October 25, 2024

On October 16, 2024, USET SPF prepared and filed an amicus brief in support of the Narragansett Indian Tribe’s motion for summary reversal in Narragansett Indian Tribe v. Bhatt. Below is information about the case.

Tribal Nations’ role in the National Historic Preservation Act (NHPA) Section 106 process when sacred sites that will be adversely affected by a federal undertaking are not located on land currently held by the Tribal Nation.

The Federal Highway Administration (Agency) was considering providing funding to the State of Rhode Island for bridge construction that would result in adverse effects to historic properties, and it decided to pursue a Section 106 Programmatic Agreement (PA) to mitigate those harms. As mitigation, the PA required Rhode Island to transfer ownership to the Narragansett Indian Tribe of three parcels of land that have historic, cultural, and religious significance to Narragansett. However, after construction began and an entire lane of the bridge was constructed, Rhode Island “reneged” on its obligations under the PA and refused to transfer the properties to Narragansett for stewardship as required by the PA. The Agency terminated the PA, and it executed a new PA to which Narragansett did not agree and which Narragansett did not sign. For that PA, Narragansett was no longer treated as a required signatory but rather as a concurring party. Under this second PA, Rhode Island was not required to transfer the properties to Narragansett for stewardship.

On July 23, 2024, the DC District Court granted the Agency’s motion for summary judgment. It held the NHPA and its implementing regulations do not require a federal agency to secure a Tribal Nation’s signature before executing an NHPA Section 106 PA unless the PA pertains to affected historic properties located on Tribal lands. It reasoned that, because the bridge was not on Tribal lands, Narragansett was not a required signatory to the PA, and sufficient Tribal consultation had otherwise taken place. Narragansett appealed and filed a motion for summary reversal, and USET SPF filed a motion to file an amicus (still pending) in support of Narragansett.

USET SPF prepared and filed a motion and corresponding amicus brief in the case. The amicus highlighted the injustices Narragansett faced. We first provided context regarding how United States’ takings throughout time have resulted in many Tribal Nations’ sacred places falling outside our territorial jurisdiction. We also explained how the NHPA is designed to carry out trust and treaty obligations by bringing Tribal Nations to the table for decision-making, and in some contexts recognizes Tribal Nations’ right to provide or withhold consent via signature. Last, we highlighted how the Agency had acted unlawfully by ratifying Rhode Island’s breach of its obligations under the first PA, by carrying out a disguised amendment of the first PA without Narragansett’s signature, and by changing the way it treated Narragansett without sufficient and reasonable explanation.

Narragansett Indian Tribe v. Bhatt, et al., 24-5193, before the U.S. Court of Appeals for the District of Columbia Circuit.

For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, or Katie Klass, USET SPF General Counsel.

Established in 2014, the USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization advocating on behalf of thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues.