Trump team gets more time in Supreme Court tribal casino case

Monday, February 27, 2017

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, is working on a $76 million expansion of the Gun Lake Casino in Wayland, Michigan. Photo: Gun Lake Casino

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An Indian gaming case that's already made one trip to the U.S. Supreme Court is awaiting direction from the new Trump administration.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, has been successfully operating a casino in Michigan since 2011. But a non-Indian man who lives three miles away continues to question whether the land for the Gun Lake Casino was properly placed in trust.

The Supreme Court never answered that question when it first ruled on the case back in June 2012. The justices, by an 8-1 vote, merely said David Patchak was entitled to the sue the Bureau of Indian Affairs for approving the land-into-trust application.

That's when Congress stepped in and passed S.1603, the Gun Lake Trust Land Reaffirmation Act, in September 2014. The law confirms that the casino site is in trust but Patchak refused to drop his case unless he somehow got paid by the tribe, or the federal government.

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

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A settlement never materialized and the D.C. Circuit Court of Appeals upheld the validity of S.1603 in a July 2016 decision. Yet Patchak is still hoping to keep the dispute alive by getting the Supreme Court to hear the case again.

The tribe opposed Patchak's request in a brief submitted last November but the Obama administration declined to file a response, a move that is common when the government believes a case won't be accepted by the nation's highest court. The justices, however, asked for a response, according to Docket No. 16-498.

The response was originally due January 17, just three days before President Donald Trump was scheduled to take office. With the transition in mind, the Supreme Court has since granted two extensions to the Department of Justice and the brief is now due March 20, according to the docket sheet.

While Trump has a rocky past when it comes to Indian gaming, he hasn't said anything on the issue since being sworn in on January 20. But he has expressed frustration with the slow-moving pace of the federal bureaucracy, saying it hinders economic growth and job creation.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Arguments in Salazar v. Patchak April 24, 2012

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The Gun Lake Tribe waited six years for the BIA to make a decision on its land-into-trust application and it took another six years after that for the casino to open. The facility now employs more than 1,000 people and has contributed tens of millions of dollars to local governments and schools. The success has enabled the tribe to launch a $76 million expansion that's due to be completed this summer.

"For a small community, really for any community, 1,000 new jobs is an incredible feat. The local government and schools also benefit from the facility's revenues," Rep. Fred Upton (R-Michigan) said during debate on S.1603 back in September 2014. "This is quite the advantage in a time when municipalities are slashing services due to deficits."

With Trump in office, the Department of Justice has come under new leadership but Attorney General Jeff Sessions, a former Republican Senator from Alabama, doesn't have much of a record on Indian gaming. Democrats opposed his confirmation because he did not support the inclusion of tribal jurisdiction in the Violence Against Women Act.

The Patchak case is the second Indian gaming petition for which the Trump administration has been given more time to prepare a response. The Cowlitz Tribe is less than two months away from opening a long-awaited casino but opponents are hoping the Supreme Court will derail the debut of the facility in Washington. Trump, incidentally, tried to partner with the tribe on the project but was turned down by Cowlitz leaders.

D.C. Circuit Court of Appeals Decision:
Patchak v. Jewell (July 15, 2016)

U.S. Supreme Court Decision:
Salazar v. Patchak (June 18, 2012)

Prior D.C. Circuit Court of Appeals Decision:
Patchak v. Salazar (January 21, 2011)