SCOTUS tackles Indian Gambling

Gun Lake Casino lawsuit before Supreme Court is 'incredibly high-stakes case,' says legal expert
By Garret Ellison The Grand Rapids Press MLive.com

WAYLAND TOWNSHIP — The Supreme Court will decide next year whether the federal government properly took land into trust for the Gun Lake Tribe to build a casino, in a case that experts say reaches far beyond the borders of Allegan County.

On Monday, the court agreed to hear former Wayland Township trustee David Patchak’s reinstated lawsuit against the Gun Lake Band of Pottawatomi and the federal Interior Department, a case which could force the Gun Lake Casino to shut its doors.

The casino, which employs about 900 people, opened in February and has since paid out $10.4 million in state and local revenue sharing while raking in about $104 million in net profits on electronic games after payouts in less than a year of operation.

“This is an incredibly high-stakes case,” said Matthew Fletcher, a law professor at Michigan State University who specializes in Indian gaming law. “This casino is generating a lot of revenue — a lot more than they thought they would.”

But the Supreme Court, which accepts only about 3 to 4 percent of cases for which they’re petitioned each year, would not be scheduling arguments if the lawsuit were simply about jobs, profits and revenue sharing for municipalities, although that helps, said Fletcher.


Rather, the Roberts Court justices are likely hoping to clear-up a gray-area in the law that governs decisions by the Department of Interior about taking land in trust on behalf of Indian tribes; a wrinkle that bodes well for the tribe and the government, he said.

The Supreme Court typically reverses about 70 to 75 percent of cases they hear, Fletcher said. “They usually agree to hear a case when they think a lower court is wrong.”

In this case, that would be the D.C. Circuit Court of Appeals, which unexpectedly reinstated Patchak’s lawsuit in January, the same day the tribe announced the date of the $157 million facilities grand opening.

It proved an unwelcome surprise that has resulted in a kind of elephant-in-the-room scenario for Gun Lake officials this year, because if Patchak wins the day, the land under the casino would become ineligible for Class III gaming -- meaning no slot machines, blackjack, craps or other tables games.

“They could have the world’s most expensive bingo hall,” said Cooley Law School professor Curt Benson in January.

It would also open up the federal government to a potential flood of lawsuits over recent land-in-trust decisions, said Fletcher, who was warning of the threat the Gun Lake case posed to the government’s land-in-trust statues back in 2008.

Reinstatement of Patchak’s lawsuit was “pretty shocking,” he said, because the courts have been uniform for decades on interpreting the Quiet Title Act as giving the government immunity from litigation after the land-in-trust decision has been made.

The D.C. Circuit opinion, which reversed a U.S. District Judge Richard Leon's dismissal of Patchak’s lawsuit in August 2008, conflicts with case law going back decades, he said. “You’ve never been able to sue on the back end."

In the appellate decision, one of the judges wrote that Patchak's appeal presented two jurisdictional issues -- whether, as the U.S. District court held, he lacks standing to pursue a case; and whether, if he has standing, sovereign immunity bars his suit.

Parties in the case each issued brief statements, essentially saying the same thing, in response to Monday's news.

“We appreciate the court’s willingness to hear our case,” said D.K. Sprague, Chairman of the Gun Lake Tribe. The casino is managed by Las Vegas-based Station Casinos Inc.

“We look forward to the opportunity to present our case to the U.S. Supreme Court,” said Dan Ettinger, with Warner Norcross & Judd in Grand Rapids, representing Patchak. “We are optimistic that the Supreme Court will agree with our position and allow Mr. Patchak to have his day in court.”

Fletcher said the justices are likely to hear arguments in March or April with a decision around June, before the summer recess.

If they reverse the appellate decision, that becomes the final word on the case, which has been moving through the U.S. legal system in some form for the past decade.

If the justices affirm the appellate decision, it could result in an expensive trial in federal court to decide whether the Interior Dept. was authorized to take the casino land, 147 acres known as the Bradley Tract, in trust for the Gun Lake Band, also known as the Match-E-Be-Nash-She-Wish Band. Other legal maneuvers also could cut the case off before a trial could be set.