Carcieri v. Kempthorne--Summary

This deliciously complex and divisive Indian law case (that is how the field is known in law) pits the State of Rhode Island and Providence Plantations (did you know that was its official name?) against the Secretary of the Interior. Why? Because the Secretary has taken a parcel of land (31 acres) in RI under trust for the Naragansett Indian Tribe and has concluded that civil as well as criminal jurisdiction over that land resides in the Tribe and not in the State of RI. Your first reaction might be, 'Well, what is 31 acres? Even if it is in Little Rhody, 31 acres will scarcely break the bank.' But, the response is, 'There is a principle here to be observed, and if it isn't addressed right here at the outset, the federal action opens the door to massive confiscation of state land, without state decision, on behalf of Native Tribes.' Well, when it is put that way, we might want to pause and see what the problem is...

Historical Background--the 1934 Law

To understand this case, we need first to present a 1934 law, then a 1978 Congressional enactment and then an action by the Secretary of the Interior. Let's go seriatim. In 1934 Congress passed the Indian Reorganization Act, 25 USC secs 461 et seq. The operative language contained in that Act (25 USC sec 479) and restated by the Supreme Court expressly limits tribal inclusion under the Act to "all persons of Indian descent who are members of any recognized [in 1934] tribe now under federal jurisdiction." US v. John, 437 US 634, 649 (1978). In 1934, the Naragansett Indian Tribe (the Tribe under consideration here), was not one of the more than 250 federally recognized Tribes. Subsequent to 1934, as we know, hundreds more Native American Tribes have been given federal recognition. The Naragnansetts ("Tribe") are one of them. So, that is our first question--how broadly do the provisions and, ultimately the protections, of the 1934 Act extend?

The First Lawsuit--1975

In 1975 the Tribe brought two lawsuits against the State of RI, the town of Charlestown and some Charlestown land owners to recover 3,200 acres based upon what was claimed to be aboriginal title to the Tribe's former colonial reservation. The Tribe argued that its land had been sold without congressional approval as required by another law, and that the transfer, therefore, was null and void. The 31 acres which are the subject of this case (Carcieri) were part of the 3,200 acres claimed by the Tribe.

In 1978 the parties settled the lawsuits and executed an agreement confirmed by Congress in the Rhode Island Indians Claims Settlement Act (25 USC secs 1701 et seq.). The Settlement Act "divided the baby" by providing that the Tribe would receive 1,800 acres of land, half to be donated by the State and the other half which would be purchased by federal funds. The 31 acres of the current lawsuit was not in the 1800 acres. In exchange for this, Congress extinguished the Tribe's aboriginal title to land throughout RI (25 USC sec. 1705(a)). In so doing, Congress was acting in a very predictable way. Analogously to workers compensation law, where fixed payment was given in exchange for foregoing future lawsuits, so here a fixed land allotment was given in exchange for extinguishment of future claims. One further provision of this Act needs to be mentioned. Congress also mandated that "the Settlement Lands shall be subject to the civil and criminal laws and jurisdiction of the State of RI." 25 USC sec. 1708(a). The issue seemed to be settled once and for all. The Tribe got a big chunk of land; any further land claims were to be extinguished; jurisdiction over the 1800 acres remained with RI. There was to be no "autonomous enclave" of Naragansetts in RI. But, this wasn't the end.

The Current Litigation

Ten years ago (March 6, 1998), the State was notified that the Secretary of the Interior (Bruce Babbit at the time) intended to take the 31-acre parcel, on which there is a housing development, into federal trust for the Tribe. Oops. Complication. Really big-time complication. For, if this could happen, then in fact the issue of what constituted Indian Land was not settled. The complication was enhanced because this proposed federal action would have ousted the State from its civil and criminal jurisidiction in the parcel of land. The issue has been in litigation for the past decade, with the latest decision (by a split First Circuit sitting en banc--497 F3d 15 (2007)) affirming the Secretary's ability to break off this 31 acre parcel, declare it to be held in trust for the Tribe and replace jurisdiction in this parcel from State to Native American.

Several legal issues stalk this case like an eerie wraith gliding through a haunted house. The central issue, as ought to be plain, is whether the Secretary of the Interior was prohibited by the 1934 and 1978 Acts from converting land to trust for the Tribe. Is the reach of the 1934 Act, which gives recognition to and somewhat broad powers to recognized Tribes, limited to those tribes both federally recognized and under federal jurisdiction in 1934 or can one stretch the language of the Act to include subsequently-recognized tribes? Then there is the issue of the meaning of the 1978 Settlement Act. It appears to preclude, by its terms, any conversion of land to federal trust land by extinguishing aboriginal title and all Indian claims in exchange for the 1800 acres secured by the Tribe. Finally, there is a complex issue regarding the powers of the Secretary of the Interior. Can he, unilaterally and without any Congressional approval or oversight, create sovereign territory for an Indian tribe? Finally, there is the issue of jurisdiction. If, indeed, the Secretary can unilaterally take State land for tribal purposes, can he also declare that the land so taken is under the jurisdiction of the Tribe and no longer under that of the State?

So complex were the issues that the First Circuit issued and then vacated two panel decisions and then, finally, issued a deeply divided en banc decision. By the time of the en banc decision literally scores of amici had lined up to weigh in on the issue. Everyone, it seemed, had a perspective on the questions. The First Circuit decision affirmed the Secretary's right to take land into unrestricted trust for Indians in Rhode Island. Of course this case has implications far beyond RI, and that is the reason it is in the lap of the Supremes. Space would fail me to go through all the First Circuit arguments. Suffice it to say that they found the language of the 1934 Act ambiguous (thus not limiting its scope to the 250+ recognized Tribes at the time); they further found that the Settlement Act only related to "traditional property claims," whatever that really means, and that therefore the extinguishment provisions should be read rather narrowly.

I wouldn't be surprised if the Court would reverse the First Circuit. After all, this was a Clinton Administration problem, and I think the Court isn't too sympathetic to the "overreaching" acts of that Administration. Only time will tell...

3850