The U.S. Supreme Court has agreed to hear a challenge to the Gun Lake Casino in Michigan that has been operating near Bradleyville since February 2011. It will hear Patchak v. Zinke later this year.
The challenge that was originally to the decision by the Bureau of Indian Affairs to put more than 147 acres into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians is seen as a knife aimed at the tribe’s sovereignty and is seen as a real threat by many others in Indian Country as well.
And it’s a challenge that supporters of the tribe thought they had buried once and for all when the U.S. Congress passed and President Obama signed the Gun Lake Trust Land Reaffirmation Act of 2014, which affirmed what the BIA had previously done.
The litigant in this case, Shelbyville resident David Patchak, challenged that act, saying that it violates the U.S. Constitution’s separation of powers.
The U.S. Supreme Court is going to give him the chance to make his case. The high court announced May 1 that it has granted the case “certiorari,” which is court-ese for meaning that it will hear the case in its next term, which opens in October.
Patchak’s attorney, Scott Gant, hailed the decision: “Persuading the Supreme Court to grant certiorari in any case is an uphill battle – and particularly so absent a split among the lower courts,” he wrote, adding, “We’re pleased the Court granted review, and look forward to briefing the merits and oral argument before the Court.”
The decision came as the tribe prepared to open a $76 million expansion to the casino, which it did on May 3.
Publically, at least, the tribe sounded sanguine. “The Tribe is eager to argue the merits of the Gun Lake Trust Land Reaffirmation Act before the U.S. Supreme Court,” wrote Chairman Scott Sprague.
Patchak is that rarest of individuals, someone who will be heard before that high court twice. The first time was in 2012, was when the justices voted to let Patchak’s original case go forward in the lower courts.
The Gun Lake Trust Land Reaffirmation Act was supposed to take care of that. It barred any future claims against the fee into trust decision. Putting the land into trust enable the tribe to offer Class III gaming.
Patchak’s argument is that the act undermined his rights and violated the separation of powers. If he wins at the high court, that would send the case back to a lower court for resolution.
When Patchak in 2008 initially sued to stop the casino from being built, he claimed the casino, three miles away, would harm his property values, while generating crime and creating pollution. He filed a series of lawsuits that challenged the BIA’s authority to take the land into trust.
The expansion opened on schedule last week and even the most pessimistic would predict that Patchak could shut the casino down six years after it opened. However, Patchak, through his attorneys, has indicated that he is seeking monetary damages, rather than to shut down the casino.
But the issue on whether a federal law can be written to prevent a tribal casino from being sued is one that most tribes will watch with interest. If it turns out that it cannot, then that will remove one tool that tribes can resort to when they are sued by opponents.
Patchak has also previously argued that the tribe’s land into trust process violated the Supreme Court’s 2011 Carcieri v. Salazar case that in most cases prevents tribes that achieved federal recognition after 1934 from putting land into trust. The Gun Lake band wasn’t recognized until 1999.
Patchak’s petition reads: “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.”
The tribe, which unsuccessfully urged the high court not to grant Patchak’s petition, argued: “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.”
Besides the tribe, the Trump administration’s Department of the Interior also petitioned the court to let stand an earlier ruling by the D.C. Court of Appeals that upheld the law.
The court, in granting Patchak’s petition indicated what aspect of the case it intends to focus its attention: “Does a statute directing the federal courts to ‘promptly dismiss’ a pending lawsuit following substantive determinations by the courts (including this court’s determination that the ‘suit may proceed’) – without amending underlying substantive or procedural laws-violate the Constitution’s separation of powers principles?”
Patchak v. Zinke will be the first case heard by freshman Justice Neil Gorsuch.
