# Opposition Brief — Roberts v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1108

## Text

—a

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
TERE eee ET OR ee OT eR ERTL l
ne TUNIDN sists AcicAonesieilancecchclacaasnsisse dedi de niga ]
op ca OEE T EIA ANE AO IT EE TETAS 2
ITE ais Aatel acai abelian AbC tack heectsaaiespeieetoonaniibdbemecenbuvuaseokons BS)
I sae AA ech de tisha ts pase aetselS ik snide sep sebasciboanthearsasics 20
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

IV

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

VI
Statute, regulations and rule—Continued: Page
MS CE, GIO cvsisucinscninitiiiaieisinshcitisiaesadiesitententinieniaiitininiitinaiiabamaldiaieath 2,3
BS BB), Se wenkincnvisisannddiceiapsctcitnadidbihsehntaanibdieandiianinaninaaaaae 7
25 C.F.R.:

OPIN; [III ccsehdacienhiinnrsihtstesntiiieieineenbllaabdiiabeaeuniaiitaisiimiasiniaatiiicitia 10
Ge BITE TS ssc catssnstibeciesncstiintibenisbaieeieltbitasindinciaannebaaniniagaabadiatiiil 10
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)

2

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.”

3

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

q

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.

5

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.

6

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.

7

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.

8

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.

9

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.

10

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.

11

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.

12

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).

13

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.

14

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.

15

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

16

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.”).

17

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.

18

(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.

19

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.

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General
LOIS J. SCHIFFER

Assistant Attorney General
WILLIAM B. LAZARUS
ETHAN G. SHENKMAN

LISA E. JONES
Attorneys

APRIL 2000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0861%3A3. Public record. Not legal advice.