Supreme Court

Fort Peck v. HUD Cert Petition

Matthew 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

Matthew 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.’ ’’

Continue reading →

Elena Kagan Confirmed as Fourth Female Supreme Court Justice

Matthew L.M. Fletcher

Here.

Sandia Pueblo Cert Opposition in Hoffman Jackpot Case

Matthew L.M. Fletcher

Here: Sandia Cert Opp.

Petition and other materials here.

More Documents on In re United States

Kate Fort3 Comments

Original opinion here.

Court of Federal Claims opinion in Jicarilla Apache Nation v. United States, denying the U.S.’s motion to stay here.

United States petition for rehearing here.

Navajo Nation and Pueblo of Laguna Amicus opposing rehearing here.

United States petition to extend filing deadline for a writ of certiorari here.

Madison County v. Oneida Indian Nation Cert Petition

Matthew L.M. Fletcher4 Comments

Here: Madison County cert petition.

Questions presented:

The questions presented in this case are:

1. whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes.

2. whether the ancient Oneida reservation in New York was disestablished or diminished.

Lower court materials here.

Update on Carcieri Fix?

Matthew L.M. Fletcher

From How Appealing:

“Tribal-rights advocates seek ‘fix’ in Congress”: The Providence (R.I.) Journal today contains an article that begins, “Tribal-rights advocates came in force to Capitol Hill Tuesday to ask Congress to undo last year’s Supreme Court ruling that made it harder for Native Americans to set their own rules for the use of certain lands — including the Rhode Island parcel at issue in the decision.”

More at Indianz.

Suquamish Tribe Files Cert Petition in U.S. v. Washington Dispute

Matthew L.M. Fletcher1 Comment

Here is the petition in Suquamish Tribe v. Upper Skagit Tribe: Suquamish Cert Petition.

Here is the question presented:

Whether a court implementing an unambiguous court order is bound to apply that order according to its plain terms, or whether the court should instead determine whether the judge who initially issued the order “intended something other than its apparent meaning,” as the Ninth Circuit held in this case.

Lower court materials here.

Connecticut Cert Opposition to Schaghticoke Petition

Matthew L.M. Fletcher

Here: Schaghticoke Cert Opp

New Article on Indian Tribes as Amici and Supreme Court Rule 37.4

Matthew L.M. Fletcher

Good stuff. 🙂

Here is the article: The Supreme Court’s Treatment of Sovereigns as Amici Curiae, by Stephen R. McAllister.

An excerpt:

THE SUPREME COURT’S RULE on briefs of amici curiae does not treat all sovereigns the same. In particular, Indian Tribes and foreign nations are treated less generously than the United States, any State or territory, and even local governments. This article explores the origin of this disparate treatment and comments on its propriety.