The U.S. Supreme Court agreed on Monday to jointly hear two
petitions over a decision by the federal government to take the
Bradley Tract, a parcel of Indian-owned land in Michigan, into
trust. The petitions were brought by Interior Secretary Kenneth
Salazar and by the Match-E-Be-Nash-She-Wish Band, an Indian
group that asked the secretary to take its land into trust so
they could establish a casino on it.
How did this issue arise?
In May 2005, the Interior Department said it would take the
Bradley Tract into trust. Litigation brought by an
anti-gambling group delayed the implementation of the
transaction. The current suit began in 2008 when David Patchak,
a private individual who lives near the Bradley Tract, filed a
complaint with the U.S. District Court for the District of
Columbia alleging that a casino would destroy the peace and
quiet of the area and create pollution.
In August 2009, the district court dismissed Patchak's
case. In January 2011, the U.S. Court of Appeals for the
District of Columbia, overturned that decision and remanded the
case to the district court. Salazar and the
Match-E-Be-Nash-She-Wish Band then made an interlocutory
petition to the U.S. Supreme Court, a move that Patchak
What did the district court decide?
U.S. District Court Judge Richard Leon dismissed Patchak's
case, finding that he lacked prudential standing under a
"zone-of-interests" test that the U.S. Supreme Court introduced
in the 1970 case, Association of Data Processing Service
Organizations v Camp. The test requires that the plaintiff, in
addition to having constitutional standing under Article III,
must also seek to protect an interest that "is arguably within
the zone of interests to be protected or regulated by the
Leon found that Patchak had no interest the Indian
Reorganization Act, which serves "to protect, and promote,
tribal self-determination and economic independence."
What did the appeals court decide?
In January 2011, the D.C. Circuit Court reversed, finding
that Patchak did have prudential standing. In a unanimous
decision, the three-judge panel found that Patchak's prudential
standing flowed from the limits imposed by the IRA, as
interpreted by the Supreme Court in Carcieri v Salazar. In
Carcieri, a 2009 Indian land case in Rhode Island, the Supreme
Court found the Secretary's authority under the IRA was limited
to Indian tribes under federal jurisdiction in 1934.
The circuit court found Carcieri put limitations on the
Secretary's authority to put property into trust for the
purposes of gaming, and that those limitations offered
protection from gaming to those near a proposed casino. As a
result, the court found that members of the surrounding
community, like Patchak, were well-positioned to police the
federal government's actions under the IRA.
Finding that Patchak had standing, the court then
considered whether the federal government was nonetheless
immune from suit. The court found that a waiver of sovereign
immunity under Section 702 of the Administrative Procedure Act
would apply to this case provided that the Quiet Title Act,
which prohibits such waivers in Indian trust cases, did not bar
Rejecting the claim of Secretary Salazar, the court found
that Patchak had not brought his suit under the Quiet Title
Act. Creating a split with the jurisprudence of the 9th, 10th
and 11th circuits, the court found that the Quiet Title Act
only deals with plaintiffs claiming ownership (as opposed to
other interests) over land. Because Patchak had no ownership
interest in the Bradley Tract, the court found that the Quiet
Title Act did not apply. As a result it concluded that the
federal government was not immune from Patchak's suit. The
court reversed the district court and remanded the case.
What is the question before the U.S. Supreme Court?
Can prudential standing be based on the plaintiff's ability
to police an agency's compliance with the Indian Reorganization
Act? Does the waiver of sovereign immunity under Section 702 of
the Administrative Procedure Act apply in a suit against the
federal government over Indian trust land?
What happens next?
The Supreme Court will schedule a date for hearing oral
arguments in the case.
The cases are Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, U.S. Supreme Court, no. 11-246 and Salazar
v. Patchak, U.S. Supreme Court, no. 11-247.
For the Match-E-Be-Nash-She-Wish Band: Patricia Millett of
Akin Gump Strauss Hauer & Feld.
For Salazar: Donald Verrilli, U.S. Solicitor General.
For Patchak: David Ettinger of Warner Norcross &
(Reporting by Rebecca Hamilton)
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