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?).
Turtle Talk 