Turtle Talk: No circuit split on Indian gaming case

Wednesday, January 14, 2009  

"I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?

NO."

Get the Story:
Commentary on Harrah’s v. NGV Gaming Cert Petition (Turtle Talk 1/13)