High court moves toward Narragansett land claim case

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CHARLESTOWN, R.I. – As the U.S. Supreme Court moves toward defining the meaning of “now” in a 75-year-old law and determining whether the Interior Department can take land into trust for the Narragansett Indians beyond the terms of the Rhode Island Indian Land Claims Settlement Act, the tribe has begun a process it hopes will ultimately overturn the act itself.

The tribe has filed a sweeping request under the Freedom of Information Act for “any and all documents” regarding the formation, creation and discussions about the 1978 act, in which the tribe received 1,800 acres of land – half of its 3,800-acre land claim. The request was sent to Interior, Interior’s solicitor’s office, the Justice Department, the BIA and the BIA’s eastern regional district in a letter dated Sept. 8 and signed by Chief Sachem Matthew Thomas.

“We’re beginning this information-gathering in order to review and, hopefully, dismantle the Rhode Island Land Claims Settlement Act,” said John Brown, a former tribal council member and the tribe’s historic preservation officer.

He noted that the tribe has uncovered some documents that indicate irregularities in the way the act was discussed, negotiated and implemented.

Among other things, the tribe is seeking proof that Interior consulted with and informed the tribe about the consequences of the act.

“Even though the Interior Department didn’t sign the act, they were intimately involved with the document; so one of the things we asked in the FOIA request is, are there any records of them counseling us or informing us of what we’d be giving away going into the settlement.”

Another recently discovered 30-year-old document involving federal agencies and the state discusses whether the settlement lands should be entrusted to the tribe’s corporation or a state-chartered corporation. The agencies would have been held “responsible and culpable for additional future claims” if the land have been entrusted to the tribe, Brown said.

“We want to see what other type of information came and went between the feds and the state that the tribe was kept in the dark about. So, we have those documents in place, but we want to see all the rest of them.”

The FOIA request was filed as the Supreme Court moves toward a Nov. 4 hearing on the state’s challenge of a 1st Circuit Court of Appeals ruling that Interior can take 31 acres of land into trust for the tribe. Those acres are outside of the tribe’s 1,800-acre settlement lands.

The tribe bought the 31 acres in 1991 for elder housing. Interior approved the tribe’s petition to take the land into trust in 1998; ever since then, the town and the state have tied the property up in litigation through the federal district court and the appeals court, where they lost their challenge to Interior twice.

Last summer, the Supreme Court agreed to hear a petition from the state and town for review of the appeals court decision.

The high court will hear arguments on two questions: whether the 1934 Indian Reorganization Act empowers the Interior secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934, and whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the secretary from creating Indian country there.

The tribe’s opponents interpret the use of the word “now” in the phrase “tribes now under federal jurisdiction” in the 1934 law to mean that the act – and the land into trust provision – extends only to tribes acknowledged by the federal government in 1934. The Narragansetts achieved federal acknowledgment 1983.

The DoJ, in defending Interior’s decision to take the 31 acres into trust, said that Interior has never interpreted the word “now” to prevent tribes who were recognized after 1934 from acquiring trust lands. The word “now” means at the moment the Interior secretary invokes the statute, according to Justice.

The tribe’s opponents also claim that 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 appeals court rejected the state’s argument that the act explicitly or implicitly restricts the Narragansetts’ ability to assert sovereignty over new land. The court agreed that the act had indeed extinguished the tribe’s aboriginal title, but also concluded that the acquisition of trust lands is not incompatible with the absence of aboriginal title.

The Narragansett case is considered so crucial to Indian country and its opponents – what would happen to the status of all the tribes federally acknowledged since 1934, for example? – that the National Congress of American Indians and dozens of tribes and organization filed “friend of the court” briefs during the lower court proceedings, as did more than a dozen state attorneys general and anti-Indian sovereignty groups.

If the Narragansetts succeed in dismantling or amending the settlement act, the high court’s decision will be “rendered moot” and the 1,800 acres of settlement land “will go back into the pot,” Brown said.

“That will never change, because the whole 3,800 acres we originally claimed that were whittled down to 1,800 acres were always ours to begin with.”

Brown said there has been some movement to meet with other East Coast tribes whose settlement acts, like the Narragansetts’, also have been used to erode their tribal sovereignty through the courts, particularly the Wabanaki Confederacy in Maine.

“We want to talk to them,” Brown said, pointing to the Haudenosaunee Confederacy nations who are collectively fighting New York state’s intrusion into their tobacco industry.

“We have made overtures, but they haven’t come off just yet. There’s no doubt now that we need to do it.”