Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.
"It does seem that we may be wasting our time," Justice Anthony Kennedy said. "I'm not suggesting that the ... case is moot, but you did wait for some three years before you brought this suit. The building was built."
Casino foe David Patchak sued to stop the opening of a casino by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, in Wayland Township, 20 miles south of Grand Rapids. Patchak challenged how the government placed the land in trust for the tribe, saying that the move was illegal since the tribe had not been recognized by the government in 1934 when the Indian Reorganization Act was passed.
A federal judge refused to grant Patchak's request for an emergency stay, and dismissed his lawsuit saying his complaints that the casino would change the safety and character of the area was not enough to allow his lawsuit to move forward.
The new casino opened in February 2011, only days after the U.S. Circuit Court of Appeals for the District of Columbia Circuit overruled the decision to throw out Patchak's lawsuit. The tribe and the Justice Department appealed that decision to the Supreme Court.
Patchak's lawyer Matthew T. Nelson argued that his client brought his lawsuit before the casino opened and before the government put the land in trust for the tribe. The Supreme Court also ruled in 2009 in Carcieri v. Salazar that the Interior Secretary could only put lands in trust for tribes that were recognized before 1934.
"In spite of the knowledge of this Court's decision in Carcieri, they made a reasonable business decision to move forward with this, knowing the risk that they were taking that the entire basis of them being able to operate a casino and engage in class 3 gambling could be overturned," Nelson said.
The government and the tribe have argued that the lawsuit should be thrown out because federal law bars lawsuits attempting to overturn a decision to take title to lands in trust for tribes. "The United States has not waived its sovereign immunity from suits challenging its title to Indian trust lands," Justice Department lawyer Eric D. Miller said.
Justices will make the decision before the end of the summer.
The cases are Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 11-246, and Salazar v. Patchak, 11-247.