We posted the transcript here.
* The first remarkable point about today’s argument is that Justice Scalia appeared to come to the rescue of counsel for Patchak four times , and by the end of Respondent’s time was virtually arguing the case against the government and tribe through counsel. Page 50, line 23 to page 51, line 8, Justice Scalia answers questions from Justices Kagan and Sotomayor on behalf of counsel. On page 52, line 11 to page 53, line 6, Scalia literally concludes counsel’s argument on his behalf, offering two questions that counsel needs only say “yes” to.
The first instances Justice Scalia offers help to Patchak’s counsel are page 34, lines 9 through 20, which ends with Scalia telling counsel he’s supposed to say “yes, sir” to his question and which also ends with laughter from the gallery (presumably the clerks); and on page 39, line 13 though page 40, line 4 (also ending in laughter as Patchak’s counsel agrees with Justice Scalia).
* Justice Scalia comments early on in the government’s time: “whether this land could be used for what you call gaming and I call gambling.” There’s a longstanding rhetorical distinction between those who support tribal gaming/gambling — opponents call it “gambling” and supporters call it “gaming.” Justice Scalia tips his hand, no doubt intentionally.
* In light of our post from earlier today, there were 60 questions for the government and the tribe, and 49 for Patchak.
* A recurring theme in the argument, starting with the opening question from Justice Sotomayor, was that Patchak could have sued under NEPA, other statutes, or federal regs (within 30 days) to challenge the trust acquisition before the land goes into trust, as MIchGO did. The possible weakness is that the government’s position seems to be it can take land into trust at any time to foreclose any challenges to the trust acquisition by slipping behind the immunity barrier in the QTA. If the government did this, then the due process/non delegation problems identified in the 1995 South Dakota v. US decision comes to light. It seems to me that the relatively easy answer is that the due process/non delegation claim is available to challengers if the government did act in this manner, and since it didn’t here, there’s no issue. Of course, the Court would have to trust the Secretary of Interior, which historically, it doesn’t really do.
Update: Even local television (Wood TV, notoriously anti-Gun Lake) conceded that the Justices generally seemed hostile to Patchak’s claims.
Turtle Talk 
I also feel obliged to mention that Justice Kennedy brought up the issue of laches–traditional laches–as a bar to Patchak’s claim.
–Kate
On page 9, Miller seems to suggest it would be unusual for a tribe to file an APA claim. It is not unusual. Apache Tribe of Oklahoma filed suit over a class 3 gaming OTB compact at a Chickasaw nation facility, and eventually had the OTB compact severed. This is in western district of Oklahoma. The BIA still cannot explain how gaming has happened/ continues to happen on lands acquired after 1988 in Oklahoma.
Neal McCaleb, former asst sec of BIA and Chickasaw tribal member, told me that the Chickasaw Nation “hired it done.” The Chickasaw nation press person told me that they are exempt, they have a former reservation. In the apache tribe of Oklahoma case, the judge is still waiting on the bia to define former reservation.
In oklahoma, only Cherokee Nation of oklahoma has had a land into trust gaming acquisition approved since 1988. fort sill apache tribe had a trust to trust transfer for gaming approved but was overturned by a lawsuit brought forth by Comanche nation of oklahoma. Osages recently had their casinos put into trust but not under IGRA.
The apache Tribe of Oklahoma and Comanche lawsuits were filed regarding IGRA rather than IRA as patchak has done. No one filed a lawsuit regarding the Osage lands within 30 days of publication in the federal register.
Matthew, can you tag this as IRA too? Since that is what patchak filed the claim under? You dont need to post this. Todd.
I think you’re getting caught in a middling point. That issue only comes up because the government’s position is that only governments have standing to sue here, and Justice Sotomayor is making sure that tribes are included in that class, along with states and counties. The government’s counsel, I don’t think, was saying it’s truly unusual (I bet he doesn’t really know), and either way, it’s not an important point here.
Laches 🙂
Hahahahahaha. It’s been 5 years since that conference! 🙂
Call me a skeptic, but I think the Court was equally hard on the Tribe and federal government. The standing question wasn’t addressed in much detail, and to the extent it was, the consensus seemed to be that the land was taken into trust for gambling, so of course Patchak can complain about gambling. If standing is removed from the equation, the question is whether Scalia has four other votes to say Patchak’s claim simply isn’t a QTA claim, so the APA provides a waiver of sovereign immunity and the QTA’s trust land exception is irrelevant.