Certiorari Granted in Carcieri v. Kempthorne

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.

Carcieri v. Kempthorne a “Petition to Watch”

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.

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United States Cert Opposition in Carcieri v. Kempthorne

Just filed Friday: United States Cert Opposition

Here are the earlier materials at the NARF website:

Cert Petition

State Amicus Brief Supporting Cert Petition

Narragansett Smokeshop Case — Jones v. Jennings — Cert Petition

A case that I suspect has a pretty good shot at being heard by the Supreme Court, Jones v. Jennings, will be on the Court’s conference agenda for January 18, 2008. The case involves the smashing of the Narragansett Tribe’s fledgling smokeshop by state officers. Jones, the police officer, broke the ankle of Jennings, a tribal member, during the conflagration (which was caught on tape and played all over Indian Country for months).

In particular, the questions presented are:

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Rhode Island S. Ct. Decision in Narragansett Smoke Shop Case – Gov. Carcieri Doesn’t Have to Testify

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.

New Studies Show Pequot and Mohegan Casinos are Good*

From the Connecticut Economy, a journal published by the University of Connecticut.

The first article, “Spill-Free Gaming,” demonstrated that the operation of the Foxwoods and Mohegan Sun casinos had no adverse effect on local crime rates. A second article, “The State of Play in New England Casino Gaming,” argues that the enormous revenues generated by gaming Connecticut means that legalized gambling in Rhode Island and Massachusetts is inevitable. Another article, “Got Game?” demonstrated that these two casinos contribute $430 million a year to the Conn. general fund.

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Carcieri v. Kempthorne Update

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

“Work[ing] Over” Appellate Litigators: The Rhode Island Supreme Court

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.”

Chief Justice Roberts & Federal Indian Law

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).

Cert Petition in Carcieri v. Kempthorne

From Indianz.com:

Rhode Island appeals land-into-trust ruling
Friday, October 19, 2007

The state of Rhode Island is asking the U.S. Supreme Court to hear a land-into-trust case that is being watched by tribes nationwide.

In July, the 1st Circuit Court of Appeals ruled that the Bureau of Indian Affairs can place 31 acres in trust for the Narragansett Tribe. The tribe is like any other tribe and can follow the Indian Reorganization Act, which authorized the land-into-trust process, the court said.

As I will argue in my forthcoming article, “Factbound and Splitless: An Empirical Study of the Impact of the Certiorari Process on Federal Indian Law,” the Supreme Court is unlikely to grant cert. in this case for two important reasons. First, there is no circuit split (“splitless”). What that means is that the federal courts of appeal that have addressed the question of the constitutionality of the fee to trust process (25 U.S.C. § 465) — the 8th Circuit in South Dakota v. Kempthorne, the 10th Circuit in Utah v. Shivwits, and the 11th Circuit in Roberts v. U.S., are examples — have held (just as the 1st Circuit did here) that the statute is constitutional.

Second, this case involves the muddying aspects of the Rhode Island Indian Claims Settlement Act and how it affects the application of § 465, rendering this case a bit messy as a factual matter (“factbound”). If this was a straight-up interpretation of § 465 without the Settlement Act’s application, the Court would be more likely to grant cert (although, without a split, not so much). In short, this case implicates a relatively small number of tribes (those Rhode Island tribes).

Land-into-Trust Decision:
Carcieri v. Kempthorne (July 20, 2007)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe – http://www.narragansett-tribe.org
Tribal Supreme Court Project – http://www.narf.org/sct/index.html