Supreme Court

Supreme Court Upholds Bill of Rights 5-4

Matthew L.M. Fletcher

From the Onion:

WASHINGTON—In a landmark decision Monday, the U.S. Supreme Court narrowly ruled to uphold the Bill of Rights, the very tenets upon which American society is based. “After carefully considering the relevance of the 10 inviolable rights that comprise the ideological foundation on which our nation is built, the court finds that these basic freedoms remain important for the time being, and should not be overturned,” read the majority opinion authored by Justice Anthony Kennedy, who cast the tie-breaking vote. “Until such time as it can be definitively proven that citizens no longer require the protections provided by the Bill of Rights, it shall remain the principal legal guidance for the United States of America.” The Supreme Court’s latest decision comes on the heels of last month’s 6-3 ruling to abolish the pursuit of happiness from the three inalienable rights guaranteed by the Declaration of Independence.

Commentary on Possible Obama SCT Nominees

Matthew L.M. Fletcher6 Comments

Now that the election is over, the commentaries on who President Obama might nominate to serve on the Supreme Court have begun in earnest. The crop of leading names, all of which is crazily speculative, are very exciting in general. There may be more Indian law judicial and practitioner experience in this group than ever before.

Here are a list of the more prominent names, taken from the ABA Journal’s list on page 63 of its November 2008 issue, and their import for Indian Country based on their experience in Indian law cases:

1. Judge Diane Wood

Judge Wood sits on the Seventh Circuit, which doesn’t hear very many Indian law cases, but she does have a significant track record.

She wrote the majority opinion in U.S. v. Long (2003), in which the court upheld the Duro fix prior to the Supreme Court’s decision in U.S. v. Lara. In Wisconsin v. EPA (2001), she wrote the majority opinion, in which the court held that the EPA’s decision to grant treatment-as-state status to the Sokaogon Chippewa Community was reasonable. In Sokaogon Chippewa Community v. Babbitt (2000), she wrote the majority opinion in a case the court held it was reasonable for the district court to reject the St. Croix Chippewa Tribe’s motion to intervene in a gaming case involving three other Wisconsin tribes. In Thomas v. United States (1999), she wrote the majority opinion holding that the LCO Chippewa Band’s tribal council was not a necessary party to a claim challenging the outcome of a Secretarial election. Most recently, in Burgess v. Walters (2006), she wrote the majority opinion upholding the State of Wisconsin’s action in committing an Indian based on the PL280 criminal/prohibitory — civil/regulatory analysis.

Without a doubt, Judge Wood’s opinions in her several Indian law cases demonstrate that she is very respectful to Indian tribes and to tribal sovereignty. Wisconsin and Long could have easily gone the other way. Even in the cases she were rules against tribal interests, she does not denigrate Indians and tribes in any way.

2. Seth Waxman

Mr. Waxman is another interesting choice for Indian Country. He has more experience in litigating federal Indian law cases than any of the others mentioned for a nomination. As the US Solicitor General under President Clinton, his name is appended to dozens of Indian law cases (e.g., Minnesota v. Mille Lacs, Idaho v. United States, other cases from 1997-2001), but he never argued an Indian law case before the Court during that time. However, since he’s been back in private practice he’s worked at least three Indian law cases — City of Roseville v. Norton (D.C. Cir. 2003), San Manuel Indian Bingo and Casino v. NLRB (D.C. Cir. 2007), and MichGO v. Kempthorne (D.C. Cir. 2008), all on behalf of the tribes involved in those cases.

His experience in Indian law is outstanding and, like Judge Wood, might help the Court see Indian law in a new light.

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United States Opposition to Cert Petition in City of Pocatello v. Idaho

Matthew L.M. Fletcher

us-cert-opp-pocatello

Here is the cert petition.

Coverage of the Carcieri Argument

Matthew L.M. Fletcher

From Law.com (thanks to Mike McBride)

Compared to the drama surrounding which lawyer would argue before the Supreme Court Monday in the case of Carcieri v. Kempthorne, the actual argument came as something of an anticlimax.

As reported by Legal Times in recent weeks, Rhode Island Gov. Donald Carcieri had hired former solicitor general Theodore Olson for a reported $200,000 to argue for the state in the Indian land dispute. But Joseph Larisa, a private lawyer for the town of Charlestown, R.I., where the land in question sits, refused to turn over the reins to Olson, asserting that his handling of the case for the last 10 years made him the most qualified to argue before the justices.

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Commentary on the Carcieri Oral Argument — UPDATED

Matthew L.M. Fletcher4 Comments

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.

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Carcieri v. Kempthorne Oral Argument Transcript

Matthew L.M. Fletcher

Available here.

AP Report on Carcieri v. Kempthorne

Matthew L.M. Fletcher

From the AP:

PROVIDENCE, R.I. (AP) — The Narragansett Indian Tribe bought a 31-acre lot in 1991, saying it would be used for “economic development” and housing for the elderly and poor.

However, the state of Rhode Island, fearing the tribe really wants to create a tax-free zone or build a casino, sued to block the Narragansetts from putting the land into federal trust, which would essentially free it from state and local law.

On Monday, their fight reaches the U.S. Supreme Court in a case being closely watched across the country because it could determine how tribes recognized after the 1934 Indian Reorganization Act are allowed to buy, govern and use land.

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How the Carcieri Oral Argument Drama Unfolded

Matthew L.M. Fletcher1 Comment

Interesting, but not terribly surprising, that the Governor and the R.I. Attorney General would have forfeited oral argument rather than allow Joe Larisa to make the argument; or at least, that Larisa believed them. As Justice Thomas said recently, nine times out of ten, oral argument doesn’t change his mind, but he did say a party can lose a case at oral argument. And since the Supreme Court granted cert on Rhode Island’s petitions, it is their case to lose at this point. So forfeiting oral argument might have made sense, strategically. Who knows….

From ProJo:

***The drama began at 11 a.m. when a court clerk placed a conference call to Larisa, assistant solicitor for Indian affairs for Charlestown; Theodore B. Olson, a prominent Washington, D.C., lawyer, and representatives of Governor Carcieri and Attorney General Patrick C. Lynch. The clerk said that the justices of the nation’s highest court had refused Larisa’s last-minute emergency motion to help resolve the dispute. The parties would have to decide for themselves whether Larisa or Olson –– the choice of the governor and the attorney general –– got to argue the case.

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Carcieri Drama Over — Ted Olson to Argue

Matthew L.M. Fletcher

From ABA News (H/T JP) (SCOTUSblog coverage):

A Rhode Island lawyer has given up his battle to argue an Indian land case before the U.S. Supreme Court.

Lawyer Joseph Larisa Jr. had tussled with Rhode Island officials over which lawyer should represent them in the case. Today he agreed to let former solicitor general Theodore Olson handle the arguments after an unusual phone call today by Supreme Court clerk William Suter, SCOTUSblog reports. “He said the court gave us one hour to decide, or all argument time would be forfeited,” Larisa told the blog. Larisa will be seated as co-counsel when the case is argued Monday.

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The Drama in Carcieri Continues

Matthew L.M. Fletcher

From ProJo:

The flights are booked, hotel rooms reserved, but who these Rhode Island visitors will see Monday in the leading role before the U.S. Supreme Court remains unknown.

The court will be hearing oral arguments in a landmark case that could resolve, once and for all, who controls the 31 acres of land in Charlestown owned by the Narragansett Indian tribe.

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