Turtle Talk

I think it’s safe to say after today’s oral argument in Carcieri v. Kempthorne that the chances the Supreme Court will affirm the First Circuit’s decision are pretty small. Of course, what happens at oral argument doesn’t guarantee any outcomes, and any reading of the cold transcript can create misconceptions. But a few comments (I’ve added more material at the end):

First, Ted Olson had the much easier argument to make and he exploited that advantage mercilessly. He had the benefit of the plain language (“now” meaning 1934, when 25 U.S.C. 465 was enacted). He had the benefit of 15 statutes that purported to extend the benefits of Section 465 to newly recognized tribes, a true sound bite if there ever was one. He had the benefit of the legislative colloquy (as it was called in oral argument) between Sen. Wheeler and Indian Affairs Commissioner Collier which seemed to support his view. He had the benefit of a 1978 decision (U.S. v. John) that assumed without deciding that his interpretation was correct. And he had perhaps the most friendly audience to his client, a state government, in the history of the U.S. Supreme Court — the Roberts Court.

The government’s attorney, Deanne Maynard, had a difficult time getting past all of these superficial issues. On the face of it, each argument above is a winner, but there was a reason why the First Circuit sitting en banc unanimously (6-0) rejected each of these arguments below. Unfortunately for the government and the Tribe, the winning arguments for the respondents are based in history, statutory construction and nuance, and other characteristics difficult to parse out when facing a barrage of questions from eight Justices (no questions or commentary from Justice Thomas, as usual). Even when Justice Stevens attempted to explain the statutory construction argument in regards to the definition of “Indian tribe” he got bogged down and never could finish his point.

And, early in her argument, the Chief Justice got Ms. Maynard to concede that the government was asking the Court (“ironically”) to read the statute as if “now under federal jurisdiction” was not actually there.

In short, Mr. Olson appeared to out-argue Ms. Maynard.

Second, other than a very brief mention from Ms. Maynard at the end of her time, the Rhode Island Land Claims Settlement Act was utterly absent from the argument. This is, of course, the most narrow way to decide the outcome of the case, as opposed to a broad holding about Section 465 that might apply to many tribes. The way the parties briefed the case and the way the parties argued the case indicates that the Court might just forget about the Settlement Act, other than to hold that the Settlement Act does nothing to extend the application of Section 465 to the Narragansetts.

Third, Chief Justice Roberts, following Mr. Olson’s lead, argued for a truly wicked version of history in relation to the purpose of the Indian Reorganization Act. He suggested that the best way to read Congressional intent was to assume Congress meant to assist only those tribes that had suffered under allotment, and the only tribes to have suffered under allotment where those that were “under federal jurisdiction” in 1934. Perfect “lawyer’s history.”

Additionally, at one point in the transcript it appeared that the Chief Justice was throwing the kitchen sink at Ms. Maynard, suggesting that the Narragansett Tribe would use the land for gaming (just as Rhode Island has asserted time and again) despite the fact that they do not enjoy the benefits of the Indian Gaming Regulatory Act. Plus, he (likely in a joking fashion, though it’s difficult to tell from the transcript) suggested that the canon of construction involving statutes enacted for the benefit of Indians/Indian tribes was a dead letter because: “Well, how do we know which one of them benefits the Indian? I mean, have the Indians benefited from Federal jurisdiction in the last 50 years?”

Fourth, some Justices (Roberts and Scalia in particular) suggested that the only way to read “now” was literally, or else there would be no limitation on the Secretary’s authority to decide for whom to take land into trust. Similarly, other Justices (Breyer and Souter) suggested that Congress would not have delegated to the Secretary how to define “now.” This may be the rub of the case for the Court.

Fifth, some Justices (Breyer, Souter, Kennedy) suggested that the best outcome for the Narragansetts and the government might be to remand the case. The Court would first hold that “now” means 1934, but that tribes “under federal jurisdiction” was not coextensive with tribes that enjoyed “federal recognition” in 1934. So the Tribe would be forced to prove, perhaps, that the Narragansett Tribe wasn’t recognized but that they should have been, and therefore they were “under federal jurisdiction.”

Ms. Maynard mightily resisted this at first, but then conceded that the remand would be better than a reversal. Mr. Olson denied that the Narragansett Tribe met either definition. Justice Breyer, noting the case of the Stillaguamish Tribe (recognized in 1976, but a tribe that signed a treaty with the US), that maybe the test for “under federal jurisdiction” might be a tribe that signed a treaty. That wouldn’t help the Narragansetts, though. Mr. Olson did suggest that whether a tribe was “under federal jurisdiction” could be ascertained in a case-by-case basis, assuming the Court articulated a clear standard and assuming “history” could be uncovered dictating an answer.

All in all, I doubt the Court will go in this direction. There appears to be several votes (Roberts, Scalia, and Thomas at least) favoring a bright-line rule, not a remand to apply a vague(r) legal standard.

Sixth, there is still very little sense about where Justice Alito is on Indian law. He asked only one question (to Mr. Olson, along the lines of Justice Stevens’ questioning).

Finally, there may be trouble on the horizon for tribal interests in the Court buys into the assertion by Justice Kennedy and then jumped on by Mr. Olson in his rebuttal that ” there is — is some canon of construction, some principle of Federalism which makes us be very cautious before we take land out of the jurisdiction of the State. It sounds to me plausible.” Justice Kennedy didn’t know if there was such a “canon” of construction favoring state governments, so Mr. Olson suggested that Vermont Agency of Natural Resources v. United States ex rel. Stevens provided the support.

This is the kind of common law argument like laches in City of Sherrill that the Court seems to be adopting in its Indian law jurisprudence, creating slam dunk arguments for the benefit of state governments vis a vis tribal governments. It probably doesn’t have legs here because the Court doesn’t need this argument to rule against the US and the Narragansetts, but it might be further fodder for opponents of tribal sovereignty.

It might be time for the Narragansetts and others to think about going to the 111th Congress for a “Carcieri fix.”

Lastly, I would add, after further reflection, that the focus of this oral argument seems to ignore the true purposes of the IRA, as well as introduce more recent constitutional thought into older Congressional and administrative actions. In 1934, there was no Chevron and most Indian law cases were decided by the political question doctrine. Moreover, the Rehnquist/Roberts Courts’ vision of states rights didn’t exist, either. When Justice Kennedy asked if there was some states’ rights canon of construction that would protect Rhode Island and other states from Section 465, he was forgetting about the real beneficiaries of allotment — state governments. States benefited from allotment more than anyone or anything else, by acquiring lands through tax foreclosures (many of them illegal) and because states and local governments received the benefit of tax revenues from Indians. If anything, a state canon would turn the IRA on its head.

One last comment: at one point, Mr. Olson stated:

The purpose for the Indian Allotment Act was to take a –land out of reservations and out of the possession of Indian tribes and distribute that to — to Indians in fee simple so that they could sell it to someone else.

This may be the most offensive statement I have ever heard about the allotment era, that Indians wanted fee title so they could sell their land. It simply does not get any more wrong than that. To be fair, it was uttered in the heat of the moment, and the Court (largely thanks to Justice Blackmun over the years) has recognized that the allotment era was an unqualified disaster for Indian people, but a Supreme Court opinion with that kind of thinking would be deeply troubling.