ASKED & ANSWERED: Matthew Fletcher

By Steve Thorpe Legal News The U.S. Supreme Court will decide during its 2012 session whether the federal government properly took into trust land in Michigan's Allegan County for the Gun Lake Band of Pottawatomi to build a casino. The justices could hear arguments as early as March with a decision in June before the summer recess. The decision could have far-reaching implications about taking land in trust. Matthew L.M. Fletcher is a professor at the Michigan State University College of Law and director of the Indigenous Law and Policy Center. An acknowledged authority on Indian gaming law, he has followed the case closely. Thorpe: What in the appellate decision may have drawn the Supreme Court to the case? Fletcher: There are probably two reasons this case has attracted the court's attention. The first is federal sovereign immunity. The Quiet Title Act expressly reserves federal immunity from suits claiming title to land held in trust by the federal government, unlike the rest of the statute which gives plaintiffs a 12 year window to sue. The D.C. circuit allowed Patchak's suit to go forward because he argued he wasn't claiming title to the land, and so the lower court allowed the case to proceed under the Administrative Procedures Act, which I believe has a six year window. Federal immunity cases are important to the court. The second reason is the prudential standing question. The D.C. circuit held that Patchak had standing to sue. The court held that his concern about protecting the rural character of the community met the zone of interests test that implicates standing under the APA. The rural character of a community is sufficiently subjective to at least be a questionable basis for injury in fact. Standing questions also tend to attract the court's interest because of a general concern about the federal government's ability to govern without a lot of frivolous lawsuits barring the government's way. Thorpe: What case law might figure in the deliberations? Fletcher: The key cases are probably Block v. North Dakota and Lujan v. Defenders of Wildlife. Block involved a claim by North Dakota against the United States to a riverbed, and the court he'd that the Congress intended the QTA to be the exclusive means by which anyone, even a state, could assert title against the federal government. The QTA question here will address how far that exclusivity goes. A key constitutional question is whether Interior took the land into trust without valid statutory authorization. Can an individual like Patchak sue to reverse that decision, even after the agency acquires the land? Lujan is a classic Article III standing decision, and involved the parameters of the injury in fact prong of standing doctrine. If a plaintiff has not alleged a sufficiently specific injury redress able by a federal court, then there is no standing unless Congress enacts a statute specifically allowing for a suit. Patchak must allege a concrete, discernible injury. Does Patchak's concerns about the rural character of his community qualify as sufficiently concrete? Thorpe: The federal government and the tribe filed separate petitions requesting review of the lower court ruling. Does that affect the Supreme Court's approach to the case? Fletcher: The only petition of import to the court is the federal government's petition. The Gun Lake Band intervened below to ensure that every plausible argument to defend the trust land acquisition would be heard by the courts. The court grants 70 percent of the federal government's cert petitions, and the government's immunity and standing doctrine concerns are paramount. It shouldn't affect the decision however. An amicus brief filed by local units of government, for example Wayland schools, describing the positive beneficial aspects of the Gun Lake Casino's revenue sharing might have been critical, however, to demonstrate that Patchak is a bit of an outlier in his own community. I grew up in Wayland and I recall decades of efforts to attract business activity to the community, all of which would have altered the rural character of the area. Patchak is very much in the minority here, as the amicus briefs demonstrates pretty conclusively. Thorpe: Is there an outcome you see as likely and what are the potential effects of the court's decision? Fletcher: Statistically speaking, the court reverses more than two thirds of the cases it reviews. It typically grants cert with an eye toward reversal. Moreover, the federal government, as the ultimate repeat player before the Supreme Court, rarely loses. So those statistics weigh in favor of the government and the tribe. Indian law is different, though, and if the court sees this as a case involving nothing more than tribal interests, the statistics swing back dramatically the other way. Tribal interests prevail, even with the support of the federal government, in only a small percentage of cases, at least since the mid 1980s. I can't predict. It's a complete toss up. Thorpe: What happens if the court affirms? Fletcher: Then the government and the tribe must build a case at trial for why the Gun Lake Band qualifies as an entity eligible for federal trust acquisitions. Patchak's claim is that the tribe was not federally recognized in 1934 when Congress enacted the statute authorizing the government to take land into trust for the Indian tribes, and so the tribe cannot benefit. The question is open, however, and the Supreme Court in dicta has suggested that a tribe that should have been federally recognized in 1934 would be eligible. So the trial would focus on whether the Gun Lake Band, which is party to several treaties with the federal government, should have been federally recognized. Ironically, the fact that the tribe is a so called treaty tribe makes the case open and shut in favor of eligibility. Published: Mon, Jan 2, 2012

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