By Ken Davison
Last week, the US Supreme Court overturned the 1934 law that allowed the federal government to take land into trust as reservation land for all federally recognized Indian tribes.
The decision still will allow the US Department of the Interior to take land into trust for Indian tribes recognized as of 1934 but the court decision will affect dozens of tribes that became federally recognized after 1934.
The court case involved 31 acres in Charlestown, R.I., that the Narragansett Tribe wanted to add to its reservation’s land base. Once land is taken into trust by the federal government on behalf of an Indian tribe, the land can no longer be taxed and will not fall under the regulatory laws of state or local governments unless an agreement between the state and the tribe allow for compliance with their laws.
Since the Narragansett Tribe was federally recognized in 1983, the Supreme Court ruled they were not covered by a 1934 law called the Indian Reorganization Act.
The court decision should not affect the ability of the Mohegan Tribe to add land until the Tribe reaches its 700-acre settlement area limit allowed at the time the Tribe was federally recognized in 1994. The 158-acre Fort Shantok property is not included in the 700-acre limit.
Currently the Mohegan Tribe owns about 350 acres (not including Fort Shantok) and is awaiting a decision on its September application to add another 49.75 acres to its reservation. Land on Broadview Avenue, Church Lane and parcels at the former Trading Cove Pizza site are among the parcels listed on the 49.75-acre application, according to Tribal officials. Other land owned by the Tribe but not included in the reservation boundaries are the Cochegan Rock and Shantok Apartment parcels.
If the Interior Department agrees to add the 49.75 acres to the Mohegan Reservation, the Tribe could add another 300 acres before it reaches its 700-acre limit.
Connecticut Attorney General Richard Blumenthal noted in a press release two days after the ruling that that neither the Mohegan Tribe or Mashantucket Pequot Nation were federally recognized in 1934 and that the court decision “effectively prohibits the Mohegan and Mashantucket tribes from annexing land outside their settlement areas. The Supreme Court decision leaves intact the existing reservations, because both were created by acts of Congress."
In the Narragansett Tribe’s case, known as Carcieri v. Salazar, the Supreme Court ruled 6-3 to overturn an appellant court ruling that went in favor of the Narragansett Tribe. Carcieri is the governor of Rhode Island and Ken Salazar is the Secretary of the US Interior Department.
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 under 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.
"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.
The current US Supreme Court is the first court in which all of the justices had attended either Yale University or Harvard University, although one of the justices ended up graduating from yet another Ivy League school.
A brief history of the Narragansett Tribe’s relationship with the federal government was noted in court documents: “The Narragansett Tribe was placed under the Colony of Rhode Island’s formal guardianship in 1709. It agreed to relinquish its tribal authority and sell all but two acres of its remaining reservation land in 1880, but then began trying to regain its land and tribal status. From 1927 to 1937, federal authorities declined to give it assistance because they considered the Tribe to be under state, not federal jurisdiction. In a 1978 agreement settling a dispute between the Tribe and Rhode Island, the Tribe received title to 1,800 acres of land in petitioner Charlestown in exchange for relinquishing claims to state land based on aboriginal title; and it agreed that the land would be subject to state law. The Tribe gained formal recognition from the Federal Government in 1983, and the Secretary of Interior accepted a deed of trust to the 1,800 acres in 1988.”
The court ruling will no doubt hamper the Mashpee Wampanoag Tribe in Massachusetts in having land taken into trust where it has planned a massive casino. The Mashpees, federally recognized in 2007, hoped to have 539 acres in Middleborough, Mass., taken into trust for a proposed casino.
Congress may need to pass a new law that would allow the Mashpee and other tribes not under federal jurisdiction in 1934 to have land taken into trust on their behalf.
Lacking the pressure of an Indian casino in their state, Massachusetts officials may not entertain suggestions for commercial casinos. Administration officials had previously reasoned that if an Indian casino was to be built by the Mashpees, then the state should also allow commercial casinos.
According to the Cape Cod Times, an agreement that the Mashpee Wampanoag Tribe signed with their investors not only guaranteed the investors a hefty cut of any future casino revenues but promised to repay the investors the millions of dollars it borrowed even if the casino is not built.
A spokesman for the Mashpee Wampanoag Tribe said, "It's still the tribe's position that the casino will proceed. There's a concern about what this decision will mean in terms of the timing, but it holds to the fact that at some point the federal government will correct the land-into-trust issue."
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