Shared from the 2017-09-13 The Providence Journal eEdition

COURTS

Judge tosses tribe’s lawsuit over DOT viaduct project

Centered on 3 parcels eyed as compensation for damage done to site of ancient village

PROVIDENCE — A federal judge this week dismissed a lawsuit brought by the Narragansett Indian Tribe that accused the state of reneging on an agreement to transfer three properties to the tribe as compensation for damage done by the Providence I-95 Viaduct reconstruction project to the remains of an ancient village.

The tribe, on behalf of the Narragansett Indian Tribal Historic Preservation Office, sued the state Department of Transportation, the Federal Highway Administration, and two entities whose purpose is to minimize a project’s adverse impact on historic land.

At issue was a request by the state for the tribe to agree to state criminal and civil laws and jurisdiction on properties the state agreed to transfer to the tribe. The Narragansetts have refused to relinquish the tribe’s sovereignty on the land and had asked U.S. District Court to order the state to turn title to the properties over to the tribe.

U.S. District Chief Judge William E. Smith on Monday dismissed the action, finding that the tribe’s claims against the federal government must fail because the tribe had not waived its sovereign immunity as a federally recognized Indian nation. Smith quoted court precedent: “[a]bsent express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States.”

Smith dismissed the tribe’s allegations against the state as well. He found that the tribe had no legal claim under the National Historic Preservation Act of 1966 or the Administrative Procedure Act, as the tribe had argued. The APA only provides for a review of a federal agency action, but does not provide a right to bring legal claims against a state, the judge said.

Likewise, Smith ruled that the Historic Preservation Act does not give the tribe the authority to bring claims against a state.

The properties in play are the Salt Pond Archaelogical Preserve off Route 110 in Narragansett; the Chief Sachem Nighthawk property, at 4553 South County Trail, in Charlestown; and the Providence Boys Club-Camp Davis, a 105-plus acre property in Charlestown.

Court papers show that parties entered into an agreement in 2011 in which the state Department of Transportation would acquire those parcels and transfer ownership to the tribe. The state purchased the properties and informed the tribe in writing in September 2013 that it would not transfer Camp Davis without the tribe consenting to state jurisdiction on the land.

The tribe refused, arguing that that condition wasn’t in the original agreement. The parties were unable to resolve the dispute, and in February, state transportation officials moved to terminate the agreement. Federal officials concluded that the state requirement that the tribe waive its sovereign immunity in order to receive the land was not required by the agreement. They said that federal efforts urging the state to reconsider that condition had failed.

Narragansett Indian Tribe Historic Preservation Officer John Brown III expressed displeasure with the ruling, saying it jeopardizes all such federal/ state agreements.

“It seems like in this case a signed agreement is legal and binding, except when it involves the Narragansett Indian Tribe,” Brown said. “We agreed. ... The state now refuses to uphold its end of the bargain.”

The tribe, he said, has no intention of trying to put gaming on the Camp Davis property, but wants to maintain it in its natural state due to its proximity to a water source.

Amy Kempe, spokeswoman for the attorney general’s office, declined comment: “It would be inappropriate to comment at this time because the case may be appealed and the mitigation of the land at issue has not been resolved.”

The state Department of Transportation declined comment through its spokesman.

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