Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.
Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.
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.
Several tribes — Jena Band of Choctaw Indians, Alabama-Coushatta Tribe of Texas, Citizen Potawatomi Nation, Coquille Indian Tribe, Rincon Band of Luiseno Indians, Shoalwater Bay Indian Tribe, Spokane Tribe of Indians, Standing Rock Sioux Tribe — filed a joint amicus brief supporting the Kickapoo Tribe’s cert petition over the Secretarial procedures for establishing Class III gaming compacts, a rule struck down by the Fifth Circuit a few months ago. Here is the Tribal Amicus Brief. Here is the link to the Kickapoo cert petition. The State’s cert opposition is due later this month.
It is significant, of course, that the United States did not file a cert petition.