The Solicitor General and Indian Law

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

Continue reading

CA10 Interprets Muscogee (Creek) Secured Transactions Law

The case is In re Harper (Malloy v. Wilserv CU). The CA10 held that tribal law gaps forced the court to resort to Oklahoma law, which appears to have undermined the purpose of having tribal law in the first place. It’s a bankruptcy case, with commercial law as a backdrop.

Here are the materials:

Continue reading