Carcieri v. Norton
| Decision Date | 09 February 2005 |
| Docket Number | No. 03-2647.,03-2647. |
| Citation | 398 F.3d 22 |
| Parties | Donald 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 of America, and Town of Charlestown, Rhode Island, Plaintiffs, Appellants, v. Gale A NORTON, in her capacity as Secretary of the Department of the Interior, United States of America, and Franklin Keel, in his capacity as Eastern Area Director of the Bureau of Indian Affairs, within the Department of the Interior, United States of America, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Claire J. Richards, Special Counsel, was on brief, for appellant Governor Donald L. Carcieri.
Neil F.X. Kelly, Assistant Attorney General, with whom, Patrick C. Lynch, Attorney General, were on brief, for appellant State of Rhode Island.
Thomas L. Sansonetti, Assistant Attorney General, with whom Jeffrey Bossert Clark, Deputy Assistant Attorney General, Mary Anne Kenworthy, Office of the Solicitor, U.S. Department of the Interior, William B. Lazarus, Judith Rabinowitz, David C. Shilton and Elizabeth Ann Peterson, Attorneys, Environmental and Natural Resources Division, U.S. Department of Justice, were on brief, for the federal appellees.
Riyaz A. Kanji, with whom Kanji & Katzen, PLLC, Tracy Labin, Richard Guest, of the Native American Rights Fund, Ian Heath Gershengorn, Sam Hirsch, Jenner & Block LLP, and John Dossett of the National Congress of American Indians, were on brief, for the amici curiae National Congress of American Indians, Individual Indian Tribes, and Tribal Organizations.
Larry Long, Attorney General for the State of South Dakota, with whom John P. Guhin, Deputy Attorney General, Richard Blumenthal, Attorney General for the State of Connecticut, with whom Susan Quinn Cobb, Assistant Attorney General, Mark L. Shurtleff, Attorney General for the State of Utah, Phill Kline, Attorney General for the State of Kansas, Lawrence G. Wasden, Attorney General for the State of Idaho, Gregg D. Renkes, Attorney General for the State of Alaska, William H. Pryor, Jr., Attorney General for the State of Alabama, Jeremiah W. (Jay) Nixon, Attorney General for the State of Missouri, William H. Sorrell, Attorney General for the State of Vermont, Wayne Stenehjem, Attorney General for the State of North Dakota, were on brief, for the amici curiae States of Alabama, Alaska, Connecticut, Idaho, Kansas, Missouri, North Dakota, South Dakota, Utah and Vermont.
Stephen P. Collette, with whom Stephen P. Collette & Assocs., was on brief, for the amicus curiae National Coalition Against Gambling Expansion.
C. Bryant Rogers, with whom Roth, VanAmberg, Rogers, Ortiz & Yepa, LLP, Charles A. Hobbs, and Hobbs, Straus, Dean & Walker, LLP, were on brief, for the amicus curiae Mississippi Band of Choctaw Indians.
Before TORRUELLA, Circuit Judge, HOWARD, Circuit Judge, and DiCLERICO, JR.,* District Judge.
This appeal arises from an administrative decision by the Secretary of the Interior to take into trust a 31-acre parcel of land located in Charlestown, Rhode Island ("the Parcel")1 for the benefit of the Narragansett Indian Tribe of Rhode Island. Plaintiffs-appellants Donald L. Carcieri, Governor of Rhode Island, the State of Rhode Island, and the Town of Charlestown, Rhode Island ("the State") brought suit against defendants-appellees Gale A. Norton, Secretary of the United States Department of the Interior, and Franklin Keel, Eastern Area Director, Bureau of Indian Affairs, U.S. Department of the Interior ("the Secretary") seeking to enjoin the decision as contrary to the Indian Reorganization Act, 25 U.S.C. § 461 et seq., the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq., the Administrative Procedures Act, 5 U.S.C. § 706, and for alleged violations of various provisions of the United States Constitution. The parties issued cross-motions for summary judgment and the district court denied the State's motion and granted the Secretary's motion. The State now appeals the district court's grant of summary judgment in favor of the Secretary.
The Narragansetts were aboriginal inhabitants of what is now Rhode Island. See Narragansett Indian Tribe v. Nat'l Indian Gaming Comm'n, 158 F.3d 1335 1336 (D.C.Cir.1998) (citing William G. McLoughlin, Rhode Island 4-5, 9-10 (1978)). In 1975, the Narragansetts instituted two suits against the State of Rhode Island, the Town of Charlestown and individual landowners to recover 3200 acres of land in Charlestown. Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp., 418 F.Supp. 798 (D.R.I.1976); Narragansett Tribe of Indians v. Murphy, 426 F.Supp. 132 (D.R.I.1976). The Tribe asserted that its aboriginal title to the land had not been extinguished because each of the defendants traced his title back to an unlawful alienation of tribal land in violation of the Trade and Intercourse Act of 1790, 25 U.S.C. § 177, due to the lack of congressional approval of the sale. See S. R.I. Land Dev. Corp., 418 F.Supp. at 802-3 ().
On February 28, 1978 the parties settled the lawsuits by entering an agreement, the terms of which were set out in a Joint Memorandum of Understanding ("JMOU") signed by the State, the Tribe, the Town and others. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.1993); H.R.Rep. No. 95-1453, at 25 (1978), reprinted in 1978 U.S.C.C.A.N.1948. In the JMOU the State agreed to provide 900 acres of land to the Narragansetts, and the parties agreed that the federal government would provide $3.5 million for the acquisition of an additional 900 acres.2 The resulting 1800 acres were to be held in trust for the benefit of the tribe by a state-chartered entity, the Narragansett Indian Land Management Corporation, which was created for this purpose. The parties further agreed "[t]hat Federal legislation shall be obtained that eliminates all Indian claims of any kind, whether possessory, monetary or otherwise, involving land in Rhode Island, and effectively clears the titles of landowners in Rhode Island of any such claim." JMOU para. 6; H.R.Rep. No. 95-1453, at 25, 26; see also 25 U.S.C. § 1708. In addition, the parties agreed that "except as otherwise specified in this Memorandum, all laws of the state of Rhode Island shall be in full force and effect on the Settlement Lands, including but not limited to state and local building, fire and safety codes." JMOU ¶ 13; H.R.Rep. No. 95-1453, at 26; see also 25 U.S.C. § 1708.
Subsequently, both the United States Congress and the Rhode Island General Assembly enacted the required implementing legislation. Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq. (2000) (effective September 30, 1978) ("the Settlement Act"); R.I. Gen. Laws §§ 37-18-1 to 37-18-15 (1997) (effective 1979).
At the time of its lawsuits, the Narragansett community was not a federally recognized tribe; rather, it was incorporated as a Rhode Island nonbusiness corporation known as the Narragansett Tribe of Indians. In 1983, the Secretary formally acknowledged the Narragansett Tribe as a federally recognized tribe. Final Determination for Federal Acknowledgment of Narragansett Indian Tribe of Rhode Island, 48 Fed.Reg. 6177 (Feb. 2, 1983).
In 1985, the State transferred the Settlement Lands to the Tribe, and the state-chartered Narragansett Indian Land Management Corporation that had held the land in trust on behalf of the tribe was dissolved. 6A R.I. Gen. Laws 37-18-12 to 18-14. Then, in 1988, following application by the Tribe, the Settlement Lands were taken into trust by the federal government pursuant to section 5 of the Indian Reorganization Act ("IRA"), enacted June 18, 1934, ch. 576, § 5, codified as 25 U.S.C. § 465 (2004). The deed transferring the Settlement Lands to the Bureau of Indian Affairs ("BIA") expressly recognized that this transfer into trust "does not alter the applicability of state law conferred by the Rhode Island Indian Land Claims Settlement Act." In addition, this court has held, with some exceptions, that the Settlement Act allows State civil and criminal jurisdiction over the Settlement Lands, although the Tribe has "concurrent jurisdiction over, and exercise[s] governmental power with respect to, those lands." Narragansett Elec. Co., 89 F.3d at 913 ().
The 31-acre Parcel that is the subject of this dispute was part of the 3200 acres that were claimed by the Tribe in the 1976 lawsuits, but the Parcel did not become part of the 1800 acres of Settlement Lands. Carcieri v. Norton, 290 F.Supp.2d 167, 170 (D.R.I.2003). The Parcel is adjacent to the Settlement Lands, but separated from them by a town road. Id. (citing Narragansett Indian Tribe of R.I. v. Narragansett Elec. Co., 89 F.3d 908, 911 (1st Cir.1996)). In 1991, the Parcel was purchased from a private developer by the Narragansett Indian Wetuomuck Housing Authority (the "WHA") for the purpose of constructing a housing complex. Id. The United States Department of Housing and Urban Development ("HUD") recognized the WHA as an Indian Housing Authority and provided the financing for the purchase of the Parcel and construction of approximately fifty housing units on the site. Id. The HUD funds were provided pursuant to the Indian Housing Act of 1988, 42 U.S.C. §§ 1437aa-ee, which was subsequently repealed by the Native American Housing Assistance and Self-Determination Act of 1996, Pub.L. No. 104-330, 110 Stat. 4016...
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