Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Fitch Press Release on Patchak Decision

Kate Fort1 Comment

Here.

NEW YORK, Jun 19, 2012 (BUSINESS WIRE) — On June 18, 2012, the Supreme Court ruled 8-1 that David Patchak, an individual, has standing and can file suit against the government’s decision to take land into trust on behalf of a Native American tribe. The court offered no conclusions regarding the merits of Patchak’s case; it simply allows the case to proceed in the lower courts. Fitch believes this ruling has several key credit implications for the gaming sector:

–It is likely to result in increased challenges from anti-gaming interests regarding land-into-trust decisions for tribes, as it lengthens the statute of limitations on judicial review to six years from 30 days;

–Raising capital for Native American casino projects could become more difficult/expensive, as investors are likely to have heightened concern about potential challenges regarding land-into-trust decisions;

–Casino operators that face the possibility of increased competition from potential casino projects tied to land-into-trust decisions could benefit from a longer regulatory process.

ICT In-Depth Report on Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

Asked if there is any lemonade to the lemon of a decision from the high court, Fletcher said, “Lemonade? Sotomayor is Indian country’s best friend. Read the three consequences part of her dissent and you can see she actually gets it. She understands the consequences of these decisions. She gets it more than any other Justice in Supreme Court history. And that’s a fact.”

Sotomayor’s first point of dissent is that the Quiet Title Act clearly states that the right to sue the federal government in property disputes “does not apply to trust or restricted lands.” The exception, Sotomayor says, reflects the view that a waiver of immunity is inconsistent with treaty commitments and other agreements with the tribes. By exempting Indian lands, Congress ensured that the government’s “‘solemn obligations” to tribes would not be “abridged’ without their consent. Her second argument is that the QTA provides for the preservation of the government’s right to retain possession or control of property even if a court rules that the government’s property claim is invalid. This provision ensures that a negative court ruling would not interfere with government operations. Sotomayor’s third point is the QTA limits the class of individuals who are allowed to sue the government to those with a “right, title or interest” in the property.

Continue reading →

MLive In-Depth Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

The ruling, Fletcher said, was not really a surprise.

“This is a court that is pretty reluctant to rule in favor of Indian tribes and I think they are very skeptical of things like Indian gaming.”

Fletcher said the Sotomayor dissent highlights the destabilizing consequences of Monday’s decision. Wrote Sotomayor:

“… the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.”

Fletcher said that whereas parties seeking to challenge land-in-title decisions previously only had 30 days to file action, after Monday, tribes will likely have to wait six years to develop any property the government takes into trust while they wait out potential lawsuits against the use of the property.

“It’s very difficult to borrow money or do anything with land under those circumstances.’

The vast majority of Indian land-in-trust decisions by the government are for reasons like housing, treat rights, environmental protection and public safety. Very little are done for gaming reasons, Fletcher said.

Gun Lake Band’s Press Release on Patchak

Matthew L.M. Fletcher

Here:

PR Patchak Decision 6.18.12

The text:

Bradley, Michigan – Today the U.S. Supreme Court rejected motions by the Gun Lake Tribe and U.S. government seeking to have David Patchak’s lawsuit dismissed on procedural grounds. The Court’s decision expressly declined to say anything about the merits of Patchak’s lawsuit. It simply allows Patchak to go forward with his lawsuit back at the lower court. The Tribe is ready to continue fighting the lawsuit and is confident that it will ultimately prove that Patchak’s claims are completely without merit.
“The Supreme Court clearly stated that this decision was not based on the merits. This is simply a procedural decision that has no impact on operations at Gun Lake Casino. The Casino will continue to operate, employ over 800 area residents, and provide millions of dollars to state and local governments,” said D.K. Sprague, Tribal Chairman.
The likely course of action is a remand by the U.S. Court of Appeals District of Columbia Circuit to U.S. District Court for the District of Columbia before Judge Richard Leon. Judge Leon’s decision in January of 2009 to grant a procedural motion by the Tribe and U.S. would have ended Patchak’s lawsuit.
“This simply means that Patchak’s lawsuit can go forward before the federal courts, which may take many more years to finally resolve it. We are ready to continue that fight in federal court and we are confident the facts will clearly prove once and for all that Patchak’s claims have absolutely no merit. The Tribe would prefer to devote its resources to the economic development of the area; however, since Patchak’s lawsuit dictates otherwise, the Tribe will do what is necessary to prevail.”

MLive Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

The nation’s highest court has decided to allow a lawsuit to move forward which threatens to shut down gaming at the Gun Lake Casino in Wayland Township.

In an 8-1 ruling, the U.S. Supreme Court on Monday upheld a lower court decision to allow former Wayland Township trustee David Patchak to continue with his lawsuit in federal district court.

Patchak, backed by anonymous benefactors, has challenged how the federal government took land in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, in order for them to construct a casino.

Who are these people?

Quick and Dirty Commentary on Patchak

Matthew L.M. Fletcher4 Comments

Four points on today’s decision in Patchak.

First, the SG lost yet another case while acting as tribal trustee. The trust responsibility is in real trouble, despite the Court’s surprising affirmation of Ramah. The Supreme Court does not appear to defer in any way to the OSG and especially the Department of Interior in the Indian cases, as I have said before.

Second, a majority of the Supreme Court appears to care nothing about the destabilizing consequences of their decisions. Justice Sotomayor’s dissent laid it all out for the rest of the Court. It’s not like the statutory construction of the Quiet Title Act and the Administrative Procedures Act was inevitable. This was not a plain language decision, but an interpretation. The Court chose this route over others.

Third, the Supreme Court once again has directly challenged Congress on Indian affairs. How many times has the Court said in the last 25 years, we’ve made our decision, now let Congress fix it if they don’t like it. So far, with the exception of the Duro fix, Congress hasn’t fixed anything. As I said before the SCIA a few weeks ago, Congress needs to step up and take charge of Indian affairs. Right now, the Supreme Court calls the shots.

Fourth, Justice Sotomayor proved today in her masterful and enlightening dissent that she is serious about knowing the practical realities of Indian country. With the only possible contender being Justice Blackmun, Justice Sotomayor may be the only Justice in American history that cares deeply enough about what happens in Indian country to learn about the impacts of the Court’s decisions. This is a common law area of law, and the Court has important policy making responsibilities that it is neglecting, and Justice Sotomayor is doing her homework.

Supreme Court Affirms Patchak and Ramah

Matthew L.M. Fletcher1 Comment

From How Appealing:

Justice Elena Kagan delivered the opinion of the Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, No. 11-246. Justice Sonia Sotomayor issued a dissenting opinion. You can access the oral argument via this link.

Justice Sotomayor delivered the opinion of the Court in Salazar v. Ramah Navajo Chapter, No. 11-551. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito, Jr. joined. You can access the oral argument via this link.

Patchak Oral Argument Audio Now Available

Matthew L.M. Fletcher

Here.

WaPo Coverage of Patchak Argument

Matthew L.M. Fletcher

Here (h/t Pechanga). An excerpt:

 Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.

“It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the … case is moot, but you did wait for some three years before you brought this suit. The building was built.”

Transcript in Salazar/Gun Lake v. Patchak

Kate Fort1 Comment

Available here. (pdf)