Supreme Court delays action on Indian gaming case

A case that tests a critical provision of the Indian Gaming Regulatory Act remains on the docket as the U.S. Supreme Court wraps up its current term.

The court was due to consider a petition filed by the Kickapoo Tribe during a closed-door conference last week. Instead of taking action, however, the justices asked the state of Texas to file a brief in the case.

Back in April, the state waived its right to respond to the tribe's petition. The state did the same in an earlier Indian gaming case over the closure of the Alabama-Coushatta Tribe's casino.

But now that the court wants Texas to file the brief, the state will finally go on record. The response is due by June 18 -- a day before the final conference of the current term.

The move means the case might not be resolved until the court returns to work in October of this year. The delay affects not just the Kickapoos but also an Alabama tribe whose gaming rights are being contested in a pending lawsuit.

In both cases, the Interior Department invoked a provision of IGRA that is used when states like Texas and Alabama refuse to negotiate with tribes. Interior is authorized to issue what are known as secretarial procedures so the tribes can offer the same types of Class III games that are legal in their respective states.

The procedures would have helped the Kickapoo Tribe but Texas argued that they were illegal. In a ruling last August, the 5th Circuit Court of Appeals agreed and said Interior was wrong to cut the state out of the process.

"The Secretarial Procedures violate the unambiguous language of IGRA and congressional intent by bypassing the neutral judicial process that centrally protects the state's role in authorizing tribal Class III gaming," the court wrote in a 2-1 split.

The Department of Justice has said the 5th Circuit "erred" by invalidating the procedures. But the Bush administration -- led by George W. Bush, the former governor of Texas -- refused to appeal the case to the Supreme Court and is urging the court not to accept it.

The Kickapoos, backed by eight other tribes, want the Supreme Court to take the case. Not only did the 5th Circuit get it wrong, they argue the decision conflicts with another circuit.

The state of Alabama is closely watching the case as it pursues its own challenge to the secretarial procedures.. The state has refused to negotiate with the Poarch Band of Creek Indians.

Relevant Documents:
Docket Sheet No. 07-1109 | 5th Circuit Ruling (August 17, 2007) | Briefs and More

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