Yesterday the Supreme Court granted cert in Salazar v. Patchak (S. Ct. 11-247) and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (S. Ct. 246). Both cases, which the Court consolidated, concern the D.C. Circuit’s decision earlier this year in Patchak v. Salazar. [Opinion PDF].
Judge A. Raymond Randolph’s opinion held that the plaintiff, a property owner, had standing to challenge the Interior Department’s decision to take title to a neighboring plot of land owned by an Indian tribe so that the tribe could build a casino on it. The plaintiff claims the Interior Department had no authority to take title to land on behalf of Indian tribes that were not recognized in 1934 when the Indian Reorganization Act was enacted.
The tribe and the Secretary of the Interior argue that the plaintiff’s suit is barred by sovereign immunity because the general waiver of sovereign immunity for non-monetary relief in section 702 of the Administrative Procedure Act contains an exception if the relief sought is “expressly or impliedly” forbidden by “any other statute that grants consent to suit.” Petitioners argue the Quiet Title Act is just such a statute. The QTA preceded the APA, and the QTA’s provision for quiet title actions against the government expressly disclaims any application to suits over “trust or restricted Indian lands.”
In any event, the petitioners argue, the plaintiff lacks prudential standing to sue because his interest in preventing the casino’s construction does not fall within the zone of interests protected by the Indian Reorganization Act.
With regard to the Quiet Title Act, the D.C. Circuit held that the plaintiff’s suit to prevent the government from taking title to Indian land was not a true quiet title action because he did not seek to establish his own title to the land in question. Therefore, the APA’s retention of sovereign immunity for quiet title actions involving Indian land was inapplicable. Judge Randolph noted that in holding the Quiet Title Act inapplicable to Patchak’s suit, the D.C. Circuit was splitting with the Ninth, Tenth, and Eleventh Circuits.
As for the zone-of-interests question, Judge Randolph’s opinion held that test focuses “not on those whom Congress intended to benefit, but on those who in practice can be expected to police the interests that the statute protects.” Thus, the plaintiff “did not have to show that the Indian Reorganization Act was meant to benefit those in his situation.”
From the D.C. Circuit Opinion:
This much is apparent from the [Quiet Title] Act’s pleading requirement. “The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, [and] the circumstance under which it was acquired . . ..” 28 U.S.C. § 2409a(d). . . . This provision tells us what constitutes an “action under this section.” 28 U.S.C. § 2409a(a). It is an action in which the plaintiff is claiming an interest in real property contrary to the government’s claim of interest. Neither the brief of the Secretary nor that of the Band confronts this language.
As a practical matter it would be very strange to deny Patchak standing in this case. His stake in opposing the Band’s casino is intense and obvious. The zone-of-interests test weeds out litigants who lack a sufficient interest in the controversy, litigants whose “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.”
- Cert Petitions Filed in Indian Land Case (Sept. 16, 2011)
(Hat Tip: Courthouse News Service)