Scott Sprague serves as chairman of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, whose homelands case was the subject of Patchak v. Zinke. Photo: Gun Lake Casino

Supreme Court sides with Indian Country in long-running homelands case

In a victory for Indian Country, the nation's highest court has confirmed that Congress can protect tribal homelands from litigation.

Announcing the judgment for the U.S. Supreme Court, Justice Clarence Thomas on Tuesday said Congress did not overstep its bounds when it enacted a law that put an end to a long-running land dispute in Michigan. The ruling marks a firm victory for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.

"It is a valid exercise of Congress’ legislative power," Thomas wrote of the Gun Lake Trust Land Reaffirmation Act. "And because it changes the law, it does not infringe the judicial power."

The decision also represents a win for tribal interests, whose record at the Supreme Court has been shaky in recent years. They have been paying close attention to the case because Congress is considering similar bills that would help other tribes with their homelands.

In the current session alone, lawmakers have advanced at least three measures to benefit tribes across the nation. Those efforts stand on solid legal ground thanks to the ruling in Patchak v. Zinke.

Indianz.Com on SoundCloud: U.S. Supreme Court oral arguments in Patchak v. Zinke

Thomas spoke broadly of those efforts by acknowledging that Congress took action at the Gun Lake Tribe's request. He noted that 2014 law was written in direct response to a prior decision of the Supreme Court in which David Patchak, a non-Indian resident of Michigan, claimed he was harmed by the presence of the Gun Lake Casino.

"By all accounts, the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino, including Patchak’s," Thomas wrote in the 16-page judgment.

But Thomas pointed out that the case was not about "favoritism, nor even corruption, but power." And it's clear that Congress, he wrote, has the power to take action in pending litigation, even those that affect tribes.

"Under this Court’s precedents, Congress has the power to 'apply newly enacted, outcome-altering legislation in pending civil cases,'" Thomas said, quoting from Bank Markazi v. Peterson, a 2016 decision.

Tribal veterans help the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians debut an expansion at the Gun Lake Casino in Wayland, Michigan, on May 3, 2017. Photo: Gun Lake Casino

But as is often the case in Indian law matters, the Supreme Court did not speak with a unanimous voice. While a majority of the justices, by a vote of 6 to 3, upheld the validity of the Gun Lake Act, they did not all agree with the legal analysis.

Although Thomas technically delivered the "judgment" for the court, only three of his fellow jurists joined his opinion. The group of Justices Stephen G. Breyer, Samuel Alito and Elena Kagan represented a unique combination of conservative and liberal ideological leanings.

Breyer even wrote a separate concurrence that expanded on his thinking. He cited a brief that was joined by Matthew Fletcher, a prominent Indian law professor, which noted that Congress often takes action to settle tribal homeland disputes.

"Here Congress has used its jurisdictional power to supplement, without altering, action that no one has challenged as unconstitutional," Breyer wrote in the concurrence. "Under these circumstances, I find its use of that power unobjectionable."

Two other liberal-leaning justices chimed in with additional concurrences after declining to join the Thomas-Breyer gang. They viewed the Gun Lake Act in a much simpler light, as a way for Congress to withdraw the sovereign immunity of the federal government.

Without that immunity, no one -- not even Patchak -- can sue the Department of the Interior for approving the Gun Lake Tribe's land-into-trust application, Justice Ruth Bader Ginsburg wrote.

The nine members of the U.S. Supreme Court. Front row, from left: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Photo: Franz Jantzen / Collection of the Supreme Court of the United States

"What Congress grants, it may retract," Ginsburg wrote in a concurrence that was joined by Justice Sonia Sotomayor. "That is undoubtedly true of the Legislature’s authority to forgo or retain the government’s sovereign immunity from suit. The court need venture no further to decide this case."

According to Sotomayor, who wrote yet another concurrence, the "Gun Lake Act is most naturally read as having restored the federal government’s sovereign immunity from Patchak’s suit challenging the trust status of the Bradley property."

Then there was the dissent. It was authored by Chief Justice John G. Roberts, Jr., whose arrival on the court in 2005 ushered in a decade of losses for tribal interests.

Adding to that record was Neil Gorsuch, the newest member of the court. Tribes across the nation strongly supported his nomination, believing his extensive experience in Indian law would help reverse the negative trends on the court.

But none of that history came forth in Patchak. Though he did not write the dissent, he would have overturned the Gun Lake Act if given the chance.

"In no uncertain terms, the plurality disavows any limitations on Congress’s power to determine judicial results, conferring on the Legislature a colonial-era authority to pick winners and losers in pending litigation as it pleases," Roberts wrote in a dissent joined by Gorsuch and Justice Anthony M. Kennedy.

Leaders of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, cut the ribbon on an expansion of the Gun Lake Casino in Wayland, Michigan, on May 3, 2017. From left: council member Jeff Martin, council member Jennie Pearl Heeren, council member Phyllis Davis, Chairman Scott Sprague, Vice-Chairman Ed Pigeon, Gun Lake Tribal Gaming Authority CEO John Shagonaby and Council Member Jodie Palmer. Photo courtesy Gun Lake Tribe

The Gun Lake Casino opened in February 2011, while Patchak, who lives about three miles away, was challenging the tribe's land-into-trust application. His lawsuit was based on the Supreme Court decision in Carcieri v. Salazar.

In that 2009 ruling, the Supreme Court held that the Bureau of Indian Affairs can place land in trust only for those tribes that were "under federal jurisdiction" in 1934. The Match-E-Be-Nash-She-Wish Band's status wasn't formalized until 1999, long after that date.

The courts, however, never reached a decision on Patchak's claim before the casino opened. But he did secure a victory when the Supreme Court, in Salazar v. Patchak, held that he could proceed with his lawsuit, even though the land had already been placed in trust.

That's when Congress stepped in with S.1603, also known as the Gun Lake Trust Land Reaffirmation Act. The bill, which was signed into law by then-president Barack Obama in September 2014, confirmed that the casino site was properly placed in trust, despite Patchak's claims.

More significantly, the new law stated that any lawsuits challenging the trust status of the tribe's land "shall be promptly dismissed."

As the bill was under debate, Patchak did little to advance his cause. Although he won the Salazar ruling in 2012, he waited two years to return to court, and then admitted he was looking for some sort of monetary settlement from the tribe or the federal government, or perhaps both.

"You guys haven't talked in two years?" Judge Richard J. Leon said at a hearing in early September 2014, just weeks before Congress passed S.1603.

With no settlement in sight, Patchak continued to press his case but Leon ruled against him. The D.C. Circuit Court of Appeals ruled against him too, which prompted his appeal to the Supreme Court.

U.S. Supreme Court Decision in Patchak v. Zinke:
Syllabus | Judgment [Thomas] | Concurrence [Breyer] | Concurrence [Ginsburg] | Concurrence [Sotomayor] | Dissent [Roberts] | Full Document: Patchak v. Zinke

More U.S. Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 16-498 | Questions Presented

D.C. Circuit Court of Appeals Decision:
Patchak v. Jewell (July 15, 2016)

U.S. Supreme Court Decision:
Patchak v. Jewell (June 18, 2012)

Prior D.C. Circuit Court of Appeals Decision:
Patchak v. Salazar (January 21, 2011)

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