Narragansett Ind. Tribe of RI v. Narragansett Elec., Civ. A. No. 93-667-T.
| Decision Date | 21 February 1995 |
| Docket Number | Civ. A. No. 93-667-T. |
| Citation | 878 F. Supp. 349 |
| Parties | NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND and Narragansett Indian Wetuomuck Housing Authority, Plaintiffs, v. The NARRAGANSETT ELECTRIC COMPANY, Defendant, and The State of Rhode Island and The Town of Charlestown, Defendants-Intervenors. |
| Court | U.S. District Court — District of Rhode Island |
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John F. Killoy, Wakefield, RI, for plaintiffs.
Andrew B. Prescott, Tillinghast, Collins & Graham, Ronald T. Gerwatowski, C/O Narragansett Elec. Co., Fred A. Kelly, Jr., Randall L. Souza, Peter V. Lacouture, Peabody and Brown, Providence, RI, for defendant.
W. Mark Russo, Adler Pollock & Sheehan, Alan M. Shoer, Atty. Gen.'s Office, James E. Purcell, Steven E. Snow, Patridge, Snow & Hahn, Elizabeth Murdock Myers, Executive Counsel, State of R.I., Providence, RI, for defendants-intervenors.
DECISION AND ORDER
This case is before the Court for consideration of the defendant-intervenors' request for a permanent injunction prohibiting the plaintiffs from constructing a housing complex without first obtaining the various permits and approvals mandated by state law and local ordinances. In passing on that request, the Court is required to address the extent to which a state's civil regulatory jurisdiction extends to the development of land owned by an Indian tribe. That issue is one of first impression in this circuit and one on which there is very little authority.
An evidentiary hearing was held regarding the defendant-intervenors' motion for a preliminary injunction and the parties have, since, stipulated that the evidence presented at that hearing may serve as the basis for the Court's decision regarding the request for a permanent injunction. It should be noted that the request for a permanent injunction relates only to that aspect of the case dealing with construction of the housing complex. The remaining portions of the case, dealing with proposed construction on an adjacent parcel of land and whether the defendant utility company is required to provide electric service for these projects, are not yet ripe for decision.
In the mid-1970s, the Narragansett Indian Tribe (the Tribe) asserted title to certain lands in Charlestown, Rhode Island, claiming that the Tribe's aboriginal title to those lands never had been extinguished. See, Town of Charlestown v. United States, 696 F.Supp. 800, 801-05 (D.R.I.1988) (), aff'd 873 F.2d 1433 (1st Cir.1989). In 1978, the Tribe, the State of Rhode Island (the State) and the Town of Charlestown (the Town) settled those claims by entering into a Joint Memorandum of Understanding (J-MEM) in which the Tribe agreed to relinquish its title claims in exchange for a sum of money and approximately 1,800 acres of land (the settlement lands) that were to be set aside for the Tribe. Congress implemented the settlement agreement by enacting the Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C. § 1701 et seq., (the Settlement Act) "which, for the most part tracks the Joint Memorandum." State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.1994).
The Settlement Act authorizes the Tribe "to establish its own regulations concerning hunting and fishing on the settlement lands," 25 U.S.C. § 1706(a)(3), and exempts the settlement lands, but not income producing activities occurring on them, from "any form of Federal, State, or local taxation." 25 U.S.C. § 1715(a)-(b).1 However, the Settlement Act also stated that "except as otherwise provided in this Act ... the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island." 25 U.S.C. § 1708. The Settlement Act did not specifically address a provision in the J-MEM requiring that development on the settlement lands be governed by a land use plan mutually acceptable to the Tribe and the Town, which plan was to be prepared pursuant to the Rhode Island Comprehensive Planning and Land Use Regulation Act. J-MEM ¶ 14. Although the Tribe received a grant from the State for that purpose, as yet, no such plan has been prepared.
In State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d at 700-06, the Court of Appeals had occasion to construe the jurisdictional provisions of the Settlement Act in the context of the Tribe's proposal to construct a gambling casino on the settlement lands. The Court held that, insofar as gaming activity was concerned, the jurisdiction conferred on the State was subject to the provisions of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, 18 U.S.C. §§ 1166-1168, (IGRA), which exempts the settlement lands from state gambling laws except to the extent provided in IGRA. Id. 19 F.3d at 704-05.2 The Court also held that the State's regulatory authority over other activities occurring on the settlement lands was not exclusive and that, in accordance with the doctrine of Indian sovereignty, the Tribe retains concurrent jurisdiction, particularly with respect to matters of local government. Id. at 701-03. However, the precise nature of that concurrent jurisdiction was left for future determination. Id. at 705.
The parcel of land that is the subject of the defendant-intervenor's request for a permanent injunction in this case (the "housing site") is adjacent to, but not part of, the settlement lands. It is separated from the settlement lands by a town road. The land was purchased by the Wetuomuck Housing Authority (WHA) in 1991 from a private developer, Gilbert and Blackwell, Ltd.
At the time the housing site was purchased, it had been platted and approved by the Town for the construction of eleven single-family residences. In the course of the approval process, a road was built that since has been accepted as a town road. In addition, Gilbert and Blackwell had conveyed to the Town a drainage easement designed to accommodate the runoff of surface water from the road.
In 1990, development of the plat was stalled when the Tribe sued Gilbert and Blackwell in this Court seeking to enjoin construction. In that suit, the Tribe, through its spokesman, John Brown, alleged, among other things, that proposed individual sewage disposal systems (ISDS systems) would pollute underground water supplies on the settlement lands and that excavation would destroy Indian burial grounds and archaeologically significant artifacts protected by federal law. See Narragansett Indian Tribe, et al. v. Maynard, Civ. No. 90-345. Inasmuch as no evidence was presented to support those claims, this Court rejected them and dismissed the Tribe's suit. Shortly after that, the WHA purchased the housing site from Gilbert and Blackwell.
The WHA was established by the Tribe and is recognized by the United States Department of Housing and Urban Development (HUD) as an Indian Housing Authority. HUD provided the financing necessary to purchase the housing site and construct the buildings. In addition, HUD will provide money to manage the project and subsidize the rents of occupants. Although occupancy is open to anyone, HUD funds have been made available pursuant to the Indian Housing Act of 1988, 42 U.S.C. § 1437aa, et seq. and 24 C.F.R. § 905.101 et seq. a program specifically designed to provide housing for Indians. Moreover, it is contemplated that most, if not all of the units, will be occupied by elderly and low-income members of the Tribe.
After purchasing the land, the WHA conveyed it to the Tribe with a deed restriction that it be placed in trust with the United States government for the purpose of affording housing to tribal members. The Tribe applied for trust status but its application has not, yet, been granted. In the meantime, the Tribe has leased the land back to the WHA for the purpose of constructing the project at issue. That lease was approved by the Bureau of Indian Affairs (the BIA).
As already noted, the housing site is adjacent to the Tribe's settlement lands. The Tribe's church, the long house which is the seat of the Tribal Assembly, and the offices where the tribal government meets and federal nutrition and Head Start programs for tribal members are administered all are located in close proximity to the housing site. In addition, the settlement lands are the site of a proposed tribal community center and tribal health center to be constructed with HUD grants.
The housing site is an area of approximately 32 acres and is located within the coastal zone designated in Rhode Island's federally approved Coastal Resources Management Program (CRMP). Moreover, the housing site is in a section of Charlestown zoned to require a minimum of two acres of land for each residential unit. Since the proposed project will contain 50 units, it falls far short of that requirement.
The WHA began construction of the housing complex without a building permit from the Town or state approval of the ISDS systems serving the project. Furthermore, the WHA failed to obtain any determination that the project is consistent with Rhode Island's CRMP or state regulations designed to preserve property of historical or archeological significance. In addition, excavation for the project has infringed on the Town's drainage easement and threatens to destroy it.
The WHA and the Tribe contend that no state permits or approvals are required because the housing complex is located on tribal land and state jurisdiction is precluded by the doctrine of Indian sovereignty. They also point out that the ISDS systems comply with regulations promulgated by the Indian Health Service (IHS), an agency of the Department of Health and Human Services.
The IHS regulations utilize ISDS standards that have been adopted by the ten states surrounding the Great Lakes (the Ten State Standards). Those standards are less stringent than Rhode Island's but there is no evidence...
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