"I think it’s safe to say after today’s oral argument in Carcieri v. Kempthorne that the chances the Supreme Court will affirm the First Circuit’s decision are pretty small. Of course, what happens at oral argument doesn’t guarantee any outcomes, and any reading of the cold transcript can create misconceptions. But a few comments:

First, Ted Olson had the much easier argument to make and he exploited that advantage mercilessly. He had the benefit of the plain language (”now” meaning 1934, when 25 U.S.C. 465 was enacted). He had the benefit of 15 statutes that purported to extend the benefits of Section 465 to newly recognized tribes, a true sound bite if there ever was one. He had the benefit of the legislative colloquy (as it was called in oral argument) between Sen. Wheeler and Indian Affairs Commissioner Collier which seemed to support his view. He had the benefit of a 1978 decision (U.S. v. John) that assumed without deciding that his interpretation was correct. And he had perhaps the most friendly audience to his client, a state government, in the history of the U.S. Supreme Court — the Roberts Court.

The government’s attorney, Deanne Maynard, had a difficult time getting past all of these superficial issues. On the face of it, each argument above is a winner, but there was a reason why the First Circuit sitting en banc unanimously (6-0) rejected each of these arguments below. Unfortunately for the government and the Tribe, the winning arguments for the respondents are based in history, statutory construction and nuance, and other characteristics difficult to parse out when facing a barrage of questions from eight Justices (no questions or commentary from Justice Thomas, as usual). Even when Justice Stevens attempted to explain the statutory construction argument in regards to the definition of “Indian tribe” he got bogged down and never could finish his point."

Get the Story:
Commentary on the Carcieri Oral Argument (Turtle Talk 11/4)

Supreme Court Documents:
Oral Argument Transcript | Docket Sheet | Questions Presented | Order List

1st Circuit Decisions:
En Banc (July 20, 2007) | Panel (February 9, 2005)

Briefs and Other Documents:
Carcieri v. Kempthorne (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Related Stories:
Supreme Court to hear land-into-trust case (11/3)
Still no agreement on land-into-trust hearing (10/31)
Rhode Island governor angry over hearing impasse (10/30)
SCOTUSBlog: Jockeying for land-into-trust hearing (10/30)
Fight over land-into-trust hearing continues (10/28)
'Childish' fight over land-into-trust arguments (10/24)
Town backs lawyer to argue land-into-trust case (10/17)
Column: Land-into-trust case an important one (10/15)
Town weighs land eyed by Narragansett Tribe (10/15)
Prosecutors seek alibis in Aquash murder case (10/15)
Land-into-trust argument fight gets even more nasty (10/9)
Attorneys at 'impasse' for land-into-trust arguments (10/8)
U.S. Supreme Court adds Indian law cases to docket (10/7)
Arguments still not settled in land-into-trust case (10/7)
Narragansett Tribe won't argue at Supreme Court (10/6)
SCOTUSBlog: Narragansett land-into-trust case (9/17)
Former Bush lawyer paid $200K for land-into-trust case (9/12)
State argues over arguments in land-into-trust case (9/8)
Former Bush lawyer to argue land-into-trust case (6/6)
Court takes land-into-trust case (2/26)
U.S. Supreme Court accepts land-into-trust case (2/25)
High court weighs Narragansett land-into-trust (2/22)
Groups file brief in pending land-into-trust case (02/06)
Supreme Court brief backs land-into-trust (1/29)