On Using Indians and Tribes as Shills in the Supreme Court

I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).

Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.

A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.

2 thoughts on “On Using Indians and Tribes as Shills in the Supreme Court

  1. MJ Kelly August 30, 2012 / 10:28 am

    I believe Lindsay Robertson made the same point about M’Intosh v. Johnson in his book “Conquest By Law,” that it was a means for the Court to clean up a problem with land grants issued to veterans of the Revolutionary War.

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