Supreme Court – Page 145

Early Preview of the Supreme Court’s 2010 Term

August 30, 2010August 30, 2010Matthew L.M. Fletcher3 Comments

Heading into the sixth year of the Roberts Court, we note first that the last Term (2009) was the second Roberts Court Term that did not feature a single Indian law case. In the first five years of the Court, there have been only 5 Indian law decisions — all losses for Indian Country.

However, the upcoming Term features one case already, and several others that are likely to be granted. Note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.

1. United States v. Tohono O’odham Nation (09-846)

Question presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

As we’ve noted before, this is a case in which Justice Kagan will have to sit out, due to her participation as Solicitor General. For the T.O.N., it might be a good thing, in that the respondents now only need four votes to prevail.

2. Hogan v. Kaltag Tribal Council (09-960)

Question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation.

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OSG Brief in Hogan v. Kaltag Tribal Council — OSG Supports Tribe

August 28, 2010Matthew L.M. Fletcher5 Comments

Huge brief, here: Hogan 09-960 (SG Response).

Earlier materials here.

SCOTUSBlog: Madison County v. Oneida Nation a “Notable Petition”

August 26, 2010Matthew L.M. Fletcher3 Comments

No surprise here.

From SCOTUSblog:

Title: Madison County v. Oneida Indian Nation
Docket: 10-72
Issue: (1) Whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes; and (2) whether the ancient Oneida reservation in New York was disestablished or diminished.

Gould v. Cayuga Indian Nation Cert Petition

August 20, 2010Matthew L.M. Fletcher2 Comments

Here:

Gould v. Cayuga Cert Petition

Lower court materials here.

Questions presented:

I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.

II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

When it rains, it pours, and it’s a veritable hurricane in New York right now.

Flurry of Amici Supporting Madison County’s Cert Petition against Oneida

August 19, 2010Matthew L.M. Fletcher

Here:

States Amicus in Support of Petition

Town of Lenox Amicus in Support of Petition

Town of Verona Amicus in Support of Petition

The petition in Madison County v. Oneida Indian Nation is here. Lower court materials here.

Analysis that now appears to be mere wishful thinking on whether the Court will grant review is here.

United States v. Jicarilla Apache Tribe — Time Sensitive — OSG to Decide Whether or Not to Seek Cert in Trust Case

August 17, 2010Matthew L.M. Fletcher2 Comments

Here are the materials so far in United States v. Jicarilla Apache Tribe (No. 10A20):

J-2010-08-10 In re US 2d application for cert. extension

This application was granted and the new deadline is Sept. 19 (docket entry).

It may be that right now the OSG is considering whether to petition for en banc review in the Oneida land claims case (for good reason, see here), but wondering whether that en banc petition will undermine a cert petition in the Jicarilla case (documents here).

Jicarilla is about whether the United States must turn over federal trust responsibility documents it claims are privileged (and documents that indicate the U.S. has a greater fiduciary duty to tribes than the DOJ is willing to accept in litigation with Jicarilla). Whether or not to file in Oneida goes to the heart of the trust responsibility.

Top Side Briefing in U.S. v. Tohono O’odham Nation

August 16, 2010Matthew L.M. Fletcher3 Comments

Here:

USA Petitioner Brief

Sisk Amicus Brief

Petition stage briefs are here.

Fort Peck v. HUD Cert Petition

August 14, 2010Matthew L.M. Fletcher

Here: Fort Peck Cert Petition.

Questions presented:

Under the Native American Housing Assistance and Self Determination Act of 1996 (NAHASDA), Congress directed the Secretary of Housing and Urban Development (HUD) to establish a formula to allocate annual block grants to Indian Tribes for affordable housing activities. Congress directed that the formula be based on factors which reflect housing need, including three explicit factors. The first factor is the number of dwelling units owned or operated by the Tribes under the 1937 Housing Act at the time the regulations became effective. 25 U.S.C. § 4152 (b) (1). The Secretary promulgated a regulation, 24 C.F.R. § 1000.318, that removes some of these dwelling units from the formula. After the regulation was invalidated by the district court as violative of the statute, Congress amended the statute to incorporate, with significant exceptions, part of the regulation into the statute. The questions presented are:

(1) When Congress mandates a definitive number of units to be considered as a factor in an annual funding formula, may the Secretary lawfully impose a regulation that fails to include all of the units in the formula?

(2) The Tenth Circuit declined to address the effect of the 2008 amendment on the regulation’s validity. Does the amendment of the statute following the district court’s decision support the district court’s ruling that the regulation was invalid prior to the amendment?

(3) Does the Tenth Circuit’s decision that the Secretary may exclude dwelling units from the formula conflict with the decisions of other circuits holding that statutory factors which Congress mandates for consideration by an Agency must be considered in full?

Lower court materials here.

Martha Minow on Justices Marshall and Kagan

August 9, 2010Matthew L.M. Fletcher

From the Boston Globe:

NOW THAT the Senate has confirmed Elena Kagan to the Supreme Court, there will be post-mortems about the confirmation process. Many members of the Judiciary Committee criticized Kagan for her admiration of Justice Thurgood Marshall, for whom she clerked. I also clerked for Marshall, and found that these criticisms revealed not only a lack of knowledge of Marshall’s precise adherence to rules and precedent but also a failure to appreciate the significance of his contributions to American law. Kagan’s confirmation is not only a victory for her, but also a confirmation of Marshall’s enduring legacy.

In the confirmation process, Republican Senator Jeff Sessions of Alabama questioned Marshall’s concern for “the little guy.’’ Senator John Cornyn of Texas labeled him “a judicial activist.’’ Senator Chuck Grassley of Iowa announced that Marshall’s legal views “do not comport with the proper role of a judge or judicial method.’’

They seemed determined to find some way to paint then-Solicitor General Elena Kagan as someone other than the accomplished and mainstream lawyer that she is. As Washington Post columnist Dana Milbank put it, “Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint . . . added to the Episcopal Church’s list of ‘Holy Women and Holy Men,’ which the Episcopal Diocese of New York says ‘is akin to being granted sainthood.’ ’’

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