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Case Over Indian Casino That Contributes to Local Schools Returns to High Court

By Mark Walsh — November 07, 2017 3 min read


A high-stakes legal battle over an American Indian casino in Michigan that contributes significantly to the local school district and other government agencies returned the U.S. Supreme Court on Tuesday.

The Gun Lake Casino in Wayland, Mich., owned by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, opened in 2011 and by all accounts has been a success. It shares a portion of its slot machine revenues with the state and local governments, including more than $900,000 for a six-month period in 2016 to the Wayland Union school district, and some $135,000 for the same period to the Allegan County Educational Service Agency.

The agencies would like to see those payouts continue to flow, so they once again filed a friend-of-the-court brief on the side of the tribe and the federal government in a long-running suit with a neighbor of the casino who contends the Department of the Interior’s acquisition of the land parcel in trust for the tribe was unlawful because the Match-E-Nash-She-Wish Band was not recognized as a tribe at the time of a 1934 federal law on Indian trust lands. The Band won federal recognition in 1998.

In 2012, the Supreme Court ruled 8-1 in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that the neighbor had standing to challenge the acquisition of the land for ultimate use as an Indian casino despite arguments that the federal law on which he based his suit involves only land acquisitions, not land use issues.

After that decision, Congress came to the aid of the tribe, passing the Gun Lake Act, which reaffirmed the federal government’s acquisition of the land and said the lawsuit relating to the tract “shall not be filed or maintained in a federal court and shall be promptly dismissed.”

That led to the dismissal of Patchak’s long-running suit. The neighbor appealed to the Supreme Court, making arguments that the Gun Lake Act violates the separation of powers and the independence of the judiciary.

“As a consequence of that directive to dismiss with respect to Mr. Patchak’s case, the courts were prevented from performing their constitutionally assigned responsibilities to decide cases before them and to say what the law is in the context of deciding those cases,” Scott E. Gant, a lawyer representing the neighbor, said during the Nov. 7 oral arguments in Patchak v. Zinke (Case No. 16-498.)

The arguments largely involved the limits of Congress to proscribe federal court jurisdiction in a particular subject, and Justice Ruth Bader Ginsburg offered Gant an hypothetical that she described as “not fictional.”

“Suppose Congress enacts a statute that says a federal court shall not have jurisdiction over cases involving prayer in school,” she said. “Constitutional?”

Gant said that would raise serious questions but is different from the case before the court.

“Part of what’s offensive here to the separation-of-powers principles is that Congress is directing the outcome in a case,” he said.

Chief Justice John G. Roberts Jr. observed that “during the civil rights era, there were a lot of proposals in Congress that said the federal courts have no jurisdiction over any case in which [school] busing is sought as a remedy.”

Those were examples of Congress attempting “to achieve an unconstitutional result by depriving the federal courts of jurisdiction.”

Ann O’Connell, an assistant to the U.S. solicitor general, argued for the federal government that with the Gun Lake Act, Congress “eliminated any doubt about the trust status of this land by ratifying and confirming the [Interior] secretary’s action in 2005.”

The brief filed by the 3,000-student Wayland Union school district, along with other local governments and business interests, focuses less on separation of powers arguments as on telling the court about the positive impact of the casino.

“By enacting the Gun Lake Act, Congress recognized that the continuing uncertainty generated by this case posed a significant obstacle to realizing the full benefits of the Band’s economic development efforts,” the brief says.

Meanwhile, the $165 million Gun Lake Casino recently completed a $76 million expansion and is hiring more workers and building a new parking deck, all of which contribute to the area’s economy, the brief says.

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.


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