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Judge supports Gun Lake Tribe in battle over land-into-trust law

Thursday, June 18, 2015

A view of the Gun Lake Casino in Wayland, Michigan. Photo from Facebook

A Michigan tribe secured victory on Wednesday in a long-running land-into-trust dispute affecting its gaming facility.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, opened the Gun Lake Casino in February 2011. The facility has put 800 people to work and has brought more than $80 million in revenues to the local community.

But that progress was put in jeopardy due to a lawsuit filed by a non-Indian man who lives about three miles from the casino. He questioned whether the Bureau of Indian Affairs had authority to approve the tribe's land-into-trust application.

The lawsuit resulted in a negative June 2012 ruling from the U.S. Supreme Court. In Salazar v. Patchak, the justices held that David Patchak had standing to sue the federal government even though the land was already in trust.

The case, though, was never decided on the merits of Patchak's claim that the tribe could not follow the land-into-trust process. Instead, he waited two more years after the high court's ruling to ask for some sort of monetary settlement from the tribe.

Amid the delay, Congress passed S.1603, the Gun Lake Trust Land Reaffirmation Act. The bill, which was signed into law by President Barack Obama in September 2014, confirms that the tribe's land remains in trust.

Additionally, the law directs the federal court to dismiss Patchak's lawsuit, though it does not bar him from questioning its constitutionality. But Judge Richard J. Leon, who has been handling the case since 2008, affirmed the law's legality in a decision filed yesterday.

"Plaintiff would have this court disregard the Gun Lake Act and proceed directly to the merits of his case," Leon wrote in the 20-page ruling. "I decline to do so. Because the Gun Lake Act purports to moot plaintiff's case, it is hard to see how it can be ignored. To disregard it entirely would, moreover, violate the usual principle that a court is to apply the law in effect at the time it rules."

As a result, Leon granted the tribe's motion to dismiss the case. The ruling appears to put an end to the matter although it's possible Patchk could take it to D.C. Circuit Court of Appeals.

A view of the U.S. Supreme Court. File photo by Indianz.Com

The underlying issue, however, remains an issue throughout Indian Country. Tribes continue to face challenges to their land-into-trust applications under the Supreme Court decision in Carcieri v. Salazar.

In the 2009 ruling, the justices held that the BIA can only place land into trust for tribes that were "under federal jurisdiction" in 1934, when the Indian Reorganization Act became law. The decision has spawned numerous lawsuits and administrative appeals, causing delays in improving economic, housing and other conditions on reservations.

"Taking land into trust is one of the most important functions that the [Interior] Department undertakes on behalf of Indian tribes," BIA Director Mike Black said in testimony to a House subcommittee yesterday. "Homelands are essential to the health, safety, and welfare of the tribal communities."

The uncertainty created by the Carcieri decision could be resolved by Congress. But tribes have been unable to convince lawmakers to support a simple fix to the IRA that would ensure that all tribes can follow the land-into-trust process.

Congress created the land-into-trust process through Section 5 of the IRA. The law was an effort to reverse the harmful effects of the allotment era, during which tribes lost 90 million acres of their territory between 1887 and 1934.

"The Dawes Commission was an egregious violation of every treaty that the United States had signed," Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation. who is one of only two members of a federally recognized tribe in Congress, said at a House hearing in May, referring to the federal body that stripped tribes of their land.

"The Indian Reorganization Act was an effort to reverse that awful and tragic mistake," Cole said.

Sen. Jon Tester (D-Montana), the vice chairman of the Senate Indian Affairs Committee, introduced S.732, a bill to fix the Carcieri decision, in March. It has not received a hearing.

A companion measure, H.R.407, was introduced by Rep. Betty McCollum (D-Minnesota), the co-chair of the Congressional Native American Caucus, in January. It has not received a hearing either.

Turtle Talk has posted documents from the Gun Lake Tribe's case, Patchak v. Jewell.

District Court Decision:
Patchak v. Jewell (June 17, 2015)