Rhode Island news
A matter of trust: U.S. high court to hear case on status of tribal land in Charlestown
02:48 PM EST on Monday, November 3, 2008
WASHINGTON – The U.S. Supreme Court will hear arguments today in an Indian lands case that could reopen the question -- bitterly disputed for decades -- of whether the Narragansett Indians can build gambling casinos and other enterprises over the objections of their neighbors in South County and the state of Rhode Island.
The justices will hear arguments at 1 p.m. in the case, Carcieri v. Kempthorne. At issue is whether the Interior Department may take into trust 31 acres the tribe owns in Charlestown. Trust status would place the land under federal and tribal control and free it from most state and local laws, including the Rhode Island constitutional requirement for casino gambling to win approval by voter referendum. The principal parties are Governor Carcieri and Interior Secretary Dirk Kempthorne.
If high court’s ruling favors the Narragansetts, they might well face more legal hurdles before they could pursue gambling. But trust status could open the door to other uses of the land, such as tax-free businesses, or construction projects that would otherwise run afoul of local zoning rules.
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The tribe purchased the land at issue as a housing site, but if the Supreme Court upholds lower court rulings on the trust issue, Narragansett Chief Sachem Matthew Thomas has not ruled out using at least some of it for economic development that he has declined to describe.
The case has national implications, too. Rhode Island argues in its appeal that the closely watched case could affect scores of states and tribes nationwide. At play is whether "a potentially unlimited amount of land" should fall under the jurisdiction of states or tribes. Twenty-one states, including Connecticut and Massachusetts, filed briefs in support of Rhode Island’s appeal.
The Narragansetts have sought casino rights since the advent of the lucrative Indian gambling industry. With financial backing from major gambling companies, the tribe has carried its campaign to the state and federal courts, the Congress, the General Assembly and the voters of Rhode Island. Last fall, for example, an arm of the tribe solicited proposals for a $1-billion casino and hotel complex on the land at issue in this case.
Broadly speaking, the Narragansetts have argued over the years that they have been unfairly excluded from rights long enjoyed by other tribes – such as the owners of the hugely successful Foxwoods casino across the Connecticut border. The Narragansetts have portrayed themselves as victims of discrimination by a Rhode Island government that denies them the fruits of sovereignty while reaping millions in gambling revenues. Indeed, Rhode Islanders have become dependent on various forms of gambling – from the state lottery to officially-sanctioned video betting and slot machines – to pay for public services.
State officials have generally replied that unregulated casino gambling and other tribal enterprises would unalterably change the face of Rhode Island and its economy. A bipartisan succession of governors, senators and members of Congress have argued, moreover, that the Narragansetts freely surrendered any claim to immunity from state and local law on the land 30 years ago. That was the central condition, in the state’s view, of the deal the Narragansetts made to take title to 1,800 acres of lands in Charlestown and, later, to win federal recognition as a tribe.
The current case has its roots in the tribe’s 1991 purchase of the 31-acre property, which stands across Kings Factory Road from the 1,800 acres secured in the Rhode Island Indian Land Claims Act of 1978. The Narragansetts started to build a housing project for elderly tribe members on the sloping property north of Route 1, but construction stalled over the tribe’s failure to get state and local permits for the work.
In 1998 – as the Narragansetts pursued unsuccessful efforts in Congress and the courts to expand its control over the use of tribal lands – the Interior Department agreed to take the land into trust for the tribe. That was a major breakthrough for the Narragansetts; officials of the state and the Town of Charlestown said the action would be "devastating,’’ opening the door unregulated gambling and other enterprises on the land. They filed suit in federal court to block the land trust action.
One of the state’s key arguments at that time was that the 31-acre housing site – like the 1,800 acres that the tribe secured in the 1978 land claims act -- should be bound by state and local law. U.S. District Judge Mary M. Lisi disagreed in her 2003 ruling in the tribe’s favor. Lisi concluded that the 1978 settlement act "was limited in scope," designed only to resolve the tribe's land claims. "It did no more," Lisi said.
That ruling has since been upheld by a three-judge panel of the First U.S. Circuit Court of Appeals and later by the entire appeals court.
Writing for a 4-to-2 majority of the Boston-based appellate court, Judge Sandra L. Lynch interpreted the 1978 settlement act literally, citing its statement that "the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the state of Rhode Island."
"No other provision of the Settlement Act directly provides for state jurisdiction outside of the settlement lands," Lynch wrote. "No language in the act applies state law to lands the tribe might later acquire."
Writing in dissent, Judge Bruce M. Selya said the majority had read the 1978 land settlement too narrowly. "[The] majority gives short shrift not only to the interests of the State of Rhode Island but also to the carefully calibrated arrangements crafted between the state and the tribe," Selya wrote.
"It strains credulity to surmise, as does the majority, that the state would have made such substantial concessions - including the transfer, free and clear, of 1,800 acres of its land - while leaving open the gaping loophole that today's decision creates."
The central argument today rests on whether the Indian Reorganization Act of 1934, the milestone law passed to restore certain rights and lands to Native Americans, covered the Narragansetts because they did not win federal recognition until 1983.
Rhode Island has cast its appeal as a state’s rights case.
“What could be at stake in this particular litigation is the future of state authority in Indian Country — the pitting of state interests versus tribal interests,” said Richard Guest, of the Native American Rights Fund. “They don’t want these enclaves … where the state has no authority.”
“Our experience is when you place state interests versus tribes’ interests, tribes” have lost Supreme Court cases in recent years, said Guest, who plans to observe today’s arguments.
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