indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439   fax: 202 318 2182
Indian Law Online Master Degree
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Supreme Court takes on first Indian law case of term
Tuesday, November 4, 2008
Filed Under: Law | Trust

The U.S. Supreme Court heard its first Indian law case of the term on Monday, taking on a land-into-trust dispute that could affect tribes nationwide.

In Carcieri v. Kempthorne, the state of Rhode Island is trying to stop the Narragansett Tribe from benefiting from the land-into-trust process. At issue are 31 acres the tribe intends to use for a housing project.

The Bureau of Indian Affairs agreed to acquire the land and its decision was upheld by a federal judge and the 1st Circuit Court of Appeals. But the victories could be overturned by a high court that seemed receptive to the state's side of the case.

The main point of contention during yesterday's one-hour hearing was whether the land-into-trust provisions of the Indian Reorganization Act apply to tribes that weren't federally recognized when the law was passed in 1934. The Narragansetts gained status in 1983.

Theodore B. Olson, a former Bush administration attorney, said the use of the word "now" showed Congress intended the land-into-trust process to benefit tribes that were "now under federal jurisdiction" when the law was passed. He argued that the provisions were meant only for tribes that were victims of allotment.

"My reference to the statute and the use of the word 'now' in this statute is very, very clear," Olson, who handled Supreme Court litigation for the administration, told the court. "The legislation -- the statute refers to legislation 'now pending.' That had to mean 1934."

Chief Justice John G. Roberts, who wrote a negative decision in the court's last Indian law case, appeared to agree that the word "now" carried meaning. That made it harder for Deanne Maynard, an assistant to the Solicitor General at the Department of Justice, to defend the government's reading of the law.

"So you're saying the only way that makes sense is to read it as if [the word 'now'] weren't there," Roberts said.

The hearing seemed to be going favorably for the state, so Olson didn't even bring up a second issue -- whether Congress barred the Narragansetts from following the land-into-trust process by settling the tribe's land claim. Maynard tried to go into this argument but was only able to get in a few sentences before Roberts steered the debate back to the "now" point.

Roberts appeared concerned that using 1934 as a cut-off date would inadvertently hurt tribes who might otherwise have been recognized at the time. Olson argued -- and the chief justice seemed to agree -- that tribes with treaties or some sort of proven historical relationship with the government would end up being covered by the land-into-trust provisions of the IRA.

Olson also cited more than a dozen other land claim settlement acts and federal recognition acts that contained language to ensure the affected tribes could participate in the land-into-trust process. He told the court the Narragansetts didn't fall into that category.

Maynard pointed out that the government didn't have a list of recognized tribes in 1934. She described the IRA as a "forward-looking act" that would benefit all tribes that want to create or restore their land base, a view that Roberts questioned.

"So, if you weren't recognized in 1934, you were not penalized by the allotment policy, so you didn't need the benefit," Roberts said. "I think that backward-looking perspective seems to make perfect sense."

A negative decision could put dozens of tribes that weren't recognized in 1934 in danger. In order to address the "now under federal jurisdiction" issue, the government might have to change the land-into-trust process to determine whether a recently recognized tribe can benefit from the IRA.

Congress could tame another route and amend the Narragansett Tribe's settlement act or the IRA itself to resolve the dispute. But those efforts are likely to be met with significant opposition from Rhode Island and other states that have long argued that taking land off the tax rolls and placing it in trust infringes on their rights.

The Supreme Court is currently accepting briefs in two other Indian law cases that will be heard this term. US v. Navajo Nation involves a contentious breach of trust dispute that the justices heard during their 2002-2003 term.

Hawaii v. Office of Hawaiian Affairs raises issues about the political status of Native Hawaiians. In the 1999-2000 term, Roberts argued a Native Hawaiian case before the court but lost to Olson, who represented a non-Native rancher.

The inclusion of the three cases on the dock has the Native American Rights Fund, whose attorneys help run the Tribal Supreme Court Project, suggesting that the current term "may prove to be another difficult period for Indian Country."

Supreme Court Documents:
Oral Argument Transcript | Briefs

Related Stories:
Turtle Talk: Poor outlook on land-into-trust case (11/4)
Rhode Island optimistic on land-into-trust case (11/4)
Oregon tribes await outcome of land-into-trust case (11/4)
Supreme Court to hear land-into-trust case (11/3)
Still no agreement on land-into-trust hearing (10/31)
Rhode Island governor angry over hearing impasse (10/30)
SCOTUSBlog: Jockeying for land-into-trust hearing (10/30)
Fight over land-into-trust hearing continues (10/28)
'Childish' fight over land-into-trust arguments (10/24)
Town backs lawyer to argue land-into-trust case (10/17)
Column: Land-into-trust case an important one (10/15)
Town weighs land eyed by Narragansett Tribe (10/15)
Prosecutors seek alibis in Aquash murder case (10/15)
Land-into-trust argument fight gets even more nasty (10/9)
Attorneys at 'impasse' for land-into-trust arguments (10/8)
Indian law cases on Supreme Court's new docket (10/07)
Narragansett Tribe won't argue at Supreme Court (10/6)
Court takes land-into-trust case (2/26)
U.S. Supreme Court accepts land-into-trust case (2/25)
High court weighs Narragansett land-into-trust (2/22)
Groups file brief in pending land-into-trust case (02/06)
Supreme Court brief backs land-into-trust (1/29)



Copyright © Indianz.Com
More headlines...
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Film company aims to bring Native stories to life (9/2)
Mark Trahant: Alaska Native candidate joins rival in governor's race (9/2)
Walt Lamar: Tribes face problems dealing with legalized marijuana (9/2)
Jennie Stockle: Fans mock Cherokee people with Trail of Tears sign (9/2)
DaShanne Stokes: State-recognized tribes need eagle feathers too (9/2)
Indian studies professor denied position over remarks about Israel (9/2)
Alaska Natives excluded from secret military intelligence program (9/2)
Judge schedules hearing in Gun Lake Tribe's gaming land litigation (9/2)
Poarch Creeks see revenues increase as gaming operation grows (9/2)
Viejas Band looking to expand casino after reaching new compact (9/2)
California tribes are drawing large numbers of Filipinos to casinos (9/2)
Mohegan Tribe wants 'right-sized' commercial casino in New York (9/2)
Tim Giago: Oglala Sioux people aren't afraid to say no to easy cash (9/1)
Native Sun News: Release of secret uranium mining data ordered (9/1)
Mark Trahant: It's past time for tribal leaders to govern the nation (9/1)
Jennie Stockle: A safe space for opponents of offensive mascotry (9/1)
John Christian Hopkins: A big thank you to the friend I never met (9/1)
National Museum of the American Indian celebrates 10th birthday (9/1)
Mother arrested in connection with child's death on Navajo Nation (9/1)
Opinion: Energy development can help secure tribal independence (9/1)
Cherokee Nation announces $170M casino and retail development (9/1)
Tunica-Biloxi Tribe won't be sharing gaming revenues this quarter (9/1)
Seminole Tribe on track to see gaming revenues increase to $2.1B (9/1)
Eastern Shawnee Tribe to reopen gaming facility in February 2015 (9/1)
Editorial: Tohono O'odham Nation didn't play by 'rules' with casino (9/1)
Opinion: Gaming good for Eastern Cherokees but not for fellow tribe (9/1)
Opinion: Federal recognition only means more casinos in California (9/1)
Native Sun News: Tribes walk out of contract support cost meeting (8/29)
Clara Caufield: Northern Cheyenne Tribe spends $2.4M on property (8/29)
Mike Johanns: Retracing steps of great Ponca Chief Standing Bear (8/29)
Steven Newcomb: Racist mascot a sign of deeper problems in US (8/29)
Lauren Jones: Affordable Care Act benefits Native Americans too (8/29)
Gila River Indian Community to see $77.6M from Cobell buy-back (8/29)
Energy boom linked to rise in human trafficking in Indian Country (8/29)
Navajo man heads up Native American Homelessness Task Force (8/29)
9th Circuit hears case over Yakama Nation tobacco manufacturer (8/29)
WAER: ICWA matters handled in 'kangaroo courts' in South Dakota (8/29)
MPR: Red Lake Nation opposes liquor license near dry reservation (8/29)
Tule River Tribe helps remove marijuana operation on reservation (8/29)
Omaha Tribe signs agreement with EPA to improve utility services (8/29)
Las Vegas Paiute Tribe rejected 'gift' from NFL team's foundation (8/29)
KPLU: Spokane Tribe maintains close ties with baseball franchise (8/29)
Opinion: HUD loan program a small step to boost Indian housing (8/29)
DNA study finds distinct population of Native people in Arctic area (8/29)
Tribes closely watching Big Lagoon Rancheria casino land dispute (8/29)
Tohono O'odham Nation to build off-reservation casino in phases (8/29)
State questions Forest County Powatatomi Tribe's slot machines (8/29)
Quapaw Tribe eyes local support for commercial casino in Kansas (8/29)
Native Sun News: Police officers who shot Indian teen get medals (8/28)
Cara Cowan Watts: Laying the groundwork for college scholarship (8/28)
Rudolph Ryser: Indigenous nations need leverage to bring change (8/28)
DOI extends $100M in Cobell buy-back offers on two reservations (8/28)
Cobell buy-backs could return over 38K acres to tribe in Montana (8/28)
Five-year-old Navajo boy sent home from school for his long hair (8/28)
Three charged with murder for death of Mississippi Choctaw man (8/28)
Lummi Nation seeks cooperation after ruling in treaty rights case (8/28)
Artist Gregg Deal takes on Indian mascots for performance piece (8/28)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.