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Narragansett Indian Tribe of R.I. v. Narragansett Elec. Co.

ELR Citation: 26 ELR 20273
Nos. No. 93-667-T, 878 F. Supp. 349/(D.R.I., 02/21/1995)

The court holds that a housing project on land owned by a Native American tribe is "Indian country" that Rhode Island may regulate under the Coastal Zone Management Act (CZMA), but not under the Federal Water Pollution Control Act (FWPCA) or the Safe Drinking Water Act (SDWA). Defendant-intervenors sought to enjoin the tribe from building the housing complex without first obtaining various permits and approvals mandated by state law and local ordinances. The court first notes that the applicability of state law depends on whether the activity takes place on a "reservation." The Supreme Court has construed "reservation" broadly as all lands that fall within Congress' definition of "Indian country." The court holds that while settlement lands that the United States conveyed to the tribe through the Rhode Island Indian Claims Settlement Act might be considered an informal reservation, the adjacent housing site, which the tribe purchased from a private owner, cannot. Further, the housing site is neither a formal reservation nor a Native American allotment. Thus, whether the site is "Indian country" depends on whether the housing site is a "dependent Indian community." The court holds that the housing project is such a community even though it currently has no inhabitants. It is located in an area in which a distinct Native American community has existed since the earliest European contact; the Department of Housing and Urban Development (HUD) has set the land apart for occupancy by tribal members; the site is in close proximity to the settlement lands, which are the center of tribal government, culture, and religious life; the site will be inhabited primarily by members of the tribe; and HUD is financing the project under a program specifically designed for the benefit of tribal Native Americans. The manner in which the tribe acquired title to the site is not important in determining whether the site is "Indian country," and there is no suggestion that the site will be used for any purpose other than providing housing to tribe members under a federally funded and supervised program.

Addressing whether tribal sovereignty or federal law preempt the state and local rules defendant-intervenors seek to impose, the court holds that it need not determine whether state regulations designed to preserve property with historical or archaeological significance apply to the housing complex, because the relevant state agency has determined that the complex will not damage anything of significance. The court next holds that building codes and zoning regulations are preempted. The tribe has a strong interest in the manner in which the project is designed and constructed, while the state's interest is much weaker. Similarly, the state's interest in a town zoning ordinance that conflicts with the design of the project is weak. Also, the ordinance interferes with HUD regulations designed to ensure that funds intended to provide housing are not diverted to land acquisition. The court holds that the state has failed to demonstrate an interest in applying its regulations that is sufficiently compelling to justify intruding on federal and tribal interests. The court next holds that regardless of whether the state asserts jurisdiction over the individual sewage disposal systems for the project under the FWPCA or the SDWA, federal law preempts the state's jurisdiction. The tribe is considered a state for purposes of the FWPCA, and the federal government, not the state, administers underground injection control programs in Rhode Island under the SDWA.

The court next holds that the site, which lies in the coastal zone designated in Rhode Island's federally approved coastal resources management program (CRMP), may be subject to parts of the CRMP. Unlike the FWPCA and the SDWA, enforcement of the Coastal Zone Management Act (CZMA) is left entirely to the states. Further, the CZMA does not contain any provisions permitting Native American tribes to function as states or any indication that Native American tribes are or should be exempt from its requirements. That even federal agencies are subject to state CRMPs makes it difficult to infer that requiring the tribe to comply would somehow interfere with a federal interest reflected in the CRMP. Moreover, exempting property that is the site of significant development from CZMA requirements would create an appreciable gap in the federal regulatory scheme. And any presumption against extending state regulatory authority to the activities of Native Americans in "Indian country" raises a real possibility that those activities may produce effects outside of "Indian country" that significantly affect important state interests—in particular, an ecologically fragile pond in the same watershed as the project. In contrast, it is difficult to discern any way in which the application of the CRMP would directly or meaningfully impact the tribe's interest in internal self-government. Moreover, application of the CRMP will promote, not interfere with, the federal interests reflected in the CZMA. The court holds, however, that because no consistency determination has been made in this case, it is impossible to determine whether the proposed project conflicts with the CRMP and, if so, whether the portions of the CRMP at the root of any such conflict are applicable. The court next holds that notwithstanding the classification of the property as "Indian country," the tribe may not interfere with a drainage easement in the property that the town acquired from a prior owner. The court enjoins the tribe from interfering with the town's drainage easement and from occupying or permitting occupation of any buildings to be constructed on the site until all of the CRMP's requirements have been satisfied.

Counsel for Plaintiffs
John F. Killoy
404 Main St., Wakefield RI 02879
(401) 783-6840

Counsel for Defendant
Andrew B. Prescott
Tillinghast, Collins & Graham
10 Weybosset St., Providence RI 02903
(401) 456-1200