acts of Congress.”

In Rhode Island, where the state and local governments have ferociously opposed the Narragansett Indians for centuries, Narragansett Chief Sachem Matthew Thomas welcomed the news of Dorgan’s bill. The bill, if passed, will reaffirm the trust status of the 32-acre parcel without the nation having to endure any further “process,” Thomas said.

“In reading through Sen. Dorgan’s bill, it is my belief that the last paragraph of the bill means any lands from 1934 to the present that were taken into trust will still be in trust. Since Interior did take our land into trust our 32 acres will be considered trust land,” Thomas said.

The nation began to build 12 houses on the property after it acquired the land in fee around 10 years ago, but state and local officials attacked the project from the beginning, tying it up in state and federal courts. The nation recently received a $2 million grant to renovate and refurbish the houses that have deteriorated over the years.

When the 1st Circuit Court of Appeals upheld the Interior secretary’s authority to put the land into trust, the judges also said that the land, which is outside of the nation’s 1,800-acre settlement, will be entirely outside the state’s jurisdiction as will be any other land the nation might acquire and put into trust status.

That would apply to a parcel of about 260 acres of surplus navy land in the city of Newport on Aquidneck Island that the Narragansetts and Wampanoag Tribe of Gay Head, have applied for. Thomas said the tribe hopes to pursue non-gaming economic development on the site in partnership with the city.

There is a certain irony in having spent hundreds of thousands of dollars and 10 years fighting to protect the nation’s right to take the 32 acres into trust and the likelihood of ending up where they started – with the land in trust, Thomas agreed. But, he said, that journey transcends the nation’s interests.

“The way I see it, we’ve been put through a meat grinder – you can put the land into trust, no, you can’t and this and that. Everything we’ve tried to do in the state of Rhode Island, we were taken to court over, whether it was gaming or housing or whatever.”

But the land issue was different, Thomas said.

“With this particular issue when we got taken to court and they prevailed I think they woke up a sleeping giant. I think in their efforts to stop this little tribe from taking 32 acres into trust – which, if you look at all the land in Rhode Island that’s off the tax rolls it far exceeds 32 acres of Indian land – that in creating such an issue nationwide, and all their efforts to fight this, if this bill does indeed come into the law, then all the time and energy, all the people who lost out on getting homes, all the money spent on litigation will actually help Indian tribes all across the United States because of this one little tribe that’s getting the heck beaten out of it from day one, simply because we want to be self-sufficient.”

Christians, Thomas said, have a saying that when God closes a door, he opens a window.

“I believe in something beyond Christianity. Our God, whom we call Kautantowit, [also spelled Kautantowwit, Cautantowwit, etc.] sometimes I ask the Creator, what do we have to go through before we get any kind of justice? I’m hoping at the end of the day, the bill becomes law, our land is in trust, we can put people in the housing, and we’re on equal footing with other tribes. It could be the beginning of something good for our tribe.”

If passed into law, the Carcieri fix would also ensure that the Mashpee Wampanoag Tribe could take land into trust. Federally acknowledged in 2007, Mashpee has about 150 acres of fee land, but no reservation. The tribe has an application with the Interior Department to take around 680 acres of fee land into trust as an initial reservation, including around 540 acres in Middleborough where the nation hopes to open a casino, and 140 acres in the town of Mashpee.

“We are very encouraged by the amendment introduced by Sen. Dorgan, and we are hopeful that Congress will take this opportunity to resolve the inequitable situation caused by Carcieri v. Salazar,” Cedric Cromwell, Mashpee Wampanoag Tribe chairman, said.

Carcieri, Larissa, and Rhode Island attorney general Patrick Lynch did not return calls seeking comment.