Circumventing Inconvenient Laws to Build a Casino

The destination casino lives. The Rhode Island Statewide Coalition has put out a detailed set of presentations on the latest machinations in the casino drive, including information on a Federal Appeals Court ruling that potentially clears the way for the construction and operation of an Indian Casino in Charlestown that would be immune from state and local laws...

The 4-2 decision of the Second Circuit Court of Appeals on July 20, 2007, in the case of Carcieri vs. Kempthorne, would permit the Narragansett Indian Tribe (NIT) to transfer lands it owns into “Trust” status. (The NIT owns land in both Charlestown and Westerly which may become “trust lands.”) The "Trust Lands strategy" circumvents the provisions of the "Settlement Act“, the agreement the Tribe previously reached with Rhode Island and Charlestown

If the decision stands, the NIT may be entitled to utilize the new “Trust Lands” in accordance with decisions of the federal government alone, without any obligation to observe local and state laws. No state gaming regulations, no zoning laws, no planning restrictions, no local sanitation, environment or other restrictions would apply to the “trust lands”. Although NIT leaders claim that they will only build housing on the new “trust lands”, once the transfer is done, their governance passes entirely to the NIT. The tribe will be able to do whatever it wishes on those lands. In other States, Casinos have quickly risen where housing originally was promised.

(Note: All emphasis in the above excerpt reproduced as in the original).

The question in Carcieri v. Kempthorne (Dirk Kempthorne is the U.S. Secretary of the Interior) centers on whether the particular history of Narragansett Indian Tribe and the State of Rhode Island allow new Rhode Island lands to be removed from state/local jurisdiction via Federal bureaucratic decree. Here's the district circuit court's short-take on the relevant history…

In 1880, the State acquired the majority of the [Narragansett 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, 25 U.S.C. § 177. The Tribe claimed that this violation rendered void the transfer of title to the lands.

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." Id. § 1708(a).

The Narragansetts' claim is that the "Settlement Act" applies only to the original 1800 acres, and therefore lands they have purchased since then can be made exempt from state and local laws, if the United States Department of the Interior places them into Federal Trust. The state's position is that the Settlement Act applies to all Narragansett lands, regardless of when they were acquired, and that the Federal Government cannot go about carving up the state of Rhode Island without the consent of Rhode Islanders.

The courts, so far, have upheld the Narragansetts' position, essentially ruling that the the Federal Government has a right to cut states up to facilitate the building of gambling parlors. Rhode Island, of course, was famously the last of the 13 original colonies to join the United States of America, fearing that giving up power to a remote Federal government would not serve the interests of Rhode Islanders. Maybe the surly holdouts were right after all...