Gun Lake, Feds Take Quiet Title Act, Standing to Supremes
The U.S. Supreme Court has been asked to review a federal appeals court ruling that challenges the Interior Department’s decision to take into trust the land that the Gun Lake Casino is built on. This crucial case raises issues that potentially threaten not only the security of Indian trust lands, but also public lands such as forests and national parks held in trust by the federal government. The high court petitions evolved from a lower court case involving the Supreme Court’s ruling in Carcieri v. Salazar.
The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, known as the Gun Lake Tribe, and the federal government have petitioned the U.S. Supreme Court to review a ruling issued by the D.C. Circuit Court of Appeals last January that said David Patchak, a former trustee in Wayland County, Michigan, has standing to bring a lawsuit against the Interior Department for taking into trust 147 acres near Grand Rapids where the tribe operates its casino. The casino opened in February.
Patchak, who lives near the casino, alleged that the rural character of the area would be destroyed and the value of his property would drop. “As a practical matter, it would be very strange to deny Patchak standing in this case,” the appeals panel said in ruling in Patchak’s favor. The ruling reversed a decision by the Washington federal district court that said Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act (QTA), which says the federal government cannot be divested of title to Indian trust lands. The appeals court expanded the previous criteria for “standing”—the right to initiate a lawsuit—which basically requires someone to be injured or affected by an action by granting Patchak “prudential standing.” Under constitutional standing, a plaintiff has suffered an “injury-in-fact” that was caused by the defendant's action and that can be redressed by a favorable judicial decision. In prudential standing, a judge-driven decision, the plaintiff must show that his or her injury is within the “zone of interests” that the statute or constitutional provision at issue is meant to protect. The appeals court ruling was a departure from rulings in similar cases from four other circuit courts.
The questions presented to the Supreme Court by Gun Lake are: “I. Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving ‘trust or restricted Indian lands’ apply to all suits concerning land in which the United States ‘claims an interest” … as the Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether they apply only when the plaintiff claims title to the land, as the D.C. Circuit held. II. Whether prudential standing to sue under federal law can be based on either (i) the plaintiff’s ability to ‘police’ an agency’s compliance with the law, as held by the D.C. Circuit but rejected by the Fifth, Sixth, Seventh, and Eighth Circuits, or (ii) interests protected by a different federal statute than the one on which suit is based, as held by the D.C. Circuit but rejected by the Federal Circuit.”
Although the questions presented do not directly reference the Carcieri case Patchak’s basic claim, which he filed under the Administrative Procedure Act, is that the Interior secretary was not authorized to take Gun Lake’s land into trust because the tribe was not under federal jurisdiction in 1934 when the Indian Reorganization Act (IRA) was passed—a challenge that relies on the U.S. Supreme Court’s Carcieri v. Salazar ruling in 2009. Carcieri v. Salazar was filed in the Supreme Court by the State of Rhode Island earlier that year. Named after former Rhode Island Governor Donald Carcieri, the lawsuit claimed that the Interior secretary did not have the authority to take 31 acres of land into trust for the Narragansett Indians for elder housing, because the tribe was not “now under federal jurisdiction” in 1934 when the IRA was passed. In ruling in Carcieri’s favor, Justice Clarence Thomas delivered the opinion of the Court, joined by Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Steven Breyer, and Samuel Alito. Breyer filed a concurring opinion. Justice David Souter filed an opinion concurring in part and dissenting in part, in which Ginsburg joined. And Justice John Paul Stevens filed a dissenting opinion.
Patchak’s lawsuit continues 10 years of struggle on the Gun Lake Tribe’s part to secure its reservation land against a group of powerful and heavily funded anti-Indian casino opponents in Michigan who filed lawsuit after lawsuit through state and federal courts to try to stop Interior from taking the land into trust. The Gun Lake Tribe was federally acknowledged by the BIA in 1999. Patchak’s opposition dates back to early 2001, when Gun Lake first filed its trust land application under the Indian Reorganization Act and the Indian Gaming Regulatory Act. On March 9, 2001, Patchak wrote a screed to then-President George W. Bush opposing Gun Lake’s application and Indian trust lands in general. “What happened hundreds of years ago is the past, these treaties were made between a fledgling nation and groups of people who lived here but had no rights,” Patchak wrote. “Today, this is the United States of America and these tribes of Indians are full citizens … If the government feels that this nation owes the Indians more that [sic] it owes it’s [sic] average citizen, then let the nation contribute equally. Give them federal lands that are owned by all the people and controlled solely by the government to build their casinos. Do not let them come into private areas, buy land and then claim that land is now Indian land controlled by the federal government and the local people have nothing to say in what that land can be used for.” In August, 2001, two anti-Indian casino groups with which Patchak had ties – 23 Is Enough and MichGO (Michigan Gaming Opposition) – filed a lawsuit opposing Gun Lake’s trust application. A consistent player throughout the 10 years of opposition against the tribe is the Michigan law firm Warner, Norcross & Judd, which represented both 23 Is Enough and MichGO, and now represents Patchak.
On May 13, 2006, Interior published a final notice to take the land into trust in the Federal Register. Although the opponents had lost every lawsuit they had filed against the department up to that time, they appealed the decision, delaying the finalization of the trust land until January 30, 2009. Just days before Interior placed the 147 acres into trust on that date, the U.S. Supreme Court and the U.S. District Court in Washington denied two motions from MichGO to stop Interior’s action. Both motions were based on the Carcieri case, which was pending at that time. One motion presented the same challenge as Carcieri against the Interior Secretary’s authority to take land into trust, and the other asked the court to stop Interior’s action until Carcieri was decided. Almost immediately after MichGO’s motions were denied, Patchak filed a motion for an emergency stay to stop the secretary from going ahead with the land transaction, but the federal district court denied his request and Interior finally took Gun Lake’s land into trust on January 30, 2009. Three weeks later, however, the U.S. Supreme Court issued its Carcieri opinion, agreeing with Patchak’s argument that the IRA limits the secretary’s trust authority to tribes “under federal jurisdiction” in 1934. Patchak’s case then wended its way through the Washington federal district court and the appeals court, which ruled last January.
The Patchak case is “very complex,” said Matthew L.M. Fletcher, an associate professor of law and the director of the Indigenous Law & Policy Center at Michigan State University College of Law. The best outcome for Gun Lake would be if the Supremes review and reverse the appeals court ruling. That would mean the district court decision denying Patchak standing would prevail and the case would be over. If the Court denies review or reviews and upholds the appeals ruling that Patchak has standing to sue, then the case will be remanded to the federal district court for a trial to determine whether Interior Department can take the Gun Lake’s land into trust under Carcieri. “So this isn't exactly a Carcieri case yet. It could be if Patchak prevails here one way or the other,” Fletcher said. Under this scenario, the case theoretically could circle through the federal and circuit courts and reach the Supreme Court a second time.
If Patchak wins the Carcieri argument, it’s likely that nothing will change for the time being, Fletcher said. “Frankly, no one knows what happens if Patchak ultimately wins on the merits. The land is already owned (in trust) by the federal government, and I'm unaware of any federal court ordering the United States to divest itself of land. That's a whole new constitutional question, perhaps, if it gets that far. The Quiet Title Act is supposed to end all discussion when it comes to Indian lands, because Congress chose expressly not to waive federal sovereign immunity once Indian lands are in trust. However, if it means the government has to return the land to the Gun Lake Band in fee, then the question becomes whether the National Indian Gaming Commission and/or the U.S. Attorney's Office in Grand Rapids will force the tribe to shut down its gaming enterprise.”
So, the potentially huge question for Indian country revolves around the Quiet Title Act, Fletcher said. “If the immunity barrier in the QTA can be gotten around, then much trust land recently taken into trust could be challenged by virtually anyone who is strongly opposed to trust land acquisitions. What's remarkable about this case is the standing holding. Basically, all Patchak can prove is that he very strongly opposes Indian gaming. He's not actually injured by it at all, other than worries about the ‘rural character’ of his community, whatever that means. Wayland and its surrounding townships long have hoped for more industry and economic growth – I know, I grew up there. So it's just one guy for all we know who doesn't want that. He's pretty firmly in a tiny minority,” Fletcher said.
Gun Lake presents a number of arguments in seeking the high court’s review. Because the appeals court decision is on conflict with four other appeals court decisions in similar cases it has “opened a substantial gap” in the federal government’s sovereign immunity under the QTA from litigation challenging its title to trust or restricted Indian lands, as well as federal lands generally, the lawsuit says. If the appeals court ruling is left in place, that means anyone with a gripe could create a challenge in any case in which the federal government “claims an interest” whether it is Indian lands, national parks, public lands, easements or any other lands covered by the QTA’s terms and exceptions.
Also, because the D.C. Circuit hears almost all lawsuits against the federal government, prospective plaintiffs will now be able to “forum shop” their way around the United States’ sovereign immunity in disputes challenging the federal government’s title to land or “avoid the QTA and controlling circuit law altogether by simply filing their lawsuits in the District of Columbia,” the Gun Lake petition says.
The federal government’s petition asks the high court to consider “(w)hether (the Administrative Procedures Act) waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian Tribe,” and more directly seeks the high court’s review of the Carcieri ruling in asking “(w)hether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act.”
Among the arguments presented by the federal government in seeking the high court’s review is that the Administrative Procedure Act under which Patchak filed his lawsuit against the Interior Department does not allow an end run around the Quiet Title Act’s provision that precludes any person from seeking to divest the United States of title to Indian trust lands.
“If left unreviewed, the circumvention of the QTA countenanced by the court of appeals will therefore frustrate the purpose of trust acquisition, which is to provide a land base for Indians in order to encourage tribal self sufficiency and economic development,” the federal government petition says. The appeals court ruling implies that whenever the Interior Secretary takes final action on trust land, “plaintiffs could bring an APA suit contending that his action was contrary to law because the land is not properly held in trust for Indians. That might even be so when the United States has held the land in trust for years and the tribe has made substantial investments in it. Allowing such never-ending attacks on the trust status of lands would severely undermine the United State’s longstanding recognition of tribal sovereignty, self government and self determination. “
Resolution of the Carcieri problem may come down to a race between actions by the courts and Congress. But even within the legislature, there’s a battle between the House and Senate over Indian trust land. There are efforts in Congress with the HR 1291 sponsored by Rep. Tom Cole (R-Okla.) and HR 1234, sponsored by Rep. Dale Kildee (D-Mich.) to pass “a clean Carcieri fix” that would clarify the Interior Secretary’s authority to take land into trust for all federally acknowledged tribes. In the Senate, however, Senators John McCain (R-Az.) and Jon Kyl (R-Az.) have introduced a bill that would make it almost impossible for the Interior Department to acquire trust lands for gaming or any other purpose that are not already reservations.
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