Supreme Court decides Match-E-be-Nash-
She-Wish Band of Pottawatomi Indians v.
Patchak
By Theresa L. Keyes and Brian P. McClatchey
On June 18, 2012, the United States Supreme Court issued its decision in Match-E-be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak,1 permitting an individual who owns land near a tribal casino
in Michigan to challenge the federal government's acquisition of land in trust for the Band. While
many commentators expected the Court to rely, at least in part, on its recent decision in Carcieri v.
Salazar2 that tribes “not under federal jurisdiction” in 1934 could not receive land in trust from the
federal government taking, the Court instead based its decision on standing, the federal government’s
sovereign immunity, and the Quiet Title Act. It affirmed the decision of the District of Columbia
Circuit Court of Appeals and remanded for trial on the merits.
Procedural history.
The Band was federally recognized in 1999. In 2001, it asked Department of the Interior to take land
into trust for it in Wayland Township, Michigan (the “Bradley Property”). The Band wanted the land
for gaming purposes, in order to obtain revenues for the Band and its people, consistent with the goals
and principles of the Indian Gaming Regulatory Act.3
In 2005, the Secretary of the Interior agreed to take land into trust, but did not take title at that time.
Even so, the decision sparked the “MichGO” litigation.4 In the MichGO case, the U.S. District Court
for the D.C. District and the D.C. Circuit Court of Appeals, spanning a period from 2005 to 2008,
considered, and ultimately rejected, attempts to stop Interior from making the land-into-trust
acquisition for the Band.
After the 2008 final decision in MichGO, Patchak filed suit. He sought declaratory and injunctive
relief under the Administrative Procedure Act (“APA”)5 to prevent Interior from taking title to the
Bradley Property in trust for the Band. Patchak claimed several types of harm, including economic
harms such as lowered property values, environmental concerns such as increased traffic, and
“aesthetic” harms to his mode of living.
In January 2009, the Supreme Court denied certiorari in the MichGO case, and the Secretary of the
Interior took title to the Bradley Property in trust for the Band. While the act of taking the title
mooted Patchak’s claim for injunctive relief, the parties agreed that the declaratory judgment claim, if
successful, would effectively divest the federal government of title to the Bradley Property. Shortly
1 ------ S.Ct. -----, 2012 WL 2202936 (2012).
2 555 U.S. 379 (2009).
4 Michigan Gambling Opposition v. Norton, 477 F.Supp.2d 1 (Dist.D.C. 2007); Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008).
July 9, 2012
Practice Group(s):
Indian Law (North
America)
