Supreme Court holds Congress may retroactively take property into trust for Native American tribes
Supreme Court holds Congress may retroactively take property into trust for Native American tribes

A plurality of the US Supreme Court [official website] on Tuesday held [opinion, PDF] that Congress possesses the legislative powers to retroactively immunize the Secretary of the Interior (Secretary) from suit for taking property into trust for the benefit of Native American tribes.

The case arose when the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Gun Lake Tribe) [official websites] of Michigan, identifying a 147-acre parcel of land known as the Bradley property in Wayland, Michigan, to build a casino, requested the Secretary take the said property into trust by invoking § 5 of the Indian Reorganization Act [text, PDF]. In 2005 the Secretary consented to the request and posted a public notice that the Bradley property would be taken into trust for the Gun Lake Tribe.

The plaintiff David Patchak brought this lawsuit challenging the Secretary’s decision, stating that “The
Indian Reorganization Act does not allow the Secretary to take land into trust for tribes that were not under federal jurisdiction when the statute was enacted in 1934.” The Gun Lake Tribe was not formally recognized until 1999. The Secretary raised preliminary objections to Patchak’s suit, contending that it was “barred by sovereign immunity” and that Patchak lacked the appropriate standing to bring the suit.

The US District Court for the District of Columbia [official website] granted the Secretary’s motion to dismiss the suit in 2009, but the US Court of Appeals for the District of Columbia Circuit reversed in 2011. The case previously went to the Supreme Court where it held that “Congress had waived the Secretary’s sovereign immunity from suits like Patchak’s” and Patchak did in fact possess the necessary standing because “his suit arguably fell within the ‘zone of interests’ protected by the Indian Reorganization Act.” That decision brought the case back to the district court.

Subsequently in 2014 Congress passed the Gun Lake Trust Land Reaffirmation Act [text, PDF], which restored immunity back to the Secretary retroactively. Section 2 of the Act specifically refers to the Bradley property and states that the property “is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” That section also provides that “an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

At the time, Patchak’s suit was still pending in the district court, which promptly dismissed the suit for lack of jurisdiction based on the new law. The DC Circuit upheld the decision on appeal, and the Supreme Court affirmed the decision of the DC Circuit on further appeal stating:

Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins. … Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. … Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III [of the US Constitution]. … § 2(b) strips jurisdiction over suits relating to the Bradley Property. It is a valid exercise of Congress’ legislative power. And because it changes the law, it does not infringe the judicial power. The constitutionality of jurisdiction-stripping statutes like this one is well established.

This was a plurality decision given by Justice Clarence Thomas and joined by Justices Samuel Alito and Elena Kagan while Justices Steven Breyer, Ruth Bader Ginsburg and Sonia Sotomayor wrote separate concurring opinions.

Chief Justice John Roberts, joined by Justices Neil Gorsuch and Anthony Kennedy, dissented, stating that Congress did in fact violate Article III [GPO backgrounder, PDF] in this situation by exercising judicial powers through the manipulation of “jurisdictional rules to decide the outcome of a particular pending case. Because the Legislature has no authority to direct entry of judgment for a party, it cannot achieve the same result by stripping jurisdiction over a particular proceeding.”