Patchak v. Jewell

• Decision Date: 16 June 2015
• Docket Number: Civil Action No. 08–1331 (RJL)
• Citation: 109 F.Supp.3d 152
• Parties: David Patchak, Plaintiff, v. Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior,et al., Defendants, and Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians, Intervenor–Defendant.
• Court: U.S. District Court — District of Columbia

109 F.Supp.3d 152

David Patchak, Plaintiff,

v. Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior,¹ et al., Defendants,andMatch–E–Be–Nash–She–Wish Band of Pottawatomi Indians, Intervenor–Defendant.

Civil Action No. 08–1331 (RJL)

United States District Court, District of Columbia.

Signed June 16, 2015

Filed June 17, 2015

Catharine E. Edwards, Sharon Yvette Eubanks, Edwards Kirby, LLP, Tobey B. Marzouk, Marzouk & Parry PLLC, Washington, DC, John R. Edwards, Edwards Kirby, LLP, Raleigh, NC, Bruce A. Courtade, Gregory G. Timmer, Rhoades McKee, Grand Rapids, MI, for Plaintiff.

Gina L. Allery, Patricia Miller, U.S. Department of Justice, Washington, DC, for Defendants.

Conly J. Schulte, Fredericks Peebles & Morgan LLP, Louisville, CO, Shilee Therkelsen Mullin, Spencer Fane Britt & Browne LLP, Omaha, NE, for Intervenor Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge

This case is before the Court on remand from the United States Court of Appeals for the District of Columbia and the Supreme Court of the United States. Plaintiff David Patchak ("plaintiff") is challenging the Secretary of the Interior's ("Secretary") decision to take into trust two parcels of land in Allegan County, Michigan, on behalf of the Intervenor–Defendant Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians (the "Tribe") pursuant to the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465. In a Verified Complaint filed on August 1, 2008, plaintiff sought an injunction barring the Secretary from taking the land into trust, claiming that the Secretary lacked authority to do so under the IRA. Compl. ¶ 28 [Dkt. # 1]. This Court dismissed the case for lack of standing on August 20, 2009. Mem. Op. [Dkt. # 56]. Following remand by the Supreme Court, both parties filed motions for summary judgment. Presently before the Court are Plaintiff's Motion to Strike the Administrative Record Supplement [Dkt. # 76], Intervenor–Defendant's Motion for Summary Judgment [Dkt. # 78], Plaintiff's Motion for Summary Judgment [Dkt. # 80], and Plaintiff's Unopposed Motion to File Consolidated Reply Brief and to Exceed Page Limits Specified by Local Rule [Dkt. # 89]. Upon consideration of the parties' pleadings, the relevant case law, and the entire record herein, this Court DENIES Plaintiff's Motion to Strike the Administrative Record Supplement, GRANTS Plaintiff's Unopposed Motion to File Consolidated Reply Brief and to Exceed Page Limits Specified by Local Rule, DENIES Plaintiff's Motion for Summary Judgment, and GRANTS Intervenor–Defendanf's Motion for Summary Judgment.

BACKGROUND

This Opinion represents the latest chapter in plaintiff's quest to enjoin a gaming casino in Allegan County, Michigan. This case's history is, to say the least, lengthy, and the Court, for the sake of economy, recounts only those portions necessary to its holding.

I. Statutory Framework

Since the 1800s, Congress has enacted various statutes to regulate Indian affairs. One such initiative, the Indian Reorganization Act of 1934, was "designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage." See 1–1 Cohen's Handbook of Federal Indian Law § 1.05. Its animating purpose was therefore to "establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically." Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). To that end, the IRA authorizes the Secretary "to acquire ... any interest in lands" on behalf of groups that meet the statutory definition of "Indians." See 25 U.S.C. § 465. The IRA defines "Indians" as "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction."² 25 U.S.C. § 479. Land acquired pursuant to the IRA "shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired," 25 U.S.C. § 465, and may be designated as part of the Tribe's official reservation, id. at § 467.

Like the IRA, the Indian Gaming Regulatory Act of 1998 (the "IGRA") was enacted to promote "tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702(1). To facilitate this goal, the IGRA provides "a statutory basis for the operation of gaming by Indian tribes," id. and allows gaming on land that was taken into trust as part of the "initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process," 25 U.S.C. § 2719(b)(1)(B). A tribe may be formally acknowledged if it can "establish a substantially continuous tribal existence" and has "functioned as [an] autonomous entit[y] throughout history until the present." See 25 C.F.R. § 83.3(a).

II. Factual Background

The Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians is now a federally-recognized Indian tribe. Compl. ¶ 18. But this was not always the case. The Tribe, though in existence for over two centuries, has endured a lengthy struggle for federal recognition. It was initially recognized by the federal government between 1795 and 1855, during which time it was party to no fewer than sixteen treaties with the United States. Compl. ¶ 15; AR001987.³ This recognition was, however, short-lived. Beginning in 1855, the Tribe fell victim to a slew of federal policies that divested the Tribe of both its ancestral lands and its sovereign status. See Compl. ¶¶ 16–17.

The Tribe remained dispossessed for much of the 20^th century. See Compl. ¶ 16–18. In 1998, after decades of landlessness, the Tribe sought to reinstate its sovereign status under the modern federal acknowledgment procedures. Compl. ¶ 18. It succeeded. On October 23, 1998, the Secretary of the Interior proclaimed the Tribe an "Indian tribe within the meaning of Federal law," thus entitling the Tribe, and its members, to a bevy of federal protections. See 63 Fed.Reg. 56936–01 (1998).

In 2001, shortly after receiving federal acknowledgment, the Tribe identified a 147–acre tract of land in the Township of Wayland, Michigan, ("the Bradley Tract") that it wished to acquire as its "initial reservation" under the IRA. See AR001438. In its ensuing trust application, the Tribe requested permission to construct and operate a 193,500 square foot gaming and entertainment facility on the Bradley Tract. AR001445. The Tribe prevailed, and on May 13, 2005, the Department of the Interior issued a Notice of Final Agency Determination accepting the Bradley Tract into trust to "be used for the purpose of construction and operation of a gaming facility." 70 Fed.Reg. 25596–02 (May 13, 2005). In January 2009, the Secretary formally acquired the Bradley Tract on the Tribe's behalf. Decl. Chairman David K. Sprague Supp. Intervenor–Def.'s Mot. Summ. J. ("Sprague Decl.") ¶ 14 [Dkt. # 78–1]. Thereafter, the Tribe incurred approximately $195,000,000 in debt to develop the land. Sprague Decl. ¶ 18. Its efforts culminated in the opening of the Gun Lake Casino on February 10, 2011. Sprague Decl. ¶ 19.

III. Procedural Background

Plaintiff filed the present lawsuit on August 1, 2008 under section 702 of the Administrative Procedure Act ("APA"), arguing that because the Tribe was not formally recognized when the IRA was enacted in June 1934, the Secretary lacked authority to take the Bradley Tract into trust. Compl. ¶¶ 25–28. On August 19, 2009, I dismissed this action for lack of subject matter jurisdiction. Mem. Op. [Dkt. # 56]. Plaintiff appealed to our Circuit Court, which reversed and held that plaintiff indeed had standing to pursue his action. See Patchak v. Salazar, 632 F.3d 702 (D.C.Cir.2011). On June 18, 2010, the United States Supreme Court affirmed the Circuit Court's decision and remanded the case to this Court for adjudication on the merits of plaintiff's suit. See Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, –––U.S. ––––, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012).

Since this case was remanded, two events have altered the legal landscape. First, on September 3, 2014, the Secretary issued an Amended Notice of Decision concerning the Tribe's fee-to-trust application for two other parcels of land it sought to acquire. SAR000617–58.⁴ In so doing, the Secretary expressly considered, and confirmed, its authority under the IRA to take land into trust on behalf of the Tribe. See SAR000650 ("The [Tribe] unquestionably was under federal jurisdiction prior to 1934.... [And] the [Tribe's] under federal jurisdiction status remained intact in and after 1934."). Second, on September 26, 2014, President Obama signed into law the Gun Lake Trust Land Reaffirmation Act (the "Gun Lake Act" or "the Act"). Pub.L. No. 113–179, 128 Stat.1913, Sec. 2(a)-(b). The Act, which bears directly on the instant case, declares as follows:

(a) IN GENERAL.—The land taken into trust by the United States for the benefit of the Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians and described in the final Notice of Determination of the Department of the Interior (70 Fed.Reg. 25596 (May 13, 2005) ) is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.

(b) NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

Pub.L. No. 113–179, 128 Stat.1913, Sec. 2(a)-(b).

Thereafter, on October 31, 2014, the parties filed motions for summary judgment. For the following reasons, the Court GRANTS Intervenor–Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.

DISCUSSION

Plaintiff would have this Court disregard the Gun Lake Act and proceed directly to the merits of his challenge. I decline to do so....