Indian Nations Law Update - July 2012

Supreme Court Decision Will Hurt Tribes' Efforts to Restore Land Base

On June 18, the United States Supreme Court (Court) ruled in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 2012 WL 2202936, that a private landowner complaining of potential adverse impacts from a proposed tribal gaming enterprise could sue to challenge a decision by the Secretary of the Interior (Secretary) to acquire the site of the enterprise in trust for the Tribe. It made no difference, the court ruled, that the Secretary had already acquired the property and federal law prevented challenges to the government's title. Justice Sotomayor was the sole dissenter in the Court's 8-1 ruling. The Secretary, pursuant to his authority under the Indian Reorganization Act (IRA), had acquired 147 acres of fee land in Wayland Township, Michigan, in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Tribe) in 2009 for gaming purposes. Patchak, a neighboring land owner, had sued under the Administrative Procedures Act (APA), asserting standing based on alleged adverse impacts on his property from gaming. Patchak challenged the Secretary's authority to acquire the land on the ground that the Tribe was not under federal jurisdiction as of the date the IRA was enacted, as required pursuant to the Supreme Court's 2009 decision in Carcieri v. Salazar. While the suit was pending, the government took title to the land in trust for the Tribe. The district court then dismissed under the Quiet Title Act (QTA), which waives the immunity of the United States to permit suits challenging the government's title but explicitly excludes suits challenging title to Indian lands. The D.C. Circuit Court of Appeals reversed and reinstated Patchak's suit, holding that the QTA exclusion did not apply because Patchak was not asserting his own title in the land. The Supreme Court affirmed:

"Patchak's lawsuit therefore lacks a defining feature of a QTA action. He is not trying to disguise a QTA suit as an APA action to circumvent the QTA's "Indian lands" exception. Rather, he is not bringing a QTA suit at all. He asserts merely that the Secretary's decision to take land into trust violates a federal statute -- a garden-variety APA claim. See 5 U. S. C. §§706(2)(A), (C) ("The reviewing court shall . . .hold unlawful and set aside agency action . . . not in accordance with law [or] in excess of statutory jurisdiction [or] authority"). Because that is true -- because in...