Tuesday, February 24, 2009

U.S. Supreme Court Ruling Goes Against Narragansett Tribe

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The U.S. Supreme Court issued a landmark ruling today on the federal government's authority to take land into trust as reservation land for Indian tribes that were federally recognized after 1934.

The Supreme Court, by a vote of 6-3, reversed an appellant court ruling that upheld the federal government's authority to take into trust a 31-acre parcel of land for the Narragansett Tribe in Charlestown, Rhode Island. The case is Carcieri v. Salazar. Carcieri is the governor of Rhode Island and Salazar is the new secretary for the U.S. Department of the Interior.

"Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust," Clarence Thomas wrote in the majority opinion.

In the dissenting opinion, Justice John Paul Stevens argued that the Narragansett's land should be taken into trust because " the tribe has existed as a continuous political entity since the early 17th century." Justice Stephen G. Breyer, however, said the Narragansetts have no way of proving they were under federal jurisdiction in 1934.

Indian tribes that were federally recognized before the 1934 Indian Reorganization Act went into effect are not affected by the ruling.

The possibility of the Mohegan Tribe - and other tribes recognized after 1934 - ever adding to its 700-acre reservation limit (not including Fort Shantok) has been called into question by the ruling.

How will the ruling affect the two tribes which struck an agreement with the Mohegans to develop and manage casinos?

The ruling may not affect the Cowlitz Tribe's ability to have land taken into trust for its initial reservation but the ruling would seem to disallow the Menominee Tribe's ability to have off-reservation land added into trust for use as a location for a casino or any other use without a new federal law.

The attorney for Rhode Island's Governor Carcier, Theodore Olson, argued that trust status for the Narragansetts’ land could result in the development of a casino on that land. Olson said the 1934 law was meant to restore protection for tribes affected by an earlier system of land allocation and that the trust status allowed unter that law, which exempts those tribal lands from state and local laws, were needed to remedy the harm done by earlier legislation.

The 1934 law defined Indians as "all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction." Olson argued that the word ‘now’ must be given its ordinary meaning and should not apply to tribes recognized after the 1934 law was enacted.

Olson argued that since the Narragansetts were federally recognized in 1983 that they should not covered by the 1934 law.

The ruling has national implications since many Indian tribes were federally recognized after 1934 and could affect the federal government's ability to take land into trust for those tribes.