Maynard v. Narragansett Indian Tribe

• Decision Date: 10 August 1992
• Docket Number: Civ. A. No. 92-0122 P.
• Citation: 798 F. Supp. 94
• Parties: Kenneth L. MAYNARD v. NARRAGANSETT INDIAN TRIBE.
• Court: U.S. District Court — District of Rhode Island

798 F. Supp. 94

Kenneth L. MAYNARD v. NARRAGANSETT INDIAN TRIBE.

Civ. A. No. 92-0122 P.

United States District Court, D. Rhode Island.

August 10, 1992.

W. Mark Russo, Adler, Pollock & Sheehan, Providence, R.I., for plaintiff.

John F. Killoy, Wakefield, R.I., for defendant.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

The Narragansett Indian Tribe ("Tribe") moves this Court to dismiss the above-captioned case for lack of subject matter jurisdiction. Because the Tribe has limited sovereign immunity as a federally acknowledged and recognized Indian tribe, the Court grants its motion and dismisses the action.

I. FACTUAL BACKGROUND

Plaintiff Maynard owns land in Charlestown, Rhode Island that abuts the Narragansett Indian Reservation. The Tribe acquired its reservation in 1978 through negotiations with the state and the passage of several state statutes. See R.I.Gen. Laws §§ 37-18-1 to 37-18-15. The Tribe was federally acknowledged and recognized in 1983. See 25 CFR § 83.11; 48 Fed.Reg. 6177-78 (1983). The First Circuit acknowledged the Tribe's federal status in Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). See also Town of Charlestown v. United States, 696 F.Supp. 800, 805 (D.R.I.1988), aff'd without op., 873 F.2d 1433 (1st Cir.1989); Narragansett Indian Tribe v. RIBO, Inc., 686 F.Supp. 48, 49 (D.R.I.1988).

In 1987, Maynard took steps to construct a ninety unit condominium complex on his land. He applied for and received all relevant municipal and state regulatory approvals and permits. Although the Tribe took no action during the administrative stages of the permit and approval application process, it filed suit in federal court alleging various violations of tribal rights. That suit, Narragansett Indian Tribe v. Maynard, C.A. No. 90-0345T, was dismissed with prejudice on September 4, 1991.

The dispute between the two parties has now taken a different tack. Maynard instigated this action in Rhode Island state court, alleging that members of the Tribe had been patrolling his property, accosting his invitees, declaring those individuals to be trespassers, and removing them from the property with threats of physical harm. Rhode Island Superior Court granted, ex parte, Maynard's Motion for Preliminary Injunction on February 18, 1992. The Tribe successfully petitioned for removal of the action to federal court. This Court denied plaintiff's Motion to Remand pursuant to 28 U.S.C. § 1447(c) on May 7, 1992. The Tribe now moves to dismiss the action for lack of subject matter jurisdiction.

II. LEGAL BACKGROUND

A. Federally Acknowledged/Recognized Tribes and Sovereign Immunity

The Narragansett Indian Tribe became a federally acknowledged tribe in 1983. Federal recognition brings with it certain specific rights and privileges.

Upon final determination that the petitioner is an Indian tribe, the tribe shall be eligible for services and benefits from the Federal Government available to other federally recognized tribes and entitled to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes with a government-to-government relationship to the United States as well as having the responsibilities and obligations of such tribes. Acknowledgement shall subject such Indian tribes to the same authority of Congress and the United States to which other federally acknowledged tribes are subject.

25 CFR § 83.11(a) (emphasis added). As a federally recognized tribe, the Narragansett Indian Tribe argues that its sovereignty renders it immune to unconsented suit.

Early in the history of our country, the Supreme Court recognized the sovereignty of the Indian nations. "Indian tribes are distinct, independent political communities, retaining their original natural rights." Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832). This sovereignty has translated into immunity from unconsented suit.

Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Puyallup Tribe, Inc. v. Washington Dep't of Game, 433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit." United States Fidelity & Guaranty Co., supra, 309 U.S. at 512, 60 S.Ct. at 656.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (citations omitted).

In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), the Supreme Court refused to narrow the doctrine of sovereign immunity. "Congress has always been at liberty to dispense with such tribal immunity or to limit it. Although Congress has occasionally authorized limited classes of suits against Indian tribes ... Congress has consistently reiterated its approval of the immunity doctrine. Under these circumstances, we are not disposed to modify the long-established principle of sovereign immunity." Id. 498 U.S. at ___, 111 S.Ct. at 909-10.

In short, "Indian tribes and their governing bodies possess common-law immunity from suit. They may not be sued absent express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress." Burlington Northern R.R. Co. v. Blackfeet Tribe, 924 F.2d 899, 901 (9th Cir.1991).¹

B. Sovereign Immunity and 25 U.S.C. § 1708

Plaintiff argues that sovereign immunity has, in fact, been expressly waived. This argument hangs entirely on the course of events leading to the creation of the reservation and federal tribal recognition.

In 1975, the Tribe filed two actions in federal court claiming approximately 3,200 acres of land in Charlestown, Rhode Island. These actions were settled in 1978 through the Narragansett Indian Land Claims Settlement Agreement. Pursuant to the agreement, the State of Rhode Island deeded approximately 900 acres of public land to the Tribe, and the Federal government purchased an additional 900 acres of private land on behalf of the Tribe. In order to implement this agreement, state and federal legislatures passed two statutes. Congress passed the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq.; Rhode Island passed the Narragansett Indian Land Management Corporation Act, R.I.Gen.L. § 37-18-1 et seq.

It is in this hodge-podge of overlapping state and federal statutes that plaintiff finds the alleged express waiver of common law tribal sovereign immunity. 25 U.S.C. § 1708 states:

Except as otherwise provided in this subchapter, the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.

This provision, plaintiff argues, represents Congress' express abrogation of the Tribe's sovereign immunity.

The Tribe has three responses to this argument. (1) Section 1708 was passed five years prior to federal recognition of the Tribe. Upon federal recognition, the Tribe became immune from suit, and § 1708 no longer applied to the Tribe. (2) Because § 1708 did not deprive the future federally recognized Tribe of its civil regulatory powers, it cannot be read so broadly as to abrogate its immunity. (3) Even if the Tribe's immunity has been abrogated, Congress has never taken the other necessary step to grant the State courts jurisdiction over the now federally recognized Narragansett Tribe.

When evaluating these arguments, it is important to remember the applicable canon of construction for statutes involving Indians. "Statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976) (citations omitted). It is also imperative to focus on the nature of this lawsuit. Plaintiff has sued the Tribe. The discussion of jurisdiction hangs on the all important distinction between Indians as individuals and Indians as a tribe. Bringing suit against the Tribe mimics an action against the United States government. It is for this reason that the Court engages in the ensuing questions of sovereign immunity.

III. DISCUSSION

A. Section 1708, at most, confers jurisdiction only over the settlement lands.

Section 1708 speaks in general terms of state jurisdiction over "settlement lands." The Tribe argues that any applicability § 1708 had over these lands disappeared when the Tribe gained federal recognition.² It is unnecessary to address these time-frame arguments. Jurisdiction over tribal lands simply does not confer jurisdiction over the tribe itself.³ In Long v. Chemehuevi Indian Reservation, 115 Cal.App.3d 853, 171 Cal.Rptr. 733, cert. denied, 454 U.S. 831, 102 S.Ct. 129, 70 L.Ed.2d 109 (1981), a California state court addressed the interplay of sovereign immunity and 28 U.S.C. § 1360 (Public Law 280), a statute which gave certain states civil jurisdiction over actions involving Indians or occurring on Indian land. The court concluded that this statute, much more explicit than the statute concerning the Narragansett Tribe, did not waive the sovereign immunity of the tribe itself. "Congress, in passing 28 U.S.C. § 1360, could have easily expressed its intent to grant the listed states complete jurisdiction over its resident tribes. Congress' failure to so act must be read as a purposeful decision...." Id. 115 Cal.App.3d at 858, 171 Cal.Rptr. 733.

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