Opposition Brief — Roberts v. United States

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Supreme Court, U.S.

FILED

No. 99-1174 APR 12-10

2 eg

In the Supreme Court of the Giiitkd States

HOLLIS EARL ROBERTS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney General

WILLIAM B. LAZARUS

ETHAN G. SHENKMAN

LISA E. JONES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 25 U.S.C. 465, which authorizes the Sec-

retary of the Interior to acquire interests in real prop-

erty “for the purpose of providing land for Indians,” is

an unconstitutional delegation of legislative power.

2. Whether land acquired by the United States pur-

suant to 25 U.S.C. 465 and held in trust for the benefit

of the Choctaw Nation is “Indian country” within the

meaning of 18 U.S.C. 1151.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alaska v. Native Village of Venetie Tribal Gov't,

PU Pees CRUD secnscnsnsnccniesssonstnnanecasesones 2-3, 4, 14, 15, 16, 17

American Power & Light Co. v. SEC, 329 U.S. 90

SPY hdedipiechsitihibisedinsletandnannepsailenialamalstsdadeihetanentninasessis 8,9

American Trucking Ass’ns v. United States Envtl.

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

petition for cert. pending, No. 99-1257 .....c.ceccesesesececeseseeeee 14

Central Mach. Co. v. Anzona State Tax Comm’n,

I 12

County of Yakima v. Confederated Tribes & Bands

of Yakima Indian Nation, 502 U.S. 251 (1992) .0........... )

Department of the Interior v. South Dakota, 519

F_un ana APNE ae CE 6, 12, 13

Donnelly v. United States, 228 U.S. 243 (1913) ou... 15

Flerida Dep’t of Bus. Regulation v. United States

Dep't of the Interror, 768 F.2d 1248 (11th Cir. 1985),

cert. denied, 475 U.S. 1011 (1986) oo... ccscscecsceeeee 12,13

Hagen v. Utah, 510 U.S. 399 (1994) oo... .cccccsccscscscesescsseseees )

Langley v. Ryder, 778 F.2d 1092 (5th Cir. 1985) .......... 16, 18

Lichter v. United States, 334 U.S. 742 (1948) ....eeeee. 8,11

Loving v. United States, 517 U.S. 748 (1996) ......ceseseseeee. 8

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

SIPETTE sissitinictiehicbtehietinshasinianinisericttantadeniooebdhicdobiniohasamicensieian 9, 10,17

Mistretta v. United States, 488 U.S. 361 (1989) ......... 8,9, 12

Morton v. Mancari, 417 U.S. 535 (1974) coccccccccccsccccscsseecesee 9

Cases—Continued: Page

Narragansett Indian Tribe v. Narragansett Elec.

Co., 89 F.3d 908 (1st Cir. 1996) 18

National Broadcasting Co. v. United States, 319

U.S. 190 (1943) 8

O’Connor v. Donaldson, 422 U.S. 563 (1975) .........ccccc0e00- 6

Oklahoma Tax Comm’n v. Chickasaw Nation, 515

U.S. 450 (1995) 17

Oklahoma Tax Comm’n v. Citizen Band Potawa-

tomi Indian Tribe, 498 U.S. 505 (1991) 4, 16,

17, 18, 19

Oklahoma Tax Comm’n v. Sac & Fox Nation, 508

U.S. 114 (1993) 17-18

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) 2

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

106 F.3d 247 (8th Cir. 1996) 6

69 F.3d 878 (8th Cir. 1995) 6,7

Touby v. United States, 500 U.S. 160 (1991) ..sssssssssssssssss 7

United States v. Azure, 801 F.2d 336 (8th Cir.

1986) 16, 19

United States v. Celestine, 215 U.S. 278 (1909) .............04 9-10

' United States v. Cook, 922 F.2d 1026 (2d Cir.),

Cert. denied, 500 U.S. 941 (1991) ..........ccccccccsscscscessersereesseces 18

United States v. Driver, 945 F.2d 1410 (8th Cir.

1991), cert. denied, 502 U.S. 1109 (1992) 18, 19

United States v. Hitchcock, 205 U.S. 80 (1907) ............... 12

United States v. Jackson, 280 U.S. 183 (1930) ................. 12

United States v. John, 437 U.S. 634 (1978) 18

United States v. Kagama, 118 U.S. 375 (1886) .........0000 2

United States v. McGowan, 302 U.S. 535 (1988) .......... 15, 18

United States v. Mitchell, 463 U.S. 206 (1988) .............04 12

United States v. Mottaz, 476 U.S. 834 (1986) ............ccc0 6

United States v. Pelican, 232 U.S. 442 (1914) .............006 15

United States v. Sandoval, 231 U.S. 28 (1918) .............004 15

United States v. South Dakota, 665 F.2d 837 (8th

Cir. 1981), cert. denied, 459 U.S. 823 (1982) .........ccseseeees 19

Cases—Continued: Page

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

1997), cert. denied, 522 U.S. 841 19

Yakus v. United States, 321 U.S. 414 (1944) ......ccccsssereeee 8

Statutes, regulations and rule:

Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 385 ........sceserserees 2

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

5 U.S.C. 701(a)(2) 13

5 U.S.C. 702 13

Clean Air Act, § 109, 42 U.S.C. 7409 ; 14

General Allotment Act of 1887, ch. 119, 24 Stat.

388 9

Indian Land Consolidation Act, 25 U.S.C. 2201

et seq. 11

Indian Reorganization Act of 1934, 25 U.S.C. 461

et seq. 5

25 U.S.C. 465 passim

Indian Reorganization Act Amendments of 1988, -

Pub. L. No. 100-581, Title I, § 101, 102 Stat. 2938 ........... 11

Indian Reorganization Act Amendments of 1990,

Pub. L. No. 101-301, 104 Stat. 202:

§ 3(b), 104 Stat. 207 11

§ 3(c), 104 Stat. 207 11

Indian Reorganization Act Amendments of 1994,

Pub. L. No. 108-263, § 5(b), 108 Stat. 709 ‘lie 11

Quiet Title Act, 28 U.S.C. 2409a 13

28 U.S.C. 2409a(a) 6

48 Stat. 984 (preamble) 10

18 U.S.C. 1151 2,3, 4, 5, 14, 15, 17

18 U.S.C. 1151(a) 14, 16

18 U.S.C. 1151(b) 15, 16, 18

18 U.S.C. 1151(c) 15

18 U.S.C. 1152 6

18 U.S.C. 1153 2,6

18 U.S.C. 1153(a) 2

18 U.S.C. 2241 2

18 U.S.C. 2241(a)(1) 3

18 U.S.C. 2242 2,3

Statute, regulations and rule—Continued: Page

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BS BB), Se wenkincnvisisannddiceiapsctcitnadidbihsehntaanibdieandiianinaninaaaaae 7

25 C.F.R.:

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teat: BIER IEE) scsiscisicencissnsasiinnraitindnenisiibnisieatistilaasintaaabbinsninin ll

eet SIE I siciasarsincssstebieivaieniiastiabsbiainisbeclsanlehaapaiininiais 11

ae TER BD «ccicitinnsentisaamtnssitenessetentediitintiaiiasinasiiits 11

Na TIE TIED i: <icniniessisannisintabeisielainibeiinaiaameaniiaisiaaeaieaiae 11

Rae BIE. GED sincintscocsaccesesesnsensnsncannatinsslionbensnentiienphiisataiis 11

I FE BIE scncccsrosienssnrscerstennatntioneentinndaamminemasinnninin 11

INI TIRE cscsssosnntssnsscsnevtensenemnsetnteninnsiatecningnmnabenionpeaanene 13

Sup. Ct. R..10(8) .........sscocsssscessssecncsssscersncesessscenssssnssoaees “ 7

Miscellaneous:

61 Fed. Reg. 18,082 (1996) 13

H.R. Rep. No. 1804, 73d Cong., 2d Sess. (1934) .......-sssssssee 9

In the Supreme Court of the Gnited States

No. 99-1174

HOLLIS EARL ROBERTS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-37a)

is reported at 185 F.3d 1125. The opinion of the district

court denying petitioner’s motion to dismiss the indict-

ment (Pet. App. 38a-52a) is reported at 904 F. Supp.

1262.

JURISDICTION

The judgment of the court of appeals was entered on

August 3, 1999. A petition for rehearing was denied on

September 14, 1999 (Pet. App. 53a). On December 2,

1999, Justice Breyer extended the time within which to

file a petition for a writ of certiorari to and including

January 12, 2000, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Oklahoma, petitioner was

convicted on one count of aggravated sexual abuse, in

violation of 18 U.S.C. 2242, and two counts of abusive

sexual contact, in. violation of 18 U.S.C. 2244. He was

sentenced to concurrent terms of imprisonment of 135

months on the Section 2242 count and 36 months on

each of the Section 2244 counts. The court of appeals

affirmed. Pet. App. la-37a.

1. Under 18 U.S.C. 1158(a), the United States has

jurisdiction to prosecute specified offenses committed

by Indians in “Indian country.” That statutory pro-

vision, known as the “Major Crimes Act,” was enacted

in 1885. Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 385.

See United States v. Kagama, 118 U.S. 375 (1886)

(upholding the Major Crimes Act).'

The offenses specified in Section 1153 include “a

felony under chapter 109A” of Title 18, such as aggra-

vated sexual abuse (18 U.S.C. 2241), sexual abuse (18

U.S.C. 2242), and abusive sexual contact (18 U.S.C.

2244). See Oliphant v. Suquamish Indian Tribe, 435

U.S. 191, 203-204 & n.14 (1978) (discussing Section

1153).

The term “Indian country” is defined in 18 U.S.C.

1151 to encompass three categories of land: “(a) all land

within the limits of any Indian reservation under the

jurisdiction of the United States Government * * *,

(b) all dependent Indian communities * * *, and (c) all

Indian allotments, the Indian titles to which have not

been extinguished.” See Alaska v. Native Village of

1 The Major Crimes Act was amended in 1948 as part of the

codification of the term “Indian country.”

Venetie Tribal Gov’t, 522 U.S. 520, 526-531 (1998)

(discussing Section 1151).

2. Petitioner is a member of the Choctaw Nation of

Oklahoma. At the time of the events at issue in this

case, petitioner was the Choctaw Nation’s Principal

Chief. Pet. App. la-2a.

In June 1995, a federal grand jury returned an indict-

ment charging petitioner with two counts of aggravated

sexual abuse, in violation of 18 U.S.C. 2241(a)(1)

(Counts II and IV); one count of sexual abuse, in

violation of 18 U.S.C. 2242 (Count V); and five counts of

abusive sexual contact, in violation of 18 U.S.C. 2244

(Counts I, III, VI, VII, and VIII). The indictment

alleged that, from at least 1990 to 19938, petitioner

engaged in acts of forcible sexual relations, abusive

sexual contact, and aggravated sexual assault against

women who were employed by the Choctaw Nation.

Pet. App. la-3a.

Those acts were alleged to have occurred at the

Choctaw Nation Tribal Complex, which is located on

land that the United States holds in trust for the

Choctaw Nation. The Tribal Complex serves as the

headquarters for the Choctaw Nation, and between 60

and 70 employees of the Choctaw Nation work there.

The Choctaw Nation also operates bingo games at the

Tribal Complex. Pet. App. 3a, 40a.

Petitioner moved to dismiss the indictment. He

contended that the United States did not have juris-

diction to prosecute him because the land on which the

alleged offenses occurred is not Indian country under 18

U.S.C. 1151. He argued that the land on which the

Choctaw Nation Tribal Complex is located was never

validly taken into trust by the Secretary of the Interior,

and, in any event, that land held by the Secretary in

trust for an Indian Tribe outside of a formal reservation

cannot constitute Indian country. The district court

denied petitioner’s motion. Pet. App. 38a-52a.

The case proceeded to trial. The jury found petitioner

guilty on one count of aggravated sexual abuse (Count

II) and two counts of abusive sexual contact (Counts I

and VI). The jury found petitioner not guilty on four

other counts. Pet. App. 3a.’

3. The court of appeals affirmed petitioner’s convic-

tions and sentences. The court held, inter alia, that the

United States had jurisdiction to prosecute petitioner.

Pet. App. 3a-19a.

First, the court of appeals held that the Choctaw

Nation Tribal Complex, the place where petitioner’s

offenses occurred, is within Indian country for purposes

of 18 U.S.C. 1151. Pet. App. 4a-17a. The court rejected

petitioner’s argument that, because the land on which

the Tribal Complex is located is not within a formally

recognized reservation, the land cannot constitute

Indian country. The court noted that this Court has

considered two criteria in determining whether lands

that are not within such a formal reservation are Indian

country under Section 1151: whether the lands have

been “validly set apart for the use of Indians as such,”

and whether the lands are “under the superintendence

of the [federal] Government.” Oklahoma Tax Comm ’n

v. Citizen Band Potawatomi Indian Tribe, 498 U.S.

505, 511 (1991); accord Native Village of Venetie, 522

U.S. at 527. The court concluded that the land at issue

here, which the United States acquired and holds in

trust for the Choctaw Nation, satisfies both criteria.

Second, the court of appeals held that the Secretary

of the Interior has the authority under 25 U.S.C. 465 to

2 The district court dismissed one count (Count VIII) before

trial on the government’s motion. Gov't C.A. Br. 3.

acquire lands to be held in trust by the United States

for the benefit of an Indian Tribe. Pet. App. 17a-19a.

The court rejected petitioner’s contention that Section

465 is an unconstitutional delegation of legislative

authority. The court explained that the text and

purposes of the Indian Reorganization Act, of which

Section 465 is a part, provide standards to guide the

Secretary’s discretion: The text of the Act states that

the lands are to be acquired “for Indians,” and the

purposes of the Act include “rehabilitating the Indian’s

economic life” and “developing the initiative destroyed

by . . . oppression and paternalism.” Pet. App. 18a.

ARGUMENT

The decision of the Tenth Circuit is correct on both

questions presented by the petition. Congress, in the

Indian Reorganization Act of 1934, 25 U.S.C. 461 et seq.,

vested in the Secretary of the Interior the authority to

acquire lands to be held by the United States in trust

for the benefit of Indian Tribes. This Court has

recognized trust lands as Indian country for purposes

of 18 U.S.C. 1151, whether or not they are within the

external boundaries of a formally recognized reserva-

tion. Neither aspect of the Tenth Circuit’s decision

conflicts with any decision of this Court or of any other

court of appeals. This Court’s review is therefore not

warranted.

1. Petitioner urges (Pet. 9-20) the Court to resolve a

purported conflict among the circuits concerning the

constitutionality of 25 U.S.C. 465. But no such conflict

exists. In this case, the court of appeals held that Sec-

tion 465 does not violate the non-delegation doctrine.

Petitioner does not identify any extant decision that

holds otherwise.*

a. Petitioner asserts (Pet. 13) that the decision

below conflicts with the “reasoning” of the Eighth Cir-

cuit in South Dakota v. United States Department of

the Interior, 69 F.3d 878 (1995). As petitioner acknowl-

edges (Pet. 12), however, this Court granted the

government’s petition for a writ of certiorari in the

South Dakota case, vacated the Eighth Circuit’s

judgment, and directed that the matter be remanded to

the Secretary of the Interior for reconsideration of his

administrative decision. Department of the Interior v.

South Dakota, 519 U.S. 919 (1996); see South Dakota v.

United States Dep’t of the Interior, 106 F.3d 247 (8th

Cir. 1996) (recalling the mandate, vacating the judg-

ment, and remanding to the Secretary). The Eighth

Circuit’s “reasoning” is, consequently, not embodied in

any valid judgment or decision. See O’Connor v.

Donaldson, 422 U.S. 568, 577-578 n.12 (1975) (“Of

necessity our decision vacating the judgment of the

Court of Appeals deprives that court’s opinion of pre-

cedential effect.”).

3 As an initial matter, there is reason to question whether a

defendant, in a prosecution under 18 U.S.C. 1152 or 18 U.S.C. 1153

for an offense allegedly committed on tribal trust land, should be

entitled to challenge whether the land was validly taken into trust

by the United States. In the Quiet Title Act, 28 U.S.C. 2409a,

Congress has barred challenges to the United States’ title to land

held in trust for Indians. See 28 U.S.C. 2409a(a); United States v.

Mottaz, 476 U.S. 834, 842-843 & n.6 (1986). Moreover, this case

would be an especially inappropriate vehicle for considering the

Indian country status of lands such as those at issue here, since the

lands on which petitioner committed the offenses served as the

seat of government for the Choctaw Nation and since petitioner

was the Principal Chief of the Choctaw Nation during the time of

the offenses.

This case thus does not present a circuit conflict—i.e.,

a “conflict with the decision of another United States

court of appeals on the same important matter,” Sup.

Ct. R. 10(a) (emphasis added)that merits this Court’s

review. This Court reviews “judgment(s], decree[s], or

order(s]” of lower courts, not the reasoning upon which

such judgments, decrees, or orders are based. 28

U.S.C. 2106. And there is no judgment of any court

that rests on a holding, contrary to the Tenth Circuit’s

holding here, that 25 U.S.C. 465 violates the non-dele-

gation doctrine.‘

b. In any event, the Eighth Circuit’s reasoning in its

vacated South Dakota decision is contrary to this

Court’s non-delegation jurisprudence. The text, struc-

ture, and purposes of the Indian Reorganization Act of

1934, of which 25 U.S.C. 465 is a part, provide signifi-

cant guidance for the Secretary of the Interior’s

exercise of his discretion to acquire lands to be held in

trust for the benefit of Indian Tribes. Section 465

consequently is fully consistent with the non-delegation

doctrine. The Tenth Circuit so recognized in this case.

It is well settled that “Congress does not violate

the Constitution merely because it legislates in broad

terms, leaving a certain degree of discretion to execu-

tive or judicial actors.” Touwby v. United States, 500

U.S. 160, 165 (1991). It is “constitutionally sufficient if

4 Petitioner suggests (Pet. 12) that the Court vacated the

judgment in South Dakota not because the Court disagreed with

the Eighth Circuit’s reasoning on the non-delegation issue, but

because the Secretary of the Interior had issued new regulations

governing acquisitions under Section 465. It makes no difference,

however, why the Court vacated the Eighth Circuit’s judgment. It |

is the fact of vacatur, for whatever reason, that renders the judg-

ment (and therefore the reasoning) of the court of appeals in South

Dakota without any continuing effect.

Congress clearly delineates the general policy, the

public agency which is to apply it, and the boundaries of

this delegated authority.” Mistretta v. United States,

488 U.S. 361, 372-373 (1989) (quoting American Power

& Light Co. v. SEC, 329 U.S. 90, 105 (1946)).

Although “in 1935 [the Court] struck down two

delegations for lack of an intelligible principle,” the

Court has “since upheld, without exception, delegations

under standards phrased in sweeping terms.” Loving v.

United States, 517 U.S. 748, 771 (1996); see, e.g., Lichter

v. United States, 334 U.S. 742, 778-786 (1948)

(upholding a statute authorizing the War Department

to recover “excessive profits” earned on military con-

tracts); Yakus v. United States, 321 U.S. 414, 420-427

(1944) (upholding a statute authorizing the Price

Administrator to set prices that are “generally fair and

equitable and will effectuate the purposes of [the

Emergency Price Control] Act”); National Broad-

casting Co. v. United States, 319 U.S. 190 (1943) (up-

holding a statute authorizing the Federal Communi-

cations Commission to regulate broadcasting according

to the “public interest, convenience, or necessity”).

The Court has explained that such terms “need not

be tested in isolation.” American Power & Light Co.,

329 U.S. at 104. Instead, the terms may derive content

from “the purpose of the Act, its factual background

and the statutory context in which they appear.” Jbid.;

see, e.g., Lichter, 334 U.S. at 785 (in considering

whether Congress had constrained the Price Admini-

strator’s discretion to recover “excessive profits,” the

Court considered “(t]he purpose of the Renegotiation

Act and its factual background”).

Congress, in the Indian Reorganization Act, provided

sufficient direction to guide the Secretary of the

Interior’s acquisition of land under 25 U.S.C. 465.

Section 465 states that “[t]he Secretary of the Interior |

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

any interest in lands, water rights, or surface rights to

lands * * * for the purpose of providing land for

Indians.” It thus sets forth both the “general policy” of

Congress (i.e., that the federal government acquire land

“for Indians”) and “the public agency which is to apply

it” (i.e., the Secretary of the Interior and his designees).

Mistretta, 488 U.S. at 372-373. The “boundaries of [the

Secretary’s] delegated authority,” ibid., under Section

465 may be discerned in this case, as in the cases cited

above, in the purposes of the Act as a whole, its factual

background, and the statutory context. American

Power & Light Co., 329 U.S. at 104.

Congress enacted the Indian Reorganization Act to

promote Indian self-government and economic self-

- sufficiency. See Mescalero Apache Tribe v. Jones, 411

U.S. 145, 152-154 (1973) (“The intent and purpose of the

Reorganization Act was ‘to rehabilitate the Indian’s

economic life and to give him a chance to develop the

initiative destroyed by a century of oppression and

paternalism.’”) (quoting H.R. Rep. No. 1804, 73d Cong.,

2d Sess. 6 (1934)); accord Morton v. Mancari, 417 U.S.

535, 542 (1974). Congress was particularly concerned

with reversing the “disastrous” consequences of the

General Allotment Act of 1887, ch. 119, 24 Stat. 388,

which had eroded the tribal land base and weakened

tribal organizations. Hagen v. Utah, 510 U.S. 399, 425

n.5 (1994).° Congress identified “conserv[ing] and

5 The General Allotment Act, together with similar legislation

enacted by Congress in the late Nineteenth Century, sought to

allot tribal lands to individual members and to make available any

remaining lands for sale to non-Indian settlers. See County of

Yakima v. Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 253-254 (1992); see also United States v.

develop{ing] Indian lands and resources” as one of the

purposes of the Indian Reorganization Act. 48 Stat. 984

(preamble).

The purposes and history of the Indian Reorgani-

zation Act significantly inform the Secretary’s exercise

of his authority under Section 465. The Secretary may

acquire land “for Indians,” within the intent of Section

465, when the acquisition would serve such purposes as

advancing tribal economic development, assisting tribal

self-governance, and restoring the ancestral tribal land

base. See, e.g., Mescalero Apache Tribe, 411 U.S. at 155

& n.11, 157 (noting that the United States acted under

Section 465 in making federal land available to a Tribe

“for the purpose of carrying on a business enterprise”).

The Secretary of the Interior has recognized that

Section 465 does not confer boundless discretion. The

Secretary has promulgated implementing regulations

that articulate specific factors, derived from Congress’s

purposes in the Indian Reorganization Act and the

Secretary’s experience in administering it, to guide the

Secretary’s exercise of his discretion to take lands into

trust for Tribes and individual Indians. See 25 C.F.R.

Pt. 151.° The regulations set forth a “land acquisition

policy,” 25 C.F.R. 151.3, which restricts acquisitions to

three circumstances: when the land is within or adja-

cent to an existing reservation, when the land is

already owned by the Tribe, or when “the acquisition of

Celestine, 215 U.S. 278, 290 (1909) (observing that the General

Allotment Act embodied a congressional policy “which look[ed) to

the breaking up of tribal relations,” “put[ting] an end to tribal

organization,” abolishing reservations, and “establishing of the

separate Indians in individual homes”).

6 The initial regulations were promulgated in 1980, after the

land at issue here was taken into trust. The regulations were

amended in 1996. See note 9, infra.

the land is necessary to facilitate tribal self-determi-

nation, economic development, or Indian housing.” 25

C.F.R. 151.3(a)(1)-(3).. The regulations then set forth

particular factors to guide the Secretary’s decision

whether to acquire such land, including “(t]he need of

the individual Indian or the tribe for additional land”

(25 C.F.R. 151.10(b)), “(t]he purposes for which the land

will be used” (25 C.F.R. 151.10(c)), and, if the land is

outside a reservation and is to be used for a tribal

business purpose, “the anticipated economic benefits

associated with the proposed use” (25 C.F.R. 151.11(c)).

By setting out ascertainable standards that govern

trust acquisition decisions, the Secretary has not only

observed, but has given concrete expression to, the

Indian Reorganization Act’s limiting principles. Cf.

Lichter, 334.U.S. at 783 (recognizing that subsequent

“administrative practices” under a statute may demon-

strate the “definitive adequacy” of the terms of the

statutory authorization).’

In sum, the court of appeals’ decision in this case

reflects a “practical understanding that in our increas-

ingly complex society * * * Congress simply cannot

do its job absent an ability to delegate power under

7 Congress has revisited the Indian Reorganization Act on

several occasions since the Secretary’s promulgation of the land

acquisition regulations. See Indian Reorganization Act Amend-

ments of 1994, Pub. L. No. 103-263, § 5(b), 108 Stat. 709; Indian

Reorganization Act Amendments of 1990, Pub. L. No. 101-301,

§ 3(b)-(c), 104 Stat. 207; Indian Reorganization Act Amendments of

1988, Pub. L. No. 100-581, Title I, § 101, 102 Stat. 2938; see also

Indian Land Consolidation Act, 25 U.S.C. 2201 et seg. (extending |

the reach of 25 U.S.C. 465 to all Tribes). Congress has not ex-

pressed any disagreement with the Secretary’s understanding of

his authority under 25 U.S.C. 465 to acquire land in trust for

Tribes and individual Indians.

broad general directives.” Mistretta, 488 U.S. at 372.

The directive at issue here, while to some extent

“broad” and “general,” nonetheless is accompanied by

ample statutory guidance for the Secretary’s exercise

of his discretion. Moreover, in an area in which the

Executive has historically exercised broad authority,

such as the supervision of lands occupied by Indians,®

such directives are especially appropriate. Section 465

does not, therefore, violate the non-delegation doctrine.

Section 465 has been in effect for more than 65 years,

and the Secretary has relied upon it over that period to

acquire more than nine million acres of land. See Pet.

at 17, Department of the Interior v. South Dakota,

519 U.S. 919 (1996). Petitioner’s contentions here call

into question the status of those lands, on which

numerous Tribes have come to depend. Such lands are

often essential for tribal governmental and economic

purposes, and the lands at issue here have been used by

the Choctaw Nation for those purposes. Nothing in the

practical experience under Section 465 suggests a basis

for its invalidation at this late date.

c. Petitioner further contends (Pet. 13-14) that the

decision below conflicts with Florida Department of

Business Regulation v. United States Department of

the Interior, 768 F.2d 1248 (11th Cir. 1985), cert. denied,

475 U.S. 1011 (1986). Petitioner is mistaken.

In Florida Department of Business Regulation,

various state agencies challenged the Secretary’s de-

cision, pursuant to 25 U.S.C. 465, to acquire land to be

held in trust for the Seminole Indiars. Noting that the

8 See, e.g., United States v. Mitchell, 463 U.S. 206, 209 (1983);

Central Mach. Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 163

(1980); United States v. Jackson, 280 U.S. 183, 191 (1930); United

States v. Hitchcock, 205 U.S. 80, 85 (1907).

Quiet Title Act, 28 U.S.C. 2409a, bars title challenges to

trust or restricted Indian lands, the court of appeals

held that, once land has been transferred into trust

status, judicial review of the Secretary’s decision to

acquire the land is impliedly forbidden under Section

702 of the Administrative Procedure Act (APA), 5

U.S.C. 702. 768 F.2d at 1254. The court therefore held

that the APA did not waive the United States’ sover-

eign immunity for purposes of that case. Id. at 1254-

1255. The court also held that the Secretary’s decision

was unreviewable under Section 701(a)(2) of the APA, 5

U.S.C. 701(a)(2), as a decision “committed to agency

discretion by law.” 768 F.2d at 1255.°

As petitioner concedes (Pet. 14 n.5) and as the

Eleventh Circuit expressly noted, the state agencies in

Florida Department of Business Regulation did “not

challenge the constitutionality of the Secretary’s acts

[7.e., acquiring trust lands] nor the constitutionality of

the statute pursuant to which he acted [7.e., 25 U.S.C.

465].” 768 F.2d at 1252." As a consequence, the court

9 The United States now takes the position that review is

available under the APA of the Secretary’s decisions to acquire

land in trust, if review is sought before the United States actually

takes the land into trust for that purpose. See Pet. at 24-25,

Department of the Interior v. South Dakota, 519 U.S. 919 (1996),

(No. 95-1956); see also 61 Fed. Reg. 18,082 (1996) (promulgating a

regulation, now codified at 25 C.F.R. 151.12, to provide an

opportunity for judicial review before land is taken into trust).

10 Petitioner nonetheless asserts (Pet. 14 n.5) that the

Eleventh Circuit concluded that 25 U.S.C. 465 “confers standard-

less authority on the Executive to acquire land.” But the Eleventh

Circuit did not hold that Section 465 confers standardless authority

on the Secretary of the Interior. Rather, the court held that

Section 465 grants the Secretary broad discretion that is not

judicially reviewabie under the APA. That decision does not

purport to address the constitutionality of Section 465.

of appeals had no occasion to address whether Section

465 is an unconstitutional delegation of legislative

power. The Eleventh Circuit’s holding therefore poses

no conflict with the Tenth Circuit’s holding in this

case, '!

2. Petitioner asserts (Pet. 22) that the decision be-

low “deepen(s]” a circuit conflict over whether Indian

country, within the meaning of 18 U.S.C. 1151, encom-

passes tribal trust land that is not within the external

boundaries of a formal reservation. No such conflict

exists. The Tenth Circuit’s resolution of the question is

correct and consistent with the decisions of this Court

and other courts of appeals.

a. Historically, the term “Indian country” has been

used to identify land that, “[gjenerally speaking,” is

subject to the “primary jurisdiction * * * [of] the

Federal Government and the Indian tribe inhabiting

it.” Alaska v. Native Village of Venetie Tribal Gov't,

522 U.S. 520, 527 n.1 (1998). In 1948, Congress enacted

the statutory definition of Indian country, which con-

sists of “all land within the limits of any Indian reser-

vation,” 18 U.S.C. 1151(a); “all dependent Indian com-

"As petitioner notes, the United States recently filed a peti-

tion for a writ of certiorari in American Trucking Associations v.

United States Environmental Protection Agency, 195 F.3d 4 (D.C.

Cir. 1999) (holding that Section 109 of the Clean Air Act, 42 U.S.C.

7409, as interpreted by the EPA, is an unconstitutional delegation

of legislative power), petition for cert. pending sub nom. Browner

v. American Trucking Ass'ns, No. 99-1257 (filed Jan. 27, 2000).

There is no need for the Court to hold the petition in this case

pending the disposition of the petition in American Trucking. The

two cases involve different statutes, different agencies, and dif-

ferent governmental programs; this case arises in the unique con-

text of a challenge by a tribal member to the United States’ title to

lands held in trust for Indians. See pp. 3, 6 note 3, supra.

munities,” 18 U.S.C. 1151(b); and “all Indian allotments,

the Indian titles to which have not been extinguished,” -

18 U.S.C. 1151(e).

Section 1151 reflects the two criteria that this Court

“previously * * * had held necessary for a finding of

‘Indian country’”: “first, [the lands] must have been set

aside by the Federal Government for the use of the

Indians as Indian land; second, they must be under

federal superintendence.” Native Village of Venetie,

522 U.S. at 527. Prior to the enactment of Section 1151

in 1948, this Court had already found that reservation

lands and allotments satisfied those requirements. See,

e.g., United States v. Pelican, 232 U.S. 442, 449 (1914)

(Indian country includes individual Indian allotments

held in trust by the United States because they

“remain(] Indian lands set apart for Indians under

governmental care”); Donnelly v. United States, 228

U.S. 243, 269 (1913) (Indian country includes lands

within formal reservations). Congress used the term

“dependent Indian communities” in Section 1151(b) to

codify this Court’s understanding, as expressed in

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

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

other lands, although not formally designated as a

reservation, may also possess the attributes of “federal

set-aside” and “federal superintendence” characteristic

of Indian country. Native Village of Venetie, 522 U.S.

at 530; see, e.g., McGowan, 302 U.S. at 538-539 (Reno

Indian Colony land held in trust by the United States is

Indian country); Sandoval, 231 U.S. at 45-49 (same for

Pueblo Indian lands). :

Here, the court of appeals, consistent with Native

Village of Venetie, held that the trust lands at issue are

“Indian country,” within the meaning of Section 1151,

because they are “validly set-aside for the tribe under

the superintendence of the federal government.” Pet.

App. lla. The court found it unnecessary to decide

whether those lands are more properly categorized as

an informal reservation, under Section 1151(a), or as a

dependent Indian community, under Section 1151(b),

because “no matter which categorical label we choose to

affix, the property in this case, owned by the United

States in trust for the Choctaw Nation, is Indian

Country.” Ibid.” The court recognized that this Court

has used both labels in engaging in essentially the same

analysis of the Indian country status of land that was

neither a formal reservation nor an allotment. The

Court engaged in that analysis in Native Village of

Venetie, 522 U.S. at 532-534, in considering whether the

fee lands at issue were a dependent Indian community

under Section 1151(b), whereas the Court engaged in

that analysis in Oklahoma Tax Commission v. Citizen

Band Potawatomi Indian Tribe, 498 U.S. 505, 511

(1991), in considering whether the trust lands at issue

were an informal reservation under Section 1151(a).

Contrary to petitioner’s assertion (Pet. 23), then, the

court of appeals did not create a “fourth category” of

Indian country. Rather, the court recognized that the

trust lands at issue come within at least one of the three

statutory categories, because the trust lands possess

the two characteristics of Indian country reflected in

2 The Eighth Circuit has taken a similar approach. See United

States v. Azure, 801 F.2d 336, 339 (1986) (holding that, because a

house located on trust land that is not part of a formal reservation

is “part of either a de facto reservation or a dependent Indian

community,” the “house is located in Indian country”); cf. Langley

v. Ryder, 778 F.2d 1092, 1095 (5th Cir. 1985) (“{WJhether lands are

merely held in trust for the Indians or whether the lands have

officially been proclaimed a reservation, the lands are clearly

Indian country.”).

Section 1151. See Native Village of Venetie, 522 U.S. at

527.

The court of appeals’ decision is in accord with

several decisions of this Court holding or assuming that

tribal trust lands were Indian country although they

were not part of a formal reservation. In Potawatomi,

the Court concluded that lands held in trust by the

United States for the Tribe were “validly set apart for

the use of the Indians as such, under the superin-

tendence of the Government,” and therefore were

Indian country, with the consequence that the State did

not have the authority to tax sales of goods to tribal

members that occurred on those lands. 498 U.S. at 511.

The Court specifically rejected the contention that the

tribal trust land was not Indian country because it was

not a reservation, noting that no “precedent of this

Court has ever drawn the distinction between tribal

trust land and reservations that Oklahoma urges.”

Ibid." See also Oklahoma Tax Comm'n v. Chickasaw

Nation, 515 U.S. 450, 452-453 & n.2 (1995) (treating

tribal trust lands as Indian country); Oklahoma Tax

Comm'n v. Sac & Fox Nation, 508 U.S. 114, 123-125

13 Petitioner erroneously contends (Pet. 26) that the Court’s

ruling in Potawatomi on the Indian country status of the trust

lands was dictum, asserting that 25 U.S.C. 465 prevents a State

from taxing sales to tribal members on trust lands, whether or not

the lands are Indian country. Petitioner misunderstands the

provision of Section 465 that states that “such lands or rights [held

by the United States in trust for Indians] shall be exempt from

State and local taxation.” The provision exempts only the lands (or

rights) themselves from state taxation. It does not prevent the

imposition of a state sales tax on goods sold on the lands. See

Mescalero Apache Tribe, 411 U.S. at 155-158. The Potawatomi

Court therefore understood that the question in that case turned

on, inter alia, whether the locus of the sale was in Indian country.

(1993) (same); United States v. John, 437 U.S. 634, 649

(1978) (observing that “[t]here is no apparent reason

why these lands, which had been purchased [by the

United States] in previous years for the aid of those

Indians, did not become a ‘reservation,’ at least for

purposes of federal criminal jurisdiction”); McGowan,

302 U.S. at 539. |

Nor is there any conflict between the decision below

and the decisions of other circuits. The courts of

appeals have consistently rejected claims that trust

land that is not part of a formal reservation is not

Indian country. See, e.g., United States v. Driver, 945

F.2d 1410, 1415 (8th Cir. 1991), cert. denied, 502 U.S.

1109 (1992); Langley v. Rider, 778 F.2d 1092, 1095 (5th

Cir. 1985); cf. United States v. Cook, 922 F.2d 1026, 1031

(2d Cir.) (land owned by Indians but supervised by the

United States), cert. denied, 500 U.S. 941 (1991). See

generally Narragansett Indian Tribe v. Narragansett

Elec. Co., 89 F.8d 908, 920 (1st Cir. 1996) (“[T]he

vast majority of cases we have found which analyze

what constitutes a dependent Indian community since

§ 1151(b) was enacted find there is such a community

if the land is held in trust * * * or as settlement

lands.”)."*

14 Petitioner suggests (Pet. 24-25) that this case is distinguish-

able because the trust lands are used for tribal government and

tribal business purposes, rather than for tribal housing. But

petitioner cites no case resting on any such distinction. To the

contrary, the trust lands that the Court held to be Indian country

in Potawatomi were used for tribal business purposes. See 498

U.S. at 507, 511. Indeed, the fact that the trust lands at issue are

the seat of the tribal government supports the conclusion that

those lands are Indian country, and thus are subject to the primary

criminal jurisdiction of the United States and the Tribe, rather

than the State.

No question of the status of trust lands as Indian

country was presented in United States v. Stands, 105

F.3d 1565 (8th Cir. 1997), the only decision that peti-

tioner claims (Pet. 21-22) to conflict with the decision

below. Stands concerned the status of an individual

Indian allotment, which the court of appeals held to be

Indian country. 105 F.3d at 1574; see ibid. (observing

that trial testimony concerning “trust land” was

“essentially irrelevant to the question at hand”). In

passing, the court stated, without analysis, that “[flor

jurisdictional purposes, tribal trust land beyond the

boundaries of a reservation is ordinarily not Indian

country.” Jd. at 1572. But the court also acknowledged

that “(ijn some circumstances, off-reservation tribal

trust land may be considered Indian country.” Jd. at

1572 n.3. The former statement is mere dictum—not

what the court actually “held,” as petitioner errone-

ously asserts (Pet. 21)—and, in any event, is unsup-

ported by the Eighth Circuit’s own precedents. See,

€.g., Driver, 945 F.2d at 1415; United States v. Azure,

801 F.2d 336, 338-339 (1986); United States v. South

Dakota, 665 F.2d 837, 839-843 (1981), cert. denied, 459

U.S. 823 (1982); see also, e.g., Potawatomi, 498 U.S. at

511.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.