Scott Sprague serves as chairman of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe. Photo: Gun Lake Casino

Land Acquisitions | Litigation

Supreme Court hears arguments in long-running Gun Lake Tribe homeland case

Tuesday, November 7, 2017

The U.S. Supreme Court finally heard arguments in its first, and so far only, Indian law case of the term and one member boiled the dispute down to a seemingly simple question.

"So where is the real beef here?" Justice Neil Gorsuch said during the one-hour hearing on Tuesday morning.

Gorsuch, the newest member of the court, posed the meaty question in Patchak v. Zinke. The long-running case arose when David Patchak, a non-Indian resident of Michigan, tried to stop the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians from opening a casino on its ancestral homelands.

Patchak didn't succeed. Although he won a prior ruling from the Supreme Court which allowed him to sue the Bureau of Indian Affairs for approving the tribe's land-into-trust application, the Gun Lake Casino had already opened by that time. The facility continues to contribute millions of dollars to the state and local economy every year.

But Patchak, who lives about 3 miles from the casino, refused to drop his case and waited years after the earlier ruling to try to settle -- for some money, of course. That's when Congress stepped in with S.1603, the Gun Lake Trust Land Reaffirmation Act, a 2014 law that is at the heart of Gorsuch's "beef" query.

Based on Gorsuch's reading of the law -- as well as precedents accepted by Patchak's lawyer -- the Gun Lake Trust Land Reaffirmation Act requires something simple of the federal courts.

"There's nothing left to be done but dismiss," offered Gorsuch, whose nomination was widely supported in Indian Country.

Patchak naturally doesn't accept the premise. His attorney, Scott E. Gant, argued that Congress violated the U.S. Constitution by "changing the rules" of the game with S.1603, which was signed into law by former president Barack Obama.

"That is unconstitutional when, under the guise of changing the rules with respect to jurisdiction, the court is effectively deciding the case and then not letting the courts apply the new law either," Gant said, which prompted Gorsuch's "beef" remark.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, and the federal government are on the same side in the dispute. Both parties believe Congress is well within its power to address the "uncertainty" surrounding the casino.

"Through the Gun Lake Act, Congress did a couple of things," said Ann O'Connell, an attorney from the Department of Justice. "It eliminated any doubt about the trust status of this land by ratifying and confirming the [Interior] Secretary's action" to approve the application, she said.

"Congress also eliminated federal court jurisdiction over challenges to the trust status of this property," O'Connell added.

Pratik A. Shah, who represents the tribe, focused his arguments on the constitutional issue. He said the Gun Lake Trust Land Reaffirmation Act speaks to the authority of Congress to focus on a "class of cases" -- in other words, legal challenges to the land-into-trust acquisition for the casino.

"That's precisely what Congress has done for over 150 years," said Shah, who shared argument time with O'Connell during the hearing.

Tribes are closely watching the case because the outcome could affect future legislative initiatives. At least three land affirmation bills -- H.R.597, H.R.1491 and H.R.1532 -- are pending on Capitol Hill.

"We’re all in the same boat so we've got to work together to get the best results we can,” John Echohawk, the executive director of the Native American Rights Fund, said last month during the annul convention of the National Congress of American Indians. The two organizations submitted a brief in support of the Gun Lake Tribe for the case.

Congress could always settle the underlying issue once and for all by addressing the Supreme Court's decision in Carcieri v. Salazar, which opened the doors to Patchak's case and other land-into-trust challenges. But lawmakers have been unable to agree on a fix to the 2009 ruling so tribes have resorted to the land affirmation approach.

The D.C. Circuit Court of Appeals affirmed the legality of the Gun Lake Trust Land Reaffirmation Act in a unanimous decision in July 2016. Before that, a federal judge backed the law.

The Supreme Court has posted a transcript from Tuesday's hearing. Audio will be posted on Friday.

U.S. Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 16-498 | Questions Presented

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)