Narragansett Indian Tribe of Rhode Island v. Narragansett Electric Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1944

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND AND
NARRAGANSETT INDIAN WETUOMUCK HOUSING AUTHORITY,

Plaintiffs - Appellees,

v.

NARRAGANSETT ELECTRIC COMPANY,

Defendant - Appellee.

STATE OF RHODE ISLAND,

Defendant - Appellant.

No. 95-1945

NARRAGANSETT INDIAN TRIBE OF RHODE ISLAND AND
NARRAGANSETT INDIAN WETUOMUCK HOUSING AUTHORITY,

Plaintiffs - Appellees,

v.

NARRAGANSETT ELECTRIC COMPANY,

Defendant - Appellee.

TOWN OF CHARLESTOWN,

Intervenor - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Rosenn,* Senior Circuit Judge,

and Lynch, Circuit Judge.

Alan M. Shoer, Special Assistant Attorney General, with whom

Jeffrey B. Pine, Attorney General, James E. Purcell, Partridge,

Snow & Hahn, Phillip M. Sloan, Solicitor, Town of Charlestown,

and Bruce N. Goodsell, Assistant Town Solicitor, were on brief

for appellants.
Randall L. Souza, with whom Fred A. Kelly, Jr., Peter V.

Lacouture and Peabody & Brown were on brief for the Narragansett

Electric Company.
John F. Killoy, Jr., with whom Law Office of H. Jefferson

Melish was on brief for the Narragansett Indian Tribe of Rhode

Island and the Narragansett Indian Wetuomuck Housing Authority.

July 22, 1996

* Of the Third Circuit, sitting by designation.

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TORRUELLA, Chief Judge. Defendant-intervenors the town
TORRUELLA, Chief Judge.

of Charlestown (the "Town") and the State of Rhode Island

(together, the "State") seek a permanent injunction prohibiting

plaintiffs the Narragansett Indian Tribe (the "Tribe") and the

Narragansett Indian Wetuomuck Housing Authority (the "WHA") from

constructing a housing complex without obtaining various permits

and approvals pursuant to state law and local ordinances.1 At

the heart of the issue lies the question of whether the land in

question is "Indian country" as that term is defined in 18 U.S.C.

1151(b). The district court found that it is, by virtue of

being a dependent Indian community, and so declined in part to

issue the injunction sought by the State and the Town. We,

however, find it is not, and so, for the reasons stated herein,

we reverse in part and affirm in part.

BACKGROUND
BACKGROUND

The district court relied on the evidence presented at

an evidentiary hearing regarding the State's motion for a

preliminary injunction, which evidence the parties stipulated

1 This suit was initially brought by plaintiffs against the
Narragansett Electric Company, a Rhode Island public utility
corporation. Plaintiffs asserted subject matter jurisdiction
under 28 U.S.C. 1331 and 1362. The State subsequently
intervened in the lawsuit and filed a counterclaim for
declaratory and injunctive relief against the plaintiffs, and it
is the State's counterclaim that underlies this appeal. The
Narragansett Electric Company takes no position with respect to
the issues raised by the State in this appeal. We add that,
because the plaintiffs have asserted no claims against the State,
this action does not implicate Eleventh Amendment concerns, and
the Supreme Court's decision in Seminole Tribe of Florida v.

Florida, U.S. , 116 S. Ct. 114 (1995) is inapposite here.

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could serve as the basis for the district court's decision.2

Narragansett Indian Tribe v. Narragansett Elec., 878 F. Supp.

349, 352 (D.R.I. 1995) ("Narragansett I"). As the parties raise

no challenges to the district court's findings, we rely on them

as well.3

In 1991 the WHA purchased the land which is at the

center of this dispute (the "housing site") from a private

developer. See id. at 534 (detailing history of purchase of the

housing site). The housing site is adjacent to the Tribe's other

lands, separated from them by a town road. The Tribe's church,

the long house which serves as the seat of the Tribal Assembly,

and the offices where the tribal government meets and programs

for tribal members are administered are all established in close

proximity to the housing site; a proposed tribal community center

and tribal health center are to be constructed on the settlement

lands as well. The approximately 32 acres of the housing site is

located within the costal zone designated in the State's Coastal

Resources Management Program ("CRMP"). Also, the section of the

Town in which the housing site is located is zoned to require at

least two acres of land per residential unit, a requirement the

proposed project does not meet, as it will have some fifty units.

2 As the district court noted, the request for a permanent
injunction we address here relates only to the construction of
the housing complex. We do not express an opinion on any
remaining portions of the case.

3 The parties do dispute whether the trust application has been
withdrawn. However, as counsel for the Tribe agreed at oral
argument, the record here simply shows that the application has
been made and not acted on or withdrawn.

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As the district court noted, although occupancy is open to anyone

"it is contemplated that most, if not all of the units, will be

occupied by elderly and low-income members of the Tribe." Id.

The United States Department of Housing and Urban

Development ("HUD") has recognized the WHA as an Indian Housing

Authority, and has provided the financing for the purchase of the

housing site and the construction of the buildings. HUD will

also provide money both for managing the project and for

subsidizing the occupants' rent. The HUD funds have been made

pursuant to a program designed to provide housing for Indians.

See The Indian Housing Act of 1988, 42 U.S.C. 1437aa-1437ff.

The WHA bought the land, and then conveyed it to the

Tribe. A deed restriction requires that the land be placed in

trust with the federal government, for the express purpose of

providing housing for tribal members. The district court found

that the Tribe had applied for trust status, but that the

application had not yet been granted. Meanwhile, the land has

been leased to the WHA, with the approval of the Bureau of Indian

Affairs ("BIA").

The WHA began construction on the housing site without

a building permit from the Town or state approval of the

individual sewage disposal systems (the "ISDS") serving the

project. Nor did the WHA "obtain any determination that the

project is consistent with Rhode Island's CRMP or state

regulations designed to preserve property of historical or

archeological significance." Narragansett I, 878 F. Supp. at

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354. The district court found that the excavation for the

project has infringed on the Town's drainage easement, and has

threatened to alter drainage patterns to the detriment of coastal

and groundwater resources. At the same time, however, the ISDS

systems meet Indian Health Service ("IHS") regulations.4 "[T]he

record is silent regarding the differences, if any, between the

State's building code and the Tribe's building code or what the

significance of any such differences may be." Id. at 355.

To further complicate the picture, "[t]he evidence

demonstrates that the housing site is in close proximity to

Ninigret Pond, a fragile salt water estuary that is a prime

spawning ground for several species of commercially important

fish." Id. The district court found that the pond is

"ecologically stressed" already, due to nitrates in the ground

water, and that the possibility exists that nitrates from the

WHA's ISDS systems could reach the pond "and worsen an already

serious problem." Id.

In its detailed opinion, the district court concluded

that the housing site is indeed a "dependent Indian community,"

and thus is Indian country under 18 U.S.C. 1151. Noting that

"tribal sovereignty is no longer an absolute bar to the assertion

of state authority in Indian country," Narragansett I, 878 F.

Supp. at 359, the court carried out a pre-emption analysis. It

concluded that the State's building and zoning regulations were

4 IHS is an agency of the Department of Health and Human
Services.

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pre-empted, as was its jurisdiction to regulate the ISDS systems.

However, it found that Rhode Island's CRMP was not pre-empted,

and accordingly enjoined the WHA and the Tribe from occupying

buildings on the housing site unless that program's requirements

were satisfied. It also enjoined them from interfering with the

drainage easement previously conveyed to the Town.5

We review the grant of a permanent injunction under an

abuse of discretion standard. See Caroline T. v. Hudson Sch.

Dist., 915 F.2d 752, 754-55 (1st Cir. 1990) (noting that abuse of

discretion standard applies to both preliminary and permanent

injunctions); cf. Narragansett Indian Tribe v. Guilbert, 934 F.2d

4, 5 (1st Cir. 1991) (applying abuse of discretion standard to

grant of preliminary injunction).

DISCUSSION
DISCUSSION

A. The Settlement Act
A. The Settlement Act

The State makes its first argument on the basis of the

Rhode Island Indian Claims Settlement Act of 1978, 25 U.S.C.

1701-1716 (the "Settlement Act"). We begin with the history

of the Settlement Act, and then address the State's contention.

1. Background
1. Background

The background of the relationship between the Tribe

and the State has been addressed in some detail by the district

5 The Tribe has not appealed from the district court's partial
grant of injunctive relief. The court found that it did not need
to make a determination regarding whether state regulations
regarding property with historical and/or archeological
significance applied, since the Rhode Island Historical
Preservation Commission had notified the Tribe that it had no
objection to the project as planned.

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court below, Narragansett I, 878 F. Supp. at 353-55, as well as

in prior decisions of the courts of this circuit, see Rhode

Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.),

cert. denied, U.S. , 115 S. Ct. 298 (1994); Maynard v.

Narragansett Indian Tribe, 984 F.2d 14, 15-16 (1st Cir. 1993);

Town of Charlestown v. United States, 696 F. Supp. 800, 801-05

(D.R.I. 1988), aff'd, 873 F.2d 1433 (1st Cir. 1989); Narragansett

Tribe of Indians v. Murphy, 426 F. Supp. 132, 134 (D.R.I. 1976);

Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp.,

418 F. Supp. 798, 802-03 (D.R.I. 1976). Therefore, rather than

enter into a detailed discussion, we will simply outline the

essential structure of the historical underpinnings of the

State's first argument.

In the mid-1970s, the Tribe brought two actions to

establish its right to possession of lands which it contended

were unlawfully held by the State as well as private individuals

and businesses. The ground for its claims was that the lands had

been unlawfully alienated in violation of the Indian

Nonintercourse Act, 25 U.S.C. 177. See Southern R.I. Land Dev.

Corp., 418 F. Supp. at 802-03 (recounting history of dispute).

The parties to the dispute settled the claims in 1978 by entering

into a Joint Memorandum of Understanding. The Tribe relinquished

its title claims, and in return received a sum of money6 and

6 The Tribe notes that it disagrees with the district court's
statement that the Tribe received a payment under the Settlement
Act, maintaining that there was neither a payment to the Tribe
nor a distribution of money or land to individual Tribe members.
Whether or not the Tribe received a payment is irrelevant to our

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effective control over some 1,800 acres of land, whose title was

held by a corporation (the "settlement lands"). Implementing

legislation was passed by the United States Congress in the form

of the Settlement Act, and by the Rhode Island legislature as

well, see Narragansett Indian Land Management Corporation Act, 6A

R.I. Gen. Laws 37-18-1 to 37-18-15 (1990). See generally Town

of Charlestown, 696 F. Supp. at 801-05 (detailing the history and

provisions of the Settlement Act).

In 1983, the Narragansetts were officially recognized

as an Indian tribe. See Narragansett Indian Tribe, 19 F.3d at

689. In 1988, the Tribe deeded the settlement lands to the BIA,

to be held in trust. Id. This court has held that although the

Settlement Act allows State civil and criminal jurisdiction over

the settlement lands, with some exceptions, the Tribe nonetheless

has "concurrent jurisdiction over, and exercise[s] governmental

power with respect to, those lands." Id. (holding that the

Indian Gaming Regulatory Act, 25 U.S.C. 2701-2721, 18 U.S.C.

1166-1168, applies to the settlement lands).

2. The Present Dispute
2. The Present Dispute

The State's first contention in the present case is

that the Settlement Act precludes a finding that the housing

site, which is not part of the settlement lands, is Indian

country, because that Act resolved the Tribe's land claims and

established the boundaries of the Tribe's Indian country in Rhode

Island. It maintains that we should interpret section 1705(a)(3)

consideration of the issue at hand.

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of the Settlement Act as extinguishing all of the Tribe's claims

and limiting the boundaries of its Indian country.7 The

linchpin of its argument is its contention that it was Congress'

intent in the Settlement Act to set definite limits to the

Tribe's Indian country and to extinguish any claim to greater

boundaries, and congressional intent must prevail. See Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1976) (noting "that

congressional intent will control" in determining whether a

reservation has been terminated). Such a specific statute, it

maintains, overrides the general definition of "Indian country."

The Tribe responds with two counter-arguments. First,

it maintains that the State effectively waived this argument by

7 The pertinent section provides that upon the State's
compliance with the conditions of the Settlement Act, and the
recognition of the same by the Secretary of the Interior,

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

25 U.S.C. 1705(a)(3).

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making only passing reference to it in the court below, without

supporting it with statutory analysis or legal authority. See

Rodr guez-Pinto v. Tirado-Delgado, 982 F.2d 34, 41 (1st Cir.

1993) (reaffirming that "arguments made in a perfunctory manner

below are deemed waived on appeal").

Second, the Tribe contends that even if the argument

was not waived, the Settlement Act only extinguished the Tribe's

aboriginal title claims. "Aboriginal title," alternatively

called "Indian title," is "the right of Indian tribes to use and

occupy 'lands they had inhabited from time immemorial.'" Mashpee

Tribe v. Secretary of the Interior, 820 F.2d 480, 481-82 (1st

Cir. 1987) (quoting County of Oneida v. Oneida Indian Nation, 470

U.S. 226, 234 (1985)). The Tribe points out that this is not a

title action, and that it does not claim aboriginal title to the

housing site. Further, it notes that on the face of section

1705(a)(3), the Tribe agreed to "an extinguishment of aboriginal

title," but there is no express language in the statute

extinguishing any right to purchase other lands. If the

Settlement Act did not abrogate the Tribe's right to purchase

other lands, the Tribe continues, it did not limit its ability to

gain sovereign authority over such lands that it acquires. The

weight of this reading of the statute is heightened by the

"distinctive perspective" from which we view statutes that "touch

on Indian sovereignty." State of R.I., 19 F.3d at 691. "The

congressional intent [to terminate a reservation] must be clear,

to overcome 'the general rule that "[d]oubtful expressions are to

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be resolved in favor of the weak and defenseless people who are

the wards of the nation . . . ."'" DeCoteau v. District County

Court, 420 U.S. 425, 444 (1974) (quoting McClanahan v. Arizona

State Tax Comm'n, 411 U.S. 164, 174 (1973) (quoting Carpenter v.

Shaw, 280 U.S. 363, 367 (1930))). Paternalistic phrasing aside,

it is well established that "[a] congressional determination to

terminate [a reservation] must be expressed on the face of the

Act or be clear from the surrounding circumstances and

legislative history." Mattz v. Arnett, 412 U.S. 481, 505 (1973).

The importance of this dispute over whether the

Settlement Act terminates the Tribe's ability to increase the

territory over which it possesses sovereignty is manifest. No

matter how we hold, the significance of our decision will reach

well beyond the confines of the current dispute. Indeed, in its

brief the State points to at least one pending case in which the

issue arises. Nonetheless, we leave this question, which the

district court did not address in its lengthy opinion, for

another day. Regardless of whether the issue has in fact been

waived, we need not establish in this dispute whether the

Settlement Act limits the Tribe's Indian country, as we conclude

on independent grounds that the housing site is not a dependent

Indian community, and therefore is not Indian country. Thus we

will wait to address the issue on the basis of more developed

discussion below; while it is at heart a question of statutory

interpretation, we nonetheless prefer to address the Settlement

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Act question at a time when the parties, and the court below,

have addressed it more fully.

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B. Indian Country
B. Indian Country

1. The Significance of "Indian Country"
1. The Significance of "Indian Country"

Serving as the backdrop to this case is the doctrine

that "Indian tribes are 'domestic dependent nations' that

exercise inherent sovereign authority over their members and

territories." Oklahoma Tax Comm'n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505, 509 (1991) (citing Cherokee Nation v.

Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831)); see McClanahan, 411

U.S. at 168-69 (outlining the roots of the Indian sovereignty

doctrine). This rule has softened over time, so that it is no

longer true that state law plays no role within a tribe's

territory. Nonetheless, the state's jurisdiction is not

automatic. "[S]tate laws may be applied to tribal Indians on

their reservations if Congress has expressly so provided,"

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207

(1987); where Congress does not so provide, a pre-emption

analysis is followed to determine if state law is pre-empted by

federal and tribal interests as reflected in federal law. See

id. at 216; DeCoteau, 420 U.S. at 427 & n.2; McClanahan, 411 U.S.

at 172.

In short, "it would vastly oversimplify the problem to

say that nothing remains of the notion that reservation Indians

are a separate people to whom state jurisdiction . . . may not

extend." McClanahan, 411 U.S. at 170. Therefore, the issue here

of whether the housing site is Indian country bears real

significance, since "the Indian country classification is the

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benchmark for approaching the allocation of federal, tribal, and

state authority with respect to Indians and Indian lands."

Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973

(10th Cir. 1987) (collecting cases), cert. denied sub nom.

Oklahoma Tax Comm'n v. Muscogee (Creek) Nation, 487 U.S. 1218

(1988); see Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S.

114, 125 (1993) (rejecting argument that Indian sovereignty only

applies to formal reservation lands, stating "we ask only whether

the land is Indian country"); Cohen's Handbook of Federal Indian

Law 27 (1982 ed.) ("[F]or most jurisdictional purposes the

governing legal term is 'Indian country.'"). If the housing site

is not Indian country, there is no bar to the exercise of the

State's jurisdiction. If it is, the State presumptively lacks

jurisdiction to enforce the regulations and ordinances discussed

here, and we must carry out a pre-emption analysis.

2. The Section 1151 Definition of "Indian Country"
2. The Section 1151 Definition of "Indian Country"

The obvious question, then, is what constitutes "Indian

country." Congress has defined the term as including

(a) all land within the limits of any
Indian reservation under the jurisdiction
of the United States Government, . . .
(b) all dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or without the limits
of a state, and (c) all Indian allotments
. . . .

18 U.S.C. 1151; see Oklahoma Tax Comm'n v. Sac and Fox Nation,

508 U.S. 114, 123 (1993) (noting broad nature of definition);

United States v. Levesque, 681 F.2d 75, 77 (1st Cir.) (discussing

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origins of 1151(b)), cert. denied, 459 U.S. 1089 (1982); Alaska

v. Native Village of Venetie Tribal Gov't, 1995 WL 462232, *1-*5

(D.Alaska Aug. 2, 1995) (detailing the history of the concept of

Indian country). Here, as the housing site is neither part of a

formal reservation nor an allotment, the present dispute is over

whether it constitutes a "dependent Indian community" for

purposes of subsection (b) of section 1151, a dispute we discuss

at length below.

Before addressing that issue, however, we recognize

that, as the State notes, section 1151 on its face is concerned

only with criminal jurisdiction. Nonetheless, the Supreme Court

has repeatedly stated that the definition provided in section

1151 "applies to questions of both criminal and civil

jurisdiction." Cabazon Band of Mission Indians, 480 U.S. at 207;

see also DeCoteau, 420 U.S. at 427. Elsewhere, the Court has

simply defined "Indian country" in civil cases in terms closely

paralleling those of section 1151, while citing to that statute.

See Oklahoma Tax Comm'n v. Chickasaw Nation, U.S. , 115 S.

Ct. 2214, 2217 n.2 (1995); Sac and Fox, 508 U.S. at 123. Other

circuits have followed suit. See, e.g., Buzzard v. Oklahoma Tax

Comm'n, 992 F.2d 1073, 1076 (10th Cir.), cert. denied sub nom.

United Keetoowah Band of Cherokee Indians v. Oklahoma Tax Comm'n,

U.S. , 114 S. Ct. 55 (1993); Alaska v. Native Village of

Venetie, 856 F.2d 1384, 1390 (9th Cir. 1988); Indian Country,

U.S.A., 829 F.2d at 973; see also United States v. South Dakota,

665 F.2d 837, 838 n.3 (8th Cir. 1981) (applying 1151 in

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determining whether a housing project was a dependent Indian

community), cert. denied, 459 U.S. 823 (1982). It appears

manifest that we can, and should, do the same.

The State would have us conclude otherwise. First, it

calls our attention to Confederated Tribes and Bands of the

Yakima Nation v. County of Yakima, 903 F.2d 1207 (9th Cir. 1990),

aff'd on other grounds, 502 U.S. 251 (1992). In that case, the

Ninth Circuit refused to apply section 1151 to the question of

whether fee patented land could be taxed by the state. The

court's refusal was based on the reality that, on its terms,

section 1151 is a criminal statute, as well as the fact that the

taxing power at issue was governed by a noncriminal federal

statutory scheme. Id. at 1215. The Yakima court made its brief

analysis without mentioning any of the Supreme Court cases cited

above. The State looks to Yakima as support for its argument

that to transplant section 1151 into the civil context would go

against both the plain meaning of the statute and congressional

intent. We reject the State's suggestion that we follow the

Ninth Circuit's logic in Yakima, since to the extent that case

supports the conclusion that section 1151 only applies in

criminal cases,8 it directly contradicts the guidance of the

8 The parties did not discuss the fact that the Supreme Court
has affirmed and remanded the holding in Yakima, see 502 U.S. at

251, perhaps because the Court did not directly address the Ninth
Circuit's discussion of section 1151. That section is cited only
twice in the Court's decision. It first appears, without real
comment, in the majority's summation of the Yakima Nation's
argument that section 6 of the Indian General Allotment Act of
1887 is a dead letter. 502 U.S. at 260 (citing the 1948 passage
of section 1151 with its definition of Indian country as

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Supreme Court. See Chickasaw Nation, 115 S. Ct. at 2217 n.2; Sac

and Fox, 508 U.S. at 123; Cabazon Band of Mission Indians, 480

U.S. at 207; DeCoteau, 420 U.S. at 427; see also Pittsburg &

Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 (10th Cir.

1995) (rejecting argument that definition only applies in

criminal cases).

Second, the State delves into the Supreme Court cases

that provide that section 1151 applies in the civil context,

attempting to distinguish them from the present case, questioning

their logic and underpinnings, and concluding that the premise

that section 1151 is relevant in determining a state's civil

regulatory authority is in "serious question." We need not

address these arguments in detail. See Watchman, 52 F.3d at 1540

n.10 (rejecting similar arguments). Aside from the fact that the

Court reiterated its reliance on section 1151 for questions of

civil jurisdiction as recently as 1995, see Chickasaw Nation, 115

S. Ct. at 2217 n.2, we see no reason why the Court should not

impliedly repealing section 6's jurisdictional grant). Next, in
his separate opinion, Justice Blackmun notes that the majority
conceded that section 6 can no longer be read as providing
plenary jurisdiction over Indians who reside on reservation fee
lands. 502 U.S. at 271 (Blackmun, J., concurring in part and
dissenting in part). In support of that position, he cites to
DeCoteau, 420 U.S. at 427 n.2, for the premise that the section

1151 definition "demarcates [the] general boundary of civil
jurisdiction of States." Id.

Since the Supreme Court's opinion in Yakima gives no

indication that the Court either agrees with the Ninth Circuit's
discussion of section 1151 or is calling its own prior statements
into doubt, and since it has subsequently reaffirmed that the
definition carries into an analysis of civil jurisdiction, see

Chickasaw Nation, 115 S. Ct. at 2217 n.2, we will continue to

follow the Court's guidance on the application of section 1151.

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seize on the definition Congress has offered of what constitutes

Indian country in the context of criminal jurisdiction to inform

its analysis of Indian country in questions of civil

jurisdiction. See Cohen's Handbook of Federal Indian Law 28

(noting historical and statutory support for Supreme Court

application of 1151 to questions of civil jurisdiction).

3. Dependent Indian Communities
3. Dependent Indian Communities

With the background set out and our standard of

review established, we turn to the central issue of whether the

housing site constitutes a "dependent Indian community." We note

that the question of whether land owned by an Indian tribe may

fall within a state's civil regulatory jurisdiction appears to be

one of first impression in this circuit. See Narragansett I, 878

F. Supp. at 352.

The inclusion of "dependent Indian communities" in the

definition of Indian country dates to Supreme Court cases from

the early part of this century. See United States v. Sandoval,

231 U.S. 28, 46 (1913) ("[L]ong continued legislative and

executive usage and an unbroken current of judicial decisions

have attributed to the United States as a superior and civilized

nation the power and the duty of exercising a fostering care and

protection over all dependent Indian communities within its

borders . . . ."); see also United States v. McGowan, 302 U.S.

535, 538-39 (1938). Exactly what constitutes a "dependent Indian

community," however, has not been defined. Instead, courts

addressing the question conduct "a functional inquiry into the

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nature of the community," weighing a series of factors

established by case law. Levesque, 681 F.2d at 77.

While we have not previously faced the precise issue

raised here, in United States v. Levesque we addressed whether a

region is a dependent Indian community for the purposes of

criminal jurisdiction, framing our focus in terms of whether the

land is "both 'Indian' in character and federally dependent."

See id. at 77. In that case, we applied the factors set out by

the Tenth Circuit in United States v. Martine, 442 F.2d 1022

(10th Cir. 1971), namely:

the nature of the area in question; the
relationship of the inhabitants of the
area to Indian Tribes and the federal
government, and the established practice
of government agencies toward the area.

Id. at 1023 (drawing factors from the discussion in Sandoval, 231

U.S. at 45-49). Other cases determining whether an area

constitutes a dependent Indian community, including Tenth Circuit

decisions, have relied on additional factors introduced into the

case law by the Eighth Circuit in United States v. South Dakota,

665 F.2d 837 (8th Cir. 1981). See, e.g., Watchman, 52 F.3d at

1545 (adopting the South Dakota additions to the Martine list of

factors); Blatchford v. Sullivan, 904 F.2d 542, 547 (10th Cir.

1990), cert. denied, 498 U.S. 1035 (1991); United States v.

Azure, 801 F.2d 336, 339 (8th Cir. 1986); Housing Auth. of the

Seminole Nation v. Harjo, 790 P.2d 1098, 1100 (Okla. 1990).

Following their lead, we shall expand upon our discussion in

Levesque to incorporate the South Dakota factors. See Martine,

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442 F.2d at 1024 (noting that additional relevant factors may be

considered).

Thus, our first factor is "whether the United States

has retained 'title to the lands which it permits the Indians to

occupy' and 'authority to enact regulations and protective laws

respecting this territory.'" South Dakota, 665 F.2d at 839

(quoting Weddell v. Meirhenry, 636 F.2d 211 (8th Cir. 1980),

cert. denied, 451 U.S. 941 (1981)). The second South Dakota

factor encompasses the Martine factors, set out above. Id. Our

third consideration is "whether there is 'an element of

cohesiveness . . . manifested either by economic pursuits in the

area, common interests, or needs of the inhabitants as supplied

by that locality.'" Id. (quoting Weddell, 636 F.2d at 212-13).

The final South Dakota factor asks "'whether such lands have been

set apart for the use, occupancy and protection of dependent

Indian peoples.'" Id. (quoting Weddell, 636 F.2d at 213).

Roughly speaking, the second and third factors weigh whether

there is, in fact, an Indian community, and the first and fourth

whether it is a dependent one. We accordingly address them in

that order, ultimately concluding that the facts reveal that the

housing site is not a dependent Indian community.

The Martine Factors
The Martine Factors

The Martine factors mandate that a court "weigh the

nature of the area in question; the relationship of the

inhabitants of the area to Indian Tribes and the federal

government, and the established practice of government agencies

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toward the area." Martine, 442 F.2d at 1023. These

considerations support the Tribe's contention by demonstrating

that the housing site is a community.

First, as the district court noted, the BIA has

recognized the housing site is in an area "in which 'a distinct

[Indian] community has existed since earliest European contact.'"

Narragansett I, 878 F. Supp. at 536 (quoting BIA Internal

Memorandum on Acknowledgement of Narragansett Indian Tribe, July

1982, at 9). While we recognize that fact, however, we also note

that it cannot be doubted that the Settlement Act extinguishes

all claim to aboriginal title to the housing site. See 25 U.S.C.

1705(a)(3). This factor, then, does not weigh in favor of the

Tribe. In contrast, we do not doubt that there will be a

significant relationship between the inhabitants of the housing

site and the Tribe: indeed, the entire point of the project is

to establish housing for Tribe members and to serve as "a means

of bringing the Narragansetts back together." Narragansett I,

878 F. Supp. at 356. This weighs in favor of the Tribe.

Further, some relationship has been established between

the federal government, in the form of HUD, IHS, and the BIA, and

the housing site. HUD financed the purchase of the housing site,

and recognizes the WHA as an Indian Housing Authority. It will

provide monies for the management of the project and subsidize

the occupants' rent, all pursuant to a program "specifically

designed to provide housing for Indians." Narragansett I, 878 F.

Supp. at 354; see South Dakota, 665 F.2d at 840 (remarking upon

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similar governmental activity as showing "[f]ederal concern for

the [housing] project"). The district court noted that the fact

that there is a relationship between HUD and the community "is

underscored by the evidence that many of the occupants will

participate in nutrition, education and job training programs

subsidized by the federal government and administered by the

Tribe on the adjacent settlement lands." Narragansett I, 878 F.

Supp. at 357. However, we note that, as we find below, while a

relationship exists to the extent that these federal entities are

active in the housing site, their actions do not rise the level

of setting apart the land for the use, occupancy, and protection

of dependent Indian peoples.

Cohesiveness
Cohesiveness

We next weigh whether there is an element of

cohesiveness in the community, as demonstrated by economic

pursuits, common interests, or the needs of the inhabitants. See

Weddell, 636 F.2d at 211 (noting that these elements are more

important than density of population, percentage of Indian

residents, or the history and background of the area). Certainly

this factor weighs in favor of finding this a dependent Indian

community: the project will help the Tribe supply housing to its

elderly and low-income members.9 Further, the housing site is

in close proximity to the Tribe's church, the seat of the Tribal

9 The fact that occupancy is actually open to anyone, pursuant
to HUD regulations, does not bar finding this a dependent Indian
community. See South Dakota, 665 F.2d at 842 ("The fact that a

small number of non-Indians reside at the project does not defeat
a finding of a dependent Indian community.").

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Assembly, the offices of the tribal government and the

administration of federal programs -- in short, it is indeed

close to the "center of tribal government, culture and religious

life." Narragansett I, 878 F. Supp. at 356. Nonetheless, the

fact that the housing will be predominantly Indian in character

is not enough, by itself, to establish the presence of a

dependent Indian community. See Blatchford, 904 F.2d at 549

(noting that fact that "Indians constituted the bulk of the

population and gave the area a distinctly Indian character does

not convert the community into a dependent Indian community");

Martine, 442 F.2d at 1024 (holding that "[t]he mere presence of a

group of Indians in a particular area" does not make it a

dependent Indian community).

Title and Authority
Title and Authority

We turn now to the South Dakota factors which focus on

whether the community is in fact a dependent one. First, we ask

whether the United States retains title to the housing site and

the authority to enact regulations and laws. As noted above, the

federal government does not in fact hold title; rather, the

housing site is held by the Tribe, who has leased the land to the

WHA, in a lease approved by the BIA. While the Tribe has applied

for trust status, as the record stands, that status has not been

granted. The fact that the Tribe, not the government, owns the

land does not preclude a finding that the housing site is a

dependent Indian community. See Sandoval, 231 U.S. at 48

(rejecting the argument that Pueblo Indians holding fee simple

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title to lands precludes the lands from being Indian country);

Martine, 442 F.2d at 1023 (finding that lands purchased by Navajo

Tribe from third party, located in an area which is "a patchwork

of land, some of which is owned by the Navajo Tribe, some of

which is not" and which is not within a reservation, was a

dependent Indian community); cf. Indian Country, U.S.A., 829 F.2d

at 975 (noting that patented fee title does not preclude finding

territory is a reservation where fee title to the disputed area

had passed to the Creek Nation by federal treaty). Nonetheless,

this must weigh against the Tribe. See Blatchford v. Sullivan,

904 F.2d 542 (10th Cir. 1990) (considering, inter alia, fact that

private owner held land in determining that land was not

dependent Indian community, although it was surrounded by Navajo

allotment land); Weddell, 636 F.2d at 213 (noting, inter alia,

that although land was within the exterior boundaries of the

original Yankton Sioux Indian Reservation, it was privately held,

and finding that the land was not a dependent Indian community

for purposes of criminal jurisdiction).

The second part of this factor focuses upon the very

issue in dispute here: who has the authority to enact

regulations and laws. The State's authority will be determined

by our decision here. As for the federal government, the record

indicates that it has exercised authority in the form of HUD,

IHS, and BIA activity, regulations and financing. Of course,

HUD, at least, can provide financing and set regulations in

other, non-Indian contexts. The record does not address whether

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there is more extensive federal regulation here by HUD than in

any other HUD assisted, non-Indian project. Since this factor is

largely determined by our decision today, we find it weighs

neither for nor against the Tribe.

Whether the Lands Have Been Set Apart
Whether the Lands Have Been Set Apart

The last factor we address is whether the housing site

has been set apart by the federal government for the use,

occupancy, and protection of dependent Indian peoples. This

proves to be the crucial factor in our discussion. See Levesque,

681 F.2d at 77 (noting that this is the "ultimate issue" in the

factual analysis).

[T]he test for determining whether land
is Indian country does not turn upon
whether that land is denominated "trust
land" or "reservation." Rather, we ask
whether the area has been "'validly set
apart for the use of the Indians as such,
under the superintendence of the
Government.'"

Citizen Band Potawatomi Indian Tribe, 498 U.S. at 511 (quoting

United States v. John, 437 U.S. 634, 648-49 (1978)); see Sac and

Fox, 113 S. Ct. at 1991; Cohen's Handbook of Federal Indian Law

34 ("[T]he intent of Congress, as elucidated by [Supreme Court

decisions], was to designate as Indian country all lands set

aside by whatever means for the residence of tribal Indians under

federal protection, together with trust and restricted Indian

allotments."). Indeed, the Tenth Circuit regards this factor as

a sufficient measure of whether land is Indian country. See

Buzzard, 992 F.2d at 1076 (noting the existence of 1151, but

applying only the "set apart for the use of Indians" test in

-26-

determining whether land was Indian country).

The district court found that the housing site met this

factor's criteria.

Although the United States does not hold
title to the land and did not vest
control over it in the Tribe, HUD has, in
a manner of speaking, set the land apart
for occupancy by elderly and low-income
members pursuant to a need recognized
both by HUD and the Tribe.

Narragansett I, 878 F. Supp. at 356. For the reasons discussed

below, we disagree.

Our first question must be what constitutes setting

land apart. As with the concept of dependent Indian communities,

there is no established definition. Having surveyed the case

law, however, we agree with the Tenth Circuit's suggestion that

"land is 'validly set apart for the use of Indians as such' only

if the federal government takes some action indicating that the

land is designated for use by Indians." Buzzard, 992 F.2d at

1076 (quoting Citizen Band Potawatomi Indian Tribe, 498 U.S. at

649 (quoting John, 437 U.S. at 649)). In other words,

"[s]uperintendence by the federal government, and the

consequential political dependence on the part of the tribe,

exists for purposes of section 1151(b) where the degree of

congressional and executive control over the tribe is so

pervasive as to evidence an intention that the federal

government, not the state, be the dominant political institution

in the area." Native Village of Venetie, 1995 WL 462232, at *14.

We do not find evidence of such control here.

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Were the land placed in trust with the United States,

this factor would have been met. Taking land in trust is a

considered evaluation and acceptance of responsibility indicative

that the federal government has "set aside" the lands.

[T]rust land is set apart for the use of
Indians by the federal government because
it can be obtained only by filing a
request with the Secretary of the
Interior, who must consider, among other
things, the Indian's need for the land,
and the purposes for which the land will
be used. If the request is approved,
then the United States holds the land as
trustee. . . .
. . . In addition, before agreeing to
acquire trust land, the Secretary must
consider several factors including the
authority for the transactions, the
impact on the state resulting from the
removal of the land from the tax rolls,
and jurisdictional problems that might
arise.

Buzzard, 992 F.2d at 1076 (citations omitted). Additionally,

counsel for the Tribe admitted at oral argument that had the land

been taken into trust by the United States, the issue of civil

and criminal jurisdiction would have been addressed. The

considerations made in the trust process demonstrate that "when

the federal government agrees to hold land in trust, it is

prepared to exert jurisdiction over the land." Id.

Indeed, we note that in three of the four cases we have

found where a court held that a housing project constituted a

dependent Indian community, the land was held in trust, with the

participation of HUD and an Indian housing authority. See United

States v. Driver, 945 F.2d 1410, 1415 (8th Cir. 1991), cert.

denied, 502 U.S. 1109 (1992); South Dakota, 665 F.2d at 839;

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Mound, 447 F.2d at 158. In the fourth, Housing Authority of the

Seminole Nation v. Harjo, Josephine Harjo inherited a restricted

Indian allotment from her husband, also a Tribe member. In 1973

she partitioned four tracts from the larger tract and deeded them

to the Seminole Housing Authority, as part of a federally-funded

program whereby Harjo would make payments each month and, in

seventeen years, would own the house and the land. Although the

United States did not have title to the deeded lands, it

continued its "superintendence" of the property for the seventeen

years of the program, a role evident in the comprehensive federal

regulations governing the program. 790 P.2d at 1101. Thus the

court found that the government "controls virtually every

foreseeable legal consideration touching the property until the

[program] runs its course or sooner terminates." Id. at 1102.

Although HUD regulations apply in the present case as well, the

Tribe has pointed to no such comprehensive superintendence.

Further, although the lands in Harjo were not held in trust, they

were not purchased from third parties, as in the present case.

Instead, they were originally part of Harjo's restricted Indian

allotment, and the portions of the allotment she did not use

remained restricted, a much closer link to government control

then the Tribe demonstrates here.

In fact, we note that, aside from Harjo, the vast

majority of cases we have found which analyze what constitutes a

dependent Indian community since 1151(b) was enacted find there

is such a community if the land is held in trust, Driver, 945

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F.2d at 1415; Azure, 801 F.2d at 339; South Dakota, 665 F.2d at

839; Mound, 477 F. Supp. at 158; or as settlement lands,

Youngbear v. Brewer, 415 F. Supp. 807, 809 (N.D.Iowa 1976),

aff'd, 549 F.2d 74 (8th Cir. 1977). Similarly, in Levesque, we

found a dependent Indian community where the land was held by a

newly recognized Indian tribe as part of their reservation.

Levesque, 681 F.2d at 78. On the other hand, we note that in

most of the cases we found where land was privately held, even if

by a tribe, the courts found there was not a dependent Indian

community. See Buzzard, 992 F.2d at 1075 (involving land

purchased by tribe); Blatchford, 904 F.2d at 548 (addressing

privately held land surrounded by Navajo allotment land);

Weddell, 636 F.2d at 213 (involving independent municipal

corporation on former Indian reservation); United States v.

Oceanside Okla., Inc., 527 F. Supp. 68, 69 (W.D.Okla. 1981)

(addressing land held in fee by non-Indians); Native Village of

Venetie, 1995 WL 462232, at *15 (after settlement act

extinguished aboriginal claims, fee held by Native Village of

Venetie Tribal Government). But see Martine, 442 F.2d at

1023.10 Thus the facts that the housing site is not held in

10 We note that in its brief discussion in Martine, the Tenth

Circuit did not consider whether the lands had been "set apart."
442 F.2d at 1023-24. Later decisions in that circuit, however,
have incorporated the South Dakota factors in their analysis.

See Watchman, 52 F.3d at 1545 (adopting the South Dakota

additions to the Martine list of factors); see also Blatchford,

904 F.2d at 544-49 (discussing development of the case law and
conducting factual analysis). Indeed, in Buzzard, the court

relied solely on the "validly set apart" definition of Indian
country, eschewing analysis under section 1151. Buzzard, 992

F.2d at 1076-77.

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trust or as settlement lands, and that the federal government

does not exercise some similar level of control over the land,

weigh against the Tribe.

The Tenth Circuit's analysis in Buzzard v. Oklahoma Tax

Commission also weighs against finding the housing site meets the

"set apart" requirement. In Buzzard, as here, the Indian tribe

unilaterally purchased the lands in dispute, and held title to

them in fee simple. Instead of housing, it set up commercial

smokeshops on the land. The tribe claimed that the land was

Indian country because it had been set apart by the federal

government for the use of the Indians. In support of its

position, it pointed to a clause in its charter and in 25 U.S.C.

177 providing that land owned by a tribe cannot be disposed of

without the approval of the Secretary of the Interior -- a

restraint on alienation that the Tribe acknowledges applies here

as well. The Buzzard court rejected the tribe's argument,

finding that a restriction on alienation by itself is

insufficient to make the land Indian country.

If the restriction against alienation
were sufficient to make any land
purchased by the [tribe] Indian country,
the [tribe] could remove land from state
jurisdiction and force the federal
government to exert jurisdiction over
that land without either sovereign having
any voice in the matter. Nothing in
McGowan or the cases concerning trust

land indicates that the Supreme Court
intended for Indian tribes to have such
unilateral power to create Indian
country.

992 F.2d at 1076. Of course, in the present case we have an

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additional element: HUD and BIA financial assistance and

supervision of a housing project that is more clearly tied to the

community's benefit than the smokeshops in Buzzard. Nonetheless,

the court's concern in Buzzard with unilateral creation of Indian

country remains a valid one in this case as well.

Ultimately, as in Buzzard, we find that the federal

role in the WHA project is simply not sufficient to establish

that the housing site was "set apart" by the federal government.

Our analysis of the facts here, as well as the facts other courts

have found determinative in deciding whether land has been "set

apart," leads us to conclude that the district court's holding

that the housing site had been set apart constituted an abuse of

its discretion. See Planned Parenthood League of Mass. v.

Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) (noting that

"'misapplication of the law to particular facts is an abuse of

discretion.'" (quoting Charles v. Carey, 627 F.2d 772, 776 (7th

Cir. 1980)).

We conclude that without this final factor being in

place, we cannot find that the housing site is a dependent Indian

community. See Levesque, 681 F.2d at 77 (stating that "whether

the area was established for the use, occupancy and protection of

dependent Indians" is the "ultimate issue" in our fact-based

inquiry). While the first two factors we addressed support the

Tribe's contention that the housing site is a community of

Indians, the second two demonstrate that it is not a "dependent"

one. Without federal ownership of the land, as required in the

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first South Dakota factor, or federal action sufficient to "set

aside" the land, as required in the fourth, we cannot find on

these facts that the "dependent" aspect of the concept of a

dependent Indian community has been established. See United

States v. Adair, 913 F. Supp. 1503, 1515 (E.D.Okla. 1995)

("Although the government's retention of title . . . or

government title in trust for an Indian tribe, does not in and of

itself establish an area as a "dependent Indian community . . . ,

without such title, consideration of the other . . . factors

should be unnecessary."); Native Village of Venetie, 1995 WL

462232, at *13 (noting that the question of whether there is

federal superintendence "brings into play the 'dependent'

component").

Put simply, it is too far a stretch to regard the

government agency funding and oversight here as evidencing a

federal intent to give the tribe presumptive sovereignty over the

housing site by making it Indian country.11 It seems

implausible that a tribe could obtain a valid claim to Indian

country -- and thus presumptive sovereignty rights -- over

theretofore privately-held lands just by purchasing them and

obtaining financial and other assistance from the government for

their development, without any opportunity for involvement by the

state, any negotiated agreements with respect to jurisdiction

11 Indeed, outside of the context of tribal disputes, the
granting of a HUD subsidy to a housing project would not be
viewed as evidence of a federal intention to preempt the
operation of all other state laws.

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over the land, or considered analysis by the federal government

such as the one described for the placement of lands in trust.

Viewed more reasonably, the federal action here at best evidences

an intent to assist in the development of affordable housing for

use by Tribe members, without necessarily incurring a commitment

to exercise jurisdiction and "superintendence" over all

activities on that land, whether related to housing or not, to

the presumptive exclusion of state laws.

CONCLUSION
CONCLUSION

For the above reasons, we hold that the district

court's denial of the request for a permanent injunction insofar

as it was based on the plaintiffs' failure to comply with the

requirements of any State regulations promulgated pursuant to the

Historic Preservation Act, the Clean Water Act, the Safe Drinking

Water Act and those provisions of the Rhode Island building code

and Charlestown Zoning Ordinance is reversed, and the district
reversed

court shall enter an order granting the injunction. The district

court's grant of the request for a permanent injunction of

plaintiffs from occupying or permitting occupation of any

buildings constructed or to be constructed on the housing site

unless and until all applicable requirements of Rhode Island's

Coastal Resources Management Program have been satisfied and from

interfering with the drainage easement previously conveyed to the

Town of Charlestown is affirmed.
affirmed

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