"On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit disagreed with three other federal circuits and held that sovereign immunity is waived for a challenge to a Department of the Interior decision to take land into trust for an Indian tribe, so long as the plaintiff itself is not claiming title to the land. The decision is Patchak v. Salazar et al., No. 09-5324. Because Interior can usually be sued in the District of Columbia, Patchak not only creates a circuit split but also opens a ready forum for future challenges to trust acquisitions. This opening of the courthouse doors for suits against the United States makes a petition for rehearing en banc and, if unsuccessful, a petition for certiorari by the Solicitor General highly likely.
Patchak, an individual plaintiff, filed suit claiming that Interior’s decision to take land into trust for the Match-e-be-nash-she-wish Band of Pottawatomie (Gun Lake Tribe) in Michigan was ultra vires and contrary to statute. After Patchak unsuccessfully sought to enjoin the acquisition pending resolution of his complaint, Interior took the land into trust, and the district court dismissed the suit for lack of standing. On appeal, the D.C. Circuit reversed on the standing issue and addressed the United States’ claim of sovereign immunity under the Quiet Title Act. Until now, all three circuits that have addressed the issue (the Ninth, Tenth, and Eleventh) have held that the Quiet Title Act, 28 U.S.C. § 2409a, bars suits like Patchak’s. See Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1253-55 (11th Cir. 1985); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987). The Quiet Title Act allows suits “under this section to adjudicate a disputed title to real property in which the United States claims an interest,” and specifically excludes “trust or restricted Indian lands.” Courts have read this language as barring all after-the-fact challenges to the United States’ trust acquisitions for Indian tribes—notwithstanding the general waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, for actions seeking non-monetary relief against official agency action."
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Patricia Millett Commentary on D.C. Circuit’s Patchak Decision
(Turtle Talk 1/31)
DC Circuit Decision:Patchak
(January 21, 2011)
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