Here it is — us-brief
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.
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.
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
In a case where the Department of Interior issued a FONSI in 2006 and the Governor of New York concurred in the trust acquisition (for gaming purposes) shortly thereafter, Secretary Kempthorne still has not taken action. So, the St. Regis Mohawk tribe sued, alleging that the only reason for the delay is Secretary Kempthorne’s “personal views opposing off-reservation gaming.”
This will be an interesting case to watch.
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.
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).