Law360 Spotlights Akin Gump SCOTUS Win for Gun Lake Tribe

In “How They Won It: Akin Gump Lands High Court Win For Tribe,” Law360 featured Akin Gump’s U.S. Supreme Court win on behalf of the Gun Lake Tribe, also known as the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, in a case involving a dispute over tribal land on which the tribe had built a casino.

After the Secretary of the Interior took the land into trust on the tribe’s behalf, and extensive litigation ensued, Congress passed the Gun Lake Trust Land Reaffirmation Act to reaffirm the property’s trust status, also providing that all actions relating to the property should be dismissed.

The case before the Court involved a D.C. Circuit ruling that Congress had not violated the constitutional separation of powers by blocking legal challenges to the tribe’s project.

Akin Gump Supreme Court and appellate co-head Pratik Shah led the firm team representing the tribe before the Court; the firm joined the litigation after the plaintiff’s petition was granted certiorari in 2017.

Shah said that the possibility that some Justices might balk at the separation of powers issue moved him and his team to argue, instead, that the Gun Lake Act should be seen as restoring the federal government’s sovereign immunity to the suit. Akin Gump’s strategy, according to Shah, was to “mount a forceful defense of the D.C. Circuit's reasoning why this doesn't violate the separation of powers, but we thought we also needed to look for a new and different theory to the extent that wasn't enough to get five votes in our client's favor.” He said that this was to assert that “really what Congress was doing [in Section 2(b) of the Gun Lake Act] was restoring the United States’ sovereign immunity to suit that had been waived in the APA [Administrative Procedure Act].”

Although the Justices ultimately split over the separation of power question, a plurality asserted that the Gun Lake Act did not unconstitutionally interfere with the federal courts’ role. As Shah said, “Even if this doesn't create definitive separation of powers law going forward, in that there weren’t five justices for any one proposition, the one clear proposition that comes out of the case, as the chief justice said in his dissent, is that [the plaintiff] Mr. Patchak’s suit is dead, and that is really what ultimately the tribe was seeking here.”

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