Carcieri v. Kempthorne , 497 F.3d 15 ( 2005 )

United States Court of Appeals
For the First Circuit
No. 03-2647
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Circuit Judge,
Howard, Circuit Judge,
and DiClerico, Jr.,* District Judge.
Joseph S. Larisa, Jr., Assistant Solicitor for Indian Affairs,
was on brief, for appellant Town of Charlestown.
Claire J. Richards, Special Counsel, was on brief, for
appellant Governor Donald L. Carcieri.
Neil F.X. Kelly, Assistant Attorney General, with whom,
*
Of the District of New Hampshire, sitting by designation.
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.
REHEARING OPINION
September 13, 2005
TORRUELLA, Circuit 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.
I. Background
The Narragansetts were aboriginal inhabitants of what is
now Rhode Island. See Narragansett Indian Tribe v. Nat'l Indian
1
The parcel is known as Assessor's Plat 117, Lot 119 of
Charlestown, Rhode Island.
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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 (recounting the
history of the dispute).
A. The Settlement Agreement
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 State 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
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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).
2
These federal funds were authorized and appropriated in 1978 and
the 900 acres of land was subsequently purchased. 25 U.S.C.
§§ 1702(d), 1703, 1704, 1707, 1710 (1978).
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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 (quoting Rhode Island v.
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Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir. 1994)
(holding that the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-
2721, 18 U.S.C. §§ 1166-1168, applies to the Settlement Lands)).
B. The Parcel
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 (codified as 25 U.S.C.
§§ 4101-4243 (2004)).
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In 1992, the WHA transferred the Parcel to the Tribe with
a deed restriction that the Parcel be placed in trust with the
federal government for the express purpose of providing housing for
tribe members. Carcieri, 290 F. Supp. 2d at 171 (citing
Narragansett Elec. Co., 89 F.3d at 911).
The Tribe and the WHA commenced construction of the
housing project without obtaining a building permit from the town
or the state's approval of the individual sewage disposal systems
serving the project. Narragansett Elec. Co., 89 F.3d at 912. As
a result, the State of Rhode Island and Town of Charlestown sought
injunctive relief prohibiting the Narragansetts and the WHA from
constructing the housing complex without obtaining the proper
permits and approvals. Narragansett Indian Tribe v. Narragansett
Elec. Co., 878 F. Supp. 349 (D.R.I. 1995). The District Court
found the proposed housing project detrimental to coastal and
groundwater resources, but also held that the Parcel was a
"dependent Indian community" within the meaning of 18 U.S.C. § 1151(b) and therefore denied injunctive relief. Id. at 355-57. On
appeal this court held that the land for the housing project was
not a "dependent Indian community," because it lacked federal
ownership of the land and lacked federal action to "set aside" the
land. Narragansett Elec. Co., 89 F.3d at 914. Thus, the Parcel
could not be considered Indian country under 18 U.S.C. § 1151, and
therefore the housing project being constructed on the site was not
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exempt from state and local building and zoning restrictions.
Accordingly, this court reversed the district court and directed
the district court to enter an order granting the injunction. Id.
at 922.
C. The Current Dispute
The Indian Reorganization Act of 1934 authorizes the
Secretary of the Interior to acquire lands in trust "for the
purpose of providing land for Indians." 25 U.S.C. § 465. The
Tribe initially applied to have the United States take the 31-acre
Parcel into trust in 1993. However, this application was held in
abeyance while the Narragansett Elec. Co. litigation was pending.
In 1997, after the resolution of Narragansett Elec. Co. by this
court in 1996, the Tribe submitted a second, updated application to
the Eastern Area Office of the BIA requesting trust acquisition of
the Parcel. On March 6, 1998, the BIA informed the Tribe of its
decision to approve the Tribe’s application for trust acquisition
of the Parcel. Letter from Franklin Keel, Eastern Area Director,
BIA, to Matthew Thomas, Chief Sachem, Narragansett Indian Tribe
(Mar. 6, 1998). In April 1998, the State and Town each appealed
the decision to the Interior Board of Indian Appeals (the "IBIA").
On June 29, 2000, the IBIA affirmed the BIA's decision to take the
land into trust. Town of Charlestown v. E. Area Dir., Bureau of
Indian Affairs, IBIA 98-88-A and 98-89-A, 35 IBIA 93 (2000).
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As the district court noted, the IBIA rejected the
State's and Town's challenges to several determinations made by the
BIA in accepting the Parcel into trust.
Specifically, the board concluded that the
Settlement Act did not prohibit the secretary
from acquiring lands other than the settlement
lands into trust for the benefit of the
Narragansetts. 35 IBIA 100-101. Also, the
board rejected plaintiffs' argument that the
BIA, either in all trust acquisition
proceedings, or in view of the specific
circumstances surrounding the tribe's trust
application, was required to consider the
possible use of the parcel for gaming purposes
under the Indian Gaming Regulatory Act ("the
IGRA"), 25 U.S.C. § 2701 et. seq., and to
impose a restriction precluding such use. 35
IBIA at 101-103.
Carcieri, 290 F. Supp. 2d at 172. The IBIA further concluded that
the BIA was not required to prepare a federal consistency
determination for the proposed housing project as a prerequisite to
trust acquisition of the Parcel, and therefore the BIA did not
violate the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.
35 IBIA at 104-105.
The State then filed an action against the Secretary
seeking reversal of the Secretary's decision and declaratory and
injunctive relief. In a detailed opinion, the district court
granted summary judgment on behalf of the Secretary, upholding the
decision to take the Parcel into trust.
The State now appeals to this court. The State alleges
that (1) the Secretary did not have the authority under the IRA to
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acquire the land in trust for the benefit of the Narragansetts; (2)
the IRA constitutes an unlawful delegation of congressional
authority and offends the Enclave Clause, the Admissions Clause,
and the Tenth Amendment of the Constitution; (3) the Rhode Island
Indian Land Claims Settlement Act of 1978 prohibits the creation of
sovereign territory for the Narragansetts in Rhode Island; and (4)
the Secretary's acceptance of the Parcel into trust was arbitrary,
capricious, and an abuse of discretion in violation of the APA
and/or otherwise not in accordance with the law.
II. Analysis
A grant of summary judgment is appropriate when the
evidence before the court shows that "that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. Fed. R. Civ. P. 56(c)."
Seaboard Surety Co. v. Greenfield Middle Sch. Bldg. Comm., 370 F.3d
215, 218 (1st Cir. 2004). In ruling on a motion of summary
judgment, a court must view "the facts in the light most favorable
to the non-moving party, drawing all reasonable inferences in that
party's favor." Barbour v. Dynamics Research Corp., 63 F.3d 32, 36
(1st Cir. 1995) (citation omitted). An issue is "genuine" for
purposes of summary judgment if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,"
and a "material fact" is one which "might affect the outcome of the
suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8
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F.3d 88, 90 (1st Cir. 1993) (quoting Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 248 (1986)). The standards are the same where,
as here, both parties have moved for summary judgment. Bientkowski
v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir. 2002) (citing
Charles Alan Wright, et al., Federal Practice and Procedure § 2720,
at 335-36 (3d ed. 1998)).
We review the district court's grant of summary judgment
de novo, and we may affirm the district court's decision on any
sufficient ground supported by the record. Rodríguez v. Smithkline
Beecham, 224 F.3d 1, 5 (1st Cir. 2000).
Our review of the Secretary's decision to take the Parcel
into trust is governed by § 706(2) of the Administrative Procedures
Act, which provides that the reviewing court shall:
hold unlawful and set aside agency action,
findings, and conclusions found to be–-
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right;
(D) without observance of procedure required
by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of
an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by
the reviewing court.
In making the foregoing determinations, the
court shall review the whole record or those
parts of it cited by a party, and due account
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shall be taken of the rule of prejudicial
error.
5 U.S.C. § 706(2).
A. The Secretary's Authority to accept the Parcel into trust
The State asserts that the Secretary lacked statutory
authority to take the Parcel into trust under the IRA, 25 U.S.C.
§ 465, because the Narragansett Indian Tribe is not entitled to the
IRA's benefits. Under the IRA, "[t]he Secretary of the Interior is
authorized, in his discretion, to acquire . . . any interest in
lands, . . . including trust or otherwise restricted allotments
. . . for the purpose of providing land for Indians." 25 U.S.C.
§ 465. The IRA defines the term "Indian" as:
all persons of Indian descent who are members
of any recognized Indian tribe now under
Federal jurisdiction, and all persons who are
descendants of such members who were, on
June 1, 1934, residing within the present
boundaries of any Indian reservation, and
shall further include all other persons of
one-half or more Indian blood . . . .
25 U.S.C. § 479 (emphasis added). The State argues that the term
"now" in § 479 should be read as meaning "June 1934" and not
"today." Thus, the state suggests that a two-prong test must be
met for a tribe to be entitled to the benefits of § 465 of the IRA:
unless the tribe was both (1) recognized and (2) under federal
jurisdiction in 1934, the State would have us find that the
Secretary is not allowed to take the State land into trust for the
benefit of the tribe. Since the Narragansett Tribe was neither
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federally recognized, nor under federal jurisdiction in June of
1934 when the IRA was enacted, the State argues that the Tribe is
not entitled to the benefits of the IRA. We disagree, and find
that the Secretary's authority under the IRA extends to the
Narragansett Tribe, regardless of the status of its acknowledgment
in 1934.
The Narragansett Indian Tribe was acknowledged by the
Department of the Interior in 1983. In acknowledging the
Narragansett Tribe, the Department stated that "the Narragansett
community and its predecessors have existed autonomously since
first contact, despite undergoing many modifications." Final
Determination for Federal Acknowledgment of Narragansett Indian
Tribe of Rhode Island, 48 Fed. Reg. 6177, 6178 (Feb. 10, 1983).
Indeed, the government's formal acknowledgment noted that "[t]he
tribe has a documented history dating from 1614." Id.We find that the Department of the Interior's
longstanding interpretation of the term "now" in the statute should
be accorded particular deference. See North Haven Bd. of Ed. v.
Bell, 456 U.S. 512, 522, n.12 (1982) ("In construing a statute,
this Court normally accords great deference to the interpretation,
particularly when it is longstanding, of the agency charged with
the statute's administration."); NLRB v. Bell Aerospace Co., 416
U.S. 267, 274-75 (1974) ("a court may accord great weight to the
longstanding interpretation placed on a statute by an agency
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charged with its administration"); Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 381 (1969) ("the construction of a statute by
those charged with its execution should be followed unless there
are compelling indications that it is wrong."). For seventy years
the Department of the Interior has read "now" in Section 479 as
meaning "today" rather than "1934." Thus, to change this reading
of the statute here would impact scores of trusts created for the
benefit of Indians over the last 70 years.
The State relies on two cases involving the unique
circumstances of the Mississippi Choctaw Indians to support its
reading of the IRA, United States v. John, 437 U.S. 634, 650
(1978); United States v. State Tax Comm'n, 505 F.2d 633, 642 (5th
Cir. 1974). Neither of these cases sufficiently supports the
State's conclusion.
The Mississippi Choctaws' tribal status was extinguished
in 1831 by the United States Senate's ratification of the Treaty of
Dancing Rabbit Creek. Carcieri 290 F. Supp. 2d at 180 (citing
State Tax Comm'n, 505 F.2d at 640-43). After that time, the
Choctaws did not maintain a tribal organization or manner of
living. Thus, in 1934, when the IRA was enacted, "the band was not
a tribe as defined by the IRA." Id. The Fifth Circuit therefore
found that the IRA of 1934 did not include the Mississippi
Choctaws, and that even a 1944 Proclamation by the Department of
Interior which "purported to recognize the tribal organization of
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the Mississippi Band of Choctaw Indians," could not cure the Act's
omission. State Tax Comm'n, 505 F.2d at 642-43.
However, just two years later, the Supreme Court
disagreed with the Fifth Circuit and held in United States v. John
that the IRA of 1934 does apply to the Mississippi Choctaws. The
Supreme Court's reasoning was as follows:
The Court of Appeals and the Mississippi
Supreme Court held, and the State now argues,
that the 1944 proclamation had no effect
because the Indian Reorganization Act of 1934
was not intended to apply to the Mississippi
Choctaws. Assuming for the moment that
authority for the proclamation can be found
only in the 1934 Act, we find this argument
unpersuasive. The 1934 Act defined "Indians"
not only as "all persons of Indian descent who
are members of any recognized [in 1934] tribe
now under Federal jurisdiction," and their
descendants who then were residing on any
Indian reservation, but also as "all other
persons of one-half or more Indian blood." 48
Stat. 988, 25 U.S.C. § 479 (1976 ed.). There
is no doubt that persons of this description
lived in Mississippi, and were recognized as
such by Congress and by the Department of the
Interior, at the time the Act was
passed. . . . The references to the
Mississippi Choctaws in the legislative
history of the Act . . . confirm our view that
the Mississippi Choctaws were not to be
excepted from the general operation of the
1934 Act.
John, 437 U.S. at 649-50 (parenthetical in original).
In John, the Supreme Court concluded that the IRA may be
invoked for the benefit of groups of Indians that were not
recognized as tribes in 1934. The Court focused on the fact that,
while the Choctaws were not a federally recognized tribe in
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Mississippi at the time the IRA was enacted, there were individual
"persons of one-half or more Indian blood" living in Mississippi at
the time, and both the state and federal government recognized that
the Indians were there. Id. at 650. This is distinctly different
from the State's two-part test, which would require that an Indian
tribe be both (1) recognized and (2) under federal jurisdiction at
the time of the Act's passage.3
While the parenthetical "[in 1934]" lends support to the
State's assertion that "now" should be read as "in 1934," we agree
with the district court that it does not appear that the reading of
this particular term in the IRA was before the Supreme Court for
consideration, and the Court did not give further explanation for
the inclusion of the parenthetical.
Notwithstanding the potential support found for the
State's assertion in the Supreme Court's inclusion of "[in 1934]"
in John, we find that Congress's recent clarification of the Indian
Reorganization Act makes clear that the Secretary has the authority
to extend IRA benefits to all federally recognized tribes,
regardless of their acknowledgment status on the date of the IRA's
enactment. In 1994, Congress enacted the Federally Recognized
Indian Tribe List Act ("List Act"), Pub. L. No. 103-454, 108 Stat.
3The land at issue in John was taken into trust between 1934 and
1944, thus, the authority for the Secretary's actions could not be
justified on the basis of federal recognition, regardless of
whether "now" means "in 1934" or not.
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4791 (1994), which requires the Secretary of the Interior to keep
a list of all federally recognized tribes, which "should reflect
all of the federally recognized Indian tribes in the United States
which are eligible for the special programs and services provided
by the United States to Indians because of their status as
Indians." Pub. L. No. 103-454, § 103. That statute, codified as
25 U.S.C. § 479a, defines the term "tribe" as "any Indian or Alaska
Native tribe, band, nation, pueblo, village or community that the
Secretary of the Interior acknowledges to exist as an Indian
tribe." 25 U.S.C. § 479a(2). The House Report accompanying the
List Act explains that federal recognition "establishes tribal
status for all federal purposes." H.R. Rep. No. 103-781, at 3
(1994). Earlier the same year, Congress amended the IRA, Pub. L.
No. 103-263, 108 Stat. 707, to clarify that:
[d]epartments or agencies of the United States
shall not promulgate any regulation or make
any decision or determination pursuant to the
Act of June 18, 1934 . . . with respect to a
federally recognized Indian tribe that
classifies, enhances, or diminishes the
privileges and immunities available to the
Indian tribe relative to other federally
recognized tribes by virtue of their status as
Indian tribes.
25 U.S.C. § 476(f), and that any such determination by a federal
agency that would have the effect of discriminating among
recognized tribes, "shall have no force or effect." 25 U.S.C. § 476(g).
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The federal acknowledgment regulations pursuant to which
the Narragansett Tribe attained federal recognition echo these
enactments. The regulations provide that "[t]he newly acknowledged
tribe shall be considered a historic tribe and shall be entitled to
the privileges and immunities available to other federally
recognized historic tribes by virtue of their government-to-
government relationship with the United States." 25 C.F.R. 83.12(a)
(2004).
These statutory and regulatory provisions make clear that
the Secretary's IRA authority extends to the Narragansett Indian
Tribe regardless of the status of its acknowledgment in 1934.
Indeed, these provisions preclude the Secretary from making the
determination sought by the State, that the tribe is ineligible for
the benefits of § 465 of the IRA because it was acknowledged after
the enactment of the IRA. Such a determination would diminish the
Tribe's privileges in relation to other federally recognized
tribes, contrary to the amended IRA's plain language. 25 U.S.C.
§ 476(f).
B. Constitutional Challenges to 25 U.S.C. § 465The State raises multiple challenges to the
constitutionality of the IRA, including a charge that the authority
granted to the Secretary to take land into trust is an
unconstitutional delegation of congressional powers and that taking
State land into trust pursuant to the IRA diminishes state
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sovereignty in violation of the Tenth Amendment, the Enclave
Clause, and the Admissions Clause, and exceeds Congress's authority
under the Indian Commerce Clause of the Constitution.
1. The Nondelegation Doctrine
The State contends that § 465 of the IRA is an
unconstitutional delegation of legislative power to the Secretary
of the Interior because the only limitation it places on the
Secretary's trust-taking authority is that the trust acquisition
must be "for the purpose of providing land for Indians." 25 U.S.C.
§ 465. Thus, the State argues, Congress failed to articulate
sufficient standards to guide the Secretary's trust determinations.
Article I, Section I, of the Constitution provides that
"[a]ll legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and
House of Representatives." The Supreme Court has repeatedly said
that "when Congress confers decisionmaking authority upon agencies
Congress must 'lay down by legislative act an intelligible
principle to which the person or body authorized to [act] is
directed to conform.'" Whitman v. Am. Trucking Ass'ns, Inc., 531
U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr. & Co. v. United
States, 276 U.S. 394, 409 (1928)). The State contends that § 465
lacks the required "intelligible principle."
The statute provides that:
The Secretary of the Interior is authorized,
in his discretion, to acquire, through
-20-
purchase, relinquishment, gift, exchange, or
assignment, any interest in lands, water
rights, or surface rights to lands, within or
without existing reservations, including trust
or otherwise restricted allotments, whether
the allottee be living or deceased, for the
purpose of providing land for Indians.
For the acquisition of such lands . . ., there
is authorized to be appropriated, . . . a sum
not to exceed $2,000,000 in any one fiscal
year: Provided, That no part of such funds
shall be used to acquire additional land
outside of the exterior boundaries of Navajo
Indian Reservation for the Navajo Indians in
Arizona, nor in New Mexico, in the event that
legislation to define the exterior boundaries
of the Navajo Indian Reservation in New Mexico
. . . becomes law.
. . .
Title to any lands or rights acquired pursuant
to this Act or the Act of July 28, 1955 (69
Stat. 392), as amended (25 U.S.C. 608 et seq.)
Shall be taken in the name of the United
States in trust for the Indian tribe or
individual Indian for which the land is
acquired, and such lands or rights shall be
exempt from State and local taxation.
25 U.S.C. § 465.
To support its nondelegation doctrine argument, the State
relies on an Eighth Circuit decision, ultimately vacated by the
Supreme Court, that found § 465 to be a standardless delegation
with so few "boundaries," or "intelligible principles," that "it
would permit the Secretary to purchase the Empire State Building in
trust for a tribal chieftain as a wedding present." South Dakota
v. United States Dept. of Interior, 69 F.3d 878, 882 (8th Cir.
1995), vacated by 519 U.S. 919 (1996). As the district court
noted, the Supreme Court chose not to publish an opinion explaining
-21-
the majority's reasoning for vacating the Eighth Circuit opinion.
Therefore the vacated decision has no precedential value and we
will not rely on it here.
The Tenth Circuit addressed the validity of Congress'
delegation of trust acquisition authority under § 465 in United
States v. Roberts, 185 F.3d 1125 (10th Cir. 1999). In Roberts, the
Tenth Circuit held that Congress properly delegated authority to
the Secretary of the Interior to acquire land in trust for Indians.
Id. at 1137. The Tenth Circuit found that the statute itself
provides standards for the Secretary's exercise of discretion and
noted that it had previously acknowledged that the statute places
limits on the Secretary's discretion. See McAlpine v. United
States, 112 F.3d 1429, 1432 n.3 (10th Cir. 1997)(citing South
Dakota, 69 F.3d at 887-88 (Murphy, J. dissenting)). For example,
"the statute provides any land must be acquired for Indians as
defined in 25 U.S.C. § 479 and funds appropriated for the
acquisitions may not be used to provide land for Navajos outside
their reservation boundaries." Roberts, 185 F.3d at 1137(citations omitted). In addition, "the legislative history
identifies goals of 'rehabilitating the Indian's economic life' and
'developing the initiative destroyed by . . . oppression and
paternalism,' of the prior allotment policy and indicates the
Secretary must assure continued 'beneficial use by the Indian
occupant and his heirs.'" Id. (citations omitted). We agree with
-22-
the district court's conclusion that the reasoning in Roberts is
persuasive, and we find, for the same reasons articulated in
Roberts, that § 465 is not an unconstitutional delegation of
legislative power. Id.
2. The Tenth Amendment and the Indian Commerce Clause
The State contends that § 465 of the IRA offends the
Tenth Amendment by generally encroaching on state sovereignty and
that Congress's Article I Indian Commerce Clause authority does not
extend to the abrogation of state sovereignty. We agree with the
conclusion of the district court that this argument fails.
Congress' authority to regulate Indian affairs is clearly
within the enumerated powers of the federal government. See U.S.
Const. art. I., § 8, cl. 3 (conferring upon Congress the power
"[t]o regulate commerce . . . with the Indian tribes."); see also
Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting that Congress
has plenary power "to deal with the special problems of Indians,"
including the power to legislate). The Tenth Amendment reserves to
the States, or the People, those powers not delegated to the United
States by the Constitution. The Supreme Court has interpreted the
Tenth Amendment to be a mirror of the enumerated powers embodied in
Article I. New York v. United States, 505 U.S. 144, 156 (1992)
("If a power is delegated to Congress in the Constitution, the
Tenth Amendment expressly disclaims any reservation of that power
to the States"). Therefore, because the power to regulate Indian
-23-
affairs is conferred on Congress, its exercise does not offend the
Tenth Amendment.
3. The Enclave Clause
The State claims that the Federal government may not
acquire lands to be held in trust for the benefit of an Indian
tribe unless it has secured the consent of the State pursuant to
the Enclave Clause of the Constitution. U.S. Const. art. I, § 8,
cl. 17. The Enclave Clause provides Congress with the power to
exercise "exclusive legislative" authority "over all Places
purchased by the Consent of the Legislature of the State in which
the Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings." Id. This was intended
to ensure that the "places on which the security of the entire
Union may depend" would not "be in any degree dependent on a
particular member of it." Fort Leavenworth R.R. Co. v. Lowe, 114
U.S. 525, 530 (1885).
Indian reservations, however, are not federal enclaves,
and instead represent land owned by the United States for public
purposes. "Such ownership and use without more do not withdraw the
lands from the jurisdiction of the state," Surplus Trading Co. v.
Cook, 281 U.S. 647, 650 (1930), and State consent is therefore not
required. The Supreme Court recently confirmed that lands held in
trust for the benefit of tribes are not subject to the exclusive
jurisdiction of the United States:
-24-
Our cases make clear that the Indians' right
to make their own laws and be governed by them
does not exclude all state regulatory
authority on the reservation. State
sovereignty does not end at a reservation's
border. Though tribes are often referred to as
"sovereign" entities, it was "long ago" that
"the Court departed from Chief Justice
Marshall's view that 'the laws of [a State]
can have no force' within reservation
boundaries.
Nevada v. Hicks, 533 U.S. 353, 361 (2001) (quoting Worcester v.
Georgia, 31 U.S. (6 Pet.) 515, 561 (1832)); see also Surplus
Trading Co., 281 U.S. at 651 (holding the Indian reservation out as
an example of land owned by the United States that does not
constitute a federal enclave because the civil and criminal laws
still have partial application therein). Therefore, we find that
the Secretary's acquisition of the Parcel into trust does not
violate the Enclave Clause.
4. The Admissions Clause
The State also contends that the trust acquisition of the
Parcel offends the Admissions Clause of the Constitution. U.S.
Const. art. IV, § 3, cl. 1. The Admissions Clause provides: "New
States may be admitted by the Congress into this Union; but no new
State shall be formed or erected within the Jurisdiction of any
other State; . . . or Parts of States, without the Consent of the
Legislatures of the States concerned as well as of the Congress."
Id.
-25-
The trust acquisition, however, does not amount to the
establishment of a new state within the meaning of the Admissions
Clause. For purposes of the Admissions Clause, "state" refers to
a body equal in power to the existing states. Coyle v. Smith, 221
U.S. 559, 566-67 (1911) (quoting U.S. Const. art. IV, § 3, cl. 1.).
The Supreme Court, in Coyle interpreted that "'[t]his Union' was
and is a union of States, equal in power, dignity, and authority,"
Coyle, 221 U.S. at 567, and that Congress does not have the "power
to admit a new state which shall be any less a state than those
which compose the Union." Id. at 568. Since the trust acquisition
does not confer statehood status, it does not offend the Admissions
Clause.
C. The Rhode Island Indian Claims Settlement Act
We now turn to the State's argument that the Rhode Island
Indian Claims Settlement Act prohibits the Secretary from
converting the Parcel into an unrestricted federal trust.4 The
State offers several arguments in support of its position. First,
the State argues that allowing the Secretary to take non-Settlement
Lands into trust for the Tribe disrupts the special balance of
4
When the Secretary takes land into trust for the use of Indians
pursuant to the IRA of 1934, the land is held under the
superintendence of the Federal Government and is ordinarily exempt
from certain state laws, including "(1) state or local taxation,
see 25 U.S.C. § 465; (2) local zoning and regulatory requirements,
see 25 C.F.R. § 1.4(a); or, (3) state criminal and civil
jurisdiction, unless the tribe consents to such jurisdiction, see
25 U.S.C. §§ 1321(a), 1322(a)." Connecticut ex rel. Blumenthal v.
U.S. Dep't of Interior, 228 F.3d 82, 85-86 (2d Cir. 2000).
-26-
rights and allocation of powers between the State, the Federal
Government, and the Tribe that were negotiated by the parties, laid
out in the JMOU and then implemented through the Settlement Act.
Thus, the State asserts that the Settlement Act precludes the
Tribe, and any "successor in interest" –- here meaning the
Secretary -- from disrupting this allocation by acquiring
additional, non-settlement lands into trust and thereby removing
them from the jurisdiction and laws of the State. Second, the
State contends that § 1707(c), as well as portions of § 1705(a)(3)
and § 1712(a)(3) of the Settlement Act, eliminate the federal
government's ability to divest state sovereignty by acquiring land
into trust for the Tribe. Third, the State argues that the 1976
lawsuits settled the State's jurisdiction over the 3200 acres at
issue in those suits, and thus the 31-acre Parcel, which was a part
of the 3200 acres of contested lands, may not be accepted into
trust by the Secretary. Finally, the State argues in the
alternative that, regardless of whether the Parcel may be taken
into trust, the Settlement Act prohibits the Tribe and the Federal
government from making a claim that the Tribe's laws, rather than
the criminal and civil laws of the State of Rhode Island, should
apply on Tribal land.
The Secretary responds that the Settlement Act does not
prohibit the Settlement Lands from being acquired into trust, and
argues that the Act addresses the extinguishment of Indian
-27-
aboriginal land claims in Rhode Island without prohibiting future
land transactions. We agree that the Settlement Act does not
prohibit the Parcel from being taken into trust by the Secretary,
and we hold that the trust may be "unrestricted," thus removing the
land from the criminal and civil jurisdiction of Rhode Island.
The issue here is primarily one of statutory
construction. Does the Settlement Act preclude the Secretary from
taking land, in addition to the Settlement Lands, into trust on
behalf of the Tribe? Does the Settlement Act prohibit the
Secretary from removing lands not included in the Settlement Lands
from under the laws and jurisdiction of the State of Rhode Island?
The Supreme Court has said that "statutes are to be construed
liberally in favor of the Indians with ambiguous provisions
interpreted to their benefit." Chickasaw Nation v. United States,
534 U.S. 84, 93-94 (2001).
The Rhode Island Indian Claims Settlement Act, in
provisions pertinent to these questions -- including 25 U.S.C.
§ 1705 (Publication of findings), 25 U.S.C. § 1712 (Approval of
prior transfers and extinguishment of claims and aboriginal title
outside town of Charlestown), and 25 U.S.C. § 1707 (Purchase and
transfer of private Settlement Lands) -- provides for the
ratification of various transfers of land and natural resources,
extinguishment of aboriginal title, state jurisdiction over the
Settlement Lands, and a limit on the duties and liabilities of the
-28-
federal government with respect to the settlement. Specifically,
the Settlement Act ratified any transfer of land or natural
resources located anywhere in the United States made by, or on
behalf of, the Narragansetts, their predecessors, or their
successors as congressionally approved as of the date of the
transfer. 25 U.S.C. § 1705(a)(1). The Act also provided for
ratification of any transfers of land or resources located within
the town of Charlestown, id., as well as anywhere else within the
State of Rhode Island, 25 U.S.C. § 1712(a)(1), that were made by
any Indian, Indian nation, or Indian tribe. The Act extinguished
any Indian claims of aboriginal title to all such property as of
the date of the transfer. 25 U.S.C. §§ 1705(a)(2), 1712(a)(2).
The Settlement Act also provided that:
by virtue of the approval of a transfer of
land or natural resources effected by this
section, or an extinguishment of aboriginal
title effected thereby, all claims against the
United States, any State or subdivision
thereof, or any other person or entity, by the
Indian Corporation or any other entity
presently or at any time in the past known as
the Narragansett Tribe of Indians, or any
predecessor or successor in interest, member
or stockholder thereof, or any other Indian,
Indian nation, or tribe of Indians, arising
subsequent to the transfer and based upon any
interest in or right involving such land or
natural resources (including but not limited
to claims for trespass damages or claims for
use and occupancy) shall be regarded as
extinguished as of the date of the transfer.
25 U.S.C. § 1705(a)(3). In § 1712(a)(3), the Act effected the same
extinguishment of all claims by any other tribe of Indians based
-29-
upon any interest in, or rights involving, land or resources
transferred anywhere within Rhode Island.
1. Whether the Settlement Act precludes trust
acquisition
The State argues that § 1705 and § 1712 of the Settlement
Act provide a comprehensive extinguishment of the ability of any
tribe, including the Narragansetts, to claim territorial
sovereignty anywhere in the State of Rhode Island through a two-
pronged approach of first, terminating all aboriginal title
throughout Rhode Island, 25 U.S.C. §§ 1705(a)(2), 1712(a)(2), and,
second, extinguishing any claims by any tribe, or successor in
interest, against the State based upon "any interest in or right
involving land" in Rhode Island, 25 U.S.C. §§ 1705(a)(3),
1712(a)(3). The State also contends that the extinguishment of the
right of "any successor in interest" in § 1705(a)(3) and § 1712(a)
(3) precludes the Secretary from making the same claim on the
Tribe's behalf. These provisions, the State asserts, are the
result of the careful balance that was negotiated in the settlement
of the 1976 lawsuits. Whereas the Narragansett tribe received an
1800-acre land base and locus for the exercise of its retained
sovereignty over its members and internal tribal matters, see Rhode
Island v. Narragansett Indian Tribe, 19 F.3d 685, 701 (1st Cir.
1994), the State obtained the continued application of its laws and
jurisdiction on the Settlement Lands, 25 U.S.C. § 1708(a) ("Except
as otherwise provided in this subchapter, the Settlement Lands
-30-
shall be subject to the civil and criminal laws and jurisdiction of
the State of Rhode Island."). The State argues that the
Secretary's action of taking the Parcel into trust, thereby
removing it from the jurisdiction of the State's criminal and civil
laws, upsets this negotiated and agreed-upon balance, as
implemented by the Settlement Act.
These sections of the Settlement Act show that Congress
intended to enact a wide-reaching resolution of any and all
contested transfers of land by Indians qua Indians in Rhode Island.
The JMOU and Settlement Act clearly resolve all prior contested
land transfers and related claims involving Indian tribes,
including the extinguishment of aboriginal title in Rhode Island.
It is not clear, however, that Congress intended to
preclude the Narragansetts from ever expanding from the Settlement
Lands if the Tribe became federally recognized. Neither the JMOU
nor the Settlement Act provides that lands outside the Settlement
Lands may not be acquired or held in trust. In fact, the JMOU and
Settlement Act do not make direct reference to the IRA at all. The
omission of an explicit prohibition on trust acquisition and
federal superintendence of non-Settlement lands is significant,
because settlement acts resolving Indian claims in other states did
explicitly prohibit future trust acquisitions. See, e.g., 25
U.S.C. § 1724(e) (precluding application of § 465 of the IRA in the
Maine Settlement Act); Connecticut ex rel. Blumenthal, 228 F.3d at
-31-
90 (finding that the absence of a provision analogous to the
prohibition of § 465 of the IRA in the Maine Settlement Act
confirmed "that the Settlement Act was not meant to eliminate the
Secretary's power under the IRA to take land purchased without
settlement funds into trust for the benefit of the Tribe").
The Settlement Act explicitly anticipated that the
Narragansetts might eventually be federally acknowledged, 25 U.S.C.
§ 1707(c), and the JMOU provided that the Narragansett Tribe would
"have the same right to petition for [federal] recognition and
services as other groups." JMOU para. 15, H.R. Rep. No. 95-1453,
at 27. As we noted, one of the benefits of federal recognition is
the right to apply to have land taken into trust by the federal
government for the benefit of the tribe, pursuant to Section 5 of
the IRA.
At the time the JMOU was negotiated and the Settlement
Act was enacted, the Narragansetts had not yet been acknowledged as
a federally recognized tribe. Thus, they were ineligible at that
time to apply for the benefits of the IRA, including the
acquisition of land into trust by the Secretary of the Interior for
their use. As we noted above, trust acquisition typically results
in the removal of the land from State jurisdiction in favor of
tribal jurisdiction with federal superintendence. Therefore, the
immediate result of § 1708 was indeed that the laws and
jurisdiction of the State would remain in force throughout the
-32-
state at the time of the JMOU and enactment of the Settlement Act.
Once the tribe received federal recognition in 1983, however, it
gained the same benefits as other tribes, including the right to
apply to have land taken into trust pursuant to § 465 of the IRA.
2. The Secretary's duties and liabilities under the
Settlement Act
The Settlement Act provides that "[u]pon the discharge of
the Secretary's duties under §§ 1704-1706, and 1707 of this title,
the United States shall have no further duties or liabilities under
this subchapter with respect to the Indian Corporation or its
successor, the State Corporation, or the settlement lands . . . ."
25 U.S.C. § 1707(c). The State contends that this passage
prohibits the federal government from divesting the State of
sovereignty over the Parcel by putting the land into trust for the
Tribe.
However, § 1707(c) does not preclude the Secretary from
acquiring additional lands in trust for the benefit of the
Narragansetts. Again, we point out that the Narragansetts did not
obtain federal acknowledgment of their tribal status until 1983.
Despite the fact that the JMOU and Settlement Act both contemplated
the future acknowledgment of the Narragansett tribe by the federal
government, no explicit limitation was placed on the Secretary's
authority to accept additional land into trust for the
Narragansetts' benefit. Cf. Maine Indian Claims Settlement Act,
25 U.S.C. § 1724 (e) ("Except for the provisions of this
-33-
subchapter, the United States shall have no other authority to
acquire lands or natural resources in trust for the benefit of
Indians . . . in the State of Maine."). We therefore agree with
the district court that such a restriction cannot reasonably be
inferred. Carcieri, 290 F. Supp. 2d at 184.
3. Settlement of the 1976 Lawsuits
The State argues that the trust acquisition of the Parcel
is precluded by the doctrine of res judicata because the Parcel was
among the 3200 acres at issue in the 1976 lawsuits that were
ultimately settled by the JMOU and implementation of the Settlement
Act. The Parcel was part of the 1400 acres that remained with the
defendant property owners pursuant to the settlement. Thus, the
State contends that the Tribe relinquished its claimed interest in
the exercise of sovereignty over the 1400 acres, including the 31-
acre Parcel.
This argument is without merit. As the district court
noted, "the doctrine of res judicata operates to bar the
relitigation of issues that were or could have been raised in an
earlier action between the same parties prescinding from the same
set of operative facts." Id. at 186 (quoting In re Carvalho, 335
F.3d 45, 49 (1st Cir. 2003)) (citations omitted). Since the
federal government was not a party to the 1976 lawsuits or the
JMOU, the principles of res judicata do not apply. The State
attempts to salvage the argument on appeal by contending that the
-34-
United States maintains a special relationship with the Tribe such
that they may be considered a legal unity. This argument is
ultimately insufficient because the fee-to-trust acquisition of the
Parcel by the Secretary, and the consequences thereof, are
different issues than the claims of aboriginal right which were
litigated in the 1976 lawsuits and resolved by the JMOU and
Settlement Act. Accordingly, even if there were a substantial
identity of the parties in the 1976 and the instant litigation,
there would be no identity of claims, and thus, the trust
acquisition is not barred by res judicata.
4. The State's alternative argument
Finally, the State argues that even if the Settlement Act
can be read to allow the Secretary to take the Parcel into trust
for the Narragansetts, the trust must remain subject to the State's
civil and criminal jurisdiction in order to comply with the
Settlement Act, which extinguished aboriginal title throughout
Rhode Island, 25 U.S.C. §§ 1705(a)(2); 1712(a)(2), as well as
Indian claims against the State based upon "any interest in or
right involving" land in Rhode Island, id. §§ 1705(a)(3);
1712(a)(3). For many of the same reasons we determined that the
Settlement Act does not prohibit the Secretary from acquiring the
Parcel into trust, we find that the trust need not be restricted to
preserve the State's jurisdiction. Although the Settlement Act
expressly provides that the 1800 acres of Settlement Lands must
-35-
remain subject to the State's jurisdiction, 25 U.S.C. § 1708(a),
neither the Act nor the JMOU prohibits the Tribe from expanding on
its lands or from taking advantage of the benefits associated with
federal recognition, which include the trust acquisitions and
federal superintendence.
The State suggests that the Settlement Act's
extinguishment of all aboriginal title in 25 U.S.C. §§ 1705(a)(2)
and § 1712(a)(2) "necessarily implies" that the State's laws and
jurisdiction are preserved everywhere else in the State. While
that may have been true before the Narragansett Tribe was
recognized by the federal government and became eligible for
federal benefits, it is no longer the case today. As we note
above, the JMOU specifically provided that although the
Narragansett Tribe would "not receive federal recognition for
purposes of eligibility for Department of the Interior services as
a result of congressional implementation of . . . this memorandum,
[] it will have the same right to petition for such recognition and
services as other groups." JMOU at para. 15; H.R. Rep. No. 95-
1453 at 27.
The State argues that the extinguishment of aboriginal
title expressly eliminates tribal territorial sovereignty. To
support this assertion, the State points to two cases. First, the
State cites Bates v. Clark, 95 U.S. 204, 207-08 (1877), for the
proposition that the extinguishment of aboriginal title eliminates
-36-
Indian country. We decline to rely on Bates, because the case
predates the IRA of 1934, as well as modern Supreme Court case law
defining Indian country, and the statutory definition of "Indian
country" that ratified that case law in 18 U.S.C. § 1151.5 The
second case the State cites is a Supreme Court case reversing a
Ninth Circuit holding that the Native Village of Venetie was
"Indian country," and citing with approval the concurrence of one
Ninth Circuit judge, who viewed the broad extinguishment of
aboriginal title in the Alaska Native Claims Settlement Act (ANCSA)
as leaving Native Alaskans as sovereigns "without territorial
5
Congress defines "Indian country" as:
(a) all land within the limits of any Indian reservation
under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders
of the United States whether within the original or
subsequently acquired territory thereof, and whether
within or without the limits of a state, and (c) all
Indian allotments, the Indian titles to which have not
been extinguished, including rights-of-way running
through the same.
18 U.S.C. § 1151.
At issue in this case is whether the Parcel is a "dependent
Indian community" as defined in § 1151(b) of the statute. The
Supreme Court has held that "a federal set-aside and a federal
superintendence requirement must be satisfied for a finding of a
'dependent Indian community.'" Alaska v. Native Village of Venetie
Tribal Gov't, 522 U.S. 520, 530 (1998). If the Parcel may be taken
into unrestricted trust, it will be "Indian country" because (1)
the land will be "set-aside" by the Federal Government and occupied
by an Indian community, and (2) the community will be "dependent"
on the Federal Government in the sense that "the Federal Government
and the [Narragansetts], rather than the State[], [will] exercise
primary jurisdiction over the land. . . ." Id.-37-
reach." Native Village of Venetie, 522 U.S. at 526. The situation
concerning the land owned by the Native Village of Venetie,
however, is different from the issue here. In enacting ANCSA,
Congress stated that settlement of the Alaskan land claims was to
be accomplished "without creating a reservation system or lengthy
wardship or trusteeship." 43 U.S.C. § 1601(b). To that end, ANCSA
actually revoked the reservations that had previously been set
aside for Alaskan natives, including the Native Village of
Venetie's reservation. It was as a result of this revocation that
the land ceased to be Indian country, not the extinguishment of
aboriginal title.
Extinguishing aboriginal title merely terminates the
right of Indian nations to occupy their ancestral lands. It is a
right of occupancy and use. See County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 234 (1985); Narragansett Tribe of Rhode
Island v. Narragansett Elec. Co., 89 F.3d 908, 914 (1st Cir. 1996)
("Aboriginal title . . . is the right of Indian tribes to use and
occupy lands they had inhabited from time immemorial.") (internal
quotation marks and citations omitted).
It is not necessary that a federally recognized tribe
have aboriginal title to land it owns in fee simple for the tribe
to request that the Secretary of the Interior take land into trust
pursuant to § 465 of the IRA. The Narragansetts did not assert
their aboriginal title to the Parcel when they petitioned the
-38-
Federal Government to take the land into trust, as the State
suggests.6 Rather, they exercised their statutory privilege to
make the request, pursuant to the IRA, and the Secretary had
discretionary authority to determine whether to grant that request.
The State incorrectly construes a recent Supreme Court
decision, City of Sherill v. Oneida Indian Nation, 544 U.S. ---,
125 S. Ct. 1478 (2005), in an attempt to buttress its
interpretation. City of Sherill involved an attempt by the Oneidas
to unilaterally reassert their sovereignty over lands they
purchased in fee simple. The Oneidas argued that they had "unified
fee and aboriginal title and may now assert sovereign dominion over
the parcels." Id. at 1481. The Supreme Court responded that
"[t]he Oneidas long ago relinquished the reins of government and
cannot regain them through open-market purchases from current
titleholders." Id. at 1483. The Narragansetts, on the other hand,
attempted to do nothing of the sort. Rather, the Narragansetts
used the precise mechanism the Supreme Court stated that the
Oneidas should have used: application for trust acquisition of the
land pursuant to § 465. Id. at 20-21.
The State also claims that converting the Parcel to
unrestricted trust is incompatible with the second extinguishment
prong of the Settlement Act: the extinguishment of any claims by
6
Assertion of any aboriginal title by the Narragansetts would
clearly have been impossible because the tribe's aboriginal title
was extinguished by the Settlement Act. 25 U.S.C. §§ 1705, 1712.
-39-
any tribe, including the Narragansetts, or any "successor in
interest," against the State or the Town based upon "any interest
in or right involving" land in Rhode Island. 25 U.S.C. §§ 1705(a)(3); 1712(a)(3). The State claims that converting the Parcel
into unrestricted trust will render this latter prong mere
surplusage. We disagree.
We note two things that the State fails to mention.
First, aboriginal title may form the basis not only of claims for
possession or damages, but also for trespass or other subsidiary
claims. See H.R. Rep. No. 95-1453, at 8. Thus, there is no basis
for the State's surplusage argument. Second, the full language of
§ 1705(a)(3) provides that:
by virtue of the approval of a transfer of
land or natural resources effected by this
section [meaning transfers by the Narragansett
tribe or any predecessor or successor in
interest], or an extinguishment of aboriginal
title effected thereby, all claims against the
United States, any State or subdivision
thereof, or any other person or entity, by the
Indian Corporation or any other entity
presently or at any time in the past known as
the Narragansett Tribe of Indians, or any
predecessor or successor in interest, member
or stockholder thereof, or any other Indian,
Indian nation, or tribe of Indians, arising
subsequent to the transfer and based upon any
interest in or right involving such land or
natural resources (including but not limited
to claims for trespass damages or claims for
use and occupancy) shall be regarded as
extinguished as of the date of the transfer.
25 U.S.C. § 1705(a)(3) (emphases added). This language suggests
that Congress intended to extinguish all claims that could arise as
-40-
a result of transfers of land by the Narragansetts, many of which
were made in violation of the Nonintercourse Act, or claims that
the Narragansetts might have had by virtue of their aboriginal
title prior to extinguishment. In other words, the terms of the
extinguishment provisions may reasonably be interpreted as
extinguishing Indian land claims based exclusively on the
possessory rights that gave rise to the Narragansetts' lawsuits.
We also note that the primary purpose of the Settlement
Act and the JMOU it implemented was not to preserve Rhode Island's
jurisdiction, but rather, it was to clear the cloud that had
developed on the title to thousands of acres of lands to which the
Narragansett Tribe had made legal claims seeking possession
pursuant to aboriginal title. See H.R. Rep. 95-1453 at *6 ("[T]he
pendency of the lawsuits resulted in economic hardship for the
residents of Charlestown by clouding titles to most of the land
within the town.). "In return for the public and private
settlement lands under the Settlement Agreement, the Narragansetts
agreed to cause their lawsuits to be dismissed with prejudice and
consented to the extinguishment by the Federal Government of all
Indian claims for possession of land (and all potential damages
based on their land claims) within Rhode Island, which would clear
non-Indian title to non-settlement lands claimed by the tribe."
Id. at *7 (emphases added).
-41-
Moreover, even assuming the Settlement Act's provisions
created an ambiguity as to whether the Narragansett Tribe would be
eligible for the benefit of unrestricted trust acquisition of land
upon federal recognition, we adhere to the canon of statutory
construction that statutes "are to be construed liberally in favor
of the Indians with ambiguous provisions interpreted to their
benefit." See Chickasaw Nation, 534 U.S. at 93-94. "'In
determining [congressional] intent, we are cautioned to follow the
general rule that doubtful expressions are to be resolved in favor
of the weak and defenseless people who are the wards of the nation,
dependent upon its protection and good faith.'" Connecticut ex
rel. Blumenthal, 228 F.3d at 92 (quoting Rosebud Sioux Tribe v.
Kneip, 430 U.S. 584, 586 (1977).
Accordingly, we hold that the Secretary of the Interior
is not prohibited by the Settlement Act from taking the Parcel into
unrestricted trust.7
7
The dissent remarks that our holding -- that the Parcel may be
taken into unrestricted trust -- "produces an unwarranted anomalous
relationship between the Settlement Lands and the after acquired
parcel." We note, however, that this relationship is not
unprecedented. In Connecticut ex rel. Blumenthal, the Second
Circuit rejected the State of Connecticut's argument that the
Secretary of the Interior should not be allowed to take additional,
non-settlement land into trust pursuant to the IRA on behalf of the
Mashantucket Pequot Tribe because it would create a "checkerboard"
jurisdiction. 228 F.3d at 90 (stating that "the possibility of
heterogeneous jurisdictional areas within the [Tribe's] lands does
not compel a different result"); see also Washington v.
Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S.
463, 502 (1979) ("In short, checkerboard jurisdiction is not novel
in Indian law.").
-42-
D. Whether the Secretary's acceptance of the Parcel in trust
violates the APA
In addition to the constitutional and other statutory
challenges to the Secretary's decision to take the Parcel into
trust, the State claims that the Secretary's action was an abuse of
discretion under the Administrative Procedures Act. Our review of
the Secretary's decision is governed by § 706(2)(A) of the APA,
which provides that a court may set aside agency action only where
it finds the action "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law." 5 U.S.C. § 706(2)
(A). An agency's determination is arbitrary and capricious if the
agency lacks a rational basis for making the determination or if
the decision was not based on consideration of the relevant
factors. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins.
Co., 463 U.S. 29, 43 (1983); Associated Fisheries of Maine, Inc. v.
Daley, 127 F.3d 104, 109 (1st Cir. 1997). The Court's review under
§ 706(2)(A) is highly deferential, and the Secretary's action is
presumed to be valid. See Conservation Law Found. of New England,
Inc. v. Sec'y of Interior, 864 F.2d 954, 957-58 (1st Cir. 1989).
A reviewing court cannot substitute its own judgment for that of
the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971); Associated Fisheries, 127 F.3d at 109. We will
apply the same legal standards that governed the district court's
review, without affording special deference to that court's
decision.
-43-
The State makes five arguments as to why the Secretary's
decision was unlawful under § 706(2)(A), including that (1) the BIA
relied on the Tribe's findings, rather than conducting an
independent evaluation of the Tribe's application, (2) the BIA
misapplied the factors enumerated in 25 C.F.R. § 151.10 for
evaluating a fee-to-trust transfer, (3) the Native American Housing
and Self Determination Act ("NAHASDA") cooperation agreement waiver
violated due process, (4) the BIA failed to consider environmental
impacts of the housing project planned for the Parcel, and (5) the
BIA failed to consider noncompliance with the Coastal Zone
Management Act ("CZMA") and the Indian Gaming Regulatory Act
("IGRA"). We disagree with the State, and for essentially the same
reasons as set forth in the district court's decision, we find that
the Secretary's decision to accept the Parcel into trust did not
violate the APA.
1. Whether the BIA failed to conduct an independent
evaluation of the Tribe's trust application
The State points to substantial passages in the
Secretary's decision, which contain verbatim restatements of
information provided by the Narragansett Tribe in support of their
1993 trust application, as evidence that the BIA failed to conduct
an independent evaluation of the Tribe's 1997 application. The
State claims that the BIA relied exclusively on the Tribe's
assertions and failed to consider other important facts that
occurred between 1993 and 1997. Thus, the State asserts that the
-44-
BIA made an arbitrary and capricious decision and abused its
discretion.
However, there is ample evidence in the administrative
record that the BIA conducted its own, independent evaluation of
the Tribe's application and that it considered the events following
the Tribe's 1993 application. For example, between 1993 and 1997,
the BIA required the Tribe to supplement its initial Environmental
Assessment; conducted an environmental hazard survey of the subject
31-acre Parcel (Supp. App. 99); required confirmation of
consistency with the State’s Coastal Resources Management Plan
(Supp. App. 102-03); was well aware of the Narragansett Electric
litigation (Supp. App. 10-12, 13-93); was apprised of, and offered
to facilitate, negotiations between the Tribe, the Town, and the
State concerning both environmental and jurisdictional issues
attendant to the Tribe's development of the Parcel (Supp. App. 1);
and specifically requested that the Regional Solicitor address
several legal and jurisdictional issues raised by the State in its
comments to the BIA on the Tribe's trust application
(Supp. App. 101). This shows that the BIA did not rely solely on
the findings of the Tribe and did conduct its own evaluation. We
agree with the district court's finding that the BIA's
determination was the result of its own, independent evaluation of
the 1997 application.
-45-
2. Whether the BIA properly applied the 25 C.F.R.
§ 151.10 factors
The State claims that the BIA failed to apply the proper
criteria when it evaluated the Tribe's application for trust
acquisition. The regulations governing the BIA's evaluation of
applications to have land taken in trust are laid out at 25 C.F.R.
§ 151. The factors to be considered for an "on-reservation"
acquisition are found in § 151.10 and the factors for an "off-
reservation" acquisition are in § 151.11. In making the decision
to accept the Parcel into trust, the BIA considered the on-
reservation factors in § 151.10,8 which include:
(a) The existence of statutory authority for
the acquisition and any limitations contained
in such authority;
(b) The need of the individual Indian or the
tribe for additional land;
(c) The purposes for which the land will be
used;
. . .
(e) If the land to be acquired is in
unrestricted fee status, the impact on the
State and its political subdivisions resulting
from the removal of the land from the tax
rolls;
8
For the purpose of 25 C.F.R. § 151, land is considered to be
"on-reservation" if it is "located within or contiguous to an
Indian reservation," and "off-reservation" where "the land is
located outside of and noncontiguous to the tribe's reservation."
The State challenges the finding by the BIA and district court that
the Parcel is adjacent to Settlement Lands, yet recognizes that
this determination is insignificant to the application of either
section in this case, as the sections differ only slightly.
Compare § 151.10 with § 151.11. As we have previously noted, the
Parcel is adjacent to the Settlement Lands, but separated from them
by a town road. Narragansett Elec. Co., 89 F.3d at 911.
-46-
(f) Jurisdictional problems and potential
conflicts of land use which may arise; and
(g) If the land to be acquired is in fee
status, whether the Bureau of Indian Affairs
is equipped to discharge the additional
responsibilities resulting from the
acquisition of the land in trust status.
. . .
25 C.F.R. § 151.10.
The State claims that the BIA failed to consider "the
need of . . . the tribe for additional land," § 151.10(b). The
State also questions whether the BIA sufficiently scrutinized "the
tribe's justification of anticipated benefits from the acquisition"
as required by § 151.11(b). The criteria required pursuant to
§ 151.11(b) are as follows:
The location of the land relative to state
boundaries, and its distance from the
boundaries of the tribe's reservation, shall
be considered as follows: as the distance
between the tribe's reservation and the land
to be acquired increases, the Secretary shall
give greater scrutiny to the tribe's
justification of anticipated benefits from the
acquisition. . . .
25 C.F.R. § 151.11(b).
As we have noted, a reviewing court will determine only
"whether the [BIA's] decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment." See Citizens to Preserve Overton Park, 401 U.S. at 416.
The fact that the BIA found the Parcel, which is across a town road
from the Settlement Lands, to be "contiguous" to the Settlement
Lands that are currently in trust, and thus determined that it
-47-
should consider the "on-reservation" factors enumerated in 25
C.F.R. § 151.10, is certainly not clear error and is within the
Secretary's discretion. It was not necessary for the BIA to
consider the factors under § 151.11, since it found § 151.10 to be
applicable for this trust determination. While the Secretary need
not consider § 151.11(b), we note that the close proximity between
the Tribe's Settlement Lands and the Parcel would not have required
the Secretary to give the greatest scrutiny to the "tribe's
justification of anticipated benefits from the acquisition." 25
C.F.R. § 151.11(b). In sum, the record shows that the BIA complied
with § 151.10, including evaluating the Tribe's need for the
additional land, and we do not find that the Secretary has made a
clear error of judgment.
3. The NAHASDA Cooperation Agreement
At the time of the BIA's decision to acquire the Parcel
into trust, HUD was precluded from releasing funds pursuant to the
Native American Housing Assistance and Self-Determination Act
("NAHASDA") for any tribe's housing development unless an agreement
for local cooperation on issues such as taxes and jurisdiction had
been entered into by the tribe and the local government where the
housing was located. 25 U.S.C. § 4111(c). In the instant case,
the Narragansett Tribe did not obtain such an agreement with the
Town. However, § 4111(c) has now been amended to permit HUD to
waive the cooperation agreement requirement, 25 U.S.C. § 4111(c),
-48-
as amended, Pub. L. 106-569, Dec. 27, 2000, and the Tribe obtained
such a waiver.
The State argues that this waiver was invalid because the
State apparently did not receive notice of the Tribe's application
for a waiver until after it was granted. On appeal, the State
contends that if the BIA accepted the waiver, the BIA has inherited
the legal error and acted in an arbitrary and capricious manner.
As the district court noted, "25 U.S.C. § 4111(c) establishes a
prerequisite to HUD's award of housing grants. It does not pertain
to the BIA's trust acquisition authority." Carcieri, 290 F. Supp.
2d at 179. The BIA is obligated to consider the appropriate
factors enumerated in 25 C.F.R. § 151, which includes a requirement
that the Secretary consider the "need of the individual Indian or
the tribe for the additional land," and "[t]he purposes for which
the land will be used." 25 C.F.R. § 151.10(b)-(c). It is clear
from the record that the BIA has properly considered the Tribe's
need for additional housing as well as the fact that the funding to
purchase the Parcel was provided to the Tribe's Housing Authority
with the understanding that the lands would be used for housing.
However, nothing in the § 151.10 factors requires the BIA to ensure
that a local cooperation agreement is in place for an Indian
Housing project.
4. Environmental Considerations
-49-
The National Environmental Policy Act ("NEPA") and its
supporting regulations promulgated by the Council on Environmental
Quality ("CEQ") direct federal agencies to consider the
environmental impacts of agency decisions. 42 U.S.C. §§ 4321-
4370(e); 40 C.F.R. § 1500-1518 (2004). The State claims that the
Secretary and BIA failed to consider environmental impacts in
reaching the decision to accept the Parcel into trust because no
Environmental Impact Statement ("EIS") was prepared. The State
also argues that the BIA failed to conduct its own evaluation of
the environmental impacts and instead improperly relied on an
environmental assessment ("EA") submitted by the Narragansett
Tribe. We disagree.
Federal agencies are required to prepare an EIS for any
action that could significantly affect the quality of the human
environment. 42 U.S.C. § 4332(2)(c); 40 C.F.R. § 1508.27. NEPA
provides that "to the fullest extent possible . . . (2) all
agencies of the Federal Government shall . . . (c) include in every
recommendation or report on proposals for . . . major Federal
actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on
. . . (i) the environmental impact of the proposed action." 42
U.S.C. § 4332(2)(c). However, in the absence of a finding that the
proposed action would significantly affect the quality of the human
environment, the BIA was not required to prepare an EIS. See,
-50-
e.g., Londonderry Neighborhood Coalition v. Fed. Energy Regulatory
Comm'n, 273 F.3d 416, 419 (1st Cir. 2001) (quoting Wyoming Outdoor
Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C. Cir. 1999)).
The CEQ has issued guidance for whether to prepare an
EIS, which provides that "if the agency determines on the basis of
the environmental assessment not to prepare a statement," then the
agency should "[p]repare a finding of no significant impact"
pursuant to § 1508.13. 40 C.F.R. § 1501.4(e). The applicant may
prepare the EA provided that the agency "make[s] its own evaluation
of the environmental issues and take[s] responsibility for the
scope and content of the environmental assessment." 40 C.F.R.
§ 1506.5(b). In this case, the BIA followed its standard operating
procedure for externally initiated proposals by obtaining an EA
from the Tribe and considering it along with supplemental
information the BIA requested from the Tribe and information
gathered independently by the BIA. See Externally Initiated
Proposals, NEPA Handbook 4.2 B ("When the proposed Bureau action is
a response to an externally initiated proposal . . . the applicant
will normally be required to prepare the EA, if one is required,
and to provide supporting information and analyses as
appropriate.)" After reviewing the EA and the requisite
supplemental information, the BIA completed its environmental
analysis and issued a Finding of No Significant Impact ("FONSI").
-51-
The BIA's issuance of a FONSI thus satisfied its responsibilities
under NEPA. See 40 C.F.R. § 1501.4(e).
Separately, the State contends that the BIA should have
obtained a federal consistency review in accordance with the Costal
Zone Management Act ("CZMA") before making its trust determination.
16 U.S.C. § 1451-1465. The CZMA requires state consultation on
federally permitted coastal development activities. Specifically,
§ 1456 of the CZMA provides, in relevant part:
(1)(A) Each Federal agency activity within or
outside the coastal zone that affects any land
or water use or natural resource of the
coastal zone shall be carried out in a manner
which is consistent to the maximum extent
practicable with the enforceable policies of
approved State management programs. A Federal
agency activity shall be subject to this
paragraph unless it is subject to paragraph
(2) or (3).
. . .
(C) Each Federal agency carrying out an
activity subject to paragraph (1) shall
provide a consistency determination to the
relevant State agency . . .
(2) Any Federal agency which shall undertake
any development project in the coastal zone of
a state shall insure that the project is, to
the maximum extent practicable, consistent
with the enforceable policies of approved
State management programs.
16 U.S.C. § 1456. The State asserts that the BIA's failure to take
direct action to ensure the housing project was consistent with the
Rhode Island Coastal Zone Management Program ("RICZMP") before
making its trust determination was a violation of the CZMA. We
disagree.
-52-
The State has failed to demonstrate that a consistency
review of the Tribe's housing development was necessary at the
trust acquisition stage. The development of the Parcel is a
project that was commenced by the Tribe, in conjunction with HUD,
prior to the Tribe's application for trust acquisition. The CRMC
correctly recognized that the development of the Parcel was a
separate matter which required its own federal consistency
determination, and properly found that the Tribe's application for
trust status was consistent with the RICZMP. Id.; App. Tab 5 at
Ex. 11.
5. The IGRA
Finally, the State contends that the true purpose of the
Tribe's application for trust acquisition is the development of
gambling facilities on the Parcel –- rather than development of
tribal housing as the BIA found in its evaluation pursuant to 25
C.F.R. § 151.10(c) -- and that the BIA's failure to consider the
Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2710-2721, in
its decision was an abuse of discretion. The State argues that the
Secretary's decision to acquire the Parcel in trust should be
reversed and that further inquiry into whether the Parcel would be
used for gaming purposes is required. We disagree.
There is no evidence that the Tribe intended to use the
Parcel for anything other than tribal housing, as determined by the
BIA. "In fact, after the plaintiffs expressed concern over the
-53-
potential for development of a gaming facility on the parcel, the
tribe reaffirmed that it intended to use the parcel for a housing
development and stated that it had 'no immediate plans for any
further future development.' Admin. Rec., Vol. II, Tab N."
Carcieri, 290 F. Supp. 2d at 178.
As support for its position, the State points to an IBIA
decision that reversed a trust acquisition decision due to the
BIA's failure to consider the impact of a potential casino, even
though the applicants denied any intention of using the property
for a casino. Village of Ruidoso, New Mexico v. Albuquerque Area
Dir. Bureau of Indian Affairs, 32 IBIA 130 (1998). However, in
Village of Ruidoso, although the Tribe denied that the application
for trust acquisition was for gaming purposes, the IBIA determined
that it was clear from the planned gaming-related uses of the
property, and the fact that the property was given to the Tribe by
a company that the BIA "apparently understood to have some gaming
connection with the Tribe," that the application was for gaming
purposes and that the BIA's determination should have been made
under the guidelines applicable to gaming. 32 IBIA at 136, 138.
We agree with the district court that "[a]lthough the
possibility that the parcel might be used for gaming activities was
raised before the BIA, the bureau's determination that the parcel
would be used to provide housing was amply supported by the record.
In view of the deferential standard of review afforded to agency
-54-
decisions under the APA, the bureau's determination in this regard
must be sustained." Carcieri, 290 F. Supp. 2d at 178.
III. Conclusion
For the reasons stated above, we affirm the district
court's grant of summary judgment to the Secretary.
Affirmed.
"Dissenting opinion follows."
-55-
HOWARD, Circuit Judge (Dissenting in part). I agree with
and join the court's opinion, except as to part II. C. 4. ("The
State's alternative argument"). Unlike the majority, I conclude
that, pursuant to the Settlement Act, the Secretary can only take
the parcel into a restricted trust that provides for Rhode Island's
continued criminal and civil jurisdiction over the parcel.
In part II. C. 1. of today's opinion, we hold that the
Settlement Act and the JMOU it effectuates do not fairly disclose
an intent to prohibit the Secretary from taking the Settlement
Lands or after acquired property into trust. But that is not the
same as saying that the State contemplated the Secretary making
these trust acquisitions. In any event, what the State most
assuredly did contemplate was the applicability of its laws
throughout Rhode Island. The question is whether this
understanding expressed by the parties in the JMOU and by Congress
in the Settlement Act should control in circumstances not
necessarily foreseen by them.9
The State's preservation of jurisdiction was bargained
for and accomplished in at least two ways. First, with respect to
the 1800 acres that were designated Settlement Lands, the
9
In this regard, it is worth noting that the Rhode Island
Settlement Act was the first such settlement of Indian land claims
in an eastern state. It is not surprising then that not every
eventuality was explicitly covered. But that should not prevent
the court from attempting to effectuate the purpose of the JMOU and
its implementing legislation to the extent possible.
-56-
applicability of Rhode Island's laws was ensured by including a
provision in the Settlement Act that "Settlement Lands shall be
subject to the civil and criminal laws and jurisdiction of the
State of Rhode Island." 25 U.S.C. § 1708. We have previously held
that, pursuant to this provision, the civil and criminal laws of
Rhode Island apply on the Settlement Lands, even though the lands
were later taken into trust by the Secretary. Rhode Island v.
Narragansett Indian Tribe, 19 F.3d 685, 694-95 (1st Cir. 1993).
Second, the Settlement Act extinguishes potential
"Indian" claims both as to the then disputed lands and throughout
Rhode Island. 25 U.S.C. §§ 1705(a)(3); 1712(a)(3). This
extinguishment of Indian claims is consistent with the parties'
agreement in the JMOU that "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
(emphasis added). Reflecting this intent, the pertinent language
of the Settlement Act provides that "all claims . . . based upon
any interest in or right involving such land or natural resources
(including but not limited to claims for trespass damages or claims
for use and occupancy) shall be regarded as extinguished . . . ."
25 U.S.C. §§ 1705(a)(3) & 1712(a)(3). This "all claims" language
-57-
is broad enough to include sovereignty or aboriginal title based
claims contesting the applicability of Rhode Island law.
It is not surprising that the Settlement Act does not
refer explicitly to the preservation of State jurisdiction outside
of the Settlement Lands. As sovereign, Rhode Island already had
jurisdiction outside of Settlement Lands, and the Settlement Act
extinguished any potential competing "Indian" claims to that land.
The only land about which there might have been doubt was the
Settlement Lands, and as to that land, State jurisdiction was
expressly preserved. See 25 U.S.C. § 1708. Rhode Island
negotiated against the background understanding that its laws would
apply throughout the State, and in the only instance where the
parties thought there might be a question, they added an express
provision to preserve State jurisdiction.
That the Settlement Act does not say what Rhode Island
logically presumed -- that Rhode Island law would apply throughout
Rhode Island -- ought not be fatal to the State's exercise of its
sovereignty. In the circumstances of this case, holding that Rhode
Island is divested of jurisdiction by the Secretary taking into
trust the adjacent parcel that was part of the original disputed
lands upsets the fairly expressed expectations of the parties. It
also produces an unwarranted anomalous relationship between the
Settlement Lands and the after acquired parcel. The more sensible
-58-
result is to effectuate the likely intent of the JMOU parties that
Rhode Island's laws apply throughout Rhode Island.
-59-