Professor Bethany Berger on Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Professor Bethany Berger on Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Challenges to federal title to land taken into trust for American Indian tribes may proceed despite the Quiet Title Act. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 2012 U.S. LEXIS 4659 (U.S. June 18, 2012) [enhanced version available to lexis.com subscribers] reverses decades of precedent and amplifies the uncertainty about tribal trust land status created by Carcieri v. Salazar, 555 U.S. 379 (2009) [enhanced version available to lexis.com subscribers]. In this Analysis, Professor Bethany Berger, Contributing Author and Executive Editor of Cohen's Handbook of Federal Indian Law, discusses the case and its implications. She writes:

     On June 18, 2012, the U.S. Supreme Court released its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v Patchak, 2012 U.S. LEXIS 4659. The opinion holds that the Quiet Title Act, 28 U.S.C. § 2409a, which prohibits suit under its provisions to challenge federal title to lands held in trust for Indian tribes, does not bar a challenge to the trust status of tribal lands under the Administrative Procedure Act, and that David Patchak, an individual living near the land, has prudential standing to challenge the trust decision. The United States took the lands into trust for the Match-E-Be-Nash-She-Wish Band pursuant to the Indian Reorganization Act of 1934, and the Band now operates a casino, government offices, and waste water treatment facility on the land.

     ....

Implications of the Decision

1. Extended Uncertainty Regarding Tribal Trust Land for Tribes and Investors

     Before the decision, those opposing the decision to take land into trust had 30 days to challenge it. 25 C.F.R. § 151.12(b). For tribes seeking to invest and build on the land, and financial institutions lending money to support such development, trust status was secure if no litigation was filed in that period. After this decision, plaintiffs now have six years, the statute of limitations applied to the APA, to challenge trust status. This increases the insecurity of investment, will likely increase the costs of borrowing by Indian tribes, and may even prevent significant development during the six year period.

2. Heightened Impact of Carcieri v. Salazar, 555 U.S. 379 (2009) and Stakes for a Proposed Carcieri Fix

     Although Carcieri upended existing land into trust practice, many believed that land already taken into trust was protected by the Quiet Title Act's Indian trust land exception. Under Match-E-Be-Nash-She-Wish Band, however, individuals may bring challenges to trust status finalized before Carcieri was decided. Existing developments, like the Gun Lake Casino, must now face the possibility of shutdown if such suits are successful.

Sign in with your Lexis.com ID to access the full text of this article (approx. 6 pages).

Click here to order the full text of this article if you do not have a Lexis.com ID

....

Sign in with your Lexis.com ID to access Real Estate Law resources on Lexis.com or any of these Mathew Bender  Real Estate Law publications

Click here to order Property Law treatises/resources and Mathew Bender publications. 

Click here to order Real Estate Law treatises/resources and Mathew Bender publications. 

LexisNexis Publications:

View the LexisNexis Catalog of Legal and Professional Publications

LexisNexis eBooks

Click here for a list of available LexisNexis eBooks.

Click here to learn more about LexisNexis eBooks.

For more information about LexisNexis products and solutions connect with us through our corporate site.