Supremes’ Ruling Opens Floodgates to Challenges of Indian Land Trust Acquisition
The U.S. Supreme Court has ruled that an individual has standing to sue the Interior Department for taking land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, to build a casino in Wayland County, Michigan. The decision, issued on June 18, could have ramifications far beyond one tribe because it means that the status of Indian trust lands is no longer secure, and it opens the floodgates to legal challenges to Interior’s trust acquisitions for six years after the department acquires trust land for an Indian tribe.
The Gun Lake Casino opened in February 2011. David Patchak, a non-Indian individual who lives near the casino, filed a lawsuit in federal court claiming Interior did not have the authority to take the land into trust for Gun Lake because the tribe was not “under federal jurisdiction” in 1934 when the Indian Reorganization Act was passed. Patchak’s lawsuit was based on Carcieri v. Salazar, a controversial 2009 Supreme Court ruling that said Interior had wrongly taken into trust 31 acres of land the Narragansett Indian Tribe of Rhode Island intended for elder housing, because in 1934 the tribe was not “under federal jurisdiction” – without defining that term.
The federal court dismissed Patchak’s lawsuit on procedural grounds, saying he did not have standing – the right to initiate a lawsuit – to challenge the Quiet Title Act (QTA), but an appeals court reversed the lower court ruling and expanded the previous criteria for “standing,” which until the latest Supreme Court ruling required someone to be injured or affected by an action. Gun Lake and the Department of Justice petitioned the Supreme Court to review the appeals court decision. The high court’s latest ruling remands the case back to the district court for a trial on the merits of Patchak’s Carcieri arguments.
In an 8-1 decision, the high court said the federal government cannot claim sovereign immunity under the Quiet Title Act, which until now protected land taken into trust by the federal government for Indian nations. The QTA authorizes lawsuits against the government by plaintiffs who assert a "right, title, or interest" in a property, but it contains an exception prohibiting lawsuits involving "trust or restricted Indian lands.” But the high court ruled that “Patchak’s action is not a quiet title action” and he is not “an adverse claimant” as required by the QTA, because he is not asserting his own direct interest in the Gun Lake Casino property, although he does claim the casino will increase crime and traffic and lead to environmental problems and lowered property values.
As a result, the lawsuit falls within the waiver of sovereign immunity found under the Administrative Procedure Act (APA), the decision says the high court dismissed Gun Lake’s and the Justice Department’s argument that Patchak’s lawsuit should be treated as an ‘adverse claimant’s’ lawsuit because it implicates the QTA’s Indian lands exception. “That argument must be addressed to Congress,” Justice Elena Kagan wrote for the majority.
The ruling could affect the Gun Lake Casino, but tribal officials said in a statement that the tribe is confident it will ultimately prove Patchak’s claims are without merit. “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 continuing legal battle may take years to resolve, Sprague said, but the tribe is committed to it. “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.”
Justice Sonia Sotomayor wrote the only dissenting opinion. “The Court’s opinion sanctions an end-run around these vital limitations on the Government’s waiver of sovereign immunity,” Sotomayor wrote. “After today, any person may sue under the Administrative Procedure Act (APA) to divest the Federal Government of title to and possession of land held in trust for Indian tribes—relief expressly forbidden by the QTA—so long as the complaint does not assert a personal interest in the land. That outcome cannot be squared with the APA’s express admonition that it confers no ‘authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.’ . . . The Court’s holding not only creates perverse incentives for private litigants, but also exposes the Government’s ownership of land to costly and prolonged challenges.”
The ruling means that litigants can now challenge not only the government’s trust interest in Indian lands, but also its interest in public lands such as National Park Service parks, public forests and other public lands.
In a statement, Brian Patterson, the president of the United South and Eastern Tribes, expressed disappointment in the high court’s ruling. “Once again, as it did in Carcieri v. Salazar, the Court has overturned a long-settled principle with the likely result of creating turmoil in Indian law and depressing tribal economic development,” Patterson said. He cited the federal government’s promise, backed by laws, regulations and statements, that Indian-held lands will be kept secure and that tribes will have an opportunity to add to their diminished land bases. Although that promise has all too often been broken, the U.S. has made progress in recent years, Patterson said. “Now the Supreme Court undoes much of that progress by allowing a wide range of parties to challenge a land into trust decision even after that land has been taken into trust. This directly contradicts the provisions of the Quiet Title Act, which has long governed in this area of law,” Patterson said.
The high court’s decision should serve as a battle cry for Indian country, Patterson said. “Like arrows in a bundle, only if we stand together will we be strong enough to succeed. USET is committed to a united effort. Our recourse will likely be with the Congress. We will look to that body to restore the balance that allowed for tribes to acquire lands and to hold them secure in trust status.”
Addressing the NCAI Mid Year Conference moments after the decision was released, NCAI Executive Director Jacqueline Pata said, “This is not a good decision for us, and it affects all of Indian country." NCAI General Counsel John Dossett also issued a statement: “Indian tribes are working to recover lands that they owned under treaties and federal law. Tribes have to buy back their stolen lands and then convince the Department of Interior to put land back in trust status. . . . Now, the Supreme Court has said that anybody can file a lawsuit and go back in time and try to take away tribal trust lands. It is a severe injustice.”
Indian country observers would widely like to see Congress use this decision as a reason to fervently push a Carcieri legislative fix. But so far main allies have been silent on their strategy post-Patchak. The office of Sen. Daniel Akaka, D-Hawaii, and chair of the Senate Committee on Indian Affairs, said he had no comment in the immediate aftermath of the decision. Akaka has been unsuccessfully pushing a Carcieri fix for years now, and some tribal officials believe he should be doing more, especially given this difficult decision. And they agree that the ruling will encourage frivolous lawsuits by any and all anti-Indian or anti-Indian casino foes.
“The Court has lowered the bar so far in terms of standing to sue, that it’s basically encouraging lawsuits against tribes from here on out,” said Chris Stearns, a Navajo attorney with Hobbs, Straus, Dean & Walker and chairman of the Seattle Human Rights Commission. “Or at least until Congress can fix the situation. You would think that if anyone would have the standing to sue about their way of life being destroyed, it would be us.”
Gabe Galanda, an enrolled member of the Round Valley Indian Tribes and partner with the Seattle-based firm of Galanda Broadman, said the ruling expands the zone of interest (the range or category of interests that a statute or constitutional guarantee is intended to protect) “so wide that a circus caravan can now drive through it – in fact, the clowns and trapeze artists now have standing to sue to delay or possibly stop a tribal project.” Furthermore, the ruling could undermine the federal recognition status of a tribe, Galanda said. “Perhaps worst of all, is the impending marriage of Carcieri and Patchak. Patchak also gives Joe Citizen clearer access towards suing the federal government over whether a federally recognized tribal government should be federally recognized per Carcieri. Gun Lake will soon be assaulted with litigation on the merits regarding whether it was ‘under federal jurisdiction’ in 1934. In addition to the fate of Gun Lake's trust lands and casino, the tribe's very existence now rests squarely in the hands of a federal judge in Washington, D.C. Beyond its holding, the implications of Patchak exclaim the need for a Carcieri-fix,” Galanda said.
The ruling could even have a devastating effect on a tribe’s access to financing, said Matthew Fletcher, a member of the Grand Traverse Band of Chippewa and Ottawa Indians, professor of law and director of the Indigenous Law & Policy Center at Michigan State University College of Law, and webmaster of Turtle Talk, the Indigenous Law & Policy Center’s legal blog and an unrivaled source of court documents pertaining to Indian casework and law.
“Anti-tribal gaming interests can now file any old frivolous lawsuit to challenge trust acquisitions within six years of the acquisition. This makes lending to tribal borrowers much, much more expensive in terms of interest rates, and maybe eliminates the ability of many tribes to borrow money until the six years has past,” Fletcher said. “Any – and I do mean any – anti-tribal interest. Patchak is a nut, and now all the nuts with a few dollars in their pockets can sue.”
The real danger, Fletcher said, “is a Carcieri II type case. The case against Gun Lake is flimsy because they're a treaty tribe, but messy because their history is messy. It's going to be expensive to litigate the history.” Gun Lake could win on the merits in the lower court, only to be appealed straight back up to the same Supreme Court that decided Carcieri in the first place, Fletcher said. “If Obama doesn't win reelection and is able to replace one or more Justices, then there could be a serious problem. The Roberts Court doesn't care about the law or the facts, only outcomes,” he said.
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.
Joseph Valandra, Sicangu Lakota, principal owner and president of VAdvisors, LLC, chairman and CEO of Tehan Woglake, Inc., and former chief of staff of the National Indian Gaming Commission, said the ruling is “terrible” for the uncertainty it brings to tribal lands. “Nothing is more important than Indian land in terms of a tribe’s sovereignty and a tribal government’s authority and ability to provide for the people. Carcieri may be the cause of Patchak’s action but this ruling broadens the types of people to bring this kind of action so it makes it worse,” Valandra said. Valandra said the Supreme Court ruling undermines the government-to-government relationship between the federal government and tribal governments that was established by the Supreme Court itself in the 19th century court of Chief Justice John Marshall. “The expansion of the QTA to allow just about anyone to challenge any land into trust decision – whether for gaming or any other purpose – shows this court is very unschooled in Indian law and also very disrespectful in many ways of tribes and the history of the government-to-government relationship,” Valandra said. A Carcieri fix through Congress would be the solution, Valandra said, “but we have a Congress unwilling to act on even feeding people.”
Judy Shapiro, a Washington-based Indian law attorney, warned last December that the legal challenges brought on by the Carcieri case presented a potential threat to all Indian lands. “We still don’t know what new threats to tribal sovereignty may be posed by cases working through the courts, or not yet filed,” Shapiro said. “All tribes should press their congressional delegations for a quick and clean legislative correction to the Carcieri decision, to protect tribal trust lands now and in the future.”
The Supreme Court decision makes a Carcieri fix even more crucial, Shapiro said, but it has also created a new problem regarding the QTA. “Now we need a QTA fix, too,” Shapiro said.
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