Patchak is the latest in a troublesome trend

The June U.S. Supreme Court ruling involving Michigan landowner David Patchak and the Match-E-Be-Nash-She-Wish Band of Potawatomi, owners of the Gun Lake Casino, was the continuation of a troublesome theme.

“Anytime, these days, there’s a case before the U.S. Supreme Court that affects tribal interests, chances are we’re going to lose,” said John Echo Hawk, a Pawnee and executive director of the Native American Rights Fund. “There’s always hope, but chances aren’t good.

 “That’s happened again,” Echo Hawk said of the court’s 8-1 vote to remand to the U.S. Court of Appeals Patchak’s lawsuit challenging the U.S. Department of Interior’s decision to take land into trust for Wayland Township casino.

“Generally in the last several years it’s been more difficult to win cases and that’s driven primarily by changes in the makeup of the court,” Echo Hawk said. “We just don’t fare as well as we used to because they’re interpreting federal Indian law as we knew it much differently.

“Those cases, once decided, become precedents and they have to be applied by lower federal court judges.

One of the downsides of tribal government gambling is the growing perception of tribes not as culturally rich sovereign governments, but economic entities and purveyors of gambling.

This erroneous perception of tribes by the public, policymakers and elected officials is blamed for Supreme Court rulings such as Salazar v Patchak and Carcieri v Salazar, decisions which seriously impact the ability of tribes to acquire and place land in trust not only for casinos, but schools, health care, housing and other government purposes.

The image of tribes as casino-rich business operations also is blamed for the 2007 federal Court of Appeals ruling in the case of the San Manuel Bingo and Casino that stripped tribes of their exemption from the National Labor Relations Act.

And it comes as no surprise to Indian scholars that the IRS is conducting indiscriminate audits of tribal government programs and services, actions that many believe violate sovereign self-governance protections under the commerce and treaty provisions of the U.S. Constitution.

“Tribes have a real problem in Washington, and across the country,” Jana McKeag, an Oklahoma Cherokee and principal of Lowry Strategies of Alexandria, Va., told GamblingCompliance.com. “Gambling has defined tribes in the United States for the past 10 years, or longer.

“We need to redefine how people think about tribes as governments, culturally and legally.

“We’re at a seminal point in tribal history,” McKeag said. “If we’re not careful, policies crucial to the very existence of tribes as governments are in danger of eroding, very quickly.”

Staunch supporters of tribal issues in the self-determination era in the 1970s, the Supreme Court under the leadership of Chief Justices Earl Warren (1953 to 1969) and Warren Burger (1969 to 1986) mirrored bipartisan congressional support for Indian governments.

The high court took an about face on indigenous issues with the administrations of Chief Justices William Rehnquist (1986 to 2005) and John Roberts (2005 to present).

It was during the Rehnquist administration that Native American Rights Fund and National Congress of American Indians launched the Tribal Sovereignty Protection Initiative and Tribal Supreme Court Project.

“We needed to get people working more closely together to see if we could refine and organize our legal briefs to speak to the conservative court in a way they would understand,” Echo Hawk said.

“We have a huge network of tribal attorneys and law professors and Supreme Court practitioners that look at each of these cases and lend their advice and assistance to the tribes.

“There’s also been the project on the judiciary, to educate federal judges on Indians and Indian law. We’re always trying to engage the judges outside the usual court setting to see if we can’t educate them more about who we are and what our rights are, so they can understand the consequences of their decisions.”

The tribes are 1-8 when it comes to rulings under the Roberts administration, Echo Hawk said. And the general advice to tribes is not to pursue issues at the federal level and particularly with the Supreme Court.

“We might have some success in the lower courts but the Supreme Court reaches down and picks them up for review and reverses them,” Echo Hawk said. “We don’t have control other than trying to stay out of court completely.

“Generally our advice is, ‘Don’t go there. We’ll lose.’ We have no other choice but to attempt to resolve issues either through legislation or administration action.”

“The Supreme Court once again has directly challenged Congress on Indian affairs,” said Matthew Fletcher, Michigan State University law professor and citizen of the Little Traverse Bay Bands of Odawa Indians. “How many times has the Court said in the last 25 years, ‘We’ve made our decision, now let Congress fix it if they don’t like it.’

“Congress needs to step up and take charge of Indian affairs. Right now, the Supreme Court calls the shots.”

It doesn’t help that none of the approximately 838 U.S. federal judges is an American Indian.

The only consistent support for tribes on the Roberts court is from Justice Sonia Sotomayor.

“She’s really become an advocate for us. She’s taken us on as a priority,” Echo Hawk said. “She’s been out to Indian country and met with tribal leaders. She’s learning all about us and doing what she can.”