01:00 AM EDT on Friday, October 19, 2007

By Katie Mulvaney

Journal Staff Writer

The state made another play yesterday to keep its hold over 31 acres owned by the Narragansett Indian Tribe in Charlestown.

Attorney General Patrick C. Lynch’s office, joined by Governor Carcieri and the Town of Charlestown, filed an appeal asking the U.S. Supreme Court to consider, and overturn, a ruling that allows the U.S. Department of Interior to hold the land in trust for the tribe.

Trust status would free the property from state and local tax and land-use regulations or most Rhode Island criminal laws.

Tribal leaders have said they will use the site for housing, but state officials fear the ruling would clear the way for the tribe to open a smoke shop, casino or other venture, outside state oversight.

The land sits across Kings Factory Road from the tribe’s other 1,800 acres, just north of Route 1.

The state’s appeal argues the closely watched case deserves the high court’s consideration because 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.

As the decision stands, the Interior Department “can now take land into trust for any federally recognized tribe, in any place, in any amount of land,” said Assistant Attorney General Neil F.X. Kelly.

The appeal talks about the potential financial implications should the tribe open a tax-free enterprise on the land, saying that an Indian business “could seriously undermine state tax revenues that fund schools, roads and other critical infrastructure.”

“Likewise, land taken into trust may be used for gaming purposes,” the appeal states. “Indian gaming from any location within Rhode Island will jeopardize another of the state’s significant sources of revenue — its state-operated gaming facilities.”

The Narragansetts bought the 31 acres in 1991 as a housing site 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 it agreed to take the land into trust for the tribe in 1998. U.S. District Judge Mary Lisi ruled in the department’s favor in 2003.

A three-judge panel from the 1st U.S. Circuit Court of Appeals upheld that decision in 2005. Lawyers for the state and the U.S. Justice Department, representing the Interior Department, argued before the full appeals court in January.

In July, a divided appeals court once again sided with the Interior Department, and the Narragansett tribe.

In its appeal to the Supreme Court, the state says the 31 acres should not be taken into trust because the tribe does not fall under the scope of the Indian Reorganization Act, passed in 1934 to restore certain rights and lands to Native Americans. The state interprets the act as extending only to the 258 tribes recognized in 1934.

The appeals ruling would enable the Interior Department to take land into trust for hundreds of tribes recognized decades later, the state argues. The Narragansetts won federal recognition in 1983.

Additionally, lawyers claim the agreement that gave the tribe its other 1,800 acres bars the federal government from placing the 31 acres in trust because it extinguished all Narragansett land claims in Rhode Island.

The Narragansett Tribe filed suit in 1975, seeking the return of 3,200 acres in Charlestown, including the land in question. After extensive talks, the tribe, state, town and federal government reached the settlement in 1978 that gave the Narragansetts 1,800 acres. That agreement was later codified in federal law.

Even if the 31 acres is taken into trust, the state asserts, it should be held to the same terms as the tribe’s other land, which falls under state civil and criminal jurisdiction under the 1978 settlement.

Finally, the state claims the law that gives the Interior Department authority to place land in trust for tribes is unconstitutional because it allows the agency to remove land from state jurisdiction with little guidance.

John F. Killoy, a lawyer for the tribe, said last night that the issues the state raises have settled, time and again.

“Clearly the courts have consistently decided in three different opinions that the Narragansett Indian Tribe has the right under federal law to take the land into trust,” Killoy said.

The Justice Department has 30 days to file its response to the Supreme Court. The state will have 30 days to reply. The court will then decide whether to take up the case.

kmulvane@projo.com