Jenner & Block

Firm Argues Status of Indian Land Before First Circuit En Banc

Jenner & Block Partner Ian Heath Gershengorn recently argued on behalf of the National Congress of American Indians and other Indian tribes and tribal organizations before an en banc federal court of appeals in a case that could impact the land holdings of many Indian tribes.

At issue in the case is whether the U.S. Department of Interior should be allowed to take 31 acres of land in Rhode Island into trust on behalf of the Narrangansett Indian tribe under Section 5 of the 1934 Indian Reorganization Act (IRA).  According to the Firm's brief, taking land into trust is a "centerpiece of the federal government’s efforts to ensure tribes a measure of the economic and political independence."

In September 2005, a panel of three judges of the U.S. Court of Appeals for the First Circuit upheld a 2003 ruling in favor of the tribe. The State sought rehearing en banc, arguing that the Narrangansetts gave away their rights to such trusts when they agreed to a 1978 land claim settlement which allowed other land in Rhode Island to be placed under state, local and civil jurisdiction.  Additionally, the State contends that the Narrangansetts cannot benefit from the IRA because they were not "recognized " or "under federal jurisdiction" in 1934, when the IRA was passed.  

The Firm has argued that nothing in the IRA precludes the secretary from taking land into trust for the Narragansetts.  Mr. Gershengorn stated that it was "absurd" to argue that newly recognized tribes cannot benefit from IRA and that the State cannot show that the word "now" in the statutory language refers unambiguously to "1934" and not to "today."

The case began when the Bureau of Indian Affairs agreed to place 31 acres of land into trust for the tribe in 1998.  The Narragansetts achieved federal recognition in 1983.

In addition to Mr. Gershengorn, Partner Sam Hirsch represented the National Congress of American Indians, individual indian tribes and other tribal organizations as amici curiae in the case, Carcieri v. Kempthorne.