5:01 PM Mon, Nov 03, 2008

WASHINGTON -- A federal lawyer told the U.S. Supreme Court today that the Narragansett Indians are entitled to a special trust status that would free 31 acres of tribal land from Rhode Island laws and taxes, but several skeptical justices greeted the argument with intense questioning.

Much of the hour of oral argument was spent on warring interpretations of a key clause in the Indian Reorganization Act of 1934 (IRA), which created the modern trust system for Indian lands.

Assistant Solicitor General Deane E. Maynard described it as "New Deal legislation for Indians'' that exempted tribal trust lands from local law and taxation in order to help tribes "to revitalize, to revive economically and to have self-governance.''

But Theodore B. Olson, a prominent Washington lawyer arguing for the state of Rhode Island and the Town of Charlestown, gave a starkly different interpretation of the 1934 law - and of who qualifies for its land trust benefits.

Olson said the law was meant to repair damage that the federal government had done to Indians under an earlier system of land allocation. Olson argued that Congress clearly aimed to apply the law's remedies - notably the exemption of tribal trust lands from local laws and taxes - to Indians who had been dealing with the government under the old system.

Olson based his argument on the fact that that, for purposes of identifying who would be eligible, the 1934 law defined the word "Indian'' as including "all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.''

" 'Now' must be given its ordinary meaning,'' Olson told the justices, arguing that when Congress said "now'' in the language of IRA, it meant 1934. Thus, the Narragansetts don't qualify for IRA trust benefits because they did not win federal recognition as a tribe until 1983, Olson argued.

By contrast, Maynard, a Department of Justice lawyer representing the Department of Interior, argued that "now" indicates the moment in which the Interior Department exercised the law by taking land into trust for a tribe.

Several of the justices zeroed in with pointed questions about Maynard's argument. Justice Antonin Scalia asked, with characteristic bite, whether Interior Secretary Dirk Kempthorne "understands that we usually do not interpret words to mean nothing.''

Kempthorne is named as respondent in the case because his department acted to put the Narragansetts' 31-acre property in trust. Governor Carcieri, the plaintiff in the case, has asked the court on the state's behalf to rule that the Interior Department cannot take the land into trust for the tribe.

The outcome of the case could reopen the question -- bitterly disputed for decades -- of whether the Narragansett Indians can build gambling casinos and other enterprises over the objections of their neighbors in South County and the state of Rhode Island.

Justice Stephen G. Breyer said he found it "hard to swallow" Congress intended to leave the interpretation of the word "now" to the Interior Department, essentially giving the federal government unlimited power to give land to tribes and Indians, as Maynard argued.

Chief Justice John G. Roberts warned that "we are talking about extraordinary power'' given to the Interior Department under the IRA land-trust system. ``The secretary gets to take land and grant it different jurisdictional status, apart from state law.''

Narragansett Indian Chief Sachem Matthew Thomas -- one of more than a dozen Rhode Islanders on both sides of the case who came to witness the high court's arguments -- declined to speculate on the day's proceedings.

"I believe they did the best they could," he said of the Department of Justice lawyers. Regardless of the vigorous questioning, he said, "at the end of the day the decision will be based on the statute and the law."

"It's just a matter of waiting to see what happens," Thomas said.

That wait is likely to be several months. The Supreme Court never announces when it will issue opinions, but it almost always rules before the end of the term during which a case is argued. In this case, that would be late spring of 2009.

Thomas attended with much of the tribal council who sat a row behind Carcieri and R.I. Attorney General Patrick C. Lynch. Before entering the court, Narragansett members performed a ceremony to protect tribal interests.

After the court session, Carcieri and state leaders expressed optimism.

"Ted Olson made a great case on our behalf," Carcieri said on the steps of the court.

Even Joseph S. Larisa Jr., Charlestown's lawyer who fought hard to argue the case and only bowed out last Friday, seemed pleased.

"I think we've got it," he said, before rushing to catch a flight back to East Providence where he is running for City Council in tomorrow's election. "It seems clear that the justices understand [IRA] is limited to 1934."

Three Charlestown Town Council members -- Katharine H. Waterman, Harriet Allen and Bruce Picard -- also observed the arguments along with Town Solicitor Robert E. Craven and former Conservation Commission member Faith LaBoissiere.

"I'm feeling good about it," Waterman said. "Justice Breyer impressed me very much with his knowledge of the case and his questions. I feel confident we will win this one."