1. Can the Secretary place in federal trust land privately purchased by Indian tribes recognized after the passage of the 1934 Indian Reorganization Act, thereby removing the land from state control?
2. If the Congress passes an Act that terminates previous Indian claims to land, is the Secretary of the Interior precluded from creating additional territory?
In 1978, Rhode Island and the Narragansett Indian Tribe settled a dispute concerning land ownership. In exchange for 1,800 acres of land, the Narragansett surrendered other claims to title and agreed that Rhode Island law would apply to the 1,800 acres. This settlement became federal law. The Narragansett later purchased a thirty-one acre parcel from a private developer. At the Narragansetts’ request, the Secretary of the Interior took the land into federal trust under the Indian Reorganization Act (“IRA”), thereby removing it from Rhode Island’s jurisdiction. Concerned over their loss of sovereignty, Rhode Island fought the Secretary’s actions, ultimately leading to the present case between Rhode Island, the Governor, and the town of Charleston, against the Secretary of the Interior and the Regional Director of the Bureau of Indian Affairs. The IRA applies to “tribe[s] now under Federal jurisdiction,” (emphasis added) Interpreting “now” to mean 1934, the time of the IRA’s passage, Rhode Island argues that the IRA would not apply to the Narragansett Indian Tribe, who were recognized later. The Secretary argues that “now” means when the statute is used and therefore the Narragansett do fall within the IRA’s scope. Rhode Island also argues that the settlement with the Narragansett precludes the Secretary from taking the land into federal trust. This case will affect state sovereignty and the power of the IRA. Rhode Island and other states are concerned over the potential loss of local control and jurisdiction over land within their borders. An interpretation of the scope of the IRA could also affect access to the IRA, potentially resulting in a loss of its benefits and protection from state law.
Questions as Framed for the Court by the Parties
The Indian Reorganization Act of 1934 permits the Secretary to take land into trust for certain Indian tribes, significantly impairing state jurisdiction. The Fifth Circuit held that the 1934 Act “positively dictates” that the only Indian tribes for whom land can be taken into trust are those that were “recognized” and “under federal jurisdiction” as of “June 1934.” This Court similarly concluded in that the 1934 Act contained a temporal “recognized [in 1934] tribe” limitation. United States v. John, 437 U.S. 634 (1978) (bracket by Court). The Ninth Circuit affirmed a district court decision to the same effect. The Rhode Island Indian Land Claims Settlement Act provides land specifically for the later recognized Narragansett Indian Tribe and comprehensively disposes of all Indian land claims in Rhode Island. The Tribe received 1,800 acres of land for free.
In exchange, Congress extinguished aboriginal title and all Indian interests in land in Rhode Island.
The questions presented are:
1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.
2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.
3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.
[Questions 1 and 2 granted certiorari]
This case is the culmination of litigation between the Rhode Island and the Narragansett Indian Tribe that began in 1975, when the Narragansett filed suit to recover tribal lands in Rhode Island. Rhode Island and the Narragansett settled the suit in 1978 in an agreement that was subsequently codified into federal and state law known as the Settlement Act. In the agreement, the Narragansett received 1,800 acres of “Settlement Lands.” In exchange, they agreed to abandon “all Indian claims of any kind… involving land in Rhode Island.” The parties agreed that the State’s jurisdiction, particularly local building, fire and safety codes, would be in effect within the Settlement Lands.
At the time of the Settlement Act, the Narragansett were not a federally recognized Indian Tribe. However, in 1983, the tribe gained federal recognition from the Secretary of the Interior.
In 1991, the Narragansett purchased an additional thirty-one acre parcel of land in Charlestown, Rhode Island. This land was part of the original disputed territory in the 1975 suit, but not a part of the Settlement Lands established by the 1978 agreement. The Narragansett thereafter began to build a housing project on the parcel without obtaining building or sewage disposal permits required by local and state law. The Narragansett claimed they were exempt from state and local law because this land was an independent Indian community, and not subject to the sovereignty agreement established by the Settlement Act. Arguing that the land could not be considered Indian country under 18 U.S.C. § 1151, the State successfully enjoined the Narragansett’s construction through suit in federal district court.
However, the Narragansett applied in July 1997 to take the lands into trust under Section 5 of the Indian Reorganization Act (“IRA”). The Secretary of the Interior approved the request in 1998, and took the land into federal trust, thereby removing the land from the state’s jurisdiction. The state was especially concerned that this action gave a green light to the Narragansett to continue to purchase additional lands not included in the Settlement Act, and that they would then apply to have the land taken into federal trust and brought out of the State’s jurisdiction. The State therefore sued the federal government, claiming the IRA applies only to tribes that were federally recognized at the time of the Act’s passage in 1934, and that the federal government therefore lacked authority to take this newly recognized tribe’s land into federal trust. The state also claimed the Settlement Act foreclosed the establishment of additional Indian land in the state, and prohibited the Secretary from taking the land into federal trust. The state’s claims were unsuccessful in both the Interior Board of Indian Appeals and the Federal District Court. The Court rejected the state’s argument that the language of 25 U.S.C. § 479 defining the term Indian to mean “any recognized Indian tribe now under Federal jurisdiction” applies only to Indian tribes that were both recognized and under federal jurisdiction in 1934. The Court also dismissed the State’s claims regarding the Settlement Act, holding that the provision does not speak to non-settlement acquisitions, and thus does not represent a Congressional intent to foreclose any possibility of trust acquisitions of non-Settlement lands that might be acquired in the future. The First Circuit Court of Appeals reaffirmed the decision, both in 2005 and by an en banc panel rehearing the case in 2007.
In 1880, Rhode Island acquired the majority of the Narragansett’s land. In 1975, the Narragansett sued to get it back. In the wake of these lawsuits, the Narragansett and Rhode Island entered into settlement negotiations, which ultimately lead to a settlement agreement in 1978. Unlike most settlements, the agreement became federal law (“Settlement Act”). In exchange for the transfer of 1,800 acres to the Narragansett (“Settlement Lands”), which would be governed by Rhode Island law, the Narragansett would surrender claim to the remainder of the disputed lands from the lawsuit. In other words, ownership of the land would be settled and Rhode Island law would govern.
In 1991, the Narragansett purchased a thirty-one acre parcel (“Parcel”) from a private developer. The Narragansett proceeded to build housing on the Parcel. However, the housing violated state building laws and Rhode Island successfully intervened.
The Narragansett moved to have the Parcel placed in federal trust under the Indian Reorganization Act (“IRA”). The IRA authorizes the Secretary of the Interior to take Indian land into federal trust. In doing so, the land becomes “Indian country” and outside of Rhode Island’s laws; jurisdiction instead rests with the tribe and the federal government. The Secretary of the Interior took the Parcel into trust in 1998, effectively removing the land from Rhode Island’s sovereign territory.
Rhode Island, reacting to the loss of its sovereignty, appealed the Secretary of the Interior’s action to the Interior Board of Indian Appeals. Losing that appeal, Rhode Island, the Governor, and the town of Charleston (collectively, the “State”) sued the Secretary of the Interior and the Regional Director of the Bureau of Indian Affairs (collectively “Secretary”) for deciding to take the Parcel into trust.
The State argued three points at the U.S. District Court for the District of Rhode Island. First, the Secretary did not have authority to take the Parcel into trust, as the Narragansett did not fall within the IRA. Second, the Settlement Act precluded the Secretary from taking more land into trust. Third, the taking of the land violated the U.S. Constitution with respect to Rhode Island’s sovereignty. The district court held against the State on all of these points, finding that the taking was proper.
The First Circuit initially affirmed the district court, but then withdrew the opinion. In an en banc rehearing, the First Circuit again affirmed the district court’s decision. The Supreme Court granted certiorari on the State’s first two arguments: that the Secretary of the Interior could not take the land into trust because the Narragansett did not fall under the IRA, and that the Settlement Act precluded taking additional land into trust.
IRA and the Narragansett: What does “now” mean?
The State argues that the Secretary of the Interior does not have the authority to take the Parcel into trust, as the IRA does not cover the Narragansett.
Section 5 of the IRA grants the Secretary the authority to take land into trust “for the purpose of providing land for Indians.” The IRA defines “Indian” to include, “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”
The State argues that the word “now” in the text of the IRA refers to the time of the IRA’s enactment: 1934. As the Narragansett were not federally recognized until 1983, the State argues that the Narragansett are not “Indian” within the meaning of the IRA. As such, the Secretary could not take the land into trust as it would not be “for the purpose of providing land for Indians.”
The Secretary argues that the IRA does grant authority to take these lands into trust. First, the Secretary argues that the statute allows the Narragansett to be included in the broader definition of the term “tribe.”
In response to the State’s line of argument, the Secretary argues the use of “now” either means the date of application or is ambiguous. If “now” means the date of application (i.e. when the IRA is used to take land), the IRA would apply to the Narragansett and the Secretary could take the Parcel into trust under Section 5. If “now” is ambiguous, the Secretary argues that their determination that the Narragansett fall within the IRA is entitled to Chevron deference. Under Chevron, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." As the First Circuit found and the Secretary argues, if “now” is ambiguous, the Secretary’s determination is controlling since it is a permissible construction of “now.”
The State and Secretary offer parallel reasoning for their interpretations of “now”:
The State offers dictionaries from around the time of the IRA’s enactment defining “now” to mean “the present time.” The Secretary counters with a contemporaneous law dictionary that includes both uses of “now.”
Turning to Congress’ use of “now,” the State points to a number of other uses in the statute where “now” refers to 1934. The State also points to other sections of the IRA that use “now or hereafter.” Thus, Congress could have selected “now or hereafter,” but chose not to, implying that “now” means 1934. The Secretary responds by pointing out other places where Congress used “now” to mean the time of application.
Furthermore, the State raises an exchange between Senator Wheeler and Commissioner of Indian Affairs John Collier during the development of the IRA. Senator Wheeler was concerned about groups who were “no more Indians than you or I . . . and yet they are under the supervision of the Government of the United States . . . .” Mr. Collier suggested the addition of “now under Federal jurisdiction” after “recognized Indian tribe” in order to correct this concern. The Secretary argues that the conversation was ambiguous. Furthermore, a reading of “now” as 1934 would not correct Senator Wheeler’s concern about the IRA applying to groups that were, at that time, “no more Indians than you or I . . . and yet they are under the supervision of the Government of the United States . . . .”
The State also argues that reading “now” as “1934” is consistent with the objectives of the IRA. The IRA was intended to remedy the effects of an allotment system, which was detrimental to tribal land ownership. Restricting the IRA to tribes recognized at the time of enactment would ensure that only those tribes subjected to allotment would benefit from the IRA. For tribes not recognized in 1934, other more stringent definitions are available, thus focusing the benefits of the IRA to the groups injured by the allotment system.
The Secretary argues that the IRA was intended to give greater political and economic self-control to Indians, not just those that lost land through allotment. In light of this objective, the Secretary quotes the First Circuit, “’it would make no sense to distinguish among tribes based on the happenstance of their federal recognition status in 1934.’” Thus, a reading of “now” as the time of application would be consistent with the objectives of the IRA.
Turning to courts, the State argues further that there is a history of Supreme Court cases treating “now” as referring to the time of enactment and not application. Furthermore, in one case the Supreme Court quoted the statute, replacing “now” with “[in 1934].” However, the Secretary argues that the alteration was editorial in nature, without analysis, and unnecessary for the court’s holding. In other words, while the Supreme Court quoted the statute, they were not interpreting “now” in their opinion. Moreover, the Supreme Court’s decision to modify “now” to “[in 1934]” demonstrates ambiguity (i.e. more words were needed to describe “now”).
The Secretary also argues that “Indians” (as used in Section 465 granting the Secretary authority to take land into trust) is more inclusive than “Indian” (as limited by “now” under Section 479), in that “Indians” include tribes and the definition of tribe is more expansive than that of “Indian.” The Secretary points to other uses of “Indians” which would be inclusive of tribes.
Apart from the argument surrounding “now,” the Secretary argues that Section 479’s use of “shall include” in giving multiple definitions for “Indian” is not exclusive (i.e. including but not limited too). Thus, the Secretary argues that Congress left a gap that the Secretary could fill.
Settlement Act — a contract that became federal law
The State argues that the Settlement Act was essentially a bargained for exchange. Under the Settlement Act, the Narragansett received 1,800 acres and the State retained jurisdiction over those lands. In addition, the Settlement Act extinguished the Narragansett’s aboriginal title (claim of ownership from original occupation).
The State argues that, because the Narragansett surrendered their aboriginal title to the Parcel, the Secretary cannot take the Parcel into trust. In essence, the Secretary argues the Settlement Act wiped the slate clean, leaving only a simple land purchase with no grounds for the Secretary’s action.
Furthermore, the State argues that the Secretary’s action undermines the purpose of the Settlement Act. The Settlement Act was a compromise between the State and its interest in maintaining jurisdictional control over the land, and the Narragansett’s interest in owning land. By taking the Parcel into trust, and thereby removing it from Rhode Island’s jurisdiction, the Secretary destroys the State’s benefit from the agreement and creates what the State hoped to avoid — a place in Rhode Island immune from Rhode Island law. Moreover, the Settlement Act would have the unintended effect of rendering the Settlement Lands the only place where Rhode Island law is sure to apply (since the Narragansett could buy land elsewhere and the Secretary could take it into trust).
Responding, the Secretary argues the Settlement Act explicitly restricts Rhode Island law to the Settlement Lands. He quotes the statute, saying, “the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” Otherwise, the Settlement Act is silent on whether Rhode Island law would apply to additional lands acquired and taken into trust. Furthermore, the Secretary distinguishes this Settlement Act from other settlement acts which included provisions for subsequent land purchases. This distinction implies that the Settlement Act does not bar taking additional land into federal trust.
This case will resolve a split in interpretation concerning whether the IRA applies only to the tribes that were recognized at the time of the Act’s passage in 1934, or whether it extends to tribes recognized after that date, or who are recognized in the future. This decision will also address the extent to which settlement acts extinguish future Indian claims to land in other states. . The State of Rhode Island claims that since the Narragansett were federally recognized in 1983, the Secretary of the Interior cannot take the thirty-one acre parcel into trust for them because the federal government’s authority to do so comes from Section 5 of the IRA, which was written to apply to tribes “now within Federal Jurisdiction” at the time of the Act’s passage in 1934. Furthermore, the State claims the Settlement Act extinguished all further claims to Indian occupied trust and Indian Country in Rhode Island. The Federal Government argues that, as the lower courts have held, “now” refers to all Indian tribes currently recognized by the federal government, Section 5 of IRA applies to all federally recognized tribes, and the Settlement Act does not foreclose future assertion of the Secretary of the Interior’s trust-acquisition authority.
A decision for Rhode Island finding against the federal government’s authority to take land into trust would insulate the state from any further expansion of Indian lands beyond the borders set by the 1978 Settlement Act. However, an affirmation of the lower courts’ holdings would leave the state anxious that the Narragansett might expand the borders established by the Settlement Act by purchasing land and bringing it into trust through application to the federal government. The state is most concerned about the Narragansett’s potentially uncapped ability to create zones within the state where local zoning, civil, and criminal law does not apply, particularly because Rhode Island is a small state, where the loss of any territory is significant. While state sovereignty was maintained over lands in the Settlement Act, it does not extend to newly acquired tracts of land brought into trust, , and “reading the Settlement Act to permit the secretary to take land into trust for the Narragansett would mean that the Narragansett would be free to exercise territorial sovereignty anywhere in the State except on the Settlement Lands.”
A decision for Rhode Island will also prevent the Narragansett from expanding the borders of their lands beyond the 1,800 acres granted in the Settlement Act, and local zoning, civil, and criminal law will apply in the disputed the 31 acre parcel. However, an affirmation of the lower courts’ rulings will send a green light for expanding borders of Indian lands, and allow the Narragansett to establish civil and criminal autonomy (though subject to federal law) in the Parcel brought into federal trust.
The sovereignty issues at stake in this decision also draw the interest of a considerable number of other states with Indian populations. Twenty-two states argue that a decision for respondents would signal that tribes can grow their territories irrespective of past agreements to the contrary. The states voice strong opposition to an extension of this authority, as land taken into trust by the federal government is removed from state and local authority over taxation, land use restrictions, and some environmental regulations. States allege that authority to take land into trust has the potential to “change the entire character if a state,” especially when the Secretary grants land in trust to “modern” tribes who live in populated areas. This also raises significant concerns for local citizens, who associate trust land with tax-free stores and Indian gaming, regardless of state laws to the contrary. Expansion of Indian gaming competes with state lotteries — a prime source of revenue for many states, such as Rhode Island, where the state lottery makes up the largest source of voluntary income in the state. Furthermore, the states allege that by reading the “now” limitation out of the IRA, the authority of the Secretary will be greatly expanded to take land into trust for any post-1934 tribe. States find this particularly threatening given the growing wealth of many of these tribes, noting that within a decade of federal recognition, one Connecticut tribe developed one of the most profitable casinos in the United States, grossing more than $1 billion annually, and has claims to lands which would theoretically make it possible for the Secretary to take all of Southeastern Connecticut into trust.
However, Indian tribes claim this decision strikes at their hope to break the cycle of poverty and dependence. The Narragansett claim pending land-to-trust applications are critical for their political, economic, and cultural revitalization, as sovereignty over their land offers an opportunity to exercise self-government and economic independence. TheNarragansett also claim the court’s interpretation of “Indian” will have far-reaching consequences for the post-1934 tribes, as a more restrictive reading could potentially foreclose federal benefits such as the Indian school option, preference to work in the Bureau of Indian Affairs, and Indian Health Service for these tribes.
This case will define the extent of the federal government’s authority under the IRA to remove land from state jurisdiction. In so doing, the Court will address the appropriate interpretation of the IRA’s definition of “Indian,” therein settling whether the act applies in full force and effect to all tribes now federally recognized, or to only the tribes that were recognized at the time of the IRA’s passage in 1934. As such, Indian tribes are concerned about how this decision will affect the ease with which they will be able to bring land into federal trust in the future. A ruling restricting the interpretation of “Indian” to tribes recognized in 1934 could also result in depriving some post-1934 tribes of the ability to acquire Tribal sovereignty over their lands and receive federal benefits.
The Court will also settle the dispute between the State and the Secretary’s disparate interpretations of Rhode Island’s Settlement Act — whether the agreement gave lands to the Narragansett in exchange for a relinquishment of any future claim to territory in the state, or whether the Act has the effect of actually guaranteeing the State’s sovereignty only within the Settlement Lands.
The case draws the interests of over twenty-two states with significant Indian populations who are concerned about a potential loss of jurisdiction and local control over considerable amounts of land within their borders.