In another major challenge for Indian country, on February 25, 2008, the U.S. Supreme Court granted review in Carcieri v. Kempthorne, a decision by the en banc panel of U.S. Court of Appeals for the First Circuit which upheld the authority of the Secretary of Interior to take land into trust for the Narragansett Tribe under Section 5 of the Indian Reorganization Act (IRA) over the objections of the State of Rhode Island. The Supreme Court granted review on the first two questions presented within the State’s petition for writ of certiorari: (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” (i.e. whether the IRA and its benefits apply only to tribes that were “now under federal recognition” in 1934); and (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” ( i.e. whether the Rhode Island Settlement Act creates an implicit limitation on the Secretary’s land to trust authority). The Court did not grant review of the third 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” (i.e. whether Section 5 of the IRA is an unconstitutional delegation of legislative authority).
Rhode Island’s arguments threaten the land and sovereignty of all Indian tribes. A group of sixteen (16) state Attorney Generals filed an amicus brief prepared by the State of Connecticut in support of the State of Rhode Island as part of their on-going coordinated strategy to mount additional legal challenges to the acquisition of trust land for the benefit of Indians and Indian tribes. These states are: Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah. The Tribal Supreme Court Project coordinated amicus briefs at each stage in the First Circuit and will continue to coordinate resources and develop legal strategy at the Supreme Court level. The State of Rhode Island’s opening brief is due on April 10, 2008.
Copies of briefs and other materials for each of the cases listed in the Update are available on the NARF website at www.narf.org/sct/index.html.