Match-E-Be-Nash-She-Wish Band v. Patchak - Oral Argument - April 24, 2012

Match-E-Be-Nash-She-Wish Band v. Patchak

Media for Match-E-Be-Nash-She-Wish Band v. Patchak

Audio Transcription for Opinion Announcement - June 18, 2012 in Match-E-Be-Nash-She-Wish Band v. Patchak

Audio Transcription for Oral Argument - April 24, 2012 in Match-E-Be-Nash-She-Wish Band v. Patchak

John G. Roberts, Jr.:

We'll hear argument this morning in Case 11-246, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.

Mr. Miller.

Eric D. Miller:

Mr. Chief Justice, and may it please the Court:

The suit in this case suffers from two independent jurisdictional defects, either one of which provides a basis for reversing the judgment of the Court of Appeals.

The first is that the United States has not waived its sovereign immunity from suits challenging its title to Indian trust lands.

And the second is that Patchak, the plaintiff, lacks prudential standing because the interests that he seeks to vindicate in the suit are not within the zone of interests protected or regulated by section 5 of the Indian Reorganization Act, the provision whose alleged violation forms the basis for his complaint.

Sonia Sotomayor:

Could you tell me who you think would have a valid and timely APA action to challenge what the Secretary has allegedly done here, which is to take lands into trust in violation of the statute per our -- I know that the U.S. is challenging that assumption, but let's assume the reality of the allegation.

Who would -- who would be able to challenge it, and in what mechanism?

Eric D. Miller:

There are -- there are two parts to that.

And taking the timing question first, the claim would have to be brought before the land was taken into trust.

And that's why the regulations set out a 30-day period after the announcement of the intent to take the land into trust before title is actually transferred.

So somebody would have to file during that period, as the MichGO plaintiffs did--

Sonia Sotomayor:

That, I understand.

That's why I said timely filed.

Eric D. Miller:

--And the proper plaintiff for a claim under section 5 -- and, of course, there can be other claims under NEPA or the IGRA -- but under section 5 of the IRA, the proper plaintiff would be a state or local government because those are the entities that are directly affected, directly regulated by the transfer of jurisdiction to the tribe--

Sonia Sotomayor:

Let's assume a situation where you first promise the land to one tribe, and then, in the midst of negotiations, another tribe lays claim.

The United States says, I change my mind; I'm going to give the land to the other tribe.

Does the tribe that you have denied the land to have any standing or any rights with respect to challenging that determination?

Eric D. Miller:

--Yes.

As the beneficiaries of section 5, the parties for whose benefit Congress acted and the Secretary would be acting, I think in that scenario a tribe would have standing to challenge it.

Antonin Scalia:

Mr. Miller, you -- you claim on behalf of the government that the decision of whether to take the land into trust has nothing to do with the use to which the land will be put; wherefore, these plaintiffs who are complaining about the use to which it'll be put have no standing.

If that is so, why did the government delay the taking into trust for three years while there was pending a lawsuit which would have prevented the use that the government intended the newly trusted land to be used for?

You delayed for three years because there was a challenge to whether you could use -- whether this land could be used for what you call gaming and I call gambling.

Why did you delay for three years if it's irrelevant.

Eric D. Miller:

Well, the challenge in that case was -- was not just to the use.

It was to the decision to take title to land into trust.

And the Secretary's policy, as set out in--

Antonin Scalia:

Well, wait.

On what basis?

On any basis other than--