News Coverage of Gun Lake Band/USA Intent to File Cert Petition in Patchak

From Indianz.

Here is the link to our post on the D.C. panel opinion.

And to Patricia Millett’s commentary on the decision.

 

Gun Lake Casino Opens

Here is the Freep coverage:

The state’s newest tribal casino has opened in west Michigan.

Hundreds of people gathered inside and outside the Gun Lake Casino Thursday night, awaiting the public opening of the gaming facility in Allegan County’s Wayland Township, about 20 miles south of Grand Rapids.

The opening of the $157 million facility came after more than 15 years of debate and lawsuits for the Gun Lake  Band of Pottawatomi Indians.

The Grand Rapids says the 76,000-square-foot casino features 1,450 slot machines and 28 table games. It will be open 24 hours a day, seven days a week.

Marcia Hale and Tracey Hale of Wyoming planned to play slot machines and video poker games all night. Marcia Hale said she had to work at 5 a.m. today, but might stay until then.

Patricia Millett Commentary on D.C. Circuit’s Patchak Decision

Commentary on Patchak v. Salazar et al., No. 09-5324.

On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit disagreed with three other federal circuits and held that sovereign immunity is waived for a challenge to a Department of the Interior decision to take land into trust for an Indian tribe, so long as the plaintiff itself is not claiming title to the land. The decision is Patchak v. Salazar et al., No. 09-5324. Because Interior can usually be sued in the District of Columbia, Patchak not only creates a circuit split but also opens a ready forum for future challenges to trust acquisitions. This opening of the courthouse doors for suits against the United States makes a petition for rehearing en banc and, if unsuccessful, a petition for certiorari by the Solicitor General highly likely.

Patchak, an individual plaintiff, filed suit claiming that Interior’s decision to take land into trust for the Match-e-be-nash-she-wish Band of Pottawatomie (Gun Lake Tribe) in Michigan was ultra vires and contrary to statute. After Patchak unsuccessfully sought to enjoin the acquisition pending resolution of his complaint, Interior took the land into trust, and the district court dismissed the suit for lack of standing. On appeal, the D.C. Circuit reversed on the standing issue and addressed the United States’ claim of sovereign immunity under the Quiet Title Act. Until now, all three circuits that have addressed the issue (the Ninth, Tenth, and Eleventh) have held that the Quiet Title Act, 28 U.S.C. § 2409a, bars suits like Patchak’s. See Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1253-55 (11th Cir. 1985); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987). The Quiet Title Act allows suits “under this section to adjudicate a disputed title to real property in which the United States claims an interest,” and specifically excludes “trust or restricted Indian lands.” Courts have read this language as barring all after-the-fact challenges to the United States’ trust acquisitions for Indian tribes—notwithstanding the general waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, for actions seeking non-monetary relief against official agency action.

Rejecting this analysis, the D.C. Circuit examined the language and history of the Quiet Title Act and held that Patchak’s claim challenging the legality of the trust acquisition was not a “quiet title” action at all, because Patchak did not claim title to the lands at issue. Therefore, the Court reasoned, his suit was not covered by the Quiet Title Act or its “Indian lands” exception. In so holding, the D.C. Circuit identified and disagreed with two rationales relied on by other circuits. One is that the legislative history of the Indian lands exception to the Quiet Title Act cites the federal government’s obligations to Indian tribes. The D.C. Circuit reasoned that this spoke only to the need to exclude certain quiet title actions from the Act—not to whether a particular suit is a quiet title action. The other rationale is that Congress would have had no reason to allow suits by persons not claiming a title interest if it barred suits by those who do. The D.C. Circuit held that because the APA waiver in § 702 was enacted (in 1976) after the Quiet Title Act (in 1972), suits by persons not claiming title would not have been contemplated at all when the Quiet Title Act was passed. Thus, it reasoned, the Quiet Title Act does not speak to this distinction, and § 702 controls.

The breach in precedent protecting its immunity that Patchak opened will likely be of acute concern to the Justice Department. That, combined with the clear conflict in the circuits, is likely to prompt the Solicitor General to seek rehearing en banc in the D.C. Circuit (which is rarely granted) and, if that does not succeed, to take its case to the Supreme Court. The fact that the case is interlocutory is unlikely to pose a barrier. The Supreme Court generally allows interlocutory review of sovereign immunity claims, Puerto Rico Aqueduct & Sewer Auth., v. Metcalfe & Eddy, Inc., 506 U.S. 139 (1993), and it has granted certiorari to review interlocutory Quiet Title Act claims in the past, see United States v. Mottaz, 476 U.S. 834 (1986).

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Profile on Gun Lake and Other Potawatomi Casinos in Southwest Michigan

Here is the article, thanks to A.K. And an excerpt:

In the early 1990s, two Native American tribes in Southwest Michigan were working to gain federal recognition and open casinos. John Shagonaby, then in his early 20s, saw this and decided to enroll at Western Michigan University, earn a business degree and help his tribe do the same thing.

About 15 years later, the Gun Lake Match-E-Be-Nash-She-Wish Band of Pottawatomi are on the eve of opening the Gun Lake Casino, an 83,000-square-foot gaming hall in Wayland Township that promises to make casino gambling more convenient to hundreds of thousands in West Michigan.

By next New Year’s Eve, you could be there.

While there has been significant opposition, the number of casinos within a short drive of the region’s population centers of Grand Rapids, Muskegon and Kalamazoo is poised for further growth as a new decade dawns.

Two casinos have opened in the past three years, two more will open next year, and another may open in the next three years.

More casinos mean more options for area gamblers, but it also may mean greater competition for gaming dollars, making efficient management essential, experts say.

“It’s supply and demand,” said Jacob Miklojcik, president of Lansing economic development consulting firm Michigan Consultants. “For many years there was a lot of demand and not much supply. That’s changing now.”

But Shagonaby and the Gun Lake Tribe aren’t interested in talking about competition or what other casinos are doing. After a 10-year fight, they’re just glad to be nearing the finish line.

“There were a lot of ups and downs in the road but we made it through it,” he said. “So it will be even sweeter when we swing the doors open.”

 

MIRS: Casino Catches Officials Off Guard

From MIRS and Pechanga:

Without any of the standard federal or state approvals, the Bay Mills Tribe opened a new casino today near Vanderbilt off Interstate 75 in the Northern Lower Peninsula.

The 40-slot machine facility is located in a renovated Project Nature Welcome Center. Tribal members are familiar with the Vanderbilt area as they have been hunting elk in the region since 2007, exercising off-reservation treaty rights established with the 2007 Inland Consent Decree.

“This is something we’ve been working on for a long time,” said Bay Mills Chairman Jeff PARKER.

Apparently the tribe is testing a legal theory that, if it were to hold up, could open the floodgates for establishing tribal casinos without having to worry about the red tape that usually delays such projects for years. Some observers claim it could ultimately affect the status of an off-reservation site the Sault Ste. Marie Tribe of Chippewa Indians own at Pinnacle Racetrack in Romulus.

Bay Mills and the Soo tribe were once a single tribe.

The move came as a complete surprise to state and federal officials. The tribe jumped through none of the usual legal hoops involved with the federal Indian Gaming Regulatory Act (IGRA). In fact, its plan seems to involve specifically avoiding taking the land in trust, which is a key step in the IGRA process.

It usually takes years of working through the IGRA process to obtain the necessary sign-offs from the U.S. Department of Interior and the state to establish even an on-reservation casino.

The tribe’s reservation is located in the Upper Peninsula, centered at Brimley. However the casino Bay Mills opened today was on land far from the reservation. What’s more, the tribe bought the property less than three months ago.
President Ronald REAGAN signed IGRA in 1988. Ever since, IGRA guidelines have been an open target for almost any and every legal theory an attorney could convince a tribe to try out.

The theory Bay Mills seems to be pursuing is that because it purchased the land near Vanderbilt with money it had received in exchange for giving up its aboriginal lands, the land is therefore exempt from the usual impediments IGRA placed on off-reservation gaming.

The entire issue of off-reservation gaming, as it pertains to IGRA is currently being reviewed nationally (See “Minnesota Event <http://mirsnews.com/capsule.php?gid=3437%2325188%20&gt;  Could Affect Muskegon Casino,”10/20/10).

The Bay Mills decision to test the legal theory might have been timed to coincide with the national discussion. In addition, it might also have been timed to take place prior to Governor-elect Rick SNYDER taking office.
Snyder is believed to be less amenable to gaming expansion than Gov. Jennifer  <http://mirsnews.com/lob_bio.php?cid=532&gt; GRANHOLM has been. However, the Granholm administration quickly voiced opposition to Bay Mills opening the Vanderbilt casino today.

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MSU NALSA to Host Panel on Federal Recognition — Nov. 8 @ 7:30PM

The members of the Native American Law Student Association (NALSA) at Michigan State University College of Law invite you to attend the following panel discussion on Monday, November 8, 2010 at 7:30pm in the Castle Boardroom of the law school building.

What Does it Mean to be Federally Recognized?
There are currently 565 federally recognized tribes in the United States, but there are many others that do not have the benefit of that distinction. John Shagonaby, Curtis Chambers, and Matthew Fletcher will discuss their unique perspectives on this issue.

John L. Shagonaby is the Chief Executive Officer of the Gun Lake (federally recognized) Tribal Gaming Authority. John started this role in March 2004. Previously, John served as the Executive Director of the Tribe’s administrative office. John has also served on the Tribal Council for 12 years as a Council Member, Treasurer and Vice-Chairman.

Curtis Chambers, Chairman of the Burt Lake Band (non-federally recognized) was re-elected on August 9, 2008. He is also the Harbormaster of Cheboygan County Marina and a devout Catholic.

Curtis’s first priority for the Burt Lake Band is to be federally recognized. His second goal is to provide housing and health care to Burt Lake Band members. He also believes that diversity in business is a necessity to help move the tribe into the future.

Matthew Fletcher is Director of the MSU Indigenous Law and Policy Center. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, the first tribe to be federally recognized under the Department of Interior’s federal acknowledgment process. He is the author of a forthcoming legal and political history of the Grand Traverse Band (Michigan State University Press).

Gun Lake Band Casino Posts 700 Jobs

News article here, via Pechanga.

From the article:

Some of the jobs available at gunlakescasino.com

  • Accounting Clerk
  • Beverage Server Beverage
  • Cage Asst Shift Supervisor
  • Casino Marketing Coordinator
  • Credit Clerk Accounting
  • Gift Shop Supervisor Gift Shop
  • Rewards Center Supervisor
  • Executive Chef Coffee Shop
  • Senior Engineer Maintenance
  • Slot Marketing Coordinator
  • Valet
  • Table Games Director