The U.S. Supreme Court this week agreed to hear a long-running case affecting the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.
The web site indianz.com said the action threatens to undermine the status of the tribe’s successful gaming facility just three miles south of Wayland.
Tribal leaders had hoped all the legal wrangling was over and earlier this month unveiled the $76 million expansion of the Gun Lake Casino.
There’s little danger, however, that the verdict of the case, known as Patchak v. Zinke, will cause the casino to close. It has been operating without incident since 2011 despite the uncertainty.
Court rulings throughout have been favorable to the casino and Gun Lake Tribe, but the Supreme Court has agreed to take up a major issue —whether a federal law that was written to protect the casino from litigation violates the U.S. Constitution. The ruling could stop tribes from turning to Congress for help with land-into-trust issues.
The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians secured bipartisan support for S.1603, the Gun Lake Trust Land Reaffirmation Act. The law, besides confirming that the site of the casino is in trust, ordered federal courts to “promptly dismiss” the Patchak lawsuit.
But David Patchak, who lives three miles from the casino, has protested, insisting Congress overstepped its powers without changing the laws that affect the underlying issues in his case.
For example, he and his supporters and attorneys have argued that the tribe cannot follow the land-into-trust process at all as a result of the Supreme Court’s decision in Carcieri v. Salazar.
Indianz.com said in Carcieri, the court held that the Bureau of Indian Affairs can only place land into trust for those tribes that were “under federal jurisdiction” in 1934. The Match-E-Be-Nash-She-Wish Band’s status wasn’t formalized until 1999, long after that date.
“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,” Patchak’s attorneys wrote in his petition.
Congress, however, has failed to amend the Indian Reorganization Act in a manner that would resolve the doubts raised in Carcieri. That’s why Gun Lake, along with other tribes, have sought an “affirmation” of their trust lands when faced by litigation.
“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,” the tribe wrote in a brief that urged the Supreme Court to reject the petition.
The Trump Administration also called on the justices to turn down the case. That would have let stand the tribe’s victory at the D.C. Circuit Court of Appeals, whose unanimous decision last July upheld the legality of the affirmation law.
But now the tribe and the Department of the Interior will have to defend the law all over again. They will be submitting additional briefs to the court, which has not yet scheduled an oral argument for the case.
Also participating are a group of law professors whose brief was accepted by the court over the tribe’s objections. They believe the D.C. Circuit made the wrong call on the reaffirmation act.
Patchak v. Zinke will be the first Indian law controversy to be heard by Justice Neil Gorsuch, the newest member of the court. Tribal interests supported his nomination because they believe his experience will help their interests in future cases.
Gorsuch took part in the consideration of the petition, according to the order list, which also specified the cases in which he played no part. But the Supreme Court did not say which justices voted to accept the case — it only takes a vote of four to grant a petition.
Tribal interests are generally on the losing side of the high court’s decisions. Prior to 2016, they lost nine out of 11 cases, according to the Native American Rights Fund, which has been following the Patchak case as part of the Tribal Supreme Court Project.
The last defeat came last Tuesday when the court concluded that a tribe’s sovereign immunity does not extend to its employees, even when those employees are carrying out their duties.
