USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1944
NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND AND
NARRAGANSETT INDIAN WETUOMUCK HOUSING AUTHORITY,
Plaintiffs - Appellees,
v.
NARRAGANSETT ELECTRIC COMPANY,
Defendant - Appellee.
____________________
STATE OF RHODE ISLAND,
Defendant - Appellant.
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No. 95-1945
NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND AND
NARRAGANSETT INDIAN WETUOMUCK HOUSING AUTHORITY,
Plaintiffs - Appellees,
v.
NARRAGANSETT ELECTRIC COMPANY,
Defendant - Appellee.
____________________
TOWN OF CHARLESTOWN,
Intervenor - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Rosenn,* Senior Circuit Judge,
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and Lynch, Circuit Judge.
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_____________________
Alan M. Shoer, Special Assistant Attorney General, with whom
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Jeffrey B. Pine, Attorney General, James E. Purcell, Partridge,
________________ _________________ __________
Snow & Hahn, Phillip M. Sloan, Solicitor, Town of Charlestown,
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and Bruce N. Goodsell, Assistant Town Solicitor, were on brief
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for appellants.
Randall L. Souza, with whom Fred A. Kelly, Jr., Peter V.
________________ ___________________ _________
Lacouture and Peabody & Brown were on brief for the Narragansett
_________ _______________
Electric Company.
John F. Killoy, Jr., with whom Law Office of H. Jefferson
____________________ ___________________________
Melish was on brief for the Narragansett Indian Tribe of Rhode
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Island and the Narragansett Indian Wetuomuck Housing Authority.
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July 22, 1996
____________________
____________________
* Of the Third Circuit, sitting by designation.
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TORRUELLA, Chief Judge. Defendant-intervenors the town
TORRUELLA, Chief Judge.
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of Charlestown (the "Town") and the State of Rhode Island
(together, the "State") seek a permanent injunction prohibiting
plaintiffs the Narragansett Indian Tribe (the "Tribe") and the
Narragansett Indian Wetuomuck Housing Authority (the "WHA") from
constructing a housing complex without obtaining various permits
and approvals pursuant to state law and local ordinances.1 At
the heart of the issue lies the question of whether the land in
question is "Indian country" as that term is defined in 18 U.S.C.
1151(b). The district court found that it is, by virtue of
being a dependent Indian community, and so declined in part to
issue the injunction sought by the State and the Town. We,
however, find it is not, and so, for the reasons stated herein,
we reverse in part and affirm in part.
BACKGROUND
BACKGROUND
The district court relied on the evidence presented at
an evidentiary hearing regarding the State's motion for a
preliminary injunction, which evidence the parties stipulated
____________________
1 This suit was initially brought by plaintiffs against the
Narragansett Electric Company, a Rhode Island public utility
corporation. Plaintiffs asserted subject matter jurisdiction
under 28 U.S.C. 1331 and 1362. The State subsequently
intervened in the lawsuit and filed a counterclaim for
declaratory and injunctive relief against the plaintiffs, and it
is the State's counterclaim that underlies this appeal. The
Narragansett Electric Company takes no position with respect to
the issues raised by the State in this appeal. We add that,
because the plaintiffs have asserted no claims against the State,
this action does not implicate Eleventh Amendment concerns, and
the Supreme Court's decision in Seminole Tribe of Florida v.
___________________________
Florida, __ U.S. __, 116 S. Ct. 114 (1995) is inapposite here.
_______
-3-
could serve as the basis for the district court's decision.2
Narragansett Indian Tribe v. Narragansett Elec., 878 F. Supp.
__________________________ ___________________
349, 352 (D.R.I. 1995) ("Narragansett I"). As the parties raise
______________
no challenges to the district court's findings, we rely on them
as well.3
In 1991 the WHA purchased the land which is at the
center of this dispute (the "housing site") from a private
developer. See id. at 534 (detailing history of purchase of the
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housing site). The housing site is adjacent to the Tribe's other
lands, separated from them by a town road. The Tribe's church,
the long house which serves as the seat of the Tribal Assembly,
and the offices where the tribal government meets and programs
for tribal members are administered are all established in close
proximity to the housing site; a proposed tribal community center
and tribal health center are to be constructed on the settlement
lands as well. The approximately 32 acres of the housing site is
located within the costal zone designated in the State's Coastal
Resources Management Program ("CRMP"). Also, the section of the
Town in which the housing site is located is zoned to require at
least two acres of land per residential unit, a requirement the
proposed project does not meet, as it will have some fifty units.
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2 As the district court noted, the request for a permanent
injunction we address here relates only to the construction of
the housing complex. We do not express an opinion on any
remaining portions of the case.
3 The parties do dispute whether the trust application has been
withdrawn. However, as counsel for the Tribe agreed at oral
argument, the record here simply shows that the application has
been made and not acted on or withdrawn.
-4-
As the district court noted, although occupancy is open to anyone
"it is contemplated that most, if not all of the units, will be
occupied by elderly and low-income members of the Tribe." Id.
___
The United States Department of Housing and Urban
Development ("HUD") has recognized the WHA as an Indian Housing
Authority, and has provided the financing for the purchase of the
housing site and the construction of the buildings. HUD will
also provide money both for managing the project and for
subsidizing the occupants' rent. The HUD funds have been made
pursuant to a program designed to provide housing for Indians.
See The Indian Housing Act of 1988, 42 U.S.C. 1437aa-1437ff.
___
The WHA bought the land, and then conveyed it to the
Tribe. A deed restriction requires that the land be placed in
trust with the federal government, for the express purpose of
providing housing for tribal members. The district court found
that the Tribe had applied for trust status, but that the
application had not yet been granted. Meanwhile, the land has
been leased to the WHA, with the approval of the Bureau of Indian
Affairs ("BIA").
The WHA began construction on the housing site without
a building permit from the Town or state approval of the
individual sewage disposal systems (the "ISDS") serving the
project. Nor did the WHA "obtain any determination that the
project is consistent with Rhode Island's CRMP or state
regulations designed to preserve property of historical or
archeological significance." Narragansett I, 878 F. Supp. at
______________
-5-
354. The district court found that the excavation for the
project has infringed on the Town's drainage easement, and has
threatened to alter drainage patterns to the detriment of coastal
and groundwater resources. At the same time, however, the ISDS
systems meet Indian Health Service ("IHS") regulations.4 "[T]he
record is silent regarding the differences, if any, between the
State's building code and the Tribe's building code or what the
significance of any such differences may be." Id. at 355.
___
To further complicate the picture, "[t]he evidence
demonstrates that the housing site is in close proximity to
Ninigret Pond, a fragile salt water estuary that is a prime
spawning ground for several species of commercially important
fish." Id. The district court found that the pond is
___
"ecologically stressed" already, due to nitrates in the ground
water, and that the possibility exists that nitrates from the
WHA's ISDS systems could reach the pond "and worsen an already
serious problem." Id.
___
In its detailed opinion, the district court concluded
that the housing site is indeed a "dependent Indian community,"
and thus is Indian country under 18 U.S.C. 1151. Noting that
"tribal sovereignty is no longer an absolute bar to the assertion
of state authority in Indian country," Narragansett I, 878 F.
______________
Supp. at 359, the court carried out a pre-emption analysis. It
concluded that the State's building and zoning regulations were
____________________
4 IHS is an agency of the Department of Health and Human
Services.
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pre-empted, as was its jurisdiction to regulate the ISDS systems.
However, it found that Rhode Island's CRMP was not pre-empted,
and accordingly enjoined the WHA and the Tribe from occupying
buildings on the housing site unless that program's requirements
were satisfied. It also enjoined them from interfering with the
drainage easement previously conveyed to the Town.5
We review the grant of a permanent injunction under an
abuse of discretion standard. See Caroline T. v. Hudson Sch.
___ ___________ ____________
Dist., 915 F.2d 752, 754-55 (1st Cir. 1990) (noting that abuse of
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discretion standard applies to both preliminary and permanent
injunctions); cf. Narragansett Indian Tribe v. Guilbert, 934 F.2d
___ _________________________ ________
4, 5 (1st Cir. 1991) (applying abuse of discretion standard to
grant of preliminary injunction).
DISCUSSION
DISCUSSION
A. The Settlement Act
A. The Settlement Act
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The State makes its first argument on the basis of the
Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C.
1701-1716 (the "Settlement Act"). We begin with the history
of the Settlement Act, and then address the State's contention.
1. Background
1. Background
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The background of the relationship between the Tribe
and the State has been addressed in some detail by the district
____________________
5 The Tribe has not appealed from the district court's partial
grant of injunctive relief. The court found that it did not need
to make a determination regarding whether state regulations
regarding property with historical and/or archeological
significance applied, since the Rhode Island Historical
Preservation Commission had notified the Tribe that it had no
objection to the project as planned.
-7-
court below, Narragansett I, 878 F. Supp. at 353-55, as well as
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in prior decisions of the courts of this circuit, see Rhode
___ _____
Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.),
______ _________________________
cert. denied, __ U.S. __, 115 S. Ct. 298 (1994); Maynard v.
____________ _______
Narragansett Indian Tribe, 984 F.2d 14, 15-16 (1st Cir. 1993);
__________________________
Town of Charlestown v. United States, 696 F. Supp. 800, 801-05
____________________ ______________
(D.R.I. 1988), aff'd, 873 F.2d 1433 (1st Cir. 1989); Narragansett
_____ ____________
Tribe of Indians v. Murphy, 426 F. Supp. 132, 134 (D.R.I. 1976);
________________ ______
Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp.,
______________________________ ______________________________
418 F. Supp. 798, 802-03 (D.R.I. 1976). Therefore, rather than
enter into a detailed discussion, we will simply outline the
essential structure of the historical underpinnings of the
State's first argument.
In the mid-1970s, the Tribe brought two actions to
establish its right to possession of lands which it contended
were unlawfully held by the State as well as private individuals
and businesses. The ground for its claims was that the lands had
been unlawfully alienated in violation of the Indian
Nonintercourse Act, 25 U.S.C. 177. See Southern R.I. Land Dev.
___ _______________________
Corp., 418 F. Supp. at 802-03 (recounting history of dispute).
_____
The parties to the dispute settled the claims in 1978 by entering
into a Joint Memorandum of Understanding. The Tribe relinquished
its title claims, and in return received a sum of money6 and
____________________
6 The Tribe notes that it disagrees with the district court's
statement that the Tribe received a payment under the Settlement
Act, maintaining that there was neither a payment to the Tribe
nor a distribution of money or land to individual Tribe members.
Whether or not the Tribe received a payment is irrelevant to our
-8-
effective control over some 1,800 acres of land, whose title was
held by a corporation (the "settlement lands"). Implementing
legislation was passed by the United States Congress in the form
of the Settlement Act, and by the Rhode Island legislature as
well, see Narragansett Indian Land Management Corporation Act, 6A
___
R.I. Gen. Laws 37-18-1 to 37-18-15 (1990). See generally Town
_____________ ____
of Charlestown, 696 F. Supp. at 801-05 (detailing the history and
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provisions of the Settlement Act).
In 1983, the Narragansetts were officially recognized
as an Indian tribe. See Narragansett Indian Tribe, 19 F.3d at
___ __________________________
689. In 1988, the Tribe deeded the settlement lands to the BIA,
to be held in trust. Id. This court has held that although the
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Settlement Act allows State civil and criminal jurisdiction over
the settlement lands, with some exceptions, the Tribe nonetheless
has "concurrent jurisdiction over, and exercise[s] governmental
power with respect to, those lands." Id. (holding that the
___
Indian Gaming Regulatory Act, 25 U.S.C. 2701-2721, 18 U.S.C.
1166-1168, applies to the settlement lands).
2. The Present Dispute
2. The Present Dispute
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The State's first contention in the present case is
that the Settlement Act precludes a finding that the housing
site, which is not part of the settlement lands, is Indian
country, because that Act resolved the Tribe's land claims and
established the boundaries of the Tribe's Indian country in Rhode
Island. It maintains that we should interpret section 1705(a)(3)
____________________
consideration of the issue at hand.
-9-
of the Settlement Act as extinguishing all of the Tribe's claims
and limiting the boundaries of its Indian country.7 The
linchpin of its argument is its contention that it was Congress'
intent in the Settlement Act to set definite limits to the
Tribe's Indian country and to extinguish any claim to greater
boundaries, and congressional intent must prevail. See Rosebud
___ _______
Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1976) (noting "that
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congressional intent will control" in determining whether a
reservation has been terminated). Such a specific statute, it
maintains, overrides the general definition of "Indian country."
The Tribe responds with two counter-arguments. First,
it maintains that the State effectively waived this argument by
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7 The pertinent section provides that upon the State's
compliance with the conditions of the Settlement Act, and the
recognition of the same by the Secretary of the Interior,
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 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.
25 U.S.C. 1705(a)(3).
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making only passing reference to it in the court below, without
supporting it with statutory analysis or legal authority. See
___
Rodr guez-Pinto v. Tirado-Delgado, 982 F.2d 34, 41 (1st Cir.
_______________ ______________
1993) (reaffirming that "arguments made in a perfunctory manner
below are deemed waived on appeal").
Second, the Tribe contends that even if the argument
was not waived, the Settlement Act only extinguished the Tribe's
aboriginal title claims. "Aboriginal title," alternatively
__________
called "Indian title," is "the right of Indian tribes to use and
occupy 'lands they had inhabited from time immemorial.'" Mashpee
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Tribe v. Secretary of the Interior, 820 F.2d 480, 481-82 (1st
_____ ___________________________
Cir. 1987) (quoting County of Oneida v. Oneida Indian Nation, 470
________________ ____________________
U.S. 226, 234 (1985)). The Tribe points out that this is not a
title action, and that it does not claim aboriginal title to the
housing site. Further, it notes that on the face of section
1705(a)(3), the Tribe agreed to "an extinguishment of aboriginal
title," but there is no express language in the statute
extinguishing any right to purchase other lands. If the
Settlement Act did not abrogate the Tribe's right to purchase
other lands, the Tribe continues, it did not limit its ability to
gain sovereign authority over such lands that it acquires. The
weight of this reading of the statute is heightened by the
"distinctive perspective" from which we view statutes that "touch
on Indian sovereignty." State of R.I., 19 F.3d at 691. "The
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congressional intent [to terminate a reservation] must be clear,
to overcome 'the general rule that "[d]oubtful expressions are to
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be resolved in favor of the weak and defenseless people who are
the wards of the nation . . . ."'" DeCoteau v. District County
________ _______________
Court, 420 U.S. 425, 444 (1974) (quoting McClanahan v. Arizona
_____ __________ _______
State Tax Comm'n, 411 U.S. 164, 174 (1973) (quoting Carpenter v.
_________________ _________
Shaw, 280 U.S. 363, 367 (1930))). Paternalistic phrasing aside,
____
it is well established that "[a] congressional determination to
terminate [a reservation] must be expressed on the face of the
Act or be clear from the surrounding circumstances and
legislative history." Mattz v. Arnett, 412 U.S. 481, 505 (1973).
_____ ______
The importance of this dispute over whether the
Settlement Act terminates the Tribe's ability to increase the
territory over which it possesses sovereignty is manifest. No
matter how we hold, the significance of our decision will reach
well beyond the confines of the current dispute. Indeed, in its
brief the State points to at least one pending case in which the
issue arises. Nonetheless, we leave this question, which the
district court did not address in its lengthy opinion, for
another day. Regardless of whether the issue has in fact been
waived, we need not establish in this dispute whether the
Settlement Act limits the Tribe's Indian country, as we conclude
on independent grounds that the housing site is not a dependent
Indian community, and therefore is not Indian country. Thus we
will wait to address the issue on the basis of more developed
discussion below; while it is at heart a question of statutory
interpretation, we nonetheless prefer to address the Settlement
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Act question at a time when the parties, and the court below,
have addressed it more fully.
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B. Indian Country
B. Indian Country
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1. The Significance of "Indian Country"
1. The Significance of "Indian Country"
____________________________________
Serving as the backdrop to this case is the doctrine
that "Indian tribes are 'domestic dependent nations' that
exercise inherent sovereign authority over their members and
territories." Oklahoma Tax Comm'n v. Citizen Band Potawatomi
____________________ ________________________
Indian Tribe, 498 U.S. 505, 509 (1991) (citing Cherokee Nation v.
____________ _______________
Georgia, 5 Pet. 1, 17, 8 L. Ed. 25 (1831)); see McClanahan, 411
_______ ___ __________
U.S. at 168-69 (outlining the roots of the Indian sovereignty
doctrine). This rule has softened over time, so that it is no
longer true that state law plays no role within a tribe's
territory. Nonetheless, the state's jurisdiction is not
automatic. "[S]tate laws may be applied to tribal Indians on
their reservations if Congress has expressly so provided,"
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207
__________ _______________________________
(1987); where Congress does not so provide, a pre-emption
analysis is followed to determine if state law is pre-empted by
federal and tribal interests as reflected in federal law. See
___
id. at 216; DeCoteau, 420 U.S. at 427 & n.2; McClanahan, 411 U.S.
___ ________ __________
at 172.
In short, "it would vastly oversimplify the problem to
say that nothing remains of the notion that reservation Indians
are a separate people to whom state jurisdiction . . . may not
extend." McClanahan, 411 U.S. at 170. Therefore, the issue here
__________
of whether the housing site is Indian country bears real
significance, since "the Indian country classification is the
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benchmark for approaching the allocation of federal, tribal, and
state authority with respect to Indians and Indian lands."
Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973
_______________________ ___________________
(10th Cir. 1987) (collecting cases), cert. denied sub nom.
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Oklahoma Tax Comm'n v. Muscogee (Creek) Nation, 487 U.S. 1218
____________________ ________________________
(1988); see Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S.
___ ___________________ __________________
114, 125 (1993) (rejecting argument that Indian sovereignty only
applies to formal reservation lands, stating "we ask only whether
the land is Indian country"); Cohen's Handbook of Federal Indian
__________________________________
Law 27 (1982 ed.) ("[F]or most jurisdictional purposes the
___
governing legal term is 'Indian country.'"). If the housing site
is not Indian country, there is no bar to the exercise of the
State's jurisdiction. If it is, the State presumptively lacks
jurisdiction to enforce the regulations and ordinances discussed
here, and we must carry out a pre-emption analysis.
2. The Section 1151 Definition of "Indian Country"
2. The Section 1151 Definition of "Indian Country"
_______________________________________________
The obvious question, then, is what constitutes "Indian
country." Congress has defined the term as including
(a) all land within the limits of any
Indian reservation under the jurisdiction
of the United States Government, . . .
(b) all dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the limits
of a state, and (c) all Indian allotments
. . . .
18 U.S.C. 1151; see Oklahoma Tax Comm'n v. Sac and Fox Nation,
___ ___________________ __________________
508 U.S. 114, 123 (1993) (noting broad nature of definition);
United States v. Levesque, 681 F.2d 75, 77 (1st Cir.) (discussing
_____________ ________
-15-
origins of 1151(b)), cert. denied, 459 U.S. 1089 (1982); Alaska
____________ ______
v. Native Village of Venetie Tribal Gov't, 1995 WL 462232, *1-*5
______________________________________
(D.Alaska Aug. 2, 1995) (detailing the history of the concept of
Indian country). Here, as the housing site is neither part of a
formal reservation nor an allotment, the present dispute is over
whether it constitutes a "dependent Indian community" for
purposes of subsection (b) of section 1151, a dispute we discuss
at length below.
Before addressing that issue, however, we recognize
that, as the State notes, section 1151 on its face is concerned
only with criminal jurisdiction. Nonetheless, the Supreme Court
has repeatedly stated that the definition provided in section
1151 "applies to questions of both criminal and civil
jurisdiction." Cabazon Band of Mission Indians, 480 U.S. at 207;
_______________________________
see also DeCoteau, 420 U.S. at 427. Elsewhere, the Court has
________ ________
simply defined "Indian country" in civil cases in terms closely
paralleling those of section 1151, while citing to that statute.
See Oklahoma Tax Comm'n v. Chickasaw Nation, __ U.S. __, 115 S.
___ ___________________ ________________
Ct. 2214, 2217 n.2 (1995); Sac and Fox, 508 U.S. at 123. Other
___________
circuits have followed suit. See, e.g., Buzzard v. Oklahoma Tax
___ ____ _______ ____________
Comm'n, 992 F.2d 1073, 1076 (10th Cir.), cert. denied sub nom.
______ ______________________
United Keetoowah Band of Cherokee Indians v. Oklahoma Tax Comm'n,
_________________________________________ ___________________
__ U.S. __, 114 S. Ct. 55 (1993); Alaska v. Native Village of
______ _________________
Venetie, 856 F.2d 1384, 1390 (9th Cir. 1988); Indian Country,
_______ _______________
U.S.A., 829 F.2d at 973; see also United States v. South Dakota,
______ ________ ______________ ____________
665 F.2d 837, 838 n.3 (8th Cir. 1981) (applying 1151 in
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determining whether a housing project was a dependent Indian
community), cert. denied, 459 U.S. 823 (1982). It appears
_____________
manifest that we can, and should, do the same.
The State would have us conclude otherwise. First, it
calls our attention to Confederated Tribes and Bands of the
________________________________________
Yakima Nation v. County of Yakima, 903 F.2d 1207 (9th Cir. 1990),
_____________ ________________
aff'd on other grounds, 502 U.S. 251 (1992). In that case, the
_______________________
Ninth Circuit refused to apply section 1151 to the question of
whether fee patented land could be taxed by the state. The
court's refusal was based on the reality that, on its terms,
section 1151 is a criminal statute, as well as the fact that the
taxing power at issue was governed by a noncriminal federal
statutory scheme. Id. at 1215. The Yakima court made its brief
___ ______
analysis without mentioning any of the Supreme Court cases cited
above. The State looks to Yakima as support for its argument
______
that to transplant section 1151 into the civil context would go
against both the plain meaning of the statute and congressional
intent. We reject the State's suggestion that we follow the
Ninth Circuit's logic in Yakima, since to the extent that case
______
supports the conclusion that section 1151 only applies in
criminal cases,8 it directly contradicts the guidance of the
____________________
8 The parties did not discuss the fact that the Supreme Court
has affirmed and remanded the holding in Yakima, see 502 U.S. at
______ ___
251, perhaps because the Court did not directly address the Ninth
Circuit's discussion of section 1151. That section is cited only
twice in the Court's decision. It first appears, without real
comment, in the majority's summation of the Yakima Nation's
argument that section 6 of the Indian General Allotment Act of
1887 is a dead letter. 502 U.S. at 260 (citing the 1948 passage
of section 1151 with its definition of Indian country as
-17-
Supreme Court. See Chickasaw Nation, 115 S. Ct. at 2217 n.2; Sac
___ ________________ ___
and Fox, 508 U.S. at 123; Cabazon Band of Mission Indians, 480
_______ ________________________________
U.S. at 207; DeCoteau, 420 U.S. at 427; see also Pittsburg &
________ ________ ___________
Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 (10th Cir.
______________________ ________
1995) (rejecting argument that definition only applies in
criminal cases).
Second, the State delves into the Supreme Court cases
that provide that section 1151 applies in the civil context,
attempting to distinguish them from the present case, questioning
their logic and underpinnings, and concluding that the premise
that section 1151 is relevant in determining a state's civil
regulatory authority is in "serious question." We need not
address these arguments in detail. See Watchman, 52 F.3d at 1540
___ ________
n.10 (rejecting similar arguments). Aside from the fact that the
Court reiterated its reliance on section 1151 for questions of
civil jurisdiction as recently as 1995, see Chickasaw Nation, 115
___ ________________
S. Ct. at 2217 n.2, we see no reason why the Court should not
____________________
impliedly repealing section 6's jurisdictional grant). Next, in
his separate opinion, Justice Blackmun notes that the majority
conceded that section 6 can no longer be read as providing
plenary jurisdiction over Indians who reside on reservation fee
lands. 502 U.S. at 271 (Blackmun, J., concurring in part and
dissenting in part). In support of that position, he cites to
DeCoteau, 420 U.S. at 427 n.2, for the premise that the section
________
1151 definition "demarcates [the] general boundary of civil
jurisdiction of States." Id.
___
Since the Supreme Court's opinion in Yakima gives no
______
indication that the Court either agrees with the Ninth Circuit's
discussion of section 1151 or is calling its own prior statements
into doubt, and since it has subsequently reaffirmed that the
definition carries into an analysis of civil jurisdiction, see
___
Chickasaw Nation, 115 S. Ct. at 2217 n.2, we will continue to
________________
follow the Court's guidance on the application of section 1151.
-18-
seize on the definition Congress has offered of what constitutes
Indian country in the context of criminal jurisdiction to inform
its analysis of Indian country in questions of civil
jurisdiction. See Cohen's Handbook of Federal Indian Law 28
___ _________________________________________
(noting historical and statutory support for Supreme Court
application of 1151 to questions of civil jurisdiction).
3. Dependent Indian Communities
3. Dependent Indian Communities
____________________________
With the background set out and our standard of
review established, we turn to the central issue of whether the
housing site constitutes a "dependent Indian community." We note
that the question of whether land owned by an Indian tribe may
fall within a state's civil regulatory jurisdiction appears to be
one of first impression in this circuit. See Narragansett I, 878
___ ______________
F. Supp. at 352.
The inclusion of "dependent Indian communities" in the
definition of Indian country dates to Supreme Court cases from
the early part of this century. See United States v. Sandoval,
___ _____________ ________
231 U.S. 28, 46 (1913) ("[L]ong continued legislative and
executive usage and an unbroken current of judicial decisions
have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and
protection over all dependent Indian communities within its
borders . . . ."); see also United States v. McGowan, 302 U.S.
_________ _____________ _______
535, 538-39 (1938). Exactly what constitutes a "dependent Indian
community," however, has not been defined. Instead, courts
addressing the question conduct "a functional inquiry into the
-19-
nature of the community," weighing a series of factors
established by case law. Levesque, 681 F.2d at 77.
________
While we have not previously faced the precise issue
raised here, in United States v. Levesque we addressed whether a
_____________ ________
region is a dependent Indian community for the purposes of
criminal jurisdiction, framing our focus in terms of whether the
land is "both 'Indian' in character and federally dependent."
See id. at 77. In that case, we applied the factors set out by
___ ___
the Tenth Circuit in United States v. Martine, 442 F.2d 1022
______________ _______
(10th Cir. 1971), namely:
the nature of the area in question; the
relationship of the inhabitants of the
area to Indian Tribes and the federal
government, and the established practice
of government agencies toward the area.
Id. at 1023 (drawing factors from the discussion in Sandoval, 231
___ ________
U.S. at 45-49). Other cases determining whether an area
constitutes a dependent Indian community, including Tenth Circuit
decisions, have relied on additional factors introduced into the
case law by the Eighth Circuit in United States v. South Dakota,
_____________ ____________
665 F.2d 837 (8th Cir. 1981). See, e.g., Watchman, 52 F.3d at
___ ____ ________
1545 (adopting the South Dakota additions to the Martine list of
____________ _______
factors); Blatchford v. Sullivan, 904 F.2d 542, 547 (10th Cir.
__________ ________
1990), cert. denied, 498 U.S. 1035 (1991); United States v.
_____________ ______________
Azure, 801 F.2d 336, 339 (8th Cir. 1986); Housing Auth. of the
_____ _____________________
Seminole Nation v. Harjo, 790 P.2d 1098, 1100 (Okla. 1990).
________________ _____
Following their lead, we shall expand upon our discussion in
Levesque to incorporate the South Dakota factors. See Martine,
________ ____________ ___ _______
-20-
442 F.2d at 1024 (noting that additional relevant factors may be
considered).
Thus, our first factor is "whether the United States
has retained 'title to the lands which it permits the Indians to
occupy' and 'authority to enact regulations and protective laws
respecting this territory.'" South Dakota, 665 F.2d at 839
____________
(quoting Weddell v. Meirhenry, 636 F.2d 211 (8th Cir. 1980),
_______ _________
cert. denied, 451 U.S. 941 (1981)). The second South Dakota
_____________ ____________
factor encompasses the Martine factors, set out above. Id. Our
_______ ___
third consideration is "whether there is 'an element of
cohesiveness . . . manifested either by economic pursuits in the
area, common interests, or needs of the inhabitants as supplied
by that locality.'" Id. (quoting Weddell, 636 F.2d at 212-13).
___ _______
The final South Dakota factor asks "'whether such lands have been
____________
set apart for the use, occupancy and protection of dependent
Indian peoples.'" Id. (quoting Weddell, 636 F.2d at 213).
___ _______
Roughly speaking, the second and third factors weigh whether
there is, in fact, an Indian community, and the first and fourth
whether it is a dependent one. We accordingly address them in
that order, ultimately concluding that the facts reveal that the
housing site is not a dependent Indian community.
The Martine Factors
The Martine Factors
___________________
The Martine factors mandate that a court "weigh the
_______
nature of the area in question; the relationship of the
inhabitants of the area to Indian Tribes and the federal
government, and the established practice of government agencies
-21-
toward the area." Martine, 442 F.2d at 1023. These
_______
considerations support the Tribe's contention by demonstrating
that the housing site is a community.
First, as the district court noted, the BIA has
recognized the housing site is in an area "in which 'a distinct
[Indian] community has existed since earliest European contact.'"
Narragansett I, 878 F. Supp. at 536 (quoting BIA Internal
_______________
Memorandum on Acknowledgement of Narragansett Indian Tribe, July
1982, at 9). While we recognize that fact, however, we also note
that it cannot be doubted that the Settlement Act extinguishes
all claim to aboriginal title to the housing site. See 25 U.S.C.
___
1705(a)(3). This factor, then, does not weigh in favor of the
Tribe. In contrast, we do not doubt that there will be a
significant relationship between the inhabitants of the housing
site and the Tribe: indeed, the entire point of the project is
to establish housing for Tribe members and to serve as "a means
of bringing the Narragansetts back together." Narragansett I,
______________
878 F. Supp. at 356. This weighs in favor of the Tribe.
Further, some relationship has been established between
the federal government, in the form of HUD, IHS, and the BIA, and
the housing site. HUD financed the purchase of the housing site,
and recognizes the WHA as an Indian Housing Authority. It will
provide monies for the management of the project and subsidize
the occupants' rent, all pursuant to a program "specifically
designed to provide housing for Indians." Narragansett I, 878 F.
______________
Supp. at 354; see South Dakota, 665 F.2d at 840 (remarking upon
___ ____________
-22-
similar governmental activity as showing "[f]ederal concern for
the [housing] project"). The district court noted that the fact
that there is a relationship between HUD and the community "is
underscored by the evidence that many of the occupants will
participate in nutrition, education and job training programs
subsidized by the federal government and administered by the
Tribe on the adjacent settlement lands." Narragansett I, 878 F.
______________
Supp. at 357. However, we note that, as we find below, while a
relationship exists to the extent that these federal entities are
active in the housing site, their actions do not rise the level
of setting apart the land for the use, occupancy, and protection
of dependent Indian peoples.
Cohesiveness
Cohesiveness
____________
We next weigh whether there is an element of
cohesiveness in the community, as demonstrated by economic
pursuits, common interests, or the needs of the inhabitants. See
___
Weddell, 636 F.2d at 211 (noting that these elements are more
_______
important than density of population, percentage of Indian
residents, or the history and background of the area). Certainly
this factor weighs in favor of finding this a dependent Indian
community: the project will help the Tribe supply housing to its
elderly and low-income members.9 Further, the housing site is
in close proximity to the Tribe's church, the seat of the Tribal
____________________
9 The fact that occupancy is actually open to anyone, pursuant
to HUD regulations, does not bar finding this a dependent Indian
community. See South Dakota, 665 F.2d at 842 ("The fact that a
___ ____________
small number of non-Indians reside at the project does not defeat
a finding of a dependent Indian community.").
-23-
Assembly, the offices of the tribal government and the
administration of federal programs -- in short, it is indeed
close to the "center of tribal government, culture and religious
life." Narragansett I, 878 F. Supp. at 356. Nonetheless, the
______________
fact that the housing will be predominantly Indian in character
is not enough, by itself, to establish the presence of a
dependent Indian community. See Blatchford, 904 F.2d at 549
___ __________
(noting that fact that "Indians constituted the bulk of the
population and gave the area a distinctly Indian character does
not convert the community into a dependent Indian community");
Martine, 442 F.2d at 1024 (holding that "[t]he mere presence of a
_______
group of Indians in a particular area" does not make it a
dependent Indian community).
Title and Authority
Title and Authority
___________________
We turn now to the South Dakota factors which focus on
____________
whether the community is in fact a dependent one. First, we ask
whether the United States retains title to the housing site and
the authority to enact regulations and laws. As noted above, the
federal government does not in fact hold title; rather, the
housing site is held by the Tribe, who has leased the land to the
WHA, in a lease approved by the BIA. While the Tribe has applied
for trust status, as the record stands, that status has not been
granted. The fact that the Tribe, not the government, owns the
land does not preclude a finding that the housing site is a
dependent Indian community. See Sandoval, 231 U.S. at 48
___ ________
(rejecting the argument that Pueblo Indians holding fee simple
-24-
title to lands precludes the lands from being Indian country);
Martine, 442 F.2d at 1023 (finding that lands purchased by Navajo
_______
Tribe from third party, located in an area which is "a patchwork
of land, some of which is owned by the Navajo Tribe, some of
which is not" and which is not within a reservation, was a
dependent Indian community); cf. Indian Country, U.S.A., 829 F.2d
___ ______________________
at 975 (noting that patented fee title does not preclude finding
territory is a reservation where fee title to the disputed area
had passed to the Creek Nation by federal treaty). Nonetheless,
this must weigh against the Tribe. See Blatchford v. Sullivan,
___ __________ ________
904 F.2d 542 (10th Cir. 1990) (considering, inter alia, fact that
__________
private owner held land in determining that land was not
dependent Indian community, although it was surrounded by Navajo
allotment land); Weddell, 636 F.2d at 213 (noting, inter alia,
_______ __________
that although land was within the exterior boundaries of the
original Yankton Sioux Indian Reservation, it was privately held,
and finding that the land was not a dependent Indian community
for purposes of criminal jurisdiction).
The second part of this factor focuses upon the very
issue in dispute here: who has the authority to enact
regulations and laws. The State's authority will be determined
by our decision here. As for the federal government, the record
indicates that it has exercised authority in the form of HUD,
IHS, and BIA activity, regulations and financing. Of course,
HUD, at least, can provide financing and set regulations in
other, non-Indian contexts. The record does not address whether
-25-
there is more extensive federal regulation here by HUD than in
any other HUD assisted, non-Indian project. Since this factor is
largely determined by our decision today, we find it weighs
neither for nor against the Tribe.
Whether the Lands Have Been Set Apart
Whether the Lands Have Been Set Apart
_____________________________________
The last factor we address is whether the housing site
has been set apart by the federal government for the use,
occupancy, and protection of dependent Indian peoples. This
proves to be the crucial factor in our discussion. See Levesque,
___ ________
681 F.2d at 77 (noting that this is the "ultimate issue" in the
factual analysis).
[T]he test for determining whether land
is Indian country does not turn upon
whether that land is denominated "trust
land" or "reservation." Rather, we ask
whether the area has been "'validly set
apart for the use of the Indians as such,
under the superintendence of the
Government.'"
Citizen Band Potawatomi Indian Tribe, 498 U.S. at 511 (quoting
_____________________________________
United States v. John, 437 U.S. 634, 648-49 (1978)); see Sac and
_____________ ____ ___ ________
Fox, 113 S. Ct. at 1991; Cohen's Handbook of Federal Indian Law
___ _______________________________________
34 ("[T]he intent of Congress, as elucidated by [Supreme Court
decisions], was to designate as Indian country all lands set
aside by whatever means for the residence of tribal Indians under
federal protection, together with trust and restricted Indian
allotments."). Indeed, the Tenth Circuit regards this factor as
a sufficient measure of whether land is Indian country. See
___
Buzzard, 992 F.2d at 1076 (noting the existence of 1151, but
_______
applying only the "set apart for the use of Indians" test in
-26-
determining whether land was Indian country).
The district court found that the housing site met this
factor's criteria.
Although the United States does not hold
title to the land and did not vest
control over it in the Tribe, HUD has, in
a manner of speaking, set the land apart
for occupancy by elderly and low-income
members pursuant to a need recognized
both by HUD and the Tribe.
Narragansett I, 878 F. Supp. at 356. For the reasons discussed
______________
below, we disagree.
Our first question must be what constitutes setting
land apart. As with the concept of dependent Indian communities,
there is no established definition. Having surveyed the case
law, however, we agree with the Tenth Circuit's suggestion that
"land is 'validly set apart for the use of Indians as such' only
if the federal government takes some action indicating that the
land is designated for use by Indians." Buzzard, 992 F.2d at
_______
1076 (quoting Citizen Band Potawatomi Indian Tribe, 498 U.S. at
_____________________________________
649 (quoting John, 437 U.S. at 649)). In other words,
____
"[s]uperintendence by the federal government, and the
consequential political dependence on the part of the tribe,
exists for purposes of section 1151(b) where the degree of
congressional and executive control over the tribe is so
pervasive as to evidence an intention that the federal
government, not the state, be the dominant political institution
in the area." Native Village of Venetie, 1995 WL 462232, at *14.
_________________________
We do not find evidence of such control here.
-27-
Were the land placed in trust with the United States,
this factor would have been met. Taking land in trust is a
considered evaluation and acceptance of responsibility indicative
that the federal government has "set aside" the lands.
[T]rust land is set apart for the use of
Indians by the federal government because
it can be obtained only by filing a
request with the Secretary of the
Interior, who must consider, among other
things, the Indian's need for the land,
and the purposes for which the land will
be used. If the request is approved,
then the United States holds the land as
trustee. . . .
. . . In addition, before agreeing to
acquire trust land, the Secretary must
consider several factors including the
authority for the transactions, the
impact on the state resulting from the
removal of the land from the tax rolls,
and jurisdictional problems that might
arise.
Buzzard, 992 F.2d at 1076 (citations omitted). Additionally,
_______
counsel for the Tribe admitted at oral argument that had the land
been taken into trust by the United States, the issue of civil
and criminal jurisdiction would have been addressed. The
considerations made in the trust process demonstrate that "when
the federal government agrees to hold land in trust, it is
prepared to exert jurisdiction over the land." Id.
___
Indeed, we note that in three of the four cases we have
found where a court held that a housing project constituted a
dependent Indian community, the land was held in trust, with the
participation of HUD and an Indian housing authority. See United
___ ______
States v. Driver, 945 F.2d 1410, 1415 (8th Cir. 1991), cert.
______ ______ _____
denied, 502 U.S. 1109 (1992); South Dakota, 665 F.2d at 839;
______ ____________
-28-
Mound, 447 F.2d at 158. In the fourth, Housing Authority of the
_____ _________________________
Seminole Nation v. Harjo, Josephine Harjo inherited a restricted
_______________ _____
Indian allotment from her husband, also a Tribe member. In 1973
she partitioned four tracts from the larger tract and deeded them
to the Seminole Housing Authority, as part of a federally-funded
program whereby Harjo would make payments each month and, in
seventeen years, would own the house and the land. Although the
United States did not have title to the deeded lands, it
continued its "superintendence" of the property for the seventeen
years of the program, a role evident in the comprehensive federal
regulations governing the program. 790 P.2d at 1101. Thus the
court found that the government "controls virtually every
foreseeable legal consideration touching the property until the
[program] runs its course or sooner terminates." Id. at 1102.
___
Although HUD regulations apply in the present case as well, the
Tribe has pointed to no such comprehensive superintendence.
Further, although the lands in Harjo were not held in trust, they
_____
were not purchased from third parties, as in the present case.
Instead, they were originally part of Harjo's restricted Indian
allotment, and the portions of the allotment she did not use
remained restricted, a much closer link to government control
then the Tribe demonstrates here.
In fact, we note that, aside from Harjo, the vast
_____
majority of cases we have found which analyze what constitutes a
dependent Indian community since 1151(b) was enacted find there
is such a community if the land is held in trust, Driver, 945
______
-29-
F.2d at 1415; Azure, 801 F.2d at 339; South Dakota, 665 F.2d at
_____ ____________
839; Mound, 477 F. Supp. at 158; or as settlement lands,
_____
Youngbear v. Brewer, 415 F. Supp. 807, 809 (N.D.Iowa 1976),
_________ ______
aff'd, 549 F.2d 74 (8th Cir. 1977). Similarly, in Levesque, we
_____ ________
found a dependent Indian community where the land was held by a
newly recognized Indian tribe as part of their reservation.
Levesque, 681 F.2d at 78. On the other hand, we note that in
________
most of the cases we found where land was privately held, even if
by a tribe, the courts found there was not a dependent Indian
community. See Buzzard, 992 F.2d at 1075 (involving land
___ _______
purchased by tribe); Blatchford, 904 F.2d at 548 (addressing
__________
privately held land surrounded by Navajo allotment land);
Weddell, 636 F.2d at 213 (involving independent municipal
_______
corporation on former Indian reservation); United States v.
______________
Oceanside Okla., Inc., 527 F. Supp. 68, 69 (W.D.Okla. 1981)
______________________
(addressing land held in fee by non-Indians); Native Village of
__________________
Venetie, 1995 WL 462232, at *15 (after settlement act
_______
extinguished aboriginal claims, fee held by Native Village of
Venetie Tribal Government). But see Martine, 442 F.2d at
________ _______
1023.10 Thus the facts that the housing site is not held in
____________________
10 We note that in its brief discussion in Martine, the Tenth
_______
Circuit did not consider whether the lands had been "set apart."
442 F.2d at 1023-24. Later decisions in that circuit, however,
have incorporated the South Dakota factors in their analysis.
____________
See Watchman, 52 F.3d at 1545 (adopting the South Dakota
___ ________ _____________
additions to the Martine list of factors); see also Blatchford,
_______ ________ __________
904 F.2d at 544-49 (discussing development of the case law and
conducting factual analysis). Indeed, in Buzzard, the court
_______
relied solely on the "validly set apart" definition of Indian
country, eschewing analysis under section 1151. Buzzard, 992
_______
F.2d at 1076-77.
-30-
trust or as settlement lands, and that the federal government
does not exercise some similar level of control over the land,
weigh against the Tribe.
The Tenth Circuit's analysis in Buzzard v. Oklahoma Tax
_______ ____________
Commission also weighs against finding the housing site meets the
__________
"set apart" requirement. In Buzzard, as here, the Indian tribe
_______
unilaterally purchased the lands in dispute, and held title to
them in fee simple. Instead of housing, it set up commercial
smokeshops on the land. The tribe claimed that the land was
Indian country because it had been set apart by the federal
government for the use of the Indians. In support of its
position, it pointed to a clause in its charter and in 25 U.S.C.
177 providing that land owned by a tribe cannot be disposed of
without the approval of the Secretary of the Interior -- a
restraint on alienation that the Tribe acknowledges applies here
as well. The Buzzard court rejected the tribe's argument,
_______
finding that a restriction on alienation by itself is
insufficient to make the land Indian country.
If the restriction against alienation
were sufficient to make any land
purchased by the [tribe] Indian country,
the [tribe] could remove land from state
jurisdiction and force the federal
government to exert jurisdiction over
that land without either sovereign having
any voice in the matter. Nothing in
McGowan or the cases concerning trust
_______
land indicates that the Supreme Court
intended for Indian tribes to have such
unilateral power to create Indian
country.
992 F.2d at 1076. Of course, in the present case we have an
-31-
additional element: HUD and BIA financial assistance and
supervision of a housing project that is more clearly tied to the
community's benefit than the smokeshops in Buzzard. Nonetheless,
_______
the court's concern in Buzzard with unilateral creation of Indian
_______
country remains a valid one in this case as well.
Ultimately, as in Buzzard, we find that the federal
_______
role in the WHA project is simply not sufficient to establish
that the housing site was "set apart" by the federal government.
Our analysis of the facts here, as well as the facts other courts
have found determinative in deciding whether land has been "set
apart," leads us to conclude that the district court's holding
that the housing site had been set apart constituted an abuse of
its discretion. See Planned Parenthood League of Mass. v.
___ _____________________________________
Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) (noting that
________
"'misapplication of the law to particular facts is an abuse of
discretion.'" (quoting Charles v. Carey, 627 F.2d 772, 776 (7th
_______ _____
Cir. 1980)).
We conclude that without this final factor being in
place, we cannot find that the housing site is a dependent Indian
community. See Levesque, 681 F.2d at 77 (stating that "whether
___ ________
the area was established for the use, occupancy and protection of
dependent Indians" is the "ultimate issue" in our fact-based
inquiry). While the first two factors we addressed support the
Tribe's contention that the housing site is a community of
Indians, the second two demonstrate that it is not a "dependent"
one. Without federal ownership of the land, as required in the
-32-
first South Dakota factor, or federal action sufficient to "set
_____________
aside" the land, as required in the fourth, we cannot find on
these facts that the "dependent" aspect of the concept of a
dependent Indian community has been established. See United
___ ______
States v. Adair, 913 F. Supp. 1503, 1515 (E.D.Okla. 1995)
______ _____
("Although the government's retention of title . . . or
government title in trust for an Indian tribe, does not in and of
itself establish an area as a "dependent Indian community . . . ,
without such title, consideration of the other . . . factors
should be unnecessary."); Native Village of Venetie, 1995 WL
___________________________
462232, at *13 (noting that the question of whether there is
federal superintendence "brings into play the 'dependent'
component").
Put simply, it is too far a stretch to regard the
government agency funding and oversight here as evidencing a
federal intent to give the tribe presumptive sovereignty over the
housing site by making it Indian country.11 It seems
implausible that a tribe could obtain a valid claim to Indian
country -- and thus presumptive sovereignty rights -- over
theretofore privately-held lands just by purchasing them and
obtaining financial and other assistance from the government for
their development, without any opportunity for involvement by the
state, any negotiated agreements with respect to jurisdiction
____________________
11 Indeed, outside of the context of tribal disputes, the
granting of a HUD subsidy to a housing project would not be
viewed as evidence of a federal intention to preempt the
operation of all other state laws.
-33-
over the land, or considered analysis by the federal government
such as the one described for the placement of lands in trust.
Viewed more reasonably, the federal action here at best evidences
an intent to assist in the development of affordable housing for
use by Tribe members, without necessarily incurring a commitment
to exercise jurisdiction and "superintendence" over all
activities on that land, whether related to housing or not, to
the presumptive exclusion of state laws.
CONCLUSION
CONCLUSION
For the above reasons, we hold that the district
court's denial of the request for a permanent injunction insofar
as it was based on the plaintiffs' failure to comply with the
requirements of any State regulations promulgated pursuant to the
Historic Preservation Act, the Clean Water Act, the Safe Drinking
Water Act and those provisions of the Rhode Island building code
and Charlestown Zoning Ordinance is reversed, and the district
reversed
________
court shall enter an order granting the injunction. The district
court's grant of the request for a permanent injunction of
plaintiffs from occupying or permitting occupation of any
buildings constructed or to be constructed on the housing site
unless and until all applicable requirements of Rhode Island's
Coastal Resources Management Program have been satisfied and from
interfering with the drainage easement previously conveyed to the
Town of Charlestown is affirmed.
affirmed
________
-34-
