Jon Goodrich contributed the following preview of the upcoming term’s Carcieri v. Kempthorne.  Jon is a 3L at the University of Richmond School of Law and a 2008 Akin Gump summer associate.  Please be sure to check out SCOTUSwiki for any additional updates.

The contentious relationship between the State of Rhode Island and the Narragansett Indian Tribe dates back to at least 1880, when – after protracted resistance to Rhode Island’s efforts to assimilate it – the Tribe surrendered its tribal authority and sold all but two acres of its lands to the State for five thousand dollars. In 1975, the Tribe sought to invalidate the sale, arguing that Rhode Island had violated the Indian Nonintercourse Act, which requires federal consent prior to the purchase of Indian land or termination of aboriginal title. After three years of litigation, Rhode Island and the Tribe entered into a Joint Memorandum of Understanding, which granted the Tribe 1800 acres of land (known as the “settlement lands”) in exchange for the Tribe’s agreement to abandon its claims of aboriginal title and its claims to other lands in the state. Congress eventually approved and codified the agreement in the Rhode Island Indian Claims Settlement Act.

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II. Respondent’s Merits Brief

In his merits brief, Secretary Kempthorne asserts that the IRA permits him to take land into trust for the Tribe and that the Settlement Act presents no obstacles to that decision. The brief begins by focusing on the scope of the IRA, noting that the statute grants the Secretary the authority to take land into trust “for the purpose of providing land for Indians.” The word “Indians” is not used in the technical sense, but instead is used, the Secretary claims, like in other Indian statutes to refer to both “tribes” and individual “Indians.” Thus, the Secretary declares, because the IRA expansively defines “tribe” as “any Indian tribe, organized band, pueblo, or the Indians residing on one reservation,” he has the necessary trust authority regardless of what the word “now” means in the IRA’s definition of “Indian.”

Even if the definition of “Indian” has some bearing on the Secretary’s trust authority for a “tribe,” the Secretary argues that the immediate context of “now” suggests that Congress meant “at the time of the statute’s application.” As he did at the certiorari stage, the Secretary points out that if Congress had intended the disputed definition of “Indian” to refer to a closed class of tribes based on their status in 1934, then it could have used a specific date or stated “at the time of passage of this Act.” Although there may be other instances within the IRA where “now” means at the time of passage, the Secretary contends that “now” serves a functional, rather than a substantive purpose, and may be used to signify different time periods depending on the context. Here, the Secretary asserts, Congress intended “now” to account for the possibility that an Indian’s status –and, as a result, eligibility for IRA benefits – may vary over time and thus should be measured at the time of application. Rejecting the argument that Congress could have added “now or hereafter” to provide for the IRA’s ongoing application, the Secretary reasons that in this instance that phrase would incorrectly permit current trust acquisition for a tribe that was recognized in 1934 even if it is no longer federally recognized. Moreover, the Secretary dismisses Carcieri’s interpretation of John, arguing that the Supreme Court’s discussion of the IRA’s scope reinforces the conclusion that the relevant clause is, if anything, ambiguous.

The purposes and legislative history of the IRA, the Secretary explains, reinforce the conclusion that Congress intended to extend the IRA’s benefits to all federally recognized tribes. After noting the canon that statutes are to be construed liberally in favor of Indians with ambiguous provisions interpreted for their benefit, the Secretary explains that the overriding objective of the IRA was not simply to reverse the federal government’s allotment policy, but was to promote tribal self-determination, self-government, and welfare. If, as Carcieri contends, the IRA was merely intended to apply to tribes affected by the Allotment Act, then Congress would not have also included pueblo Indians – a group never subject to the allotment policy. In addition, the Secretary discounts Carcieri’s reading of the IRA’s legislative history, emphasizing that “ambiguous legislative history, much less an ambiguous colloquy at a single hearing, cannot make ambiguous text plain.”

The Secretary next argues that even if “now” means “at the time of enactment,” Congress nevertheless left a gap for the Secretary to fill. According to the Secretary, the IRA does not attempt to delineate the entire universe of persons who are “Indians” under the IRA, but instead leaves a gap by providing that the word “Indian” “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” Congress’s use of the word “include,” the Secretary reasons, indicates that what follows is illustrative, not exclusive.

To the extent that the exact scope of the IRA and the definition of “now” are ambiguous, the Secretary professes that the text, structure, purpose, and history of the IRA support his interpretation as a reasonable one. The Secretary points out that his view is consistent with current regulations adopted after notice-and-comment rulemaking as well as prior departmental practice and regulations and other Indian statutes.

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The case is now scheduled for oral argument on Monday, November 3, 2008. It is the third of three cases scheduled for oral argument that day.