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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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