Supreme Court takes on first Indian law case of term

Law | Trust

Tuesday, November 4, 2008

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