The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”
In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):
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