The U.S. Supreme Court heard US v. Jicarilla Apache Nation, a fiduciary trust case, on Wednesday.

Justice Elena Kagan, the newest member of the court, did not participate. She served as Solicitor General at the Department of Justice when the case was in the lower courts.

Her absence leaves open the possibility of a 4-4 split among the remaining justices. In that event, the Federal Circuit Court of Appeals decision in support of the Jicarilla Apache Nation will stand.

Based on the oral argument yesterday, an even split could occur. Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito -- all of whom have the worst records in Indian law -- appeared to favor DOJ's argument that the federal government doesn't have to disclose all of its legal advice to Indian beneficiaries.

Justice Clarence Thomas did not ask any questions during the hearing. He almost always ends up on the same side Scalia, which would appear to give DOJ at least 4 votes in this case.

Justice Stephen Breyer, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor appeared to be more open to the tribe's argument. Sotomayor repeatedly questioned they the federal Indian trust responsibility wasn't comparable to that of a private trust.

"[T]here's no need to use the word 'trust' because it wouldn't be a trust," she said.

Justice Anthony Kennedy appeared to land somewhere in the middle of the argument. Depending on his vote, the case could go 5-3 against the tribe or 4-4 in favor of the tribe, assuming that Breyer, Ginsburg and Sotomayor support the tribe's stance.

Get the Story:
Supreme Court Appears to Favor Government in Indian Trust Fund Case (Greenwire 4/20)
SUPREME COURT NOTEBOOK: Kagan absences no big deal (AP 4/21)

Oral Argument Transcript:
US v. Jicarilla Apache Nation (April 20, 2011)

Federal Circuit Decision:
In Re United States (December 30, 2009)

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