Appendix — South Dakota v. Department of the Interior (No. 05-1428)

TABLE OF CONTENTS

South Dakota, et al. v. United States Department of

the Interior, et al., No. 04-2309, U.S. Court of

Appeals for the Eighth Circuit, Sept. 6, 2005

State of South Dakota, et al. v. United States

Department of the Interior, et al., No. Civ. 00-

3026-RHB, U.S. District Court for the District of

South Dakota, Apr. 19, 2004

Department of the Interior, et al. v. South Dakota, et

al., No. 95-1956, U.S. Supreme Court, Oct. 15,

State of South Dakota, et al. v. United States

Department of the Interior, et al., No. 94-2344-

SDRC, Order Denying Petition for Rehearing

and Suggestion for Rehearing En Banc, Feb. 2,

State of South Dakota, et al. v. United States

Department of the Interior, et al., No. 94-2344,

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

State of South Dakota, et al. v. United States

Department of the Interior, et al., Civ. 92-3023,

U.S. District Court for the District of South Da-

kota, Memorandum Opinion, Apr. 1, 1994

Memorandum to Deputy Commissioner of Indian

Affairs from Assistant Secretary — Indian Affairs,

Ratification of Decision dated Apr. 6, 2000, to

take approximately 91 acres of land located in

Lyman County, South Dakoka [sic], in trust for

the Lower Brule Sioux Tribe of Indians of South

Dakota (“Tribe”), Jan. 18, 2001

Page

TABLE OF CONTENTS - Continued

Memorandum to Assistant Secretary — Indian

Affairs through Deputy Commissioner of Indian

Affairs from Director, Office of Trust Responsibili-

ties, Ratification of April 6, 2000, decision to

transfer approximately 91 acres of land into trust

for the Lower Brule Sioux Tribe, Jan. 18, 2001 ...App. 118

Memorandum to Great Plains Regional Director

from Assistant Secretary — Indian Affairs, Request

for Off-Reservation Fee-to-Trust Acquisition by

the Lower Brule Sioux Tribe of South Dakota for

90.94 Acres in Lyman County, South Dakota, Apr.

Memorandum to Assistant Secretary -— Indian

Affairs through Deputy Commissioner of Indian

Affairs from Director, Office of Trust Responsibili-

ties, Request by Lower Brule Sioux Tribe for Off-

Reservation Fee-to-Trust Acquisition of approxi-

mately 91 Acres of Land in Oacoma, South Da-

kota, Apr. 6, 2000

State of South Dakota, et al. v. United States

Department of the Interior, et al., No. 04-2309,

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

Order Denying Petition for Rehearing and for

Rehearing En Banc, Feb. 6, 2006

App. 1

423 F.3d 790

United States Court of Appeals, Eighth Circuit.

State of SOUTH DAKOTA; City of Oacoma,

South Dakota; Lyman County, South Dakota,

Plaintiffs/Appellants,

v.

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,

Defendants/Appellees,

Lower Brule Sioux Tribe, Interested Party.

No. 04-2309.

Submitted: March 14, 2005.

Filed: Sept. 6, 2005.

Rehearing and Rehearing En Banc Denied Feb. 6, 2006.’

John P. Guhin, argued, Assistant Attorney General,

Pierre, SD, for appellant.

Thomas L. Sansonetti, argued, Assistant Attorney

General, U.S. Department Of Justice, Washington, DC

(Judith Rabinowitz, Ellen Durkee and Liss. E. Jones, U.S.

Department of Justice on the brief), for appellee.

Before WOLLMAN, LAY, and HANSEN, Circuit

Judges.

WOLLMAN, Circuit Judge.

* Chief Judge Loken and Judge Gruender would grant the petition

for rehearing en banc.

App. 2

The State of South Dakota, City of Oacoma, and

Lyman County (collectively referred to as the State) appeal

from the district court’s’ grant of summary judgment in

favor of the Department of the Interior (the Department),

upholding the Secretary of the Interior’s’ decision to use

his authority based on section 5 of the Indian Reorganiza-

tion Act (IRA), 25 U.S.C. § 465, to take certain land into

trust for the Lower Brule Sioux Tribe. We affirm.

I.

In 1990, the Lower Brule Sioux Tribe sought to have

91 acres of off-reservation land that it had purchased

taken into trust. The land is located within the municipal

limits of the city of Oacoma, some seven or eight miles

south of the Tribe’s reservation and adjacent to Interstate

90 near exit 260. The Department approved its request,

and the Interior Board of Indian Appeals dismissed the

resulting appeal. The State filed a claim in the district

court, seeking review of the Secretary’s action and con-

tending that 25 U.S.C. § 465 was an unconstitutional

delegation of legislative power. The district court con-

cluded that the statute was constitutional, but held that it

was without jurisdiction to review the remaining claims

and dismissed the case. This court reversed, finding that

§ 465 constituted an unconstitutional delegation of legisla-

tive power. We concluded that the Department had inter-

preted its own power too broadly and was exercising that

* The Honorable Richard H. Battey, United States District Judge

for the District of South Dakota.

* The Secretary of the Interior at the time the land was taken into

trust was Bruce Babbitt. The current Secretary is Gale A. Norton, who

took office January 31, 2001.

App. 3

power in an unchecked manner because it had also inter-

preted the statute as delegating unreviewable discretion-

ary authority to the Secretary. South Dakota v. United

States Dep't of the Interior, 69 F.3d 878, 881-85 (8th

Cir.1995) (South Dakota I). The Department promulgated

a new regulation that provided for judicial review, 25

C.F.R. § 151.12(b), and then petitioned for writ of certio-

rari, asking that the United States Supreme Court vacate

our decision and remand the case to the Department. The

Supreme Court granted the writ and vacated the judg-

ment, directing that the matter be remanded “to the

Secretary of the Interior for reconsideration of his admin-

istrative decision,” Dep’ of the Interior v. South Dakota,

519 U.S. 919, 919-20, 117 S.Ct. 286, 136 L.Ed.2d 205

(1996) (South Dakota IJ), in light of the new regulation

allowing for judicial review. Some seven months later, the

Department removed the land from trust status.

In 1997, the Tribe submitted an amended application

to the Secretary, requesting that the United States take

the land into trust on the Tribe’s behalf. The Tribe submit-

ted a business plan describing its intent to use the land for

a cultural center and tourist attraction that would draw

tourists to further explore the South Dakota Native

American Scenic Byway.’ State’s App. (App.) 82A-82C. The

Bureau of Indian Affairs (BIA) gave notice to state, county,

and city officials, requesting information and comments. The

State responded by raising the following objections: the

statute unconstitutionally delegated legislative authority;

* The Tribe also attached a comprehensive plan of the goals for the

entire corridor of the Native American Scenic Byway that described

everything from the vision for the byway to the management and

marketing necessary to accomplish it. Supp.App. 112-275.

App. 4

the Tribe had not shown its need for the land to be taken

into trust; a significant loss in state revenue and numer-

ous jurisdictional problems would result if the land were

taken into trust; the distance between the land and the

reservation counseled against the acquisition; and the

land would likely be used for gaming purposes. The city ©

and county separately objected by alleging that the taking

of the land into trust could stifle the growth of the com-

munity and affect its income. ,

In its May 20, 1998, response to the objections, the

Tribe asserted that it would benefit from having the land

held in trust because of the resulting significant federal

protections that would facilitate the growth of tribal

industry and would assure tize Tribe’s future generations

the continued use of the land. The Tribe also asserted that

because the Tribe’s planned use of the land would result in

increased tourism, the local governments would suffer no

significant revenue loss. The response confirmed that the

Tribe’s business plan detailed its specific intentions for the

land and stated that the Tribe would not use the land for

gaming.

The Secretary evaluated the application in accordance

with the Department’s regulations, basing his conclusion

on the information provided by the parties involved and on

internal recommendations from various levels within the

Department. The Secretary concluded that it would be

appropriate to take the land into trust and published

notice in the Federal Register.

App. 5

The State again filed suit in federal court to challenge

the agency action.” The suit was delayed for the comple-

tion of an environmental assessment in accordance with

the National Environmental Policy Act, after which the

Secretary ratified his decision, finding that taking the

land into trust would have no significant impact on the

quality of the human environment. The State amended its

complaint and filed a motion to supplement the adminis-

trative record to provide support for its claim that the

Tribe in fact intended to use the land for gaming purposes.

The district court denied the motion to supplement the

record, finding that the record adequately reflected the

facts and concluding that the plaintiffs had not shown bad

faith or improper behavior sufficient to justify supplemen-

tation. The parties filed cross-motions for summary

judgment. The district court granted the Department’s

motion, once again finding 25 U.S.C. § 465 to be constitu-

tional and holding that the decision to grant trust status

was not arbitrary or capricious. South Dakota v. United

States Dept of the Interior, 314 FSupp.2d 935

(D.S.D.2004) (South Dakota III). It concluded that the

“Secretary's decision satisfactorily addressed all relevant

criteria” in its regulations. Jd. at 948.

II.

We review de novo the district court’s grant or denial

of a motion for summary judgment. Children’s Healthcare

Is a Legal Duty, Inc. v. De Parle, 212 F.3d 1084, 1090 (8th

* In July 2001, the Tribe moved to intervene in the State’s suit. The

district court denied the Tribe’s motion for intervention as of right and

for permissive intervention, and we affirmed. South Dakota v. United

States Dep't of the Interior, 317 F.3d 783 (8th Cir.2003)

App. 6

Cir.2000). Viewing the record in the light most favorable to

the nonmoving party, we ask whether a genuine issue of

material fact exists and whether the moving party is

entitled to judgment as a matter of law. Id. We also review

de novo questions of constitutional law. Coalition for Fair

& Equitable Regulation of Docks v. Fed. Energy Regulatory

Comm’n, 297 F.3d 771, 778 (8th Cir.2002).

A.

The State first claims that because 25 U.S.C. § 465

does not delineate any boundaries governing the execu-

tive’s decision to acquire land in trust for Indians, it

constitutes an unlawful delegation of legislative power in

violation of Article 1, Section 1, of the Constitution (“All

legislative Powers herein granted shall be vested in a

Congress of the United States.”). Congress may delegate

its legislative power if it “lay[s] down by legislative act an

intelligible principle to which the person or body author-

ized to [act] is directed to conform.” J.W. Hampton, Jr. &

Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72

L.Ed. 624 (1928). The Supreme Court has given Congress

wide latitude in meeting the intelligible principle require-

ment, recognizing that “Congress simply cannot do its job

absent an ability to delegate power under broad general

directives.” Mistretta v. United States, 488 U.S. 361, 372,

109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

The Supreme Court has struck down statutes on

delegation grounds on only two occasions. Panama Refin-

ing Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446

(1935); A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). The

statutes at issue in those cases were promulgated in a

App. 7

unique political climate and delegated to the President

exceptionally broad control over the national economy.

Section 9(c) of the National Industrial Recovery Act,

invalidated in Panama Refining, gave the President

blanket authority to prohibit transportation of petroleum;

neither its language nor its context provided any criteria

to guide the President or required any specific findings

before he acted. 293 U.S. at 415-16, 55 S.Ct. 241. Section 3

of the National Industrial Recovery Act, struck down in

Schechter Poultry, authorized the President to prescribe

and approve mandatory “codes of fair competition” for

various industries without additional congressional

approval. 295 U.S. at 521-23, 55 S.Ct. 837. The Court

warned that “Congress cannot delegate legislative power

to the President to exercise an unfettered discretion to

make whatever laws he thinks may be needed or advisable

for the rehabilitation and expansion of trade or industry.”

Id. at 537-38, 55 S.Ct. 837.

Since 1935, however, the Court has given “narrow

constructions to statutory delegations that might other-

wise be thought to be unconstitutional.” Mistretta, 488

U.S. at 373 n. 7, 109 S.Ct. 647. The Court has “almost

never felt qualified to second-guess Congress regarding

the permissible degree of policy judgment that can be left

to those executing or applying the law.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 474-75, 121 S.Ct. 903, 149

L.Ed.2d 1 (2001) (quotation omitted). The Court has made

such narrow constructions by rejecting overly broad

interpretations of certain words and giving the words

content “by their surroundings.” Id. at 466, 121 S.Ct. 903.

The Court has found an intelligible principle, although

admittedly broad, even when an act simply stated that an

agency should promulgate regulations encouraging the

App. 8

effective use of radio in the “public interest, convenience,

or necessity,” noting that the meaning of “public interest”

was limited in light of the larger aim of the Act. Nat’

Broad. Co. v. United States, 319 U.S. 190, 215-17, 63 S.Ct.

997, 87 L.Ed. 1344 (1943). Broad phrases of purpose in an

act are not “utterly without meaning” when viewed in the

light of “the purpose of the Act, its factual background and

the statutory context in which [the phrases of purpose]

appear.” Am. Power & Light Co. v. Securities & Exch.

Comm’n, 329 U.S. 90, 104, 67 S.Ct. 133, 91 L.Ed. 103

(1946).

Congress fails to give sufficient guidance in its delega-

tions only if it “would be impossible in a proper proceeding

to ascertain whether the will of Congress has been

obeyed.” Yakus v. United States, 321 U.S. 414, 426, 64

S.Ct. 660, 88 L.Ed. 834 (1944). Its will is sufficiently

articulated “if Congress clearly delineates the general

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

boundaries of this delegated authority.” Am. Power, 329

U.S. at 105, 67 S.Ct. 133. The statute does not have to

provide a “determinate criterion” for the exercise of the

delegated power, as long as a policy is articulated. Whit-

man, 531 U.S. at 475, 121 S.Ct. 903.

The IRA’s delegation of authority is set forth as

follows:

The Secretary of the Interior is hereby author-

ized, in his discretion, to acquire through pur-

chase, relinquishment, gift, exchange, or assign-

ment, any interest in lands, water rights, or sur-

face rights to lands, within or without existing

reservations, including trust or otherwise re-

stricted allotments whether the allottee be living

App. 9

or deceased, for the purpose of providing land for

Indians.

25 U.S.C. § 465. Section 465 also authorizes the

allocation of up to two million dollars each fiscal year for

that purpose. Jd. The State argues that § 465 provides no

practical boundaries to the Secretary's authority and that

the statute’s purposes are so broad that they could be

construed to justify almost any land acquisition.

As indicated above, we previously found § 465 to be

unconstitutional, South Dakota I, 69 F.3d 878, concluding

that the statutory language contained “no perceptible

‘boundaries,’ no ‘intelligible principles,’” Jd. at 882, a fact

that, together with the broad agency interpretation,

created “an agency fiefdom whose boundaries were never

established by Congress, and whose exercise of unre-

strained power is free of judicial review.” Jd. at 885. Judge

Murphy dissented, stating that the court had unnecessar-

ily reached the constitutional issue instead of reaching the

merits of the State’sAdministrative Procedure Act (APA)

claim. Jd. at 885. She also concluded that the statute

contained boundaries sufficient to bring it within the

broad range of acceptable delegations because the statute

was confined in scope, its text, when viewed in its histori-

cal context, limited the Secretary’s discretion, and its

legislative history revealed its purposes. Jd. at 887.

Because the Supreme Court vacated our 1995 opinion,

we are not bound by its conclusion.® Accordingly, we

* The Supreme Court issued what is known as a GVR (granting

certiorari, vacating the judgment below, and remanding the case with

minimal direction). A GVR does not compel a particular determination

or outcome, but occurs often when an intervening development may

affect the outcome of the case. See, e.g., Jackson v. United States,

(Continued on following page)

App. 10

reexamine the broader context of the Act to determine

whether the delegation in 25 U.S.C. § 465 includes guid-

ance sufficient to withstand a challenge based upon

nondelegation doctrine grounds. We may look solely to the

language and the context of the statute in determining its

constitutionality and may not consider any particular

agency interpretation as determinative in our constitu-

tional inquiry.’ See Whitman, 531 U.S. at 472, 121 S.Ct.

903 (stating that “[wle have never suggested that an

agency can cure an unlawful delegation of legislative

power by adopting in its discretion a limiting construction

of the statute”). Whether the agency is reasonably apply-

ing its delegated power is an inquiry distinct from the

question whether the delegation contains sufficient guid-

ance to pass constitutional muster. We will, if possible,

give “narrow constructions to statutory delegations,”

Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. 647, and then

proceed to evaluate the agency action under the APA.

__US. __, 125 S.Ct. 1019, 160 L.Ed.2d 1001 (2005) (issuing a GVR

“for further consideration in light of United States v. Booker, 543U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)”); Consolidated Foods Corp.

v. Unger, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d 1297 (1982) (“for

further consideration in light of Kremer v. Chemical Constr. Corp., 456

U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)”). Cf. Republican Party

of Minnesota v. White, 416 F.3d 738, 748 (8th Cir.2005) (en banc).

* This principle had not been clearly articulated in the past, as

evidenced by our prior opinion and the Department’s argument in its

petition for certiorari in this case. The Department asked the Supreme

Court to vacate and remand the case because our prior opinion was

based in part on the lack of judicial review available under the Depart-

ment’s regulations and the fact that the Department had since issued

new regulations acknowledging the availability of judicial review. The

Department contended that the challenge should be revisited in light of

the new regulation.

App. 11

We conclude that the purposes evident in the whole of

the IRA and its legislative history sufficiently narrow the

delegation and guide the Secretary's discretion in deciding

when to take land into trust. The IRA, 25 U.S.C. §§ 461-

479, enacted in 1934, “reflected a new policy of the Federal

Government and aimed to put a halt to the loss of tribal

lands through allotment. It gave the Secretary of the

Interior power to create new reservations, and tribes were

encouraged to revitalize their self-government.... ”

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93

S.Ct. 1267, 36 L.Ed.2d 114 (1973); see also Chase v.

McMasters, 573 F.2d 1011, 1016 (8th Cir.1978) (highlight-

ing that the various sections of the act all reflected the

purpose of ensuring protection of Indian lands).

The Tenth and the First Circuits have both found that

§ 465 does not violate the nondelegation doctrine. United

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

Norton, 398 F.3d 22 (1st Cir.2005). In Roberts, the Tenth

Circuit cited Judge Murphy’s dissent and concluded that

the statute places adequate limits on the Secretary's

discretion, namely, the requirement that the land be

acquired for Indians, the limitation on authorized funds,

and the goals identified in the legislative history. 185 F.3d

at 1137; see also Carcieri, 398 F.3d at 33-34 (adopting the

Roberts court’s reasoning).

We agree with the views expressed by Judge Murphy

in her dissent in South Dakota I: The scope of the power

conferred in § 465 is broad, but — unlike the powers

conferred in Panama Refining and Schechter Poultry — it

does not involve granting to the executive authority to

unilaterally enact a sweeping regulatory scheme that will

affect the entire national economy. We believe that it is

possible to “ascertain whether the will of Congress has

App. 12

been obeyed” when examining an application of the Secre-

tary’ authority under § 465 based upon the guidance in

the IRA and its legislative history. See Yakus, 321 U.S. at

426, 64 S.Ct. 660.

The language of § 465 itself provides guidance. As

Judge Murphy stated:

It directs that any land acquired must be for In-

dians as they are defined in 25 U.S.C. § 479. 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 the Navajo Indians outside of their es-

tablished reservation boundaries in Arizona and

New Mexico.

South Dakota I, 69 F.3d at 887 (Murphy, J., dissent-

ing). The State argues that these claimed textual limita-

tions are artificial because any acquisition could be seen as

“for Indians,” regardless of who else it harms. Likewise,

because most of the land currently taken into trust has

been previously purchased by a tribe, the limit on appro-

priated funds for purchasing land is irrelevant. We dis-

agree that these limitations were meaningless when the

IRA was enacted, and we conclude that the context of the

entire act and its legislative history continue to give

meaning to the phrase “for the purpose of providing land

for Indians.”

The legislative history of the IRA indicates that “[t]he

intent and purpose of the Reorganization Act was ‘to

rehabilitate the Indian’s economic life and to give him a

chance to develop the initiative destroyed by a century of

oppression and paternalism.’” Mescalero Apache Tribe, 411

U.S. at 152, 93 S.Ct. 1267 (quoting H.R.Rep. No. 1804,

App. 13

73rd Cong., 2d Sess., at 6 (1934)). Numerous sections in

the act itself and in its legislative history indicate that

Congress believed that a critical aspect of that broad goal

was “to conserve and develop Indian lands and resources.”

H.R.Rep. No. 1804, 73rd Cong., 2d Sess., at 5 (1934) (the

first phrase included in the title of the bill); S.Rep. No.

1080, 73rd Cong., 2d Sess., at 1 (1934) (same). The act

includes six sections addressed to land policy. 25 U.S.C.

§§ 461-466 (providing means to preserve and increase the

amount of Indian lands). Representative Howard, the

sponsor of the bill in the House of Representatives, de-

scribed the tremendous loss of land that resulted from the

government’s allotment policy, begun in 1887, 78 Cong.

Rec. 11,726 (1934), and indicated that the act would help

remedy the problem by preventing “any further loss of

Indian lands” and permitting “the purchase of additional

lands for landless Indians.” Jd. at 11,727; see also 78 Cong.

Rec. 11,123 (June 12, 1934) (statement of Senator Wheeler,

sponsor of the bill in the Senate, echoing the remedial

goals in relation to Indian lands).

Congress believed that additional land was essential

for the economic advancement and self-support of the

Indian communities. S.Rep. No. 1080, at 2 (stating that

section 5 would “meet the needs of landless Indians and of

Indian individuals and tribes whose land holdings are

insufficient for self-support”); H.R.Rep. No. 1804, at 6

(noting that the purchase of lands would help “[t]o make

many of the now pauperized, landless Indians self-

supporting”); 78 Cong. Rec. 11,730 (statement of Rep.

Howard that section 5 would “provide land for Indians

who have no land or insufficient land, and who can use

land beneficially”). Although the legislative history fre-

quently mentions landless Indians, we do not believe that

App. 14

Congress intended to limit its broadly stated purposes of

economic advancement and additional lands for Indians to

situations involving landless Indians. The House and

Senate reports imply that members of Congress believed

that that would be the most common application of the

statute — giving land to landless Indians would enable

them to farm or work in stock grazing or forestry opera-

tions — but 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. See, e.g.,

S.Rep. No. 1080, at 2; 78 Cong. Rec. 11,732 (statement of

Rep. Howard that a long-term goal is “to build up Indian

land holdings until there is sufficient land for all Indians

who will beneficially use it”).°

Accordingly, we conclude that an intelligible principle

exists in the statutory phrase “for the purpose of providing

land for Indians” when it is viewed in the statutory and

historical context of the IRA. The statutory aims of provid-

ing lands sufficient to enable Indians to achieve self-

support and ameliorating the damage resulting from the

prior allotment policy sufficiently narrow the discretionary

authority granted to the Department. We therefore affirm

the grant of summary judgment for the Department on the

nondelegation doctrine challenge.

* We have also previously concluded that the language and

legislative history did not limit the application of § 465 to landless

Indians. Chase, 573 F.2d at 1015-16.

App. 15

B.

We turn, then, to a review of the Secretary’s action

approving the taking of the 91 acres into trust. We review

the agency action under the APA. 5 U.S.C. §§ 701-706.°

“When reviewing the district court’s opinion upholding the

administrative agency’s decision, this court must render

an independent decision on the basis of the same adminis-

trative record as that before the district court.” United

States v. Massey, 380 F.3d 437, 440 (8th Cir.2004). We will

set aside the agency action if the Secretary acted in a

manner that is “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). When we apply an agency regulation, “we

accord substantial deference to an agency’s interpretation

of its own regulation,” unless the regulation violates the

Constitution or a federal statute, “or unless the interpreta-

tion is ‘plainly erroneous or inconsistent with the regula-

tion.’” Coalition for Fair & Equitable Reg., 297 F.3d at

778.

As the reviewing court, we engage in a substantial

inquiry, based on an examination of the administrative

record, in order to answer three questions: (1) whether the

Secretary acted within the scope of his authority, Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415,

91 S.Ct. 814, 28 L.Ed.2d 136 (1971); (2) whether the

decision was “based on a consideration of the relevant

* Such review of agency action is appropriate in most circum-

stances, absent the applicability of two narrow exceptions: where there

is a statutory prohibition on review or where agency action is commit-

ted to agency discretion by law. Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); 5

U.S.C. § 701. Neither of these exceptions applies here.

App. 16

factors,” Id. at 416, 91 S.Ct. 814; and (3) whether the

Secretary “follow[ed] the necessary procedural require-

ments.” Jd. at 417, 91 S.Ct. 814. Here, the Secretary acted

within the scope of his authority, for, as quoted above,

§ 465 specifically authorizes the Secretary to take land

into trust for Indians. The more relevant questions on

review are whether he considered the relevant factors and

followed the necessary procedural requirements.

We are to make a searching inquiry into the facts,

examining the full administrative record, 5 U.S.C. § 706,

but we do not substitute our judgment for that of the

agency, South Dakota v. Ubbelohde, 330 F.3d 1014, 1031

(8th Cir.2003), even if the evidence would have also

supported the opposite conclusion. Harrod v. Glickman,

206 F.3d 783, 789 (8th Cir.2000). We ask whether the

agency “‘articulateld] a rational connection between the

facts found and the choice made.’” Ubbelohde, 330 F.3d at

1031 (quoting Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 288, 95 S.Ct. 438, 42

L.Ed.2d 447 (1974)); see also Motor Vehicle Mfrs. Ass’n of

the United States, Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 48, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)

(stating that “an agency must cogently explain why it has

exercised its discretion in a given manner”). We will not

try to identify failures in clarity or detail, State Farm, 463

U.S. at 43, 103 S.Ct. 2856, and will reverse “only when

there is no rational basis for the policy choice.” Ubbelohde,

330 F.3d at 1032. In other words, the agency need not

exhaustively analyze every factor, but must base its

determination “upon factors listed in the appropriate

regulations” and must use a “reasonable interpretation of

the regulation and the statute” in reaching its conclusion.

Harrod, 206 F.3d at 788. The burden is on the plaintiff to

App. 17

prove that the agency’s action was arbitrary and capri-

cious. Massey, 380 F.3d at 440.

The State challenges the adequacy of the Depart-

ment’s consideration of several of the required factors. In

order to meet its burden of proof, however, it must present

evidence that the agency did not consider a particular

factor; it may not simply point to the end result and argue

generally that it is incorrect. The regulations established

by the Department to implement the IRA are binding, and

they establish the process that the Secretary must follow

in deciding whether to take land into trust, 25 C.FR.

§§ 151.10 and 151.11, thereby guiding our inquiry.

For an off-reservation acquisition, described in 25

C.F.R. § 151.11, the Secretary must consider all but one of

the factors in 25 C.F.R. § 151.10 (considerations for on-

reservation acquisitions) plus three additional considera-

tions. The State claims that the following criteria in

§ 151.10 were not properly considered:

(b) The need of the individual Indian or the

tribe for additional land;

(c) The purposes for which the land will be

used;

(e) If the land to be acquired is in unrestricted

fee status, the impact on the State and its politi-

cal subdivisions resulting from the removal of the

land from the tax rolls;

(f) Jurisdictional problems and potential con-

flicts of land use which may arise.

The State also argues that § 151.11(b) was not ade-

quately analyzed. This provision states: (b) The location of

App. 18

the land relative to state boundaries, and its distance from

the boundaries of the tribe’s reservation, shall be consid-

ered as follows: as the distance between the tribe’s reser-

vation and the land to be acquired increases, the Secretary

shail give greater scrutiny to the tribe’s justification of

anticipated benefits from the acquisition. ...

The record reveals that the Department extensively

reviewed the Tribe’s application and the objections raised

in the State’s response. In light of the complex history of

the case, the Secretary’s final decision was issued by the

Assistant Secretary of Indian Affairs rather than by the

BIA’s Regional Director. The Regional Director had rec-

ommended final approval, stating that the Tribe would

greatly benefit economically and setting forth a brief

review of each of the relevant provisions in 25 C.F R.

§§ 151.10 and 151.11. App. 227-33. The Acting Deputy

Commissioner of Indian Affairs noted several deficiencies

in the application and asked the Regional Director for a

more detailed analysis of several factors. Id. at 234-35.

The Regional Director submitted another memorandum

and reconfirmed her recommendation. Jd. at 236-39. The

Director of the Office of Trust Responsibilities, through the

Deputy Commissioner of Indian Affairs, then provided a

memorandum in support of the Assistant Secretary’s

decision to take the land into trust that included a detailed

analysis of the factors in the regulations. Jd. at 242-48.

We conclude that the Secretary reasonably and

appropriately evaluated the relevant factors. The agency

“articulate[d] a rational connection between the facts

found and the choice made,” Ubbelohde, 330 F.3d at 1031

(quotation omitted), for each of the regulatory provisions,

and we do not require precise explanations that respond to

every contention. The record supports the conclusion that

App. 19

the expressed rationale in the Secretary’s conclusions was

consistent with the facts.

In analyzing the Tribe’s need for the additional land,

25 C.F.R. § 151.10(b), the Regional Director expressed her

belief that the particular tract of land would greatly

enhance the Tribe’s economic base and its ability to be self-

sufficient, thereby serving the purposes of the IRA. App.

236-37. The memorandum accompanying the final decision

also emphasized that the Tribe had great need for addi-

tional income and stated that “[t]he location of the land,

adjacent to Interstate No. 90, makes it more attractive to

business and would enhance the tribes [sic] economic

rehabilitation and support self sufficiency.” Jd. at 245. The

Tribe asserted that the protections of trust status were

essential to facilitate growth in tribal industry and ensure

the use of the land for future generations. Jd. at 192. We

agree with the district court that it would be an unreason-

able interpretation of 25 C.F.R. § 151.10(b) to require the

Secretary to detail specifically why trust status is more

beneficial than fee status in the particular circumstance.

South Dakota III, 314 F.Supp.2d at 943. It was sufficient

for the Department’s analysis to express the Tribe’s needs

ana conclude generally that IRA purposes were served. Its

conclusion that the Tribe needed the land to be taken into

trust was therefore reasonable.

The Tribe made its purpose for the land clear through

its business plan and the comprehensive plan for the

entire corridor of the Native American Scenic Byway. It

expressed its intent to establish a means of attracting

heritage tourism to its reservation by building an informa-

tion center and southern terminal entrance to the Native

American Scenic Byway on the 91l-acre parcel. App. 82C.

The business plan described a display that would include a

App. 20

“circle of teepees” to represent the seven Sioux tribes

located within South Dakota and that would attract

visitors to the historical byway. Jd. It was reasonable for

the Secretary to accept the Tribe’s representations in his

analysis of 25 C.F.R. § 151.10(c). Id. at 246. In addition,

the Secretary was not required to seek out further evi-

dence of possible gaming purposes in light of the Tribe’s

repeated assurances that it did not intend to use the land

for gaming” and the December 15, 1998, letter from then-

Governor Janklow that expressed his support for the

acquisition and which stated that he had been assured

“that the Tribe [would] not conduct gaming” on the land.

Id. at 204.

Because the Tribe owned the land in unrestricted fee

status prior to its application for trust status, the Secre-

tary also evaluated the impact of the loss of taxes on the

State in accordance with 25 C.F.R. § 151.10(e). The Secre-

tary found that the county and city would lose $2,587.02 in

taxes, and expressed his belief that the amount was

insignificant in light of the great benefit to the Tribe." /d.

at 238, 246-47. The State argues that its potential loss

would be much higher if the land, which currently houses

no businesses, were developed, and contends that the

Secretary should have to consider such potential loss. We

"* The Tribe also acknowledged that if it were later to seek to allow

gaming on the land, it would fully comply with the additional applica-

tion and approval requirements in the Indian Gaming Regulatory Act

(IGRA), 25 U.S.C. §§ 2701-2721. App. 197-98.

" The Tribe additionally asserted that it expected its plan to

increase tourism in the area and therefore believed that the city’s

businesses would benefit from the increased traffic, offsetting “any loss

in property taxes” resulting from the land being taken into trust. App.

241.

App. 21

disagree, and we adopt the district court’s reasoning that

it is a reasonable interpretation of the regulation to

require consideration of the tax impact only in relation to

the manner in which the land was being used at the time

of the application. South Dakota III, 314 F.Supp.2d at 945.

It was also appropriate for the Secretary to conclude

that no serious jurisdictional problems were likely to

result from taking the land into trust. The Secretary

appropriately considered the availability of law enforce-

ment services, noting that the BIA would provide such

services, as it does within the Lower Brule Reservation,

and indicating that the Tribe had expressed its intent to

pay for any additional services received from the City of

Oacoma. App. 238, 247. Moreover, we cannot say that it

was inappropriate for the Secretary to take into account

the fact that apparently no jurisdictional problems had

resulted from the Tribe’s acquisition in 1995 of some 3,400

acres of land lying west of the Lower Brule Reservation.

Id. at 247.

Finally, although the memoranda did not specifically

mention 25 C.F.R. § 151.11(b), the provision concerning the

location of the acquired land in relation to state and tribal

boundaries, we cannot say that the Secretary failed to

consider it. The distance between the reservation and the

91 acres is not so great as to make the land’s connection to

the reservation illogical or to require more exacting

scrutiny of the Tribe’s intent. As indicated earlier, the

property is located some seven to eight miles south of the

Tribe’s reservation. That distance, considering the circum-

stances of rural central South Dakota, is of no great

significance, and the tract’s location in close proximity to

Interstate 90, the major east-west route across the state,

holds the greatest potential for the accomplishment of the

App. 22

Tribe’s goals. The Secretary acknowledged the distance of

the land from the exterior boundaries of the reservation,

and his discussion of the location of the property reflected

his adequate consideration of § 151.11(b).

Accordingly, we conclude that the Secretary’s action

was not arbitrary, capricious, or an abuse of discretion,

and we affirm the grant of summary judgment in favor of

the Department.

ITI.

In addition to claiming that the Secretary acted

arbitrarily, the State also raises a separate claim that the

district court erred in not allowing supplementation of the

record with evidence that the Tribe’s actual intended use

for the property is that of conducting gaming operations.

We will defer to the district court’s conclusion that the

administrative record contained sufficient information

“absent a gross abuse of discretion.” Voyageurs Nat'l Park

Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir.2004). The

State argues that the district court could not determine

whether the agercy properly analyzed the factors without

examining the State’s proffered additional evidence. “A

federal court is confined to the administrative record in

deciding an appeal under the APA,” Maxey v. Kadrovach,

890 F.2d 73, 77 (8th Cir.1989); see also Newton County

Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir.1998),

in order to “preclude[] the reviewing court from conducting

a de novo trial and substituting its opinion for that of the

agency.” Voyageurs, 381 F.3d at 766. The very narrow

exceptions to this rule “apply only under extraordinary

circumstances” in which a strong showing can be made

that the record is so incomplete as to preclude effective

App. 23

judicial review or that there is clear bad faith or improper

behavior. Jd. No such extraordinary circumstances are

present here.

The State has failed to show that the Secretary’s

actions evidenced bad faith sufficient to justify the sup-

plementation. If there is any evidence of bad faith at all, it

“falls short of the strong showing of bad faith or improper

behavior necessary to permit discovery and supplementa-

tion of the administrative record.” Maxey, 890 F.2d at 77.

In his September 25, 1997, letter to the BIA, the Tribal

Chairman stated that it was not the Tribe’s current

intention to use the land for gaming. The letter further

stated that if gaming was eventually considered, “our

Council has passed a resolution indicating that we would

adhere to the provisions of the Indian Gaming Regulatory

Act (IGRA).”” App. 82. As. indicated above, the Tribe’s

December 1997 business plan for the land more specifi-

cally detailed its purposes and intended use for the land.

Likewise, in its May 20, 1998, response to the State’s

objections, the Tribe reasserted its commitment not to use

the land for gaming, again noting that IGRA ensured that

it could not change its mind without additional state and

federal approval. Jd. at 197.

We conclude that the district court did not err in

finding that the Tribe’s consistent representations that it

did not intend to use the land for gaming constituted

* IGRA establishes that a tribe must meet additional requirements

before it may use off-reservation land for gaming purposes. 25 U.S.C.

§ 2719. Even if the tribe obtained the land in trust for a non-gaming

purpose and then changed its mind, it would still have to comply with

the requirements detailed in IGRA before it could do so. /d.; see also 64 -

Fed.Reg. 17,578 (Apr. 12, 1999).

App. 24

sufficient evidence to support the Secretary’s conclusion in

that regard and that there was thus no need to supple-

ment the record.

The judgment is affirmed.

App. 25

314 F.Supp.2d 935

United States District Court, D. South Dakota,

Central Division.

State of SOUTH DAKOTA, City of Oacoma,

and Lyman County, Plaintiffs,

v.

UNITED STATES DEPARTMENT OF the

INTERIOR; Aurene Martin, Acting Assistant

Secretary-Indian Affairs; Bill Benjamin, Acting

Regional Director, Great Plains Regional Office, BIA;

and Cleve Her Many Horses, Superintendent,

Lower Brule Agency, BIA, Defendants.

No. CIV. 00-3026-RHB.

April 19, 2004.

John Pl. [sic] Guhin, Pierre, SD, Paul E. Jensen,

Oacoma/Lyman Co., Winner, SD, for Plaintiff.

Cheryl Schrempp Dupris, Pierre, SD, Judith Rabi-

nowitz, Juneau, AK, for Defendant.

MEMORANDUM OPINION AND ORDER

BATTEY, District Judge.

The state of South Dakota, city of Oacoma, and Lyman

County (“plaintiffs”), filed suit in this Court seeking

declaratory and injunctive relief to prevent the defendants

(“Interior”) from taking a 91-acre parcel of land (“Oacoma

parcel”) into trust for the Lower Brule Sioux Tribe (“the

Tribe”) pursuant to Section 5 of the Indian Reorganization

Act of 1934 (“IRA”), 25 U.S.C. § 465. Plaintiffs claim that

the unfettered authority bestowed upon the Secretary of

the United States Department of the Interior (“Secretary”

or “Agency”) via 25 U.S.C. § 465 equates to an unconstitu-

tional delegation of legislative authority to the executive

App. 26

branch. In the alternative, plaintiffs contend that the

decision to take the Oacoma parcel into trust was arbi-

trary and capricious because the Agency failed to consider

the requisite factors as listed in 25 C.F.R. pt. 151.

Interior argues that 25 U.S.C. § 465 is constitutional

because the text and underlying policy of the statute

establish sufficient boundaries on the Secretary’s discre-

tion and intelligible principles for courts to consider when

reviewing a decision by the Secretary under Section 5.

Interior also maintains that the decision was a reasonable

one made after considering all relevant factors. Accord-

ingly, Interior asks the Court to declare § 465 constitu-

tional and affirm the Agency’s decision to take the Oacoma

land into trust.

PROCEDURAL HISTORY

In 1990, the Tribe filed an application with the Secre-

tary to have the Oacoma parcel taken into trust pursuant

to 25 U.S.C. § 465. The Tribe’s application was subse-

quently approved. The state of South Dakota and city of

Oacoma appealed the decision to the Interior Board of

Indian Appeals; however, the appeals board dismissed the

appeal claiming it lacked jurisdiction to review decisions of

the Assistant Secretary — Indian Affairs. On November 30,

1992, the Oacoma parcel was transferred into trust for the

Tribe.

After the adverse decision by the Interior Board of

Indian Appeals, the state and city filed suit in this Court

requesting review of the Agency’s decision. This Court

determined that it was without jurisdiction to review the

decision for the reason that the Quiet Title Act, 28 U.S.C.

§ 2409a, forbids suits under the Administrative Procedures

App. 27

Act, 5 U.S.C. § 706, when plaintiffs, who do not claim a

property interest in land, seek review of a decision of the

Secretary to take land into trust for Indians pursuant to

25 U.S.C. § 465. South Dakota v. United States Dep’t of the

Interior, CIV. 92-3023 (D.S.D.1994). This Court also

concluded that 25 U.S.C. § 465 was not an unconstitu-

tional delegation of legislative power to the executive

branch. The state and city then appealed that decision to

the Eighth Circuit Court of Appeals. The Eighth Circuit

panel, in a plurality opinion with Judge Diana Murphy

writing a dissenting opinion, determined that 25 U.S.C.

§ 465 equated to an unconstitutional delegation of legisla-

tive power and reversed this Court’s decision. South

Dakota v. United States Dep’t of the Interior, 69 F.3d 878

(8th Cir.1995) (““Oacoma I”). Interior then filed a petition

for a writ of certiorari with the United States Supreme

Court. The Supreme Court granted Interior’s writ, vacated

the decision of the Eighth Circuit, and remanded the

matter back to the Secretary in light of Interior’s enact-

ment of regulations specifically permitting judicial review

of agency decisions that take land into trust for Indians.

United States Dep't of Interior v. South Dakota, 519 U.S.

919, 117 S.Ct. 286, 1386 L.Ed.2d 205 (1996); see 25 C.F.R.

§ 151.12(b) (stating that title will not transfer for 30 days

when the Secretary decides to take land into trust). On

December 18, 1996, the Eighth Circuit recalled its man-

date, vacated its earlier judgment, and remanded the

matter to this Court. South Dakota v. United States Dep't

of the Interior, 106 F.3d 247 (8th Cir.1996). On December

24, 1996, this Court, complying with the Circuit Court’s

order, remanded the matter to the Agency for reconsidera-

tion of its decision. Accordingly, the Oacoma parcel was

removed from trust status effective December 24, 1996.

App. 28

FACTS

On September 9, 1997, the Tribe issued Resolution 97-

408 requesting that Interior take the Oacoma parcel into

trust. Administrative Record (“AR”) 17. A copy of the

resolution was forwarded to the Office of the Solicitor in

Washington, D.C., however, a letter by Interior indicated

the Tribe needed to complete an amended resolution

setting forth the purposes for which the land will be used.

AR 20. A supplemental resolution was issued on Septem-

ber 25, 1997, stating that the Oacoma land will be used “to

enhance the economic development of the tribe, and to

provide a nexus to the Oacoma area which is of historical

importance to the tribe.” AR 29.

On February 12, 1998, the acting superintendent of

the Bureau of Indian Affairs (“BIA”), Lower Brule Agency,

sent letters to plaintiffs notifying them that the Tribe

submitted an application to have the Oacoma parcel

placed in trust and solicited comments from plaintiffs on

the application. AR 311-21. On March 13, 1998, the state

issued a letter in opposition to the Tribe’s application. AR

326-618. The city and county submitted a similar letter on

that same date. AR 619-744. The Tribe then issued a letter

to the acting superintendent in response to plaintiffs’

letters. AR 774-822.

On June 30, 1999, the regional director of the Great

Plains Regional Office of the BIA Office of Trust Responsi-

bilities, recommended that the acting secretary place the

Oacoma parcel in trust status. AR 837. Upon review,

however, the regional director noted that there were

numerous deficiencies in the Tribe’s application. AR 930-

44. To this end, the BIA informed the regional director

that additional information and further elaboration on

App. 29

various factors was needed before the BIA could process

the Tribe’s application. AR 1259-60. On February 18, 2000,

the regional director issued a memorandum decision

purporting to comply with the BIA’s request for additional

analysis of the Tribe’s application. AR 1271-74. The re-

gional director also recommended the deputy commis-

sioner of indian affairs grant trust status to the Oacoma

parcel. Jd. Finally, after requesting and receiving addi-

tional information relevant to the application, the BIA

issued a memorandum substantively addressing the 25

C.F.R. pt. 151 factors that the Secretary is required to

evaluate when considering whether an application for fee-

to-trust status should be granted. AR 1391-97. In concur-

rence, the deputy commissioner determined that title to

the Oacoma parcel should be transferred to the United

States in trust for the Tribe. AR 1397. On May 18, 2000,

Interior published in the Federal Register notice of its

intent to transfer the Oacoma parcel into trust for the

Tribe. AR 1409-10; see 65 Fed.Reg. 31,594 (Dep't of the

Interior May 18, 2000).

On June 16, 2000, plaintiffs filed suit against Interior,

requesting declaratory and injunctive relief to prevent

transfer of the property into trust for the Tribe. AR 1421-

44. After litigation commenced, this Court stayed the

matter pending completion of an environmental assess-

ment. On December 14, 2000, in accordance with the

environmental assessment, the deputy commissioner

issued a finding of no significant impact (“FONSI”). AR

1484. A Notice of Availability was then posted at the

Tribe’s office and published in The Chamberlain-Oacoma

Register weekly newspaper. AR 1551, 1553. On January

18, 2001, the deputy assistant secretary ratified its earlier

decision to include information on the environmental

App. 30

assessment and FONSI. AR 1559. The notice of ratification

decision was published in the Federal Register on January

26, 2001. AR 1566-67.

On March 19, 2001, plaintiffs submitted an amended

complaint. Then, on July 23, 2001, the Tribe filed a motion

to intervene in this matter. This Court denied the Tribe’s

motion to intervene. The Tribe appealed that Order and

the denial of intervention was affirmed by the Eighth

Circuit Court of Appeals. South Dakota v. United States

Dep't of the Interior, 317 F.3d 783 (8th Cir.2003). Plaintiffs

filed a motion for summary judgment on June 16, 2003.

Interior filed a cross-motion for summary judgment on

December 15, 2003. On January, 21, 2004, the Tribe filed a

brief of amicus curiae in support of Interior’s motion for

summary judgment.

SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Proce-

dure, a movant is entitled to summary judgment if the

movant can “show that there is no genuine issue as to any

material fact and that [the movant] is entitled to a judg-

ment as a matter of law.” In determining whether sum-

mary judgment should issue, the facts and inferences from

those facts are viewed in the light most favorable to the

nonmoving party, and the burden is placed on the moving

party to establish both the absence of a genuine issue of

material fact and that such party is entitled to judgment

as a matter of law. See Fed.R.Civ.P. 56(c); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106

S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Once the moving

party has met this burden, the nonmoving party may not

rest on the allegations in the pleadings, but by affidavit or

App. 31

other evidence must set forth specific facts showing that a

genuine issue of material fact exists. See Fed.R.Civ.P.

56(e); Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356.

“Only disputes over facts that. might affect the out-

come of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson uv.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

2510, 91 L.Ed.2d 202 (1986). The Supreme Court has

instructed that “[s)ummary judgment procedure is prop-

erly regarded not as a disfavored procedural shortcut, but

rather as an integral part of the Federal Rules as a whole,

which are designed ‘to secure the just, speedy and inex-

pensive determination of every action.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91

L.Ed.2d 265 (1986) (citations omitted). The nonmoving

party “must do more than simply show that there is some

metaphysical doubt as to the material facts,” and “[w]here

the record taken as a whole could not lead a rational trier

of fact to find for the non-moving party, there is no ‘genu-

ine issue for trial.’” Matsushita, 475 U.S. at 586-87, 106

S.Ct. at 1356 (citation omitted).

The teaching of Matsushita was further articulated by

the Supreme Court in Eastman Kodak Co. v. Image

Technical Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072,

2083, 119 L.Ed.2d 265 (1992), where the Court said,

“Matsushita demands only that the nonmoving party’s

inferences be reasonable in order to reach the jury, a

requirement that was not invented, but merely articu-

lated, in that decision.” The Court expounded on this

notion by reiterating its conclusion in Anderson that,

“{slummary judgment will not lie ... if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Eastman Kodak, 504 U.S. at 468 n. 14,

App. 32

112 S.Ct. at 2083 n. 14 (quoting Anderson, 477 U.S. at 248,

106 S.Ct. at 2510). To survive summary judgment the

evidence must reasonably tend to prove the plaintiff’s

theory. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S.

752, 768, 104 S.Ct. 1464, 1473, 79 L.Ed.2d 775 (1984).

DISCUSSION

Plaintiffs have raised two issues for review by the

Court: (1) whether the decision to grant trust status was

arbitrary and capricious; and (2) whether Section 5 of the

IRA, 25 U.S.C. § 465, is an unconstitutional delegation of

legislative authority. Interior disputes plaintiffs’ claims.

The Court treats the claims in plaintiffs’ amended com-

plaint that were not addressed in the summary judgment

briefs as conceded.

ARBITRARY AND CAPRICIOUS

This Court reviews agency action under the Adminis-

trative Procedures Act to determine whether it is “arbi-

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A) (1994). When

determining whether an agency’s decision is arbitrary and

capricious the Eighth Circuit has stated:

[T]he court must consider whether the decision

was based on a consideration of the relevant fac-

tors and whether there has been a clear error of

judgment. Although this inquiry into the facts is

to be searching and careful, the ultimate stan-

dard of review is a narrow one. The court is not

empowered to substitute its judgment for that of

the agency.

App. 33

South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th

Cir.2003) (quoting Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 214, 823-24, 28

L.Ed.2d 136 (1971), overruled on unrelated grounds by

Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984,

51 L.Ed.2d 192 (1977)). In order for the agency’s decision

to pass scrutiny it must explain a rational connection

between the choice made and the facts found. Jd. (citations

omitted). “[A] court may find an action to be arbitrary and

capricious only when there is no rational basis for the

policy choice.” Jd. at 1032.

25 C.F.R. § 151.1 “set[s] forth the authorities, policy,

and procedure governing the acquisition of land by the

United States in trust status for individual Indians and

tribes.” The relevant section of these regulations is 25

C.F.R. § 151.11, which deals with off-reservation acquisi-

tions of land. Section 151.11 sets forth the criteria the

Secretary must consider when determining whether a

request for the acquisition of land in trust should be

granted. It also expressly incorporates for consideration

several of the criteria listed in § 151.10. See 25 C.F.R.

§ 151.11(a) (indicating that the criteria listed in

§ 151.10(a) through (c) and (e) through (h) shall also be

considered by the Secretary).

Plaintiffs object to the Agency’s decision to grant that

Tribe’s application for a variety of reasons. These objec-

tions include: (1) the analysis of the criteria listed in 25

C.F.R. §§ 151.10 and 151.11 was flawed because it failed to

address relevant evidence and failed to explain how the

facts found supported the choice made, (Pls.’ Br. Supp.

Summ. J. at 34); (2) the decision failed to discuss

§ 151.3(A)(3), which in this case specifically pertains to the

finding that acquisition of the land will facilitate economic

App. 34

development of the Tribe, Jd. at 53; (3) the decision was a

clear error in judgment, Jd. at 54; (4) the decision failed to

adhere to the process which was promised to the Supreme

Court, Jd. at 55; (5) the construction of the Circle of Tipis

obviates the need to place the land in trust status, Id. at

60; and (6) there is no evidence supporting the decision to

place in trust status the acreage in excess of the nine acres

on which the Circle of Tipis sits, Jd. Interior contends the

Agency’s decision was reasonable and is supported by both

the memorandum decision and the Administrative Record.

(Defs.’ Mem. Opp. Summ. J. at 1-24.)

25 C.F.R. § 151.10(b)

Subsection 151.10(b) states that the Secretary shall

consider “(t]he need of the individual Indian or the tribe

for additional land.” The Secretary indicated that the

Tribe needed the Oacoma parcel “to diversify the tribe’s

economic development, expand their [sic] trust land base,

and to generate much needed income for the Lower Brule

Sioux Tribe for use in providing services to tribal mem-

bers.” AR 1394. The Secretary further said that the land

currently encompassed by the Lower Brule Sioux Indian

Reservation: (1) is diminished in size from what it once

was; (2) includes approximately 27,137 acres of wasteland;

and (3) includes approximately 40,000 acres of land owned

by non-Indians. Jd. The Secretary also noted that the

Oacoma parcel is “more attractive to business[es] and

would enhance the tribe[’]s economic rehabilitation and

support self-sufficiency.” Jd. Plaintiffs argue, however, that

the analysis of this criterion was incomplete because the

Secretary failed to discuss why the Tribe needs to hold the

Oacoma parcel in trust.

App. 35

Plaintiffs assert that “25 C.F.R. § 151.10(b) demands

that the ‘Governing Decision’ consider the ‘need of the

tribe for additional land’ to be in trust.” (Pls.’ Br. Supp.

Summ. J. at 39.) They further claim that the Tribe already

owns the land in fee and that form of ownership is suffi-

cient for the purposes in which they plan to use the land.

(Pls.’ Br. Supp. Summ. J. at 39.) In reading § 151.10(b),

however, there is no mention of the word “trust,” nor is

there any indication that the Secretary must evaluate an

applicant’s request in such a manner.

Plaintiffs are essentially arguing that the Secretary's

decision should be reversed because it fails to discuss the

benefits of holding land in trust, as opposed to fee, status.

The IRA, which authorizes the United States to acquire

land in trust for Indians, was enacted for the very reasons

plaintiffs want explained. Most notably, it was enacted “to

safeguard Indian lands against alienation from Indian

ownership and against physical deterioration.” H.R. 7902,

73rd Cong., tit. ITI, § 1 (1934); see also Chase v. McMasters,

573 F.2d 1011, 1016 (8th Cir.1978) (stating the purpose of

the IRA is to rehabilitate the Indian’s economic viability

and halt the loss of their lands that occurred as a result of

an inability to manage allotted land). Plaintiffs expansive

reading of §151.10(b) is unpersuasive. Regulation

§ 151.10(b) requires that the Secretary must merely

explain why the Tribe needs the additional land. As

indicated above, and as evidenced in the Secretary’s

decision, the Secretary listed several reasons why the

Tribe needs the Oacoma parcel. To require the Secretary to

discuss the history and purpose of the IRA each time the

United States is requested to take land into trust for an

individual Indian or tribe is not required and would be

unnecessary. Thus, the memorandum decision satisfactorily

App. 36

indicates that the Secretary reasonably considered the

criterion listed in § 151.10(b). There is a rational basis for

this decision.

25 C.F.R. § 151.10(c)

Subsection 151.10(c) states that the Secretary shall

consider “[t]he purposes for which the land will be used.”

The Secretary stated that the land was originally sched-

uled to promote economic development through the con-

struction of an industrial park. AR 1395. The Tribe has

since proposed that the land will be used as a Native

American Scenic Byway (“Byway”). Id. The opinion also

notes that the Tribe submitted a business plan for the

Byway project and that the Tribe is awaiting federal

funding. Jd. Plaintiffs argue that the Secretary’s discus-

sion of subsection (c) is deficient because it did not address

contentions submitted by plaintiffs and because “it did not

consider the high probability that the tribe plans to use

the land for gambling.” (Pls.’ Br. Supp. Summ. J. at 44-47.)

On December 15, 1998, the Honorable William Jank-

low, then Governor of the State of South Dakota, sent a

letter to the Secretary stating that he supports the Tribe’s

new business plan in light of its assurances that it would

not conduct gaming on the Oacoma parcel. AR 827. The

Secretary made note of this letter in the memorandum

decision (AR 1395), however, plaintiffs claim this “glancing

allusion” is insufficient for purposes of determining

whether “the agency has found that gambling is an in-

tended use.” (Pls.’ Br. Supp. Summ. J. at 45-47.) In support

of this contention, plaintiffs reference several statements

by Tribe Chairman Michael Jandreau that indicate gam-

ing on the Oacoma parcel is a consideration. /d.

App. 37

Although a reviewing court “may not supply a rea-

soned basis for the agency’s action that the agency itself

has not given,” the court “will uphold a decision of less

than ideal clarity if the agency’s path may reasonably be

discerned.” Mausolf v. Babbitt, 125 F.3d 661, 667 (8th

Cir.1997) (citation omitted). Additionally, “[i]f the adminis-

trative record contains evidence that supports the posi-

tions of both the agency and the party seeking relief, the

agency is entitled to rely on its experts’ tests and observa-

tions, and decisions made in such reliance are not arbi-

trary and capricious.” Cent. S.D. Coop. Grazing Dist. v.

Sec’y of the United States Dep't of Agric., 266 F.3d 889, 899

(8th Cir.2001) (citation omitted). The Secretary addressed

the purposes for which the Tribe intends to use the

Oacoma parcel. The Secretary also noted that the letter

from Governor Janklow indicated the Tribe assured him

that they would not conduct gaming on the land. It ap-

pears to this Court that what the Secretary is indicating is

that it does not consider gaming to be a purpose for which

the land will be used. Furthermore, even though there is

evidence in the record that indicates the Tribe considered

conducting gaming on the Oacoma parcel, it does not

overshadow the purposes expressly set forth in the Tribe’s

business plan. See Carcieri v. Norton, 290 F.Supp.2d 167,

i78 (D.R.1.2003) (affirming agency’s decision to take land

into trust even though there was evidence in the record

that indicated the land might be used for gambling pur-

poses); see also City of Lincoln City v. United States Dep’

of Interior, 229 F.Supp.2d 1109, 1124 (D.Or.2002) (stating

that the Secretary “does not have the authority to impose

restrictions on a Tribe’s future use of property taken into

trust, or to acquire fee-to-trust property conditionally”).

App. 38

The Indian Gaming Regulatory Act, 25 U.S.C.

§§ 2701-2721, permits gaming on lands acquired in trust if

the Secretary, and the governor of the state where the

gaming is to take place, determine that it “would be in the

best interest of the Indian tribe and its members, and

would not be detrimental to the surrounding community.”

25 U.S.C. §2719%a). Plaintiffs draw attention to the

possibility the Tribe may conduct gaming on the Oacoma

parcel by referencing the statements of Chairman Jan-

dreau and Governor Janklow. The possibility the Tribe

may conduct gaming on the Oacoma parcel, however, is

irrelevant to the present discussion concerning the Secre-

tary’s decision to take the land into trust. Although gam-

ing on the Oacoma parcel may develop into a cognizable

issue between the parties, it is a matter that must be

addressed on another day. See 25 U.S.C. § 2719(c) (stating

that “[nJothing in this section shall affect or diminish the

authority and responsibility of the Secretary to take land

into trust”). It should be noted, however, that this Memo-

randum Opinion is not to be construed as endorsing or

permitting gaming on the Oacoma parcel. Thus, the

memorandum decision satisfactorily indicates that the

Secretary reasonably considered the criterion listed in

§ 151.10(c). There is a rational basis for this decision.

25 C.F.R. § 151.10(e)

Subsection 151.10(e) states that “[i]f the land to be

acquired is in unrestricted fee status, [the Secretary shall

consider] the impact on the State and its political subdivi-

sions resulting from the removal of the land from the tax

rolls.” The Secretary noted that the Oacoma parcel gener-

ates $2,587.02 in tax revenue for plaintiffs. AR 1396. The

Secretary determined that the loss of such revenues would

App. 39

not have a significant impact on the local governments. Jd.

Plaintiffs argue that this analysis is insufficient because

the decision failed to take into account plaintiffs’ proposed

losses to the local governments if a truck stop or residen-

tial properties were to occupy the land. (Pls.’ Br. Supp.

Summ. J. at 47-48.) Again, this Court finds such argument

immaterial to the Secretary’s decision.

Plaintiffs submitted to the Secretary an analysis of

the tax losses if there were businesses on the Oacoma

parcel. In the memorandum decision, however, the Secre-

tary reported that there are no businesses on the Oacoma

parcel. Plaintiffs’ assertion that the memorandum decision

was arbitrary and capricious because it did not include the

projected tax losses if hypothetical businesses were later

constructed on the Oacoma parcel is without merit. A

reasonable interpretation of section 151.10(e) is that the

Secretary must consider the impact of removing the land

from the tax rolls at the time the application is filed. It

would be illogical to require the Secretary to speculate as

to every possible economic use for land that an applicant is

requesting the Secretary place in trust. See Lincoln City,

229 FSupp.2d at 1125 (stating that the BIA need not

speculate about revenues from potential ventures). Thus,

the memorandum decision satisfactorily indicates that the

Secretary reasonably considered the criterion listed in

§ 151.10(e). There is a rational basis for this decision.

25 C.F.R. § 151.10(f)

Subsection 151.10(f) states that the Secretary shall

consider the “[jjurisdictional problems and potential

conflicts of land use which may arise.” In the memoran-

dum decision, the Secretary noted that the Tribe did not

App. 40

expect any problems or conflicts with the use of the

Oacoma parcel. AR 1396. In support of this conclusion the

Secretary referenced an earlier land acquisition that was

west of the Lower Brule Reservation which did not cause

any problems. Jd. The memorandum also indicates the

BIA will supply law enfertement for the Oacoma parcel.

Id. Plaintiffs claim the memorandum decision is arbitrary

and capricious because it “entirely ignored” the informa-

tion they provided regarding jurisdictional problems. (Pls.’

Br. Supp. Summ. J. at 48.)

“The regulations only require that the BIA undertake

an evaluation of potential problems.” Lincoln City, 229

F.Supp.2d at 1124. The Secretary considered the fact that

minimal problems were created by a previous acquisition

of off-reservation property and that the Tribe did not

expect any problems with the acquisition of the Oacoma

parcel. AR 1396. Thus, the memorandum decision satisfac-

torily indicates that the Secretary reasonably considered

the criterion listed in § 151.10(f). There is a rational basis

for this decision.

25 C.F.R. § 151.10(g)

Subsection 151.10(g) states that “[i]Jf land to be ac-

quired is in fee status, [the Secretary shall consider]

whether the Bureau of Indian Affairs is equipped to

discharge the additional responsibilities resulting from the

acquisition of the land in trust status.” The Secretary

determined that the BIA will be staffed and equipped to

administer the Oacoma property. AR 1396. This includes

assisting in all real estate functions. Jd. The Secretary also

noted that the Great Plains Regional Office will provide

technical support to the Tribe. J¢. Plaintiffs again contend

App. 41

that because the memorandum decision did not included

an exhaustive analysis of the benefits and drawbacks of

placing the land in trust, the Secretary did not consider

the negative effects, and hence, the decision is arbitrary

and capricious. (Pls.’ Br. Supp. Summ. J. at 50-51.)

The Secretary is only required to consider whether the

BIA is equipped to handle the additional duties that will

arise if the property is taken into trust. The Secretary

considered these factors and determined the BIA will be

able to handle these additional duties. Thus, the memo-

randum decision satisfactorily indicates that the Secretary

reasonably considered the criterion listed in § 151.10(g).

There is a rational basis for this decision.

25 C.F.R. § 151.11(b)

Subsection 151.11(b) states:

The location of the land relative to state bounda-

ries, and its distance from the boundaries of the

tribe’s reservation, shall be considered as follows:

as the distance between the tribe’s reservation

and the land to be acquired increases, the Secre-

tary shall give greater scrutiny to the tribe’s jus-

tification of anticipated benefits from the

acquisition. The Secretary shall give greater

weight to the concerns raised pursuant to para-

graph (d) of this section.

The memorandum decision indicates that the consid-

erations set forth in subsection (b) were addressed previ-

ously in the decision. AR 1397. The decision reports that

the Oacoma parcel is not located within the boundaries of

the reservation, but is “approximately eight miles south of

the current Lower Brule Sioux Indian Reservation.” AR

App. 42

1392. Plaintiffs argue that because the Secretary did not

mention the standard set forth in paragraph (b), the

decision to grant the Oacoma parcel trust status is arbi-

trary and capricious. (Pls.’ Br. Supp. Summ. J. at 52-53.)

The memorandum decision establishes that the

Oacoma parcel will help the Tribe better develop its

economy because it is located on the interstate and more

attractive to businesses. AR 1394. Plaintiffs have submit-

ted no information negating the Secretary's finding on this

issue. Thus, the memorandum decision satisfactorily

indicates that the Secretary reasonably considered the

criterion listed in § 151.11(b). There is a rational basis for

this decision.

25 C.F.R. § 151.3(a)(3)

Subsection 151.3(a)(3) states that land may be ac-

quired in trust status for a tribe “[wlhen the Secretary

determines that the acquisition of the land is necessary to

facilitate tribal self-determination, economic development,

or Indian housing.” The Secretary determined that the

Byway will advance the economic growth of the Tribe. AR

1393-94. Plaintiffs argue that the decision is arbitrary and

capricious because it does not analyze the economic

growth of the Oacoma parcel if held in trust status versus

fee status. (Pls.’ Br. Supp. Summ. J. at 53-54.)

The regulation merely requires the Secretary to

“consider” whether the acquisition is “necessary.” Plaintiffs

argue that the decision is deficient because it fails to

explain why helding the land in trust is more beneficial

than holding it in fee. However, the Court has determined

that the Secretary is not required to delve into an in-depth

discussion of the purposes behind enactment of the IRA

App. 43

each time an application to acquire land in trust status is

considered. Thus, the memorandum decision satisfactorily

indicates that the Secretary reasonably considered the

criterion listed in § 151.3(a)(3). There is a rational basis

for this decision.

Clear Error In Judgment

Subsection 151.11(c) states that “[w]here land is being

acquired for business purposes, the tribe shall provide a

plan which specifies the anticipated economic benefits

associated with the proposed use.” Plaintiffs claim the

Secretary's decision is arbitrary and capricious because it

amounts to a clear error of judgment. (Pls.’ Br. Supp.

Summ. J. at 54-55.) In support of this contention plaintiffs

argue the business plan submitted by the Tribe is inade-

quate because it does not include a cost-benefit analysis.

Plaintiffs also point out that the plan could not provide the

agency any guidance because the Secretary noted the plan

was “strictly speculative.”

The Tribe issued a detailed business plan setting forth

the intricacies of the Byway. AR 127-296. The plan also

includes projections on attendance and the economic

impact the Byway will have on the community. AR 289.

The decision reported that the Tribe’s plan was specula-

tive, however, because the plan was created under the

premise the project would receive federal funding from an

agency which may or may not provide funding. AR 1397.

Plaintiffs claim this amounts to a clear error of judgment.

The Court disagrees. Although the plan may not be as

complete as plaintiffs would like, that is not the standard

by which a court reviews agency action. The plan stated

the anticipated economic benefits in conjunction with

App. 44

creation of the Byway. Thus, the memorandum decision

satisfactorily indicates that the Secretary reasonably

considered the criterion listed in § 151.11(c). There is a

rational basis for this decision.

Broken Promises

Plaintiffs also contend the decision should be reversed

because Interior did not adhere to the representations it

made to the Supreme Court. (Pls.’ Br. Supp. Summ. J. at

55-60.) Specifically, plaintiffs claim they were denied due

process because Interior denied them a “full and fair

hearing of its claims.” Jd. at 58. Review of Interior’s

petition for writ of certiorari reveals that Interior’s argu-

ments for remand were based on changes to the regula-

tions which now provide for judicial review of Agency

decisions as they pertain to acquisitions of land in trust.

However, at no place in Interior’s submissions to the

Supreme Court is it indicated that plaintiffs will be

provided a “hearing.” The regulations were amended to

supply state and local governments notice and an oppor-

tunity “to provide written comments as to the acquisition’s

potential impacts on regulatory jurisdiction, real property

taxes and special assessments.” Land Acquisitions, 61

Fed.Reg. 18,082 (Dep’t of the Interior April 24, 1996) (to be

codified at 25 C.F.R. § 151.12(b)). The Secretary provided

plaintiffs notice and an opportunity to submit comments

on the acquisition, which they did. Thus, having found

that Interior complied with the regulations and adhered to

its assertions to the Supreme Court, plaintiffs’ argument is

dismissed as being without merit.

Plaintiffs remaining arguments essentially reiterate

that which they advanced throughout their briefs in

App. 45

support of, and in opposition to, summary judgment.

Plaintiffs contend the decision is deficient in that it fails to

explain why the acreage on which the Circle of Tipis sits,

and the remaining acreage, needs to be placed in trust for

the Tribe. (Pls.’ Br. Supp. Summ. J. at 60-61.) Having

already explained why the Secretary need not explain the

benefits of holding land in trust versus fee status, plain-

tiffs’ arguments are dismissed as being without merit.

Finally, with regard to Interior’s motion for summary

judgment, it is contended that the Secretary’s decision

satisfactorily addressed all relevant criteria as listed in 25

C.F.R. pt. 151. (Def’s Mem. Supp. Summ. J. at 15-30.)

Plaintiffs do not rebut this contention with regard to 25

C.F.R. §§151.10(a), (h), and 151.11(d). Furthermore,

review of these uncontested criteria indicates they were

sufficiently considered by the Secretary, and a rational

conclusion was reached.

CONSTITUTIONALITY OF 25 U.S.C. § 465

A more expansive view of the substantive history of

this matter may reveal the peculiar nature of the issue the

parties contest. This Court addressed the constitutionality

of 25 U.S.C. § 465 when the issue was raised by the state

of South Dakota and city of Oacoma over ten years ago.

South Dakota, CIV. 92-3023 at 19-21. The Court explained

that the policy behind Cungress’s enactment of the IRA

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 economi-

cally and otherwise.” Jd. at 21. Thus, the Court deter-

mined that the general policy and boundaries set forth

were sufficient to guide the Secretary in executing the

App. 46

authority that Congress had delegated. As a result, this

Court held that § 465 was constitutional.

On appeal, the Eighth Circuit reversed that decision.

Writing for the majority, Circuit Judge (now Chief Judge)

Loken, stated that “[t]here are no perceptible ‘boundaries,’

no ‘intelligible principles,’ within the four corners of the

statutory language that constrain this delegated authority

— except that the acquisition must be ‘for Indians.’”

Oacoma I, 69 F.3d at 382. The panel majority remarked

that the Secretarys “actions under § 465 may not be

judicially reviewed because the statute commits them

entirely to agency discretion.” Jd. at 881-82. The court said

that this factor necessitated closer scrutiny of plaintiffs’

contentions. Jd. at 883. The court also remarked that

“(t]he legislative history of § 465 suggests that Congress

did not intend to delegate unrestricted power to acquire

land ‘for Indians.’” Id. The pan»l majority maintained:

Those who drafted § 465 failed to incorporate the

limited purpose reflected in the legislative his-

tory. Presumably, they either drafted poorly or

ignored the delegation issue. The agency that re-

ceived this inartful delegation then used the ab-

sence of statutory controls to claim unrestricted,

unreviewable power. The result is an agency fief-

dom whose boundaries were never established by

Congress, and whose exercise of unrestrained

power is free of judicial review. It is hard to

imagine a program more at odds with separation

of powers principles.

Id. at 884-85.

Dissenting from the majority, Circuit Judge Murphy

remarked that “the Supreme Court has consistently

upheld statutes involving broad delegations of authority.”

App. 47

Id. at 886 (Murphy, J., dissenting). She further remarked

that the delegation doctrine has “evolved into a tool of

statutory construction, by which reviewing courts give

‘narrow constructions to statutory delegations that might

otherwise be thought to be unconstitutional.’” Jd. (quoting

Mistretta v. United States, 488 U.S. 361, 373 n. 7, 109

S.Ct. 647, 655 n. 7, 102 L.Ed.2d 714 (1989)). Finally, with

reference to the majority’s concern that § 465 could con-

ceivably permit the Secretary “to provide a lake home for a

politically faithful tribal officer,” Judge Murphy held that

those fears were insufficient to “strike down an act of

Congress.” Jd. at 889.

After this adverse decision, Interior amended

§ 151.12(b) to provide individuals such as plaintiffs with

notice of administrative decisions to acquire land in trust

pursuant to the IRA. See Land Acquisitions, 61 Fed.Reg.

18,082 (providing for a 30-day waiting period to allow for

judicial review of decision). Interior then filed a writ of

certiorari with the United States Supreme Court request-

ing that the matter be remanded to the Secretary in light

of its provision of notice and time in which parties may

obtain judicial review in such matters. Pet. for Cert. 15.

The Supreme Court granted the writ, vacated the decision

of the Eighth Circuit, and ordered that the case be re-

manded to the Secretary to reconsider his administrative

decision. Interior, 519 U.S. at 919-20, 117 S.Ct. at 286.

Accordingly, after traversing various procedural hurdles at

the administrative level, the issue of whether § 465 is an

unconstitutional delegation of legislative power is again

before this Court.

App. 48

Delegation of Power

Plaintiffs argue § 465 amounts to an unconstitutional

delegation of legislative power because a plain reading of

the statute fails te delineate its “general policy.” They also

assert that the legislative history of § 465 cannot be

referenced when attempting to discern Congress’s “general

policy” because it does not equate to a “legislative act.”

Plaintiffs further contend that the statute is deficient in

that it fails to set “boundaries” on the Secretary’s author-

ity. Consequently, in order to resolves [sic] these issues,

the Court must rely on the rules of statutory construction

and interpret the text and history of § 465 accordingly.

Plaintiffs’ request of the Court to declare § 465 uncon-

stitutional is a grave and delicate duty. Blodgett v. Holden,

275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1928)

(Holmes, J., concurring) (stating that “to declare an Act of

Congress unconstitutional, ... is the gravest and most

delicate duty that this Court is called on to perform”). “The

cardinal principle of statutory construction is to save and

not to destroy.” United States v. Menasche, 348 U.S. 528,

538, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (citation

omitted). Acts of Congress are presumed to be constitu-

tional. Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759,

1771, 114 L.Ed.2d 233 (1991) (citation omitted). Finally,

“ambiguous statutes passed for the benefit of Indian tribes

are to be interpreted in a light most favorable to Indians.”

Chase, 573 F.2d at 1016 (citations omitted).

The United States Constitution provides that “alll

legislative Powers herein granted shall be vested in a

Congress of the United States.” U.S. Const., Art. I, § 1.

With this in mind, the Supreme Court has consistently

held “Congress generally cannot delegate its legislative

App. 49

power to another Branch.” Mistretta, 488 U.S. at 372, 109

S.Ct. at 654 (citing Field v. Clark, 143 U.S. 649, 692, 12

S.Ct. 495, 504, 36 L.Ed. 294 (1892)). This principle, how-

ever, is not designed to “prevent Congress from obtaining

the assistance of its coordinate branches.” Jd. Thus, when

Congress does delegate decision-making authority to an

agency it “must ‘lay down by legislative act an intelligible

principle to which the person or body authorized to [act] is

directed to conform.’” Whitman v. Amn. Trucking Ass’ns,

Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 912, 149 L.Ed.2d 1

(2001) (alteration in original) (quoting J.W. Hampton, Jr.

& Co. v. United States, 276 U.S.:294, 409, 48 S.Ct. 348, 72

L.Ed. 624 (1928)). The “intelligible principle” test is

“constitutionally sufficient if Congress clearly delineates

the general policy, the public agency which is to apply it,

and the boundaries of this delegated authority.’” Mistretta,

488 U.S. at 372-73, 109 S.Ct. at 655 (quoting Amn. Power

& Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91

L.Ed. 103 (1946)).

General Policy

Plaintiffs concede that § 465 sufficiently identifies the

agency that is to apply it. (Pls.’ Br. Supp. Summ. J. at 23.)

Therefore, the only issues are whether the statute sets

forth its “general policy” and the “boundaries” of the

Secretary’s delegated authority. Section 5 of the IRA, 25

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

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relin-

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

terest in Jands, water rights, or surface rights to

lands, within or without existing reservations, in-

cluding trust or otherwise restricted allotments,

App. 50

whether the allottee be living or deceased, for the

purpose of providing land for Indians.

For the acquisition of su h lands, interests in

lands, water rights, and surface rights, and for

expenses incident to such acquisition, 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 Navajo Indian Reservation

for the Navajo Indians in Arizona, nor in New

Mexico, in the event that legislation to define the

exterior boundaries of the Navajo Indian Reser-

vation in New Mexico, and for other purposes, or

similar legislation, becomes law.

The unexpended balarczes 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.

A plain reading of § 465 reveals that it was enacted

“for the purpose of providing land for Indians.” Although

the statute uses “purpose,” instead of “general policy,” to

describe its intention, the Court finds that such alleged

discrepancy does not invalidate the statute. Furthermore,

upon review of the historic context and legislative history

of the IRA, Congress’s “general policy” supporting enact-

ment of § 465 becomes apparent. See Crandon v. United

States, 494 U.S. 152, 158, 110 S.Ct. 997, 1002, 108 L.Ed.2d

App. 51

132 (1990) (stating that “[iJn determining the meaning of

the statute, we look not only to the particular statutory

language, but to the design of the statute as a whole and

to its object and policy”) (citations omitted); Nat Ass’n of

Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367,

376 n. 12 (D.C.Cir.1982) (relying on legislative history and

philosophy of Act to find that it did not amount to an

unconstitutional delegation of legislative power).

Prior to enactment of the IRA, Congress attempted to

assimilate Indians into the country’s mainstream through

an allotment policy. General Allotment Act of Feb. 8, 1887,

24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1976

ed.) (§§ 331-33 repealed 2000). The policy of the General

Allotment Act was simple: “to extinguish tribal sover-

eignty, erase reservation boundaries, and force the assimi-

lation of Indians into the society at large.” County of

Yakima v. Confederated Trites and Bands of the Yakima

Indian Nation, 502 U.S. 251, 254, 112 S.Ct. 683, 686, 116

L.Ed.2d 687 (1992). This policy was a failure, which

resulted in a loss of more than 90 million acres of Indian

land. Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408, 436 n. 1, 109 S.Ct.

2994, 3011 n. 1, 106 L.Ed.2d 343 (1989). As a result,

Congress enacted the IRA in an “attempt to encourage

economic development, self-determination, cultural plural-

ity, and the revival of tribalism.” Felix S. Cohen, Hand-

book of Federal Indian Law 147 (1982 ed.). It was also

stated that the IRA was designed “to rehabilitate the

Indian’s economic life and to give him a chance to develop

the initiative destroyed by a century of oppression and

paternalism.” Mescalero Apache Tribe v. Jones, 411 U.S.

145, 152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973)

(quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)).

App. 52

In order to stem the staggering flow of land from Indian to

non-Indian hands, the IRA set forth that “no land of any

Indian reservation . . . shall be allotted in severalty to any

Indian.” 25 U.S.C. § 461. Congress also tried to replenish

Indian lands by permitting the Secretary of the Interior to

acquire land in trust for Indians, noting that land held in

trust is exempt from local and state taxation. 25 U.S.C.

§ 465.

In repudiating the function of the General Allotment

Act, the legislative history of the IRA states that its policy

is “[tlo conserve and develop Indian lands and resources.”

S. 3645, 73d Cong., 2d Sess., 1 (1934). Plaintiffs contend

that this policy is unconstitutional because it does not

leave room “for a narrowing interpretation of 25 U.S.C.

§ 465 so as to avoid the overbroad delegation of the plain

text of the act.” (Pls.’ Br. Supp. Summ. J. at 31.) Although

this policy is not as specific as the policies listed in a prior

version of the IRA, that fact alone does not render the

subsequent policy statement invalid. See H.R. 7902, 73d

Cong., 2d Sess., tit. III, § 1 (setting forth numerous policies

of the IRA). Thus, upon review of the text of § 465 and the

legislative history qusted above, it is the opinion of this

Court that Congress has clearly delineated the general

policy behind § 465.

Boundaries

Plaintiffs contend §465 does not establish any

“boundaries” on the Secretary's authority to take land into

trust for Indians. A plain reading of the text of the statute,

however, reveals that there are boundaries on the Secre-

tary’s authority. Moreover, when the text is read in con-

junction with the overriding policy of the IRA, these

App. 53

boundaries are further defined. Finally, the recent decision

in Whitman conclusively sets forth the Supreme Court’s

position on the delegation doctrine and effectively closes

the door on plaintiffs’ constitutional challenge.

Taken in its broadest terms, § 465 authorizes the

Secretary to “acquire land in trust for Indians.” However,

when that generality is read together with all of § 465, as

well as the other sections of the IRA and its history, limits

on the Secretary’s authority are revealed. First, the

preceding analysis on the general policy of § 465 estab-

lishes that it was enacted “[tlo conserve and develop

Indian lands and resources.” S. 3645, 73d Cong., 2d Sess.,

1 (1934). Thus, it can fairly be said that the acquisition of

land for Indians furthers this stated policy. See Roseville v.

Norton, 219 F.Supp.2d 130, 156 (D.D.C.2002) (stating that

the Auburn Indian Restoration Act’s policy to advance the

Tribe’s economic development is a limiting factor in dele-

gation doctrine analysis). Second, the Secretary may only

provide land for Indians. See 25 U.S.C. § 479 (defining who

qualifies as an “Indian”). Third, the Secretary is limited in

the amount of funds that can be appropriated to acquire

such land. 25 U.S.C. § 465 (setting forth a limit of

$2,000,000). Fourth, § 465 prohibits the Secretary from

using any of these funds to acquire land outside the

Navajo Indian Reservations in Arizona and New Mexico.

Solely considering these factors, it is the opinion of this

Court that these limitations satisfy the “boundaries”

portion of the “intelligible principle” test as it was recently

explained in Mistretta.

The Eighth Circuit panel opinion held that § 465 was

unconstitutional because it felt that the Secretary “had

unrestricted power to acquire land from private citizens for

the private use and benefit of Indian tribes or individual

App. 54

Indians.” Gacoma I, 69 F.3d at 882. This decision was

made, however, before the Supreme Court issued its

opinion in Whitman. The pertinent issue raised in Whit-

man was whether section 109(b)(1) of the Clean Air Act, as

added, 84 Stat. 1679, and amended, 42 U.S.C. § 7409(a), is

an unconstitutional delegation of legislative power to the

Administrator of the Environmental Protection Agency.

Whitman, 531 U.S. at 462, 121 S.Ct. at 907. It is the

ensuing analysis in Whitman that sets forth the Supreme

Court’s definition of the “intelligible principle” test and

clarifies the constitutional issue before this Court.

Section 109(b)(1) gives the Administrator the author-

ity to set air quality standards that “are requisite to

protect the public health.” The relevant part of that

statute in issue in Whitman were the words “requisite”

and “public health.” Jd. at 472-76, 121 S.Ct. at 911-14. The

parties contesting § 109(b)(1) argued that these words

were susceptible to various interpretations and indefinite.

Id. at 465-66, 468-69, 121 S.Ct. at 908-09, 910. The Su-

preme Court held, however, that the language in

§ 109(b)(1) was “well within the outer limits of our non-

delegation precedents.” Id. at 474, 121 S.Ct. at 913.

In explaining its holding in Whitman, the Supreme

Court noted that it has only found a statute lacking of an

intelligible principle in two situations. Jd. (citing Panama

Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed.

446 (1935); A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)).

The Supreme Court further noted that it “almost never

felt qualified to second-guess Congress regarding the

permissible degree of policy judgment that can be left to

those executing or applying the law.” Jd. at 474-75, 121

S.Ct. at 913 (citation omitted). Also, the Supreme Court

App. 55

held that it has “never demanded, ... that statutes pro-

vide a determinate criterion for saying how much ... is too

much.” Jd. at 475, 121 S.Ct. at 913 (internal quotations

omitted). As an example of this theory, the Supreme Court

cited a similar case where it noted that the statute need

not decree “how ‘imminent’ was too imminent, or how

‘necessary was necessary enough, or ... how ‘hazardous’

was too hazardous.” /d. (citing Touby v. United States, 500

U.S. 160, 165-67, 111 S.Ct. 1752, 1756-57, 114 L.Ed.2d 219

(1991)).

It is from this analysis in Whitman that similarities

can be seen between the text of § 465 of the IRA and the

text of § 109(b)(1) of the Clean Air Act. The Clean Air Act

permits the Administrator to set air quality standards that

“are requisite to protect the public health,” while the IRA

permits the Secretary to acquire land in trust for Indians

“to conserve and develop Indian lands and resources.” It is

conceded by the Court that the act of acquiring land is

different from the act of setting air quality standards,

however, the authority that these statutes bestow upon

executive branch officials is effectively the same. There-

fore, by extending the Supreme Court’s holding in Waiit-

man to the facts of this case, it must be concluded that

§ 465 sets forth sufficient “boundaries” on the Secretary’s

authority and that it is not an unconstitutional delegation

of legislative authority.

Finally, it is worthy of note that since the Eighth

Circuit’s panel opinion adjudging § 465 unconstitutional

was vacated, several other circuits have weighed in on the

matter and held that § 465 is not an unconstitutional

delegation of authority to the Secretary. See United States

v. Roberts, 185 F.3d 1125, 1136-37 (10th Cir.1999); Confed-

erated Tribes of Siletz Indians of Oregon v. United States,

App. 56

110 F.3d 688, 698 (9th Cir.1997) (stating that “[t]he gen-

eral delegation of power to the Executive to take land into

trust for the Indians is a valid delegation because Con-

gress has decided under what circumstances land should

be taken into trust and has delegated to the Secretary of

the Interior the task of deciding when this power should

be used”); see also Carcieri, 290 F.Supp.2d at 187 (finding

persuasive the Tenth Circuit’s delegation analysis in

Roberts). Thus, upon review of the text of § 465, its legisla-

tive history, and in light of the cases decided after the

Eighth’s Circuit opinion in Oacoma I, it is the opinion of

this Court that Congress has clearly delineated the

“boundaries” of the Secretary’s authority as bestowed upon

him by § 465.

CONCLUSION

For the foregoing reasons, it is the opinion of this

Court that the Secretary’s actions were not arbitrary,

capricious, or an abuse of discretion. Furthermore, in

conformity with the Court’s previous opinion, it remains

the decision of this Court “that 25 U.S.C. § 465 is constitu-

tional both on its face and as applied in this case.” See

South Dakota, CIV. 92-3023 at 22. Accordingly, it is hereby

ORDERED that plaintiffs’ motion for summary

judgment (Docket # 82) is denied.

IT IS FURTHER ORDERED that Interior’s motion for

summary judgment (Docket # 96) is granted. Judgment

shall be issued in favor of defendants and against plain-

tiffs.

App. 57

519 U.S. 919

Supreme Court of the United States

DEPARTMENT OF THE INTERIOR, et al.,

petitioners,

v.

SOUTH DAKOTA, et al.

No. 95-1956.

Oct. 15, 1996.

Case below, 69 F.3d 878.

The petition ‘or a writ of certiorari is granted. The

judgment is vacated and the case is remanded to the

United States Court of Appeals for the Eighth Circuit with

instructions to vacate the judgment of the United States

District Court for the District of South Dakota and re-

mand the matter to the Secretary of the Interior for

reconsideration of his administrative decision.

Justice SCALIA, with whom Justice O’;CONNOR and

Justice THOMAS join, dissenting.

This case arises from the 1990 action of the Depart-

ment of the Interior acquiring 91 acres in trust for the

Lower Brule Tribe of the Sioux Indians, pursuant to § 5 of

the 1934 Indian Reorganizations Act (IRA), 48 Stat. 985,

as amended, 25 US.C. § 465. Respondents challenged this

action in Federal District Court, contending both that the

Department’s particular action violated the Administrative

Procedure Act (APA), 5 U.S.C. § 706, and that the Secre-

tary’ statutory authority to acquire lands under the IRA

is unconstitutional as a delegation of legislative power.

Throughout this litigation, until now, it has been the

Department’s position that IRA land acquisitions are

unreviewable under the APA because they fall within the

App. 58

exception for matters “committed to agency discretion by

law.” § 701(a)(2). The District Court agreed that APA

review was unavailable, although on different grounds,

holding that since the United States had acquired title,

the Quiet Title Act (QTA), 28 U.S.C. § 2409a, provided the

sole statutory means of challenging the action, and that

the QTA explicitly prohibits actions challenging title to

Indian lands. The District Court also upheld the Secre-

tary’s constitutional authority to acquire land on behalf of

the United States under the IRA. The Court of Appeals for

the Eighth Circuit, however, reversed on the ground that

§ 5 of the IRA constitutes a delegation of legislative power

to the Secretary of the Interior and is hence unconstitu-

tional. 69 F.3d 878 (1995).

Following the Eighth Circuit’s sweeping decision, the

Department of the Interior did an about-face with regard

to the availability of judicial review under the APA. It

promulgated a new regulation providing that “the Secre-

tary shall publish in the Federal Register, or in a newspa-

per of general circulation serving the affected area a notice

of his/her decision to take land into trust,” and that “the

Secretary shall acquire title in the name of the United

States no sooner than 30 days after the notice is pub-

lished.” Department of the Interior, Land Acquisitions

(Nongaming), 61 Fed.Reg. 18083 (1996) (to be codified at

25 C.F.R. § 151.12). The preamble to that regulation

recites that it is being adopted “[i]n response to a recent

court decision, State of South Dakota v. U.S. Department

of the Interior, 69 F.3d 878 (8th Cir.1995),” and asserts that

the procedure it sets forth “permits judicial review before

transfer of title to the United States.” The Solicitor Gen-

eral now represents to us that it is the position of the De-

partment of the Interior, as well as that of the Department of

App. 59

Justice, that judicial review of an IRA land trust acquisi-

tion may be obtained by filing suit within the 30-day

waiting period, although action will continue to be barred

by the QTA after the United States formally acquires title.

The decision today — to grant, vacate, and remand in

light of the Government’s changed position -— is both

unprecedented and inexplicable. This Court has in recent

years occasionally entered a “GVR” in light of a position

newly taken by the Solicitor General where the United

States was the prevailing party below. See, e.g., Stutson v.

United States, 516 U.S. 193, 116 S.Ct. 600, 1383 L.Ed.2d

571 (1996) (per curiam); Schmidt v. Espy, 513 U.S. 801,

115 S.Ct. 43, 130 L.Ed.2d 5 (1994); Wells v. United States,

511 U.S. 1050, 114 S.Ct. 1609, 128 L.Ed.2d 337 (1994);

Reed v. United States, 510 U.S. 1188, 114 S.Ct. 1289, 127

L.Ed.2d 644 (1994); Chappell v. United States, 494 U.S.

1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Even that

extension of our earlier practice is in my view unsound.

See Lawrence v. Chater, 516 U.S. 163, 184-186, 116 S.Ct.,

604, 615-616, 133 L.Ed.2d 545 (1995) (SCALIA, J., dissent-

ing). But we have never before GVR’d simply because the

Government, having lost below, wishes to try out a new

legal position. The unfairness of such a practice to the

litigant who prevailed in the Court of Appeals is obvious.

(“Heads I win big,” says the Government; “tails we come

back down and litigate again on the basis of a more mod-

erate Government theory.”) Today’s decision encourages

the Government to do what it did here: to “go for broke” in

the courts of appeals, rather than get the law right the

first time.

What makes today’s action inexplicable as well as

unprecedented is the fact that the Government’s change of

legal position does not even purport to be applicable to the

App. 60

present case. The Government now concedes only that APA

review is available before the Secretary's taking of title

under the IRA; it has not altered its view that once title

has passed to the United States APA review is precluded

by the QTA. 28 U.S.C. § 2409a(a); Pet. for Cert. 7. Since in

this case title has passed, the Government’s position in the

present litigation remains what it was: ‘Judicial review is

unavailable.

The Government contends, however, that the Court of

Appeals’ determination that the IRA was a delegation of

legislative power was based in part upon the unavailabil-

ity of judicial review. I fail to see how the availability of

judicial review has anything to do with that question;

perhaps the Court of Appeals thought otherwise, though

its opinion on this point is somewhat contradictory.* If,

however, judicial reviewability was germane to the Court

of Appeals’ judgment, surely it was only such reviewability

as would exist of right, and not such as would be accorded

only at the discretion of the agency. It is merely the latter

that we have here: The Government concedes only that, if

the Secretary chooses to announce his acquisition decision

before the acquisition becomes effective (as the new regu-

lation graciously requires), judicial review is available. It

* At one point the court quoted approvingly its statement in

United States v. Garfinkel, 29 F.3d 451, 459 (CA8 1994), that “ ‘[j)udicial

review is a factor weighing in favor of upholding a statute against a

nondelegation challenge.’” 69 F.3d 878, 882 (1995). This seems incon-

sistent, however, with the approach the court takes elsewhere in its

opinion, when it says: “We doubt whether the Quiet Title Act precludes

APA review of agency action by which the United States acqu/res title.

But given our conclusion that § 465 is an unconstitutional delegation of

power, we need not decide this issue.” Jd., at 881, n. 1.

App. 61

is inconceivable that this reviewability-at-the-pleasure-of-

the-Secretary could affect the constitutionality of the IRA

in anyone’s view, including that of the Court of Appeals.

Finally, the existence of the new regulation does not

make this a case in which a postjudgment change in the

law applicable to the dispute warrants a remand. The

preamble to the regulation acknowledges that “the Eighth

Circuit decision precludes the Secretary from taking into

trust the land at issue in that particular case,” and explic-

itly states that “[t]he procedure announced in today’s rule

... will apply to all pending and future trust acquisitions.”

61 Fed.Reg. 18083 (1996) (emphasis added). Of course that

statement merely recites the obvious, since, title already

having been acquired in this case, it is quite impossible for

the Secretary to provide 30-day advance notice of intent to

take title. Evidently for that reason, the Government asks

this Court, if it declines to grant certiorari, not merely to

GVR, but to do so “with instructions that the judgment of

the district court sustaining the Secretary’s decision also

be vacated and that the matter, in turn, be remanded to

the Secretary of the Interior for reconsideration and

issuance of a new administrative decision.” Pet. for Cert.

25. I cannot imagine where we would derive the authority

for this. If, as the Government asserts in its brief, statu-

tory judicial review of a land-trust decision under § 5 of

the IRA is unavailable once title has passed to the United

States, then certainly federal courts cannot construct the

necessary conditions for judicial review by simply ordering

the land acquisition undone.

In sum, there is no basis in precedent or in reason for

a GVR in the present case. Since a federal statute has

App. 62

been held unconstitutional, I would grant the petition for

certiorari.

ace App. 63

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-2344SDRC

State of South Dakota, et al., *

*

Appellants, «x Order Denying Petition for

v. * Rehearing and Suggestion

* for Rehearing En Banc

*

United States Department

of Interior, et al., A

*

Appellees.

The suggestion for rehearing en banc is denied. Chief

Judge Arnold, Judge McMillian, Judge Beam, and Judge

Murphy would grant the suggestion for rehearing en banc.

The petition for rehearing by the panel is also denied.

February 2, 1996

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 64

69 F.3d 878

United States Court of Appeals,

Eighth Circuit.

STATE OF SOUTH DAKOTA; City of Oacoma,

South Dakota, Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF the INTERIOR;

Eddie F. Brown, Assistant Secretary-Indian Affairs;

Jerry Jaeger, Acting Area Director,

Bureau of Indian Affairs, Defendants-Appellees.

No. 94-2344.

Submitted Feb. 15, 1995.

Decided Nov. 7, 1995.

John P. Guhin, Assistant Attorney General, Pierre,

South Dakota, argued (Steven R. Smith, on the brief), for

appellant.

Lisa E. Jones, U.S. Department of Justice, Washing-

ton, D.C., argued (Mikal G. Hanson, Edward J. Shawaker

and Andrea Nervi Ward, on the brief), for appellee.

Before MAGILL, LOKEN, and MURPHY, Circuit

Judges.

LOKEN, Circuit Judge.

The State of South Dakota and the City of Oacoma,

South Dakota, appeal the district court’s dismissal of their

challenge to the Secretary of the Interior’s acquisition of

commercial land in trust for the Lower Brule Tribe of

Sioux Indians. Concluding that 25 U.S.C. § 465, the

statute authorizing acquisition of the land, is an unconsti-

tutional delegation of legislative power, we reverse.

App. 65

I.

In March 1990, the Tribe submitted an application

under 25 U.S.C. § 465, asking the Secretary to acquire

ninety-one acres of land in trust for use by the Tribe. The

land is located seven miles from the Tribe’s reservation

and is partially within the City of Oacoma. The Tribe

stated that the land would be used to create an industrial

ark adjacent to an interstate highway, explaining that

“(t]his site, Trust status for the land, and tax advantages

are critically necessary for the development to occur.”

The State of South Dakota and the City of Oacoma

protested in writing to the Secretary’s Bureau of Indian

Affairs (“BIA”). When BIA’s Area Director notified the

State and the City in March 1991 that the Tribe’s applica-

tion would be approved, they appealed to the Interior

Board of Indian Affairs. BIA then disclosed that the

Assistant Secretary for Indian Affairs had approved the

application in December 1990, without notifying the

protestants. The Board dismissed the appeal because it

has no jurisdiction to review decisions by the Assistant

Secretary. State of South Dakota & Town of Oacoma v.

Aberdeen Area Director, BIA, 22 1.B.1.A. 126 (1992).

In July 1992, the State and the City filed this action

against the Department of the Interior and certain of its

officials seeking judicial review under the Administrative

Procedure Act, 5 U.S.C. §§ 701-706. For convenience, we

will refer to the defendants collectively as “the Secretary,”

because he is the Executive Branch official authorized to

act under § 465. We will refer to the State and the City

collectively as “plaintiffs.”

Plaintiffs allege that they are aggrieved by the Secre-

tary’s acquisition because it deprives them of tax revenues

App. 66

and may place the land beyond their regulatory powers.

They contend that the acquisition is invalid because § 465

is an unconstitutional delegation of legislative power.

Alternatively, they contend (i) that the agency violated its

internal rules of procedure and the Assistant Secretary

acted beyond the scope of his delegated authority; (ii) that

the approval was arbitrary and capricious and not in

accordance with the agency’s governing regulations, see 25

C.F.R. §§ 151.1-.14; and (iii) that the Tribe plans to develop

the land as a gaming casino and the Secretary was aware

of the Tribe’s true intentions but failed to comply with the

approval procedures of the Indian Gaming Regulatory Act,

25 U.S.C. §§ 2701-2721.

In November 1992, the Secretary took title to the

lands in trust for the Tribe. In January 1994, the Secre-

tary moved to dismiss on the ground that a § 465 acquisi-

tion is action “committed to agency discretion by law” and

therefore not subject to judicial review. See 5 U.S.C.

§ 701(a\(2); Heckler v. Chaney, 470 U.S. 821, 828-30, 105

S.Ct. 1649, 1654-55, 84 L.Ed.2d 714 (1985). The district

court granted the motion to dismiss, concluding that § 465

is not an unconstitutional delegation of legislative power

because the statute identifies the agency to which power is

delegated and “clearly delineates the general policy to be

applied and the bounds of that delegated authority.”

Without reaching the “committed to agency discretion”

issue, the court also held, sua sponte, that it had no

jurisdiction to review plaintiffs’ other claims because the

Quiet Title Act, 28 U.S.C. §2409a, which permits the

App. 67

United States to be sued to resolve real property disputes,

“does not apply to trust or restricted Indian lands.”

II.

On appeal, plaintiffs argue that § 465 provides no

legislative standards or boundaries governing the Secre-

tary’s acquisitions. The Secretary responds that the

statutory purpose of “providing land for Indians” suffi-

ciently defines the general policy and boundaries of the

delegated power. The Secretary notes that the Supreme

Court has not invalidated a federal statute on delegation

grounds since A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 542, 55 S.Ct. 837, 848, 79 L.Ed. 1570

(1935), and Panama Refining Cc. v. Ryan, 293 U.S. 388, 55

S.Ct. 241, 79 L.Ed. 446 (1935). Interestingly, the same

Congress enacted both the Indian Reorganization Act, of

which § 465 was a part, and the statutes invalidated in

Schechter Poultry and Panama Refining. It is appropriate

to consider whether § 465 satisfies the nondelegation

\

* The court relied on State of Florida v. United States Dep't of the

Interior, 768 F.2d 1248 (11th Cir.1985), cert. denied, 475 U.S. 1011, 106

S.Ct. 1186, 89 L.Ed.2d 302 (1986). Contra, City of Sault Ste. Marie v.

Andrus, 458 F.Supp. 465, 470-72 (D.D.C.1978). We doubt whether the

Quiet Title Act precludes APA review of agency action by which the

United States acquires title. But given our conclusion that § 465 is an

unconstitutional delegation of power, we need not decide this issue. The

court in Florida conceded that the Quiet Title Act does not bar claims

“that the Secretary acted unconstitutionally or beyond his statutory

authority when the United States acquired title to the land.” 768 F.2d

at 1255 n. 9.

App. 68

doctrine as it has evolved since 1935, particularly because

no other appellate court has done so.”

The nondelegation doctrine is easy to state: “Congress

may not constitutionally delegate its legislative power to

another branch of Government.” Touby v. United States,

500 U.S. 160, 165, 111 S.Ct. 1752, 1755, 114 L.Ed.2d 219.

(1991) (citation omitted). It is difficult to apply. A court

must inquire whether Congress “has itself established the

standards of legal obligation, thus performing its essential

legislative function.” Schechter Poultry, 295 U.S. at 530, 55

S.Ct. at 843. But the court must be mindful that the

doctrine does not prevent Congress from obtaining the

assistance of its coordinate Branches. Therefore, so long as

Congress “lay[s]) down by legislative act an intelligible

principle” governing the exercise of delegated power, it has

not unlawfully delegated its legislative power. J.W. Hamp-

ton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct.

348, 352, 72 L.Ed. 624 (1928), quoted in Touby, 500 U.S. at

165, 111 S.Ct. at 1755, and Mistretta v. United States, 488

U.S. 361, 372, 109 S.Ct. 647, 655, 102 L.Ed.2d 714 (1989).

A delegation is overbroad “[o]nly if we could say that there

is an absence of standards for the guidance of the Admin-

istrator’s action, so that it would be impossible in a proper

proceeding to ascertain whether the will of Congress has

been obeyed.” Yakus v. United States, 321 U.S. 414, 426, 64

S.Ct. 660, 668, 88 L.Ed. 834 (1944).

* To our knowledge, only one other district court has considered the

nondelegation question in the sixty-year life of the statute, and its

perfunctory analysis is unpersuasive. See City of Sault Ste. Marie, 458

F.Supp. at 473.

App. 69

The Supreme Court has recognized that judicial

review is a relevant safeguard in considering delegation

issues:

It is “constitutionally sufficient if Congress

clearly delineates the general policy, the public

agency which is to apply it, and the boundaries of

this delegated authority. Private rights are pro-

tected by access to the courts to test the applica-

tion of the policy in the light of these legislative

declarations.”

Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219,

109 S.Ct. 1726, 1731, 104 L.Ed.2d 250 (1989), quoting

American Power & Light Co. v. SEC, 329 U.S. 90, 105, 67

S.Ct. 133, 142, 91 L.Ed. 103° (1946). Justice Marshall

eloquently stated this principle in his concurring opinion

in Touby: “judicial review perfects a delegated-lawmaking

scheme by assuring that the exercise of such power re-

mains within statutory bounds.” 500 U.S. at 170, 111 S.Ct.

at 1758. Thus, when the Secretary argued to the district

court that his actions under § 465 may not be judicially

reviewed because the statute commits them entirely to

agency discretion, he implicitly acknowledged that this

delegation issue requires a particularly close look. See

United States v. Garfinkel, 29 F.3d 451, 459 (8th Cir.1994)

(“[JJudicial review is a factor weighing in favor of uphold-

ing a statute against a nondelegation challenge”) (citation

omitted). ,

We begin by examining the very broad language of

§ 465:

The Secretary of the Interior is hereby authorized,

in his discretion, to acquire ... any interest in

lands ... within or without existing reservations

... for the purpose of providing land for Indians.

App. 70

* * *

Title to any lands or rights acquired ... 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 taxa-

tion.

By its literal terms, the statute permits the Secretary

to purchase a factory, an office building, a residential

subdivision, or a golf course in trust for an Indian tribe,

thereby removing these properties from state and local tax

rolls. Indeed, it would permit the Secretary to purchase

the Empire State Building in trust for a tribal chieftain as

a wedding present. There are no perceptible “boundaries,”

no “intelligible principles,” within the four corners of the

statutory language that constrain this delegated authority

— except that the acquisition must be “for Indians.” It

delegates unrestricted power to acquire land from private

citizens for the private use and benefit of Indian tribes or

individual Indians.

The Secretary's power to purchase land under § 465

triggers the complementary power to acquire land by

condemnation under 40 U.S.C. § 257. See United States v.

29 Acres of Land, 809 F.2d 544, 545 (8th Cir.1987). It is

therefore appropriate to consider the delegation question

in the context of the federal government’s extensive

condemnation powers.

The power to acquire land by condemnation for a

public purpose is an inherent aspect of sovereignty. See

Kohl v. United States, 91 U.S. 367, 371-72, 23 L.Ed. 449

(1875). In exercising that power, Congress need not select

the particular land to be taken; that function may be

delegated to the Executive Branch. See Chappell v. United

App. 71

States, 160 U.S. 499, 510, 16 S.Ct. 397, 400, 40 L.Ed. 510

(1896). So long as the condemnation serves a public use,

“the necessity or expediency of appropriating any particu-

lar property is not a subject of judicial cognizance.” Missis-

sippt & Rum River Boom Co. v. Patterson, 98 U.S. 403,

406, 25 L.Ed. 206 (1878). However, “a claim that a taking

is not ‘for public use’ is open for judicial consideration.”

United States ex rel. T-V.A. v. Welch, 327 U.S. 546, 557, 66

S.Ct. 715, 720, 90 L.Ed. 843 (1946) (Frankfurter, J.,

concurring).

It is settled that the United States may purchase land _

by condemnation for an Indian reservation as a public use.

See United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286,

82 L.Ed. 410 (1938); State of Minnesota v. United States,

125 F.2d 636, 640 (8th Cir.1942). That same power author-

izes Congress to acquire non-reservation lands in trust for

a public use that benefits Indians or Indian tribes. But the

question under the nondelegation doctrine is, for what

public use does § 465 authorize the Secretary to acquire

land. By defining no boundaries to the exercise of this

power, the statute leaves the Secretary free to acquire for

a multitude of purposes, for example, to expand a reserva-

tion, to provide farm land for rural Indians, to provide a

factory for unemployed urban Indians, to provide a golf

course for tribal recreation, or to provide a lake home for a

politically faithful tribal officer. These are very different

public uses, and the last is, of course, no public use at all.

a separate provision of the Indian Reorganization Act specifically

authorized the Secretary to acquire lands to form new reservations or to

enlarge existing reservations. See 25 U.S.C. § 467. In State of Minne-

sota, supra, we upheld a condemnation under a different, far more

specific statute after careful judicial review of the Secretary’s decision.

App. 72

Despite the government’s broad, inherent power to

acquire land for public use, the nondelegation doctrine

surely requires at a minimum that Congress, not the

Executive, articulate and configure the underlying public

use that justifies an acquisition. In some cases, the public

use underlying each acquisition is obvious, as when

Congress authorizes an agency to acquire lands and

buildings to house the agency’s operations. But when

Congress authorizes the Secretary to acquire land in trust

“for Indians,” it has given the agency no “intelligible

principle,” no “boundaries” by which the public use under-

lying a particular acquisition may be defined and judi-

cially reviewed. This legislative vacuum in turn greatly

expands the extent of the standardless delegation.

Il.

The legislative history of § 465 suggests that Congress

did not intend to delegate unrestricted power to acquire

land “for Indians.” The statute was enacted as section 5 of

the Indian Reorganization Act of 1934, 48 Stat. 985. The

Report of the Committee on Indian Affairs stated:

The bill now under consideration definitely puts

an end to the allotment system through the op-

eration of which the Indians have parted with

90,000,000 acres of their land in the last 50

years. ... To make many of the now pauperized,

landless Indians self-supporting, it authorizes a

long term program of purchasing land for them.

*K x *

Section 5 authorizes the Secretary of the Interior

to purchase or otherwise acquire land for land-

less Indians.

App. 73

The title to land thus acquired will remain in the

United States. The Secretary may permit the use

and occupancy of this newly acquired land by

landless Indians; he may loan them money for

improvements and cultivation, but the continued

occupancy of this land will depend on its benefi-

cial use by the Indian occupant and his heirs.

H.R.Rep. No. 1804, 73d Cong., 2d Sess. 6-7 (1934). In the

House floor debate, Representative Howard, a chief

sponsor of the bill, further explained the purpose of section

3:

Section 5 sets up a land acquisition program to

provide land for Indians who have no land or in-

sufficient land, and who can use land benefi-

cially.... This program would permit the

purchase of land for many bands and groups of

landless Indians and would permit progress to-

ward the consolidation of badly checkerboarded

Indian reservations, as well as provide additional

agricultural land to supplement stock grazing or

forestry operations.

78 Cong.Rec. 11730 (June 15, 1934). Representative

Hov ird characterized the acquisition of trust lands to be

used for farming as “the keystone of the new Indian

policy.” 78 Cong.Rec. 11729. Representative Hastings

described the land to be acquired as “Indian subsistence-

homesteads.” Jd. at 9269.

This agrarian focus is not surprising in a Congress

acting against the backdrop of an industrial sector rav-

aged by the Great Depression. Yet in drafting § 465,

Congres: failed to include standards to reflect its limited

purpose. Instead, the Secretary was delegated unrestricted

power to acquire land “for Indians” in a statute that

App. 74

contained no “boundaries” defining how that power should

be exercised. The Secretary has responded by asserting all

of the unlimited power conferred by the statute’s literal

language. First, he promulgated regulations that place no

restrictions on the purpose for which land may be placed

in trust “for Indians.” See 25 C.F.R. § 151.10. Second, when

his acquisition procedures and decisions were challenged

in court, he asserted that his exercise of this power is not

subject to judicial review under the APA because it is

“committed to agency discretion.” |

This case illustrates the problems created by the

exercise of such unrestricted power. Intending only that

the Secretary acquire rural lands suitable for farming,

grazing, and logging by Indians, Congress in § 465 ad-

dressed only one intergovernmental issue — it made the

lands taken in trust exempt from state and local property

taxes. But when the Secretary acquires urban land for

industrial or commercial uses, other important issues

inevitably arise. For example, the South Dakota Attorney

General asked the Secretary whether the City of Oacoma’s

ordinances, including its zoning ordinances, would be

enforceable against the property if it was taken in trust.

The Secretary’s Field Solicitor responded:

If the parcel is not declared to be part of the res-

ervation, then ordinances which are civil or regu-

latory in nature and which do not affect the

proprietary interest of the United States, ac-

quired by virtue of acquisition of title to the land,

may apply. See State of Florida, supra; Mescalero

Apache Tribe v. Jones, [411 U.S. 145, 93 S.Ct.

1267, 36 L.Ed.2d 114 (1973)].

(Emphasis added.) This answer suggests that the BIA will

force the State and the City to establish their right to

App. 75

regulate the trust land in court, where BiA will no doubt

argue that state and local regulatory powers are pre-

empted. The result is a legislative void. Congress, not the

BIA, and indeed not the courts, should define in the first

instance the extent to which lands taken in trust for

industrial and commercial Indian use are thereby freed

from state and local zoning ordinances, building codes,

health and safety regulations, and other exercises of the

police power.

Had the Secretary acted consistently with § 465’s

legislative history — by limiting his acquisition authority to

purposes such as forming or enlarging reservations,

restoring alienated allotment lands, and providing other

lands for agrarian uses — we would face the question

whether the statute’s overbreadth was suitably slimmed

by this legislative history and agency interpretation.

Normally, delegation questions are considered in light of a

statute’s legislative history and context, see Garfinkel, 29

F.3d at 458, and any narrowing agency interpretation, see

International Union, UAW v. OSHA, 938 F.2d 1310

(D.C.Cir.1991); 37 F.3d 665 (D.C.Cir.1994) (decision after

remand). But in this case, the agency has interpreted the

statute as broadly as possible, consistent with its literal

language. We have approved that interpretation in an-

other context and as a panel may not overrule a prior

panel opinion. See Chase v. McMasters, 573 F.2d 1011,

1015-16 (8th Cir.1978), cert. denied, 439 U.S. 965, 99 S.Ct.

453, 58 L.Ed.2d 423 (1978). Moreover, if we now took a

more limited view of the statute, the Secretary’s regula-

tions would be overbroad, and there would be no basis

upon which to uphold this acquisition. Thus, we conclude

that we must accept the agency’s interpretation and

App. 76

construe the statute literally for purposes of applying the

nondelegation doctrine.

IV.

There are additional, procedural aspects of the Secre-

tary’s acquisition program that further support our deci-

sion. The administrative record reveals that the Tribe

purchased the land in question for $80,255.94, three

months after it filed the § 465 application, and after the

BIA’s Lower Brule Agency had recommended favorable

action on the application. The record does not disclose (i)

whether the purchase price was based upon tax free

commercial use by the Tribe, and (ii) the price the United

States paid when it acquired the land from the Tribe in

November 1992. Plaintiffs criticize the administrative

record as contrived and inadequate. The Secretary argues

that procurement practices of the Tribe and BIA under

§ 465 are not subject to judicial review.

There are many opportunities for abuse in a program

of this nature. For example, a seller who knows that land

is being sold for a tax free use will charge more for that

land, thereby capturing some of the economic benefit of tax

free status that Congress intended for the Indians. Here, if

the Tribe paid such a monopoly rent, the congressional

purpose has been frustrated. But if the Secretary reim-

bursed the Tribe for that purchase price, the taxpayers

have suffered from agency ignorance or misfeasance.

Given the extensive standards that Congress has built into

other procurement programs, see, e.g., 10 U.S.C. Ch. 159;

41 U.S.C. §§ 251-260, the total absence of procurement

principles and safeguards in § 465 violates the nondelega-

tion doctrine.

App. 77

V.

Those who drafted § 465 failed to incorporate the

limited purpose reflected in the legislative history. Pre-

sumably, they either drafted poorly or ignored the delega-

tion issue. The agency that received this inartful

delegation then used the absence of statutory controls to

claim unrestricted, unreviewable power. The result is an

agency fiefdom whose boundaries were never established

by Congress, and whose exercise of unrestrained power is

free of judicial review. Iv is hard to imagine a program

more at odds with separation of powers principles.

In his concurring opinion in /ndustrial Union Dept.,

AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 685-

86, 100 S.Ct. 2844, 2886, 65 L.Ed.2d 1010 (1980), Justice

(now Chief Justice) Rehnquist summarized the functions

of the nondelegation doctrine as articulated in prior

Supreme Court cases:

First, and most abstractly, it ensures to the ex-

tent consistent with orderly governmental ad-

ministration that important choices of social

policy are made by Congress, the branch of our

Government most responsive to the popular will.

Second, the doctrine guarantees that, to the ex-

tent Congress finds it necessary to delegate au-

thority, it provides the recipient of that authority

with an “intelligible principle” to guide the exer-

cise of the delegated discretion. Third, and de-

rivative of the second, the doctrine ensures that

courts charged with reviewing the exercise of

delegated discretion will be able to test that ex-

ercise against ascertainable standards.

(Citations omitted.) We conclude that § 465 fails all three

of these nondelegation criteria and is invalid. Accordingly,

App. 78

the Secretary had no authority to acquire the lands in

question in trust for the Tribe. The judgment of the district

court is reversed and the case is remanded for further

proceedings consistent with this opinion.

MURPHY, Circuit Judge, dissenting.

The court in this case unnecessarily reaches a consti-

tutional issue and bases its conclusions on speculation

rather than the record. Its decision that a portion of the

Indian Reorganization Act of 1934, 25 U.S.C. § 465, is an

unconstitutional delegation of legislative power is not

supported by the statute or its legislative history. The

court invalidates today a congressional enactment de-

signed to acquire land in trust for Indians that has been in

place for over sixty years and, in the process, places in

doubt the status of all Indian trust land. I must therefore

dissent.

I.

The primary focus of the appeal taken by the State of

South Dakota and the City of Oacoma (plaintiffs) is the

district court’s dismissal for lack of jurisdiction of their

claims brought under the Administrative Procedure Act

(APA), 5 U.S.C. § 701-706. The Department of the Interior

and the two individually named defendants (collectively,

the Secretary) had argued on their motion to dismiss that

judicial review of the APA claims is unavailable because

the decision whether to acquire land in trust is committed

to agency discretion. Plaintiffs disagreed and also chal-

lenged the constitutionality of the statute authorizing land

to be taken into trust, § 465 of the Indian Reorganization

Act. The district court found the statute to be constitu-

tional and did not reach the issue of the availability of

App. 79

judicial review. Instead it concluded sua sponte that it

lacked jurisdiction over the APA claims because the United

States has not waived its sovereign immunity for claims

relating to Indian trust land.

Rather then addressing the jurisdictional issue, the

majority stretches to consider the constitutionality of the

underlying statute. A cardinal principle guiding federal

courts is that constitutional issues should not be reached

unless necessary to a decision. Jean v. Nelson, 472 U.S.

846, 854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985).

This is a “fundamental rule of judicial restraint.” Three

Affiliated Tribes of Fort Berthold Reservation v. Wold

Engineering, 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81

L.Ed.2d 113 (1984). The court suggests, but does not

decide, that the district court had jurisdiction to consider

the claims brought under the APA. If so, the principle of

judicial restraint should lead to consideration of those

claims prior to reaching any constitutional issue. Resolu-

tion of the constitutional question would not be required if

the merits of the APA claims were to be determined in

favor of the plaintiffs.

Moreover, resolution of the APA inquiry could inform

the analysis of the delegation issue since the availability of

judicial review of an agency action is relevant in determin-

ing whether the authorizing statute is a lawful delegation.

See United States v. Garfinkel, 29 F.3d 451, 459 (8th

Cir.1994). Although the court recognizes this principle, it

relies on the Secretary’s mere assertion that his decision is

unreviewable to support its conclusion that the delegation

is unlawful.

App. 80

II.

Even if the court had reason to address the delegation

issue at this time, its decision strays far from the existing

path of nondelegation doctrine. Congressional delegations

of legislative power are valid “if Congress clearly deline-

ates the general policy, the public agency which is to apply

- it, and the boundaries of this delegated authority.” Mis-

tretta v. United States, 488 U.S. 361, 372-73, 109 S.Ct. 647,

655, 102 L.Ed.2d 714 (1989) (quoting American Power &

Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91

L.Ed. 103 (1946)). To assess whether a statute imposes

sufficient boundaries on the delegated authority, a review-

ing court looks at the language of the statute, its purpose

and factual background, and the statutory context in

which the standards appear. United States v. Garfinkel, 29

- F8d 451, 458 (8th Cir.1994) (citing American Power &

Light Co. v. SEC, 329 U.S. 90, 104, 67 S.Ct. 133, 141-42,

91 L.Ed. 103 (1946)). A statute written in broad terms does

not violate the Constitution so long as Congress lays down

an “intelligible principle” to guide the agency’s discretion.

Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752,

1755-56, 114 L.Ed.2d 219 (1991); Garfinkel, 29 F.3d at 457.

Only twice in its history, and not since 1935, has the

Supreme Court invalidated a statute on the ground of

excessive delegation of legislative authority. Since 1935,

the Supreme Court has consistently upheld statutes

involving broad delegations of authority. See e.g., Mistretta

v. United States, 488 U.S. 361, 372-73, 109 S.Ct. 647, 654-

55, 102 L.Ed.2d 714 (1989) (authority to promulgate

sentencing guidelines for federal criminal offenses);

Lichter v. United States, 334 U.S. 742, 785-86, 68 S.Ct.

1294, 1316-17, 92 L.Ed. 1694 (1948) (authority to deter-

mine excessive profits); American Power & Light Co. v.

App. 81

SEC, 329 U.S. 90, 67 S.Ct. 183, 91 L.Ed. 103 (1946)

(authority to prevent unfair or inequitable distribution of

voting power among security holders); Yakus v. United

States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944)

(authority to fix commodity prices that would be fair and

equitable and would effectuate purpose of Emergency

Price Control Act of 1942); FPC v. Hope Natural Gas Co.,

320 U.S. 591, 600, 64 S.Ct. 281, 286-87, 88 L.Ed. 333

(1944) (authority to determine just and reasonable rates);

National Broadcasting Co. v. United States, 319 U.S. 190,

225-26, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943) (authority

to regulate broadcast licensing for “public interest, conven-

ience, or necessity”). The delegation doctrine has in fact

evolved into a tool of statutory construction, by which

reviewing courts give “narrow constructions to statutory

delegations that might otherwise be thought to be uncon-

stitutional.” See Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct.

at 655 n. 7.

Although the court notes that the same Congress

passed the Indian Reorganization Act and the statutory

provisions found unconstitutional in 1935 on delegation

grounds, it does not attend to the striking differences

between the statutes. The National Industrial Recovery

Act (NIRA), 48 Stat. 195 (1933),’ contained the unconstitu-

tional provisions struck down in A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 531, 55 S.Ct. 837,

843-44, 79 L.Ed. 1570 (1935) (provision authorizing the

President to approve codes of fair competition for a trade

or industry) and Panama Refining Co. v. Ryan, 293 U.S.

* This statute was later amended by 49 Stat. 375 (1935), which

repealed the provisions relating to codes of fair competition and

provided for the expiration of Title I of the Act in 1936.

App. 82

388, 406, 55 S.Ct. 241, 242, 79 L.Ed. 446 (1935) (provision

granting the President discretion to prohibit interstate

and foreign commerce of certain petroleum products). The

NIRA represented the Roosevelt administration’s response

to a national emergency caused by widespread unemploy-

ment and economic disruption during the Depression. See

48 Stat. 195, Title I, section 1. It granted the President

unfettered discretion to approve any law, and impose his

own conditions on it, relating to a “vast array of commer-

cial and industrial activities throughout the country.”

Schechter, 295 U.S. at 539, 55 S.Ct. at 847. The Indian

Reorganization Act in contrast did not convey such unbri-

dled discretion to another branch, and it is one of a long

line of enactments reflecting the special role the federal

government has played with respect to Indian tribes. See

F. Cohen, Handbook of Federal Indian Law 68-88 (reprint

ed. 1988) (reviewing federal Indian legislation starting

from 1789).

The court today departs from precedent like Mistretta

by invalidating a statute as an unlawful delegation based

on the broadest possible reading of its terms. In the course

of its discussion, it focuses on unlikely hypothetical uses of

the Secretary’s delegated authority and ignores the limit-

ing effect of the context in which the statute was passed.

Prior to 1934, Congress pursued an allotment policy

with regard to Indian land. See id. at 78-83. Existing

_ Indian tribal land was allotted to individual Indians, and

surplus lands were sold to whites. Although the purpose of

the policy was to encourage assimilation, it resulted most

significantly in the loss of Indian land as individual

allotments were sold to non-Indians, lost through tax

forfeiture or otherwise alienated. See Shangreau v. Bab-

bitt, 68 F.3d 208 (8th Cir.1995). Between 1887 and 1934,

App. 83

Indian land holdings were reduced from 138 million acres

to 48 million, a loss of 90 million acres. F. Cohen, Hand-

book of Federal Indian Law 138 (1982 ed.).

Discontent with the allotment policy caused Congress

to enact the Indian Reorganization Act of 1934, 25 U.S.C.

§ 461-479, to stem the loss of Indian lands and to assist

Indians in acquiring land adequate for self-support. See

Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir.), cert.

denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978).

The purpose of the Act was “to rehabilitate the Indian’s

economic life and to give him a chance to develop the

initiative destroyed by a century of oppression and pater-

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

152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973) (quoting

H.R.Rep. No. 1804, 73d Cong.2d Sess., 1 (1934)). The Act

rejected assimilation as a goal and instead sought Indian

self-determination. The portion of the Act under attack

here, 25 U.S.C. § 465, specifically addresses the problem of

the loss of Indian land and authorizes the Secretary to

acquire land in trust “for the purpose of providing land for

_ Indians.”

The text of the Act gives the Secretary broad discre-

tion to acquire land in trust, but it also limits that discre-

tion explicitly. It directs that any land acquired must be

for Indians as they are defined in 25 U.S.C. § 479. It

authorizes the appropriation of a limited amount of funds

with which land could be acquired and specifically prohib-

its use of such funds to acquire land for the Navajo Indi-

ans outside of their established reservation boundaries in

Arizona and New Mexico.

s)

The court’s conclusion that the statutory language

does not give the Secretary adequate direction ignores the

App. 84

Act’s historical context. Although § 465 uses broad lan-

guage, its direction that land be acquired “for the purpose

of providing land for Indians,” has specific meaning in

light of the failure of the allotment policy and Congres-

sional rejection of assimilation as a goal. It instructs the

Secretary that land should be acquired to replace the

millions of acres of Indian land lost as a result of the

allotment policy and placed in trust to prevent its alien-

ation. This interpretation is reinforced by related provi-

sions in the Act which specifically prohibit features of the

allotment system. Such provisions, for example, prohibit

allotment of reservation land to individual Indians, 25

U.S.C. § 461, extend existing periods of trust and restric-

tions on alienation on any Indian lands, 25 U.S.C. § 462,

authorize restoration of surplus lands to tribal ownership,

25 U.S.C. § 463, and prohibit the transfer of restricted

Indian lands except to Indian tribes. 25 U.S.C. § 464.

The Secretary’s authority is also limited by the guid-

ance provided in the legislative history of the Indian

Reorganization Act. See Mistretta, 488 U.S. at 376 n. 10,

109 S.Ct. at 657 n. 10. That history explains that § 465

was enacted in response to the loss of 90 million acres that

resulted from the operation of the allotment system,

H.R.Rep. No. 1804, 73d Cong.2d Sess., 6 (1934), and

identifies goals of “rehabilitat[ing] the Indian’s economic

life’ and “develop[ing] the initiative destroyed by ...

oppression and paternalism.” Mescalero, 411 U.S. at 152,

93 S.Ct. at 1272. Its various provisions were designed to

encourage tribal enterprise and enable Indians “to enter

the white world on a footing of equal competition.” Jd. at

157, 93 S.Ct. at 1275, citing 78 Cong.Rec. 11732. The

legislative history also directs that after land is acquired

in trust, the Secretary must assure continued “beneficial

App. 85

use by the Indian occupant and his heirs.” H.R.Rep. No.

1804 at 7. See also City of Tacoma v. Andrus, 457 F.Supp.

342 (D.D.C.1978).

The availability of judicial review of the Secretary’s

actions may also serve to limit the delegation here. See

Garfinkel, 29 F.3d at 459. Judicial review “is a factor

weighing in favor of upholding a statute against a non-

delegation challenge.” Jd. The majority focuses on the

Secretary’s claim that such review is not available under

the APA in this case, but does not consider the issue, which

has not yet been developed in the trial court.

The majority chooses to disregard the limits on the

Secretary’s authority and the principles that guide the

exercise of his discretion. It claims that it cannot consider

narrowing constructions because it is bound by the holding

in Chase v. McMasters, 573 F.2d at 1015-16. Chase did not

hold that § 465 grants the Secretary unlimited authority

to acquire land, however, but merely rejected the sugges-

tion that the authority is limited to acquiring land for

landless Indians and concluded that § 465 authorized the

Secretary to accept conveyance of title to land already

owned in fee by an Indian.

Although the court recognizes that it is bound by the

holding in Chase, it rejects the interpretation there of the

legislative history of § 465 when it claims that Congress

meant only to provide agrarian land for landless Indians.

It states its own view that Congress only intended “that

the Secretary acquire rural lands suitable for farming,

grazing, and logging by Indians.” Not only is this interpre-

tation of the legislative history contrary to Chase, but the

majority's approach turns the nondelegation doctrine on

its head. Instead of using the legislative history to inform

App. 86

its reading of the statute, the court uses it in an attempt to

establish a line beyond which authority could not lawfully

be delegated. The relevant question for the nondelegation

doctrine, however, is whether the statute contains suffi-

cient standards to meet the constitutional requirement of

specificity.

Plaintiffs’ allegations raise state and local concerns

related to taxation and regulation of land and possible

gambling operations. These concerns appear to have

influenced the majority, but they are not directly relevant

to the constitutional analysis. Whether federal policy

should support the taking of land into trust- for Indian

tribes is up to the other branches of government, not the

judiciary.

In its discussion the court does not limit itself to the

specific land acquisition at issue in this case, but instead

hypothesizes that the Secretary, as head of an “agency

fiefdom,” may “purchase the Empire State Building in

trust for a tribal chieftain as a wedding present” or “pro-

vide a lake home for a politically faithful tribal officer.”

This is pure speculation. Whether such transactions would

be permissible under the statute are not questions raised

by this case, and the Secretary’s regulations make it

unlikely that such scenarios could arise.”

* Contrary to the court’s assertion that the Secretary has asserted

“unlimited power,” the regulations reflect the Congressional concern

that the land be acquired for the benefit of Indians. 25 C.F.R. § 151.1-

151.15. The Department’s land acquisition policy for tribes and for

individual Indians is stated in 25 C.F.R. § 151.3:

(a) Subject to the provisions contained in the acts of Con-

gress which authorize land acquisitions, land may be ac-

quired for a tribe in trust status

(Continued on following page)

App. 87

The record indicates that the land at issue here was

part of the Tribe’s original reservation, but was later lost.

The land was purchased by the Tribe after it had been

zoned for industrial purposes, and the Tribe stated that it

intended to develop an industrial park on it. Any attempt

to develop a gambling casino on trust land would be

subject to the Indian Gaming Regulatory Act, 25 U.S.C.

§§ 2701-2721, which requires both consideration by the

1) when the property is located within the exterior

boundaries of the tribe’s reservation or adjacent thereto, or

within a tribal consolidation area; or,

2) when the tribe already owns an interest in the land|;]

or,

3) when the Secretary determines that the acquisition of

the land is necessary to facilitate tribal self-determination,

economic development, or Indian housing.

(b) Subject to the provisions contained in the acts of Con-

gress which authorize land acquisitions or holding land in

trust or restricted status, land may be acquired for an indi-

vidual Indian in trust status

1) when the land is located within the exterior boundaries

of an Indian Reservation, or adjacent thereto; or,

2) when the land is already in trust or restricted status.

The regulations also list specific factors to be considered when

evaluating a request. These include the need for the individual indian

or the tribe for additional land, the purposes for which the land will be

used, the impact on the state and its political subdivisions resulting

from the removal of the land for the tax rolls, and jurisdictional

problems and potential conflicts of land use which may arise. 25 C.F.R.

§ 151.10 (April 1995).

The Secretary promulgated new regulations on June 23, 1995

which require that state and local governments which are affected by a

proposed acquisition be notified and given time to respond. 25 C.F.R.

§§ 151.10, 151.11 (60 F.R. 32879, June 23, 1995). Although the old

regulations do not set out such a notice requirement, it was apparently

done in practice. The State and city in this case both were notified and

responded. The 1995 regulations also provide several additional factors

to consider for off-reservation land acquisitions.

App. 88

Secretary of various factors and approval by the governor

of the State. 25 U.S.C. § 2719(b)(1).° The hypothetical

“opportunities for abuse” the majority fears are not based

on the record here and do not provide a sufficient basis to

strike down an act of Congress.

For all the reasons stated, the court is wrong in

finding § 465 of the Indian Reorganization Act of 1934 an

unconstitutional delegation of legislative authority. The

district court should not be reversed on this basis. The Act

was intended “to rehabilitate the Indian’s economic life”

and “to develop the initiative destroyed by a century of

oppression and paternalism,” Mescalero, 411 U.S. at 152,

93 S.Ct. at 1272, and the Congressional delegation of

authority for that purpose is principled and proper.

Il.

The nonconstitutional issues on the appeal need to be

addressed, and one of these requires reversal. Plaintiffs

claim under the APA that the Department failed to follow

its own procedures when it reviewed and approved the

Tribe’s request to take land into trust,’ that the Assistant

* This statute also provides that nothing in the section limiting

gaming on trust land “shall affect or diminish the authority and

responsibility of the Secretary to take land into trust.” 25 U.S.C.

§ 2719(c).

* Plaintiffs assert that the Assistant Secretary for Indian Affairs

failed to consider on the record the factors listed in 25 C.F.R. § 151.10.

Specifically, they claim that the Assistant Secretary did not know the

actual purposes for which the land would be used, did not explain the

need of the Tribe for additional land, and did not consider the jurisdic-

tional problems and potential conflicts of land use which might arise, or

the effect of the removal of the land from the tax rolls. They also assert

that the Assistant Secretary did not consider whether the acquisition

(Continued on following page)

App. 89

Secretary acted beyond the scope of his delegated author-

ity, and that the decision to take the land into trust was

arbitrary, capricious and an abuse of discretion. The

district court relied on the analysis in State of Florida v.

United States Department of the Interior, 768 F.2d 1248

(11th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186,

89 L.Ed.2d 302 (1986), to conclude that the Quiet Title Act

(QTA), 28 U.S.C. § 2409a, precludes review in this case

and that it therefore lacked jurisdiction. The QTA permits

the United States to be sued to resolve real property

disputes, but by its terms it does not apply to trust or

restricted Indian lands. 28 U.S.C. § 2409a. For the reasons

discussed below, I would reverse and remand for further

proceedings.

The APA waives the sovereign immunity of the United

States and federal officers for challenges to an agency

action in which the relief sought is not money damages. 5

U.S.C. § 702. The broad waiver of immunity contains an

exception, however:

Nothing herein ... confers authority to grant re-

lief if any other statute that grants consent to

suit expressly or impliedly forbids the relief

which is sought.

Id. The QTA, 28 U.S.C. § 2409a, is one such “other statute

that grants consent to suit” referred to in the APA waiver

provision. Block v. North Dakota ex rel. Board of Univer-

sity and School Lands, 461 U.S. 273, 103 S.Ct. 1811, 75

L.Ed.2d 840 (1983). The QTA provides that:

was consistent with 26 C.F.R. § 151.3, which describes when land

outside the reservation may be acquired, and did not follow procedures

described in memoranda issued by the Secretary of the Interior.

App. 90

The United States may be named as a party de-

fendant in a civil action under this section to ad-

judicate a disputed title to real property in which

the United States claims an interest, other than

a security interest or water rights.

28 U.S.C. § 2409a. It also provides that this section per-

mitting suits against the United States “does not apply to

trust or restricted Indian lands. .. . ” Id.

The QTA is the exclusive means by which an adverse

claimant can assert a property interest against the United

States. Block, 461 U.S. at 286, 103 S.Ct. at 1819;

Ducheneaux v. Secretary of the Interior, 837 F.2d 340, 343

(8th Cir.), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100

L.Ed.2d 923 (1988). If such a claim is barred by the provi-

sions of the QTA because it involves title to Indian trust

lands or the statute of limitations has run, for example, it

cannot be brought under another statute. Block, 461 U.S.

at 286, 103 S.Ct. at 1819; Ducheneaux, 837 F.2d at 343

(application of the QTA “preempts” review under the APA).

The waiver of immunity in the APA does not apply to such

claims. Id.

The key point here is these plaintiffs do not assert a

property interest in the land. Instead they seek judicial

review of the agency action by which land was acquired.

The QTA would not provide consent to suit for such a

claim, even if Indian trust lands were not involved. The

question then is to what extent the QTA provisions limit

the scope of the waiver of immunity in the APA for claims

to which the QTA itself does not apply.

It would distort the meaning of the QTA to interpret it

as impliedly forbidding all suits seeking to divest the

United States of title to Indian trust land, including those

App. 91

in which judicial review of the agency decision to acquire

trust lands is invoked. The QTA was enacted to allow

adverse claimants to assert their interests in real property

by suing the United States. Its provisions set out the

requirements for a valid complaint of this type. The

exception for Indian lands was included to avoid the

possibility that such suits be used to “abridg[e] the historic

relationship between the Federal Government and the

Indians without the consent of the Indians.” H.R.Rep. No.

1559, 92d Cong., 2d Sess. (1972), reprinted in 1972

U.S.C.C.A.N. 4547, 4556-57. The statutory language

simply states that the section does not apply to such lands.

To say that Congress intended by this to foreclose any type

of claim which could result in divestment of title to Indian

trust land would require an excessively broad reading of

the statute’s language and its purpose.

State of Florida v. United States Department of the

Interior, relied on by the district court, held that a suit

challenging the United State’s title to Indian trust land

was impliedly forbidden by the QTA, even though it was

not technically a suit to quiet title. 768 F.2d at 1253-55.

That conclusion was based on a finding there that the suit

challenged the tribe’s conduct on the land, rather than the

Secretary's decision to acquire the land, and thus did not

seek review of an agency action. Jd. at 1251. The Florida

plaintiffs did not intervene during the trust application

process, but complained only after the tribe began selling

cigarettes and operating a bingo facility on the land.

In contrast, plaintiffs here seek review of an agency

action. They actively opposed the land being taken into

trust throughout the Department’s review of the Tribe’s

application, and their claims specifically challenge the

decision to acquire the land and the process by which that

App. 92

decision was made. This case more closely resembles City

of Sault Ste. Marie v. Andrus, 458 F.Supp. 465, 470-72

(D.D.C.1978), which held that the QTA did not preclude

claims challenging the Department’s decision to take land

into trust.”

The nature of the relief sought in a challenge to

existing title differs from that sought in a request for

review of an administrative decision to acquire title. This

is true even though both could result in divestment of title

to Indian trust land. The Florida decision rests on the fact

that the complaints in that case arose only after the land

was taken into trust. In such circumstances divestment

could interfere with an existing trust relationship. Al-

though the plaintiffs in this case similarly ask that the

trust acquisition be set aside,° the complaint seeks review

of decisions made before the trust relationship was estab-

lished. Challenging the acquisition of title is less intrusive

to a trust relationship than challenging the status of

existing title.

* Plaintiffs in Sault St. Marie claimed that the tribe for which land

was taken into trust was not a tribe within the meaning of the Indian

Reorganization Act.

* The timing of the actual taking of the land into trust does not

affect the analysis in this case. The final decision to take the land was

made on December 13, 1990, but because of problems with the title, the

actual acquisition did not occur until November 30, 1992. When this

action was filed on July 13, 1992, it technically did not seek to divest

the United States of title, but to prevent it from completing the

acquisition. If the QT

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