Rez Judicata

The Supreme Court is set to consider cert in Kickapoo Traditional Tribe of Texas v. Texas on May 29, 2008. Here are the basics:

In the wake of Seminole Tribe, the Secretary of the Interior adopted a set of regulations that allowed tribes to pursue Class III gaming even if an intransigent State refused to negotiate a pact under the IGRA. The Kickapoo Traditional Tribe sought Class III gaming, but Texas categorically declined to negotiate a pact knowing full well that, under Seminole, the Tribe could never call Texas to account in federal court. So the Tribe pursued Class III gaming through the Secretary’s regulations. Texas then challenged the validity of the regulations.

The 5th Circuit, 2-1, struck down the regulations. Without delving into the finer details, the Chief Judge Jones held that (1) the IGRA unambiguously limited secretarial intervention in Class III gaming disputes; (2) even if IGRA was ambiguous, it did not delegate authority to the Secretary to prescribe these regulations; (3) Seminole did not create a “gap” for the Secretary to fill; and (4) even if Seminole did create a gap, the Secretary’s regulations were unreasonable.

Judge Dennis wrote a spirited dissent challenging most of Judge Jones’ conclusions. According to Judge Dennis, Judge Jones’ opinion creates a split among the circuits on some points of administrative law (such as whether judicial nullification of a statutory provision creates a “gap” in the statute for an agency to fill).

If the Court grants cert, we of course will fully analyze the opinions in this case.