Legal Alert - Bureau of Indian Affairs Proposes Regulations in Light of Patchak
by Harsh P. Parikh and Heidi McNeil Staudenmaier
Last year’s decisive (8-1) decision by the United States Supreme Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (“Patchak”) appeared to be a major blow to tribal gaming and other fee-to-trust acquisitions. Patchak seemed to open up challenges to fee-to-trust transfers to a broader group of plaintiffs and significantly extend the time for filing such suits. The Court’s decision in Patchak, when combined with the Supreme Court’s 2009 decision in Carcieri v. Salazar, 129 S. Ct. 1058, raises several complex issues, including (1) whether the litigation floodgates were opened to question newly acquired Indian land trust acquisitions, and (2) whether the trust transfers would remain in limbo during the pendency of litigation. Most gaming observers at the time agreed that Patchak would certainly delay development on newly acquired tribal lands.