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Indian Nations Law Update - May 2012

May 14, 2012

Supreme Court Puzzles Over Patchak Fee-to-Trust Case

The Supreme Court heard oral arguments April 24 in Patchak v. Salazar. The Secretary of the Interior, pursuant to his authority under the Indian Reorganization Act (IRA), had accepted 147 acres of fee land in Wayland Township, Michigan, into trust on behalf of the 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 and challenging the Secretary's decision 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, whereupon the district court 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 states that such waiver does not apply to tribal trust lands. The D.C. Circuit Court 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.

During oral arguments justices expressed dissatisfaction with Patchak's theory that anyone with standing under the APA could challenge a decision by the Secretary of the Interior to take land into trust and seek an order stripping the government of title, at any time within the APA's six year limitation period, provided only that the plaintiff not seek to establish his or her own title to the land. The court seemed equally unhappy, however, with the government's argument that a litigant who brought a timely action under the APA challenging a fee-to-trust acquisition would suddenly lose the right to sue under the QTA if the government took title while the suit was pending. Several justices implied that the 30 day public notice that the Secretary is required, under federal regulations, to publish before taking title, was not a satisfactory solution because, in the event of a challenge, the Secretary was not required to delay taking title until final resolution.

If the court rules for the government, current fee-to-trust procedures would be unchanged. The burden would be on challengers to sue within 30 days of the federal notice and seek an injunction to prevent the Secretary from taking title. If the court rules in Patchak's favor, then persons, like Patchak, who object to the uses of the land but do not assert their own title, would have six years to sue to unwind a fee-to-trust acquisition, assuming they can establish standing under the APA.

Godfrey & Kahn Assisting Great Lakes Governors and Premiers with Framework for Communications with Tribes and First Nations

In 2005, the U.S. governors and Canadian premiers of states and provinces within the Great Lakes-St. Lawrence Basin entered into the "Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement." Goals identified by the Agreement include restoration and preservation of Great Lakes waters and prevention of adverse impact of withdrawals from the Great Lakes. Article 504 of the Agreement mandates consultation with First Nations and federally recognized tribes. The Council of Great Lakes Governors, on behalf of the Great Lakes-St. Lawrence River Water Resources Regional Body, has retained Godfrey & Kahn to assist with the establishment of a more formal framework for Section 504 consultations. Tribes and First Nations within the Great Lakes-St. Lawrence Basin should expect to be contacted in the coming months for input relating to the proposed framework.

White House Recognizes Tribe's Environmental Initiatives

Forest County Potawatomi Chairman Harold "Gus" Frank was one of eight individuals honored at the White House on April 12th as a "Champion of Change." According to Nancy Sutley, Chair of the White House Council on Environmental Quality, the awardees were selected for "proving that sustainable practices work for companies' bottom lines, and work for the health of American communities." Chairman Frank's tribe was hailed for implementing significant energy efficiency projects and increasing the use of renewable energy on the reservation. The tribe's investment will not only reduce its overall energy use and carbon footprint but will also save the Tribe money. Godfrey & Kahn is proud to be part of the tribe's environmental team, working with the tribe's in-house counsel and officials to take advantage of state and federal grants, tax incentives and other programs designed to promote energy efficiency and increase use of renewable energy.

For more information on Godfrey & Kahn's services to tribes in the areas of environmental law and renewable energy, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

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