Appendix — Florida Department of Business Regulation v. United States Department of the Interior

g5-8Rh | PSTD

DEC % 1906

No. JOSEPH & SPANI@L, JR,

GLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

In the matter of: STATE OF FLORIDA,

DEPARTMENT OF BUSINESS REGULATION,

STATE OF FLORIDA, DEPARTMENT OF

REVENUE, STATE OF FLORIDA, and THE

CITY OF TAMPA, FLORIDA,

Petitioners,

Vv.

UNITED STATES DEPARTMENT OF THE INTERIOR

and DONALD P. HODEL, SECRETARY OF THE

INTERIOR, and SEMINOLE TRIBE OF FLORIDA,

Respondents.

APPENDIX A

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

Respectfully submitted,

Harold F.X. Purnell

General Counsel

Department of Business

Regulation

725 South Bronough Street

Tallahassee, Florida 32301

(904) 488-7365

| :

STATE OF FLORIDA, DEPARTMENT OF BUSINESS

REGULATION, State f Florida,

De partment of Revenue, State of

Florida; and the City of Tampa,

Florida, Plaintiffs-Appellants,

Ve

UNITED STATES DEPARTMENT OF the INTERIOR

and Donald P. Hodel, Secretary of the

Interior, Defendants-Appellees,

Seminole Tribe of Florida,

De fendant-Intervenor-Appellee.

No. 84-3246.

United States Court of Appeals,

Eleventh Circuit.

Aug. 16, 1985.

Various state agencies and city

filed action challenging decision of

Secretary of the Interior to acquire a

tract of land in trust for the benefit of

the Seminole Indian Tribe of Florida.

The United States District Court for the

Middle District of Florida, Elizabeth A.

Kovachevich, J., dismissed the complaint

5a

On the basis of sovereign immunity and

standing, and state agencies and city

appealed. The Court of Appeals,

Kravitch, Circuit Judge, held that

decision by Secretary to acquire the land

was unreviewable as within the

Secretary's discretion, where Secretary

had congressional authority to acquire

the land, and Tribe had interest in land

before United States acquired title.

Affirmed.

1. United States

United States' sovereign immunity

operates as a complete bar to lawsuits,

even those filed by the states.

2. United States

As a threshold manner in any case in

which United States' sovereign immunity

is invoked, Court of Appeals must first

determine whether suit is one against the

6a

5 anata iia

United States as sovereign.

3. United States

Designation of a federal government

agency or officer as party defendant does

not avoid problem of United States’

sovereign immunity; rather, Court of

Appeals must examine issues presented and

effect of judgment sought.

4. United States

If relief sought requires payment of

monies from Federal Treasury, interferes

with public administration, or compels or

restrains the federal government, action

is deemed to be one against the United

States as sovereign.

5. United States

Only where official's conduct cannot

be attributed to sovereign because

official had no power to do- the

challenged acts can it properly be said

7a

that the action is not one against United

States as sovereign.

6. Indians

Secretary of the Interior did not

exceed his authority in taking land in

trust for benefit of Seminole Indian

Tribe of Florida, where Secretary had

congressional authorization for the

acquisition of land, and _ “Tribe had

interest in the land before the United

States acquired title. Indian Re-

organization Act, § 5,25 U.S.C.A. § 465.

7. Indians

Factors set forth in regulation for

Secretary of the Interior to consider in

evaluating requests for acquisition of

land in trust status are not limits on

Secretary's authority to acquire land for

benefit of Indians; instead, they are

factors to be considered in exercising

8a

discretion and, as such, do not constrain

Secretary's authority to acquire land in

trust for Indians.

8. United States

Waivers of sovereign immunity are to

be strictly construed.

9. United States

No action may be brought to quiet

title to lands that the United States

holds in trust for an Indian tribe. 28

U.S.C.A. § 2409a.

10. Indians

Court of Appeals is loathe to allow

suits seeking to determine whether United

States has terminated its trust relation-

ship over Indian lands, without some

indication of congresional approval.

11. Indians

United States

Waiver of sovereign immunity by

9a

United States in Administrative Procedure

Act, 5 U.S.C.A. § 702, did not permit

state and city officials to bring action

challenging decision of Secretary of the

Interior to acquire a tract of land in

trust for benefit of Seminole Indian

Tribe of Florida; instead, even though

action was not one to quiet title but was

one to divest United State of its title

to land held for benefit of Tribe, action

was barred under Quiet Title Act, 28

U.S.C.A. 8 2409a, by congressional

decision to exempt Indian lands’ from

waiver of sovereign immunity.

12. Indians

Congress did not intend to permit

third parties to disrupt trust relation-

ship of United States to land held for

the Indians. 28 U.S.C.A. § 2409a.

10a

* as

13. Administrative Law and Procedure

Exception to judicial review

contained in Administrative Procedure

Act, 5 U.S.C.A. § 7O01(a)(2), for action |

committed to agency discretion by law is

a narrow one that must be clearly

demonstrated before it can be invoked.

14. Administrative Law and Procedure

Extent to which a particular

statute confers uninhibited discretion

upon an administrator is dependent upon

whether statute provides standard against

which challenged action can be measured;

if there are no judicially manageable

standards available for judging how and

when agency should exercise its

discretion, then it is impossible to

determine even whether agency abused its

discretion.

lla

15. Indians

Through Indian Reorganization Act, §

1 et seq., 25 U.S.C.A. § 461 et seq.,

Congress sought to foster and encourage

self-government among the various Indian

tribes.

16. Indians

It is of necessity that the

Secretary of the Interior have broad

discretion when reviewing an application

to acquire land for the benefit of an

Indian tribe. Indian Reorganization Act,

§ 5, 25 U.S.C.A. § 465.

17. Indians

As a matter of federal law, state

was not prohibited from imposing tax on

cigarette sales made to non-Indians, even

those sales occurring on land held in

trust by the United States. Indian Re-

organization Act, § 5, 25 U.S.C.A. § 465.

12a

18. Indians

Factors set forth in regulation for

consideration when Secretary is acting on

request for acquisition of land in trust

status for bo refit of Indians are not

"law" that a reviewing court can apply.

19. Indians

Decision by Secretary of the

Interior to acquire tract of land in

trust for benefit of Seminole Indian

Tribe of Florida was unreviewable as

within the Secretary's discretion, where

Secretary had congressional authority to

acquire the land, and Tribe had interest

in land before United States acquired

title. Indian Reorganization Act, § 5,

25 U.S.C.A. § 465.

20. Administrative Law and Procedure

Even when decision is committed to

agency discretion, court may consider

13a

allegations that agency failed to follow

its own binding regulations.

Appeal from the United States

District Court for the Middle District of

Florida.

Before KRAVITCH and JOHNSON, Circuit

Judges, and TUTTLE, Senior Circuit

Judge.

KRAVITCH, Circuit Judge:

This litigation involves the

combined efforts of the State of Florida,

the Florida Department of Business

Regulation, the Florida Department of

Revenue, and the City of Tampa

(appellants), to challenge the Secretary

of the Interior's decision to acquire a

14a

tract of land in trust for the benefit of

the Seminole Indian Tribe. The court

below dismissed their complaint on

sovereign immunity and standing grounds.

We affirm as to sovereign immunity;

accordingly we do not reach the standing

question.

I. BACKGROUND

In 1980, the City of Tampa began

excavation of land near the former site

of Fort Brook, an Army outpost that had

been used in the nineteenth’ century

relocation of American Indians living in

| During this excavation a

Florida.

construction crew unearthed numerous

Indian artifacts and a burial site that

1. The facts as stated herein are taken

from the allegations of the appellants'

complaint.

15a

included skeletal remains of persons of

Indian ancestry. Shortly after this

discovery, the City of Tampa agreed to

transfer the artifacts and bodies to the

Seminole Tribe of Florida, with the

understanding that the Seminole Tribe

would construct a museum in which the

artifacts could be displayed and inter

the bodies in the land on which the

museum would be built.

The Seminole Tribe purchased an 8.5

acre parcel of land in #illsborough

County, Florida for these purposes, and

petitioned the Secretary of the Interior

to exercise his authority pursuant to 25

U.S.C.A. § 465 and acquire title to the

land in trust for the Indians. Although

this statute designates that the decision

to acquire land in trust for Indians is

one within the Secretary's discretion,

16a

the Secretary has promulgatd regulations

that set forth policies and procedures

governing the exercise of this

discretion. Be Gereme SE 151. 1-151.13.

The Secretary, however, has retained the

power to waive these regulations "in all

cases where permitted by law and the

Secretary finds that such waiver ... is

in the best interest of the Indians." 25

C.F.8s 8 Te 2s

On January 16, 1961, the Department

took title to the land in the name of the

United States. Mindful of the cultural

Significance of the land's proposed use,

the Secretary decided to waive

consideration of the regulations’ that

purport to guide the exercise of his

discretion. The Secretary reasoned that

this land acquisition was unique, because

Congress has directed that preservation

17a

of the American Indians‘ religious and

cultural heritage is a national

objective. See 42 U.S.C.A. § 1996.

Shortly thereafter, the Tr ibe

prepared an interment site for’ the

remains, erected a museum for display of

the artifacts, and built a center for

exhibiting Indian art and craftware. In

addition, the Tribe began operation of a

"Smoke Shop" to sell cigarettes, tax

free, to the general public. Dismayed by

the Tribe's decision to sell cigarettes

on this land, appellants commenced this

lawsuit against the Department of the

Interior and then-Secretary James Watt,

alleging that 42 U.S.C.A. § 1996 did not

authorize the Secretary to waive

consideration of the Department's

regulations when acquiring the land in

trust. Upon the Seminole Tribe's motion,

18a

SF AONE OA iE RNC a NAS at AONE be Cited tcile SE

the district court allowed the Tribe to

intervene as a party-defendant. The

United States and the Tribe each filed a

motion to dismiss, arguing that none of

the appellants had standing to maintain

this action, and that in any event the

suit was prohibited by the United States'

sovereign immunity. Appellants sought to

amend their complaint, alleging that the

Seminole Tribe was also conducting bingo

games on the land and refusing to collect

the state tax on taxable sales trans-

actions occurring on the land. In

addition, appellants contended that the

Hillsborough County property tax rolls

listed the property as exempt from

taxation. Without ruling on the motion

to amend, the district court dismissed

the complaint with prejudice, holding

that the plaintiffs lacked standing and

19a

that the court lacked jurisdiction

because of sovereign immunity.

II. SOVEREIGN IMMUNITY

A. Real Party in Interest

[1-4] The United States' sovereign

immunity operates as a complete bar to

lawsuits, even those filed by the states.

California v. Arizona, 440 U.S. 59, 61-

62, 99 S.Ct. 919, 921-922, 59 L.Ed.2d 144

(1979); Minnesota v. United States, 305

U.S. 382, 387, 59 S.Ct. 292, 294, 83

L.Ed. 235 (1939). As a threshold matter

in any case in which sovereign immunity

is invoked, we must first determine

whether the suit is one against the

United States as sovereign. Panola Land

Buyers Association v. Shuman, 762 F.2d

1550 (11th Cir. 1985). Designation of a

20a

government agency or officer as a

party-defendant does not avoid the

sovereign immunity problem. Al abama

Rural Fire Insurance Co. v. Naylor, 530

F.2d 1221, 1225-26 (5th Cir. 1976).

Rather, we must examine the

issues presented and the effect of the

judgment sought. If the relief sought

requires payment of monies’ from. the

Federal Treasury, intereferes with public

administration, or compels or restrains

the government, the action is deemed to

be one against the United States as

sovereign. Stafford v. Briggs, 444 U.S.

527, 542 n. 10, 100 S.Ct. 774, 784 n. 10,

63 L.Ed.2d 1 (1980); Dugan v. Rank, 372

U.S. 609, 620, 83 S.Ct. 999, 1006, 10

L.Ed.2d 15 (1963); Alabama Rural Fire

Insurance Co., 530 F.2d at 1225 (5th Cir.

21a

1976).

Appellants contend that they seek

judicial review of agency action, a suit

with which the federal courts are quite

familiar. Yet, from what we can discern

from the sparse record before us, the

action specifically challenged, that is,

the decision to acquire the land and hold

it in trust, was one in which appellants

acquiesced when it was made. Only after

the Seminole Tr ibe began selling

cigarettes and operating bingo games on

the land did appellants register their

protest. The relief sought’ further

indicates that the gravamen of

appellants’ suit is the Seminole Tribe's

2. The Eleventh Circuit, in the en banc

decision Bonner v. City of Prichard, 661

F.2d 1206, 1209 (Tith Cir. 1981), adopted

as precedent decisions of the former

Fifth Circuit rendered prior to October

1, 1981.

22a

conduct, not the Secretary's decision to

acquire the land. Appellants seek to

divest the United States of its title to

i the land, restoring all parties involved

to the status quo ante. With the United

States no longer holding title to the

land, the state presumably could take

steps to end the actions to which it

objects. Clearly, this relief would

operate against the sovereign. See

Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct.

1052, 10 L.Ed.2d 191 (1963) (lawsuit

seeking to order the United States to

convey land to the state of Hawaii);

Minnesota v. United States, 305 U.S. 382,

59 S.Ct. 292, 83 L.Ed. 235 (1939) (con-

demnation proceeding against property in

which the United States had interest).

[5] Relying on United States v.

Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed.

23a

171 (1882), appellants argue that their

lawsuit is not one against the United

States as sovereign because their

contention is that the Secretary exceeded

his authority. We disagree. In Lee, the

Court reviewed a claim that title to

property held by the United States was

obtained in an unconstitutional manner.

If the claim were true, the Court

observed, then the government officials

exceeded their lawful power when

acquiring the property in question. Such

an assertion of governmental authority is

not insulated from challenge in the

courts, because when government officials

exceed their authority their actions are

not authorized by the sovereign. In such

instances, a lawsuit can be maintained

against the officials in their individual

capacity, without sovereign immunity

24a

barring the wey. 106 U.S. at 218-221, 1

Ss.ct. at 258-262. Subsequent cases make

clear that this exception from immunity

applies only where the action is

challenged as not one of the sovereign

because it is alleged to be either

unconstitutional or beyond the government

agency's statutory authority. Dugan v.

Rank, 372 U.S. 609, 621-22, 83 S.Ct. 999,

1006-07, 10 L.Ed.2d 15 (1963); Malone vy.

Bowdoin, 359 U.S. 643, 637, 82 S.Ct. 980,

983, 8 L.84.2d 168 (1962); Larson v.

Domestic & Foreign Commerce Corp., 337

U.S. 682, 701-02, 69 S.Ct. 1457, 1467-68,

93 L.Ed. 1628 (1949). Only where the

official's conduct cannot be attributed

to the sovereign because the official had

no power to do the challenged acts can it

properly be said that the action is not

one against the United States as

25a

sovereign. McClellan v. Kimball, 623

F.2d 83, 85 (9th Cir. 1980); see also

Gardner v. Harris. 391 F.2d 885, 888 (Sth

Cir. 1968) (“Merely because the Super-

intendent may have been acting wrongfully

in interfering with plaintiff's access to

the highway, either as a matter of

violation of property rights under the

deeds or as a tort under principles of

general law, does not amount to

circumstances fulfilling the exception

that the officer must be acting beyond

his statutory powers.").

[6] In the present case, there can

be no doubt that there was statutory

authority for the Secretary's decision to

take the land in trust. 25 U.S.C.A. §

465. Appellants do not challenge the

constitutionality of the Secretary's

acts, nor the constitutionality of the

26a

statute pursuant to which he acted, Nor

do they suggest that the Secretary had no

statutory authority for taking the land.

Indeed, appellants fail to specify

precisely what statutory limits on the

Secretary's authority were exceeded. See

Larson, 337 U.S. at 690, 69 S.Ct. at

1461; Alabama Rural Fire Insurance Co.,

530 F.2d at 1226. Their only complaint

is that the Secretary abused his

discretion by waiving consideration of

the factors delineated in the

regulations.

Appellants cite two regulations, 25

C.F.R. § 151.3, and 25 C.F.R. § 151.10,

they claim were waived. They fail to

demonstrate, or even allege, how 25

27a

C.F.R. § 151.3° was “waived" in this

instance. In fact, their own allegations

belie this contention, as they admit that

the Secretary has congressional

authorization for the acquisition, and

that the Seminole Tribe had an interest

3. The regulation provides in part:

Land not held in trust or restricted

status may only be acquired for _ an

individual Indian or a tribe in trust

status when such acquisition is

authorized by an act of Congress. No

acquisition of land in trust status,

including a transfer of land already held

in trust or restricted status, shall be

valid unless the acquisition is approved

by the Secretary.

(a) Subject to the provisions

contained in the acts of Congress which

authorize land acquisitions, land may be

acquired for a tribe in trust status (1)

when the property is located within the

exterior boundaries of the tribe's

reservation or adjacent thereto, or

within a tribal con- .lidation area; or,

(2) when the tr «= already owns an

interest in the .zand or, (3) when the

Secretary determines that the acquisition

of the land is necessary to facilitate

tribal self-determination, economic

development, or Indian housing.

25 C.F RR. § 192.3.

28a

in the land before the United States

acquired title.

[7] Turning to the factors listed at 25

4

CPR. 8 33%. 30s we do not consider

4. This regulation provides as follows:

In evaluating requests for’ the

acquisition of land in trust status, the

Secretary shall consider the following

factors: ,

(a) The existence of statutory

authority for the acquisition and any

limitations contained in such authority;

(b) The need of the individual

Indian or the tribe for additional land;

(c) The purposes for which the land

will be used;

(da) If the land is to be acquired

for an individual Indian, the amount of

trust or restricted land already owned by

or for that individual and the degree to

which he needs assistance in handling his

affairs;

(e) If the land to be acquired is

in unrestricted fee status, the impact on

the State and its political subdivisions

resulting from the removal of the land

from tax rolls;

(f) Jurisdictional problems and

potential conflicts of land use which may

arise; and

(g) If the land to be acquired is

in fee status, whether the Bureau of

Indian Affairs is equipped to discharge

the additional responsibilities resulting

from the acquisition of the land in trust

status. 25 C.F.R. § 151.10.

29a

them to be limits on the Secretary's

authority to acquire land for the benefit

of Indians. They do not purport to state

for what Indian Tribe the Secretary may

acquire land, or how much land may be

acquired, or even the circumstances under

which the Secretary may use this

authority. Rather, they are more

precisely labeled as _ factors to be

considered in exercising discretion. As

such, they do not constrain the

Secretary's authority to acquire land in

trust for Indians. > We conclude

therefore that appellants have failed to

demonstrate that the Secretary exceeded

his authority.

30a

- Appellants also argue that the land

in question is not trust land because the

United States wrongfully failed to follow

the proper procedures in acquiring the

land. They cite no authority for their

proposition, and indeed, to the extent

that they ask us to assume the very fact

about sovereign land they desire to

prove, their assertion is contrary to the

law of this circuit. See Simons vy.

Vinson, 394 F.2d 732, 736-37 (5th Cir.),

cert. denied, 393 U.S. 968, 89 S.Ct. 398,

21 L.Ed.20 379 (1968). As previously

stated, appellants have made no showing

that the Secretary exceeded his statutory

authority, or that the authority is

unconstitutional. Hence, we are

unpersuaded that title to the land in

question is not held by the United States

for the benefit of the Seminole tribe.

31a

B. Waiver of Sovereign Immunity

Given that the United States is the

real party ir. interest in this

litigation, appellants must establish

that the United States has waived its

immunity with respect to this kind of

lawsuit. Appellants point to the waiver

of immunity contained in the

Administrative Procedure Act (APA), 5

U.S.C.A. §§ 551-706. Section 702 waives

federal sovereign immunity for. suits

against federal officers in which the

plaintiff seeks non-monetary relief.

[8] The government responds that by

waiving sovereign immunity under the APA,

Congress did not mean to alter any

existing limitations on the availability

of specific relief. H.R.Rep. No. 1656,

94th Cong.;, 2d _ Sess., 12-13 (1976),

reprinted in 1976 U.S.Code Cong. & Ad.

32a

Lite Be 6 AE NG ay OO AE! AE Nth

News, 6121, 6133. Indeed, the statute

specifically provides that it is not to

be read as "authority to grant relief if

any other statute that grants consent to

suit expressly or impliedly forbids the

relief which is sought." 5 U.S.C.A. §

702. The government argues that the

waiver of immunity contained within the

Quiet Title Act of 1972 (QTA), 28

U.S.C.A. §§ 2409a, 1346(£), and 1402(d),

impliedly forbids the relief sought: here.

In considering the respective positions,

we are guided by the principle that

waivers of sovereign immunity are to be

strictly construed. United States v.

Sherwood, 312 U.S. 584, 590, 61 S.Ct.

767, 771, 85 L.Ed. 1958 (1941).

[9] With the enactment of the Quiet

Title Act, Congress waived the United

States' immunity with respect to certain

33a

kinds of lawsuits, allowing the United

States to be named as a defendant in

lawsuits seeking the adjudication of

disputed title to land. © By its terms

the QTA excludes trust or restricted

Indian lands from the scope of the waiver

of immunity. 28 U.S.C.A. § 2409a. The

rationale for this exclusion is explained

briefly in the legislative history:

6. Prior to this 1972 statute, an

adverse claimant could sue for money

damages in the nature of just

compensation under the Tucker Act, 28

U.S.C. § 1491, or seek relief under 28

U.S.C. § 1410, if the United States

claimed a mortgage or other lien on the

property. Conqress‘ primary objection to

waiving immunity in the past was concern

over dispossessing the United States of

property on which governmental operations

were being performed. H.R.Rep. No. 92-

1559, 92d Cong., 2d = Sess., (1972),

reprinted in 1972 U.S.Code Cong. & Ad.

News 4547, 4554. Congress therefore

provided that in suits brought under the

QTA, if a final decision is adverse to

the United States, the government may

nevertheless choose to retain the land by

electing to pay just compensation. 28

U.S.C.A. § 2409a(b).

34a

+c gies So

The Federal Government's trust

reponsibility for Indian lands is

the result of solemn obligations

entered into by the United States

Government. The Federal Government

has over the years made _ specific

commitments to the Indian people

through written treaties and through

informal and formal agreements. The

Indians, for their part, have often

surrendered claims to vast tracts of

land. President Nixon has pledged

the administration against abridging

the historic relationship between

the Federal Government and_ the

Indians without the consent of the

Indians.

H.R.Rep. No. 1559, 92d Cong., 2d Sess.

(1972), reprinted in 1972 U.S.Code Cong.

& Ad.News, 4547, 4556-57. Thus, no

35a

action may be brought to quiet title to

lands that the United States holds in

trust for an Indian tribe. Carlson v.

Tulalip Indian Tribes, 510 F.2d _ 1337,

1339 (9th Cir. 1975).

In Block v. North Dakota ex rel. Bd.

of Univ. & School Lands, 461 U.S. 273,

103 S.Ct. 1811, 75 L.Ed.2d 840 (1983),

the Supreme Court applied the rule of

statutory construction that a precisely

drawn, detailed statute preempts more

general remedies, in holding that the QTA

is the exclusive means by which adverse

claimants can challenge the United

States’ title to real property. 103

S.Ct. at 1819. To permit otherwise, the

Court reasoned, would allow the QTA'‘s

carefully crafted limitations on _ the

availability of relief to be circum-

vented, thereby rendering the _ Indian

36a

lands exception, among other’ things,

null. 103 S.Ct. at 1818. The Court

declined to consider the APA waiver of

sovereign immunity as a_ supplemental

remedy to the extent that the QTA would

forbid the relief sought, invoking the

exception to the APA waiver where another

statute forbids the relief sought. 5

U.S.C.A. § 702. 103 S.Ct. at 1819 n. 22.

[10,11] The government insists that

Block governs the sovereign immunity

question in this case. Appellants quite

forcefully contend that this is not a

suit to quiet title, because they do not

seek to have title to the land quieted in

them, nor do they seek recognition of any

property interest in the land. Although

technically the suit in the instant case

is not one to quiet title, we conclude

that Congress‘ decision to exempt Indian

37a

lands from the waiver of sovereign

immunity impliedly forbids the relief

sought here. By forbidding actions to

quiet title when the land in question is

reserved or trust Indian land, Congress

sought to prohibit third parties from

interfering with the responsibility of

the United States to hold lands in trust

for Indian tribes. Here, the appellants

seek an order divesting the United States

of its title to land held for the benefit

of an Indian tribe. That appellants do

not assert an adverse claim of title to

the land, however, does not lessen the

interference with the trust relationship

7

a divesture would cause. Moreover,

Congress chose to preclude an adverse

claimant from divesting the Un ited

}

States’ title to Indian lands held in

trust. ° It would be anomalous’ to

38a

7. To be sure, the relief sought here

would not prohibit the United States frum

reacquiring the land in question.

Whether the United States would do so is

not a matter for our speculation. In any

event, Congress chose to exempt trust or

restricted Indian lands from the limited

provisions of the QTA, which affords the

government the option of giving up the

land to an adverse claimant who

sucessfully disputes the government's

interest, or paying just compensation.

28 U.S.C.A. § 2409a(b). We believe this

exhibits Congress‘ aversion to having

third parties interfere with the United

States trust relationship with Indian

lands.

39a

8. Numerous cases have been brought to

determine whether the United States has

terminated its trust relationship over

Indian lands. In each instance, the

court recognized that the power to

terminate the trust relationship belonged

to Congress, observing that Congress’

intention to do so must be plain and

unambiguous to be effective. See, e.g.

DeCoteau v. District County Court for

Tenth Judicial District, 4 U.s. 425,

444, 95 S.Ct. T082, 092, 43 L.Bd.2d 300

’

(1975); Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 607-10, 04 S.ct.

772, 777-79, 32 L.B4.2d 73 (1974); United

States v. Santa Fe Pacific R.R., 314 U.S.

, -47, ct. 240, 251-52, 86

L.Ed. 260 (1941); Johnson v. M'Intosh, 8

Wheat. 543, 586, 5 L.ED. 601 (1823);

Catawba Indian Tribe v. South Carolina,

7i8 F.2d 1291, 1296-99 (4th cir. 1983),

adopted after reh' en banc, 740 F.2d

305 (4th Cir. EE ° Hence, we are

loathe toe allow suits seeking the relief

requested here, without some indication

of congressional approval.

40a

allow others, whose interest might be

lesser than that of an adverse claimant,

to divest the sovereign of title to

9 Hence we conclude

Indian trust lands.

that the APA waiver of immunity is

inapplicable in this instance.

9. We recognize that a similar argument

was rejected by the court in City of

Sault Ste. Marie v. Andrus, 458 F-tane-

’ = -D.C. ° Several of

the claims raised in that case involved

allegations that the Secretary acted

unconstitutionally or beyond his

statutory authority when the United

States acquired title to the land. See

City of Sault Ste. Marie v. Andrus,

F.Supp. 157, 160 (D.D.c. 1980). To that

extent the case is distinguishable,

because the Secretary's actions could not

be considered to be sovereign acts,

thereby precluding the immunity defense.

'%2,:33] Our conclusion that

Congress did not intend to permit third

parties to disrupt the trust relation-

ship of the United States to land held

for the Indians is bolstered by

considering that the congressional waiver

of immunity under the APA does not

"{affect] other limitations on judicial

review or the power or duty of the court

to dismiss any action or deny relief on

any other appropriate legal or equitable

ground." 5 U.S.C.A. § 702. Thus, agency

action is still unreviewable to the

extent that it "is committed to agency

discretion by law." 5S U.6.C.a. §

701(a) (2). This exception to judicial

review is a narrow one that must be

clearly demonstrated before it can be

invoked. Greenwood Utilities Commission

v. Hodel, 764 F.2d 1459, 1464 (11th Cir.

42a

2 Ee

* + NER SI Gon

1985). ° In Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 91 S.Ct.

814, 28 L.Ed.2d 136 (1971), the Supreme

Court announced that judicial review of

agency action is’ forbidden by this

provision only "in those rare instances

where ‘statutes are drawn in such broad

terms that in a given case there is no

law to apply.'" 401 U.S. at 410, 91

S.Ct. at 820 (quoting S.Rep. No. 752,

79th Cong., 1st Sess. 26 (1945)); see

also Heckler v. Chaney, --- U.S. ---, 105

S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985).

[14] The extent to which a

particular statute confers uninhibited

discretion upon an administrator is

dependent upon whether a statute provides

standards against which the challenged

action can be measured. American Federa-

tion of Government Employees v. Brown,

43a

680 F.2d 722, 726 (1ith Cir. 1982), cert.

denied, 459 U.S. 1104, 103 '.Ct. 728, 74

L.Ed.2d 952 (1983). If there are no

judicially manageable standards available

for judging how and when an agency should

exercise its discretion, then it is

impossible to determine even whether the

agency abused its discretion. Heckler,

105 S.Ct. at 1655; Greenwood Utilities

Commission v. Hodel, at 1464.

[15] The statute pursuant to which

the Secretary acted in acquiring the land

in trust provides in pertinent part:

The Secretary of the Interior is

hereby authorized, in his discretion, to

acquire, through purchase, relinquish-

ment, gift, exchange, or assignment, any

interest in lands, water rights, or

surface rights to land, within or without

existing reservations, including trust or

44a

dew A. LENE A Sela tN Rs te ne ABM tohcien es

SE NI Sh ar Fetch WE

Bante Ye

otherwise restricted allotments, whether

the allottee be living or deceased, for

the purpose of providing land _ for

Indians.

For the acquisition of such lands ...

there .s authorized to be appropriated, a

sum not to exceed $2,000,002 in any one

fiscal year: Provided, That no part of

such funds shall be used to acquire

additional land outside the exterior

boundaries of Navajo Indian Reservation

for the Navajo Indians in 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.

Title to any lands or rights acquired

pursuant to [this section] shall be

taken in the name of the United States n

trust for the Indian tribe or individual

Indian for which the land is

acquired....

25 U.S.C.A. § 465. This statute was

enacted as part of the Indian Reorganiza-

tion Act of 1934, 48 Stat. 984, codified

as amended at 25 U.S.C.A. § 461 et seq.,

the purpose of which was to "rehabilitate

the Indian's economic life and to give

him a chance to develop the initiative

destroyed by a century of oppression and

paternalism." Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 152, 93 S.Ct. 1267,

1272, 36 L.Ed.2d 114 (1973) (quoting H.R.

Rep. No. 1804, 73d Cong., 2d Sess., 6

(1934)). Through this statute, Congress

sought to foster and encourage self-

government among the various’. Indian

tribes. Fisher v. District Court of

46a

Sixteenth Judicial District of Montana,

424 U.S. 382, 387, 96 S.Ct. 943, 946, 47

L.Ed.2d 106 (1976). The grant of

authority to the Secretary of the

Interior to acquire land for the Indians

was central to this purpose. Previously,

the Federal Government had a policy of

allotting plots of land to _ individual

Indians. See General Allotment Act of

1687, 24 Stat. 388, codified at 25

U.S.C.A. § 331 et seq. Having failed to

meet the land needs of individual Indians

and Indian tribes through this policy,

because many of the allotted lands were

sold to whites, see S.Rep. No. 1080, 73d

Cong., 2d Sess., 1-2 (1934), Congress

directed that Indian land no longer be

allotted, 25 U.S.C.A. § 461, and that

alienation of restricted Indian land be

prohibited except in certain instances.

47a

25 U.S.C.A. § 464. In addition, Congress

extended the existing periods of trust

and restrictions on alienation for

indefinite periods. 25 U.S.C.A. § 462.

To ensure that individual Indians and

Indian tribes had land adequate for their

self-support, Congress further authorized

the acquisition of additional lands for

Indians, and provided that land so

acquired would be held in trust by the

Federal Government. 25 U.S.C.A. § 465.

[16,17] The statute states that the

decision to acquire land is one within

the Secretary's discretion. Furthermore,

it does not delineate the circumstances

under which exercise of this discretion

is apporpriate, except to prohibit

additional acquisitions outside the

exterior boundaries of certain

reservations. Indeed, the decision to

48a

acquire a particular tract of land would

involve a myriad of factors, including

internal management constraints relating

to budget limits, the particular needs of

the numerous individual Indians and

Indian tribes, the proposed use of the

land, and government resources’ for

overseeing the land. In addition,

cooperation of state and local

authorities would in many cases. be

essential. It is of necessity then that

the Secretary have broad discretion when

reviewing an application for land

acquisition. !9

49a

10. In their complaint appellants

alleged that the land's trust status

deprived them of their ability to collect

the tax imposed on cigarette sales. The

parties quarrel over whether Florida law

forbids the taxing of all cigarette sales

made by Indians, or ‘jjust those made on

reservation or trust land. Whether and

to what extent Florida law prohibits

collection of this tax in an issue we

need not address. We note only that, as

a matter of federal law, Florida is not

prohibited from imposing a tax on

cigarette sales made to non-Indians, even

those occurring on land held in trust by

the United States. Washington v. Confed-

erated Tribes of the Colville Indian

Reservation, 44/7 U.S. 134, 151, 155-57,

100 S.Ct. 2069, 2082-83, 65 L.Ed.2d 10

(1980); Moe v. Confederated Salish &

Kootenai Tribes, 425 U.S. 463, 482-83, 96

S.Ct. 1634, 1645-46, 48 L.Ed.2d 96

(1976); Seminole Tribe of Florida v.

Butterworth, 656 F.2d 310, 317 n. 9 (5th

Cir. 1981), cert. denied, 455 U.S. 1020,

102 S.ct. 1717, 72 L.Ed.2d 138 (1982).

of course, Hillsborough County is

forbidden to tax the land under 25

U.S.C.A. § 465. The county, however, is

not a party to this proceeding.

50a

“ ete ala cae

i

Appellants contend that law to apply

might be found in the regulations set

forth at 25 C.F.R. § 151.3, and 25 C.F.R.

§ 151.10. Appellants fail to

demonstrate, or even allege, how 25

C.F.R. § 151.3 provides law to apply in

this case. They admit that the Secretary

had congressional authority to acquire

the land. In addition, they admit that

the Tribe had an interest in the land

before the United States acquired title.

And they do not allege that the Secretary

failed to approve the land acquisition.

[18] 25 C.F.R. § 151.10 sets forth

factors to be considered when the

Secretary is acting on a request for

acquisition of land in trust status. We

believe that the factors, although they

are guides for the exercise of the

Secretary's discretion, are not "law"

5la

that a reviewing court can apply. The

regulation does not purport to state how

the agency should balance these factors

in a particular case, or what weight to

assign to each factor. Nor does it

mandate that the Secretary not acquire

lands located in particular areas, or

limit the size of acquisitions. The

factors listed in the regulation are not

the kind of legal principles courts are

familiar with applying to a particular

case.

{19} Our characterization of these

regulations is supported by the Supreme

Court's decision in Panama Canal Co. v.

Grace Line, 356 U.S. 309, 78 S.Ct. 752, 2

L.Ed.2d 788 (1958). The petitioner in

that case asked the Court to review the

amount charged in tolls to ships passing

through the Panama Canal. Although the

52a

Statute prescribing the amount to be

charged described in some detail the

formula to be applied in fixing the toll,

the Court concluded that the decision was

one Congress had left to the agency's

discretion. 356 U.S. at 317-18, 78 S.Ct.

at 757-58. The Court observed that the

matter was one on which experts may

disagree," involving “nice issues of

judgment and choice ... which require the

exercise of informed discretion." 356

U.S. at 317, 78 S.Ct. at 757 (citations

omitted); see also Strickland v. Morton,

519 F.2d 467 (9th Cir. 1975) (Secretary

of the Interior's decision that public

land was “suitable for disposal" was

unreviewable as within the Secretary's

discretion despite statute's listing ten

"reasons" to guide the decision). Thus,

we conclude that in this case the

53a

Secretary's decision to acquire the land

is unreviewable as within his

discretion.

III.

[20] Because this lawsuit is barred

by the United States* sovereign immunity,

we need not address the standing

question. Block v. Community Nutrition

Institute, --- U.S. ---, 104 S.Ct. 2450,

2458 n. 4, 81 L.Ed.2d 270 (1984). The

decision of the court below is

AFFIRMED. ||

54a

11. Even when a decision is committea

agency discretion, a court may consider

allegations that an agency failed to

follow its own binding regulations. See

Local 2855, AFGE (AFL-CIO) v. United

States, 602 F.2d 574, 580 (3d Cir. 1979).

As we stated previously, however, the

Secretary did not violate any provision

of 25 C.F.R. § 151.3. With respect to 25

C.FP.R. § 151.10, given the discretionary

balancing to be per formed by the

Secretary, appellants‘ real allegation is

that the Secretary failed to give what

they might consider to be the appropriate

weight to particular factors. That,

however, would not be grounds for

overturning the decision. See Strickland

v. Morton, 519 F.2d 467, 471 (Sth Cir.

1975).