A key committee of the U.S. House of Representatives has passed H.R. 1532 last week, a bill that is specifically designed to protect land put into trust for the Poarch Band of Creek Indians of Alabama. The bill now moves to the full House.
By coincidence the U.S. Supreme is reviewing a case that could determine if the U.S. Congress is allowed to pass such a bill.
The bill is called the Poarch Band of Creek Indians Land Reaffirmation Act, and it is sailing through, having been passed by unanimous consent in the House Committee on Natural Resources.
However, the Supreme Court’s review of Patchak v. Zinke could shut down such bills as it considers whether it was constitutional for a federal law to protect a tribe, in this instance the Gun Lake Tribe of Michigan, from litigation.
H.R. 1532 is specifically written to address the issue that was raised in the Gun Lake Tribe’s case. A markup memo on the bill states: “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.”
The year 1934 is significant because in the landmark decision Carcieri v. Salazar the high court ruled that tribes cannot put land into trust if they were not clearly under federal jurisdiction in that year. The Gun Lake Tribe was recognized in 1983. To end doubts about its status Congress passed the Gun Lake Trust Land Reaffirmation Act in 2014, which was intended to foreclose on a lawsuit that had been litigated for years by a neighbor of the Gun Lake Tribe, David Patchak who opposed a casino on its reservation.
The Poarch Band has so far emerged victorious in two lawsuits that challenged its trust land status.
Congress has never taken up the Carcieri “fix” that many tribes have urged, which would clarify the status of tribes who try to put land into trust after 1934. In large part because many lawmakers don’t want to open up what could be a huge can of worms over how land is put into trust—a very controversial subject indeed.
