Reply Brief — Roberts v. United States

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Supreme Court, U.S.

| FILED

=) APR 2.5 207

No. 99-1174

CLERK

IN THE

Supreme Court of the Anited States

HOLLIS EARL ROBERTS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

RICK STANDIFER

CLIFFORD, STANDIFER

& MCDOWELL

2765 N.E. Loop 286

Paris, Texas 75460

(903) 785-7332

SUSAN G. JAMES

SUSAN G. JAMES & ASSOCIATES

600 S. McDonough Street

Montgomery, Alabama 36104

(864) 235-5535

* Counsel of Record

JOHN G. ROBERTS, JR.*

DAVID G. LEITCH

GREGORY G. GARRE

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

_ Washington, D.C. 20004

(202) 637-5810

Counsel for Petitioner

Res

Ean

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Native Village of Venetie Tribal

CIP Fi Face Rds Se CU PE ccncniceneinssescrnpntnacesinnee 6,7,8,10

Browner v. American Trucking Assn’s, No. 99-

roy ge RR Re ¢ i SPR Rar i) nO Soret 1,2

Finburg v. Sullivan, 658 F.2d 93 (3d Cir. 1980).............. 4

Florida Dep't of Bus. Regulation v. United

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

Cir. 1985), cert. denied, 475 U.S. 1011

SP acti iichina ic alininianicxtctencianstniotteln atest cibibisaiiniicatsaas 4,5

H.R.I, Inc. v. Environmental Protection

Agency, 198 F.3d 1224 (10th Cir. 2000)...........0...... 9,10

Mistretta v. United States, 488 U.S. 361 (1989).............. 4

Oklahoma Tax Comm'n v. Citizen Band Pota-

watomi Indian Tribe of Oklahoma, 498 U.S.

MEU iiiccihusis-cchtaoanipnvscinie ct aosiachasinabiclcnslsptousdacsdibaanncacusboctaes 8

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

Ne We IE iciicaiecasihsonetindgsiensinittanniichcnibuiiidvenaneaten 8

South Dakota v. United States Dep't of the In-

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

and remanded, 519 U.S. 919 (1996).............:cccceeeeeeeee 3,6

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

RTI i:bisiiuilinsiiadeshlenipsoutietigcobeengielebsainethaiscocdniuataditeiplnibiiienkowsiceocaien 9

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

cert. denied, 500 U.S. 941 (1991)...............cccccccecesecrecees 9

TABLE OF AUTHORITIES—Continued |

Page |

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

Cir. 1991), cert. denied, 502 U.S. 1109

COPED ncsscancsiashsineiinissiicchanisiacioelinaldaddea aaid amit caldgiadiaaestaiaiad 9

United States v. John, 437 U.S. 634 (1978)........::.000c0000 8

United States v. McGowan, 302 U.S. 535

| eee senitid alblaciaicdpaeaamdaaedaeiiaiatiedaeenmnia 8

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

(8th Cir. 1981), cert. denied, 459 U.S. 823

ED ssnccsnisisce enschede aia teat ater a ao 9

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

Cir. 1997), cert. denied, 522 U.S. 841 (1997)............... 9

STATUTES

BB CATA. © BIS sstainsiiinneninspattasondadeelaniemaneia 7,9

OG UTR 8 DI ciccntiitannsnccctentniniaamclcacan ce 8,10

SS UES... BO EGR sccesssteictisstsietceeeaeemaanae 7,8,9

5S ULB. © DODO siniciccickseineae aaa 9

ee UE ak Bei vnciisicelinsisipaitchlebisieipdnielncaisieategiialadeenamda 3

OTHER

Comment, Disposition of Moot Cases by the

United States Supreme Court, 23 U. Chi. L.

BOY. TT CED IS p xcce -sncsneoniuinenapitnionsictatinnbaannsiaaimiadhicniean 4

Lisa Schultz Bressman, Schechter Poultry at |

the Millennium, 109 Yale L.J. 1399 (2000) .................. 2

ill

TABLE OF AUTHORITIES—Continued

Cass R. Sunstein, /s the Clean Air Act Uncon-

stitutional?, 98 Mich. L. Rev. 303 (1999)......0.....c 2

IN THE

Supreme Court of the United States

No. 99-1174

HOLLIS EARL ROBERTS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

REPLY BRIEF FOR PETITIONER

1. The United States does not deny the importance of the

first question presented by this case. Nor could it. Since the

petition was filed, the government itself has urged this Court

to clarify the bounds of the nondelegation doctrine, as it

grudgingly notes in a footnote at the end of its argument on

that issue. See Opp. at 14. n.11 (discussing the government’s

pending petition in Browner v. American Trucking Assn’s,

No. 99-1257 (filed Jan. 27, 2000) (“ATA”)). That footnote

purports to distinguish this case from ATA on the ground that

the cases involve “different statutes, different agencies, and

different governmental programs,” but the distinction is

specious. The point is that both cases turn on the same legal

issue—the limits, if any, imposed by the Constitution under

the nondelegation doctrine.

{t is on that same legal issue that the United States has

sought review in the ATA case. Its petition notes that the

D.C. Circuit’s ruling in that case “raises issues of extraordi-

nary governmental concern,” Pet. in No. 99-1257 at 9,

including primarily the nondelegation doctrine. It advises the

Court that the D.C. Circuit’s decision applying that doctrine

“opened to constitutional attack * * * numerous other federal

statutes containing similarly broad grants of authority to

administrative agencies.” /d. at 16. It cites the same cases in

support of its petition that it cites in the opposition here.

Compare id. at 12 n.5 with Opp. at 8. And it has noted a

pertinent split in the circuits over application of the nondele-

gation doctrine. Pet. in No. 99-1257 at 19 n.11. The same

circuit conflict, on the same issue of “extraordinary govern-

mental concern,” is squarely presented here.

We agree with the government—and with the ever growing

number of commentators!—that this Court should revisit the

nondelegation doctrine. This case presents the nondelegation

doctrine in its purest form, because—as the government

concedes, Opp. at 10 n.6—the administrative action at issue

here was an exercise of unbridled statutory discretion, not

limited in any way by applicable regulations. ATA, by

contrast, involves a circumstance where the agency by

regulation has attempted to place limits on the discretion

granted by Congress, adding a wrinkle that does not encum-

ber the nondelegation issue here. See Pet. at 17-19 & n.9.

| In addition to the commentators cited in the petition, see Cass

Sunstein, /s the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303,

356 (1999) (“In the most extreme cases, open-ended grants of authority

should be invalidated. ** * A Supreme Court decision to this effect

could have some of the salutary effects of the Lopez decision in the

Commerce Clause area, offering a signal to Congress that it is important

to think with some particularity about the standards governing agency

behavior.”). See also Lisa Schultz Bressman, Schechter Poultry at the

Millennium, 109 Yale L.J. 1399, 1402 (2000) (discussing author’s

perception of “the emergence of a new delegation doctrine that has the

potential to shift the current debate on delegation and democracy”).

2. In the face of its own effort to gain review on the

nondelegation issue, the United States focuses on attempting

to identify reasons why this case—presenting the same

issue—does not merit review.? That exercise is unavailing.

a. The government does not dispute that the Eighth

Circuit’s decision in South Dakota v. United States Dep't of

the Interior, 69 F.3d 878 (8th Cir. 1995), is directly at odds

with the decision below. It is, however, quick to point out—

as the petition made clear—that the Eighth Circuit’s judg-

ment was vacated by this Court. See 519 U.S. 919 (1996).

True enough. But it is also true that the reasoning of the

Eighth Circuit in South Dakota is in direct conflict with the

reasoning of the Tenth Circuit below, see Pet. at 10-13;

that—despite the government’s intimations to the contrary,

Opp. at 7 n.4—the vacatur was based on the adoption of new

regulations designed to avoid the constitutional issue, see Pet.

at 12; and that neither those regulations nor any other regula-

tions purported to cabin the Secretary’s acquisition of the

property at issue here. Thus, it is plain that this case would

have come out differently under the rationale applied by the

Eighth Circuit in South Dakota.

The fundamental jurisprudential divide embodied in the

Eighth Circuit’s decision in South Dakota and the Tenth

Circuit’s decision in this case—expressly rejecting South

Dakota—introduces great uncertainty over the constitution-

ality of Section 465 and exacerbates the widespread conflict

2 One such attempt is the government’s sheepish suggestion that

“there is reason to question” whether the nondelegation issue may be

raised in this context. Opp. at 6 n.3. The government, however, did not

identify for the courts below any such “reason to question” petitioner’s

ability to raise that issue, and should not be heard to do so now. In any

event, the fact that a quiet title action with respect to Indian trust lands

might be barred by 28 U.S.C. § 2409a does not provide “reason to

question” the ability of a defendant to challenge the jurisdictional basis

for his conviction under the Indian Major Crimes Act.

and confusion over the nondelegation doctrine.* No salutary

purpose would be served—certainly the government offers

none—by permitting such uncertainty to persist.

b. The United States also contends that certiorari is not

warranted because the congressional directive at issue here

“is accompanied by ample statutory guidance for the Secre-

tary’s exercise of his discretion.” Opp. at 12. Nonsense.

There is no statutory guidance in Section 465—which

permits the purchase of lands by the Secretary, “in his

discretion” and “for Indians.”4 If such an unbridled grant of

authority constitutes “ample statutory guidance,” then the

nondelegation doctrine is indeed dead. But this Court has

repeatedly observed that the doctrine is a core constitutional

principle, “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). See Pet. at 9. In

light of the bald statutory language at issue here, this case

presents an ideal opportunity to reaffirm that core principle,

which is now shrouded in doubt due to the conflict and

3 “Even if a decision is vacated, ** * the force of its reasoning

remains, and the opinion of the Court may influence resolution of future

disputes.” Finburg v. Sullivan, 658 F.2d 93, 100 n.14 (3d Cir. 1980).

See also Comment, Disposition of Moot Cases by the United States

Supreme Court, 23 U. Chi. L. Rev. 77, 93 (1955) (“If the opinion below

is officially reported, it will always remain in the volume; even if the

decision is vacated, the force of the reasoning remains.”).

4 As noted in the petition (pp. 13-14), the Eleventh Circuit has joined

the Eighth in recognizing that the statute “does not delineate the circum-

stances under which exercise of [the Secretary’s] discretion is appropri-

ate.” Florida Dep't of Bus. Regulation v. United States Dep't of Interior,

768 F.2d 1248, 1256 (11th Cir. 1985), cert. denied, 475 U.S. 1011

(1986). The United States attempts to dismiss this statement, see Opp. at

13-15, but it is undeniable that the Eleventh Circuit’s conclusion that the

statute provides no guidance for the Secretary’s discretion is squarely in

conflict with the view of the Tenth Circuit below that “the statute itself”

provides the necessary guidance to the Secretary. Pet. App. 18a n.8.

confusion in the lower courts. If, on the other hand, the

government is correct, then the nondelegation principle

should at least receive a public burial by this Court. Allow-

ing the doctrine to flounder in the lower courts would only

further unsettled this bedrock area of law.

c. The United States in any event does not seriously

contend that the “statute itself’ provides the necessary

guidance, but instead searches far and wide in its effort to

identify pertinent limits on the unbridled statutory grant of

power. It contends that such guidance is found in “the

purposes of the Act as a whole, its factual background, and

the statutory context.” Opp. at 9. Thus, the government tells

us, the statute permits the Secretary to acquire land “when the

acquisition would serve such purposes as advancing tribal

economic development, assisting tribal self-governance, and

restoring the ancestral tribal land base.” Jd. at 10.

These “limitations,” however, are found nowhere in the

statute itself. It is not at all clear, therefore, whether exer-

cises of this authority outside the “boundaries” the govern-

ment suggests would violate the statute where the only

statutory limitation is one of unguided “discretion” to acquire

land “for Indians.” See Florida Dep’t of Bus. Regulation,

768 F.2d at 1256 (Indian Reorganization Act “does not

delineate the circumstances under which exercise of [the

Secretary’s] discretion is appropriate”). Any challenge to

such exercises of authority would no doubt be defended by

the government as fully authorized by the broad terms of the

statute, with no acknowledgement of its facile claim here that

there are discernible boundaries to the statutory authority.

Even on their own terms, the limitations suggested by the

government do not provide the intelligible principles neces-

sary to avoid a nondelegation problem. A requirement that

an acquisition “advanc[e] tribal economic development,”

Opp. at 10, certainly offers no boundary on the broad statu-

tory discretion, for any acquisition of land “for Indians”

could no doubt be justified on the theory that it would

“advanc[e] tribal economic development”—including the

hypothetical acquisitions discussed by the Eighth Circuit in

South Dakota. See Pet. at 11.5 At the end of the day, the

government’s submission does not so much identify guidance

for the exercise of discretion as stand for the proposition that

the nondelegation doctrine itself is no impediment to the

exercise of such unbridled discretion. It is that conclusion—

shared by the Tenth Circuit below but rejected by the Eighth

Circuit—that this Court should review.

3. The United States also does not dispute the impor-

tance of the second question presented by the petition, a

matter of touchstone jurisdictional significance for myriad

properties across the United States and activities taking place

on them. See Pet. at 28-29. Instead, as it does with respect to

the nondelegation issue, the government devotes its efforts

largely to arguing the merits and trying to distinguish away

contrary precedents. Here again, however, its efforts fail.

a. Whatever is true of the Tenth Circuit decision in this

case, it is not—as the government asserts (Opp. at 15)}—

“consistent with” Alaska v. Native Village of Venetie Tribal

Government, 522 U.S. 520 (1998). In Venetie this Court

reaffirmed that “Indian country exists * * * only if the land in

question” fits into one of the “three different categories”

codified in Section 1151. Jd. at 527 n.2, 530 (emphasis

5 The government’s discussion of the Secretary’s self-imposed

limitations on the exercise of discretion—in the form of regula-

tions—is simply beside the point. Opp. at 10-11. No such

regulations existed when the property at issue here was acquired in

1976 by an Area Director of the Bureau of Indian Affairs. As we

noted in the petition, moreover, the existence of regulations does

not answer the nondelegation problem. See Pet. at 19 n.9. The

government does not respond to that point.

added). As we explained in our petition (pp. 24-25)—and the

United States does not dispute—“‘[t]he government has

never argued that the [building complex in this case] is part

of a reservation, dependent Indian community or allotment,”

id. at 23 (quoting government; emphasis added); and, in

holding that this property is Indian country, the Tenth Circuit

below felt no need “to affix” any “categorical label” .o it in

accordance with Section 1151. Pet. App. lla. This seat-of-

the-pants approach to the Indian country determination flies

in the face of Venetie, not to mention Section 1151.

The United States nevertheless argues that the Tenth Cir-

cuit correctly held that the building complex in this case is

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

because it meets the federal set-aside and superintendence

requirements applied in Venetie. Opp. at 15-16. The Venetie

Court did apply these requirements in determining whether

the land in that case fit within Section 1151(b). See 522 U.S.

at 532-534. But it never suggested that these requirements

governed the Indian country determination—without regard

to whether the property at issue fits within Section 1151’s

terms. To the contrary, the Venetie Court began with the text

of Section 1151, id. at 526-527, then explained that it was

intended to codify “the three different categories of Indian

country mentioned in our prior cases.” Jd. at 530. As is clear

from the Court’s discussion of those cases, in enacting

Section 1151 Congress did not intend to codify the type of

property at issue here, which does not remotely resemble the

Indian reservations, dependent Indian communities, or

allotments dealt with in prior cases. See Pet. at 24-25.6

6 Petitioner has explained at length why the building complex in this

| case fails both the federal set-aside and superintendence requirements.

See Mem. of Law in Support of Mot. to Vacate Conviction for Lack of

Federal Jurisdiction Pursuant to 28 U.S.C. § 2255, at 48-91. But to be

clear, even if the property met those requirements in the abstract, it would

not be Indian country unless it fit within Section 1151’s terms.

Confining Indian country to its congressionally intended—

and textually plausible—treach accords with the jurisdictional

significance of Indian country status. As the United States

acknowledges, Indian country is “subject to the primary

criminal jurisdiction of the United States and the Tribe, rather

than the State.” Opp. at 18 n.14; see Pet. at 20-21. And, as

this Court admonished in Venetie, “[w]hether the concept of

Indian country should be modified is a question entirely for

Congress,” not the courts. 522 U.S. at 534.

b. The United States suggests that the Tenth Circuit

“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.”

Opp. at 17. As we have explained (Pet. at 25-27), however,

none of these pre-Venetie cases squarely addresses the Indian

country question presented here and, if anything, they simply

add to the confusion shrouding this issue. In any event,

United States v. John, 437 U.S. 634, 649 (1978) and United

States v. McGowan, 302 U.S. 535 (1938) are plainly distin-

guishable; the trust lands in those cases qualified as Indian

country under Section 1151(a) and (b), respectively. See Pet.

at 25. Oklahoma Tax Commission v. Sac & Fox Nation, 508

U.S. 114 (1993), is to the same effect. There, the Court

remanded so that it could be “determined whether the rele-

vant tribal members live in ‘Indian country—whether the land

is within reservation boundaries, on allotted lands, or in

dependent communities.” Jd. at 126. Oklahoma Tax Com-

mission v. Citizen Band Potawatomi Indian Tribe of Okla-

homa, 498 U.S. 505 (1991), is distinguishable and does not

discuss—let alone purport to decide—the question here. See

Pet. at 26 & n.15. At most, the Court there held that the

tribal trust land in Potawatomi “qualifies as a reservation for

tribal immunity purposes.” Id. at 511 (emphasis added).

c. The United States says that “[t]he courts of appeals

have consistently rejected claims that trust land that is not

part of a formal reservation is not Indian country.” Opp. at

18. But—as the Tenth Circuit itself recognized below, Pet.

App. 8a n.3—the Eighth Circuit has held that “tribal trust

land beyond the boundaries of a reservation [acquired

pursuant to Section 465] is ordinarily not Indian country.”

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

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

Pet. at 21-22. This was not a “passing” thought, Opp. at 19,

but rather was central to the Eighth Circuit’s resolution of the

Indian country issue in Stands. While the property at issue in

Stands was tribal trust land, the Eighth Circuit emphasized

that it would not qualify as Indian country unless the evi-

dence showed that it was an allotment within the meaning of

Section 1151(c), as the prosecution alleged in that case. See

105 F.3d at 1573-74. In the Tenth Circuit, by contrast, tribal

trust land may qualify as Indian country regardless of

whether it fits into any particular category of Section 1151.7

d. Finally, any question of the significance and poten-

tially far-reaching effect of the decision below is answered

by H.R, Inc. v. Environmental Protection Agency, 198

F.3d 1224 (10th Cir. 2000). There, the Tenth Circuit—

specifically relying on the decision in this case and engaging

in the same ultra vires approach to the Indian country

7 None of the prior Eighth Circuit decisions cited by the United States

(Opp. at 19) eliminate the conflict between Stands and the Tenth Circuit

decision in this case. United States v. Azure, 801 F.2d 336 (8th Cir.

1986)}—which the Eighth Circuit addressed in Stands, see 105 F.3d at

1572 n.3—simply establishes that tribal trust land is Indian country when

it fits into one of the categories established by Section 1151. See Pet. at

21-22 n.11. We agree. The same goes for United States v. Driver, 945

F.2d 1410, 1415 (8th Cir. 1991), cert. denied, 502 U.S. 1109 (1992) and

United States v. South Dakota, 665 F.2d 837, 840-843 (8th Cir. 1981),

cert. denied, 459 U.S. 823 (1982), which involved Indian housing

communities determined to be dependent Indian communities within

Section 1151(b). See also United States v. Cook, 922 F.2d 1026, 1031

(2d Cir. 1991) (concluding that lamd in question fit within Section

1151(b)), cert. denied, 500 U.S. 941 (1999), cited at Opp. at 18.

same ultra vires approach to the Indian country determina-

tion—held that tribal trust land qualified as Indian country

within Section 1151(a), even though it was part of a dises-

tablished Indian reservation. Jd. at 1249-54. In so holding,

the court of appeals emphasized that, under its decision in

this case, “informal reservations” continue to exist under

Section 1151(a), apart from whether land qualifies as a

dependent Indian community under Section 1151(b). See id.

at 1250, 1252. This ruling also directly contravenes Venetie,

see Pet. at 23-24, and, coupled with the decision below, is

destined to create even more conflict and confusion on this

touchstone jurisdictional issue.

CONCLUSION

For the foregoing reasons, and those in the petition, 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