When the U.S. Supreme Court heard oral arguments in Salazar v. Patchak on April 24, tribal advocates and Indian legal observers tried to face down their worst fears, having watched the high court hand down seven major rulings against tribal interests since Chief Justice John Roberts took the helm in September 2005.
Yes, there was still an abundance of antitribal rhetoric in the court, especially coming from Justice Antonin Scalia, who seemed to go out of his way to tip his hand. But there was also some measured criticism of David Patchak, the anti-Indian casino Michigan resident who claims the U.S. Department of the Interior did not have the legal authority to place land in trust for the tribe in this case.
During the hour-long hearing, several justices appeared to side with the tribe—the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, otherwise known as the Gun Lake Tribe—and the U.S. government, saying that Patchak had waited too long to file objections to the opening of a casino by the tribe on trust lands in February 2011. The Interior Department had announced its decision to take Gun Lake’s 147 acres into trust in May 2005, but Patchak didn’t file his lawsuit until August 2008. “It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the…case is moot, but you did wait for some three years before you brought this suit. The building was built.” (He meant that metaphorically—the casino wasn’t completed for another couple of years.)
Patchak’s current argument is based on the controversial 2009 Supreme Court Carcieri ruling, which found that Interior could only place land in trust for tribes that were federally recognized under the Indian Reorganization Act (IRA) in 1934. Gun Lake was federally recognized in 1998. “In spite of the knowledge of this court’s decision in Carcieri, they made a reasonable business decision to move forward with this, knowing the risk that they were taking that the entire basis of them being able to operate a casino and engage in Class III gambling could be overturned,” Matthew T. Nelson, Patchak’s lawyer, argued against Gun Lake.
The tribe opened its casino soon after the U.S. Court of Appeals for the District of Columbia Circuit reversed the federal district court’s ruling that Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act, which says the federal government cannot be divested of title to Indian trust lands. The appeals ruling enlarged the previous criteria for “prudential standing”—the right to initiate a lawsuit—which basically required someone to be injured or otherwise affected by an action. Gun Lake, along with the U.S. Justice Department, appealed that decision to the Supreme Court, arguing that the Quiet Title Act bars lawsuits attempting to overturn a decision to take title to lands in trust for tribes. “The United States has not waived its sovereign immunity from suits challenging its title to Indian trust lands,” Justice Department lawyer Eric D. Miller said in arguing the position.
After the oral arguments, some tribal legal observers felt cautiously optimistic about Gun Lake’s odds—a strange feeling after so many devastating losses in recent years. “We come in with the bias that we are zero for seven in front of the Roberts Court,” said Richard Guest, a tribal legal expert with the Native American Rights Fund, who attended the hearing. “That gives us a pretty strong inclination to look for how the court is going to rule against the tribe.”
Those losses have made tribes wary. Despite positive indications, Matthew L.M. Fletcher, director of the Indigenous Law & Policy Center at Michigan State University, couldn’t shake his negative feelings: “I can’t predict an outcome at all, but my instincts tell me to expect a bad result. There are so few friends for tribal interests, and too many salient foes.”
On the other hand, most accounts in the mainstream media came away with the impression that the eventual Supreme Court ruling here may end up being pro-tribe—another jarring feeling for tribal legal observers who have seen the press outside of Indian country misinterpret their issues and cases time and again.
Despite the positive signs, Scalia confirmed the worst fears of every tribal protagonist as the arguments were presented. He clearly is hostile to tribes, tribal sovereignty and Indian gaming, and he is more than willing to take his arguments public. Proof of his bias was evident as he helped the counsel of Patchak argue the case four times during the hearing. He also asked counsel at one point “whether this land could be used for what you call gaming and I call gambling.”
How’s that for a red flag? As Fletcher noted on his Turtle Talk blog, “There’s a long-standing rhetorical distinction between those who support tribal gaming/gambling—opponents call it ‘gambling’ and supporters call it ‘gaming.’ Justice Scalia tips his hand, no doubt intentionally.”
Meanwhile, a more recent appointment to the court, Justice Sonia Sotomayor, proved once again that she understands tribal legal issues, raising timing and other legal concerns with Patchak’s argument. A strong sign that she’s sympathetic to Indian issues came when she dissented on the Jicarilla Apache ruling, and her questioning in this case likewise proved tough against Patchak. Tribal legal experts worked hard to connect with Sotomayor during her confirmation process, since, given her background, they felt she was the best chance for getting an advocate on the court in the near future.
Another recent appointment, Justice Elena Kagan—who was not thought to be overly friendly to tribal interests based on
her record as dean of Harvard Law School, where she failed to appoint permanent Native faculty to a position that was created with the understanding that it would be staffed by someone dedicated to Indian Law—has been less easy to read.
The court will likely announce their decision in June. As they ponder this case, they will also be working on their votes on some of the most important legal questions facing the nation—namely whether the Obama administration’s health-care insurance plan is constitutional, and whether Arizona’s anti-immigration laws are just. Indian country has a stake in both of those cases, since the Obama health-care law includes the Indian Health Care Improvement Act reauthorization, and Arizona’s anti-immigration laws are a pressing concern for border tribes in that state.
Guest believes that if the court is consumed with these other high-profile cases, this could work in the Gun Lake Tribe’s favor. The justices may decide that they simply want to come to a quick decision on Patchak to clear the way for their other rulings. “If all or most of them agree that Patchak waited too long to file his objections, they could write their opinions on this timing issue rather quickly, and move on to the other cases,” Guest said. “If they want to come to a decision on the Quiet Title Act questions, that could take a lot more time. It all depends on how much effort they want to expend on this.”
But Guest thinks that may be a very optimistic scenario. “I would be surprised if they decided it on the timing issue alone and never got into the more complicated aspects,” he said. “It would be a pleasant surprise, but I just can’t expect it.”
Extrapolating from the oral arguments is no easy task, said Gabriel Galanda, an enrolled member of the Round Valley Indian Tribes and a partner with Galanda Broadman PLLC, in Seattle. “But as we already know from Carcieri and several prior Supreme Court decisions, [Scalia] and his right-leaning cohort disfavor tribal self-determination; that comes as no real surprise. Indeed, Indian country should have little hope that Patchak will result in a decision that does not, some way, somehow, further erode tribal sovereignty.” Tribes continue to unsuccessfully push for a congressional Carcieri fix that would make it clear that Interior has the legal authority to take lands into trust for all federally recognized tribes, regardless of when they were recognized.
The best outcome for Indian country would be if the court decides to affirm the Quiet Title Act in favor of the United States, and thus Gun Lake, Galanda said. But he expressed uneasiness on the issue of prudential standing. “I fear that the court will invent law under the Indian Reorganization Act, as it did in Carcieri, which will further stymie modern tribal progress towards self-sufficiency,” he said. Although Sotomayor seemed concerned by the possibility that a “farm owner’s niece”—meaning virtually anybody—could challenge a land into trust acquisition under the IRA, the court could conceivably broaden the definition of the so-called zone of interests, in which affected persons must establish themselves in order to challenge an IRA land acquisition, Galanda said. “Any form of ruling that expands non-Indians’ prudential standing to challenge fee-to-trust acquisitions or other federal action on behalf of tribes would spell disaster for Indian country,” he said.
Gun Lake—and Indian country—will prevail if the high court rules either that Patchak does not have standing to bring his Carcieri challenge forward or that the Quiet Title Act protects the federal government from being divested of land. If, on the other hand, it upholds the appeals court ruling, Patchak’s case would go back to the district court for trial, where “findings of fact” will be made about whether Gun Lake meets the criteria for tribes that were “under federal jurisdiction” when the IRA was enacted in 1934. That would set up conditions for another appeals process—and the daunting possibility that the case could end up before the U.S. Supreme Court again.