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Argument preview: Seeking to undo casino land deal

On Tuesday, April 24, the Court will hear arguments in a case challenging the federal government’s decision to put into trust land purchased by an Indian Tribe in Michigan, in order to facilitate the Tribe’s building of a casino.  The case raises questions of sovereign immunity, Indian law, and administrative law.


David Patchak, the respondent in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, Nos. 11-246 & 11-247, owns land in southwestern Michigan.  One of his neighbors is a Tribe of Pottawatomi Indians generally referred to as the Gun Lake Band.  After the Band received official recognition from the federal government in 1993, it purchased some land near Mr. Patchak’s home, in the hopes of building a casino.  As part of that effort, it asked the federal government to take title to the land and hold it in trust for the Tribe, a move that facilitated the development of the casino by effectively taking the land out of the jurisdiction of the state and local governments (although the Tribe’s right to run a casino is still regulated by federal law).

Mr. Patchak subsequently sued the federal government under the Administrative Procedures Act, alleging that the Tribe did not qualify to have its land taken into trust and seeking an order requiring the federal government to give the property back to the Tribe (thereby restoring local jurisdiction over the casino project).   The federal government and the Tribe objected on two grounds: (1) the suit was barred by the federal government’s sovereign immunity as a consequence of the federal Quiet Title Act; and (2) Mr. Patchak did not have “prudential standing” to object to the legality of the trust transfer.  The D.C. Circuit eventually sided with Mr. Patchak, and the federal government and the Tribe successfully petitioned for certiorari.

Sovereign immunity issue

As a general matter, the federal government enjoys sovereign immunity against private lawsuits.  But it has partially waived that immunity in two statutes relevant to this case.  The Quiet Title Act allows individuals to sue the federal government “to adjudicate a disputed title to real property in which the United States claims an interest.”  However, the statute then says that this waiver “does not apply to trust . . . Indian lands,” which is the kind of land at issue in this case.  Thus, Mr. Patchak could not bring his suit under the Quiet Title Act.

Instead, he relies on a waiver of sovereign immunity in the Administrative Procedures Act (APA), which generally allows suits against government action that is arbitrary, capricious, or otherwise not in accordance with law.  However, that statute also has exceptions, including a provision that says “nothing herein . . . affects other limitations on judicial review.”

The basic question in the case is whether the carve-out for Indian trust land in the Quiet Title Act amounts to a “limitation on judicial review” that thereby precludes suit under the APA.  In other words, when Congress refused to waive immunity under the Quiet Title Act for suits over title to Indian trust land, was it implicitly forbidding such suits under any statute (including the APA) or just suits under the Quiet Title Act itself?

The Tribe and the government argue that the carve-out reflects Congress’s decision to preclude any suit, under any statute, seeking to divest the United States of title to Indian trust land.  Mr. Patchak’s suit, they say, is an attempt to do an end run around that limitation.

Mr. Patchak, on the other hand, argues that the limitation in the Quiet Title Act simply precludes someone from bring a quiet title action against Indian trust land, but he is not bringing such a suit – he is not asking that the land be transferred to him; he is simply asking that the transfer from the tribe to the federal government be undone.  So he is not attempting to do an end run around the Quiet Title Act limitation, but is merely bringing a different kind of suit that is separately authorized by the APA.

Prudential standing

Even if the suit is not barred by sovereign immunity, Mr. Patchak still must have “prudential standing” to challenge the trust transfer.  To bring any suit in federal court, a plaintiff must have “Article III” standing, meaning he must show that he is injured in some way by the defendant’s allegedly illegal conduct.  That requirement is not contested here – Mr. Patchak has alleged that the transfer has resulted in a fundamental alteration in the character of his community, including greater traffic and more crime.  But in addition to Article III standing, a plaintiff must have “prudential standing,” meaning that his injuries must fall within the “zone of interest” of the statute he is trying to enforce.  For example, a consumer can sue a telephone company to enforce a consumer protection statute, but the company’s competitors would lack prudential standing to do so, even if they could clearly show that their competitor was violating the law.  That is, the companies’ competitive interests are not within the “zone of interests” protected by the consumer statute.

Here, Mr. Patchak alleges that the federal government violated a provision of the Indian Reorganization Act.  He says that the Gun Lake Band does not qualify under that Act to have land taken into federal trust on its behalf.

The Band and the government argue that the limitation Mr. Patchak seeks to enforce was not enacted for his benefit, but rather for the benefit of state and local governments who lose jurisdiction over any land taken into federal trust.  Mr. Patchak argues that the limitation is also intended to protect members of the broader community who are affected by the trust decision, given that they may (as in this case) have the character of their community dramatically affected by the trust decision.

An historic oral argument

One might think that this is not the stuff of an historic oral argument.  But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.

Assistant to the Solicitor General Eric Miller will argue on behalf of the federal government.  Matthew T. Nelson, of Warner Norcross & Judd, from Grand Rapids, Michigan, will represent Mr. Patchak.

Recommended Citation: Kevin Russell, Argument preview: Seeking to undo casino land deal, SCOTUSblog (Apr. 20, 2012, 11:46 AM),