Narragansett Indian Tribe of Rhode Island v. Narragansett Elec. Co.

• Decision Date: 09 January 1996
• Docket Number: Nos. 95-1944,95-1945,s. 95-1944
• Citation: 89 F.3d 908
• Parties: NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND and Narragansett Indian Wetuomuck Housing Authority, Plaintiffs--Appellees, v. NARRAGANSETT ELECTRIC COMPANY, Defendant--Appellee. State of Rhode Island, Defendant--Appellant. NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND and Narragansett Indian Wetuomuck Housing Authority, Plaintiffs--Appellees, v. NARRAGANSETT ELECTRIC COMPANY, Defendant--Appellee. Town of Charlestown, Intervenor--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 908

89 F.3d 908

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND and Narragansett

Indian Wetuomuck Housing Authority, Plaintiffs--Appellees, v. NARRAGANSETT ELECTRIC COMPANY, Defendant--Appellee.

State of Rhode Island, Defendant--Appellant.

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND and Narragansett

Indian Wetuomuck Housing Authority, Plaintiffs--Appellees, v. NARRAGANSETT ELECTRIC COMPANY, Defendant--Appellee.

Town of Charlestown, Intervenor--Appellant.

Nos. 95-1944, 95-1945.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 1996.

Decided July 22, 1996.

Alan M. Shoer, Special Assistant Attorney General, with whom Jeffrey B. Pine, Attorney General, James E. Purcell, Partridge, Snow & Hahn, Providence, RI, Phillip M. Sloan, Solicitor, Town of Charlestown, and Bruce N. Goodsell, Assistant Town Solicitor, Westerly, RI, were on brief for appellants.

Randall L. Souza, with whom Fred A. Kelly, Jr., Peter V. Lacouture and Peabody & Brown, Providence, RI, were on brief for the Narragansett Electric Company.

John F. Killoy, Jr., with whom Law Office of H. Jefferson Melish, Wakefield, RI, was on brief for the Narragansett Indian Tribe of Rhode Island and the Narragansett Indian Wetuomuck Housing Authority.

Before TORRUELLA, Chief Judge, ROSENN, ^* Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant-intervenors the town of Charlestown (the "Town") and the State of Rhode Island (together, the "State") seek a permanent injunction prohibiting plaintiffs

                the Narragansett Indian Tribe (the "Tribe") and the Narragansett Indian Wetuomuck Housing Authority (the "WHA") from constructing a housing complex without obtaining various permits and approvals pursuant to state law and local ordinances. 1  At the heart of the issue lies the question of whether the land in question is "Indian country" as that term is defined in 18 U.S.C. § 1151(b).  The district court found that it is, by virtue of being a dependent Indian community, and so declined in part to issue the injunction sought by the State and the Town.  We, however, find it is not, and so, for the reasons stated herein, we reverse in part and affirm in part
                

BACKGROUND

The district court relied on the evidence presented at an evidentiary hearing regarding the State's motion for a preliminary injunction, which evidence the parties stipulated could serve as the basis for the district court's decision. ² Narragansett Indian Tribe v. Narragansett Elec., 878 F.Supp. 349, 352 (D.R.I.1995) ("Narragansett I "). As the parties raise no challenges to the district court's findings, we rely on them as well. ³

In 1991 the WHA purchased the land which is at the center of this dispute (the "housing site") from a private developer. See id. at 354 (detailing history of purchase of the housing site). The housing site is adjacent to the Tribe's other lands, separated from them by a town road. The Tribe's church, the long house which serves as the seat of the Tribal Assembly, and the offices where the tribal government meets and programs for tribal members are administered are all established in close proximity to the housing site; a proposed tribal community center and tribal health center are to be constructed on the settlement lands as well. The approximately 32 acres of the housing site is located within the coastal zone designated in the State's Coastal Resources Management Program ("CRMP"). Also, the section of the Town in which the housing site is located is zoned to require at least two acres of land per residential unit, a requirement the proposed project does not meet, as it will have some fifty units. As the district court noted, although occupancy is open to anyone "it is contemplated that most, if not all of the units, will be occupied by elderly and low-income members of the Tribe." Id.

The United States Department of Housing and Urban Development ("HUD") has recognized the WHA as an Indian Housing Authority, and has provided the financing for the purchase of the housing site and the construction of the buildings. HUD will also provide money both for managing the project and for subsidizing the occupants' rent. The HUD funds have been made pursuant to a program designed to provide housing for Indians. See The Indian Housing Act of 1988, 42 U.S.C. §§ 1437aa-1437ff.

The WHA bought the land, and then conveyed it to the Tribe. A deed restriction requires that the land be placed in trust with the federal government, for the express purpose of providing housing for tribal members. The district court found that the Tribe had applied for trust status, but that the application had not yet been granted. Meanwhile, the land has been leased to the WHA, with the approval of the Bureau of Indian Affairs ("BIA").

The WHA began construction on the housing site without a building permit from the Town or state approval of the individual sewage disposal systems (the "ISDS") serving the project. Nor did the WHA "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." Narragansett I, 878 F.Supp. at 354. The district court found that the excavation for the project has infringed on the Town's drainage easement, and has threatened to alter drainage patterns to the detriment of coastal and groundwater resources. At the same time, however, the ISDS systems meet Indian Health Service ("IHS") regulations. ⁴ "[T]he record is silent regarding the differences, if any, between the State's building code and the Tribe's building code or what the significance of any such differences may be." Id. at 355.

To further complicate the picture, "[t]he evidence demonstrates that the housing site is in close proximity to Ninigret Pond, a fragile salt water estuary that is a prime spawning ground for several species of commercially important fish." Id. The district court found that the pond is "ecologically stressed" already, due to nitrates in the ground water, and that the possibility exists that nitrates from the WHA's ISDS systems could reach the pond "and worsen an already serious problem." Id.

In its detailed opinion, the district court concluded that the housing site is indeed a "dependent Indian community," and thus is Indian country under 18 U.S.C. § 1151. Noting that "tribal sovereignty is no longer an absolute bar to the assertion of state authority in Indian country," Narragansett I, 878 F.Supp. at 359, the court carried out a pre-emption analysis. It concluded that the State's building and zoning regulations were pre-empted, as was its jurisdiction to regulate the ISDS systems. However, it found that Rhode Island's CRMP was not pre-empted, and accordingly enjoined the WHA and the Tribe from occupying buildings on the housing site unless that program's requirements were satisfied. It also enjoined them from interfering with the drainage easement previously conveyed to the Town. ⁵

We review the grant of a permanent injunction under an abuse of discretion standard. See Caroline T. v. Hudson Sch. Dist., 915 F.2d 752, 754-55 (1st Cir.1990) (noting that abuse of discretion standard applies to both preliminary and permanent injunctions); cf. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991) (applying abuse of discretion standard to grant of preliminary injunction).

DISCUSSION

A. The Settlement Act

The State makes its first argument on the basis of the Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C. §§ 1701-1716 (the "Settlement Act"). We begin with the history of the Settlement Act, and then address the State's contention.

1. Background

The background of the relationship between the Tribe and the State has been addressed in some detail by the district court below, Narragansett I, 878 F.Supp. at 353-55, as well as in prior decisions of the courts of this circuit, see Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.), cert. denied, 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 211 (1994); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 15-16 (1st Cir.1993); 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); Narragansett Tribe of Indians v. Murphy, 426 F.Supp. 132, 134 (D.R.I.1976); Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp., 418 F.Supp. 798, 802-03 (D.R.I.1976).

Therefore, rather than enter into a detailed discussion, we will simply outline the essential structure of the historical underpinnings of the State's first argument.

In the mid-1970s, the Tribe brought two actions to establish its right to possession of lands which it contended were unlawfully held by the State as well as private individuals and businesses. The ground for its claims was that the lands had been unlawfully alienated in violation of the Indian Nonintercourse Act, 25 U.S.C. § 177. See Southern R.I. Land Dev. Corp., 418 F.Supp. at 802-03 (recounting history of dispute). The parties to the dispute settled the claims in 1978 by entering into a Joint Memorandum of Understanding. The Tribe relinquished its title claims, and in return received a sum of money ⁶ and effective control over some 1,800 acres of land, whose title was held by a corporation (the "settlement lands"). Implementing legislation was passed by the United States Congress in the form of the Settlement Act, and by the Rhode Island legislature as well, see Narragansett Indian Land Management Corporation Act, 6A R.I. Gen. Laws §§ 37-18-1 to 37-18-15 (1990). See generally Town of Charlestown, 696 F.Supp. at 801-05 (detailing the history and provisions of the Settlement Act).

In 1983, the Narragansetts were officially recognized as an Indian tribe. See Narragansett Indian Tribe, 19 F.3d at 689. In 1988, the Tribe deeded the settlement lands to the BIA, to be held in trust. Id. This court has held that although the Settlement Act allows State civil and criminal jurisdiction over the...