Carcieri v. Kempthorne

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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.
http://www.scotuswiki.com/index.php?title=Carcieri_v._Kempthorne

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.

Conference at ITCA

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Inter Tribal Council of Arizona, Inc.
“Future Directions of Tribal Health Research in Arizona”
Radisson Fort McDowell Resort & Casino
October 30-31, 2008

  • What is Community Based Participatory Research?
  • How does “Academic Freedom” apply to Indian Country?
  • What is the history of tribal health resarch in Arizona?
  • Where do we go from here?

Professor Tsosie will be a presenter during this event.

Quilt Auction to benefit ILP Scholarships

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ASU College of Law and Indian Legal Program alumnus Marlene Jones (JD/MBA ’97) donated a beautiful quilt to the ILP to help raise scholarship funds for students and commemorate the 20 Years of the Indian Gaming Regulatory Act. The quilt contains ASU colors and a southwest print to connect with the region and includes a flag print to represent the federal law theme. (See attached photos)
The starting bid is $150 and will be increased in $5.00 increments. You can view the quilt outside of Room 236 now until October 14th. After that date the quilt will be shown at the IGRA conference at Fort McDowell. The bidding will close at 4:00 p.m. on Friday, October 17th. The winner will be announced before the closing remarks of the conference.
If you are not attending the conference but would like to support this fundraiser, you can email Kate Rosier at Kathlene.Rosier@asu.edu with your bid. Please place “QUILT” in the subject line so we do not miss it. Kate will let you know if your bid is the highest. ILP staff will check for emails during the event and update the auction sheet at the event with the email bids. Please share with anyone you think would be interested. Thank you.
Let the bidding begin!

NARF: Tribal Supreme Court Project Update

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This information was provided by the Native American Rights Fund. Visit their website for more information. http://www.narf.org/

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 http://www.narf.org/sct/index.html.

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.

Two Weeks until the IGRA Conference: Register Now

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Indian Country’s Winning Hand: 20 Years of IGRA
October 16-17, 2008
Radisson Fort McDowell Resort & Casino
Scottsdale/Fountain Hills, Arizona
Visit the conference website to learn more about the conference and registration for the event!www.law.asu.edu/ILP
Stay the weekend so you can attend NCAI!
65th Annual Convention and Tradeshow
Sunday, October 19, 2008 1:00 PM – Friday, October 24, 2008 1:00 PM
Phoenix Convention Center

2 New US Supreme Court Cases

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

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

Petition for Cert: http://www.scotusblog.com/wp/wp-content/uploads/2008/09/07-1372_pet.pdf
Hawaii Supreme Court Decision: Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Hawaii 2008) http://www.state.hi.us/jud/opinions/sct/2008/25570.pdf

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: http://www.narf.org/sct/usvnavajonation/petition_for_cert.pdf
Appellate Court Decision: Navajo Nation v. US, No. 06-5059 (Fed. Ct. 2007), http://www.cafc.uscourts.gov/opinions/06-5059.pdf
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.”

ALUMNI: Hodahkwen (’02) Named Deputy General Counsel

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HODAHKWEN NAMED DEPUTY GENERAL COUNSEL
Will Continue to Advise the Governor on Tribal Affairs

PHOENIX — Governor Janet Napolitano has announced that Marnie Hodahkwen, who has served as the Governor’s policy advisor for tribal affairs since August of 2004, has taken over as deputy general counsel to the Governor. Along with her new responsibilities, Hodahkwen will continue to be the Governor’s tribal affairs advisor.

“Marnie is a tremendously talented public servant, and Arizona has benefited from her excellent work in the past four years,” Governor Napolitano said. “I look forward to seeing all that she can do in her new position as deputy general counsel.”

As the Governor’s policy advisor for tribal affairs, Hodahkwen serves as the Governor’s liaison with 22 tribal governments and works in a wide variety of policy areas. Before joining the Governor’s office, she practiced law in the areas of commercial litigation and Indian law in Phoenix at the law firm Quarles & Brady, Streich Lang. She holds both her bachelor’s and law degrees from Arizona State University. A member of the Prairie Band Potawatomi Nation, Hodahkwen is one of the founding members of the Native American Bar Association of Arizona and serves on the Board of Directors of the Hopi Education Endowment Fund, as well as the Advisory Council of the Indian Legal Program at ASU’s Sandra Day O’Connor College of Law. Hodahkwen becomes deputy general counsel as Nicole Davis leaves the position for the state Attorney General’s office, in order to become the Section Chief of the Civil and Criminal Litigation and Advice Section of the Child and Family Protection Division. Davis has served in the Governor’s Office since the beginning of Governor Napolitano’s term in 2003.

The Arizona Project

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RENOWNED PLAYWRIGHT ANNA DEAVERE SMITH TO PRESENT NEW WORK INSPIRED BY SUPREME COURT JUSTICE SANDRA DAY O’CONNOR

“The Arizona Project” has been developed through Future Arts Research, a groundbreaking artist research program at Arizona State University

Debut Performances at the Herberger Theater in Phoenix, November 5, 7 and 8 2008

Tickets:
Premium Seating & VIP Post Show Reception – $100
General admission – $25
Student admission – $7

PHOENIX, September 12, 2008 — Award-winning playwright and performer Anna Deavere Smith will debut a new work this November exploring women’s relationships to justice and the law. The Arizona Project is a one-woman play commissioned by Bruce Ferguson, Director of Future Arts Research (F.A.R.), a groundbreaking new artist-driven research program at Arizona State University in Phoenix. Smith is among the artists inaugurating the F.A.R. program, which launched in 2008. The Arizona Project was inspired by an ongoing series of initiatives of the advocacy group Arizona Lawyers Honoring Justice O’Connor.

As in her well known previous works, Smith presents several interwoven monologues in this one-woman performance, drawing verbatim from a series of interviews she conducted over the course of three weeks in 2008. Her work honors the 2006 naming of Arizona State University’s law school for retired Supreme Court Justice Sandra Day O’Connor–the first U.S. law school to be named for a woman.

“Anna Deavere Smith’s incisive, passionate work overlaps multiple genres, including documentary film, journalism, and biography, thus making The Arizona Project an exciting contribution to the inaugural year of F.A.R.,” said Program Director Bruce Ferguson. “Anna’s interdisciplinary approach parallels that of F.A.R., which re-envisions the traditional artist residency as an opportunity for participants to work with multiple departments throughout the university.”

The Arizona Project presents the stories of Justice O’Connor, as well as those of more than 30 women with relationships to the American judicial system, including prison system employees, incarcerated women, female lawyers, activists and others. Without identifying a specific social agenda, The Arizona Project touches upon several contemporary issues through these diverse personal stories, including immigration, domestic violence, and the challenges faced by women living on Native American reservations.

The naming of the Sandra Day O’Connor College of Law at ASU honors Justice O’Connor’s career-long dedication to public service, her intellectual vigor and her sense of fair-mindedness. During the course of her career O’Connor served in all three branches of the Arizona State government, including two terms in the Senate, one as Majority Leader. In 1981 she became the first woman ever to serve on the United States Supreme Court. Her appointment by President Ronald Regan marked a profound shift in the types of professional opportunities available to women on the national stage. During her tenure, O’Connor helped define the balance of power on many of the issues of broadest concern to the nation, including abortion, affirmative action, the death penalty and religion. She retired from the Supreme Court after 24 years of service in 2005.

About Anna Deavere Smith
Writer, performer and teacher Anna Deavere Smith has been a noted figure in American theater for almost two decades. Throughout the course of her career, she has earned acclaim for her investigations of American identities, as well as for her singular performance style. Through the use of social commentary and stimulation of public dialogue, Smith’s work extends beyond the traditional boundaries of the performing arts.

A recipient of the 1996 MacArthur Fellowship, Smith’s best known works include Fires in the Mirror, examining the racial tension between blacks and Jews which culminated in the 1991 riots in Crown Heights, Brooklyn. She received a Drama Desk Award and a Pulitzer Prize nomination for this work. In Twilight: Los Angeles 1992, Smith examined the civil unrest which resulted from the Rodney King verdict in Los Angeles. She also received a Drama Desk award for this work, as well as two Tony Award nominations. Her most recent work, Let Me Down Easy, explores the fragility and resilience of the human body.

Smith has appeared in several films, including Philadelphia and The American President, and has recurring roles on The West Wing and The Practice. She can be seen Spring 2009 in the film Rachael Getting Married with Anne Hathaway. She is also the author of two books, Talk to Me: Travels in Media and Politics (2001), and Letters to a Young Artist: Straight-up Advice on Making a Life in the Arts-For Actors, Performers, Writers, and Artists of Every Kind (2006). She is a tenured professor at the Tisch School of Arts at New York University and teaches courses on the art of listening at the NYU School of Law. She has also taught at Stanford University and the Yale School of Medicine.

About F.A.R.
A groundbreaking artist-driven research program based in downtown Phoenix, F.A.R. (Future Arts Research) will host 20—24 leading national and international artists, critics and scholars each year. Working with an applied-research methodology, participants will collaborate with various departments within the university and work closely with the surrounding community to explore new concepts, test new ideas, and present the results of their research. F.A.R. is an initiative of the university president’s office, independent of the ASU’s Herberger College of the Arts. In its first phase, F.A.R. participants will focus on three areas important to Phoenix: new technologies in the arts; desert aesthetics; and issues of justice and human rights.

“The Arizona Project” will be presented in three performances on November 5, 7 and 8 at the Herberger Theater in Phoenix. Ticket sales begin Sept 29, 2008.