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

i ed eee

Supreme Court, U.S,

FILED

JAN 23 1006

JOSEPH F. SPANIOL, JR,

Jn the Supreme Court of the Hnited States“

OCTOBER TERM, 1985

No. 85-821

STATE OF FLORIDA, ET AL., PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY Hasicut II

Assistant Attorney General

MARTIN W. MATZEN

SARAH P. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the courts below correctly dismissed petitioners’

suit challenging the Secretary of the Interior’s action in

taking a parcel of iand in trust for the Seminole Tribe

pursuant to 25 U.S.C. 465.

(I)

TABLE OF CONTENTS

Page

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Teen eee awh cb ebre cae eka |

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evan nu eis 13

TABLE OF AUTHORITIES

Cases:

Block v. North Dakota, 461 U.S.

as ew 6, 8,9

Citizens to Preserve Overton Park v.

ee en 10

en Oe Ce MD eacciscaceuccnase 8

Florida Departmen of State v. Treasure

Safvors, frc., 458 U.S. 670... cc cca ccccss 9-10

Hawaii v. Gordon, 373 U.S. 57 ............005. Xs

Heckler vy. Chaney, No. 83-1878

Ne cua e ue bud sxc 9.10

ee EP OU. POE onc sneeccacacceae )

Larson v. Domestic & Foreign Corp.,

Ee a a ca eth deka uenssceraee 8,9

Malone vy. Bowdoin, 369 U.S. 643) 22... ..000.5. )

Moe v. Confederated Salish & Kootenai

ee a Vac wenesuces 13

Panama Canal Co. v. Grace Line, Inc..,

es ec acne nceneteseeucc 10

IV

Page

Cases -Continued:

Ramah Navajo School Board v. Bureau of

POPCORN, Gite Si OE 66 ni seen ccaesace cease 13

Seminole Tribe v. Butterworth, 658 F.2d 310,

Geet. GUNN, GSS UB. TER ove cccnctccnsscs 13

United States v. Lee, 106 U.S. 196 ........... 5,9

Washington v. Confederated Tribes,

fk Bi Pee ee eer ree eee Tree Tree eer 13

Constitution, statutes and regulations:

ome. SA, SE FOR BAG dae S45 an ce SN as eeeu ss 9

Administrative Procedure Act, 5 U.S.C.

SOi et seq. :

BD Ws PEED 0.0546 0520s kedans 10, 11, 12

PU EE. 554540546055404054e hex REED 6,8

Indian Religious Freedom Act of 1978,

ee ee EY chau sae bse sbnnedecace ae Oe

Indian Reorganization Act of 1934,

i ae Se ME 6 cee cken'n) eee

Quiet Title Act, 28 U.S.C. 24090 2... ccc ccc ceess 6

RN lp PERNT Tee eT err Tee 6,8

ao CFR. |

SP EE cbatacan cencvenetasneaks 3, 11, 12

I ein ee ee Cue eee 2,4, 7

In the Supreme Court of the Hnited States

OCTOBER TERM, !985

No. 85-821

STATE OF FLORIDA, ET AL., PETITIONERS

We

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Sa-55a) is

reported at 768 F.2d 1248. The order of the district court

(Pet. App. la-2a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 16, 1985, and the petition for a writ of certiorari was

filed on November 14, 1985. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1980, petitioner City of Tampa unearthed an Indian

burial site in the course of a construction project. In order to

enable the project to go forward, the City entered into an

agreement with respondent Seminole Tribe of Florida,

under which the numerous Indian artifacts and skeletal

(1)

2

remains were to be transferred to the Tribe. The Tribe in

turn was to acquire a site in Hillsborough County, Florida,

on which to construct a museum for display of the artifacts

and to inter the remains. The Tribe bought an 8.5-acre

parcel of land for these purposes, and it thereafter peti-

tioned the Secretary of the Interior to acquire title to the

land in trust pursuant to Section 5 of the Indian Reorgani-

zation Act of 1934, 25 U.S.C. 465. Pet. App. 1Sa-16a.

Under 25 U.S.C. 465 the Secretary is authorized, “in his

discretion,” to acquire land “for the purpose of providing

land for Indians,” with the title to be taken in the name of the

United States in trust for the tribe or individual Indians

concerned. In governing regulations, now codified at 25

C.F.R. 151.10, the Secretary has identified certain factors

to be considered in determining whether to take land in

trust.' However, the Secretary has retained the authority to

125 C.F.R. 151.10 provides:

$ 151.10 Factors to be considered in evaluating requests.

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;

(d) 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 the tax rolls;

(f) Jurisdictional problems and potential conflicts of land use

which may arise; and

3

waive those provisions “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.R. 1.2.

On January 16, 1981, the Secretary accepted the Sem-

nole Tribe's 8.5-acre parcel in trust under 25 U.S.C. 465

(Pet. App. 21c-25c). In so doing, he exercised the power

reserved under 25 C.F.R. 1.2 to waive the provisions of the

trust acquisition regulations (Pet. App. 18c-21c), conclud-

ing that the waiver “would be in the best interest of the

Indians” (Pet. App. 18c). The Secretary explained that the

particular property presented an “unusual” situation,

“because of the unique cultural significance of its intended

use” (id. at 19c). In the Secretary's view, it was appropriate

to consider—in addition to the factors normally taken into

account in acquiring land in trust—the policy of the Indian

Religious Freedom Act of 1978, 42 U.S.C. 1996, to protect

and preserve the Indians’ use and possession of sacred

objects.’

Shortly after the United States accepted the property in

trust, the Tribe prepared an interment site for the Seminole

remains, erected a cultural museum, and developed a center

for exhibiting Indian art and craftwork. In addition, the

Tribe began operation of a “Smoke Shop,” at which

cigarettes were sold, tax free, to the general public. Pet.

App. 18a.

(g) If the land to be acquired is in fee status whether the Bureau

of Indian Affairs is equipped to discharge the additional responsi-

bilities resulting from the acquisition of the land in trust status.

242 U.S.C. 1996 provides:

On and after August 11, 1978, it shall be the policy of the United

States to protect and preserve for American Indians their inherent

right of freedom to believe, express, and exercise the traditional

religions of the American Indian, Eskimo, Aleut, and Native

Hawaiians, including but not limited to access to sites, use and

possession of sacred objects, and the freedom to worship through

ceremonials and traditional rites.

4

2. Petitioners (the State of Florida, its Departments of

Business Regulation and Revenue, and the City of Tampa)

then brought this suit in the United States District Court for

the Middle District of Florida to challenge the United

States’ acquisition of the property in trust for the Tribe.

Petitioners sought: (i) a declaratory judgment that the

acquisition was void because the Secretary did not adhere

to the standards in the governing regulations (now 25

C.F.R. 151.10) for acquiring property in trust for Indians,

and (ii) an injunction prohibiting the United States from

treating the property as being held in trust for the Seminole

Indians (Pet. App. 16c). The Tribe was granted leave to

intervene (id. at 18a-19a). Thereafter, in a brief order, the

district court granted the motion of the Secretary and the

Tribe to dismiss the complaint (Pet. App. la-2a). It held

that petitioners lacked standing to bring the suit and that

the court lacked jurisdiction because the United States had

not waived its sovereign immunity with respect to the sub-

ject matter of the suit.

3. The court of appeals affirmed on the ground that the

suit is barred by the sovereign immunity of the United

States (Pet. App. Sa-55a).* The court first determined that

the United States is the real party in interest in this case,

even though petitioners named the Secretary of the Interior

as the defendant, because petitioners seek “to divest the

United States of its title to the land” and because, “{c]learly,

Petitioners had moved to amend their complaint to allege that the

Tribe was conducting bingo games on the property, that the Tribe was

not collecting the state sales tax on taxable transactions occurring on

the land, and that the property was listed on the Hillsborough County

tax rolls as being tax-exempt. However, the district court granted the

motion to dismiss without ruling on the motion to amend the com-

plaint. Pet. App. 19a.

‘The court of appeals therefore did not reach the question of peti-

tioners’ standing to bring this suit. Pet. App. 54a.

5

this relief would operate against the sovereign” (id. at 23a).5

The court rejected petitioners’ contention that this case

could proceed as an “officer's suit,” under United States vy.

Lee, 106 U.S. 196 (1882), to challenge the authority of the

Secretary of the Interior to take the land in trust (Pet. App.

23a-3la). The court observed that petitioners did not sug-

gest that the Secretary was without statutory authority to

accept the land in trust, since 25 U.S.C. 465 expressly

authorized him to do so. It further observed that petitioners

challenged neither the constitutionality of the Secretary's

actions nor the constitutionality of the statute under which

he acted (id. at 26a-29a). Thus, petitioners’ “only complaint”

was that “the Secretary abused his discretion by waiving

consideration of the factors delineated in the [trust acquisi-

tion] regulations” (id. at 27a). However, the court under-

stood those regulations merely to identify factors to be

considered by the Secretary in the exercise of his discretion,

not to constrain the Secretary's authority under 25 U.S.C.

465 to acquire land in trust. For this reason, the court

concluded that petitioners “have failed to demonstrate that

the Secretary exceeded his authority,” and it accordingly

held that this suit could not proceed as an officer's suit (Pet.

App. 30a).

Having concluded that the suit must be regarded as one

against the United States, the court of appeals rejected

petitioners’ contention that the United States had waived its

‘The court of appeals observed that petitioners initially acquiesced in

the Secretary's decision to take the land in trust, and protested only

after the Tribe began to sell cigarettes and operate bingo games on the

land. For this reason, the court explained, the gravamen of petitioners’

complaint concerns the Tribe's conduct, not the decision of the United

States to hold the land in trust. But the court noted that if the United

States were to be divested of its title to the land, the State presumably

could take steps to end the conduct to which it objects. Pet. App.

22a-23a.

6

immunity to suit (Pet. App. 32a-54a). The court of appeals

recognized that under the Administrative Procedure Act

(APA), 5 U.S.C. 702, Congress has waived the immunity of

the United States in a suit against an officer of the United

States for non-monetary relief. But the court relied on the

final sentence of 5 U.S.C. 702, which provides that that

section 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.” The court

found such a prohibition in the Quiet Title Act (QTA), 28

U.S.C. 2409a.

The QTA grants consent to bring an action against the

United States to adjudicate disputed title to property in

which the United States claims an interest, but expressly

does not apply to “trust or restricted Indian lands” (28

U.S.C. 2409a(a)). The court of appeals reasoned that, under

this Court’s decision in Block v. North Dakota, 461 U.S.

273, 280-286 & n.22 (1983), the QTA is the exclusive means

by which a person may challenge the United States’ title to

land and that such a suit therefore may not be brought

against a federal officer under the APA, 5 U.S.C. 702, for

that purpose. The court of appeals recognized that peti-

tioners do not assert an adverse interest in the 8.5-acre

parcel or seek to have title to that parcel quieted in them-

selves. But, in the court’s view, the statutory prohibition

against suits to quiet title to Indian trust lands reflects a

congressional determination to prevent third parties from

interfering with the trust relationship between the Indians

and the United States---a policy that applies equally in this

case because petitioners seek to divest the United States, as

trustee, of its title to the land. Pet. App. 33a-4la.

The court of appeals believed that its conclusion that

Congress did not intend to countenance interference by

third parties with the United States’ trust relationship with

the Indians was bolstered by the fact that agency action is

7

unreviewable in any event under the APA if it “is committed

to agency discretion by law.” In finding this exception to be

applicable here, the court reasoned that the relevant statute,

25 U.S.C. 465, expressly authorizes the Secretary, “in his

discretion,” to acquire land in trust for Indians and imposes

no standards for the exercise of that discretion (except to

bar the acquisition of land outside the boundaries of the

Navajo Reservation). The court also found it significant

that the Secretary’s decision whether to acquire land in trust

“wouid involve a myriad of factors, including internal man-

agement 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 lard” (Pet. App. 49a). Against this back-

ground, the court concluded that “the Secretary [must] have

broad discretion when reviewing an application for land

acquisition” (ibid.). The court rejected petitioners’ conten-

tion that the factors listed in 25 C.F.R. 151.10 furnish suffi-

cient “law” to be applied by a court in reviewing a decision

by the Secretary to take particular land in trust. In the

court’s view, the regulations merely guide the exercise of the

Secretary’s discretion, because they do not purport to state

how the agency should balance the various factors (Pet.

App. 5la-54a).

ARGUMENT

The court of appeals correctly concluded that the Secre-

tary’s decision to accept the 8.5-acre parcel of land in trust

for the Seminole Tribe is not subject to judicial review. Its

holding does not conflict with any decision of this Court or

of another court of appeals, and review therefore is not

warranted.

1. The court of appeals was clearly correct in concluding

that because petitioners seek “an order divesting the United

States of its title to land held for the benefit of an Indian

8

tribe” (Pet. App. 38a), the relief “would operate against the

sovereign” (id. at 23a). See Hawaii v. Gordon, 373 U.S. 57,

58 (1963); Dugan v. Rank, 372 U.S. 609, 620 (1963); Larson

v. Domestic & Foreign Corp., 337 U.S. 682, 687-688 (1949).

Congress has not waived the sovereign immunity of the

United States to such a suit.

The Quiet Title Act provides that the United States may

be named as a party defendant in a “civil action * * * to

adjudicate a disputed title to real property in which the

United States claims an interest.” 28 U.S.C. 2409a(a). How-

ever, the QTA expressly does not apply to “trust or re-

stricted Indian lands” (ibid.). In Block v. North Dakota, the

Court held that “Congress intended the QTA to provide the

exclusive means by which adverse claimants could challenge

the United States’ title to real property.” 461 U.S. at 286.

The Court accordingly rejected the contention that a party

could contest the United States’ title to real property simply

by bringing an action against the responsible federal officer,

either under the APA or pursuant to other authority. See

461 U.S. at 280-286 & n.22.° Otherwise, the Court reasoned,

“all of the carefully crafted provisions of the QTA deemed

necessary for the protection of the national public interest

could be averted.” /d. at 284-285.

In particular, the Court observed in Block v. North

Dakota that if it “were to allow claimants to try the Federal

Government’s title to land under an officer’s-suit theory, the

®With respect to the APA, the Court observed in Block v. North

Dakota that the last sentence of 5 U.S.C. 702 states that it confers no

authority to grant relief “if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is sought.” The Court

concluded that the QTA is an “other statute” within the meaning of this

sentence, because the QTA “forbids the relief” sought if the conditions it

imposes on Congress’s consent to suit are not satisfied. See 461 U.S. at

286 n.22.

9

Indian lands exception to the QTA would be rendered nuga-

tory.” 461 U.S. at 285. Yet that is preceisely what petitioners

have attempted to do here. In this suit against the Secretary

of the Interior, petitioners challenge the United States’ title

to the 8.5-acre parcel, contending that the Secretary’s accep-

tance of title on behalf of the United States, in trust for the

Seminole Tribe, was “void” (Pet. 25; Pet. App. 16c). They

thereby attempt to render nugatory the express exception in

the QTA for Indian trust iands.

To be sure, the petitioners in this case are not adverse

claimants, in the sense that they do not actually seek to quiet

title to the land in themselves. But as the court of appeals

observed (Pet. App. 38a-41a):

Congress chose to preclude an adverse claimant from

divesting the United States’ title to Indian lands held in

trust. It would be anomalous to allow others, whose

interest might be lesser than that of an adverse clai-

mant, to divest the sovereign of title to Indian trust

lands.

This suit therefore is barred by the exception to the QTA for

Indian trust lands.’

?Petitioners’ reliance (Pet. 26-29) on United States v. Lee, supra;

Larson v. Domestic & Foreign Corp, 337 U.S. 682 (1949); and Malone

v. Bowdoin, 369 U.S. 643 (1962), is misplaced. As this Court concluded

in Block v. North Dakota with respect to these very cases, any means

the officer’s suit might once have afforded for adjudicating the United

States’ title to property has been superseded by the QTA. See 461 U.S.

281-282. Petitioners’ reliance (Pet. 22-26) on Land v. Dollar, 330 U.S.

731 (1947), is misplaced for the same reason. That case did not involve a

situation in which Congress intended a form of action other than an

officer’s suit to be the exclusive means for the adjudication of the

particular issue.

Finally, Florida Department of State vy. Treasure Salvors, Inc., 458

U.S. 670 (1982), upon which petitioners aiso rely (Pet. 29-31), lends no

support to their position. There the plurality opinion concluded that,

under the rationale of Larson, the suit against the state officers for

possession of the property in question was not barred by the Eleventh

10

2. Quite aside from the independent bar to suit that

derives from the QTA, petitioners have no right of action

under the APA itself in this case. The APA does not provide

a cause of action for judicial review where the “agency

action is committed to agency @‘scretion by law.” 5 U.S.C.

701(a)(2). The court of appeals correctly held thai the Secre-

tary’s decision to accept the land in trust for the benefit of

the Seminole Tribe was committed to the Secretary’s discre-

tion under this provision and therefore is not subject to

judicial review. Under 25 U.S.C. 465, “(t]he Secretary * * *

is authorized, in his discretion, to acquire” land in trust

(emphasis added), and the statute does not identify the

circumstances in which such an acquisition is appropriate.

Compare Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985),

slip op. 13. Moreover, the nature of the decision the Secre-

tary must make reinforces the conclusion that it is one

committed to his discretion. As the court of appeals

explained (Pet. App. 48a-49a), whether to acquire a parcel

in trust requires a consideration of a number of factors,

including budget and program limitations, the needs of the

Indians concerned, and the impact on the local community.

Thus, 25 U.S.C. 465 is “ ‘drawn in such broad terms that ina

given case there is no law to apply.” ” Citizens to Preserve

Overton Park vy. Volpe, 401 U.S. 402, 410 (1971). See also

Heckler v. Chaney, slip op. 8-9; Panama Canal Co. v.

Grace Line, Inc., 356 U.S. 309, 317-319 (1958).

Amendment, because it was essentially undisputed that the state officers

were acting beyond the scope of their authority by withholding posses-

sion of the artifacts from the private plaintiff. 458 U.S. at 692-697. But

the plurality opinion expressly did not address the application of sover-

eign immunity principles in a case involving the government’s owner-

ship of the property in question—the issue involved in this case. /d. at

697, 699. In addition, Treasure Salvors, like the decisions discussed in

the first paragraph of this footnote, did not involve a situation in which

Congress had designated another form of action as the exclusive means

of adjudicating the disputed question.

11

Petitioners in fact concede that 25 U.S.C. 465, when read

in conjunction with 5 U.S.C. 701(a)(2), “would appear to

prohibit judicial! review.” See Pet. 33. But petitioners argue

(Pet. 31-41) that the Secretary has circumscribed his discre-

tion under the statute by adopting the trust acquisition

regulations, which identify a number of factors the Secre-

tary will consider when deciding whether to take land in

trust, and that a court may review the Secretary’s action to

determine whether it complies with these regulations. There

are several flaws in this argument.

First, as the court of appeals pointed out, the factors

listed in the regulations are intended merely to guide the

Secretary in the exercise of his discretion. The regulations

do not purport to identify the weight to be given each of the

various factors or direct how they should be weighed

against one another; nor do they circumscribe the Secre-

tary’s authority to acquire land in certain areas or limit the

size of the tracts that may be acquired. For these reasons,

“{t]he factors listed in the regulation are not the kind of

legal principles courts are familiar with applying to a par-

ticular case” (Pet. App. 52a).

Second, even assuming that the trust acquisition regula-

tions establish binding legal standards where they apply,

petitioners’ objection in this case nevertheless must fail

because the Secretary exercised his reserved authority to

waive the application of the regulations if he finds that it is

“in the best interest of the Indians” to do so. 25 C.F.R. 1.2.

The Secretary made such a finding Fere. See Pet. App. 18c.

A court has no judicially manageable standards for review-

ing such a finding by the Secretary. In fact, petitioners do

not appear to contend in this case that the acquisition was

not in the best interest of the Indians; and it cannot be

presumed in any event that either Congress or the Secretary

would have intended for that question to be litigated in a

suit brought by a third party, since it is the Secretary who is

12

~~

charged by law with implementing the responsibilities of the

United States in its capacity as trustee for the Indians.

Accordingly, the decision whether to waive the provisions of

the trust acquisition regulations in a particular case plainly

is One committed to the Secretary’s discretion within the

meaning of 5 U.S.C. 701(a)(2). It therefore is not subject to

judicial review under the APA.® This narrow question of

reviewability under the particular regulations at issue in this

case does not warrant review by this Court.

3. For the foregoing reasons, the Secretary’s decision to

acquire the 8.5-acre parcel in trust for the Seminole Tribe is

not subject to judicial review. To the extent that petitioners

are concerned not about the acquisition of the property for

purposes of preserving and displaying the artifacts, but

rather about the untaxed sale of cigarettes on the tract,

*Petitioners rely (Pet. 34) on language in 25 C.F.R. 1.2 that provides

for the Secretary to waive the provisions of applicable regulations

“where permitted by law.” Petitioners point out that in deciding to grant

such a waiver in this case, the Secretary cited 42 U.S.C. 1996, the Indian

Religious Freedom Act, which provides that it shall be the policy of the

United States, inter alia, to protect and preserve the right of Indians in

the “use and possession of sacred objects.” See Pet. App. 20c. In peti-

tioners’ view, 42 U.S.C. 1996 did not furnish a basis for the waiver in this

case because that statute does not affirmatively authorize such a waiver.

See Pet. 34. This argument is frivolous.

Petitioners essentially concede (Pet. 33) that, in the absence of the

regulations, the Secretary would have had unreviewable discretion to

acquire the land in trust. Accordingly, a decision by the Secretary to

exercise his retained authority to waive the regulations, and thereby to

commit the matter entirely to the discretion of the Secretary under the

statute itself, is “permitted by law” (i.e., is “perneitted” by 25 U.S.C. 465)

within the meaning of 25 C.F.R. 1.2. In any event, the congressional

policy in 42 U.S.C. 1996 provides an independent basis for such a waiver

in this case. It is irrelevant that, as petitioners point out (Pet. 34), 42

U.S.C. 1996 does not expressly refer to such a waiver. Surely the

overriding statutory policy to preserve Indian religious freedom permits

a waiver of administrative regulations that otherwise might frustrate

that policy.

13

this is not the appropriate case in which to address peti-

tioners’ concerns. The extent to which state law may be

applied on land held in trust for an Indian tribe requires an

ad hoc balancing of the relevant federal, state and tribal

interests at stake. See, e.g., Ramah Navajo School Board v.

Bureau of Revenue, 458 U.S. 832, 837, 845-846 (1982). The

application of particular state laws to conduct on the tract

therefore must be resolved on a case-by-case basis when and

if the State or its political subdivisions seek to apply a

particular law in a manner that affects federal or tribal

interests. We also note that, even on an Indian reservation,

federal law imposes no absolute barrier to the imposition of

state cigarette and other taxes on sales made by Indians to

non-Indians. See Washington v. Confederated Tribes, 447

U.S. 134, 151, 155-157, 161 (1980); Moe v. Confederated

Salish & Kootenai Tribes, 425 U.S. 463, 482-483 (1976):

Seminole Tribe v. Butterworth, 658 F.2d 310, 317 n.9 (Sth

Cir. 1981), cert. denied, 455 U.S. 1020 (1982). Thus, the

mere fact that the 8.5 acres have been taken in trust by the

United States does not necessarily oust the application of

state revenue laws.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. Henry Hasicut Il

Assistant Attorney General

MARTIN W. MATZEN

SARAH P. ROBINSON

Altorneys

JANUARY 1986

DOJ-1986-01