01:00 AM EDT on Tuesday, October 7, 2008

By Katie Mulvaney

Journal Staff Writer

It may come down to drawing straws after all, at least according to one of the lawyers challenging the federal government’s right to take 31 acres into trust for the Narragansett Indian tribe.

The U.S. Supreme Court yesterday denied requests that more than one lawyer be allowed to represent the state’s interests in oral arguments before the nation’s highest court on Nov. 3.

That decision leaves it to the Town of Charlestown, the attorney general’s office and Governor Carcieri to sort out who will get the half-hour of arguing time, according to Joseph S. Larisa Jr., Charlestown’s assistant solicitor on Indian affairs.

“On our side, one person will have to be chosen,” Larisa said, adding “The time to name that person is now. We have twenty-five days left.”

For nearly a decade, the state and town have been joined in opposing the U.S. Department of Interior’s authority to hold the land in Charlestown in trust for the Narragansetts.

Trust status frees the property from most state and local laws, placing it under tribal and federal control. State and local officials fear it would enable the tribe to build a casino or some other venture outside of state oversight.

In February, the Supreme Court agreed to hear the state and town’s appeal of a lower court ruling allowing the federal government to hold the land in trust.

Following that decision, Carcieri’s office, Attorney General Patrick C. Lynch’s office and Charlestown filed separate briefs in the case and have since sparred about who should argue the case.

Larisa — who accused Lynch of seeking “face time before the court” — had been seeking 15 minutes of arguing time, but following yesterday’s ruling said he alone should argue the state’s case based on his “experience and knowledge of the case.” As former Gov. Lincoln Almond’s chief of staff, Larisa has been involved since the case was launched.

Carcieri and Lynch had asked that the state’s arguments be split between former U.S. Solicitor General Theodore B. Olson and an unnamed lawyer from the attorney general’s office.

The governor hired Olson shortly after the Supreme Court agreed to hear the appeal. Olson has argued more than 50 cases before the high court, including the one that settled the 2000 presidential election in George W. Bush’s favor.

Supreme Court rules allot each side a half-hour for oral argument and specify that only one lawyer on each side will be heard, unless the court rules otherwise.

According to a guide on practicing before the Supreme Court, the court normally will not designate who should argue when parties can’t agree. The clerk’s office advises counsel that if they cannot agree, the matter should be resolved by drawing lots — a suggestion that generally seems to produce agreement.

Deputy Attorney General Gerald J. Coyne said yesterday that he hoped the parties could reach an agreement short of a game of chance.

“The presentation of oral argument to the United States Supreme Court is a matter of far too great significance to decide by resorting to a coin-flip or a drawing of straws,” Coyne said. “As a lawyer, I understand the desire to appear before the Supreme Court. However, it’s time to put aside individual ego and make a decision based upon what is in the best interests of the case, and of [the] people of Rhode Island. As public officials, we recognize that there needs to be a consensus on this matter very soon.”

Larisa said he contacted Carcieri’s office and that staff indicated they wanted Olson to argue the case. Amy Kempe, spokeswoman for Carcieri, did not return a phone call yesterday.

The tribe bought the property, just north of Route 1, in 1991 to build housing for its elderly. The tribe successfully petitioned the federal Interior Department to take the land into trust. The state filed suit after the federal agency agreed to do so in 1998.

They have argued the federal government cannot take land into trust for tribes recognized after the 1934 Indian Reorganization Act, unless Congress specifically authorized it. The Narragansetts became a federally recognized tribe in 1983.

The state and Charlestown lost their challenge in U.S. District Court, before a federal appeals panel and again before the full Circuit Court of Appeals in Boston.

The case is being closely watched by states and Indian tribes nationwide because of its presumed impact on future land into trust applications.

The high court yesterday also denied the Narragansett Indian tribe’s request for arguing time before the justices.

kmulvane@projo.com