"On Tuesday, April 24, the Court heard arguments in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, consolidated with Salazar v. Patchak. The case presents the question whether a landowner affected by the building of an Indian casino in his community can sue the federal government under the Administrative Procedure Act (APA), seeking a declaration that the government unlawfully took the land into trust for the Tribe – a move that facilitated the building of the casino. Our preview of the case is here.

Up first was Assistant to the Solicitor General Eric Miller, arguing for the government that the suit was barred by the Quiet Title Act and that Patcak lacked prudential standing, in any event, to challenge the government’s decision to take the land into trust. The latter assertion was subject to immediate and hostile questioning from Justice Scalia, who suggested that because the government considered the ultimate use of the land as part of its decision whether to take the land into trust, citizens harmed by that use should have prudential standing to challenge that decision.

Other Justices were clearly disturbed by the government’s claim that although citizens could sue under the APA to stop the government from unlawfully taking land into trust before the transaction occurred, as soon as the government takes the land into trust, sovereign immunity attaches and any further APA proceedings would be barred. While the current government practice is to provide notice of the intent to take land into trust and then wait thirty days to allow comments and litigation, Justice Alito noted that these time limits were simply a matter of agency practice and not enforceable."

Get the Story:
Argument recap: Searching for a middle ground in Indian casino case (SCOTUSBlog 4/27)

Oral Argument Transcript:
Salazar v. Patchak (April 23, 2012)

DC Circuit Decision:
Patchak v. Salazar (January 21, 2011)

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Supreme Court debates challenge to Gun Lake casino land (4/25)