Carcieri v. Salazar – Oral Argument – November 03, 2008

Media for Carcieri v. Salazar

Audio Transcription for Opinion Announcement – February 24, 2009 in Carcieri v. Salazar

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John G. Roberts, Jr.:

We’ll hear argument next in Case 07-526, Carcieri v. Kempthorne.

Mr. Olson.

Theodore B. Olson:

Mr. Chief Justice, and may it please the Court: Congress squarely addressed and unambiguously answered the first question in this case when it enacted the Indian Reorganization Act of 1934.

It authorized the Secretary to take land in trust for Indians, and it declared, as used in this Act, Indians were

“members of any recognized Indian tribe now under Federal jurisdiction. “

The word 1934 as it does every morning in this Court when the Marshal announces that “The Court is now sitting”.

When Congress said “now under Federal jurisdiction”, it did not mean “then under Federal jurisdiction”, but that is what the Government contends.

In fact, the word “then” is the antonym for “now”.

“Now” must be given its ordinary meaning, which the Government concedes on — in its brief, is the date, effective date of the statute.

In this statute, the term “now” and synonyms are used repeatedly throughout the Indian Reorganization Act.

The word “now” appears five times in the same sense throughout the Act.

The word “hereafter” is also used.

The word — the term “now” or “hereafter” is used three times; “heretofore” is used three times.

I mention these things because the Congress that read and enacted the statute had a keen sense of the temporal nature of the terms used in the Act.

Stephen G. Breyer:

What about a poster that says “Give blood now”.

Theodore B. Olson:

Pardon me, Justice Breyer?

I didn’t hear you.

Stephen G. Breyer:

They put up a poster that says “Give blood now”.

Theodore B. Olson:

Well, it is–

Stephen G. Breyer:

It doesn’t mean when it was printed.

Theodore B. Olson:

–Of course, of course, Justice Breyer.

There are many contexts in which one could conceivably, but the context would tell you.

In fact, the Government’s — one of the Government’s examples is the use of the word “now” in a will.

Of course, everyone knows the will speaks as of the date of the passage of the individual.

There’s another reference in the statute where the Government refers to that, and the statute itself has a very clear, different meaning.

My reference to the statute and the use of the word “now” in this statute is very, very clear.

The legislation — the statute refers to legislation “now pending”.

That had to mean 1934.

It refers to boundaries “now existing or hereafter established”.

It refers to positions and Indian tribes “now or hereafter created”.

Theodore B. Olson:

It refers to lawsuits “now pending or hereafter filed”.

It refers to tribes “now under Federal jurisdiction”.

All of those uses of the word “now” are consistent.

If the Government was correct, the word “now” would have no meaning in that statute.

I think it was interesting, if one takes the question presented as articulated by the Government, it says,

“Whether the Indian Reorganization Act authorizes the Interior Secretary to take into trust on behalf of an Indian tribe that was not recognized — a not recognized Indian tribe under Federal jurisdiction on June 18th, 1934. “

if you take that word “not” and strike it out of the question presented, you get the statute.

So, what the Government is asking for is the exact opposite of what the statute clearly requires.

And all one has to do is look at the question presenting — presented as–

John G. Roberts, Jr.:

What about — what about the additional definition in section 19 of “tribe”, which is not limited the way the first sentence is?

Theodore B. Olson:

–But it says, Chief Justice Roberts, it says “Indian tribe”.

And the word “Indian”, in that very section, at the very beginning of the section, says

“the term “Indian” as used in this Act. “

blah, blah, blah.

So then, later in that same section, it refers to “Indian tribe”.

It’s important to juxtapose section 5, which is codified as 465, and section 19, which is codified as 479, to look at the statute.

The first part of section 5 authorizes the Secretary to take land for Indians.

Now, the way the Government addresses that in the Government’s brief, they took the word 465 and said the statute authorizes taking land for tribes.

It actually says taking land for Indians, and then in the latter part of section 5, it says “title” —

“When property is taken for Indians, title may be vested in an individual Indian or in a tribe. “

Then when you get to section 19, Congress very carefully said,

“As used in this Act, the term “Indian” shall mean. “

what we’ve been talking about here today, and that’s an adjective that describes “tribe” later in the sentence.

There’s two things that the Government does in their brief which I find very interesting.

First of all, the Government says the use of the word “Indian” doesn’t necessarily mean Indians.

But Title I, section 1, of the United States Code, the first sentence in the United States Code, says:

“The word “singular” — The word “singular” shall include the plural, and the plural shall include the word “singular”. “

So the United States is disregarding that maxim.

Of course, the context can always indicate something different.

But the Government asks you to ignore the singular or plural.

Theodore B. Olson:

And then the other thing that the Government does is to ask you to understand that the word “Indian” means something when it’s a noun and something else when it’s an adjective, violating another primary construct — construction, statutory construction.

Samuel A. Alito, Jr.:

Doesn’t it have to be correct because in — in section 19 it says that the term “Indian” means, among other things, all other persons of one-half or more Indian blood.

Now, the use of “Indian” there can’t be limited.

It would be circular if that definition applied to the use of that adjective there.

Theodore B. Olson:

The — the — yes.

I understand that, Justice Alito, and — and no statute, if you — if you come along 70 years later, is it not possible to find something like that.

But the fact is that the only consistent way to look at that term throughout the statute — and I would say, first of all, it’s the language of the statute.

It’s the context of the words in the statute where the word “Indian” has to mean certain things.

It has to have some limitation.

Otherwise, the Secretary can do anything, and — and Congress certainly didn’t intend that.

It’s not just the text of the statute.

It’s the purpose for the statute, which was to protect and remediate Indians and Indian tribes that have been harmed by the allotment policy.

Anthony M. Kennedy:

What sort of — excuse me.

What sort of tribes were not under Federal jurisdiction?

Theodore B. Olson:

Well, the use of the word “tribe” in that question is — is causing me a problem momentarily.

Anthony M. Kennedy:

Pardon me.

What — what — yes, what members of tribes were not under Federal jurisdiction?

Theodore B. Olson:

Well, there were all sorts of Indians who were not under Federal jurisdiction.

What — there is a — there is a document that the Government produced in 19 — in just this summer.

There are four documents I urge the Court to look at that the Government suddenly discovered after 10 years of litigation and produced in August of this summer, all of which are Interior Department documents which support our position in this case, Justice Kennedy.

What — the fact is that there were many Indians throughout the United States that were not recognized — recognized as a part of tribes.

They weren’t groups of individuals with whom the United States had made treaties.

The United States had various different relationships with groups of Indians, including tribes.

Anthony M. Kennedy:

Were there, then — were there persons of Indian descent who were not under Federal jurisdiction?

Theodore B. Olson:

Yes.

And–

Anthony M. Kennedy:

What — what kind of persons would those be, persons without a tribal affiliation?

Theodore B. Olson:

–Yes.

In fact, many — many of the Indians throughout the United States were not connected or — or tied up into a formal tribe.

The purpose for the Indian Allotment Act was to take a — land out of reservations and out of the possession of Indian tribes and distribute that to — to Indians in fee simple so that they could sell it to someone else.

Theodore B. Olson:

Congress decided, the United States decided, in the ’30s that that policy had been — ill-served the Indians and ill-served the United States.

So the Indian Reorganization Act was intended to address and remediate that.

At the same time the United States was concerned and the Congress was concerned that there had to be some limit.

If there were Indians that had not been adversely affected by the Allotment Act, they were not intended to be, generally speaking, covered by the Indian Reorganization Act.

So what I mean — I was saying in response to Justice Alito’s question — it’s not just the text of the statute.

It’s the purpose for the statute, which was to provide some benefits and some limitations on the damage done by the allotment policy.

So it was natural, when it was necessary to come up with some restriction on who would be the potential beneficiaries of the statute, to look at the tribes that were under Federal jurisdiction in 1934 who had been harmed in some fashion.

John G. Roberts, Jr.:

My understanding — maybe I’ve got this wrong, but there was not then, as there is now, a list of tribes that are recognized and under Federal jurisdiction.

So how — how do you tell in 1934 who is under Federal jurisdiction?

Theodore B. Olson:

Well, what the Interior Department did was, in compliance with the statute — was to set about and create a list.

There was a list created in 1936, as I understand it, Chief Justice Roberts.

There was subsequent legislation that has even a List Act.

But the — what–

John G. Roberts, Jr.:

But I guess the point is that, given the weight that you are placing on the word “now”, you would think there was some clear way to say who was recognized before then and who was recognized after that.

And I — I just don’t know what the test of recognition was in 1934.

But if they were drawing — if Congress were drawing a sharp line, presumably, it would be based on a sharp distinction; and, yet, as I understand it, there is no real sharp distinction.

Theodore B. Olson:

–Well, there was a relatively sharp distinction.

That is to say, it was Indians that had treaties with the United States, or tribes that had treaties with the United States, or had been recognized in some fashion by the United States Government in terms of a relationship between the Government of the United States and the Indian tribes.

Now, the Federal Register and Federal records in 1934 were not what they are today, and that’s the reason why, when these words were used, the Interior Department set about to look through the history of the Interior Department and to come up with a list of tribes that would have been covered, would have been embraced, by that term now recognized in 1934.

Ruth Bader Ginsburg:

But we’re told that that — that effort was ridden — ridden with mistakes.

So could you have, under your definition, a tribe that is recognized relatively recently, whether it is about 16, but that was, in fact, a tribe in 1934; that is, the — although it wasn’t formally recognized until later, it was, in fact, a tribe in 1934?

Theodore B. Olson:

Yes.

Yes, Justice Ginsburg.

In fact, to the extent that it’s necessary to go back and — and it happened on a few occasions subsequent to 1934 that historical records were reviewed, relationships between the tribe and the Federal Government were reviewed.

In fact, in the Government’s brief, the Government talks about three tribes for which land was taken into trust that didn’t fit the definition of now recognized — tribes recognized in 1934.

We went back and looked at two of those three tribes where — in fact did have treaties with the United States and would have been included.

The other would have probably been included and could be included just exactly the way you suggested in your question.

The other point that I think is very important to emphasize is that 15 times since the enactment of this statute Congress has acted specifically to apply the Indian Reorganization Act to an Indian tribe that had not been covered in 1934, evidencing some congressional understanding that it — it took an act of Congress to bring a particular tribe under the Act.

There is these–

Antonin Scalia:

Of course, I suppose if the phrase

Antonin Scalia:

“now under the jurisdiction of the United States. “

did not have any clear meaning when the statute was enacted, it — it wouldn’t have any clear meaning for the future, either.

So you don’t — you don’t solve that problem by reading “now” to mean “then”, right?

Theodore B. Olson:

–Well, what — what — I think I understand your question.

What the Government wants to do is just take the word “now” out of the statute altogether.

Antonin Scalia:

Yes.

I’m saying it doesn’t help if you do what the Government suggests.

That doesn’t give any clearer content to the meaning of being under Federal jurisdiction.

It is still going to have to be worked out somehow.

The question is whether you work it out and apply it as of the time of the statute or work it out and apply it time by time.

Theodore B. Olson:

The only way the statute makes sense is to construe 19–

John G. Roberts, Jr.:

No.

That’s not true, because now you have a very clear system.

You are recognized if you are on the list.

If you don’t — you know, maybe you shouldn’t be on the list; maybe you should be.

But you are recognized if you are on the list.

That wasn’t the case in 1934.

Theodore B. Olson:

–Chief Justice Roberts, what — it was intended — members of Congress had to think the word “now” meant something.

In fact, there is a colloquy between Senator Wheeler and Commissioner — Bureau of Indian Affairs Commissioner Collier that is referred to in the briefs where Senator Wheeler was saying: Well, there are some — some groups out in — in California that are no more Indian than you or I.

What are we going to do about that?

And Commissioner Collier, who is the author of the Act, says: We will stick the words

“now under Federal jurisdiction in there. “

And then he explains exactly what was meant by that: That would — that it would cover tribes that existed in — in 19 — that would — he says that would limit the Act to Indians now — and he is speaking at the time the statute was being debated — under Federal jurisdiction.

Those documents that the Government suddenly discovered in August of this year, which were lodged with this Court in the latter part of August of this year, include a 1936 — circular letter by Commissioner Collier to all of the superintendents throughout the United States.

This is the author of the statute speaking in 1936, and he says

“all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act. “

Now your point, Chief Justice Roberts, is that maybe it was unclear at the exact moment of — of enactment which 198, or whatever number it might have been, tribes were under that, but that’s the sort of information that can be discerned by looking at the history and the records so that a finite group could be identified.

It isn’t perfect, as Justice Ginsburg’s question suggests, but it is a verifiable method of limiting what Congress obviously intended to limit–

John Paul Stevens:

Mr. Olson, can I ask you a kind of a — maybe it’s too obvious — preliminary question?

Is there a definition of the term “Indian tribe” in the statute?

Theodore B. Olson:

–No.

Not in — it says “Indian tribe”–

John Paul Stevens:

Section 19 defines the term “Indian”, but there is no definition of what an Indian tribe is.

Theodore B. Olson:

–It refers, in the second-to-last sentence of section 19 or 479,

“The term “tribe” wherever used in this Act shall be construed to refer to any Indian tribe. “

That’s — that–

John Paul Stevens:

See that — that word isn’t limited by time or date, is it?

Theodore B. Olson:

–Well, the word “Indian” is, if you accept the word–

John Paul Stevens:

Well, but the word “Indian” — it says the word “Indian”, in the last sentence,

“21 years. “

Theodore B. Olson:

–Well, that just simply, I submit, defines the word “adult”.

Antonin Scalia:

Where — where were you reading from?

I–

Theodore B. Olson:

We were reading from section 479, which is at page 15a of the Carcieri brief.

John Paul Stevens:

I’m looking at the Government brief.

That’s–

Theodore B. Olson:

Yes.

Now, the Government, I think, has the codified version of it as well as there are some changes–

Antonin Scalia:

–That’s what’s causing me confusion there.

You’re talking about — I wish we would just use the statutory numbers, but do what you like.

Theodore B. Olson:

–Well, I’m happy to do it either way.

The — the brief — when we put it in — in the appendix to our blue brief, we did that.

Antonin Scalia:

Thank you.

Theodore B. Olson:

And I think — but nonetheless, Justice Scalia, for the purposes of this, it is quite clear that if you were a member of Congress in 1934 reading this statute and seeing the words 1934.

In fact, when this Court in 1978 was construing the statute–

John Paul Stevens:

–Mr. Olson, am I not correct that the membership in the tribe is just one category of persons who are included in the broader definition of the term “Indian”?

Theodore B. Olson:

–There are three categories, Justice Stevens.

John Paul Stevens:

And one of the them is members of the tribe.

Theodore B. Olson:

Yes.

John Paul Stevens:

Another is one who — Indians who have attained the age of 21 years.

John Paul Stevens:

The other other is — let’s see.

“The term “tribe” wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. “

Now, that reference to the term “tribe”, as opposed to “Indian”, doesn’t have any limit on the time.

Theodore B. Olson:

Well, if you take the word “Indian” out, but the word — the phrase is “Indian tribe”.

And Congress specifically said the word “Indian” wherever — now that’s where the Government says the word used as a noun doesn’t mean the same as the word used as an adjective.

That doesn’t make any sense.

But Congress was clearly talking about — when it made three categories at the beginning of that sentence, Justice Stevens, it made three categories basically to cover the tribes that were recognized and then under jurisdiction in 1934, and that’s — the author of the statute said that in 1936.

He said that in an exchange with Senator Collier.

In fact, the two other Justice Department — Interior Department documents that were reproduced were documents from the Solicitor of the Interior Department to the Indian Affairs person saying the same thing in 1978, the same thing in 1980, and the same thing in 1994.

And when this Court construed the statute in — in an indirect way with respect to the Choctaw Tribe in 1978, in the case of U.S. versus John, the Court said members of any recognized bracket, in 1934, “tribe now under Federal jurisdiction”.

Stephen G. Breyer:

Do you think — do you think the meaning of that — the words specifically that were added were “now under Federal jurisdiction”.

The word “recognized” was already in the statute.

So, it looks like the “now” applies to “under Federal jurisdiction”.

Now, my law clerks, in doing research on this, came up with a number of instances where the tribe wasn’t recognized until 1976.

I think that was true of something called the Stillaquamish Tribe.

Theodore B. Olson:

Yes.

Stephen G. Breyer:

And it’s recognized in 1976, but then they go back and they say, well, was it under Federal jurisdiction in 1934?

And that seems a rather loose term that includes the fact that you are under Federal jurisdiction if, for example, the Federal Government has a treaty with you that requires the Federal Government to do something.

Suppose that’s the right reading of this.

Then should we send this back?

Theodore B. Olson:

No.

The meaning is quite clear.

In fact, Justice Breyer–

Stephen G. Breyer:

Well, I’m saying I’m agreeing with you on the meaning.

The meaning is “now”, but it’s “now under Federal jurisdiction”.

So, there would be a question.

This tribe wasn’t–

Theodore B. Olson:

–There’s no question that this tribe would not qualify–

Stephen G. Breyer:

–No.

Theodore B. Olson:

–and there’s no contention that it would.

Theodore B. Olson:

No matter how you define that and the — the–

Anthony M. Kennedy:

They wouldn’t qualify for two reasons — A, they weren’t recognized; and B, they weren’t, in 1934, under Federal jurisdiction?

Or either?

Theodore B. Olson:

–Both, Justice Kennedy.

They weren’t either.

Anthony M. Kennedy:

Because I suppose that what the Government wants us to do is put in two commas: The Indian as used in section — a person of Indian descent, comma, who are members of any recognized Indian tribes, comma, now under Federal jurisdiction.

That still might not help if they weren’t under Federal jurisdiction in 1934.

Theodore B. Olson:

That’s correct.

It does not help–

Anthony M. Kennedy:

Even if they were recognized later?

Theodore B. Olson:

–They can be recognized later, Justice Kennedy.

In fact, Congress specifically did that 15 times between — for the first time, it was 1936, and the last time it was 1994.

Anthony M. Kennedy:

You don’t agree that “recognized later” complies with this statute in your case.

Theodore B. Olson:

No, because here’s what Congress said: In each one of those 15 cases, Congress said — the statute, including section 5 and 19, which is what we are talking about here, “shall hereafter apply”, “shall hereafter apply”, “shall be hereby extended”, “hereby”, “hereby extended”.

So, Congress, on 15 occasions, decided that it was necessary to–

John Paul Stevens:

Mr. Olson, let me just make sure I get this off my chest, and then I’ll be quiet.

The first sentence in section 19 defines the term “Indian”.

And that’s the section you’re talking about?

Antonin Scalia:

What section are we talking about — 19?

Or are we talking about some other number?

John Paul Stevens:

–in this Act.

The second refers to — the second sentence refers to Eskimos.

The third sentence defines the term “tribe”, the term “tribe” — and in that definition there is no reference to time.

Theodore B. Olson:

–No, but it says the word “Indian”.

John Paul Stevens:

No.

I’m talking about the third — the first sentence defines the term “Indian”; the third sentence defines the term “tribe”.

Theodore B. Olson:

May I read this, Justice Stevens?

John Paul Stevens:

Yes.

Theodore B. Olson:

“The term “tribe” wherever used in this Act shall be construed to refer to any Indian tribe. “

John Paul Stevens:

Right.

Theodore B. Olson:

So, the word–

John Paul Stevens:

“Organized band, pueblo, or the Indians residing on one reservation. “

Theodore B. Olson:

–I submit that, for purposes of construction of the statute and using the word consistently, the word “Indian” modifies tribe, the word “Indian” as defined, that’s consistent with the purpose, that’s consistent with the legislative history.

It’s consistent with the construction–

John Paul Stevens:

The word “Indian” does not modify the word “tribe” as used in the third sentence.

That’s my point.

Theodore B. Olson:

–Well, I think you and I must be reading a different thing because the sentence that — the sentence that defines the word “Indian” says

“the term “Indian” as used– “

John Paul Stevens:

I’m saying for purposes of getting the meaning of the word “tribe”, just look at the sentence defining that term, and that doesn’t refer to any time limit.

Theodore B. Olson:

–But it does include the word “Indian”, which does have a temporal limitation.

If it was “brown cow” and the word “brown” was defined, you would look to the word “brown” to determine what a brown–

John Paul Stevens:

It doesn’t limit it to Indian tribe.

It says, shall include

“any Indian tribe, organized band, pueblo, or the Indians residing on a reservation. “

Theodore B. Olson:

–Well, I think that the construction of the statute, including the way this Court read it in 1978, the history, the purpose that it was intended to accomplish, the use of those words throughout the statute which are consistent, all supports the proposition that it had meant Indian tribes recognized and under Federal jurisdiction.

Antonin Scalia:

I assume that you think “Indian” modifies “organized band” and “pueblo” as well.

Theodore B. Olson:

Yes.

And if I may, Mr. Chief Justice, reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Maynard.

Deanne E. Maynard:

Mr. Chief Justice, and may it please the Court: The text of the Indian Reorganization Act supports the Secretary’s action here for three independent reasons.

First, section 5 authorizes the Secretary to take land into trust for any Indian tribe, and the Narragansett tribe is a tribe as that term is separately defined in the Act.

Second, even if one looks to the definition of 19, the best reading of “now” in the first definitional example is at the time that the Act is applied.

John G. Roberts, Jr.:

So — so the statute reads the same whether “now” is in there or not?

You read it as saying any recognized Indian tribe under Federal jurisdiction.

Deanne E. Maynard:

Yes, Your Honor.

And I think that if you look at the legislative colloquy, it — it only makes sense, the addition of “now under Federal jurisdiction”, if what they meant by that was to use it at the time the Act is invoked.

Senator Wheeler’s concern, as Mr. Olson explained, was that there were Indians in California who were then–

John G. Roberts, Jr.:

So you’re saying the only way that makes sense is to read it as if it weren’t there.

Deanne E. Maynard:

–Ironically, Your Honor, I think the Congress added the term “now under Federal jurisdiction” to the Act, yes, to make clear that it — it was a contemporaneous application of the term.

Deanne E. Maynard:

Senator Wheeler was concerned about Indians who were already under Federal jurisdiction, and he said sooner or later they must have come out from under the Act.

Stephen G. Breyer:

I’m not sure he was, because when I looked through that whole thing it seemed to me what they were worried about — Senator Thomas was worried about remnants of tribes, and they were talking about an example of the Catawba Indians in South Carolina, and they had a discussion about that; and then it seemed everybody on the committee agreed that these Catawba Indians should not be included if they were only one quarter Indian.

They should be included if they were half Indian.

And that meant that they had to fall within the other phrase, not the phrase that we are talking about.

So then they say how do we get this result?

I mean, because they are a tribe.

Because they are certainly a tribe and they are recognized, the Catawbas.

And then the answer to that was — what’s his name — the Collier — Collier.

Collier says: I’ll tell you how: We add the words “now under Federal jurisdiction”.

And he thought what he was doing was ruling out the Catawbas and only allowing the half Indians to come in.

Now, ironically, later on, in the ’40s I think, the government decides that the Catawba tribe is in fact under Federal jurisdiction in 1934 because a treaty exists.

Anyway, that’s how I read it and the California Indians were quite secondary to what they were talking about.

They didn’t — they didn’t know whether they were under a tribe or not a tribe or anything.

Deanne E. Maynard:

Well, the colloquy is certainly not clear, Justice Breyer.

I’ll grant you that.

But I do think the best reading–

Stephen G. Breyer:

I thought it was fairly clear.

Deanne E. Maynard:

–I — I think the best reading of it is that Commissioner Collier is addressing Senator Wheeler’s concern, not the earlier concern about the Catawbas, because he says “Senator Wheeler” —

“Senator Wheeler, will this not address your concern? “

Stephen G. Breyer:

Yes, but they — I mean, Senator Wheeler was worried about the Catawbas.

Then Wheeler decides, okay, the half-Indian Catawbas fall in, but the quarter-Indian Catawbas don’t.

Deanne E. Maynard:

My memory of it–

Stephen G. Breyer:

I’ll go back to it.

Deanne E. Maynard:

–My memory is that it was a different Senator who was concerned about the Catawbas.

Antonin Scalia:

Where — where was this interesting conversation?

Was it even on the floor of the Congress?

It couldn’t have been, because one of the members wasn’t a Congressman, right?

Deanne E. Maynard:

Well, I think it was at a hearing, Your Honor.

Antonin Scalia:

It was at a hearing, oh.

Stephen G. Breyer:

You learn a lot at hearings, actually.

Deanne E. Maynard:

But if I could, going back to the text, Justice Scalia, the text of the Act independently support the Secretary’s reading for three reasons, the third being that even if one reads 18, 1934, the definition by its terms is expressly inclusive, setting forth the category of people that the Secretary must include but not limiting the Secretary to–

Antonin Scalia:

He can include anybody else?

He can include, for example, people who are only one quarter-Indian blood, even though, you know, they went to the trouble of defining it as 50 percent Indian blood?

Deanne E. Maynard:

–I think that would be a more–

Antonin Scalia:

Very strange statute, just leaving it up to him to do whatever he wants.

Deanne E. Maynard:

–I think the proper way of reading, as this Court said, definitions that start with “shall include” is that they are illustrative examples of a general group.

Antonin Scalia:

So — so there is no limitations.

It includes this and it also includes whatever else he wants.

Is that it?

Deanne E. Maynard:

No, Your Honor; I think an illustrative example of a general class, it would be persons listed like the listed person.

You example of the quarter blood would be more difficult, perhaps.

But here what the Secretary has done is include within the meaning of 1934.

Antonin Scalia:

That’s — that’s a very strange reading of “shall include” when you’re dealing with a word that does not itself have any solid content.

When you’re dealing with a word that’s pretty much self-defining, yes, you can say “shall include this”, because what in addition is included is — is pretty clear.

But these words have virtually no — no content; and if you say “shall include” means, you know, it has this, I’m still left with well, what else does it have?

I can’t believe that the statute was meant to be that expansive, to let the Secretary buy land for whomever he wanted.

Deanne E. Maynard:

Well, it doesn’t do that, Your Honor.

I think both — both the definitions of — of Mr. Olson suggests.

You can’t take the word “Indian” everywhere it appears in the statute and plug in the definition of “Indian”.

And that’s proven by looking at the definition of “Indian” itself, which uses the adjective “Indian” to define the term “Indian” four times.

So you can’t take–

John Paul Stevens:

Ms. Maynard, would you clarify one other thing for me?

The sentence in question with the word “now” in it and so forth, does that have the meaning that it includes descendants who are less than a half-blood, quarter-blood, eighth-blood and so forth?

Deanne E. Maynard:

–Yes, Your Honor.

I think the straightforward reading of that would be any descendant who meet the terms of that provision would be included.

John Paul Stevens:

So that is an expansive definition of the term “Indian”, right?

Deanne E. Maynard:

The descendants.

Yes, we interpret that to be descendants who were living on the reservation on June 1, 1934, but they wouldn’t even have to be members of tribes, and there would be no blood quantum requirement.

John G. Roberts, Jr.:

Oh, so you’re applying now, when you’re talking about who is of Indian descent–

Deanne E. Maynard:

No, Your Honor.

John G. Roberts, Jr.:

–Indian descent of those in 1934, but not when it’s determining — in other words, you say the Indian descent as of when?

Deanne E. Maynard:

Descendants who were on June 1st, 1934.

That’s not using — that’s not applying the definition of the word “now”.

That’s in fact using a very different phrase, the second phrase, where Congress used a date when it meant a date in 1934–

John G. Roberts, Jr.:

Oh, I see.

Deanne E. Maynard:

–rather than the definition now.

In fact, if you look at the verbs in the definitional phrase, all of them are “are”, “are”, “are”:

“Are members of recognized Indian tribes. “

1st, 1934:

“Who were on June 1, 1934, residing on a reservation. “

And I think the best reading of Mr. Olson has pointed you to several places in the text where they use “now” in very different clauses: “now pending”, “now or hereafter” — and — but in two places in the Act, and that’s why I do think it’s important to look at the Act itself, Justice Scalia, because this hasn’t been codified into positive law.

In two places in the Act, section 14 and section 18, Congress used the phrase

“at the time of passage of this Act. “

So it knew how to use that phrase.

It didn’t use that phrase in “now”.

And in fact when those–

John G. Roberts, Jr.:

What do you do about United States v. John?

There the Court in describing an Indian, Indian descent, went out of their way to include in brackets the phrase

“any recognized in 1934 tribe now under Federal jurisdiction? “

Deanne E. Maynard:

–Well, that’s obviously dicta in the context of the decision, but I think in fact the addition of the brackets shows that it’s ambiguous.

If it were so clear, they wouldn’t have needed to add the phrase.

John G. Roberts, Jr.:

Well, but it — it may have shown it’s ambiguous, but it shows how — shows how we resolved the ambiguity.

Deanne E. Maynard:

Well, the Court wasn’t resolving the meaning of the first definition in John, so I don’t think the Court was resolving anything.

But I do think if it had been so clear, the Court wouldn’t have needed to add the phrase.

The–

Antonin Scalia:

It’s pretty clear what the Court thought it meant, though, isn’t it?

Whether it’s dictum or not, it’s pretty clear that the Court thought it clearly enough meant that, that they were willing to say bracket — you know.

Deanne E. Maynard:

–It’s certainly not a holding, Justice Scalia–

Antonin Scalia:

I agree.

Deanne E. Maynard:

–that the text unambiguously forecloses any other reading.

Antonin Scalia:

I agree.

Stephen G. Breyer:

What do I do about–

Antonin Scalia:

It suggests that it’s not very ambiguous, I think.

Stephen G. Breyer:

–What do I do about the fact — I was looking this up — Collier and Felix Cohn, the world’s authority on Indian law, both write at the time: this means under Federal jurisdiction in 1934; and they write it and they rewrite it and they rewrite it.

They say nothing to the contrary.

I mean, they are the ones who did it, so I have to admit I’m pretty much moved by the fact that they thought that’s what it meant.

Deanne E. Maynard:

Well, apart from the Collier memo, which I would like to address, the Secretary when administering this Act has uniformly, since the beginning, applied the definition that applies today.

Stephen G. Breyer:

I could only find one instance, which is that Biloxi tribe, where the — something, you know, the ones in Louisiana — aside from that instance, I have not found one other instance that is inconsistent with the words 1934.

Deanne E. Maynard:

I don’t know–

Stephen G. Breyer:

If you want to list them, I’ll look them up.

Deanne E. Maynard:

–I don’t know that the Secretary has ever undertaken to make such a list.

There was no list at the time.

And the Act was a forward-looking act in its view of organized tribes and by its nature assumed that there would be no tribes.

But in the 1930s and 1940s, the Solicitor’s opinions that we cite and discuss in our brief apply the question of whether a group is a tribe who can organize under section 16 or can have land taken into trust for them under section 5.

Stephen G. Breyer:

I believe that’s organized or recognized, because what they did in several cases, I found, like the one, the Stillaquamish or whatever, they said, yes, we recognize them now.

They weren’t recognized in 1934, but they were under Federal jurisdiction in 1934 because there were treaties that applied between the Federal Government and the Indians which gave these Indians rights then.

And that — that seems consistent with what — what Collier and the others say.

Deanne E. Maynard:

My understanding is that the Secretary interprets “recognized” and “under Federal jurisdiction” to not have much difference with respect to tribes.

I think the “under Federal jurisdiction”, the Court of Appeals suggested this might have more content when you’re talking about individuals, and that makes more sense–

Anthony M. Kennedy:

That, seems to me, not to help you, because if they are the same, then that would apply to both.

Justice Breyer was suggesting, as I had earlier, that maybe you can make a distinction between those were under Federal jurisdiction then and recognized tribes now.

Deanne E. Maynard:

–And possibly you could.

I don’t know that that would help the Narragansett Tribe here.

But the Secretary has always looked at whether — whether a tribe could reorganize or have land taken into trust for them under section 16 and section 5, to which the same definitional — definitions apply as to whether or not the tribe was a tribe at the time the Secretary was applying that decision.

John G. Roberts, Jr.:

This is — we are talking about an extraordinary assertion of power.

The Secretary gets to take land and give it a whole different jurisdictional status apart from State law and all — wouldn’t you normally regard these types of definitions in a restrictive way to limit that power instead of saying whenever he wants to recognize it, then he gets the authority to say this is no longer under Rhode Island jurisdiction; it’s now under my jurisdiction?

Deanne E. Maynard:

Well, there is — there is a competing presumption there that I think is — Chief Justice Roberts, which is that Indian statutes are interpreted to the benefit of the Indian.

And this was supposed to be a new deal for the Indians–

John G. Roberts, Jr.:

Well, how do we know which one of them benefits the Indian?

I mean, have the Indians benefited from Federal jurisdiction in the last 50 years?

Deanne E. Maynard:

–Well, the Indians are the ones who made the request to have the land taken into trust.

And I assume they know — that they believe it’s in their interest to have the land taken into trust.

John G. Roberts, Jr.:

What are the plans the Indians have of doing with the land once it’s determined to be Indian land subject to trust of the Federal Government?

Deanne E. Maynard:

The administrative record reveals that HUD loaned the — or granted the tribe money to build housing.

John G. Roberts, Jr.:

Yes, of course, the use of that land would not be limited to housing, right?

They could engage in other activities that Indian tribes can engage in, correct?

Deanne E. Maynard:

According to the administrative record, there are some HUD restrictions on the land.

If what you’re concerned with is the specter of gaming, our interpretation of the Indian Gaming Regulatory Act is that the tribe could not unilaterally decide to game on this property were it taken into trust.

But as to your point, the — with respect to the clarity of these definitions, the terms 1934 several times.

In–

Anthony M. Kennedy:

The Chief Justice’s question, and I was going to put the same question to Mr. Olson, is whether or not there is — is some canon of construction, some principle of Federalism which makes us be very cautious before we take land out of the jurisdiction of the State.

It sounds to me plausible.

Is there any authority for the proposition I just stated?

Have we said that in cases or–

Deanne E. Maynard:

–Well, you’ve said–

Anthony M. Kennedy:

–Or have we said the opposite, that there is no–

Deanne E. Maynard:

–Here I think it’s very clear that the purpose of section 5 was to allow the Secretary to take land into trust for Indians.

And then–

Anthony M. Kennedy:

–But is there any overriding principles about which we must be most cautious before we interpret the statute as depriving the State of the ownership and jurisdiction of this land?

Is there anything in the cases either way on that point?

Deanne E. Maynard:

–I don’t know — I don’t know standing here and, Petitioners haven’t cited anything for that principle in their brief, although they suggest — of that.

There is a competing principle that Indian sovereignty is not lightly to be set aside.

One important point I think is that the purpose of this statute — that the Secretary’s interpretation makes more sense.

The — the purpose of this statute was a forward-looking one.

It was to revitalize and reorganization rights.

John G. Roberts, Jr.:

Of course, your friend on the other side says the exact opposite.

It was backward-looking.

They had had the allotment policy, which they decided was not a good idea, and yet, that had resulted in Indian land being turned over to in fee simple, and this is a way to compensate for the discredited allotment policy.

So, if you weren’t recognized in 1934, you were not penalized by the allotment policy, so you didn’t need the benefit.

I think that backward-looking perspective seems to make perfect sense.

Deanne E. Maynard:

Well, the historians brief, I think, makes a good case that that’s not the right view of history.

But the text also debunks that view.

The half-blood definition is in no way limited to whether or not you were an Indian who was a member of a tribe who was allotted.

The inclusion of Pueblos also makes clear that that was not the purpose of the Act, because Pueblos never had their lands allotted.

This was a new deal legislation for Indians to let them revitalize.

It was the beginning of what now has consistently been, with the exception of the 1950s, the — you know, Congress has set about to allow the Indians to govern themselves.

The acquisition of land is extremely important to the ability to do that, to revive economically, to have self-governance.

The line that Petitioners pose would create an entirely arbitrary result.

Ruth Bader Ginsburg:

As you read the statute, Ms. Maynard, the words “now under Federal jurisdiction” could be deleted and the statute would mean the same thing that you’re urging.

So what do the words “now under Federal jurisdiction” add?

Deanne E. Maynard:

Well, I think, as I was saying earlier, I think the colloquy was — reveals that what they were trying to do was make the statute fluid so that it would apply at the time of application contemporaneous move with the times.

As I said earlier, I don’t think there is much distinction between recognition and under Federal jurisdiction when one is speaking about tribes, but perhaps–

David H. Souter:

Well, there may — there may not be, but let me on that score, take you back to an answer that Mr. Olson gave.

Assume for the moment, for the sake of the question, that we were to read this the way Justice Kennedy and Justice Breyer suggested, and that is to draw a distinction between the reference — the now reference between recognition and jurisdiction and say that the now refers to jurisdiction and it refers to the time of passage.

If that is the way we read it, should we remand this case to the circuit?

Mr. Olson said no.

There is no claim that, in fact, the tribe was, in fact, under jurisdiction at the time of passage.

What is your answer?

Deanne E. Maynard:

–I’m not certain enough to say, Justice Souter.

I’m not sure it was litigated on that — on that premise.

David H. Souter:

Well, tell us what you want us to do.

Deanne E. Maynard:

I mean, you know, if the Court is going to take that view of the statute, then I suppose a remand is preferable to let it be worked out.

But the Secretary’s preface.

David H. Souter:

In any case, you are not here to represent that, in fact, we may assume that there was no jurisdiction over the tribe at the time of the passage?

Deanne E. Maynard:

You know, I just don’t know that it’s ever been looked into from that perspective, especially if one draws the difference–

David H. Souter:

Well, if it hasn’t — if it hasn’t, then you’re not in the position to make the representation that Mr. Olson — I think Mr. Olson’s answer suggested would be a correct one.

Deanne E. Maynard:

–I believe that the Secretary’s interpretation from the beginning, as I suggested before, has — has understood recognition and under Federal jurisdiction at least with respect to tribes to be one and the same.

And the — the — if the Court were to draw a distinction and, you know — from the beginning of the 1930s and ’40s the opinions show that what the Secretary looked at was at the fact at the time as in 1964 there were published regulations interpreting Indians and tribe not limited by–

David H. Souter:

I’m sorry.

Are we in a position to — to draw or accept that conclusion here?

David H. Souter:

I mean, that — that wasn’t worked out.

Shouldn’t we remand and have that specifically addressed and specifically address the question of jurisdiction?

Deanne E. Maynard:

–Which wasn’t worked out?

David H. Souter:

Well, you were — you were saying that the — that a distinction simply had not been drawn at the BIA level, I guess, between jurisdiction and recognition.

And I don’t think — I don’t think we are in a position to say, yes, that’s so or, no, that isn’t so.

So that would seem to me to argue for a remand in and of itself.

Deanne E. Maynard:

Well, I think there–

David H. Souter:

Would you agree?

Deanne E. Maynard:

–Well, if the Court limits its view to the one definitional example in the IRA, then perhaps a remand is certainly preferable to a reversal.

But there is no need to remand, because there are two separate reasons.

For the Petitioner’s to prevail here, the text has to unambiguously foreclose the possibility–

Stephen G. Breyer:

I wouldn’t know that that’s so, because the — the question I ask myself on that is: Were I in Congress, is this the kind of thing I would have delegated to the Secretary to decide.

And it’s very hard for me to think that Congress wanted to delegate the power to the Secretary to decide whether 1934 or “now” means any time in the future.

Well, I mean that’s something Congress would decide: They meant by 1934, or they meant by “now” any old time it’s applied.

Now — now, you could argue that both ways, but why would you want to delegate?

What human being would want to say: The meaning of the word “now” is something I’m leaving to the Secretary?

Deanne E. Maynard:

–Even if you think, Justice Breyer, that 18, 1934, there are two other–

Stephen G. Breyer:

I’m not — I’m not saying it unambiguously means it.

That’s not what I’m saying.

I’m saying it’s totally ambiguous, but what the Secretary has to say about it is enlightening only insofar as the Secretary knows more about it than I.

That’s fine.

But not insofar as it delegates power to the Secretary to make up his own mind.

Deanne E. Maynard:

–Well, I think that one — if one can’t tell from the text in Chevron and other principles, that you allow the Secretary, in light of his understanding of the purposes of the statute, the plight of the Indians, contemporaneous things, to decide what the statute means.

But there are two other provisions in the statute that, apart from that, the other side, for them to prevail, the statute has to unambiguously foreclose the taking of land in trust for tribes, setting apart the example of “Indian”.

And the definition of “tribe” is, as Justice Stevens pointed out, it’s separately defined.

That–

John Paul Stevens:

Can I ask you a question?

It seems to me that the limited definition of “the tribe” really is quite irrelevant to this — to this case.

The term “Indian” is defined to include two classes of persons: One who are members of a certain category of tribes and others who have more than half Indian blood.

It seems to me that — and then you get to the definition of “tribe” that comes later.

John Paul Stevens:

It seems to me that when you’re talking about the definition of 1934, it said tribes located west of the Mississippi.

If they just limited it to that, that wouldn’t have limited the definition of “Indian”.

I mean the definition of “tribe”.

It would have made the category of — of persons of Indian dissent or eligible to be treated as Indians and whose eligibility is determined by tribal membership, limited but the — not to include all tribes.

So you can limit it, as I say, to tribes west of the Mississippi.

But then when you get down to defining the term “tribe”, there is no such definition.

So that I just think the fight about what “now” means is totally irrelevant to the meaning of the definition of “tribe”.

Deanne E. Maynard:

–I agree.

I agree wholeheartedly, and I think there might have been reasons that the Court of Appeals concluded they might have wanted to limit the definition of any of the benefits the Act allows individuals, but not limit the Act’s coverage of tribes.

Antonin Scalia:

I’m interested — I’m interested in the Secretary’s conclusion that recognized “tribe” and “tribe now under Federal jurisdiction” are one and the same; that the words are used redundantly.

Does he know the rule that we usually don’t — I guess he doesn’t because he interprets “now” to mean nothing.

Does he understand that we usually do not interpret words to have no meaning?

Why would they say both if they both mean the same thing?

Deanne E. Maynard:

Well, I think maybe I didn’t–

Antonin Scalia:

“Recognized tribe under Federal jurisdiction”, that, to me, means two different requirements.

Deanne E. Maynard:

–I think it can capture tribes that were previously recognized but that either disband or become — become not — not vibrant.

But in terms of currently recognized tribes, tribes that the Secretary today recognizes as tribes that have always been tribes — and that’s all we are talking about here: Tribes that were tribes before European contact, have had a cohesive political entity since that time.

And that’s what the Narragansetts are.

Stephen G. Breyer:

I have difficulty with the “tribe” thing.

I think it’s a very difficult case.

I have a hard time.

But the difficulty with the word “tribe” is that either that tribe has some people in it who are Indians, or it doesn’t, right?

That has to be true.

Now, if it has some people in it who are Indians, i.e., a person who falls within the definition of “Indian”, then, of course, the Secretary can take land for that because the whole thing is for the purpose of giving land to Indians.

But let’s imagine a tribe that has no Indians in it within the definition of the Act.

You are saying that this Act would give to the Secretary the power to take land for an entity that has no members within the Act.

Now, that is pretty hard for me to accept.

Deanne E. Maynard:

Two points, Justice Breyer.

There is nothing in the definitional section that requires the drafting of “Indian” on to the definition of “tribe”.

Stephen G. Breyer:

Well, there is one thing.

Stephen G. Breyer:

It says it’s for the purpose.

We — we give the Secretary the power to take land for a tribe for the purpose of giving land to Indians.

Deanne E. Maynard:

But in–

Stephen G. Breyer:

And now we have assumed a tribe that has no such members because “Indian” has a special definition.

Deanne E. Maynard:

–But later on in Section 5 it says we can take land in trust on behalf of an Indian tribe or an individual Indian for whom the land is required.

Antonin Scalia:

I don’t — I don’t understand how you say that — that the term “tribe” has no limitation to Indians.

“The term “tribe”, whenever used in this Act, shall be construed to refer to any Indian tribe, organized band or Pueblo, or the Indians residing on one reservation. “

Deanne E. Maynard:

Well, we have to graft on to the last clause where — Indians residing on a reservation.

But it can’t graft on to “Indian tribe”, Justice Scalia, because “Indian tribe” is used to define “Indian”, as well.

And the whole thing is circular, and it–

Antonin Scalia:

Well, it’s — I mean circular definitions are nothing unusual in the legislation that Congress comes up with.

Deanne E. Maynard:

–But it — that may be so but it doesn’t unambiguously foreclose the Secretary’s interpretation here.

And that must mean they must show that it unambiguously forecloses–

Antonin Scalia:

What meaning — what meaning do you think the sentence has when it says:

“The term “tribe” shall be construed to refer to any Indian tribe, organized band, Pueblo, or the Indians residing on one reservation? “

Deanne E. Maynard:

–This Court had interpreted–

Antonin Scalia:

How can you interpret that not to be limited to Indian tribes?

Deanne E. Maynard:

–In Montoya this Court had interpreted in an earlier statute the term “Indian tribe” and “organized band” to mean a distinctly Indian community that shared political, ethnic, and cultural attributes.

John G. Roberts, Jr.:

An Indian — an Indian community.

Now, if we are looking for a definition of “Indian”, we go back to the first sentence.

Deanne E. Maynard:

But the definition of Mr. Chief Justice.

That can’t be clear.

You can’t take their — their plain-text argument where you just take the word anywhere.

John G. Roberts, Jr.:

Well, if it does it four times, you ought to give effect to it at least once.

It says

“Indian tribes now under Federal jurisdiction. “

It seems to me that that is the key restriction, and that it’s not taken away by that last sentence, which again reiterates that it’s “Indian tribe”.

And then in the last clause to which you refer, it’s still “Indians residing on one reservation”.

Deanne E. Maynard:

Well, the–

John G. Roberts, Jr.:

It’s a defined term.

Deanne E. Maynard:

–Yes, and I grant you that it may graft on to the last clause.

But it doesn’t graft on to

“Indian tribe, organized band, or Pueblos. “

John Paul Stevens:

It just describes the subcategory of Indian tribes who — for whom members can qualify even though they don’t have half blood.

That’s the point.

It picks up people who are less than half blood if they are members of of those tribes.

Deanne E. Maynard:

Well — but if you look broadly at the Act, Justice Stevens, there are provisions that are meant to address tribe issues and tribal issues.

And — and I think that the purpose of the Act — it makes more sense to read “tribe” as — as not limited by the date and the provisions that apply to “tribe”, which is how the Secretary has always read it.

Stephen G. Breyer:

Then Collier, himself, would have been wrong.

Because Collier in this great famous colloquy says, when he adds these four words, he says to the Committee: That would limit the Act to the Indians — the Act would be limited to the Indians now under Federal jurisdiction except that other Indians of more than one-half Indian blood would get help.

So what he is thinking in his mind is if you have any kind of entity or a person who is more than one-half Indian blood, fine.

The Secretary can act.

But suppose we have an entity that has only people who have less than one-half Indian blood.

Then they are out of luck unless they are now under Federal jurisdiction.

Deanne E. Maynard:

As we — I discussed earlier, I don’t agree with your reading of the colloquy.

I do think it’s ambiguous.

I think, at a minimum, the statute doesn’t foreclose the secretary’s interpretation of the provisions.

And 1 clearly is not the 19.

Because in Section 1 they talk about Indians who have entered into treaties.

And that would have included both Indians who were and were not under section — under — would meet the definition of 19; nor would plugging that definition into Section 1 make very much sense.

The — if I could, just before time runs out — if the Court gets to the second question, as we think you should, the — the Settlement Act clearly does not repeal the Secretary’s authority to take land into trust.

And if the Court has any questions about that, it addresses jurisdiction in Rhode Island expressly and limits Rhode Island’s jurisdiction to the settlement land.

It contemplates that the Secretary may some day take land into trust on behalf of the tribe.

Other acts, similar acts, do expressly address that question.

Unlike the Rhode Island Act, they have similar extinguishment premises, and, yet, they — they went on.

I just — the Rhode Island extinguishment provisions just don’t have the meaning that — that Petitioners say.

John G. Roberts, Jr.:

Of course if we just — I’m sorry to jump back to the other provision, but if we disagree with your interpretation and Congress thinks we are wrong they can pass another one of these 15, 16 provisions that they have that says this tribe is — is recognized now.

Deanne E. Maynard:

They could.

If I could make one point in response to that?

Congress has already acted on the presumption that the Secretary’s reading is correct.

Deanne E. Maynard:

In ILCA section 2019 there is an exception — it’s in the back of our brief on page 30 — IGRA; sorry, IGRA — page 35a that lands taken into trust as part of an initial reservation of any tribe acknowledged by the Secretary under the Federal acknowledgment process.

In other words, Congress understands the Secretary to have the authority to take land in a trust for tribes that have been duly recognized under the Secretary’s acknowledgment process.

John G. Roberts, Jr.:

Well — I’m sorry to keep you there longer than you may want to be.

[Laughter]

Why — why else — why would Congress then enact these 15 or 16 separate provisions if they think the — if in this provision they think it’s not necessary?

Deanne E. Maynard:

In the ones of which I’m aware I think just to make it clear beyond doubt that Section 465 applies to tribes.

Often the ones that I know of just have a list of statutes and say these are — now apply to the — to the tribe.

In — in other acts Congress has acted; in fact it’s amended section 16 of the IRA in 1994.

And there has been decades — since 1964 the Secretary has interpreted section 16 to apply to any recognized Indian tribe; and Congress amended it to add authority — (f) and (g) — instruct the Secretary to treat all recognized tribes the same.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Olson, you have four minutes remaining.

Theodore B. Olson:

Thank you, Mr. Chief Justice.

Let me start with Justice Kennedy’s question, and I think one other justice asked about other canons of construction, specifically with respect to sovereignty of States.

This Court said in Vermont Agency in 2000 if Congress is to alter the constitutional balance between States and the Federal government, it must make its intention to do so unmistakably clear; and Justice Kennedy, I think you asked that question in the context of the relationship between States and Indian tribes, and I would refer the Court to Seminole Tribe, in which the Court said the Congress must unequivocally express its intent to abrogate States’ immunity.

As the Chief Justice was pointing out, this is a very broad grant of authority, if it is what the government says it is.

The Secretary can take property from the State, particularly a small State like Rhode Island, but it would be the same anywhere, and strip the State of jurisdiction and give jurisdiction to a dual sovereign operating within that State.

We submit that the legislative history, the legislative language, the legislative purpose, the contemporary construction of the statute by the author of this statute, and everything stands for the proposition that there was some limitation intended here.

I think the Government overlooks the fact and it somewhat misstates it by saying land may be taken for tribes.

I’ve heard that several times not just in the brief but during oral argument.

Section 5 which is the grant of authority says the Secretary is authorized to take land for the purposes of providing land for Indians and then section 19 defines the term Indians.

Now it may — once it decides that it may take title it may take land for Indians, it can then vest the title in — as it says at the end of section 5 — in individual Indians, individual Indian or tribes.

But it takes lands for Indians; they have to be Indians or land cannot be taken.

The other canons of construction, besides the ones that must recognize State sovereignty, is that words must be given their ordinary meaning absent a contrary context.

Words are not to be considered to be superfluous.

There are several instances of efforts to repeal by implication in the Government’s brief; and I could go on and on.

There are several violations of various canons of construction.

The colloquy is clear when it’s put in context.

It’s exactly what I think you were getting at, Justice Breyer.

There is a difference between you know, Indians under jurisdiction, which is what Mr. Commissioner Collier meant, and Indians that may have had some connection with the Federal Government.

That whole colloquy is explained quite clearly in the — in the document the Government discovered in August; and it’s dated 1980; it’s a memorandum by the assistant solicitor, and I explains — it explains the context.

Theodore B. Olson:

Section — the tribe was not — this particular tribe I submit — and we would describe this, this question came up in a couple of the questions, was this tribe under Federal jurisdiction and should the case be remanded.

I know of nothing that suggests that it was under Federal jurisdiction.

I invite the Court to look at page 7 of our brief.

The tribe was under State jurisdiction, under State control and there is a reference to that in an explanation in the joint appendix at pages 21a and 23a.

I don’t have time to elaborate on that, but that is answered there.

U.S. versus–

Ruth Bader Ginsburg:

How did it get to be recognized?

I thought the recognition reflects that it’s had a history going way, way back?

Theodore B. Olson:

–It had — the — the group of Indians called the Narragansetts, yes, have history that does go way back; but the are relationship with the Federal Government was what was being considered where — the Indian Reorganization Act is — and that relationship did not exist at that time.

U.S. v John, the bracketed phrase doesn’t mean that that phrase was unambiguous.

The Court clearly understood that it meant 1934, the same as Commissioner Collier meant, and the same as the statute indicated.

It doesn’t show that it was ambiguous.

The Court was speaking in 1978, so it was quite natural — instead of using the word 1934; and it was necessary to get to that question of Indian blood which the Court finally got to in U.S. v John to — because otherwise we wouldn’t have needed to get to that question, if it had been otherwise answered as — with respect to the meaning of section 19.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.