Washburn Announces Plan of Attack for Patchak Patch
Assistant Secretary – Indian Affairs Kevin Washburn is laying out a plan to resolve problems created by a 2012 U.S. Supreme Court decision, which said that a litigant can sue for up to 6 years after the U.S. Department of the Interior takes lands into trust for tribes.
The specific decision, in Salazar v. Patchak, allowed a lawsuit to go forward challenging a tribal casino in Michigan from opening, despite the fact that the suit was filed three years after Interior took land into trust. That suit is pending.
The overarching problem the ruling creates for tribes is that it leaves the door open for costly lawsuits long after tribal projects, like housing, casinos, and healthcare facilities have broken ground.
Washburn’s new proposal partially addresses the problem by ending a 30-day waiting period Interior had established in 1996 to take land into trust for tribes wanting to develop casinos on that land. The 30-day waiting period, called a “self-stay policy,” was meant to give parties a heads up in case they wanted to file suit.
“The reason for staying is just not so compelling anymore,” Washburn said in an interview with Indian Country Today Media Network. “Our argument is that people can still bring their action if they want to after we’ve taken the land into trust—at least that’s what Patchak says.”
Washburn also proposes to allow a 30-day appeal period for land-into-trust tribal decisions that do not involve casinos. If parties do not file an appeal within 30 days before the Interior Board of Indian Appeals, then they will lose the right to do so ever.
“If they don’t appeal, then they are out of luck,” Washburn said. “Kind of like when the minister says, ‘Speak now or forever hold your peace.’”
Washburn said that, in theory, post-Patchak, parties could have had another 6 years to file suit even on non-casino based trust decisions. The new rule, which “exhausts their administrative remedies” – a point he reiterated several times – closes that loophole.
“If an appeal isn’t filed in 30 days, it’s golden—the land is in trust, and it’s secure [for tribes],” Washburn said.
Why not get rid of the 30-day waiting period for all trust decisions, regardless of whether a tribe plans a casino or other development on the land? “If we had gotten rid of the period [for non-casino trust decisions], then that would be deemed a final agency action, which means a person could go to court, and they would have 6 years to go to court,” Washburn said. “We wanted to keep this in our forum—the Interior Board of Indian Appeals, an expert tribunal that knows these issues, and we wanted to ensure that if they didn’t bring it there, they lose the right to go to court.”
If someone appeals before the tribunal, the appeals process could still take a long time, but the decision of the tribunal would be final. A person could also appeal the tribunal decision, which means that this process could actually be lengthened in some cases. “In the absolute worst case scenario, in a highly controversial non-gaming application, it could take longer, now, under this approach,” Washburn noted. Still, for decisions that aren’t appealed, a party won’t be able to file suit years after the fact.
One concern, Washburn said, would be if parties who are opposed to Indian land-into-trust altogether decide to simply file appeals every single time one comes up, which is happening in places like South Dakota already. “There are those people out there,” he said. “That may well happen—but they do have to state a basis for an appeal. Those appeals will presumable be summarily dismissed if there is no basis for an appeal.”
The two-prong policy will undergo a 60-day comment period, and tribes will be consulted and Congress members will have an opportunity to weigh in. “It’s kind of technical, and I’m not sure everyone will understand it,” Washburn said, adding, “Nearly 1,200 land into trust applications have been approved since the beginning of the Obama administration. We hope to keep that freight train moving. We want to keep restoring lands for tribes.”
Tribal advocates have been pushing for Washburn to create a “Patchak patch” since he started in his position seven months ago. Signs that he was considering doing so were apparent during recent legal proceedings involving the North Fork Rancheria of Mono Indians, a California tribe that has long been proposing an off-reservation casino. Interior officials told the North Fork Rancheria in January that the Department did not plan to wait for a lawsuit to play out before taking the land into trust for the tribe.
Washburn readily admitted that this policy will not totally appease tribal advocates, since, under the rule, Interior will be providing notice of its decision to acquire land. State and local governments will be notified, as will all interested parties, and a notice will be posted in the media—all of which heightens the chance that someone will file an appeal that could lengthen a land-into-trust process. On that point, he said the benefit of the rule outweighs that risk: “If people have concerns, we need to get them out of the bushes and get them to raise their concerns within 30 days—not wait 5 years and 11 months,” he said.
He also said critics of the administration’s tribal land into trust policies, especially Sen. Dianne Feinstein (D-Calif.), will probably like that the policy codifies that parties in opposition will be contacted by Interior. “I think that’s a change that she will appreciate,” he said.
The Assistant Secretary added that there is still much work to be done to get Congress to pass a true “Patchak patch” that would say that once the United States takes land into trust for tribes, the decision is immune from lawsuit. “But we can’t wait for Congress to do that,” Washburn said. “We don’t know if they will. We certainly would support such legislation, but, in the meantime, we have to figure out how we protect tribes now.”