All federally recognized tribes are entitled to the benefits of
the land-into-trust process, the Bush administration
told the U.S. Supreme Court on Friday.
In a 29-page brief, the Department of Justice backed
the Narragansett Tribe in a long-running dispute
with the state of Rhode Island.
The tribe wants 31 acres placed in trust for a housing
The state, however, contends the Narragansetts can't benefit from
the Indian Reorganization Act, the 1934 law that authorized
the land-into-trust process.
The tribe didn't gain federal recognition until 1983.
But government attorneys said the Bureau of Indian Affairs
can acquire land in trust for any tribe,
regardless of the date of recognition.
"[A]ll recognized tribes are equally entitled
to the benefits of the federal programs established by
the IRA," Solicitor General Paul Clement wrote.
The brief also said the tribe's land claims settlement act
does not affect its rights under the IRA.
In 1978, Congress created an 1,800-acre reservation,
subject to state criminal and civil jurisdiction.
Rhode Island believes the law prohibits all future land-into-trust
acquisitions because Congress extinguished aboriginal title
throughout the state.
The 1978 act "slams the door shut on any argument that any tribe may claim
territorial sovereignty in Rhode Island," the
state wrote in its petition to the high court.
But the Department of Justice said Congress
"knows how to expressly
preclude future acquisition of trust land in a settlement
act," yet did not do that for the Narragansetts.
Other New England tribes are prohibited from making
land-into-trust applications in certain situations,
the brief stated.
On a third issue, the brief counters the state's argument
that the IRA is unconstitutional.
At least three other circuit courts -- the 2nd Circuit, 8th Circuit
and the 10th Circuit -- have upheld the legality of the
The Department of Justice says the BIA's land-into-trust regulations
take into account jurisdictional, taxation and sovereignty
concerns raised by states.
Just this month, the Bush administration adopted
new guidelines that make it harder for tribes to acquire land
away from existing reservations.
The 31 acres at issue in the Narragansett case, in fact, are not
part of the tribe's current reservation.
But they are only a short distance away in the town of Charlestown.
Since the parcel is not part of the reservation that was created
by Congress, it would not
be subject to state criminal and civil jurisdiction.
The state says the tribe could open a tax-free smoke shop or
even a casino on the land.
So far, the 1st Circuit Court of Appeals has backed the tribe's
right to follow the land-into-trust process.
The decision stands in contrast to a slew of rulings in the state
and federal courts that have undermined tribal sovereignty in Rhode Island,
Massachusetts and Maine.
The National Congress of American Indians and the Native American Rights
Fund have been monitoring the Narragansett case for several years.
Dozens of tribes filed a brief with the 1st Circuit in support of
the Narragansett Tribe.
Led by Connecticut's attorney general Richard Blumenthal, who lost
a similar land-into-trust case affecting the Mashantucket Pequot
Tribal Nation, 16 states want the Supreme Court to take the case.
They claim the BIA has "unfettered discretion" to take
land into trust for tribes over the objections of states.
1st Circuit Decisions:En
(July 20, 2007) |
(February 9, 2005)
Briefs and Other Documents:Carcieri
(NARF-NCAI Tribal Supreme Court Project
Island Indian Claims Settlement Act
Narragansett Tribe - http://www.narragansett-tribe.org
Tribal Supreme Court Project - http://www.narf.org/sct/index.html
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