Land that is acquired by an Indian Tribe can be put into a
BIA Trust.
I have to apologize for any typos in here, as well as the
lack of hyperlinks (which I hope to rectify over the next few days). This is a long case, and I am very busy
today.
Carcieri v. Norton, No. 03-2647.
This appeal “arises from an administrative decision by the Secretary of
the Interior to take into trust a 31-acre parcel of land located in
Charlestown, Rhode Island ("the Parcel") (2) for the benefit of the
Narragansett Indian Tribe of Rhode Island.” Rhode Island loses.
The Secretary of the Interior took into trust a 31-acre
parcel of land in Rhode Island for the benefit of the Narragansett Indians. The State of Rhode Island was not happy about the administrative
procedures used, and brought suit to enjoin the taking of this land, arguing
that it was contrary to the Indian Reorganization Act, 25 U.S.C. § 461 et seq.,
the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq., the
Administrative Procedures Act, 5 U.S.C. § 706, and unconstitutional. The Department of the Interior won at the
District Court on Summary Judgment, and the First Circuit affirms.
By way of background, back in the 70s a lot of this land was
the subject of a dispute between various native Americans and Rhode Islanders,
both of whom claimed to have good title to this land. This lawsuit was settled, and the
individuals, the state, and the US Congress, codified the settlements into
their statues. According to the terms of
the settlement, an trust would be created to administer the land, but after the
tribe was federally recognized, the trust was dissolved, and the land was
transferred to the tribe. The 31-acres
at issue were part of the original land under dispute but didn’t make it into
the land that was a part of the settlement.
Three years later, the tribe asked that it be transferred to
the federal government, but the terms of the transfer noted that it did not
alter the character of the state’s relationship with the land.
Since the parcel adjoined the Indian trust lands, a private
developer bought it, and developed it, taking advantage of HUD’s designation of
it as an “Indian Housing Authority.” However, the developer then transferred the parcel to the tribe “with a
deed restriction that the Parcel be placed in trust with the federal government
for the express purpose of providing housing for tribe members.” In an earlier lawsuit, the First Circuit
concluded that this land was no immune from the state regulation that the rest
of the tribal lands were.
The tribe, undaunted, asked the Department of the Interior
to take this land into trust, like the rest of the land it owns. After all, they figured, “we own it – we can
give it to the feds.” The Department
agreed, and it was affirmed via their internal administrative processes,
concluding that the “Settlement Act” “secretary [was not prohibited] from
acquiring lands other than the settlement lands into trust for the benefit of
the Narragansetts.
The state sought an injunction. The district court sided with the deparment
at summary judgment. However, because
review is de novo, the Court of Appeals looked to § 706(2) of the APA (which we
all know).
Anyway, the First Circuit held that :
25 U.S.C. § 465 (Indian Reorganization Act or IRA) applies
to the Narragansetts, even though they were not recognized as a tribe when it
was enacted, and therefore the tribe can ask the secretary to take the land
into trust. Although I disagree with the
First Circuit as to the level of deference (they defer to the secretary’s
interpretation at the time of recognition of the tribe because they have been
interpreting it like that for so long), I agree with them on statutory
interpretation. Or, as some people would
call this “administrative gloss.”
The state argued that the IRS is an unconstitutional
delegation of power, and diminishes state sovereignty in violation of the 10th
amendment and the enclave clause. (Second case in two days dealing with the
enclave clause.) The Supreme Court
rejected an argument that an 8th circuit opinion is persuasive authority
because it had been vacated without opinion by the Supremes, and instead relied
on US v. Roberts, 185 F.3d 1125 (10th Cir. 1999) which found that there was
enough of an intelligible principle in Congress’ delegation not to run afoul of
the nondelegation doctrine.
The court rejected the 10th amendment argument, because, the
BIA is “clearly within the enumerated powers of the federal government.” Likewise, the court held that
1) since Indian
Reservations are not federal enclaves, the enclave clause doesn’t apply.
2) The
admissions clause doesn’t apply, because Indian reservations are not states,
and they don’t have the same power as states.
3) Because at
the time of the Rhode Island Indian Claims Settlement Act, the tribe wasn’t
recognized, the act itself didn’t provide for additional lands to be acquired
and put into trust, but because it was later recognized, it was eligible to
apply to have its lands placed into trust.
4) The lawsuits
in the 1970s didn’t prevent the secretary from taking additional lands into
trust.
5) The
secretary’s acceptance of the parcel in trust does not violate the APA, because
it was not arbitrary, even though appeared to rely on the tribe’s
assertions. The court noted that the BIA
did do its own research. Further, the
court noted that the department properly interpreted its own regulations in
determining whether the land was really “on reservation” or not.
6) The BIA was
not arbitrary, even though it apparently inherited a problem vis-à-vis HUD
financing without a waiver from the tribe regarding cooperation with local
officials, however, the BIA, it seems conducted the necessary analysis on its
own.
7) The BIA
followed the applicable law regarding environmental impact statements.
8) And finally,
the First Circuit concluded that the true purpose of this parcel was not to
build a casino, so the Indian Gaming regulatory Act doesn’t apply.
The court held that the state had waived the issue of
whether the settlement act requires the federal government to allow the land to
remain subject to state jurisdiction.
There has been some press coverage of this decision, see here and here.
Plain error with a hidden happy ending.
Díaz-Seijo V. Fajardo-Vélez, No. 03-2422.
This is yet another lawsuit in which an employee of the Puerto Rican
government claims that he was fired because of his political beliefs.
In this case, Miguel Diaz-Seijo worked in the legal division of the
Puerto Rico Department of Education. He seems to have exhausted his
administrative remedies. All of the claims were dismissed by the
district court, except the one against his supervisor for political
discrimination. However, was granted summary judgement on those
grounds after Diaz did not oppose it, presumably because he had been
reinstated and given back pay. On appeal the court applied plain error
under United States v. Olano,
507 U.S. 725, 732-36 (1993). The court concluded that, “Possibly if he
prevailed against Rodriguez in her personal capacity for the same
dismissal, he could in addition secure punitive damages and attorney's
fees; but on these facts their absence is hardly a miscarriage of
justice.”
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