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
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
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.
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