The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians is debuting a $76 million gaming expansion project on May 3, 2017: "Join us this Wednesday at 11AM as we cut the ribbon and open the doors to our beautiful expansion, including more slots, a bigger Stage 131, and the 300-seat Harvest Buffet. Photo: Gun Lake Casino

Land Acquisitions | Legislation | Litigation | Openings & Closings

Supreme Court brings bad news to tribes by taking up land case

Monday, May 1, 2017

The nation's highest court has delivered more bad news to Indian Country, just days after issuing a decision that went against tribal sovereignty.

The U.S. Supreme Court on Monday agreed to hear a long-running case affecting the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians. The action, which came on the first page in an order list, threatens to undermine the status of the tribe's successful gaming facility in Michigan.

And the announcement couldn't have come at the worst time. Tribal leaders had been hoping to leave the legal drama behind as they welcome the public to the $76 million expansion of the Gun Lake Casino on Wednesday morning.

Still, there's little danger that the case, known as Patchak v. Zinke, will cause the facility to close down. The casino has been operating without incident for more than six years despite the uncertainty, which included a ruling from the Supreme Court in 2012.

But the court has agreed to resolve a major issue -- whether a federal law that was written to protect the casino from litigation violates the U.S. Constitution. The answer to that question could stop tribes from turning to Congress for help with land-into-trust controversies.

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in David Patchak v. Sally Jewell May 13, 2016

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, did just that when it secured bipartisan support for S.1603, the Gun Lake Trust Land Reaffirmation Act. The law, in addition to confirming that the site of the casino is in trust, ordered the federal courts to “promptly dismiss” the Patchak lawsuit.

But David Patchak, the non-Indian plaintiff who lives three miles from the casino, claims Congress overstepped its powers without changing the laws that affect the underlying issues in his case. For example, he has argued that the tribe cannot follow the land-into-trust process at all as a result of the Supreme Court's decision in Carcieri v. Salazar.

In Carcieri, the court held that the Bureau of Indian Affairs can only place land into trust for those tribes that were "under federal jurisdiction" in 1934. The Match-E-Be-Nash-She-Wish Band's status wasn't formalized until 1999, long after that date.

"If Congress is permitted to direct federal courts that a pending case 'shall be promptly dismissed,' without any modification of generally applicable substantive or procedural laws, then there is no meaningful limitation on the legislature’s authority and ability to effectively review and displace judicial decisions it finds inconvenient or with which it disagrees," Patchak wrote in his petition.

Congress, however, has failed to amend the Indian Reorganization Act in a manner that would resolve the doubts raised in Carcieri. That's why Gun Lake, along with other tribes, have sought an "affirmation" of their trust lands when faced by litigation.

"In addition to Congress’ clear power to exercise its authority to define jurisdiction in this case, the Constitution has also granted Congress 'plenary and exclusive' authority to legislate with respect to Indian affairs in the Indian Commerce Clause," the tribe wrote in a brief that urged the Supreme Court to reject the petition.

The Trump administration also called on the justices to turn down the case. That would have let stand the tribe's victory at the D.C. Circuit Court of Appeals, whose unanimous decision last July upheld the legality of the affirmation law.

But now the tribe and the Department of the Interior will have to defend the law all over again. They will be submitting additional briefs to the court, which has not yet scheduled an oral argument for the case.

Also participating are a group of law professors whose brief was accepted by the court on Monday over the tribe's objections. They believe the D.C. Circuit made the wrong call on the reaffirmation act.

Patchak v. Zinke will be the first Indian law controversy to be heard by Justice Neil Gorsuch, the newest member of the court. Tribal interests supported his nomination because they believe his experience will help their interests in future cases.

Gorsuch took part in the consideration of the petition, according to the order list, which also specified the cases in which he played no part. But the Supreme Court did not say which justices voted to accept the case -- it only takes a vote of four to grant a petition.

Tribal interests are generally on the losing side of the high court's decisions. Prior to 2016, they lost nine out of 11cases, according to the Native American Rights Fund, which has been following Patchak as part of the Tribal Supreme Court Project.

The last defeat came just last Tuesday. By a unanimous vote, court concluded that a tribe's sovereign immunity does not extend to its employees, even when those employees are carrying out their duties.

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)