Donald L. CARCIERI, in his capacity as Governor of the State of Rhode Island; State of Rhode Island and Providence Plantations, a sovereign State of the United States; Town of Charlestown, Rhode Island, Plaintiffs, Appellants, v. Dirk KEMPTHORNE, in his capacity as Secretary of the Department of the Interior, United States; Franklin Keel, in his capacity as Eastern Area Director of the Bureau of Indian Affairs, within the Department of Interior, United States, Defendants, Appellees.
No. 03-2647
United States Court of Appeals, First Circuit
Decided July 20, 2007
The petition for rehearing is denied. July 20, 2007
Indeed, PRT’s petition suggests the possibility that the particular liquidated damages remedies approved by the arbitrator might be unjust and unreasonable due to circumstances peculiar to this case. If so, the Board might well have a rationale for rejecting them, based upon
Finally, PRT requests that we supplement the panel decision to clarify the scope of remand. In particular, it requests a clarification that, assuming the Board now chooses to accept liquidated damage provisions, the Board may not impose punitive liquidated damages retroactively. PRT also asks that we direct the Board not to permit WorldNet to introduce new evidence to support its damages proposals.
As to the first issue, PRT’s request is premature. The retroactivity issue can be briefed and argued on a new appeal in the event that the Board chooses to impose retroactive damages. As to the second, we made clear in the panel opinion that it is up to the Board whether to reopen the evidentiary record. 497 F.3d at 8. Nothing in the petition persuades us to withdraw this option from the Board, which is not obliged to exercise it.
The petition for rehearing is denied. We do so in a published order because interpretation of the statute is a matter of continuing importance.
Heard En Banc Jan. 9, 2007.
Decided July 20, 2007.
Claire Richards, Special Counsel, for appellant Donald L. Carcieri.
Stephen P. Collette and Stephen P. Collette & Associates on brief for National Coalition Against Gambling Expansion, amicus curiae.
Neil F.X. Kelly, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for appellant State of Rhode Island.
Troy King, Attorney General for the State of Alabama, Talis J. Colberg, Attorney General for the State of Alaska, Richard Blumenthal, Attorney General for the State of Connecticut, Susan Quinn Cobb, Assistant Attorney General for the State of Connecticut, Lawrence G. Wasden, Attorney General for the State of Idaho, Paul J. Morrison, Attorney General for the State of Kansas, Jeremiah W. (Jay) Nixon, Attorney General for the State of Mis-
Joseph S. Larisa, Jr., Assistant Solicitor for Indian Affairs, for appellant Town of Charlestown.
Elizabeth Ann Peterson, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert Clark and Ryan D. Nelson, Deputy Assistant Attorneys General, William B. Lazarus, Judith Rabinowitz, and David C. Shilton, Attorneys, Environment and Natural Resources Division, United States Department of Justice, and Mary Anne Kenworthy, Office of the Solicitor, United States Department of the Interior, were on brief, for appellees.
Ian Heath Gershengorn, with whom Sam Hirsch, Jenner & Block LLP, John Dossett, Riyaz A. Kanji, Kanji & Katzen PLLC, Tracy Labin, Richard Guest, and Native American Rights Fund were on brief, for National Congress of American Indians, Absentee Shawnee Tribe, Akiak Native Community, Cahto Tribe of the Laytonville Rancheria, Cheyenne River Sioux Tribe, Coeur d’Alene Tribe, Confederated Salish and Kootenai Tribes of the Flathead Nation, Confederated Tribes of the Warm Springs Reservation of Oregon, Eastern Pequot Tribal Nation, Eastern Shawnee Tribe of Oklahoma, Ely Shoshone Tribe, Fallon Paiute-Shoshone Tribe, Ft.
C. Bryant Rogers, Roth, VanAmberg, Rogers, Ortiz & Yepa, LLP, Charles A. Hobbs, and Hobbs, Straus, Dean & Walker, LLP on brief for Mississippi Band of Choctaw Indians, amicus curiae.
Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.
EN BANC OPINION
LYNCH, Circuit Judge.
The en banc court has convened to consider a series of issues concerning the relative powers of the federal Secretary of the Interior, the State of Rhode Island, and the Narragansett Tribe over a parcel of land taken into trust and designated for Indian housing. The case is in many ways a proxy for the State’s larger concerns about its sovereignty vis-a-vis federal and tribal control over lands within the state.
In 1998, the Secretary of the Interior agreed to take into unreserved trust for the Tribe’s benefit a 31- or 32-acre parcel in Charlestown, Rhode Island (the Parcel). Then-Secretary Gale Norton cited her powers under section 5 of the Indian Reorganization Act of 1934 (IRA),
Under the Indian Commerce Clause of the Constitution,
The Secretary’s acquisition of land into trust for Indians results in the land becoming “Indian country.”
“[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” When, however, state interests outside the reservation are implicated, States [sometimes] may regulate the activities even of tribe members on tribal land....
Nevada v. Hicks, 533 U.S. 353, 362, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (citation omitted) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)).
Recognizing a conflict between state jurisdiction and the federal interest in encouraging tribal self-governance, the Secretary’s regulations under the IRA provide that “none of the laws ... of any State ... limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property ... shall be applicable” to land held in trust for a tribe by the United States.
Concerned over the loss of sovereignty over the Parcel and what it may portend for the future, the State, its Governor, and the town of Charlestown (collectively, the State), sued the Secretary of the Interior, now Dirk Kempthorne, and the Regional Director of the Bureau of Indian Affairs (BIA), Franklin Keel, in federal court. See Carcieri v. Norton, 290 F.Supp.2d 167 (D.R.I.2003). Having exhausted administrative remedies, the State brought suit under the
The State’s case asserts three major theories. First, the State argues that the IRA does not authorize the Secretary to take land into trust for any tribe, including the Narragansetts, that first received federal recognition after June 18, 1934, the effective date of the IRA. Second, the State argues that the 1978 Rhode Island Indian Claims Settlement Act (the Settlement Act),
As to the IRA, the State argues that the Narragansetts do not meet the definition of “Indian” contained in
Next, the State argues that the terms of the Settlement Act preclude the Secretary from placing the Parcel into trust because the Settlement Act is a later specific act of Congress that must be read to have explicitly and implicitly cabined the Tribe’s and the Secretary’s power as to the Parcel. The State argues that the Settlement Act bars the imposition of any trust. The State’s fallback position is that any trust must be restricted by the terms of the Settlement Act so that it is clear that state and local law apply to the Parcel, just as they do to the settlement lands.
Finally, the State asserts various constitutional theories, with the common underpinning that the placing of the Parcel into trust violates the State’s sovereignty. The State argues that the Indian Commerce Clause does not authorize the Secretary’s exercise of power and that the exercise violates the Tenth Amendment, as well as the Enclave and Admissions Clauses of the Constitution. The State also argues that section 5 of the IRA,
We hold that the language of
Likewise, the Settlement Act neither explicitly bars by its terms the Secretary’s actions, nor implicitly repeals or constrains the Secretary’s authority under the IRA to place land into trust for the Tribe. While the State apparently failed to anticipate this particular problem at the time of the settlement, the Settlement Act did specifically contemplate the event of federal recognition of the Tribe and did not restrict the Secretary’s power, should the Tribe be recognized, to take into trust land outside of the settlement lands. We are not free to reform the Act. If aggrieved, the State must turn to Congress.
The State’s arguments based on allocations of power under the U.S. Constitution also do not prevail. They do, however, underscore the seriousness of the State’s concern about the abrogation of state sovereignty at stake here.
I.
In order to understand the nature of the controversy and the consequences of this decision, a brief recounting of the history of relations between the State and the Tribe is required. Further background can be found in the district court’s opinion, Carcieri, 290 F.Supp.2d 167, as well as the opinions previously issued in the decades-long disputes between the State and the Tribe, see Narragansett Indian Tribe v. Rhode Island (Narragansett III), 449 F.3d 16 (1st Cir.2006) (en banc); Narragansett Indian Tribe v. Narragansett Elec. Co. (Narragansett II), 89 F.3d 908 (1st Cir. 1996); Rhode Island v. Narragansett Indian Tribe (Narragansett I), 19 F.3d 685 (1st Cir.1994).
In 1880, the State acquired the majority of the Tribe’s lands. In 1934, the Tribe organized as a state-chartered corporation. In 1975, the Tribe sued to recover its lands, arguing that the State had acquired the lands in violation of the Indian Nonintercourse Act,
This cloud on title prompted the State to enter into settlement negotiations with the Tribe, which led in 1978 to an agreement embodied in a Joint Memorandum of Understanding (JMOU). Under the JMOU, the Tribe would receive 1800 acres of “settlement lands,” half of which were provided by the State and half of which were purchased with federal funds. The State agreed to create an Indian-controlled corporation to hold the settlement lands in trust for the Tribe, to exempt the settlement lands from local taxation, and to help secure the federal legislation necessary to implement the agreement. In exchange, the Tribe abandoned its claims of aboriginal title and its claims to lands in the state other than the settlement lands.
In turn, Congress approved and codified the agreement in the Settlement Act. The Settlement Act provided that “the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.”
Five years later, in 1983, the Secretary granted the Tribe official federal recognition. See Final Determination for Federal Acknowledgment of Narragansett Indian Tribe of Rhode Island, 48 Fed.Reg. 6177 (Feb. 10, 1983). Following that recognition, in 1985, Rhode Island amended the pertinent state statute to permit the conveyance of the settlement lands directly to the Tribe, explicitly preserving the State’s jurisdiction over the settlement lands, consistent with the Settlement Act,
Then, in 1991, the tribal housing authority purchased the Parcel in fee simple, acquiring title through purchase from a private developer. The Parcel was part of the Tribe’s aboriginal lands claimed in the 1976 lawsuit. Under the Settlement Act, the Tribe had thus relinquished aboriginal title to the Parcel, but the Parcel is not part of the 1800 acres of settlement lands. It is adjacent to the settlement lands, across a town road. In 1992, the Housing Authority transferred the Parcel to the Tribe with a deed restriction that the Parcel be placed in trust with the BIA for the purpose of providing housing.
A dispute soon arose over whether development of the Parcel had to comply with local law. The Tribe began construction on the planned housing project without obtaining a building permit from the Town or the State’s approval of the individual sewage disposal systems. The Tribe essentially took the position that once it had purchased the Parcel, the land had become tribal land, and the Tribe’s inherent sovereignty meant that the Parcel was exempt from local law. The State disagreed and filed suit in federal court to enjoin the Tribe. See Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F.Supp. 349 (D.R.I.1995). Ultimately, the Tribe lost that litigation.4 See Narragansett II, 89 F.3d at 922.
The Tribe had sought to solve the issue of the applicability of state law to the Parcel by applying to the Secretary in 1993 to have the Parcel taken into trust under section 5 of the IRA. The Secretary’s determination of whether to do so was stayed pending the resolution of the federal court litigation. After the litigation was resolved against the Tribe by this court in 1996, id. at 922, the Tribe submitted a second application to the Secretary.
The Tribe filed this updated application with the Secretary in July 1997. In determining whether to take lands into trust, the Secretary follows a regulatory process set forth at
On March 6, 1998, the BIA notified the State of the Secretary’s intent to take the Parcel into trust for the Tribe. The State appealed the decision to the Interior Board of Indian Appeals (IBIA). The State argued, inter alia, that the Settlement Act prohibited this action by the Secretary, and that in taking the land into trust without the State’s consent, the Secretary had acted unconstitutionally. The IBIA affirmed the BIA’s determination on June 29, 2000. Town of Charlestown v. E. Area Dir., Bureau of Indian Affairs, 35 I.B.I.A. 93, 106 (2000). It noted it had no jurisdiction over the claims of unconstitutionality.5 Id. at 97.
As described above and recounted in our en banc decision in Narragansett III, 449 F.3d at 18-21, for several decades the relationship between the Tribe and the State has been fraught with tension.
The State’s short-term concerns in this case have to do with whether the particular project will conform with state and local law. The State also has concerns that once land is taken into trust, there will be very few mechanisms, other than negotiation with the Tribe or appeal to the Secretary’s authority under
There has been federal litigation between state officials and the Tribe and its members over such activities. In 2003, the Tribe, seeking revenue, established on the settlement lands an Indian Smoke Shop that sold cigarettes without purchasing state cigarette stamps or collecting sales taxes then paid to the State, as required by state law. The State Police raided the smoke shop and initiated criminal prosecutions against tribe members. The Tribe sought a declaratory judgment in federal court asserting that its control over the smoke shop was an inherent function of tribal sovereignty that survived the Settlement Act, despite the explicit language in
II.
A. Standard of Review
Technically, the claims at issue here are reviewed through the lens of an APA appeal under
The State argues that the Secretary lacks authority to place the Parcel into trust under
The State presents a series of cascading arguments. First, the State argues that the plain language of section 479 is clear, and that under that plain language, the Tribe’s status is measured as of 1934. The State further argues that its interpretation of the statute is the only one consistent with the purposes and legislative history of the Act. Thus, the State argues that because the statute is unambiguous, deference to the Secretary is unwarranted. In any event, the State argues that even if deference might have been warranted, the Secretary’s current interpretation is not entitled to deference because it contradicts the Secretary’s practice in the more than seventy years since the passage of the IRA.
1. Chevron Analysis
The Secretary has offered an interpretation of the IRA that permits trust acquisitions for tribes recognized and under federal jurisdiction at the time the request for a trust acquisition is made. A court reviewing an agency’s interpretation of a statute that it administers engages in a two-step analysis. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We must first consider “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If congressional intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, we must consider “whether the agency’s [interpretation] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.
(a) Whether Section 479 Is Ambiguous
We begin our analysis with the statutory text. Rucker v. Lee Holding Co., 471 F.3d 6, 9 (1st Cir.2006). The language at issue is that contained in
The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.
One might have an initial instinct to read the word “now” in the statute as the State does, to mean the date of enactment of the statute, June 18, 1934. Congress certainly has used the word “now” in this way. See, e.g., Montana v. Kennedy, 366 U.S. 308, 312, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961) (interpreting the word “now” in a reenactment of an earlier act to refer to the initial date of enactment).
Any such instinct quickly disappears upon further examination, however. This is not a case that can be resolved by looking to the plain meaning of the term “now” standing by itself. “Now” means “at the present time,” but there is ambiguity as to whether to view the term “now” as operating at the moment Congress enacted it or at the moment the Secretary invokes it. Indeed, Congress sometimes uses the word “now” to refer to a time other than the moment of enactment. See
Given that the word “now” does not itself have a clear meaning, we must look to context. Here, the context is equivocal. On the one hand, the State points to
On the other hand, the Secretary points out that section 479 itself specifies the date of “June 1, 1934” as the relevant date for determining eligibility based on “residing within the present boundaries of any Indian reservation.” The Secretary thus counters that had Congress wanted to require recognition of a tribe on the date of enactment, it would have specified that date, rather than using the term “now.” See also
Policy does not provide an obvious answer either: each side has a plausible explanation that policy considerations favor its interpretation. The State argues that the principal, perhaps exclusive, concern of the 1934 statute was with remedying the perceived ills of the prior practice of allotment. See Kahawaiolaa v. Norton, 222 F.Supp.2d 1213, 1220 n. 10 (D.Haw.2002). Because the IRA ended allotments in 1934, see
The Secretary takes the view that the Act was intended not only to remedy past wrongs, but also to set a template for the future that would encourage the strength and stability of tribal communities. Based on this view, it would make no sense to distinguish among tribes based on the happenstance of their federal recognition status in 1934. The Secretary’s view is buttressed by the fact that the Act contains a number of provisions that have nothing to do with land consolidation. See
The State reads United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978), to indicate that the Supreme Court had an initial interpretation of the Act that coincides with the State’s interpretation. It is unclear if the Court had any such interpretation, and in any event, we find that John is not controlling here. In John, the Fifth Circuit had found that the Mississippi Choctaws were not eligible for benefits under the IRA because the tribe had not been recognized in 1934. United States v. John, 560 F.2d 1202, 1212 (5th Cir.1977); see also United States v. Miss. Tax Comm’n, 505 F.2d 633, 642 (5th Cir.1974). The Supreme Court reversed, relying on a different clause in the statute and finding the tribe eligible for benefits under the IRA, but on the basis that its members
Along the way, the Supreme Court stated:
The 1934 Act defined “Indians” not only as “all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction,” and their descendants who then were residing on any Indian reservation, but also as “all other persons of one-half or more Indian blood.”
Id. (alteration in original) (quoting
Having found both text and context to be ambiguous, we turn to legislative history. Despite the State’s arguments to the contrary, that history also does not clearly resolve the issue. Indeed, it suggests a reading of the phrase “now under federal jurisdiction” different from that offered by any of the parties, and is thus another source of ambiguity.
The congressional record establishes that the phrase “now under federal jurisdiction” was specifically added to the statutory definition of “Indian,” a term defined separately from “tribe.” See
The Chairman. But the thing about it is this, Senator; I think you have to sooner or later eliminate those Indians who are at the present time—as I said the other day, you have a tribe of Indians here, for instance in northern California, several so-called “tribes” there. They are no more Indians than you or I, perhaps. I mean they are white people essentially. And yet they are under the supervision of the Government of the United States, and there is no reason for it at all, in my judgment. Their lands ought to be turned over to them in severalty and divided up and let them go ahead and operate their own property in their own way.
Senator O’Mahoney. If I may suggest, that could be handled by some separate provision excluding from the benefits of the act certain types, but must have a general definition.
Commissioner Collier. Would this not meet your thought, Senator: After the words “recognized Indian tribe” in line 1 insert “now under Federal jurisdiction”? That would limit the act to the Indians now under Federal jurisdiction, except that other Indians of more than one-half Indian blood would get help.
To Grant to Indians Living Under Federal Tutelage the Freedom To Organize for Purposes of Local Self-Government and Economic Enterprise: Hearing on S.2755 and S.3645 Before the S. Comm. on Indian Affairs, 73d Cong. 266 (1934).
Commissioner Collier offered the phrase as a limitation, but it is not clear whether it was intended as a temporal limitation. If the committee was concerned about the bona fides of an individual’s status as an Indian and wanted to use the fact of federal jurisdiction to measure those bona fides, then there would have been no reason to distinguish between those under federal
Indeed, the colloquy and the remainder of the hearing suggest that the committee was focused on the issue of individual Indians who received benefits from the federal government on the basis of a limited heritage and without acting as a part of a tribal community. Earlier in the session, the chairman had raised the case of a “former Vice President of the United States,” who was apparently receiving Indian benefits, asking, “Why should the Government of the United States be managing the property of a lot of Indians who are practically white and hold office and do everything else, but in order to evade taxes or in order to do something else they come in under the Government supervision and control?” Id. at 264.
Thus, although none of the parties have raised this, it may well be that the phrase “now under federal jurisdiction” was intended to modify not “recognized Indian tribe,” but rather “all persons of Indian descent.” So interpreted, the purpose of the phrase might well have been to grandfather in those individuals already receiving federal benefits, but to otherwise insist that in the future, only individuals with at least one-half Indian blood would qualify. In that case, the limitation may well have been a temporal one, but the limitation, temporal or not, may have been intended to affect only the Secretary’s authority to act for the benefit of an “individual Indian,” not an “Indian tribe.” See
The other relevant piece of legislative history, heavily relied upon by the State, is the statement of Representative Edgar Howard, a cosponsor of the IRA:
For purposes of this act, [the definitional section] defines the persons who shall be classed as Indian. In essence, it recognizes the status quo of the present reservation Indians and further includes all other persons of one-fourth Indian blood. The latter provision is intended to prevent persons of less than one-fourth Indian blood who are already enrolled members of a tribe or descendants of such members living on a reservation from claiming financial and other benefits of the act. Obviously the line must be drawn somewhere ...
Kahawaiolaa, 222 F.Supp.2d at 1220 n. 10 (emphasis omitted) (quoting Congressional Debate on Wheeler-Howard Bill (1934) in III The American Indian and the United States (1973)) (internal quotation marks omitted).
The State interprets the reference to “status quo” as supporting its view that federal recognition of tribes was essentially frozen for purposes of the IRA in 1934. This seems to be a misinterpretation of the quote, however. Representative Howard did not say that the Act would “maintain” or “preserve” the status quo; rather he
Thus, we find from the text, context, and legislative history that section 479 is at least ambiguous as to whether the phrase “now under federal jurisdiction” disqualifies tribes that were federally recognized after 1934, such as the Narragansett Tribe, from the benefits of the IRA.7
(b) Whether the Secretary’s Interpretation Is Permissible
As we have found the meaning of section 479 to be ambiguous, we must consider whether the Secretary’s interpretation is “permissible.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An interpretation is permissible if it is “rational and consistent with the statute.” NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). The Secretary’s construction meets this test. As discussed above, it is reasonable and is consistent with the language and legislative history of the IRA. It also is consistent with the policy of the IRA, which, as we have indicated, may permissibly be viewed not only as intending to reverse the government’s allotment policy, but also as affirmatively conferring benefits on Indians, including Indian employment preferences and a statutory right to organize and adopt governing documents.
We therefore reject the State’s argument that the text and purposes of the IRA prohibit the Secretary’s interpretation of section 479. Rather, we find that the Secretary’s construction of section 479 as allowing trust acquisitions for tribes that are recognized and under federal jurisdiction at the time of the trust application is entitled to deference.
2. Alleged Inconsistency of the Secretary’s Interpretation
The State makes a separate argument on which it heavily relies. It argues that
The consistency of the Secretary’s construction is supported, though not directly, by a regulation promulgated by the Secretary in 1980. The regulation, found at
Moreover, the Secretary’s proffered interpretation of “now” as meaning “today” is consistent with regulations implementing other provisions of the IRA.9 For example, the regulation implementing
As to the Secretary’s trust acquisition practice, it is not seriously disputed that the Secretary has never rejected an application to take land into trust for a federally recognized tribe on the ground that the tribe was not recognized and under federal jurisdiction in 1934. Responding to the State’s allegations about whose trust acquisition applications have been granted, the Secretary and Indian amici have submitted to us lists of tribes that they assert were not federally recognized in 1934 for whom land has since been taken into trust.
The State’s evidence of inconsistent practice is not persuasive. For example, although the State seems to concede that the Miccosukee Tribe was not recognized in 1934, it argues that the later trust acquisition for that tribe identified by Indian amici was made pursuant to specific statutory authorization, not section 465. But the statute to which the State points us,
Turning to a different distinction, the State argues that eight of the tribes identified by Indian amici were recognized and under federal jurisdiction in 1934 because they previously had signed treaties with the United States. It is not self-evident that simply because a tribe had signed a treaty with the U.S. government it necessarily was recognized and under federal jurisdiction in 1934; recognition as intended in section 479 requires an ongoing government-to-government relationship between a tribe and the United States. See Cohen’s Handbook of Federal Indian Law § 3.02(3), at 138-40 (N.J. Newton et al., eds. 2005).
Whether or not a treaty executed before 1934 has significance, however, the evidence is still that the Secretary has taken land into trust for tribes that did not appear to be federally recognized in 1934. We note two examples. The Secretary has taken land into trust for the Sault Ste. Marie Band of Chippewa Indians despite the Secretary’s position that, regardless of prior treaties, the Band was not federally recognized in 1934. The Sault Ste. Marie Band is a successor to some of the Chippewa tribes that had signed treaties with the United States between 1785 and 1855. In addition, in 1855 the Band had signed two treaties with the United States. Despite those treaties, however, by 1917 the Department of the Interior did not recognize the Band as an entity with which it had government-to-government relations. Opinion of Nat’l Indian Gaming Comm’n, The St. Ignace Parcel at 7 (July 31, 2006); see also City of Sault Ste. Marie v. Andrus, 532 F.Supp. 157, 161 (D.D.C.1980) (indicating that a period of non-recognition existed by stating that “although the question of whether some groups qualified as Indian tribes for purposes of IRA benefits might have been unclear in 1934, that fact does not preclude the Secretary from subsequently determining that a given tribe deserved recognition in 1934”). The State rejoins that the Department of the Interior cannot abrogate an Indian treaty. But the validity of the Department’s treatment of the Sault Ste. Marie Band’s status under the treaties is not the issue before us. What is important is the Department’s position that the Band was not recognized and under federal jurisdiction in 1934. Id. at 16. Nevertheless, after 1934, the Secretary has invoked his section 465 authority to take land into trust for the Band.
The Grand Traverse Band of Ottawa and Chippewa Indians provides a similar example. The Secretary has taken land into trust for the Grand Traverse Band, which the Department of the Interior ceased to recognize in 1872. The Grand Traverse Band signed the 1855 Treaty of Detroit with the United States. In 1872, however, the then-Secretary of the Interior severed the United States’ relationship
The State also concedes that the Secretary appears to have taken land into trust for two tribes, the Tunica-Biloxi Indian Tribe and the Narragansetts themselves, that were not under federal jurisdiction in 1934 and for whom Congress has passed no specific act authorizing trust acquisitions. Even if we had no reason to doubt the State’s argument that the Secretary has not historically taken land into trust for tribes not recognized in 1934, however, in at least some cases the Secretary has not looked to the status of the tribe in 1934 or to the specific statutory authority identified by the State in making the determination to take land into trust. In Baker v. Muskogee Area Dir., 19 I.B.I.A. 164 (1991), for example, the IBIA, in concluding that particular members of the Cherokee Nation of Oklahoma were eligible to have land taken into trust, did not rely on the 1936 Oklahoma Indian Welfare Act,
The State has not met its burden of showing inconsistent interpretation by the Secretary. Moreover, even if the State had shown that the Secretary has changed his interpretation of section 479 over time, that would not necessarily resolve the matter in the State’s favor. The Chevron doctrine permits the Secretary some ability to alter his interpretation over time.
We reject the State’s argument that the Secretary has been inconsistent in his interpretation of section 479 and is therefore not entitled to deference.
C. The Settlement Act
The State’s next attack is to argue that the Settlement Act repealed the Secretary’s trust authority as to all lands in Rhode Island. Alternatively, the State argues that the Settlement Act at least curtailed that authority so that any trust must preserve the State’s civil and criminal jurisdiction over the Parcel.
There is simply nothing in the text of the Settlement Act, however, that accomplishes such a repeal or curtailment of the Secretary’s trust authority.
Except as otherwise provided in this [Act], the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.
(emphasis added). The State would have us read the Act as if section 1708(a) applied to all lands the Tribe might ever acquire, either directly or as the beneficiary of a trust, but that is not what the section says. By its terms, section 1708(a) applies state law only to the 1800 acres of “settlement lands.” The Parcel is not part of the settlement lands. No other provision of the Settlement Act directly provides for state jurisdiction outside of the settlement lands. No language in the Act applies state law to lands the Tribe might later acquire. More importantly, no language explicitly curtails, or even references, the Secretary’s power under the IRA to take lands into trust and thereby to create Indian country.11
The State’s argument thus depends on finding that the Settlement Act implicitly repealed the IRA, at least in part.12 The framework for evaluating such a claim of implicit repeal was set out by the Supreme Court in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). First, we must look to affirmative manifestations of congressional intent to repeal the prior act, mindful of the “cardinal rule ... that repeals by implication are not favored.” Id. at 549, 94 S.Ct. 2474 (omission in original) (quoting Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936)) (internal quotation marks omitted). “In the absence of some affirmative showing of an intention
A determination of congressional intent must be rooted in the text of the Act. Nothing in the Act explicitly curtails the Secretary‘s trust authority. The State offers two different lines of argument as to why provisions of the Act must be read to restrict that authority. One concerns how the Act affects the Tribe‘s rights; the other concerns how the Act affects the Secretary‘s authority. The provisions of the Settlement Act cited by the State, however, are most naturally read as merely resolving the claims that had clouded the titles of so much land in Rhode Island and that had led to the settlement embodied in the Act.
As to the provisions affecting the Tribe, the State relies independently on the extinguishment of aboriginal title in
(2) [T]o the extent that any transfer of land or natural resources described in subsection (a) of this section may involve land or natural resources to which [an Indian tribe] had aboriginal title, subsection (a) of this section shall be regarded as an extinguishment of such aboriginal title as of the date of said transfer; and (3) by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims ... by the [Narragansett Tribe], or any predecessor or successor in interest, member or stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use and occupancy) shall be regarded as extinguished as of the date of the transfer.
The State‘s arguments that the provisions should be read more broadly are unavailing. First, the State argues that the extinguishment of aboriginal title over land in Rhode Island precludes the later exercise of tribal sovereignty over Rhode Island land acquired by the Secretary in unrestricted trust. The Secretary disputes whether aboriginal title is ever the basis for tribal sovereignty, but in any event, it is clear that such title is not the
Trust acquisition is not incompatible with the extinguishment of aboriginal title. The Mashantucket Pequot Indian Claims Settlement Act, for example, contains virtually identical language extinguishing aboriginal title “to any land or natural resources the transfer of which was approved and ratified” by the Act.
Alternatively, the State argues that the “all claims” language in paragraph (3) even more broadly forecloses the assertion of tribal sovereignty over non-settlement lands. To hold otherwise, says the State, would render that language surplusage. Paragraphs (2) and (3) are complementary, however, not duplicative. While paragraph (2) extinguishes a form of title, paragraph (3) extinguishes claims. Moreover, paragraph (3) covers claims based on other forms of title, besides aboriginal title, that the Tribe might have held to land in Rhode Island prior to the Settlement Act.
The State‘s broad interpretation of paragraph (3) proves too much. The State argues that the paragraph precludes an assertion of tribal sovereignty over any land in Rhode Island. Nothing in the language of the provision, which refers to “any interest in or right involving” such land, distinguishes between claims of sovereignty and traditional property claims. Indeed, the latter are explicitly included. See
Ultimately, this entire line of argument by the State misses the point that what is at issue is not what the Tribe may do in the exercise of its rights, but what the Secretary may do. The displacement of state law arises from the Secretary‘s authority and not from the Tribe‘s mere pur
As to the implied repeal of the Secretary‘s power, the State first argues that the Secretary is bound by the extinguishment of the Tribe‘s claims because that extinguishment binds the Tribe‘s “successor in interest.”
The State also relies on
Upon the discharge of the Secretary‘s duties under sections 1704, 1705, 1706, and 1707 of this title, the United States shall have no further duties or liabilities under this subchapter with respect to the Indian Corporation or its successor, the State Corporation, or the settlement lands....
The language of this provision, however, cannot be read to have a preclusive effect or to limit the Secretary‘s powers in any way. The statement that the United States has “no further duties or liabilities under this subchapter” merely delimits the federal government‘s obligations in implementing the Settlement Act.
We reject the State‘s suggestion that this language parallels the language in the Mashantucket Settlement Act that the Second Circuit found to prohibit certain trust acquisitions. See Connecticut ex rel. Blumenthal v. U.S. Dep‘t of Interior, 228 F.3d 82, 88 (2d Cir. 2000). The Mashantucket Settlement Act uses very different language that provides that “the United States shall have no further trust responsibility with respect to [certain] land and natural resources” outside of the settlement lands.
There is nothing in the text of the Settlement Act that clearly indicates an intent to repeal the Secretary‘s trust acquisition powers under the IRA, or that is fundamentally inconsistent with those powers.16 This lack of language is not because either Congress or the parties failed to anticipate that the Tribe might later become federally recognized and eligible for the benefits of the IRA. The Settlement Act specifically provides for a restraint on alienation of the settlement lands “if the Secretary subsequently acknowledges the existence of the Narragansett Tribe of Indians.” Id. § 1707(c). The underlying
Had the Act intended to limit the Secretary‘s trust authority in case of federal recognition, it could have done so explicitly. It would have been easy to extend the provisions of section 1708(a) preserving state sovereignty to cover all lands in Rhode Island owned by or held in trust for the Tribe. No such language appears in the Act. Similarly, as the IBIA also noted, paragraph 15 of the JMOU would have been “a logical place for the parties to set out any restrictions” on the Secretary‘s trust authority following federal recognition of the Tribe. Town of Charlestown, 35 I.B.I.A. at 101. No such restrictions appear. Nor does the Settlement Act contemplate any role for the State to play in the Secretary‘s decision whether to take the land into trust. This is in contrast to the Indian Gaming Regulatory Act.
In other settlement acts, Congress has specifically described limits on the Secretary‘s trust authority. In the Maine Indian Claims Settlement Act, Congress expressly precluded application of section 465.
The State‘s fallback position is that the Settlement Act requires that this court order the Secretary to honor the intent of the bargain it believes is embodied in the Act by putting the Parcel into a restricted trust, subject to state laws and jurisdiction.18 Acknowledging the genuineness of the State‘s sense that its bargain has been upset, we find that the relief it seeks is not an appropriate exercise of judicial power.
In the Settlement Act, the State procured at least two clear benefits: (1) the settling of disputed land claims and (2) the application of its civil and criminal laws and jurisdiction to the settlement lands. Beyond that, the State argues that it would never have agreed to displacement of state law as to later acquired parcels if the issue had surfaced during the negotiations. The State argues that the practical consequences of the unrestricted trust leave it in an entirely unsatisfactory position and undermine the central bargain. Rhode Island points out that it is a small, very populous state and that the practical consequences of establishing Indian country for its nearby towns may be far great
Even so, we are still bound by the language of the Settlement Act. Even viewing the State‘s argument in contract terms, it is rare that a court will step in and reform a contract. See Broadley v. Mashpee Neck Marina, Inc., 471 F.3d 272, 275 (1st Cir. 2006) (reversing the district court‘s reformation of a contract). Our ability to edit, as opposed to interpret, an act of Congress is no less constrained: only a finding of absurdity, not present here, provides the necessary precondition. Compare Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (editing a federal rule of evidence where the apparent distinction between civil plaintiffs and civil defendants would be “unfathomable“), with W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 100-01, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (refusing to read in an additional component to a fee-shifting provision on the basis that Congress “simply forgot” to include it). See also Blumenthal, 228 F.3d at 91 (“While we might question the wisdom of different jurisdictional provisions governing different trust lands, we will not provide a strained interpretation of the Settlement Act simply to avoid such a result.“). The judiciary may not usurp the role of Congress.
D. Constitutional Claims
In support of recognition of its state sovereignty interests under the Constitution, the State presents four arguments. It argues first that the Indian Commerce Clause,
1. The Indian Commerce Clause and the Tenth Amendment
The authority to regulate Indian affairs is within the enumerated powers of the federal government.
The Tenth Amendment to the U.S. Constitution reserves to the states those powers not expressly delegated to the federal government. The powers delegated to the federal government and those reserved to the states by the Tenth Amendment are mutually exclusive. “If a power is delegated to Congress in the Constitution, the Tenth Amendment ex
2. The Enclave Clause
The Enclave Clause of the Constitution provides that Congress may “exercise exclusive legislation ... over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”
We disagree. First, trust land does not fall within the plain language of the Enclave Clause. It is not purchased “for the erection of forts, magazines, arsenals, dockyards, [or] other needful buildings.” Rather, it is held in trust for the benefit of Indians.
Second, in Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1930), the Supreme Court offered an Indian reservation as a “typical illustration” of federally owned land that is not a federal enclave because state civil and criminal laws may still have partial application thereon. Id. at 651, 50 S.Ct. 455. The Supreme Court recently confirmed the reasoning underlying the observation that Indian lands are not federal enclaves:
Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation‘s border. Though tribes are often referred to as “sovereign” entities, it was “long ago” that “the Court departed from Chief Justice Marshall‘s view that ‘the laws of [a State] can have no force’ within reservation boundaries.”
Hicks, 533 U.S. at 361, 121 S.Ct. 2304 (alteration in original) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141, 100 S.Ct. 2578 (1980) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832))). As a result, the Secretary‘s trust acquisition of lands for the Narragansetts does not even implicate the Enclave Clause.
3. The Admissions Clause
The Admissions Clause of the Constitution provides that “no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.”
This argument is without merit. The Admissions Clause prohibits Congress only from unilaterally establishing within an existing state a body “on an equal footing with the original states in all respects whatsoever.” Coyle v. Smith, 221 U.S. 559, 567, 31 S.Ct. 688, 55 L.Ed. 853 (1911) (internal quotation marks omitted). For purposes of the Admissions Clause, a state is a body “equal in power, dignity and authority” to existing states. Id. The Secretary‘s trust acquisition for the Narragansetts does not establish such a body. As a result, the acquisition does not violate the Admissions Clause.
4. The Nondelegation Doctrine
The Constitution vests “[a]ll legislative Powers [t]herein granted ... in a Congress of the United States.”
The State and its amici argue that section 465 lacks the requisite “intelligible principle” and therefore is an unconstitutional delegation of legislative authority.
The Secretary of the Interior is authorized, in his discretion, to acquire ... any interest in lands, ... for the purpose of providing land for Indians.
For the acquisition of such lands, ... and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico ... becomes law.
....
Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.
In support of its argument, the State relies primarily on an Eighth Circuit deci
On remand, the Eighth Circuit held that “the purposes evident in the whole of the IRA and its legislative history sufficiently narrow the delegation and guide the Secretary‘s discretion in deciding when to take land into trust.”19 South Dakota v. U.S. Dep‘t of Interior, 423 F.3d 790, 797 (8th Cir. 2005). The court noted that the statute allows the Secretary to acquire trust lands only for Indians as defined in
Other provisions of the IRA reinforce such an interpretation. See
The Ninth Circuit‘s decision in Confederated Tribes of Siletz Indians of Oregon v. United States, 110 F.3d 688 (9th Cir. 1997), also supports the Secretary‘s position that section 465 is not an unconstitutional delegation of legislative authority. Although not addressing a nondelegation challenge to section 465, the Confederated Tribes court stated that “[t]he general delegation of power to the Executive to take land into trust for the Indians is a valid delegation because Congress has decided under what
The Supreme Court has upheld the constitutionality of statutes authorizing regulation in the “public interest,” see, e.g., Nat‘l Broad. Co. v. United States, 319 U.S. 190, 225-26, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25, 53 S.Ct. 45, 77 L.Ed. 138 (1932), as well as statutes authorizing regulation to ensure fairness and equity, see Am. Power & Light Co., 329 U.S. at 104-05, 67 S.Ct. 133; Yakus v. United States, 321 U.S. 414, 420, 426-27, 64 S.Ct. 660, 88 L.Ed. 834 (1944). As the Court stated in its most recent nondelegation decision, it has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Am. Trucking Ass‘ns, 531 U.S. at 474-75, 121 S.Ct. 903 (quoting Mistretta, 488 U.S. at 416, 109 S.Ct. 647 (Scalia, J., dissenting)) (internal quotation marks omitted). We similarly decline to do so here. We hold that section 465 is not an unconstitutional delegation of legislative authority.
E. APA-Related Claims
The focus of the en banc proceedings was on the three sets of arguments discussed above. The State presented another set of claims, rejected by the panel, that the Secretary‘s decision to take the Parcel into trust for the Tribe violates the APA. The State did not seek en banc review of this issue. In granting en banc review, we withdrew our panel opinion, which had been reported at 423 F.3d 45. In the interests of completeness, we now also reject the State‘s APA claims.
We set forth here a shortened and slightly modified version of the panel‘s opinion as to this issue.
The State claims that the Secretary‘s action was an abuse of discretion under the APA. Our review of the Secretary‘s decision is governed by section
The State makes five arguments as to why the Secretary‘s decision was unlawful under section 706(2)(A): (1) the BIA relied on the Tribe‘s findings, rather than conducting an independent evaluation of the Tribe‘s application; (2) the BIA misapplied the factors enumerated in
1. Independent Evaluation of the Tribe‘s Trust Application
The State claims that the BIA‘s decision to take the Parcel into trust was arbitrary and capricious because it relied exclusively on the Tribe‘s assertions and failed to consider other important facts that occurred between 1993 and 1997. The State points to substantial passages in the Secretary‘s decision that contain verbatim restatements of information provided by the Narragansett Tribe in support of their 1993 trust application as evidence that the BIA failed to conduct an independent evaluation of the Tribe‘s 1997 application.
There is ample evidence in the administrative record that the BIA conducted its own, independent evaluation of the Tribe‘s application and that it considered the events following the Tribe‘s 1993 application. For example, between 1993 and 1997, the BIA required the Tribe to supplement its initial Environmental Assessment; conducted an environmental hazard survey of the Parcel; required confirmation of consistency with the State‘s Coastal Resources Management Plan; was apprised of, and offered to facilitate, negotiations between the Tribe, the Town, and the State concerning both environmental and jurisdictional issues attendant to the Tribe‘s development of the Parcel; and specifically requested that the Regional Solicitor address several legal and jurisdictional issues raised by the State in its comments to the BIA on the Tribe‘s trust application. This demonstrates that the BIA‘s determination was the result of its own, independent evaluation of the 1997 application.
2. Application of the 25 C.F.R. § 151.10 Factors
The State claims that the BIA failed to apply the proper criteria when it evaluated the Tribe‘s application for trust acquisition. The regulations governing the BIA‘s evaluation of applications to have land taken in trust are laid out at
A reviewing court will determine only “whether the [BIA‘s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The fact that the BIA found the Parcel, which is across a town road from the settlement lands, to be “contiguous” to the settlement lands that are currently in trust, and thus determined that it should consider the “on-reservation” factors enumerated in
It was not necessary for the BIA to consider the factors under section
3. The Native American Housing Assistance and Self-Determination Act Cooperation Agreement Requirement
At the time of the BIA‘s decision to acquire the Parcel into trust, HUD was precluded from releasing funds pursuant to the Native American Housing Assistance and Self-Determination Act for any tribe‘s housing development unless an agreement for local cooperation on issues such as taxes and jurisdiction had been entered into by the tribe and the local government where the housing was located.
The State argues that this waiver is invalid because the State apparently did not receive notice of the Tribe‘s application for a waiver until after the waiver had been granted. On appeal, the State contends that if the BIA accepted the waiver, the BIA has inherited the legal error and
4. Environmental Considerations
The National Environmental Policy Act (NEPA),
Federal agencies are required to prepare an EIS for any action that could significantly affect the quality of the human environment.
The CEQ has issued guidance on whether to prepare an EIS. This guidance provides that “if the agency determines on the basis of the environmental assessment not to prepare a statement,” then the agency should “[p]repare a finding of no significant impact” pursuant to section 1508.13.
Separately, the State contends that the BIA should have obtained a federal consistency review in accordance with the Coastal Zone Management Act (CZMA),
The State has failed to demonstrate that a consistency review of the Tribe‘s housing development was necessary at the trust acquisition stage. The development of the Parcel is a project that was commenced by the Tribe, in conjunction with HUD, prior to the Tribe‘s application for trust acquisition. The Rhode Island Coastal Resources Management Council correctly recognized that the development of the Parcel, which required its own federal consistency determination, was a separate matter from the trust acquisition, and properly found that the Tribe‘s application for trust status was consistent with the RICZMP.
5. The Indian Gaming Regulatory Act
Finally, the State contends that the true purpose of the Tribe‘s application for trust acquisition is the development of gambling facilities on the Parcel —rather than development of tribal housing as the BIA found in its evaluation pursuant to
No evidence that the Tribe intends to use the Parcel for anything other than tribal housing, as determined by the BIA, was presented. “In fact, after the plaintiffs expressed concern over the potential for development of a gaming facility on the parcel, the tribe reaffirmed that it intended to use the parcel for a housing development and stated that it had ‘no immediate plans for any further future development.‘” Carcieri, 290 F.Supp.2d at 178 (quoting II Admin. Rec., tab N).
As support for its position, the State points to an IBIA decision that reversed a trust acquisition decision due to the BIA‘s failure to consider the impact of a potential casino, even though the applicants denied any intention of using the property for a casino. See Vill. of Ruidoso, N.M. v. Albuquerque Area Dir., Bureau of Indian Affairs, 32 I.B.I.A. 130 (1998). However, in Village of Ruidoso, the IBIA determined that, despite the tribe‘s denial that the application for trust acquisition was for gaming purposes, it was clear from the planned gaming-related uses of the property and the fact that the property had been given to the tribe by a company that the BIA “apparently understood to have some gaming connection with the Tribe”
We agree with the district court that although the possibility that the parcel might be used for gaming activities was raised before the BIA, the bureau‘s determination that the parcel would be used to provide housing was amply supported by the record. In view of the deferential standard of review afforded to agency decisions under the APA, the bureau‘s determination in this regard must be sustained.
Carcieri, 290 F.Supp.2d at 178.
III.
The decision of the district court is affirmed. Costs are awarded to the Secretary.
HOWARD, Circuit Judge, dissenting.
Respectfully, I disagree with the majority‘s analysis of the Settlement Act. In my view, the majority opinion disregards Congress‘s (and the parties‘) purpose in passing the Settlement Act and is inconsistent with our own recent interpretation of the Settlement Act. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006) (en banc). At bottom, under the Settlement Act, the Secretary may only take the Parcel into a restricted trust25 that provides for Rhode Island‘s continued criminal and civil jurisdiction over the Parcel. The State makes this argument in two forms. First, by arguing that the Settlement Act effectuates a partial im
The parties and amici do an excellent job in acquainting the court with the many complexities of both the case and the issues inherent in “Indian law.” However, the ultimate resolution of the case comes down to a very narrow question: In the specific context of the Tribe and State, what did Congress intend the Settlement Act to do?
The key provision is Section 1705, which is written far more broadly than the majority concludes.26 In its first two provisions that section retroactively ratifies all the Tribe‘s prior land transfers anywhere in the United States and extinguishes the Tribe‘s aboriginal title in all such lands. See
(3) by virtue of the approval of a transfer of land or natural resources effected by this section, or an extinguishment of aboriginal title effected thereby, all claims against the United States, any State or subdivision thereof, or any other person or entity, by the Indian Corporation or any other entity presently or at any time in the past known as the Narragansett Tribe of Indians, or any predecessor or successor in interest, member of stockholder thereof, or any other Indian, Indian nation, or tribe of Indians, arising subsequent to the transfer and based upon any interest in or right involving such land or natural resources (including but not limited to claims for trespass damages or claims for use and occupancy) shall be regarded as extinguished as of the date of the transfer.
The majority argues that Section 1705(a)(3) cannot be read so broadly; otherwise, the Tribe would be barred from asserting any land claims. See ante, at 36-37. But the majority disregards a significant factor —the nature of the land claims that were barred. The legislative history of the Settlement Act specifically states that the “extinguishment of Indian land claims is limited to those claims raised by Indians qua Indians.” H.R. Rep. 95-1453, U.S.Code Cong. & Admin.News 1978, 1948, at 1955 (1978) (emphasis added). As we recently stated, through the Settlement Act “the Tribe abandoned any right to an autonomous
Moreover, “Congress does not legislate in a vacuum,” and among the matters that a court must consider in assessing a statute are general policies and pre-existing statutory provisions. Passamaquoddy Tribe, 75 F.3d at 789. The Settlement Act was enacted over 40 years after Section 465 of the IRA and, given the explicit acknowledgment of possible future recognition for the Tribe,28 Congress was well aware of the IRA when enacting the Settlement Act. It is neither logical nor necessary to find that Congress enacted legislation effectuating this carefully calibrated compromise between three sovereigns, which required significant expenditures by both the federal government and the State, which provided a significant amount of land to the Tribe, and which provided for a delicate balancing of the parties’ interests, only to permit the legislation to be completely subverted by subsequent agency action.
On this score, the majority misses the exquisite irony that the Parcel was part of the lands originally claimed by the Tribe. It would be antithetical to Congress’ intent
Further, the Settlement Act was novel; it was the first statute resolving Indian land claims, premised upon the Nonintercourse Act, growing out of an out-of-court settlement negotiated by a tribe and the state/landowners. See H.R. 95-1453, at 1951 (1978). Indeed, it was expected to serve as a template for the resolution of other Eastern tribes’ land claims under the Nonintercourse Act. See id.; see also Oneida Indian Nation, 125 S.Ct. at 1483-85 (discussing Nonintercourse Act and original 13 states’ “pre-emptive right to purchase from the Indians“). In light of the fact that the Settlement Act was the first statute of its kind, the majority‘s observation that subsequent statutes were more explicit in limiting certain aspects of the Secretary‘s power proves nothing. Elaborate statements regarding the Tribe‘s relationship with the BIA would have been unwarranted in the Settlement Act, given that the Tribe had not yet been recognized.
Moreover, that subsequent acts dealing with Eastern tribes made specific provision for the Secretary‘s ability to take land in trust for a tribe, see, e.g.,
There is also nothing novel about requiring the BIA to accept the Parcel into trust with restrictions. The BIA is authorized to take restricted interests in land into trust, see
It is also worth noting that Congress acted promptly to preserve the State‘s jurisdiction over the Tribe‘s lands the last time this court challenged it. When this court held that the Tribe exercised suffi
I respectfully dissent.
SELYA, Senior Circuit Judge, dissenting.
I am in complete agreement with Judge Howard‘s cogent and articulate dissent, and I join it unreservedly. Nevertheless, I write separately to express my regret that, in taking far too narrow a view of the Settlement Act, the majority gives short shrift not only to the interests of the State of Rhode Island but also to the carefully calibrated arrangements crafted between the State and the Tribe.
We previously have made clear that the touchstone in resolving jurisdictional disputes between the State and the Tribe is the full effectuation of the parties’ intent. See Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 22, 25 (1st Cir. 2006) (en banc). Yet, today, the majority sets aside the parties’ intent in favor of a wooden reading of one subsection of the Settlement Act. See ante at 34 (“By its terms, section 1708(a) applies state law only to the 1800 acres of ‘settlement lands.’ The Parcel is not part of the settlement lands.“).
Despite the artful draftmanship of the majority opinion, the provision on which it relies cannot be wrested from its historical context and read in a vacuum. The Settlement Act, when taken together with the extinguishment of all Indian claims referable to lands in Rhode Island, the Tribe‘s surrender of its right to an autonomous enclave, and the waiver of much of its sovereign immunity, see Narragansett Indian Tribe, 449 F.3d at 22, 24-25, suggests with unmistakable clarity that the parties intended to fashion a broad arrangement that preserved the State‘s civil, criminal, and regulatory jurisdiction over any and all lands within its borders. Therefore, the Settlement Act logically and equitably should be read to prohibit any unilateral action that would upset this hard-bargained and delicate jurisdictional balance.
The Secretary‘s taking of an after-acquired parcel into an unrestricted trust is just such an event. It strains credulity to surmise, as does the majority, that the State would have made such substantial concessions—including the transfer, free and clear, of 1800 acres of its land—while leaving open the gaping loophole that today‘s decision creates.
The majority admits that this case is “in many ways a proxy for the State‘s larger concerns about its sovereignty,” ante at 20, including the State‘s understandable worry that the Tribe will use this parcel (or future parcels that might be acquired and placed into trust) for activities that would be forbidden under State law and anathema to a majority of the State‘s citizens. At oral argument, the Secretary of the Interior and the Bureau of Indian Affairs appeared to disclaim any vestige of responsibility for the State‘s concerns. Despite this disclaimer and “the genuineness of the State‘s sense that its bargain has been upset,” ante at 38, the majority turns its back on the State.
In my view, this is error—and error of the most deleterious kind. The majority, without anything approaching sufficient justification, is engaging in pointless literalism and forcing the State to rely on the faint velleity that the Secretary will use caution in the exercise of his responsibilities in connection with the Parcel. While
As Indian tribes evolve in modern society, old legal rules tend to blur. The controversy that divides our court today is vexing and of paramount importance to both the State and the Tribe. Thus, the issue—as well as the underlying principles of Indian law—doubtless would benefit from consideration by the Supreme Court. That is a consummation devoutly to be wished. In the meantime, however, there is too much at stake to allow the Tribe, with the contrivance of the Secretary‘s taking the Parcel into trust, to walk away from an arrangement that it helped to fashion and from which it has benefitted over the years.
I respectfully dissent.
UNITED STATES of America,
Appellee,
v.
Fernando GIL-CARMONA,
Defendant, Appellant.
No. 05-1425.
United States Court of Appeals,
First Circuit.
Heard Dec. 5, 2006.
Decided July 27, 2007.
Notes
(a) The existence of statutory authority for the acquisition and any limitations contained in such authority;
(b) The need of the individual Indian or the tribe for additional land;
(c) The purposes for which the land will be used;
....
(e) If the land to be acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls;
(f) Jurisdictional problems and potential conflicts of land use which may arise; and
(g) If the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status.
....
The location of the land relative to state boundaries, and its distance from the boundaries of the tribe‘s reservation, shall be considered as follows: as the distance between the tribe‘s reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe‘s justification of anticipated benefits from the acquisition....
(1)(A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3).
....
(C) Each Federal agency carrying out an activity subject to paragraph (1) shall provide a consistency determination to the relevant State agency....
(2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.