In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power. As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases. See generally Ann E. Tweedy, “Unjustifiable Expectations: Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012). There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response.
In related news, former Oneida chairman Jake Thompson passed away last month: “Jake Thompson, who started Oneida land claim, dies.”