October 10, 2002
U.S. urges court to allow housing for tribe's elders
A Justice Department lawyer says an agreement between the Narragansett Indians and town and state officials not to build a casino on the land would violate federal regulations. 
by PAUL DAVIS, Journal Staff Writer 

PROVIDENCE -- The Narragansett Indian tribe should be allowed to finish a stalled plan to provide affordable homes for the tribe's elders, a Justice Department lawyer argued yesterday.

Town and state officials want the tribe to sign an agreement promising it won't build a casino on the 32-acre housing site near Route 1 in Charlestown. The tribe bought the land 11 years ago.

"So long as it is housing, we have no problem," Bruce Goodsell, Charlestown's assistant attorney, told U.S. District Court Judge Mary M. Lisi. "But there is no doubt the Narragansett Indians want to build a casino" in Rhode Island, he said.

But Justice Department lawyer Judy Rabinowitz argued that such an agreement would violate federal regulations. The Bureau of Indian Affairs has agreed to hold the 32 acres in trust for the tribe. As a result, the land cannot be encumbered by pledges or agreements, Rabinowitz said.

Restricting the land's use would set an "unworkable and terrible" precedent and raise the "specter of states ladling every conceivable restriction on tribal land," she said.

The affordable-housing project has been dogged by problems for years.

With a $4.1-million grant from U.S. Department of Housing and Urban Development, the tribe initially planned to build as many as 50 low-income housing units on the site. But an audit by HUD's investigatory arm, released in 1999, found that after spending $3.2 million, only 12 units had been built.

Since then, the tribe has been working with HUD to complete the dozen units, and has won project approval from Charlestown's Zoning Board and the state's Coastal Resources Management Council.

But the town has refused to enter into an agreement with the tribe to finish the project. Without it, HUD won't give the tribe the money it needs to finish the homes.

A casino isn't the only concern officials have.

If the Bureau of Indian Affairs holds the 32-acre housing site in trust, it will create a new Indian land with no state jurisdiction, said Neil F. X. Kelly, special assistant attorney general. "It will create a territory, or a zone if you will, where the state will not have any authority."

In fact, the tribe cannot extend its rule under the 1978 Settlement Act, argued Claire Richards, a lawyer with Governor Almond's office.

"The state made a deal with the tribe" to limit the tribe's sovereignty to 1,800 acres, Richards said.

Officials are also concerned the government didn't do its homework when it considered the trust application, Goodsell said.

Lisi promised a speedy written ruling on the long-simmering issue. But she also predicted her ruling would be appealed.

Early in the hearing, Lisi asked Rabinowitz why the tribe didn't simply sign an agreement limiting its use of the land. "They're a little nervous," Lisi said of town and state officials. "They're concerned the Narragansetts are going to build a casino over there."

But Rabinowitz said the tribe, "like any government, does not want to bind future governments" by restricting the land's use. But even if the tribe wanted to build something else, it would need zoning and environmental approvals.

And if the tribe wanted to build a world-class casino, it would have to enter into a compact with the state. "The state holds all the cards there," she said.

Also in court were Narragansett Chief Sachem Matthew Thomas and Tribal Council member Hiawatha J. Brown.

"The judge was very intelligent and asked the right questions," Thomas said. "We can only hope it is beneficial to the tribe."

When the tribe launched the housing project, there were 26 elders on the waiting list for homes, Thomas said. But in the last 10 years, half of them have died.