USCA1 Opinion

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,
____________ _________________
and Bruce N. Goodsell, Assistant Town
__________________

Town of Charlestown,

Solicitor, were on

brief

for appellants.
Randall L. Souza,
________________
Lacouture
_________

with whom

Fred A. Kelly, Jr., Peter V.

___________________ _________

and Peabody & Brown were on brief for the Narragansett

_______________

Electric Company.
John F. Killoy, Jr., with
____________________
Melish
______

was on brief for

whom Law Office of H. Jefferson

___________________________

the Narragansett Indian

Tribe of Rhode

Island and the Narragansett Indian Wetuomuck Housing Authority.

____________________

July 22, 1996

____________________

____________________

Of the Third Circuit, sitting by designation.

-2-

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

of

Charlestown

(the

(together, the "State")

plaintiffs the

"Town")

Defendant-intervenors the town

and the

State

of

seek a permanent injunction

Narragansett Indian

Rhode

Island

prohibiting

Tribe (the "Tribe")

and the

Narragansett Indian Wetuomuck Housing Authority (the "WHA")

constructing

and

from

a housing complex without obtaining various permits

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

being

a dependent Indian community,

issue

the injunction

however,

sought by

and so declined

the

find it is not, and so,

is, by virtue

State and

of

in part to

the Town.

We,

for the reasons stated herein,

we reverse in part and affirm in part.

BACKGROUND
BACKGROUND

The district court relied

an

evidentiary

preliminary

hearing

regarding

injunction, which

____________________

on the evidence presented at

the

evidence

State's

motion

the parties

for

stipulated

This

suit was

Narragansett

Electric

corporation.
under

28

intervened

initially brought
Company,

Plaintiffs

U.S.C.
in

a Rhode

and

lawsuit

1362.
and

declaratory and injunctive relief

is the

State's counterclaim

Narragansett Electric
the issues

Island

asserted subject

1331
the

by plaintiffs

that

filed

State in

public utility

matter

jurisdiction

The State

subsequently

counterclaim

for

against the plaintiffs, and it

underlies this

Company takes no position

raised by the

against the

this appeal.

appeal.

The

with respect to
We add

that,

because the plaintiffs have asserted no claims against the State,

this action
the

does not implicate Eleventh

Supreme Court's

decision in

Amendment concerns, and

Seminole Tribe of Florida v.

___________________________

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

_______

-3-

could serve

as the

basis

Narragansett Indian Tribe

__________________________

349,

for the

district court's

v. Narragansett Elec., 878

___________________

352 (D.R.I. 1995) ("Narragansett I").

______________

no challenges to the

decision.2

F. Supp.

As the parties raise

district court's findings, we rely

on them

as well.3

In 1991 the

center

of

developer.

this

WHA purchased

dispute (the

See id. at 534

___ ___

housing site).

"housing

site")

is at

from a

the

private

(detailing history of purchase of the

The housing site is adjacent to the Tribe's other

lands, separated from them by a

the long house which

and the

the land which

town road.

The Tribe's

serves as the seat of the

offices where the

church,

Tribal Assembly,

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.

located

The approximately 32 acres of the housing site is

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

least two acres of

land per residential unit, a

to require at

requirement the

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

As

the

injunction
the

district court
we address here

housing complex.

We

noted, the

request for

a permanent

relates only to

the construction of

do not

an opinion

express

on

any

remaining portions of the case.

The parties do dispute whether the

withdrawn.

However,

as counsel

trust application has been

for the

Tribe agreed

at oral

argument, the record

here simply shows that the

application has

been made and not acted on or withdrawn.

-4-

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

"it is contemplated that most,

if not all of the units,

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

The

United

States

Department

Development ("HUD") has recognized the

of

Housing and

WHA as an Indian

will be

Id.
___

Urban

Housing

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

housing site and

also

provide

subsidizing

the construction

money

both

for

managing

the occupants' rent.

pursuant to a

of the buildings.

program designed to

the

Tribe.

trust

WHA bought the land,

A deed

providing housing for tribal

that

the

application

Tribe

had applied

had not yet been

members.

for

for

Indians.

it to the

land be placed

the express

status,

Meanwhile,

in

purpose of

The district court

trust

granted.

and

1437aa-1437ff.

and then conveyed

government, for

will

have been made

provide housing for

restriction requires that the

with the federal

project

The HUD funds

See The Indian Housing Act of 1988, 42 U.S.C.

___

The

HUD

but that

found

the

the land has

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

Affairs ("BIA").

The WHA began construction

building permit

individual

project.

project

sewage

Nor

is

regulations

archeological

from

the

disposal

did the

to

with

Rhode

preserve

significance."

or

state

systems (the

WHA "obtain

consistent

designed

Town

on the housing site without

"ISDS")

of

the

serving

the

any determination

Island's

property

Narragansett I,
______________

-5-

approval

CRMP

of

that the

or

state

historical

878 F.

or

Supp. at

354.

The

district

project has

court found

infringed on the

that

the excavation

for

Town's drainage easement,

the

and has

threatened to alter drainage patterns to the detriment of coastal

and groundwater resources.

At the same time, however,

systems meet Indian Health

Service ("IHS") regulations.4

record is silent regarding

the differences, if any, between

State's building code and

the Tribe's building code or

significance of any such differences may be."

To

demonstrates

Ninigret

further

that

Pond,

complicate

the housing

a fragile

salt water

is in

"[T]he

the

what the

Id. at 355.
___

the picture,

site

the ISDS

"[t]he

close

estuary

evidence

proximity to

that is

a prime

spawning

ground for

several

fish."

Id.
___

district

The

"ecologically stressed"

water,

WHA's

and that

the possibility

serious problem."

that the

court

commercially important

found

already, due

ISDS systems could reach

In

species of

that

the

to nitrates in

is

the ground

exists that nitrates

the pond "and

pond

from the

worsen an already

Id.
___

its detailed opinion,

housing site is indeed a

and thus is Indian country

the district court concluded

"dependent Indian community,"

under 18 U.S.C.

1151.

Noting that

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

of state

authority in

Supp. at 359,

concluded that

Indian country,"

the court carried out a

the State's building and

Narragansett I, 878
______________

F.

pre-emption analysis.

It

zoning regulations were

____________________

IHS

is an

agency

of the

Department

of Health

and

Human

Services.

-6-

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

However, it

found that Rhode

and accordingly

Island's CRMP was

enjoined the WHA

buildings on the housing

and the

not pre-empted,

Tribe from

occupying

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

abuse of discretion

standard.

permanent injunction under an

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.
A.

The

The Settlement Act

The Settlement Act
__________________

State makes its first argument on the basis of the

Rhode

Island Indian

Claims Settlement

1701-1716 (the "Settlement

Act").

Act

of 1978,

We begin

25 U.S.C.

with the history

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

1.
1.

The background

and the State has

Background
Background
__________

of the

relationship between the

been addressed in some detail by

Tribe

the district

____________________

The Tribe has

not appealed from the district

grant of injunctive relief.

to

make a

regarding
significance

determination
property
applied,

Preservation Commission

court's partial

The court found that it did not need

regarding

with
since

whether

historical
the

had notified

objection to the project as planned.

-7-

state

and/or

Rhode

regulations

archeological

Island

the Tribe that

Historical
it had

no

court below, Narragansett I, 878 F. Supp. at

_______________

in

prior

decisions of

the courts

of

353-55, as well as

this circuit,

see Rhode
___ _____

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

______
_________________________

cert. denied,
____________

__ U.S.

__, 115

Narragansett Indian Tribe, 984

__________________________

S.

Ct. 298

(1994); Maynard
_______

F.2d 14, 15-16

Town of Charlestown v. United States, 696 F.

____________________
______________

v.

(1st Cir. 1993);

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,

enter

into a

essential

802-03 (D.R.I. 1976).

detailed discussion,

structure

of

the

Therefore,

we will

historical

rather than

simply outline

underpinnings

of

the

the

State's first argument.

In

establish

were

the mid-1970s,

its right

Tribe brought

to possession

two actions

of lands which

to

it contended

unlawfully held by the State as well as private individuals

and businesses.

been

the

unlawfully

The ground for its claims was that the lands had

alienated

Nonintercourse Act, 25 U.S.C.

in

177.

violation

of

the

Indian

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.

its title

claims, and

in return received

The Tribe relinquished

a sum

of money6

and

____________________

The Tribe notes that

it disagrees with the

statement that the Tribe received a

Act,
nor

maintaining that there was

district court's

payment under the Settlement

neither a payment

to the Tribe

a distribution of money or land to individual Tribe members.

Whether or not

the Tribe received a payment is irrelevant to our

-8-

effective

held

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

by a

corporation (the

legislation

"settlement lands").

Implementing

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,

as an Indian

689.

tribe.

the Narragansetts were

officially recognized

See Narragansett Indian Tribe, 19

___ __________________________

F.3d at

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

power

with

jurisdiction over, and

respect to,

Indian Gaming Regulatory

exercise[s] governmental

those lands."

Id. (holding
___

that the

Act, 25 U.S.C.

2701-2721,

18 U.S.C.

1166-1168, applies to the settlement lands).

2.
2.

The

that

site,

State's first

the Settlement

which is

country,

The Present Dispute

The Present Dispute
___________________

not

Act

contention in

precludes a

part of

because that Act

the

the present

finding that

settlement lands,

resolved the Tribe's

case is

the housing

is

Indian

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.

-9-

of

and

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

limiting

linchpin

intent

the

boundaries

of

its

Indian

country.7

The

of its argument is its contention that it was Congress'

in the

Settlement

Act to

set

definite limits

to

the

Tribe's

Indian country and

to extinguish

any claim

boundaries, and

congressional intent must prevail.

Sioux Tribe v.
____________

Kneip, 430
_____

congressional

intent

reservation has

will

U.S. 584,

been terminated).

See Rosebud
___ _______

586 (1976)

control" in

to greater

(noting "that

determining

Such a specific

whether

statute, it

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

The Tribe responds with two counter-arguments.

it

maintains that the State effectively

First,

waived this argument by

____________________

The

compliance

pertinent

section

provides

with the conditions

of the

that

upon

the

State's

Settlement Act,

and the

recognition of the same by the Secretary of the Interior,

by

virtue

transfer

of

effected

by

of
land
this

the

approval

or natural
section,

of

resources
or

an

extinguishment

of

aboriginal

title

effected thereby, all claims

against the

United States, any

subdivision

thereof,
by

or any other

the Indian

person or entity,

Corporation or

entity presently
past

State or

or at

known as the

any time

interest,

thereof,
nation,

or
or

in the

Narragansett Tribe of

Indians, or any predecessor

in

any other

member
any

other

tribe

of

or successor

or

stockholder

Indian,
Indians,

Indian
arising

subsequent to the transfer and based upon

any

interest in or

right involving such

land or natural resources

(including but

not

for

limited

to

claims

damages or claims for use

shall be regarded

and occupancy)

as extinguished as

the date of the transfer.

25 U.S.C.

trespass

1705(a)(3).

-10-

of

making only passing reference

supporting it

to it in the court

with statutory analysis

Rodr guez-Pinto
_______________

v. Tirado-Delgado,
______________

1993) (reaffirming

below, without

or legal authority.

982

F.2d 34,

that "arguments made in

41 (1st

See
___

Cir.

a perfunctory manner

below are deemed waived on appeal").

Second, the

Tribe contends

was not waived, the Settlement Act

aboriginal
__________

title

claims.

that even if

the argument

only extinguished the Tribe's

"Aboriginal

title,"

alternatively

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

use and

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

Tribe v. Secretary of the Interior, 820 F.2d

_____
___________________________

Mashpee
_______

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

title action, and that it does not claim

housing

site.

Further, it

this is not a

aboriginal title to the

notes that on

the face

of section

1705(a)(3), the Tribe agreed

to "an extinguishment of aboriginal

title,"

express

but

extinguishing

Settlement

there

any

Act did

is

right

no

to

language

purchase

not abrogate the

other

in

the

lands.

Tribe's right

statute

If

the

to purchase

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

gain sovereign authority over

weight

of this

reading

such lands that it acquires.

of the

statute

is heightened

by

The

the

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

on Indian

sovereignty."

State of R.I., 19
______________

congressional intent [to terminate

F.3d at 691.

"The

a reservation] must be clear,

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

-11-

be resolved in

the wards of the

favor of the weak and

nation . . . ."'"

defenseless people who are

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))).

____

it is

well established that "[a]

terminate

Act

Paternalistic phrasing aside,

or

[a reservation] must be

be

clear

legislative history."

The

Settlement

congressional determination to

from

Act terminates

matter how we hold,

surrounding

face of the

circumstances

and

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

_____
______

importance

territory over which

the

expressed on the

of

this

dispute

the Tribe's

over

ability to

it possesses sovereignty

whether

increase the

is manifest.

the significance of our decision

the

No

will reach

well

beyond the confines of the current dispute.

Indeed, in its

brief the State points to at least one pending case

issue arises.

district

court

another day.

waived,

Nonetheless,

we

did not

we leave this

address

in

Regardless of whether

need

not

establish in

in which the

question, which

its lengthy

opinion,

the issue has in

this

dispute

the

for

fact been

whether

the

Settlement Act limits the Tribe's Indian country, as

we conclude

on independent grounds that

a dependent

the housing site is not

Indian community, and therefore

will wait to

discussion

address the

issue on the

below; while it is

interpretation, we

is not Indian country.

basis of more

at heart a

nonetheless prefer to

-12-

Thus we

developed

question of statutory

address the Settlement

Act

question at a

time when the

have addressed it more fully.

parties, and the

court below,

-13-

B.
B.

Indian Country
Indian Country

______________

1.
1.

The Significance of "Indian Country"

The Significance of "Indian Country"
____________________________________

Serving as

that

"Indian

exercise

the backdrop to

tribes

are

'domestic

inherent sovereign

territories."

this case is

dependent

authority

Oklahoma Tax Comm'n

____________________

the doctrine

nations'

over their

members

that

and

v. Citizen Band Potawatomi

________________________

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

Georgia, 5
_______

U.S. at

168-69 (outlining

doctrine).

longer

Pet. 1, 17, 8

true

territory.

automatic.

L.Ed. 25 (1831)); see

___

the roots

This rule has softened

that

state law

Nonetheless,

"[S]tate

plays

the

laws may

of the

McClanahan, 411
__________

Indian sovereignty

over time, so that

no

state's

role

within a

jurisdiction

be applied to

it is no

tribe's

is

tribal Indians

not

on

their

reservations

California
__________

(1987);

if

has

expressly

so

provided,"

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

_______________________________

where

Congress

analysis is followed to

federal

Congress

does

not

so

provide,

determine if state law is

and tribal interests as

pre-emption

pre-empted by

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

say

that nothing remains of

are a

the notion that reservation Indians

separate people to whom

extend."

of

vastly oversimplify the problem to

state jurisdiction . .

McClanahan, 411 U.S. at 170.

__________

whether

the

housing

site

is

. may not

Therefore, the issue here

Indian

country

bears

real

significance,

since "the

Indian

country classification

is the

-14-

benchmark for approaching the

state

authority

with

respect

allocation of federal, tribal, and

to Indians

and

Indian

lands."

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

(10th

Cir.

Oklahoma

1987)

(collecting

Tax Comm'n v.

cases), cert. denied sub nom.

________________________

Muscogee (Creek)

Nation, 487

U.S. 1218

____________________

(1988);

________________________

see Oklahoma Tax Comm'n v.

___ ___________________

114, 125 (1993) (rejecting

Sac and Fox Nation, 508 U.S.

__________________

argument that Indian sovereignty only

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

the land is Indian country");

Law
___

27

(1982

ed.)

Cohen's Handbook of Federal Indian

__________________________________

("[F]or most

jurisdictional

governing legal term is 'Indian country.'").

is not

Indian country, there

State's jurisdiction.

jurisdiction to

is no bar

If it is,

purposes

the

If the housing site

to the exercise

the State presumptively

of the

lacks

enforce the regulations and ordinances discussed

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

2.
2.

The Section 1151 Definition of "Indian Country"

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
(b)

the United
all

within the
whether

States Government, .

dependent

Indian

borders of the
within

the

communities
United States

original

subsequently acquired territory

and whether within

. .

or

thereof,

or without the limits

of a state, and (c) all Indian allotments

. . . .

18 U.S.C.

508 U.S.

1151; see Oklahoma Tax Comm'n v. Sac and Fox Nation,

___ ___________________
__________________

114, 123 (1993)

(noting broad

nature of

definition);

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

_____________
________

-15-

origins of

v.

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

____________
______

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

community"

purposes

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

constitutes

"dependent

Indian

for

at length below.

Before

addressing that

issue,

however, we

recognize

that, as the State notes, section

1151 on its face is

only with criminal jurisdiction.

Nonetheless, the Supreme Court

has

repeatedly stated

1151

"applies

jurisdiction."

see also
________

to

that the

questions

definition provided

of

both

criminal

concerned

in section

and

civil

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

_______________________________

DeCoteau, 420 U.S.

________

at 427.

simply defined "Indian country"

Elsewhere, the Court

in civil cases in

paralleling those of section 1151,

has

terms closely

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

Comm'n,
______

have followed suit.

992 F.2d 1073, 1076

See, e.g., Buzzard v. Oklahoma Tax

___ ____ _______
____________

(10th Cir.), cert. denied sub nom.

______________________

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

_________________________________________
___________________

__

U.S. __, 114

Venetie,
_______

S. Ct. 55

856 F.2d

(1993); Alaska v.
______

1384, 1390

(9th Cir. 1988);

Native Village of
_________________

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.

-16-

1981) (applying

1151

in

determining

whether a

housing

community),

cert. denied, 459

_____________

project was

U.S.

823

a dependent

(1982).

It

Indian

appears

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

The State would

calls our

attention

have us conclude otherwise.

First, it

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

_______________________

Ninth

Circuit refused to apply

whether fee

court's

refusal was

section 1151

taxing

patented land

In that case, the

section 1151 to

could

based on

(1992).

be taxed

the reality

the question of

by the

state.

that, on

The

its terms,

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

power at

statutory scheme.

issue

was governed

Id. at 1215.

by

a noncriminal

The Yakima court

federal

made its brief

___

______

analysis without mentioning any of the Supreme

above.

The State looks

to Yakima as
______

that to transplant section 1151

against both the

intent.

Ninth

We

Court cases cited

support for its

argument

into the civil context

would go

plain meaning of the statute

reject the

State's suggestion

Circuit's logic in Yakima,

______

supports

the

conclusion

criminal

cases,8 it

that

directly

and congressional

that we

since to the

section

1151

contradicts the

follow the

extent that case

only

applies

guidance of

in

the

____________________

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.
twice in

the Court's

comment,

in

decision. It

the majority's

That section is cited only

first appears,

summation

of

without real

the Yakima

Nation's

argument

that section 6 of

1887 is a dead letter.

of

section

1151

with

502
its

the Indian General

Allotment Act of

U.S. at 260 (citing the 1948 passage

definition

of

Indian

country

as

-17-

Supreme Court.

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

___ ________________
___

and Fox, 508 U.S.

_______

U.S.

at 123; Cabazon Band of Mission Indians,

________________________________

at 207; DeCoteau,
________

420 U.S.

at 427;

see also
________

480

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

that

provide that

State delves into the

section 1151

applies

Supreme Court cases

in the

civil context,

attempting to distinguish them from the present case, questioning

their logic

that

and underpinnings,

section 1151

regulatory

is relevant

authority is

in

and concluding that

in determining

the premise

a state's

"serious question."

We need

civil

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

his separate
conceded

jurisdictional grant).

opinion, Justice

that section

Blackmun notes that

can no

longer

be read

plenary jurisdiction

over Indians who reside

lands.

271 (Blackmun, J.,

502 U.S. at

dissenting in part).
DeCoteau, 420 U.S.
________
1151

definition

In support of

jurisdiction of States."

Since

the

Supreme

indication that

the majority
as

providing

on reservation fee

concurring in part

that position, he

at 427 n.2, for the premise

"demarcates

Next, in

[the] general

and

cites to

that the section

boundary

of

civil

Id.
___

Court's

opinion

in

Yakima
______

gives

no

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

definition carries

into an

analysis of civil

Chickasaw Nation,
________________

115 S. Ct.

at 2217 n.2,

the

jurisdiction, see
___

we will continue

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

-18-

to

seize on the definition Congress has offered of what

Indian country in the context

its

analysis

jurisdiction.

(noting

Indian

See
___

Cohen's Handbook of Federal Indian Law 28

_________________________________________

and

country

statutory

in

support

questions

for

of

Supreme

civil

Court

1151 to questions of civil jurisdiction).

3.
3.

With

of criminal jurisdiction to inform

of

historical

application of

constitutes

the

Dependent Indian Communities

Dependent Indian Communities
____________________________

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."

that the question

of whether land owned

We note

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

definition of Indian

country dates to

the

early part of this century.

231

U.S.

executive

have

28,

46

(1913)

usage and

Supreme Court cases

from

See United States v. Sandoval,

___ _____________
________

("[L]ong

an unbroken

Indian communities" in the

continued

current of

legislative

and

judicial decisions

attributed to the United States as a superior and civilized

nation the power

and the duty of exercising a fostering care and

protection

borders .

over

all

communities

. . ."); see also United States v.

_________ _____________

535, 538-39 (1938).

community,"

dependent Indian

however,

addressing the

within

its

McGowan, 302 U.S.

_______

Exactly what constitutes a "dependent Indian

has not

been

question conduct

defined.

Instead,

"a functional inquiry

courts

into the

-19-

nature

of

the

community,"

weighing

series

of

factors

established by case law.

While we

Levesque, 681 F.2d at 77.

________

have not

previously faced the

precise issue

raised

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

_____________
________

region

is

dependent

criminal jurisdiction,

land

is "both

See id. at
___ ___

the

77.

Indian community

the

character and

In that case, we applied

in United States v.
______________

federally dependent."

the factors set out by

Martine, 442
_______

(10th Cir. 1971), namely:

the

nature of the

relationship
area

purposes of

framing our focus in terms of whether the

'Indian' in

Tenth Circuit

for

of

to Indian

government, and

area in question; the

the inhabitants

Tribes

and the

of the
federal

the established practice

of government agencies toward the area.

F.2d 1022

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).

1545

52 F.3d at

(adopting the South Dakota additions to the Martine list of

____________
_______

factors); Blatchford
__________

1990),

See, e.g., Watchman,

___ ____ ________

v. Sullivan, 904
________

cert. denied, 498

_____________

Azure, 801 F.2d 336,

_____

Seminole Nation v.
________________

Following

their

U.S.

1035 (1991);

339 (8th Cir.

Harjo,
_____

lead, we

F.2d 542, 547

790 P.2d

(10th Cir.

United States v.
______________

1986); Housing Auth. of the

_____________________

1098,

shall expand

1100 (Okla.

upon our

1990).

discussion in

Levesque to incorporate
________

the South Dakota factors.

____________

See Martine,
___ _______

-20-

442

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

considered).

Thus, our

has

first factor

is "whether the

United States

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

occupy' and

'authority to enact regulations

and protective laws

respecting

(quoting

this territory.'"

Weddell
_______

South Dakota,
____________

v. Meirhenry,
_________

cert. denied, 451

_____________

U.S. 941

636 F.2d

(1981)).

665

F.2d at

211 (8th

The second

Cir. 1980),

South Dakota
____________

factor encompasses the Martine factors, set out above.

_______

third

consideration

is

"whether

there

is

839

'an

Id.
___

Our

element

of

cohesiveness . . . manifested either

by economic pursuits in the

area,

the inhabitants as supplied

common interests, or needs of

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

Indian

for the

use, occupancy

peoples.'"

Id. (quoting
___

and

protection of

Weddell,
_______

636

dependent

F.2d at

213).

Roughly

speaking, the

there is,

second

and third

factors weigh

whether

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

whether it

is a dependent one.

We accordingly address

that order, ultimately concluding that

them in

the facts reveal that the

housing site is not a dependent Indian community.

The Martine Factors

The Martine Factors
___________________

The

nature

of

inhabitants

Martine factors
_______

the

of

government, and

area

the

in

area

mandate that

question;

to

Indian

the

"weigh the

relationship

Tribes

the established practice

-21-

a court

and

the

of

the

federal

of government agencies

toward

the

area."

considerations

Martine,
_______

support the

442

F.2d

at

Tribe's contention

1023.

These

by demonstrating

that the housing site is a community.

First,

as

recognized the housing

the

district

court

noted,

site is in an area "in

the

BIA

has

which 'a distinct

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

Narragansett I,
_______________

878

F.

Supp.

Memorandum on Acknowledgement of

1982, at 9).

at 536

(quoting

BIA

Internal

Narragansett Indian Tribe, July

While we recognize that fact, however, we also note

that it cannot

be doubted that

the Settlement Act

all claim to aboriginal title to the housing site.

1705(a)(3).

Tribe.

we

do not

significant relationship between the

Tribe:

to establish housing

of bringing

See 25 U.S.C.
___

This factor, then, does not weigh in favor of

In contrast,

site and the

extinguishes

that there

will

inhabitants of the

indeed, the entire point

back together."

be a

housing

of the project is

for Tribe members and to serve

the Narragansetts

878 F. Supp. at 356.

doubt

the

as "a means

Narragansett I,
______________

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

the

monies for the

occupants' rent,

management of the

all

pursuant to

designed to provide housing for Indians."

Supp. at 354; see

___

project and subsidize

a program

"specifically

Narragansett I, 878 F.
______________

South Dakota, 665 F.2d at

____________

840 (remarking upon

-22-

similar governmental

activity as showing "[f]ederal

concern for

the

[housing] project").

that

The district court noted that the fact

there is a relationship

underscored

by

participate

in nutrition,

subsidized

Tribe

the evidence

by the

between HUD and

that

many of

education

federal

government and

However, we

the

and job

on the adjacent settlement lands."

Supp. at 357.

the community "is

occupants will

training programs

administered by

the

Narragansett I, 878 F.
______________

note that, as we find below,

while a

relationship exists to the extent that these federal entities are

active in the housing site, their

of

actions do not rise the

level

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.

Weddell, 636 F.2d

_______

important

than

at 211

density

(noting that these

of

population,

elements are

percentage

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

this

factor weighs in favor

community:

of finding this

of

See
___

more

Indian

Certainly

a dependent Indian

the project will help the Tribe supply housing to its

elderly and low-income

members.9

Further,

the housing site

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

is

Tribal

____________________

9
to

The

fact that occupancy is actually open

to anyone, pursuant

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.").

-23-

Assembly,

the

administration

offices

of

of federal

the

tribal

programs --

government

in short,

close to the "center of tribal government, culture

life."

Narragansett I, 878
______________

fact that the housing will

is

not enough,

by

itself,

F. Supp. at

356.

it is

establish

the

the

indeed

and religious

Nonetheless, the

be predominantly Indian in

to

and

character

presence

of

dependent

Indian

(noting that

fact

population and gave

not convert

community.

See Blatchford,
___ __________

that "Indians

constituted

the area a distinctly

the community

into a dependent

904 F.2d

the bulk

at 549

of

the

Indian character does

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.

whether the United States

First, we ask

retains title to the housing

the authority to enact regulations and laws.

site and

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 government, owns the

land

The

does not

dependent

fact that the Tribe, not

preclude a

Indian

(rejecting the

finding that

community.

argument that

See
___

the housing

Sandoval, 231
________

Pueblo Indians holding

-24-

site

U.S.

is a

at

48

fee simple

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

of

land, some

which

is not"

of which is

and

owned by

which is

which is "a patchwork

the Navajo

not within

Tribe, some of

reservation, was

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

had

where fee title to the

passed to the Creek Nation by federal treaty).

this must weigh against

the Tribe.

See Blatchford
___ __________

disputed area

Nonetheless,

v. Sullivan,
________

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

private

owner

held

land

in

determining

dependent Indian community, although

allotment

land); Weddell, 636

_______

that although

land was

that

was

not

it was surrounded by Navajo

F.2d at 213

within the

land

(noting, inter alia,

__________

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

issue

in

dispute

regulations

here:

and laws.

by our decision here.

indicates that it

IHS,

and BIA

of this factor

who

has

The State's

As for

the

focuses upon the

authority

to

very

enact

authority will be determined

the federal government, the record

has exercised

authority in the

activity, regulations

and financing.

form of

HUD,

Of course,

HUD,

at

other,

least, can

provide

non-Indian contexts.

financing and

set

regulations in

The record does not address whether

-25-

there

is more extensive federal

regulation here by

any other HUD assisted, non-Indian project.

largely

determined by

our

decision today,

neither for nor against the Tribe.

HUD than in

Since this factor is

we

find it

weighs

Whether the Lands Have Been Set Apart

Whether the Lands Have Been Set Apart
_____________________________________

The last

has

been

occupancy,

set

factor we address is whether the housing site

apart by

the

and protection

of

federal

government

dependent Indian

for the

peoples.

proves to be the crucial factor in our discussion.

681

F.2d at 77 (noting that this

use,

This

See Levesque,
___ ________

is the "ultimate issue" in the

factual analysis).

[T]he test for

is

Indian

determining whether

country

whether that land

land" or
whether

does

not

turn upon

is denominated

"reservation."
the area has

land

"trust

Rather,

we ask

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,

decisions],

was

to designate

as elucidated by

as Indian

[Supreme Court

country all

lands set

aside by whatever means for the residence of tribal Indians under

federal

protection, together

allotments.").

trust and

restricted Indian

Indeed, the Tenth Circuit regards this factor

sufficient measure

Buzzard, 992 F.2d

_______

applying

with

only the

of whether

at 1076 (noting

"set apart

land is

the existence of

for the

-26-

Indian country.

use of Indians"

as

See
___

1151, but

test in

determining whether land was Indian country).

The district court found that the housing site met this

factor's criteria.

Although
title

to

the United States does not hold

the

land

and

did

not

vest

control over it in the Tribe, HUD has, in

a manner of speaking,
for occupancy by
members

pursuant

set the land apart

elderly and
to

a need

low-income
recognized

both by HUD and the Tribe.

Narragansett I, 878
______________

below, we disagree.

F. Supp. at 356.

For

the reasons discussed

Our

land apart.

there is

law,

first

question must

no established definition.

"land is

constitutes setting

As with the concept of dependent Indian communities,

however, we agree with

Having

surveyed the

case

the Tenth Circuit's suggestion that

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

if the federal government

land is

be what

takes some action indicating that

Buzzard, 992
_______

F.2d at

1076 (quoting Citizen Band Potawatomi Indian Tribe, 498

_____________________________________

U.S. at

649

designated for use

(quoting

John,
____

"[s]uperintendence

consequential

exists for

437

by

by Indians."

the

U.S.

the

at

federal

political dependence

purposes

of

649)).

section

on

In

other

government,

the part

1151(b) where

and

of the

the

words,

the

tribe,

degree

of

congressional

pervasive

as

and

executive

control

to

evidence

an

government, not the state,

in the area."

over

intention

the

tribe

that

the

is

so

federal

be the dominant political institution

Native Village of Venetie, 1995 WL 462232, at *14.

_________________________

We do not find evidence of such control here.

-27-

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

request

obtained
with

only

the

by

Secretary

Interior, who must consider,

things, the

used.

If

of

a
the

among other

Indian's need for

and the purposes for

be

filing

the land,

which the land will

the request

then the United States

is approved,

holds the land as

trustee. . . .
. . . In addition,
acquire

trust

land, the

consider

several

authority

for

impact

on the

removal of
and

before agreeing to
Secretary must

factors including
the

transactions,

state resulting

the land from the

jurisdictional

the
the

from the
tax rolls,

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

and

criminal

trust by the United

jurisdiction

considerations made

the

would

States, the issue of

have

in the trust process

federal government

agrees

to hold

been

civil

addressed.

The

demonstrate that "when

land

prepared to exert jurisdiction over the land."

in trust,

it

is

Id.
___

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

found where a

dependent

court held

that a housing

project constituted

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

participation of HUD and an Indian housing authority.

States
______

v. Driver,
______

denied,
______

502 U.S.

945 F.2d

1410, 1415

1109 (1992);

(8th Cir.

South Dakota,
____________

See United
___ ______

1991), cert.
_____

665 F.2d

at 839;

-28-

Mound, 447 F.2d at 158.

_____

Seminole Nation v. Harjo,

_______________
_____

In the fourth, Housing Authority of the

_________________________

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

program whereby

Harjo would

make payments

of a federally-funded

each

month and,

in

seventeen years,

United

would own the house and the land.

States did

not

have

title

to

the

Although 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.

court

"controls

found

that

the

government

foreseeable legal consideration

[program]

runs its course or

Tribe

has

pointed

to no

virtually

touching the property

sooner terminates."

Although HUD regulations apply

such

every

until the

Id. at 1102.
___

in the present case as

comprehensive

Thus the

well, the

superintendence.

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

were

not purchased from third

Instead, they

parties, as in

were originally part of

the present case.

Harjo's restricted Indian

allotment,

remained

and the

portions of

restricted, a

the allotment

much closer

link to

she did

not use

government control

then the Tribe demonstrates here.

In fact,

majority

we

note that,

aside

the

vast

of cases we have found which analyze what constitutes a

dependent Indian community since

is such a

from Harjo,
_____

community if the land

1151(b) was enacted find there

is held in trust,

-29-

Driver, 945
______

F.2d

at 1415; Azure, 801 F.2d at

_____

839;

Mound, 477
_____

Youngbear
_________

F.

Supp.

v. Brewer,
______

aff'd, 549 F.2d 74

_____

415

at

339; South Dakota, 665 F.2d at

____________

158;

or

F. Supp.

as

807,

(8th Cir. 1977).

settlement

lands,

809 (N.D.Iowa

1976),

Similarly,

in Levesque, we
________

found a dependent

Indian community where the land was

newly

Indian tribe

recognized

Levesque,
________

681 F.2d at

78.

as

On

part

of their

the other hand,

held by a

reservation.

we note that in

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

by a tribe,

the courts found

community.

See
___

Buzzard,
_______

purchased

by tribe);

there was not

992

Blatchford,
__________

F.2d

at

904 F.2d

a dependent

1075

Indian

(involving land

at 548

(addressing

privately

held

Weddell,
_______

636

corporation

land

F.2d

surrounded

at

on former

527

(addressing land held in

1995

extinguished

Venetie

1023.10

WL

independent

F. Supp.

68,

land);

municipal

United States
______________

69 (W.D.Okla.

v.

1981)

fee by non-Indians); Native Village of

__________________

462232,

Government).

Thus the facts

allotment

reservation);

at

*15

aboriginal claims,

Tribal

Navajo

(involving

Indian

Oceanside Okla., Inc.,

______________________

Venetie,
_______

213

by

(after

fee held

But see
________

that the

settlement

by Native

Martine,
_______

housing site is

act

Village of

442

F.2d at

not held

in

____________________

10

We note that in

Circuit

its brief discussion in

Martine, the Tenth

_______

did not consider whether the lands had been "set apart."

442 F.2d at 1023-24.

Later decisions in that

circuit, however,

have
See
___

incorporated the
Watchman,
________

52

F.3d

additions to the Martine

_______
904

South Dakota
____________
at

1545

factual analysis).

relied solely
country,

(adopting

their analysis.

the

list of factors); see also

________

F.2d at 544-49 (discussing

conducting

factors in

on the "validly

eschewing analysis

development of the
Indeed, in
set apart"

South Dakota
_____________

Blatchford,
__________

case law and

Buzzard, the
_______
definition of

under section

1151.

court

Indian

Buzzard, 992
_______

F.2d at 1076-77.

-30-

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

_______

unilaterally purchased the

them in

fee simple.

smokeshops

Indian

on the

country

government

for

lands in dispute,

Instead of

land.

The

because it

the use

tribe claimed

the

position, it pointed to a clause

and held title

housing, it set

had been

of

set

apart by

Indians.

In

the approval

of

to

up commercial

that the

land was

the federal

support

of its

in its charter and in 25 U.S.C.

177 providing that land owned by a tribe cannot

without

Indian tribe

the Secretary

of

be disposed of

the Interior

--

restraint on alienation that

as

well.

finding

The Buzzard
_______

that

the Tribe acknowledges applies here

court

rejected

restriction

on

the tribe's

alienation

by

argument,

itself

is

insufficient to make the land Indian country.

If

the

were

restriction
sufficient

against
to

make

purchased by the [tribe]

the

alienation
any

land

Indian country,

[tribe] could remove land from state

jurisdiction
government

and
to

force

exert

the

federal

jurisdiction

over

that land without either sovereign having

any

voice in

McGowan
_______
land

or

the
the

indicates

intended for
unilateral

matter.

Nothing

cases concerning
that

the Supreme

Indian tribes to
power

to

in

trust
Court

have such

create

Indian

country.

992 F.2d

at 1076.

Of course,

in the present

case we

have an

-31-

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

that

WHA project

is simply not

sufficient to

establish

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

apart," leads

us to conclude

that the district

has been "set

court's holding

that the housing site had been set apart constituted an abuse

of

its discretion.

v.

Bellotti,
________

641

F.2d

"'misapplication

discretion.'"

See
___

Planned Parenthood League of Mass.

_____________________________________

1006,

1009 (1st

of the law to

Cir.

1981)

particular facts is

(noting that

an abuse of

(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

inquiry).

While the

Tribe's

Indians,

one.

contention

the

"ultimate issue"

in our

first two factors we addressed

that

the housing

site

is

fact-based

support the

community of

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

Without federal

ownership of the land, as

-32-

required in the

first South Dakota factor, or federal action

_____________

sufficient to "set

aside" the land,

we cannot find

these

facts

dependent

States
______

as required

that the

"dependent" aspect

Indian community

v.

("Although

Adair,
_____

the

in the fourth,

913

has

F.

the concept

been established.

Supp.

government's

of

1503, 1515

retention

of

See
___

of a

United
______

(E.D.Okla.

title

on

1995)

or

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

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

without

should

462232,

such title,

consideration of

be unnecessary.");

at *13

the other

. .

. factors

Native Village of Venetie, 1995

___________________________

(noting that

the question

of whether

WL

there is

federal

superintendence

"brings

into

play

the

'dependent'

component").

Put

government

simply,

it is

agency funding

too far

and

stretch to

oversight here

regard the

as evidencing

federal intent to give the tribe presumptive sovereignty over the

housing

site

by

making

implausible that a

country

--

theretofore

and

it

tribe could

thus

Indian

country.11

obtain a valid

presumptive sovereignty

privately-held

obtaining financial and other

lands just

by

It

claim to

rights

seems

Indian

--

purchasing them

over

and

assistance from the government for

their development, without any opportunity for involvement by the

state,

any negotiated

____________________

agreements with

respect to

jurisdiction

11

Indeed,

granting of
viewed

as

outside

of the

a HUD

subsidy

evidence

of

context
to a

of tribal

disputes,

housing project

federal

intention

to

the

would not

be

preempt

the

operation of all other state laws.

-33-

over the

land, or considered analysis by

such as the one

the federal government

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,

to

exercise

activities

without necessarily incurring a commitment

jurisdiction

and

"superintendence"

on that land, whether

related to housing

over

all

or not, to

the presumptive exclusion of state laws.

CONCLUSION
CONCLUSION

For

the

above

reasons,

court's denial of the request

as

it was based

we hold

that

the

district

for a permanent injunction insofar

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
reversed
________

the district

court shall enter an order granting the injunction.

The district

court's

grant

plaintiffs

from

of the

request

occupying

for

or

a permanent

permitting

occupation

buildings constructed

or to be

unless and

applicable requirements of

until all

injunction

constructed on the

of

of

any

housing site

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
________

-34-