01:00 AM EDT on Saturday, October 11, 2008

By Katie Mulvaney

Journal Staff Writer

Chief Sachem Matthew Thomas fumed this week about Chief Justice Frank J. Williams getting involved in the decision of which lawyer would give the state its best chance of winning a land case against the Narragansett Indian tribe before the U.S. Supreme Court.

“It just gave me the impression that anything the tribe brings before that chief justice doesn’t have a prayer,” Thomas said.

In a letter that was copied to the state’s congressional leaders, Thomas has asked U.S. Attorney Robert Clark Corrente to investigate the treatment of the tribe by the Rhode Island government and its judicial system. “The position the chief justice has taken leaves a gaping hole in matters of law relating to the Narragansett Indian tribe or his ability to review any case concerning the Narragansetts objectively and without prejudice,” Thomas wrote.

Williams told The Journal this week that he supported Charlestown’s assistant solicitor on Indian affairs, Joseph S. Larisa Jr., as the best lawyer to challenge the U.S. Department of Interior’s right to place 31 acres in trust for the tribe. Larisa has been involved in the case since its outset almost a decade ago.

“Joe Larisa would be a superb advocate for not only the town’s position, but the state’s position,” Williams said.

The case, which is an appeal from a federal court, will be heard early next month.

A spokesman for the state Supreme Court defended Williams yesterday. “The chief justice was merely commenting on Joe Larisa’s ability to represent a client,” said Craig Berke. “He was not commenting on the merits of the case nor would he do so.”

Still, Thomas insists Williams’ comments raise concerns about state Supreme Court decisions involving the tribe, namely the 2004 advisory that scuttled the Narragansetts’ plans with Harrah’s Entertainment to place a West Warwick casino proposal before voters that November.

“When we were in front of him, was he more interested in the interests of the state or the best interests of the law?” Thomas said.

The U.S. Attorney’s office will review Thomas’ letter and “communicate with the tribe appropriately,” said Thomas Connell, spokesman for Corrente.

The question of who should get the 30-minute slot to argue on behalf of the state has been the subject of a nasty battle for weeks.

Governor Carcieri and Attorney General Patrick C. Lynch are backing former U.S. Solicitor General Theodore B. Olson to do the oral arguments. Olson has tried 50 cases before the high court, including the one that secured George W. Bush the White House eight years ago. Carcieri hired Olson earlier this year for $200,000.

Larisa, who believes he is best equipped, has proposed settling the issue with a coin toss — as is practice when a consensus can’t be reached.

Larisa sent a letter to the U.S. Supreme Court clerk Wednesday, saying an “unresolvable impasse” had been reached because the attorney general would not agree to the coin toss.

Though the governor backs Olson, his chief legal counsel, Kernan F. King, suggested a two-way coin toss earlier this week that Larisa rejected because of what he said were unfair odds.

Lynch yesterday sent a letter to the Supreme Court clerk yesterday arguing Larisa represents only the interests of Charlestown, a community of 10,000, and not those of the state itself.

Lynch accused Larisa of trying to resolve the issue through the media. “As such, the use of a draw has been the subject of ridicule in Rhode Island, and the voluntary engagement in such a process would inevitably lead to a loss in the confidence that the citizens in this state should have in their government and its institutions,” he wrote.

He asked the court to designate who will argue the case. The clerk had not yet received the letter late yesterday.

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

Olson is letting the state and Larisa sort it out.

“I’m leaving the resolution of this up to the folks in Rhode Island because I think that’s the appropriate way to have it resolved,” he said in a phone interview.

He has never been involved in such a conflict, he said. Talks always remained amicable in his past cases in which there was a question about arguing time, he said.

“This is unusual … but it does happen from time to time,” he said. He said he will prepare for the case, whatever the resolution may be.

“No matter which way it falls,” he said, “I’m confident the people of Rhode Island will be well served.”

The state brought the suit against the U.S. Department of Interior almost a decade ago after the department agreed to place 31 acres in Charlestown in trust for the tribe. Trust status would free the land from most state and local laws and place it under federal and tribal control. Rhode Island leaders fear it could open the door to a casino or other venture outside of state oversight.

The state, which was joined in the suit by Charlestown, has lost in U.S. District Court, before a federal appeals panel and again before the full 1st U.S. Circuit Court of Appeals in Boston.

The parties have until Oct. 31 to decide who will argue, with the high court set to hear the case Nov. 3.

kmulvane@projo.com