Here’s the order. The Court will address two questions:
1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.
2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.
The Court declined to hear the third proposed question presented:
3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.
SCOTUSBlog lists Carcieri v. Kempthorne as a petition to watch for the Feb. 22 conference.
There are some warning signs, notably the amicus brief filed by numerous states in support of Rhode Island’s petition. See Gregory A. Caldiera & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 American Political Science Review 1109, 1122 (1988 ) (“[A]micus curiae briefs filed in support of the petition for certiorari increase the estimated probability that the Supreme Court will grant by a magnitude of .5 or .6, depending upon the characteristics of a particular case.”).
As I argued earlier, however, (1) there is no circuit split; and (2) the issue may turn on the particular import of the Rhode Island Indian Claims Settlement Act, meaning that the outcome could have little or no import nationally. Moreover, the United States is in opposition, so these factors may be sufficient to persuade the Court to let this one percolate.
The Rhode Island Supreme Court quashed a trial court order compelling Gov. Carcieri to testify in court on the issue of whether state police used excessive force in shutting down the Narragansett smoke shop and arresting many members of the tribe, injuring several people in the process.
Here is the decision.
Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah have just filed an amicus brief supporting the State of Rhode Island’s petition for cert in Carcieri v. Kempthorne.
The brief is here: State Amicus Brief Supporting Cert Petition
From the Providence Journal (H/T Indianz):
“I’d rather eat peas, go to a dentist, and listen to Britney Spears sing than be a lawyer appearing before the state Supreme Court.
“These judges are tough. In questions and sideline commentary during oral arguments, they’re abrasive with all parties. At yesterday’s hearing on whether Governor Carcieri must testify in the coming Superior Court trial of Narragansett Indians arrested in the 2003 smoke shop raid, the justices first pounced on his lawyer, Marc DeSisto, and on Special Assistant Attorney General Pamela Chin, who was on the same side.
“Then they pounced as aggressively, if not more, on William Devereaux, lawyer for the Narragansetts. Then, when DeSisto rose for rebuttal, Chief Justice Frank Williams greeted him by chirping, “We’ll work you over, too.”