Patchak v. Salazar

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2010 Decided January 21, 2011

No. 09-5324

DAVID PATCHAK,
APPELLANT

v.

KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES DEPARTMENT OF THE
INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01331)

John J. Bursch argued the cause for appellant. With him on
the briefs was Daniel P. Ettinger.

Aaron P. Avila, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
was Elizabeth Ann Peterson, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.

Edward C. DuMont argued the cause for appellee
Match-E-Be-Nash-She-Wish band of Pottawatomi Indians.
 2

With him on the brief were Seth P. Waxman, Demian S. Ahn,
Conly J. Schulte, and Shilee T. Mullin.

John H. Dossett and Riyaz A. Kanji were on the brief for
amicus curiae National Congress of American Indians in
support of appellees.

Before: HENDERSON and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

RANDOLPH, Senior Circuit Judge: The district court
dismissed David Patchak’s suit to prevent the Secretary of the
Interior from holding land in trust for an Indian tribe in
Michigan. Patchak’s appeal presents two jurisdictional issues:
whether, as the district court held, he lacks standing; and
whether, if he has standing, sovereign immunity bars his suit.

The land consists of 147 acres in Wayland Township,
Michigan, a rural, sparsely populated farming community. The
Secretary published in the Federal Register his decision to take
this property—the Bradley Tract—into trust for the Match-E-
Be-Nash-She-Wish Band, also known as the Gun Lake Band.
70 Fed. Reg. 25,596 (May 13, 2005). The Band owned the land
and wanted to construct and operate a gambling facility there.
To do this, the Band had to convince the Interior Secretary to
take title to the land into trust pursuant to the Indian Gaming
Regulatory Act. See 25 U.S.C. §§ 2701–21; Butte Cnty., Cal. v.
Hogen, 613 F.3d 190, 191-92 (D.C. Cir. 2010).

The Secretary’s notice in the Federal Register announced
that he would wait at least thirty days before consummating the
transaction. The purpose of the delay, which 25 C.F.R.
 3

§ 151.12(b) required, was “to afford interested parties the
opportunity to seek judicial review of the final administrative
decisions to take land in trust for Indian tribes and individual
Indians before transfer of title to the property occurs.” 70 Fed.
Reg. at 25,596.

During the thirty-day period, an anti-gambling organiza-
tion—“MichGO”—brought an action claiming that the Secretary
had violated the National Environmental Policy Act and the
Indian Gaming Regulatory Act. The district court issued a stay
of the Secretary’s action. The court later dismissed the organiza-
tion’s suit, and this court affirmed. See Mich. Gambling
Opposition (MichGO) v. Norton, 477 F. Supp. 2d 1 (D.D.C.
2007), aff'd sub nom. Mich. Gambling Opposition v. Kemp-
thorne, 525 F.3d 23 (D.C. Cir. 2008).

In the meantime, Patchak filed his complaint. He alleged
that he lived near the Bradley Tract; that the Tribe’s gaming
facility would attract 3.1 million visitors per year; that this
would destroy the peace and quiet of the area; that there would
be air, noise and water pollution; that there would be increased
crime in the area and a diversion of police and medical re-
sources; and that the Secretary’s proposed action was ultra vires.
Patchak invoked general federal question jurisdiction and the
Administrative Procedure Act. He claimed that because the Gun
Lake Band was not under federal jurisdiction in 1934, the Indian
Reorganization Act of 1934, 25 U.S.C. §§ 461-79, did not
authorize the Secretary to take the Band’s land into trust. The
Gun Lake Band intervened as a defendant.

After this court affirmed the dismissal of the MichGO
action, the stay expired. The district court then denied Patchak’s
emergency motion for an order preventing the Secretary from
proceeding with the land transaction. On January 30, 2009, the
Secretary took the Bradley Tract into trust. Three weeks later,
 4

on February 24, the Supreme Court issued its opinion in
Carcieri v. Salazar, 129 S.Ct. 1058 (2009). The Court agreed
with Patchak’s argument that § 479 of the Indian Reorganization
Act—the IRA—limited the Secretary’s trust authority to Indian
tribes under federal jurisdiction when the IRA became law in
1934.

Despite Carcieri, the Secretary urged the district court to
dismiss Patchak’s suit. He argued that the Quiet Title Act, 28
U.S.C. § 2409a, precluded any person from seeking to divest the
United States of title to Indian trust lands. In other words, by
taking the Bradley Tract into trust for the Gun Lake Band while
Patchak’s suit was pending, the Secretary deprived the court of
jurisdiction.

In August 2009, the district court dismissed the suit on a
different ground—namely, that Patchak, “at a minimum, lacks
prudential standing to challenge Interior’s authority pursuant to
section 5 of the IRA.” Patchak v. Salazar, 646 F. Supp. 2d 72,
76 (D.D.C. 2009). The court reasoned that Patchak’s “interests
do not only not fall within the IRA’s zone-of-interests, but
actively run contrary to it.” Id. at 78. The court also expressed
doubt about its subject matter jurisdiction in light of the Quiet
Title Act. Id. at 78 n.12.

I

There is no doubt that Patchak satisfied the standing
requirements derived from Article III of the Constitution.
Neither the Secretary nor the Band argues otherwise. In terms
of Article III standing, the impact of the Band’s facility on
Patchak’s way of life constituted an injury-in-fact fairly trace-
able to the Secretary’s fee-to-trust decision, an injury the court
could redress with an injunction that would in effect prevent the
 5

Band from conducting gaming on the property. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

We believe, contrary to the district court, that Patchak also
fulfilled the judicially created zone-of-interests test for standing.
The test began as a “gloss” on § 702 of the Administrative
Procedure Act, 5 U.S.C. § 702. Clarke v. Sec. Indus. Ass’n, 479
U.S. 388, 395-96 (1987). Section 702 allows judicial review of
agency action by a “person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute.” As the Su-
preme Court formulated the test in Association of Data Process-
ing Service Organizations v. Camp, 397 U.S. 150, 153 (1970),
the “adversely affected or aggrieved” plaintiff must be trying to
protect an interest of his that is “arguably within the zone of
interests to be protected” by the “relevant” statutory provisions.
See Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co.,
522 U.S. 479, 492 (1998).

The Supreme Court introduced the zone-of-interests test in
recognition of the “trend . . . toward enlargement of the class of
people who may protest administrative action.” Data Process-
ing, 397 U.S. at 154. The APA had “pared back traditional
prudential limitations.” FAIC Sec., Inc. v. United States, 768
F.2d 352, 357 (D.C. Cir. 1985). Given the APA’s “generous
review provisions,” Bennett v. Spear, 520 U.S. 154, 163 (1997)
(internal quotation marks omitted), and the “drive for enlarging
the category of aggrieved ‘persons,’” Data Processing, 397 U.S.
at 154, the test is not “especially demanding,” Clarke, 479 U.S.
at 399-400.

The Secretary tells us that the Indian Reorganization Act is
“not concerned with the interests that Patchak asserts in this
litigation.” DOI Br. 31. The Band adds that the function of the
IRA is to “give the Indians the control of their own affairs and
 6

of their own property.” See Mescalero Apache Tribe v. Jones,
411 U.S. 145, 152 (1973) (quoting 78 Cong. Rec. 11125
(1934)). But application of the zone-of-interests test does not
turn on such generalities. See Nat’l Credit Union Admin., 522
U.S. at 492-93. Patchak did not have to show that the Indian
Reorganization Act was meant to benefit those in his situation.
See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C.
Cir. 1998); Am. Chiropractic Ass’n v. Leavitt, 431 F.3d 812, 815
(D.C. Cir. 2005). The “analysis focuses, not on those who
Congress intended to benefit, but on those who in practice can
be expected to police the interests that the statute protects.”
Mova, 140 F.3d at 1075.

As the Secretary’s announcement in the Federal Register
stated, IRA § 465 (and the definition of Indians in § 479)1 served

1
Section 465 states:

The Secretary of the Interior is authorized, in his
discretion, to acquire, through purchase, relinquish-
ment, gift, exchange, or assignment, any interest in
lands, water rights, or surface rights to lands, within
or without existing reservations, including trust or
otherwise restricted allotments, whether the allottee
be living or deceased, for the purpose of providing
land for Indians.

For the acquisition of such lands, interests in
lands, water rights, and surface rights, and for
expenses incident to such acquisition, there is
authorized to be appropriated, out of any funds in the
Treasury not otherwise appropriated, a sum not to
exceed $2,000,000 in any one fiscal year: Provided,
That no part of such funds shall be used to acquire
additional land outside of the exterior boundaries of
Navajo Indian Reservation for the Navajo Indians in
 7

as the predicate for the government’s taking the Gun Lake
Band’s property into trust for the purpose of gaming under
§ 2719(b)(1)(B)(ii) of the Gaming Act.2 The IRA provisions

Arizona, nor in New Mexico, in the event that legis-
lation to define the exterior boundaries of the Navajo
Indian Reservation in New Mexico, and for other
purposes, or similar legislation, becomes law.

The unexpended balances of any appropriations
made pursuant to this section shall remain available
until expended.

Title to any lands or rights acquired pursuant to
this Act or the Act of July 28, 1955 (69 Stat. 392), as
amended (25 U.S.C. 608 et seq.) shall be taken in the
name of the United States in trust for the Indian tribe
or individual Indian for which the land is acquired,
and such lands or rights shall be exempt from State
and local taxation.

Section 479 defines “Indians” to include “all persons of Indian
descent who are members of any recognized Indian tribe now under
Federal jurisdiction, and all persons who are descendants of such
members who were, on June 1, 1934, residing within the present
boundaries of any Indian reservation, and shall further include all
other persons of one-half or more Indian blood.”
2
See 70 Fed. Reg. at 25,596. The Gaming Act permits federally
recognized Indian tribes to conduct gaming on “Indian lands.” The
Act defines “Indian lands” to mean all lands within any Indian
reservation and “any lands title to which is . . . held in trust by the
United States for the benefit of any Indian tribe . . ..” 25 U.S.C.
§ 2703(4). Indian gaming is not permitted on “newly acquired
lands”—that is, lands the Secretary took into trust for a tribe after
October 17, 1988, when the Gaming Act went into effect. An
exception to this bar, on which the Secretary relied in accepting the
Bradley Tract, allows Indian gaming on lands the Secretary takes into
 8

interpreted in Carcieri v. Salazar, 129 S.Ct. at 1066, limit the
Secretary’s trust authority. He may act only on behalf of tribes
that were under federal jurisdiction at the time of the IRA’s
enactment in 1934. When that limitation blocks Indian gaming,
as Patchak claims it should have in this case, the interests of
those in the surrounding community—or at least those who
would suffer from living near a gambling operation—are
arguably protected. And because of their interests, they are
proper parties to enforce the IRA’s restrictions.

In reaching this conclusion, we have not—as the Secretary
would have it—viewed the IRA provisions in isolation. Pat-
chak’s asserted injuries are the “negative effects of building and
operating a casino” in his community. The Secretary claims that
these “vague and generalized grievances have nothing to do with
the purposes for which Congress enacted 25 U.S.C. § 465” and
thus do not grant him prudential standing. DOI Br. 32. But
Patchak’s standing—for purposes of both Article III and the
zone-of-interests test—must be evaluated in light of the intended
use of the property. The IRA provisions are linked to the
Gaming Act. See Air Courier Conference of Am. v. Am. Postal
Workers Union, AFL-CIO, 498 U.S. 517, 530 (1991). In its fee-
to-trust application filed with the Secretary, the Gun Lake Band
invoked both statutes. One of the considerations in the Secre-
tary’s decision whether to take land into trust pursuant to the
IRA is whether doing so would “further economic develop-
ment . . . among the Tribes.” See Mich. Gambling Opposition,
525 F.3d at 31. Indian gaming is meant to do just that. 25
U.S.C. § 2701(4). Taken together, the limitations in these
statutes arguably protected Patchak from the “negative effects”
of an Indian gambling facility.

trust after the 1988 date “as part of . . . the initial reservation of an
Indian tribe.” Id. § 2719(b)(1)(B)(ii); see Butte Cnty., Cal., 613 F.3d
at 191-92.
 9

The Interior Department itself recognizes the interests of
individuals like Patchak who live close to proposed Indian
gaming establishments. A regulation already mentioned (25
C.F.R. § 151.12(b)) gives “affected members of the public”
thirty days to seek judicial review before the Secretary takes
land into trust for an Indian tribe. 61 Fed. Reg. 18,082 (1996).
By any measure, Patchak fits within the category of “affected
members of the public.” Other regulations require the Secretary
to consider the purpose for which the land will be used and
whether taking a tribe’s land into trust would give rise to
“potential conflicts of land use.” 25 C.F.R. § 151.10(c), (f).
Internal memoranda regarding the Band’s application show that
members of the Interior Department considered such conflicts
here and accepted the Wayland Township Supervisor’s assertion
that the gaming facility would be “compatible with the sur-
rounding land use.” We realize that the APA and Data Process-
ing require the litigant’s interests to be measured by statutes not
regulations. See Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d
1038, 1043 (D.C. Cir. 1989). But regulations implementing
statutes may cast some light on what the statutes arguably
protect.

The Secretary argues that the State of Michigan, not
Patchak, is the proper entity to police the Secretary’s authority
to take lands into trust under the IRA. He acknowledges cases
in which states or municipalities or their officials have been
allowed to sue to prevent the Secretary from taking land into
trust for the purposes of Indian gaming. See, e.g., Nebraska ex
rel. Bruning v. U.S. Dep’t of Interior, 625 F.3d 501 (8th Cir.
2010); Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250 (10th
Cir. 2001). Carcieri v. Salazar is another example, although the
land there was to be used for Indian housing rather than gaming.
129 S.Ct. at 1060. (The plaintiffs in Carcieri were a town, a
state and the governor.) The Secretary offers a distinction
between those cases and Patchak’s: a state in which the land is
 10

located is a proper entity to police the Secretary’s trust decision
“because it stands to lose some of its regulatory authority as a
result of Interior’s trust acquisition.” DOI Br. 36-37. But the
distinction cannot hold. If the interests of a state or a municipal-
ity are within the zone of interests the IRA protects then so are
Patchak’s interests. A state may, as the Secretary contends, lose
some regulatory authority and, depending on the intended use of
the trust land, some tax revenue. But see Cotton Petrol. Corp.
v. New Mexico, 490 U.S. 163 (1989). But the Secretary is
merely describing the nature of the state’s injuries. Patchak’s
injuries may be different, but they are just as cognizable.
Among other things, he alleged that the rural character of the
area would be destroyed, that the value of his property would be
diminished and that he would lose the enjoyment of the agricul-
tural land surrounding the casino site. These sorts of injuries
have long been considered sufficient for purposes of standing.
See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

As a practical matter it would be very strange to deny
Patchak standing in this case. His stake in opposing the Band’s
casino is intense and obvious. The zone-of-interests test weeds
out litigants who lack a sufficient interest in the controversy,
litigants whose “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.” Clarke, 479 U.S. at 399. Patchak is surely not in that
category. We therefore hold that he had prudential standing to
bring this action.

II

This brings us to the question whether the government has
consented to Patchak’s suit.
 11

Section 702 of the APA waives the government’s sovereign
immunity in the following terms: “An action in a court of the
United States 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 shall not be dismissed nor relief therein be denied
on the ground that it is against the United States or that the
United States is an indispensable party.” 5 U.S.C. § 702. Pat-
chak does not seek money damages and he has stated a claim
that an agency—the Interior Department—and its Secretary
acted under color of legal authority.

Patchak’s action therefore seems to fit within the waiver of
sovereign immunity in § 702. But the last clause of the section
states: “Nothing herein . . . confers authority to grant relief if
any other statute that grants consent to suit expressly or im-
pliedly forbids the relief which is sought.” The Secretary argues
that the Quiet Title Act is such a statute.

We set forth the relevant provisions of the Quiet Title Act
in the margin.3 The Act, in its first subsection, waives sovereign

3
28 U.S.C. § 2409a provides in relevant part:

(a) 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, other than a
security interest or water rights. This section does
not apply to trust or restricted Indian lands, nor does
it apply to or affect actions which may be or could
have been brought under sections 1346, 1347, 1491,
or 2410 of this title, sections 7424, 7425, or 7426 of
the Internal Revenue Code of 1986, as amended (26
U.S.C. 7424, 7425, and 7426), or section 208 of the
Act of July 10, 1952 (43 U.S.C. 666).
 12

immunity: “The United States may be named as a party defen-
dant in a civil action under this section to adjudicate a disputed
title to real property in which the United States claims an
interest, other than a security interest or water rights.” 28 U.S.C.
§ 2409a(a). This is followed by the provision that directly
concerns us: “This section does not apply to trust or restricted
Indian lands . . ..” Ibid. The Supreme Court has held that the
Act provides “the exclusive means by which adverse claimants
c[an] challenge the United States’ title to real property,” Block
v. North Dakota, 461 U.S. 273, 286 (1983), and that, when
applicable, the Indian lands exception operates “to retain the
United States’ immunity to suit,” United States v. Mottaz, 476
U.S. 834, 842 (1986).

(b) The United States shall not be disturbed in
possession or control of any real property involved in
any action under this section pending a final
judgment or decree, the conclusion of any appeal
therefrom, and sixty days; and if the final
determination shall be adverse to the United States,
the United States nevertheless may retain such
possession or control of the real property or of any
part thereof as it may elect, upon payment to the
person determined to be entitled thereto of an amount
which upon such election the district court in the
same action shall determine to be just compensation
for such possession or control.

(c) No preliminary injunction shall issue in any action
brought under this section.

(d) The complaint shall set forth with particularity the
nature of the right, title, or interest which the plaintiff
claims in the real property, the circumstances under
which it was acquired, and the right, title, or interest
claimed by the United States.
 13

The proper question therefore is whether Patchak’s suit is,
in the words of the statute, the sort of “action under this section”
for which the United States has waived sovereign immunity
except with respect to Indian lands. That is, did Patchak bring
a Quiet Title Act case? Cf. Transohio Savings Bank v. Director,
Office of Thrift Supervision, 967 F.2d 598, 610 (D.C. Cir. 1992).
If not, the Quiet Title Act does not forbid the relief Patchak
seeks, and the APA has waived the government’s immunity
from suit. Id. at 609; see also Block v. North Dakota, 461 U.S.
273, 286 n.22 (1983).

The official name of the Quiet Title Act, passed in 1972,
was “An Act to permit suits to adjudicate certain real property
quiet title actions.” Pub. L. No. 92-562, 86 Stat. 1176.4 This
provides a clue about the statute’s coverage. Actions to “quiet
title” originated in the courts of equity as a means of preventing
a multiplicity of suits at law. 4 POMEROY, EQUITY JURISPRU-
DENCE § 1394 (5th ed. 1941). Referred to as either “bills of
peace” or “bills quia timet,” they existed in two forms. The first
allowed the holder of legal title to land to prevent a single
adverse claimant from bringing successive actions of ejectment
against the plaintiff for the same parcel. 1 Id. § 253. For equity
to intervene, the plaintiff was required to be in possession of the
land and to have sufficiently established his title in at least one
previous action at law. Ibid. The second form allowed the
holder of legal or equitable title to land to bring one suit against
many persons asserting equitable titles to the same land. 4 Id.
§ 1396. Like the first form, plaintiffs were required to be in

4
Before enactment of the Quiet Title Act, an adverse claimant’s
only legal remedy was an action for just compensation under the
Tucker Act, 28 U.S.C. § 1491. Unless the United States voluntarily
instituted a quiet title action or the claimant successfully petitioned
Congress or the Executive for discretionary relief, he could not
recover possession of the property. See Block, 461 U.S. at 280-81.
 14

possession of the land in dispute. Ibid. Later statutes expanded
quiet title actions, sometimes removing the requirement of pos-
session, ibid., and often allowing the actions to determine
ownership. See DOUGLAS LAYCOCK, MODERN AMERICAN REM-
EDIES 551 (3d ed. 2002).

As should be apparent from this summary, a common
feature of quiet title actions is missing from this case. In each
of the forms just mentioned, the plaintiff would seek to establish
his rightful title to the real property. The modern definition of
the action is the same: “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.” BLACK’S LAW
DICTIONARY 34 (9th ed. 2009). Patchak is not requesting relief
of that sort; he mounts no claim of ownership of the Bradley
Tract. We recognize that the title of a statute cannot alter the
meaning of the statute’s operative language. See Pennsylvania
Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212 (1998). But
it is of some interpretive use. Ibid. And here there is more than
just the title. As part of the same 1972 legislation, Congress
amended the venue statute to provide that “[a]ny civil action
under section 2409a to quiet title to an estate or interest in real
property in which an interest is claimed by the United States”
shall be brought in the district where the property is located. 28
U.S.C. § 1402(d).5 Congress also gave the district courts
jurisdiction over civil actions “under section 2409a to quiet
title.” 28 U.S.C. § 1346(f). Congress thus viewed § 2409a as
authorizing a proceeding known as a “quiet title” action. And
the language of § 2409a firmly indicates that Congress intended

5
See also 28 U.S.C. § 2410(a)(1), dealing with “quiet title”
actions involving property in which the United States holds a security
interest.
 15

to enact legislation building upon the traditional concept of an
action to quiet title.6

This much is apparent from the Act’s pleading requirement.
“The complaint shall set forth with particularity the nature of the
right, title, or interest which the plaintiff claims in the real
property, [and] the circumstance under which it was
acquired . . ..” 28 U.S.C. § 2409a(d). Failure to comply may
result in dismissal of the complaint. See, e.g., Kinscherff v.
United States, 586 F.2d 159, 160-61 (10th Cir. 1978). This

6
As the Department of Justice put it:

The bill would allow the United States to be
made a party to an action in the Federal district courts
to quiet title to lands in which the United States
claims an interest.

Suits to quiet title or to remove a cloud on title
originated in the equity court of England. They were
in the nature of bills quia timet, which allowed the
plaintiff to institute suit when an action would not lie
in a court of law. For instance, a plaintiff whose title
to land was continually being subjected to litigation
in the law courts could bring a suit to quiet title in a
court of equity in order to obtain an adjudication on
title and relief against further suits. Similarly, one
who feared that an outstand [sic] deed or other
interest might cause a claim to be presented in the
future could maintain a suit to remove a cloud on
title. The plaintiff in such suits was required to be in
possession, and the usual grounds of equitable
jurisdiction (an imminent threat and an inadequate
remedy at law) had to be present.

Letter from Attorney General to Speaker, House of Representatives,
reprinted in H.R. Rep. No. 92-1559, at 8-9 (1972).
 16

provision tells us what constitutes an “action under this section.”
28 U.S.C. § 2409a(a). It is an action in which the plaintiff is
claiming an interest in real property contrary to the govern-
ment’s claim of interest. Neither the brief of the Secretary nor
that of the Band confronts this language.

Nor do they deal with subsection (b) of the Act. This provi-
sion gives the United States the option of retaining possession
of the property if it loses the quiet title action, so long as the
government pays just compensation to the person entitled to the
property. Id. § 2409a(b). The provision is senseless unless there
is someone else—the plaintiff—claiming ownership. Again, the
type of action contemplated in the Quiet Title Act does not en-
compass Patchak’s lawsuit.

The origins of the Act and the committee reports accompa-
nying it contain examples of the types of suits the legislation
was expected to cover. See Suits to Adjudicate Disputed Titles
to Land in Which the United States Claims an Interest: Hearing
Before the Subcomm. on Admin. Law and Governmental
Relations of the H. Comm. on the Judiciary on S. 216, 95th
Cong. 2-6 (1972) (statement of Sen. Frank Church) (“House
Judiciary Committee Hearing”); H.R. Rep. No. 92-1559 (1972);
S. Rep. No. 92-575 (1971). All of these examples were suits in
which plaintiffs claimed title to property. E.g., H.R. Rep. No.
92-1559, at 6; S. Rep. No. 92-575, at 1, 5; Dispute of Titles on
Public Lands: Hearing Before the Subcomm. on Pub. Lands of
the S. Comm. on Interior and Insular Affairs, 92d Congress 20,
55 (1971); House Judiciary Committee Hearing, supra, at 45-46
(statement of R. Blair Reynolds).

Two Supreme Court decisions have interpreted the Quiet
Title Act. Neither is inconsistent with our view that Patchak’s
suit is not an action under that statute, although the government
and the Band try to convince us otherwise. Block v. North Da-
 17

kota, 461 U.S. 273 (1983), was a typical quiet title action. As
the Court put it, “the United States and North Dakota assert
competing claims to title to certain portions of the bed of the
Little Missouri River within North Dakota.” Id. at 277. The
Court held in Block that the Quiet Title Act was “the exclusive
means by which adverse claimants could challenge the United
States’ title to real property.” Id. at 286. But by “adverse
claimant” the Court meant “States and all others asserting title
to land claimed by the United States,” id. at 280, a description
that does not fit Patchak.

Three years later, the Court took up the Quiet Title Act once
more in United States v. Mottaz, 476 U.S. 834 (1986). The issue
was, as in Block, the applicability of the Act’s twelve-year
statute of limitations. The plaintiff claimed that the Bureau of
Indian Affairs had sold three parcels of land in which she had an
interest to the United States Forest Service and the Chippewa
National Forest “without [her] consent or permission.” Id. at
838. She requested “[d]amages in a monetary sum equal to the
current fair market value of each parcel illegally transferred,”
invoking several jurisdictional grants (not including the Quiet
Title Act). Ibid. (internal quotation marks omitted) (alteration
in original). The Court held again that the Quiet Title Act
provides the exclusive means for “adverse claimants” to
challenge the United States’ title. Id. at 841. Mottaz sought “a
declaration that she alone possesses valid title to her interests in
the [parcels of land] and that the title asserted by the United
States is defective.” Id. at 842. Her claim was therefore “clear-
ly . . . within the Act’s scope.” Ibid. Because her claim had
accrued more than twelve years before she filed her complaint,
it was barred. Id. at 844.

In short, the plaintiffs in Block and Mottaz were the type of
“adverse claimants” traditionally found in quiet title actions.
Patchak’s position is different. He does not seek a declaration
 18

that “[]he alone possesses valid title” to the Bradley Tract,
Mottaz, 476 U.S. at 842, and he is not an adverse claimant.

We acknowledge the views of the Ninth, Tenth and
Eleventh Circuits that this difference does not matter, that the
Quiet Title Act bars suits seeking to “divest[] the United States
of its title to land held for the benefit of an Indian tribe,”
whether or not the plaintiff asserts any claim to title in the land.
Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d
1248, 1253-55 (11th Cir. 1985); see also Neighbors for Rational
Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004);
Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139,
143-44 (9th Cir. 1987).

These opinions appear to rest on two related rationales,
neither of which we find convincing. The first is that the
legislative history of the Indian lands exception shows that it
rested on the federal government’s “solemn obligations . . . to
the Indian people.” Neighbors, 379 F.3d at 962 (quoting H.R.
Rep. No. 92-1559, at 13 (1972) (letter from Mitchell Melich,
Solicitor for the Dep’t of the Interior)); see also Metro. Water
Dist., 830 F.2d at 143-44; Fla. Dep’t, 768 F.2d at 1253-54. This
may be true, but we do not see why that should alter our
analysis. If Patchak’s suit is the type of quiet title action the Act
governs, then the fact that the disputed property is Indian trust
land means that government has not waived sovereign immu-
nity. It also means that Patchak could not rely on § 702 of the
APA to supply the missing consent to suit. On the other hand,
if—as we believe—Patchak’s suit is not governed by the Quiet
Title Act, then § 702 of the APA waives the government’s
sovereign immunity.

The second rationale is this: “If Congress was unwilling to
allow a plaintiff claiming title to land to challenge the United
States’ title to trust land, we think it highly unlikely Congress
 19

intended to allow a plaintiff with no claimed property rights to
challenge the United States’ title to trust lands.” Neighbors, 379
F.3d at 963; see Fla. Dep’t, 768 F.2d at 1254-55. We do not
find the point at all telling. Congress passed the Quiet Title Act
in 1972. At the time there was no general waiver of the govern-
ment’s sovereign immunity for non-monetary actions. The 1972
Congress therefore did not have to concern itself with plaintiffs
such as Patchak who were not seeking to quiet title. Patchak
could not have successfully sued the United States over the
Bradley Tract even if Congress had not inserted the Indian lands
exception in the Quiet Title Act. Given these circumstances, it
seems to us rather far-fetched to attribute an intention to the
1972 Congress about a subject not within the terms of the
statutory language.

Matters changed in 1976 when Congress amended the APA
to include a general waiver of sovereign immunity. Act of Oct.
21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (amending 5 U.S.C.
§ 702). This legislation, recommended by the Administrative
Conference of the United States7 and supported by the Depart-
ment of Justice,8 was consistent with the trend toward easing
restrictions on judicial review of administrative action, a trend
identified in Data Processing, 397 U.S. at 154, and its compan-
ion case, Barlow v. Collins, 397 U.S. 159, 166 (1970). As
then–Assistant Attorney General Antonin Scalia explained in a
letter to Senator Kennedy, one of the main reasons for abolish-
ing sovereign immunity in these kinds of cases was “the failure

7
1 RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES 23-24 (1970).
8
Letter from Antonin Scalia, Assistant Att’y Gen., Office of Legal
Counsel, to Edward M. Kennedy, Chairman, Subcomm. on Admin.
Practice & Procedure, U.S. Senate, reprinted in H.R. Rep. No. 94-
1656, at 25.
 20

of the criteria for sovereign immunity, as they have been
expressed in a long and bewildering series of Supreme Court
cases, to bear any relationship to the real factors” that should
control.9 By waiving sovereign immunity, Congress sought to
ensure that courts could review “the legality of official conduct
which adversely affects private persons.” H.R. Rep. No.
94-1656, at 5. As the House Report put it:

Just as there is little reason why the United
States as a landowner should be treated any
differently from other landowners in an action to
quiet title, so too has the time now come to
eliminate the sovereign immunity defense in all
equitable actions for specific relief against a
Federal agency or offer acting in an official
capacity.

Id. at 9.

We may agree that the Quiet Title Act of 1972 reflects a
congressional policy of honoring the federal government’s
solemn obligations to Indians with respect to title disputes over
Indian trust land. We may also agree that the amendment to
§ 702 of the APA in 1976 reflects a congressional policy of
easing restrictions on judicial review of agency action seeking
non-monetary relief. Which of these policies should prevail?
The courts of appeals mentioned above have extended the reach
of the Quiet Title Act beyond its text to favor one policy without
giving any indication that they considered the other. For our
part, we agree with the Supreme Court in Carcieri that we need

9
Letter from Antonin Scalia, supra note 8, at 26; see also Antonin
Scalia, Sovereign Immunity and Nonstatutory Review of Federal
Administrative Action: Some Conclusions from the Public-Lands
Cases, 68 MICH. L. REV. 867 (1970).
 21

not chose between “these competing policy views.” 129 S.Ct.
at 1066-67. For the reasons we have discussed, it is enough that
the terms of the Quiet Title Act do not cover Patchak’s suit. His
action therefore falls within the general waiver of sovereign
immunity set forth in § 702 of the APA.10

***

The judgment of the district court is reversed and the case
is remanded for further proceedings consistent with this opinion.

So ordered.

10
In light of our determination that the Quiet Title Act does not
bar Patchak’s claim, we do not address whether sovereign immunity
should be determined as of the date his complaint was filed rather than
after the Secretary took the land into trust. Cf. Grupo Dataflux v.
Atlas Global Grp., 541 U.S. 567, 570 (2004). We also decline Pat-
chak’s request that we decide whether the Band was under federal
jurisdiction in 1934, or any other remaining issues. See Doe v.
diGenova, 779 F.2d 74, 89 (D.C. Cir. 1985).