
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,  Town of Charlestown,          ____________  _________________          and Bruce N.  Goodsell, Assistant Town  Solicitor, were on  brief              __________________          for appellants.               Randall L. Souza,  with whom  Fred A. Kelly,  Jr., Peter  V.               ________________              ___________________  _________          Lacouture  and Peabody & Brown were on brief for the Narragansett          _________      _______________          Electric Company.               John  F. Killoy, Jr., with  whom Law Office  of H. Jefferson               ____________________             ___________________________          Melish  was on brief for  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.  Defendant-intervenors the town                    TORRUELLA, Chief Judge.                               ___________          of  Charlestown  (the  "Town")  and the  State  of  Rhode  Island          (together, the "State")  seek a permanent injunction  prohibiting          plaintiffs the  Narragansett Indian  Tribe (the "Tribe")  and the          Narragansett Indian Wetuomuck Housing Authority (the "WHA")  from          constructing  a housing complex without obtaining various permits          and  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  is, by virtue  of          being  a dependent Indian community,  and so declined  in part to          issue  the injunction  sought by  the  State and  the Town.   We,          however,  find it is not, and so,  for the reasons stated herein,          we reverse in part and affirm in part.                                      BACKGROUND                                      BACKGROUND                    The district court relied  on the evidence presented at          an  evidentiary  hearing  regarding  the  State's  motion  for  a          preliminary  injunction, which  evidence  the parties  stipulated                                        ____________________          1   This  suit was  initially brought  by plaintiffs  against the          Narragansett  Electric  Company,  a Rhode  Island  public utility          corporation.   Plaintiffs  asserted subject  matter  jurisdiction          under  28  U.S.C.     1331  and  1362.    The State  subsequently          intervened  in   the  lawsuit   and  filed  a   counterclaim  for          declaratory and injunctive relief  against the plaintiffs, and it          is the  State's counterclaim  that  underlies this  appeal.   The          Narragansett Electric  Company takes no position  with respect to          the issues  raised by the  State in  this appeal.   We add  that,          because the plaintiffs have asserted no claims against the State,          this action  does not implicate Eleventh  Amendment concerns, and          the  Supreme Court's  decision in  Seminole  Tribe of  Florida v.                                             ___________________________          Florida, __ U.S. __, 116 S. Ct. 114 (1995) is inapposite here.          _______                                         -3-          could serve  as the  basis  for the  district court's  decision.2          Narragansett  Indian Tribe  v. Narragansett  Elec., 878  F. Supp.          __________________________     ___________________          349,  352 (D.R.I. 1995) ("Narragansett I").  As the parties raise                                    ______________          no challenges to the  district court's findings, we rely  on them          as well.3                       In 1991 the  WHA purchased  the land which  is at  the          center  of  this  dispute (the  "housing  site")  from a  private          developer.  See id. at 534  (detailing history of purchase of the                      ___ ___          housing site).  The housing site is adjacent to the Tribe's other          lands, separated from them by a  town road.  The Tribe's  church,          the long house which  serves as the seat of the  Tribal Assembly,          and the  offices where the  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.  The approximately 32 acres of the housing site is          located  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  to require at          least two acres of  land per residential unit, a  requirement the          proposed project does not meet, as it will have some fifty units.                                        ____________________          2   As  the  district court  noted, the  request for  a permanent          injunction  we address here  relates only to  the construction of          the  housing complex.    We  do not  express  an opinion  on  any          remaining portions of the case.          3  The parties do dispute whether the  trust application has been          withdrawn.   However,  as counsel  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,  will be          occupied by elderly and low-income members of the Tribe."  Id.                                                                     ___                    The  United  States  Department  of  Housing and  Urban          Development ("HUD") has recognized the  WHA as an Indian  Housing          Authority, and has provided the financing for the purchase of the          housing site and  the construction  of the buildings.   HUD  will          also  provide  money  both  for  managing  the  project  and  for          subsidizing  the occupants' rent.   The HUD funds  have been made          pursuant to a  program designed to  provide housing for  Indians.          See The Indian Housing Act of 1988, 42 U.S.C.    1437aa-1437ff.           ___                    The  WHA bought the land,  and then conveyed  it to the          Tribe.  A deed  restriction requires that the  land be placed  in          trust  with the federal  government, for  the express  purpose of          providing housing for tribal  members.  The district court  found          that  the  Tribe  had applied  for  trust  status,  but that  the          application  had not yet been  granted.  Meanwhile,  the land has          been leased to the WHA, with the approval of the Bureau of Indian          Affairs ("BIA").                    The WHA began construction  on the housing site without          a  building permit  from  the  Town  or  state  approval  of  the          individual  sewage  disposal  systems (the  "ISDS")  serving  the          project.   Nor  did the  WHA "obtain  any determination  that the          project  is   consistent  with  Rhode  Island's   CRMP  or  state          regulations  designed  to  preserve  property  of  historical  or          archeological  significance."   Narragansett I,  878 F.  Supp. at                                          ______________                                         -5-          354.   The  district  court found  that  the excavation  for  the          project has  infringed on the  Town's drainage easement,  and has          threatened to alter drainage patterns to the detriment of coastal          and groundwater resources.   At the same time, however,  the ISDS          systems meet Indian Health  Service ("IHS") regulations.4  "[T]he          record is silent regarding  the differences, if any, between  the          State's building code and  the Tribe's building code or  what the          significance of any such differences may be."  Id. at 355.                                                         ___                    To  further  complicate  the picture,  "[t]he  evidence          demonstrates  that  the housing  site  is in  close  proximity to          Ninigret  Pond,  a fragile  salt water  estuary  that is  a prime          spawning  ground for  several  species of  commercially important          fish."    Id.    The  district  court  found  that  the  pond  is                    ___          "ecologically stressed"  already, due  to nitrates in  the ground          water,  and that  the possibility  exists that nitrates  from the          WHA's  ISDS systems could reach  the pond "and  worsen an already          serious problem."  Id.                             ___                    In  its detailed opinion,  the district court concluded          that the  housing site is indeed a  "dependent Indian community,"          and thus is Indian country  under 18 U.S.C.   1151.   Noting that          "tribal sovereignty is no longer an absolute bar to the assertion          of state  authority in  Indian country,"  Narragansett I, 878  F.                                                    ______________          Supp. at 359,  the court carried out a  pre-emption analysis.  It          concluded that  the State's building and  zoning regulations were                                        ____________________          4   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  Island's CRMP was  not pre-empted,          and accordingly  enjoined the WHA  and the  Tribe from  occupying          buildings on the housing  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  permanent injunction under an          abuse of discretion  standard.   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.  The Settlement Act                                A.  The Settlement Act                                    __________________                    The  State makes its first argument on the basis of the          Rhode  Island Indian  Claims Settlement  Act  of 1978,  25 U.S.C.             1701-1716 (the "Settlement  Act").  We begin  with the history          of the Settlement Act, and then address the State's contention.                                    1.  Background                                    1.  Background                                        __________                    The background  of the  relationship between the  Tribe          and the State has  been addressed in some detail by  the district                                        ____________________          5  The Tribe has  not appealed from the district  court's partial          grant of injunctive relief.  The court found that it did not need          to  make a  determination  regarding  whether  state  regulations          regarding   property   with   historical   and/or   archeological          significance   applied,  since   the   Rhode  Island   Historical          Preservation Commission  had notified  the Tribe that  it had  no          objection to the project as planned.                                         -7-          court below, Narragansett  I, 878 F. Supp. at  353-55, as well as                       _______________          in  prior  decisions of  the courts  of  this circuit,  see Rhode                                                                  ___ _____          Island v. Narragansett Indian Tribe, 19 F.3d 685, 689 (1st Cir.),          ______    _________________________          cert. denied,  __ U.S.  __, 115  S.  Ct. 298  (1994); Maynard  v.          ____________                                          _______          Narragansett  Indian Tribe, 984  F.2d 14, 15-16  (1st Cir. 1993);          __________________________          Town  of Charlestown v. United  States, 696 F.  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,  802-03 (D.R.I. 1976).  Therefore,  rather than          enter  into a  detailed discussion,  we will  simply outline  the          essential  structure  of  the  historical  underpinnings  of  the          State's first argument.                    In  the mid-1970s,  the  Tribe brought  two actions  to          establish  its right  to possession  of lands which  it contended          were  unlawfully held by the State as well as private individuals          and businesses.  The ground for its claims was that the lands had          been   unlawfully   alienated   in   violation   of  the   Indian          Nonintercourse Act, 25 U.S.C.   177.  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.  The Tribe relinquished          its title  claims, and  in return received  a sum  of money6  and                                        ____________________          6   The Tribe notes that  it disagrees with the  district court's          statement that the Tribe received a  payment under the Settlement          Act,  maintaining that there was  neither a payment  to the Tribe          nor  a distribution of money or land to individual Tribe members.          Whether or not  the Tribe received a payment is irrelevant to our                                         -8-          effective  control over some 1,800 acres of land, whose title was          held  by a  corporation (the  "settlement lands").   Implementing          legislation  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,  the Narragansetts were  officially recognized          as an Indian  tribe.  See Narragansett  Indian Tribe, 19  F.3d at                                ___ __________________________          689.   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  jurisdiction over, and  exercise[s] governmental          power  with  respect to,  those lands."    Id. (holding  that the                                                     ___          Indian Gaming Regulatory  Act, 25 U.S.C.    2701-2721,  18 U.S.C.             1166-1168, applies to the settlement lands).                               2.  The Present Dispute                               2.  The Present Dispute                                   ___________________                    The  State's first  contention in  the present  case is          that  the Settlement  Act  precludes a  finding that  the housing          site,  which is  not  part of  the  settlement lands,  is  Indian          country,  because that Act  resolved the Tribe's  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  the Settlement Act as extinguishing all of the Tribe's claims          and  limiting  the  boundaries  of  its  Indian  country.7    The          linchpin  of its argument is its contention that it was Congress'          intent  in the  Settlement  Act to  set  definite limits  to  the          Tribe's  Indian country and  to extinguish  any claim  to greater          boundaries, and  congressional intent must prevail.   See Rosebud                                                                ___ _______          Sioux  Tribe v.  Kneip, 430  U.S. 584,  586 (1976)  (noting "that          ____________     _____          congressional  intent  will  control" in  determining  whether  a          reservation has  been terminated).   Such a specific  statute, it          maintains, overrides the general definition of "Indian country."                    The Tribe responds with two counter-arguments.   First,          it  maintains that the State effectively  waived this argument by                                        ____________________          7    The  pertinent  section   provides  that  upon  the  State's          compliance  with the conditions  of the  Settlement Act,  and the          recognition of the same by the Secretary of the Interior,                          by   virtue  of  the   approval  of  a                      transfer  of  land  or natural  resources                      effected   by   this   section,   or   an                      extinguishment   of    aboriginal   title                      effected thereby, all claims  against the                      United States, any  State or  subdivision                      thereof,  or any other  person or entity,                      by  the Indian  Corporation or  any other                      entity presently  or at  any time  in the                      past  known as the  Narragansett Tribe of                      Indians, or any predecessor  or successor                      in   interest,   member  or   stockholder                      thereof,  or  any  other  Indian,  Indian                      nation,  or  tribe  of  Indians,  arising                      subsequent to the transfer and based upon                      any  interest in or  right involving such                      land or natural resources  (including but                      not  limited  to   claims  for   trespass                      damages or claims for use  and occupancy)                      shall be regarded  as extinguished as  of                      the date of the transfer.          25 U.S.C.   1705(a)(3).                                         -10-          making only passing reference  to it in the court  below, without          supporting it  with statutory analysis  or legal authority.   See                                                                        ___          Rodr guez-Pinto  v. Tirado-Delgado,  982  F.2d 34,  41 (1st  Cir.          _______________     ______________          1993) (reaffirming  that "arguments made in  a perfunctory manner          below are deemed waived on appeal").                     Second, the  Tribe contends  that even if  the argument          was not waived, the Settlement Act  only extinguished the Tribe's          aboriginal  title  claims.    "Aboriginal  title,"  alternatively          __________          called "Indian title," is "the right of Indian tribes to  use and          occupy 'lands they had inhabited from time immemorial.'"  Mashpee                                                                    _______          Tribe v. Secretary  of the  Interior, 820 F.2d  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  this is not a          title action, and that it does not claim  aboriginal title to the          housing  site.   Further, it  notes that on  the face  of section          1705(a)(3), the Tribe agreed  to "an extinguishment of aboriginal          title,"   but  there  is  no  express  language  in  the  statute          extinguishing  any  right  to  purchase  other  lands.    If  the          Settlement  Act did  not abrogate the  Tribe's right  to purchase          other lands, the Tribe continues, it did not limit its ability to          gain sovereign authority over  such lands that it acquires.   The          weight  of this  reading  of the  statute  is heightened  by  the          "distinctive perspective" from which we view statutes that "touch          on Indian  sovereignty."  State  of R.I., 19  F.3d at 691.   "The                                    ______________          congressional intent [to terminate  a reservation] must be clear,          to overcome 'the general rule that "[d]oubtful expressions are to                                         -11-          be resolved in  favor of the weak and  defenseless people who are          the wards of the  nation . . . ."'"  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))).   Paternalistic phrasing aside,          ____          it is  well established that "[a]  congressional determination to          terminate  [a reservation] must be  expressed on the  face of the          Act  or   be  clear   from  the  surrounding   circumstances  and          legislative history."  Mattz v. Arnett, 412 U.S. 481, 505 (1973).                                 _____    ______                    The  importance  of  this  dispute  over   whether  the          Settlement  Act terminates  the Tribe's  ability to  increase the          territory over which  it possesses sovereignty  is manifest.   No          matter how we hold,  the significance of our decision  will reach          well  beyond the confines of the current dispute.  Indeed, in its          brief the State points to at least one pending case  in which the          issue arises.   Nonetheless,  we leave this  question, which  the          district  court  did not  address  in  its lengthy  opinion,  for          another day.   Regardless of whether  the issue has in  fact been          waived,  we  need  not  establish in  this  dispute  whether  the          Settlement Act limits the Tribe's Indian country, as  we conclude          on independent grounds that  the housing site is not  a dependent          Indian community, and therefore  is not Indian country.   Thus we          will wait to  address the  issue on the  basis of more  developed          discussion  below; while it is  at heart a  question of statutory          interpretation, we  nonetheless prefer to  address the Settlement                                         -12-          Act  question at a  time when the  parties, and the  court below,          have addressed it more fully.                                         -13-                                  B.  Indian Country                                  B.  Indian Country                                      ______________                       1.  The Significance of "Indian Country"                       1.  The Significance of "Indian Country"                           ____________________________________                    Serving as  the backdrop to  this case is  the doctrine          that  "Indian  tribes  are  'domestic  dependent   nations'  that          exercise  inherent sovereign  authority  over their  members  and          territories."   Oklahoma  Tax Comm'n  v. Citizen  Band Potawatomi                          ____________________     ________________________          Indian Tribe, 498 U.S. 505, 509 (1991) (citing Cherokee Nation v.          ____________                                   _______________          Georgia, 5  Pet. 1, 17, 8  L.Ed. 25 (1831)); see  McClanahan, 411          _______                                      ___  __________          U.S. at  168-69 (outlining  the roots  of the  Indian sovereignty          doctrine).   This rule has softened  over time, so that  it is no          longer  true  that  state law  plays  no  role  within a  tribe's          territory.     Nonetheless,  the  state's   jurisdiction  is  not          automatic.  "[S]tate  laws may  be applied to  tribal Indians  on          their  reservations  if  Congress  has  expressly  so  provided,"          California  v. Cabazon Band of Mission Indians, 480 U.S. 202, 207          __________     _______________________________          (1987);  where  Congress  does  not  so  provide,  a  pre-emption          analysis is followed to  determine if state law is  pre-empted by          federal  and tribal interests as  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  vastly oversimplify the problem to          say  that nothing remains of  the notion that reservation Indians          are a  separate people to whom  state jurisdiction . .  . may not          extend."  McClanahan, 411 U.S. at 170.  Therefore, the issue here                    __________          of  whether  the  housing  site  is  Indian  country  bears  real          significance,  since "the  Indian  country classification  is the                                         -14-          benchmark for approaching the  allocation of federal, tribal, and          state  authority  with  respect  to Indians  and  Indian  lands."          Indian  Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973          _______________________    ___________________          (10th  Cir.  1987)  (collecting  cases), cert.  denied  sub  nom.                                                   ________________________          Oklahoma  Tax Comm'n v.  Muscogee (Creek)  Nation, 487  U.S. 1218          ____________________     ________________________          (1988);  see Oklahoma Tax Comm'n v.  Sac and Fox Nation, 508 U.S.                   ___ ___________________     __________________          114, 125 (1993) (rejecting  argument that Indian sovereignty only          applies to formal reservation lands, stating "we ask only whether          the land is Indian country");  Cohen's Handbook of Federal Indian                                         __________________________________          Law  27  (1982  ed.)  ("[F]or most  jurisdictional  purposes  the          ___          governing legal term is 'Indian country.'").  If the housing site          is not  Indian country, there  is no bar  to the exercise  of the          State's jurisdiction.   If it is,  the State presumptively  lacks          jurisdiction to  enforce the regulations and ordinances discussed          here, and we must carry out a pre-emption analysis.                   2.  The Section 1151 Definition of "Indian Country"                 2.  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  the United  States Government, .  . .                      (b)  all   dependent  Indian  communities                      within the  borders of the  United States                      whether    within    the   original    or                      subsequently acquired territory  thereof,                      and whether within  or without the limits                      of a state, and (c) all Indian allotments                      . . . .          18 U.S.C.    1151; see Oklahoma Tax Comm'n v. Sac and Fox Nation,                             ___ ___________________    __________________          508 U.S.  114, 123 (1993)  (noting broad  nature of  definition);          United States v. Levesque, 681 F.2d 75, 77 (1st Cir.) (discussing          _____________    ________                                         -15-          origins of   1151(b)), cert. denied, 459 U.S. 1089 (1982); Alaska                                 ____________                        ______          v.  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  constitutes  a  "dependent  Indian  community"  for          purposes  of subsection (b) of section 1151, a dispute we discuss          at length below.                    Before  addressing that  issue,  however, we  recognize          that, as the State notes, section  1151 on its face is  concerned          only with criminal jurisdiction.   Nonetheless, the Supreme Court          has  repeatedly stated  that the  definition provided  in section          1151   "applies  to   questions  of   both  criminal   and  civil          jurisdiction."  Cabazon Band of Mission Indians, 480 U.S. at 207;                          _______________________________          see also  DeCoteau, 420 U.S.  at 427.   Elsewhere, the Court  has          ________  ________          simply defined "Indian country"  in civil cases in  terms closely          paralleling those of section 1151,  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  have followed suit.  See, e.g., Buzzard v. Oklahoma Tax                                         ___  ____  _______    ____________          Comm'n,  992 F.2d 1073, 1076  (10th Cir.), cert.  denied sub nom.          ______                                     ______________________          United Keetoowah Band of Cherokee Indians v. Oklahoma Tax Comm'n,          _________________________________________    ___________________          __  U.S. __, 114  S. Ct. 55  (1993); Alaska v.  Native Village of                                               ______     _________________          Venetie,  856 F.2d  1384, 1390  (9th Cir. 1988);  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.  1981) (applying     1151  in                                         -16-          determining  whether a  housing  project was  a dependent  Indian          community),  cert.  denied, 459  U.S.  823  (1982).   It  appears                       _____________          manifest that we can, and should, do the same.                    The State would  have us conclude otherwise.  First, it          calls our  attention  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  (1992).  In that case, the          _______________________          Ninth  Circuit refused to apply  section 1151 to  the question of          whether fee  patented land  could  be taxed  by the  state.   The          court's  refusal was  based on  the reality  that, on  its terms,          section 1151  is a criminal statute, as well as the fact that the          taxing  power at  issue  was governed  by  a noncriminal  federal          statutory scheme.  Id. at 1215.  The Yakima court  made its brief                             ___               ______          analysis without mentioning any of the Supreme  Court cases cited          above.   The State looks  to Yakima as  support for its  argument                                       ______          that to transplant section 1151  into the civil context  would go          against both the  plain meaning of the statute  and congressional          intent.   We  reject the  State's suggestion  that we  follow the          Ninth  Circuit's logic in Yakima,  since to the  extent that case                                    ______          supports  the  conclusion  that  section  1151  only  applies  in          criminal  cases,8 it  directly  contradicts the  guidance of  the                                        ____________________          8   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.  That section is cited only          twice in  the Court's  decision. It  first appears,  without real          comment,  in  the majority's  summation  of  the Yakima  Nation's          argument  that section 6 of  the Indian General  Allotment Act of          1887 is a dead letter.  502  U.S. at 260 (citing the 1948 passage          of  section  1151  with  its  definition  of  Indian  country  as                                         -17-          Supreme Court.  See Chickasaw Nation, 115 S. Ct. at 2217 n.2; Sac                          ___ ________________                          ___          and Fox, 508 U.S.  at 123; Cabazon Band  of Mission Indians,  480          _______                    ________________________________          U.S.  at 207; DeCoteau,  420 U.S.  at 427;  see also  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  State delves into the  Supreme Court cases          that  provide that  section 1151  applies  in the  civil context,          attempting to distinguish them from the present case, questioning          their logic  and underpinnings,  and concluding that  the premise          that  section 1151  is relevant  in determining  a state's  civil          regulatory  authority is  in  "serious question."    We need  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  jurisdictional grant).  Next, in          his separate  opinion, Justice  Blackmun notes that  the majority          conceded  that section  6  can no  longer  be read  as  providing          plenary jurisdiction  over Indians who reside  on reservation fee          lands.   502 U.S. at  271 (Blackmun, J.,  concurring in part  and          dissenting in part).   In support of  that position, he  cites to          DeCoteau, 420 U.S.  at 427 n.2, for the premise  that the section          ________          1151  definition  "demarcates  [the] general  boundary  of  civil          jurisdiction of States."  Id.                                    ___                         Since  the   Supreme  Court's  opinion  in   Yakima  gives  no                                                          ______          indication that  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  the          definition carries  into an  analysis of civil  jurisdiction, see                                                                        ___          Chickasaw Nation,  115 S. Ct.  at 2217 n.2,  we will continue  to          ________________          follow the Court's guidance on the application of section 1151.                                         -18-          seize on the definition Congress has offered of what  constitutes          Indian country in the context  of criminal jurisdiction to inform          its   analysis  of   Indian   country  in   questions  of   civil          jurisdiction.   See  Cohen's Handbook  of Federal  Indian  Law 28                          ___  _________________________________________          (noting  historical  and  statutory  support  for  Supreme  Court          application of   1151 to questions of civil jurisdiction).                            3.  Dependent Indian Communities                           3.  Dependent Indian Communities                               ____________________________                      With  the  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."  We note          that the question  of whether land owned  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  Indian communities" in the          definition of Indian  country dates to  Supreme Court cases  from          the  early part of this century.   See United States v. Sandoval,                                             ___ _____________    ________          231  U.S.  28,  46  (1913)  ("[L]ong  continued  legislative  and          executive  usage and  an unbroken  current of  judicial decisions          have  attributed to the United States as a superior and civilized          nation the power  and the duty of exercising a fostering care and          protection  over  all  dependent Indian  communities  within  its          borders .  . . ."); see  also United States v.  McGowan, 302 U.S.                              _________ _____________     _______          535, 538-39 (1938).  Exactly what constitutes a "dependent Indian          community,"  however,  has not  been  defined.   Instead,  courts          addressing the  question conduct  "a functional inquiry  into the                                         -19-          nature  of   the  community,"   weighing  a  series   of  factors          established by case law.  Levesque, 681 F.2d at 77.                                     ________                    While we  have not  previously faced the  precise issue          raised  here, in United States v. Levesque we addressed whether a                           _____________    ________          region  is  a  dependent  Indian community  for  the  purposes of          criminal jurisdiction,  framing our focus in terms of whether the          land  is "both  'Indian' in  character and  federally dependent."          See id. at  77.  In that case, we applied  the factors set out by          ___ ___          the  Tenth Circuit  in United  States v.  Martine, 442  F.2d 1022                                 ______________     _______          (10th Cir. 1971), namely:                      the  nature of the  area in question; the                      relationship  of  the inhabitants  of the                      area  to Indian  Tribes  and the  federal                      government, and  the established practice                      of government agencies toward the area.          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).   See, e.g., Watchman,  52 F.3d at                                           ___  ____  ________          1545  (adopting the South Dakota additions to the Martine list of                              ____________                  _______          factors); Blatchford  v. Sullivan, 904  F.2d 542, 547  (10th Cir.                    __________     ________          1990),  cert.  denied, 498  U.S.  1035 (1991);  United  States v.                  _____________                           ______________          Azure, 801 F.2d 336,  339 (8th Cir.  1986); Housing Auth. of  the          _____                                       _____________________          Seminole  Nation v.  Harjo,  790 P.2d  1098,  1100 (Okla.  1990).          ________________     _____          Following  their  lead, we  shall expand  upon our  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  first factor  is "whether the  United States          has  retained 'title to the lands which it permits the Indians to          occupy' and  'authority to enact regulations  and protective laws          respecting  this territory.'"    South Dakota,  665  F.2d at  839                                           ____________          (quoting  Weddell  v. Meirhenry,  636 F.2d  211 (8th  Cir. 1980),                    _______     _________          cert.  denied, 451  U.S. 941  (1981)).   The second  South Dakota          _____________                                        ____________          factor encompasses the Martine factors, set out above.  Id.   Our                                 _______                          ___          third  consideration   is  "whether  there  is   'an  element  of          cohesiveness . . . manifested either  by economic pursuits in the          area,  common interests, or needs of  the inhabitants as supplied          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  for the  use, occupancy  and  protection of  dependent          Indian  peoples.'"    Id. (quoting  Weddell,  636  F.2d at  213).                                ___           _______          Roughly  speaking, the  second  and third  factors weigh  whether          there is,  in fact, an Indian community, and the first and fourth          whether it  is a dependent one.   We accordingly address  them in          that order, ultimately concluding that  the facts reveal that the          housing site is not a dependent Indian community.                                 The Martine Factors                                 The Martine Factors                                 ___________________                    The  Martine factors  mandate that  a court  "weigh the                         _______          nature  of   the  area  in  question;  the  relationship  of  the          inhabitants  of  the  area  to  Indian  Tribes  and  the  federal          government, and  the established practice  of government agencies                                         -21-          toward   the  area."    Martine,   442  F.2d  at   1023.    These                                  _______          considerations  support the  Tribe's contention  by demonstrating          that the housing site is a community.                    First,  as  the  district  court  noted,  the  BIA  has          recognized the housing  site is in an area "in  which 'a distinct          [Indian] community has existed since earliest European contact.'"          Narragansett  I,  878  F.  Supp.  at 536  (quoting  BIA  Internal          _______________          Memorandum on Acknowledgement of  Narragansett Indian Tribe, July          1982, at 9).  While we recognize that fact, however, we also note          that it cannot  be doubted that  the Settlement Act  extinguishes          all claim to aboriginal title to the housing site.  See 25 U.S.C.                                                              ___            1705(a)(3).  This factor, then, does not weigh in favor of  the          Tribe.    In contrast,  we  do not  doubt  that there  will  be a          significant relationship between the  inhabitants of the  housing          site and the  Tribe:  indeed, the entire point  of the project is          to establish housing  for Tribe members and to serve  as "a means          of bringing  the Narragansetts  back together."   Narragansett I,                                                            ______________          878 F. Supp. at 356.  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  monies for the  management of the  project and subsidize          the  occupants' rent,  all  pursuant to  a program  "specifically          designed to provide housing for Indians."  Narragansett I, 878 F.                                                     ______________          Supp. at 354; see  South Dakota, 665 F.2d at  840 (remarking upon                        ___  ____________                                         -22-          similar governmental  activity as showing "[f]ederal  concern for          the  [housing] project").  The district court noted that the fact          that  there is a relationship  between HUD and  the community "is          underscored  by  the evidence  that  many of  the  occupants will          participate  in nutrition,  education  and job  training programs          subsidized  by the  federal  government and  administered by  the          Tribe  on the adjacent settlement lands."  Narragansett I, 878 F.                                                     ______________          Supp. at 357.  However, we  note that, as we find below,  while a          relationship exists to the extent that these federal entities are          active in the housing site, their  actions do not rise the  level          of  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.  See                                                                        ___          Weddell, 636 F.2d  at 211  (noting that these  elements are  more          _______          important  than  density  of  population,  percentage  of  Indian          residents, or the history and background of the area).  Certainly          this  factor weighs in favor  of finding this  a dependent Indian          community:  the project will help the Tribe supply housing to its          elderly and low-income  members.9  Further,  the housing site  is          in close proximity to the Tribe's church, the seat of the  Tribal                                        ____________________          9  The  fact that occupancy is actually open  to anyone, pursuant          to  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   offices  of   the  tribal  government   and  the          administration  of federal  programs --  in short,  it is  indeed          close to the "center of tribal government, culture  and religious          life."   Narragansett I, 878  F. Supp. at  356.  Nonetheless, the                   ______________          fact that the housing will  be predominantly Indian in  character          is  not enough,  by  itself,  to  establish  the  presence  of  a          dependent  Indian  community.   See Blatchford,  904 F.2d  at 549                                          ___ __________          (noting that  fact  that "Indians  constituted  the bulk  of  the          population and gave  the area a distinctly  Indian character does          not convert  the community  into a dependent  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.   First, we ask          whether the United States  retains title to the housing  site and          the authority to enact regulations and laws.  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  fact that the Tribe, not  the government, owns the          land  does not  preclude a  finding that  the housing  site  is a          dependent  Indian  community.    See  Sandoval, 231  U.S.  at  48                                           ___  ________          (rejecting the  argument that  Pueblo Indians holding  fee simple                                         -24-          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  which is "a patchwork          of  land, some  of which is  owned by  the Navajo  Tribe, some of          which  is not"  and  which is  not within  a  reservation, was  a          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  where fee title to the  disputed area          had  passed to the Creek Nation by federal treaty).  Nonetheless,          this must weigh against  the Tribe.  See Blatchford  v. Sullivan,                                               ___ __________     ________          904 F.2d 542 (10th Cir. 1990) (considering, inter alia, fact that                                                      __________          private  owner  held  land  in  determining  that  land  was  not          dependent Indian community, although  it was surrounded by Navajo          allotment  land); Weddell, 636  F.2d at 213  (noting, inter alia,                            _______                             __________          that although  land was  within the  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  of this factor  focuses upon the  very          issue   in  dispute  here:    who  has  the  authority  to  enact          regulations  and laws.  The State's  authority will be determined          by our decision here.  As for  the federal government, the record          indicates that it  has exercised  authority in the  form of  HUD,          IHS,  and BIA  activity, regulations  and financing.   Of course,          HUD,  at  least, can  provide  financing and  set  regulations in          other,  non-Indian contexts.  The record does not address whether                                         -25-          there  is more extensive federal  regulation here by  HUD than in          any other HUD assisted, non-Indian project.  Since this factor is          largely  determined by  our  decision today,  we  find it  weighs          neither for nor against the Tribe.                        Whether the Lands Have Been Set Apart                        Whether the Lands Have Been Set Apart                        _____________________________________                    The last  factor we address is whether the housing site          has  been  set  apart by  the  federal  government  for the  use,          occupancy,  and protection  of  dependent Indian  peoples.   This          proves to be the crucial factor in our discussion.  See Levesque,                                                              ___ ________          681  F.2d at 77 (noting that this  is the "ultimate issue" in the          factual analysis).                      [T]he test for  determining whether  land                      is  Indian  country  does  not  turn upon                      whether that land  is denominated  "trust                      land" or  "reservation."  Rather,  we ask                      whether  the area has  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,  as elucidated by  [Supreme Court          decisions],  was  to designate  as Indian  country all  lands set          aside by whatever means for the residence of tribal Indians under          federal  protection, together  with  trust and  restricted Indian          allotments.").  Indeed, the Tenth Circuit regards this factor  as          a  sufficient measure  of whether  land is  Indian country.   See                                                                        ___          Buzzard, 992 F.2d  at 1076 (noting  the existence of    1151, but          _______          applying  only the  "set apart  for the  use of Indians"  test in                                         -26-          determining whether land was Indian country).                    The district court found that the housing site met this          factor's criteria.                       Although  the United States does not hold                      title  to  the  land  and  did  not  vest                      control over it in the Tribe, HUD has, in                      a manner of speaking,  set the land apart                      for occupancy by  elderly and  low-income                      members  pursuant  to  a need  recognized                      both by HUD and the Tribe.          Narragansett I, 878  F. Supp. at 356.  For  the reasons discussed          ______________          below, we disagree.                    Our  first  question must  be what  constitutes setting          land apart.  As with the concept of dependent Indian communities,          there is  no established definition.   Having  surveyed the  case          law,  however, we agree with  the Tenth Circuit's suggestion that          "land is  'validly set apart for the use of Indians as such' only          if the federal government  takes some action indicating that  the          land is  designated for use  by Indians."   Buzzard, 992  F.2d at                                                      _______          1076 (quoting Citizen  Band Potawatomi Indian Tribe, 498  U.S. at                        _____________________________________          649   (quoting  John,  437  U.S.  at  649)).    In  other  words,                          ____          "[s]uperintendence   by   the   federal   government,   and   the          consequential  political dependence  on  the part  of the  tribe,          exists for  purposes  of  section  1151(b) where  the  degree  of          congressional  and  executive  control   over  the  tribe  is  so          pervasive  as   to  evidence   an  intention  that   the  federal          government, not the state,  be the dominant political institution          in the area."  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  obtained  only  by  filing  a                      request   with   the  Secretary   of  the                      Interior, who must consider,  among other                      things, the  Indian's need for  the land,                      and the purposes for  which the land will                      be  used.   If  the request  is approved,                      then the United States  holds the land as                      trustee. . . .                         . . . In addition,  before agreeing to                      acquire  trust  land, the  Secretary must                      consider  several  factors including  the                      authority   for  the   transactions,  the                      impact  on the  state resulting  from the                      removal of  the land from the  tax rolls,                      and  jurisdictional  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  trust by the United  States, the issue of  civil          and  criminal  jurisdiction  would  have  been  addressed.    The          considerations made  in the trust process  demonstrate that "when          the  federal government  agrees  to hold  land  in trust,  it  is          prepared to exert jurisdiction over the land."  Id.                                                            ___                    Indeed, we note that in three of the four cases we have          found where a  court held  that a housing  project constituted  a          dependent  Indian community, the land was held in trust, with the          participation of HUD and an Indian housing authority.  See United                                                                 ___ ______          States  v. Driver,  945 F.2d  1410, 1415  (8th Cir.  1991), cert.          ______     ______                                           _____          denied,  502 U.S.  1109 (1992);  South Dakota,  665 F.2d  at 839;          ______                           ____________                                         -28-          Mound, 447 F.2d at 158.  In the fourth, Housing  Authority of the          _____                                   _________________________          Seminole Nation v. Harjo,  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  of a federally-funded          program whereby  Harjo would  make payments  each  month and,  in          seventeen years,  would own the house and the land.  Although the          United  States did  not  have  title  to  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.   Thus the          court  found  that  the  government  "controls  virtually   every          foreseeable legal consideration  touching the property  until the          [program]  runs its course or  sooner terminates."   Id. at 1102.                                                               ___          Although HUD regulations apply  in the present case as  well, the          Tribe  has  pointed  to no  such  comprehensive  superintendence.          Further, although the lands in Harjo were not held in trust, they                                         _____          were  not purchased from third  parties, as in  the present case.          Instead, they  were originally part of  Harjo's restricted Indian          allotment,  and the  portions of  the allotment  she did  not use          remained  restricted, a  much closer  link to  government control          then the Tribe demonstrates here.                    In fact,  we  note that,  aside  from Harjo,  the  vast                                                          _____          majority  of cases we have found which analyze what constitutes a          dependent Indian community since   1151(b) was enacted find there          is such a  community if the land  is held in trust,   Driver, 945                                                                ______                                         -29-          F.2d  at 1415; Azure, 801 F.2d at  339; South Dakota, 665 F.2d at                         _____                    ____________          839;  Mound, 477  F.  Supp.  at  158;  or  as  settlement  lands,                _____          Youngbear  v. Brewer,  415  F. Supp.  807,  809 (N.D.Iowa  1976),          _________     ______          aff'd, 549 F.2d 74  (8th Cir. 1977).  Similarly,  in Levesque, we          _____                                                ________          found a dependent  Indian community where the land was  held by a          newly  recognized  Indian tribe  as  part  of their  reservation.          Levesque,  681 F.2d at  78.  On  the other hand,  we note that in          ________          most of the cases we found where land was privately held, even if          by a tribe,  the courts found  there was not  a dependent  Indian          community.    See  Buzzard,  992  F.2d  at  1075  (involving land                        ___  _______          purchased  by tribe);  Blatchford,  904 F.2d  at 548  (addressing                                 __________          privately  held  land  surrounded  by  Navajo  allotment   land);          Weddell,   636  F.2d  at  213  (involving  independent  municipal          _______          corporation  on former  Indian  reservation);  United  States  v.                                                         ______________          Oceanside  Okla., Inc.,  527  F. Supp.  68,  69 (W.D.Okla.  1981)          ______________________          (addressing land held in  fee by non-Indians); Native  Village of                                                         __________________          Venetie,   1995  WL   462232,  at   *15  (after   settlement  act          _______          extinguished  aboriginal claims,  fee held  by Native  Village of          Venetie  Tribal  Government).    But  see  Martine,  442  F.2d at                                           ________  _______          1023.10   Thus the facts  that the  housing site is  not held  in                                        ____________________          10   We note that in  its brief discussion in  Martine, the Tenth                                                         _______          Circuit  did not consider whether the lands had been "set apart."          442 F.2d at 1023-24.   Later decisions in that  circuit, however,          have  incorporated the  South Dakota  factors in  their analysis.                                  ____________          See  Watchman,  52  F.3d  at  1545  (adopting  the  South  Dakota          ___  ________                                       _____________          additions to the Martine  list of factors); see also  Blatchford,                           _______                    ________  __________          904  F.2d at 544-49 (discussing  development of the  case law and          conducting  factual analysis).    Indeed, in  Buzzard, the  court                                                        _______          relied solely  on the "validly  set apart"  definition of  Indian          country,  eschewing analysis  under section  1151.   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  Indian tribe                                        _______          unilaterally purchased the  lands in dispute,  and held title  to          them in  fee simple.   Instead of  housing, it set  up commercial          smokeshops  on the  land.  The  tribe claimed  that the  land was          Indian  country  because it  had been  set  apart by  the federal          government  for  the use  of  the  Indians.   In  support  of its          position, it pointed to a clause  in its charter and in 25 U.S.C.            177 providing that land owned by a tribe cannot  be disposed of          without  the approval  of  the Secretary  of  the Interior  --  a          restraint on alienation that  the Tribe acknowledges applies here          as  well.    The Buzzard  court  rejected  the tribe's  argument,                           _______          finding   that  a   restriction  on   alienation  by   itself  is          insufficient to make the land Indian country.                        If  the  restriction  against  alienation                      were   sufficient   to   make  any   land                      purchased by the [tribe]  Indian country,                      the  [tribe] could remove land from state                      jurisdiction   and   force  the   federal                      government  to  exert  jurisdiction  over                      that land without either sovereign having                      any  voice in  the  matter.   Nothing  in                      McGowan  or  the  cases concerning  trust                      _______                      land  indicates  that  the Supreme  Court                      intended for  Indian tribes to  have such                      unilateral   power   to   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  WHA project  is simply not  sufficient to  establish          that  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  has been "set          apart," leads  us to conclude  that the district  court's holding          that the housing site had been set apart constituted an abuse  of          its discretion.    See  Planned Parenthood  League  of  Mass.  v.                             ___  _____________________________________          Bellotti,  641  F.2d  1006,  1009 (1st  Cir.  1981)  (noting that          ________          "'misapplication  of the law to  particular facts is  an abuse of          discretion.'"   (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  the  "ultimate issue"  in our  fact-based          inquiry).  While the  first two factors we addressed  support the          Tribe's  contention  that  the housing  site  is  a  community of          Indians,  the second two demonstrate that it is not a "dependent"          one.  Without federal  ownership of the land, as  required in the                                         -32-          first South  Dakota factor, or federal action  sufficient to "set                _____________          aside" the land,  as required  in the fourth,  we cannot find  on          these  facts  that the  "dependent" aspect  of  the concept  of a          dependent  Indian community  has  been established.   See  United                                                                ___  ______          States  v.  Adair,  913  F.  Supp.  1503, 1515  (E.D.Okla.  1995)          ______      _____          ("Although  the   government's  retention  of  title  .  .  .  or          government title in trust for an Indian tribe, does not in and of          itself establish an area as a "dependent Indian community . . . ,          without  such title,  consideration of  the other  . .  . factors          should  be unnecessary.");  Native  Village of  Venetie, 1995  WL                                      ___________________________          462232,  at *13  (noting that  the question  of whether  there is          federal  superintendence   "brings  into  play   the  'dependent'          component").                      Put  simply,  it is  too far  a  stretch to  regard the          government  agency funding  and  oversight here  as evidencing  a          federal intent to give the tribe presumptive sovereignty over the          housing   site  by  making   it  Indian  country.11     It  seems          implausible that a  tribe could  obtain a valid  claim to  Indian          country  --  and  thus  presumptive sovereignty  rights  --  over          theretofore  privately-held  lands just  by  purchasing them  and          obtaining financial and other  assistance from the government for          their development, without any opportunity for involvement by the          state,  any negotiated  agreements with  respect to  jurisdiction                                        ____________________          11   Indeed,  outside  of the  context  of tribal  disputes,  the          granting of  a HUD  subsidy  to a  housing project  would not  be          viewed  as  evidence  of  a  federal  intention  to  preempt  the          operation of all other state laws.                                         -33-          over the  land, or considered analysis by  the federal government          such as the one  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,  without necessarily incurring a commitment          to   exercise  jurisdiction   and   "superintendence"  over   all          activities  on that land, whether  related to housing  or not, to          the presumptive exclusion of state laws.                                      CONCLUSION                                      CONCLUSION                    For  the  above  reasons,  we hold  that  the  district          court's denial of the request  for a permanent injunction insofar          as  it was based  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  the district                                                reversed                                                ________          court shall enter an order granting the injunction.  The district          court's  grant  of the  request  for  a permanent  injunction  of          plaintiffs  from  occupying  or  permitting  occupation  of   any          buildings constructed  or to be  constructed on the  housing site          unless and  until all  applicable requirements of  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-
