In the Kickapoo Tribe’s petition for cert to the Supreme Court re: the Class III Procedures (i.e, the Seminole Tribe “fix”) that were invalidated by the Fifth Circuit, the United States (ostensibly on the same side as the Tribe) filed a brief opposing certiorari (here). The State of Texas had already declined to respond to the cert petition.

The government’s brief is an interesting read. First, the US says the Fifth Circuit was wrong on any number of points — namely, that the court incorrectly held that the case was ripe for decision (the procedures were not yet complete) and that the court incorrectly held that the Secretary was not authorized to issue the regulation in the first place. Second, the government says there is no reason to hear this case now, given that it would be a case of first impression for the Supreme Court (usually a death knell for cert petitions) and that the Fifth Circuit’s panel decision was split three ways.

If there was any doubt that the Kickapoo petition would be denied, this brief effectively dispels that doubt.