A Case to Watch . . . .

The U.S. Court of Appeals for the First Circuit issued a decision, following an en banc hearing, in Carcieri v. Kempthorne last week. This case stems from the 1998 decision of the Interior Secretary to take into trust a 32-acre parcel of land in Charlestown, Rhode Island, for the benefit of the Narragansett Tribe. The tribe had purchased the parcel in 1991, and pursued trust status so that it could use the land for housing. The Secretary took the land into trust under 25 U.S.C. section 465, part of the 1934 Indian Reorganization Act, which authorizes the Secretary, "in his discretion," to acquire and take into trust "any interest in lands . . . within or without existing reservations . . .for the purpose of providing land for Indians."

Rhode Island challenged the Secretary's decision on a number of grounds. Although the First Circuit rejected the state's arguments and upheld the Secretary's decision, at least two of the challenges are worth watching, as the state plans to seek review in the U.S. Supreme Court.

One argument is that section 465 only allows the Secretary to take lands into trust for tribes that were federally recognized in 1934. For tribes like the Narragansett, which was federally recognized in 1983, argued the state, the Secretary does not have power under 465 to take land into trust for their benefit. The court rejected this, reasoning that the statute's reach is not clearly limited to tribes who were federally recognized in 1934.

Another argument is that the Secretary's decision violates state sovereignty. Rhode Island argued that the Indian Commerce Clause is limited by the 10th Amendment, along the lines of the 10th Amendment limits on federal power under the Interstate Commerce Clause, as reflected in New York v. U.S. and Printz v. U.S. The court rejected this argument as well, but noted that Rhode Island's challenge "underscore[s] the seriousness of the State's concern about the abrogation of state sovereignty at stake here."

And, of course, although the tribe sought trust status for the land in order to build tribal housing, Rhode Island argued that the "true purpose" behind the trust application was to open a casino. This assertion gave rise to the state's argument that the land does not fall into one of IGRA's exceptions to the general prohibition against gaming on lands acquired after 1988. The court rejected this argument as well, noting that "[n]o evidence that the Tribe intends to use the Parcel for anything other than tribal housing, as determined by the BIA, was presented."

The case is Carcieri v. Kempthorne, No. 03-2647, First Circuit, July 20, 2007.

For more, see this article in the Boston Globe.