On June 18, 2012, the Supreme Court ruled 8-1 that David Patchak, an individual, has standing and can file suit against the government's decision to take land into trust on behalf of a Native American tribe. The court offered no conclusions regarding the merits of Patchak's case; it simply allows the case to proceed in the lower courts. This ruling has several implications for the gaming tribes trying to get land into trust:
(1) It is likely to result in increased challenges from anti-gaming interests regarding land-into-trust decisions for tribes, as it lengthens the statute of limitations on judicial review to six years from 30 days;
-(2) Raising capital for Native American casino projects could become more difficult/expensive, as investors are likely to have heightened concern about potential challenges regarding land-into-trust decisions;
-(3) Casino operators that face the possibility of increased competition from potential casino projects tied to land-into-trust decisions could benefit from a longer regulatory process;
(4) Anti-tribal interest will now be empowered to file suit to try to stop trust acquisitions.
History of the case
Patchak brought the suit to challenge the Department of Interior (DOI) Secretary's decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians in Michigan (Gun Lake Tribe) using the Administrative Procedures Act (APA), which allows the government to be sued if it fails to follow proper procedures, thereby waiving its sovereign immunity.
Patchak specifically cited that the Gun Lake Tribe was not recognized as of 1934 and therefore per the Indian Reorganization Act of 1934 (IRA), the Secretary could not take the land into trust (suit was filed before the 2009 Carcieri decision). The APA stipulates that other acts may void the sovereign immunity waiver provided by APA. The Gun Lake Tribe and the Government argued that the language in the Quiet Title Act (QTA) provides such language, citing the section that prohibits suits involving Indian land.
Wisconsin tribes like the Ho-Chunk and Menominee currently trying to get off-site casino will now have to face an additional hurdle as these challenges are likely for any Wisconsin tribe trying to site a casino.