Carcieri v. Kempthorne

Decision Date20 July 2007
Docket NumberNo. 03-2647.,03-2647.
PartiesDonald L. CARCIERI, in his capacity as Governor of the State of Rhode Island; State of Rhode Island and Providence Plantations, a sovereign State of the United States; Town of Charlestown, Rhode Island, Plaintiffs, Appellants, v. Dirk KEMPTHORNE,<SMALL><SUP>*</SUP></SMALL> in his capacity as Secretary of the Department of the Interior, United States; Franklin Keel, in his capacity as Eastern Area Director of the Bureau of Indian Affairs, within the Department of Interior, United States, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

C. Bryant Rogers, Roth, VanAmberg, Rogers, Ortiz & Yepa, LLP, Charles A. Hobbs, and Hobbs, Straus, Dean & Walker, LLP on brief for Mississippi Band of Choctaw Indians, amicus curiae.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.

EN BANC OPINION

LYNCH, Circuit Judge.

The en banc court has convened to consider a series of issues concerning the relative powers of the federal Secretary of the Interior, the State of Rhode Island, and the Narragansett Tribe over a parcel of land taken into trust and designated for Indian housing. The case is in many ways a proxy for the State's larger concerns about its sovereignty vis-à-vis federal and tribal control over lands within the state.

In 1998, the Secretary of the Interior agreed to take into unreserved trust for the Tribe's benefit a 31- or 32-acre parcel in Charlestown, Rhode Island (the Parcel). Then-Secretary Gale Norton cited her powers under section 5 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 465. The Tribe had purchased the Parcel in 1991.

Under the Indian Commerce Clause of the Constitution, U.S. Const. art. I, § 8, cl. 3, Congress has plenary power to legislate on the subject of Indian tribes. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). As a result, Congress may preempt the operation of state law in Indian country. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983). Under section 5 of the IRA, Congress has authorized the Secretary "in his discretion" to acquire and take into trust for Indian tribes "any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians." 25 U.S.C. § 465. The Secretary may take land into trust for these purposes, as was done here, without the consent of the State.1

The Secretary's acquisition of land into trust for Indians results in the land becoming "Indian country." 18 U.S.C. § 1151. Generally speaking, primary jurisdiction over land that is Indian country rests with the federal government and the Indian tribe inhabiting it, not with the state. Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 527 n. 1, 118 S.Ct. 948, 140 L.Ed.2d 30 (1988). To be more precise,

"[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." When, however, state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land. . . .

Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (citation omitted) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)).

Recognizing a conflict between state jurisdiction and the federal interest in encouraging tribal self-governance, the Secretary's regulations under the IRA provide that "none of the laws . . . of any State ... limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property . . . shall be applicable" to land held in trust for a tribe by the United States. 25 C.F.R. § 1.4(a). This provision is subject to the Secretary's power in specific cases or areas to make applicable those local laws determined to be in the best interest of the Indian owners "in achieving the highest and best use of [the] property." Id. § 1.4(b).

Concerned over the loss of sovereignty over the Parcel and what it may portend for the future, the State, its Governor, and the town of Charlestown (collectively, the State), sued the Secretary of the Interior, now Dirk Kempthorne, and the Regional Director of the Bureau of Indian Affairs (BIA), Franklin Keel, in federal court. See Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I.2003). Having exhausted administrative remedies, the State brought suit under the Administrative Procedure Act, 5 U.S.C. § 702, seeking review of the Secretary's decision to take the Parcel into trust. Id. at 169, 172.

The State's case asserts three major theories. First, the State argues that the IRA does not authorize the Secretary to take land into trust for any tribe, including the Narragansetts, that first received federal recognition after June 18, 1934, the effective date of the IRA. Second, the State argues that the 1978 Rhode Island Indian Claims Settlement Act (the Settlement Act), 25 U.S.C. §§ 1701-1716, restricts the Secretary's authority to place the Parcel into trust pursuant to the IRA. Third, the State argues that the Constitution prohibits this exercise of authority by the Secretary.2

As to the IRA, the State argues that the Narragansetts do not meet the definition of "Indian" contained in 25 U.S.C. § 479. The pertinent definition recognizes, inter alia, "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." 25 U.S.C. § 479 (emphasis added). The State reads "are members ... now under Federal jurisdiction" to plainly and literally mean the 1934 effective date of the IRA. The State thus contends that the Secretary has no authority under the IRA to take land into trust for any tribe that was not federally recognized in 1934. As a result, the State argues, the Secretary is precluded entirely from placing the Parcel into trust for the Narragansetts, who were not recognized as a tribe until 1983.

Next, the State argues that the terms of the Settlement Act preclude the Secretary from placing the Parcel into trust because the Settlement Act is a later specific act of Congress that must be read to have explicitly and implicitly cabined the...

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