A brief history of the Rhode Island Indian Claims Settlement Act

In July, 1992 British-American Bingo, Inc. and the Narragansett Tribe announced plans to locate a Las Vegas style gambling casino on Indian settlement lands in Charlestown. In making this announcement the Narragansetts also claimed exemption from all local and state regulations, including environmental regulations. This led the Attorney General’s office to file suit to determine what governments have jurisdiction over the Narragansetts’ land.

In 1975 the Narragansetts brought suit to obtain possession of 3,200 acres of land in Charlestown that they claimed were transferred from Narragansetts in the late 1800’s in violation of the federal Trade and Intercourse Act of 1790. The Narragansetts’ claimed that since land sales by Indians had not received federal approval, they asserted the Act had been violated. This lawsuit caused Charlestown land titles to become clouded, resulting in economic hardship for residents. The suit could have continued for years and it’s outcome was not clear. In 1978 the suit ended in a negotiated settlement. The Narragansetts received 1800 acres and agreed to be subject to all civil and criminal state and local laws and regulations. These agreements were codified into law with the passage of the federal Rhode Island Indian Claims Settlement Act in 1978 and the state Narragansett Indian Land Management Corporation Act in 1979. Although the Narragansetts are bound to be treated more liberally than a private developer, we had believed that these two laws would provide for adequate environmental protection.

The Narragansetts, who do not live on their tribal land, now claim they are an 1800 acre sovereign nation inside Charlestown, with no responsibility to the surrounding community. If they are successful in their claim, this means these 1800 acres become an unregulated zone.

The Narragansetts are a “dependent sovereign nation”. The Indian Commerce Clause in the U.S. Constitution gives Congress power over tribal sovereignty. The Narragansetts are subject to their own laws and to Congress. Indian tribes may be subject to state regulation if they consent to that regulation or if Congress puts them under state regulation.

In the case of the Narragansetts, both of these have happened. The Tribe agreed to limit it’s sovereignty in 1978 in exchange for land. Congress limited the Tribe’s sovereignty when it enacted the Settlement Act.

It was the purpose of the Settlement Act to create a land base for the Narragansetts which would help them receive Federal Recognition without adversely affecting the surrounding community. It was the intent of the Settlement Act to protect the rights of the residents of Charlestown, including their right to hold binding referendums on casino gambling. The Rhode Island Constitution requires that every community have the right to hold a voter referendum before a gambling facility is built in that community.

The Settlement Act also provided that Charlestown and the Tribe would work toward a mutually agreeable land use plan. In order to comply with the RI Comprehensive Planning and Land Use Regulation Act, the RI Zoning Enabling Act and Charlestown’s Comprehensive Plan , the Tribe would have to enact a land use plan that would not undermine state and local efforts to protect natural resources.

Residents of Charlestown are citizens of Rhode Island, they deserve the same rights and privileges as other Rhode Islanders. Without the Settlement Act, citizens of Charlestown would not have the right to vote on gambling facilities and they would not be able to have meaningful community planning. The Settlement Act was a treaty between the Narragansetts and the federal and state governments, but just as importantly it was a treaty between Congress and South County. In the words of U.S. Senator Claiborne Pell, “My belief has long been that in the small, densely populated State of Rhode Island, that the framework of laws, rules and regulations established by the State should apply to everyone.”

Senator Pell was very proud of his advocacy of native Americans and of the Settlement Act. In testimony before the Senate Indian Affairs Committee on May 17, 1994 he said,

“As part of its purely voluntary agreement, the tribe specifically agreed that the settlement lands “shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.”…

“I am proud of the agreement, It helped settle disputes and it advanced the cause of the Narragansetts, giving them a pristine land base to which they had historic links. It also served as a tremendous help to me in paving the way for subsequent Federal Recognition of the tribe.

“Tribal representatives characterized the agreement, during Senate hearings in June, 1978, as “the result of a course of fair and honorable dealings between Indians and non-Indians, which is rare in the history of this country.”

“…it is absolutely essential to understand that the Settlement Act was unprecedented. We paved the way for subsequent settlements and we did it through careful negotiation, in good faith, with all parties voluntarily reaching agreement.”

Throughout the history of the Settlement Act similar statements have been made by U.S. Senator John Chafee, Representatives Claudine Schneider, Jack Reed, Ron Machtley, and Jim Langevin and by Attorneys General Arlene Violet, James O’Neil, Jeff Pine, Sheldon Whitehouse, and Patrick Lynch.

At The Commission on Security and Cooperation in Europe (CSCE) hearings in April of 1979 on U.S. domestic compliance with the Helsinki accords, criticism was directed toward U.S. treatment of Indians. The Rhode Island Indian Claims Settlement Act was used as evidence of changing U.S. Indian policy and an example of what was possible when both an Indian Tribe and the surrounding community are given fair and equitable treatment.

When the Tribe received federal recognition in 1983, the Bureau of Indian Affairs confirmed that the Narragansetts were still bound by the Settlement Act. In 1988, just days before the Indian Gaming Regulatory Act (IGRA) became law, the Narragansetts land was taken into trust by the federal government. The U.S. Interior Department annotated each deed to state that Rhode Island law and jurisdiction would continue to apply to the Narragansetts’ land. It was the intent of the federal government that the Tribe should remain subject to the regulatory laws of the state.

For thirty years protection of the Settlement Act has been a bipartisan effort. Until 1992 even the Bureau of Indian Affairs and the Narragansett Tribe honored The Settlement Act. But in February of 1992, Foxwoods opened and the BIA and the Narragansetts began to deny the Settlement Act.

When Congress was crafting the Indian Gaming Regulatory Act (IGRA), Senators Chafee and Pell wanted to make sure that there would be no misinterpretation. Members of the Narragansett Tribal Council at that time were opposed to gambling. They too wanted to avoid a loophole in the law that would allow a future tribal council to force gambling onto tribal land. Senator Pell created an amendment that made clear that nothing in IGRA could supersede the Settlement Act. The committee writing the bill accepted the amendment, but felt it was needless and redundant, since the Settlement Act clearly gave jurisdiction to Rhode Island. The Rhode Island Senators withdrew the amendment in exchange for an official colloquy and specific language in the Committee’s Report. What follows is that official colloquy:

Mr. PELL. “Mr. President, I would like to thank the managers of S.555, the Indian Gaming Regulatory Act, and particularly the chairman of the Select Committee on Indian Affairs [Mr. Inouye], for their hard work and patience in achieving a consensus on this important measure.”

“In the interests of clarity, I have asked that language specifically citing the protections of the Rhode Island Claims Settlement Act (Public Law 95-395) be stricken from S.555. I understand that these protections clearly will remain in effect.”

Mr. INOUYE. “I thank my colleague, the senior Senator from Rhode Island [Mr. Pell], and assure him that the protections of the Rhode Island Claims Settlement Act (P.L. 95-395), will remain in effect and that the Narragansett Indian Tribe clearly will remain subject to the civil, criminal, and regulatory laws of the State of Rhode Island.”

Mr. CHAFEE. “Mr. President, I too would like to thank the chairman [Mr. Inouye] and members of the Select Committee on Indian Affairs for their cooperation and assistance. The chairman’s statement makes it clear that any high stakes gaming, including bingo, in Rhode Island will remain subject to the civil, criminal and regulatory laws of our State.

At the time IGRA was passed, courts based their decisions on the intent of laws as well as the strict language of the law. By the time IGRA and the Settlement Act met in court however, intent of a law was given less importance.

In 1994, the U.S. Court of Appeals ruled that the Tribe was still bound by the Settlement Act, but that Congress had damaged the Settlement Act when it passed IGRA. The court ruled that Rhode Island has regulatory jurisdiction over the Narragansetts’ land, but that IGRA controls matters regarding Indian gaming. The court suggested however, that Congress could restore the Settlement Act, and in September 1996 that is exactly what Congress did. Senator Chafee’s amendment will not stop the Narragansetts from having a casino, but it has returned choice to the voters of Rhode Island and the protection of one set of laws.

By restoring the primacy of the Settlement Act, Senators Chafee and Pell and Representative (now Senator) Reed kept a promise that was made 30 years ago to the people of Charlestown. Unfortunately there a some politicians and government agencies who are willing to ignore the Settlement Act.

Some now believe that the Narragansetts should be unregulated, despite past agreements. The future of our state depends on all of us being subject to the same laws and regulations. The Rhode Island Constitution guarantees all Rhode Islanders the right to hold a voter referendum before a new gambling facility can be built. Some are now willing to extinguish that right and many others.

Destroying the Settlement Act will remove a portion of Rhode Island from local, State and Federal law. The resulting gambling facility would be exempt from local, State and Federal taxation, local and State environmental laws and zoning regulations.

IGRA casinos have been exempt from Federal and State labor regulations, including the National Labor Relations Act of 1935 that gives workers the right to vote for a union. The NLRB recently ruled that IGRA casinos are not immune from this law, but Indian tribes are appealing this ruling. Employees can be fired without cause, while the casinos are immune from law suit. IGRA casinos also claim exemption from laws regarding employment discrimination based on race, gender or handicap.

Patrons of IGRA casinos are not protected under American law. At Foxwoods, workers and gamblers alike have only the legal protections offered by the Pequots. If a dispute arises between the Tribe and an employee or gambler, the Tribe is the judge and jury. The Pequots have capped all damages, including legal fees, at fifty percent of medical costs, but that’s only if you win your suit, and only if they allow you to sue. The Tribe, meanwhile, retains the right to sue private citizens under American law.

Senator Chafee identified a problem in a federal law and fixed it. Some others don’t like or understand the Settlement Act, a federal law, and are unwilling to recognize it. Whatever their motivations may be, their actions have the effect of promoting the interest of casino developers while ignoring the interest of labor, the environment and voters.

There are some who believe that the Narragansetts should receive compensation beyond what was negotiated in the Settlement Act. If it becomes the policy of a government to recompense a group or organization, then they should be recompensed directly by that government or the debt should be paid equally by all the people, not just by the few who live nearby.

If the Narragansetts are as sovereign as they claim to be, then they traded their sovereignty in 1978 for land and support for Federal Recognition without actually giving up their sovereignty. If this is true, then no government can make or enforce a binding agreement with the Tribe.

The residents of Charlestown are real people

The residents of Charlestown have no more or less in common with the settlers of the seventeenth and eighteenth centuries than any one else in Rhode Island. Our responsibility is the same as all Rhode Islanders. Much has changed since George Washington was the President of the United States and it has changed as much for Charlestown as anywhere else. Some people seem to believe that the Narragansetts should be freed from the agreements of the Settlement Act. They believe that this would be right and fair. When people hold such beliefs they believe that all the consequences of doing what is “fair” will also be fair. When they hear that South County residents feel betrayed they are unsympathetic. They don’t believe we should have the same voting rights that they possess. What they fail to understand is that we are people just like them, we deserve the same rights and privileges that all communities have.

The Settlement Act was a fair compromise, it was fair for the Tribe and the Town. Destroying the Settlement Act will upset that balance and hurt innocent people. We hope people will have the imagination to empathize with Charlestown.