Federal Court Affirms Constitutionality of Gun Lake Trust Land Reaffirmation Act

Here is the decision in Patchak v. Jewell (D. D.C.):

Patchak v Jewell – Gun Lake Tribe (Judge Leon Opinion)

Briefs:

78 Gun Lake Tribe Motion for Summary J

80-1 Patchak Motion for Summary J

85 US Opposition

86 Gun Lake Tribe Opposition

87 Patchak Opposition to Gun Lake Tribe Motion

88 Gun Lake Tribe Reply

90 Patchak Reply

The statute is here.

Gun Lake Trust Land Reaffirmation Act Signed

Here are materials from the tribe:

PR New Federal Law Ends Patchak Lawsuit 9.29.14

Bills+Release+9.26.14

GL Trust Land Reaffirmation Act

New Student Scholarship on the Patchak Decision

Anna O’Brien has published Misadventures in Indian Law: The Supreme Court’s Patchak Decision in the University of Colorado Law Review

Here is the abstract:

Ever since European colonization of the Americas began in the fifteenth century, there has been friction between the new arrivals and the native inhabitants. The United States has dealt with its “Indian problem” through assimilation, reservations, and eventually, self-determination for Indian tribes. But Indian tribes have never truly lost their sovereignty. Over the years, the United States has developed a vast body of Indian law to try and find a place for tribal sovereignty in a legal and political system created by the conquerors. In a recent case, the Supreme Court created a new rule that will allow non-Indians to sue the Federal Government to divest the government of title to land held in trust for Indian tribes. The decision has dealt a blow to tribal sovereignty by rendering the trust status of tribal lands uncertain. That uncertainty should be removed by legislative action.

New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations

Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.

Here is the abstract:

The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.

This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.

The Patchak Patch

See Press Release here.

Excerpt:

Today, Assistant Secretary-Indian Affairs Kevin K. Washburn issued for public comment a proposed rule designed to demonstrate the Administration’s commitment to restoring tribal homelands and furthering economic development on Indian reservations. The proposed rule will provide for greater notice of land-into-trust decisions and clarify the mechanisms for judicial review depending on whether the land is taken into trust by the Assistant Secretary for Indian Affairs, or by an official of the Bureau of Indian Affairs.During the public comment window, Indian Affairs will also conduct tribal consultation.

For the Bureau of Indian Affairs trust acquisition decisions, which are generally for non-gaming purposes and constitute the vast majority of land-into-trust decisions, the proposed rule will ensure that parties have adequate notice of the action and clarifies the requirement that exhaustion of administrative remedies within the Department is necessary to seek judicial review.

“The principal purpose of this proposed rule is to provide greater certainty to tribes in their ability to develop lands acquired in trust for purposes such as housing, schools and economic development,” said Assistant Secretary Washburn. “For such acquisitions, the proposed rule will create a ‘speak now or forever hold your peace moment’ in the land-into-trust process. If parties do not appeal the decision within the administrative appeal period, tribes will have the peace of mind to begin development without fear that the decision will be later overturned.”

Pre-publication version.

Update from Interior:

Since the Obama Administration took office in January of 2009, the Department has approved more than 1175 applications for land into trust, including 12 for Indian Gaming, and the total acquisitions include more than 205,000 acres.

Senate Committee Hearing on Carcieri & Patchak — Prepared Testimony

Here:

Panel #  1

Mr. Donald ”Del” Laverdure
Acting Assistant Secretary
Indian Affairs, U.S. Department of the Interior, Washington, DC

Panel #  2

The Honorable Jefferson Keel
President
National Congress of the American Indians, Washington, DC

 

Mr. John E. Echohawk
Executive Director
Native American Rights Fund, Boulder, CO
Ms. Colette Routel
Associate Professor of Law
William Mitchell College of Law, St. Paul, MN

Is Prudential Standing Jurisdictional?

The D. C. Circuit says yes. Last week’s article (on the blog Circuit Splits) is here. The article analyzes how the  D.C. Circuit decision Grocery Manufacturers Association v. E.P.A. creates a circuit split as to whether prudential standing is jurisdictional. The dissent in the case relies significantly on Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.

 

Ironies of the Patchak Decision

Here are some interesting ironies of the reasoning and outcome in Patchak.

First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:

Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.

But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:

To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”

Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.

Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).

Continue reading

IPR on the Patchak Decision

Here. Audio here.

An excerpt:

By Bob Allen

A decision this week by the U.S. Supreme Court is seen as a setback for Indian tribes. The case involves the Gun Lake Tribe and its casino near Grand Rapids.

A neighbor is suing saying the casino is lowering property values and ruining the neighborhood.

As tribal attorneys see it, the Court opened a way for just about anyone to challenge the legitimacy of tribal lands. Land taken into trust by the federal over the last several years is especially vulnerable.

Matthew Fletcher is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. He’s attorney and professor of law at Michigan State University.

And he tells IPR the decision is seen as a big set-back in Indian Country.