Friday, February 29, 2008

Land-Into-Trust Issue Goes To U.S. Supreme Court

By Ken Davison


The U.S. Supreme Court announced Monday that it will hear a case that could dramatically alter the way the federal government adds land to certain Indian reservations.

The State of Rhode Island is challenging the U.S. Department of the Interior's 1998 decision to take a 31-acre parcel of land in Charleston, R.I., into trust on behalf of the Narragansett Tribe as reservation land for tribal housing.

The law that gives the federal government the authority to take land into trust on behalf of Indian tribes is called the Indian Reorganization Act (IRA) of 1936. The State of Rhode Island insists that the Narragansetts and every other Indian tribe federally recognized after 1936 are not eligible under the IRA law to have land taken into trust by the Secretary of the Interior and that instead Congress must approve the land deals. The Narragansett Tribe was federally recognized in 1983.

The plaintiff in the case (Carcieri vs. Dick Kempthorne) is Rhode Island Governor Donald Carcieri and the defendant is the U.S. Secretary of the Interior Dick Kempthorne.

Under the IRA, Congress authorized the Secretary of the Interior "in his discretion" to acquire and take into trust for Indian tribes "any interest in lands . . . within or without existing reservations . . . for the purpose of providing land for Indians."

The IRA defines an "Indian" as "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." Since the effective date of the IRA law is 1936, the State of Rhode Island is arguing that tribes that were federally recognized after that date are not covered by the IRA and cannot have land taken into trust on their behalf by the Secretary of the Interior.

Also at stake in the case is whether the Department of the Interior can take land into trust for tribes after their aboriginal land rights were extinguished by an act of Congress.

Three years ago, the Supreme Court ruled that the Oneida Nation in New York lost its sovereignty over the ancestral reservation due to the passage of time.

"A tribe losing its ability to exercise sovereign control over land through an act of Congress may only regain that control by a subsequent act of Congress," according to the state's February 5 brief.

Dozens of tribes have been federally recognized since 1936.