HomePublicationsNewsletter ArchiveNewslettersVolume 23Issue 30Amici Briefs Filed in US Supreme Court Case Involving Gun Lake Land in Trust

A group of Federal Court and Federal Indian Law Scholars filed an amici curiae brief this week in the Supreme Court case against the Secretary of Interior and the Gun Lake Tribe.  The case was brought by David Patchak who for several years has contested the land in trust decision relating to the Gun Lake Indian Tribe’s land.    

Patchak filed a lawsuit challenging the Department of Interior’s authority to take land into trust for the tribe.   In 2009, the federal district court dismissed the case finding that Patchak lacked prudential standing.   This decision was reversed by the Court of Appeals, which the U.S. Supreme Court previously affirmed, remanding the case to the lower court for further proceedings.

While the lower court case was still pending, Congress enacted the Gun Lake Trust Land Reaffirmation Act (the “Gun Lake Act”) which reaffirmed the trust status of the land in question and further provided that “[n]otwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land . . .  shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113-179, § 2(b), 128 Stat. 1913.

Following this directive in the Gun Lake Act, the federal district court dismissed the case, and Patchak appealed.   Before the United States Supreme Court, Patchak is arguing that the enactment of the Gun Lake Act violates the separation of powers principles of the United States Constitution.  In July of this year a group of “Federal Courts Scholars” filed an amici curiae Brief in support of Patchak arguing that an act of Congress that compels a judicial outcome without amending substantive law violates the separation of powers.   

This week, a separate group of Federal Courts and Indian Law Scholars filed an Amici Curiae Brief supporting the Secretary of Interior and the Gun Lake Tribe’s position.   In their brief (page 2) they point out that a recent (2016) U.S. Supreme Court addressed the issue.  

In Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 (2016), this Court was clear: “Congress, our decisions make clear, may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative.” Congress did just that with the Gun Lake Act.” The brief points out that Section 2(a) of the Gun Lake Act made new law by taking the property in question into trust status by statute, and that the Court had previously stated that “Congress could and ‘perhaps . . . should’, withdraw federal jurisdiction by reinstating sovereign immunity”, and that Congress did just that by enacting Section 2(b) of the Gun Lake Act which withdrew federal jurisdiction. 

The brief further points out that Congress has a long history of enacting tribe-specific legislation, and argues that the Gun Lake Act does not intrude on the judiciary’s role to weigh the merits of a case, but simply makes new law for the federal courts to apply.  Therefore, they argue that the separation of powers is undisturbed by this action. Given the substantive changes made to the law, the brief points out that the Congressional determination and affirmation of the property’s trust status is new law that a lower court would have to enforce in the event of remand.  

Argument in the case is set for November 7, 2017.


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