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Attorney: Richard Guest
Case Update
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.
On Monday, September 24, 2007, the Court conducted its opening conference for the October Term 2007, and denied review in all three Indian law cases considered (see Update
Memoranda of Cases). At present, petitions for cert are pending in four Indian law cases. However, we anticipate a number of additional petitions for cert will be filed in the next several weeks, including one in Carcieri v. Kempthorne, a case which began as a broad challenge by the State of Rhode Island to the Secretary's authority to take land into trust on behalf of Indians and Indian tribes. The U.S. Court of Appeals for the First Circuit upheld the Secretary's authority to take land into trust on behalf of the Narragansett Tribe and rejected all of the state's arguments, including: (1) Section 5 of the Indian Reorganization Act (IRA) is an unconstitutional delegation of legislative authority, violates the 10th Amendment and violates the Enclave Clause of the U.S. Constitution; (2) Section 5 of the IRA applies only to tribes that were "recognized Indian tribes now under federal recognition" in 1934, thus excluding the Narragansett Tribe and any other tribe administratively recognized after 1934 from the benefits of the IRA; and (3) the Rhode Island Settlement Act implicitly precludes the acquisition of any additional new trust lands by the Secretary in the State of Rhode Island, or implicitly restricts any such acquisition of trust lands to be subject to state civil and criminal laws and jurisdiction. We anticipate that a number of other states will be filing an amicus brief(s) in support of Rhode Island as part a larger coordinated strategy by these states to mount more significant legal challenges to the acquisition of trust land for the benefit of Indians and Indian tribes. The Tribal Supreme Court Project will continue to work closely with the attorneys for the Tribe and the United States to oppose review by the Court.
The Project remains
very busy developing strategy and coordinating
resources in a number of Indian law cases
recently decided by, or currently pending
in, the various U.S. Courts of Appeal where
review by the U.S. Supreme Court may be
contemplated. One example is State of Texas
v. U.S. in which the U.S. Court of Appeals
for the Fifth Circuit issued a fragmented
opinion which held that the Secretarial
Procedures Regulation (25 C.F.R. Part 291)
is invalid. The Secretarial Procedures
Regulation, promulgated pursuant to the
Indian Gaming Regulatory Act, provided
an alternative process for approval of
a Class III gaming compact when a state
refuses to negotiate in good faith and
raises a defense of Eleventh Amendment
immunity from suit under Seminole Tribe.
You can find copies of briefs and opinions
on the major cases we track on the NARF
website.
Articles and Materials
What is the Tribal Supreme Court Project?
Update Memoranda of Cases
Online Archive of Court Documents
Glossary of Terms
We Stand United Before the Court -- by Tracy Labin, 37 New Eng. L. Rev. 695 (2002)
Supreme Court Bulletins (National Indian Law Library)
Links to Other Websites
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