The Narragansetts say the land is for housing for the elderly, but the state worries it could become home to a casino, smoke shop or other industry.

01:00 AM EST on Wednesday, January 10, 2007

By Katie Mulvaney
Journal Staff Writer

BOSTON -- The 31 acres sit on a hillside just north of Route 1 in Charlestown, largely wooded save for the weather-worn shells of a dozen houses once intended for the Narragansett Indian tribes poor elders.

Though the property appears forlorn, it is central to a decade-long legal battle between the state and the federal government over whether the U.S. Department of Interior can take the land into trust on behalf of the Narragansett tribe. Trust status means state and local laws wouldnt apply on the land, though most federal laws would. Once held in trust, it would be under the tribes authority.

It's that prospect the state fears. Chief Sachem Matthew Thomas says the land is intended for housing for the elderly, but some worry it could become home to a casino, smoke shop or other industry -- without state oversight.

Yesterday, lawyers for the state and the U.S. Department of Justice, representing the Interior Department, made their cases to the full 1st U.S. Circuit Court of Appeals. A three-judge panel from the appeals court ruled in September 2005 that the Interior Department could take the land in trust for the tribe. The full court last month agreed to weigh the issue, at the state's request.

On face value, it might seem the case is about the tribe's quest to build low-income housing for its elderly residents, but much more is at stake, said Joseph S. Larisa Jr., a lawyer representing Charlestown.

"It is really about one thing: jurisdiction," Larisa said.

To allow the 31 acres to be placed into trust would strip land from Rhode Island law for the first time in the state's history, he said.

Larisa argued that the tribe did not fall under the scope of the Indian Reorganization Act passed in 1934 to restore certain rights and lands to Native Americans. He referred to language in that law defining Indian as anyone in a recognized tribe "now under federal jurisdiction." Thus, he said, the act extended only to tribes recognized in 1934.

The Narragansetts won federal recognition from the Interior Department's Bureau of Indian Affairs in 1983.

The Justice Department had a vastly different interpretation. The secretary of the Interior "does not distinguish between tribes [recognized] before and after 1934," said Justice Department lawyer Elizabeth Ann Peterson.

Ian Gershengorn, assisting Peterson on behalf of the National Congress of Indians, added that if "now" meant 1934, then tribes that have since been disbanded would still be entitled to privileges under the reorganization act.

Additionally, the state claimed the Narragansetts bargained away their rights when they entered the land claims settlement that gave them 1,800 acres in Charlestown in 1978. That agreement, now law, places those tribal lands under state and local criminal and civil jurisdiction. The 31 acres sit across the Kings Factory Road.

Under the 1978 settlement, the Narragansetts gave up their claims to "all lands in Rhode Island," said Claire Richards, representing Governor Carcieri.

Peterson countered that the agreement did not explicitly bar the tribe from buying other property and having that land placed in unrestricted trust.

The judges seized on the issue, with Judge Bruce M. Selya commenting that for the tribe to seek additional land to be placed into trust "completely erodes the bargain."

"If so, that bargain is not reflected in the language," Peterson said.

"Perhaps nobody thought about" the tribe acquiring lands beyond the 1,800 acres in 1978, said Judge Kermit V. Lipez. "Perhaps there were different understandings . There were two parties."

The tribe bought the 31 acres in 1991 for housing for its elderly. That project, mired by mismanagement, stalled when the tribe began construction without securing state and local permits.

The state and the Town of Charlestown filed suit against the Interior Department after the Bureau of Indian Affairs agreed to place the land in trust for the tribe in 1998. U.S. District Judge Mary Lisi ruled in September 2003 that the Interior Department could place the 31 acres in trust. The state appealed. The three-judge panel from the 1st U.S. Circuit Court of Appeals upheld that decision, but did not address the jurisdiction issue.

A panel decided in September 2005 that the land could be held in unrestricted trust for the tribe.

Larisa promised yesterday that if the court upheld the panel's ruling, more legal wrangling would follow. "If this court decides the same laws apply [as on the 1,800 acres] you will see housing go up very quickly. If not, there will be years and years of litigation" to define "what the heck is Indian Country," he said.