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Rhode Island trust land case lives on in appeal

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CHARLESTOWN, R.I. - Thirty-one acres for tribal housing may not seem like a
national issue, but it has sparked a major prizefight between Interior
Secretary Gale Norton and the state of Rhode Island, with a coalition of
state attorneys general rooting at ringside. The first rounds have gone to
Norton, and indirectly the Narragansett Indian Tribe and the national
Tribal Supreme Court Project. But the bout isn't over yet.

The town lawyer handling the suit told Indian Country Today he will appeal
to the full federal 1st Circuit Court of Appeals from a recent three-judge
panel ruling upholding Norton's authority to put land into trust, and seek
a decision on unresolved questions of tribal jurisdiction.

The appeal could be a step toward yet another major U.S. Supreme Court
Indian law case. It is also a cautionary tale about Settlement Acts that
compromise tribal sovereignty.

The fight centers on 31 acres in Charlestown across a state road from the
Narragansett Indian Reservation. Interior first agreed to put the land into
trust in 1998 for a long-delayed Narragansett housing project. When the
Narragansetts refused to accept town jurisdiction on the site, town and
state officials began a series of appeals and lawsuits culminating in the
action against Norton.

Along the way, the attorneys general of 10 states filed a brief supporting
Rhode Island. The Supreme Court Project of the National Congress of
American Indians and the Native American Rights Fund sponsored two briefs
on the other side.

John Dossett, general counsel for NCAI, called it a "big victory for the
tribes" when a three-judge federal appeals panel dismissed the case Feb. 9.
He said it answered "what was really an issue of first impression" about
whether all tribes, including newly-recognized ones, would be treated
equally under the 1934 Indian Reorganization Act. But the appeals panel
dodged a major concern for the Narragansett: whether the new addition to
their reservation was subject to the same compromise on their jurisdiction
that they accepted in their original land claims settlement in 1978.

Circuit Court Judge Juan Torruella threw out a major challenge by several
states against the Interior secretary's power to take land into trust and
against the IRA itself. Congress included the provision in the IRA to
create new trust land when it sought to undo some of the devastation of the
1887 Allotment Act, but Rhode Island and the 10 attorneys general argued
that it didn't apply to tribes that were later federally recognized. The
Narragansetts didn't win federal acknowledgment until 1983.

Torruella said that "statutory and regulatory provisions make clear" that
all federally-recognized tribes should be treated alike under the IRA no
matter when they were acknowledged. He rejected the states' argument based
on two cases from the 1970s involving the Mississippi Choctaw, who lost
tribal status under the 1830 Treaty of Dancing Rabbit Creek but regained it
in 1944. NARF arranged for the Choctaw to file a brief rebutting the

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Dossett said the win on this point confirmed "an extremely important
principle in Indian law: that all tribes are to be treated as equals under
the IRA."

The 1st Circuit also dismissed the argument that the IRA itself was
unconstitutional. The states charged that the act made an
unconstitutionally broad delegation of power to the Interior secretary,
relying on a South Dakota case that prompted the 8th Circuit Court of
Appeals to say the act had "so few intelligible principles [that] it would
permit the secretary to purchase the Empire State Building in trust for a
tribal chieftain as a wedding present." Torruella noted that the Supreme
Court vacated this decision without bothering to write an opinion.

He also rejected arguments that the law violated the 10th Amendment, the
Enclave Clause (which covers federal property like post office buildings)
and the Admissions Clause for creating new states.

But the decision left open an important issue arising from the land claims
settlement between the Narragansetts and the state of Rhode Island. The
1978 act set aside 1,800 acres for the Narragansetts but left them under
the state's civil and criminal jurisdiction. The settlement agreement
didn't say whether the state would have jurisdiction over any new
Narragansett trust land. The tribe now refuses to subject its housing
project to state and city building codes and environmental rules.

The Circuit Court panel declined to decide, saying the state raised the
issue as an afterthought. Torruella wrote, "We leave this issue to another
day, when there is a more fully-developed record."

But the Narragansett's neighbors aren't willing to put off that day much
longer, Joseph Larisa, Town of Charlestown's assistant solicitor for Indian
Affairs, told ICT. He said the town would immediately appeal the issue to
the 1st Circuit, requesting a hearing with all of the judges on the bench;
the town could go ahead on its own, but he added, "We hope the federal
government will join in."

Larissa said an immediate decision on the jurisdiction issue would allow
the Narragansetts to proceed with the housing project within six months,
but the case could drag on "another three, four, five years" if it started
over in the District Court.

For now, the Supreme Court Project is savoring the decision. "It's a great
victory," said Dossett. "It's a good example of the Supreme Court Project
in action, getting into the case while it's still in the Circuit Court
before it goes to the Supreme Court."