Land Acquisitions | Litigation

Supreme Court takes no action on long-running tribal land case




Construction continues on a $76 million expansion at the Gun Lake Casino, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, in Wayland, Michigan. Photo: Gun Lake Casino

The Trump administration and Indian Country will have to wait a little longer to learn the status of a long-running casino land case.

The U.S. Supreme Court met behind closed doors on Friday to consider the petition in Patchak v. Zinke. But no action was taken at the time -- the case wasn't among those found in an order list released by the justices on Monday morning.

That means the petition will considered at an upcoming conference. No reason was given for the delay but so-called "relists" are not unheard of.

"A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case," reporter Amy Howe writes on SCOTUSBlog, an influential site that covers the Supreme Court.

At issue is whether David Patchak, a non-Indian man who lives three miles from the casino owned by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, can sue the Bureau of Indian Affairs long after the gaming site in Michigan was placed in trust. Back in 2012, the Supreme Court's decision in Salazar v. Patchak allowed him to proceed with the case.

But Congress stepped in and ended the dispute with S.1603, the Gun Lake Trust Land Reaffirmation Act. The bill, which then-president Barack Obama signed into law in September 2014, confirms that the Gun Lake Casino is indeed in trust and can't be challenged in court.

Still, Patchak refused to drop the case and his legal team eventually admitted that he wanted some sort of monetary payment from the tribe or the federal government. A settlement never happened and the D.C. Circuit Court of Appeals upheld the validity of the new law in a unanimous July 2016 decision.

That ruling is now the subject of Patchak's pending petition. Both the tribe and the Trump administration are urging the Supreme Court to reject his request and put an end to the dispute.

"The express purpose of the Gun Lake Act was to 'provide certainty to the legal status of the land, on which the tribe has begun gaming operations as a means of economic development,'" attorneys from the Department of Justice wrote in a March 20 brief. "Economic certainty and the finality of governmental decisions are legitimate governmental purposes."

The Gun Lake Casino has indeed proven to be an economic benefit in Michigan. The facility, which opened in February 2011, employs more than 1,000 people and has contributed more than $60 million in revenues to the local community.

The tribe is now spending $76 million on an expansion that will nearly double the size of the casino. Work is expected to be complete sometime this summer.

Indian Country has paid close attention to the case because the 2012 ruling opened the doors to more litigation. Anyone can sue the BIA, at any time and for any reason, for approving a land-into-trust application and even after the land has been placed in trust.

In Patchak's situation, he hoped the Supreme Court's 2009 decision in Carcieri v. Salazar would derail the casino. In that ruling, the justices held that the BIA can place land into trust only for those tribes that were "under federal jurisdiction" in 1934.

The Gun Lake Tribe's federal status wasn't formalized until 1999 so Carcieri indeed represented a hurdle. Yet Patchak's case never got to that point, party because he let his lawsuit lapse for two years following his victory in 2012, but also due to the Reaffirmation Act.

Other tribes have asked Congress for similar legislation. So the D.C. Circuit's ruling sets a favorable precedent for Indian Country if it stands.

Congress has failed to enact a fix to Carcieri -- ironically due to controversy over new casinos -- so the reaffirmation approach has become a viable avenue for tribal interests.

D.C. Circuit Court of Appeals Decision:
Patchak v. Jewell (July 15, 2016)

U.S. Supreme Court Decision:
Patchak v. Jewell (June 18, 2012)

Prior D.C. Circuit Court of Appeals Decision:
Patchak v. Salazar (January 21, 2011)

Related Stories:
Supreme Court declines to hear yet another Indian Country case (April 17, 2017)
Trump team gets more time in Supreme Court tribal casino case (February 27, 2017
Federal appeals court backs Gun Lake Tribe land-into-trust law (July 15, 2016)