Indian Reorganization Act – Page 3

ICT on the Politics of the Carcieri Fix (and the Dictionary Act)

March 14, 2009Matthew L.M. Fletcher

From ICT:

WASHINGTON – Excited rumbles trickled through Indian country after a letter to the editor was published recently in Indian Country Today, asking whether a little known legislative doctrine could help reverse the Supreme Court’s ruling in Carcieri v. Salazar.

The writer of the letter, lawyer Joseph E. Bernstein, noted that the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise.

Given that the court seemingly ruled in contradiction to the law – deciding that the phrase “now under federal jurisdiction” of the Indian Reorganization Act refers to those tribes that were under federal jurisdiction only when the IRA was enacted in 1934 – Bernstein asked whether tribal and federal lawyers could get a rehearing.

Department of Justice lawyers arguing the case hadn’t mentioned the Dictionary Act in their arguments, nor had tribal legal experts, so Bernstein thought they might be able to raise a new point of law focused on the future tense language of the law.

Could it be that simple? Could there really be a quick legal fix to help tribes prevail after the Supreme Court upended many tribal, federal and legal understandings of the IRA by restricting the BIA’s longstanding tribal land into trust process? If not a legal fix, couldn’t Congress just make a fast fix?

Legal and legislative experts say the only thing simple regarding those questions are the answers to them: No, no, and maybe not.
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MichGO’s Reply Brief

January 3, 2009Matthew L.M. Fletcher

The certiorari stage briefing in Michigan Gambling Opposition v. Kempthorne (No. 08-554) is complete with the filing of the petitioner’s reply brief (here).

Here are the other briefs.

The conference where the Court will discuss this case is January 9.

MichGO v. Kempthorne a “Petition to Watch”

December 23, 2008Matthew L.M. Fletcher1 Comment

SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:

Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.

Opinion below (D.C. Circuit)
Petition for certiorari
Brief in opposition (federal respondents)
Brief in opposition (Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians)

First Glimpse at a Possible Post-Carcieri World

December 16, 2008Matthew 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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Commentary on the Carcieri Oral Argument — UPDATED

November 4, 2008November 4, 2008Matthew 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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AP Report on Carcieri v. Kempthorne

November 3, 2008Matthew 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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St. Croix Band v. Kempthorne Materials

October 3, 2008Matthew L.M. Fletcher1 Comment

Here are many of the pleadings in the St. Croix Band v. Kempthorne case reported earlier today (opinion).

st-croix-amended-complaint

us-motion-to-dismiss-st-croix-complaint

st-croix-opposition-to-govt-motion-to-dismiss

govt-reply-brief

st-croix-supplemental-memorandum

govt-response-to-supplemental-memorandum

dct-order-denying-preliminary-injunction

Federal Courts Holds Artman Guidance NOT Reviewable

October 3, 2008Matthew L.M. Fletcher

In St. Croix Band of Chippewa Indians v. Kempthorne, the District Court for the District of Columbia dismissed St. Croix’s challenge to the Secretary’s authority to refuse to take off-reservation land into trust. The court found that the Artman Guidance letter is not final agency approval.

dct-order-of-dismissal-st-croix