The Bush administration is taking an unusual position in an Indian gaming case that is currently before the U.S. Supreme Court.

In a brief filed April 28, the Department of Justice argued that the 5th Circuit Court of Appeals "erred" by invalidating a contested provision of the Indian Gaming Regulatory Act. The provision authorizes the Interior Department to help tribes with Class III gaming when a state refuses to negotiate a compact.

But even though government attorneys agree the 5th Circuit was wrong, they don't want the Supreme Court to review the decision. No other courts have ruled on the legality of the contested provision of IGRA, Solicitor General Paul D. Clement wrote in the 15-page brief.

"No other court of appeals has yet addressed the validity of the [Class III] procedures regulations, however, and the decision below does not conflict with any decision of this court," the brief stated. "Further review of the decision of the court of appeals is thus unwarranted."

The administration's position runs counter to those of the Kickapoo Tribe of Texas and several other tribes that submitted briefs to the Supreme Court. The tribes argue that the 5th Circuit decision conflicts with rulings from the 9th Circuit and the 11th Circuit.

Circuit splits sometimes lead to review by the Supreme Court. But the DOJ brief characterized the 5th Circuit ruling as the first of its kind, even as the state of Alabama, which falls under the 11th Circuit, filed a new lawsuit that seeks to invalidate the same Class III procedures at issue in the Kickapoo case.

Texas and Alabama are among the few holdouts when it comes to Indian gaming. Since IGRA was passed in 1988, states across the nation have entered into Class III compacts with tribes, whose casinos generated $26 billion last year and employed more than 670,000 people, according to the National Indian Gaming Association.

When he was governor of Texas, President George W. Bush refused to negotiate a Class III compact with any of the three tribes in the state. During his 2000 presidential campaign, he said the state should be able to block a tribe from engaging in gaming.

"My view is that state law reigns supreme when it comes to Indians, whether it be gambling or any other issue," Bush said, according to news reports from the time.

The 5th Circuit's decision from last August embraced that philosophy. The 2-1 ruling said Interior Secretary Dirk Kempthorne overstepped his bounds by cutting Texas out of the gaming process.

"The Secretary may not decide the state's good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce," Chief Judge Edith H. Jones, a Reagan nominee, wrote in the 42-page opinion. "To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a wholesale substitute for the judicial process amounts to logical alchemy."

Despite the negative ruling, the DOJ brief argues that Interior could still issue Class III rules for tribes in the future. Although the brief does not elaborate, this could lead to a rewrite of the regulations at issue in the case. The regulations at 25 CFR Part 291 were finalized during the Clinton administration in 1999.

The state of Texas declined to file a brief in the case. The Supreme Court has not set a date at which it will review the Kickapoo Tribe's petition for review.

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

Related Stories:
Texas tribe presses Supreme Court on IGRA issue (4/22)
Alabama sues to block Poarch Creek Class III gaming (4/9)
Class III gaming efforts in doubt after court decision (9/24)
Appeals court blocks Class III gaming for Texas tribe (8/21)
Texas cheers ruling against Kickapoo gaming (8/21)
Sen. Cornyn asks DOI to delay Kickapoo gaming (6/29)
Interior enters Class III debate in three states (11/15)