1. Whether Interior can acquire land for tribes that weren't recognized as of the Indian Reorganization Act 1934 and;The first issue has the potential to affect dozens of tribes that only gained recognition in recent decades. Many of them, like the Mashpee Wampanoag Tribe of Massachusetts, are using the land-into-trust process for the first time to build their reservations. But if the high court sides with Rhode Island, tribes that were "not recognized and under federal jurisdiction" as of June 1934 might not be able to go through the process. "A decision adopting the state's arguments would be unprecedented," the National Congress of American Indians, the Native American Rights Fund and dozens of tribes wrote in a brief when the case was before the 1st Circuit Court of Appeals. The second issue, although limited to a smaller group of tribes, is equally significant. Since the late 1970s, Congress has settled land claims for tribes in Connecticut, Maine, Massachusetts, Rhode Island, and South Carolina by extinguishing aboriginal title. Not every settlement act is alike but Rhode Island's position could further restrict the rights of these tribes, many of whom have already lost decisions in state and federal courts. In Maine and Massachusetts, tribes have virtually lost their sovereign immunity and exclusive jurisdiction to the state. With these questions up in the air, Carcieri v. Kempthorne appears to be an extension of recent Supreme Court case that went against tribal interests. In Sherrill v. Oneida Nation, the court ruled that the Oneida Nation of New York lost sovereignty over its ancestral reservation due to the passage of time. Since it was issued in March 2005, the Sherrill decision has been used to dismiss land claims cases and sovereignty cases. Federal judges have said the ruling has "dramatically altered the legal landscape" for Indian rights. The Bush administration has taken the position that Sherrill endorses the ability of all tribes, regardless of how they were recognized, to follow the land-into-trust provisions of IRA.
2. Whether Interior can acquire land for tribes whose aboriginal rights were extinguished by acts of Congress.
But the state of Rhode Island says tribes who lost aboriginal title through acts of Congress only have one place to turn if they want more land in trust."A tribe losing its ability to exercise sovereign control over land through an act of Congress may only regain that control by a subsequent act of Congress," the state's February 5 brief to the high court stated. The Carcieri case is the second Indian law case that will be heard by the Supreme Court in the coming months. Oral arguments in Plains Commerce Bank v. Long, a jurisdiction case, are scheduled for April 14. Supreme Court Documents:
Docket Sheet | Questions Presented | Order List 1st Circuit Decisions:
En Banc (July 20, 2007) | Panel (February 9, 2005) Briefs and Other Documents:
Carcieri v. Kempthorne (NARF-NCAI Tribal Supreme Court Project Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code) Relevant Links:
Narragansett Tribe - http://www.narragansett-tribe.org
Tribal Supreme Court Project - http://www.narf.org/sct/index.html