Godfrey & Kahn Updates
June 19, 2012
by Brian L. Pierson
On Monday, June 18, the U.S. Supreme Court (Court) decided the only two Indian law cases on its 2011-12 term docket. The Ramah Chapter decision represents a victory for Indian country while the Patchak decision is a major setback. The two decisions are summarized below. The Court will end its current term next week and recess until October.
The Patchak Decision Will Encourage Challenges to Fee-to-Trust Acquisitions
In Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak the Court held 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 that federal law barred 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 approved a application to acquire 147 acres of fee land in Wayland Township, Michigan, in trust for the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians (Tribe) in 2009 for gaming purposes. Patchak, a neighboring landowner, 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 June 18, 1934, the date the IRA was enacted, as required pursuant to the 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. On Monday, the 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 then-Assistant Attorney General Scalia's words, the QTA is "not addressed to the type of grievance which Patchak] seeks to assert," H. R. Rep. 94-1656, at 28 -- the QTA's limitation of remedies has no bearing. The APA's general waiver of sovereign immunity instead applies."
The Court rejected the argument that Patchak could not sue under the APA because the statute he challenged, the IRA, was not intended for his benefit:
"The prudential standing test Patchak must meet "is not meant to be especially demanding." Clarke v. Securities Industry Assn., 479 U. S. 388, 399 (1987). We apply the test in keeping with Congress's "evident intent" when enacting the APA 'to make agency action presumptively reviewable.' Ibid. We do not require any 'indication of congressional purpose to benefit the would-be plaintiff.' Id., at 399-400.7 And we have always conspicuously included the word "arguably" in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.' ...
And because §465's implementation encompasses these issues, the interests Patchak raises -- at least arguably -- fall 'within the zone . . . protected or regulated by the statute.'"
The decision is unwelcome news for Indian country. While the Court explicitly disclaimed any intention to address the merits of Patchak's Carcieri argument, the ruling opens the door to challenges to fee-to-trust acquisitions by private parties generally and, in particular, encourages challenges to the Secretary's authority under Carcieri. The APA's 6-year statute of limitations will permit challenges to any fee-to-trust decision within six years after the decision is made. Challengers can ignore the requirement of the federal regulations that objections be filed within 30 days after the Secretary publishes notice of intent to take land into trust. In her spirited dissent, Justice Sotomayor identified the potential adverse consequences of the Court's decision:
"The Court's opinion sanctions an end-run around these [QTA] vital limitations on the Government's waiver of sovereign immunity. After today, any person may sue under the APA to divest the Federal Government of title to and possession of land held in trust for Indian tribes -- relief expressly forbidden by the QTA -- so long as the complaint does not assert a personal interest in the land. That outcome cannot be squared with the APA's express admonition that it confers no 'authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.' 5 U. S. C. §702. The Court's holding not only creates perverse incentives for private litigants, but also exposes the Government's ownership of land to costly and prolonged challenges."
Individuals seeking to take advantage of the Court's decision will still have to establish at least an arguable claim that they are adversely affected by the proposed purposes for which land is taken into trust.
Ramah Chapter Wins Contract Support Cost Case
In Salazar v. Ramah Navajo Chapter, the Ramah Navajo Chapter (Chapter), a political subdivision of the Navajo Nation, had sued the Secretary of the Interior and others (DOI) to recover the full contract support costs (CSC) associated with programs operated by the Chapter under self-determination contracts with the DOI pursuant to the Indian Self-Determination Act (ISDA), which mandates that government agencies fully fund ISDA contracts. The DOI later failed to fulfill its contract with the Chapter because Congress did not appropriate sufficient funds and capped appropriations at a level well below the CSCs. The DOI argued that the ISDA's provision that payments be "subject to appropriations" relieved the government of liability for CSC. The Court rejected the government's argument, holding that the government contracts were binding, notwithstanding the Congress' failure to appropriate sufficient funds. The solution to the government's dilemma, according to the Court, lay with the Congress:
"On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of "full" funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The Government's frustration is understandable, but the dilemma's resolution is the responsibility of Congress. ...
For the period in question, however, it is the Government -- not the Tribes -- that must bear the consequences of Congress' decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but insufficient to pay all the contracts the agency has made."
While the Court's decision will not enable the BIA to fully fund CSCs, it will enable tribes to sue to recover any shortages. The justices' positions in the Court's 5-4 decision defy attempts to identify a pro-Indian country or anti-Indian country alignment pattern. They majority included justices Sotomayor, Scalia, Kennedy, Thomas and Kagan. The dissenters were Roberts, Ginsburg, Breyer and Alito.