Carcieri v. Kempthorne

Possible Side-Effect of Carcieri? More Non-Indian Gaming (in Ohio)?

Matthew L.M. Fletcher

From the Columbus Dispatch:

Ohio’s four largest cities each would get a casino and local governments and schools would share most of a projected $600 million a year in tax revenue, gambling proponents said today in introducing the third casino proposal aimed at the statewide ballot in four years.

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“This proposal was carefully crafted to reflect what Ohioans want in a gaming proposal,” said Eric Schippers, spokesman for Penn National Gaming Inc., which switched sides to sponsor this year’s issue. “We’re going to build a broad-based coalition to support this proposal.”

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Penn National has armed itself with a February U.S. Supreme Court decision that forbids Indian tribes from placing land in trust — often a prelude to building a casino — if the tribes received federal recognition after 1934. There currently are no federally recognized tribes in Ohio, but casino opponents last year said a commercial casino could open the floodgates to Indian casinos in the state.

Christian McMillen Talk

Matthew L.M. Fletcher

From Legal History Blog:

On Friday, January 23, Professor Christian McMillen, Department of History, University of Virginia, will be discussing two papers. First, he will talk about the Historians’ Brief in Carcieri v Kempthorne, an Indian law case from the Supreme Court’s current term which considers whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934, if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state. Next, McMillen will discuss “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims.

Professor McMillen is Assistant Professor of Native American Studies and the U.S. West in the Corcoran Department of History at U.Va. He received his BA in history from Earlham College, his MA in history from the University of Montana, and his PhD in history from Yale University. McMillen’s book, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007) won the 2008 William Nelson Cromwell Book Award, the 2008 John Phillip Reid Book Award, and the 2008 Erminie Wheeler-Voegelin Prize, and garnered a nomination for the Bancroft Prize. The book examines a watershed Indian property rights case that continues to impact the outcome of indigenous land claim cases throughout the world.
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MichGO Decision — Implications for Carcieri v. Kempthorne?

Matthew L.M. Fletcher

Who knows, except the people at the Supreme Court?

One possibility is that the Supreme Court denied cert in MichGO because the Court is going to uphold the Secretary of Interior’s authority to take land into trust for tribes not federally recognized in 1934 (tribes like the Gun Lake Band and the Narragansett Tribe), the key issue in Carcieri. If the Court was to reject the Secretary’s authority in Carcieri, then there would be reason to grant cert in MichGO to correct the lower court’s holding. They might choose to do this through a tool called GVR — Grant, Vacate, and Remand. But if the Court was to affirm the Secretary’s holding, then the lower court decision in MichGO is correct even after Carcieri, and so there’s no reason to review the decision.

However, there might be a problem with this theory; namely (if I am correct), MichGO never once argued that Gun Lake Band is ineligible under Section 5 because it wasn’t recognized in 1934. They did raise it in the cert petition, but one suspects that it’s too late then. MichGO could have raised the question from the outset, because the Narragansett litigation had been ongoing for some time. So maybe that’s why the Court denied cert in MichGO. And, if so, the cert denial offers no clues as to the possible outcome in Carcieri.

Finally, one great bit of news — since the Court denied cert in MichGO, the nondelegation doctrine claim that MichGO brought to the Court once again goes by the wayside (the Court had previously refused to accept this question in Carcieri as well, and in several other cases before that).

More Commentary on Carcieri and MichGO

Matthew L.M. Fletcher2 Comments

It might be useful to recap the various factors that might affect the Supreme Court’s consideration of Carcieri v. Kempthorne and MichGO v. Kempthorne. I’ve been quoted here (ICT) and here (Indianz) — correctly, no problem there — but one thing I wonder might affect MichGO.

What I’ve been saying for a few days now is that the outcome in Carcieri might affect whether or not the Court decides to hear MichGO on the merits, a grant, or whether it decides to remand MichGO in light of Carcieri, a GVR. One thing I had not considered until now is that MichGO has not made some key arguments that were available to it by virtue of the Carcieri case. Carcieri is about whether Section 5 of the Indian Reorganization Act can apply to a tribe not federally recognized by the federal government in 1934. Until its cert petition (and I have not seen the complaint), MichGO never made that argument. The MichGO cert petition’s second question presented is one that was available to them (the Carcieri litigation goes back way before the MichGO litigation) but one that MichGO apparently never made.

So if the Court GVR’s MichGO after a Carcieri reversal on the Section 5 question, it will be allowing MichGO to bootstrap itself onto an argument that it had never made. Frankly, if my facts are right, MichGO has waived its 1934 argument, and should not be the beneficiary of a remand to the D.C. Circuit.

Even if the Court GVR’s the MichGO case, the Gun Lake Band probably will still be able to show that they are eligible under Section 5, depending on how the Court’s majority opinion in Carcieri reads. MichGO, an organization created to delay gaming, likely for the benefit of other gaming and business entities, will continue to be a big winner merely by delaying the opening of yet another casino. And Gun Lake will have been the victim of really, really bad timing.

MichGO v. Kempthorne Update UPDATED !!!!

Matthew L.M. Fletcher

No news today — so the Court did not deny cert yet (here are the orders). There are several possibilities. First, and perhaps most likely, the Court will hold on to this one until the Carcieri v. Kempthorne decision comes out, which could be any day. Second, following this hold, the Court could either grant cert or GVR the case. I suspect the most likely outcome is a GVR, given the possibility that the Court will reverse the First Circuit in Carcieri.

Newer, better update — the Court apparently did not get to consideration of the MichGO petition. In fact, the Court has re-slated the petition for consideration on January 16, this Friday. Here is the docket sheet. Of course, maybe the Court is about to issue an opinion in Carcieri this week….

Christian McMillen Paper Presentations

Matthew L.M. Fletcher

From the Legal History Blog:

On Friday, January 23, at 12:30 PM, Christian McMillen, Department of History, University of Virginia, will present two papers: “The Historians’ Brief in Carcieri v Kempthorne,” an Indian law case from the Supreme Court’s current term, and “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims. McMillen is the author of Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007), which has recently won book prizes from the American Society for Legal History and the William Nelson Cromwell Foundation.

This is a webcasted event at the Miller Center for Public Affairs at the University of Virginia.

First Glimpse at a Possible Post-Carcieri World

Matthew L.M. Fletcher2 Comments

The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”

In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):

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Christian McMillan Wins Reid Prize for “Making Indian Law”

Matthew L.M. Fletcher

Congrats to Christian McMillen for this award. Incidentally, Professor McMillen is a named amicus in the historians brief in Carcieri v. Kempthorne.

John Phillip Reid Book Award (H/t to Legal History Blog and Patrick O’Donnell)

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best book published in English in the previous year in any of the fields broadly defined as Anglo-American legal history.

Christian W. McMillen’s Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory is a deeply researched and elegantly written study of the Hualapai case and its background.

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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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