Carcieri v. Kempthorne

United States Court of Appeals
For the First Circuit

No. 03-2647

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 of America,
and TOWN OF CHARLESTOWN, RHODE ISLAND,

Plaintiffs, Appellants,

v.

GALE A NORTON, in her capacity as Secretary
of the Department of the Interior,
United States of America, and FRANKLIN KEEL,
in his capacity as Eastern Area Director of the
Bureau of Indian Affairs, within the Department of the
Interior, United States of America,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Circuit Judge,
Howard, Circuit Judge,
and DiClerico, Jr.,* District Judge.

Joseph S. Larisa, Jr., Assistant Solicitor for Indian Affairs,
was on brief, for appellant Town of Charlestown.
Claire J. Richards, Special Counsel, was on brief, for
appellant Governor Donald L. Carcieri.

*
Of the District of New Hampshire, sitting by designation.
 Neil F.X. Kelly, Assistant Attorney General, with whom,
Patrick C. Lynch, Attorney General, were on brief, for appellant
State of Rhode Island.
Thomas L. Sansonetti, Assistant Attorney General, with whom
Jeffrey Bossert Clark, Deputy Assistant Attorney General, Mary Anne
Kenworthy, Office of the Solicitor, U.S. Department of the
Interior, William B. Lazarus, Judith Rabinowitz, David C. Shilton
and Elizabeth Ann Peterson, Attorneys, Environmental and Natural
Resources Division, U.S. Department of Justice, were on brief, for
the federal appellees.
Riyaz A. Kanji, with whom Kanji & Katzen, PLLC, Tracy Labin,
Richard Guest, of the Native American Rights Fund, Ian Heath
Gershengorn, Sam Hirsch, Jenner & Block LLP, and John Dossett of
the National Congress of American Indians, were on brief, for the
amici curiae National Congress of American Indians, Individual
Indian Tribes, and Tribal Organizations.
Larry Long, Attorney General for the State of South Dakota,
with whom John P. Guhin, Deputy Attorney General, Richard
Blumenthal, Attorney General for the State of Connecticut, with
whom Susan Quinn Cobb, Assistant Attorney General, Mark L.
Shurtleff, Attorney General for the State of Utah, Phill Kline,
Attorney General for the State of Kansas, Lawrence G. Wasden,
Attorney General for the State of Idaho, Gregg D. Renkes, Attorney
General for the State of Alaska, William H. Pryor, Jr., Attorney
General for the State of Alabama, Jeremiah W. (Jay) Nixon, Attorney
General for the State of Missouri, William H. Sorrell, Attorney
General for the State of Vermont, Wayne Stenehjem, Attorney General
for the State of North Dakota, were on brief, for the amici curiae
States of Alabama, Alaska, Connecticut, Idaho, Kansas, Missouri,
North Dakota, South Dakota, Utah and Vermont.
Stephen P. Collette, with whom Stephen P. Collette & Assocs.,
was on brief, for the amicus curiae National Coalition Against
Gambling Expansion.
C. Bryant Rogers, with whom Roth, VanAmberg, Rogers, Ortiz &
Yepa, LLP, Charles A. Hobbs, and Hobbs, Straus, Dean & Walker, LLP,
were on brief, for the amicus curiae Mississippi Band of Choctaw
Indians.

February 9, 2005

-2-
 TORRUELLA, Circuit Judge. 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")1 for the benefit of the Narragansett Indian

Tribe of Rhode Island. Plaintiffs-appellants Donald L. Carcieri,

Governor of Rhode Island, the State of Rhode Island, and the Town

of Charlestown, Rhode Island ("the State") brought suit against

defendants-appellees Gale A. Norton, Secretary of the United States

Department of the Interior, and Franklin Keel, Eastern Area

Director, Bureau of Indian Affairs, U.S. Department of the Interior

("the Secretary") seeking to enjoin the decision as 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 for alleged

violations of various provisions of the United States Constitution.

The parties issued cross-motions for summary judgment and the

district court denied the State's motion and granted the

Secretary's motion. The State now appeals the district court's

grant of summary judgment in favor of the Secretary.

I. Background

The Narragansetts were aboriginal inhabitants of what is

now Rhode Island. See Narragansett Indian Tribe v. Nat'l Indian

1
The parcel is known as Assessor's Plat 117, Lot 119 of
Charlestown, Rhode Island.

-3-
Gaming Comm'n, 158 F.3d 1335, 1336 (D.C. Cir. 1998) (citing

William G. McLoughlin, Rhode Island 4-5, 9-10 (1978)). In 1975,

the Narragansetts instituted two suits against the State of Rhode

Island, the Town of Charlestown and individual landowners to

recover 3200 acres of land in Charlestown. Narragansett Tribe of

Indians v. Southern R.I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I.

1976); Narragansett Tribe of Indians v. Murphy, 426 F. Supp. 132

(D.R.I. 1976). The Tribe asserted that its aboriginal title to the

land had not been extinguished because each of the defendants

traced his title back to an unlawful alienation of tribal land in

violation of the Trade and Intercourse Act of 1790, 25 U.S.C.

§ 177, due to the lack of congressional approval of the sale. See

S. R.I. Land Dev. Corp., 418 F. Supp. at 802-3 (recounting the

history of the dispute).

A. The Settlement Agreement

On February 28, 1978 the parties settled the lawsuits by

entering an agreement, the terms of which were set out in a Joint

Memorandum of Understanding ("JMOU") signed by the State, the

Tribe, the Town and others. See State v. Narragansett Indian

Tribe, 19 F.3d 685, 689 (1st Cir. 1993); H.R. Rep. No. 95-1453, at

25 (1978), reprinted in 1978 U.S.C.C.A.N. 1948. In the JMOU the

State agreed to provide 900 acres of land to the Narragansetts, and

the parties agreed that the federal government would provide $3.5

-4-
million for the acquisition of an additional 900 acres.2 The

resulting 1800 acres were to be held in trust for the benefit of

the tribe by a state-chartered entity, the Narragansett Indian Land

Management Corporation, which was created for this purpose. The

parties further agreed "[t]hat Federal legislation shall be

obtained that eliminates all Indian claims of any kind, whether

possessory, monetary or otherwise, involving land in Rhode Island,

and effectively clears the titles of landowners in Rhode Island of

any such claim." JMOU para. 6; H.R. Rep. No. 95-1453, at 25, 26;

see also 25 U.S.C. § 1708. In addition, the parties agreed that

"except as otherwise specified in this Memorandum, all laws of the

state of Rhode Island shall be in full force and effect on the

Settlement Lands, including but not limited to state and local

building, fire and safety codes." JMOU ¶ 13; H.R. Rep. No. 95-

1453, at 26; see also 25 U.S.C. § 1708.

Subsequently, both the United States Congress and the

Rhode Island General Assembly enacted the required implementing

legislation. Rhode Island Indian Claims Settlement Act, 25 U.S.C.

§ 1701 et seq. (2000) (effective September 30, 1978) ("the

Settlement Act"); R.I. Gen. Laws §§ 37-18-1 to 37-18-15 (1997)

(effective 1979).

2
These federal funds were authorized and appropriated in 1978 and
the 900 acres of land was subsequently purchased. 25 U.S.C.
§§ 1702(d), 1703, 1704, 1707, 1710 (1978).

-5-
 At the time of its lawsuits, the Narragansett community

was not a federally recognized tribe; rather, it was incorporated

as a Rhode Island nonbusiness corporation known as the Narragansett

Tribe of Indians. In 1983, the Secretary formally acknowledged the

Narragansett Tribe as a federally recognized tribe. Final

Determination for Federal Acknowledgment of Narragansett Indian

Tribe of Rhode Island, 48 Fed. Reg. 6177 (Feb. 2, 1983).

In 1985, the State transferred the Settlement Lands to

the Tribe, and the state-chartered Narragansett Indian Land

Management Corporation that had held the land in trust on behalf of

the tribe was dissolved. 6A R.I. Gen. Laws 37-18-12 to 18-14.

Then, in 1988, following application by the Tribe, the Settlement

Lands were taken into trust by the federal government pursuant to

section 5 of the Indian Reorganization Act ("IRA"), enacted

June 18, 1934, ch. 576, § 5, codified as 25 U.S.C. § 465 (2004).

The deed transferring the Settlement Lands to the Bureau of Indian

Affairs ("BIA") expressly recognized that this transfer into trust

"does not alter the applicability of state law conferred by the

Rhode Island Indian Land Claims Settlement Act." In addition, this

court has held, with some exceptions, that the Settlement Act

allows State civil and criminal jurisdiction over the Settlement

Lands, although the Tribe has "concurrent jurisdiction over, and

exercise[s] governmental power with respect to, those lands."

Narragansett Elec. Co., 89 F.3d at 913 (quoting Rhode Island v.

-6-
Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir. 1994)

(holding that the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-

2721, 18 U.S.C. §§ 1166-1168, applies to the Settlement Lands)).

B. The Parcel

The 31-acre Parcel that is the subject of this dispute

was part of the 3200 acres that were claimed by the Tribe in the

1976 lawsuits, but the Parcel did not become part of the 1800 acres

of Settlement Lands. Carcieri v. Norton, 290 F. Supp. 2d 167, 170

(D.R.I. 2003). The Parcel is adjacent to the Settlement Lands, but

separated from them by a town road. Id. (citing Narragansett

Indian Tribe of R.I. v. Narragansett Elec. Co., 89 F.3d 908, 911

(1st Cir. 1996)). In 1991, the Parcel was purchased from a private

developer by the Narragansett Indian Wetuomuck Housing Authority

(the "WHA") for the purpose of constructing a housing complex. Id.

The United States Department of Housing and Urban Development

("HUD") recognized the WHA as an Indian Housing Authority and

provided the financing for the purchase of the Parcel and

construction of approximately fifty housing units on the site. Id.

The HUD funds were provided pursuant to the Indian Housing Act of

1988, 42 U.S.C. §§ 1437aa-ee, which was subsequently repealed by

the Native American Housing Assistance and Self-Determination Act

of 1996, Pub. L. No. 104-330, 110 Stat. 4016 (codified as 25 U.S.C.

§§ 4101-4243 (2004)).

-7-
 In 1992, the WHA 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. Carcieri, 290 F. Supp. 2d at 171 (citing

Narragansett Elec. Co., 89 F.3d at 911).

The Tribe and the WHA commenced construction of the

housing project without obtaining a building permit from the town

or the state's approval of the individual sewage disposal systems

serving the project. Narragansett Elec. Co., 89 F.3d at 912. As

a result, the State of Rhode Island and Town of Charlestown sought

injunctive relief prohibiting the Narragansetts and the WHA from

constructing the housing complex without obtaining the proper

permits and approvals. Narragansett Indian Tribe v. Narragansett

Elec. Co., 878 F. Supp. 349 (D.R.I. 1995). The District Court

found the proposed housing project detrimental to coastal and

groundwater resources, but also held that the Parcel was a

"dependent Indian community" within the meaning of 18 U.S.C. § 1151

(b) and therefore denied injunctive relief. Id. at 355-57. On

appeal this court held that the land for the housing project was

not a "dependent Indian community," because it lacked federal

ownership of the land and lacked federal action to "set aside" the

land. Narragansett Elec. Co., 89 F.3d at 914. Thus, the Parcel

could not be considered Indian country under 18 U.S.C. § 1151, and

therefore the housing project being constructed on the site was not

-8-
exempt from state and local building and zoning restrictions.

Accordingly, this court reversed the district court and directed

the district court to enter an order granting the injunction. Id.

at 922.

C. The Current Dispute

The Indian Reorganization Act of 1934 authorizes the

Secretary of the Interior to acquire lands in trust "for the

purpose of providing land for Indians." 25 U.S.C. § 465. The

Tribe initially applied to have the United States take the 31-acre

Parcel into trust in 1993. However, this application was held in

abeyance while the Narragansett Elec. Co. litigation was pending.

In 1997, after the resolution of Narragansett Elec. Co. by this

court in 1996, the Tribe submitted a second, updated application to

the Eastern Area Office of the BIA requesting trust acquisition of

the Parcel. On March 6, 1998, the BIA informed the Tribe of its

decision to approve the Tribe’s application for trust acquisition

of the Parcel. Letter from Franklin Keel, Eastern Area Director,

BIA, to Matthew Thomas, Chief Sachem, Narragansett Indian Tribe

(Mar. 6, 1998). In April 1998, the State and Town each appealed

the decision to the Interior Board of Indian Appeals (the "IBIA").

On June 29, 2000, the IBIA affirmed the BIA's decision to take the

land into trust. Town of Charlestown v. E. Area Dir., Bureau of

Indian Affairs, IBIA 98-88-A and 98-89-A, 35 IBIA 93 (2000).

-9-
 As the district court noted, the IBIA rejected the

State's and Town's challenges to several determinations made by the

BIA in accepting the Parcel into trust.

Specifically, the board concluded that the
Settlement Act did not prohibit the secretary
from acquiring lands other than the settlement
lands into trust for the benefit of the
Narragansetts. 35 IBIA 100-101. Also, the
board rejected plaintiffs' argument that the
BIA, either in all trust acquisition
proceedings, or in view of the specific
circumstances surrounding the tribe's trust
application, was required to consider the
possible use of the parcel for gaming purposes
under the Indian Gaming Regulatory Act ("the
IGRA"), 25 U.S.C. § 2701 et. seq., and to
impose a restriction precluding such use. 35
IBIA at 101-103.

Carcieri, 290 F. Supp. 2d at 172. The IBIA further concluded that

the BIA was not required to prepare a federal consistency

determination for the proposed housing project as a prerequisite to

trust acquisition of the Parcel, and therefore the BIA did not

violate the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.

35 IBIA at 104-105.

The State then filed an action against the Secretary

seeking reversal of the Secretary's decision and declaratory and

injunctive relief. In a detailed opinion, the district court

granted summary judgment on behalf of the Secretary, upholding the

decision to take the Parcel into trust.

The State now appeals to this court. The State alleges

that (1) the Secretary did not have the authority under the IRA to

-10-
acquire the land in trust for the benefit of the Narragansetts; (2)

the IRA constitutes an unlawful delegation of congressional

authority and offends the Enclave Clause, the Admissions Clause,

and the Tenth Amendment of the Constitution; (3) the Rhode Island

Indian Land Claims Settlement Act of 1978 prohibits the creation of

sovereign territory for the Narragansetts in Rhode Island; and (4)

the Secretary's acceptance of the Parcel into trust was arbitrary,

capricious, and an abuse of discretion in violation of the APA

and/or otherwise not in accordance with the law.

II. Analysis

A grant of summary judgment is appropriate when the

evidence before the court shows that "that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. Fed. R. Civ. P. 56(c)."

Seaboard Surety Co. v. Greenfield Middle Sch. Bldg. Comm., 370 F.3d

215, 218 (1st Cir. 2004). In ruling on a motion of summary

judgment, a court must view "the facts in the light most favorable

to the non-moving party, drawing all reasonable inferences in that

party's favor." Barbour v. Dynamics Research Corp., 63 F.3d 32, 36

(1st Cir. 1995) (citation omitted). An issue is "genuine" for

purposes of summary judgment if "the evidence is such that a

reasonable jury could return a verdict for the nonmoving party,"

and a "material fact" is one which "might affect the outcome of the

suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8

-11-
F.3d 88, 90 (1st Cir. 1993) (quoting Anderson v. Liberty Lobby,

Inc., 447 U.S. 242, 248 (1986)). The standards are the same where,

as here, both parties have moved for summary judgment. Bientkowski

v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir. 2002) (citing

Charles Alan Wright, et al., Federal Practice and Procedure § 2720,

at 335-36 (3d ed. 1998)).

We review the district court's grant of summary judgment

de novo, and we may affirm the district court's decision on any

sufficient ground supported by the record. Rodríguez v. Smithkline

Beecham, 224 F.3d 1, 5 (1st Cir. 2000).

Our review of the Secretary's decision to take the Parcel

into trust is governed by § 706(2) of the Administrative Procedures

Act, which provides that the reviewing court shall:

hold unlawful and set aside agency action,
findings, and conclusions found to be–-
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right;
(D) without observance of procedure required
by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of
an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by
the reviewing court.
In making the foregoing determinations, the
court shall review the whole record or those
parts of it cited by a party, and due account

-12-
 shall be taken of the rule of prejudicial
error.

5 U.S.C. § 706(2).

A. The Secretary's Authority to accept the Parcel into trust

The State asserts that the Secretary lacked statutory

authority to take the Parcel into trust under the IRA, 25 U.S.C.

§ 465, because the Narragansett Indian Tribe is not entitled to the

IRA's benefits. Under the IRA, "[t]he Secretary of the Interior is

authorized, in his discretion, to acquire . . . any interest in

lands, . . . including trust or otherwise restricted allotments

. . . for the purpose of providing land for Indians." 25 U.S.C.

§ 465. The IRA defines the term "Indian" as:

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 . . . .

25 U.S.C. § 479 (emphasis added). The State argues that the term

"now" in § 479 should be read as meaning "June 1934" and not

"today." Thus, the state suggests that a two-prong test must be

met for a tribe to be entitled to the benefits of § 465 of the IRA:

unless the tribe was both (1) recognized and (2) under federal

jurisdiction in 1934, the State would have us find that the

Secretary is not allowed to take the State land into trust for the

benefit of the tribe. Since the Narragansett Tribe was neither

-13-
federally recognized, nor under federal jurisdiction in June of

1934 when the IRA was enacted, the State argues that the Tribe is

not entitled to the benefits of the IRA. We disagree, and find

that the Secretary's authority under the IRA extends to the

Narragansett Tribe, regardless of the status of its acknowledgment

in 1934.

The Narragansett Indian Tribe was acknowledged by the

Department of the Interior in 1983. In acknowledging the

Narragansett Tribe, the Department stated that "the Narragansett

community and its predecessors have existed autonomously since

first contact, despite undergoing many modifications." Final

Determination for Federal Acknowledgment of Narragansett Indian

Tribe of Rhode Island, 48 Fed. Reg. 6177, 6178 (Feb. 10, 1983).

Indeed, the government's formal acknowledgment noted that "[t]he

tribe has a documented history dating from 1614." Id.

We find that the Department of the Interior's

longstanding interpretation of the term "now" in the statute should

be accorded particular deference. See North Haven Bd. of Ed. v.

Bell, 456 U.S. 512, 522, n.12 (1982) ("In construing a statute,

this Court normally accords great deference to the interpretation,

particularly when it is longstanding, of the agency charged with

the statute's administration."); NLRB v. Bell Aerospace Co., 416

U.S. 267, 274-75 (1974) ("a court may accord great weight to the

longstanding interpretation placed on a statute by an agency

-14-
charged with its administration"); Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367, 381 (1969) ("the construction of a statute by

those charged with its execution should be followed unless there

are compelling indications that it is wrong."). For seventy years

the Department of the Interior has read "now" in Section 479 as

meaning "today" rather than "1934." Thus, to change this reading

of the statute here would impact scores of trusts created for the

benefit of Indians over the last 70 years.

The State relies on two cases involving the unique

circumstances of the Mississippi Choctaw Indians to support its

reading of the IRA, United States v. John, 437 U.S. 634, 650

(1978); United States v. State Tax Comm'n, 505 F.2d 633, 642 (5th

Cir. 1974). Neither of these cases sufficiently supports the

State's conclusion.

The Mississippi Choctaws' tribal status was extinguished

in 1831 by the United States Senate's ratification of the Treaty of

Dancing Rabbit Creek. Carcieri 290 F. Supp. 2d at 180 (citing

State Tax Comm'n, 505 F.2d at 640-43). After that time, the

Choctaws did not maintain a tribal organization or manner of

living. Thus, in 1934, when the IRA was enacted, "the band was not

a tribe as defined by the IRA." Id. The Fifth Circuit therefore

found that the IRA of 1934 did not include the Mississippi

Choctaws, and that even a 1944 Proclamation by the Department of

Interior which "purported to recognize the tribal organization of

-15-
the Mississippi Band of Choctaw Indians," could not cure the Act's

omission. State Tax Comm'n, 505 F.2d at 642-43.

However, just two years later, the Supreme Court

disagreed with the Fifth Circuit and held in United States v. John

that the IRA of 1934 does apply to the Mississippi Choctaws. The

Supreme Court's reasoning was as follows:

The Court of Appeals and the Mississippi
Supreme Court held, and the State now argues,
that the 1944 proclamation had no effect
because the Indian Reorganization Act of 1934
was not intended to apply to the Mississippi
Choctaws. Assuming for the moment that
authority for the proclamation can be found
only in the 1934 Act, we find this argument
unpersuasive. 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." 48
Stat. 988, 25 U.S.C. § 479 (1976 ed.). There
is no doubt that persons of this description
lived in Mississippi, and were recognized as
such by Congress and by the Department of the
Interior, at the time the Act was
passed. . . . The references to the
Mississippi Choctaws in the legislative
history of the Act . . . confirm our view that
the Mississippi Choctaws were not to be
excepted from the general operation of the
1934 Act.

John, 437 U.S. at 649-50 (parenthetical in original).

Thus, as early as 1976, the Supreme Court had disagreed

with the State's proffered two-part test for IRA applicability. In

John, the Supreme Court concluded that the IRA may be invoked for

the benefit of groups of Indians that were not recognized as tribes

-16-
in 1934. The Court focused on the fact that, while the Choctaws

were not a federally recognized tribe in Mississippi at the time

the IRA was enacted, there were individual "persons of one-half or

more Indian blood" living in Mississippi at the time, and both the

state and federal government recognized that the Indians were

there. Id. at 650. This is distinctly different from the State's

two-part test, which would require that an Indian tribe be both (1)

recognized and (2) under federal jurisdiction at the time of the

Act's passage.

While the parenthetical "[in 1934]" lends support to the

State's assertion that "now" should be read as "in 1934," we agree

with the district court that it does not appear that the reading of

this particular term in the IRA was before the Supreme Court for

consideration, and the Court did not give further explanation for

the inclusion of the parenthetical.

Notwithstanding the potential support found for the

State's assertion in the Supreme Court's inclusion of "[in 1934]"

in John, we find that Congress's recent clarification of the Indian

Reorganization Act makes clear that the Secretary has the authority

to extend IRA benefits to all federally recognized tribes,

regardless of their acknowledgment status on the date of the IRA's

enactment. In 1994, Congress enacted the Federally Recognized

Indian Tribe List Act ("List Act"), Pub. L. No. 103-454, 108 Stat.

4791 (1994), which requires the Secretary of the Interior to keep

-17-
a list of all federally recognized tribes, which "should reflect

all of the federally recognized Indian tribes in the United States

which are eligible for the special programs and services provided

by the United States to Indians because of their status as

Indians." Pub. L. No. 103-454, § 103. That statute, codified as

25 U.S.C. § 479a, defines the term "tribe" as "any Indian or Alaska

Native tribe, band, nation, pueblo, village or community that the

Secretary of the Interior acknowledges to exist as an Indian

tribe." 25 U.S.C. § 479a(2). The House Report accompanying the

List Act explains that federal recognition "establishes tribal

status for all federal purposes." H.R. Rep. No. 103-781, at 3

(1994). Earlier the same year, Congress amended the IRA, Pub. L.

No. 103-263, 108 Stat. 707, to clarify that:

[d]epartments or agencies of the United States
shall not promulgate any regulation or make
any decision or determination pursuant to the
Act of June 18, 1934 . . . with respect to a
federally recognized Indian tribe that
classifies, enhances, or diminishes the
privileges and immunities available to the
Indian tribe relative to other federally
recognized tribes by virtue of their status as
Indian tribes.

25 U.S.C. § 476(f), and that any such determination by a federal

agency that would have the effect of discriminating among

recognized tribes, "shall have no force or effect." 25 U.S.C. § 476

(g).

The federal acknowledgment regulations pursuant to which

the Narragansett Tribe attained federal recognition echo these

-18-
enactments. The regulations provide that "[t]he newly acknowledged

tribe shall be considered a historic tribe and shall be entitled to

the privileges and immunities available to other federally

recognized historic tribes by virtue of their government-to-

government relationship with the United States." 25 C.F.R. 83.12(a)

(2004).

These statutory and regulatory provisions make clear that

the Secretary's IRA authority extends to the Narragansett Indian

Tribe regardless of the status of its acknowledgment in 1934.

Indeed, these provisions preclude the Secretary from making the

determination sought by the State, that the tribe is ineligible for

the benefits of § 465 of the IRA because it was acknowledged after

the enactment of the IRA. Such a determination would diminish the

Tribe's privileges in relation to other federally recognized

tribes, contrary to the amended IRA's plain language. 25 U.S.C.

§ 476(f).

B. Constitutional Challenges to 25 U.S.C. § 465

The State raises multiple challenges to the

constitutionality of the IRA, including a charge that the authority

granted to the Secretary to take land into trust is an

unconstitutional delegation of congressional powers and that taking

State land into trust pursuant to the IRA diminishes state

sovereignty in violation of the Tenth Amendment, the Enclave

-19-
Clause, and the Admissions Clause, and exceeds Congress's authority

under the Indian Commerce Clause of the Constitution.

1. The Nondelegation Doctrine

The State contends that § 465 of the IRA is an

unconstitutional delegation of legislative power to the Secretary

of the Interior because the only limitation it places on the

Secretary's trust-taking authority is that the trust acquisition

must be "for the purpose of providing land for Indians." 25 U.S.C.

§ 465. Thus, the State argues, Congress failed to articulate

sufficient standards to guide the Secretary's trust determinations.

Article I, Section I, of the Constitution provides that

"[a]ll legislative Powers herein granted shall be vested in a

Congress of the United States, which shall consist of a Senate and

House of Representatives." The Supreme Court has repeatedly said

that "when Congress confers decisionmaking authority upon agencies

Congress must 'lay down by legislative act an intelligible

principle to which the person or body authorized to [act] is

directed to conform.'" Whitman v. Am. Trucking Ass'ns, Inc., 531

U.S. 457, 472 (2001) (quoting J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 409 (1928)). The State contends that § 465

lacks the required "intelligible principle."

The statute provides that:

The Secretary of the Interior is authorized,
in his discretion, to acquire, through
purchase, relinquishment, gift, exchange, or
assignment, any interest in lands, water

-20-
 rights, or surface rights to lands, within or
without existing reservations, including trust
or otherwise restricted allotments, whether
the allottee be living or deceased, for the
purpose of providing land for Indians.

For the acquisition of such lands . . ., there
is authorized to be 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 or the Act of July 28, 1955 (69
Stat. 392), as amended (25 U.S.C. 608 et seq.)
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.

25 U.S.C. § 465.

To support its nondelegation doctrine argument, the State

relies on an Eighth Circuit decision, ultimately vacated by the

Supreme Court, that found § 465 to be a standardless delegation

with so few "boundaries," or "intelligible principles," that "it

would permit the Secretary to purchase the Empire State Building in

trust for a tribal chieftain as a wedding present." South Dakota

v. United States Dept. of Interior, 69 F.3d 878, 882 (8th Cir.

1995), vacated by 519 U.S. 919 (1996). As the district court

noted, the Supreme Court chose not to publish an opinion explaining

the majority's reasoning for vacating the Eighth Circuit opinion.

-21-
Therefore the vacated decision has no precedential value and we

will not rely on it here.

The Tenth Circuit addressed the validity of Congress'

delegation of trust acquisition authority under § 465 in United

States v. Roberts, 185 F.3d 1125 (10th Cir. 1999). In Roberts, the

Tenth Circuit held that Congress properly delegated authority to

the Secretary of the Interior to acquire land in trust for Indians.

Id. at 1137. The Tenth Circuit found that the statute itself

provides standards for the Secretary's exercise of discretion and

noted that it had previously acknowledged that the statute places

limits on the Secretary's discretion. See McAlpine v. United

States, 112 F.3d 1429, 1432 n.3 (10th Cir. 1997)(citing South

Dakota, 69 F.3d at 887-88 (Murphy, J. dissenting)). For example,

"the statute provides any land must be acquired for Indians as

defined in 25 U.S.C. § 479 and funds appropriated for the

acquisitions may not be used to provide land for Navajos outside

their reservation boundaries." Roberts, 185 F.3d at 1137

(citations omitted). In addition, "the legislative history

identifies goals of 'rehabilitating the Indian's economic life' and

'developing the initiative destroyed by . . . oppression and

paternalism,' of the prior allotment policy and indicates the

Secretary must assure continued 'beneficial use by the Indian

occupant and his heirs.'" Id. (Citations omitted). We agree with

the district court's conclusion that the reasoning in Roberts is

-22-
persuasive, and we find, for the same reasons articulated in

Roberts, that § 465 is not an unconstitutional delegation of

legislative power. Id.

2. The Tenth Amendment and the Indian Commerce Clause

The State contends that § 465 of the IRA offends the

Tenth Amendment by generally encroaching on state sovereignty and

that Congress's Article I Indian Commerce Clause authority does not

extend to the abrogation of state sovereignty. We agree with the

conclusion of the district court that this argument fails.

Congress' authority to regulate Indian affairs is clearly

within the enumerated powers of the federal government. See U.S.

Const. art. I., § 8, cl. 3 (conferring upon Congress the power

"[t]o regulate commerce . . . with the Indian tribes."); see also

Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting that Congress

has plenary power "to deal with the special problems of Indians,"

including the power to legislate). The Tenth Amendment reserves to

the States, or the People, those powers not delegated to the United

States by the Constitution. The Supreme Court has interpreted the

Tenth Amendment to be a mirror of the enumerated powers embodied in

Article I. New York v. United States, 505 U.S. 144, 156 (1992)

("If a power is delegated to Congress in the Constitution, the

Tenth Amendment expressly disclaims any reservation of that power

to the States"). Therefore, because the power to regulate Indian

-23-
affairs is conferred on Congress, its exercise does not offend the

Tenth Amendment.

3. The Enclave Clause

The State claims that the Federal government may not

acquire lands to be held in trust for the benefit of an Indian

tribe unless it has secured the consent of the State pursuant to

the Enclave Clause of the Constitution. U.S. Const. art. I, § 8,

cl. 17. The Enclave Clause provides Congress with the power to

exercise "exclusive legislative" authority "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,

dock-Yards, and other needful Buildings." Id. This was intended

to ensure that the "places on which the security of the entire

Union may depend" would not "be in any degree dependent on a

particular member of it." Fort Leavenworth R.R. Co. v. Lowe, 114

U.S. 525, 530 (1885).

Indian reservations, however, are not federal enclaves,

and instead represent land owned by the United States for public

purposes. "Such ownership and use without more do not withdraw the

lands from the jurisdiction of the state," Surplus Trading Co. v.

Cook, 281 U.S. 647, 650 (1930), and State consent is therefore not

required. The Supreme Court recently confirmed that lands held in

trust for the benefit of tribes are not subject to the exclusive

jurisdiction of the United States:

-24-
 Our cases make clear that the 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.

Nevada v. Hicks, 533 U.S. 353, 361 (2001) (quoting Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 561 (1832)); see also Surplus

Trading Co., 281 U.S. at 651 (holding the Indian reservation out as

an example of land owned by the United States that does not

constitute a federal enclave because the civil and criminal laws

still have partial application therein). Therefore, we find that

the Secretary's acquisition of the Parcel into trust does not

violate the Enclave Clause.

4. The Admissions Clause

The State also contends that the trust acquisition of the

Parcel offends the Admissions Clause of the Constitution. U.S.

Const. art. IV, § 3, cl. 1. The Admissions Clause provides: "New

States may be admitted by the Congress into this Union; but no new

State shall be formed or erected within the Jurisdiction of any

other State; . . . or Parts of States, without the Consent of the

Legislatures of the States concerned as well as of the Congress."

Id.

-25-
 The trust acquisition, however, does not amount to the

establishment of a new state within the meaning of the Admissions

Clause. For purposes of the Admissions Clause, "state" refers to

a body equal in power to the existing states. Coyle v. Smith, 221

U.S. 559, 566-67 (1911) (quoting U.S. Const. art. IV, § 3, cl. 1.).

The Supreme Court, in Coyle interpreted that "'[t]his Union' was

and is a union of States, equal in power, dignity, and authority,"

Coyle, 221 U.S. at 567, and that Congress does not have the "power

to admit a new state which shall be any less a state than those

which compose the Union." Id. at 568. Since the trust acquisition

does not confer statehood status, it does not offend the Admissions

Clause.

C. The Rhode Island Indian Claims Settlement Act

We now turn to the State's alternative argument that the

Rhode Island Indian Claims Settlement Act prohibits the Secretary

from converting the Parcel into an unrestricted federal trust.3

The State offers several arguments in support of its position.

First, the State argues that allowing the Secretary to take non-

Settlement lands into trust for the Tribe disrupts the special

3
When the Secretary takes land into trust for the use of Indians
pursuant to the IRA of 1934, the land is held under the
superintendence of the Federal government and is ordinally exempt
from certain state laws, including "(1) state or local taxation,
see 25 U.S.C. § 465; (2) local zoning and regulatory requirements,
see 25 C.F.R. § 1.4(a); or, (3) state criminal and civil
jurisdiction, unless the tribe consents to such jurisdiction, see
25 U.S.C. §§ 1321(a), 1322(a)." Connecticut ex rel. Blumenthal v.
U.S. Dep't of Interior, 228 F.3d 82, 85-86 (2d Cir. 2000).

-26-
balance of rights and allocation of powers between the State, the

Federal government, and the Tribe that were negotiated by the

parties, laid out in the JMOU and then implemented through the

Settlement Act. Thus, the State asserts that the Settlement Act

precludes the Tribe, and any "successor in interest" –- here

meaning the Secretary -- from disrupting this allocation by

acquiring additional, non-settlement lands into trust and thereby

removing them from the jurisdiction and laws of the State. Second,

the State contends that § 1707(c), as well as portions of § 1705

(a)(3) and § 1712(a)(3) of the Settlement Act, eliminate the

federal government's ability to divest state sovereignty by

acquiring land into trust for the Tribe. Third, the State argues

that the 1976 lawsuits settled the State's jurisdiction over the

3200 acres at issue in those suits, and thus the 31-acre Parcel,

which was a part of the 3200 acres of contested lands, may not be

accepted into trust by the Secretary. Finally, the State argues

that, notwithstanding whether the Parcel may be taken into trust,

the Settlement Act prohibits the Tribe and the Federal government

from making a claim that the Tribe's laws, rather than the criminal

and civil laws of the State of Rhode Island, should apply on Tribal

land.

The Secretary responds that the Settlement Act does not

prohibit the Settlement Lands from being acquired into trust, and

argues that the Act addresses the extinguishment of Indian

-27-
aboriginal land claims in Rhode Island without prohibiting future

land transactions. We agree that the Settlement Act does not

prohibit the Parcel from being taken into trust by the Secretary,

and we do not decide the issue of whether the Settlement Act

prohibits the land taken into trust from being removed from the

criminal and civil jurisdiction of the State.

The issue here is primarily one of statutory

construction. Does the Settlement Act preclude the Secretary from

taking land, in addition to the Settlement Lands, into trust on

behalf of the Tribe? Does the Settlement Act prohibit the

Secretary from removing lands not included in the Settlement Lands

from under the laws and jurisdiction of the State of Rhode Island?

The Supreme Court has said that "statutes are to be construed be

construed liberally in favor of the Indians with ambiguous

provisions interpreted to their benefit." Chickasaw Nation v.

United States, 534 U.S. 84, 93-94 (2001).

The Rhode Island Indian Claims Settlement Act, in

provisions pertinent to these questions -- including 25 U.S.C.

§ 1705 (Publication of findings), 25 U.S.C. § 1712 (Approval of

prior transfers and extinguishment of claims and aboriginal title

outside town of Charlestown), and 25 U.S.C. § 1707 (Purchase and

transfer of private Settlement Lands) -- provides for the

ratification of various transfers of land and natural resources,

extinguishment of aboriginal title, state jurisdiction over the

-28-
Settlement Lands, and a limit on the duties and liabilities of the

federal government with respect to the settlement. Specifically,

the Settlement Act ratified any transfer of land or natural

resources located anywhere in the United States made by, or on

behalf, of the Narragansetts, their predecessors, or their

successors as congressionally approved as of the date of the

transfer. 25 U.S.C. § 1705(a)(1). The Act also provided for

ratification of any transfers of land or resources located within

the town of Charlestown, id., as well as anywhere else within the

State of Rhode Island, 25 U.S.C. § 1712(a)(1), that were made by

any Indian, Indian nation, or Indian tribe. The Act extinguished

any Indian claims of aboriginal title to all such property as of

the date of the transfer. 25 U.S.C. §§ 1705(a)(2), 1712(a)(2).

The Settlement Act also provided that:

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.

-29-
25 U.S.C. § 1705(a)(3). In § 1712(a)(3), the Act effected the same

extinguishment for all claims by any other tribe of Indians based

upon any interest in, or rights involving, land or resources

transferred anywhere within Rhode Island.

1. Whether the Settlement Act precludes trust
acquisition

The State argues that § 1705 and § 1712 of the Settlement

Act provide a comprehensive extinguishment on the ability of any

tribe, including the Narragansetts, to claim territorial

sovereignty anywhere in the State of Rhode Island through a two-

pronged approach of first, terminating all aboriginal title

throughout Rhode Island, 25 U.S.C. §§ 1705(a)(2), 1712(a)(2), and,

second, extinguishing any claims by any tribe, or successor in

interest, against the State based upon "any interest in or right

involving land" in Rhode Island, 25 U.S.C. §§ 1705(a)(3),

1712(a)(3). The State also contends that the extinguishment of the

right of "any successor in interest" in § 1705(a)(3) and § 1712(a)

(3) precludes the Secretary from making the same claim on the

Tribe's behalf. These provisions, the State asserts, are the

result of the careful balance that was negotiated in the settlement

of the 1976 lawsuits. Whereas the Narragansetts received an 1800-

acre land base and locus for the exercise of the its retained

sovereignty over its members and internal tribal matters, see Rhode

Island v. Narragansett Indian Tribe, 19 F.3d 685, 701 (1st Cir.

1994), the State obtained the continued application of its laws and

-30-
jurisdiction on the Settlement Lands. 25 U.S.C. § 1708(a) ("Except

as otherwise provided in this subchapter, the Settlement Lands

shall be subject to the civil and criminal laws and jurisdiction of

the State of Rhode Island."). The State argues that the

Secretary's action of taking the Parcel into trust, thereby

removing it from the jurisdiction of the State's criminal and civil

laws, upsets this negotiated and agreed-upon balance, as

implemented by the Settlement Act.

These sections of the Settlement Act show that Congress

intended to enact a wide-reaching resolution of any and all

contested transfers of land by Indians qua Indians in Rhode Island.

The JMOU and Settlement Act clearly resolve all prior contested

land transfers and related claims involving Indian tribes,

including the extinguishment of aboriginal title in Rhode Island.

It is not clear, however, that Congress intended to

preclude the Narragansetts from ever expanding from the Settlement

Lands if the Tribe became federally recognized. Neither the JMOU

nor the Settlement Act provides that lands outside the Settlement

Lands may not be acquired or held in trust. In fact, the JMOU and

Settlement Act do not make direct reference to the IRA at all. The

omission of an explicit prohibition on trust acquisition and

federal superintendence of non-Settlement lands is significant,

because settlement acts resolving Indian claims in other states did

explicitly prohibit future trust acquisitions. See, e.g., 25

-31-
U.S.C. 1724(e) (precluding application of § 465 of the IRA in the

Maine Settlement Act); Connecticut ex rel. Blumenthal, 228 F.3d at

90 (finding that the absence of a provision analogous to the

prohibition of § 465 of the IRA in the Maine Settlement Act

confirmed "that the Settlement Act was not meant to eliminate the

Secretary's power under the IRA to take land purchased without

settlement funds into trust for the benefit of the Tribe").

The Settlement Act explicitly anticipated that the

Narragansetts might eventually be federally acknowledged, 25 U.S.C.

§ 1707(c), and the JMOU provided that the Narragansett Tribe would

"have the same right to petition for [federal] recognition and

services as other groups." JMOU para. 15; H.R. Rep. No. 95-1453,

at 27. As we noted, one of the benefits of federal recognition is

the right to apply to have land taken into trust by the federal

government for the benefit of the tribe, pursuant to Section 5 of

the IRA.

At the time the JMOU was negotiated and the Settlement

Act was enacted, the Narragansetts had not yet been acknowledged as

a federally recognized tribe. Thus, they were ineligible at that

time to apply for the benefits of the IRA, including the

acquisition of land into trust by the Secretary of the Interior for

their use. As we noted above, trust acquisition typically results

in the removal of the land from State jurisdiction in favor of

tribal jurisdiction with federal superintendence. Therefore, the

-32-
immediate result of § 1708 was indeed that the laws and

jurisdiction of the State would remain in force throughout the

state at the time of the JMOU and enactment of the Settlement Act.

Once the tribe received federal recognition in 1983, however, it

gained the same benefits as other tribes, including the right to

apply to have land taken into trust pursuant to § 465 of the IRA.

2. The Secretary's duties and liabilities under the
Settlement Act

The Settlement Act provides that "[u]pon the discharge of

the Secretary's duties under §§ 1704-1706, 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 . . . ."

25 U.S.C. § 1707(c). The State contends that this passage

prohibits the federal government from divesting the State of

sovereignty over the Parcel by putting the land into trust for the

Tribe.

However, § 1707(c) does not preclude the Secretary from

acquiring additional lands in trust for the benefit of the

Narragansetts. Again, we point out that the Narragansetts did not

obtain federal acknowledgment of their tribal status until 1983.

Despite the fact that the JMOU and Settlement Act both contemplated

the future acknowledgment of the Narragansett tribe by the federal

government, no explicit limitation was placed on the Secretary's

authority to accept additional land into trust for the

-33-
Narragansetts' benefit. Cf. Maine Indian Claims Settlement Act,

25 U.S.C. § 1724 (e) ("Except for the provisions of this

subchapter, the United States shall have no other authority to

acquire lands or natural resources in trust for the benefit of

Indians . . . in the State of Maine."). We therefore agree with

the district court that such a restriction cannot reasonably be

inferred. Carcieri, 290 F. Supp. 2d at 184.

3. Settlement of the 1976 Lawsuits

The State argues that the trust acquisition of the Parcel

is precluded by the doctrine of res judicata because the Parcel was

among the 3200 acres at issue in the 1976 lawsuits that were

ultimately settled by the JMOU and implementation of the Settlement

Act. The Parcel was part of the 1400 acres that remained with the

defendant property owners pursuant to the settlement. Thus, the

State contends the Tribe relinquished its claimed interest in the

exercise of sovereignty over the 1400 acres, including the 31-acre

Parcel.

This argument is without merit. As the district court

noted, "the doctrine of res judicata operates to bar the

relitigation of issues that were or could have been raised in an

earlier action between the same parties prescinding from the same

set of operative facts." Id. at 186 (quoting In re Carvalho, 335

F.3d 45, 49 (1st Cir. 2003)) (citations omitted). Since the

federal government was not a party to the 1976 lawsuits or the

-34-
JMOU, the principles of res judicata do not apply. The State

attempts to salvage the argument on appeal by contending that the

United States maintains a special relationship with the Tribe such

that they may be considered a legal unity. This argument is

ultimately insufficient because the fee-to-trust acquisition of the

Parcel by the Secretary, and the consequences thereof, are

different issues than the claims of aboriginal right which were

litigated in the 1976 lawsuits and resolved by the JMOU and

Settlement Act. Accordingly, even if there were a substantial

identity of the parties in the 1976 and the instant litigation,

there would be no identity of claims, and thus, the trust

acquisition is not barred by res judicata.

4. The Trust must preserve State laws and jurisdiction

Finally, the State argues that even if the Settlement Act

can be read to allow the Secretary to take the Parcel into trust

for the Narragansetts, the trust must remain subject to the State's

civil and criminal jurisdiction in order to comply with the

Settlement Act, which extinguished aboriginal title throughout

Rhode Island, 25 U.S.C. §§ 1705(a)(2), 1712(a)(2), as well as

Indian claims against the State based upon "any interest in or

right involving" land in Rhode Island, id. §§ 1705(a)(3),

1712(a)(3). The State claims that to do otherwise would render the

latter provision mere surplusage.

-35-
 This issue does not appear to have been sufficiently

raised before the trial court for us to now consider it preserved

on appeal. The general rule is that issues not raised in district

court cannot be raised for the first time on appeal as a matter of

right. Fajardo Shopping Center, S.E. v. Sun Alliance Ins., 167 F.

3d 1, 6 (1st Cir. 1999). "This limitation has been applied both to

issues that are wholly 'alien to the record,' United States v.

Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983), and to those that are

merely mentioned in the pleadings but not seriously developed in

the record thereafter, see Violette [v. Smith & Nephew Dyonics,

Inc., 62 F.3d 8, 11 (1st Cir. 1995)]." Amcel Corp. v. Int'l

Executive Sales, Inc., 170 F.3d 32, 35 (1st Cir. 1999). This issue

was not raised in the complaint and appears to have been presented

to the district court only in a footnote on page 7 of the

Plaintiffs' Joint Memorandum of Law in Support of Plaintiffs' Joint

Motion for Summary Judgment. The district court's comprehensive

opinion did not mention the issue. Moreover, on appeal, the State

presents the argument in only the most cursory fashion, without

citation or developed analysis, on page 57 of their opening brief.

Given the inadequacy of the State's presentation of this

issue before the district court and on appeal, we will not decide

the question of whether the trust lands must remain subject to the

State's civil and criminal jurisdiction. We leave this issue to be

decided another day, when there is a more fully developed record.

-36-
D. Whether the Secretary's acceptance of the Parcel in trust
violates the APA

In addition to the constitutional and other statutory

challenges to the Secretary's decision to take the Parcel into

trust, the State claims that the Secretary's action was an abuse of

discretion under the Administrative Procedures Act. Our review of

the Secretary's decision is governed by § 706(2)(A) of the APA,

which provides that a court may set aside agency action only where

it finds the action "arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law." 5 U.S.C. § 706(2)

(A). An agency's determination is arbitrary and capricious if the

agency lacks a rational basis for making the determination or if

the decision was not based on consideration of the relevant

factors. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins.

Co., 463 U.S. 29, 43 (1983); Associated Fisheries of Maine, Inc. v.

Daley, 127 F.3d 104, 109 (1st Cir. 1997). The Court's review under

§ 706(2)(A) is highly deferential, and the Secretary's action is

presumed to be valid. See Conservation Law Found. of New England,

Inc. v. Sec'y of Interior, 864 F.2d 954, 957-58 (1st Cir. 1989).

A reviewing court cannot substitute its own judgment for that of

the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 416 (1971); Associated Fisheries, 127 F.3d at 109. We will

apply the same legal standards that governed the district court's

review, without affording special deference to that court's

decision.

-37-
 The State makes five arguments as to why the Secretary's

decision was unlawful under § 706(2)(A), including that (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 25 C.F.R. § 151.10 for

evaluating a fee-to-trust transfer, (3) the Native American Housing

and Self Determination Act ("NAHASDA") cooperation agreement waiver

violated due process, (4) the BIA failed to consider environmental

impacts of the housing project planned for the Parcel, and (5) the

BIA failed to consider noncompliance with the Coastal Zone

Management Act ("CZMA") and the Indian Gaming Regulatory Act

("IGRA"). We disagree with the State, and for essentially the same

reasons as set forth in the district court's decision, we find that

the Secretary's decision to accept the Parcel into trust did not

violate the APA.

1. Whether the BIA failed to conduct an independent
evaluation of the Tribe's trust application

The State points to substantial passages in the

Secretary's decision, which 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. The

State claims that the BIA relied exclusively on the Tribe's

assertions and failed to consider other important facts that

occurred between 1993 and 1997. Thus, the State asserts that the

-38-
BIA made an arbitrary and capricious decision and abused its

discretion.

However, 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 subject

31-acre Parcel (Supp. App. 99); required confirmation of

consistency with the State’s Coastal Resources Management Plan

(Supp. App. 102-03); was well aware of the Narragansett Electric

litigation (Supp. App. 10-12, 13-93); 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 (Supp. App. 1);

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

(Supp. App. 101). This shows that the BIA did not rely solely on

the findings of the Tribe and did conduct its own evaluation. We

agree with the district court's finding that the BIA's

determination was the result of its own, independent evaluation of

the 1997 application.

-39-
 2. Whether the BIA properly applied 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 25 C.F.R.

§ 151. The factors to be considered for an "on-reservation"

acquisition are found in § 151.10 and the factors for an "off-

reservation" acquisition are in § 151.11. In making the decision

to accept the Parcel into trust, the BIA considered the on-

reservation factors in § 151.10,4 which include:

(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;

4
For the purpose of 25 C.F.R. § 151, land is considered to be
"on-reservation" if it is "located within or contiguous to an
Indian reservation," and "off-reservation" where "the land is
located outside of and noncontiguous to the tribe's reservation."
The State challenges the finding by the BIA and district court that
the Parcel is adjacent to Settlement Lands, yet recognizes that
this determination is insignificant to the application of either
section in this case, as the sections differ only slightly.
Compare § 151.10 with § 151.11. As we have previously noted, the
Parcel is adjacent to the Settlement Lands, but separated from them
by a town road. Narragansett Elec. Co., 89 F.3d at 911.

-40-
 (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.
. . .

25 C.F.R. § 151.10.

The State claims that the BIA failed to consider "the

need of . . . the tribe for additional land," § 151.10(b). The

State also questions whether the BIA sufficiently scrutinized "the

tribe's justification of anticipated benefits from the acquisition"

as required by § 151.11(b). The criteria required pursuant to

§ 151.11(b) are as follows:

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. . . .

25 C.F.R. § 151.11(b).

As we have noted, 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." See Citizens to Preserve Overton Park, 401 U.S. at 416.

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

-41-
should consider the "on-reservation" factors enumerated in 25

C.F.R. § 151.10, is certainly not clear error and is within the

Secretary's discretion. It was not necessary for the BIA to

consider the factors under § 151.11, since it found § 151.10 to be

applicable for this trust determination. While the Secretary need

not consider § 151.11(b), we note that the close proximity between

the Tribe's Settlement Lands and the Parcel would not have

required the Secretary to give the greatest scrutiny to the

"tribe's justification of anticipated benefits from the

acquisition." 25 C.F.R. § 151.11(b). In sum, the record shows

that the BIA complied with § 151.10, including evaluating the

Tribe's need for the additional land, and we do not find that the

Secretary has made a clear error of judgment.

3. The NAHASDA Cooperation Agreement

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

("NAHASDA") 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. 25 U.S.C. § 4111(c). In the instant case,

the Narragansett Tribe did not obtain such an agreement with the

Town. However, § 4111(c) has now been amended to permit HUD to

waive the cooperation agreement requirement, 25 U.S.C. § 4111(c),

-42-
as amended, Pub. L. 106-569, Dec. 27, 2000, and the Tribe obtained

such a waiver.

The State argues that this waiver was invalid because the

State apparently did not receive notice of the Tribe's application

for a waiver until after it was granted. On appeal, the State

contends that if the BIA accepted the waiver, the BIA has inherited

the legal error and acted in an arbitrary and capricious manner.

As the district court noted, "25 U.S.C. § 4111(c) establishes a

prerequisite to HUD's award of housing grants. It does not pertain

to the BIA's trust acquisition authority." Carcieri, 290 F. Supp.

2d at 179. The BIA is obligated to consider the appropriate

factors enumerated in 25 C.F.R. § 151, which includes a requirement

that the Secretary consider the "need of the individual Indian or

the tribe for the additional land," and "[t]he purposes for which

the land will be used." 25 C.F.R. § 151.10(b)-(c). It is clear

from the record that the BIA has properly considered the Tribe's

need for additional housing as well as the fact that the funding to

purchase the Parcel was provided to the Tribe's Housing Authority

with the understanding that the lands would be used for housing.

However, nothing in the § 151.10 factors requires the BIA to ensure

that a local cooperation agreement is in place for an Indian

Housing project.

-43-
 4. Environmental Considerations

The National Environmental Policy Act ("NEPA") and its

supporting regulations promulgated by the Council on Environmental

Quality ("CEQ") direct federal agencies to consider the

environmental impacts of agency decisions. 42 U.S.C. §§ 4321-

4370(e); 40 C.F.R. § 1500-1518 (2004). The State claims that the

Secretary and BIA failed to consider environmental impacts in

reaching the decision to accept the Parcel into trust because no

Environmental Impact Statement ("EIS") was prepared. The State

also argues that the BIA failed to conduct its own evaluation of

the environmental impacts and instead improperly relied on an

environmental assessment ("EA") submitted by the Narragansett

Tribe. We disagree.

Federal agencies are required to prepare an EIS for any

action that could significantly affect the quality of the human

environment. 42 U.S.C. § 4332(2)(c); 40 C.F.R. § 1508.27. NEPA

provides that "to the fullest extent possible . . . (2) all

agencies of the Federal Government shall . . . (c) include in every

recommendation or report on proposals for . . . major Federal

actions significantly affecting the quality of the human

environment, a detailed statement by the responsible official on

. . . (i) the environmental impact of the proposed action." 42

U.S.C. § 4332(2)(c). However, in the absence of a finding that the

proposed action would significantly affect the quality of the human

-44-
environment, the BIA was not required to prepare an EIS. See,

e.g., Londonderry Neighborhood Coalition v. Fed. Energy Regulatory

Comm'n, 273 F.3d 416, 419 (1st Cir. 2001) (quoting Wyoming Outdoor

Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C. Cir. 1999)).

The CEQ has issued guidance for whether to prepare an

EIS, which 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 § 1508.13. 40 C.F.R. § 1501.4(e). The applicant may

prepare the EA provided that the agency "make[s] its own evaluation

of the environmental issues and take[s] responsibility for the

scope and content of the environmental assessment." 40 C.F.R.

§ 1506.5(b). In this case, the BIA followed its standard operating

procedure for externally initiated proposals by obtaining an EA

from the Tribe and considering it along with supplemental

information the BIA requested from the Tribe and information

gathered independently by the BIA. See Externally Initiated

Proposals, NEPA Handbook 4.2 B ("When the proposed Bureau action is

a response to an externally initiated proposal . . . the applicant

will normally be required to prepare the EA, if one is required,

and to provide supporting information and analyses as

appropriate.)" After reviewing the EA and the requisite

supplemental information, the BIA completed its environmental

analysis and issued a Finding of No Significant Impact ("FONSI").

-45-
The BIA's issuance of a FONSI thus satisfied its responsibilities

under NEPA. See 40 C.F.R. § 1501.4(e).

Separately, the State contends that the BIA should have

obtained a federal consistency review in accordance with the Costal

Zone Management Act ("CZMA") before making its trust determination.

16 U.S.C. § 1451-1465. The CZMA requires state consultation on

federally permitted coastal development activities. Specifically,

§ 1456 of the CZMA states that:

(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.

16 U.S.C. § 1456. The State asserts that the BIA's failure to take

direct action to ensure the housing project was consistent with the

Rhode Island Coastal Zone Management Program ("RICZMP") before

making its trust determination was a violation of the CZMA. We

disagree.

-46-
 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 CRMC

correctly recognized that the development of the Parcel was a

separate matter which required its own federal consistency

determination, and properly found that the Tribe's application for

trust status was consistent with the RICZMP. Id.; App. Tab 5 at

Ex. 11.

5. The IGRA

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 25

C.F.R. § 151.10(c) -- and that the BIA's failure to consider the

Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2710-2721, in

its decision was an abuse of discretion. The State argues that the

Secretary's decision to acquire the Parcel in trust should be

reversed and that further inquiry into whether the Parcel would be

used for gaming purposes is required. We disagree.

There is no evidence that the Tribe intended to use the

Parcel for anything other than tribal housing, as determined by the

BIA. "In fact, after the plaintiffs expressed concern over the

-47-
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.' Admin. Rec., Vol. II, Tab N."

Carcieri, 290 F. Supp. 2d at 178.

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. Village of Ruidoso, New Mexico v. Albuquerque Area

Dir. Bureau of Indian Affairs, 32 IBIA 130 (1998). However, in

Village of Ruidoso, although the Tribe denied that the application

for trust acquisition was for gaming purposes, the IBIA determined

that it was clear from the planned gaming-related uses of the

property, and the fact that the property was given to the Tribe by

a company that the BIA "apparently understood to have some gaming

connection with the Tribe," that the application was for gaming

purposes and that the BIA's determination should have been made

under the guidelines applicable to gaming. 32 IBIA at 136, 138.

We agree with the district court that "[a]lthough 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

-48-
decisions under the APA, the bureau's determination in this regard

must be sustained." Carcieri, 290 F. Supp. 2d at 178.

III. Conclusion

For the reasons stated above, we affirm the district

court's grant of summary judgment to the Secretary with respect to

the trust acquisition of the Parcel for the benefit of the

Narragansett Indian Tribe. However, this judgment should not be

read to make any determination regarding the applicability of the

State's civil and criminal laws and jurisdiction on the new trust

land.

Affirmed.

-49-