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; TOWN OF CHARLESTOWN, RHODE
ISLAND,

Plaintiffs, Appellants,

v.

DIRK KEMPTHORNE,* in his capacity as Secretary of the Department
of the Interior, United States; FRANKLIN KEEL, in his capacity as
Eastern Area Director of the Bureau of Indian Affairs, within the
Department of Interior, United States,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
Lynch, Lipez, and Howard, Circuit Judges.

Claire Richards, Special Counsel, for appellant Donald L.
Carcieri.
Stephen P. Collette and Stephen P. Collette & Associates on
brief for National Coalition Against Gambling Expansion, amicus
curiae.

*
Defendant Gale A. Norton has been substituted with Dirk
Kempthorne. See Fed. R. App. P. 43(c)(2).
 Neil F.X. Kelly, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General, was on brief, for appellant State of
Rhode Island.
Troy King, Attorney General for the State of Alabama, Talis J.
Colberg, Attorney General for the State of Alaska, Richard
Blumenthal, Attorney General for the State of Connecticut, Susan
Quinn Cobb, Assistant Attorney General for the State of
Connecticut, Lawrence G. Wasden, Attorney General for the State of
Idaho, Paul J. Morrison, Attorney General for the State of Kansas,
Jeremiah W. (Jay) Nixon, Attorney General for the State of
Missouri, Wayne Stenehjem, Attorney General for the State of North
Dakota, Larry Long, Attorney General for the State of South Dakota,
John P. Guhin, Assistant Attorney General for the State of South
Dakota, Mark L. Shurtleff, Attorney General for the State of Utah,
and William H. Sorrell, Attorney General for the State of Vermont,
on brief for the States of Alabama, Alaska, Connecticut, Idaho,
Kansas, Missouri, North Dakota, South Dakota, Utah, and Vermont,
amici curiae.
Joseph S. Larisa, Jr., Assistant Solicitor for Indian Affairs,
for appellant Town of Charlestown.
Elizabeth Ann Peterson, Attorney, Environment and Natural
Resources Division, United States Department of Justice, with whom
Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert
Clark and Ryan D. Nelson, Deputy Assistant Attorneys General,
William B. Lazarus, Judith Rabinowitz, and David C. Shilton,
Attorneys, Environment and Natural Resources Division, United
States Department of Justice, and Mary Anne Kenworthy, Office of
the Solicitor, United States Department of the Interior, were on
brief, for appellees.
Ian Heath Gershengorn, with whom Sam Hirsch, Jenner & Block
LLP, John Dossett, Riyaz A. Kanji, Kanji & Katzen PLLC, Tracy
Labin, Richard Guest, and Native American Rights Fund were on
brief, for National Congress of American Indians, Absentee Shawnee
Tribe, Akiak Native Community, Cahto Tribe of the Laytonville
Rancheria, Cheyenne River Sioux Tribe, Coeur d'Alene Tribe,
Confederated Salish and Kootenai Tribes of the Flathead Nation,
Confederated Tribes of the Warm Springs Reservation of Oregon,
Eastern Pequot Tribal Nation, Eastern Shawnee Tribe of Oklahoma,
Ely Shoshone Tribe, Fallon Paiute-Shoshone Tribe, Ft. McDermitt
Paiute-Shoshone Tribe, Grand Traverse Band of Ottawa and Chippewa
Indians, Inupiat Community of Arctic Slope (IRA), Kenaitze Indian
Tribe, IRA, Kickapoo Tribe in Kansas, Lac Courte Oreilles Band of
Lake Superior Chippewa, Lovelock Paiute Tribe, Lummi Nation, Moapa
Paiute Band of the Moapa Indian Reservation, Modoc Tribe of
Oklahoma, Narragansett Indian Tribe of Rhode Island, Native Village
of Venetie IRA Tribal Government, Nez Perce Tribe, Oglala Sioux
Tribe, Oneida Tribe of Indians of Wisconsin, Prairie Band of
Potawatami Nation, Pueblo of Laguna, Pueblo of Santa Ana, Pueblo of
Taos, Seminole Tribe of Florida, Shoshone-Paiute Tribes of the Duck
Valley Reservation, Sisseton-Wahpeton Oyate of the Lake Traverse
Reservation, St. Regis Mohawk Tribe, Suquamish Tribe, Tanana Chiefs
Conference, Te-Moak Tribe of Western Shoshone Indians, Tuolumne
Band of Me-Wuk Indians, United South and Eastern Tribes, Inc.,
Washoe Tribe of Nevada and California, and Yomba Shoshone Tribe,
amici curiae.
C. Bryant Rogers, Roth, VanAmberg, Rogers, Ortiz & Yepa, LLP,
Charles A. Hobbs, Hobbs, Straus, Dean & Walker, LLP on brief for
Mississippi Band of Choctaw Indians, amicus curiae.

EN BANC OPINION
July 20, 2007
 LYNCH, Circuit Judge. The en banc court has convened to

consider a series of issues concerning the relative powers of the

federal Secretary of the Interior, the State of Rhode Island, and

the Narragansett Tribe over a parcel of land taken into trust and

designated for Indian housing. The case is in many ways a proxy

for the State's larger concerns about its sovereignty vis-à-vis

federal and tribal control over lands within the state.

In 1998, the Secretary of the Interior agreed to take

into unreserved trust for the Tribe's benefit a 31- or 32-acre

parcel in Charlestown, Rhode Island (the Parcel). Then-Secretary

Gale Norton cited her powers under section 5 of the Indian

Reorganization Act of 1934 (IRA), 25 U.S.C. § 465. The Tribe had

purchased the Parcel in 1991.

Under the Indian Commerce Clause of the Constitution,

U.S. Const. art. I, § 8, cl. 3, Congress has plenary power to

legislate on the subject of Indian tribes. Cotton Petroleum Corp.

v. New Mexico, 490 U.S. 163, 192 (1989). As a result, Congress may

preempt the operation of state law in Indian country. See New

Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983). Under

section 5 of the IRA, Congress has authorized the Secretary "in his

discretion" to acquire and take into trust for Indian tribes "any

interest in lands . . . within or without existing reservations

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

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§ 465. The Secretary may take land into trust for these purposes,

as was done here, without the consent of the State.1

The Secretary's acquisition of land into trust for

Indians results in the land becoming "Indian country." 18 U.S.C.

§ 1151. Generally speaking, primary jurisdiction over land that is

Indian country rests with the federal government and the Indian

tribe inhabiting it, not with the state. Alaska v. Native Vill. of

Venetie Tribal Gov't, 522 U.S. 520, 527 n.1 (1988). To be more

precise,

"[w]hen on-reservation conduct involving only
Indians is at issue, state law is generally
inapplicable, for the State's regulatory
interest is likely to be minimal and the
federal interest in encouraging tribal self-
government is at its strongest." When,
however, state interests outside the
reservation are implicated, States [sometimes]
may regulate the activities even of tribe
members on tribal land . . . .

Nevada v. Hicks, 533 U.S. 353, 362 (2001) (citation omitted)

(quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144

(1980)).

Recognizing a conflict between state jurisdiction and the

federal interest in encouraging tribal self-governance, the

Secretary's regulations under the IRA provide that "none of the

laws . . . of any State . . . limiting, zoning or otherwise

1
By contrast, the Indian Gaming Regulatory Act provides
the State with a limited role in determining whether land is taken
into trust for gaming purposes. See 25 U.S.C. § 2719(b)(1)(A).

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governing, regulating, or controlling the use or development of any

real or personal property . . . shall be applicable" to land held

in trust for a tribe by the United States. 25 C.F.R. § 1.4(a).

This provision is subject to the Secretary's power in specific

cases or areas to make applicable those local laws determined to be

in the best interest of the Indian owners "in achieving the highest

and best use of [the] property." Id. § 1.4(b).

Concerned over the loss of sovereignty over the Parcel

and what it may portend for the future, the State, its Governor,

and the town of Charlestown (collectively, the State), sued the

Secretary of the Interior, now Dirk Kempthorne, and the Regional

Director of the Bureau of Indian Affairs (BIA), Franklin Keel, in

federal court. See Carcieri v. Norton, 290 F. Supp. 2d 167 (D.R.I.

2003). Having exhausted administrative remedies, the State brought

suit under the Administrative Procedure Act, 5 U.S.C. § 702,

seeking review of the Secretary's decision to take the Parcel into

trust. Id. at 169, 172.

The State's case asserts three major theories. First,

the State argues that the IRA does not authorize the Secretary to

take land into trust for any tribe, including the Narragansetts,

that first received federal recognition after June 18, 1934, the

effective date of the IRA. Second, the State argues that the 1978

Rhode Island Indian Claims Settlement Act (the Settlement Act), 25

U.S.C. §§ 1701-1716, restricts the Secretary's authority to place

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the Parcel into trust pursuant to the IRA. Third, the State argues

that the Constitution prohibits this exercise of authority by the

Secretary.2

As to the IRA, the State argues that the Narragansetts do

not meet the definition of "Indian" contained in 25 U.S.C. § 479.

The pertinent definition recognizes, inter alia, "all persons of

Indian descent who are members of any recognized Indian tribe now

under Federal jurisdiction." 25 U.S.C. § 479 (emphasis added).

The State reads "are members . . . now under Federal jurisdiction"

to plainly and literally mean the 1934 effective date of the IRA.

The State thus contends that the Secretary has no authority under

the IRA to take land into trust for any tribe that was not

federally recognized in 1934. As a result, the State argues, the

Secretary is precluded entirely from placing the Parcel into trust

for the Narragansetts, who were not recognized as a tribe until

1983.

Next, the State argues that the terms of the Settlement

Act preclude the Secretary from placing the Parcel into trust

2
The State's challenges to the Secretary's authority under
the IRA and the Constitution have national implications that reach
beyond Rhode Island; accordingly, ten states and the National
Coalition Against Gambling Expansion have filed amicus briefs in
support of Rhode Island. Similarly, numerous tribes and tribal
organizations have filed amicus briefs in support of the Secretary.
We acknowledge the able assistance provided by the amici curiae
states and National Coalition Against Gambling Expansion on behalf
of the State, and amici curiae National Congress of American
Indians, individual Indian tribes and tribal organizations, and the
Mississippi Band of Choctaw Indians on behalf of the Secretary.

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because the Settlement Act is a later specific act of Congress that

must be read to have explicitly and implicitly cabined the Tribe's

and the Secretary's power as to the Parcel. The State argues that

the Settlement Act bars the imposition of any trust. The State's

fallback position is that any trust must be restricted by the terms

of the Settlement Act so that it is clear that state and local law

apply to the Parcel, just as they do to the settlement lands.

Finally, the State asserts various constitutional

theories, with the common underpinning that the placing of the

Parcel into trust violates the State's sovereignty. The State

argues that the Indian Commerce Clause does not authorize the

Secretary's exercise of power and that the exercise violates the

Tenth Amendment, as well as the Enclave and Admissions Clauses of

the Constitution. The State also argues that section 5 of the IRA,

25 U.S.C. § 465, constitutes an unconstitutional delegation of

legislative authority.

We hold that the language of 25 U.S.C. § 479 does not

plainly refer to the 1934 enactment date of the IRA. We find that

the text is sufficiently ambiguous in its use of the term "now"

that the Secretary has, under the Chevron doctrine, authority to

construe the Act. We reject the State's claim that we do not owe

deference to the Secretary's interpretation because he has

inconsistently interpreted or applied section 479. The State's

evidence of inconsistency is mixed and is not persuasive. The

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Secretary's position has not been inconsistent, much less

arbitrary. The Secretary's interpretation is rational and not

inconsistent with the statutory language or legislative history,

and must be honored.

Likewise, the Settlement Act neither explicitly bars by

its terms the Secretary's actions, nor implicitly repeals or

constrains the Secretary's authority under the IRA to place land

into trust for the Tribe. While the State apparently failed to

anticipate this particular problem at the time of the settlement,

the Settlement Act did specifically contemplate the event of

federal recognition of the Tribe and did not restrict the

Secretary's power, should the Tribe be recognized, to take into

trust land outside of the settlement lands. We are not free to

reform the Act. If aggrieved, the State must turn to Congress.

The State's arguments based on allocations of power under

the U.S. Constitution also do not prevail. They do, however,

underscore the seriousness of the State's concern about the

abrogation of state sovereignty at stake here.

I.

In order to understand the nature of the controversy and

the consequences of this decision, a brief recounting of the

history of relations between the State and the Tribe is required.

Further background can be found in the district court's opinion,

Carcieri, 290 F. Supp. 2d 167, as well as the opinions previously

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issued in the decades-long disputes between the State and the

Tribe, see Narragansett Indian Tribe v. Rhode Island (Narragansett

III), 449 F.3d 16 (1st Cir. 2006) (en banc); Narragansett Indian

Tribe v. Narragansett Elec. Co. (Narragansett II), 89 F.3d 908 (1st

Cir. 1996); Rhode Island v. Narragansett Indian Tribe (Narragansett

I), 19 F.3d 685 (1st Cir. 1994).

In 1880, the State acquired the majority of the Tribe's

lands. In 1934, the Tribe organized as a state-chartered

corporation. In 1975, the Tribe sued to recover its lands, arguing

that the State had acquired the lands in violation of the Indian

Nonintercourse Act, 25 U.S.C. § 177. The Tribe claimed that this

violation rendered void the transfer of title to the lands.

This cloud on title prompted the State to enter into

settlement negotiations with the Tribe, which led in 1978 to an

agreement embodied in a Joint Memorandum of Understanding (JMOU).

Under the JMOU, the Tribe would receive 1800 acres of "settlement

lands," half of which were provided by the State and half of which

were purchased with federal funds. The State agreed to create an

Indian-controlled corporation to hold the settlement lands in trust

for the Tribe, to exempt the settlement lands from local taxation,

and to help secure the federal legislation necessary to implement

the agreement. In exchange, the Tribe abandoned its claims of

aboriginal title and its claims to lands in the state other than

the settlement lands.

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 In turn, Congress approved and codified the agreement in

the Settlement Act. The Settlement Act provided that "the

settlement lands shall be subject to the civil and criminal laws

and jurisdiction of the State of Rhode Island." Id. § 1708(a).

Five years later, in 1983, the Secretary granted the

Tribe official federal recognition. See Final Determination for

Federal Acknowledgment of Narragansett Indian Tribe of Rhode

Island, 48 Fed. Reg. 6177 (Feb. 10, 1983). Following that

recognition, in 1985, Rhode Island amended the pertinent state

statute to permit the conveyance of the settlement lands directly

to the Tribe, explicitly preserving the State's jurisdiction over

the settlement lands, consistent with the Settlement Act, 25 U.S.C.

§ 1708(a). See R.I. Gen. Laws § 37-18-13(b). The holding company

conveyed the settlement lands to the Tribe, and three years later,

the Tribe conveyed the settlement lands to the BIA as trustee. The

trust deed confirmed the application of state law to the settlement

lands, as provided in 25 U.S.C. § 1708(a). The BIA continues to

hold the settlement lands in trust for the Tribe, subject to this

congressionally-enacted restriction that state law applies. See

Narragansett I, 19 F.3d at 689, 695 n.8. Significantly, in our

earlier en banc decision in Narragansett III, we held that the

language of section 1708(a) trumped any residual tribal sovereignty

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over the settlement lands, under which the Tribe had refused to

comply with certain state laws.3 See 449 F.3d at 26.

Then, in 1991, the tribal housing authority purchased the

Parcel in fee simple, acquiring title through purchase from a

private developer. The Parcel was part of the Tribe's aboriginal

lands claimed in the 1976 lawsuit. Under the Settlement Act, the

Tribe had thus relinquished aboriginal title to the Parcel, but the

Parcel is not part of the 1800 acres of settlement lands. It is

adjacent to the settlement lands, across a town road. In 1992, the

Housing Authority transferred the Parcel to the Tribe with a deed

restriction that the Parcel be placed in trust with the BIA for the

purpose of providing housing.

A dispute soon arose over whether development of the

Parcel had to comply with local law. The Tribe began construction

on the planned housing project without obtaining a building permit

from the Town or the State's approval of the individual sewage

disposal systems. The Tribe essentially took the position that

once it had purchased the Parcel, the land had become tribal land,

and the Tribe's inherent sovereignty meant that the Parcel was

exempt from local law. The State disagreed and filed suit in

federal court to enjoin the Tribe. See Narragansett Indian Tribe

3
In "an abundance of caution," we recognized that the
Tribe may still possess some autonomy in local government matters
such as membership rules, inheritance rules, and regulation of
domestic relations. Narragansett III, 449 F.3d at 26.

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v. Narragansett Elec. Co., 878 F. Supp. 349 (D.R.I. 1995).

Ultimately, the Tribe lost that litigation.4 See Narragansett II,

89 F.3d at 922.

The Tribe had sought to solve the issue of the

applicability of state law to the Parcel by applying to the

Secretary in 1993 to have the Parcel taken into trust under section

5 of the IRA. The Secretary's determination of whether to do so

was stayed pending the resolution of the federal court litigation.

After the litigation was resolved against the Tribe by this court

in 1996, id. at 922, the Tribe submitted a second application to

the Secretary.

The Tribe filed this updated application with the

Secretary in July 1997. In determining whether to take lands into

4
The Housing Authority was a duly recognized Indian
housing authority and was given HUD funds to finance the purchase
of the property and the construction of approximately 50 units of
housing. See Indian Housing Act of 1988, 42 U.S.C. §§ 1437aa-
1437ff (repealed by Native American Housing Assistance and Self-
Determination Act of 1996, 25 U.S.C. §§ 4101-4243).
The district court found the proposed housing project
could be 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 partially denied
injunctive relief. Narragansett Elec. Co., 878 F. Supp. at 355-57,
366. On appeal, this court held that the land for the housing
project was not a "dependent Indian community" because federal
ownership of the land and federal action to "set aside" the land
were lacking. Narragansett II, 89 F.3d at 921-22. Thus, the
Parcel could not be considered Indian country under 18 U.S.C.
§ 1151(b), and the housing project being constructed on the site
was not 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. 89 F.3d at 922.

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trust, the Secretary follows a regulatory process set forth at 25

C.F.R. part 151, which requires consideration of several factors.

If, as here, the land is off reservation, additional criteria

apply. See 25 C.F.R. § 151.11. Generally, the farther from a

reservation the land is, the greater the scrutiny the Secretary

gives to the justification of anticipated benefits from the

acquisition. See id. § 151.11(e); see also M.J. Sheppard, Taking

Indian Land into Trust, 44 S.D. L. Rev. 681, 686 (1999).

On March 6, 1998, the BIA notified the State of the

Secretary's intent to take the Parcel into trust for the Tribe.

The State appealed the decision to the Interior Board of Indian

Appeals (IBIA). The State argued, inter alia, that the Settlement

Act prohibited this action by the Secretary, and that in taking the

land into trust without the State's consent, the Secretary had

acted unconstitutionally. The IBIA affirmed the BIA's

determination on June 29, 2000. Town of Charlestown v. E. Area

Dir., Bureau of Indian Affairs, 35 I.B.I.A. 93, 106 (2000). It

noted it had no jurisdiction over the claims of

unconstitutionality.5 Id. at 97.

5
The IBIA rejected the State's insistence that the
Secretary take account of the potential use of the Parcel for
gaming purposes under the Indian Gaming Regulatory Act, 25 U.S.C.
§ 2701, calling such a possibility merely speculative. 35 I.B.I.A.
at 103. The IBIA also concluded that there had been no violation
of the Coastal Zone Management Act, 16 U.S.C. § 1451. 35 I.B.I.A.
at 103.

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 The State then instituted this action in federal court.

The district court, in a comprehensive decision, rejected the

State's claims. See Carcieri, 290 F. Supp. 2d 167. A divided

panel of this court affirmed. Carcieri v. Norton, 423 F.3d 45 (1st

Cir. 2005). The en banc court granted rehearing and withdrew the

panel opinion.

As described above and recounted in our en banc decision

in Narragansett III, 449 F.3d at 18-21, for several decades the

relationship between the Tribe and the State has been fraught with

tension.

The State's short-term concerns in this case have to do

with whether the particular project will conform with state and

local law. The State also has concerns that once land is taken

into trust, there will be very few mechanisms, other than

negotiation with the Tribe or appeal to the Secretary's authority

under 25 C.F.R. § 1.4(b), by which the State may secure compliance

with state and local laws.6 The State fears that the Tribe will

6
At oral argument, the Secretary indicated that although
a tribe has civil regulatory jurisdiction over lands taken into
trust, a state may seek to enforce its laws -- to the extent they
are not preempted by federal law -- on trust lands either by
agreement with the tribe or by seeking a determination in federal
court that the State's interests with respect to enforcing a
particular regulation outweigh the interests of the tribe and the
federal government in fostering tribal self-government. See Hicks,
533 U.S. at 362 ("When . . . state interests outside the
reservation are implicated, States [sometimes] may regulate the
activities even of tribe members on tribal land."); see also id. at
364 (holding that state officers may execute on tribal lands
process related to off-reservation violations of state law);

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convert or otherwise use the Parcel, or any future parcels that

might be acquired and put into trust, for income-producing

activities in which it normally would not be permitted to engage

under state law.

There has been federal litigation between state officials

and the Tribe and its members over such activities. In 2003, the

Tribe, seeking revenue, established on the settlement lands an

Indian Smoke Shop that sold cigarettes without purchasing state

cigarette stamps or collecting sales taxes then paid to the State,

as required by state law. The State Police raided the smoke shop

and initiated criminal prosecutions against tribe members. The

Tribe sought a declaratory judgment in federal court asserting that

its control over the smoke shop was an inherent function of tribal

sovereignty that survived the Settlement Act, despite the explicit

language in section 1708(a). We rejected that claim en banc.

Narragansett III, 449 F.3d at 30-31.

II.

A. Standard of Review

Technically, the claims at issue here are reviewed

through the lens of an APA appeal under 5 U.S.C. § 706. Our review

of such an appeal is de novo as to the district court's

conclusions. See Harvey v. Veneman, 396 F.3d 28, 33 (1st Cir.

Confederated Tribes, 447 U.S. at 151 (explaining that the state
could require Indian tribes to collect taxes on sales of cigarettes
to non-Indians). That issue is beyond the scope of this opinion.

-16-
2005). The underlying issues remaining in the case are statutory

and constitutional. Statutory issues are reviewed de novo by the

courts, but subject to established principles of deference to the

administering agency. Id. Constitutional claims are reviewed de

novo. See Cousins v. Sec'y of Transp., 880 F.2d 603, 610 (1st Cir.

1989) (en banc).

B. The 1934 Indian Reorganization Act

The State argues that the Secretary lacks authority to

place the Parcel into trust under 25 U.S.C. § 465 since, under the

definition of "Indian" in 25 U.S.C. § 479, that authority extends

only to tribes that were both federally "recognized" and "under

[f]ederal jurisdiction" on June 18, 1934, the effective date of the

IRA.

The State presents a series of cascading arguments.

First, the State argues that the plain language of section 479 is

clear, and that under that plain language, the Tribe's status is

measured as of 1934. The State further argues that its

interpretation of the statute is the only one consistent with the

purposes and legislative history of the Act. Thus, the State

argues that because the statute is unambiguous, deference to the

Secretary is unwarranted. In any event, the State argues that even

if deference might have been warranted, the Secretary's current

interpretation is not entitled to deference because it contradicts

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the Secretary's practice in the more than seventy years since the

passage of the IRA.

1. Chevron Analysis

The Secretary has offered an interpretation of the IRA

that permits trust acquisitions for tribes recognized and under

federal jurisdiction at the time the request for a trust

acquisition is made. A court reviewing an agency's interpretation

of a statute that it administers engages in a two-step analysis.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-43 (1984). We must first consider "whether Congress has

directly spoken to the precise question at issue." Id. at 842. If

congressional intent is clear, we "must give effect to the

unambiguously expressed intent of Congress." Id. at 842-43. "[I]f

the statute is silent or ambiguous with respect to the specific

issue," however, we must consider "whether the agency's

[interpretation] is based on a permissible construction of the

statute." Id. at 843.

(a) Whether Section 479 Is Ambiguous

We begin our analysis with the statutory text. Rucker v.

Lee Holding Co., 471 F.3d 6, 9 (1st Cir. 2006). The language at

issue is that contained in 25 U.S.C. § 479, which provides:

The term "Indian" as used in this Act shall
include all persons of Indian descent who are
members of any recognized Indian tribe now
under Federal jurisdiction, and all persons
who are descendants of such members who were,
on June 1, 1934, residing within the present

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 boundaries of any Indian reservation, and
shall further include all other persons of
one-half or more Indian blood.

One might have an initial instinct to read the word "now" in the

statute as the State does, to mean the date of enactment of the

statute, June 18, 1934. Congress certainly has used the word "now"

in this way. See, e.g., Montana v. Kennedy, 366 U.S. 308, 312

(1961) (interpreting the word "now" in a reenactment of an earlier

act to refer to the initial date of enactment).

Any such instinct quickly disappears upon further

examination, however. This is not a case that can be resolved by

looking to the plain meaning of the term "now" standing by itself.

"Now" means "at the present time," but there is ambiguity as to

whether to view the term "now" as operating at the moment Congress

enacted it or at the moment the Secretary invokes it. Indeed,

Congress sometimes uses the word "now" to refer to a time other

than the moment of enactment. See Difford v. Sec'y of Health &

Human Servs., 910 F.2d 1316, 1320 (6th Cir. 1990) (interpreting the

word "now" in a disability benefits termination provision to refer

to the time of the hearing); see also Pierce v. Pierce, 287 N.W.2d

879, 882 (Iowa 1980) (noting that the phrase "now hav[ing]

jurisdiction" in the Uniform Child Custody Jurisdiction Act "refers

to the time of the filing of the petition"); cf. Williams v.

Ragland, 567 So. 2d 63, 65-66 (La. 1990) (declining to interpret

"now serving" in a mandatory judicial retirement provision to refer

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to the date of enactment). There also are other layers of

ambiguity.

Given that the word "now" does not itself have a clear

meaning, we must look to context. Here, the context is equivocal.

On the one hand, the State points to 25 U.S.C. § 472, another

provision of the IRA, which refers to "positions maintained, now or

hereafter, by the Indian Office." The State argues that this use

of "now" unambiguously refers to the date of enactment and that had

Congress wanted to include later-recognized tribes in section 479,

it would have similarly added the words "or hereafter."

On the other hand, the Secretary points out that section

479 itself specifies the date of "June 1, 1934" as the relevant

date for determining eligibility based on "residing within the

present boundaries of any Indian reservation." The Secretary thus

counters that had Congress wanted to require recognition of a tribe

on the date of enactment, it would have specified that date, rather

than using the term "now." See also 25 U.S.C. § 478 (requiring

elections to be held "within one year after June 18, 1934").

Hence, "now" might mean "now or hereafter" or it might mean "June

18, 1934"; either would be consistent with some other part of the

statute.

Policy does not provide an obvious answer either: each

side has a plausible explanation that policy considerations favor

its interpretation. The State argues that the principal, perhaps

-20-
exclusive, concern of the 1934 statute was with remedying the

perceived ills of the prior practice of allotment. See Kahawaiolaa

v. Norton, 222 F. Supp. 2d 1213, 1220 n.10 (D. Haw. 2002). Because

the IRA ended allotments in 1934, see 25 U.S.C. § 461, they would

not have affected later-recognized tribes, and hence there would

have been no reason to include such tribes within the ambit of the

statute.

The Secretary takes the view that the Act was intended

not only to remedy past wrongs, but also to set a template for the

future that would encourage the strength and stability of tribal

communities. Based on this view, it would make no sense to

distinguish among tribes based on the happenstance of their federal

recognition status in 1934. The Secretary's view is buttressed by

the fact that the Act contains a number of provisions that have

nothing to do with land consolidation. See id. § 472 (Indian

employment preference); id. § 476 (tribal organization).

The State reads United States v. John, 437 U.S. 634

(1978), to indicate that the Supreme Court had an initial

interpretation of the Act that coincides with the State's

interpretation. It is unclear if the Court had any such

interpretation, and in any event, we find that John is not

controlling here. In John, the Fifth Circuit had found that the

Mississippi Choctaws were not eligible for benefits under the IRA

because the tribe had not been recognized in 1934. United States

-21-
v. John, 560 F.2d 1202, 1212 (5th Cir. 1977); see also United

States v. Miss. Tax Comm'n, 505 F.2d 633, 642 (5th Cir. 1974). The

Supreme Court reversed, relying on a different clause in the

statute and finding the tribe eligible for benefits under the IRA,

but on the basis that its members were "persons of one-half or more

Indian blood." 437 U.S. at 650.

Along the way, the Supreme Court stated:

The 1934 Act defined "Indians" not only as
"all persons of Indian descent who are members
of any recognized [in 1934] tribe now under
Federal jurisdiction," and their descendants
who then were residing on any Indian
reservation, but also as "all other persons of
one-half or more Indian blood."

Id. (alteration in original) (quoting 25 U.S.C. § 479 (1976)). The

bracketed addition may be read to support the State's position, but

the opinion contains no analysis on this point, and the Court

rested its holding on an entirely separate provision of the Act,

one not at issue here. We are mindful that the Supreme Court's

musings may warrant our attention. See Rossiter v. Potter, 357

F.3d 26, 31 n.3 (1st Cir. 2004); but see P. Leval, Judging Under

the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006).

In this case, however, given John's complete lack of analysis of

the provision that concerns us, the relevant language seems to us

to fall short even of being dicta.

Having found both text and context to be ambiguous, we

turn to legislative history. Despite the State's arguments to the

-22-
contrary, that history also does not clearly resolve the issue.

Indeed, it suggests a reading of the phrase "now under federal

jurisdiction" different from that offered by any of the parties,

and is thus another source of ambiguity.

The congressional record establishes that the phrase "now

under federal jurisdiction" was specifically added to the statutory

definition of "Indian," a term defined separately from "tribe."

See 25 U.S.C. § 479. The phrase was suggested by then-Commissioner

of Indian Affairs John Collier in response to the concern that not

all self-identified Indians deserved to benefit from the Act:

The Chairman. But the thing about it is this,
Senator; I think you have to sooner or later
eliminate those Indians who are at the present
time -- as I said the other day, you have a
tribe of Indians here, for instance in
northern California, several so-called
"tribes" there. They are no more Indians than
you or I, perhaps. I mean they are white
people essentially. And yet they are under
the supervision of the Government of the
United States, and there is no reason for it
at all, in my judgment. Their lands ought to
be turned over to them in severalty and
divided up and let them go ahead and operate
their own property in their own way.

Senator O'Mahoney. If I may suggest, that
could be handled by some separate provision
excluding from the benefits of the act certain
types, but must have a general definition.

Commissioner Collier. Would this not meet
your thought, Senator: After the words
"recognized Indian tribe" in line 1 insert
"now under Federal jurisdiction"? That would
limit the act to the Indians now under Federal
jurisdiction, except that other Indians of

-23-
 more than one-half Indian blood would get
help.

To Grant to Indians Living Under Federal Tutelage the Freedom To

Organize for Purposes of Local Self-Government and Economic

Enterprise: Hearing on S.2755 and S.3645 Before the S. Comm. on

Indian Affairs, 73d Cong. 266 (1934).

Commissioner Collier offered the phrase as a limitation,

but it is not clear whether it was intended as a temporal

limitation. If the committee was concerned about the bona fides of

an individual's status as an Indian and wanted to use the fact of

federal jurisdiction to measure those bona fides, then there would

have been no reason to distinguish between those under federal

jurisdiction in 1934 and those who later came under federal

jurisdiction. In fact, the colloquy quoted above suggests that the

committee sought to exclude some Indians already "under the

supervision of the Government of the United States." If the

purpose was to exclude those who might later be dropped from

federal jurisdiction, it would make more sense to measure status as

of the date benefits were sought, not as of the date of enactment

of the statute.

Indeed, the colloquy and the remainder of the hearing

suggest that the committee was focused on the issue of individual

Indians who received benefits from the federal government on the

basis of a limited heritage and without acting as a part of a

tribal community. Earlier in the session, the chairman had raised

-24-
the case of a "former Vice President of the United States," who was

apparently receiving Indian benefits, asking, "Why should the

Government of the United States be managing the property of a lot

of Indians who are practically white and hold office and do

everything else, but in order to evade taxes or in order to do

something else they come in under the Government supervision and

control?" Id. at 264.

Thus, although none of the parties have raised this, it

may well be that the phrase "now under federal jurisdiction" was

intended to modify not "recognized Indian tribe," but rather "all

persons of Indian descent." So interpreted, the purpose of the

phrase might well have been to grandfather in those individuals

already receiving federal benefits, but to otherwise insist that in

the future, only individuals with at least one-half Indian blood

would qualify. In that case, the limitation may well have been a

temporal one, but the limitation, temporal or not, may have been

intended to affect only the Secretary's authority to act for the

benefit of an "individual Indian," not an "Indian tribe." See 25

U.S.C. § 465 ("Title to any lands or rights acquired pursuant to

this Act . . . shall be taken in the name of the United States in

trust for the Indian tribe or individual Indian for which the land

is acquired . . . ." (emphasis added)). After all, while Congress

may have been concerned about misdirecting resources to individuals

who were only Indians in name, the same concern would not apply to

-25-
federally recognized tribes, regardless of the date of federal

recognition. In any event, this piece of legislative history amply

supports the view that the statute is at least ambiguous and leaves

room for administrative interpretation.

The other relevant piece of legislative history, heavily

relied upon by the State, is the statement of Representative Edgar

Howard, a cosponsor of the IRA:

For purposes of this act, [the definitional
section] defines the persons who shall be
classed as Indian. In essence, it recognizes
the status quo of the present reservation
Indians and further includes all other persons
of one-fourth Indian blood. The latter
provision is intended to prevent persons of
less than one-fourth Indian blood who are
already enrolled members of a tribe or
descendants of such members living on a
reservation from claiming financial and other
benefits of the act. Obviously the line must
be drawn somewhere . . .

Kahawaiolaa, 222 F. Supp. 2d at 1220 n.10 (emphasis omitted)

(quoting Congressional Debate on Wheeler-Howard Bill (1934) in III

The American Indian and the United States (1973)) (internal

quotation marks omitted).

The State interprets the reference to "status quo" as

supporting its view that federal recognition of tribes was

essentially frozen for purposes of the IRA in 1934. This seems to

be a misinterpretation of the quote, however. Representative

Howard did not say that the Act would "maintain" or "preserve" the

status quo; rather he stated that the Act would "recognize" it.

-26-
Moreover, the quote refers not to Indian tribes, but to

"reservation Indians." Thus, in context, this sentence is more

likely a reference to that portion of the definition of an Indian,

not at issue here, that covers "all persons who are descendants of

such members who were, on June 1, 1934, residing within the present

boundaries of any Indian reservation." 25 U.S.C. § 479. This

provision, with its explicit reference to 1934, covered those

people of Indian descent then living on a reservation, without

regard to whether they might independently qualify as Indians under

the Act. In that sense, the definition accepted and "recognized"

the status quo of the reservations.

Thus, we find from the text, context, and legislative

history that section 479 is at least ambiguous as to whether the

phrase "now under federal jurisdiction" disqualifies tribes that

were federally recognized after 1934, such as the Narragansett

Tribe, from the benefits of the IRA.7

7
We reject two additional arguments offered by the State.
First, it is not significant that 25 U.S.C. § 478 required tribes
to opt out of the IRA by a fixed date, rather than one that
depended on the date of recognition. In general, it is difficult
to see why any tribe would opt out of a statute designed to benefit
it, and the legislative history suggests that the provision was a
legacy from earlier drafts of the bill that imposed duties on
tribes in return for the benefits. See Hearing on S.2755 and
S.3645, supra, at 262. As eventually passed, the only potential
purpose of the election was to protect the rights of those that
preferred the allotment system, an issue not relevant to tribes
recognized after 1934.
Second, we hesitate to attach much weight to the fact
that later Congresses have explicitly provided for the IRA to apply
to newly recognized tribes. As the Supreme Court has recently

-27-
 (b) Whether the Secretary's Interpretation Is
Permissible

As we have found the meaning of section 479 to be

ambiguous, we must consider whether the Secretary's interpretation

is "permissible." Chevron, 467 U.S. at 843. An interpretation is

permissible if it is "rational and consistent with the statute."

NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S.

112, 123 (1987). The Secretary's construction meets this test. As

discussed above, it is reasonable and is consistent with the

language and legislative history of the IRA. It also is consistent

with the policy of the IRA, which, as we have indicated, may

permissibly be viewed not only as intending to reverse the

government's allotment policy, but also as affirmatively conferring

benefits on Indians, including Indian employment preferences and a

statutory right to organize and adopt governing documents.

We therefore reject the State's argument that the text

and purposes of the IRA prohibit the Secretary's interpretation of

section 479. Rather, we find that the Secretary's construction of

section 479 as allowing trust acquisitions for tribes that are

cautioned again, the views of later Congresses carry little weight
in determining the intent of the Congress that enacted the statute
in question. See Massachusetts v. EPA, 127 S. Ct. 1438, 1460 &
n.27 (2007). For the same reason, we do not take later enactments
such as the 1994 amendments to section 476 to establish that
Congress intended to make no distinctions among tribes in 1934.
The parties have not pointed us to contemporaneous legislation that
sheds further light on the issue.

-28-
recognized and under federal jurisdiction at the time of the trust

application is entitled to deference.

2. Alleged Inconsistency of the Secretary's
Interpretation

The State makes a separate argument on which it heavily

relies. It argues that the Secretary's interpretation of section

479 to allow trust acquisitions for tribes not federally recognized

in 1934 represents a change in position as to the eligibility of

tribes for IRA benefits, and that this interpretation therefore is

not entitled to deference. The State relies particularly on

historical practice, and says that the Secretary has never, or at

least has hardly ever, identified as IRA-eligible a tribal entity

that was not federally recognized in 1934 and does not meet the

half-blood test. The evidence is limited with respect to whether

the Secretary's interpretation of section 479 of the IRA has been

consistent over the past seventy-three years.8

The consistency of the Secretary's construction is

supported, though not directly, by a regulation promulgated by the

Secretary in 1980. The regulation, found at 25 C.F.R. § 151.2,

sets forth definitions that pertain to the regulations governing

trust acquisitions. 25 C.F.R. § 151.2(b) defines a tribe that may

be eligible for a trust acquisition as "any Indian tribe, band,

8
One difficulty arises from the fact that there seems to
be no comprehensive list of tribes that were recognized and under
federal jurisdiction as of June 18, 1934.

-29-
nation, pueblo, community, rancheria, colony, or other group of

Indians . . . which is recognized by the Secretary as eligible for

the special programs and services from the Bureau of Indian

Affairs." The regulation does not distinguish between tribes

recognized before June 18, 1934 and those recognized thereafter.

Rather, it suggests that whether or not a group of Indians is

considered a tribe, and therefore may be eligible to have land

taken into trust, turns on a tribe's federal recognition status at

the time a trust acquisition is requested.

Moreover, the Secretary's proffered interpretation of

"now" as meaning "today" is consistent with regulations

implementing other provisions of the IRA.9 For example, the

regulation implementing 25 U.S.C. § 466, which directs the

Secretary to regulate the operation and management of Indian

forestry units, states that it applies to "any Indian tribe . . .

which is recognized as eligible for the special programs and

services provided by the United States to Indians because of their

status as Indians." 25 C.F.R. § 163.1. Similarly, the regulation

9
The Secretary's interpretation also is consistent with
regulations interpreting and implementing other federal statutes
establishing Indian programs and services. For example, the
applicability of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-
1963, the applicability of minimum standards for basic education of
Indian children in schools operated by the BIA, id. § 2001, and
eligibility for Indian financial assistance and social services
programs, id. § 13, all are defined in terms of current federal
recognition. See 25 C.F.R. § 23.2; id. § 36.3; id. § 20.100.

-30-
implementing 25 U.S.C. § 476, which allows eligible Indian tribes

to organize and adopt constitutions and bylaws, defines eligibility

in current terms: all Indian entities that have not voted to

exclude themselves from the IRA and that are "included, or [are]

eligible to be included, among those tribes . . . recognized and

receiving services from the [BIA]" are eligible to organize under

section 476. 25 C.F.R. § 81.1.

As to the Secretary's trust acquisition practice, it is

not seriously disputed that the Secretary has never rejected an

application to take land into trust for a federally recognized

tribe on the ground that the tribe was not recognized and under

federal jurisdiction in 1934. Responding to the State's

allegations about whose trust acquisition applications have been

granted, the Secretary and Indian amici have submitted to us lists

of tribes that they assert were not federally recognized in 1934

for whom land has since been taken into trust. The State disputes

this evidence, arguing that nearly all of the identified tribes

either have no trust lands, are not "newly recognized" because they

were under federal jurisdiction in 1934, or have obtained

legislation from Congress specifically permitting trust

acquisitions on their behalf.

The State's evidence of inconsistent practice is not

persuasive. For example, although the State seems to concede that

the Miccosukee Tribe was not recognized in 1934, it argues that the

-31-
later trust acquisition for that tribe identified by Indian amici

was made pursuant to specific statutory authorization, not section

465. But the statute to which the State points us, 25 U.S.C.

§§ 1741-1750e, does not itself authorize acquisition of the parcel

identified by Indian amici. Rather, it authorizes acquisition of

a different parcel. Indeed, in taking the parcel identified by

Indian amici into trust, the Secretary explicitly relied on his

authority under section 465.

Turning to a different distinction, the State argues that

eight of the tribes identified by Indian amici were recognized and

under federal jurisdiction in 1934 because they previously had

signed treaties with the United States. It is not self-evident

that simply because a tribe had signed a treaty with the U.S.

government it necessarily was recognized and under federal

jurisdiction in 1934; recognition as intended in section 479

requires an ongoing government-to-government relationship between

a tribe and the United States. See Cohen's Handbook of Federal

Indian Law § 3.02(3), at 138-40 (N.J. Newton et al., eds 2005).

Whether or not a treaty executed before 1934 has

significance, however, the evidence is still that the Secretary has

taken land into trust for tribes that did not appear to be

federally recognized in 1934. We note two examples. The Secretary

has taken land into trust for the Sault Ste. Marie Band of Chippewa

Indians despite the Secretary's position that, regardless of prior

-32-
treaties, the Band was not federally recognized in 1934. The Sault

Ste. Marie Band is a successor to some of the Chippewa tribes that

had signed treaties with the United States between 1785 and 1855.

In addition, in 1855 the Band had signed two treaties with the

United States. Despite those treaties, however, by 1917 the

Department of the Interior did not recognize the Band as an entity

with which it had government-to-government relations. Opinion of

Nat’l Indian Gaming Comm’n, The St. Ignace Parcel at 7 (July 31,

2006); see also City of Sault Ste. Marie v. Andrus, 532 F. Supp.

157, 161 (D.D.C. 1980) (indicating that a period of non-recognition

existed by stating that "although the question of whether some

groups qualified as Indian tribes for purposes of IRA benefits

might have been unclear in 1934, that fact does not preclude the

Secretary from subsequently determining that a given tribe deserved

recognition in 1934"). The State rejoins that the Department of

the Interior cannot abrogate an Indian treaty. But the validity of

the Department’s treatment of the Sault Ste. Marie Band's status

under the treaties is not the issue before us. What is important

is the Department's position that the Band was not recognized and

under federal jurisdiction in 1934. Id. at 16. Nevertheless,

after 1934, the Secretary has invoked his section 465 authority to

take land into trust for the Band.

The Grand Traverse Band of Ottawa and Chippewa Indians

provides a similar example. The Secretary has taken land into

-33-
trust for the Grand Traverse Band, which the Department of the

Interior ceased to recognize in 1872. The Grand Traverse Band

signed the 1855 Treaty of Detroit with the United States. In 1872,

however, the then-Secretary of the Interior severed the United

States’ relationship with the Band and ceased to treat the Band as

a federally recognized tribe. Grand Traverse Band of Ottawa &

Chippewa Indians v. U.S. Attorney for the W. Dist. of Mich., 369

F.3d 960, 961 (6th Cir. 2004); see also Grand Traverse Band of

Ottawa & Chippewa Indians v. U.S. Attorney for the W. Dist. of

Mich., 198 F. Supp. 2d 920, 924 (W.D. Mich. 2002) ("Between 1872

and 1980, the Band continually sought to regain its status as a

federally recognized tribe."). Yet, the Secretary has invoked his

authority under section 465 to take twenty-one parcels of land into

trust for the Band.10

10
Indian amici also submitted opinions of the Solicitor of
the Department of the Interior discussing various tribes’
eligibility to organize under the IRA as evidence that the
Secretary has consistently interpreted “now” in section 479 to mean
“today.” The State’s attempt to distinguish these opinions is
unsuccessful. For example, in discussing the IRA eligibility of
the St. Croix Indians of Wisconsin, the Solicitor makes no mention
whatsoever of the tribe’s status as of 1934. Solicitor’s Opinion,
Jan. 29, 1941, 1 Op. Sol. on Indian Affairs 1026 (1979). The State
argues that it is clear from context that the tribe was not
recognized as of 1934. Yet, although this is true, the Solicitor
discusses the fact that the tribe has never had a separate tribal
status, and that until it does so, only those Indians who meet the
half-blood test are eligible to organize under the IRA. Id. at
1027. Moreover, contrary to the State’s position, the Solicitor’s
opinion indicates that if the tribe takes certain steps, it may
later become eligible to organize under the IRA as a recognized
band. Id.
Similarly, in discussing the Nahma and Beaver Island

-34-
 The State also concedes that the Secretary appears to

have taken land into trust for two tribes, the Tunica-Biloxi Indian

Tribe and the Narragansetts themselves, that were not under federal

jurisdiction in 1934 and for whom Congress has passed no specific

act authorizing trust acquisitions. Even if we had no reason to

doubt the State's argument that the Secretary has not historically

taken land into trust for tribes not recognized in 1934, however,

in at least some cases the Secretary has not looked to the status

of the tribe in 1934 or to the specific statutory authority

identified by the State in making the determination to take land

into trust. In Baker v. Muskogee Area Dir., 19 I.B.I.A. 164

(1991), for example, the IBIA, in concluding that particular

members of the Cherokee Nation of Oklahoma were eligible to have

land taken into trust, did not rely on the 1936 Oklahoma Indian

Welfare Act, 25 U.S.C. §§ 501-570, which authorized the Secretary

to take land into trust for Indians in Oklahoma. Rather, the IBIA

stated that the Indians "c[a]me within the IRA definition because

they are members of a recognized Indian tribe under Federal

Indians’ eligibility to organize under the IRA, the Solicitor
discusses the tribe’s historical status, but then continues to
discuss its then-current situation. Solicitor’s Opinion, May 31,
1937, 1 Op. Sol. on Indian Affairs 747, 747-48 (1979). If the
Solicitor had been concerned only with the tribe’s status as of
1934, there would have been no reason for him to have considered
the "recent . . . attitude of the Interior Department on the band
status" of the Nahma and Beaver Indians, nor for him to state that
it was "out of the question to establish any existing band status"
before concluding that the Indians were eligible for organization
only under the IRA's half-blood provision. Id. at 748.

-35-
jurisdiction." 19 I.B.I.A. at 179. The Secretary thus seems to

have intended to exercise his section 465 authority to take land

into trust on the basis of current federal recognition.

The State has not met its burden of showing inconsistent

interpretation by the Secretary. Moreover, even if the State had

shown that the Secretary has changed his interpretation of section

479 over time, that would not necessarily resolve the matter in the

State's favor. The Chevron doctrine permits the Secretary some

ability to alter his interpretation over time. See Nat'l Cable &

Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82

(2005) (under Chevron, an agency should have flexibility to vary

its interpretation of a statute over time). The Secretary has

given a reasoned explanation for his interpretation.

We reject the State's argument that the Secretary has

been inconsistent in his interpretation of section 479 and is

therefore not entitled to deference.

C. The Settlement Act

The State's next attack is to argue that the Settlement

Act repealed the Secretary's trust authority as to all lands in

Rhode Island. Alternatively, the State argues that the Settlement

Act at least curtailed that authority so that any trust must

preserve the State's civil and criminal jurisdiction over the

Parcel.

-36-
 There is simply nothing in the text of the Settlement

Act, however, that accomplishes such a repeal or curtailment of the

Secretary's trust authority. 25 U.S.C. § 1708(a) provides:

Except as otherwise provided in this [Act],
the settlement lands shall be subject to the
civil and criminal laws and jurisdiction of
the State of Rhode Island.

(emphasis added). The State would have us read the Act as if

section 1708(a) applied to all lands the Tribe might ever acquire,

either directly or as the beneficiary of a trust, but that is not

what the section says. By its terms, section 1708(a) applies state

law only to the 1800 acres of "settlement lands." The Parcel is

not part of the settlement lands. No other provision of the

Settlement Act directly provides for state jurisdiction outside of

the settlement lands. No language in the Act applies state law to

lands the Tribe might later acquire. More importantly, no language

explicitly curtails, or even references, the Secretary's power

under the IRA to take lands into trust and thereby to create Indian

country.11

11
Nor is this case controlled by our en banc decision in
Narragansett III. That case concerned the State's jurisdiction
over the settlement lands, see 449 F.3d at 20, and has no bearing
on whether the Settlement Act abrogates the Secretary's trust
authority outside of the settlement lands. Similarly, cases
holding that section 1708(a) survived federal recognition and the
conveyance of the settlement lands to federal trust are of no help
to the State, since section 1708(a) refers only to the settlement
lands. See Narragansett Indian Tribe v. Nat'l Indian Gaming
Comm'n, 158 F.3d 1335, 1341-42 (D.C. Cir. 1998); Narragansett I, 19
F.3d at 694-95.

-37-
 The State's argument thus depends on finding that the

Settlement Act implicitly repealed the IRA, at least in part.12 The

framework for evaluating such a claim of implicit repeal was set

out by the Supreme Court in Morton v. Mancari, 417 U.S. 535 (1974).

First, we must look to affirmative manifestations of congressional

intent to repeal the prior act, mindful of the "cardinal rule . . .

that repeals by implication are not favored." Id. at 549 (omission

in original) (quoting Posadas v. Nat'l City Bank of N.Y., 296 U.S.

497, 503 (1936)) (internal quotation marks omitted). "In the

absence of some affirmative showing of an intention to repeal, the

only permissible justification for [finding] a repeal by

implication is [that] the earlier and later statutes are

irreconcilable." Id. at 550. Such a conflict is not lightly to be

found. "[A]bsent a clearly expressed congressional intention to

the contrary," we must "give effect to both [acts] if possible."

Id. at 551 (quoting United States v. Borden Co., 308 U.S. 188, 198

(1939)) (internal quotation marks omitted).

A determination of congressional intent must be rooted in

the text of the Act. Nothing in the Act explicitly curtails the

12
The State adds nothing to its argument by also styling it
as an issue of claim preclusion. Obviously, the earlier litigation
that resulted in the Settlement Act could not have resolved the
question raised in this case of whether the Settlement Act
restricts the Secretary's trust authority under the IRA. By
invoking "principles of res judicata," the State means nothing more
than that the Tribe should be held to the settlement to which it
previously agreed. What precisely the Tribe agreed to in the
settlement is, of course, the question we are addressing.

-38-
Secretary's trust authority. The State offers two different lines

of argument as to why provisions of the Act must be read to

restrict that authority. One concerns how the Act affects the

Tribe's rights; the other concerns how the Act affects the

Secretary's authority. The provisions of the Settlement Act cited

by the State, however, are most naturally read as merely resolving

the claims that had clouded the titles of so much land in Rhode

Island and that had led to the settlement embodied in the Act.

As to the provisions affecting the Tribe, the State

relies independently on the extinguishment of aboriginal title in

25 U.S.C. §§ 1705(a)(2) and 1712(a)(2) and the further

extinguishment in sections 1705(a)(3) and 1712(a)(3) of "all claims

. . . based upon any interest in or right involving" certain land

or natural resources. These provisions, however, follow

sections 1705(a)(1) and 1712(a)(1), respectively, which validate

"any transfer of land or natural resources" in the United States by

the Narragansett Tribe or in Rhode Island by any Indian tribe "as

of the date of said transfer."13 The provisions then go on to

state:

(2) [T]o the extent that any transfer of land
or natural resources described in subsection
(a) of this section may involve land or

13
Section 1705 applies to the Narragansett Tribe and any
land in Charlestown, Rhode Island. Section 1712 applies to land
elsewhere in Rhode Island transferred by other Indian tribes. The
relevant provisions in each are materially the same for our
purposes here.

-39-
 natural resources to which [an Indian tribe]
had aboriginal title, subsection (a) of this
section shall be regarded as an extinguishment
of such aboriginal title as of the date of
said transfer; and

(3) by virtue of the approval of a transfer of
land or natural resources effected by this
section, or an extinguishment of aboriginal
title effected thereby, all claims . . . by
the [Narragansett Tribe], or any predecessor
or successor in interest, member or
stockholder thereof, or any other Indian,
Indian nation, or tribe of Indians, arising
subsequent to the transfer and based upon any
interest in or right involving such land or
natural resources (including but not limited
to claims for trespass damages or claims for
use and occupancy) shall be regarded as
extinguished as of the date of the transfer.

25 U.S.C. § 1705(a). Given the references back to the transfers

validated in paragraph (1), the evident purpose of these provisions

is to extinguish claims based on the purported invalidity of those

transfers.

The State's arguments that the provisions should be read

more broadly are unavailing. First, the State argues that the

extinguishment of aboriginal title over land in Rhode Island

precludes the later exercise of tribal sovereignty over Rhode

Island land acquired by the Secretary in unrestricted trust. The

Secretary disputes whether aboriginal title is ever the basis for

tribal sovereignty, but in any event, it is clear that such title

is not the only basis for tribal sovereignty. This is evident from

the Supreme Court's decision in City of Sherrill v. Oneida Indian

Nation, 544 U.S. 197 (2005). In Sherrill, the Supreme Court both

-40-
held that "the Tribe [could not] unilaterally revive its ancient

sovereignty, in whole or in part, over the parcels at issue," id.

at 202-03, and directed the Oneidas to 25 U.S.C. § 465 as "the

proper avenue for [the tribe] to reestablish sovereign authority

over [the relevant] territory," id. at 221. The State's

protestation that Sherrill did not involve a statutory

extinguishment of aboriginal title is beside the point. However

aboriginal title or ancient sovereignty was lost, the IRA provides

an alternative means of establishing tribal sovereignty over land.

Trust acquisition is not incompatible with the

extinguishment of aboriginal title. The Mashantucket Pequot Indian

Claims Settlement Act, for example, contains virtually identical

language extinguishing aboriginal title "to any land or natural

resources the transfer of which was approved and ratified" by the

Act. 25 U.S.C. § 1753(b). At the same time, the Act provides that

certain land and natural resources "located within the settlement

lands shall be held in trust by the United States for the benefit

of the Tribe," id. § 1754(b)(7), and that such lands are "declared

to be Indian country," id. §§ 1752(7), 1755. It is implausible to

think that Congress intended the extinguishment of aboriginal title

in the Rhode Island Settlement Act to preclude the taking of land

-41-
into unrestricted trust, but did not intend for identical language

in the Mashantucket Settlement Act to do so.14

Alternatively, the State argues that the "all claims"

language in paragraph (3) even more broadly forecloses the

assertion of tribal sovereignty over non-settlement lands. To hold

otherwise, says the State, would render that language surplusage.

Paragraphs (2) and (3) are complementary, however, not duplicative.

While paragraph (2) extinguishes a form of title, paragraph (3)

extinguishes claims. Moreover, paragraph (3) covers claims based

on other forms of title, besides aboriginal title, that the Tribe

might have held to land in Rhode Island prior to the Settlement

Act.

The State's broad interpretation of paragraph (3) proves

too much. The State argues that the paragraph precludes an

assertion of tribal sovereignty over any land in Rhode Island.

Nothing in the language of the provision, which refers to "any

interest in or right involving" such land, distinguishes between

claims of sovereignty and traditional property claims. Indeed, the

latter are explicitly included. See id. § 1705(a)(3) ("including

but not limited to claims for trespass damages or claims for use

and occupancy"). It would be highly improbable that Congress

14
We attach little significance to the fact that the
Mashantucket Settlement Act explicitly authorizes trust
acquisition, while the Rhode Island Settlement Act does not. The
former, unlike the latter, granted federal recognition to the
tribe. See 25 U.S.C. § 1758(a).

-42-
intended to prevent the Tribe from asserting any ownership interest

over land it purchased outside the settlement lands, and it would

be contradictory as to the settlement lands themselves. Thus,

there is no support for reading this provision as precluding all

future assertions of tribal sovereignty over land in Rhode Island.

Ultimately, this entire line of argument by the State

misses the point that what is at issue is not what the Tribe may do

in the exercise of its rights, but what the Secretary may do. The

displacement of state law arises from the Secretary's authority and

not from the Tribe's mere purchase of the land. See Cass County,

Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 113-15

(1998). In order to prevail on its claim of implied repeal, the

State must show that the Settlement Act repeals the Secretary's

authority under the IRA.

As to the implied repeal of the Secretary's power, the

State first argues that the Secretary is bound by the

extinguishment of the Tribe's claims because that extinguishment

binds the Tribe's "successor in interest." 25 U.S.C. § 1705(a)(2),

(3). Even if the Secretary is such a "successor in interest,"

however, those provisions cannot plausibly be read to repeal the

Secretary's power under the IRA to take land into trust. The

Secretary's power does not turn on the Tribe's original aboriginal

interest in the Parcel, before it purchased the land, nor does it

-43-
turn on whether the Secretary is a successor in interest to the

Tribe.15

The State also relies on 25 U.S.C. § 1707(c), which

provides:

Upon the discharge of the Secretary's duties
under sections 1704, 1705, 1706, and 1707 of
this title, the United States shall have no
further duties or liabilities under this
subchapter with respect to the Indian
Corporation or its successor, the State
Corporation, or the settlement lands. . . .

The language of this provision, however, cannot be read to have a

preclusive effect or to limit the Secretary's powers in any way.

The statement that the United States has "no further duties or

liabilities under this subchapter" merely delimits the federal

government's obligations in implementing the Settlement Act.

We reject the State's suggestion that this language

parallels the language in the Mashantucket Settlement Act that the

Second Circuit found to prohibit certain trust acquisitions. See

Connecticut ex rel. Blumenthal v. U.S. Dep't of Interior, 228 F.3d

82, 88 (2d Cir. 2000). The Mashantucket Settlement Act uses very

15
We do not accept the State's comparison of the Rhode
Island Settlement Act to the Alaska Native Claims Settlement Act
(ANCSA), 43 U.S.C. §§ 1601-1629h, and the resulting suggestion that
trust acquisition would be as inappropriate in Rhode Island as it
purportedly would be in Alaska. ANCSA eliminated previously
existing Indian country in Alaska. See Native Vill. of Venetie,
522 U.S. at 532-34. Even if one might infer from that elimination
an intent to preclude later trust acquisitions, no such intent can
be inferred from the Rhode Island Settlement Act's failure to
affirmatively establish Indian country for an as-yet unrecognized
tribe.

-44-
different language that provides that "the United States shall have

no further trust responsibility with respect to [certain] land and

natural resources" outside of the settlement lands. 25 U.S.C.

§ 1754(b)(8). Disclaiming "trust responsibility" over land is

nothing like disclaiming "duties or liabilities under this

subchapter."

There is nothing in the text of the Settlement Act that

clearly indicates an intent to repeal the Secretary's trust

acquisition powers under the IRA, or that is fundamentally

inconsistent with those powers.16 This lack of language is not

because either Congress or the parties failed to anticipate that

the Tribe might later become federally recognized and eligible for

the benefits of the IRA. The Settlement Act specifically provides

for a restraint on alienation of the settlement lands "if the

Secretary subsequently acknowledges the existence of the

Narragansett Tribe of Indians." Id. § 1707(c). The underlying

JMOU also explicitly recognized that the Tribe would "not receive

Federal recognition" in the implementation of the settlement, but

would "have the same right to petition for such recognition . . .

as other groups." JMOU para. 15.

Had the Act intended to limit the Secretary's trust

authority in case of federal recognition, it could have done so

16
The State has not cited any legislative history that might
lead us to interpret the text differently.

-45-
explicitly. It would have been easy to extend the provisions of

section 1708(a) preserving state sovereignty to cover all lands in

Rhode Island owned by or held in trust for the Tribe. No such

language appears in the Act. Similarly, as the IBIA also noted,

paragraph 15 of the JMOU would have been "a logical place for the

parties to set out any restrictions" on the Secretary's trust

authority following federal recognition of the Tribe. Town of

Charlestown, 35 I.B.I.A. at 101. No such restrictions appear. Nor

does the Settlement Act contemplate any role for the State to play

in the Secretary's decision whether to take the land into trust.

This is in contrast to the Indian Gaming Regulatory Act.

In other settlement acts, Congress has specifically

described limits on the Secretary's trust authority. In the Maine

Indian Claims Settlement Act, Congress expressly precluded

application of section 465. 25 U.S.C. § 1724(e) ("Except for the

provisions of this [Act], the United States shall have no other

authority to acquire lands or natural resources in trust for the

benefit of Indians or Indian nations, or tribes, or bands of

Indians in the State of Maine."). In the Mashantucket Settlement

Act, Congress precluded the trust acquisition of non-settlement

lands purchased with settlement funds. See Blumenthal, 228 F.3d at

-46-
88. The absence of any restrictions in the Settlement Act supports

our finding that no restrictions were intended.17 See id. at 90.

The State's fallback position is that the Settlement Act

requires that this court order the Secretary to honor the intent of

the bargain it believes is embodied in the Act by putting the

Parcel into a restricted trust, subject to state laws and

jurisdiction.18 Acknowledging the genuineness of the State's sense

that its bargain has been upset, we find that the relief it seeks

is not an appropriate exercise of judicial power.

In the Settlement Act, the State procured at least two

clear benefits: (1) the settling of disputed land claims and (2)

the application of its civil and criminal laws and jurisdiction to

the settlement lands. Beyond that, the State argues that it would

never have agreed to displacement of state law as to later acquired

parcels if the issue had surfaced during the negotiations. The

17
There are also other examples of Congress's imposing
explicit conditions on the taking of land into trust, for example,
by limiting the number of acres of land and the number of acre feet
of water rights. See Nevada v. United States, 221 F. Supp. 2d
1241, 1244 (D. Nev. 2002) (discussing section 103(A) of the Fallon
Paiute Shoshone Indian Tribe Water Rights Settlement Act of 1990,
Pub. L. No. 101-618, 104 Stat. 3289, 3291).
18
The Secretary takes the position that he has no authority
to impose restrictions on land taken into trust under the IRA,
absent a statutory directive imposing such restrictions. We do not
reach this issue. To the extent that the State argues that the
Settlement Act itself is such a statutory directive requiring a
restricted trust, we reject that argument for the same reasons that
we found that the Settlement Act does not eliminate trust authority
altogether.

-47-
State argues that the practical consequences of the unrestricted

trust leave it in an entirely unsatisfactory position and undermine

the central bargain. Rhode Island points out that it is a small,

very populous state and that the practical consequences of

establishing Indian country for its nearby towns may be far greater

than they would be in less densely populated areas.

Even so, we are still bound by the language of the

Settlement Act. Even viewing the State's argument in contract

terms, it is rare that a court will step in and reform a contract.

See Broadley v. Mashpee Neck Marina, Inc., 471 F.3d 272, 275 (1st

Cir. 2006) (reversing the district court's reformation of a

contract). Our ability to edit, as opposed to interpret, an act of

Congress is no less constrained: only a finding of absurdity, not

present here, provides the necessary precondition. Compare Green

v. Bock Laundry Mach. Co., 490 U.S. 504, 510-11 (1989) (editing a

federal rule of evidence where the apparent distinction between

civil plaintiffs and civil defendants would be "unfathomable"),

with W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 100-01 (1991)

(refusing to read in an additional component to a fee-shifting

provision on the basis that Congress "simply forgot" to include

it). See also Blumenthal, 228 F.3d at 91 ("While we might question

the wisdom of different jurisdictional provisions governing

different trust lands, we will not provide a strained

-48-
interpretation of the Settlement Act simply to avoid such a

result."). The judiciary may not usurp the role of Congress.

D. Constitutional Claims

In support of recognition of its state sovereignty

interests under the Constitution, the State presents four

arguments. It argues first that the Indian Commerce Clause, U.S.

Const. art. I, § 8, cl. 3, does not provide the Secretary the

authority to displace state law within a state's boundaries, and

that section 465 of the IRA therefore violates the Tenth Amendment.

Next, it argues that the Secretary may not, in any event, displace

state law without the State's consent, by operation of the Enclave

Clause of the Constitution. Id. art. I, § 8, cl. 17. The State

further argues that the Secretary's action is barred by the

Admissions Clause, id. art. IV, § 3, cl. 1, which prohibits

formation of new states within the jurisdiction of any other state.

Finally, the State argues that section 465 is an unconstitutional

delegation of legislative authority. We reject all of these

arguments.

1. The Indian Commerce Clause and the Tenth Amendment

The authority to regulate Indian affairs is within the

enumerated powers of the federal government. Id. art. I, § 8, cl.

3; Cotton Petroleum Corp., 490 U.S. at 192 ("[T]he central function

of the Indian Commerce Clause is to provide Congress with plenary

power to legislate in the field of Indian affairs."); Morton, 417

-49-
U.S. at 551 (noting that Congress has plenary power "to deal with

the special problems of Indians," including the power to legislate

on their behalf). "With the adoption of the Constitution, Indian

relations became the exclusive province of federal law." County of

Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234 (1985);

see also United States v. Forty-Three Gallons of Whiskey, 93 U.S.

188, 194 (1876) ("Congress now has the exclusive and absolute power

to regulate commerce with the Indian tribes . . . .").

The Tenth Amendment to the U.S. Constitution reserves to

the states those powers not expressly delegated to the federal

government. The powers delegated to the federal government and

those reserved to the states by the Tenth Amendment are mutually

exclusive. "If a power is delegated to Congress in the

Constitution, the Tenth Amendment expressly disclaims any

reservation of that power to the States . . . ." New York v.

United States, 505 U.S. 144, 156 (1992). Because Congress has

plenary authority to regulate Indian affairs, section 465 of the

IRA does not offend the Tenth Amendment. Cf. Herrera-Inirio v.

INS, 208 F.3d 299, 307 (1st Cir. 2000) ("Because Congress possesses

plenary authority over immigration-related matters, it may freely

displace or preempt state laws in respect to such matters.").

2. The Enclave Clause

The Enclave Clause of the Constitution provides that

Congress may "exercise exclusive legislation . . . over all places

-50-
purchased by the consent of the legislature of the state in which

the same shall be, for the erection of forts, magazines, arsenals,

dockyards, and other needful buildings." U.S. Const. art. I, § 8,

cl. 17. The Enclave Clause's provision for exclusive federal

jurisdiction was intended to ensure that "places on which the

security of the entire Union may depend" are not "in any degree

dependent on a particular member of it." Fort Leavenworth R.R. Co.

v. Lowe, 114 U.S. 525, 530 (1885) (quoting The Federalist No. 43

(James Madison)) (internal quotation marks omitted). The State

argues that "[p]rimary federal jurisdiction through federal

superintendence over the land . . . coupled with Congress's

exclusive legislative authority over Indian matters . . .

collectively operate to exclude state law [on trust lands]." As a

result, it argues, trust acquisitions create federal enclaves and

therefore require state consent.

We disagree. First, trust land does not fall within the

plain language of the Enclave Clause. It is not purchased "for the

erection of forts, magazines, arsenals, dockyards, [or] other

needful buildings." Rather, it is held in trust for the benefit of

Indians.

Second, in Surplus Trading Co. v. Cook, 281 U.S. 647

(1930), the Supreme Court offered an Indian reservation as a

"typical illustration" of federally owned land that is not a

federal enclave because state civil and criminal laws may still

-51-
have partial application therein. Id. at 651. The Supreme Court

recently confirmed the reasoning underlying the observation that

Indian lands are not federal enclaves:

Indians' right to make their own laws and be
governed by them does not exclude all state
regulatory authority on the reservation.
State sovereignty does not end at a
reservation's border. Though tribes are often
referred to as "sovereign" entities, it was
"long ago" that "the Court departed from Chief
Justice Marshall's view that 'the laws of [a
State] can have no force' within reservation
boundaries."

Hicks, 533 U.S. at 361 (alteration in original) (quoting White

Mountain Apache Tribe, 448 U.S. at 141 (quoting Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 561 (1832))). As a result, the

Secretary's trust acquisition of lands for the Narragansetts does

not even implicate the Enclave Clause.

3. The Admissions Clause

The Admissions Clause of the Constitution provides that

"no new state shall be formed or erected within the jurisdiction of

any other state; nor any state be formed by the junction of two or

more states, or parts of states, without the consent of the

legislatures of the states concerned as well as of the Congress."

U.S. Const. art. IV, § 3, cl. 1. The State argues that the

creation of Indian country within Rhode Island amounts to the

formation of a new state within Rhode Island's jurisdiction.

This argument is without merit. The Admissions Clause

prohibits Congress only from unilaterally establishing within an

-52-
existing state a body "on an equal footing with the original states

in all respects whatsoever." Coyle v. Smith, 221 U.S. 559, 567

(1911) (internal quotation marks omitted). For purposes of the

Admissions Clause, a state is a body "equal in power, dignity and

authority" to existing states. Id. The Secretary's trust

acquisition for the Narragansetts does not establish such a body.

As a result, the acquisition does not violate the Admissions

Clause.

4. The Nondelegation Doctrine

The Constitution vests "[a]ll legislative Powers

[t]herein granted . . . in a Congress of the United States." U.S.

Const. art. I, § 1. Congress "is not permitted to abdicate, or to

transfer to others, the essential legislative functions with which

it is . . . vested." Panama Refining Co. v. Ryan, 293 U.S. 388,

421 (1935). Yet, the Supreme Court has recognized that "in our

increasingly complex society, replete with ever changing and more

technical problems, Congress simply cannot do its job absent an

ability to delegate power under broad general directives."

Mistretta v. United States, 488 U.S. 361, 372 (1989). As a result,

the Supreme Court has repeatedly held that Congress may confer

decisionmaking authority on agencies as long as it "lay[s] 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, 531 U.S. 457, 472 (2001) (second alteration in

-53-
original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394, 409 (1928)) (internal quotation marks omitted). The

Court "has deemed it 'constitutionally sufficient if Congress

clearly delineates the general policy, the public agency which is

to apply it, and the boundaries of this delegated authority.'"

Mistretta, 488 U.S. at 372-73 (quoting Am. Power & Light Co. v.

SEC, 329 U.S. 90, 105 (1946)).

The State and its amici argue that section 465 lacks the

requisite "intelligible principle" and therefore is an

unconstitutional delegation of legislative authority.

25 U.S.C. § 465 provides:

The Secretary of the Interior is authorized,
in his discretion, to acquire . . . any
interest in lands, . . . for the purpose of
providing land for Indians.

For the acquisition of such lands, . . . and
for expenses incident to such acquisition,
there is authorized to be appropriated, out of
any funds in the Treasury not otherwise
appropriated, a sum not to exceed $2,000,000
in any one fiscal year: Provided, That no part
of such funds shall be used to acquire
additional land outside of the exterior
boundaries of Navajo Indian Reservation for
the Navajo Indians in Arizona, nor in New
Mexico, in the event that legislation to
define the exterior boundaries of the Navajo
Indian Reservation in New Mexico . . . becomes
law.

. . . .

Title to any lands or rights acquired pursuant
to this Act . . . shall be taken in the name
of the United States in trust for the Indian
tribe or individual Indian for which the land

-54-
 is acquired, and such lands or rights shall be
exempt from State and local taxation.

25 U.S.C. § 465.

In support of its argument, the State relies primarily on

an Eighth Circuit decision, South Dakota v. U.S. Dep't of the

Interior, 69 F.3d 878 (8th Cir. 1995), vacated, 519 U.S. 919

(1996), that held that section 465 was an impermissible delegation

that was completely lacking in "boundaries" and "intelligible

principles" and that "would permit the Secretary to purchase the

Empire State Building in trust for a tribal chieftain as a wedding

present." Id. at 882. The circuit opinion in South Dakota was

vacated by the Supreme Court, which did not publish an opinion

explaining its decision, 519 U.S. at 919-20, and as a result has

not set any precedent. Lovelace v. Se. Mass. Univ., 793 F.2d 419,

422 (1st Cir. 1986) (per curiam).

On remand, the Eighth Circuit held that "the purposes

evidence in the whole of the IRA and its legislative history

sufficiently narrow the delegation and guide the Secretary's

discretion in deciding when to take land into trust."19 South

Dakota v. U.S. Dep't of Interior, 423 F.3d 790, 797 (8th Cir.

2005). The court noted that the statute allows the Secretary to

19
In so holding, the Eighth Circuit agreed with the Tenth
Circuit's decision in United States v. Roberts, 185 F.3d 1125 (10th
Cir. 1999), which held that section 465 contains standards
sufficient to guide the Secretary's exercise of discretion. Id. at
1137.

-55-
acquire trust lands only for Indians as defined in 25 U.S.C. § 479,

and that the statute prohibits the Secretary from taking extra-

reservation lands into trust for Navajo Indians. See 423 F.3d at

797. The South Dakota court also referred to the legislative

history of the IRA,20 which explains that the goals motivating trust

acquisitions are "rehabilitati[on] [of] the Indian's economic life"

and "develop[ment] [of] the initiative destroyed by . . .

oppression and paternalism." Id. at 798 (quoting Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting H.R. Rep. No. 73-

1804, at 6-7 (1934))) (internal quotation marks omitted). As the

dissent from the original South Dakota decision had noted, the

historical context of the IRA is important; section 465's

"direction that land be acquired 'for the purpose of providing land

for Indians[]' has specific meaning in light of the failure of the

allotment policy and [c]ongressional rejection of assimilation as

a goal." 69 F.3d at 887 (Murphy, J., dissenting).

Other provisions of the IRA reinforce such an

interpretation. See 25 U.S.C. § 461 (prohibiting allotment of

reservation lands to individual Indians); id. § 462 (extending

indefinitely existing trust periods and restrictions on alienation

20
Amici states argue that legislative history should not
factor into the intelligible principle analysis. We note simply
that the Supreme Court in Mistretta referred to legislative history
in explaining that the Sentencing Reform Act of 1984 was not an
unconstitutional delegation of legislative authority. See 488 U.S.
at 375 n.9, 376 n.10.

-56-
of Indian lands); id. § 463(a) (authorizing restoration of surplus

lands to tribal ownership); id. § 464 (prohibiting the transfer of

restricted Indian lands except to Indian tribes). We find the

reasoning of the Eighth Circuit's second South Dakota opinion

persuasive.

The Ninth Circuit's decision in Confederated Tribes of

Siletz Indians of Oregon v. United States, 110 F.3d 688 (9th Cir.

1997), also supports the Secretary's position that section 465 is

not an unconstitutional delegation of legislative authority.

Although not addressing a nondelegation challenge to section 465,

the Confederated Tribes court stated that "[t]he general delegation

of power to the Executive to take land into trust for the Indians

is a valid delegation because Congress has decided under what

circumstances land should be taken into trust and has delegated to

the Secretary of the Interior the task of deciding when this power

should be used." Id. at 698.

The Supreme Court has upheld the constitutionality of

statutes authorizing regulation in the "public interest," see,

e.g., Nat'l Broad. Co. v. United States, 319 U.S. 190, 225-26

(1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25

(1932), as well as statutes authorizing regulation to ensure

fairness and equity, see Am. Power & Light Co., 329 U.S. at 104-05;

Yakus v. United States, 321 U.S. 414, 420, 426-27 (1944). As the

Court stated in its most recent nondelegation decision, it has

-57-
"almost never felt qualified to second-guess Congress regarding the

permissible degree of policy judgment that can be left to those

executing or applying the law." Am. Trucking Ass'ns, 531 U.S. at

474-75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J.,

dissenting)) (internal quotation marks omitted). We similarly

decline to do so here. We hold that section 465 is not an

unconstitutional delegation of legislative authority.

E. APA-Related Claims

The focus of the en banc proceedings was on the three

sets of arguments discussed above. The State presented another set

of claims, rejected by the panel, that the Secretary's decision to

take the Parcel into trust for the Tribe violates the APA. The

State did not seek en banc review of this issue. In granting en

banc review, we withdrew our panel opinion, which had been reported

at 423 F.3d 45. In the interests of completeness, we now also

reject the State's APA claims.

We set forth here a shortened and slightly modified

version of the panel's opinion as to this issue.

The State claims that the Secretary's action was an abuse

of discretion under the APA. Our review of the Secretary's

decision is governed by section 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 law." 5 U.S.C. § 706(2)(A). An

-58-
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. Auto Ins. Co., 463

U.S. 29, 43 (1983); Associated Fisheries of Me., Inc. v. Daley, 127

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

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

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

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, Inc. v. Volpe, 401

U.S. 402, 416 (1971); Associated Fisheries, 127 F.3d at 109. No

deference is given to the district court's decision. Associate

Fisheries, 127 F.3d at 109.

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

decision was unlawful under section 706(2)(A): (1) the BIA relied

on the Tribe's findings, rather than conducting an independent

evaluation of the Tribe's application; (2) the BIA misapplied the

factors enumerated in 25 C.F.R. § 151.10 for evaluating a fee-to-

trust transfer; (3) the Native American Housing Assistance and

Self-Determination Act cooperation agreement waiver violated due

process; (4) the BIA failed to consider the environmental impact of

the housing project planned for the Parcel and the project's

compliance with the Coastal Zone Management Act; and (5) the BIA

-59-
failed to consider noncompliance with the Indian Gaming Regulatory

Act. We disagree, and we find that the Secretary's decision to

accept the Parcel into trust did not violate the APA.

1. Independent Evaluation of the Tribe's Trust
Application

The State claims that the BIA's decision to take the

Parcel into trust was arbitrary and capricious because it relied

exclusively on the Tribe's assertions and failed to consider other

important facts that occurred between 1993 and 1997. The State

points to substantial passages in the Secretary's decision that

contain verbatim restatements of information provided by the

Narragansett Tribe in support of their 1993 trust application as

evidence that the BIA failed to conduct an independent evaluation

of the Tribe's 1997 application.

There is ample evidence in the administrative record that

the BIA conducted its own, independent evaluation of the Tribe's

application and that it considered the events following the Tribe's

1993 application. For example, between 1993 and 1997, the BIA

required the Tribe to supplement its initial Environmental

Assessment; conducted an environmental hazard survey of the Parcel;

required confirmation of consistency with the State’s Coastal

Resources Management Plan; was apprised of, and offered to

facilitate, negotiations between the Tribe, the Town, and the State

concerning both environmental and jurisdictional issues attendant

to the Tribe's development of the Parcel; and specifically

-60-
requested that the Regional Solicitor address several legal and

jurisdictional issues raised by the State in its comments to the

BIA on the Tribe's trust application. This demonstrates that the

BIA's determination was the result of its own, independent

evaluation of the 1997 application.

2. Application of the 25 C.F.R. § 151.10 Factors

The State claims that the BIA failed to apply the proper

criteria when it evaluated the Tribe's application for trust

acquisition. The regulations governing the BIA's evaluation of

applications to have land taken in trust are laid out at 25 C.F.R.

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

acquisition are found in section 151.10, and the factors for an

off-reservation acquisition are found in section 151.11.21 In

making the decision to accept the Parcel into trust, the BIA

considered the on-reservation factors in section 151.10.22 The

21
For the purpose of 25 C.F.R. part 151, land is considered
to be on-reservation if it is "located within or contiguous to an
Indian reservation," 25 C.F.R. § 151.10, and off-reservation where
"the land is located outside of and noncontiguous to the tribe's
reservation," id. § 151.11. The State challenges the finding by
the BIA and the district court that the Parcel is adjacent to the
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 id. § 151.10, with id.
§ 151.11. The Parcel is adjacent to the Settlement Lands, but
separated from them by a town road. Narragansett II, 89 F.3d at
911.
22
Those factors include:

(a) The existence of statutory authority
for the acquisition and any limitations

-61-
State claims that the BIA failed to consider "the need of . . . the

tribe for additional land," 25 C.F.R. § 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 section 151.11(b).23

contained in such authority;

(b) The need of the individual Indian or
the tribe for additional land;

(c) The purposes for which the land will
be used;

. . .

(e) If the land to be acquired is in
unrestricted fee status, the impact on
the State and its political subdivisions
resulting from the removal of the land
from the tax rolls;

(f) Jurisdictional problems and potential
conflicts of land use which may arise;
and

(g) If the land to be acquired is in fee
status, whether the Bureau of Indian
Affairs is equipped to discharge the
additional responsibilities resulting
from the acquisition of the land in trust
status.

. . . .

25 C.F.R. § 151.10.
23
The criteria to be considered pursuant to
section 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

-62-
 A reviewing court will determine only "whether the

[BIA's] decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment."

Citizens To Preserve Overton Park, 401 U.S. at 416. The fact that

the BIA found the Parcel, which is across a town road from the

settlement lands, to be "contiguous" to the settlement lands that

are currently in trust, and thus determined that it should consider

the "on-reservation" factors enumerated in 25 C.F.R. § 151.10, is

certainly not clear error and is within the Secretary's discretion.

The record shows that the BIA complied with section 151.10,

including evaluating the Tribe's need for the additional land, and

the State has not shown that the Secretary made a clear error of

judgment.

It was not necessary for the BIA to consider the factors

under section 151.11, since it found section 151.10 to be

applicable to this trust determination. While the Secretary need

not have considered section 151.11(b), 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

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).

-63-
justification of anticipated benefits from the acquisition." 25

C.F.R. § 151.11(b).

3. The Native American Housing Assistance and Self-
Determination Act Cooperation Agreement
Requirement

At the time of the BIA's decision to acquire the Parcel

into trust, HUD was precluded from releasing funds pursuant to the

Native American Housing Assistance and Self-Determination Act for

any tribe's housing development unless an agreement for local

cooperation on issues such as taxes and jurisdiction had been

entered into by the tribe and the local government where the

housing was located. 25 U.S.C. § 4111(c). In the instant case,

the Narragansett Tribe did not obtain such an agreement with the

Town. However, section 4111(c) has since been amended to permit

HUD to waive the cooperation agreement requirement, 25 U.S.C.

§ 4111(c), as amended by Pub. L. No. 106-569, § 503(a)(2), 114

Stat. 2944, 2962 (2000), and the Tribe claims to have 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 the waiver had been granted. On appeal,

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

inherited the legal error and 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

-64-
does not pertain to the BIA's trust acquisition authority."

Carcieri, 290 F. Supp. 2d at 178. Nothing in the § 151.10 factors

requires the BIA to ensure that a local cooperation agreement is in

place for an Indian Housing project.

4. Environmental Considerations

The National Environmental Policy Act (NEPA), 42 U.S.C.

§§ 4321-4370(f), and its supporting regulations promulgated by the

Council on Environmental Quality (CEQ), 40 C.F.R. parts 1500-1518,

direct federal agencies to consider the environmental impact of

agency decisions. The State argues that the Secretary and the BIA

(1) failed to consider the environmental impact in reaching the

decision to accept the Parcel into trust because no Environmental

Impact Statement (EIS) was prepared, and (2) failed to conduct

their own evaluation of the environmental impact 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. § 1502.3. NEPA

provides that "to the fullest extent possible . . . all agencies of

the Federal Government shall . . . 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 . . . the

-65-
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

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

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

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

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

The CEQ has issued guidance on whether to prepare an EIS.

This guidance provides that "if the agency determines on the basis

of the environmental assessment not to prepare a statement," then

the agency should "[p]repare a finding of no significant impact"

pursuant to section 1508.13. 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." Id.

§ 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 NEPA Handbook para. 4.2.B.

After reviewing the EA and the requisite supplemental information,

the BIA completed its environmental analysis and issued a finding

of no significant impact. The BIA's issuance of a finding of no

-66-
significant impact 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

Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1466, before

making its trust determination. The CZMA requires state

consultation on federally permitted coastal development

activities.24 The State asserts that the BIA's failure to take

24
Specifically, 16 U.S.C. § 1456(c) provides, in relevant
part:

(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.

-67-
direct action to ensure that 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.

The State has failed to demonstrate that a consistency

review of the Tribe's housing development was necessary at the

trust acquisition stage. The development of the Parcel is a

project that was commenced by the Tribe, in conjunction with HUD,

prior to the Tribe's application for trust acquisition. The Rhode

Island Coastal Resources Management Council correctly recognized

that the development of the Parcel, which required its own federal

consistency determination, was a separate matter from the trust

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

trust status was consistent with the RICZMP.

5. The Indian Gaming Regulatory Act

Finally, the State contends that the true purpose of the

Tribe's application for trust acquisition is the development of

gambling facilities on the Parcel –- rather than development of

tribal housing as the BIA found in its evaluation pursuant to 25

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

Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, in its

decision was an abuse of discretion. We reject the State's

argument that the Secretary's decision to acquire the Parcel in

-68-
trust should be reversed and that further inquiry into whether the

Parcel would be used for gaming purposes is now required.

No evidence that the Tribe intends to use the Parcel for

anything other than tribal housing, as determined by the BIA, was

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

the potential for development of a gaming facility on the parcel,

the tribe reaffirmed that it intended to use the parcel for a

housing development and stated that it had 'no immediate plans for

any further future development.'" Carcieri, 290 F. Supp. 2d at 178

(quoting II Admin. Rec., tab N).

As support for its position, the State points to an IBIA

decision that reversed a trust acquisition decision due to the

BIA's failure to consider the impact of a potential casino, even

though the applicants denied any intention of using the property

for a casino. See Vill. of Ruidoso, N.M. v. Albuquerque Area Dir.,

Bureau of Indian Affairs, 32 I.B.I.A. 130 (1998). However, in

Village of Ruidoso, the IBIA determined that, despite the tribe's

denial that the application for trust acquisition was for gaming

purposes, it was clear from the planned gaming-related uses of the

property and the fact that the property had been given to the tribe

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

gaming connection with the Tribe" that the application might well

have been for gaming purposes. Id. at 136. In that situation, the

-69-
BIA should have further analyzed the possibility of gaming. Id. at

140.

We agree with the district court that

although the possibility that the parcel might
be used for gaming activities was raised
before the BIA, the bureau's determination
that the parcel would be used to provide
housing was amply supported by the record. In
view of the deferential standard of review
afforded to agency decisions under the APA,
the bureau's determination in this regard must
be sustained.

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

III.

The decision of the district court is affirmed. Costs

are awarded to the Secretary.

-Dissenting opinion follows-

-70-
 HOWARD, Circuit Judge, dissenting. Respectfully, I

disagree with the majority's analysis of the Settlement Act. In my

view, the majority opinion disregards Congress's (and the parties')

purpose in passing the Settlement Act and is inconsistent with our

own recent interpretation of the Settlement Act. See Narragansett

Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006) (en

banc). At bottom, under the Settlement Act, the Secretary may only

take the Parcel into a restricted trust25 that provides for Rhode

Island's continued criminal and civil jurisdiction over the Parcel.

The State makes this argument in two forms. First, by arguing that

the Settlement Act effectuates a partial implied repeal of the IRA

as to state jurisdiction on land taken into trust by the BIA.

Second, by arguing that the statutes can be harmonized by reading

the IRA narrowly and subject to the Settlement Act's provisions.

Either approach gets to the same conclusion. Significantly, the

generous rules of "Indian construction" do not apply in analyzing

an implied repeal. See Passamaquoddy Tribe v. State of Maine, 75

F.3d 784, 790 (1st Cir. 1996) (the normal principles of implied

repeal are applied in the Indian law context).

25
I do not challenge the majority's conclusion that the BIA
may take the Parcel into trust, as the State previously permitted
the Narragansetts to take the Settlement Lands into trust in 1988.
But any new trust lands must also be explicitly made subject to the
State's criminal and civil laws.

-71-
 The parties and amici do an excellent job in acquainting

the court with the many complexities of both the case and the

issues inherent in "Indian law." However, the ultimate resolution

of the case comes down to a very narrow question: In the specific

context of the Tribe and State, what did Congress intend the

Settlement Act to do?

The key provision is Section 1705, which is written far

more broadly than the majority concludes.26 In its first two

provisions that section retroactively ratifies all the Tribe's

prior land transfers anywhere in the United States and extinguishes

the Tribe's aboriginal title in all such lands. See 25 U.S.C. §

1705(a)(1) & (2). More significantly, Section 1705 goes on to

extinguish future land claims:

(3)by virtue of the approval of a transfer of
land or natural resources effected by this
section, or an extinguishment of aboriginal
title effected thereby, all claims against the
United States, any State or subdivision
thereof, or any other person or entity, by the
Indian Corporation or any other entity
presently or at any time in the past known as
the Narragansett Tribe of Indians, or any
predecessor or successor in interest, member
of stockholder thereof, or any other Indian,
Indian nation, or tribe of Indians, arising
subsequent to the transfer and based upon any
interest in or right involving such land or
natural resources (including but not limited
to claims for trespass damages or claims for

26
Indeed, the very breadth of the language indicates more
was contemplated by the parties than merely resolving an immediate
dispute over title.

-72-
 use and occupancy) shall be regarded as
extinguished as of the date of the transfer.

Id. § 1705(a)(3). This provision obviously goes well beyond merely

extinguishing aboriginal title (and claims based thereon), which

was accomplished in the prior subsection. See id. § 1705(a)(2).

This language forecloses any future "Indian" land claim of any type

by the Tribe regarding land in Rhode Island (or anywhere in the

United States, for that matter). Thus, Congress (and the parties)

intended to resolve all the Tribe's land claims in the state once

and for all.

The majority argues that Section 1705(a)(3) cannot be

read so broadly; otherwise, the Tribe would be barred from

asserting any land claims. See ante, at 42-43. But the majority

disregards a significant factor -- the nature of the land claims

that were barred. The legislative history of the Settlement Act

specifically states that the "extinguishment of Indian land claims

is limited to those claims raised by Indians qua Indians." H.R.

Rep. 95-1453, at 1955 (1978) (emphasis added). As we recently

stated, through the Settlement Act "the Tribe abandoned any right

to an autonomous enclave, submitting itself to state law as a quid

pro quo for obtaining the land that it cherished." Narragansett

Tribe, 449 F.3d at 22. Thus, the Tribe would be free to assert any

claim that any other landowner in Rhode Island could make under

state law, but would be foreclosed from making claims based

entirely on the Tribe's status as an Indian tribe. It is beyond

-73-
peradventure that asking to have land taken into trust by the BIA

under the IRA to effect an ouster of state jurisdiction is a

quintessential "Indian" land claim.27

Moreover, "Congress does not legislate in a vacuum," and

among the matters that a court must consider in assessing a statute

are general policies and pre-existing statutory provisions.

Passamaquoddy Tribe, 75 F.3d at 789. The Settlement Act was

enacted over 40 years after Section 465 of the IRA and, given the

explicit acknowledgment of possible future recognition for the

Tribe,28 Congress was well aware of the IRA when enacting the

Settlement Act. It is neither logical nor necessary to find that

Congress enacted legislation effectuating this carefully calibrated

compromise between three sovereigns, which required significant

expenditures by both the federal government and the State, which

provided a significant amount of land to the Tribe, and which

provided for a delicate balancing of the parties' interests, only

to permit the legislation to be completely subverted by subsequent

agency action.

27
The Tribe would still have the option of obtaining the
State's consent to make certain Indian land claims -- such as the
1988 placement of the settlement lands in trust (subject to Rhode
Island law) with the BIA.
28
The Tribe's recognition by the BIA changed little, as
this court has held that the jurisdictional grant to the State in
the Settlement Act survived such recognition. See Narragansett
Indian Tribe, 19 F.3d at 694-95.

-74-
 On this score, the majority misses the exquisite irony

that the Parcel was part of the lands originally claimed by the

Tribe. It would be antithetical to Congress' intent to allow the

Tribe to purchase a portion of the originally disputed lands that

were the subject of the earlier lawsuits that ultimately led to the

JMOU and Settlement Act, place it in trust with the BIA, and

thereby create "Indian country" in direct contravention of the

Settlement Act's prohibitions. For this same reason, the

majority's attempt to distinguish our recent Narragansett Tribe

opinion as pertaining only to the "Settlement Lands" is

unpersuasive. See ante, at 37 n.11. By that reasoning, the Tribe

could swap the Settlement Lands for adjacent land and undo any

limitations contained in the Settlement Act. The Settlement Act

cannot be reasonably construed to allow such absurd results.

Further, the Settlement Act was novel; it was the first

statute resolving Indian land claims, premised upon the

Nonintercourse Act, growing out of an out-of-court settlement

negotiated by a tribe and the state/landowners. See H.R. 95-1453,

at 1951 (1978). Indeed, it was expected to serve as a template for

the resolution of other Eastern tribes' land claims under the

Nonintercourse Act. See id.; see also Oneida Indian Nation, 125 S.

Ct. at 1483-85 (discussing Nonintercourse Act and original 13

states' "pre-emptive right to purchase from the Indians"). In

light of the fact that the Settlement Act was the first statute of

-75-
its kind, the majority's observation that subsequent statutes were

more explicit in limiting certain aspects of the Secretary's power

proves nothing. Elaborate statements regarding the Tribe's

relationship with the BIA would have been unwarranted in the

Settlement Act, given that the Tribe had not yet been recognized.

Moreover, that subsequent acts dealing with Eastern

tribes made specific provision for the Secretary's ability to take

land in trust for a tribe, see, e.g., 25 U.S.C. § 1771d(c) & (d)

(Massachusetts Indian Claims Settlement); id. § 1724(d) (Maine

Indian Claims Settlement); id. § 1754(b) (Connecticut Indian Claims

Settlement), supports the conclusion that Congress anticipated no

such result under the Settlement Act. Given that the State had

full criminal and civil jurisdiction over its territory, that any

potential jurisdictional issue concerning the Settlement Lands was

specifically addressed, and that all future Indian land claims were

barred, there would be no future land scenarios that Congress would

need to address more specifically (as it did in the other acts).29

As we have noted, "the Settlement Act, properly read, ensures that

the State may demand the Tribe's compliance with state laws of

general application." Narragansett Tribe, 449 F.3d at 26.

29
In extinguishing the Tribe's aboriginal title in the
Settlement Act, Congress was inspired by the Alaska Native Claims
Settlement Act ("ANCSA"). See H.R. Rep. 95-1453, at 1951. As
noted by the Supreme Court, the ANCSA sought to accomplish this
goal "without creating a reservation system or lengthy wardship or
trusteeship." Alaska v. Native Village of Venetie Tribal Govt., 522
U.S. 520, 524 (1998) (internal citation and quotation omitted).

-76-
 There is also nothing novel about requiring the BIA to

accept the Parcel into trust with restrictions. The BIA is

authorized to take restricted interests in land into trust, see 25

U.S.C. § 465, and, in dealing with other tribes, Congress has

specifically directed the BIA to take land into trust subject to a

settlement act's provisions, see, e.g., id. § 1771d(d); id. §

1773b.

It is also worth noting that Congress acted promptly to

preserve the State's jurisdiction over the Tribe's lands the last

time this court challenged it. When this court held that the Tribe

exercised sufficient jurisdiction and governmental authority over

the Settlement Lands to invoke the Indian Regulatory Gaming Act,

see Narragansett Tribe, 19 F.3d at 703, Congress promptly amended

the Settlement Act to provide explicitly that the Settlement Lands

are not "Indian lands" for purposes of that Act, see 25 U.S.C. §

1708(b).

I respectfully dissent.

-Dissenting opinion follows-

-77-
 SELYA, Senior Circuit Judge, dissenting. I am in

complete agreement with Judge Howard's cogent and articulate

dissent, and I join it unreservedly. Nevertheless, I write

separately to express my regret that, in taking far too narrow a

view of the Settlement Act, the majority gives short shrift not

only to the interests of the State of Rhode Island but also to the

carefully calibrated arrangements crafted between the State and the

Tribe.

We previously have made clear that the touchstone in

resolving jurisdictional disputes between the State and the Tribe

is the full effectuation of the parties' intent. See Narrangansett

Indian Tribe v. Rhode Island, 449 F.3d 16, 22, 25 (1st Cir. 2006)

(en banc). Yet, today, the majority sets aside the parties' intent

in favor of a wooden reading of one subsection of the Settlement

Act. See ante at 37 ("By its terms, section 1708(a) applies state

law only to the 1800 acres of 'settlement lands.' The Parcel is not

part of the settlement lands.").

Despite the artful draftmanship of the majority opinion,

the provision on which it relies cannot be wrested from its

historical context and read in a vacuum. The Settlement Act, when

taken together with the extinguishment of all Indian claims

referable to lands in Rhode Island, the Tribe's surrender of its

right to an autonomous enclave, and the waiver of much of its

sovereign immunity, see Narrangansett Indian Tribe, 449 F.3d at 22,

-78-
24-25, suggests with unmistakable clarity that the parties intended

to fashion a broad arrangement that preserved the State's civil,

criminal, and regulatory jurisdiction over any and all lands within

its borders. Therefore, the Settlement Act logically and equitably

should be read to prohibit any unilateral action that would upset

this hard-bargained and delicate jurisdictional balance.

The Secretary's taking of an after-acquired parcel into

an unrestricted trust is just such an event. It strains credulity

to surmise, as does the majority, that the State would have made

such substantial concessions — including the transfer, free and

clear, of 1800 acres of its land — while leaving open the gaping

loophole that today's decision creates.

The majority admits that this case is "in many ways a

proxy for the State's larger concerns about its sovereignty," ante

at 4, including the State's understandable worry that the Tribe

will use this parcel (or future parcels that might be acquired and

placed into trust) for activities that would be forbidden under

State law and anathema to a majority of the State's citizens. At

oral argument, the Secretary of the Interior and the Bureau of

Indian Affairs appeared to disclaim any vestige of responsibility

for the State's concerns. Despite this disclaimer and "the

genuineness of the State's sense that its bargain has been upset,"

ante at 47, the majority turns its back on the State.

-79-
 In my view, this is error — and error of the most

deleterious kind. The majority, without anything approaching

sufficient justification, is engaging in pointless literalism and

forcing the State to rely on the faint velleity that the Secretary

will use caution in the exercise of his responsibilities in

connection with the Parcel. While "hope" is the official motto of

Rhode Island, the State should not be force-fed hope in place of

rights for which it has bargained.

As Indian tribes evolve in modern society, old legal

rules tend to blur. The controversy that divides our court today

is vexing and of paramount importance to both the State and the

Tribe. Thus, the issue — as well as the underlying principles of

Indian law — doubtless would benefit from consideration by the

Supreme Court. That is a consummation devoutly to be wished. In

the meantime, however, there is too much at stake to allow the

Tribe, with the contrivance of the Secretary's taking the Parcel

into trust, to walk away from an arrangement that it helped to

fashion and from which it has benefitted over the years.

I respectfully dissent.

-80-