Lawmakers easily approve tribal land bill as Supreme Court weighs major case

Monday, November 13, 2017  

A bill to protect the Poarch Band of Creek Indians and its gaming enterprise from litigation is moving forward in Congress while the U.S. Supreme Court determines whether the approach is legal.

H.R.1532, the Poarch Band of Creek Indians Land Reaffirmation Act, easily won approval at a markup session before the House Committee on Natural Resources last week. Lawmakers advanced by the bill by unanimous consent -- there was no debate or a vote, a sign of its seemingly non-controversial nature.

The situation looked somewhat different as the nation's highest court took up Patchak v. Zinke, the only Indian law case on the docket. Over an hour of arguments last Tuesday, nine justices debated the constitutionality of a federal law which protected the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, from litigation.

Both tribes have faced attacks to their trust lands from opponents in their respective states, Alabama and Michigan. The litigation has primarily focused on casinos that the tribes are operating on their homelands.

"If a court were to decide these lands are not lawfully held in trust on the grounds the Poarch Band was recognized after 1934, the lands could lose their trust status, exposing the tribe to state taxation and civil regulation, which in turn could lead to the closure of tribal businesses and the dismantling of facilities," a markup memo on H.R.1532 reads. "In addition, the tribe’s casinos would become subject to Alabama state law, which could lead to the modification or closure of the gambling facilities, which employ large numbers of people and generate revenues for the tribe’s government."

The 1934 date comes from a Supreme Court case known as Carcieri v. Salazar. Tribes whose federal status was not clear at that time cannot follow the land-into-trust process, according to opponents.

The Gun Lake Tribe didn't gain formal acknowledgement of its federal status until 1998. The Poarch Band's recognition came earlier, in 1983.

To resolve doubts about the status of the Gun Lake Casino, Congress enacted the Gun Lake Trust Land Reaffirmation Act in 2014. The law quashed a long-running lawsuit that challenged the tribe's land-into-trust application in Wayland, Michigan.

"The argument is that -- well, we would argue that it's not retroactive," attorney Scott E. Gant, who represented David Patchak, the non-Indian plaintiff in the case.

The Poarch Band defeated two lawsuits which challenged the status of its trust lands. Although the litigation appears to be dead, passage of H.R.1532 would prevent future efforts, such as attempts to tax the tribe's three gaming facilities.

Congress could always settle the underlying issue once and for all by addressing the Carcieri decision, which opened the doors to Patchak and other land-into-trust challenges. But lawmakers have been unable to agree on a fix so tribes have resorted to the land affirmation approach.

"Like other post-1934 tribes, passing a “clean Carcieri Fix” (a reversal of the Supreme Court opinion) is a high priority of the Poarch Creeks," the markup memo on the Poarch Band of Creek Indians Land Reaffirmation Act, reads. "However, pending a full resolution of Carcieri for all tribes in the country is being explored by the committee, H.R.1532 would ratify and reaffirm the trust status of the Poarch Band’s lands the tribe obtained before 2009."

The bill, which was approved during a November 7-8 markup session, can now be considered by the House. There isn't a companion version in the Senate at this point.

The D.C. Circuit Court of Appeals affirmed the legality of the Gun Lake Trust Land Reaffirmation Act in a unanimous decision in July 2016. Before that, a federal judge backed the law. The Supreme Court will determine whether the lower courts got it right.

House Committee on Natural Resources Notices:
Markup on Bipartisan Offshore-Onshore Energy Bill, 8 Additional Measures (November 7, 2017)
Markup on Bipartisan Offshore-Onshore Energy Bill, 8 Additional Measures (November 8, 2017)

Supreme Court hears arguments in long-running Gun Lake Tribe homeland case (November 7, 2017)