[Moved up from James Meggesto’s comment.]
A quick note from Patricia Millett – who has been handling the case for the Osage Nation at the Supreme Court level – for those readers that may be interested in the background and timing going forward. On March 5, 2010, the Tenth Circuit held that the Osage Nation’s reservation had been disestablished, and it did so in the acknowledged absence of any textual direction from Congress and despite recognition of the Reservation by the Executive Branch of the U.S. Government. After the Tenth Circuit denied rehearing, the Osage Nation filed a petition for certiorari with the Supreme Court seeking review of a conflict in the circuits concerning the proper mode of analyzing disestablishment questions. Today’s order from the Supreme Court calling for the views of the Solicitor General on the Nation’s petition is a significant development in the case because it signals that the Supreme Court is looking seriously at the petition, and the United States’ views on this important question will now be officially obtained for the first time in this case. Indeed, one might question whether, as a basic matter of separation of powers, a court could hold that a reservation has been disestablished without any express direction from Congress or obtaining the views of the United States government. Given the timing of the Court’s order, it is likely that the United States will file its brief in response to the Court’s order in May and the Court will act on the petition before the end of the Term in June.