Tuesday, November 4, 2008

The Tribes In The Media: Landmark Indian Case Heard By Supreme Court

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This installment of The Tribes In The Media is a Providence Journal article chronicling yesterday's U.S. Supreme Court hearing on the Narragansett Indian land-into-trust case. If the Supreme Court rules against the Narragansett Tribe in this case, the potential land base of Indian reservations will be changed forever. It is believed that the Mohegan Tribe could never seek to add, ever, more than the 700 acre limit of Reservation land - not including Fort Shantok - agreed to at the time of federal recognition if the Court rules against the Narragansett Tribe in the case described below. It could also mean that the Interior Department would no longer be allowed to give reservation trust status to off-reservation parcels of land that do not fall within the limitations given at the time of a tribe's federal recognition. We do not think it would affect a tribe such as the Cowlitz Tribe's application for their initial reservation land base but the Interior Department would no longer have the authority to take into trust other land parcels such as the one that the Menominee Tribe of Wisconsin wants designated for a casino to be run by the Mohegans.

Indian land case goes before Supreme Court
By Katie Mulvaney and John E. Mulligan
Providence Journal
November 4, 2008

The Narragansett Indians are entitled to a special trust status that would free 31 acres of tribal land from Rhode Island laws and taxes, a federal lawyer told the U.S. Supreme Court yesterday, but several justices greeted the argument with skeptical questioning.

Assistant Solicitor General Deanne E. Maynard argued that the tribe is covered by a 1934 law — “New Deal legislation for Indians,” as she described it — that exempted tribal trust lands from local law and taxation to help them “to revive economically and to have self-governance.”

But Theodore B. Olson, a prominent Washington lawyer arguing for the State of Rhode Island and the Town of Charlestown, gave a starkly different interpretation of the 1934 law — and who qualifies for its land trust benefits. The Narragansetts do not, Olson said. He argued for the state and Charlestown, which have warned that trust status for the Narragansetts’ land could open the door to tribal gambling and other unregulated enterprises.

Olson said the 1934 law was meant to repair damage that the federal government had done to Indians under an earlier system of land allocation. He argued that Congress aimed to apply the law’s remedies — notably the exemption of tribal trust lands from local laws and taxes — to Indians who had been dealing with the government under the old system.

Olson also launched an hour of oral argument focused heavily on differing interpretations of a key clause in the Indian Reorganization Act of 1934 (IRA), which created the Indian land trust system that the Narragansetts want extended to their parcel in Charlestown.

Olson argued that for purposes of identifying who would be eligible, the 1934 law defined the word “Indian” as including “all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.”

“ ‘Now’ must be given its ordinary meaning,” Olson told the justices, arguing that when Congress said “now” in the language of IRA, it meant 1934. Thus, the Narragansetts don’t qualify for IRA trust benefits because they did not win federal recognition as a tribe until 1983, Olson argued. “The word ‘now’ had the same meaning in 1934 as it does every morning in this Court when the Marshal announces that ‘The Court is now sitting,’ ” Olson said.

Maynard countered that “now” indicates the moment when the Interior Department exercised the law by taking land into trust for a tribe. Maynard represented the Department of Interior, which took the Narragansett tribe’s 31 acres into trust in 1998.

Several of the justices zeroed in on Maynard’s argument with pointed questions. Justice Antonin Scalia said, with characteristic bite, that Interior Secretary Dirk Kempthorne “interprets ‘now’ to mean nothing. Does he understand that we usually do not interpret words to have no meaning?”

Kempthorne is named as respondent in the case because his department acted to put the Narragansetts’ property in trust. Governor Carcieri, the plaintiff in the case, has asked the court on the state’s behalf to rule that the Interior Department cannot take the land into trust for the tribe.

Justice Stephen G. Breyer said he found it “hard to swallow” that Congress intended to leave the interpretation of the word “now” to the Interior Department.

“We are talking about an extraordinary assertion of power,” warned Chief Justice John G. Roberts. “The secretary gets to take land and give it a whole different jurisdictional status, apart from state law and all.”

The outcome of the case could reopen the question , bitterly disputed for decades, of whether the Narragansett Indians can build casinos and other enterprises over the objections of their neighbors in South County and the State of Rhode Island.

But Maynard told the court, “If what you’re concerned with is the specter of gaming,” she understands that “the tribe could not unilaterally decide to game,” even if the high court rules that the Narragansett property may be taken into trust.

THE CASE HAS NATIONAL implications. Rhode Island argues in its appeal that it 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 in Connecticut. 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 in Charlestown and, later, to win federal recognition as a tribe.

The state anticipates lottery and other gambling receipts for this fiscal year of $365.5 million, or slightly more than 11 percent of total revenues. Gambling is the state’s fourth-biggest revenue source, behind income taxes, sales and use taxes and general business taxes. Kernan King, the governor’s executive counsel, said after yesterday’s arguments that gambling competition from the Narragansetts could lower state revenues at a time of severe budget constraints. Other untaxed tribal businesses might also eat into state revenues, he said.

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 housing 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 to 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 1st . Circuit Court of Appeals and later by the entire federal appeals court.

At several points yesterday, Breyer, Justice Ruth Bader Ginsburg and Justice David Souter seemed to struggle for ways to get past the state’s argument that the “now” in the 1934 statute disqualifies tribes that had not yet been recognized by the federal government.

“I think it’s a very difficult case,” said Breyer, who once sat on the 1st Circuit court and appeared to be deeply immersed in the details of the Rhode Island case.

When Olson asserted that the Narragansetts were not under federal jurisdiction in 1934, Ginsburg asked whether their long record of dealings with the federal government might not argue to the contrary. “I thought recognition reflects that it’s had a history going way, way back?”

But Richard Guest, a lawyer with the Native American Rights Fund, came away from the proceedings with a grim view of the tribe’s prospects for a favorable ruling.

“The court asked no question with respect to what the tribe’s interests were in the case,” said Guest. “I just don’t see five justices coming out in favor of the tribe’s interests, and that tribe can be plural or singular.”

Narragansett Indian Chief Sachem Matthew Thomas was one of more than a dozen Rhode Islanders on both sides of the case who came to witness the arguments before the high court. Before entering the court, Narragansett members performed a ceremony to protect tribal interests.

Inside the historic court chamber, Thomas and members of the tribal council sat in a row behind Carcieri and Rhode Island Attorney General Patrick C. Lynch.

AFTER THE COURT SESSION, most of the Rhode Islanders walked down the front steps of the Supreme Court and then spoke to reporters on the sidewalk across the street from the Capitol.

Thomas declined to speculate on the day’s proceedings. “I believe they did the best they could,” he said of the Department of Justice lawyers. “At the end of the day, the decision will be based on the statute and the law,”’ Thomas said. “It’s just a matter of waiting to see what happens.”

That wait is likely to be several months. The Supreme Court never announces when it will issue opinions, but it is expected to rule before the end of the current term, late next spring.

Carcieri and other state leaders expressed optimism.

“Ted Olson made a great case on our behalf,” Carcieri said on the steps of the court.

Three Charlestown Town Council members — Katharine H. Waterman, Harriet Allen and Bruce Picard — also observed the arguments along with Town Solicitor Robert E. Craven and former Conservation Commission member Faith LaBoissiere.

“I’m feeling good about it,” Waterman said. “Justice Breyer impressed me very much with his knowledge of the case and his questions. I feel confident we will win this one.”

Even Joseph S. Larisa Jr., Charlestown’s lawyer who fought hard to argue the case before bowing out last Friday, seemed pleased. “I think we’ve got it,” he said, before rushing to catch a flight back to East Providence where he is running for City Council in today’s election. “It seems clear that the justices understand [IRA] is limited to 1934.”

As yesterday’s arguments wound down, Roberts went so far as to suggest that if the court decides in the state’s favor, the Narragansetts and the Interior Department would have recourse to Congress.

“[I]f we disagree with your interpretation, and Congress thinks we are wrong, they can pass” a bill explicitly granting land trust benefits to the Narragansetts under the terms of the New Deal-era law. Congress has already done so for 15 other tribes since 1934, the chief justice said, referring to one of Olson’s key arguments.

Journal staff writer Steve Peoples contributed to this report.