The U.S. Supreme Court is considering a case that has the possibility of calling into doubt the legality of many Indian casinos that already operate in the United States.
However, one justice, Anthony Kennedy, thinks the court may be wasting its time for that very reason: the impracticality of closing existing Indian casinos that have been operating for years.
The casino in question is one operated by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, aka the Gun Lake Tribe, near Grand Rapids, Michigan. It has been operating for three years, and Justice Kennedy worries that the plaintiff, a neighbor of the casino, David Patchak, waited too long to file the lawsuit. Last month, Kennedy commented, “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.”
Patchak has challenged the method the government used to put the land into trust for the tribe. He used the 2009 Carcieri v. Salazar ruling by the court that tribes recognized after 1934 cannot put land into trust. He began his suit while the casino was under construction, but the appeals process delayed the case.
Patchak’s attorney has argued that he filed the case before the land was put into trust and that it is not his fault that the casino was built while his case went through the courts. “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 III gambling could be overturned,” he argued.
A ruling in favor of Patchak would have wide ramifications for other tribal casinos. For example, in California’s Santa Ynez Valley, such a ruling would give new hope to opponents of the proposal of the Santa Ynez Band of Chumash Indians to put 1,400 acres into trust that would add to its existing 130-acre reservation. The tribe has said that it doesn’t intend to use the land for a casino, but no law would prevent it from doing so if it changed its mind. Opponents of a casino in the area have filed friend-of-the-court briefs in the Gun Lake case.
On the other hand, if the Supreme Court rules against Patchak that would make it harder for private citizens to oppose putting land into trust.