Supreme Court says Congress can stop
lawsuit that threatens Tribe’s casino
9 March 2018
The Supreme Court, in a 6-3 decision last Tuesday affirmed the judgment of the United States Court of
Appeals for the District of Columbia in Patchak v. Zinke, holding that Congress t hrough the Gun Lake Act,
which reaffirms tribal property as trust land and stops litigation challenging that land status, did not
violate Article III of the Constitution. Patchak v. Zinke, 2018 WL 1054880 (Feb. 27, 2018). As a result, the
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians’ (Band) fight to operate its casino on the land in
question has finally come to an end after years of litigation and uncertainty.
The back story on the legal fight
In 2001, the Band in Michigan identified a parcel of land, known as Bradley Property, to build a casino. In
2005, the Secretary of the Interior announced approval of the Band’s request, but waited 30 days for
public notice, during which time an anti-gaming organizatio n filed suit to challenge the proposed
decision. As a result, Interior did not take the land into trust at that time. The case wound its way through
the courts for years, with the Band winning when the Supreme Court deni ed the opponents request to
review it. Michigan Gambling Opposition v. Norton, 477 F.Supp.2d 1 (D.D.C. 2007); Michigan Gambling
Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008). At that point, Interior took the land into trust in
January, 2009. Two years later, the Band opened its casino on the Brad ley Property.
Meanwhile, David Patchak, a nearby landowner, filed suit in 2008 challenging the Secretary’s authority to
take the land into trust. Patchak’s suit ended up in the Supreme Co urt in 2012, where he won. The Court
ruled that he had standing to challenge Interior’s land-into -trust decision and that he could sue the
United States despite the Quiet Title Act’s sovereign immunity bar on claims challenging Indian title. See
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (201 2).
Thus, Mr. Patchak continued to litigate his claims in the lower courts. Notably, he relied on the Supreme
Court’s Caricieri ruling—issued in February 2009—to argue the Band was not eligible to take land into
trust because it was not a tribe “under federal jurisdiction in 1934.” Carcieri v. Salazar, 555 U.S. 379
(2009). When partner Hilary Tompkins was Solicitor of the Department of the Interior, she issued an
opinion establishing a test for Indian tribes to determine if they met the standard set forth in the Carcieri
decision. See M-37029: “The Meaning of Under Federal Jurisdiction for Purposes of the Indian
Reorganization Act” (March 12, 2014). Her opinion formed the basis of support for the Band’s land
acquisition in the litigation.
