Petition for Writ of Certiorari — South Dakota v. Department of the Interior (No. 05-1428)

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In The OF FIGE OF THE CLERK

Supreme Court of the Anited States

STATE OF SOUTH DAKOTA; CITY OF OACOMA,

SOUTH DAKOTA; LYMAN COUNTY, SOUTH DAKOTA,

Petitioners,

Vv.

UNITED STATES DEPARTMENT OF THE

INTERIOR; AURENE MARTIN, ACTING

ASSISTANT SECRETARY, INDIAN AFFAIRS;

BILL BENJAMIN, ACTING REGIONAL DIRECTOR,

GREAT PLAINS REGIONAL OFFICE, BIA; CLEVE

HER MANY HORSES, SUPERINTENDENT, LOWER

BRULE AGENCY, BIA; JAMES McDIVITT, DEPUTY

ASSISTANT SECRETARY, INDIAN AFFAIRS,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

LAWRENCE E. LONG*

Attorney General

State of South Dakota

*Counsel of Record

JOHN P. GUHIN

Assistant Attorney General

1302 E. Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: (605) 773-3215

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

25 U.S.C.-§465 allows the Secretary of the Interior to

acquire, in trust, “in his discretion,” any amount of “lands”

at any location in the Nation, on or off the reservation, for

the purpose of “providing land for Indians.” In this case,

tthe Secretary seeks to acquire, in trust, 91 acres of off

reservation land partially within the City of Oacoma,

South Dakota. The Question Presented is:

Whether 25 U.S.C. § 465 is an unconstitutional delegation

of legislative power?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .........ccccsccssescsssssesssseeseesnseees i

TABLE OF AUTHORITIES ..........sscesssssscssssssscssessssssees iii

PETITION FOR WRIT OF CERTIORARI ............0004.+. 1

BE I inion. oos scaskcscinssscnscocnennsconssonssen

i ooo avskcsstsiiiuusasenivasiovesestonses 2

CONSTITUTIONAL AND STATUTORY PROVI-

REASONS FOR GRANTING CERTIORARL.........0...... 13

I. 25 U.S.C. §465 IS SO DEVOID OF ASCER-

TAINABLE STANDARDS THAT IT EMBOD-

IES AN UNCONSTITUTIONAL DELEGATION

OF LEGISLATIVE AUTHORITY TO THE EX-

BPR A ee MIRE WEEE cacsacecscestossccndsecasessenscscnccenses 15

A. The Text of 25 U.S.C. § 465 Provides No

Nee oc awabacscachesube 17

B. The Legislative History of 25 U.S.C. § 465

Fails to Create a Constitutionally Suffi-

cient “Intelligible Principle” or Constitu-

tionally Sufficient “Boundaries”................. 19

C. The Decisions of This Court Give No Sup-

port to the Opinion of the Eighth Circuit... 22

Il. THE QUESTION PRESENTED IS OF ENOR-

MOUS PRACTICAL IMPORTANCE TO STATE

AND LOCAL GOVERNMENT ......0..0......ee 25

ces licvistsccoustdardanmsteaccaieants 28

cass cssaugnvensne App. 1

TABLE OF AUTHORITIES

CASES:

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935) 7

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

(1946)

Carcieri v. Norton, 423 F.3d 45 (1st Cir. 2005)

Department of the Interior v. South Dakota, 519

U.S. 919 (1996)

Exxon Mobil Corp. v. Allapattah Services, Inc., ___

U.S. ___, 125 S.Ct. 2611 (2005)

Federal Communications Comm. v. Nelson Bros.

Bond & Mortgage Co., 289 U.S. 266 (1933)

Federal Communications Comm. v. Sanders Bros.

Radio Station, 309 U.S. 470 (1940)

Field v. Clark, 143 U.S. 649 (1892)

Florida Dep’t of Business Regulation v. Dept of

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

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

394 (1928)

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

Mistretta v. United States, 488 U.S. 361 (1989).....11, 16, 23

National Broadcasting Co. v. United States, 319

U.S. 190 (1943) 11, 24, 25

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) 23

Shivwits Band of Paiute Indians v. Utah, 428 F.3d

966 (10th Cir. 2005), petition for cert. filed, 74

U.S.L.W. 3532 (U.S. March 9, 2006) (No. 05-1160)... 1, 15

TABLE OF AUTHORITIES - Continued

South Dakota v. Department of the Interior, 401

F. Supp. 2d 1000 (D.S.D. 2005)

United States v. Roberts, 185 F.3d 1125 (10th Cir.

Whitman v. American Trucking Associations, Inc.,

Se SE eo CONE Dua vieccsadhocasidnceccbcvakanstnincthestonmicasey passim

Younger v. Harris, 401 U.S. 37 (1971)

CONSTITUTIONAL REFERENCES:

U.S. Const. art. I, § 1

U.S. Const. art. I, § 8, cl. 3

STATUTORY REFERENCES:

5 U.S.C. § 701(a)(2)

18 U.S.C. § 1151

ee Rs. I a ccaictagecii as dis phn cam nanionagammecatiouayeiasscalle passim

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 2409a

MISCELLANEOUS AUTHORITIES:

25 C.F.R. 1.4(a)

78 Cong. Rec. 11,730 (June 15, 1934)

78 Cong. Rec. 11,732 (June 15, 1934)

TABLE OF AUTHORITIES — Continued

61 Fed. Reg. 18,082 (Apr. 26, 1996)

64 Fed. Reg. 17,576 (Apr. 12, 1999)

64 Fed. Reg. 17,575 (Apr. 12, 1999)

66 Fed. Reg. 7,925 (Jan. 26, 2001)

Felix S. Cohen’s Handbook of Federal Indian Law,

1982 Edition (R. Strickland et al. eds., 1982)

Frank Pommersheim, Braid of Feathers (1995)

J. Locke, Two Treatises of Government, 380-81 (2d

Treatise) (Cambridge University Press 1960)

Peter H. Aranson, Ernest Gellhorn & Glen O.

Robinson, A Theory of Legislative Delegation, 68

Cornell L. Rev. 1 (1982)

Readjustment of Indian Affairs: Hearings on H.R.

7902 before the House Committee on Indian Af-

fairs, 73d Cong., 2d Sess. (1934)

Terry Anderson, Sovereign Nations or Reservations?

An Economic History of American Indians (1993)

U.S. Census, Summary Population and Housing

Characteristics, South Dakota (1990)

usinfo.state.gov/eur/Archive/2005/Jan/28-691277 html

www.nigce.gov/Tribal Data/GamingRevenues20042000/

tabid/549/Default.aspx

www.nigc.gov/TribalData/GamingRevenues20031999/

tabid/106/Default.aspx

PETITION FOR WRIT OF CERTIORARI

Petitioners, the State of South Dakota, the City of

Oacoma, South Dakota, and Lyman County, South Dakota,

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Eighth Circuit.’

OPINIONS BELOW

The opinion of the Eighth Circuit under review is

reported at 423 F.3d 790 and reproduced here in the

Appendix (App.) at 1. The order denying hearing and

rehearing en banc of the court of appeals is reproduced at

App. 138. The opinion of the district court granting sum-

mary judgment to Respondents is reported at 314 F. Supp.

2d 935 and reproduced at App. 25. The April 6, 2000,

Memorandum of the Director, Office of Trust Responsibili-

ties, through the Deputy Commissioner of Indian Affairs,

to the Assistant Secretary-Indian Affairs, is reproduced

here at App. 125. The April 6, 2000, Memorandum of

Assistant Secretary-Indian Affairs to the Great Plains

Regional Director essentially adopting the document

identified in the previous sentence is reproduced at App.

124. The January 18, 2001, Memorandum from the Direc-

tor, Office of Trust Responsibilities, through the Deputy

Commissioner of Indian Affairs to the Assistant Secretary-

Indian Affairs is reproduced at App. 118. The January 18,

* Petitioners note that another case pending before this Court

raises the virtually identical issue as this case. Utah v. Shivwits Band

of Paiute Indians, No. 05-1160 (Petition for Writ of Certiorari filed Mar.

9, 2006).

2001, Memorandum of the Assistant Secretary-Indian

Affairs to the Deputy Commissioner of Indian Affairs

essentially adopting the document identified in the previ-

ous sentence is reproduced at App. 116.

This controversy has been before this Court on a prior

occasion. The opinion of this Court granting certiorari,

vacating the circuit court decision, and remanding in the

prior case is reported at 519 U.S. 919 and is reproduced at

App. 57. The opinion of the Court of Appeals for the Eighth

Circuit is reported at 69 F.3d 878, and reproduced at App.

64. The order denying rehearing and rehearing en banc is

reproduced at App. 63. The district court decision is

unreported and is reproduced at App. 94.

JURISDICTION

The Judgment of the Eighth Circuit in this litigation

was entered on September 6, 2005, the same day the

opinion was filed. App. 1. Rehearing and rehearing en

banc were denied on February 6, 2006..App. 138. The

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

§ 1291. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, Section 1 of the United States Constitution

provides:

All legislative Powers herein granted shall be

vested in a Congress of the United States, which

shall consist of a Senate and House of Represen-

tatives.

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

Congress authority “[tlo regulate Commerce ... with the

Indian Tribes.”

25 U.S.C. § 465 provides:

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relin-

quishment, gift, exchange, or assignment, any in-

terest in lands, water rights, or surface rights to

lands, within or without existing reservations, in-

cluding trust or otherwise restricted allotments,

whether the allottee be living or deceased, for the

purpose of providing land for Indians.

For the acquisition of such lands, interests in

lands, water rights, and surface rights, and for

expenses incident to such acquisitions, there is

authorized to be appropriated, out of any funds

in the Treasury not otherwise appropriated, a

sum not to exceed $2,000,000 in any one fiscal

year: Provided, that no part of such funds shall -

be used to acquire additional land outside of the

exterior boundaries of the Navajo Indian Reser-

vation for the Navajo Indians in Arizona, nor in

New Mexico, in the event that legislation to de-

fine the exterior boundaries of the Navajo Indian

Reservation in New Mexico, and for other pur-

poses, or similar legislation, becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain

available until expended.

Title to any lands or rights acquired pursuant to

this Act or the Act of July 28, 1955 (69 Stat. 392),

as amended (25 U.S.C. 608 et seq.) shall be taken

in the name of the United States in trust for the

Indian tribe or individual Indian for which the

land is acquired, and such lands or rights shall

be exempt from State and local taxation.

STATEMENT OF THE CASE

In 1990, the Lower Brule Sioux Tribe requested that

the Department of the Interior place 91 acres of off reser-

vation land owned by the Tribe into trust status. According

to the United States, at that time the federal government

held over 100,000 acres in trust status for the Lower Brule

Tribe and its members. 1995 Petition for a Writ of Certio-

rari, at 8 n.3. Another 13,200 acres were owned by the

federal government on the Lower Brule Reservation for

tribal use. Id. The 1990 Indian population of the Lower

Brule Reservation was 994. U.S. Census, Summary

Population and Housing Characteristics, South Dakota, at

175 (1990). Thus, at the time of the application the United

States held over 100 acres of land in trust for each Indian

man, woman, and child on the Lower Brule Reservation.

The tribe in its 1990 application asserted that it

intended to use the property as an industrial park. App.

110. The State and City objected, arguing that placing the

land in trust would create civil and criminal jurisdictional

problems, would result in the loss of taxes to the commu-

ci°ies, and arguing that gaming may be the real purpose of

ise acquisition. App. 96-97. The Department of the Inte-

rior nonetheless approved the Q9l-acre off reservation

acquisition. The State and City thereafter filed suit in

federal court on July 13, 1992. Four months later, on

November 30, 1992, the agency took the land into trust on

behalf of the tribe. App. 103. The State and City continued

to press the claims they had made before the agency, and

argued further that the statute lacked ascertainable

standards and so violated the delegation doctrine. The

district court, sua sponte, ruled that the . -tion was re-

quired to be dismissed because the Quiet Title Act, 28

U.S.C. § 2409a, prohibited challenges to federal title to

Indian trust lands. App. 106. The district court also ruled

that 25 U.S.C. § 465 did not violate the delegation doctrine

because the “context in which section 465 was passed

clearly delineates the general policy to be applied and the

bounds of that delegated authority.” App. 113. The court

explained further that the purpose of the statute was to

“acquire land for Indians to help reverse the effects of the

Indians’ loss of land under the allotment policy and to help

Indians become more self-sufficient, both economically and

otherwise.” Jd.

The Eighth Circuit reversed. App. 64. As to the consti-

tutional issue, the Eighth Circuit concluded that 25 U.S.C.

§ 465 provided for “unrestrained power” (App. 77) and that

there were

no perceptible ‘boundaries,’ no ‘intelligible prin-

ciples,’ within the four corners of the statutory

language that constrain this delegated authority

— except that the acquisition must be ‘for Indi-

ans.

App. 70. The court found further that the language of the

statute would permit the Secretary to acquire a “factory, an

office building, a residential subdivision, or a golf course in

trust for an Indian tribe” and that its “literal terms” allowed

the purchase of the Empire State Building in trust. Jd. The

court concluded that 25 U.S.C. § 465, as enacted, resulted

in “an agency fiefdom, whose boundaries were never

established by Congress, and whose exercise of unre-

strained power is free of judicial review. It is hard to

imagine a program more at odds with separation of powers

principles.” App. 77.

The court of appeals further explained that the

“legislative history of § 465 suggests that Congress did not

intend to delegate unrestricted power to acquire land ‘for

Indians.’” App. 72. Rather, the legislative history showed

that Congress sought to provide “rural lands suitable for

farming, grazing, and logging by Indians.” App. 74. Repre-

sentative Howard, a chief sponsor, explained that Section

5 would allow acquisitions for “‘agricultural,’” “‘stock

grazing or forestry operations.’” 78 Cong. Rec. 11,730

(June 15, 1934) quoted at App. 73. The court observed

that, nonetheless, “Congress failed to include standards

[in Section 465] to reflect its limited purpose” (App. 73)

and the “Secretary has responded by asserting all of the

unlimited power conferred by the statute’s literal lan-

guage.” App. 74. The court pointed further to the jurisdic-

tional disarray promoted by the statute, finding that

Congress in Section 465 determined only “one intergov-

ernmental issue” — taxation — and left the civil and police

power jurisdictional issues to be fought out between the

BIA and the City and the State. App. 74-75. The result,

according to the court, was a “legislative void.” App. 75.

The court found that the extent to which lands taken into

trust are freed from the restraints of the State and local

police power should be determined in the first instance by

Congress, “not the BIA, and indeed not the courts. . . .” Id.

Judge Murphy dissented on the constitutional ques-

tiun, finding that it was reached prematurely and that, in

any event, the “text” of the statute, its “historical context,”

and its “legislative history” provided sufficient boundaries.

App. 79, 83-84. Judge Murphy nonetheless would have

reversed the holding of the trial court with regard to the

Quiet Title Act, finding that it does not prevent a litigant

from challenging, under the Administrative Procedures

Act, a decision to take land into trust. App. 92-93. The

federal Petition for Rehearing and Rehearing En Banc was

denied. App. 63. Of the eleven active judges, four would

have granted rehearing. Id.

The Department of Interior thereupon sought to save

the statute, filing a Petition for Certiorari and promulgat-

ing an emergency rule “[i]Jn response” to the 1995 decision

of the Eighth Circuit. 61 Fed. Reg. 18,082 (Apr. 24, 1996).

The emergency rule provided that the Secretary would

take land into trust only thirty days after a final decision

had elapsed. Jd. In addition, the United States back-

tracked on the argument it had previously successfully

made in the lower courts that acquisitions under Section

465 were unreviewable under the Administrative Proce-

dures Act because such acquisitions were “committed to

agency discretion” by law. 5 U.S.C. § 701(a)(2). 1995

Petition for Writ of Certiorari, at 24. See Florida Dep’ of

Business Regulation v. Dep't of Interior, 768 F.2d 1248,

1255-57 (11th Cir. 1985). Based on its new regulation and

on its admissions, the United States asked this Court to

vacate the determination of the Court of Appeals for the

Eighth Circuit and to send the case back to the Secretary.

This Court granted the request. Department of the Interior

v. South Dakota, 519 U.S. 919 (1996). App. 57. Justices

Scalia, O’Connor, and Thomas dissented, commenting that

the decision to “grant, vacate and remand in light of the

Government’s changed position” was “unprecedented and

inexplicable.” 519 U.S. at 921. App. 59. The dissenters

noted that they failed to apprehend “how the availability

of judicial review has anything to do” with whether or not

the IRA impermissibly delegated legislative power. 519

U.S. at 921-22 (Scalia, J., dissenting). App. 60.

The Department of the Interior thereafter formally

removed the land from trust status and the-tribe filed an

amended application that the off reservation land be taken

into trust, essentially proposing that trust status was

necessary to develop a “Circle of Tipis” as part of a Native

American scenic byway. Administrative Record (AR) 129,

236-37.

The State, in opposition, submitted evidence that

placing land in trust was not economically beneficial as

claimed because trust status increases the cost of man-

agement decisions and the restrictions on alienation

constrain the use of land as collateral in capital markets.

AR 331-32. See Terry Anderson, Sovereign Nations or

Reservations? An Economic History of American Indians,

121-24 (1993). The State raised again its concern that

placing land into trust causes jurisdictional conflicts (AR

336-37), that the tribe’s purpose in using the land was

indefinite (AR 334), and that the tribe most likely had not

disclosed that its real purpose was gambling. AR 341-43.

The City argued that the grant of trust status to the tribe

would create an “artificial barrier stifling the natural

growth of the community,” which is already confined by

other factors (AR 619-21) and both local units of govern-

ment expressed concerns relating to lost taxes and unfair

competition. AR 627-28.’

* During the process, on December 15, 1998, Governor Janklow told

Interior that “[blased on their new business plan” and the assurance

that the tribe would not engage in gaming, “we” supported the tribe’s

(Continued on following page)

Thereafter, the Director, Office of Trust Responsibili-

ties, on April 6, 2000, forwarded a memo through the

Deputy Commissioner of Indian Affairs to the Assistant

Secretary-Indian Affairs, in which he advised taking the

Oacoma land into trust (App. 125), and a notice was

published in the Federal Register on May 18, 2000, of

intent to take land into trust. AR 1409.

On June 16, 2000, South Dakota, the County, and City

filed a Summons and Complaint in federal court. The

Complaint asserted the unconstitutionality of the Act on

delegation grounds, attacked the lack of compliance with

the National Environmental Policy Act and challenged the

compliance of the agency with its own regulations.

After the Complaint had been filed, the BIA backed up

once again, and retreated from its stance that no environ-

mental assessment need be done. The district court

granted the BIA’s motion for extension of time to allow it

to conduct an environmental review, which was finally

issued on December 14, 2000.

Two days before George W. Bush took the oath of office

as President of the United States, on January 18, 2001,

the Assistant Secretary-Indian Affairs, ratified the April 6,

2000, decision taking 91 acres of land in Lyman County

“application for trust status.” AR 827. Five months later, the tribe.

reversed its stance on land use and told the BIA that there “will be no

immediate change in land use of the Oacoma land.” AR 831. The BIA

Realty Specialist in Washington, DC, alertly asked the loca! BIA if the

Governor had been “informed of the change in land use” and asked

“does he still support the application?” AR 976. The record does not

reveal any further inquiry of the Governor, see AR 979. In any event, no

question has be.» raised relating to the authority of the Attorney

General to pursue its attack on the acquisition and Governor Michael

Rounds supports this Petition.

into trust for the Lower Brule Sioux Tribe. App. 116. On

January 26, 2001, the notice was printed in the Federal

After the completion of the environmental review and

the publication of the notice in the Federal Register, the

case was allowed to proceed in district court. The district

court upheld the Secretary’s decision and rejected the

nondelegation challenge, finding four factors which limited

the Secretary's authority sufficiently to defeat a constitu-

tional attack. First, the district court found that the policy

of “acquisition of lands for Indians” served the purpose of

“conserv[ing] and developling] Indian lands and re-

sources”; second, the Secretary was limited in that he may

“only provide land for Indians”; third, the Secretary was

limited _ by the $2 million that can be appropriated to

acquire such land; and fourth, the Secretary could not use

any funds to acquire land for Navajos outside of the

Navajo Indian Reservations in Arizona and New Mexico.

App. 53. The district court found similarities between the

Clean Air Act, which permitted the “Administrator to set

air quality standards that ‘are requisite to protect the

public health,’” and the IRA which “permits the Secretary

to acquire land in trust for Indians ‘to conserve and

develop Indian lands and resources.’” App. 55. The district

court also indicated that the “Circle of Tipis” had been

built on the land proposed to be taken into trust. App. 34,

45.

The court of appeals affirmed. App. 1. The court found

that this Court had struck down statutes on “delegation

grounds on only two occasions.” App. 6. Those statutes,

according to the court, had been enacted in a “unique

political climate and delegated to the President exception-

ally broad control over the national economy.” App. 7.

The court of appeals found that, following the two

decisions striking down statutes on delegation grounds,

this Court had given “‘narrow constructions to statutory

delegations that might otherwise be thought to be uncon-

stitutional.’” App. 7 (quoting Mistretta v. United States,

488 U.S. 361, 373 n.7 (1989)). The court relied on what it

perceived as similarities between this case and this

Court's decision in National Broadcasting Co. v. United

States, 319 U.S. 190, 215-17 (1943) in which this Court

had found an “intelligible principle” in the requirement of

the Act that the “agency should promulgate regulations

encouraging effective use of radio in the ‘public interest,

convenience or necessity’” App. 7-8. The court also relied

heavily on the dissent of Judge Murphy in 1995 to find

“guidance” in the “language of § 465.” App. 12. According

to the court, such “guidance” was found in the text to the

Act directing that “‘any land acquired must be for Indi-

ans’” and in that it “‘authorizes the appropriation of a

limited amount of funds with which land could be acquired

and specifically prohibits use of such funds to acquire land

for Navajo Indians outside of their established reservation

boundaries.’” App. 12. The court rejected the State’s

arguments that the “textual limitations are artificial

because any acquisition could be seen as ‘for Indians,’

regardless of who it harmed.” App. 12. The court also

rejected the State’s arguments with regard to funding. The

court acknowledged that the statute’s funding limits are

presently “irrelevant,” but stated that they were not

“meaningless when the IRA was enacted.” App. 12.

The court of appeals also found meaning in the legis-

lative history of the Act. App. 12. The court found that the

“legislative history frequently mentions landless Indians”

(App. 13), but did not “believe that Congress intended to

limit its broadly stated purposes of economic advancement

and additional lands for Indians to situations involving

landless Indians.” App. 13-14. The court also acknowl-

edged that members of Congress believed that “giving land

to landless Indians would enable them to farm or work in

stock grazing or forestry operations” but found further

that the “statutory language and the expressions of

purpose for section 5 in the reports indicate that Congress

placed primary emphasis on the needs of individuals and

tribes for land and the likelihood that the land would be

beneficially used to increase Indian self-support.” App. 14.

The court of appeals thus

conclude[d] that an intelligible principle exists in

the statutory phrase ‘for the purpose of providing

lands for Indians’ when it is viewed in the statu-

tory and historical context of the IRA. The statu-

tory aims of providing land sufficient to enable

Indians to achieve self-support and ameliorating

the damage resulting from the prior allotment

policy sufficiently narrow the discretionary au-

thority granted to the Department.

App. 14.

The State, County, and City petition for rehearing and

rehearing en banc was denied, with Chief Judge Loken

and Judge Gruender dissenting. App. 138.

REASONS FOR GRANTING CERTIORARI

According to [John] Locke, one of the four un-

breachable boundaries confining legislative au-

thority was that: “The Legislative cannot transfer

the Power of Making Laws to any other hands.

For it being but a delegated Power from the Peo-

ple, they, who have it, cannot pass it over to oth-

233

ers...

It should never be forgotten that this slogan, “Our

Federalism,” born in the early struggling days of

our Union of States, occupies a highly important

place in our Nation’s history and its future.“

This case stands at the intersection of the nondelega-

tion doctrine and federalism. Whitman v. American Truck-

ing Associations, Inc., 531 U.S. 457 (2001), this Court’s

most recent delegation determination, illuminates the

relationship between those bedrock principles of American

law. Whitman held that “the degree of agency discretion

that is acceptable varies according to the scope of power

constitutionally conferred.” Jd. at 475. An environmental

regulation defining the term “‘country elevators’” needs

no “direction” but the promulgation of air standards that

“affect the entire national economy” requires “substantial

guidance.” Jd. In other words, a statute without standards,

which allows a federal officer to massively and unilaterally

intrude into the jurisdiction of the states, offends the

constitution.

* Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory

of Legislative Delegation, 68 Cornell L. Rev. 1, 4 (1982) (quoting J.

Locke, Two Treatises of Government, 380-81 (2d Treatise) (Cambridge

University Press 1960)).

* Younger v. Harris, 401 U.S. 37, 44-45 (1971).

25 U.S.C. § 465 is such a statute; it allows the Secre-

tary of the Interior, “in his discretion,” to acquire any

lands, on or off the reservation, at any place within the

United States, and in any amount, without reference to

any limiting standard. That the statute is so bereft of

standards that it embodies an unconstitutional delegation

of legislative power is most clearly demonstrated by the

failure of the federal government to respond to the State’s

claim, made repeatedly since the mid-1990s, that the

statute is so vague that it is impossible to determine

whether the Secretary could “acquire all or any part of the

City of New York, the City of St. Louis, [or] the City of

Rapid City ... in trust.” Appellants’ Brief, State of South

Dakota and City of Oacoma v. United States Department of

the Interior, U.S. Court of Appeals for the Eighth Circuit,

Civil No. 94-2344, at 42.

Moreover, the intrusion into state sovereignty through

the acquisition power poses deep threats to federalism.

The taking of land into trust deprives the states and local

units of government of the authority, under the text of the

statute, to tax the land; it also deprives them of the

authority, under 25 C.F.R. 1.4(a), to impose any law or

ordinance “zoning or otherwise governing, regulating or

controlling the use of or development of any real or per-

sonal property, including water rights.” To some courts,

moreover, taking land into trust converts it to “Indian

country” under 18 U.S.C. §1151 with all that status

entails. The potential amount of land which is subject to

these intrusions is virtually limitless. Tribes now have

available to them billions in casino revenues with which to

purchase lands in each village, town and metropolis.

The Court of Appeals for the Eighth Circuit in the

present litigation, along with both the First and Tenth

Circuits, inexplicably ignored the force of Whitman’s

guidance and treated the delegation doctrine as a deceased

and not very beloved distant relative. See Carcieri v.

Norton, 423 F.3d 45, 56-58 (1st Cir. 2005); Shivwits Band

of Paiute Indians v. Utah, 428 F.3d 966, 972-74 (10th Cir.

2005), petition for cert. filed, 74 U.S.L.W 3532 (U.S. March

9, 2006) (No. 05-1160). This Court’s attention is necessary

to affirm the vitality of the doctrine.

25 U.S.C. § 465 IS SO DEVOID OF ASCERTAIN-

ABLE STANDARDS THAT IT EMBODIES AN

UNCONSTITUTIONAL DELEGATION OF LEG-

ISLATIVE AUTHORITY TO THE EXECUTIVE

BRANCH.

25 U.S.C. § 465 provides, in relevant part:

The Secretary of the Interior is authorized, in his

discretion, to acquire . . . lands, within or without

existing reservations ... for the purpose of pro-

viding land for Indians.

For the acquisition of such lands ... there is au-

thorized to be appropriated, out of any funds in

the Treasury not otherwise appropriated, a sum

not to exceed $2,000,000 in any one fiscal year,

Provided That no part of such funds shall be

used to acquire additional land outside of the ex-

terior boundaries of the Navajo Indian Reserva-

tion for the Navajo Indians. ...

Title to any lands or rights acquired pursuant to

this Act ... shall be taken in the name of the

United States in trust for the Indian tribe or in-

dividual Indian for which the land is acquired,

and such lands or rights shall be exempt from

State and local taxation.

Article I, Section 1 of the Constitution vests “[alll

legislative Powers” in “a Congress of the United States.”

This Court accordingly has “long...insisted that ‘the

integrity and maintenance of the system of government

ordained by the Constitution’ mandate that Congress

generally cannot delegate its legislative power to another

Branch.” Mistretta v. United States, 488 U.S. 361, 371-72

(1989) (quoting Field v. Clark, 143 U.S. 649, 692 (1892)).

The doctrine requires that Congress articulate the “gen-

eral policy, the public agency which is to apply it, and the

boundaries of this delegated authority.” American Power &

Light Co. v. S.E.C., 329 U.S. 90, 105 (1946). Most recently,

this Court has rearticulated the principle that when

“Congress confers decision making authority upon agen-

cies Congress must ‘lay down by legislative act an intelli-

gible principle to which the person or body authorized to

[act] is directed to conform.’” Whitman, 531 U.S. at 472

(quoting J.W. Hampton, Jr. & Co. v. United States, 276

U.S. 394, 409 (1928)).

25 U.S.C. § 465 fails the test of the cases. It lacks a

“general policy,” an “intelligible principle,” and “bounda-

ries.” The text, by its plain terms, purports to vest in the

Secretary unbridled “discretion” to acquire “lands” for a

tribe or an Indian on or off reservation, setting (1) no

limits on the location of lands, allowing, for example, an

acquisition for a South Dakota tribe in Alabama, Missouri,

New York or Utah; (2) no limits on the extent of such

acquisitions, allowing the Secretary to take the whole of a

city or even the whole of the state into trust for an indi-

vidual Indian or a tribe; and (3) no limits on the purpose of

such acquisitions, from golf courses, strip mines, strip

malls, strip joints, to urban apartment complexes.

A. The Text of 25 U.S.C. § 465 Provides No

Boundaries.

Tracking Judge Murphy’s dissent in the 1995 litiga-

tion, the court of appeals found “guidance” and “textual

limitations” in the “language of § 465.” App. 12. The court

of appeals cited three such purported “limitations” in the

text of the statute. First, court found that the scope of the

statute was limited because acquisitions could be only

““for Indians.’” Jd. The court did not explain, however, why

it believed this to be a meaningful “boundary” or “limit.”

And it is difficult to see how it could be. That the land be

acquired “for Indians” in no way limits the discretion of

the Secretary to engage in the conduct at issue — acquiring

land in trust for Indians. Nor does the “for Indians”

language place a practical limit on the exercise of the

Secretary's power under § 465. The United States has

estimated the total number of American Indians and,

Alaska Natives at 4.4 million as of 2003. usinfo.state.gov/

eur/Archive/2005/Jan/28-691277 html. If even half of these

are “Indians” as defined by federal law, then 2.2 million

persons are eligible to have land taken in trust for them,

along with over 500 federally recognized tribal govern-

ments. See id.

Second, the court relied on the statutory limit of $2

million per year for the “acquisition” of lands. App. 12. As

the court recognized, however, the limit is “irrelevant”

because “most of the land currently taken into trust has

been previously purchased by a tribe.” App. 12. Indeed, the

Department of Interior has acknowledged that the only

way it has acquired land in trust under the statute since

1950 is when a tribe or individual has purchased land and

conveys it to the United States. 64 Fed. Reg. 17,576 (Apr.

12, 1999). The court nonetheless found the “limit” to have

legal significance, stating that “[wle disagree that these

limitations were meaningless when the IRA was en-

acted... .” App. 12 (emphasis added).

Petitioners understand that the court is here express-

ing the theory that a statute which is constitutional when

adopted cannot thereafter become unconstitutional as

practical conditions change. This approach is without

merit because the constitutional defect in 25 U.S.C. § 465

has been there from the first. The text of 25 U.S.C. § 465

has always allowed the Secretary to acquire land without

cost to himself by “relinquishment [or] gift.” Moreover, it

makes no sense to argue that a statute which was once

constitutional is always constitutional. For example, a

state could apportion its legislature in an entirely consti-

tutional manner; years later, as the population grows in

some sections and shrinks in others, the formerly constitu-

tionally apportioned legislature could certainly become

unconstitutional. See also Whitman, 531 U.S. at 475

(identifying practical considerations for evaluating claims

of the grant of excessive power to the executive).

The third point of Judge Murphy as quoted by the .

court is closely related to the second — the $2 million could

not be used to acquire land for the Navajos outside of their

reservation boundaries in Arizona and New Mexico. App.

12. This again provides no boundaries for the reasons set

forth above, and for the additional.reason that hundreds of

other tribes and roughly two miilion individual Indians

are eligible for acquisitions in the area outside of the

Navajo reservation in Arizona and New Mexico. The court

of appeals does not, nor could it, explain how excluding

one tribe from one use of the funds could possibly narrow

the Secretary's untethered discretion to take land into

trust anywhere in the country for all other tribes and

Indians.

B. The Legislative History of 25 U.S.C. § 465 |

Fails to Create a Constitutionally Sufficient

“Intelligible Principle” or Constitutionally

Sufficient “Boundaries.”

The court of appeals also relied heavily on the legisla-

tive history to establish the constitutionally demanded

standards, but its approach lacks merit. First, the very

statement of the nondelegation doctrine denies reliance on

legislative history. According to Whitman, 531 U.S. at 472,

“when Congress confers decisionmaking authority upon

agencies Congress must ‘lay down by legislative act an

intelligible principle to which the person or body authorized —

to [act] is directed to conform.” Legislative history is assur-

edly not a “legislative act” laid down by “Congress.” See

Exxon Mobil Corp. v. Allapattah Services, Inc., ___. U.S. __,

125 S.Ct. 2611, 2626 (2005) (“[T]he authoritative statement

is the statutory text, not the legislative history.”).

Second, the court of appeals rejected the clearest and

most unequivocal messages of the legislative history. The

court of appeals, for example, properly acknowledged the

frequent references in the legislative history to the pur-

chase of land for “landless Indians.” App. 13-14. Moreover,

the court of appeals acknowledged that the “most common

application of the statute” was envisioned to be “giving

land to landless Indians [which] would enable them to

farm or work in stock grazing or forestry operations.” App.

14. Yet, this central thread of the legislative history was

rejected as limiting the authority of the Secretary -—

neither the text of the act nor the court below suggests

that the statute is limited to providing land for landless

Indians or that acquisitions are confined to those for

farms, stock grazing or forestry.

Instead of taking the smaller step of simply adopting,

as the limits of the statute, the finite purposes it identi-

fied, the court determined to rewrite the statute with

much broader purposes untethered by the central threads

of the legislative history. Relying on unspecified “statutory

language” and on “expressions of purpose for section 5 in

the reports,” the court concluded that the “statutory aims

of providing lands sufficient to enable Indians to achieve

self-support and ameliorating the damage resulting from

the prior allotment policy” formed the boundaries of the

operation of the statute and “sufficiently narrow[ed] the

discretionary authority granted to the Department.” App.

14.

There are three major problems with the court’s

approach. First, Section 465, as rewritten by the court,

still lacks an “intelligible principle” and constitutionally

adequate “boundaries.” Under the court’s decision, the

Secretary would still be allowed to purchase, on behalf of a

small South Dakota tribe, land up and down the bounda-

ries of Central Park in New York City, or land in Alabama,

Missouri or Utah for a golf course, apartment complex, or

strip joint. Virtually any acquisition of land in trust for

Indians could benefit them economically and thereby

“enable Indians to achieve self-support”; further, even a

BIA land acquisition that somehow does not accrue to an

Indian’s “self-support” can be seen as “ameliorating the

damage resulting from the prior allotment policy.”

Second, the attempt of the court below to rely on

legislative history was deficient in that it ignored entirely

the development of the legislation. The original bill which

was to constitute the IRA provided for Indian lands in

Title III. Readjustment of Indian Affairs: Hearings on H.R.

7902 before the House Committee on Indian Affairs, 73d

Cong., 2d Sess., 8 (1934) (hereinafter House Hearings).

Section 1 of Title ITI set out a detailed declaration of policy.

Id. Section 6 of Title III required the Secretary to “make

economic and physical investigation and classification of

the existing Indian lands, of intermingled and adjacent

non-Indian lands and of other lands that may be required

for landless Indian groups or individuals” and to make

“such other investigations as may be needed to secure the

most effective utilization of existing Indian resources and

the most economic acquisition of additional lands.” Jd. at

8-9. He was further to classify areas which were “reasona-

bly capable of consolidation” and to “proclaim the exclu-

sion from such areas of any lands not to be included

therein.” Id. at 8. Section 8 allowed the tribe to acquire the

interest of any “nonmember in land within its territorial

limits” when “necessary for the proper consolidation of

Indian lands.” Jd. at 9. Under Section 16, the lands were

not to be subject to taxation “but the United States shall

assume governmental obligations of the State or county in

which such lands are situated with respect to the mainte-

nance of roads across such lands, the furnishing of educa-

tional and other public facilities,” for fire control and

protection of the public health and order in the lands and

for other purposes. Jd. at 11. Jurisdictional measures were

provided in Title IV.

The original bill thus at least made an attempt at

articulating basic policy choices and imposing real bounda-

ries. Nonetheless, these policy choices and boundaries were

resoundingly rejected by Congress, and the bill was

entirely rewritten by those “who objected most strenuously

to the original” bill. 78 Cong. Rec. 11,732 (June 15, 1934).

Compare House Hearings at 1-14 and 48 Stat. 984 (1934).

The detailed statement of general policy for the Act as a

whole set out in the original Title I, Section 1 was elimi-

nated. Section 1 of Title III, which had set out a compre-

hensive land policy, was entirely deleted, along with

Section 6 of which had provided for the “orderly and sound

acquisition and consolidation of lands.” Section 7 of Title

III, the predecessor to 25 U.S.C. § 465, was stripped of

standards and renumbered Section 5. The language of

Section 8 of Title III, quoted above, was eliminated.

Furthermore, Section 16 of the original Title III was

essentially eliminated and Congress put in limbo the

question of whether it would “assume... governmental

obligations of the state or county” with regard to any

newly acquired lands. Of course, states continue to expend

significant funds for schools, roads and social services in

areas with high proportions of nontaxable trust land.

Likewise, the detailed jurisdictional provisions of Title IV

were eliminated. Because Congress deliberately elimi-

nated all intelligible standards from the text of the origi-

nal bill, it cannot be said that Congress has articulated

them in the 1934 legislative history.

C. The Decisions of This Court Give No Sup-

port to the Opinion of the Eighth Circuit.

As noted above, the nondelegation doctrine — that

Congress may not constitutionally delegate its legislative

Power to another branch of government —- derives from

Article I, Section 1 of the Constitution: “All legislative

Powers granted herein shall be vested in a Congress of the

United States.” Congress can thus exercise the legislative

power “granted herein” but it cannot delegate that power.

Loving v. United States, 517 U.S. 748, 758 (1996). Nor does

either of the other branches have an independent constitu-

tional claim to legislative power.

This Court accordingly has struck, on nondelegation

grounds, two statutes enacted by the same Congress which

enacted Section 465. Panama Refining Co. v. Ryan, 293

U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935). In each case, the 1934 Con-

gress had failed to “articulate any policy or standard that

would serve to confine the discretion of authorities to

whom Congress had delegated power.” Mistretta, 488 U.S.

at 373 n.7.

Similarly, when Congress in 1934 enacted Section 465,

it failed to articulate any such policy or standards to

“confine the discretion” of the authorities to whom it had

granted power. Indeed, it is significant, and perhaps

dispositive under Mistretta, that each acquisition under

Section 465 is made by the Secretary, in the words of the

statute, “in his discretion.”

The most recent reaffirmation of the nondelegation

doctrine declares anew that, to survive constitutional

scrutiny, the “‘legislative act’” must lay down an “‘intelli-

gible principle to which the person or body’” must con-

form. Whitman, 531 U.S. at 472. Such an intelligible

principle was found within the text of the statute at issue

in Whitman in that it (1) required that the EPA establish

“‘uniform national standards at a level that is requisite to

protect the public health from the adverse effects of the

pollutant in ambient air’”; (2) confined the EPA authority

to a “‘discrete set of pollutants’” and (3) required that the

EPA analysis be based on “‘published air quality criteria

that reflect the latest sc.entific knowledge.’” 531 U.S. at

473. Further, the term “requisite” confined the scope of the

action to “sufficient but not more than necessary.” Id. See

42 U.S.C. § 7409.

In contrast, the court below relied on the virtually

meaningless “statutory phrase ‘for the purpose of provid-

ing land for Indians’” to find an “intelligible principle”

(App. 14) and the lynchpin of its analysis seemed to be the

thesis that cases such as National Broadcasting estab-

lished that key phrases in a statute can provide such a

principle. App. 7-8. The court below, however, missed the

meaning of that decision.

In National Broadcasting, 319 U.S. at 215-17, the

Court did not rely on the bare phrase “public interest” as

setting the boundaries and meaning of the licensing

authority which could be exercised. The scope of permissi-

ble authority was further defined, by the text of the

statute, to be “the interest of the listening public ‘in the

larger and more effective use of radio.’” 319 U.S. at 216

(quoting Section 303(g) of the Act.) Statutory language

also required that “‘licenses, frequencies, hours of opera-

tion’” should be divided, among the “‘States and commu-

nities’” so as to “‘provide a fair, efficient, and equitable

distribution of radio service.’” 319 U.S. at 215 (quoting

Section 307(b)). Moreover, the phrase “public interest”

carried with it meaning from the case law: “‘An important

element of public interest and convenience affecting the

issuance of a license is the ability of the licensee to render

the best practicable service to the community reached by

his broadcasts.’” 319 U.S. at 216 (quoting Federal Com-

munications Comm. v. Sanders Bros. Radio Station, 309

U.S. 470, 475 (1940). See also Federal Communications

Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S.

266, 285 (1933) (“relative advantages in service” part of

public interest test).

Neither Whitman nor NBC give support to the thesis

that meaning can be inserted into an ambiguous phrase of

a statute by vague passages of legislative history. Rather,

statutory text and prior cases defining particular terms of

art can provide constitutional meaning sufficient to

overcome a delegation challenge. No text or prior cases do

so with respect to 25 U.S.C. § 465.

II. THE QUESTION PRESENTED IS OF ENOR-

MOUS PRACTICAL IMPORTANCE TO STATE

AND LOCAL GOVERNMENT.

In Whitman, this Court made clear that the broader

the scope of power in question, the more guidance Con-

gress must provide to the executive branch to satisfy the

nondelegation doctrine. 531 U.S. at 475. Few powers are

broader, or strike more at the heart of our federal system

of government, than the Secretary's unbridled power to

take land into trust “for Indians.”

Under 25 U.S.C. § 465, the Secretary of the Interior is

allowed discretionary authority to unilaterally invade the

jurisdiction of the State and permanently deprive it, not

only of its taxing authority under the text of the statute,

but also of the very substance of its jurisdictional author-

ity. The BIA claims, in 25 C.F.R. 1.4(a), that the acquisi-

tion of land in trust deprives the states and localities of

their ability to zone, govern, regulate, or contro] the use of

or development of any real or personal property, a devas-

tating attack on state and local authority when the land is

off reservation. Some courts have gone further and found

that the acquisition of off reservation land in trust con-

verts that land into “Indian country.” See, e.g., United

States v. Roberts, 185 F.3d 1125, 1131 (10th Cir. 1999).°

The location of land, moreover, which could be taken

into trust is virtually unlimited. As noted above, South

Dakota has time and again given opportunities to the

United States government to deny that acquisitions for a

small South Dakota tribe of land at various places around

the country, including land around Central Park in New

York City, would somehow be forbidden. The United States

cannot and will not deny that acquisitions of land for any

purpose at any location for any tribe or Indian are forbid-

den under the Act. They are, in fact, all within the “discre-

tion” of the Secretary of the Interior, under his view.

* The question is unresolved in the Eighth Circuit. One federal

district court has recently found that placing off reservation land in

trust converts it into Indian country. South Dakota v. Department of the

Interior, 401 F. Supp. 2d 1000, 1010 (D.S.D. 2005) (appeal pending). The

Court of Appeals for the Eighth Circuit, however, has not, in the view of

the State, yet acquiesced in that position. United States v. Stands, 105 -

F.3d 1565, 1572 (8th Cir. 1997).

Nor does the text of the statute restrain the amount of

land which can be taken into trust. In 1999, the Depart-

ment of the Interior estimated an annual number of on

reservation applications for land in trust at 6,594 and off

reservation trust acquisitions at 278. 64 Fed. Reg. 17,575

(Apr. 12, 1999). In that year, however, gaming revenues

were but 9.8 billion; 2004 revenues were 19.4 billion, a

doubling of the 1999 revenues. See www.nigce.gov/TribalData/

GamingRevenues20031999/abid/106/Default.aspx; www.nigc.

gov/TribalData/GamingRevenues20042000/tabid/549/Default.

aspx. This huge, and rapidly expanding, bonanza from

gambling is available to tribes to acquire land in every

village, town, and city in the United States. Scholars

emphasize the tribal members’ understanding of them-

selves as possessing a special relationship to the land and

tribes have begun to and will no doubt markedly increase

the rate at which they acquire lands. See, e.g., Frank

Pommersheim, Braid of Feathers, 33-34 (1995). See also

Felix S. Cohen’s Handbook of Federal Indian Law, 1982

Edition (R. Strickland et al. eds., 1982) at 471: “Real

estate holdings are the single most important economic

resource of Indian tribes.” That tribes are able to acquire

land wherever they want is fully within the scope of the

American dream and the idea fits comfortably with con-

cepts of federalism. When the United States, however,

unilaterally takes that land into trust, and permanently

removes it from the jurisdiction of the State, the intrusion

becomes impermissible — at least when the power to

unilaterally take that land has been delegated to an

executive branch officer.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,