Petition for Writ of Certiorari — Roberts v. United States

, jSupreme Court, U.S.

VY F.LED

99117 4 JAN 1 2 2000

No. 99-

g0( 221 ame) a see

SUSAN G. JAMES

In THE

Supreme Court of the United States

HOLLIs EARL ROBERTS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

RICK STANDIFER JOHN G. ROBERTS, JR.*

CLIFFORD, STANDIFER DAVID G. LETTCH

& MCDOWELL GREGORY G. GARRE

2765 N.E. Loop 286 HOGAN & HARTSON L.L.P.

Paris, Texas 75460 555 Thirteenth Street, N.W.

(903) 785-7332 Washington, D.C. 20004

(202) 637-5810

SUSAN G. JAMES & ASSOCIATES

600 S. McDonough Street

Montgomery, Alabama 36104

(334) 269-3330

* Counsel of Record Counsel for Petitioner

WILSON - EPES PRINTING Co.. INC. - (202) 789-0096 - WASHINGTON. DC. 20001

QUESTIONS PRESENTED

Section 5 of the Indian Reorganization Act, 25 U.S.C.

§ 465, authorizes the Secretary of the Interior—‘in his

discretion"—to acquire land “for Indians." The Secretary

has acquired thousands of properties across the country

pursuant to Section 5, including office buildings, houses,

residential lots, and other sundry parcels. All told, the

acquisition of such property has removed vast areas of land

from state and local jurisdiction, and correspondingly

expanded federal and tribal jurisdiction. The questions

presented are:

1. Whether—as the Eighth Circuit has held and the Tenth

Circuit declined to hold below—the standardless delegation

by Congress of totally “discretion[ary]” authority to an

Executive official to acquire land “for Indians” is an

unconstitutional delegation of legislative power; and

2. Whether, if not, an Executive official's acquisition of

-Off-reservation property pursuant to this authority is

enough—standing alone—to transform the property into

“Indian country” under 18 U.S.C. § 1151, a question of

touchstone jurisdictional significance on which the federal -

circuits are divided.

(i)

TABLE OF CONTENTS

CPRPES UIING PRESENTED 0o.n...cocsscsssssesscssesssesssoscescsses

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CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

COP HOSOHHHO HEHEHE ETE SO OHOEEESEEES EEE EOOEH EES EEEEEES

REASONS FOR GRANTING THE WRIT ...................

Il.

THE COURT SHOULD RESOLVE THE

CONFLICT AND CONFUSION OVER THE

CONTINUING VITALITY OF THE NON-

DELEGATION DOCTRINE AND ITS APP-

LICATION TO SECTION 5 OF THE

INDIAN REORGANIZATION ACT..............

THE COURT SHOULD RESOLVE THE

CONFLICT AND CONFUSION OVER THE

INDIAN COUNTRY STATUS OF OFF-

RESERVATION PROPERTY ACQUIRED

BY THE SECRETARY PURSUANT TO

IESE SER:

THE QUESTIONS PRESENTED ARE

UNDENIABLY IMPORTANT AND RE-

acini lioiki chi ssnecchvasseunicecdcnics

enc iasc chAneivnspichakatcdcneninesaicunnses

Page

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tv

9

20

1V

TABLE OF CONTENTS-Continued

APPENDICES - Page

Appendix A: Opinion of the United States Court of

Appeals for the Tenth Circuit (as cor-

pected August 27, 899)... ccccissecscnssscesess la

Appendix B: Opinion of the United States District

Court for the Eastern District of Ok-

lahoma (September 29, 1995)...........:0064 38a

Appendix C: Order of the United States Court of

Appeals for the Tenth Circuit denying .

petition for rehearing and suggestion for

rehearing en banc (September 14, 1999). 53a

Appendix D: Order granting extension of time to file

petition for a writ of certiorari (Dec-

NE EY isirriiansieiiiericenrvnisitrinnts 54a

Appendix E: Statutory Provisions Involved................. 55a

TABLE OF AUTHORITIES

CASES | Page

A.L.A. Schechter Poultry Corp. v. United States,

2O8 US, FES CBF EE) scissors eriterinimcsmnionineninn 15

Alaska.v. Native Village of Venetie Tribal Govt,

Sak Cl the SAE CG POOP vcncainiststnnsinsinncnebvetathahivnniaite passim

American Trucking Ass'ns v. United States Envtl.

Protection Agency, 175 F.3d 1027 (D.C. Cir.

American Trucking Ass'ns v. United States Envi.

Protection Agency, 195 F.3d 4 ().C. Cir.

PIED cc ccndjatninnlasecniesccteaeuanencantabaatalamunaal 10, 17, 18, 19

Buzzard v. Oklahoma Tax Comm'n, 992 F.2d 1073

(10th Cir.), cert. denied, 510 U.S. 994 (1993)..... 22

Cass County, Minn. v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103 (1998) ............. 15

‘Clinton v. City of New York, 524 U.S. 417 (1998)... 16

Department of Interior v. South Dakota, 519 U.S.

FE CE cvs cctiscaecisiertinnssccncasiecnintiatnoniintweaibtaagiion 8, 12

Field v. Clark, 143 U.S. 649 (1892) ..........sscceeeeees 3, 9, 28

Florida Dep't of Business Regulation v. United

States Dep't of Interior, 768 F.2d 1248 (11th

Cir. 1985), cert. denied, 475 U.S. 1011 (1986). .. 13, 14

Heckler v. Chaney, 470 U.S. 821 (1985)........cceeecceees 11

Industrial Union Dep't, AFL-CIO v. American

Petroleum Inst., 448 U.S. 607 (1980)............. 3,9, 16

Langley v. Ryder, 778 F.2d 1092 (Sth Cir. 1985)...... pa

Loving v. United States, 517 U.S. 748 (1996)........... 9, 16

McAlpine v. United States, 112 F.3d 1429 (10th

Cir.), cert. denied, 522 U.S. 984 (1997)..........0008 13,14

Mescalero Apache Tribe v. Jones, 411 U.S. 145

vl

TABLE OF AUTHORITIES—Continued

Page

Mistretta v. United States, 488 U.S. 361 (1989).... 9, 16, 19

Narragansett Indian Tribe v. Narragansett Elec.

Co., BD FS Fae Cite Cie, EGDGD vn svsssscissecsticcscccnccs 22

National Cable Television Ass'n vy. United States,

BED UE DOO Ce Pe ciccsusctsiendadnens 16

Negonsott v. Samuels, 507 U.S. 99 (1993) ................ 28

Oklahoma Tax Comm'n v. Chickasaw Nation, 515

SFT NE PD cnicssarinitscesenctencencaeieenesianainananes ane ee

Oklahoma Tax Comm'n vy. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S.

SEED CAGED sierisnisstscidcasencicregsaraisteniadaaedesdee aan eee

Okiahoma Tax Comm'n v. Sac & Fox Nation, 508

JD. BOG Ce vissessiacindanesonpeneneneaee 24

Opp Cotton Mills, Inc. v. Administrator, 312 US.

BO CTE D erisinssicrannsionrnasonadenieiaeneieanaaaia 19

Panama Refining Co. v. Ryan, 293 U.S. 388

(RISB: cxviasscnsccsarisccosnctnistoneipslaadeanedaieaiaiae ani 15

Penobscot Indian Nation v. Key Bank of Maine, 112

F.3d 538 (ist Cir.), cert. denied, 522 U.S. 913

EIT Discs sonsasvensinssctacatiennsiqurineeaseaceeliapaeanalale ee

Ringsred vy. City of Duluth, 828 F.2d 1305 -

CCR, SIIB Psa cesscsricsionansccisnucnagtaaonals +

Romero vy. International Terminal Operating Co.,

SIO Ws Sw COST eiigritsavitsnaneiniceanpanaiaiins 15

South Dakota v. United States Dep't of the Interior,

69 F.3d 878 (8th Cir. 1995), vacated and

remanded, 519 U.S. 919 (1996)..........cccesseeeeees passim

South Terminal Corp. v. EPA, 504 F.2d 646

(40 GS: PPD encriscciretinaiammaeaenaned 17

Stupak-Thrall v. United States, 89 F.3d 1269 (6th

Cir. 1996), cert. denied, 519 U.S. 1090 (1997)... 18

Terran v. Secretary of Health & Human Servs., 195

Pee RRS CR, Ce, Pe iiscsctsiccscecsientioee 18

Vil

TABLE OF AUTHORITIES-—Continued

Page

Touby v. United States, 500 U.S. 160 (1991) ............ 16

United States v. John, 437 U.S. 634 (1978)............... 23

United States v. McGowan, 302 U.S. 535 (1938).... 21, 25

United States v. Pelican, 232 U.S. 442 (1914).......... 25

United States v. Sandoval, 231 U.S. 28 (1913)......... 20

United States v. Stands, 105 F.3d 1565 (8th Cir.),

cert. denied, 522 U.S. 841 (1997)................... see 21

CONSTITUTION

RR Eh 5 Reiner epee rem nee emer er er eee 2

ERE 2 eh ee CERNE ay

STATUTES

By i PI scan Mise tincinsunanateddianvkecasauaiseemae aden 11

Se ek Oe I Giikcacdiibacnisckarcaneksebiciondepeccimvisiunsines passim

Be a Oe i ceciabsdicachceuextnisnrcacbissielcvgibcamesimnckuc an ae

ey Rr ra We ME shaken kek ca bea sata tadeonieenndtae erase 5

REE 5c Ft | > eRe On ee ROE Ne ARS MR AE MEE 5

a ae is Oe ao aisiscncanen nant tccchnneiucncnesanns eedaceeaeneneace 5

Be es Ee iocnhititncndcannncicnnomaannccnune passim

Bar in eM E iaicleditin th nacesbeed acccitcaencaaanniaitiieaeceeesoenigin 24

FBS X ae YD bc. SIS RNS SNe eee ey Ronn Rene R rT 15

Fe re Be iiss a cencas tctiatincacdica nnceoeadiniadiies akanaonids 15

ae RCE ccticditsiiacedscremamebaaensnaacmens 2

KG ht. Saat Og SPAR Reena ee Eman eae MET Loree EN 2

Act of Jan. 2, 1975, Pub. L. No. 93-591, 88 Stat.

| ER LRN I CN Le TNE A a NTE 26

REGULATORY PROVISIONS

Ree Wii pastes ea 15

Pe et OE hiitcherendindiaianscnciatindermnaiias 7

PP NE a IE COTY wiiinnd nhixtintrindanarcnsiissvainnicnss 7

BS FG. TO. GIO EGO aie niecessnassccunisccanscansisanssones 6

64 Fed. Reg. 17574 (1999) .occccccccssssessssseesesssesesseeeenee 14, 22

Vill

TABLE OF AUTHORITIES—Continued

OTHER Page

Matthew D. Adler, Judicial Restraint in the Admin-

istrative State: Beyond the Countermajoritarian

Difficulty, 145 U. Pa. L. Rev. 759 (1997) 0.0000... 16

Felix S. Cohen, Handbook of Federal Indian Law

Brent Eckersley, Narragansett Indian Tribe of

Rhode Island v. Narragansett Electric Company:

When Dependent Indian Communities Fall

Within Indian Country, 21 Am. Indian L. Rev.

Pe ED acileapasiscansthinntanicdiepnscsoiedics ccceitacplaiatances 28-29

John Locke, Second Treatise of Government

Oe ey te cata crasesn Veciucteccsnecaniscoebevuseaenres )

Cass R. Sunstein, Justice Scalia’s Democratic

Formalism, 107 Yale L.J. 529 (1997)... ee. 16

Symposium, The Phoenix Rises Again: The

Nondelegation Doctrine from Constitutional and

Policy Perspectives, 20 Cardozo L. Rev. 731

CDOT writiciaetadeimstintbrabetisaeestnemetanciteecnn 10

Timothy A. Wilkins & Terrell E. Hunt, Agency

Discretion and Advances ut Regulatory Theory:

Flexible Agency Approaches Toward the

Regulated Community as a Model for the

Congress-Agency Relationship, 63 Geo. Wash. L.

NE. PIE Cai ekds cat areecksacesdiosessiataaranialbiere: 16

Webster's New College Dictionary (1995) ..........0..... 25

IN THE

Supreme Court of the United States

No. 99-

HOLLIS EARL ROBERTS,

Petitioner.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Hollis Earl Roberts respectfully petitions this

Court for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Tenth Circuit is reported at 185 F.3d

1125 and reproduced in the appendix hereto (“App.”) at la.

The opinion of the District Court for the Eastern District of

Oklahoma on the jurisdictional issues raised here 1s reported

at 904 F. Supp. 1262 and reproduced at App. 38a.

5

JURISDICTION

The judgment of the Tenth Circuit was entered on ,

August 3, 1999. App. la. The Tenth Circuit denied a timely

petition for rehearing and suggestion for rehearing en banc

on September 14, 1999. App. 53a. On December 2, 1999,

Justice Breyer extended the time to file a petition for a writ of

certioran to and including January 12, 2000. App. 54a. The

jurisdiction of the Tenth Circuit was based on 28 U.S.C.

§ 1291. The jurisdiction of this Court is invoked under 28

U.S.C. § 12541).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section | of the United States Constitution

provides:

All legislative Powers herein granted shall be vested in a

Congress of the United States, which shall consist of a

Senate and House of Representatives.

Article I, Section 8, Clause 3 of the Constitution gives

Congress the authority “[t]o regulate commerce * * * with

the Indian Tribes.”

Section 5 of the Indian Reorganization Act of 1934, 25

U.S.C. § 465, provides in pertinent part:

The Secretary of the Interior is hereby 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.

The provisions of 25 U.S.C. § 465 are reproduced in full at

App. 55a-56a, together with 18 U.S.C. §§ 1151 and 1153.

3

INTRODUCTION

This petition raises profound questions concerning the

structure of our constitutional government and the scope of

Indian country codified by 18 U.S.C. § 1151, arising in a

context that has touchstone jurisdictional significance for the

division of federal, state, and tribal authority over thousands

of properties and vast areas of land across the country.

The first question concerns the limits on the delegation of

legislative power vested in Congress by Article I. As this

Court observed long ago: “That Congress cannot delegate

legislative power to the President is a principle universally

recognized as vital to the integrity and maintenance of the

system of government ordained by the Constitution.” Field

v. Clark, 143 U.S. 649, 692 (1892). Over the past half

century, however, “the principle that Congress c[an] not

simply transfer its legislative authority to the Executive [has

fallen} under a cloud.” Industrial Union Dep't v. American

Petroleum Inst., 448 U.S. 607, 674-675 (1980) (Rehnquist,

J., concurring in the judgment). As a result, at the same time

that questions concerning the breadth of legislative

delegations have arisen with new urgency in a variety of

regulatory contexts, conflict and confusion have smoldered in

the lower courts over the application and even continuing

viability of the nondelegation doctrine.

Guidance is sorely needed from this Court on this basic

principle of constitutional government, and this case presents

_an ideal vehicle for providing it. It presents a challenge to

Section 5 of the Indian Reorganization Act of 1934 (“Section

5"), 25 U.S.C. § 465, which authorizes the Secretary of the

Interior—“in his discretion’—to acquire property in trust

“for Indians.” The Tenth Circuit below expressly rejected

the conclusion of the Eighth Circuit that the delegation of

this purely “discretion{ary]” power violates _ the

nondelegation rule. App. 17a-18a. Three Terms ago, this

4

Court granted certiorari in the Eighth Circuit case and, at the

request of the United States vacated the Eighth Circuit

decision and remanded to the Secretary for reconsideration of

his decision under newly issued regulations that are

inapplicable here. The same issue is squarely presented

here—but without the wrinkle that caused vacatur in the

Eighth Circuit case—and now should be decided.

The second question presented follows from the first: if

Section 5 permissibly delegates to the Executive carte

blanche to acquire property in trust for Indians, then ts the

fact that off-reservation property was acquired pursuant to

Section 5 enough—standing alone—to transform _ the

property into Indian country within 18 U.S.C. § LISI?

Conflict-and confusion surround that issue as well. While

acknowledging the directly contrary position of the Eighth

Circuit, the Tenth Circuit below answered this question in the

affirmative. But at the same time, the Tenth Circuit could

not agree into which Section 1151 category of Indian country

the property at issue in this case—an office complex located

in downtown Durant, Oklahoma—fits. For its part, the

United States took the position that the property was Indian

country even though it freely conceded that the property did

not fit into any of the Section 1151 categories.

Indian country is the touchstone for delineating federal,

state, and tribal sovereignty over property, as well as

jurisdiction over activities occurring on it. Acting pursuant

to Section 5, the Secretary has acquired thousands of

properties across the country ranging from office buildings

like the one in this case to houses to industrial sites—even a

former Sears department store. See Ringsred v. City of

Duluth, 828 F.2d 1305 (8th Cir. 1987). As this case

illustrates, many of these properties are not only off-

reservation, they are just off Main Street in towns across the

country. If the Secretary is free to stockpile such properties

for Indians—with no guidance at all from Congress on what

TE LAI SE Be w:

standards to apply in doing so—then this Court should decide

whether the mere fact that the Secretary has elected to do so

transforms the property into full-blown Indian country within

the meaning of Section L151.

STATEMENT OF THE CASE

1. Hollis Earl Roberts (“Roberts”) served as Principal

Chief of the Choctaw Nation of Oklahoma for 19 years, and

was vested with “‘the Supreme executive power of this

Nation.” App. 2a (quoting Constitution of the Choctaw

Nation of Oklahoma, article VI, sec. 1). In June 1995, he

was charged in an eight-count indictment in the Eastern

District of Oklahoma with aggravated sexual abuse, sexual

abuse, and abusive sexual contact, in violation of 18 U.S.C.

§§ 2241, 2242, and 2244. The indictment alleged that

Roberts had forced unwanted sexual actions on members and

employees of the Choctaw Nation in the administrative

offices used by Roberts. Roberts contended that any such

acts were consensual, and that the charges were part of a

scheme to remove him as Principal Chief of the Choctaw

Nation. He was convicted on three counts and is currently

serving a sentence of imprisonment.

Federal jurisdiction over the prosecution was predicated

on the Indian Major Crimes Act, 18 U.S.C. § 1153. That Act

provides that “[a]ny Indian who commits” specified offenses

“within the Indian country, shall be subject to the same law

and penalties as all other persons committing any of the

above offenses, within the exclusive jurisdiction of the

United States.” /d. Thus, it was an element of the offense

that the actions at issue took place “within the Indian

country”—an allegation that Roberts challenged at every

turn. The alleged “Indian country” in which the acts at issue

took place is an office building complex located at 16th and

Locust Streets in Durant, Oklahoma. The complex formerly

housed the Oklahoma Presbyterian College for Girls but now

6

houses administrative offices of the Choctaw Nation, as well

as Offices of and a museum operated by the Red River Valley

Historical Association.

The process by which the United States came to hold title

to the property began in 1975, when the United States

Marshal for the Eastern District of Oklahoma conveyed the

property to the Historical Association. App. 41a. On July

19, 1976, the Association conveyed the property to the

Durant Chamber of Commerce. About three weeks later, the

Chief of the Choctaw Nation—Roberts’s predecessor—

requested that the United States accept the property in trust

for the tribe, and six days later the Chamber of Commerce

conveyed the property to the United States in trust for the

Choctaw Nation. While the United States thus acquired title

to the property at issue by August 11, 1976, no official of the

federal government had yet purported to approve the request

to accept the land in trust for the Choctaw Nation. That

action did not occur until August 25, 1976, when the Area

Director of the Bureau of Indian Affairs for Muskogee,

Oklahoma executed his approval of the trust transaction.

The only statutory basis for acquisition of this property by

the United States in trust for the Choctaw Nation is Section

5, which provides that “[t}he Secretary of the Interior is

hereby authorized, in his discretion, to acquire * * * any

interest in lands * * * for the purpose of providing land for

Indians.” 25 U.S.C. § 465. At the time the United States

acquired the Durant property, there were no regulations

addressing the exercise of the discretion afforded by this

provision; such regulations came into existence only in

1980—more than three years after the property in this case

was acquired. See 45 Fed. Reg. 62036 (1980).

Since at least 1974, the Secretary has delegated his

authority “with respect to the management of all Indian

affairs and all matters arising out Indian relations” to the

5

Commissioner of Indian Affairs. See 39 Fed. Reg. 32166-67

(1974) (replacing item-by-item delegations dating from 1949

with general delegation of authority). The authority

delegated by the Secretary has been redelegated to BIA Area

Directors. 34 Fed. Reg. 637 (1969). See App. 50a-Sla.

Thus, under these authorities, the Area Director who took the

office buildings in this case in trust for the Choctaw Nation

had authority to do so only by redelegation of the authority

granted to the Secretary by Section 5.

2. Roberts moved to dismiss the indictment against him

on jurisdictional grounds. In particular, he argued that the

building complex is not Indian Country within 18 U.S.C.

§ 1151 because—while the property may be held in trust by

the United States—the property does not fit into any of the

categories codified by Section 1151. That is, the complex is

neither an Indian reservation, dependent Indian community,

nor allotment.! Roberts also argued that the Secretary lacks

authority to take land into trust for tnbes in the first place

because Section 5 provides no standards to guide the exercise

of the discretion it confers, and therefore constitutes an

unconstitutional delegation of authority. The District Court

rejected these contentions. See App. 47a.

The Tenth Circuit affirmed. With respect to the issues

presented here, the Court first considered Roberts's “fervent

! Section 1151 defines Indian Country as:

(a) all land within the limits of any Indian reservation under the

jurisdiction of the United States Government. notwithstanding the

issuance of any patent, and including rights-of-way running through

the reservation, (b) all dependent Indian communities within the

borders of the -United States whether within the original or

subsequently acquired territory thereof, and whether within or without

the limits of a state. and (c) all Indian allotments, the Indian titles to

which have not been extinguished. including rights-of-way running

through the same.

8

argument that the property's trust status does not establish

Indian Country” under Section 1151. App. 4a. There is no

question that the office complex is not part of any federally

designated Indian reservation or allotment, and it does not

resemble a dependent Indian community in any conventional

sense; indeed, the government conceded as much. See infra

at 23. But the Tenth Circuit nevertheless held that “lands

owned by the federal government in trust for Indian Tribes

are Indian Country pursuant to 18 U.S.C. § 1151.” App. 7a.

In reaching this conclusion, the Tenth Circuit declined “to

affix” any “categorical label” to the property at issue in

accordance with the terms of Section 1151. App. Ila.

The Court of Appeals also rejected Roberts's argument

that SectionS “unconstitutionally delegates standardless

authority to the Secretary.” App. 17a. While the court

recognized that the Eighth Circuit had so held in South

Dakota v. United States Dep't of Interior, 69 F.3d 878 (8th

Cir. 1995), it dismissed that opinion because this Court

vacated it after the government changed its legal position

when it sought review in this Court. See 519 U.S. 919

(1996). The Tenth Circuit below expressly disclaimed

reliance on the BIA_ regulations—adopted after the

acquisition at issue here—purporting to find standards

limiting the Secretary's discretion in “the statute itself.”

App. 18a n.8. The Tenth Circuit also relied on certain

“goals” identified in the legislative history, and found that the

Secretary had not transgressed any of the standards

articulated there. /d. Rejecting all other arguments on

appeal, the court affirmed Roberts's conviction.

we, a. “a

9

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD RESOLVE THE CON-

FLICT AND CONFUSION OVER THE CON-

TINUING VITALITY OF THE NONDELEGATION

DOCTRINE AND ITS APPLICATION TO SECTION

5 OF THE INDIAN REORGANIZATION ACT.

1. Federal jurisdiction over the charges against Roberts

was based solely on a decision by an Area Director from

Muskogee to acquire a building complex that used to be a

girls school but came to house the administrative offices of

the Choctaw Nation. The authority for that decision was a

delegation from the Secretary of the Interior, and subsequent

redelegation by his delegate, of the statutory authority set out

in Section 5, 25 U.S.C. §465—i.e.. the purely

“discretion[ary]” authority to acquire land “for Indians.”

This exceptionally broad delegation squarely implicates

the constitutional nondelegation doctrine—a doctrine “rooted

in the principle of separation of powers that underlies our

tripartite system of Government.” Mistretta v. United States,

488 U.S. 361, 371 (1989). This doctrine has been recognized

by this Court since at least Field v. Clark, 143 U.S. at 492,

but it has existed since the days of Locke. See Loving v.

United States, 517 U.S. 748, 758-759 (1996); John Locke,

Second Treatise of Government 87 (R. Cox ed. 1982) (“The

power of the legislative being derived from the people by a

positive voluntary grant and institution, can be no other, than

what the positive grant conveyed, which being only to make

laws, and not to make legislators, the legislative can have no

power to transfer their authority of making laws, and place it

in other hands”). Today, the doctrine is shrouded in doubt.

Over the past half century, the nondelegation doctrine has

fallen “under a cloud,” Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst. (“Benzene™), 448 U.S. at 675

10

(Rehnquist, J., concurring in the judgment), spawning debate

among Members of this Court,? judges in the lower courts,}

and those in the academy.+ While the Tenth Circuit below

upheld the statute against Roberts's nondelegation doctrine

challenge—squarely holding that “the statute itself provides

[adequate] standards for the Secretary's exercise of

discretion,” App. 18a n.8—its decision conflicts with the

conclusion of the Eighth Circuit on the very statute in

question. This Court should grant certiorari to address the

important and recurring issues concerning the nondelegation

doctrine and its application to the limitless delegation of

jurisdictionally-significant authority under Section 5.

2.a. In South Dakota v. United States Department of

Interior, 69 F.3d 878 (8th Cir. 1995), the Eighth Circuit

considered South Dakota's challenge to a decision by the

Assistant Secretary of the Interior to acquire 91 acres of

land—located seven miles from the reservation of the Lower

> See infra at 16.

¥ See. e.g.. American Trucking Ass‘ns v. United States Envtl Protection

Agency, 175 F.3d 1027, 1034-40 (D.C. Cir. 1999) (finding nondelegation

doctrine violated). id. at 1057-62 (Tatel, J.. dissenting in part) (criticizing

majonty for “ignorling] the last half-century of Supreme Court

nondelegation jurisprudence”). See also American Trucking Ass‘ns v.

United States Envtl Protection Agency, 195 F.3d 4 (D.C. Cir. 1999)

(modifying panel opinion): id. at 14 (Silberman, J., dissenting from denial

of rehearing en banc); id. at 16 (Tatel, J.. joined by Edwards, C.J.. and

Garland, J., dissenting from denial of rehearing en banc) (“The panel's

nondelegation holding plainly involves a question of exceptional

importance warranting en banc review. * * * [T]he panel departied] from

a half century of Supreme Court separation-of-powers jurisprudence.)

(citauion and internal quotation marks omitted). The ATA case is

discussed more fully infra at 17-18. ;

4+ See, e.g.. Symposium, The Phoenix Rises Again: The Nondelegation

Doctrine from Constitutional and Policy Perspectives, 20 Cardozo L.

Rev. 731 (1999) (various articles on nondelegation doctrine).

A Te ASCE

hanks hse. Beek as

11

Brule Tribe of Sioux Indians and partially within the City of

Oacoma, South Dakota—in trust for the Tribe. The

Secretary moved to dismiss the suit on the ground that the

- acquisition was “committed to agency discretion by law.”

See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821,

828-830 (1985). The Eighth Circuit, however, held Section 5

unconstitutional under the nondelegation doctrine.

The court noted that Section 5 “defin[es}] no boundaries to

the exercise of this [land acquisition] power,” and “leaves the

Secretary free to acquire for a multitude of purposes, for

example, to expand a reservation, to provide farm land for

rural Indians, to provide a factory for unemployed urban

Indians, to provide a golf course for tribal recreation, or to

provide a lake home for a politically faithful tribal officer.”

69 F.3d at 882. “Indeed,” the Eighth Circuit observed, the

terms of the statute would “permit the Secretary to purchase

the Empire State Building in trust for a tribal chieftain as a

wedding present. There are no perceptible ‘boundaries,’ no

‘intelligible principles’ within the four comers of the

statutory language that constrain this delegated authority—

except that the acquisition must be ‘for Indians."” /d.

Turning to the statute's legislative history, the court found

that Congress had an “agrarian focus” in mind when it

adopted Section 5, id. at 883, but “failed to include [in the

statute] standards to reflect its limited purpose.” /d. Nor,

given the fact that the Secretary had interpreted the statute

“as broadly as possible,” id. at 884, was there any potentially

relevant narrowing construction offered by the agency. “The

result,” the Eighth Circuit held, “is an agency fiefdom whose

boundaries were never established by Congress, and whose

exercise of unrestrained power is free from judicial review.

It is hard to imagine a program more at odds with separation

of powers principles.” /d. at 885.

{2

It is just that program, however, that the Tenth Circuit

upheld below. Barely pausing to consider the reasoning or

context of the Eighth Circuit's opinion in South Dakota, the

Tenth Circuit below was content to observe that, because the

South Dakota decision has been vacated by this Court, “it has

no precedential value to us.” App. 18a. It is true that the Eighth

Circuit decision was vacated, but it is clear that the vacatur

rested on a ground not applicable to this case. Thus, while the

Eighth Circuit's decision may no longer be binding, the

reasoning it aruculated would have compelled a different result

in this case had it been adopted by the Tenth Circuit.

The court below was unable to discern the basis for this

Court's action in South Dakota, App. 18a, but the record in

that case makes clear that the vacatur was based on the

Secretary's supplementation of regulations first issued in

1980—nearly half a century after Section 5 was adopted

which were inapplicable to the 1976 acquisition at issue here.

Having lost the South Dakota case in the court of appeals,

“the federal government * * * abandoned the position” that

the exercise of authority by the Secretary under Section 5 is

unreviewable and “issued a_ final = regulation — that

acknowledges and affords an opportunity for judicial review

of his Section 5 decisions.” Pet. for Cert. in United States

Dep't of Interior v. South Dakota, No. 95-1956, at 24 (filed

June 3, 1996) (South Dakota Petition”). The government

urged the Court to vacate the Eighth Circuit's judgment and

remand the case with instructions to further remand to the

Secretary to reconsider the acquisition at issue. /d. at 24-26.

The Coun did so, over the dissent of Justice Scalia, joined by

Justices O'Connor and Thomas. See 519 U.S. 919 (1996).

As the Tenth Circuit acknowledged below, neither the

Section 5 regulations nor the procedure for reviewing

decisions made under those regulations—on which this

Court's vacatur in South Dakota was based—were available

at the time of the acquisition of the property at issue here.

eee

13

App. 18a n.8. Instead, the Tenth Circuit decision rested on

its view that “the statute itself provides standards for the

Secretary's exercise of discretion.” /d. (emphasis added).

See also App. 18a (the statute “place[s] additional limits on

the Secretary's discretion”). For that proposition, the Tenth

Circuit cited its earlier decision in McAlpine v. United States,

112 F.3d 1429, 1432 n.3 (10th Cir.), cert. denied, 522 U.S.

984 (1997)—which relied on Judge Murphy's dissent in

South Dakota.

Thus, it could not be clearer that the reasoning of the

Eighth Circuit in South Dakota and the Tenth Circuit below

are squarely in conflict. While the Eighth Circuit held that

Section 5 “define[s] no boundaries to the exercise of this

[acquisition] power,” 69 F.3d at 882, and contravenes the

nondelegation doctrine, the Tenth Circuit held that “the

statute itself’ provides the standards necessary to avoid a

delegation problem. App. 18a & n.8. In reaching this

holding, the Tenth Circuit relied on the views of the judge

who dissented from the Eighth Circuit's decision. While the

Eighth Circuit decision was ultimately vacated by this Court,

the only basis suggested to the Court for doing so is

inapplicable to this case. Quite plainly, this case would come

out differently under the rationale of South Dakota.

b. The circuit conflict does not end there. Like the Eighth

Circuit, the Eleventh Circuit has also recognized that “the

statute itself’—on which the Tenth Circuit relied below —

provides no intelligible principle to guide the Secretary in the

exercise of the discretion it grants. In Florida Department of

Business Regulation v. United States Department of Interior,

768 F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S. 1011

(1986), the court held that the Secretary's decision under

Section 5 was an unreviewable exercise of discretion. It

relied, inter alia, on its view that Section 5 “does not

\-4

delineate the circumstances under which exercise of this

discretion is appropriate.” /d. at 1256.5 The Tenth Circuit

rejected the Eleventh Circuit's Florida decision in McAlpine

V. United States, supra, based on its view that the regulations

under Section 5 provided sufficient guidance “[e]ven

assuming that the statutory language contained in § 5 of the

IRA does not provide ‘law to apply’ in this case.” 112 F.3d

at 1434. Now that the court has reached a similar conclusion

in a case in which the regulations are indisputably

inapplicable, it has plainly rejected the view of the Eleventh

Circuit on the statute as well.

3. The conflict over the constitutionality of Section 5 is

far from academic. As the United States has noted, “[f]lor

more than 60 years, Section 5 has provided the primary

mechanism for the federal government to restore and replace

tribal lands,” and has been the source of authority for

“thousands of acquisitions (covering an estimated 9 million

acres).” South Dakota Petition at 16, 17. Literally thousands

of applications, moreover, are pending before the Secretary

to acquire additional lands pursuant to Section 5. See 64 Fed.

Reg. 17574, 17580 (1999) (in 1996, 6941 applications were

filed with the Secretary to place lands in trust).

The myriad properties and vast areas of land taken into

trust under Section 5 are insulated from state and local

control in several significant respects. First, as specifically

stated in Section 5 ttself, trust land is exempt from state and

local taxation. -See 25 U.S.C. § 465 (Section 5 “lands or

rights shall be exempt from State and local taxation.”). See

also Cass County, Minn. v. Leech Lake Band of Chippewa

5 The case did not involve a constitutional challenge to the statute, 768

F.2d at 1252. but the Eleventh Circuit's conclusion that Section 5 confers

standardless authority on the Executive to acquire land into trust bears

directly on the question presented here.

15

Indians, 524 U.S. 103, 114 (1998) (Section 5 sets forth

“procedure by which lands held by Indian tribes may become

tax-exempt”). Second, as discussed more fully in Part II

below, many lower courts—including the Tenth Circuit

below—have adopted the position that trust land is “Indian

country” for jurisdictional purposes, removed from state civil

and criminal jurisdiction in the absence of the tribe's consent.

25 U.S.C. §§ 1321, 1322. Current Interior regulations also

provide that such land is generally exempt from state and

local land use regulation. 25 C.F.R. § 1.4.

The conflicting decisions of the courts of appeals

introduce great uncertainty about the very nature and control

of the lands at issue. So long as a cloud exists over the

Secretary's authority to take lands into trust under Section 5,

the taxing, regulatory, and civil and criminal authority over

vast areas of land is subject to challenge and confusion. As

this Court has observed, however, “[sJound judicial policy

does not encourage a situation which necessitates constant

adjudication of the boundaries of state and _ federal

competence.” Romero vy. International Terminal Operating

Co., 358 U.S. 354, 376 (1959). That is, jurisdictional

determinations should be clear, and not shrouded in doubt.

The Court should eliminate that doubt here.

4. The nondelegation issue implicated by the decision

below, moreover, reaches far beyond the particular context at

issue here, for debate over this fundamental separation of

powers doctrine continues unabated. While it has become

commonplace to observe—as the Court of Appeals did

below—that “only twice in its history, and not since 1935”

has the Court “invalidated a statute on the ground of

excessive delegation of legislative authority,” App.19a n.9,¢

© See A.L.A. Schechter Poultry Corp. vy. United States. 295 U.S. 495

(1935): Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

16

the Court has not repudiated the doctrine, and various

Members of the Court have continued to discuss—and rely

on—its validity in a variety of contexts. See, e.g., Clinton v.

City of New York, 524 U.S. 417, 484 (1998) (Breyer, J.,

dissenting) (“The ‘nondelegation’ doctrine represents an

added constitutional check upon Congress’ authority to

delegate power to the Executive Branch. And it raises a

more serious obstacle here”); Loving, 517 U.S. at 758-759,

771-773; Touby v. United States, 500 U.S. 160, 164-165

(1991); Benzene, 448 U.S. at 646 (plurality opinion)

(rejecting broad construction of statute urged by agency to

avoid nondelegation problem); id. at 671-688 (Rehnquist, J.,

concurring in the judgment) (concluding that statute at issue

violates nondelegation doctrine). Other Members of the

Court—and commentators’—have assumed that the doctrine

is all but dead. See, e.g., Mistretta v. United States, 488 U.S.

at 416 (Scalia, J., dissenting) (“What legislated standard, one

must wonder, can possibly be too vague to survive judicial

scrutiny * * * 2"); National Cable Television Ass'n v. United

States, 415 U.S. 336, 352-353 (1974) (Marshall, J., joined by

Brennan, J., dissenting) (nondelegation doctrine “has been

virtually abandoned by the Court for all practical purposes”).

Given the unsettled state of the Court's teaching on the

nondelegation doctrine, lower courts are at a loss to

determine how and when—or, indeed, whether—to apply it.

7 See, ¢.g., Matthew D. Adler, Judicial Restraint in the Administrative

State: Beyond the Countermajoritarian Difficulty, 145 U. Pa. L. Rev.

759, 839 (1997) (“we live in a constitutional world where the

nondelegation doctrine remains dead”), Cass R. Sunstein, Justice Scalia’s

Democratic Formalism, 107) Yale LJ. 529, 549 (1997) (“the

nondelegation doctrine is effectively dead”); Timothy A. Wilkins &

Terrell E. Hunt, Agency Discretion and Advances in Regulatory Theory:

Flexible Agency Approaches Toward the Regulated Community as a

Model for the Congress-Agency Relationship. 63 Geo. Wash. L. Rev.

479, 541 (1995) (doctrine has “receded into purgatory”).

17

As described above, the lower courts’ confusion is evident in

the conflicting analyses of the unlimited delegation in

Section 5, but recent opinions make clear that the confusion

is not limited to that context. The most prominent example is

the American Trucking Associations case. supra, in which a

sharply divided panel of the D.C. Circuit found that “the

construction of the Clean Air Act on which EPA relied in

promulgating [the regulations] at issue here effects an

unconstitutional delegation of legislative power.” 175 F.3d

at 1033. The dissent, meanwhile, had little difficulty

concluding that no nondelegation doctrine problem existed,

relying on “the last half-century of Supreme Court

nondelegation jurisprudence” and the First Circuit's rejection

of “a similar nondelegation challenge” to the Clean Air Act.

See id. at 1057, 1058 (Tatel, J.. dissenting in part) (citing

South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974)).

The disagreements deepened in the several opinions

issued upon resolution of EPA's petition for rehearing and

rehearing en banc. The panel majority observed that “the

approach of the Benzene case, in which the Supreme Court

itself identified an intelligible principle in an ambiguous

statute, has given way to the approach of Chevron,” 195 F.3d

at 8, under which the agency may come up with intelligible

principles not found in the statute itself. Judge Silberman

dissented from denial of rehearing en banc, arguing that the

panel's remand to the agency for it to devise a limiting

principle “undermines the purpose of the nondelegation

doctrine"—"to ensure that Congress makes the crucial policy

choices that are carried into law.” Jd. at 15 (emphasis

added). Judge Tatel, joined by two other judges, also

dissented. He found the debate about the proper remedy

once an illegitimate delegation is identified to have “no

relevance to the constitutional question we face” because, in his

view, the statutory standards at issue are “far more specific than

18

the sweeping statutory delegations consistently upheld by the

Supreme Court for more than sixty years.” /d. at 16.

The cacophony of opinions in the D.C. Circuit—not to

mention the circuit conflict over Section 5 and the confusion.

evidenced in other court of appeals decisions’—are an

unavoidable result of this Court's own ambivalent approach to

the nondelegation doctrine since 1935, under which “the

boundanes limiting the scope of congressional delegation to

the executive branch remain only dimly perceivable.” /d. at

14 (Silberman, J., dissenting from denial of rehearing en

banc). Guidance is needed from this Court on this fundamental

separation of powers principle.

5. This case is an ideal vehicle for providing such

guidance. The Tenth Circuit below held that “the statute

itself” provides the constitutionally required guidance for

Executive action. App. 18a n.8. The statute, however,

contains no limiting principle whatever to guide the

Secretary's exercise of power, providing instead that the

acquisitions it authorizes are “in his discretion.” The only

proviso is that they be “for Indians,” but—as the Eighth

Circuit held and expenence has shown—that ts no practical

limitation at all on the Secretary's exercise of “discretion” in

determining what types of property to acquire under Section 5.

ee ee ne

Pe ee oe ee ee eee

® See. ev.. Terran s. Secretary of Health & Human Servs., 19S F.3d

1302. 1314-15 (red. Cir. 1999) (rejecting application of doctrine), id. at

1321 nt (Plager. J., dissenting) (declining to join majority discussion of

“the more difficult question of whether the statute as written complies

with the minimum requirements for a valid delegation of legislative

power). Stupak- Thrall v. United States, 89 F.3d 1269, 1283 n.17 (6th

Cir. 1996) (Boggs. J.. dissenting trom denial of reheanng en banc) (the

concerns about democratic legitimacy behind the non-delegation doctrine

have not disappeared”). id) at 1300 (doctrine “may be largely dead. or

barely breathing. but it is not totally dead”), cert. denied, 519 U.S. 1090 j

(1997)

ee ee ee ee ee eee oe

ee

19

Moreover, as it applies to this case and to thousands of earlier

acquisitions, the broad delegation in Section 5 is unadomed by

any administrative effort to establish principles to limn this

uncabined discretion; the property here was acquired long

before the Secretary passed any regulations under Section 5.°

This case, accordingly, presents a direct challenge to the breadth

of the statutory delegation.

Nor does the context in which Section 5 operates provide

any basis for concluding that Congress would somehow be

unable to enact limiting principles due to complexity or

expertise. Instead, the raw authority granted here could

readily have been exercised or cabined by Congress. Cf.

Mistretta, 488 U.S. at 372 (nondelegation “jurisprudence has

been driven by a_ practical understanding that in our

increasingly complex society, replete with ever changing and

more technical problems, Congress simply cannot do its job

absent an ability to delegate power under broad general

directives”); Opp Cotton Mills, Inc. v. Administrator, 312

U.S. 126, 145 (1941).

In short, there are no special factors at work in this case

that would prevent the Court from considering the basic

question of the continuing vitality of the nondele gation

doctrine. Given the confusion over the doctrine’s role in

° The existence of regulations is in any event no answer to the

nondelegation problem. One of the “important functions” served by the

doctrine is to “ensure{} * * * that important choices of social policy are

made by Congress, the branch of our Government most responsive to the

popular will.” Benzene, 448 U.S. at 685 (Rehnquist, J.. concurring in the

judgment). Relying on an agency effort to make those determinations

“undermines the purpose of the nondelegation doctrine.” ATA. 195 F.3d

at 15 (Silberman, J.. dissenting from denial of reheanng en banc). Thus.

when there are no intelligible principles to be found in the statute itself,

the doctrine requires invalidation of the statute. rather than reliance on an

Executive action. See id.

20

separation of powers jurisprudence, the widespread use of the

specific authority at issue here, and the — significant

consequences that flow from its exercise—including, as here,

the establishment of federal criminal jurisdiction—this Court

should grant review to consider the recurring and important

issues surrounding the nondelegation doctrine.

Il. THE COURT SHOULD RESOLVE THE CONFLICT

AND CONFUSION OVER THE INDIAN COUNTRY

STATUS OF OFF-RESERVATION PROPERTY

ACQUIRED BY THE SECRETARY PURSUANT TO

SECTION 5.

1. This case presents a second issue on which the lower

courts also need guidance: if the delegation in Section 5 passes

constitutional muster, is the Secretary's standardless decision to

acquire off-reservation property for the United States to hold in

trust for Indians sufficient—standing alone—to transform the

property into “Indian country” within the meaning of Section

1151? The federal circuits are divided on this important

jurisdictional issue, and the Tenth Circuit decision below

answering this question in the affirmative conflicts with the

intent of Congress, as well as with this Court’s own precedents.

2.a. Congress—which has plenary authonty over Indian

affairs, see U.S. Const. art. I, § 8, cl. 3—has the first and final say

over What 1s Indian country. See Alaska v. Native Village of

Venetie Tribal Gov't, 522 U.S. 520, 534 (1998) ("Whether the

concept of Indian country should be modified is a question

enurely for Congress.””),; United States v. Sandoval, 231 U.S. 28,

46 (1913) (United States’ dealings with Indians “are to be

determined by Congress, and not the courts’). In exercising this

authonty, Congress has codified three categories of Indian

2]

country: (a) “Indian reservation{s]"; (b) “dependent Indian

communities”; and (c) “Indian allotments.” 18 U.S.C. § 11S].10

As ts evident from the text of the statute, “Section | 1S! of 18

U.S.C. does not directly address the status of tribal trust lands

located outside Indian reservations, unless the lands are used for

the residence of a dependent Indian community.”’ Cohen, supra,

at 45. Nor does Section 5 of the Indian Reorganization Act; it

gives the Secretary carte blanche to acquire property in trust for

Indians, and provides that such land “shall be exempt from State

and local taxation,” 25 U.S.C. § 465, but it is silent as to the

property's Indian country status under Section 1151. Asa result,

“the Indian country status of trust lands located outside

reservation boundaries is”’—as the leading commentator has put

it—"uncertain.”” Cohen, supra, at 45.

b. The federal circuits have added to the uncertainty by

issuing conflicting rulings on this basic jurisdictional question.

In United States v. Stands, 105 F.3d 1565, 1572 & n.3 (8th

Cir.), cert. denied, 522 U.S. 841 (1997) (emphasis added), for

example, the Eighth Circuit held that “[flor jurisdictional

purposes, tnbal trust land beyond the boundaries of a

reservation [acquired pursuant to Section 5] is ordinarily not

Indian country.”!! Other circuits, however, have taken the

10 Most Indian country has been expressly designated by Congress as an

Indian reservation (§ 1151(a)) or allotment (§ 1151(c)). See Felix S.

Cohen, Handbook of Federal Indian Law 28 ( 1982). In Venetie, 522 US.

at 528-530, this Court held that Section 1151(b) was intended to codify

its prior decisions in United States v. Sandoval, supra (Pueblo Indian

communities are Indian country), and United States v. McGowan, 302

U.S. 535 (1938) (Reno Indian Colony is Indian country). which involved

lands that were “like Indian reservations generally.” 522 U.S. at 529. As

such, the dependent Indian community category of Section 1151(b) is—

as Venetic recognizes—a “limited” one. Id. at $27

1! The Stands court noted that “[i]n some circumstances. off-reservation

tribal trust land may be considered Indian country.” but none of the

circumstances it identified are implicated here. 105 F.3d at 1572 n..

979

opposite posiuon. Sec, e.g., Penobscot Indian Nation v. Key Bank

of Maine, \12 3d 53%, 547 n.h2 (ist Cir.) (inbal trust land

ordinanly 1s Indian country), cert. denied, 522 U.S. 913 (1997),

Narragansett’ Indian Tribe v. Narragansen Elec. Co., 89 F.3d

906, 920 (ist Cir. 1996) (same), Langley v. Ryder, 778 F.2d 1092,

1095 (Sth Cir. 1985) C*whether lands are merely held in trust for

the Indians or whether the lands have been officially been

proclaimed a reservation, the lands are clearly Indian country”’).!*

While acknowledging the directly contrary position

adopted by the Fighth Circuit in Stands, the Tenth Circuit

below held that “lands owned by the federal government in

trust for Indian tnbes are Indian Country pursuant to 18

USC. § ISI” App. 7a & n.2 (emphasis added). See also

Bu-card ¥. Oklahoma Tax Comm'n, 992 F.2d 1073, 1076

(JOth Car.) (tabal trust land ordinarily meets Indian country

test), cert. denied, 510 U.S. 994 (1993). In so holding, the

Tenth Circuit refused “to affix” any “categorical label” to the

property at issue in this case under Section 1151. App. Ila.

¢. In addition to deepening the circuit conflict over the

Indian country status of off-reservation trust land, the Tenth

Circuit's Indian country analysis conflicts with the statutory

scheme, as well as with this Court's precedents. As is plain

The firsts where the trust Jand 1 a “de facto reservation or dependent

Indian community Jd The other “situation in which tnbal trust land

may be considered Indian country” 1% where tos an “allotment © '

transferred to the United States in trust for a tnbe™ and. thus, “sull an

alloument” covered by Section 115h(c) /d at 1572 2.5. In other words

according to the kiaghth Circus. tribal trust land may be Indian country

when it fits into one of the exiting Categones of Section 1151

17

The BIA has apparently sided with those circuits that treat off

revcrvalion trust property a+ Indian country See 64 Fed) Key at 17578

( {Ef land were taken in trust by the Secretary, such trust land would then

quality as Indian country and [the tribe occupying a} would have all the

powers that pertain within Indian country >

23

from the text of Section 1151, “Indian country exists * * *

only if the land in question” fits into one of the three

categories codified in Section 1151—“Indian reservations.”

“dependent Indian communities,” and “allotments.” Venetic,

522 U.S. at 527 n.2, 530 (emphasis added). See also United

States v. John, 437 U.S. 634, 648 & n.17 (1978) Undian country

determination depends on whether property in question fits

within one of the “three categories of land” codified in Section

1151). Courts “are not free” to create a fourth Category for

lands held in trust by the United States that do not qualify under

the terms of Section 1151. Venetic, 522 US. at 534.

Astonishingly, in this case even the United States

concedes that the property at issue does not fit within any of

the categories codified by Section 1151. See US. Resp. Br.

in United States v. Roberts, No. 98-7057 (10th Cir.), at 20

("The portions of appellant's brief dealing with reservations,

dependent Indian. communities and allotments are not

discussed herein because such arguments and authonties are

inapplicable to this case. The government has never argued

that the tribal complex is part of a reservation, dependent

Indian community or allotment.’ ) (emphasis added) That

concession—which admittedly was made before this Coun’ s

decision in Venetie—alone compels the conclusion that the

property at issue is not Indian country within Section 115]

and, thus, not Indian country period. See Venetic. 522 US. at

527 & n.2, 526. But far from so holding, the Tenth Circuit

embraced the government's ultra vires approach to the Indian

country determination, and held that the property at issue was

Indian country without bothenng “to affix” any “categoncal

label” to it under Section 1151. App. Ila

To the extent the Tenth Circuit attempted to fill the void

by suggesting that the property is something between an

“informal reservation|{ }" and “dependent Indian

communit[y],”” see id., its decision also plainly conflicts with

this Court's precedent. = Venetie makes clear that the

24

dependent Indian community category of Section 1151(b)

was intended to cover lands that amount to informal

reservations under this Court's prior cases and, thus, are “like

Indian reservations generally.” 522 U.S. at 529. See also id.

at 527 (Section 1151(b) “refers to a limited category of

Indian lands that are neither reservations nor allotments”). In

concluding that both “informal” reservations and “dependent

Indian communities * * * continue to exist under [Section

1151] and Supreme Court jurisprudence,” the Tenth Circuit

missed one of the central teachings of Venetie.\3

Like most if not all off-reservation trust property, the

property at issue in this case is not a reservation, and it is not a

dependent Indian community either. Indeed, Section 1151(b)

expressly requires that the property at issue be an “Indian

community.” That textual predicate was present in Venetie,

see id. at 523 (land at issue was “home to the Neets’aii

Gwich'in Indians”), McGowan (Reno Indian colony), and

Sandoval (Pueblo Indian communities), but it is clearly absent

1S The Tenth Circunt relied on dicta in Oklahoma Tax Common vs.

Chickasaw Nation. 515 U.S. 450, 453 n.2 (1995), and Oklahoma Tax

Comm'n sv. Sac & Fox Nation, 508 U.S. 114. 123 ¢€1993). that Indian

country includes “formal and informal reservations. dependent Indian

communities, and Indian allotments. whether resticted or held in trust by

the United States.” See App. 6a-7a. But that dicta must be read in light

of Venere, which makes clear that what the Court previously has referred

to as “informal reservations” are in fact dependent Indian communities

under Section 1IS1(b)

The Tenth Circuit also relied on the fact that “the IRA authorizes the

Secretary to acquire lands in trust for tnbes, and contemplates the

Secretary may officially declare them to be reservations.” App. 10a

(cating 25 USC. $467). But as Professor Cohen has explained, “[a}ny

implication that lands purchased tor tnbes under section 5 of the IRA

would constitute a reservation is negated by section 7 of that Act. 25

USC. § 467. which authorizes the Secretary to proclaim lands purchased

under section 5 to be a reservation.” Cohen, supra, at 45 1.158 (emphasis

added)

25

here. See Webster's New College Dictionary 227 (1995)

(“community” is “[a] greup of people residing in the same

locality and under the same government’). Indians do not

reside in the building complex at issue here or make their

homes there; they—along with non-Indians who operate a

local historical association and museum in the same offices—

simply perform various administrative tasks there. See App.

4a-Sa. The fact that the building complex was placed in trust

pursuant to Section 5 does not transform it into something it is

not—a “dependent Indian community.”’!4

Of course, it is precisely because the property at issue—as

the goverment conceded—defies characterization under any of

the categories codified in Section 1151 that the Tenth Circuit

was unable “to affix” a “categorical label” to it. App.1 la.

3. While the Tenth Circuit decision clearly conflicts with

the statutory scheme and decisions discussed above, this

Court has never squarely addressed the Indian country status

of off-reservation trust property, and the fact that it has not

done so reinforces the need for guidance here. Generally

speaking, in those instances in which the Court has held that

tribal trust land is Indian country, the property also qualified

as either a reservation, ¢e.¢., John, 437 U.S. at 649; dependent

Indian community, e.g.. McGowan, 302 U.S. at 538; or

allotment, e.g., United States v. Pelican, 232 U.S. 442, 449

(1914). That is not the case, however, with respect to a great

deal of property held in trust by the United States for Indians

—including the building complex here. In holding that off-

reservation trust land is necessarily Indian country within

Section 1151, the Tenth Circuit below and other courts have

14

*

In his treatise. Professor Cohen suggested that off-reservation tribal

trust lands might constitute Indian country under the “dependent Indian

community” category of Section 1151 when such lands are “actually used

for tribal residence under federal supervision.” Cohen. supra. at 45

n.158 (emphasis added). That is obviously not the case here.

26

relied on this Court's decision in Oklahoma Tax Comm'n v.

Citizen Band Potawatomi Indian Tribe of Oklahoma, 498

U.S. 505 (1991). But Potawatomi is hardly dispositive.

That case involved a tribal immunity challenge to state

taxation of sales at a store operated by Indians on off-

reservation trust land. In concluding that tribal immunity

doctrine blocked the tax, the Court observed that “this trust

land *** qualifies as a reservation for tribal immunity

purposes.” Id. (emphases added). Far from establishing any

categorical rule that off-reservation trust land is Indian

country, the Potawatomi Court stated that “the test for

determining whether land is Indian country does not tum

upon whether that land is denominated ‘trust land’ or

‘reservation.””” /d. at 511 (emphasis added). Moreover,

because Potawatomi involved a state taxation issue, the

Court did not decide—and did not need to decide—the

question whether Congress intended off-reservation trust land

to fall within any of the Section 1151 categories; indeed,

Section 5 itself provides that lands taken into trust by the

Secretary are immune from state taxation. See supra at 15.'5

Nevertheless, because the lower courts have read

Potawatomi s treatment of the trust land’s status in more than

one way—the Tenth Circuit below, for example, thought

Potawatomi supported the conclusion that off-reservation

trust land is Indian country with Section 1151, whereas the

Eighth Circuit in, Stands was not at all deterred by

Potawatami in reaching the opposite conclusion—the

1S In addition, the land in Potawatomi was fundamentally different than

the building complex in this case: Congress specifically authorized the

tnibe to convey the land in Potawatomi to the United States in trust. See

Act of Jan. 2, 1975, Pub. L. No. 93-591, 88 Stat. 1922. Accordingly, the

trust land in Potawatomi was not subject to the vagaries of a standardless

decision made pursuant to Section 5, but instead bore the imprimatur of a

congressional decision that the land in question should be taken into trust.

27

decision has only engendered more confusion over the

question presented here. !6

4. The Court should put an end to this conflict and

confusion by granting certiorari in this case and holding that

off-reservation trust land acquired by the Secretary pursuant

to Section 5 is not Indian country unless it fits into one of the

categories established by Section 1151. That is surely the

result intended by Congress.

As this Court has already recognized, Section 1151 spells

out three discrete categories of Indian country, and does not

include lands taken into trust by the Secretary under Section

5. Congress could easily have included such a category, but

it did not do so. At the same time, in Section 5 Congress

specifically provided that lands taken into trust are exempt

from state and local taxation—an attribute shared by Indian

16 Making matters worse, in Mescalero Apache Tribe v. Jones. 41) U.S.

145 (1973), the Court essentially reached the opposite result as in

Potawatomi. Mescalero involved the question whether an Indian tribe

was immune from state taxation for the operation of a ski resort on off-

reservation land. The resort was “developed under the auspices of the

Indian Reorganization Act of 1934” on land that was “leased from the

United States Forest Service for a term of 30 years.” 411 ULS. at 146.

Although “the ski resort land was not technically ‘acquired’ ‘in trust for

the Indian tribe. id. at 155 n.J} (quoting “Section 5), the Court

concluded that it was on the same footing as Section 5 trust land because

“it would have been meaningless for the United States, which already had

litle to the forest, to convey title to itself for the use of the Tribe.” /d.

(quotation omitted); see id. ("We think the lease arrangement here in

question was sufficient to bring the Tribe's interest in the land within the

immunity afforded by Section [5]."). Nevertheless. unlike the trust land

in Potawatomi, the Mescalero Court held that the parcel before it was not

immune from state taxation. In Potawatomi the Court purported to

distinguish Mescalero on the ground that it did not involve trust property.

but it did not address the Court's conclusion in Mescalero that the ski

resort was on equal footing with trust land under Section 5. See

Potawatomi. 498 U.S. at 511.

28

country—but stopped well short of saying that lands acquired

under Section 5 are Indian country within Section 1151. In

addition, the Indian Major Crimes Act—which establishes

federal jurisdiction here—provides jurisdiction over specified

offenses occurring within Indian country as codified by

Section 1151, see Negonsott v. Samuels, 507 U.S. 99, 102-

103 (1993), but does not refer to offenses occurring on trust

lands acquired pursuant to Section 5.

As in other areas of federal Indian law, over time the

lower courts have strayed from—and lost sight of—these

basic textual guideposts. It is time for this Court to step in

and give effect to the intent of Congress that Indian country

be confined to the categories codified in Section 1151.

Ill. THE QUESTIONS PRESENTED ARE UNDENI-

ABLY IMPORTANT AND RECURRING.

The importance of the first question presented is beyond

cavil. The nondelegation pnnciple is “universally recognized

as vital to the integrity and maintenance of the system of

government ordained by the Constitution.” Field v. Clark,

143 U.S. at 692. Questions over the application and state of

that principle have arisen with increasing urgency in the

moder regulatory state, and they are squarely raised here.

The Court ought to decide whether the sort of legislative

blank check penned by Section 5 is permissible under our

consututional scheme and, if so, resolve the uncertainty over

what—if any—limit the nondelegation doctrine places on

Congress today.

The question whether off-reservation property acquired

pursuant to Section 5 is Indian country within Section 1151

is also undeniably important. As BIA recently put it, a

finding that off-reservation land is Indian country results in

“the establishment of a new sovereign or jurisdictional

presence.” 64 Fed. Reg. at 17577. See also Brent Eckersley,

29

Narragansett Indian Tribe of Rhode Island v. Narragansett

Electric Company: When Dependent Indian Communities

Fall Within Indian Country, 21 Am. Indian L. Rev. 193, 193

(1997) (“One of the most important, although often

confusing concepts of Indian law is ‘Indian country.’”).

Such a finding also triggers federal jurisdiction over a host of

offenses under the Indian Major Crimes Act that otherwise

would remain within the exclusive province of the States.

Both issues are recurring—and will continue to recur until

resolved by this Court. The confusion over the non-

delegation doctrine is not going away until this Court

resolves it. With the passing of the reservation and allotment

eras, moreover, Indians have increasingly become involved

in off-reservation activities. See, e.g.. Oklahoma Tax

Comm'n v. Chickasaw Nation, supra (retail — store):

Potawatomi Tribe, supra (same); Mescalero, supra (ski

resort). Thousands of off-reservation properties across the

country are already held in trust by the United States for

Indians, and an astounding volume of requests by Indians to

take lands into trust are pending. See supra at 14; 64 Fed.

Reg. at 17580. In determining whether or not such lands are

Indian country, both questions presented by this petition must

be confronted.

30

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

RICK STANDIFER JOHN G. ROBERTS, JR.*

CLIFFORD, STANDIFER DAVID G. LEITCH

& MCDOWELL GREGORY G. GARRE

2765 N.E. Loop 286 HOGAN & HARTSON L.L.P.

Paris, Texas 75460 555 Thirteenth Street, N.W.

(903) 785-7332 Washington, D.C. 20004

(202) 637-5810

SUSAN G. JAMES

SUSAN G. JAMES & ASSOCIATES

600 S. McDonough Street

Montgomery, Alabama 36104

(334) 269-3330

* Counsel of Record Counsel for Petitioner