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-EBe-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 organization—“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 organization’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. Kempthorne, 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 resources; 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 traceable 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 Supreme Court formulated the test in Association of Data Processing 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 Processing, 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, relinquishment, 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 legislation 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. Patchak’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 feeto-trust application filed with the Secretary, the Gun Lake Band

invoked both statutes. One of the considerations in the Secretary’s decision whether to take land into trust pursuant to the

IRA is whether doing so would “further economic development . . . 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 surrounding land use.” We realize that the APA and Data Processing 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 municipality 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 agricultural 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. Patchak 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 impliedly 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 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.” 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 JURISPRUDENCE § 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 possession, ibid., and often allowing the actions to determine

ownership. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES 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 government’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 provision 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 encompass Patchak’s lawsuit. 

The origins of the Act and the committee reports accompanying 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 “clearly . . . 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 immunity. 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 government’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 Department 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 companion 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 abolishing 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 Patchak’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).