The “Patchak case” will come before the U.S. Supreme Court.
On Monday, December 12, the high court accepted petitions from the Gun Lake Tribe and the federal government to review a lower court ruling that David Patchak, a Michigan man, has standing to sue the Interior Department for taking into trust land where the tribe has built a casino. Indian law experts say the case is crucially important to Indian country because it threatens the federal government’s sovereign immunity from lawsuits regarding Indian lands and the status of those trust lands. The two petitions have been consolidated and will be allotted one hour for oral argument when the case is heard next spring.
The Gun Lake Tribe, whose formal name is the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, and the Department of the Interior petitioned the U.S. Supreme Court in August to review a ruling by the D.C. Circuit Court of Appeals last January that said Patchak, a former trustee in Wayland County, Michigan, has standing under the Administrative Procedure Act to bring a lawsuit against the Interior Department for taking into trust 147 acres near Grand Rapids where the tribe operates the Gun Lake Casino. The casino opened in February.
The tribe has endured a long struggle for its land and the opportunity for economic development through Indian gaming. Its trust land application has been challenged through state and federal courts for 10 years. The tribe was a party to the 1821 Treaty of Chicago and the Treaty with the Pottawatomi of September 19, 1827, but, like other treaty tribes, subsequently lost all of its land by “ceding” it to the United States. After the tribe was federally acknowledged in 1998, it filed an application asking Interior to take 147 acres of land into trust under the Indian Reorganization Act (IRA) of 1934, which authorizes the Interior Secretary to take land into trust for Indians. The lawsuits began in August, 2001, when two anti-Indian casino groups with which Patchak had ties – 23 Is Enough and MichGO (Michigan Gaming Opposition) – filed a lawsuit opposing Gun Lake’s trust application. After an extensive review of the trust land application, the Secretary agreed to take the land into trust in 2005. MichGO appealed the decision all the way to the Supreme Court, which denied its petition in 2007, then asked for the appeals court for a rehearing, which was denied in 2008. One week later, Patchak filed this action in federal district court under the Administrative Procedure Act.
Patchak, who lives near the casino, claimed that the Secretary could not take the land into trust because Gun Lake was not under federal jurisdiction in 1934. He also alleged that he would suffer an “injury in fact” because the rural character of the area would be destroyed, the value of his property would drop, and the casino would cause an increase in crime and air, noise and water pollution. The district court dismissed Patchak’s complaint saying that he lacked standing – the right to file a lawsuit – because the injury he alleged was not within the zone of interests protected by the IRA. The district court also ruled that Patchak 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 court reversed and remanded the case back to the district court. In its ruling, appeals court expanded the previous criteria for standing by granting Patchak prudential standing. Its decision was a departure from rulings in similar cases by four other circuit courts.
Matthew L.M. Fletcher, an associate professor of law and the director of the Indigenous Law & Policy Center at Michigan State University College of Law, said the case is crucial to protect trust lands. If Patchak prevails, “any land taken into trust by the United States for an Indian or Indian tribe within the last six years could be subject to challenge by, well, virtually anyone who opposes the trust acquisition,” Fletcher said, referring to a legal provision that allows challenges to be filed within six years.
Fletcher said that Patchak “is a muckety-muck who opposes the Gun Lake Casino. His ‘injury in fact’ is little more than irritation (or outrage?) that the casino is operating. So anyone that has some subjective annoyance about Indian gaming operations or housing developments or anything else on trust land would be able to sue the DOI for taking the land into trust, so long as they did it six years from the date of the trust acquisition.”
Patchak may well be the lone opponent to the Gun Lake Casino. In October, more than 15 entities, including Wayland Township, Allegan County, the Allegan Area Education Service Agency, the cities of Wayland and Allegan, the Barry County Chamber of Commerce, the Barry County Economic Development Alliance, the Gun Lake Business Association, and the Deputy Sheriff’s Association of Michigan filed a collective amici curiae – friend of the court – brief urging the Supreme Court to review Gun Lake’s petition. The casino, created 900 new jobs and has brought a new wave of prosperity to local hotels, restaurants, vendors and other businesses in an area that had a reported 11.9 percent unemployment rate.
If the Supreme Court upholds the appeals court ruling, the case would go back to the district court for trial where “findings of fact” will be made about whether the Gun Lake Band meets the criteria for tribes that were “under federal jurisdiction” when the IRA was enacted in 1934. “The Gun Lake Band’s arguments are incredibly strong, so I imagine they would prevail there,” Fletcher said. But that would set up conditions for another appeals process that could end up before the U.S. Supreme Court again.
As for the issue of prudential standing, “The sky is the limit. I really, really don’t think Patchak has a chance here. What could be of serious concern is if the Court rules that there is a way to get around the Quiet Title Act immunity bar for Indian lands through the Administrative Procedures Act, but Patchak doesn’t get to be the guy because of his standing problems. There are two points the federal government and the tribe have to win here. It would, however, be very strange if the Court decides the QTA question first before the standing question,” Fletcher said.
Asked if has confidence that the high court justices have an adequate understanding of Indian history and Indian law, Fletcher said, “Of course they don’t have an adequate understanding of Indian history, nor in this narrow adversarial process will they ever get one. They read the briefs, ignore the law and history professors’ briefs (unless it comports with their views of the outcome), and bring in their own views of what they think they know about Indian history. Each side gets 30 minutes, and it takes at least that long just to introduce the history of a single tribe. It’ll never happen unless the Justices want to learn more about history. And I doubt very many of them really care about it.”
As for Indian law, “I would say they absolutely know the law,” Fletcher said. “That’s what makes it so hard. They know exactly what they are doing.”