Our South County Bureau Reporter Alex Nunes spoke with the tribe’s attorney, Liz Walker, for more details on the case. Listen to the audio or read the transcript below.
Alex Nunes: To give some background on the case, because I don’t think a lot of people in Rhode Island necessarily know all the details: This dates back over a decade to an agreement between Rhode Island, the Federal Highway Administration, and the tribe that said the state would purchase two properties in Charlestown where the tribe’s reservation is and give them to the Narragansett to mitigate the likely effect of a highway project on archaeologically important land in Providence to the tribe. The state acquired the properties but never turned them over to the tribe, saying that the tribe needed to waive its sovereign immunity with regard to the land first. That would be so the state could take legal action against the tribe in the future, if it wanted to. The state and federal government then moved to write a new agreement the tribe says it wasn’t involved in. And that’s where you say the harm was done to the tribe, and now they have a right to take legal action. Did I summarize it correctly?
Liz Walker: Well, the significance of this and the reason why the tribe stood so long and so tall on it was they were properties within the tribes reservation jurisdiction. They were put under historic preservation covenants, so they could never be developed – they would just be preserved. And that was the properties that, when after the highway project began, and money was being expended on the highway project, and the agreement had been executed, the state refused to transfer. And they [the tribe] felt very harmed by that. And this waiver of sovereign immunity, to me, was a principle that the state was standing on, rather than any need. And that, to me, was very, very wrong.
Nunes: Can you explain the significance of the ruling last week by U.S. District Court Judge Rudolph Contreras?
Walker: Yeah. So our claims – one was against the state defendants, and then the other claims were against the federal defendants, Federal Highways. And one was under the first programmatic agreement that the state interfered with when they wouldn’t transfer the properties. And the second programmatic agreement was what the feds initiated, once there was that impasse and the properties weren’t transferred. The court allowed the second claim to go forward. So that’s significant, because the feds can’t use the state as an excuse for why they didn’t follow the process. They can’t say, “Oh, that second agreement fails, because we weren’t allowed to go forward because of the impasse.”
Nunes: Judge Contreras, he granted the state’s request to be dismissed from the case. But is the state of Rhode Island necessarily off the hook in this case?
Walker: No. Because if we go forward, and they have to redo the second agreement, who’s going to be a party to this new second agreement? It’s got to be the feds, the state, and the tribe. So how are they going to mitigate a project of this significance is the question. You don’t mitigate it, like they were suggesting, with a video of the tribe’s history. Who writes it, the state? I don’t think that is going to fly. So now they’ve got to go back to the drawing board.
Nunes: Is the Narragansett Tribe’s ultimate goal here to compel the state to turn over these properties in Charlestown?
Walker: Well, you know, that’s the federal government, the federal government has power here. [The] federal government funds highway projects. [The] federal government has a lot to say about where they’re going to spend their money. So we think they’ve got the power to mitigate this. You know, I’m not going to speak for them, but that’s what they should have done the first time.
Nunes: It’s not really uncommon for the state and the town of Charlestown to take these pretty strong or hardball stances with the tribe. And the state and town say these measures, like requesting sovereign immunity be waived, is to protect the town or the state if the tribe tries to take these lands into federal trust beyond state laws. You’re based in Virginia, and you’ve represented tribes around the country. Would you say it’s common for states to act the way Rhode Island does towards the Narragansett Indian Tribe?
Walker: I mean, I just don’t know of a case like this. I mean, maybe there’s an Indian law scholar out there that’s seen one. But I’ve never seen a case like this be so blatant. First of all, the state is not accurate to say that they could take this land that’s under historic preservation covenants into trust. When you move an application for land into trust with the Department of Interior, you have to state the purpose – if you’re going to use it for housing projects, or whatever. And they take it into trust for those reasons. The land can’t be encumbered. So here, with the historic preservation and covenants that the tribe agreed to, they can’t undo that. So that land wouldn’t be eligible to be taken into trust. You know, the tribe never agreed when they executed the agreement to waive sovereign immunity. It was never even brought up. And we have a document from the lawyer for Federal Highways arguing with the state that they didn’t need it. They didn’t need to waive that. And the state just did it on principle, used it as an excuse. Again, age-old broken promise to the Indian tribe. They are too insignificant to respect enough to honor and execute an agreement. This just stands for how little respect the state has.
Nunes: Liz Walker, attorney for the Narragansett Indian Tribe, thanks very much for speaking with me.
Walker: Yeah, thank you, Alex.
Alex Nunes can be reached at anunes@thepublicsradio.org
