Federal judge criticized for 'politically based' sovereignty-eroding decisions

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Bruce Selya denies Narragansetts' request to recuse himself

NARRAGANSETT, R.I. - Narragansett tribal leaders are worried that 1st Circuit Court of Appeals Senior Judge Bruce Selya will influence the six-member court to rule against the tribe in pending and upcoming cases, tribal council member John Brown told Indian Country Today.

''We have ongoing concerns because we believe that this judge's rulings have been politically based and not based on the facts of law, the merits of the cases or the canons of Indian law. I'm not saying he always ruled against the tribe, but he has a history of setting conditions so that if another lawsuit came along, he was able to meander his way out of his previous decision by setting a precedent that would erode the tribal sovereignty of the Narragansett Indian Tribe and by extension all of Indian country,'' Brown said.

''Selya opened the door and left a shadow.''

In March, Brown told ICT that the tribe had asked Selya to recuse himself in an earlier case.

''The judge has no recollection of being asked to recuse himself and he would suspect it's untrue. The court record would speak for itself,'' Karen Tatz, Selya's judicial assistant.

According to the court record obtained by ICT, the tribe did indeed file a motion in September 1993, seeking Selya's recusal in State of Rhode Island v. Narragansett Tribe of Indians concerning a proposed tribal casino.

The motion says, in part, ''there is no question that the Narragansett Indian casino is a political issue in Rhode Island, and the subject of extensive finger pointing between the Democrats and Republicans. Accordingly, there should be no question that this Court's decision be based on facts and law, and not on any outside influence.''

In a new request for comments on Brown's allegations of politically influenced decision-making and the court record seeking his recusal, Selya responded once more through Tatz, acknowledging this time that he was asked to recuse himself.

''He just wants you to know that not only did he not recuse himself from that case, he wrote the opinion, so any further questions you may have on anything like this, he'd appreciate it if you just call the clerk's office,'' Tatz said.

The tribe is currently awaiting a crucial land trust decision from the full court concerning a 31-acre parcel outside of its 1,800-acre settlement land. A three-judge panel of the appeals court twice upheld the BIA's decision to take the parcel into trust for the tribe's elder housing, but the state requested - and received - a third hearing in front of the full six-judge panel in January.

A civil rights case and a criminal case deriving from a state police raid on the tribe's tax-free smoke shop in 2003 are both likely to wind up in appeals to the first circuit court.

Brown alleges that Selya's decisions are politically influenced because he is beholden to the political ideology of the late Republican Sen. John Chafee and to a circle of Republican-connected state and local officials who continue to oppose the tribe.

Chafee was the author of the ''Chafee amendment,'' a 10-year-old amendment to a federal spending bill that stripped the tribe of its federal right to conduct gaming on its lands without state and local approval.

A new poll by the Massachusetts Dartmouth Center for Policy Analysis shows that state residents support the repeal of the Chafee Amendment 2 - 1.

Chafee nominated Selya to the federal court. Congress approved President Ronald Reagan's appointment of Selya in 1986.

A number of rulings from the 1st Circuit Court of Appeals have withered the tribe's sovereign immunity. Last year, the court's full panel reversed an earlier three-judge decision that the state had violated the tribe's sovereign immunity during the state police raid at the tribe's smoke shop.

Selya, who wrote the reversed decision, argued that the Narragansetts waived their sovereign immunity in a 1978 land claim settlement act. No mention of a waiver of sovereign immunity appears in the document.

Brown said the tribe does not intend to seek Selya's recusal again.

''We had asked this man to recuse himself and he did not. Our feelings have not changed. This man is changing the landscape of Indian law without directives from the legislative or executive branches of government with whom we have a government-to-government relationship. How does that happen? It deserves to be reviewed,'' Brown said.