At 1 p.m. next Monday, an attorney will step to the Supreme Court’s podium to open the argument in a case pitting the rights of states against the rights of Indian tribes and the power of the federal government.  But, with that argument edging ever closer, the identity of that advocate is still not settled.

The Supreme Court finds itself in the midst of what one lawyer involved calls “this impasse” over who gets to speak first, or at all, in the first half of the argument in Carcieri v. Kempthorne (07-526).  Court aides have tried repeatedly to get the three parties lined up on that side of the case to settle on one attorney, but so far that effort has failed.

Three parties joined a year ago in asking the Supreme Court to hear the case, testing the power of the U.S. Interior Secretary to approve the Narragansett Indian Tribe’s request to have a 31-acre parcel of land it owns in the town of Charlestown, R.I., placed in trust for the tribe. All three petitioners — Rhode Island’s Governor Donald L. Carcieri,  the state itself, and the town of Charlestown — were united in the claim that the federal government has no authority to do that for the Narragansetts.  The Court granted review Feb. 25.

Each of the three has since filed its own brief.  For oral argument, however, that side gets only 30 minutes.  Each of the three previously asked the Court for a chance to send a lawyer to represent it to the podium, splitting up the 30 minutes.  The governor and the state attorney general wanted to split the time, and a lawyer for Charlestown also wanted to split the time with the state. (The Narragansetts sought to join in, too, as an amicus.)  All pleas for divided argument time have been rejected by the Court, and all three parties on the top side have been told to settle it among themselves.

Among the ideas floating around for a way out of the impasse: flip of a coin, a majority-wins vote among the three parties, a 20-10 split in the top-side argument, a 50-50 split of that time, and, of course, the Court’s possible new insistence on just one advocate.

Gov. Carcieri and state Attorney General Patrick C. Lynch now are agreed that there should be one lawyer speaking for the state — Washington, D.C., attorney and longtime Court advocate Theodore B. Olson.  But the town’s own lawyer, Joseph S. Larisa, Jr., is not in agreement.  Olson has said the governor is willing to have a 20-10 split between himself and Larisa, but the attorney general has said he opposes that.

Larisa on Monday sought to draw the Court back into the fray, filing a motion for reconsideration of the previous denial of divided argument, and seeking a split of 50-50 between himself and Olson.  If, however, the Court is unwilliing to do that, Larisa proposed a coin-toss, winner-take-all.  Larisa’s motion is here.

Olson, on behalf of the governor, responded on Monday with a letter to the Court saying that the governor and the attorney general do not support an equal division of the time, and do not support a coin toss.  But, Olson said, the governor would be willing to have Olson take 20 minutes and Larisa 10.  If some other means is necessary to resolve the impasse, Olson said, neither the governor nor the attorney general supports a coin toss, and the attorney general would not support any “random draw” to pick someone other than a state lawyer to speak for the state.  Their suggestion for an alternative: a majority vote of the three (which, it is obvious, would wind up with Olson getting the nod on the votes of the governor and attorney general).  Olson suggested that the Court then “give effect” to that majority by designating Olson to argue alone. The Olson letter is here.

Assistant Attorney General Neil F.X. Kelly, in a letter to the Court on Monday, opposed all of Larisa’s proposals, and indicated that Attorney General Lynch would agree at most to “a democratic vote.”  But, Kelly said in closing, the office would approach the town again to see if the impasse could be settled.  Kelly’s letter is here.

If the impasse lingers, the Court could take up Larisa’s motion, perhaps at Friday’s Conference.  By the end of that day, there likely would be some order, giving the winner(s) the weekend for final preparation.

Posted in Carcieri v. Kempthorne, Everything Else