Gun Lake Casino lawsuit may not be over

October 3, 2014
| By Pete Daly |
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Congress has passed and President Obama has signed legislation that requires the “prompt dismissal” of a lawsuit filed against the federal government in 2008 by David Patchak, which has been threatening the continuing operation of the Gun Lake Casino.

However, Sharon Eubanks, who is representing Patchak in U.S. District Court for the District of Columbia, said “litigation is still on-going. We will address our legal and factual arguments to the court.” She would not provide any further comment.

Eubanks is a member of Edwards Kirby, a law firm headed by former North Carolina congressman and one-time presidential hopeful John Edwards. The firm has offices in Washington and Raleigh, N.C.

Last week the Gun Lake Tribe of Pottawatomi Indians was celebrating the September enactment of Senate Bill 1603, the Gun Lake Trust Land Reaffirmation Act. It was sponsored by U.S. Sen. Debbie Stabenow, D-Michigan, to ratify and confirm the actions of the Secretary of the Interior in taking the tribe’s Wayland Township land into trust so the tribe could build a casino there. The act also states specifically that “an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

Christopher Hastings, a professor at Cooley Law School in Grand Rapids, said some may argue that Stabenow’s legislation conflicts with Article 1, Section 9 of the U.S. Constitution, the Bill of Attainder Clause. According to, it is intended to separate the powers among the three branches of government by guarding against the legislative exercise of power, which rightfully belongs to the courts.

Hastings said he believes the clause has been applied mainly to criminal cases in the past, not civil litigation.

However, he noted that Congress has a track record of ending litigation through legislation, although he commented that “what’s a little bit odd about this legislation is that it actually directs the District Court judge to dismiss the action, and that’s a little unusual.”

Hastings said he surmises if Patchak’s lawyers are going to fight Senate Bill 1603, “the argument here would have to be that the legislation essentially punishes Mr. Patchak.”

He added the key to the issue will be the interpretation of the Bills of Attainder in relation to the Stabenow legislation.

Stabenow did not respond to requests for an interview, but her press secretary, Rachel McCleery, told the Business Journal in an email the bill “was written to clarify Congressional intent that the Department of Interior is authorized to take land into trust for tribes.”

She said it is “fairly common for Congress to pass legislation that impacts current litigation either through changes in the law or by clarifying Congressional intent. In this instance, the Department of Interior took land into trust for the Gun Lake Tribe in 2009 following the D.C. Circuit Court’s decision in MichGO v. Kempthorne which affirmed the department’s right to take such action. The Gun Lake Tribe Reaffirmation Act codifies the department’s actions.”

McCleery added the “legislation was strongly supported by members of the community and was passed unanimously in the Senate, and by a wide bi-partisan majority in the House (including a majority of the Michigan delegation).”

The Gun Lake Casino opened in 2011 while the Patchak litigation continued, revolving around the question of whether or not he had the legal standing to file the suit against the federal government.

Last week the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, said the legislation “bars current and future legal challenges to the status of the Tribe’s 147-acre parcel of land” in Bradley, a community in Wayland Township.

“This is a historic day for the Tribe and Indian Country. This new law not only reaffirms the trust status of our land, but also permanently ends the frivolous legal challenges that our Tribe and the local community have faced for more than 10 years,” said D.K. Sprague, chairman of the Gun Lake Tribe. “We are pleased that Congress and the President of the United States have vindicated our position.”

The tribe said Stabenow’s bill was co-sponsored by Sen. Carl Levin, and noted the land “is within Rep. Fred Upton’s congressional district and his leadership led to securing swift passage in the U.S. House.”

The tribe quoted Upton as saying it is “a victory for jobs and the economy here in Southwest Michigan.”

“The Gun Lake Tribe has created more than 1,000 jobs here in Allegan County and has shared revenues (from the Gun Lake Casino) with the local municipality and schools,” said Upton.

The tribe also quoted Stabenow as saying the legislation “addresses a technical issue created by a recent court decision, and I was pleased to support the community in passing this bill to promote economic development in the region.”

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