SCOTUSwiki Preview: Carcieri v. Kempthorne

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 Islands 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 Tribes 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.

The litigation now before the Court arises from the 1991 purchase by the Tribes housing authority of a thirty-one-acre parcel of land in Charlestown, Rhode Island. Although the parcel was part of the aboriginal lands at issue in the Tribes 1975 lawsuit, it is not part of the settlement lands. Arguing that it was not subject to state or local law, the Tribe began construction of a housing project on the parcel without obtaining building or sewage disposal system permits, but the town subsequently obtained an injunction that prohibited the Tribe from continuing to build without the required permits.

Seeking to continue construction without having to adhere to state law, the Tribe asked the Secretary of the Department of the Interior to take the parcel into trust under section 5 of the Indian Reorganization Act (IRA), which the Secretary did in 1998.

After unsuccessfully appealing the Secretarys decision to the Interior Board of Indian Appeals, Rhode Island Governor Donald Carcieri, the State, and the Town of Charlestown filed this action challenging the decision in the U.S. District Court for the District of Rhode Island, naming the Secretary of the Interior (now Dirk Kempthorne) and Franklin Keel, Eastern Area Director of the BIA, as defendants. The district court affirmed the Secretarys decision.

On appeal, the en banc First Circuit over the dissent of two judges also affirmed. The State first attempted to claim that because the Tribe was not federally recognized until 1983, nearly fifty years after the IRA went into effect, it cannot receive benefits under the IRA, which only authorizes the Secretary to acquire trust land for Indians belonging to any recognized Indian tribe now under Federal jurisdiction. The Secretary countered that now means at the moment the Secretary invokes the statute. Applying the two-step Chevron test, the court concluded that the text, context, and policy of the IRA are ambiguous and that the Secretarys interpretation is a permissible construction of the statute.

The court of appeals next turned to, and ultimately rejected, Rhode Islands argument that the Settlement Act explicitly and implicitly restricts the Tribes ability to assert any sovereignty over new land in Rhode Island and the Secretarys power to take land into trust under the IRA. Although the court agreed that the Settlement Act had indeed extinguished the Tribes aboriginal title, it also concluded that trust acquisition is not incompatible with the absence of aboriginal title. Moreover, the court found nothing in the Settlement Act reflecting Congresss intent to weaken or repeal the Secretarys trust acquisition powers under the IRA. The court also dismissed Rhode Islands alternate argument that even if the Parcel may be taken into trust, it is still subject to state law based on the text of the Settlement Act, which provides that the settlement lands shall be subject to the civil and criminal jurisdiction of the State of Rhode Island. Emphasizing that [b]y its terms, the Settlement Act applies state law only to the 1800 acres of settlement lands, the court reasoned that because the parcel taken into trust is not part of the settlement lands, the Act does not require local law to apply.

Finally, the court of appeals rejected the panoply of constitutional and administrative procedure arguments advanced by the State.

Two judges dissented from the holding of the en banc court. Judge Howard would have held that the Settlement Act authorizes the Secretary to take the parcel into a restricted trust, subject to Rhode Islands continued criminal and civil jurisdiction. Senior Judge Selya agreed with Judge Howard, but wrote separately to emphasize his disagreement with the majoritys narrow and literal reading of the Settlement Act.

 Petition for Certiorari

Rhode Island sought certiorari in the United States Supreme Court, which on February 25, 2008 granted review on two of the three questions presented by the State.

In its first question presented, Rhode Island asserted that the First Circuit ignored the holdings of the Fifth and Ninth Circuits and cavalierly discarded Supreme Court precedent, all of which have held that Congress temporally limited the IRA to those tribes federally recognized on the statutes effective date in 1934. Certiorari is warranted, according to the State, because the statutes use of the phrase now under Federal jurisdiction leads to the conclusion that absent an act of Congress later-recognized tribes are not covered by (and may not avail themselves of the benefits of) the IRA. That Congress intended now to refer to the date of enactment is also demonstrated, the State contended, by its use of the phrase now or hereafter in another provision of the IRA. Moreover, the State argued, Congresss decision to require Indians to opt out of the IRA within one year of June 18, 1934, rather than within one year of a tribe becoming federally recognized, reflects its intent that the IRA benefit those Indians federally recognized at the time of passage. Finally, Rhode Island pointed out that since 1934, Congress has enacted legislation to specifically bring tribes recognized after the effective date of the IRA under the Act, thereby confirming that the IRA does not otherwise apply to tribes that were not recognized as of 1934.

Turning to its second question presented, the State stressed that certiorari is necessary to determine how the Settlement Act and other Indian land claims settlement acts that also extinguished aboriginal title affect a tribes trust privileges given the profound jurisdictional impact trust acquisitions have on states, local communities, and the public. The First Circuits opinion, Rhode Island asserted, clashes with decisions from the Second and Ninth Circuits as well as Sherrill v. Oneida Indian Nation (2005), in which the Supreme Court accept[ed] that aboriginal title includes a sovereignty interest. Thus, according to the State, because the Act simultaneously abrogated the Tribes aboriginal title everywhere in the United States and extinguished claims by the Tribe (as well as any of its successors) in any interest in or right involving land in Rhode Island, the plain language of the Settlement Act expressly prohibits the Secretarys actions in this case. Likewise, the State reasoned, the Acts provision barring the Secretary from any additional duties or liabilities concerning land in the state prevents taking the parcel into trust. As a matter of law and logic, Rhode Island also contended that Congress itself defines Indian country in such a way that the extinguishment of aboriginal title precludes later trust acquisitions.

Opposing certiorari, the Secretary began by defending the First Circuits holding that the IRAs use of now is ambiguous and that the Secretarys interpretation was reasonable. The Secretary downplayed the significance of the Supreme Courts decision in United States v. John (1978), explaining that the Courts opinion contains no analysis on this point and, more importantly, was entirely unnecessary to its holding. And in any event, the Secretary continued, Interior regulations adopted after John reject Rhode Islands interpretation of the IRA. Finally, the Secretary asserted, there is no square conflict with the decisions of the Fifth and Ninth Circuits.

Addressing the States second question presented, the Secretary deemed the question whether aboriginal title includes a sovereignty interest irrelevant to the issue at hand, which in the Secretarys view is whether Congress in enacting the Settlement Act implicitly limited the authority of the Secretary to take land into trust for the Tribe pursuant to the IRA. Implicit repeals, the Secretary emphasized, are disfavored. Additionally, the Secretary explained that when Congress has limited later trust acquisition powers, it has done so explicitly. The Secretary also rejected the States contention that the decisions of the Second and Ninth Circuits conflict with the First Circuits opinion. Lastly, in direct contrast to Rhode Islands assertions, the Secretary claimed that Sherrill and the IRAs treatment of Indian country support the conclusion that the extinguishment of aboriginal title is irrelevant to the Tribes right to avail itself of the benefits of trust acquisition.

In its reply brief, Rhode Island disputed that the IRAs use of now is ambiguous. To the contrary, Rhode Island maintained, because the statute is unambiguous, the Secretarys erroneous interpretation should receive no deference. Rhode Island also sought to rebut the Secretarys assertion that the questions presented were not important, noting that at least nine settlement acts contain congressional extinguishments of Indian interests in land, that sixteen states filed an amicus brief supporting Rhode Island, and that the National Congress of American Indians along with over sixty Indian tribes and other Indian organizations filed briefs in support of the Secretary.

Merits Briefs

I. Petitioners Merits Briefs

Petitioners Governor Donald Carcieri, the Town of Charlestown, and the State of Rhode Island each filed separate briefs on the merits. Carcieris brief focuses on the IRA, while the briefs of the Town and the States focus on different aspects of the Settlement Act. Twenty-one states also filed a joint amicus brief in support of petitioners.

Petitioner Governor Donald Carcieris Brief

In his opening brief, Governor Carcieri, represented by former Solicitor General Theodore Olsen, asserts that the IRA and the Settlement Act independently prohibit the Secretary from exercising his trust authority over the parcel and, as a result, require reversal of the First Circuits decision.

As to the IRA, Carcieri first contends that the language, structure, and purpose of the IRA prevent the Secretary from using his trust authority here. Carcieri claims that Congresss use of the phrase recognized Indian tribe now under Federal jurisdiction unambiguously excludes the Narragansetts, who were neither federally recognized nor under federal jurisdiction when the IRA was enacted in 1934. Defining now to mean at the time of application, as the First Circuit did, both conflicts with the terms plain dictionary meaning and contrary to the principle that statutes should be interpreted to give effect to each of their terms renders it superfluous.

Second, Carcieri argues that the context in which the term now appears reinforces the conclusion that Congress intended the definition of Indian to incorporate conditions at the time of the IRAs enactment. Specifically, he notes, the IRA also provides benefits for persons who are descendants of . . . members [of any recognized Indian tribe now under Federal jurisdiction] who were, on June 1, 1934, residing within the present boundaries of any Indian reservation. Carcieri asserts that by focusing on the present boundaries and providing the June 1, 1934 limitation, this alternative definition of Indianlike the one used by the Secretaryclearly addresses the time of enactment. Additionally, because Congress used now in other parts of the IRA as well as in other statutes to mean at the time of enactment, the same definition should apply here. When Congress intended a statute to apply on an on-going basis, Carcieri observes, it employs phrases such as the now or hereafter used in another section of the IRA.

Third, citing Montana v. Kennedy (1961) and Franklin v. United States (1910) generally and John for the IRA specifically, Carcieri claims that the Supreme Court has consistently held that when Congress uses now in a statute, it refers to the time of enactment, rather than to the time when the statute is invoked. In Carcieris view, every other appellate court to have addressed this issue has also reached the same conclusion. Although the First Circuit supported its argument with a lone example in which Congress used now to refer to a time other than the moment of enactment, it was the specific application of that statute, rather than the term itself, Carcieri argues, that made it nonsensical to read now as referring to the time of enactment.

Lastly, to take the parcel into trust, Carcieri alleges, would vitiate the IRAs original objective of remedying the loss of tribal land attributable to the governments failed allotment policy. Because the Narragansetts were not under federal jurisdiction during the allotment policy, and as a result, not harmed by that policy, Carcieri reasons, Congress did not intend the IRA to apply to the Tribe. Moreover, Carcieri declares that congressional debate records indicate now was added to the definition of Indian to specifically prevent later tribes from seeking IRA benefits. In rejecting the First Circuits conclusion that the phrase now under Federal jurisdiction may have applied not to a recognized Indian tribe, but instead to all persons of Indian descent, Carcieri notes that no party below had endorsed such an ungrammatical interpretation.

Even if the Tribe is covered by the IRA, Carcieri contends in the alternative that the text and purpose of the Settlement Act independently prohibit the Secretary from taking the parcel into trust. The Settlement Act plainly states that it extinguished all claims based upon any interest in or right involving . . . land or natural resources in Rhode Island. Taking land into trust, Carcieri asserts, is a quintessential claim based upon an interest in or right involving land. Not only did the First Circuit misread the Settlement Act, but it also was incorrect to suggest that the States argument depended on finding that the Act implicitly repealed the IRA; instead, the States main contention was that the Act explicitly forbids the Secretary from exercising his trust powers over the parcel.

After characterizing the First Circuit as having concluded that the parcels trust acquisition was proper because the Settlement Act applies to the Tribe, but not the Secretary, Carcieri warns that such an interpretation would render the extinguishment clause an absolute nullity, as no tribe can take land into trust without the Secretary. Echoing the dissent below, Carcieri remarks that [s]uch excessive literalism defies common sense. Moreover, the claims extinguishment provision, Carcieri points out, also applies to any successor in interest to the Tribe, such as the Secretary after taking land into trust for a tribe.

Allowing the First Circuits decision to stand, Carcieri concludes, would undermine the delicately balanced sovereignty interests of the State, Town, and Tribe. Carcieri opines that creating Indian Country within Rhode Island for the first time since Statehood will complicate law enforcement, prevent the State from applying its laws uniformly, and lead to the odd result that the Tribe is free to exercise territorial sovereignty over land anywhere in the State except on the settlement lands. Furthermore, Congress intended the Settlement Act to foreclose trust acquisitions in Rhode Island, because the Act was modeled on (and closely resembles) the Alaska Native Claims Settlement Act which, the Supreme Court has previously held, prevents any assertion of tribal sovereignty over newly acquired land.

Petitioner Town of Charlestowns Brief

The Town of Charlestown begins by emphasizing its unique interest in this dispute: unlike the other state actors, it explains, it frequently interacts with the Tribe to address vital issues such as zoning, law enforcement jurisdiction, and taxation. At the same time, the Town minimizes the Tribes interests, noting that because a nonprofit corporation owns the parcel, it would not be subject to property taxes even without the trust.

While echoing Carcieris IRA argument in its entirety, the Town additionally observes that the federal government itself has historically viewed the IRA as temporally limited: from 1934 to 1975, the Secretary has only taken land into trust under the IRA for tribes that were federally recognized when the IRA was enacted. The Town also cites two cases in which the Secretary did not dispute a courts conclusion that IRA benefits are limited to tribes recognized in 1934.

Next, the Town charges that allowing the Secretary to convert the parcel into trust violates both of the Settlement Acts extinguishment provisions as well as the intent of the parties and Congress. First, the Town reciting the similar property and government interests between aboriginal land and trust land concludes that when Congress extinguishes aboriginal title, as it has in Rhode Island, it necessarily prohibits trust conversions under the IRA because trust title is essentially aboriginal title under a different name. Seeking to counter the First Circuits reliance on Sherrill for the proposition that the IRA provides an alternative means of establishing tribal sovereignty over land, the Town contends that Sherrill did not deal with post-IRA congressional action like the Settlement Act in this case.

Second, the Town argues that the Settlement Acts extinguishment of all Indian claims involving rights and interests in land precludes the establishment of Indian territorial sovereignty, such as trust land. Also, because the Supreme Court has held that Indian use and occupancy includes the exercise of Indian territorial sovereignty, the claims extinguishment provision which specifically applies to claims based on the use and occupancy of land prohibits Indian trust acquisitions in the state.

Third, observing that the Act applies to any successor in interest, the Town contends that the Settlement Act not only bars the Tribe from asserting sovereignty claims, but it also bars the federal government from making the same claims on the Tribes behalf. In addition, the Town explains that another section of the Act specifically bars the federal government from any future land-based duties in Rhode Island.

Lastly, the Town maintains that the plain language of the Act and the intent of the parties and Congress are incompatible with trust claims. According to the Town, as this case demonstrates, re-establishing aboriginal land in Rhode Island conflicts with one of the main purposes of the Settlement Act by encouraging, rather than resolving, claims between the Tribe, the Town, and the State.

Petitioner State of Rhode Islands Brief

Like the other petitioners, the State argues that the Tribe does not qualify as a recognized Indian tribe for purposes of the IRA, but its brief concentrates primarily on the Settlement Act. Unlike the Towns brief, which focused on defining trust acquisition as a right or interest in land, the States Settlement Act section primarily aims to define trust acquisition as impermissibly allowing the Tribe to obtain the use and occupancy of the parcel. In the States view, when a tribe obtains any authority to regulate land and be subject only to limited state regulation, it obtains the use and occupancy of land. Thus, were the Secretary allowed to take the parcel into trust for the Tribe, the State contends, it would give the Tribe exactly what it relinquished under the Settlement Act. Moreover, the State after commenting that it is the smallest and one of the most densely populated states asserts that practical considerations counsel against permitting the Secretarys trust acquisition. Worse still, allowing the trust acquisition of this small parcel, the State warns, could snowball into the Secretary having the virtually unlimited discretion to take hundreds of thousands of additional acres of land into trust in Rhode Island and other states.

II. Respondents 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 IRAs definition of Indian.

Even if the definition of Indian has some bearing on the Secretarys trust authority for a tribe, the Secretary argues that the immediate context of now suggests that Congress meant at the time of the statutes 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 Indians 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 IRAs 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 Carcieris interpretation of John, arguing that the Supreme Courts discussion of the IRAs 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 IRAs 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 governments 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 Carcieris reading of the IRAs 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. Congresss 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.

Turning to the Settlement Act, the Secretary first charges that the text, structure, purpose, and history of the Act indicate that it did not repeal or cabin his trust acquisition authority. To the contrary, the only language in the Act that bears on trust authority suggests that the authority is preserved. According to the Secretary, because the extinguishment provision addresses past not future land claims, the Tribes open market purchase of the parcel and subsequent trust application is not a claim of sovereignty based on aboriginal title, but is rather, as the Supreme Court held in Sherrill, the proper avenue to reestablish sovereign authority over territory. Explaining that the purpose of the Settlement Act was to resolve potential claims based on violations of the Indian Nonintercourse Act, the Secretary maintains that the Act was not meant as a comprehensive resolution of all future land issues in Rhode Island.

Second, a review of other Indian land claims settlement acts, the Secretary believes, suggests that the Settlement Act does not restrict his trust authority. The Secretary points out specific examples of settlement acts that, in contrast to the Tribes Act, directly address the issue of future trust acquisitions. Rejecting Carcieris parallels to the Alaska Native Claims Settlement Act, the Secretary asserts that although the two are similar, the statutes diverge in significant respects mainly because, unlike ANCSA, the Settlement Act facilitated the return to, rather than the elimination of, federal authority over the Tribes land.

Lastly, any doubt in the Settlement Act, the Secretary remarks, should be liberally construed in favor of the Tribe. The Secretary observes that doing so will not vitiate the bargain struck by the parties: the State still obtained clear title to the disputed lands and gained civil and criminal jurisdiction over the settlement lands. Ultimately, the Secretary claims that because the IRA can co-exist with the Settlement Act, both should be given effect by upholding the Secretarys ability to take the parcel into trust for the Tribe.

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.