# Reply Brief — Roberts v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0861%3A4

## Record

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

## Text

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

=}
4

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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

7

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-

2

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”).

3

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.

4

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.

5

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-

6

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.

|

7

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.

8

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

9

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.

10

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

(202) 637-5810
SUSAN G. JAMES
SUSAN G. JAMES & ASSOCIATES
600 S. McDonough Street
Montgomery, Alabama 36104
(864) 235-5535

* Counsel of Record Counsel for Petitioner

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0861%3A4. Public record. Not legal advice.