COMMENTARY: A matter of trust: Court decision could reopen casino land use decisions

An important U.S. Supreme Court decision issued June 18 garnered only scattered attention with a spate of initial news stories and analyses within Indian country publications.

The case bearing the colorful name Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak deserves — and eventually will receive — broader notoriety in the walk-up to the October start of the next High Court term.

The issue before the court was whether David Patchak, who owned land adjacent to recently acquired Indian Trust land, had legal standing to challenge, and potentially stop, that designation.

On the surface, the decision was a simple one. Patchak’s original suit argued the federal government could not put the land in trust, and even if it could, the U.S. Interior Department had not considered harms flowing from intended use of the property. 

The federal district court, however, never reached the substance in Patchak’s arguments against the location of the band’s casino. Instead, the court declared that Patchak lacked standing to challenge the U.S. Secretary of the Interior’s grant of trust status to the area, known as the Bradley property.

The U.S. Court of Appeals for the District of Columbia slapped down the trial court on the standing issue, and further rejected arguments that assertions of sovereign immunity protected the federal government and the band from litigation.

Upholding the D.C. Circuit, the 8-1 U.S. Supreme Court decision awarded standing to Patchak, sending the case back to the district court for new consideration. 

Justice Elena Kagan crafted the majority opinion, joined by every other member save for Sonia Sotomayer, the only other justice appointed by President Barack Obama.

Kagan’s 18-page ruling includes a bit of humor in a court not widely noted for that. She wrote that Justice Antonin Scalia — a Ronald Reagan appointee — “in a former life as Assistant Attorney General” had argued against grants of sovereign immunity beyond narrow instances authorized in law.

Kagan said she used his rationale “not as legislative history, but only for its persuasive force.”

Levity aside, Patchak reinvigorates the right of adjacent property owners — regardless of ethnicity — to raise concerns about use of trust lands, whether those worries are, as the Supreme Court’s opinion put it, “economic, environmental or aesthetic.”

Further, the decision might reopen discussion of Interior Department decision patterns. The band did not gain federal recognition as a tribe until 1999 — long after passage of the Indian Reorganization Act of 1934. Congress has not formally granted authority to grant land trust status to tribes recognized post-1934. 

Thus, at least some trust decisions of the last quarter century or more could come under fresh scrutiny in the wake of Patchak.

Placing land into trust is a “federal action,” which is supposed to require application to the National Environmental Policy Act, but that stricture has been ignored or undermined frequently over recent decades. The Bureau of Indian Affairs (BIA) has frequently granted categorical exclusions from NEPA to lands headed for, or already granted, trust status (making that area “Indian country”). 

To be clear: If a tribe and the U.S. government take land into trust for a new casino, an environmental assessment under NEPA is required to determine if an environmental impact statement is needed before finalizing trust status.

A case can be made that NEPA has been violated, when tribal applications list the trust purpose as “economic development” — a means to mask the intended use for gaming.

If officials with Interior’s Bureau of Indian Affairs knowingly granted categorical exclusions avoiding NEPA while aware that gaming was in fact the intended purpose, then the law was violated.

Some leaders of smaller American Indian tribes believe many trust decisions favoring larger tribes have been fraudulent, awarding unfair market advantages to the “big boys” over the smaller entities. 

Given this initial hint in Patchak, an often-divided court may be ready to grant a nearly unified look at contentions that many modern trust acquisitions have been marred by inattention to environmental policy, dismissal of legitimate land use limitations, and insensitivity to the just economic liberty interests of America’s smaller Indian tribes.