Ironies of the Patchak Decision

Here are some interesting ironies of the reasoning and outcome in Patchak.

First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:

Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.

But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:

To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”

Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.

Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).

In another case, long ago (145 U.S. 317), the SCOTUS worried about the impacts of a tribal lawsuit on private development:

By the foresight and sagacity of this defendant, this scrip was located upon lands within the limits of one of the most thriving and rapidly growing cities of the west. That which was wild land 30 years ago is now intersected by streets, subdivided into blocks and lots, and largely occupied by persons who have bought upon the strength of [the defendant’s] title, and have erected buildings of a permanent character upon their purchases. The bill charges all these with notice of the defect in [the defendant]’s title, and prays that the conveyances to them be declared null and void….

That case, recognizing the “foresight and sagacity” of developers in choosing Omaha, Nebraska as a place to settle, rejected an Indian’s suit for ejectment under a theory of laches. The SCOTUS later used this case to protect additional economic development in a more recent case (544 U.S. 197):

The District Court, in the litigation dormant during the pendency of Oneida II, see supra, at 1487–1488, rightly found these pragmatic concerns about restoring Indian sovereign control over land “magnified exponentially here, where development of every type imaginable has been ongoing for more than two centuries.”

Gun Lake’s development isn’t 200 years old, or even 27 as in the first case, but it’s all the Tribe has. And, frankly, Wayland and the surrounding communities heavily depend on it. Why doesn’t this development matter in Patchak? Will it matter the longer the case goes on (no, just ask the Ysletas)

Third, the question of abuse of the judicial process should be at issue here and in future cases, but probably won’t be (thanks to J. for raising this). Recall the Ninth Circuit’s sanctioning of Howard Shanker last week for abuse of the judicial process. He counseled his clients that they could win a claim against the Arizona Snowbowl where previous claims against the development had been defeated. He paid a price for that.

Patchak was part of a previous lawsuit — MichGO v. Salazar — that previously adjudicated the Secretary’s decision to take land into trust for the Gun Lake Tribe. Only at the 11th hour did he sue under a new theory (one that was available at the beginning of the MichGO suit but was not pursued — in other words, Carcieri). Plus, Patchak is represented by the same firm that started all of these suits against the Michigan Potawatomi tribes back in the 1990s.

No abuse of process in Patchak. How about when someone sues in the 30 day window after the Secretary publishes intent to take land into trust, loses, and then sues again five years, 364 days later on same or similar theories?

I’m guessing no abuse of process. And no laches. Opposition to tribal interests is not often going to be interrupted by these problems, problems that otherwise interrupt tribal claims. And that brings us the fourth irony.

Fourth, because Indian tribes remain under a state of pupilage, virtually any American neighbor can sue to prevent efforts by Indian tribes to be self-determinative.

The language of Felix v. Patrick is telling, and I think still relevant:

Whatever may have been the injustice visited upon this unfortunate race of people by their white neighbors, this court has repeatedly held them to be the wards of the nation, entitled to a special protection in its courts, and as persons ‘in a state of pupilage.’ Congress, too, has recognized their dependent condition, and their hopeless inability to withstand the wiles or cope with the power of the superior race, by imposing restrictions upon their power to alienate lands assigned to them in severalty, either by making their scrip nonassignable, as in this case, or by requiring the assent of the president to their execution of deeds…. [T]heir very analogy to persons under guardianship suggests a limitation to their pupilage, since the utmost term of disability of an infant is but 21 years, and it is very rare that the relations of guardian and ward under any circumstances, even those of lunacy, are maintained for a longer period than this.

Indian lands have been lost — and that’s often legally justified by the state of pupilage that exists over Indians.

Indians cannot sue — and that’s legally justified by the state of pupilage that exists over Indians.

Most people’s business developments cannot be challenged unless a statute exists specifically allowing such a challenge. But tribal business developments can be challenged because of the state of pupilage that exists over Indians (I think).