Amicus Curiae Brief — Patchak v. Zinke, 137 S. Ct. 2091 (2017) (No. 16-498)
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FILED
No. 16-498 SEP 18 2017
———— eee Ci ERK
In The
Supreme Court of the Anited States
«
DAVID PATCHAK,
Petitioner,
Vv.
RYAN ZINKE, SECRETARY OF THE INTERIOR, et al.,
Respondents.
¢
On Writ Of Certiorari To The
United States Court Of Arpeals For
The District Of Columbia Circuit
Sa
BRIEF OF AMICI CURIAE FEDERAL COURTS
AND FEDERAL INDIAN LAW SCHOLARS
IN SUPPORT OF RESPONDENTS
°
SETH DAVIS RUTHANNE M, DEUTSCH
401 E. Peltason Dr. Counsel of Record
Irvine, CA 92617 HYLAND HUNT
MATTHEW L.M. FLETCHER DEUTSCH HUNT PLLC
648 N. Shaw Lane 300 New Jersey Ave. NW
Rm. 405B Suite 900
East Lansing, MI 48824 Washington, DC 20001
(202) 868-6915
rdeutsch@deutschhunt.com
Counsel for Amici Curiae
—_—__
——
COCKLE LEGAL BRIEFS (800) 225-6964
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TABLE OF CONTENTS
Page
I eieenneails lll
I Se I i a cece nee l
Introduction and Summary of Argument.............. 1
i aistierinicepinnecnicssiatnanpigieitbidaniniieeeinderisitiens 5
I. The Gun Lake Act Makes New Law
Concerning Indian Affairs ..................6.....66 5
A. Congress Regularly Enaets Tribe-
Specific Lands Acts And Settles
Disputes Involving Indians.................... 6
B. The Gun Lake Act Is A Tribe-Specific
Lands Act That Makes New Law.......... 1l
Il. The Gun Lake Act Does Not Usurp
Article III Judicial Power Or Violate The
Separation Of Power ..........::.c.-.cccssssseresesees 15
A. Nothing In Article III Prevents Congress
From Making New Law To Resolve
Land Disputes Through Tribe-Specific
SENATE ES ir OU eee Rae AN Serer 16
B. The Gun Lake Act Does Not Violate
Klein’s Prohibition On Congressional
Direction Of The Result In A Pending
a ahaa cabana 20
(i)
ii
TABLE OF CONTENTS -— Continued
Page
C. The Gun Lake Act Does Not Prescribe
An Unconstitutional Rule Of Decision
Or Deprive The Petitioner Of Vested
NE ER INGE SR Nat steete ae Ase 29
ET i TSE Oe ae vn RAM e 31
Appendix
LTR LLTT AT CTO App. 1
ili
TABLE OF AUTHORITIES
Page
CASES
Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) .... passim
Bowen v. Mich. Academy of Family Physicians,
TE a edetmbendumenenian 28
Carcieri v. Salazar, 555 U.S. 379 (2009) ............0..00... 12
Cherokee Nation v. Hitchcock, 187 U.S. 294
SUIT hhd lcci niches aba elite ideccildcaie tdcanbuebiniies iitieibinioianeaiicd 5
District of Columbia v. Eslin, 183 U.S. 62 (1901).......20
Ex parte McCardle, 74 U.S. (7 Wall.) 506
REE RSET aT eR RLS oa 4, 20, 26
Glidden Co. v. Zdanok, 370 U.S. 530 (1962)............... 20
Lynch v. United States, 292 U.S. 571 (1934) .............. 11
Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209 (2012).....2, 13, 14, 30
Morton v. Mancari, 417 U.S. 535 (1974)..................00 19
Nat'l Coalition to Save Our Mall v. Norton, 269
Ae Be GARG, Ce, BBE) nncccscccccccccccccscccesss 18, 24, 25
Patchak v. Salazar, 646 F. Supp. 2d 72 (D.D.C.
REED RIL RINE ts inter oe ee ee eee ee 12
Pennsylvania v. Wheeling & Belmont Bridge Co.,
54 US. (13 How.) 518 (1852)... eee 21, 22
Pennsylvania v. Wheeling & Belmont Bridge Co.,
59 U.S. (18 How.) 421 (1856) ..000000. eee 3, 18, 21
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211
apne iccistehsichtiue dlichanssepuredbaiisldienpatepctiayoeiduiiliaisaledeie ubiaiai 3,5
lv
TABLE OF AUTHORITIES — Continued
Page
Robertson v. Seattle Audubon Soc’y, 503 U.S. 429
I ccoccnsshincndncdécéedendivecvetsensadssssosneseessounsenonees passim
United States v. Jicarilla Apache Nation, 564
Re IIE D 1. cicsiionnnshnninsoensoesendnsessssinbenssvnionsons 6
United States v. Klein, 80 U.S. (13 Wall.) 128
IE... « cocuicsniennscibadionniounsnnisneneniinisiqnbennasensnn passim
United States v. Padelford, 76 U.S. (9 Wall.) 531
CIID scvcccassecisstcctedcnssvnscesssisassavacasesecnssssenssoesieents 16, 27
United States v. Sioux Nation, 448 US. 371
SII. ccsisianbbssusesdcndesecansovsnnptanensinabsciessanssbuveatnoesive 17
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ......... 6
CONSTITUTIONAL PROVISION
TEE, Cooma... O86. TEE. scccccsvcccescccsccccceseccscocceseseeseces passim
STATUTES
Dil Ted | Remrenrrnrrrrr nn rr 14
BB URGG, © FOG once cveccesescsveceessscccrccsesccsssovesconnscscsassorsosens 13
EE BIG vecnscvcctnccesssosnesoccssasnccoscescessocsssoeene 18, 19
A TIED, © GD isicccsconcecossccscccvesesonscesconssenovossesbesesesuses 12
BE UBLC. § 47B .....ccccccscccccsserscesccscscccsessesccsessssssncncccesees 12
, 2) tok |) rene 8, 12,19
QB USAC. § 512D..........ccccerrssorcccsssvncevsereoesssesssscssnssosoes 12
QB U.S.C. § 240Gala).........00-ssecccerovsceressesereresssssesersesens 13
v
TABLE OF AUTHORITIES — Continued
Page
Act of Dec. 23, 1982, Pub. L. No. 97-385, 96 Stat.
a hi iesegacomadess 11
Act of July 12, 1870, ch. 251, 16 Stat. 230 ................. 17
Act of July 7, 1998, Pub. L. No. 105-188, § 1, 112
ea cca ai cence gbeeinanrapesiinies 8
Act of June 20, 1966, Pub. L. No. 89-459, 80 Stat.
Sti iaiditdoliainialamesiea sh alandbcicdseadatinedisuiauidladbidasiaeseaedis 7
Act of Nov. 23, 1988, Pub. L. No. 100-708, § 3, 102
REE Rr Ee OPN 8
Act of Nov. 24, 1980, Pub. L. No. 96-484, § 4, 94
SERRE FS ARS ASRS See A OC 10
Act of Oct. 6, 1999, Pub. L. No. 106-67, 113 Stat.
(SRE LASER RS SP A EL eo 8
Ak-Chin Indian Community Act of 1978, Pub. L.
No. 95-328, § 1, 92 Stat. 409 (1978)............... eee 8
An Act for the Restoration to Market of Certain
Lands in Michigan, § 1, 17 Stat. 381....................... 9
Catawba Indian Tribe of South Carolina Land
Claims Settlement Act of 1993, Pub. L. No.
103-116, §§ 4(a)(1), 6(c), 107 Stat. 1118 (1993) ..7, 10
Colorado River Indian Reservation Boundary
Correction Act, Pub. L. No. 109-47, § 2, 119
I iiniiicjsiadanisneeedsesadbedienivneisansentiisosie 7
Crow Boundary Settlement Act of 1994, Pub. L.
No. 103-444, § 12, 108 Stat. 4632 (1994)................ 10
vi
TABLE OF AUTHORITIES — Continued
Page
Fort McDowell Indian Community Water Rights
Settlement Act of 2006, Pub. L. No. 109-373,
SD, DBD Bee, BD cic ccscsscesnsnsccsesccccscevsccncesssces 8
Gun Lake Trust Land Reaffirmation Act, Pub. L.
No. 113-179, 128 Stat. 1913 (2014)
EF TID :.scscsconinosassssabuentoseibiiasnsiaicenebinamnaiaane passim
Ee SE sessed. onnipceesepnecbesanessinimantiidtasianmaiuaame anne passim
Hoopa Valley Reservation South Boundary
Adjustment Act, Pub. L. No. 105-79, § 2, 111
SU, TIRE CAT PB nncicscis+ckccoccnenscupnnieiedannnsianaadiiataiaal 7
Lac Vieux Desert Band of Lake Superior
Chippewa Indians Act, Pub. L. No. 100-420,
RE BF ND erciirs sc cnscenescnioinacichanieesintiadianeseane 9
Little Traverse Bay Bands of Odawa Indians
and the Little River Band of Ottawa Indians
Michigan Indian Claims Settlement Act, Pub. L.
No. 105-143, § 108(f), 111 Stat. 2652 (1997) ........ 7,9
Mohegan Nation of Connecticut Land Claims
Settlement Act of 1994, Pub. L. No. 103-377,
§ 2(a), 108 Stat. 3501 (1994) ..0....... ec eceeeseseeeeenees 10
Northwest Timber Compromise, Pub. L. No.
101-121, § 318, 103 Stat. 701, 745 (1989)......... 22, 23
Pascua Yaqui Tribe Trust Land Act, Pub. L. No.
113-134, § 3, 128 Stat. 1732 (2014)..................... eee 7
vil
TABLE OF AUTHORITIES — Continued
Pokagon Band of Potawatomi Indians Restoration
Act, Pub. L. No. 103-323, § 2, 108 Stat. 2152
Sal chi adienicenebabensedncsincansssesesovsssésauscosersseseeveeveces«
Pub. L. No. 107-11, 115 Stat. 19 (2001).................
Puyallup Tribe of Indians Settlement Act, Pub.
L. No. 101-41, §§ 4-5, 9, 103 Stat. 83 (1989)......
Rhode Island Indian Claims Settlement Act,
Pub. L. No. 95-395, § 9, 92 Stat. 813 (1978) ......
Saginaw Chippewa Indian Tribe of Michigan
Distribution of Judgment Funds Act, Pub. L.
No. 99-346, 100 Stat. 674 (1986)...............c000
Salmon and Steelhead Conservation Act of
1980, Pub. L. No. 96-561, § 102, 94 Stat. 3275
Seminole Indian Land Claims Settlement Act,
Pub. L. No. 100-228, § 8(a), 101 Stat. 1556
SII dbasdinbaniantdunepunssusnsssatenevinosccnceesrenssestscnsoeteee
Timbisha Shoshone Homeland Act, Pub. L. No.
106-423, §§ 2-3, 114 Stat. 1875 (2000)...............
Wampanoag Tribal Council of Gay Head, Inc.
Indian Claims Settlement Act of 1987, Pub. L.
No. 100-95, § 10, 101 Stat. 704.0000...
White Earth Reservation Land Settlement Act
of 1985, Pub. L. No. 99-264, § 6(a)-(b), 100
STITT ciinndceenentncetendadsnsddisinsescecnesasaccesoorece
Yavapai-Prescott Indian Tribe Water Rights
Settlement Act of 1994, Pub. L. No. 103-434,
§ 104, 108 Stat. 4526 (1994)... ccccceeeseeees
vill
TABLE OF AUTHORITIES — Continued
Page
RULES AND REGULATIONS
US Eh ee smaucupiesdmaiadnakenaideatel 8
ise resintctndniniadienensinnmaneli Sesininaindoalibihaia 8
OTHER AUTHORITIES
Allison M. Dussias, Let No Native American
Child Be Left Behind: Reenvisioning Native
American Education for the Twenty-First
Century, 43 Ariz. L. Rev. 819 (2001) ...................0006-. 7
Edward A. Hartnett, Congress Clears its Throat,
22 Const. Comment. 553 (2005).................ccccecceeeees 30
ee A UD, FRG CIID neiccccccsccccctnccteessecssecsencsse 14
Kirsten Matoy Carlson, Congress and Indians,
18 8 8 7,9
Kirsten Matoy Carlson, Congress, Tribal
Recognition, and Legislative-Administrative
Multiplicity, 91 Ind. L.J. 955 (2016) ......................... 7
Nell Jessup Newton et al., Cohen’s Handbook of
Federal Indian Law (2012) .................6....000e 9,11,13
Restatement of the Law of American Indians, § 4,
Reporters’ Notes (Am. Law Inst., Tent. Draft
ee I acticcsticniioeihieassinssieshdinipaibeiiitiiiipssnsielsiche 6
Richard H. Fallon, Jr. et al., Hart & Wechsler’s
The Federal Courts and the Federal System
Toc dhecinsnisticesisine-bilanscnsasintstaiiiasikcstaioningitaah cia shainidlieed 30
ix
TABLE OF AUTHORITIES — Continued
&. Mop. No. 113-206 (O04) ...........ccccescocecesceesesss-c-.-.e. 14
U.N. Decl. on the Rights of Indigenous Peoples,
G.A. Res. 61/295, U.N. Doc A/RES/61/295
Vill
TABLE OF AUTHORITIES — Continued
Page
RULES AND REGULATIONS
I sini tas cinta iiihinidinpnsadanipaaadionaininiindes seid 8
I nose ciuisidcieenieinaenindelaedinnitcinnidiisielieenlgnadinenl 8
OTHER AUTHORITIES
Allison M. Dussias, Let No Native American
Child Be Left Behind: Reenvisioning Native
American Education for the Twenty-First
Century, 43 Ariz. L. Rev. 819 (2001) .............00.00.0.....7
Edward A. Hartnett, Congress Clears its Throat,
22 Const. Comment. 553 (2005)...............0...000..0000.. 30
Bete I, Hes BPO CIID cicccccnccccsotecendecsecsbecsesesce 14
Kirsten Matoy Carlson, Congress and Indians,
86 U. Colo. L. Rev. 77 (2018).......................c0.0..-200 7,9
Kirsten Matoy Carlson, Congress, Tribal
Recognition, and Legislative-Administrative
Multiplicity, 91 Ind. L.J. 955 (2016) ......................... 7
Nell Jessup Newton et al., Cohen’s Handbook of
Federal Indian Law (2012) .................ccccceeees 9,11,13
Restatement of the Law of American Indians, § 4,
Reporters’ Notes (Am. Law Inst., Tent. Draft
NCTE EES ETS: Lea 6
Richard H. Fallon, Jr. et al., Hart & Wechsler’s
The Federal Courts and the Federal System
PIU diciiiiiicdes consnidctelepinansictipeaditadakanadialdn stench 30
ix
TABLE OF AUTHORITIES — Continued
S. Rep. No. 113-194 (2014)...........:..ccceceeseeeneeerereeeteceeee 14
U.N. Decl. on the Rights of Indigenous Peoples,
G.A. Res. 61/295, U.N. Doc A/RES/61/295
INTEREST OF AMICI CURIAE
Amici law professors (listed in the Appendix) are
leading scholars and teachers of federal courts law
and federal Indian law who submit this brief in
their individual capacities, not on behalf of their
institutions. They study and write extensively on
federal jurisdiction, the separation of powers, and
Congress’s authority in Indian affairs. Amici are well-
versed scholars of Congress’s longstanding authority
to enact Tribe-specific lands acts, which have been
vital to restoring Indian Nations’ land base. Amici
submit this brief to demonstrate that the Gun Lake
Act is a common exercise of Congress’s constitutional
authority over federal jurisdiction in the unique area
of Indian affairs.’
+
INTRODUCTION AND
SUMMARY OF ARGUMENT
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
1 The parties have consented to the filing of this brief in
letters on file in the Clerk’s office. As required under S. Ct. R. 37.6,
amici state that no counsel for any party authored this brief
in whole or in part, and no person or entity, other than amici,
their members, or their counsel, made a monetary contribution
intended to fund the preparation or submission of this brief. Amici
law professors received no compensation for offering the views
reflected herein.
(1)
2
the change applicable to pending cases, even when the
amendment is outcome determinative.” Congress did
just that with the Gun Lake Act. See Gun Lake Trust
Land Reaffirmation Act (“Gun Lake Act”), Pub. L. No.
113-179, 128 Stat. 1913 (2014). In enacting that Tribe-
specific lands act, Congress did not violate Article II
or the separation of powers.
The Gun Lake Act is not the first time that
Congress has enacted Tribe-specific legislation to
settle an ongoing dispute about Indian lands. Beyond
the nearly 400 treaties with Indian Nations, Congress
has enacted countless Tribe-specific lands acts over
the last 150 years to implement its government-to-
government trust relationship with Indian Nations.
Such Tribe-specific statutes often take land into trust
for an Indian Nation, as the Gun Lake Act does, and
limit federal jurisdiction, as the Gun Lake Act also
does. This centuries-long history, absent from the
briefing of the Petitioner and his amici, belies any
argument that the Gun Lake Act is unprecedented.
The Gun Lake Act is not only an unremarkable
exercise of Congress’s Indian Affairs power, it is also a
direct response to this Court’s invitation to address
disputes such as the Petitioner’s ongoing dispute with
the United States and the Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians (the “Gun Lake Tribe”).
In 2012, this Court held that the Petitioner could bring
an Administrative Procedure Act (“APA”) challenge to
the Secretary of the Interior’s decision to take the
Bradley Property into trust for the Gun Lake Tribe.
See Match-E-Be-Nash-She-Wish Band of Pottawatomi
3
Indians v. Patchak (“Patchak I”), 567 U.S. 209 (2012).
But this Court went on to recognize that Congress
could, and “perhaps ... should,” withdraw federal
jurisdiction by reinstating sovereign immunity. Jd. at
224. And Congress did just that with Section 2(b) of the
Gun Lake Act.
Congress’s decision to withdraw federal
jurisdiction was within constitutional bounds, and
Petitioner’s interpretation of Klein is untenable.
Whatever else it stands for, United States v. Klein, 80
U.S. (13 Wall.) 128 (1872), does not support the
Petitioner’s argument that the Gun Lake Act must be
unconstitutional because Congress directed a judicial
outcome without modifying “generally applicable”
laws. See Pet’r Br. 11. This Court decisively foreclosed
that argument in Bank Markazi, when it recognized
that “‘[w)hile legislatures usually act through laws of
general applicability, that is by no means their only
legitimate mode of action.’” 136 S. Ct. at 1327 (quoting
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239
n.9 (1995)). And reading Klein to prohibit legislation
that is tailored to resolve ongoing land disputes is
irreconcilable with this Court’s holdings that Congress
may enact land-specific legislation to determine the
outcome of pending litigation. See Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429, 441 (1992); Pennsylvania
vu. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.)
421 (1856).
Although Klein is not a model of clarity, amici
agree that the Gun Lake Act does not violate any
holding of Klein. Unlike the statute at issue in Klein,
4
the Gun Lake Act does not forbid the Court to “give the
effect to evidence which, in its own judgment, such
evidence should have.” 80 U.S. at 147. Because 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, the separation of powers
is not disturbed. By taking the Bradley Property into
trust for the Gun Lake Tribe, and withdrawing federal
jurisdiction over any action challenging that decision,
Congress made outcome-determinative law requiring
the federal courts to dismiss the Petitioner’s action.
Such a statute is well within Congress’s authority to
circumscribe the limits of federal jurisdiction. See Ex
parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868).
Finally, the Gun Lake Act does not present the
parade of horribles that the Petitioner and his amici
suggest. The Act is not a wholesale jurisdiction-
stripping statute. It does not withdraw jurisdiction to
challenge the Act itself on constitutional grounds. The
Gun Lake Act is narrowly-tailored and makes new law
concerning statutory challenges to the trust status of
the Bradley Property. This case involves such a claim—
a third-party challenge to Congress’s decision about
whether tribal property deserves protection through
federal trust status. The Petitioner claims no vested
property right in the Bradley Property—nor could he.
Consistent with its historical practice, particularly
in the unique area of Indian Affairs, Congress had
authority to declare the permanent trust status of the
5
Bradley Property and to withdraw jurisdiction over
any action concerning that status.
°
ARGUMENT
I. The Gun Lake Act Makes New Law
Concerning Indian Affairs.
This Court has recently reaffirmed that Congress
may make new law that is outcome determinative in
a pending case. See Bank Markazi, 136 S.Ct. at
1317 (“Congress, our decisions make clear, may amend
the law and make the change applicable to pending
cases, even when the amendment is outcome
determinative.”). When doing so, Congress is not
limited to generally applicable legislation, but may
enact specific laws for the federal courts to apply.
See id. at 1327 (“‘While legislatures usually act
through laws of general applicability, that is by no
means their only legitimate mode of action.’”) (quoting
Plaut, 514 U.S. at 239 n.9). In enacting such laws,
Congress does not violate Article III or the separation
of powers.
When it legislates in the field of Indian Affairs,
Congress has, for more than a century, regularly
enacted Tribe-specific legislation pursuant to its
constitutional authority to implement the government-
to-government relationship between the United States
and Indian Nations. E.g., Cherokee Nation v. Hitchcock,
187 U.S. 294, 308 (1902). Indian lands issues lie at
the heart of Congress’s Indian Affairs power. And
6
congressional decisions about the management of
specific Indian lands are by necessity particularized—
just as they are when Congress legislates with respect
to specific non-Indian lands. Where controversies arise
about Indian lands, Congress has routinely enacted
Tribe-specific lands acts and settled disputes by
making new law. The Gun Lake Act is but one example
of commonplace congressional action.
A. Congress Regularly Enacts Tribe-Specific
Lands Acts And _ Settles Disputes
Involving Indians.
The United States has undertaken a duty of
protection to federally-recognized Indian Nations. This
trust relationship arose first in the context of treaty
relationships between the United States and Indian
Nations. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
551-56, 560-61 (1832). This general trust relationship
between the federal government and Indian Tribal
governments distinguishes the field of Indian Affairs.
See, e.g., United States v. Jicarilla Apache Nation, 564
U.S. 162, 176 (2011).
Congress regulates this government-to-government
relationship through legislation. And when enacting
statutes concerning Indian Affairs, Congress routinely
invokes the general trust relationship. See Restatement
of the Law of American Indians, § 4, Reporters’ Notes
(Am. Law Inst., Tent. Draft No. 1, Apr. 22, 2015)
(surveying federal statutes stemming from the trust
relationship). Congress also regulates relationships
7
between the United States and specific Indian Nations.
In addition to the 400-odd Indian treaties,? Congress
has enacted untold numbers of Tribe-specific statutes
covering a wide variety of subjects. See Kirsten
Matoy Carlson, Congress and Indians, 86 U. Colo.
L. Rev. 77, 126-28 (2015) (finding that from 1975 to
2012, Congress enacted 353 Tribe-specific bills). For
example, there are statutes extending or reaffirming
federal acknowledgment of a Tribe’s sovereignty,’
acquiring and administering assets in trust for specific
Tribes,* resolving boundary disputes,° settling water
? Allison M. Dussias, Let No Native American Child Be Left
Behind: Reenvisioning Native American Education for the Twenty-
First Century, 43 Ariz. L. Rev. 819, 826 (2001) (noting that United
States entered into roughly 400 treaties with Indian Nations
between 1778 and 1871).
* See, eg., Catawba Indian Tribe of South Carolina Land
Claims Settlement Act of 1993, Pub. L. No. 103-116, §§ 4(a)(1), 6(c),
107 Stat. 1118, 1121 (1993); Little Traverse Bay Bands of Udawa
Indians and the Little River Band of Ottawa Indians Act, Pub. L.
No. 103-324, § 4, 108 Stat. 2156, 2157 (1994); Pokagon Band of
Potawatomi Indians Restoration Act, Pub. L. No. 103-323, § 2, 108
Stat. 2152, 2153 (1994). For a full list of the 24 statutes extending,
restoring, or reaffirming the federal acknowledgment of the
sovereignty of 32 Indian Nations from 1977 to 2012, see Kirsten
Matoy Carlson, Congress, Tribal Recognition, and Legislative-
Administrative Multiplicity, 91 Ind. L.J. 955, 1010-16 (2016).
* See, e.g., Pascua Yaqui Tribe Trust Land Act, Pub. L. No.
113-134, § 3, 128 Stat. 1732, 1732 (2014); Michigan Indian Claims
Settlement Act, Pub. L. No. 105-143, § 108(f), 111 Stat. 2652,
2661-62 (1997); Act of June 20, 1966, Pub. L. No. 89-459, 80 Stat.
211 (conveying federal land in trust for the benefit of the
Minnesota Chippewa Tribe).
5 See, eg., Colorado River Indian Reservation Boundary
Correction Act, Pub. L. No. 109-47, § 2, 119 Stat. 451, 452 (2005);
Hoopa Valley Reservation South Boundary Adjustment Act, Pub.
8
rights disputes,® and providing for the management of
the natural resources of specific Tribes.’
The United States has long had the authority
to take land into trust for the benefit of an Indian
Nation. This trust acquisition process is crucial to
reconstituting a land base for many Indian Nations
and is a centerpiece of Congress’s policy of promoting
Tribal self-determination and economic development.
The Department of the Interior typically takes the lead
in acquiring land into trust for Indian Nations. See 25
U.S.C. § 5108; 25 C.F.R. pts. 151 & 292. But Congress
also regularly steps in with Tribe-specific legislation to
settle disputes and provide needed repose.
This congressional practice is longstanding. Over
the last 150 years, Congress has enacted dozens upon
dozens of Tribe-specific statutes that resolve ongoing
disputes between the United States, Indian Nations,
L. No. 105-79, § 2, 111 Stat. 1527, 1527 (1997); Act of Nov. 23, 1988,
Pub. L. No. 100-708, §3, 102 Stat. 4717, 4718 (correcting
boundaries of Goshute Reservation).
® See, e.g., Fort McDowell Indian Community Water Rights
Settlement Act of 2006, Pub. L. No. 109-373, § 3, 120 Stat. 2650,
2650-51 (2006); Yavapai-Prescott Indian Tribe Water Rights
Settlement Act of 1994, Pub. L. No. 103-434, § 104, 108 Stat. 4526,
4528 (1994); Ak-Chin Indian Community Act of 1978, Pub. L. No.
95-328, § 1, 92 Stat. 409, 409 (1978).
’ See, e.g., Act of Oct. 6, 1999, Pub. L. No. 106-67, 113 Stat.
979, 979 (providing for mineral leasing of specified Indian lands
in Oklahoma); Act of July 7, 1998, Pub. L. No. 105-188, § 1, 112
Stat. 620, 620 (permitting mineral leasing of Indian land within
Fort Berthold Indian Reservation when specified conditions are
met); Salmon and Steelhead Conservation Act of 1980, Pub. L. No.
96-561, § 102, 94 Stat. 3275, 3275-76 (1980).
9
state and local governments, and private interests. See
generally Nell Jessup Newton et al., Cohen’s Handbook
of Federal Indian Law § 5.06[1] (2012) (“Congress has
resolved tribal claims involving individual tribes or
tribes through legislation.”); Carlson, supra, at 126
(finding that 36% of the Indian-related bills enacted by
Congress from 1975 to 2012 were Tribe-specific bills).
There are numerous federal land acts relating to
Michigan Tribes alone.*
In settling Indian lands disputes, Congress
necessarily regulates relationships among Indian
Nations, states and localities, and non-Indians. For
example, federal statutes often settle land disputes by
delineating jurisdictional boundaries and providing
for trust land acquisitions by the federal government.°®
Settling such disputes often requires Congress to
legislate with respect to the Article III courts. For
example, Congress has imposed short limitations
periods on challenges to the constitutionality of
* See, eg., Michigan Indian Claims Settlement Act, 111 Stat.
265; Lac Vieux Desert Band of Lake Superior Chippewa Indians
fu, Pub. L. No. 100-420, 102 Stat. 1577 (1988); Saginaw
Chippewa Indian Tribe of Michigan Distribution of Judgment
Funds Act, Pub. L. No. 99-346, 100 Stat. 674 (1986); An Act for the
Restoration to Market of Certain Lands in Michigan, § 1, 17 Stat.
381 (concerning lands “in the reservation made for the Ottawa
and Chippewa Indians of Michigan”).
® See, e.g., Rhode Island Indian Claims Settlement Act, Pub.
L. No. 95-395, § 9, 92 Stat. 813, 817 (1978); Puyallup Tribe of
Indians Settlement Act, Pub. L. No. 101-41, §§ 4-5, 9, 103 Stat. 83,
88 (1989).
10
statutes that settle Tribal land claims.” It routinely
has barred the potential claims of third parties
(usually Tribal citizens) to ensure clarity and certainty
in a land claims settlement."’ On still other occasions,
Congress has legislated to treat prior claims regarding
Indian lands as if they never “existed.”” Through these
means and others, Congress has withdrawn judicial
review of claims involving Indian lands.
When enacting Tribe-specific lands acts, Congress
has assessed the complex interests concerned and made
new law to ensure clarity and certainty regarding land
ownership. See, e.g., Timbisha Shoshone Homeland
Act, Pub. L. No. 106-423, §§ 2-3, 114 Stat. 1875, 1875-
76 (2000). Such certainty, Congress has found, is
necessary for Tribal economic development, including
for gaming enterprises. See, e.g., Mohegan Nation of
Connecticut Land Claims Settlement Act of 1994, Pub.
L. No. 103-377, § 2(a), 108 Stat. 3501, 3501 (1994).
Special jurisdictional acts concerning individual
Indian Nations are also nothing new. Congress has
broad authority to confer or to withdraw federal
© See, eg., Wampanoag Tribal Council of Gay Head, Inc.
Indian Claims Settlement Act of 1987, Pub. L. No. 100-95,
§ 10, 101 Stat. 704, 710; Seminole Indian Land Claims Settlement
Act, Pub. L. No. 100-228, § 8(a), 101 Stat. 1556, 1561 (1987).
" See, eg., Act of Nov. 24, 1980, Pub. L. No. 96-484, § 4, 94
Stat. 2365; Crow Boundary Settlement Act of 1994, Pub. L. No.
103-444, § 12, 108 Stat. 4632, 4642 (1994); Catawba Indian Tribe
of South Carolina Land Claims Settlement Act, §§ 4(a)(1), 6(c),
107 Stat. 1123.
" White Earth Reservation Land Settlement Act of 1985,
Pub. L. No. 99-264, § 6(a)-(b), 100 Stat. 61, 65 (1986).
11
jurisdiction, including by legislating with respect to
federal sovereign immunity. See, e.g., Lynch v. United
States, 292 U.S. 571, 581-82 (1934). Before 1946, when
it created the Indian Claims Commission, Congress
enacted 142 special jurisdictional acts concerning
Tribal claims. Cohen Handbook, supra, § 5.06[2]. These
special jurisdictional acts addressed, among other
things, federal sovereign immunity. See id. After
1946, Congress has continued to enact Tribe-specific
jurisdictional acts. See, e.g., Act of Dec. 23, 1982, Pub.
L. No. 97-385, 96 Stat. 1944. In sum, the field of Indian
affairs reveals a longstanding history of Congress
exercising its broad authority over jurisdiction and
federal sovereign immunity on a Tribe-specific basis.
Thus, the Gun Lake Act is far from unprecedented.
B. The Gun Lake Act Is A Tribe-Specific
Lands Act That Makes New Law.
The Gun Lake Act is but one more example in this
long lineage of Tribe-specific statutes that bring clarity
and certainty to the ownership status of Indian lands.
Building upon its trust relationship with the Gun Lake
Tribe, Congress enacted new law designating the
Bradley Property as trust property and withdrawing
subject matter jurisdiction over challenges to that
designation. In so doing, Congress responded to this
Court’s invitation to address disputes such as the
ongoing dispute over the Property.
With Section 2(a) of the Gun Lake Act, Congress
made new law by taking the Bradley Property into
12
trust by statute. Section 2(a) “reaffirm|(s]” the status of
the Property “as trust land,” thus “ratif[ying] and
confirm[ing]” the Secretary’s administrative decision.
Gun Lake Act § 2(a), 128 Stat. 1913. The Secretary of
the Interior takes land into trust based upon a variety
of well-defined statutory criteria in the Indian
Reorganization Act. In 2005, the Secretary took the
Bradley Property into trust based upon those criteria,
including a determination that the Gun Lake Tribe
was “under federal jurisdiction” within the meaning
of 25 U.S.C. §§ 5108 & 5129 (formerly 25 U.S.C. §§ 465
& 479). Four years later, this Court interpreted the
meaning of those statutory provisions in Carcieri v.
Salazar, 555 U.S. 379 (2009). Citing Carcieri, the
Petitioner has argued the Secretary lacked authority
to take the Property into trust. See Patchak v. Salazar,
646 F. Supp. 2d 72, 76 & n.6 (D.D.C. 2009), rev’d on
other grounds, Patchak I, 567 U.S. 209. With the Gun
Lake Act, Congress mooted that argument by
confirming the trust status of the Bradley Property,
consistent with its authority to take land into trust
directly for Indian Nations and much as it has done
with countless other Indian lands over the past 150
years. Section 2(a) of the Act thus made new law
designating the Bradley Property as trust land
without regard to the extent of the Secretary’s
delegated authority under 25 U.S.C. § 5108.
Section 2(b) of the Gun Lake Act likewise makes
new law by withdrawing federal jurisdiction over
challenges to the trust designation. It provides that “an
action ... relating to” the Property “shall not be filed
13
or maintained in a Federal court and shall be promptly
dismissed.” Gun Lake Act § 2(b), 128 Stat. 1913. Much
as it has done in myriad Indian lands settlement acts,
Congress chose to conclude the Gun Lake Tribe’s
decade-long fight to protect its reservation. It did so by
making new law.
In 2012, this Court held that the Petitioner's
challenge to the Secretary’s decision could proceed
under the Administrative Procedure Act, 5 U.S.C.
§ 706, notwithstanding the Quiet Title Act, 28 U.S.C.
§ 2409a(a), which various lower courts had concluded
barred such a challenge. See Patchak I, 567 U.S. at 228;
id. at 228-29 (Sotomayor, J., dissenting) (explaining
that decision “expose[d} the Government’s ownership
of land to costly and prolonged challenges”); Cohen
Handbook, supra, § 15.07[1][a] n.16 (noting that “(a]
number of circuit courts had previously held that such
suits were barred”). The Court invited Congress to
address disputes such as the Petitioner’s, explaining
“that [it] is for Congress to tell us, not for us to tell
Congress” whether the Petitioner’s challenge may
proceed. Patchak I, 567 U.S. at 224. Following the
Court’s invitation, the Gun Lake Tribe “addressed [its
concerns] to Congress.” Jd. at 223. Congress responded
by taking the Bradley Property into trust itself and by
withdrawing federal jurisdiction over challenges to the
Property’s status as Indian trust land.”
Petitioner argues that the Gun Lake Act could not have
made new law because the legislative history noted that the Act
would not require any textual changes to existing statutes. Both
the House and the Senate Reports stated that the Act makes
14
Section 2(b)’s withdrawal of jurisdiction is best
read as a reinstatement of federal sovereign immunity.
In Patchak I, this Court held that the APA waived
sovereign immunity for the Petitioner’s claim. 567 U.S.
at 221. This Court went on, however, to recognize that
Congress could, and “perhaps ... should,” reinstate
sovereign immunity. Jd. at 224. Congress did so in
Section 2(b), providing that any action relating to the
Bradley Property—including but not limited to the
Petitioner’s suit—‘“shall not be filed or maintained” in
federal court. Gun Lake Act § 2(b), 128 Stat. 1913. To
vindicate this restored sovereign immunity, Section
2(b) directs that any action challenging the federal!
trust property “shall be promptly dismissed,” id.,
notwithstanding the APA’s provision that suits against
the United States “shall not be dismissed,” 5 U.S.C.
§ 702. Section 2(b) is thus best read to restore the
sovereign immunity that the APA had waived. See H.R.
Rep. No. 113-590, at 2 (explaining that the Gun Lake
Act provides a “broad grant of immunity”).
The Gun Lake Act thus represents an exercise of
Congress’s authority to enact Tribe-specific lands acts
that take land into trust and settle ongoing disputes
by limiting the jurisdiction of the Article III courts. In
“no changes in existing law.” H.R. Rep. No. 113-590, at 5 (2014);
S. Rep. No. 113-194, at 4 (2014). Read in context, this statement
means only that—no textual changes to existing statutes were
required—as it refers to “subsection 12 of rule XXVI of the
Standing Rules of the Senate,” which requires a committee report
to identify any textual changes to existing statutes that a bill
might require. S.R. Rep. No. 113-194, at 4. But Congress may—
and did—change the law without amending an existing statute.
15
the context of the federal government’s relationship
with Indian Nations, the Gun Lake Act is not unusual.
It. The Gun Lake Act Does Not Usurp Article III
Judicial Power Or Violate The Separation
Of Powers.
The Gun Lake Act is not constitutionally suspect
simply because it addresses an ongoing dispute about
a particular parcel of land. The Act violates neither
Article III nor the separation of powers.
Amici recognize that Congress’s authority to
legislate with respect to pending cases, including
by withdrawing jurisdiction, is not unlimited. For
example, Klein, 80 U.S. at 128, held that Congress
violated Article III and the separation of powers when
it directed the Supreme Court to apply settled law in
an outcome-determinative way. The Petitioner and his
amici argue that the Gun Lake Act violates Klein. Each
of their arguments fails, and for the same reason: The
Gun Lake Act does not tell the courts how they must
apply settled law, but rather makes new law for the
federal courts to apply, which Congress undoubtedly
can do.
16
A. Nothing In Article III Prevents Congress
From Making New Law To Resolve Land
Disputes Through Tribe-Specific Lands
Acts.
The long history of case-specific legislation in the
Indian Affairs arena proves that Klein does not stand
for the broad proposition that the Petitioner advances.
The Petitioner argues that Klein forbids Congress from
making new law that directs a federal court promptly
to dismiss a pending case without modifying “generally
applicable substantive or procedural laws.” Pet’r Br. 11.
That is not what Klein held. Instead, Klein rested upon
two holdings, neither of which is implicated by the Gun
Lake Act.
Klein arose out of Civil War and Reconstruction
era legislation concerning property seized by the
Union forces during the War. Klein was the executor of
the estate of Wilson, who had shipped cotton for
confederates during the War, and received a full
presidential pardon after taking a loyalty oath. Klein
sought to recover the proceeds of the sale of Wilson’s
cotton.
While Klein’s case was pending on appeal, the
Supreme Court decided in United States v. Padelford,
76 U.S. (9 Wall.) 531 (1870), that an individual who,
like Wilson, had taken a loyalty oath and received a
presidential pardon, would be entitled to the proceeds
of sale under an 1863 Act. In 1870, Congress responded
to Padelford by enacting a statute that withdrew
jurisdiction over claims to recover seized property
17
where the claimant relied upon a presidential pardon.
The statute directed courts to construe a presidential
pardon as proof that an individual had given aid and
comfort to the Confederacy. See Act of July 12, 1870, ch.
251, 16 Stat. 230, 235. And it withdrew jurisdiction
once the courts had reached that determination on the
merits: “on proof of such pardon and acceptance, ...
the jurisdiction of the court in the case shall cease, and
the court shall forthwith dismiss the suit of such
claimant.” Jd. As for appellate jurisdiction, the Act
provided that “the Supreme Court shall, on appeal,
have no further jurisdiction of the cause, and shall
dismiss the same for want of jurisdiction.” /d.
The Klein Court held that the 1870 Act violated
Article III and the separation of powers in two ways.
First, by stripping jurisdiction over claims concerning
seized property only when a court had found on the
merits that those claims rested upon a presidential
pardon, Congress forbade the Court +o “give the effect
to evidence which, in its own judgment, such evidence
should have.” 80 U.S. at 147. This “passed the limit
which separates the legislative from the judicial
power.” Id. Second, Congress had transgressed the
separation of powers by “impairing the effect of a
[presidential] pardon.” Id.; see also United States v.
Sioux Nation, 448 U.S. 371, 405 (1980) (discussing
Klein’s reasons for holding 1870 Act unconstitutional).
The Article III line drawn by Alein thus is
not crossed by particularized legislative action
withdrawing jurisdiction. And this Court recognized as
much in Bank Markazi, 136 S. Ct. at 1327. Congress
18
may, for example, enact particularized legislation
that applies to ongoing litigation concerning specific
forests, a single bridge, or a single memorial site. See
id. at 1326, 1328 (citing Robertson, 503 U.S. at 434-35,
438-39, Wheeling Bridge, 59 U.S. at 430-32, and Nat'l
Coalition to Save Our Mail v. Norton, 269 F.3d 1092,
1097 (D.C. Cir. 2001)). With reason. Statutes that
govern the management of specific properties are
commonplace—and by necessity particularized. See id.
at 1327 (explaining that petitioner’s argument rested
on “flawed ... assumption that legislation must be
generally applicable”).
Thus, Bank Markazi upheld Section 8772 of the
Iran Threat Reduction and Syria Human Rights Act of
2012 because the Act “direct[ed] courts to apply a new
legal standard to undisputed fact” by rendering
specific property of the Central Bank of Iran available
to satisfy judgments. Bank Markazi, 136 S. Ct. at 1325
(upholding 22 U.S.C. § 8772). In so doing, the Court
recognized that “laws that govern[] one or a very small
number of specific subjects” are not necessarily
unconstitutional. Jd. at 1328. That is particularly true,
this Court reasoned, when those laws address
government-to-government' relationships. Section
8772 was an “exercise of congressional authority
regarding foreign affairs, a domain in which the
controlling role of the political branches is both
necessary and proper.” Jd.
The Gun Lake Act is similarly constitutional.
Section 2(a) is Congress’s new mandate that the
Bradley Property be held in trust, regardless of the
19
scope of the Secretary of Interior’s authority under the
Indian Reorganization Act, 25 U.S.C. § 5108, or any
other statute. Gun Lake Act § 2(a), 128 Stat. 1913.
Section 2(b) also changes the law by withdrawing
jurisdiction over challenges to that trust designation.
Id. §2(b). Like Section 8772 of the Iran Threat
Reduction and Syria Human Rights Act, the Gun Lake
Acts governs a specific subject—in this case, a specific
parcel of property—but is not unconstitutional on that
basis alone. And like Section 8772, the Gun Lake Act
addresses government-to-government relationships in
a sphere, Indian Affairs, where the “controlling role of
the political branches is both necessary and proper.”™*
Bank Markazi, 136 S. Ct. at 1328. Congress has long
had authority to enact rational measures to implement
its trust responsibility to Indian Nations. See Morton
v. Mancari, 417 U.S. 535, 555 (1974).
Nor does the withdrawal of jurisdiction offend
the separation of powers. Even beyond being a
straightforward exercise of its Indian Affairs power,
the Gun Lake Act is far from the first instance where
Congress has required the federal courts to withdraw
jurisdiction over a pending case. Congress has “on
‘* Congress may choose to implement the United States’
responsibilities under international law through Tribe-specific
lands acts. See generally U.N. Decl. on the Rights of Indigenous
Peoples, G.A. Res. 61/295, U.N. Doc A/RES/61/295 art. 28(1) (2007)
(“Indigenous peoples have the right to redress, by means that can
include restitution ... for the lands, territories and resources
which they have traditionally owned or otherwise occupied or
used, and which have been confiscated, taken, occupied, used or
damaged without their free, prior and informed consent.”).
20
occasion withdrawn jurisdiction from the Court of
Claims to proceed with the disposition of cases pending
therein, and has been upheld in so doing by this
Court.” Glidden Co. v. Zdanok, 370 U.S. 530, 567 (1962).
In District of Columbia v. Eslin, 183 U.S. 62 (1901), this
Court held that Congress had validly withdrawn
federal jurisdiction over an appeal from the Court of
Claims by repealing the law upon which the Court of
Claims had based its judgment and providing that “‘no
judgment heretofore rendered in pursuance of said act
shall be paid.’” Jd. at 64-65 (emphasis omitted). And
in Ex parte McCardle, 74 U.S. at 514, this Court
dismissed a case pending on appeal after Congress
amended the law to withdraw jurisdiction over a class
of cases, including McCardle’s. Simple withdrawal of
jurisdiction over a pending case does not pose the Klein
separation of powers problem, because it does not
intrude upon an Article [II court’s weighing of the
merits.
B. The Gun Lake Act Does Not Violate
Klein’s Prohibition Of Congressional
Direction Of The Result In A Pending
Case
1. The Petitioner’s amici do not quarrel with
Bank Markazi’s holding that “Congress may indeed
direct courts to apply newly enacted, outcome-altering
legislation in pending civil cases” without violating
Article III or the separation of powers. 136 S. Ct. at
1325; see Amicus Br. 5. Nor do the amici dispute that
Congress may achieve specific results in pending cases
21
concerning particular parcels of land, including by
precluding judicial review. See Amicus Br. 11, 21 n.9.
Finally, the amici do not argue that Congress lacks
broad authority over federal jurisdiction. See Amicus
Br. 10.
Instead, the Petitioner’s amici argue that the Gun
Lake Act, to the extent it makes new law, does not
make it in the right way. The rule they propose, in
other words, is not simply that Klein prohibits
Congress from directing results without changing the
law. See Amicus Br. 11. They argue that Congress
violates the separation of powers if it makes new law
withdrawing jurisdiction while also specifying that
federal courts should “promptly” “dismiss[]” suits that
fall within the new jurisdictional rule. Jd. at 21. The
core of their argument is that the Gun Lake Act
violates this prohibition because it required the
dismissal of the Petitioner’s action. But the Gun Lake
Act applies to any action concerning the Bradley
Property. And Klein does not prohibit Congress from
making new law that requires prompt dismissal of
pending actions.
2. Klein does not prohibit Congress from altering
the ownership status of a parcel of land in a way that
moots a judicial decree. On the contrary, Klein took
pains to distinguish Wheeling Bridge, 59 U.S. 421, in
which Congress had declared that two bridges were
federal postal roads and lawful, notwithstanding
the Court’s earlier holding that the Wheeling Bridge
was an unlawful impediment to navigation, see
Pennsylvania v. Wheeling & Belmont Bridge Co., 54
22
U.S. (13 How.) 518 (1852). After Congress passed this
property-specific legislation, the Court applied the
new statute, which precluded enforcement of its earlier
judgment. Klein reconciled its holding with Wheeling
Bridge, explaining that “the court {in Wheeling Bridge]
was left to apply its ordinary rules to the new
circumstances created by the act.” Klein, 80 US. at
146-47. The new law made no intrusion into judicial
law-determination or fact-finding. As the Petitioner’s
amici note, the “critical aspect” of Wheeling Bridge was
that Congress “had permanently, and for all legal
purposes, altered the underlying legal status of the
bridge.” Amicus Br. 9 n.6.
The Gun Lake Act accomplishes the same end.
Section 2(a) permanently alters the ownership status
of the Bradley Property. Quite apart from any
otherwise applicable statutory constraints on the
Secretary's decision to take land into trust, the Gun
Lake Act declares the Property to be Indian trust land.
And this congressional determination and affirmation
of the Property’s trust status is new law.
3. Nor does Klein prohibit Congress from
eliminating the legal basis for the Petitioner’s suit.
Congress similarly eliminated the legal basis for
pending lawsuits when it enacted the Northwest Timber
Campromise, which resolved a dispute concerning
the adequacy of the Bureau of Land Management’s
(“BLM”) consideration of the environmental impacts of
permitting timber harvesting in thirteen national
forests in Oregon and Washington. See Robertson, 503
U.S. at 432-36 (1992) (reviewing Northwest Timber
23
Compromise, § 318, Pub. L. No. 101-121, 103 Stat. 701,
745 (1989)). Identifying the three pending lawsuits by
name and docket number, Congress provided that its
own consideration of the environmental impacts
satisfied the statutory requirements that applied to
the BLM. Id. at 434-35. In Robertson, this Court upheld
that statutory compromise. Jd. at 438. Congress had
“directed . . . a change in law, not specific results under
old law,” and thus had not violated Klein. Id. at 439. By
“effectively modifying the provisions at issue” in the
pending cases, Congress had eliminated the basis for
the plaintiffs’ administrative law challenge. Jd. at 440.
The Gun Lake Act similarly eliminates the basis
for the Petitioner’s complaint about the Secretary of
Interior’s compliance with federal statutory law. And
the Act changes the law not only for the Petitioner’s
suit, but also for any “action ... relating” to the
Bradley Property. Gun Lake Act § 2(b), 128 Stat. 1913.
That is constitutional even under amici’s reading
of Robertson. See Amicus Br. 11 (“{Ajlthough the
compromise had the effect of eliminating the legal
basis for the plaintiffs’ suit [in Robertson], the statute
changed the law governing not just that suit but any
other challenge to the timber sales affected by the
compromise.”).
Like the Northwest Timber Compromise, the Gun
Lake Act explicitly withdraws federal jurisdiction while
also eliminating the legal basis for an administrative
law challenge. See Robertson, 503 U.S. at 435 n.2 (noting
that Section 318(b)(6)(A) of the Northwest Timber
24
Compromise withdrew jurisdiction with respect to
standards adopted in subsections (bX3) and (b)(5)).
And there are other examples where Congress has
eliminated the legal basis for suit while withdrawing
federal! jurisdiction.
In 2001, for instance, Congress enacted Public
Law No. 107-11, 115 Stat. 19 (2001), which mirrors the
Gun Lake Act. In a case cited with approval by this
Court, the D.C. Circuit upheld this statute. See Bank
Markazi, 136 S. Ct. at 1328 (citing Save Our Mall, 269
F.3d at 1097, cert. denied, 537 U.S. 813 (2002)). Public
Law No. 107-11 first provided that construction of
a World War II memorial on the National Mall would
be approved, see Save Our Mall, 269 F.3d at 1094,
just as Section 2(a) of the Gun Lake Act approves
the trust designation of the Bradley Property. And
the statute then withdrew jurisdiction over a pending
administrative law challenge to the memorial
designation, stating that the designation “shall not be
subject to judicial review.” Jd. Similarly, Sections 2(a)
and 2(b) of the Gun Lake Act apply this belt-and-
suspenders approach, declaring the substantive law,
and then avoiding litigation over the decision with
respect to the property by withdrawing jurisdiction
over all pending and future cases relating to that
property. Just as Public Law No. 107-11 passed
constitutional muster, see id. at 1097, so too does the
Gun Lake Act.
4. The Petitioner's amici do not dispute that
Congress can make new law withdrawing federal
jurisdiction over a pending case. Amicus Br. 20-21.
25
But, they argue, a constitutional problem is created
when Congress includes the phrase “shall be promptly
dismissed” as part of the jurisdictional provision. See
id. at 20.
Section 2(b) of the Gun Lake Act states that any
action “relating to the [Bradley] Property shall not be
filed or maintained in a Federal court and shall be
promptly dismissed.” Gun Lake Act § 2(b), 128 Stat.
1913. Amici seem to suggest that the first half of this
statutory phrase—‘shall not be filed or maintained in
a Federal court”—poses no constitutional problem. See
Amicus Br. 20-21. Nor, they imply, would it violate
Klein for Congress to withdraw jurisdiction by
providing that a pending action “shall not be subject to
judicial review,” as Congress did when it approved the
World War II memorial on the National Mall. See id. at
21 n.9 (attempting to distinguish Save Our Mall, 269
F.3d at 1092, from this case). Thus, their argument
against Section 2(b) of the Gun Lake Act—as well as
the Petitioner’s argument—depends entirely upon
isolating the phrase “shall be promptly dismissed”
from the rest of the statute. See id. at 21; Pet’r Br. 11-
12.
But Section 2(b) is not unconstitutional simply
because Congress included a phrase specifying the
necessary consequences of a withdrawal of jurisdiction.
The Petitioner and his amici would read the phrase
“shall not be filed or maintained in a Federal court” out
of Section 2(b), as if Section 2(b) contained a naked
command that the federal courts shall dismiss any
action. Which it does not. Rather, read as a whole,
26
Section 2(b) provides that if a court finds that an action
before it brings a challenge to the trust status of the
Bradley Property, then it must withhold federal
jurisdiction and therefore promptly dismiss the
action. Thus, Section 2(b) does not purport to declare
the law in place of the courts; rather—like any
jurisdiction-removing provision—it simply withdraws
the authority of the courts to declare the law. See Ex
parte McCardle, 74 U.S. at 514 (“Jurisdiction is power
to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing
the fact and dismissing the cause.”).°
In short, Section 2(b) of the Gun Lake Act is a
far cry from the statutory provisions struck down in
Klein. The Klein statute provided that “on proof of
[a presidential] pardon and acceptance, ... the
jurisdiction of the court shall cease, and the court shall
forthwith dismiss the suit of such claimant.” Act of
July 12, 1870, ch. 251, 16 Stat. at 235. This statute
directed the federal courts to make a determination on
the merits and weigh the facts to determine “proof” —
that a claimant had accepted a presidential pardon—
© The Petitioner is correct that “the Court has repeatedly
confirmed that the judicial power cannot be shared with another
branch of government.” Pet’r Br. 13. As much as that is true, it is
beside the point. The Court has repeatedly confirmed that the
Judiciary can act only in cases and controversies over which it has
jurisdiction. This basic rule was stated in Ex parte McCardle: “The
first question necessarily is that of jurisdiction,” and if a statute
validly “takes away [the Court’s] jurisdiction .. . , it is useless, if
not improper, to enter into any discussion of other questions.” 74
US. at 512.
27
rather than a threshold jurisdictional determination
that a particular action related to a particular parcel
of land. And the Klein statute further directed that a
federal court must give its merits determination
precisely the opposite effect than it would have had
under already-existing law. See generally Padelford, 76
US. at 543. By contrast, the Gun Lake Act accepts this
Court’s invitation to reinstate sovereign immunity. See
Resp. Br. 19.
Thus, in Klein, the jurisdictional withdrawal
depended upon the merits finding, and directly
undermined this Court's earlier ruling on the
consequences of such a merits determination. The
Gun Lake Act, by contrast, does not direct the federal
courts to withdraw jurisdiction based on a merits
determination, nor does it direct the opposite result
from what would apply under settled law. To the
contrary, wholly apart from the merits of any
particular lawsuit, Section 2(b) provides that any
action “relating to the [Bradley] Property shall not
be filed or maintained and shall be promptly
dismissed.”
5. Even if the text alone does not, the canon of
constitutional avoidance compels reading Section 2(b)
as withdrawing federal jurisdiction without directing
a result under settled law. Even if Section 2(b) were
ambiguous, it would be “possible” to interpret it as
“amendling| applicable law” and thus to avoid any
question of its constitutionality under Klein. See
Robertson, 503 U.S. at 441 (internal quotation marks
omitted).
28
The Petitioner’s amici imply that separation-
of-powers values would be sacrificed if this Court
were to hold the Gun Lake Act constitutional. Yet
none of the important values that they advance are
implicated here. The separation of powers does protect
an individual litigant from a legislative majority that
would seek to decide his case alone. See Amicus Br.
12-13. But that is not this case. Section 2(a) of the Act
takes land into trust, thus altering its legal status with
respect to all non-owners, not just the Petitioner. And
Section 2(b) directs that any action concerning the
Bradley Property—not just the Petitioner’s—“shall not
be filed or maintained.”'® Gun Lake Act § 2(b), 128
Stat. 1913.
Moreover, the separation of powers also protects
Congress’s authority to take land into trust and to
settle ongoing Indian lands disputes, a function vital
to restoring Indian Nations’ land base from the losses
suffered due to generations of adverse federal policies.
* The Petitioner argues that Section 2(b) violates Article
III because it precludes the federal courts from addressing
unresolved merits questions arising from Section 2(a). Pet’r Br.
20. It is telling, however, that the Petitioner’s amici do not press
an Article III objection on this basis—likely because Article II]
does not so limit Congress’s authority to withdraw jurisdiction. In
all events, federal courts always have jurisdiction to address their
own jurisdiction to review agency action where, as here, Congress
has withdrawn it. Cf Bowen v. Mich. Academy of Family
Physicians, 476 U.S. 667, 673-74 (1986). Against this backdrop,
Section 2(b) leaves standing the federal courts’ jurisdiction to
address their own jurisdiction by deciding whether an action falls
within the scope of Section 2(b)’s withdrawal of judicial review.
And that is all Article III requires.
29
For more than 150 years, Congress has enacted Tribe-
specific lands acts to settle disputes, and this Court
has recognized the political branches’ authority to
negotiate the resolution of government-to-government
Indian Affairs questions. Contrary to the suggestion of
the Petitioner’s amici, see Br. 15, Congress was not
evading responsibility by enacting the Gun Lake Act.
Instead, it was fulfilling its trust responsibility to
Indian Nations using a statutory tool that it has used
countless times before.
C. The Gun Lake Act Does Not Prescribe An
Unconstitutional Rule Of Decision Or
Deprive The Petitioner Of Vested Rights.
The Gun Lake Act does not pose the threat to
individual constitutional rights that the Petitioner
suggests. Though the Petitioner implies his individual
rights have been violated, Pet’r Br. 26, this is not a case
in which Congress has ordered the federal courts
to apply an unconstitutional rule of decision or to
deprive an individual of vested rights. Klein held that
Congress could not order a federal court to deny the
constitutional effect of a presidential pardon. See 80
U.S. at 147 (“The rule prescribed is also liable to just
exception as impairing the effect of a pardon, and thus
infringing the constitutional power of the Executive.”).
In this way, “the Klein judgment is adequately
supported by .. . the entirely plausible understanding
that the rule of decision whose application Congress
directed would have required the courts to abridge the
President’s pardon power.” Richard H. Fallon, Jr. et al.,
30
Hart & Wechsler’s The Federal Courts and the Federal
System 425 (7th ed. 2015). The Gun Lake Act, by
contrast, does not interfere with any constitutional
power reserved to the President, but rather moots the
Petitioner’s APA challenge to the Secretary’s decision
to take the Bradley Property into trust. In this case,
Congress has not required the federal courts to apply
a rule of decision that directly encroaches upon
another constitutionally-protected power, like the
pardon power, or the judicial power to declare the law.
Nor is this a case in which Congress has decided
among competing claims of vested property rights. It
may be that Article III limits Congress’s authority to
target a pending case involving competing claims of
ownership by directing the federal courts to favor one
party's evidence of title over another’s. See Bank
Markazi, 136 S. Ct. at 1329 (Roberts, C..J., dissenting).
When Klein was decided, the concept of vested rights
“was a dominant feature of general constitutional
law,” though it “has largely fallen from our federal
constitutional discourse” today. Edward A. Hartnett,
Congress Clears its Throat, 22 Const. Comment. 553,
575 (2005). In Klein, this Court suggested that Wilson’s
property rights vested when he took the oath of loyalty.
See 80 U.S. at 142 (explaining that “restoration of the
proceeds became the absolute right of the persons
pardoned”); Hartnett, supra, at 574.
Whatever Klein’s relevance for vested property
rights, however, this case does not present that
question. The Petitioner does not claim to be the
rightful owner of the Bradley Property. See Patchak I,
31
567 U.S. at 220 (explaining that Petitioner “wants a
court to strip the United States of title to the land, but
not on the ground that it is his and not so that he can
possess it”). This is not a case in which Congress has
stripped an individual of vested property rights by
directing the federal courts to apply settled law in
an outcome-determinative way. Rather, through the
Gun Lake Act, Congress responded to an invitation
from this Court to decide whether, in the interests of
finality, suits related to the Bradley Property should
proceed. The Gun Lake Act neither undermines judicial
independence nor encroaches upon constitutional rights.
Instead, it is a standard exercise of Congress’s plenary
authority over Indian Affairs, and reflects a constructive
dialogue between Congress and this Court.
¢
CONCLUSION
The decision of the United States Court of Appeals
for the District of Columbia Circuit should be affirmed.
Respectfully submitted,
RUTHANNE M. DEUTSCH
Counsel of Record
HYLAND HUNT
DEuTscH HuNtT PLLC
SETH DAvIs
MATTHEW L.M. FLETCHER
Counsel for Amici Curiae
APPENDIX
LIST OF AMICI CURIAE
Gregory Ablavsky is an Assistant Professor of Law
at Stanford Law School.
Kirsten Matoy Carlson is an Associate Professor of
Law and Adjunct Associate Professor of Political
Science at Wayne State University.
Kristen A. Carpenter is the Council Tree Professor
of Law at the University of Colorado Law School.
Seth Davis is an Assistant Professor of Law at the
University of California, Irvine School of Law.
G. Michael Fenner is the James L. Koley ‘54
Professor of Constitutional Law at Creighton
University School of Law.
Matthew L.M. Fletcher is a Professor of Law and
Director of the Indigenous Law & Policy Center at
Michigan State University College of Law.
Katherine Florey is a Professor of Law at the
University of California, Davis School of Law.
Sarah Krakoff is the Raphael J. Moses Professor
of Law at the University of Colorado Law School.
Frank Pommersheim is a Professor of Law at the
University of South Dakota School of Law.
Angela R. Riley is a Professor of Law and the
Director of the Native Nations Law and Policy Center
at the University of California, Los Angeles School of
Law.
(App. 1)
App. 2
Joseph William Singer is the Bussey Professor of
Law at Harvard Law School.
Wenona T. Singel is an Associate Professor of Law
at Michigan State University College of Law.
Michalyn Steele is an Associate Professor of Law
at the J. Reuben Clark Law School at Brigham Young
University.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.