Here.
Patchak Oral Argument Audio Now Available
Here.
oral argument
SCOTUSBlog Commentary on Patchak Argument (Updated with Commentary)
Here.
An excerpt:
Arguing for the Tribe, Patricia Millett likewise faced immediate skeptical questioning from Justice Scalia, who emphasized that a quiet title action is usually brought by someone claiming that he owns the land; in this case, Patchak does not claim ownership, but only that the government had no authority to take the land into trust. Ms. Millett argued that the focus of the Act is protecting the government from losing title to land; it does not matter whether it loses it to the person who brought the suit or to someone else.
The Chief Justice asked whether Patchak could get what he wanted by suing the Tribe directly, challenging its right to run the casino. He suggested that when the Tribe attempted to raise the trust status of the land as a defense, the court could then decide whether the trust was valid. Ms. Millett answered that such a suit might be theoretically possible, assuming that Patchak could overcome the Tribe’s independent possible claim of sovereign immunity.
Another excerpt (and a tentative prediction):
It was quite unclear from the argument whether the government will win if the Justices accept that this is an all-or-nothing choice. I would not be surprised to see a majority coalesce around the compromise position advocated most strongly by Justice Breyer – and seemingly not raised in any significant way in the briefs – that (1) an APA suit commenced before the land is taken into trust is not a quiet title action within the meaning of the Quiet Title Act (and therefore, is not barred by that Act’s reservation of sovereign immunity for trust lands); and (2) the suit retains that character, and can go forward, even after the land is taken into trust.
The alternative approach, advocated by the Tribe and the government, would be to say that the solution to the problem of premature mooting of the APA claim is to require the plaintiff to seek a preliminary injunction barring the transfer while the case is in litigation (which the landowner here did) and appeal the denial of any such injunction (which the landowner here did not).
Of course, if the Supreme Court went the route suggested in the first alternative, I suppose it would not be the first time in recent years that Court has given a win to those who oppose tribal interests on grounds not argued by that party (see, e.g, Sherrill). Moreover, such a hypothetical outcome recalls an earlier case where the Court overlooked or ignored the fact that an opponent to tribal interests waived critical arguments through procedural default (Plains Commerce Bank). Finally, such an outcome would continue to cement the decline of the federal government’s trust responsibility to Indian nations, a position often advanced by the United States itself in cases like Jicarilla Apache Nation (in what other context would an express reservation of federal immunity have so little import?).
WaPo Coverage of Patchak Argument
Here (h/t Pechanga). An excerpt:
Several Supreme Court justices seemed troubled Tuesday at the thought of letting a lawsuit move forward that aims to shut down an already opened tribal casino in southwestern Michigan.
“It does seem that we may be wasting our time,” Justice Anthony Kennedy said. “I’m not suggesting that the … case is moot, but you did wait for some three years before you brought this suit. The building was built.”
Initial Commentary on Salazar/Gun Lake v. Patchak
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.
Transcript in Salazar/Gun Lake v. Patchak
Available here. (pdf)
SCT Oral Argument Study: Who Gets the Most Questions, Loses?
Chief Justice Roberts once said his goal as an oral advocate was to get the Court to ask his side the fewest questions. Presumably, the more questions a side gets from the Justices is an indicator of the weakness of that side’s position. Does that dictum play out in the Roberts Court’s Indian law cases? Note that tribal interests have yet to prevail in the Roberts Court.
The answer appears to be yes.; the one exception being United States v. Tohono O’odham Nation, in which the questions were evenly distributed. The questions were even in last week’s Ramah argument as well, suggesting a close case.
The average number of questions asked of the tribal interests — 399 questions/7 arguments = 57 questions
The average number of questions asked of advocates opposing tribal interests — 288/7 = 41 questions
Here is the list: Continue reading
SCOTUSBlog Preview of Salazar/Gun Lake Band v. Patchak Argument
Here.
An excerpt:
One might think that this is not the stuff of an historic oral argument. But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.
Congrats to Pattie!!!!
Lyle Dennison (SCOTUSblog) Commentary on Ramah Argument
Here.
An excerpt:
No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services. But, on the other hand, it said every year that the government could not pay for everything it got in return. On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)
Ninth Circuit Oral Argument Audio in City of Glendale v. US (Tohono O’odham Trust Acquisition)
Here.
Initial Commentary on Ramah Oral Argument
A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.
Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.
This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.
On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.
Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.
The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).
I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.
Turtle Talk 
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