MATCH-E-BE-NASH-SHE-WISH BAND v. PATCHAK

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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Nos. 11–246 and 11–247

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MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS, PETITIONER

11–246 v.

DAVID PATCHAK et al.

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et al., PETITIONERS

11–247 v.

DAVID PATCHAK et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit

[June 18, 2012]

Justice Kagan delivered the opinion of the Court.

A provision of the Indian Reorganization Act (IRA), 25 U. S. C. §465, authorizes the Secretary of the Interior (Secretary) to acquire property “for the purpose of providing land for Indians.” Ch. 576, §5, 48Stat. 985. The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary’s decision in a suit brought under the Administrative Procedure Act (APA), 5 U. S. C. §701 et seq. Patchak claims that the Secretary lacked authority under §465 to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino’s operation.

We consider two questions arising from Patchak’s action. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act (QTA), 86Stat. 1176. We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary’s acquisition. We think he does. We therefore hold that Patchak’s suit may proceed.

I

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michigan. Although the Band has a long history, the Department of the Interior (DOI) formally recognized it only in 1999. See 63 Fed. Reg. 56936 (1998). Two years later, the Band petitioned the Secretary to exercise her authority under §465 by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band’s application explained that the Band would use the property “for gaming purposes,” with the goal of generating the “revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal government capable of providing its members with sorely needed social and educational programs.” App. 52, 41. 1

In 2005, after a lengthy administrative review, the Secretary announced her decision to acquire the Bradley Property in trust for the Band. See 70 Fed. Reg. 25596. In accordance with applicable regulations, the Secretary committed to wait 30 days before taking action, so that interested parties could seek judicial review. See ibid.; 25 CFR §151.12(b) (2011). Within that window, an organization called Michigan Gambling Opposition (or MichGO) filed suit alleging that the Secretary’s decision violated environmental and gaming statutes. The Secretary held off taking title to the property while that litigation proceeded. Within the next few years, a District Court and the D. C. Circuit rejected MichGO’s claims. See Michigan Gambling Opposition v. Kempthorne, 525 F. 3d 23, 27–28 (CADC 2008); Michigan Gambling Opposition v. Norton, 477 F. Supp. 2d 1 (DC 2007).

Shortly after the D. C. Circuit ruled against MichGO (but still before the Secretary took title), Patchak filed this suit under the APA advancing a different legal theory. He asserted that §465 did not authorize the Secretary to acquire property for the Band because it was not a federally recognized tribe when the IRA was enacted in 1934. See App. 37. To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.” Id., at 30–31. Notably, Patchak did not assert any claim of his own to the Bradley Property. He requested only a declaration that the decision to acquire the land violated the IRA and an injunction to stop the Secretary from accepting title. See id., at 38–39. The Band intervened in the suit to defend the Secretary’s decision.

In January 2009, about five months after Patchak filed suit, this Court denied certiorari in MichGO’s case, 555 U. S. 1137 , and the Secretary took the Bradley Property into trust. That action mooted Patchak’s request for an injunction to prevent the acquisition, and all parties agree that the suit now effectively seeks to divest the Federal Government of title to the land. See Brief for Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians 17 (hereinafter Tribal Petitioner); Brief for Federal Petitioners 11; Brief for Respondent 24–25. The month after the Government took title, this Court held in Carcieri v. Salazar, 555 U. S. 379, 382 (2009) , that §465 authorizes the Secretary to take land into trust only for tribes that were “under federal jurisdiction” in 1934. 2

The District Court dismissed the suit without considering the merits (including the relevance of Carcieri), ruling that Patchak lacked prudential standing to challenge the Secretary’s acquisition of the Bradley Property. The court reasoned that the injuries Patchak alleged fell outside §465’s “zone of interests.” 646 F. Supp. 2d 72, 76 (DC 2009). The D. C. Circuit reversed that determination. See 632 F. 3d 702, 704–707 (2011). The court also rejected the Secretary’s and the Band’s alternative argument that by virtue of the QTA, sovereign immunity barred the suit. See id., at 707–712. The latter ruling conflicted with decisions of three Circuits holding that the United States has immunity from suits like Patchak’s. See Neighbors for Rational Development, Inc. v. Norton, 379 F. 3d 956, 961–962 (CA10 2004); Metropolitan Water Dist. of Southern Cal. v. United States, 830 F. 2d 139, 143–144 (CA9 1987) (per curiam); Florida Dept. of Bus. Regulation v. Department of Interior, 768 F. 2d 1248, 1253–1255 (CA11 1985). We granted certiorari to review both of the D. C. Circuit’s holdings, 565 U. S. ___ (2011), and we now affirm.

II

We begin by considering whether the United States’ sovereign immunity bars Patchak’s suit under the APA. That requires us first to look to the APA itself and then, for reasons we will describe, to the QTA. We conclude that the United States has waived its sovereign immunity from Patchak’s action.

The APA generally waives the Federal Government’s immunity from a suit “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U. S. C. §702. That waiver would appear to cover Patchak’s suit, which objects to official action of the Secretary and seeks only non-monetary relief. But the APA’s waiver of immunity comes with an important carve-out: The waiver does not apply “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought” by the plaintiff. Ibid. That provision prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes. The question thus becomes whether another statute bars Patchak’s demand for relief.

The Government and Band contend that the QTA does so. The QTA authorizes (and so waives the Government’s sovereign immunity from) a particular type of action, known as a quiet title suit: a suit by a plaintiff asserting a “right, title, or interest” in real property that conflicts with a “right, title, or interest” the United States claims. 28 U. S. C. §2409a(d). The statute, however, contains an exception: The QTA’s authorization of suit “does not apply to trust or restricted Indian lands.” §2409a(a). According to the Government and Band, that limitation on quiet title suits satisfies the APA’s carve-out and so forbids Patchak’s suit. In the Band’s words, the QTA exception retains “the United States’ full immunity from suits seeking to challenge its title to or impair its legal interest in Indian trust lands.” Brief for Tribal Petitioner 18.

Two hypothetical examples might help to frame consideration of this argument. First, suppose Patchak had sued under the APA claiming that he owned the Bradley Property and that the Secretary therefore could not take it into trust. The QTA would bar that suit, for reasons just suggested. True, it fits within the APA’s general waiver, but the QTA specifically authorizes quiet title actions (which this hypothetical suit is) except when they involve Indian lands (which this hypothetical suit does). In such a circumstance, a plaintiff cannot use the APA to end-run the QTA’s limitations. “[W]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy”—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment. Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 286, n. 22 (1983) (quoting H. R. Rep. No. 94–1656, p. 13 (1976)).

But now suppose that Patchak had sued under the APA claiming only that use of the Bradley Property was causing environmental harm, and raising no objection at all to the Secretary’s title. The QTA could not bar that suit because even though involving Indian lands, it asserts a grievance altogether different from the kind the statute concerns. Justice Scalia, in a former life as Assistant Attorney General, made this precise point in a letter to Congress about the APA’s waiver of immunity (which we hasten to add, given the author, we use not as legislative history, but only for its persuasive force). When a statute “is not addressed to the type of grievance which the plaintiff seeks to assert,” then the statute cannot prevent an APA suit. Id., at 28 (May 10, 1976, letter of Assistant Atty. Gen. A. Scalia). 3

We think that principle controls Patchak’s case: The QTA’s “Indian lands” clause does not render the Government immune because the QTA addresses a kind of grievance different from the one Patchak advances. As we will explain, the QTA—whose full name, recall, is the Quiet Title Act—concerns (no great surprise) quiet title actions. And Patchak’s suit is not a quiet title action, because although it contests the Secretary’s title, it does not claim any competing interest in the Bradley Property. That fact makes the QTA’s “Indian lands” limitation simply inapposite to this litigation.

In reaching this conclusion, we need look no further than the QTA’s text. From its title to its jurisdictional grant to its venue provision, the Act speaks specifically and repeatedly of “quiet title” actions. See 86Stat. 1176 (“An Act [t]o permit suits to adjudicate certain real property quiet title actions”); 28 U. S. C. §1346(f) (giving district courts jurisdiction over “civil actions . . . to quiet title” to property in which the United States claims an interest); §1402(d) (setting forth venue for “[a]ny civil action . . . to quiet title” to property in which the United States claims an interest). That term is universally understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but also asserts his own right to disputed property. See, e.g., Black’s Law Dictionary 34 (9th ed. 2009) (defining an “action to quiet title” as “[a] proceeding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it”); Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308, 315 (2005) (“[T]he facts showing the plaintiffs’ title . . . are essential parts of the plaintiffs’ [quiet title] cause of action” (quoting Hopkins v. Walker, 244 U. S. 486, 490 (1917) )).

And the QTA’s other provisions make clear that the recurrent statutory term “quiet title action” carries its ordinary meaning. The QTA directs that the complaint in such an action “shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property.” 28 U. S. C. §2409a(d). If the plaintiff does not assert any such right (as Patchak does not), the statute cannot come into play. 4 Further, the QTA provides an option for the United States, if it loses the suit, to pay “just compensation,” rather than return the property, to the “person determined to be entitled” to it. §2409a(b). That provision makes perfect sense in a quiet title action: If the plaintiff is found to own the property, the Government can satisfy his claim through an award of money (while still retaining the land for its operations). But the provision makes no sense in a suit like this one, where Patchak does not assert a right to the property. If the United States loses the suit, an award of just compensation to the rightful owner (whoever and wherever he might be) could do nothing to satisfy Patchak’s claim. 5

In two prior cases, we likewise described the QTA as addressing suits in which the plaintiff asserts an ownership interest in Government-held property. In Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273 (1982) , we considered North Dakota’s claim to land that the United States viewed as its own. We held that the State could not circumvent the QTA’s statute of limitations by invoking other causes of action, among them the APA. See id., at 277–278, 286, n. 22. The crux of our reasoning was that Congress had enacted the QTA to address exactly the kind of suit North Dakota had brought. Prior to the QTA, we explained, “citizens asserting title to or the right to possession of lands claimed by the United States” had no recourse; by passing the statute, “Congress sought to rectify this state of affairs.” Id., at 282. Our decision reflected that legislative purpose: Congress, we held, “intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States’ title to real property.” Id., at 286. We repeat: “adverse claimants,” meaning plaintiffs who themselves assert a claim to property antagonistic to the Federal Government’s.

Our decision in United States v. Mottaz, 476 U. S. 834 (1986) , is of a piece. There, we considered whether the QTA, or instead the Tucker Act or General Allotment Act, governed the plaintiff’s suit respecting certain allotments of land held by the United States. We thought the QTA the relevant statute because the plaintiff herself asserted title to the property. Our opinion quoted the plaintiff’s own description of her suit: “At no time in this proceeding did [the plaintiff] drop her claim for title. To the contrary, the claim for title is the essence and bottom line of [the plaintiff’s] case.” Id., at 842 (quoting Brief for Respondent in Mottaz, O. T. 1985, No. 546, p. 3). That fact, we held, brought the suit “within the [QTA’s] scope”: “What [the plaintiff] seeks is a declaration that she alone possesses valid title.” 476 U. S., at 842. So once again, we construed the QTA as addressing suits by adverse claimants.

But Patchak is not an adverse claimant—and so the QTA (more specifically, its reservation of sovereign immunity from actions respecting Indian trust lands) cannot bar his suit. Patchak does not contend that he owns the Bradley Property, nor does he seek any relief corresponding to such a claim. He wants a court to strip the United States of title to the land, but not on the ground that it is his and not so that he can possess it. Patchak’s lawsuit therefore lacks a defining feature of a QTA action. He is not trying to disguise a QTA suit as an APA action to circumvent the QTA’s “Indian lands” exception. Rather, he is not bringing a QTA suit at all. He asserts merely that the Secretary’s decision to take land into trust violates a federal statute—a garden-variety APA claim. See 5 U. S. C. §§706(2)(A), (C) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law [or] in excess of statutory jurisdiction [or] authority”). Because that is true—because in then-Assistant Attorney General Scalia’s words, the QTA is “not addressed to the type of grievance which [Patchak] seeks to assert,” H. R. Rep. 94–1656, at 28—the QTA’s limitation of remedies has no bearing. The APA’s general waiver of sovereign immunity instead applies.

The Band and Government, along with the dissent, object to this conclusion on three basic grounds. First, they contend that the QTA speaks more broadly than we have indicated, waiving immunity from suits “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U. S. C. §2409a(a). That language, the argument goes, encompasses all actions contesting the Government’s legal interest in land, regardless whether the plaintiff claims ownership himself. See Brief for Federal Petitioners 19–20; Reply Brief for Tribal Petitioner 4–6; post, at 8–9 (Sotomayor, J., dissenting). The QTA (not the APA) thus becomes the relevant statute after all—as to both its waiver and its “corresponding” reservation of immunity from suits involving Indian lands. Reply Brief for Tribal Petitioner 6.

But the Band and Government can reach that result only by neglecting key words in the relevant provision. That sentence, more fully quoted, reads: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” §2409a(a) (emphasis added). And as we have already noted, “this section”—§2409a—includes a host of indications that the “civil action” at issue is an ordinary quiet title suit: Just recall the section’s title (“Real property quiet title actions”), and its pleading requirements (the plaintiff “shall set forth with particularity the nature of the right, title, or interest which [he] claims”), and its permission to the Government to remedy an infraction by paying “just compensation.” Read with reference to all these provisions (as well as to the QTA’s contemporane ously enacted jurisdictional and venue sections), the waiver clause rebuts, rather than supports, the Band’s and the Government’s argument: That clause speaks not to any suit in which a plaintiff challenges the Government’s title, but only to an action in which the plaintiff also claims an interest in the property.

The Band and Government next invoke cases holding that “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons,” the statute may “impliedly preclude[ ]” judicial review “of those issues at the behest of other persons.” Block v. Community Nutrition Institute, 467 U. S. 340, 349 (1984) ; see United States v. Fausto, 484 U. S. 439, 455 (1988) . Here, the Band and Government contend, the QTA’s specific authorization of adverse claimants’ suits creates a negative implication: non-adverse claimants like Patchak cannot challenge Government ownership of land under any other statute. See Reply Brief for Tribal Petitoner 7–10; Reply Brief for Federal Petitioners 7–9; see also post, at 3–4. The QTA, says the Band, thus “preempts [Patchak’s] more general remedies.” Brief for Tribal Petitioner 23 (internal quotation marks omitted).

But we think that argument faulty, and the cited cases inapposite, for the reason already given: Patchak is bringing a different claim, seeking different relief, from the kind the QTA addresses. See supra, at 7–10. To see the point, consider a contrasting example. Suppose the QTA authorized suit only by adverse claimants who could assert a property interest of at least a decade’s duration. Then suppose an adverse claimant failing to meet that requirement (because, say, his claim to title went back only five years) brought suit under a general statute like the APA. We would surely bar that suit, citing the cases the Government and Band rely on; in our imaginary statute, Congress delineated the class of persons who could bring a quiet title suit, and that judgment would preclude others from doing so. But here, once again, Patchak is not bringing a quiet title action at all. He is not claiming to own the property, and he is not demanding that the court transfer the property to him. So to succeed in their argument, the Government and Band must go much further than the cited cases: They must say that in authorizing one person to bring one kind of suit seeking one form of relief, Congress barred another person from bringing another kind of suit seeking another form of relief. Presumably, that contention would extend only to suits involving similar subject matter—i.e., the Government’s ownership of property. But that commonality is not itself sufficient. We have never held, and see no cause to hold here, that some general similarity of subject matter can alone trigger a remedial statute’s preclusive effect.

Last, the Band and Government argue that we should treat Patchak’s suit as we would an adverse claimant’s because they equally implicate the “Indian lands” exception’s policies. According to the Government, allowing challenges to the Secretary’s trust acquisitions would “pose significant barriers to tribes[’] . . . ability to promote investment and economic development on the lands.” Brief for Federal Petitioners 24. That harm is the same whether or not a plaintiff claims to own the land himself. Indeed, the Band argues that the sole difference in this suit cuts in its direction, because non-adverse claimants like Patchak have “the most remote injuries and indirect interests in the land.” Brief for Tribal Petitioner 13; see Reply Brief for Federal Petitioners 11–12; see also post, at 2, 7, 10. 6

That argument is not without force, but it must be addressed to Congress. In the QTA, Congress made a judgment about how far to allow quiet title suits—to a point, but no further. (The “no further” includes not only the “Indian lands” exception, but one for security interests and water rights, as well as a statute of limitations, a bar on jury trials, jurisdictional and venue constraints, and the just compensation option discussed earlier.) Perhaps Congress would—perhaps Congress should—make the identical judgment for the full range of lawsuits pertaining to the Government’s ownership of land. But that is not our call. The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title actions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same—that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Government’s ownership of property. And so when a plaintiff like Patchak brings a suit like this one, it falls within the APA’s general waiver of sovereign immunity.

III

We finally consider the Band’s and the Government’s alternative argument that Patchak cannot bring this action because he lacks prudential standing. This Court has long held that a person suing under the APA must satisfy not only Article III’s standing requirements, but an additional test: The interest he asserts must be “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970) . Here, Patchak asserts that in taking title to the Bradley Property, the Secretary exceeded her authority under §465, which authorizes the acquisition of property “for the purpose of providing land for Indians.” And he alleges that this statutory violation will cause him economic, environmental, and aesthetic harm as a nearby property owner. See supra, at 3. The Government and Band argue that the relationship between §465 and Patchak’s asserted interests is insufficient. That is so, they contend, because the statute focuses on land acquisition, whereas Patchak’s interests relate to the land’s use as a casino. See Brief for Tribal Petitioner 46 (“The Secretary’s decision to put land into trust does not turn on any particular use of the land, gaming or otherwise[,] . . . [and] thus has no impact on [Patchak] or his asserted interests”); Brief for Federal Petitioners 34 (“[L]and may be taken into trust for a host of purposes that have nothing at all to do with gaming”). We find this argument unpersuasive.

The prudential standing test Patchak must meet “is not meant to be especially demanding.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399 (1987) . We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” Ibid. We do not require any “indication of congressional purpose to benefit the would-be plaintiff.” Id., at 399–400. 7 And we have always conspicuously included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id., at 399.

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

The Department’s regulations make this statutory concern with land use crystal clear. Those regulations permit the Secretary to acquire land in trust under §465 if the “land is necessary to facilitate tribal self-determination, economic development, or Indian housing.” 25 CFR §151.3(a)(3). And they require the Secretary to consider, in evaluating any acquisition, both “[t]he purposes for which the land will be used” and the “potential conflicts of land use which may arise.” §§151.10(c), 151.10(f); see §151.11(a). For “off-reservation acquisitions” made “for business purposes”—like the Bradley Property—the regulations further provide that the tribe must “provide a plan which specifies the anticipated economic benefits associated with the proposed use.” §151.11(c). DOI’s regulations thus show that the statute’s implementation centrally depends on the projected use of a given property.

The Secretary’s acquisition of the Bradley Property is a case in point. The Band’s application to the Secretary highlighted its plan to use the land for gaming purposes. See App. 41 (“[T]rust status for this Property is requested in order for the Tribe to acquire property on which it plans to conduct gaming”); id., at 61–62 (“The Tribe intends to . . . renovate the existing . . . building into a gaming facility . . . . to offer Class II and/or Class III gaming”). Similarly, DOI’s notice of intent to take the land into trust announced that the land would “be used for the purpose of construction and operation of a gaming facility,” which the Department had already determined would meet the Indian Gaming Regulatory Act’s requirements. 70 Fed. Reg. 25596; 25 U. S. C. §§2701–2721. So from start to finish, the decision whether to acquire the Bradley Property under §465 involved questions of land use.

And because §465’s implementation encompasses these issues, the interests Patchak raises—at least arguably— fall “within the zone . . . protected or regulated by the statute.” If the Government had violated a statute specifically addressing how federal land can be used, no one would doubt that a neighboring landowner would have prudential standing to bring suit to enforce the statute’s limits. The difference here, as the Government and Band point out, is that §465 specifically addresses only land acquisition. But for the reasons already given, decisions under the statute are closely enough and often enough entwined with considerations of land use to make that difference immaterial. As in this very case, the Secretary will typically acquire land with its eventual use in mind, after assessing potential conflicts that use might create. See 25 CFR §§151.10(c), 151.10(f), 151.11(a). And so neighbors to the use (like Patchak) are reasonable—indeed, predictable—challengers of the Secretary’s decisions: Their interests, whether economic, environmental, or aesthetic, come within §465’s regulatory ambit.

*  *  *

The QTA’s reservation of sovereign immunity does not bar Patchak’s suit. Neither does the doctrine of prudential standing. We therefore affirm the judgment of the D. C. Circuit, and remand the case for further proceedings consistent with this opinion.

It is so ordered.

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1  Under the Indian Gaming Regulatory Act, 25 U. S. C. §§2701–2721, an Indian tribe may conduct gaming operations on “Indian lands,” §2710, which include lands “held in trust by the United States for the benefit of any Indian tribe,” §2703(4)(B). The application thus re-quested the Secretary to take the action necessary for the Band toopen a casino.

2  The merits of Patchak’s case are not before this Court. We therefore express no view on whether the Band was “under federal jurisdiction” in 1934, as Carcieri requires. Nor do we consider how that question relates to Patchak’s allegation that the Band was not “federally recognized” at the time. Cf. Carcieri, 555 U. S., at 397–399 (Breyer, J., concurring) (discussing this issue).

3  According to the dissent, we should look only to the kind of relief a plaintiff seeks, rather than the type of grievance he asserts, in deciding whether another statute bars an APA action. See post, at 6 (opinion of Sotomayor, J.). But the dissent’s test is inconsistent with the one we adopted in Block, which asked whether Congress had particularly dealt with a “claim.” See Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 286, n. 22 (1983) . And the dissent’s approach has no obvious limits. Suppose, for example, that Congress passed a statute authorizing a particular form of injunctive relief in a procurement contract suit except when the suit involved a “discretionary function” of a federal employee. Cf. 28 U. S. C. §2680(a). Under the dissent’s method, that exception would preclude any APA suit seeking that kind of injunctive relief if it involved a discretionary function, no matter what the nature of the claim. That implausible result demonstrates that limitations on relief cannot sensibly be un-derstood apart from the claims to which they attach.

4  The dissent contends that the QTA omits two other historical requirements for quiet title suits. See post, at 8. But many States had abandoned those requirements by the time the QTA was passed. See S. Rep. No. 92–575, p. 6 (1971) (noting “wide differences in State statutory and decisional law” on quiet title suits); Steadman, “Forgive the U. S. Its Trespasses?”: Land Title Disputes With the Sovereign—Present Remedies and Prospective Reforms, 1972 Duke L. J. 15, 48–49, and n. 152 (stating that cases had disputed whether a quiet title plaintiff needed to possess the land); Welch v. Kai, 4 Cal. App. 3d 374, 380–381, 84 Cal. Rptr. 619, 622–623 (1970) (allowing a quiet title action when the plaintiff claimed only an easement); Benson v. Fekete, 424 S. W. 2d 729 (Mo. 1968) (en banc) (same). So Congress in enacting the QTA essentially chose one contemporaneous form of quiet title action.

5  The legislative history, for those who think it useful, further shows that the QTA addresses quiet title actions, as ordinarily conceived. The Senate Report states that the QTA aimed to alleviate the “[g]rave inequity” to private parties “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs.” S. Rep. No. 92–575, at 1. Similarly, the House Report notes that the history of quiet title actions “goes back to the Courts of England,” and provided as examples “a plaintiff whose title to land was continually being subjected to litigation in the law courts,” and “one who feared that an outstanding deed or other interest might cause a claim to be presented in the future.” H. R. Rep. No. 92–1559, p. 6 (1972). From top to bottom, these reports show that Congress thought itself to be authorizing bread-and-butter quiet title actions, in which a plaintiff asserts a right, title, or interest of his own in disputed land.

6  In a related vein, the dissent argues that our holding will undermine the QTA’s “Indian lands” exception by allowing adverse claimants to file APA complaints concealing their ownership interests or to recruit third parties to bring suit on their behalf. See post, at 9–11. But we think that concern more imaginary than real. We have trouble conceiving of a plausible APA suit that omits mention of an adverse claimant’s interest in property yet somehow leads to relief recognizing that very interest.

7  For this reason, the Band’s statement that Patchak is “not an Indian or tribal official seeking land” and does not “claim an interest in advancing tribal development,” Brief for Tribal Petitioner 42, is beside the point. The question is not whether §465 seeks to benefit Patchak; everyone can agree it does not. The question is instead, as the Band’s and the Government’s main argument acknowledges, whether issues of land use (arguably) fall within §465’s scope—because if they do, a neighbor complaining about such use may sue to enforce the statute’s limits. See infra this page and 16–17.

SUPREME COURT OF THE UNITED STATES

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Nos. 11–246 and 11–247

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MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS, PETITIONER

11–246 v.

DAVID PATCHAK et al.

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et al., PETITIONERS

11–247 v.

DAVID PATCHAK et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit

[June 18, 2012]

Justice Sotomayor, dissenting.

In enacting the Quiet Title Act (QTA), Congress waived the Government’s sovereign immunity in cases seeking “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U. S. C. §2409a(a). In so doing, Congress was careful to retain the Government’s sovereign immunity with respect to particular claimants, particular categories of land, and particular remedies. Congress and the Executive Branch considered these “carefully crafted provisions” essential to the immunity waiver and “necessary for the protection of the national public interest.” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273 –285 (1983).

The Court’s opinion sanctions an end-run around these vital limitations on the Government’s waiver of sovereign immunity. After today, any person may sue under the Administrative Procedure Act (APA) to divest the Federal Government of title to and possession of land held in trust for Indian tribes—relief expressly forbidden by the QTA—so long as the complaint does not assert a personal interest in the land. That outcome cannot be squared with the APA’s express admonition that it confers no “authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U. S. C. §702. The Court’s holding not only creates perverse incentives for private litigants, but also exposes the Government’s ownership of land to costly and prolonged challenges. Because I believe those results to be inconsistent with the QTA and the APA, I respectfully dissent.

I A

Congress enacted the QTA to provide a comprehensive solution to the problem of real-property disputes between private parties and the United States. The QTA strikes a careful balance between private parties’ desire to adjudicate such disputes, and the Government’s desire to impose “ ‘appropriate safeguards’ ” on any waiver of sovereign immunity to ensure “ ‘the protection of the public interest.’ ” Block, 461 U. S., at 282–283; see also S. Rep. No. 92–575, p. 6 (1971).

Section 2409a(a) provides expansively that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” That language mirrors the title proposed by the Executive Branch for the legislation that Congress largely adopted: “A Bill To permit suits to adjudicate disputed titles to lands in which the United States claims an interest.” Id., at 7.

The remainder of the Act, however, imposes important conditions upon the Government’s waiver of sovereign immunity. First, the right to sue “does not apply to trust or restricted Indian lands.” §2409a(a). The Indian lands exception reflects the view that “a waiver of immunity in this area would not be consistent with specific commitments [the Government] ha[s] made to the Indians through treaties and other agreements.” Block, 461 U. S., at 283 (internal quotation marks omitted). By exempting Indian lands, Congress ensured that the Government’s “solemn obligations” to tribes would not be “abridg[ed] . . . without the consent of the Indians.” S. Rep. No. 92–575, at 4.

Second, the Act preserves the United States’ power to retain possession or control of any disputed property, even if a court determines that the Government’s property claim is invalid. To that end, §2409a(b) “allow[s] the United States the option of paying money damages instead of surrendering the property if it lost a case on the merits.” Block, 461 U. S., at 283. This provision was considered essential to addressing the Government’s “main objection in the past to waiving sovereign immunity” where federal land was concerned: that an adverse judgment “would make possible decrees ousting the United States from possession and thus interfer[e] with operations of the Government.” S. Rep. No. 92–575, at 5–6. Section 2409a(b) “eliminate[d] cause for such apprehension,” by ensuring that—even under the QTA—the United States could not be stripped of its possession or control of property without its consent. Id., at 6.

Finally, the Act limits the class of individuals permitted to sue the Government to those claiming a “right, title, or interest” in disputed property. §2409a(d). As we have explained, Congress’ decision to restrict the class entitled to relief indicates that Congress precluded relief for the remainder. See, e.g., Block v. Community Nutrition Institute, 467 U. S. 340, 349 (1984) (“[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded”). That inference is especially strong here, because the QTA was “enacted against the backdrop of sovereign immunity.” S. Rep. No. 94–996, p. 27 (1976). Section 2409a(d) thus indicates that Congress concluded that those without any “right, title, or interest” in a given property did not have an interest sufficient to warrant abrogation of the Government’s sovereign immunity.

Congress considered these conditions indispensible to its immunity waiver. 1 “[W]hen Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block, 461 U. S., at 287. Congress and the Executive Branch intended the scheme to be the exclusive procedure for resolving property title disputes involving the United States. See id., at 285 (describing Act as a “careful and thorough remedial scheme”); S. Rep. No. 92–575, at 4 (§2409a “provides a complete, thoughtful approach to the problem of disputed titles to federally claimed land” (emphasis added)).

For that reason, we held that Congress did not intend to create a “new supplemental remedy” when it enacted the APA’s general waiver of sovereign immunity. Block, 461 U. S., at 286, n. 22. “ ‘It would require the suspension of disbelief,’ ” we reasoned, “ ‘to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.’ ” Id., at 285 (quoting Brown v. GSA, 425 U. S. 820, 833 (1976) ). If a plaintiff could oust the Government of title to land by means of an APA action, “all of the carefully crafted provisions of the QTA deemed necessary for the protection of the national public interest could be averted,” and the “Indian lands exception to the QTA would be rendered nugatory.” Block, 461 U. S., at 284–285. We therefore had little difficulty concluding that Congress did not intend to render the QTA’s limitations obsolete by affording any plaintiff the right to dispute the Government’s title to any lands by way of an APA action—and to empower any such plaintiff to “disposses[s] [the United States] of the disputed property without being afforded the option of paying damages.” Id., at 285.

It is undisputed that Patchak does not meet the conditions to sue under the QTA. He seeks to challenge the Government’s title to Indian trust land (strike one); he seeks to force the Government to relinquish possession and title outright, leaving it no alternative to pay compensation (strike two); and he does not claim any personal right, title, or interest in the property (strike three). Thus, by its express terms, the QTA forbids the relief Patchak seeks. Compare ante, at 3 (“[A]ll parties agree that the suit now effectively seeks to divest the Federal Government of title to the [Indian trust] land”), with United States v. Mottaz, 476 U. S. 834, 842 (1986) (Section 2409a(a)’s Indian lands exclusion “operates solely to retain the United States’ immunity from suit by third parties challenging the United States’ title to land held in trust for Indians”). Consequently, Patchak may not avoid the QTA’s constraints by suing under the APA, a statute enacted only four years later. See 5 U. S. C. §702 (rendering the APA’s waiver of sovereign immunity inapplicable “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought”).

B

The majority nonetheless permits Patchak to circumvent the QTA’s limitations by filing an action under the APA. It primarily argues that the careful limitations Congress imposed upon the QTA’s waiver of sovereign immunity are “simply inapposite” to actions in which the plaintiff advances a different “grievance” to that underlying a QTA suit, i.e., cases in which a plaintiff seeks to “strip the United States of title to the land . . . not on the ground that it is his,” but rather because “the Secretary’s decision to take land into trust violates a federal statute.” Ante, at 7, 10. This analysis is unmoored from the text of the APA.

Section 702 focuses not on a plaintiff’s motivation for suit, nor the arguments on which he grounds his case, but only on whether another statute expressly or impliedly forbids the relief he seeks. The relief Patchak admittedly seeks—to oust the Government of title to Indian trust land—is identical to that forbidden by the QTA. Conversely, the Court’s hypothetical suit, alleging that the Bradley Property was causing environmental harm, would not be barred by the QTA. See ante, at 6. That is not because such an action asserts a different “grievance,” but because it seeks different relief—abatement of a nuisance rather than the extinguishment of title. 2

In any event, the “grievance” Patchak asserts is no different from that asserted in Block—a case in which we unanimously rejected a plaintiff’s attempt to avoid the QTA’s restrictions by way of an APA action or the similar device of an officer’s suit. 3 That action, like this one, was styled as a suit claiming that the Government’s actions respecting land were “ ‘ “not within [its] statutory powers.” ’ ” 461 U. S., at 281. Cf. ante, at 10 (“[Patchak] asserts merely that the Secretary’s decision to take land into trust violates a federal statute”). The relief requested was also identical to that sought here: injunctive relief directing the United States to “ ‘cease and desist from . . . exercising privileges of ownership’ ” over the land in question. 461 U. S., at 278; see also App. 38.

The only difference that the majority can point to between Block and this case is that Patchak asserts a weaker interest in the disputed property. But that is no reason to imagine that Congress intended a different outcome. As the majority itself acknowledges, the harm to the United States and tribes when a plaintiff sues to extinguish the Government’s title to Indian trust land is identical “whether or not a plaintiff claims to own the land himself.” Ante, at 12. Yet, if the majority is correct, Congress intended the APA’s waiver of immunity to apply to those hypothetical plaintiffs differently. Congress, it suggests, intended to permit anyone to circumvent the QTA’s careful limitations and sue to force the Government to relinquish Indian trust lands—anyone, that is, except those with the strongest entitlement to bring such actions: those claiming a personal “right, title, or interest” in the land in question. The majority’s conclusion hinges, therefore, on the doubtful premise that Congress intended to waive the Government’s sovereign immunity wholesale for those like Patchak, who assert an “aesthetic” interest in land, ante, at 1, while retaining the Government’s sovereign immunity against those who assert a constitutional interest in land—the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result.

It is no answer to say that the QTA reaches no further than an “ordinary quiet title suit.” Ante, at 11. The action permitted by §2409a is not an ordinary quiet title suit. At common law, equity courts “permit[ted] a bill to quiet title to be filed only by a party in possession [of land] against a defendant, who ha[d] been ineffectually seeking to establish a legal title by repeated actions of ejectment.” Wehrman v. Conklin, 155 U. S. 314 –322 (1894) (emphasis added). Section 2409a is broader, requiring neither prerequisite. Moreover, as the majority tells us, see ante, at 7, an act to quiet title is “universally understood” as a proceeding “to establish a plaintiff’s title to land.” Black’s Law Dictionary 34 (9th ed. 2009) (emphasis added). But §2409a authorizes civil actions in cases in which neither the Government, nor the plaintiff, claims title to the land at issue. See §2409a(d) (“The complaint shall set forth . . . the right, title, or interest which the plaintiff claims” (emphasis added)). 4 A plaintiff may file suit under §2409a, for instance, when he claims only an easement in land, the right to explore an area for minerals, or some other lesser right or interest. See S. Rep. No. 92–575, at 5. Notwithstanding its colloquial title, therefore, the QTA plainly allows suit in circumstances well beyond “bread-and-butter quiet title actions,” ante, at 3, n. 3. 5

The majority attempts to bolster its reading by emphasizing an unexpected source within §2409a: the clause specifying that the United States may be sued “ ‘in a civil action under this section.’ ” Ante, at 11. The majority understands this clause to narrow the QTA’s scope (and its limitations on the Government’s immunity waiver) to quiet title claims only. But “this section” speaks broadly to civil actions “to adjudicate a disputed title to real property in which the United States claims an interest.” §2409a. Moreover, this clause is read most straightforwardly to serve a far more pedestrian purpose: simply to state that a claimant can file “a civil action under this section”—§2409a—to adjudicate a disputed title in which the United States claims an interest. Regardless of how one reads the clause, however, it does not alter the APA’s clear command that suits seeking relief forbidden by other statutes are not authorized by the APA. And the QTA forbids the relief sought here: injunctive relief forcing the Government to relinquish title to Indian lands.

Even if the majority were correct that the QTA itself reached only as far as ordinary quiet title actions, that would establish only that the QTA does not expressly forbid the relief Patchak seeks. The APA, however, does not waive the Government’s sovereign immunity where any other statute “expressly or impliedly forbids the relief which is sought.” 5 U. S. C. §702 (emphasis added). The text and history of the QTA, as well as this Court’s precedent, make clear that the United States intended to retain its sovereign immunity from suits to dispossess the Government of Indian trust land. Patchak’s suit to oust the Government of such land is therefore, at minimum, impliedly forbidden. 6

II

Three consequences illustrate the difficulties today’s holding will present for courts and the Government. First, it will render the QTA’s limitations easily circumvented. Although those with property claims will remain formally prohibited from bringing APA suits because of Block, savvy plaintiffs and their lawyers can recruit a family member or neighbor to bring suit asserting only an “aesthetic” interest in the land but seeking an identical practical objective—to divest the Government of title and possession. §§2409a(a), (b). Nothing will prevent them from obtaining relief that the QTA was designed to foreclose.

Second, the majority’s holding will frustrate the Government’s ability to resolve challenges to its fee-to-trust decisions expeditiously. When a plaintiff like Patchak asserts an “aesthetic” or “environmental” concern with a planned use of Indian trust land, he may bring a distinct suit under statutes like the National Environmental Policy Act of 1969 and the Indian Gaming Regulatory Act. Those challenges generally may be brought within the APA’s ordinary 6-year statute of limitations. Suits to contest the Government’s decision to take title to land in trust for Indian tribes, however, have been governed by a different rule. Until today, parties seeking to challenge such decisions had only a 30-day window to seek judicial review. 25 CFR §151.12 (2011); 61 Fed. Reg. 18,082–18,083 (1996). That deadline promoted finality and security—necessary preconditions for the investment and “economic development” that are central goals of the Indian Reorganization Act. Ante, at 16. 7 Today’s result will promote the opposite, retarding tribes’ ability to develop land until the APA’s 6-year statute of limitations has lapsed. 8

Finally, the majority’s rule creates substantial uncertainty regarding who exactly is barred from bringing APA claims. The majority leaves unclear, for instance, whether its rule bars from suit only those who “claim any competing interest” in the disputed land in their complaint, ante, at 7, or those who could claim a competing interest, but plead only that the Government’s title claim violates a federal statute. If the former, the majority’s holding would allow Patchak’s challenge to go forward even if he had some personal interest in the Bradley Property, so long as his complaint did not assert it. That result is difficult to square with Block and Mottaz. If the latter, matters are even more peculiar. Because a shrewd plaintiff will avoid referencing her own property claim in her complaint, the Government may assert sovereign immunity only if its detective efforts uncover the plaintiff’s unstated property claim. Not only does that impose a substantial burden on the Government, but it creates per-verse incentives for private litigants. What if a plaintiff has a weak claim, or a claim that she does not know about? Did Congress really intend for the availability of APA relief to turn on whether a plaintiff does a better job of overlooking or suppressing her own property interest than the Government does of sleuthing it out?

As these observations illustrate, the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.

*  *  *

For the foregoing reasons, I would hold that the QTA bars the relief Patchak seeks. I respectfully dissent.

__________________________________

1  As we explained in Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273 –283 (1983), Congress’ initial proposal lacked such provisions. The Executive Branch, however, strongly opposed the original bill, explaining that it was “too broad and sweeping in scope and lacking adequate safeguards to protect the public interest.” Dispute of Titles on Public Lands: Hearings on S. 216 et al. before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., 21 (1971). Congress ultimately agreed, largely adopting the Executive’s substitute bill. See Block, 461 U. S., at 283–284.

2  The majority claims, ante, at 7, n. 3, that this test has “no obvious limits,” but it merely applies the text of §702 (which speaks of “relief,” not “grievances”). In any event, the majority’s hypothetical, ibid., compares apples to oranges. I do not contend that the APA bars all injunctive relief involving Indian lands, simply other suits—like this one—that seek “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U. S. C. §2409a(a). That result is entirely consistent with Block—which stated that the APA “specifically confers no ‘authority to grant relief if any other statute . . . expressly or impliedly forbids the relief which is sought.’ ” 461 U. S, at 286, n. 22 (quoting 5 U. S. C. §702).

3  An officer’s suit is an action directly against a federal officer, but was otherwise identical to the kind of APA action at issue here. Compare Block, 461 U. S., at 281 (seeking relief because agency official’s actions were “ ‘ “not within [his] statutory powers” ’ ”), with 5 U. S. C. §706(2)(C) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations”).

4  The majority notes that some States permit a broader class ofclaims under the rubric of “quiet title,” and points to the “ ‘wide differences in State statutory and decisional law’ on quiet title suits” at the time of the Act. Ante, at 8, n. 4. But that substantial variation only illustrates the artificiality of the majority’s claim that the Act only “addresses quiet title actions, as ordinarily conceived.” Ante, at 9, n. 5.

5  I recognize, of course, that the QTA is titled “[a]n Act to permit suits to adjudicate certain real property quiet title actions.” 86Stat. 1176. But “the title of a statute . . . cannot limit the plain meaning of [its] text.” Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 –529 (1947). As explained above, the substance of Congress’ enactment plainly extends more broadly than quiet title actions, mirroring the scope of the title proposed by the Government. See supra, at 2.

6  Because I conclude that sovereign immunity bars Patchak’s suit,I would not reach the question of whether he has standing.

7  Trust status, for instance, is a prerequisite to making lands eligible for various federal incentives and tax credits closely tied to economic development. See, e.g., App. 56. Delayed suits will also inhibit tribes from investing in uses other than gaming that might be less objection-able—like farming or office use.

8  Despite notice of the Government’s intent through an organization with which he was affiliated, Patchak did not challenge the Government’s fee-to-trust decision even though the organization did. See Michigan Gambling Opposition v. Kempthorne, 525 F. 3d 23 (CADC 2008). Instead, Patchak waited to sue until three years after the Secretary’s intent to acquire the property was published. App. 35, 39.

Print this transcript Transcript: 

ORAL ARGUMENT OF ERIC D. MILLER ON BEHALF OF THE PETITIONERS IN NO. 11-247

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

Mr. Miller.

Mr. 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.

Justice 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?

Mr. 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--

Justice Sonia Sotomayor: That, I understand.

That's why I said timely filed.

Mr. 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--

Justice 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?

Mr. 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.

Justice 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.

Mr. 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--

Justice Antonin Scalia: Well, wait.

On what basis?

On any basis other than--

Mr. Miller: --There was a NEPA claim, for example.

And the plaintiff in that case, the MichGO organization, alleged that the Secretary had not complied with NEPA, had not adequately considered the environmental consequences of the action to take the land into trust.

Justice Antonin Scalia: --Well, what environmental action consequences are there from the mere decision to take it into trust?

Unless you know what it's going to be used for, you have no idea what the environmental consequences are.

Mr. Miller: Well, that's -- that is true.

And it is also true that NEPA may in some circumstances require consideration of the use for which the land is to be put; but, it doesn't follow that section 5 requires or contemplates protecting the interests of nearby landowners from the use.

Justice Antonin Scalia: But the challenge was to -- was to the transfer, you say.

Mr. Miller: That -- I mean, that was -- the allegation--

Justice Antonin Scalia: Based in part on the use to which it was going to be put, right.

Mr. Miller: --Right, but what -- what MichGO was seeking, what the plaintiff was seeking in that case, was an injunction barring the transfer.

And the Secretary's policy -- the whole point of the 30-day regulation is to allow people who want to challenge the transfer to have a full opportunity to litigate those claims.

And that is why--

Justice Ruth Bader Ginsburg: And that would be true of Mr. Patchak?

Suppose he had filed in the 30-day window.

The Secretary gives notice to affected persons.

So he comes in and he says: I think that you don't have authority to do it because this tribe wasn't under Federal jurisdiction, and so I want you to call -- call it off.

Nothing -- nothing has been transferred within 30 days.

I thought both your brief and the tribe's brief said that the judicial review would be available to any affected person who used that procedure.

Is that -- is that true?

Mr. Miller: --I mean, if they could establish standing, but -- if he had filed within the 30-day period, the Secretary would not take title to the land until there was a full opportunity for judicial review.

Now, in this case, he filed outside the 30-day period.

He was aware--

Justice Ruth Bader Ginsburg: But you said -- you said it was important if.

So the argument is this tribe wasn't under Federal jurisdiction.

I could raise that because I'm an affected person.

Somebody's got to be able to enforce against the Secretary the limitations that Congress put on the Secretary.

So would there be standing in that situation?

Mr. Patchak comes in within the 30-day period, so he's not trying to undo any done deal.

Mr. Miller: --There would not be standing for Patchak as a private individual, but there would be standing for a state or local government or, in the unusual situation that Justice Sotomayor suggested, for another tribe--

Justice Ruth Bader Ginsburg: So then you disagree with the tribe that said in no uncertain terms, in its reply brief, that this case is not about the availability of judicial review.

Judicial review was available in the 30-day window.

Mr. Miller: --I think we don't disagree with that in the context of the discussion of the sovereign immunity issue.

I don't understand that statement in the tribe's brief to have been a concession that there would have been standing.

Justice Elena Kagan: Well, on the standing point, I mean, does the -- the distinction that you're setting up between acquisition of land and use of land -- this goes back to Justice Scalia's question -- that strikes me as artificial, that the question of when land is acquired is all tied up with the question of what use is going to be made of it.

The government doesn't acquire this land with no object in mind.

It thinks about how the land is going to be used.

So that, in the end, this really is a land use statute, isn't it.

Mr. Miller: Well, it is a land use statute in -- in this sense, in the sense that -- and you're right that the regulations do refer to the purposes for which the land is to be used, but that's because--

Justice Elena Kagan: And the statute as well thinks of this as a -- is a statute that's designed to promote economic development, which is dependent on some understanding of how the land is actually going to be used by the tribes.

Mr. Miller: --That -- that is exactly right.

And that's why, in determining whether -- the Secretary has to take account of use in order to determine whether it will, in fact, serve the interest of promoting tribal economic development and self-governance, but it doesn't follow that the effect of that use on bystanders, on other property owners in the vicinity, is within the interests that Congress had in mind--

Justice Antonin Scalia: Why not?

Of course, it doesn't have to be within the interest, it just has to be arguably within the interest.

That -- that adverb is left out in much of the discussion.

But if, indeed, the use of the land is one of the elements to be considered in taking title, why isn't somebody who is affected by the proposed use within the zone of interest.

Mr. Miller: --Because -- I mean, just to take the facts of this case as an example, you know, Patchak's objection is not to the jurisdictional transfer.

It's not to the fact that this is now going to be tribal land rather than land subject to the taxing or regulatory authority of the State of Michigan or Allegan County--

Chief Justice John G. Roberts: Just to interrupt, in other words, it's not just to the title.

Mr. Miller: --Well, I mean -- that is -- the relief he is trying to get is to undo that, but the -- the injury doesn't come from that.

Chief Justice John G. Roberts: I'm sorry.

Mr. Miller: The injury comes from the fact that the land is going to be used for gaming, but in 1934--

Justice Antonin Scalia: You could put that it way, or you could put it the injury comes from the government's taking title for gaming.

Okay?

You could put it that way as well.

Mr. Miller: --But--

Justice Antonin Scalia: Inasmuch as the government always has a purpose in mind when it takes title.

Mr. Miller: --But for the zone of interest test, the question would be are people who may be adversely affected by gaming on Indian land within the zone of interest -- is that interest arguably something that -- Congress was speaking to--

Justice Sonia Sotomayor: I'm a little confused.

Justice Anthony Kennedy: On what date was it -- on what date was it clear that the use would be gaming?

There is some suggestion in the briefs that, oh, well, it could be light industry and it was zoned for economic use generally.

At what point was it acknowledged by all that this would be for gaming?

At the very outset?

Mr. Miller: --I believe that in applying to have the land taken into trust, the tribe said what--

Justice Anthony Kennedy: At the very outset.

Mr. Miller: --it wanted to happen.

Justice Samuel Alito: What would happen if someone filed a challenge within the 30-day period and then the government took title to the land while the litigation was pending?

Do the regulations preclude that from happening while the litigation continues, or is it necessary for the -- the challenger to obtain a stay from a court.

Mr. Miller: The regulations do not address that.

The BIA manual provides that that action, of taking the land into trust, should not be taken while the litigation is pending.

Justice Samuel Alito: Well, is that enforceable?

Mr. Miller: I -- I think that it would not be, but I think that -- I guess I would say two things about that.

The first is that the Secretary enacted these regulations, the 30-day notice rule, precisely for the purpose of ensuring that there would be an adequate opportunity for judicial review and thus removing the constitutional doubt that the Eighth Circuit had found associated with the IRA.

And I think -- so there is every reason to think that the Secretary is going to conscientiously carry out what those regulations provide for, which is allowing judicial review.

And if the Secretary were ever to do that, I think he would find that going forward in every case, courts would enter a stay.

Chief Justice John G. Roberts: Well, they didn't hear.

I mean, when Patchak filed his suit title had not yet passed to the Secretary.

And he sought a stay.

Mr. Miller: And -- and it was -- it was denied, and he could have sought relief from the court of appeals, and he didn't.

Chief Justice John G. Roberts: But nothing -- at that point, you thought nothing prevented the Secretary from moving forward, and in fact the Secretary did move forward even though he had already filed the suit.

Mr. Miller: That -- yes.

Justice Stephen G. Breyer: All right.

Well, then why isn't it like your 30 days?

Mr. Miller: Well, because this was a suit that was not filed within the 30-day period.

The--

Justice Stephen G. Breyer: So what?

Mr. Miller: --They--

Justice Stephen G. Breyer: Can I -- the -- this is exactly the point that I don't understand.

Forget standing for a moment.

I'm just thinking of your quiet title action.

This wasn't an action to quiet title at all.

This was a -- I looked at the complaint, as I -- as I gather from his questions, so did the Chief Justice.

And it is a complaint filed before the -- the property was taken into trust, and it asks for an injunction under the APA, if it wants review of that, before the government has any title to it at all, or at least it hasn't taken it into trust.

So why are we considering quiet title?

What has that to do with this?

Why isn't it exactly what -- now, that's the same as the Chief Justice asked, and I have exactly the same question.

Mr. Miller: --Right.

Well -- and in that period before the land is taken into trust, the APA, everyone agrees, permits, permits that litigation.

Justice Stephen G. Breyer: All right.

Well, why isn't that -- that's the end of that argument, then, isn't it, because this suit was brought seeking an injunction before the land was taken into trust; the district court denies the request for the injunction.

The court of appeals reverses that.

And so there we are.

We're reviewing that action by the court of appeals reviewing a judge who said you are not entitled to an injunction sought before the land was taken into trust.

Mr. Miller: Because at this point the question of whether to enjoin the transfer from taking place is moot.

Because--

Justice Stephen G. Breyer: Oh, I don't know about that.

Well--

Mr. Miller: --The relief that's being sought now -- and this is made clear in Patchak's brief in the court of appeals -- is an order compelling the Secretary to relinquish the title to the land.

And so that--

Justice Stephen G. Breyer: --Well, I don't know how -- how we should treat that.

There was an order.

Suppose that order was wrong.

Suppose they should have granted the injunction.

Then isn't what we should do, send it back because that injunction should have been granted, then have a hearing or trial or whatever you want to have on whether the Act applies, and then figure out how you do relief?

Which I don't know.

Mr. Miller: --No.

The time to seek review of whether to enjoin a not-yet-completed transfer is before the transfer is completed.

Justice Stephen G. Breyer: They did.

Mr. Miller: But -- and if he wanted to appeal the district court's denial of that injunction, he could have done so as of right under--

Justice Stephen G. Breyer: He didn't appeal that.

He appealed--

Mr. Miller: --He did not appeal the denial of the injunction.

Justice Anthony Kennedy: Well, then your -- your argument is just one of timing and not the fact that the reliance is on the -- is on the QTA.

The tribe says, isn't it ironic that if you really have a claim in the land as a property owner you can't sue under the QTA, and this person is much further removed.

Well, that's because he has a different ground for relief.

That's all we're talking about.

Mr. Miller: Well, the--

Justice Anthony Kennedy: So the fact that the QTA suddenly, deus ex machina, pops onto the scene doesn't mean that it -- that that changes his -- his ground for relief that he's -- that he's relying upon.

His ground of relief has always been the same, APA.

Mr. Miller: --With -- with respect, Your Honor, once the land is taken into trust, the -- the only effective relief would be an order taking the land out of trust, and that's what brings this within the scope of the QTA.

Justice Samuel Alito: Well, that depends on whether sovereign immunity is judged as of the time of the filing of the complaint or as of the time of the litigation of the sovereign immunity claim, right?

And you claim -- you don't want us to address that issue.

Mr. Miller: We -- we think it's -- it's not properly before the Court.

But one thing I would just say about that is it is not remarkable, or it often happens that, as the nature of the claims or the identity of the parties changes throughout the course of litigation, sovereign immunity can bar a suit that wouldn't have been barred before.

And one example of that is under the Westfall Act.

Somebody sues an officer of the United States for a tort, that suit can go forward, but if the Attorney General then certifies under the Westfall Act that the employee was acting within the scope of his or her duties, then it gets converted into an action against the United States, which might, if it falls within one of the FTCA exceptions, be brought--

Justice Antonin Scalia: But the Act provides for that.

The Act provides for that, right?

Mr. Miller: --Well, but that -- that's just an example of how, as -- as the parties, or the relief -- here it's the relief -- changes, sovereign immunity can bar an action.

If I could reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Millett.

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER IN NO. 11-246

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

When you strip title to land, which is a fact in this case, you strip sovereignty.

You wreak havoc on ongoing governmental operations, you -- on criminal jurisdiction, civil jurisdiction, the backdrop against which contracts were negotiated, investment decisions made and economic development undertaken.

That is why the Congress of the United States and this Court in Coeur D'Alene have never allowed injunctive relief to strip the United States of title that it has.

The essence of sovereign immunity is, right or wrong, you cannot take title away that the United States has.

Justice Antonin Scalia: Well, is -- is that in the -- is that in the Administrative Procedure Act?

I thought the Administrative Procedure Act eliminates the -- the old bugaboo of sovereign immunity and says when it -- when it will stand and when it won't.

Ms Millett: The--

Justice Antonin Scalia: And if you're relying on the Quiet Title Act, that -- that clearly covers only suits which seek to say, I own the land rather than the government, and this is not such a suit.

So I don't see why normal APA principles wouldn't govern.

Ms Millett: --For two reasons, Justice Scalia.

Because the APA itself -- and this is on page 6a of the addendum to our brief -- says that it does not waive sovereign immunity and does not grant relief if another statute expressly or impliedly forecloses the relief that is sought.

And the Quiet Title Act says you cannot have an injunction stripping the United States of land, period, and you cannot have any litigation over title--

Justice Antonin Scalia: No, but the relief to be sought under the Quiet Title Act is title in the plaintiff.

That's the relief ultimately sought.

Ms Millett: --No--

Justice Antonin Scalia: Now, on the way to that, you may -- you may get some injunctive remedy, but the basis for the lawsuit is -- is not: I own the land.

Ms Millett: --With respect, Justice Scalia, you can get no injunctive relief whatsoever even if you are asserting title.

But the Quiet Title Act itself is brought -- it limits relief to monetary compensation, unless the government agrees to a specific relief.

Justice Antonin Scalia: Relief in that kind of suit, yes.

Ms Millett: Yes--

Justice Antonin Scalia: Relief in that kind of suit.

But this is not that kind of suit.

Ms Millett: --But -- no.

Justice Scalia, with respect, on page -- this is 2a of the addendum to our brief, 2409a(a), the type of suit that is addressed, and to which the Indian lands exception applies, is a suit -- and I'm reading here from the second line of a(a): "A civil action --"--

Justice Antonin Scalia: Excuse me.

I guess I've lost you.

Ms Millett: --I'm sorry.

I'm on the addendum to our -- the blue brief, 2a, and this is the Quiet Title Act.

Justice Antonin Scalia: Okay.

Ms Millett: And right -- subsection (a), the second line, all right:

"The waiver of sovereign immunity is for a civil action under this section to adjudicate a disputed title. "

It does not say--

Justice Elena Kagan: Ms. Millett, it also says: "Under this section".

Ms Millett: --Yes.

Justice Elena Kagan: And the section describes the complaint.

It says:

"The complainant shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims. "

So the type of suit that this section has in mind is a suit in which the plaintiff claims a right, title or interest.

And the language that you read, "under this section", well, that's what this section is about, a suit in which a plaintiff claims the right, title or interest.

Ms Millett: No, Justice Kagan, in this respect.

That tells you what you have to do if you are allowed to proceed under the statute to win, the first step of what you have to do; but, what subsection (a) says is what is carved out, what is a wholesale -- and this court said in Mottaz, a retention of immunity, even in the face of arguments that the government has done wrong administratively, as in Mottaz.

What you do -- have done is retain immunity.

When the -- the section here right under the sentence I read, Justice Scalia, about this section does not apply to trust or restricted Indian lands, what that meant was that this -- that Congress, against a backdrop of complete immunity, said: We've looked at lands, we've studied what we're doing, and we are not doing two things, and we're going to be explicit about it.

We are not letting you touch Indian lands.

The United States may not be named--

Justice Antonin Scalia: You can say that again and again, Counsel, but it does say "under this section".

And I don't -- I don't know how you get out from under that.

It says "under this section".

Ms Millett: --This--

Justice Antonin Scalia: And if this section applies only to suits seeking to assert title on the part of a plaintiff, it's not under this section.

Ms Millett: --This section is, I think, defined by what Congress's waiver of sovereign immunity.

And it didn't say we're waiving sovereign immunity for quiet title actions.

It says for a civil action in which the United States' title is disputed.

So quieting U.S. title--

Justice Stephen G. Breyer: But that -- but you don't -- you can't believe that totally because you agree there is some APA review of an action brought before the title shifts where the claim is you cannot take title, Secretary.

You agree with that.

You can bring some.

Ms Millett: --Absolutely.

Before title--

Justice Stephen G. Breyer: Okay.

Once you agree to that, I stop at the words, not just "under this section", but

"to adjudicate a disputed title to real property. "

Then I read his complaint.

His complaint, on 31 to 38, is asking for an injunction, and it's asking for an injunction before they take any title to the property.

And maybe they went ahead and did it anyway, but is there some other complaint that I didn't read?

Is there some amendment to the complaint in the record?

If so, where is it?

Ms Millett: --I think there's a constructive amendment in this sense, because if the only thing with--

Justice Stephen G. Breyer: I don't know about a constructive amendment is.

Ms Millett: --Well, let me see if I can explain.

If I can explain, To be sure, the complaint, which was untimely filed for purposes of the protection of the government's not taking it into -- into trust, but the set -- it did seek to stop the decision from happening.

After that happened, when he did not seek appeal or emergency relief from the district court not giving him the injunction he asked for -- he asked for a preliminary injunction to stop the taking of title.

The district court didn't give it.

It actually sat on it, constructively denied it.

And it's well recognized in courts of appeals, you can appeal a constructive denial of a preliminary injunction.

He didn't do that.

This is the way litigation works.

Title shifted.

Sovereign immunity shifted.

The Quiet Title Act didn't apply, then it did apply because title was in the hand and in the name of the United States Government.

Justice Antonin Scalia: I thought you were going to answer how his -- his complaint constructively changed.

Ms Millett: And so after that, he had two choices.

He can dismiss the action as moot, but what happened is he continued to press -- and this is on page 25 of his brief, his court of appeals brief, at page 26 and 27 -- he wants an injunction now, not to stop title, but to take title out.

And that's when the Quiet Title Act--

Justice Antonin Scalia: I thought you were going to tell us how it constructively changed to be an action seeking to have a decree that title was in him, which is what the QTA covers.

Ms Millett: --No, it was--

Justice Antonin Scalia: Okay.

Ms Millett: --No, because the Quiet Title Act--

Justice Antonin Scalia: So even constructively, it hasn't turned into that.

Ms Millett: --The Quiet Title Act, when it says -- when it says the only way we'll give you a relief is if you can establish that you have an interest in the land, forecloses suits seeking to adjudicate -- adjudicate, excuse me -- disputed U.S. title by those who don't even have an interest.

Justice Sonia Sotomayor: Counsel--

Ms Millett: And against the back -- I'm sorry.

Justice Sonia Sotomayor: --Counsel, you're assuming that the statute was passed against a backdrop of complete sovereign immunity; but, if you look at Larson and Malone, it appears as if prior to the enactment of the QTA people could bring suits to say that an officer had acted beyond his or her statutory authority.

So what the Quiet Title Act did was encapsulate some of that law.

From where do we draw the conclusion that the intent was to eliminate every other claim that could be brought under something like the APA or an officer suit?

Ms Millett: To be clear, as Justice Scalia himself then testified before Congress, the law was a mess, and you could not discern anything from Larson, Malone.

And the one area where actually courts have pretty consistently denied relief, as Justice Scalia then said, was in the land area.

And Congress responded to hardship; but, in doing so, it was making a critical balance.

It knew how disruptive to government it is to pull the rug out from under the feet of the Federal Government's operations.

And -- and it said we're going to draw lines, and there's three lines.

It said no suits involving Indian lands, no injunctive relief or coercive injunctive relief at all will be allowed.

If you have a right, you will only get damages unless the government agrees otherwise.

And to prevail, you must have an interest in land.

Now, that is a concerted judgment of Congress that we will not--

Chief Justice John G. Roberts: Could I say, just for a moment, let's suppose the tribe -- the -- Mr. Patchak brings a nuisance action against the tribe for running a casino and imposing all these difficulties on the surrounding previously rural community.

He says this is a nuisance.

And the tribe answers and says: No, we can do this under the Indian Gaming Regulation Act.

And Patchak then says: Well, no, because you don't have valid authority under that Act because the Secretary shouldn't have taken the land into title.

Now, that is not a quiet title action.

That is a nuisance action.

Can he have that adjudicated in that suit?

Ms Millett: --He could -- he could bring a nuisance action assuming the tribe waives sovereign immunity, which would be its own problem.

Assuming -- I'm assuming this is a suit against the tribe and not the Secretary.

Chief Justice John G. Roberts: Right, right.

Ms Millett: And so there would be their own either state law or sovereign immunity questions if he could bring it.

And then if the government tried to raise this -- or, excuse me, the tribe raised it as a preemption defense, then there would be a separate question whether at that point a court could issue, consistent with the Quiet Title Act, a declaratory judgment which would pull the rug out from the government's feet.

Chief Justice John G. Roberts: Right.

But there'd be no--

Ms Millett: Now, to be sure, in the--

Chief Justice John G. Roberts: --question of his ability to sue and put that question at issue.

Ms Millett: --There is no question he coul bring -- assuming tribal sovereign immunity, that he could bring a nuisance action; but, it's also important to remember in that context, the other reason that nuisance action would fail is that the courts have already ruled on this claim about the legitimacy of authorization of gambling, about the environmental effects and esthetic effects in the MichGO litigation.

This is simply recycled through the IRA claims that have already been adjudicated and lost.

Chief Justice John G. Roberts: Well, but that's a question that's not before us.

Ms Millett: But with respect to the question of judicial review that was mentioned earlier and I think would be implicated, obviously, in a nuisance action -- this is sort of being case specific with respect to claim preclusion and issues like that.

Chief Justice John G. Roberts: Thank you, counsel.

Ms Millett: Thank you, Your Honor.

Chief Justice John G. Roberts: Mr. Nelson.

ORAL ARGUMENT OF MATTHEW T. NELSON ON BEHALF OF THE RESPONDENTS

Mr. Nelson: Thank you, Mr. Chief Justice, and may it please the Court--

This is a classic APA action.

Mr. Patchak is challenging unlawful agency action.

Mr. Patchak is not asserting a quiet title action where someone asserts an interest in property owned by the government and is trying to get that property back.

And as this Court has already discussed, the best evidence of that is the fact that Mr. Patchak filed this suit before the land was taken into trust.

The fact that the government subsequently took the land did not affect the nature of Mr. Patchak's lawsuit.

Justice Ruth Bader Ginsburg: But he didn't file it within the 30-day window, so that -- that is -- there was a clear track.

He could have filed within 30 days, and at least the government tells us that that would have been subject to judicial review, the ruling made within -- that nothing would go on until that action was cleared.

So why, if he could have sued early, before any title transfer, why isn't that all the relief someone in his position would be entitled to?

Why should he be allowed to wait?

I mean, the whole purpose of the 30-day window is to get people to state their objections.

Mr. Nelson: Justice Ginsburg, the 30-day window is a notice period.

Mr. Patchak did in fact file is lawsuit within the 6-year statute of limitations provided by Congress for APA claims.

And the reason that the Secretary adopted the 30-day notice provision is the very argument that we believe is misplaced here, namely that the Quiet Title Act springs up to bar judicial review after the land is taken into trust.

We don't believe that's the case because Mr. Patchak is not asserting a Quiet Title Act action, which is limited to those claims where someone says, this is my property and I want it back or, with regard to the government, at least pay me for it.

Justice Antonin Scalia: You say the 30-day window only applies to quiet title actions.

Mr. Nelson: Your Honor, the 30-day window -- yes, if someone was asserting a quiet title action, the 30-day window would apply.

Justice Antonin Scalia: Surely -- surely the 30-day envisions comments by anybody, not just people who claim to own the property, doesn't it?

Mr. Nelson: Your Honor, certainly it provides for comments in that people can come and assert their comments absolutely, but it doesn't prevent someone from asserting a lawsuit.

Justice Sonia Sotomayor: Would you have been entitled to file in that 30-day period?

How is your claim, the one that you ultimately made, any different than what you would have done if you had filed within the 30 days?

Mr. Nelson: Justice Sotomayor--

Justice Sonia Sotomayor: Same claim, right.

Mr. Nelson: --It is the same claim, yes, Your Honor.

Justice Sonia Sotomayor: All right.

Tell me what relief you're seeking that's different than -- are you -- what relief are you seeking?

Aren't you seeking to shed the United States of its title?

Mr. Nelson: Your Honor, the relief that--

Justice Sonia Sotomayor: Just the -- what's the -- don't tell me what your cause of action is.

What relief at the end of the day do you want?

Mr. Nelson: --Justice Sotomayor, Mr. Patchak is seeking a declaratory judgment that the decision of the Secretary that it can take land into trust for this particular band of Indians is incorrect, and that, therefore, the decision to do so is ultra vires; and as an incident to that relief, now that the government has taken the land into trust, that the land now be taken out of trust.

That does not convert this, though, into a quiet title action because Mr. Patchak is not asserting an interest in the property itself.

The relief of the quiet title action provides -- has two parts.

It both provides for -- that title will be taken from the government and that title will be quieted in the plaintiff.

The relief that Mr. Patchak is seeking does not include quieting title in himself.

Justice Elena Kagan: Mr. Nelson, putting that question aside of whether this is or isn't a quiet title action, there's another question, which is whether sovereign immunity can come into effect after a suit has been filed.

It seems to me a hard question and one that has not been briefed by either party particularly.

So I just ask you, is there case -- are there any cases that you can point to that suggest that sovereign immunity cannot come into effect after a suit has been filed?

Because what the government says is, you know, circumstances change, conditions change on the ground, sovereign immunity can pop up where it didn't exist before.

Is there any precedent that you have to negate that?

Mr. Nelson: Your Honor, I am not at this time prepared to say that there is or is not.

I do know that we have cited in the footnote in our brief the -- I believe it's the Grupo Dataflux case that indicates that jurisdiction is decided at the time that the complaint is filed.

Because the D.C. Circuit specifically reserved this issue, we did not believe this issue was before the Court.

Justice Ruth Bader Ginsburg: The government answers that that's in diversity.

You know, you determine citizenship as of the date the complaint is filed.

Citizenship of a party changes, so if it coincides with someone on the other side of the line it doesn't matter.

But do you have cases other than diversity cases where the filing of the complaint -- nothing happens, nothing that can happen after affects the jurisdiction as set as of the time the complaint is filed?

I don't know outside diversity where this principle has applied.

Mr. Nelson: Your Honor, I am not at this time aware of any cases.

I'm not, unfortunately, in a position to say that the cases do not exist or do exist.

I believe the issue was addressed in the D.C. Circuit briefing, but I'm not aware at this time of any cases that would -- that address this specific issue.

Chief Justice John G. Roberts: The Solicitor General in footnote 1 of his reply brief says that's the general rule, which I take it there might be exceptions to it.

Mr. Nelson: Exceptions.

Chief Justice John G. Roberts: But I'm sure he'll tell us what those are.

Justice Sonia Sotomayor: Counsel, is there any limit to who can bring an APA action under your theory?

It seems to me that what you're saying is that anyone other than a landowner because of the Quiet Title Act can within 6 years attempt to unravel any decision the government has made to take land, because we're not limited now to trust lands.

We're limited -- under your theory, whenever the government takes any kind of land, anyone's entitled to come in and challenge that action under the APA for 6 years and to seek an injunction because it isn't a quiet title action.

It's merely a challenge to the decision to take land.

Is there any limit to your theory as to who can bring that kind of action and--

Mr. Nelson: Justice Sotomayor, yes, there is a limit on who may assert these actions, first with regard to this Court's prudential standing analysis would obviously provide a limitation, but second with regard--

Justice Sonia Sotomayor: --In which way?

You're saying anyone who is affected, your niece, your farm owner's niece who comes to visit twice a year or visits the land and walks through it, could presumably say: I'm negatively affected by the government's taking of this land, Indian or not, within the 6 years, and the government improperly took the land; undo it.

Mr. Nelson: --No, Your Honor, I don't believe that my -- that my client's niece would have prudential standing because I don't think that you could -- that that person would arguably be within the zone of interests to assert that claim.

I think that the zone of interest test does exclude people who might have Article III standing from asserting these types of claims.

Justice Antonin Scalia: I thought that -- maybe I'm wrong, but the government will correct me if I am.

I thought the government concedes that a NEPA action could -- could be brought when the government is taking land to use for a particular use.

Let's say it's -- it's taking land for a nuclear waste repository.

Certainly a NEPA action would -- would lie.

You don't disagree with that, do you.

Mr. Nelson: We don't disagree.

Justice Antonin Scalia: You're supposed to say, yes, sir, good.

[Laughter]

Justice Sonia Sotomayor: No, but my question -- counsel, my question was different.

Under your theory, you could bring this suit after the land has been taken.

NEPA assumes before the land was taken.

I'm talking about under your theory of law, once land has been taken by the U.S., if anyone has a viable legal claim that the land was taken improperly, whether it's Indian trust land or anyone else's land for any other purpose, that person within 6 years can still bring a suit under the APA.

Mr. Nelson: Only to the extent that the land is taken as a result of administrative action.

Justice Stephen G. Breyer: No, no, no.

You can't -- I mean--

Justice Sonia Sotomayor: Government land is always taken by administrative action.

Mr. Nelson: I'm sorry.

Justice Stephen G. Breyer: --I thought -- I mean -- sorry.

You answer it as you want according to your argument.

There is a difficult question here.

The difficult question is what happens if one brings an ordinary APA suit before land is taken, before that suit can be decided, before that suit can be decided, the government takes the land.

Does that transform it into a quiet title action?

The obvious answer, which isn't obvious at all, is that the answer is that it's a proper APA suit if you bring it before they take it.

And if you bring it after they take it, it's a quiet title action.

And -- and that would seem to me a first blush answer.

But I haven't found -- I mean, that's a question we don't -- I don't know if we have to answer that question.

It seems to be quite difficult.

And I don't know what authority there is.

And is it fully argued in the briefs?

So what -- isn't that what -- you're thinking -- I think Justice Sotomayor is thinking, well, and you just said you can bring it after.

I don't know if you can bring it after.

So go one and answer now--

[Laughter]

And I want to hear what you say.

Mr. Nelson: Thank you, Justice Breyer.

The fact that this -- the fact -- the fact that the land is taken into trust does not transform the action into a quiet title action simply because the government--

Justice Sonia Sotomayor: Forget about the trust.

Mr. Nelson: --Okay.

Justice Sonia Sotomayor: Because under your theory of what -- what the APA permits you to do, anytime the government takes land, whether into trust or for any other purpose, the APA permits someone within six years, with whatever definition of prudential standing you want to give it, to come in after the taking and challenge that it was ultra vires, that it was done improperly.

That's your theory.

So going back to Justice Breyer's question, why isn't that within the quiet title action prohibition--

Mr. Nelson: Your Honor--

Justice Sonia Sotomayor: --once it's in the government's hands.

Mr. Nelson: --Once it's in the government's hands, it is -- it does not -- once the government acquires the title, it does not change the nature of the APA action because the Quiet Title Act is limited to--

Justice Antonin Scalia: You're not -- you're answering the question with regard to an argument I don't think you've made and I don't think you would want to make.

You're not asserting that the action can be brought anytime within six years after the government has already taken the land.

You're just asserting that an action brought before the government takes the land does not change its character and become a quiet title action afterwards; right.

Mr. Nelson: --Yes, Your Honor.

Justice Antonin Scalia: You're not saying that anybody can bring within six years after the government's taking a suit, are you?

I hope you're not arguing that.

Mr. Nelson: Absolutely not, Your Honor.

Justice Antonin Scalia: Thank you.

[Laughter]

Justice Samuel Alito: What would happen now, as a practical matter, if Mr. Patchak were to -- were to prevail?

I take -- I understand the casino's built and running.

So what would happen?

Mr. Nelson: Your Honor, what would happen here, to our understanding, is the land would be taken out of trust and would revert to the tribe.

Justice Ruth Bader Ginsburg: But I think the government told us that the land didn't belong to the tribe in the first place.

Mr. Nelson: Your Honor, I'm not entirely sure as to what the status of the title was.

Our understanding is that--

Justice Ruth Bader Ginsburg: Well, the government did say that the Band was not the prior owner of the tract.

So where would it go?

Mr. Nelson: --Your Honor, the -- it depends in part, I believe, at this -- at that point, based on state law, what the effect of the Court's decision would be.

Would it render the trust status void?

If so, under Michigan law, the land would vest in the intended beneficiary, which is the tribe.

If it -- if it does not, if the entire action would be undone, the land would revert back to the prior owner, which, to the best of my understanding, is a company that involves ownership both by a group of Las Vegas investors and also, to my understanding, the Band itself; although, I could be corrected on that.

Justice Sonia Sotomayor: Was that the -- I thought part of it was agricultural land, and that another part was a business.

I mean, I think -- I thought -- well, the government can correct me.

Mr. Nelson: Your Honor, the land itself was partially agricultural and partially light manufacturing.

That was how it was zoned.

Justice Sonia Sotomayor: Right.

Mr. Nelson: But it was all owned as a single parcel.

The Bradley tract was, I believe, a single parcel for the purpose of--

Justice Stephen G. Breyer: But your injury, your injury is that it's being used for gambling.

So is there room for relief that could say the government can do what it wants to the land, it just can't let it be used for gambling, if you want.

And that would cure your injury, and it wouldn't require the government to give back the land, and it wouldn't require any unscrambling, and title could rest in the government.

I don't know if that's possible or not possible.

Mr. Nelson: --Your Honor, we -- we looked into and wanted to make an argument that somehow you could separate the trust title status and the Federal Government's fee simple interest.

And in looking at the deed itself, it doesn't look like that can be done.

Justice Anthony Kennedy: What were the provisions, if any, in the Indian Reorganization Act itself that how a concern for the kind of standing that you're lleging here?

It seems to me you're talking about nvironmental effects and so forth under the ndian Gaming Act, but yet your primary suit is under he Indian Reorganization Act.

So I don't see -- I understand how that might give you standing, but how oes it give you a cause of action for relief under the Indian Reorganization Act?

Mr. Nelson: Your Honor, land--

Justice Anthony Kennedy: The Indian Reorganization Act, just to help pursue the question a little bit further, has a provision about the public interest, but not in the section which you're relying on.

It doesn't say anything about the public interest.

Mr. Nelson: --Yes, Your Honor, section 463 of the Indian Gaming Act--

Justice Anthony Kennedy: does, but you're going under 465.

Mr. Nelson: --Correct, we're under 465, our Honor.

Justice Kennedy, I would point to the fact that the land is authorized to be taken into trust for Indians; and, when land is taken into trust, it necessarily implicates the use.

And as soon as the use implicated, anyone who is affected by that use -- people who live in close proximity to that land -- are within -- are arguably within the scope of those people who Congress would expect to enforce--

Justice Anthony Kennedy: What is the specific provision of the IRA that you rely on?

You -- do you go back to 463?

Because there's nothing in 465 that answers your -- this question, I don't think.

Mr. Nelson: --Your Honor, I agree that section 465 does not specifically reference the public interest.

It does, however -- the intent in 465 is to have land taken into trust.

And I don't believe that you can separate the fact that the land is being taken into trust from the specific use to which it is being put.

Congress authorized the land to be taken into trust for a specific use.

And you can see, in fact, that the government has reached the same conclusion.

When you look at the regulations that the Secretary has adopted in consideration of section 465, they not only address land use, the tribe has to identify the use to which the land will be put, but they also require the tribe to identify any conflicts of land use, which clearly addresses the fact that other people are going to be affected by the land use.

Consequently, those -- and we believe those -- those regulations are subject to Chevron deference because they fall within the scope of the authority delegated to the Secretary, and they don't conflict with the broad delegation there in the -- in section 465.

So--

Justice Anthony Kennedy: That's helpful.

Just a different question, going back to what -- Justice Alito's question.

It does seem that we may be wasting our time.

I'm not suggesting that the state -- that the case is moot, but you did wait for some three years before you brought this suit.

The building was built.

It seems to me there's a considerable laches problem.

I suppose that's just not before us.

Mr. Nelson: --Your Honor, in fact, the APA reserves the laches defense, and the laches defense has been asserted here.

But I would point out that the casino hadn't -- the casino did not open and they did not move forward with this until after the land was taken into trust, which was six months after this lawsuit was filed.

At that point, in spite of the knowledge of this Court's decision in Carcieri, they made a reasonable business decision to move forward with this, knowing the risk that they were taking that the entire basis of them being able to operate a casino and engage in class 3 gambling could be overturned.

Justice Elena Kagan: But, Mr. Nelson--

Justice Anthony Kennedy: But that was under the MichGO suit, not yours.

Mr. Nelson: No, Your Honor.

They knew that our suit had been filed--

Justice Anthony Kennedy: Oh, your suit had been filed at that point.

Mr. Nelson: --Correct.

Justice Elena Kagan: --Mr. Nelson, could I understand the scope of your argument?

Because I had understood -- let's take the timing question aside for a minute.

Let's -- let's assume that you had filed this suit after title had transferred.

I had understood that your argument was, yes, you should be allowed to do that because, even though this was filed after title had transferred, yours is just not a quiet title action, and it's not a quiet title action because you're not seeking title yourself.

Isn't that the question?

Isn't that your argument?

Mr. Nelson: Yes, Your Honor.

Justice Elena Kagan: So your argument really has nothing to do with the question of timing.

Your argument would be the same even if title had transferred prior to your filing your lawsuit.

Mr. Nelson: Your Honor, we believe that that is a logical result; but, we do not believe that the Court needs to address that issue in this case because our argument is much stronger than that because we did, in fact, file suit before the land was taken into trust.

Justice Elena Kagan: Well, as I understood your brief, 49 pages of it were about one thing, and there's one footnote that's about something else.

In other words, all of your brief is basically saying: Ours is just not a quiet title action, and so we should be allowed to proceed irrespective of when the government acquires title.

And then you have this little additional argument which says: By the way, we started this lawsuit before the government had title anyway.

So, I mean, the briefing in this case is all about what you now say is your weakest point.

Mr. Nelson: Your Honor, I would disagree that it is our weakest point, but I do agree that the -- that the logic here of the position that this is not a Quiet Title Act action means that even if the government acquires title to the land while the suit is pending, that, logically, it would then follow that the action remains an APA action, and it is not converted into a quiet title action.

Justice Antonin Scalia: I think you're right.

I pushed you into it.

It's my fault.

You're right.

Chief Justice John G. Roberts: And the proposition would be simply that the government can't go in and -- and moot out a suit that was -- by its unilateral action, right?

Mr. Nelson: Yes, Your Honor.

Chief Justice John G. Roberts: I mean, they seem to recognize that it would be a bad thing, since it's only by their grace, they've told us, that they don't do it right away anyway.

They give people 30 days.

Mr. Nelson: Correct, Your Honor.

Justice Ruth Bader Ginsburg: Didn't they -- wasn't -- didn't they have some encouragement from a court of--

appeals suggesting there might be a due process problem if they didn't have that notice?

Mr. Nelson: Your Honor, there was the Eighth Circuit decision, I believe it was United States v. South Dakota or South Dakota v. United States, in which the court there found that the lack of judicial review pushed towards the conclusion that the Reorganization Act is an unconstitutional delegation of legislative authority.

And that was one of the reasons or that was the reason cited in the Federal Register for why the Department of Interior adopted the 30-day notice provision.

Justice Stephen G. Breyer: I don't think Justice Scalia's argument was a bad argument.

I thought it was a rather good argument.

If in fact you go back and you take the view that any suit filed to review APA is not a quiet title action, people could go upset government title to property years and years later.

And they would say: Oh, well, we're not challenging the title; we're just challenging what happened when it was taken, the title was taken.

That can't be right, it seems to me, first blush.

So, therefore, I thought you -- yours was different because you filed before they took title.

But, as I say, I'm uncertain of that distinction.

Now, your answer suggests you've been going both ways.

Sometimes you think, well, it matters that we filed before, and other times you think, no, it doesn't matter.

Justice Sonia Sotomayor: Is that because you don't have a theory as to why once the government takes it it's not a quiet title action?

Mr. Nelson: Your Honor, the Quiet Title Act by its terms requires that the person who is asserting the action had an interest in the property.

Justice Sonia Sotomayor: So answer my question, or the one that Justice Breyer has said.

Then it doesn't -- and the one Justice Kagan repeated yet again -- okay?

What difference does it make that the government has taken title?

Whether the government has title or doesn't, under your theory, since this is not a quiet action -- title action, anyone who is unhappy with the way the government took title could challenge it within 6 years.

Isn't that the bottom line of your theory?

Mr. Nelson: Yes, Your Honor.

Anyone--

Justice Sonia Sotomayor: Absent laches.

You say the only defense is laches.

Mr. Nelson: --No, Your Honor.

The defenses would be laches, the zone of interest would apply, other -- any other defense--

Justice Sonia Sotomayor: But the bottom line is, under your theory, as long as no landowner, the person most directly affected by the taking, as long as that person can't sue, but anybody who is an indirect person can sue within 6 years, anybody who says, I don't want the land, I just don't want the U.S. to have the land.

Mr. Nelson: --No, Your Honor.

There is a distinction I think has to be made there.

The -- someone who has a right, title, or interest in the property, absent there being trust land, can sue to upset the government's title for 12 years under the Quiet Title Act.

They could bring a claim under the APA for up to 6 years to govern the -- or to challenge the government's decision to take the land--

Justice Sonia Sotomayor: But they can't undo the transfer.

They can only get money.

Mr. Nelson: --Under the Quiet Title Act they can only -- for the 12-year period they can only undo -- they can -- excuse me.

The government, if they prevail, the government, correct, has the option of deciding whether to pay for the land or to -- to give it up.

Justice Elena Kagan: I think--

Justice Antonin Scalia: Of course the government can fix that.

I mean, if this is indeed an inconvenient situation, that we think the government should not be in doubt for 6 years afterwards, I guess Congress can simply change it, right?

Mr. Nelson: Yes, Your Honor.

Justice Antonin Scalia: Totally within the control of Congress.

We -- we -- we don't have to make up some limitation to protect -- to protect the United States.

Mr. Nelson: I agree, Your Honor.

Justice Antonin Scalia: Yes.

Justice Elena Kagan: --I suppose the question, Mr. Nelson, though, is whether you can provide us with a reason why Congress would have wanted what you call quiet title suits -- and I agree that your definition is the traditional definition; when somebody -- when the plaintiff is a -- is himself asserting a right or interest -- why those suits should be barred, but your suit involving a third party should not be barred.

What could possibly be the reason to distinguish between those two sets of cases?

Now, you might just say, I don't have to give you a reason, this is what the result of the statute says.

But if I say, just try to provide me with a reason why Congress would have wanted that distinction, what would you say?

Mr. Nelson: Your Honor, I guess I would first say that because relief under the APA is different than relief under the Quiet Title Act, someone with a right, title or interest in the property can assert the same claim that Mr. Patchak can, in spite of the fact that they have that right, title or interest, under the APA, as long as they do not seek under the APA to quiet title in themselves.

Second, with regard to why this provision would -- this provision is there -- I'm sorry, Your Honor, I have to acknowledge I've lost track of your question.

Have I responded or can you restate it?

Justice Antonin Scalia: What -- what about this as a reason?

When you prevail in a quiet title action, the only way the government can get off the hook is to give you the land, if it's -- if it's within, what, the 6 years, or pay you money, if it's after 6 years, but within 12.

Whereas in your case, I suppose the government could moot the suit, moot the suit, by simply disallowing gambling.

Can the government do that.

Mr. Nelson: Your Honor--

Justice Antonin Scalia: Once it has told the tribe that they can have -- I mean, this suit could be -- could go away so long as the tribe does not run a casino; isn't that right?

That's your -- that's the gravamen of your complaint.

Mr. Nelson: --That is the gravamen of the injury, yes, Your Honor.

Justice Antonin Scalia: So I guess you -- you could be a happy fellow if -- so long as the tribe doesn't build a casino, whereas in -- in quiet title cases, the only way you can make a happy fellow out of the plaintiff is to give him the land.

Mr. Nelson: Or to pay him for it, yes, Your Honor.

Unless the Court has any further questions, I cede the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Miller, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF ERIC D. MILLER ON BEHALF OF THE PETITIONERS IN NO. 11-247

Justice Anthony Kennedy: Mr. Miller, one -- one question, if -- if I may.

The government takes the position -- at least this was the way the Respondent puts it -- that it can basically moot their action by turning this into a quiet title action just by taking title.

And let's assume that that's one characterization of your position.

And the Respondent on the other hand says, oh, well, this is an APA action, we can -- we can wait forever, at least for 6 years.

Is there some midway position that the government can't moot the case too soon, that it must wait a reasonable time?

Or is there no basis in the statute or in the cases for that position to hold?

Mr. Miller: If I understand correctly, you're asking about the case where the -- the lawsuit is filed before the land has been transferred.

Justice Anthony Kennedy: Yes, yes.

Mr. Miller: I don't know of any basis for restricting the government's ability to do that, I mean, short of the plaintiffs obtaining an injunction from the court.

I guess the broader point I would make about that timing question is that the -- the court of appeals--

Justice Anthony Kennedy: Well, in other words you're -- you're sticking with your position.

You say you can basically moot a suit at any point you want just by taking title, so you're -- you're not accepting any qualification to that proposition.

Mr. Miller: --That -- that is our position.

I would just emphasize that that was not the basis of the -- the ruling of the court of appeals.

The court of appeals held that it doesn't matter when the suit is filed, and under the court's analysis--

Justice Anthony Kennedy: All or nothing, okay.

Mr. Miller: --it would be exactly the same, even if it was filed later.

And I think the -- the error in that analysis is -- is that the question here is not whether Patchak's suit is a Quiet Title Act action.

The question is whether the Quiet Title Act expressly or impliedly precludes relief under section 702, and the answer to that question is yes.

And I'd just like to make two points about that.

The first is that the general principle recognized by this Court in Brown v. GSA and a number of other cases is that when you have a narrowly drawn remedial scheme for a particular subject, that that precludes resort to more general remedies.

And here the Quiet Title Act is exactly such a scheme.

It's the mechanism for adjudicating a disputed title to real property in which the United States claims an interest, and it has its own procedures, its own statute of limitation--

Justice Elena Kagan: Well, but -- but in saying that you have just broadened, or arguably you have.

If -- if you think that the quiet title action is really about the narrower set of cases, which is when a person himself claims title, how can you get from that to say that there is an express or an implied refusal of -- of this kind of claim?

Mr. Miller: --I think for two reasons.

And the first is, just that -- that first sentence of 2409a(a), which is, you know, to adjudicate a disputed title to land on which the United States claims an interest.

That's a perfect description of what this case is.

And the second is that the last sentence of section 702 directs our attention to whether the relief is expressly or impliedly forbidden by another statute.

And the relief that is sought here is an order compelling the Secretary to relinquish title on behalf of the United States to this land.

And--

Chief Justice John G. Roberts: Do other consequences other than the ability of the Secretary to take land in trust flow from whether or not a tribe is recognized in 1934?

Mr. Miller: --I -- I'm not aware of any.

I'm not sure that there aren't any others, but--

Justice Antonin Scalia: All right.

Do you have any concern that the government will get hoist by its own petard?

What your argument -- the conclusion to which your argument leads is that this individual or any individual claiming that the government took title incorrectly can sue under the Quiet Title Act, even if they don't claim that title was taken from them.

Are you sure that's good for the government?

Mr. Miller: --Well, this action would be barred under the Quiet Title Act because the Quiet Title Act expressly precludes this relief, where -- where Indian trust land is at issue, where the relief that's sought is an injunction compelling relinquishment of title without the option of paying damages--

Justice Antonin Scalia: Of course, that's not the only time the government takes land, right?

Mr. Miller: --Well, and the Quiet Title Act, section (d) requires in a suit under the Quiet Title Act the plaintiff to identify his interest in the land.

Chief Justice John G. Roberts: Mr. Miller, I mentioned earlier your footnote 1 in your reply brief about whether the time of filing question for sovereign immunity purposes is limited to diversity cases.

Are there -- you cite one case.

Are there others going the other way?

Mr. Miller: I'm not aware of others, but--

Chief Justice John G. Roberts: What--

Mr. Miller: --I can't say with confidence that there aren't any others.

One point I would make on that is just refer you to the Florida Prepaid case from 1998, which was about state sovereign immunity and which explained that a state may condition its waiver of sovereign immunity and may change that in the course of the litigation.

And I think that's another analogy that might be instructive here.

Chief Justice John G. Roberts: --So this suit would come out the other way if the person objecting was just over the border in -- in Indiana, instead of in Michigan?

Because there would be -- it could be brought as a diversity suit.

Mr. Miller: Well, it would--

Chief Justice John G. Roberts: I'm assuming--

Mr. Miller: --It would be still be -- sovereign immunity would still apply.

Sovereign immunity would bar relief, even if the basis for jurisdiction were diversity rather than--

Chief Justice John G. Roberts: --Even if it were a suit against the tribe, it would still be not a diversity action but a Federal cause of action?

Mr. Miller: --Our point is that the reason it's barred is because of sovereign immunity.

When -- the time of filing in diversity cases refers to if the citizenship of the parties changes during the course of the litigation.

That doesn't -- my understanding is that doesn't defeat diversity.

That's the nature of that exception.

Chief Justice John G. Roberts: Okay.

Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: In case Number 11-246, Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak.

Justice Kagan has the opinion of the Court.

Justice Elena Kagan: This is a case about sovereign immunity and prudential standing, maybe not what you've all come for today.[Laughter]

The question is whether to allow a suit brought by respondent, David Patchak to proceed.

Respondent Patchak owns property in rural Michigan.

He brought suit when the Department of Interior acquired property for an Indian tribe, the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians to enable them to build a casino.

Patchak thinks a casino will change the character of the area and cause him economic, environmental, and aesthetic harm and he says the Government lacked the authority, the legal authority, to acquire this land under the Indian Reorganization Act.

So, he asked the Court to reverse the Government's acquisition of the land by divesting it of title.

When citizens like Patchak contest the legality of agency action and seek non-monetary relief, they bring a suit under a statute called the Administrative Procedure Act or APA.

That Act contains a provision waiving the Government's sovereign immunity which is the legal doctrine that historically prevents governments from being sued.

But the APA's waiver of immunity has an exception, when another statute forbids the suit, the APA's waiver of immunity does not control.

The tribe and the Government contends that in this circumstance another statute called Quiet Title Act does forbid the suit because they say, that's statute retains the Government's immunity from any suits challenging the Government's title to Indian trust lands.

That's the first question we address in this case.

We reject the Government's argument because we think the Quiet Title Act addresses a different kind of suit than the one Patchak brought.

The Quiet Title Act is about, this is going to surprise you, but the Quiet Title Act is about quiet title actions.

And a quiet title action is a very particular kind of suit which requires the person suing himself to claim ownership of the land in question.

If Patchak claims to own the land here, the Quiet Title Act would control and it would indeed bar the suit because it prevents quiet title actions involving Indian Lands.

But because Patchak does not claim ownership of the land, he is not bringing a quiet title action and the Quiet Title Act simply has no application.

Instead, the APA's general waiver of sovereign immunity controls.

But tribe and Government also have another objection to Patchak's suit that he does not have what we've called prudential standing to bring it.

Recall that Patchak says the Government lacked authority to acquire this property under the Indian Reorganization Act.

The prudential standing argument is that Patchak does not fall within what we've called the zone-of-interests regulated by that statute and so cannot bring this lawsuit.

That argument depends on the idea that the Indian Reorganization Act is not about land use, but only about land acquisition.

If that were true, Patchak couldn't bring his suit because it's only an objection to the way the Band is going -- the tribe is going to use the suit.

So, the suit would not be sufficiently connected to the statute that Patchak says was violated, but here, that's just not true and so we reject the prudential standing argument, too.

The Indian Reorganization Act serves to promote Indian economic development.

So, when the Department decides whether to acquire land for a band or a tribe it thinks a good deal about what the tribe would do with that land, including what potential conflicts the use will create and indeed it did so in this very case.

The upshot is that because the Indian Reorganization Act is about land use, a neighbor who objects to that use has prudential standing to bring an action under the APA.

We accordingly hold that Patchak suit may proceed and because that was the conclusion reached by the D.C. Circuit Court of Appeals, we affirm its judgment.

Justice Sotomayor has filed a dissenting opinion.