Law

High court rules for R.I. in tribal land case

Lawyer for tribe says decision creates ‘two-tier system’

COURTESY U.S. SUPREME COURT
THE U.S. SUPREME COURT “agrees with the petitioners … that, for purposes §479, the phrase ‘now under federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment,” Justice Clarence Thomas wrote in the majority opinion.
Posted 2/24/09

WASHINGTON – The U.S. Supreme Court today ruled against the Narragansett Indian Tribe of Rhode Island in its sovereignty dispute with the State of Rhode Island and Providence Plantations, reversing an earlier decision by the 1st U.S. Circuit Court of Appeals in Boston.

The decision – penned by Justice Clarence Thomas – was praised by Gov. Donald L. Carcieri and Attorney General Patrick C. Lynch, and criticized by a lawyer for the Narragansett Indian Tribe.

The ruling means “that all laws and statutes of the State of Rhode Island will be applied equally to the Narragansett Indian Tribe as they do to all citizens of Rhode Island,” Lynch and Carcieri said in their joint statement.

“This is a victory for the State of Rhode Island and the Town of Charlestown,” Carcieri added. “I commend the effort put forth by the whole team to preserve and protect the state’s ability to impose the rule of law equally amongst all citizens, most notably Attorney General Lynch and his staff; Joe Larisa; and my legal team of Kerry King and Claire Richards.

“I would like to express great gratitude to Theodore Olson, one of the greatest Supreme Court appellants of our generation, for his guidance in developing the legal argument that resulted in this decision and his effective presentation of the argument before the court.

“With this issue finally put to rest,” the governor added, “I look forward to building a constructive relationship with the Narragansett Indian Tribe.”

Lynch described the ruling as “a tremendous victory for the State of Rhode Island; for the 22 states, from Alaska to Florida, that joined our cause; and for the importance of states’ rights,” adding that “it always struck me as fundamentally wrong – and maybe even un-American – that with the stroke of a pen, the federal government believed it could unilaterally strip a state of its sovereign jurisdiction by taking land into trust.”

Now, he said, “thanks to the crystal clarity of this decision ... Rhode Island has the power and the ability to protect our citizens’ rights, health, safety and welfare everywhere in our state.”

But John Killoy, an attorney for the Narragansett Indian Tribe, described today’s ruling as “an adverse decision that affects not only their sovereignty and their ability to take land into trust but also many tribes across the country.”

Despite existing laws “that say all tribes are to be treated equally,” today’s ruling basically establishes “a two-tier system,” Killoy added. “In effect, we’ve reversed 75 years of policy.”

At issue in the case was a 31-acre parcel in Charlestown purchased by the Narragansetts in 1991.

The tribe, which has been constructing housing for the elderly on the land, says it purchased the property for use in economic development. It had been seeking to place the parcel into federal trust under the U.S. Indian Reorganization Act (IRA) of 1934, an action that would have removed the property from the tax rolls and all state and local government control.

The State of Rhode Island, which had argued that the tribe was seeking to establish a casino or other tax-free enterprise, sued to prevent the land from being taken into trust. It was joined in the case by the Town of Charlestown, while 21 other states filed an amicus curiae (friend of the court) brief with the Supreme Court. Others filing briefs on the state’s behalf included the Rhode Island Statewide Coalition Inc., a taxpayer advocacy group focusing on land-use and quality-of-life issues, which applauded today’s decision in a statement headlined “Victory! ... RISC amicus [curiae] brief proves well worthwhile!”

The dispute was accepted by the high court in a writ of certiorari issued nearly a year ago, on Feb. 25, 2008. Oral arguments were presented before the court on Nov. 3, with Olson speaking on behalf of the town and the state. (READ MORE)

The Supreme Court “agrees with the petitioners … that, for purposes §479, the phrase ‘now under federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment,” Justice Thomas wrote in the majority opinion issued today. The court therefore held that the U.S. secretary of the interior “does not have the authority to take the parcel at issue into trust.”

Still, Justice John Paul Stevens, in a dissenting opinion, criticized Thomas for his “cramped reading” of the Indian Reorganization Act. And Justice Stephen Breyer, who joined the majority opinion, wrote that a tribe may not need to have been officially recognized to have been under federal jurisdiction in 1934.

Killoy, an attorney for the Narragansetts, said that he sees no likelihood of other immediate effects on the Narragansetts, beyond the current land dispute. “The ruling is really very narrow: It bans the state [i.e., the federal government] from taking land into trust for a tribe if it was not recognized in 1934.”

Still, “the tribe is concerned,” he said. And the dispute is far from over. Going forward, “the Narragansetts will seek federal relief, and seek to have the land placed under new regulations,” lobbying “to get new regulations passed,” he said.

“The courts have not necessarily ruled favorably for tribal sovereignty in recent years,” Killoy added, describing that as both an additional concern and a reason to seek a legislative remedy.

The case may have implications for dozens of other tribal-land cases nationwide, Native American Rights Fund lawyer Richard Guest had said last fall.

For tribes like the Mashpee Wampanoag – which did not win federal recognition until 2007, and has applied to place under federal trust 640 acres of land in Middleboro and Mashpee, Mass., that it hopes to use for a casino – the implications could be devastating, Guest told the Cape Cod Times today. Tribal leaders were not available for immediate comment.

But the Oneida Nation was quick to state that its dispute over 13,000 acres of land in upstate New York will not be affected, according to a report by UticaOD.com. “The United States’ annual delivery to the Oneida Nation of treaty cloth for more than 200 years evidences this country’s recognition of the Oneidas under the 1794 Treaty of Canandaigua and soundly rejects any claim that the United States did not recognize the Oneida Nation in 1934,” that tribe declared.

The Narragansett Indian Tribe of Rhode Island has its administrative offices in Charlestown and its Nuweetooun School and Tomaquag Indian Memorial Museum in Exeter. Additional information is available at www.Narragansett-Tribe.org.

News and information from the R.I. Governor’s Office are available at www.governor.ri.gov. For information from the R.I. Office of the Attorney General, visit www.riag.ri.gov.

Information about the U.S. Supreme Court, its schedule and its rulings – including the full decision issued today in the Narraganset tribal land case, “Carcieri v. Salazar (Secretary of the Interior)” – is available at www.SupremeCourtUS.com.

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