On Monday, June 18, 2012, the U.S. Supreme Court issued its opinion in the closely watched Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. ___ (2012). The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (or "Gun Lake Band") in February 2011 opened Michigan's newest Indian casino. The casino is located in the western-Michigan town of Wayland. The Gun Lake Band's odyssey to open a tribal casino spanned over a decade and was wrought with several legal challenges.
The opening of the Gun Lake Casino seemingly represented the end of a series of lawsuits seeking to prevent the opening of the casino. Michigan Gambling Opposition was the first to bring suit. Michigan Gambling Opposition was an interest group organized to challenge the Gun Lake Band's initial efforts to have the U.S. Department of Interior ("DOI") take land into trust. After several years of litigation, federal courts ultimately rejected Michigan Gambling Opposition's challenge.
Shortly after the federal courts rejected the lawsuit brought by Michigan Gambling Opposition, David Patchak launched a second legal challenge. Patchak owns property close to the site of the Gun Lake Band's then proposed tribal casino, which has since opened at this site. Patchak did not allege that he had a legal interest in the land to be taken into trust. As the Supreme Court's ruling teaches us, this fact is significant. Rather, Patchak brought an action under the federal Administrative Procedure Act ("APA") asserting that the Indian Reorganization Act ("IRA") did not authorize the Department of Interior to take land into trust for the Gun Lake Band.
The significance of Patchak's argument lies with the U.S. Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009). Carcieri held that the IRA requires an Indian tribe be "under federal jurisdiction" as of June 18, 1934, the date of enactment of the IRA, in order for the Secretary of the DOI to acquire property "for the purpose of providing land to Indians." Patchak relied on the APA to derive standing to bring his lawsuit. Patchak also relied on the APA for a waiver of sovereign immunity. The remedy Patchak sought is the issuance of an injunction prohibiting the DOI from taking the Gun Lake Band land into trust. The basis for the injunction, in Patchak's opinion, is that the requirements of the IRA cannot be satisfied.
The lower courts never reached the merits of Patchak's claims. The legal fight, instead, focused on whether sovereign immunity was waived and if Patchak had standing to bring his lawsuit. The federal district court said "no" and dismissed the lawsuit. The D.C. Circuit Court of Appeals responded by saying "not so fast," Patchak has standing under the APA and the APA waives sovereign immunity. The U.S. Supreme Court then granted certiorari to resolve these issues.
At the threshold, in order for Patchak to bring his claims, there must be a waiver of the federal government's sovereign immunity. The waiver of sovereign immunity can be accomplished by either (1) the provisions of the federal Quiet Title Act ("QTA"), or (2) the general provisions of the APA. The APA general waiver of sovereign immunity is negated when another statute "grants consent to suit expressly or impliedly forbids the relief which is sought" by the person bringing the lawsuit. If a court determines that sovereign immunity is waived, then it must next decide whether a person has standing to seek redress for alleged injuries.
Both the federal government and the Gun Lake Band argued that only the QTA could grant the waiver of sovereign immunity. Under the theory advanced by the federal government and Gun Lake Band, the APA waiver of sovereign immunity was negated. The Court determined that the QTA only applies to quiet title actions where a person claims an interest in the property that conflicts with, or is superior to, the government's claim in the property. After determining the QTA was not applicable to Patchak's claims, the Court reasoned that the exception causing the APA waiver of sovereign immunity to be negated did not apply. The Court then concluded that Patchak has standing under the APA to pursue his action.
So what does the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians decision mean? Initially, the decision means that a person claiming harm -- whether economic, environmental or aesthetic -- to property nearby proposed trust land, has standing under the APA to bring a lawsuit. The statute of limitations under the APA is also considerably longer than that of the QTA. However, the decision does not mean that the challenge will be successful. The Court, in a footnote to its opinion, specifically stated that the merits of Patchak's case were not before the Court. Hence, the Court did not express any view with regard to whether the Gun Lake Band was "under federal jurisdiction" as of June 18, 1934 for purposes of the IRA as required by the Carcieri decision. If the Gun Lake Band was under federal jurisdiction as of June 18, 1934, then presumptively the DOI could take the subject land into trust.
Only further lengthy legal proceedings will determine whether the claims asserted by Patchak are sufficient to successfully challenge the DOI's taking land into trust for the benefit of the Gun Lake Band and the impact of any such decision on the ability of the Gun Lake Band to continue to operate its casino. Meanwhile, the Gun Lake Band's Casino remains in full operation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
