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.
, the state of Rhode Island is trying to stop the Narragansett
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
apply to tribes that weren't federally recognized when the law
was passed in 1934. The Narragansetts gained status in 1983.
, 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."
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
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,"
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.
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
, suggesting that the current term "may prove to be another difficult
period for Indian Country."
Supreme Court Documents:Oral
Related Stories:Turtle Talk: Poor outlook on land-into-trust
(11/4) Rhode Island optimistic on land-into-trust case
(11/4) Oregon tribes await outcome of land-into-trust
(11/4) Supreme Court to hear land-into-trust case
(11/3) Still no agreement on
Island governor angry over hearing impasse
(10/30) SCOTUSBlog: Jockeying for land-into-trust hearing
(10/30)Fight over land-into-trust
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
(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
U.S. Supreme Court accepts land-into-trust
(2/25) High court weighs
(2/22) Groups file brief in pending land-into-trust
(02/06)Supreme Court brief backs