September 17, 2019

September 17, 2019

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September 16, 2019

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D.C. Circuit Court Decision Dismisses Constitutional Challenge to Gun Lake Band’s Trust Land

Last Friday, July 15, the D.C. Circuit Court of Appeals affirmed the constitutionality of the Gun Lake Trust Land Reaffirmation Act. Because the Court agreed with the D.C. District Court's finding of constitutionality, it also agreed with that lower court's dismissal of the underlying suit challenging the legality and propriety of the Gun Lake Band taking land into trust. This should finally put to rest the long-running (since 2008) legal challenges pursued by David Patchak, a Michigan resident owning land near the Band's trust land.

Congress passed the Gun Lake Trust Land Reaffirmation Act in 2014 for the express purpose of removing the district court’s jurisdictional authority over David Patchak’s then-pending case. Following passage of that Act, the D.C. District court dismissed Patchak's case, finding that the Act had validly and constitutionally stripped the Court of jurisdiction. Patchak appealed.

In his appeal, Patchak claimed that the Act was unconstitutional for four reasons. He claimed the Act encroaches upon the power of the courts to decide cases and controversies, burdens his First Amendment right to petition, implicates his rights under the Fifth Amendment's Due Process Clause, and constitutes an impermissible Bill of Attainder.

The Court rejected all of these arguments. It noted that many legislative actions operate to change the rights of litigants in pending lawsuits and that this does not constitute an infringement on the power of the Courts. It also found that Congress may constitutionally regulate the jurisdiction of lower courts even if it affects petitioner's rights, and that Patchak wasn’t deprived of his due process rights, stating specifically "the legislative process provides all the process that is due." The Court rejected Patchak's Bill of Attainder argument because the Act does not impose punishment on Patchak, and thus Patchak's argument is missing an essential element of a Bill of Attainder.

One hesitates to say that this eliminates the final legal challenge to the Gun Lake Band's trust land, but it certainly appears that way. Because of the narrowness of the Gun Lake Trust Land Reaffirmation Act and because the Court's decision does not rely on interpretation of principles of federal cases related to the rights of Indians and tribes, this case has little direct impact on other tribes. But, any legal decision that affirms tribal rights is helpful.

Click here for a complete copy of the decision.

© 2019 Varnum LLP

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About this Author

Fred L. Schubkegel, corporate attorney, Varnum
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Fred provides general legal counsel to private business interests and nonprofit organizations. He has over 30 years of experience assisting for-profit and nonprofit companies with advice, strategies and services related to startup, growth, development and exit, including entity formation and governance, financing, contracts, mergers and acquisitions, executive compensation, asset protection and business succession planning.

Fred has extensive knowledge in real estate and economic development with a particular knack for packaging incentives and credits to make the...

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