INDIGENOUS LAW SUMMARIES: RECENT CASES

by
Carl Christensen, Visiting Assistant Professor


The Center for Excellence in Native Hawaiian Law promotes discourse between the legal community, the Native Hawaiian community, and the community at large. To further this goal, the Center provides brief summaries of selected state and federal court decisions that impact, or may impact, Native Hawaiians. This issue of Ka He‘e includes summaries of Carcieri v. Kempthorne and Nobriga Enterprises v. State of Hawai‘i.

Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) (en banc), cert. granted, 76 U.S.L.W. 3226, 128 S.Ct. 1443 (Feb. 25, 2008) (No. 07-526).

On February 25, 2008, the U.S. Supreme Court agreed to hear Carcieri v. Kempthorne, a case in which the State of Rhode Island challenged the decision of the Secretary of the Interior to take about 30 acres of land in Charlestown, Rhode Island, into trust for the Narragansett Tribe of Indians. The case raises significant questions about the land-into-trust process, as well as broader issues relating to the relationship between Indian Tribes and state governments under federal law.

In 1975, the Narragansett Indian Tribe sued the State of Rhode Island, the Town of Charlestown, R.I., and individual private landowners in Charlestown (collectively “the State”) to recover 3200 acres of land that had been sold out of tribal hands in violation of the Indian Nonintercourse Act, arguably rendering the sales void ab initio. The parties agreed to a settlement, ratified by Congress in 1978 with the enactment of the Rhode Island Indian Claims Settlement Act, which provided that the Tribe would receive 1800 acres of land to be held in trust (the “Settlement Lands”). In return for the land, the Tribe agreed to extinguish all other land claims within Rhode Island and agreed that the land would be fully subject to the State’s criminal and civil laws (the latter condition distinguishing the Narragansetts from most other recognized tribes, which are not generally subject to state law within the limits of their reservations).

Subsequently, the Tribe purchased 30 acres of land adjacent to its reservation and petitioned the Secretary of the Interior to take the land into trust on the Tribe’s behalf pursuant to Section 5 of the Indian Reorganization Act of 1934 (IRA). The Secretary ultimately approved the petition, over the objections of the State of Rhode Island and various other parties, which argued that: (1) Section 5 of the IRA did not apply to the Tribe, as its effect was limited to “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” and thus excluded the Narragansetts, who were not a recognized tribe in 1934 when the IRA was enacted; (2) the terms of the Settlement Act itself prevented the Secretary from taking additional lands into trust for the Tribe, or, in the alternative, required that if additional lands could lawfully be taken into trust, those lands were nevertheless fully subject to State jurisdiction, just as were the Settlement Lands; (3) the Tenth Amendment prohibited the Secretary from creating new Indian Country within a state without the approval of that state; (4) the Enclave Clause of the Constitution prohibited the Secretary from creating new federal enclaves within a state without the approval of that state; and (5) the statute authorizing the Secretary to take land into trust for Indians failed to set forth an intelligible principle to guide the Secretary, thus violating the Non-Delegation Doctrine, an aspect of the separation of powers doctrine which prohibits Congress from delegating legislative power to the Executive Branch by failing to impose limits on the exercise of the agency’s unguided discretion. The U.S. Court of Appeals for the First Circuit, in an en banc decision, rejected all of the State’s arguments.

The State sought certiorari on three questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934. 2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there[; and] 3. Whether providing land ‘for Indians’ in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.

On February 25, 2008, the U.S. Supreme Court granted the State’s petition to hear the case, limited to Questions 1 and 2 (i.e., declining to address the Non-Delegation issue).

If the Supreme Court rules for the State of Rhode Island, it would prevent all Indian tribes recognized since 1934 (of which there are several hundred, if native groups in Alaska are counted) from having land taken into trust for them under the authority of the IRA unless that authority is provided by specific post-1934 legislation.

In the event the Akaka Bill or similar legislation is enacted by Congress to recognize a Native Hawaiian Sovereign Entity, that entity would presumably enter into negotiations with the State of Hawai‘i and the United States to resolve Native Hawaiians’ claims to land and sovereignty. The ultimate result of those negotiations would most likely be the execution of a settlement agreement that would require congressional ratification in a Settlement Act, analogous to the Rhode Island Indian Claims Settlement Act at issue in Carcieri. One of the issues to be resolved in the course of those negotiations would be the question of whether or not (and, if so, how) additional land could be placed under the jurisdiction of the Native Hawaiian Sovereign Entity after the enactment of the Settlement Act itself.

Freddy Nobriga Enterprises, Inc. v. State of Hawai‘i, Department of Hawaiian Home Lands, 2008 WL 366778, unpublished disposition, Hawai‘i App. February 8, 2008 (No. 28149).

Normally, a non-precedential memorandum opinion of Hawai‘i’s Intermediate Court of Appeals (ICA) is of little interest except to the parties in the case. But, Freddy Nobriga Enterprises is of note because it suggests a potential but as-yet unexplored area of State liability to beneficiaries of the Hawaiian Homes Commission Act (HHCA).

Plaintiffs Alfred Nobriga and Freddy Nobriga Enterprises, Inc. (Nobriga) operate a cattle ranch on Hawai‘i Island on land leased from the Department of Hawaiian Home Lands (DHHL). Parker Ranch leases adjacent DHHL land under an agreement that obligates Parker Ranch to control gorse, an extremely spiny invasive alien weed that makes land unusable for ranching and other purposes. Nobriga alleged that “Parker Ranch owed Nobriga a duty to control gorse on Parker Ranch’s land,” that “[t]he State owed Nobriga a duty to enforce the gorse-control provisions in the lease between the State and Parker Ranch,” that “[t]he State and Parker Ranch had allowed gorse to cover approximately 10,000 acres leased to Parker Ranch,” and that “[t]he State and Parker Ranch had breached their duty to control the gorse and caused Nobriga to incur gorse-control and related expenses because the gorse had spread to Nobriga’s land.” Nobriga sued DHHL and Parker Ranch for damages and injunctive relief. The trial court granted summary judgment to the defendants on all counts, including counts not addressed in the defendants’ motion.

Nobriga’s claims sound in contract and in tort. Nobriga claimed to be an intended third-party beneficiary of DHHL’s lease with Parker Ranch, and as such claimed standing to enforce the gorse-control of the lease. The ICA affirmed the trial court on this issue (the only matter raised in the defendants’ motion), concluding that Nobriga was a mere incidental beneficiary and thus lacked standing to enforce the lease provision. The ICA reversed the trial court on the tort claims. The court also concluded, however, that Nobriga could pursue claims based on allegations of negligence, private nuisance, and trespass (which had not been addressed in the defendants’ motion). The ICA ruled that it was expressing no opinion on the merits of Nobriga’s tort claims, suggesting, however, that the trespass claim might depend on “whether tolerance of gorse on ranching land is an abnormally dangerous activity.”

On remand, Nobriga will likely raise interesting issues as to a landowner’s liability for failing to control a noxious weed that causes injury after spreading onto neighboring lands. The facts of the case also suggest certain other legal issues concerning DHHL’s fiduciary obligations to HHCA beneficiaries regarding the management of trust assets.

The facts of Nobriga bear a resemblance to White Mountain Apache Tribe v. United States, 537 U.S. 465 (2003), a case addressing the United States’ liability for breaching its obligations regarding the management of assets held in trust for Indian tribes. That case involved claims by the tribe that the United States had allowed buildings of the former Fort Apache (a former army post established in 1870, more recently used as a school for Indian children; the land and buildings were held in trust for the Tribe by the United States) to fall into disrepair. Although the post’s surviving buildings were identified by the National Park Service as a national historical site in 1976, in 1993, an engineering survey commissioned by the Tribe concluded that the buildings had been allowed to deteriorate to the point where it would cost $14 million to rehabilitate them. In 1999, the Tribe brought suit against the United States in the U.S. Court of Federal Claims for the full amount, alleging breach of fiduciary duty to “maintain, protect, repair and preserve” the trust property.

The United States moved to dismiss, arguing that “no statute or regulation cited by the Tribe could fairly be read as imposing a legal obligation on the Government to maintain or restore the trust property, let alone authorizing compensation for breach.” The U.S. Supreme Court, in a 5-4 decision, rejected the United States’ position, looking instead to an earlier decision entitled United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II), which had held that where the law gave the United States “full responsibility to manage Indian resources and land for the benefit of the Indians,” that law could “fairly be interpreted as mandating compensation through money damages if the Government faltered in its responsibilities.” The Mitchell II Court distinguished its opinion in United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), in which it had held that a different statute which did not give the United States “full responsibility” to manage trust assets “for the benefit of the Indians” created only a “bare” trust that did not create liability for money damages. The White Mountain Apache Court held that the facts before it were like those of Mitchell II, not Mitchell I, noting that “elementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on its watch,” as “one of the fundamental common-law duties of a trustee is to preserve and maintain trust assets.”

The Hawaiian Homes Commission Act, like Section 5(f) of the Hawai‘i Admission Act, establishes a “Mitchell II trust,” at least with regard to assets leased to non-beneficiaries. In that, the State of Hawai‘i, as trustee, has “full responsibility” to manage assets of the trust for the specified beneficiaries, and for no other purposes. Furthermore, as the Hawai‘i Supreme Court recognized in Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982), “[i]n dealing with eligible native Hawaiians collectively or individually, [DHHL] must adhere to high fiduciary duties normally owed by a trustee to its beneficiaries.” The Hawai‘i State Legislature, recognizing this duty, has enacted Chapter 673, Hawai‘i Revised Statutes, the Native Hawaiian Trusts Judicial Relief Act, which waives the State’s sovereign immunity to allow eligible HHCA beneficiaries to sue the State of Hawai‘i for money damages in the event the State breaches its “trust or fiduciary duty” in the management of Hawaiian Home Lands.

The Nobriga plaintiffs did not claim to be beneficiaries of the HHCA and, thus, lacked standing on that basis to enforce the gorse-control provisions of DHHL’s lease with Parker Ranch once their claim to intended third-party beneficiary status was rejected. HHCA beneficiaries, on the other hand, would have standing to assert a money damages claim against the State if they could prove that DHHL, by allowing gorse to spread across its lands, thus diminishing its value as ranchland, had breached a fiduciary duty to “preserve and maintain trust assets.” Furthermore, once DHHL recognized the danger to its lands resulting from gorse infestation (as it appears to have done when it included the gorse-control provision in Parker Ranch’s lease), it may thereafter find itself in breach of its fiduciary duty if it fails to enforce the gorse-control provision against its lessee.