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Gun Lake Tribe Ruling Challenged

On the same day the Gun Lake Tribe lit up a huge electronic sign on U.S. 131 announcing the upcoming grand opening of its $157 million casino near Wayland, Michigan on February 11, a federal appeals court revived a lawsuit challenging the federal government’s decision to take into trust the land the casino is built on.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling January 21 that said David Patchak has standing to bring a lawsuit against the Interior Department for taking into trust 147 acres in Wayland Township, about 20 miles south of Grand Rapids. The tribe and Interior Department are defendants in the case.

The ruling reversed a decision by the federal district court in Washington that Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act, which says the federal government cannot be divested of title to Indian trust lands. It also enlarges the previous criteria for “standing”—the right to initiate a lawsuit—which basically required someone to be injured or affected by an action. It also brings into question what was previously thought of as the Quiet Title Act’s protection of Indian trust land. But the core of this case is Patchak’s challenge that the Interior secretary was not authorized to take Gun Lake’s land into trust because the tribe was not under federal jurisdiction in 1934 when the Indian Reorganization Act (IRA) was passed—a challenge that relies on the U.S. Supreme Court’s Carcieri v. Salazar ruling in 2009. With a few recent exceptions, the Carcieri decision has virtually frozen Interior’s land into trust approvals since 2009.

Patchak could not be reached for comment, but his attorney, John Bursch, welcomed the appeals court decision. “The battle’s not over,” he told The Grand Rapids Press.

Should this ruling stand, it poses numerous potential risks: (1) almost anyone with a gripe can sue a tribe and the federal government; (2) the possibility of questions being raised over an incalculable number of transactions over the past 77 years involving tribes “not under federal jurisdiction” in 1934; (3) the nightmare scenario of the case winding up in front of the current Supreme Court—widely considered to be unfriendly toward Indian country—which might take this case as an opportunity to tighten the already devastating Carcieri decision.

“The appeals court decision points out the need for immediate Congressional action—a ‘Carcieri fix’ to cut short this potential stream of litigation,” said Judy Shapiro, a Washington, D.C.–based attorney who has practiced Indian law for decades. “Until the uncertainty is resolved—the uncertainty of the application of Carcieri, the implication of Carcieri to the secretary’s authority—the federal government and tribes potentially will continue to face this kind of litigation.”

The appeals court ruling is the latest twist in Gun Lake’s long road toward the promised land of casino revenues. Patchak, a former Wayland Township trustee, filed his lawsuit in August 2008, alleging that Interior’s 2005 decision to take the land into trust for the Match-e-be-nash-e-wish Band of Pottawatomi Indians, known as the Gun Lake Tribe, was illegal under the IRA. He modeled his complaint on the Carcieri v. Salazar petition to the Supreme Court filed by the State of Rhode Island earlier that year. Named after former Rhode Island Governor Donald Carcieri, the lawsuit claimed that the Interior secretary did not have the authority to take 31 acres of land into trust for the Narragansett Indians because the tribe was not “under federal jurisdiction” in 1934.

Patchak, who lives near the casino site, also alleged that the rural character of the area would be destroyed, and that the value of his property would be diminished. “As a practical matter, it would be very strange to deny Patchak standing in this case,” the appeals panel said in its ruling. The panel remanded the case to the federal district court “for further proceedings consistent with this opinion,” meaning Patchak’s lawsuit will go forward based on the merits of his Carcieri argument.

“[This ruling] is potentially huge, but only because the court really, really, really overstepped on a technical question—standing,” said Matthew L.M. Fletcher, an associate professor of law and the director of the Indigenous Law & Policy Center at Michigan State University College of Law. “The D.C. appeals court seems to have held that anyone with some moral objection to gaming has standing, and that’s way beyond the scope of anything the Supreme Court has said.”

But even if Patchak has standing, Gun Lake likely will win on the merits, Fletcher said. “They are a treaty tribe, and fit well within the category of ‘under federal jurisdiction’ as required by Carcieri.”

The Gun Lake Tribe was federally acknowledged by the Bureau of Indian Affairs in 1999. Patchak’s opposition dates back to 2001, when Gun Lake filed its land into trust application for gaming and ties in to his association with anti-Indian casino groups, including 23 Is Enough and MichGO (Michigan Gaming Opposition). Following the appeals court ruling, 23 Is Enough Chairman Mike Jandernoa called on Gun Lake to shutdown the casino. “If victorious at the lower court, the land the casino is built on could be taken out of trust, which would make their operation illegal under the Indian Gaming Regulatory Act of 1988,” he said. “Our fight all along has been that these venues [casinos] do not increase economic activity and are given a competitive advantage over the many entertainment venues in Grand Rapids who adhere to all regulations and pay their fair share of taxes to all units of government.”

Patchak made a similar argument in a March 9, 2001 letter to then-President George W. Bush: “What happened hundreds of years ago is the past, these treaties were made between a fledgling nation and groups of people who lived here but had no rights. Today, this is the United States of America and these tribes of Indians are full citizens.… If the government feels that this nation owes the Indians more that [sic] it owes it’s [sic] average citizen, then let the nation contribute equally. Give them federal lands that are owned by all the people and controlled solely by the government to build their casinos. Do not let them come into private areas, buy land and then claim that land is now Indian land controlled by the federal government and the local people have nothing to say in what that land can be used for.”

MichGO, represented by Warner, Norcross & Judd (the firm handling Patchak’s case), filed a lawsuit against Interior in June 2005, alleging that Interior had violated the National Environmental Policy Act and the Indian Gaming Regulatory Act. The federal district court ruled in favor of the tribe in 2007, but granted a stay of its decision pending MichGO’s appeal. The appeals court upheld the district court’s decision to dismiss in April 2008 and granted another stay for MichGO to appeal to the Supreme Court. Patchak filed his complaint three months later.

The high court refused to hear MichGO’s case on January 21, 2009. Almost immediately Patchak filed a motion for an emergency stay to stop the secretary from going ahead with the land transaction, but the federal district court denied his request and on January 30, 2009 Interior finally took Gun Lake’s land into trust. Three weeks later, however, the U.S. Supreme Court issued its Carcieri opinion, agreeing with Patchak’s argument that the IRA limits the secretary’s trust authority to tribes “under federal jurisdiction” in 1934. No definition of “under federal jurisdiction” was given.

The case can move in one of several directions. Gun Lake can ask for a rehearing from the same panel of judges, or for an en banc hearing (in front of the full court of nine judges). The decision could be appealed to the Supreme Court, or it could return to the district court to be heard on its merits, as required by the appeals decision.

But the best resolution would be a quick and unambiguous “Carcieri fix” in Congress, Shapiro reiterated, adding “Every tribe with a potential enemy and with this kind of standing ruling has a potential Carcieri problem until they can disprove it. And most tribes can disprove it, but that’s a burden on tribes, and I don’t want to have to take my clients through that kind of fight. They shouldn’t have to go through that again. At this point, the federal government should say ‘Enough of this!’ and just stop it.”