On December 10, 2010, the Supreme Court likely will decide whether to review the Ninth Circuit’s decision that the State of California failed to negotiate in good faith with the Rincon Band. This particular petition is very interesting on a number of levels, as it is really the first time a federal circuit has delved deep into the merits of a good faith claim under IGRA. Our guess is that the Court will not grant review, but it is a close question for reasons largely having to do with power politics (though we have been wrong before).
Here are the factors the Supreme Court uses to determine whether to grant cert.
(1) Circuit Splits. No split here, and perhaps there never will be. California may be the only state to have expressly waived its immunity to good faith suits under IGRA, and so the Ninth Circuit likely will be the only circuit to review this legal question for the foreseeable future. There aren’t even any splits in authority between state and/or federal courts for this reason. California in its cert petition resorted to asserting that the Department of Interior is generating splits in authority with itself by approving some compacts (Seminole Tribe) and disapproving others (Habemotolel Pomo) supposedly on revenue sharing grounds. Even assuming these two decisions cannot be reconciled (they plainly can be distinguished on the facts), we doubt there has been many (if any) cert grants based on a federal agency’s conflicting internal decisions. This factor weighs heavily in favor of letting the legal question percolate below. If there is a federal agency conflict, then let the parties appeal to the federal courts and see if any split in authority develops.
(2) Gross Error. Very unlikely that the Supreme Court would see a gross error here. This is a case of first impression, and so it would be very difficult for any court to make an obvious mistake like misapplying the correct precedents (since there aren’t any).
(3) Error Correction. This factor means that the Court will be disinclined to grant a case where the lower court merely got the facts wrong (from the point of view of the parties); in other words, cases labeled factbound. One could make a strong claim this case is factbound, given that the negotiations between governors and tribes are typically very heavily tribe-specific. A comparison between states is instructive. The 25 percent revenue sharing between Connecticut tribes and the state is entirely market-based, relating to the geography and gaming market available. The 10 percent sharing (generally) between Michigan tribes and the state also relates to the market of that region. The Rincon Band cert opposition brief does a good job of highlighting to the Court early that this particular negotiation involved only additional slot machines and the extension of the compact, not the compact from the ground up. The cert opp brief implies that this petition may even be virtually moot, in that the Colusa case expanded the pool of slot machines available to compacting tribes. In short, this is a very fact specific case.
(4) Importance. This is the key element in any cert petition — the most subjective factor in any decision made by the Court on a cert petition. And here is where Indian country is at its weakest.
The Supreme Court grants some cases that are splitless just because they are simply “important” and involve key federal law questions, or involve important players. The United States, for example, is the most important player in Supreme Court decisionmaking. State governments are a distant second. Tribal interests are absolutely dead last in this category, stacked up against the feds and the states. Since the State of California is the petitioner, it is likely the Court will take this petition seriously (and of course SCOTUSblog is watching this petition). My research indicates that as a general starting point, about a quarter of state petitions brought against tribal interests are granted by the Court. Some years that figure is much higher. This Term has already seen one state petition granted.
But just because a state is the petitioner doesn’t guarantee a grant. There has to be more. And here is where California is both strong and weak. Finding elements of “importance” is a task in which multiple players may participate. In support of California’s petition is Judge Jay Bybee, who dissented at great length in the Rincon Band case. There are a handful of lower court judges who can utilize a concurrence or a dissent to persuasively highlight issues for Supreme Court review (e.g., Judges Posner, Kozinski, Wilkinson, etc.), and the practice perhaps has been successful as recently as this Term’s grant in the Madison County v. Oneida Indian Nation case, which followed an angry plea by Judge Cabranes of the Second Circuit. Judge Bybee’s dissent is a lengthy argument suggesting that (1) California will be out enormous general revenue funds, if one logically extends the reasoning of the majority (and the cert petition dropped the phrase “hundreds of millions”, which is just hyperbole — they could well have said billions); and (2) that several other states (namely, Michigan, New Mexico, Oklahoma, and Florida) will suffer the same fate, or least be forced to defend in federal court their revenue sharing provisions. If the Supreme Court buys this argument, then it’s already over. The Court’s narrow focus and inability to see in nuance hurts Indian country in fundamental ways. Hyperbole and even hysterical claims sometimes attract the Court’s attention, so long as those voices are state governmental voices.
But Judge Bybee, as we’ve said before, is flat wrong. Revenue sharing has always been on weak grounds even when the states had “market exclusivity” to offer tribes — and still this is the very first successful challenge. The Ninth Circuit’s opinion does change things, but most federal circuit decisions change things. This case is already outdated. More important to future revenue sharing negotiations is how the states and the tribes are able to be creative in developing new ways of identifying “meaningful concessions.”
And so the chances of this petition being granted are relatively high, but still unfavorable to California. We may see a CVSG, where the Court defers on the petition and asks the Solicitor General to opine on the question. Given the Dept. of Interior’s close involvement in these questions (they’re the ones who interpret what is a “meaningful concession” in the first instance), it makes sense.
That said, power politics always dooms tribal interests. The Court granted cert in Wagnon v. Prairie Band, it appears, and gave the State of Kansas a windfall in a tax case where Kansas had simply chosen to abrogate an adequate tax agreement between the state and the tribe. The Court has done it before, and they could do it again. That said, as the Rincon Band pointed out, no other state filed an amicus supporting California’s cert petition (unlike Wagnon, Carcieri, and other state petitions).
A final comment. The Rincon Band is a sovereign entity entitled to make its own decisions, but that tribe, like any other tribe wrapped up in federal appellate litigation, absolutely must be aware that their case could be the one to reach the Supreme Court. By the time a case such as this case is appealed, Indian tribes must consult with Supreme Court specialists. As we have seen in recent years, it’s too late to hire a specialist to write the merits brief and argue the case. It’s too late to hire a specialist to write the cert opposition brief. Rincon Band loses this case (and that’s a fact) — and so do Indian tribes nationally — if the Court grants cert here. Seventy percent or more of cases the Court grants are reversed, and they usually only grant cases when they think the lower court got it wrong. No offense to counsel for the Band who won below (though I suppose they could be offended anyway), because the cert opposition brief was good, but it could be better with specialists on the case working side by side with tribal counsel. This case will be over on Dec. 10, and it worries me that the tribe didn’t play its best cards before now.