The Gun Lake Decision: What Does It Mean For Indian Gaming?

Introduction

By this time, everyone with an interest in gaming, is aware of last week's U.S. Supreme Court decision rendered in the case of Match-EBe- Nash-She-Wish Band of Pottawatomi Indians v. Patchak. The Tribe is commonly known as the "Gun Lake Band" and will be so known for the purposes of this article.

Certainly every recipient of the Dickinson Wright Gaming Legal News is fully versed in the decision by virtue of our Gaming Law Group's collaborative effort to quickly and comprehensively report the decision only a few days after it was rendered. See "Supreme Court Allows Challenge to Gun Lake Tribal Casino to Proceed Forward," Gaming Legal News, Vol. 5, No. 14 (June 14, 2012). In addition, the decision has been widely reported in both print and internet outlets, so the basic elements are well-known and need not be repeated here.

That said, many readers still do not understand what the Court's ruling means to Indian gaming and this article will attempt to identify – and respond to – the questions that may remain.

At the outset, it has to be said that the Patchak win was a tribute to skillful pleading by his attorneys, who carefully avoided invoking the federal Quiet Title Act ("QTA") which has proven to be quicksand for many challengers to decisions by the Interior Secretary to take land into trust for tribes. Indeed, many legitimate legal claims have been dismissed because of litigants over-pleading their cases to the point of asserting (often inadvertently) some property interest in the land, and that is sufficient to trigger the QTA and federal sovereign immunity, leading to dismissal of their litigation.

Even the slightest encroachment into the zone of "property interest" in such a challenge negates the waiver of federal sovereign immunity established by the Administrative Procedure Act ("APA") to allow private parties to challenge a federal agency action. The Patchak lawyers understood the puzzle and carefully crafted their claims of interest to avoid the QTA altogether. That single achievement may prove to be one of the lasting legacies of the entire Gun Lake case.

What The Decision Did And What It Means

The sole statutory authority pursuant to which the Secretary of the Interior can take land into trust for tribes is found in 25 U.S.C. §465, which is part of the Indian Reorganization Act of June 18, 1934 ("IRA"). In early 2009, the Supreme Court in the well-known Carcieri case ruled that the trust acceptance authority could only...