CARCIERI v. KEMPTHORNE

No. 03-2647.

497 F.3d 15 (2007)

Donald L. CARCIERI, in his capacity as Governor of the State of Rhode Island; State of Rhode Island and Providence Plantations, a sovereign State of the United States; Town of Charlestown, Rhode Island, Plaintiffs, Appellants, v. Dirk KEMPTHORNE, in his capacity as Secretary of the Department of the Interior, United States; Franklin Keel, in his capacity as Eastern Area Director of the Bureau of Indian Affairs, within the Department of Interior, United States, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided July 20, 2007.


Attorney(s) appearing for the Case

Claire Richards, Special Counsel, for appellant Donald L. Carcieri.

Stephen P. Collette and Stephen P. Collette & Associates on brief for National Coalition Against Gambling Expansion, amicus curiae.

Neil F.X. Kelly, Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for appellant State of Rhode Island.

Troy King, Attorney General for the State of Alabama, Talis J. Colberg, Attorney General for the State of Alaska, Richard Blumenthal, Attorney General for the State of Connecticut, Susan Quinn Cobb, Assistant Attorney General for the State of Connecticut, Lawrence G. Wasden, Attorney General for the State of Idaho, Paul J. Morrison, Attorney General for the State of Kansas, Jeremiah W. (Jay) Nixon, Attorney General for the State of Missouri, Wayne Stenehjem, Attorney General for the State of North Dakota, Larry Long, Attorney General for the State of South Dakota, John P. Guhin, Assistant Attorney General for the State of South Dakota, Mark L. Shurtleff, Attorney General for the State of Utah, and William H. Sorrell, Attorney General for the State of Vermont, on brief for the States of Alabama, Alaska, Connecticut, Idaho, Kansas, Missouri, North Dakota, South Dakota, Utah, and Vermont, amici curiae.

Joseph S. Larisa, Jr., Assistant Solicitor for Indian Affairs, for appellant Town of Charlestown.

Elizabeth Ann Peterson, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert Clark and Ryan D. Nelson, Deputy Assistant Attorneys General, William B. Lazarus, Judith Rabinowitz, and David C. Shilton, Attorneys, Environment and Natural Resources Division, United States Department of Justice, and Mary Anne Kenworthy, Office of the Solicitor, United States Department of the Interior, were on brief, for appellees.

Ian Heath Gershengorn, with whom Sam Hirsch, Jenner & Block LLP, John Dossett, Riyaz A. Kanji, Kanji & Katzen PLLC, Tracy Labin, Richard Guest, and Native American Rights Fund were on brief, for National Congress of American Indians, Absentee Shawnee Tribe, Akiak Native Community, Cahto Tribe of the Laytonville Rancheria, Cheyenne River Sioux Tribe, Coeur d'Alene Tribe, Confederated Salish and Kootenai Tribes of the Flathead Nation, Confederated Tribes of the Warm Springs Reservation of Oregon, Eastern Pequot Tribal Nation, Eastern Shawnee Tribe of Oklahoma, Ely Shoshone Tribe, Fallon Paiute-Shoshone Tribe, Ft. McDermitt Paiute-Shoshone Tribe, Grand Traverse Band of Ottawa and Chippewa Indians, Inupiat Community of Arctic Slope (IRA), Kenaitze Indian Tribe, IRA, Kickapoo Tribe in Kansas, Lac Courte Oreilles Band of Lake Superior Chippewa, Lovelock Paiute Tribe, Lummi Nation, Moapa Paiute Band of the Moapa Indian Reservation, Modoc Tribe of Oklahoma, Narragansett Indian Tribe of Rhode Island, Native Village of Venetie IRA Tribal Government, Nez Perce Tribe, Oglala Sioux Tribe, Oneida Tribe of Indians of Wisconsin, Prairie Band of Potawatami Nation, Pueblo of Laguna, Pueblo of Santa Ana, Pueblo of Taos, Seminole Tribe of Florida, Shoshone-Paiute Tribes of the Duck Valley Reservation, Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, St. Regis Mohawk Tribe, Suquamish Tribe, Tanana Chiefs Conference, Te-Moak Tribe of Western Shoshone Indians, Tuolumne Band of Me-Wuk Indians, United South and Eastern Tribes, Inc., Washoe Tribe of Nevada and California, and Yomba Shoshone Tribe, amici curiae.

C. Bryant Rogers, Roth, VanAmberg, Rogers, Ortiz & Yepa, LLP, Charles A. Hobbs, and Hobbs, Straus, Dean & Walker, LLP on brief for Mississippi Band of Choctaw Indians, amicus curiae.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.


EN BANC OPINION

LYNCH, Circuit Judge.

The en banc court has convened to consider a series of issues concerning the relative powers of the federal Secretary of the Interior, the State of Rhode Island, and the Narragansett Tribe over a parcel of land taken into trust and designated for Indian housing. The case is in many ways a proxy for the State's larger concerns about its sovereignty vis-à-vis federal and tribal control over lands within the state...

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