Judge upset with lack of movement in Gun Lake Tribe gaming case

The Gun Lake Casino in Wayland, Michigan. Photo from Google+

A federal judge expressed frustration today with a non-Indian landowner in Michigan who wants a monetary payment in connection with the casino owned by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.

David Patchak lives three miles from the Gun Lake Casino. His attorney said the facility, which opened in February 2011, has contributed to a lot of traffic in the region.

But Judge Richard J. Leon wondered why Patchak waited two years after the U.S. Supreme Court issued its decision in Salazar v. Patchak to come back and seek a monetary settlement. He noted that the casino employs 800 people and has been contributing revenues to the local community.

"You guys haven't talked in two years?" Leon asked during a hearing in the federal district court in Washington, D.C., this afternoon.

"Nobody's contacted the Justice Department," responded Gina L. Allery, a government attorney.

One of the reasons for the apparent lack of communication comes because Patchak hired a new legal team this summer. He's now being represented by Edwards Kirby, a firm started by former Sen. John Edwards (D-North Carolina), something Leon took notice of today.

Edwards, a former Democratic presidential candidate, did not appear at the hearing, however. Instead he sent attorney Sharon Eubanks, who acknowledged that Patchak wants one thing out of the long-running case.

"A monetary settlement is exactly what he's looking for," Eubanks told the judge.

Eubanks wasn't prepared to offer specifics though. So Leon said he was ready to resolve the lawsuit once and for all, perhaps within 90 days.

"This thing has festered long enough," Leon noted. "It is stunning to me."

"It is the plaintiff's obligation to move these cases," Leon added, referring to Patchak.

Leon asked the parties -- Patchak, the tribe and the Department of Justice -- to come up with a scheduling order within 10 days. He said if they wanted to discuss a settlement, they could do it on their own time.

"If you all are serious about resolving it," Leon asked, "how do you let it fester for two years?"

The dispute began when Patchak claimed the Bureau of Indian Affairs lacked the authority to place the site of the casino in trust as a result of the 2009 U.S. Supreme Court decision in Carcieri v. Salazar. The ruling restricts the land-into-trust process to tribes that were "under federal jurisdiction" as of 1934.

The Gun Lake Tribe didn't gain federal recognition until 1999. The Supreme Court, however, did not rule on the merits of that claim, ruling only that Patchak had standing to bring the suit even though the land-into-trust application had already been finalized by the BIA.

Barring a settlement, or a ruling from the court, the dispute could be resolved if Congress enacts S.1603, the Gun Lake Trust Land Reaffirmation Act. The bill bars legal challenges -- including Patchak's -- to the tribe's land-into-trust applications.

The Senate passed the bill by unanimous consent on June 19 and it awaits action in the House. The Obama administration supports the measure.

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