The U.S. Supreme Court will hear its first Indian law case on November 1 but its newest member won't be there.

Justice Elena Kagan is recused from US v. Tohono O'odham Nation, a trust law case. She served as Solicitor General at the Department of Justice when the federal government filed its appeal.

Kagan's recusal leaves open the possibility for a 4-4 split in the case. If that happens, the decision from the Federal Circuit Court of Appeals would stand.

The dispute affects the ability of a tribe to pursue trust cases in different venues. The Tohono O’odham Nation filed a historical accounting lawsuit in U.S. District Court for the District of Columbia along with a money damages case in the U.S. Court of Federal Claims.

The Federal Circuit ruled that the tribe can pursue both cases because each would result in a different outcome. The Obama administration disagrees.

Federal Circuit Decision:
Tohono O'odham Nation v US (March 16, 2009)

Related Stories:
Supreme Court accepts Tohono O'odham trust law case (4/19)
Tribes working to keep cases away from Supreme Court (3/31)
Federal Circuit ruling in Tohono O'odham trust case (3/16)