Case at a Glance. Can the Secretary of the Interior Take Land Into Trust for a Rhode Island Indian Tribe Recognized in 1983?

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1 Case at a Glance The Indian Reorganization Act authorizes the Secretary of the Interior to acquire lands for Indians, and defines that term to include all persons of Indian descent who are members of any recognized Indian tribe now under Federal Now the Court has agreed to consider whether the Act authorizes the Secretary to take land into trust on behalf of an Indian tribe that was neither federally recognized nor under federal jurisdiction at the time of the statute s enactment. I N D I A N L A W Can the Secretary of the Interior Take Land Into Trust for a Rhode Island Indian Tribe Recognized in 1983? Margaret Robison Kantlehner is an associate professor of law at Elon University School of Law. She can be reached at mkantlehner@elon.edu or (336) ISSUES Does the Indian Reorganization Act of 1934 authorize the Secretary of the Interior to take land into trust for an Indian tribe that was neither federally recognized nor under federal statute s enactment? Does the Rhode Island Indian Claims Settlement Act, which extinguished aboriginal title in the Narragansett Indian Tribe, prohibit the Secretary of the Interior from taking Rhode Island land later purchased by the Tribe into trust on behalf of the Tribe? FACTS Petitioner Donald L. Carcieri, governor of Rhode Island, sued respondent Dirk Kempthorne in his capacity as Secretary of the Interior to prevent him from taking title to land in Rhode Island in trust for the Narragansett Indian Tribe. Also named in the suit was Franklin Keel in his capacity as Eastern Area Director of the Bureau of Indian Affairs (BIA). Other plaintiffs included petitioners State of Rhode by Margaret Robison Kantlehner PREVIEW of United States Supreme Court Cases, pages American Bar Association. Island, Providence Plantations, and the Town of Charlestown, Rhode Island. The parcel of land the Secretary of the U.S. Department of the Interior had agreed to hold in trust for the Narragansett Indian Tribe is within the town boundaries of Charlestown, Rhode Island. But for the Secretary s acceptance of the title to the parcel in trust, the parcel would be subject to the jurisdiction of and taxation by the Town of Charlestown and the State of Rhode Island. Petitioners maintain that the Secretary was not authorized to take title in trust for the Narragansett Indian Tribe. Respondents maintain that the Secretary was authorized to take title to land in Charlestown, Rhode Island, in trust for the Narragansett Indian Tribe, exempting it from state criminal and civil law and In 1983, the Narragansett Indian Tribe was federally recognized by the Secretary of the Interior under 25 C.F.R. Pt Fed. Reg (1983). In 1988, the Secretary CARCIERI ET AL. V. KEMPTHORNE ET AL. DOCKET NO ARGUMENT DATE: NOVEMBER 3, 2008 FROM: THE FIRST CIRCUIT 130

2 accepted 1,800 acres of settlement lands into trust for the Tribe, subject to the Rhode Island Indian Claims Settlement Act s requirement (25 U.S.C. 1708(a)) that the settlement lands be subject to the State of Rhode Island s civil and criminal law and In 1992, the Tribe purchased a 31- acre parcel of land, just across a town road from its settlement lands. The Tribe petitioned the Bureau of Indian Affairs to have the 31-acre parcel taken into trust by the Secretary subject to a deed restriction requiring that the parcel be used for the express purpose of providing housing to tribe members. The Tribe did not seek to assert sovereignty over the parcel based on prior aboriginal title. (Aboriginal title is a claim of title based on the property having been part of the Narragansett Tribal Lands prior to European settlement in what is now the United States of America.) Instead of an aboriginal title claim, the Tribe sought to establish sovereign authority over the parcel based on the trust acquisition mechanism provided in the Indian Reorganization Act of 1934 (IRA). In 1998, the Department of the Interior approved the request for the trust acquisition for express purpose of providing low-income Indian housing through the U.S. Department of Housing and Urban Development. The governor and the town appealed the trust acquisition to the Interior Board of Indian Appeals, which affirmed the decision of the Secretary. The petitioners filed an action in the U.S. District Court for the District of Rhode Island, seeking to enjoin the decision as contrary to the IRA, the Rhode Island Indian Claims Settlement Act, the Administrative Procedures Act, 5 American Bar Association U.S.C. 706, and various provisions of the U.S. Constitution. The district court granted summary judgment to the respondents. Petitioners appealed. The First Circuit affirmed the district court s decision in a unanimous panel opinion. The state petitioned for rehearing. The panel withdrew its opinion and issued a new one affirming the district court and relying in part on United States v. John, 437 U.S. 634 (1978), to support the proposition that the IRA may be invoked to benefit groups of Indians that were not recognized as tribes in Judge Howard dissented, asserting that the Settlement Act should apply to the 31-acre parcel, preserving state The Fourth Circuit, sitting en banc, reheard the case and then affirmed the lower court in a 4-2 opinion. The court of appeals held that, in light of the perceived ambiguity of the meaning of the word now in the phrase any recognized Indian tribe now under Federal jurisdiction in section 479 of the IRA, the Secretary s interpretation of the language authorizing the trust acquisitions for any tribe recognized and under federal jurisdiction at the time of the acquisition was entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). The en banc court split over the question of whether the Settlement Act prohibits the Secretary from acquiring land in trust for the Tribe, four judges holding that the Act does not prohibit the Secretary s authority to make trust acquisitions on behalf of the Tribe. The plaintiffs filed a petition for writ of certiorari on October 18, 2007, and it was granted on February 25, CASE ANALYSIS A crucial part of this case is the proper interpretation of the Indian Reorganization Act of 1934, 25 U.S.C. 461 et seq. The applicable sections of the IRA provide as follows: 465. Acquisition of lands, water rights or surface rights; appropriation; title to lands; tax exemption. The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation Definitions The term Indian as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be consid- (Continued on Page 132)

3 ered Indians. The term tribe wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. The words adult Indians wherever used in this Act shall be construed to refer to Indians who have attained the age of twentyone years. Does the IRA authorize the Secretary to take land by trust acquisition for the Narragansett Indian Tribe? The IRA of 1934 was an extensive amendment to existing federal Indian legislation. The Committee on Indian Affairs report to the House of Representatives says that the amendment s broad purpose is to rehabilitate the Indian s economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism. Particularly, the bill was intended to put an end to allotment of land to individual Indians (a policy under which Indians lost more than two-thirds of their reservation lands) and to authorize a long-term program of purchasing land for the Indians (H.R. Report No. 1804, 731 Cong., 2d sess. (1934)). Petitioner Carcieri claims that the Secretary is not authorized to take title by trust acquisition for the Narragansett Indian Tribe. Carcieri asserts that the text of the IRA unambiguously limits the Secretary s authority to tribes recognized prior to In addition, petitioner Rhode Island contends that the IRA s objectives were not intended for Rhode Island since there were never any federal land allotments or Indian tribes subject to that federal allotment policy in Rhode Island prior to the enactment of the IRA of Petitioners premise is that the Secretary lacked the statutory authority to take the parcel into trust under the IRA because the Tribe is not entitled to the IRA s benefits. Carcieri argues that the IRA restricts the Secretary s trust acquisition authority to tribes that were both federally recognized and under federal IRA s enactment in The Narragansetts do not meet these requirements according to petitioner, because the definition of Indian in 25 U.S.C. 479 says, recognized Indian tribe now under federal jurisdiction [emphasis added]. Petitioner argues that the word now means at the time of the enactment of the IRA in The Narragansetts were not federally recognized and under federal jurisdiction in Carcieri cites several instances of the use of the phrase now or hereafter in the IRA, asserting that if Congress meant now to mean something besides at the time of enactment, it would have used now or hereafter or some other similar phrase as it did in other parts of the statute. Petitioner further relies on the Supreme Court s holdings in several cases which he says stand for the proposition that when Congress uses the word now in a statute, it refers to the time of enactment, not to the time of application. Carcieri cites U.S. v. John, 437 U.S. 634 (1978), for the proposition that by Indian the statute means all persons of Indian descent who are members of any recognized [in 1934] tribe now under federal Respondent, on the other hand, claims that the Secretary is authorized to take title by trust acquisition on behalf of the Narragansett Indian Tribe. Kempthorne asserts that the position taken by the Secretary is consistent with the statutory intent evidenced by the Committee on Indian Affairs Report in (H.R. Report No. 1809, 731 Cong., 2d Sess. (1934).) He argues that the IRA in 25 U.S.C. 479 contains a separate definition of the word tribe and defines it broadly to refer to any Indian Tribe. Respondent s contention is that this separate definition of the word tribe gives the Secretary the authority to acquire land in trust for the Narragansett Indian Tribe, without regard to when it became a federally recognized tribe. Kempthorne further argues that if Congress had meant for the Act to cover Indian tribes under federal jurisdiction at the time of the passage of this IRA, it would have used that phrase, instead of the word now. He points to the fact that Congress did, in fact, use the phrase at the time of passage of this IRA in other provisions of the IRA. He argues that the ambiguity of the language in 25 U.S.C. 479 left a gap for the BIA to fill through its regulations, which extend to any Indian tribe that is federally recognized, without any limitation based on the tribes status in Denying that the John case has any relevance, Kempthorne states that the word now was irrelevant to the John Court s final decision. The respondents position is consistent with current congressional policy, particularly the recent amendment to the IRA, 25 U.S.C. 479a, which confirmed that all federally recognized Indian tribes should be included in the definition of the term Indian under the IRA. Does the Rhode Island Indian Claims Settlement Act prohibit the Secretary from taking land purchased by the Tribe into trust on behalf of the Tribe? The Rhode Island Indian Claims Settlement Act, 25 U.S.C et. seq., legislated a settlement that was reached in two lawsuits brought by the Rhode Island nonbusiness corporation known as the 132 Issue No. 2 Volume 36

4 Narragansett Tribe of Indians, against the state of Rhode Island and private landowners. As a result of the lawsuits, the state of Rhode Island, the town of Charlestown and the Tribe entered into the settlement agreement which allowed the Tribe to recover 1,800 acres of tribal land in exchange for agreeing that state law would continue to apply to that land and that federal legislation would be sought to extinguish the Tribe s aboriginal title to any previously transferred property in the state of Rhode Island. Carcieri asserts a claim to territorial sovereignty over the 31-acre parcel at issue in this case. Allowance of the Secretary s trust acquisition would end the jurisdiction of the state and the town over the land. Petitioner contends that part of the Settlement Act s purpose was to balance the Tribe s need for land against the state s sovereign interests. Petitioner maintains that the balance is upset by the Tribe s trust acquisition of property because the property becomes subject only to federal jurisdiction and the compromise entered into by the state and town is obliterated. On the other hand, the respondent contends that the Settlement Act provided 1,800 acres of land for the Tribe and made those lands subject to state civil and criminal law and jurisdiction of the state in exchange for the Tribe s extinguishment of its aboriginal land claims on lands previously transferred from the Tribe. The Tribe was recognized by the Secretary in 1983 and the settlement lands transferred in trust to the Secretary pursuant to the IRA but subject to the Settlement Act s requirement that the lands remain subject to state criminal and civil law and Kempthorne asserts that the provisions of the Settlement Act speaking to jurisdiction expressly apply only to the American Bar Association 1,800 acres of settlement lands. According to the respondents, the Fourth Circuit correctly rejected the petitioner s attempt to read the Settlement Act to apply state jurisdiction to all lands the Tribe might ever acquire, either directly or as the beneficiary of a trust. SIGNIFICANCE With regard to the first issue, a ruling in petitioner s favor holding that the Secretary has no authority under the IRA of 1934 to take land in trust for the Narragansett Indian Tribe because it was neither federally recognized nor under federal statute s enactment, will limit the ability of the Secretary to make trust acquisitions of property for tribes recognized after The Secretary will not be able to take title to the 31-acre parcel in trust for the tribe. Land owned by the Tribe will be subject to state and town jurisdiction and taxation. Many other actions of the Secretary, on behalf of dozens of Indian tribes federally recognized after 1934, may be challenged as a result of a ruling in favor of petitioner in this case. A ruling in favor of the respondent would confirm the validity of a longstanding interpretation of the IRA allowing the Secretary to make trust acquisitions for tribes recognized after 1934, expanding the homeland acreage held by the tribes, encouraging the economic development of tribes and subjecting the new trust acquisition lands only to tribal and federal The briefs do not address, in detail, the effects of a ruling in favor of respondent for expansion of gaming, under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701, et seq., into new venues. The IGRA generally bans gaming on lands acquired by the Secretary after October 17, 1988, but it does carve out certain exceptions, including one for land 133 located within or contiguous to the boundaries of the reservation of the Indian Tribe on October 17, In the case before the Court, there is a deed restriction that the 31-acre parcel be used for low-income housing. With regard to the second issue in this case, a ruling in favor of petitioners would prohibit the exemption of Indian lands in Rhode Island from state civil and criminal law and state At present, all tribal lands in Rhode Island, except the parcel at issue in this case, are subject to state The state government would not have to contend with mixed jurisdictional sovereignty if the Court rules in favor of Carcieri. A ruling in favor of respondent would allow the 31-acre parcel to be exempted from state jurisdiction and set a precedent for the Tribe s petition for other lands it might purchase in Rhode Island to be held by the Secretary as trust acquisitions exempt from state ATTORNEYS FOR THE PARTIES For Petitioners Donald L. Carcieri, Governor of Rhode Island et al. (Theodore B. Olson (202) ) For Respondents Dirk Kempthorne, Secretary of the Interior et al. (Gregory G. Garre (202) ) AMICUS BRIEFS In Support of Petitioners Donald L. Carcieri, Governor of Rhode Island et al. Alabama et al. (Robert J. Deichert (860) ) Council of State Governments et al. (Richard Ruda (202) ) (Continued on Page 134)

5 In Support of Respondents Dirk Kempthorne, Secretary of the Interior et al. Historians Frederick E. Hoxie, Paul C. Rosier, and Christian W. McMillen (David T. Goldberg (212) ) Law Professors Specializing in Federal Indian Law (Richard A. Guest (202) ) Narragansett Indian Tribe (Thomas C. Goldstein (202) ) National Congress of American Indians (Ian Heath Gershengorn (202) ) Standing Rock Sioux Tribe and Nottawaseppi Huron Band of the Potowatomi (Douglas B.L. Endreson (202) ) 134 Issue No. 2 Volume 36