Carcieri v. Kempthorne

Carcieri v. Kempthorne

Issue: Whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934 if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state.

With Argument Day Approaching, Supreme Court Stalemate Continues
Legal Times
Tony Mauro10-22-2008

Less than two weeks before the case Carcieri v. Kempthorne comes before the Supreme Court, lawyers Theodore Olson and Joseph Larisa Jr. are still at an impasse over which one of them will argue the case for the plaintiffs.

Larisa has the backing of the town council of Charlestown, R.I. to argue in the case as he has in courts below, but Rhode Island Gov. Donald Carcieri and Attorney General Patrick Lynch want Olson, the former solicitor general and now partner at Gibson, Dunn & Crutcher, to appear before the justices Nov. 3. The case is a dispute over an Indian land claim in Charlestown.

On Oct. 15, Olson filed a standard argument form with the Supreme Court clerk’s office stating he would be the one to argue. But the next day Larisa filed an argument form with his own name on it. Since the Court has already denied motions for divided argument, the clerk was faced with the dilemma of two lawyers claiming they will argue at the same time for the same party, when only one lawyer can do so.

On Monday Denise McNerney, the merits cases clerk for the Court, sent the two an identical letter telling them sternly that “The decision as to which attorney will argue on behalf of the petitioners in this case is now to be made amongst the parties.” She gave Olson and Larisa until noon on Oct. 30 to tell her who will be arguing.

Larisa, who wants the choice made by a coin toss, said Tuesday afternoon that the governor has once again refused to decide it that way. “They have not suggested any other option other than ‘Ted wins,'” said Larisa this afternoon. “Less than 13 days to go until oral argument and we cannot agree on a simple coin toss. It is the town’s position that the AG and governor are now affirmatively hurting preparation for oral argument.” Olson could not be reached for comment.

NARF: Tribal Supreme Court Project Update

This information was provided by the Native American Rights Fund. Visit their website for more information.

New Supreme Court Term May Prove to be Another Difficult Period for Indian Country

WASHINGTON D.C.-The U.S. Supreme Court held its opening conference on September 29, 2008 and, as expected, granted review in two Indian law cases–United States v. Navajo Nation and State of Hawaii v. Office of Hawaiian Affairs–both of which involve lower court decisions favorable to Indian country. First, in United States v. Navajo Nation, the Court will review a decision by the U.S. Court of Appeals for the Federal Circuit upholding the United States’ trust responsibility to the Navajo Nation. This case is part of the on-going litigation between the Navajo Nation and the United States involving disputes surrounding the negotiation of royalty rate adjustments for coal leases entered into between the Navajo Nation and the Peabody Coal Company.

Second, in State of Hawaii v. Office of Hawaiian Affairs, the Court will review a decision by the Supreme Court of Hawaii which held that the State of Hawaii should be enjoined from selling or transferring “ceded lands” held in trust until the claims of the native Hawaiians to the ceded lands have been resolved. The Supreme Court of Hawaii based its decision, in principal part, on the Apology Resolution adopted by Congress in 1993 which gives “rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians has been resolved.” In 2000, while in private practice, Chief Justice Roberts represented the State of Hawaii in Rice v. Cayetano, a case involving the status of native Hawaiians in which the Court held against Native interests. No doubt, the questions presented in this case are of keen interest to the Chief Justice.

At present, the Tribal Supreme Court Project remains extremely busy as it prepares for oral argument on November 3, 2008 in Carcieri v. Kempthorne (challenge to authority of the Secretary to take land in trust under section 5 of the Indian Reorganization Act). The Project also is continuing its efforts to coordinate resources and develop strategy in support of a petition for cert involving the free exercise of Native religions under the protection of the Religious Freedom Restoration Act in Navajo Nation v. United States Forest Services (permit for ski resort to use recycled sewage waste-water to manufacture snow on the San Francisco Peaks — a sacred-site for many American Indian Tribes). As always, we are carefully monitoring cases of interest as they move through the lower courts.

Copies of briefs and other materials for each of the cases listed in the Tribal Supreme Court Project Update are available on the NARF website at

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes.

We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review.

2 New US Supreme Court Cases

Today, the Supreme Court granted cert in two Indian law cases:

Hawaii v. Office of Hawaiian Affairs, No. 07-1372

Petition for Cert:
Hawaii Supreme Court Decision: Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Hawaii 2008)

Question Presented in Petition for Cert:

“In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States’ role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land–29 percent of the total land area of the State and almost all the land owned by the State–unless and until it reaches a political settlement with native Hawaiians about the status of that land.”

U.S. v. Navajo Nation, No. 07-1410

Petition for Cert:
Appellate Court Decision: Navajo Nation v. US, No. 06-5059 (Fed. Ct. 2007),
Prior Supreme Court Decision: US v. Navajo Nation, 537 U.S. 488 (2003)

Questions Presented in Petition for Cert:

“The Indian Mineral Leasing Act of 1938 (IMLA), 25 U.S.C. 396a et- seq., and its implementing regulations authorize Indian Tribes, with the approval of the Secretary of the Interior, to lease tribal lands for mining purposes. In a previous decision in this case, United States v. Navajo Nation, 537 U.S. 488 (2003) (Navajo), this Court held that the Secretary’s actions in connection with Indian mineral lease amendments containing increased royalty rates negotiated by the Navajo Nation did not breach a fiduciary duty found in IMLA or other relevant statutes or regulations. The court of appeals held on remand that the Secretary’s conduct breached duties linked to sources of law that had been briefed to this Court but not expressly discussed in Navajo. The questions presented are:
1. Whether the court of appeals’ holding that the United States breached fiduciary duties in connection with the Navajo coal lease amendments is foreclosed by Navajo.
2. If Navajo did not foreclose the question, whether the court of appeals properly held that the United States is liable as a mater of law to the Navajo Nation for up to $600 million for the Secretary’s actions in connection with his approval of amendments to an Indian mineral
lease based on several statutes that do not address royalty rates in tribal leases and common-law principles not embodied in a governing statute or regulation.”

Snowmaking OK’d at Snowbowl Resort

Snowmaking OK’d at Snowbowl resort
Aug. 8, 2008 11:00 AMAssociated Press

A federal appeals court has approved snowmaking using reclaimed wastewater at the Arizona Snowbowl ski resort north of Flagstaff.

The decision by a full panel of the 9th U.S. Circuit Court of Appeals in San Francisco is a blow for Indian tribes that had argued that the use of wastewater for snowmaking on peaks they consider sacred violates their religious freedom.

The full appeals court overturned a ruling by a three-judge appeals panel last year that held that using wastewater on the San Francisco Peaks violated the federal Religious Freedom Restoration Act.

Friday’s ruling says the tribes will still have full use of the mountain for their ceremonies and the snowmaking would not affect that.

Recent Decision – Navajo v. US

Yesterday, the US Court of Appeals for the Federal Circuit issued a decision finding that “the [Navajo] Nation has a cognizable money-mandating claim against the United States for the alleged breaches of trust and that the government breached its trust duties.” The Navajo Nation v. US., no. 2006-5059, slip op. at 38 (Fed. Cir. Sept. 13, 2007). The Nation claimed that the US breached its trust to the Nation by leasing land to the Peabody Coal Mining Co. The Court evaluated whether the purposes of an asserted network of statutes and regulations support a finding of a trust relationship between the Nation and the government that is “money-mandating” under the Indian Tucker Act, 28 USC 1505, and found that the law supported a fair inference of the existence of a trust relationship under the Act. The facts presented a finding that this trust relationship was breached.

Ninth Circuit

The Ninth Circuit just issued a decision in The Access Fund v. USDA, No. 05-15585 (August 27, 2007). The decision was written by Judge McKeown. The US Forest Service banned recreational rock climbing at Rock Cave, a sacred and historical site to the Washoe people. The Access Group, a climbing advocacy group, challenged the decision as a violation of the Establishment Clause and as arbitrary and capricious under the Administrative Procedures Act. The District Court granted the US Forest Service’s motion for summary judgment, and The Access Group appealed. The Ninth Circuit affirmed, and Judge Wallace submitted a separate concurrence.

Get the decision at$file/0515585.pdf?openelement

Agua Caliente will not appeal

See the article below regarding Agua Caliente’s decision not to appeal its case to the Supreme Court.

Indian tribe settles with state on reporting political donations
By James P. Sweeney
Copley News Service

SACRAMENTO — Ending a five-year legal fight that threatened to punch a big hole in California’s political disclosure law, a Palm Springs Indian tribe has agreed to fully abide by the state’s campaign and lobbying rules.

In a settlement reached quietly with the state’s Fair Political Practices Commission, the Agua Caliente band also waived its sovereign immunity against prosecution for future violations of those rules.

And the tribe agreed not to appeal a Dec. 21 decision by the California Supreme Court, which concluded that the state’s need to protect its elections and political system trumped the tribe’s sovereign immunity from lawsuits. This means the Supreme Court ruling, reached on a 4-3 vote, stands.

“It is a big win for the state, a big win for the people and a big win for disclosure,” said Robert Stern, president of the Center for Governmental Studies and a co-author of California’s landmark Political Reform Act.

“This was a very important case because the tribes are so heavily invested now in campaigning in California,” Stern said. “If it had gone the other way, disclosure would have taken a huge hit.”
Agua Caliente Chairman Richard Milanovich said he was pleased with the settlement and happy to have the litigation behind him. He noted that three justices on a sharply divided state Supreme Court had agreed with the tribe.

“If we were to take this any further, say up to the U.S. Supreme Court, the makeup of the court today is such that it did not look very favorable,” Milanovich said.

A loss before the nation’s highest court would have had implications nationwide and would have opened another crack in tribal sovereignty.

“There are many tribal organizations and tribes that are going to be pleased that we took the action that we took because this would have had a blanket effect across the country,” Milanovich said. “So, was this the right case to try at the time? Probably not.”

The state sued in the summer of 2002, seeking to impose a more than $7.5 million fine against the tribe for failing to report some contributions and disclose others by the state’s deadlines. Nearly all of the state’s other tribes willingly comply with the political reporting law.

In the settlement, Agua Caliente agreed to pay the state $200,000. While the amount represents a small fraction of the original penalty sought, both Stern and Karen Getman, the former FPPC chairwoman who initiated the case, said it represents one of the largest fines the agency has ever collected.

“That’s a very big fine . . . but this case wasn’t about the money,” Getman said. “The issues were much bigger.”

As Indian casinos have grown into a nearly $8 billion industry in California, wealthy tribes have become political heavyweights that routinely give six-figure and occasionally multimillion-dollar contributions to candidates and campaigns.

Agua Caliente is one of the state’s biggest political donors, giving generously to candidates of both major political parties and even bankrolling a statewide ballot measure, the unsuccessful 2004 Indian gaming initiative, Proposition 70.

The state’s lawsuit alleged the tribe failed to report more than $8 million in campaign contributions within timelines designed to let the public know who is backing candidates and ballot measures.

Agua Caliente argued that it was reporting all the required information on its Web site. But state attorneys alleged that some contributions were not disclosed until long after the elections were held.

In one case, investigators said the tribe failed to report a six-figure contribution in 2002 to Proposition 51, which would have provided $15 million a year for transportation projects including a rail line from Los Angeles to the Palm Springs area, where Agua Caliente operates two casinos.

Nonetheless, the state’s case looked to be a legal long shot. It was almost impossible to overcome the legal shield provided by a tribe’s sovereign immunity, many warned Getman and her staff.
Then-Attorney General Bill Lockyer declined to represent the FPPC in the case, forcing the agency to hire private counsel. After the FPPC won an early round, Lockyer reconsidered and began filing briefs in support of the commission. But a private attorney — Charity Kenyon of Sacramento — remained the lead counsel.

“Everyone at the FPPC should feel more than a little vindicated,” Getman said yesterday. “It took a lot of hard work, a lot of guts. . . . It was a very important statement that the commission had to make.”

The issues in play could be kept alive by a parallel case pending against the Santa Rosa Tachi tribe of Lemoore, although that seems unlikely. The Santa Rosa litigation has been on hold pending the outcome of the Agua Caliente case.

Santa Rosa Chairman Clarence Atwell and the tribe’s attorney could not be reached to comment yesterday.

Kathryn Rand, a law professor and co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, said the case may illustrate a new relationship developing between states and tribes.

“On the face of it, the application of state law to a tribe is absolutely a slam dunk in favor of the tribe,” Rand said. “But given that the tribe has involved itself in state politics to the extent it has, it makes the issues a little trickier.

“I think we’re going to see more of that as Indian gaming continues to grow and remain controversial. We will see the usual rules of tribal-state interaction adapting to this new environment.”