HomePublicationsCurrent NewsletterNewslettersVolume 23Issue 36SUPREME COURT HEARS ORAL ARGUMENTS ON SEPARATION OF POWERS ISSUE IN TRIBAL LAND DISPUTE

On November 7, 2017, the United States Supreme Court heard oral arguments in the case of Patchak v. Zinke, a challenge to the Gun Lake Tribe’s acquisition of land from the federal government on which it constructed a casino. Gun Lake acquired land in Wayland, Michigan that a local resident, David Patchak, contested.  In the lawsuit Patchak filed, the dispositive issue was whether Patchak had standing to sue, an issue that the Supreme Court had previously resolved in Patchak’s favor.  After the prior Supreme Court’s decision, President Barack Obama signed into law on September 26, 2014 the “Gun Lake Trust Land Reaffirmation Act” (the “Gun Lake Law”).  The Gun Lake Law reaffirmed the Department of the Interior’s decision to take the land into trust for the Gun Lake Tribe and barred any lawsuit from challenging the Department of the Interior’s decision. 

Scott Gant, Patchak’s attorney, argued that the Gun Lake Law violated the separation of powers of the judicial and legislative branches of the government, stating it was: “precisely the kind of legislative review of judicial decisions that the Framers rejected when they designed the Constitution.”  He also argued that: “the fact that a statute strips jurisdiction from a court doesn’t mean that it’s immunized from review under separation of powers.”  He noted: “[p]art of what’s offensive here to the separation of powers principles is that Congress is directing the outcome in a case.”  He concluded by arguing: “What Congress cannot do is direct the outcomes of a case even under the guise of jurisdiction.” 

Ann O’Connell, representing the Interior Department Secretary Ryan Zinke, refuted Patchak’s claims, arguing there was no separation of powers issue.  She noted: “The Court acknowledged in Patchak I that barring claims like Petitioner’s is within Congress’s legislative powers.”  She contended: “Congress also eliminated federal court jurisdiction over challenges to the trust status of this property, thereby revoking the waiver of sovereign immunity in the [Administrative Procedures Act].”  Ms. O’Connell refuted the argument that the Gun Lake Act was targeting Patchak, arguing: “this is not a statute that is directed toward just Smith v. Jones, Smith wins.  This is a case that applies to any suit related to [the Gun Lake tribal land].”

Pratik Shah appeared on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.  He argued “if you are excluding completely the federal courts from adjudication, that does not raise a separation of powers problem.”  He concluded by stating: “We're strictly on separation of powers grounds, and there is no separation of powers problem in this Court withdrawing jurisdiction, including with respect to pending cases.”

The Supreme Court will issue its opinion at some point before the close of the 2017-2018 session in June 2018.

 

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