Supreme Court Takes Up Michigan Casino Challenge

As the Supreme Court took up a case involving the Gun Lake Casino on May 1, 2017, a website for the casino offered this picture of the property under the heading “Construction Progress.”

WASHINGTON (CN) – In a nearly decade-old casino challenge that has already faced Supreme Court intervention, the justices agreed Monday to give the case another look.

David Patchak brought the 2008 case in Washington, D.C., after a band of Pottawatomi received permission from the U.S. government to build a casino in Wayland, Michigan.

Patchak’s claim hinged on the fact that federal recognition of the tribe, known as the Match-E-Be-Nash-She-Wish or Gun Lake Band, did not occur until 1998.

He said the tribe was thus ineligible for certain benefits of the Indian Reorganization Act (IRA) of 1934 that helped it acquire the casino land from the U.S. government, which took the land into trust.

The casino opened for business in 2011 amid a series of upheavals in Patchak’s case. Though the trial court initially dismissed the case, the D.C. Circuit revived it and the case was then advanced by the U.S. Supreme Court in 2012.

U.S. District Judge Richard Leon dismissed the case a second time in 2015, however, and the D.C. Circuit affirmed last year.

One development Leon deemed fatal to Patchak’s case was the Sept. 3, 2014, order by the secretary of the Department of the Interior that confirmed the agency’s “authority under the IRA to take land into trust on behalf of the tribe.”

Later that month, Patchak’s case endured another blow when President Barack Obama signed into law the Gun Lake Trust Land Reaffirmation Act.

This law specifically reaffirms that the land that the U.S. Department of the Interior took into trust for the Gun Lake Band is “trust land.”

Even more fatal to Patchak’s case is a provision in the law that calls for the “prompt” dismissal of any federal court action relating to the trust land in question.

Per its custom, the Supreme Court did not issue any comment in granting Patchak a writ of certiorari Monday.

The court did note that it will limit its focus to one question: “Does a statute directing the federal courts to ‘promptly dismiss’ a pending lawsuit following substantive determinations by the courts (including this court’s determination that the ‘suit may proceed’) – without amending underlying substantive or procedural laws-violate the Constitution’s separation of powers principles?”

Patchak’s attorney said he is looking forward to oral argument and thanked the court for granting certiorari.

“Persuading the Supreme Court to grant certiorari in any case is an uphill battle – and particularly so absent a split among the lower courts,” Scott Gant, an attorney with Bois, Schiller & Flexner, said in a statement.

The tribe is represented by Conly Schulte, an attorney with the Louisville, Colorado, firm Fredericks Peebles & Morgan.

The acting U.S. solicitor general is participating in the case as well, and the court granted a motion by the Federal Courts Scholars to file a brief as amici curiae.

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