DOJ brief backs land-into-trust process for all tribes

Tuesday, January 29, 2008  

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 project.

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 land-into-trust process.

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 Banc (July 20, 2007) | Panel (February 9, 2005)

Briefs and Other Documents:
Carcieri v. Kempthorne (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
Tribal Supreme Court Project - http://www.narf.org/sct/index.html