On December 10, 2010, the Supreme Court likely will decide whether to review the Ninth Circuit’s decision that the State of California failed to negotiate in good faith with the Rincon Band. This particular petition is very interesting on a number of levels, as it is really the first time a federal circuit has delved deep into the merits of a good faith claim under IGRA. Our guess is that the Court will not grant review, but it is a close question for reasons largely having to do with power politics (though we have been wrong before).

Here are the factors the Supreme Court uses to determine whether to grant cert.

(1) Circuit Splits. No split here, and perhaps there never will be. California may be the only state to have expressly waived its immunity to good faith suits under IGRA, and so the Ninth Circuit likely will be the only circuit to review this legal question for the foreseeable future. There aren’t even any splits in authority between state and/or federal courts for this reason. California in its cert petition resorted to asserting that the Department of Interior is generating splits in authority with itself by approving some compacts (Seminole Tribe) and disapproving others (Habemotolel Pomo) supposedly on revenue sharing grounds. Even assuming these two decisions cannot be reconciled (they plainly can be distinguished on the facts), we doubt there has been many (if any) cert grants based on a federal agency’s conflicting internal decisions. This factor weighs heavily in favor of letting the legal question percolate below. If there is a federal agency conflict, then let the parties appeal to the federal courts and see if any split in authority develops.

(2) Gross Error. Very unlikely that the Supreme Court would see a gross error here. This is a case of first impression, and so it would be very difficult for any court to make an obvious mistake like misapplying the correct precedents (since there aren’t any).

(3) Error Correction. This factor means that the Court will be disinclined to grant a case where the lower court merely got the facts wrong (from the point of view of the parties); in other words, cases labeled factbound. One could make a strong claim this case is factbound, given that the negotiations between governors and tribes are typically very heavily tribe-specific. A comparison between states is instructive. The 25 percent revenue sharing between Connecticut tribes and the state is entirely market-based, relating to the geography and gaming market available. The 10 percent sharing (generally) between Michigan tribes and the state also relates to the market of that region. The Rincon Band cert opposition brief does a good job of highlighting to the Court early that this particular negotiation involved only additional slot machines and the extension of the compact, not the compact from the ground up. The cert opp brief implies that this petition may even be virtually moot, in that the Colusa case expanded the pool of slot machines available to compacting tribes. In short, this is a very fact specific case.

(4) Importance. This is the key element in any cert petition — the most subjective factor in any decision made by the Court on a cert petition. And here is where Indian country is at its weakest.

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