The Mashpee Wampanoag Tribe has until July 31, 2012 to come to an agreement with Governor Patrick and have the compact approved by the legislature. However, the June 18, 2012 decision by the US Supreme Court, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, could be problematic for the Mashpee.

The case arose when a Michigan Indian tribe persuaded the federal government to take certain land into trust for the tribe, thereby facilitating the tribe’s construction of a casino on the property. A neighbor who opposed the casino project sued the federal government, arguing that it lacked the power to take the land into trust for the tribe because the tribe was not federally recognized in 1934 – the year Congress enacted the Indian Reorganization Act (IRA), which authorized the government to take land into trust for Indian tribes.

In the lower courts, the tribe and the federal government argued that the suit was barred by the federal Quiet Title Act, which provides a mechanism for disputing the federal government’s ownership of real property but does not waive the government’s immunity for suits involving Indian trust lands (the kind at issue in this case). They also argued that the plaintiff lacked prudential standing to raise objections to the government’s compliance with the IRA. The D.C. Circuit ultimately rejected both arguments and allowed the suit to proceed.

In an opinion written by Justice Kagan, the Court affirmed, holding that the Administrative Procedure Act (APA) waived the government’s immunity from suit, that the Quiet Title Act did not withdraw or limit that waiver of immunity, and that the plaintiff had prudential standing to assert his APA claim.

Justice Kagan explained that by its plain terms, the APA waives the government’s immunity to this kind of suit, unless some other statute “expressly or impliedly forbids the relief” being sought. So the real question was whether the Quiet Title Act fell within that proviso. The Court concluded that it does not. The Quiet Title Act, the Court concluded, prohibits only suits that fall within the bounds of a traditional quiet title action – namely, suits in which the plaintiff seeks to not only divest the government of title to land (which this suit arguably does) but also asks the Court to vest title in the plaintiff (which the present suit does not). The Court brushed aside the tribe and the government’s claim that the statute should be read more broadly, given its purposes, to reach any suit that would result in the government losing title to land. Justice Kagan acknowledged that the argument had “some force” and that it is possible that “Congress would – or Congress should” prohibits such suits as a matter of policy. But, the opinion continued, “that is for Congress to tell us, not for us to tell Congress.”

The Court also held that the plaintiff had prudential standing to bring his claim. The purpose of allowing the government to take land into trust for a tribe is to facilitate the tribe’s use of the land for economic development. And, the Court held, people living near that land, and affected by its use, therefore “arguably” fall within the “zone of interests” to be protected or regulated by the IRA and therefore have prudential standing to bring claims under it.

In her dissenting opinion, Judge Sonia Sotomayor wrote about the “array of uncertainties” the majority ruling is likely to create. She believed the ruling will make lands vulnerable to lawsuits that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge.”

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