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

2 FILED

(2) JUL 12 2006

In the Supreme Court of the Qnited States

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

Vv.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

WILLIAM B. LAZARUS

LISA E. JONES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

OFFICE OF THE CLERK

No. 05-1428] SUPREME COURT.US.

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QUESTION PRESENTED

Whether the provision of the Indian Reorganization

Act, 25 U.S.C. 461 et seq., that authorizes the Secretary

of the Interior to take real property into trust “for the

purpose of providing land for Indians,” 25 U.S.C. 465, is

an unconstitutional delegation of legislative power.

(I)

TABLE OF CONTENTS

Page

NE IN ok sa os dtc a weit a seen bls Lae e Deckaues 1

IR gS dk a Vn od coo e hehe wa RAR OLS see 1

IN 0s bGadodnNceid Shaw See coh esd eek aa Oe mbes 2

PI a5 pA 5 duc nlun sake ead bod sa eea keene as 11

DE a hiss ewes wecia ConA dae Cea 24

MIE Sic 5 kk othe nec ky cs ab kids Oe OR a a ema la

TABLE OF AUTHORITIES

Cases:

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

Cia RRR ics ce banded sh comesiseeetenias 16

Alaska v. Babbitt, 75 F.3d 449 (9th Cir. 1995), cert.

ems: FiO CS: BIG CIO) «os eek Rs ss 6

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

PR oS5 os an iccteay cece a LA ee 14, 16, 20, 21

Carcieri v. Norton, No. 03-2647, 2005 WL 2216322

Ra Ss Si ECs enced xa cubexet cd pvkasas 12

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 108 (1998) ... 2.5... eee cee 13

Central Mach. Co. v. Arizona State Tax Comm’n, 448

ha PN i a Se crack 5h te 22

City of Sherrill v. Oneida indian Nation, 544 U.S.

Oe CE 5 os nb OE SAFES Rick cask uae 13, 18, 23

Confederated Tribes of Siletz Indians v. United -

States, 110 F.3d 688 (9th Cir.), cert. denied, 522

SF ET RPE Ace ics ok nS PAR A eee 12

County of Yakima v. Confederated Tribes & Bands of

the Yakima Indian Nation, 502 U.S. 251 (1992) ... 2,13

(IIT)

IV

Cases—Continued: Page

Fahey v. Mallonee, 332 U.S. 245 (1947) ............... 17

Federal Radio Comm’n v. Nelson Bros. Bond &

Mortgage Co., 289 U.S. 266 (1938) ................. 17

Hagen v. Utah, 510 U.S. 399 (1994) .........0.....0... 17

Fiodel vy. frving, 451 U.S. TO4 (1987)... oc ck cece ns 2

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

WP AWE Sea ccd es wade eee were 14, 20

Lichter v. United States, 334 U.S. 742 (1948) . . 14, 17, 20, 21

Loving v. United States, 517 U.S. 748 (1996) ........... 14

Brutés v. Arnett 412 US: 481 C976) onic 6 sh on cbr eck tad 2

McClanahan v. Arizona State Tax Comm’n, 411 U.S.

DOO CWOED ea cack a snc wen a Oe En Peak os eo ee 23

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

ROD ARS wie caocinek toe ern ae 13, 17, 19, 21

Mistretta v. United States, 488 U.S. 361 (1989) ... 14, 15, 21

Morton v. Mancari, 417 U.S. 535 (1974) ............ 17,19

National Broad. Co. v. United States, 319 U.S. 190

CRUD is be wok Mowe WARS Kea eo Rin VAR ae NaN 15

Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d

DG Tee AN Ie a ei a AS Fa ee ee 6

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

TU ie ree SOAS Sa eae a Ot 17, 21, 23

O'Connor v. Donaldson, 422 U.S. 563 (1975) .. 2.22.2... 12

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ..... 16

Rice ¥. Gnon, SA U.S. TET GGG) oc ae naseus 23

Solem v. Bartlett, 465 U.S. 463 (1984) .................. 2

Cases—Continved: Page

Touby v. United States, 500 U.S. 160 (1991) ........... 14

United States v. Curtiss-Wright Exp. Corp., 299 U.S.

No Ssh icv hea wie es 4h baie e a 8 one e OREO 22

United States v. Hitchcock, 205 U.S. 80 (1907) ......... 22

United States v. Mazurie, 419 U.S. 544 (1975) ......... 22

United States v. Mitchell, 463 U.S. 206 (1983) .......... 22

United States v. Jackson, 280 U.S. 183 (1930) .......... 22

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

1999), cert. denied, 529 U.S. 1108 (2000) ............ 12

Utah v. Shivuits Band of Pauite Indians, 428 F.3d

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

No. 05-1160 (filed Mar. 9, 2006) .................... 12

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) ........... 19

White Mountain Apache Tribe v. Bracker, 448 U.S.

RE ni hh Sera Ora e eV van whee bokekée es 17

Whitman v. American Trucking Ass’ns, 531 U.S. 457

NE ad pa bus DANSEAT OEEGA Lowa OUP kas 14, 15, 19, 22

Yakus v. United States, 321 U.S. 414 (1944) ........... 15

Zedner v. United States, 126 S. Ct. 1976 (2006) ......... 21

Statutes:

Administrative Procedure Act, 5 U.S.C. 701 et seg. ...... 7

Clean Air Act, 42 U.S.C. 7409(b)(1) ..............0.0-. 15

Indian General Allotment Act of 1887, ch. 119,

MEE 28 ou ogee Peer e wed bute t sass 217

Indian Land Consolidation Act, 25 U.S.C. 2201 et seq. ... 13

Vi

Statutes—Continued: Page

Indian Reorganization Act of 1934, ch. 576, 48 Stat.

DEA CIR LIAS. SEU OO) on a a pa i ee 2

Pais, Oe NG OE 8 ask Sacvs abd HAWN dow ke ees 17

FAs MP <a ane 6c ew kwn ca kb deca 2,17

Ba ae AE ois dev ee dando wane eens Gi

Ps ae has SOUND 6s ede dives cedaweyes 2.17

ee PSR | ER rep eee Ren 3,17

Oi Se Asi OU EA irk b Wawa Cua eed passim

Pe, MAE as heWee eKaoes Ua eae eke 3

97, 20 U.S. 46T o ..c5 Ee OCS Pree er 3

SP SAS AD hes hes ce chee Rk eae 3,18 _

9 EG, Fer a 2 iin es baw Ren Bakke 3, 18

S35, See EE a0. hoe Oo aout eer ees 3, 18

Se Oe Be EEE caw hk ce eb abba ke cnes 3, 18

FU ee Ce OE soccer Aone assess wees 3, 18

OTe ee OE So hk aN see 3, 18

OT Pe Ae EE AS pe na kA ees ve ee Combeueens 3

Fee Cit en. See eee ge rere eer et 16

Indian Reorganization Act Amendments of 1988,

Pub. L. No. 100-581, Tit. I, § 101, 102 Stat. 2938 ..... 13

Indian Reorganization Act Amendments of 1990,

Pub. L. No. 101-301, § 3(b)-(©), 104 Stat. 207......... 13

Indian Reorganization Act Amendments of 1994,

Pub. L. No. 103-263, § 5(b), 108 Stat. 709 ........... 13

National Environmental Policy Act, 42 U.S.C. 4321

Lo Sea ES eee Py ee ee re ee enn 10

Geet Tithe Act, 23 USB: TOs os ee es 6, 7

Vil

Statutes—Continued: Page

OB UB. BOL BO Bae Clee? wc aceceiswes batanacsers 6

25 C.F.R. :

Fae BOE igs ce uke sak RaRd VESERS Loe 4, 20

CRAIN EE NUP io hic Sanaa SccMe LS we ca 5

ee Se SED © Coos 0 aa ee a eee 5, 20

INN Be Ne ack Seas chee eas 5, 20

SENOS BOE AI) 6 6 on oes g WE eS 5, 24

BIR FOL AOE 6 vee ooo ke ch eee 5, 24

PNG NOR PORE) yas vcs b Rule e geek eee ee 24

een BGR 1G so eae putea see 5

pecan C0 -eees ec s ia 0 Sooo Wasa hieeeken es 20

peices SORA a Sk Sa eG ob eee eek 5

OSG TOES oo i hi RS CS ea 8

Se BOR IS cs a he ee aie 6

BCKNON SBE Bo eck cadens ke ees 20

CUMPISON RO INES o somes a siento des Ge ee cee 5

meetin IGE. ACN MO): oi 55 cso 2oG eae cies 20

PITRE ZOU ION? = kb Siok oe naa bba coe e ec hwieee ek 5

Miscellaneous:

Cohen’s Handbook of Federal Indian Law (Nell

Jessup Newton et al. eds., 2005 ed.) ................. 2

45 Fed. Reg. (1980):

SATIRE 63k ts po hd Sb Ras Be EA Le 19

MORNE oho ct hs sah eae db cod hana ene ees 4

60 Fed. Rep. 32.874 (1996). ...... 02. 6060 06s ak eee 5

OL POG. Ree TAN COGS) ois kno Sas ou ca Raabe war d,8

VIII

Miscellaneous: Page

Be POU. OE. BOO L-OOOUE (LOGI) owe ccc encceeecnence 8

H.R. Rep. No. 1804, 73d Cong., 2d Sess. (1934) .. 17,19, 21

S. Rep. No. 1080, 73d Cong., 2d Sess. (1934) ........ 18, 21

In the Supreme Court of the Gnited States

No. 05-1428

STATE OF SOUTH DAKOTA, ET AL., PETITIONERS

v.

DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-24)

is reported at 423 F.3d 790. The district court’s opinion

granting summary judgment in favor of respondents

(Pet. App. 25-56) is reported at 314 F. Supp. 2d 935.

JURISDICTION

The judgment of the court of appeals was entered on

September 6, 2005. A petition for rehearing was denied

on February 6, 2006 (Pet. App. 138). The petition for a

writ of certiorari was filed on May 8, 2006 (a Monday).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. a. In the Indian General Allotment Act of 1887,

ch. 119, 24 Stat. 388, Congress adopted a policy of dis-

tributing Indians’ tribal lands to individual Indians. See

Hodel v. Irving, 481 U.S. 704, 706 (1987). In addition,

tribal lands that were deemed surplus were made avail-

able to settlement by non-Indians. See ibid. Other stat-

utes of that era similarly provided for the allotment of

land to individual Indians on particular reservations.

See zd. at 706-707; Solem v. Bartlett, 465 U.S. 463, 466

(1984); Mattz v. Arnett, 412 U.S. 481, 496-497 (1973).

The allotment policy reduced Indian land holdings from

138 million acres in 1887 to 48 million aeres in 1934, and

led to a patchwork of ownership on Indian reservations.

See County of Yakima v. Confederated Tribes & Bands

of the Yakima Indian Nation, 502 U.S. 251, 253-254

(1992); Cohen’s Handbook of Federal Indian Law 1009

n.337 (Nell Jessup Newton et al. eds., 2005 ed.).

Congress repudiated the policy of allotment in 1934

in the Indian Reorganization Act (IRA), ch. 576, 48 Stat.

984 (25 U.S.C. 461 et seq.).' In the IRA, Congress pro-

hibited any further allotment of reservation lands (§ 1,

25 U.S.C. 461), extended indefinitely the periods of trust

or restrictions on alienation of Indian lands (§ 2, 25

U.S.C. 462), provided for the restoration of surplus unal-

lotted lands to tribal ownership (§ 3(a), 25 U.S.C.

463(a)), and prohibited any transfer of Indian lands

(other than to the Tribe or by inheritance) except ex-

changes authorized by the Secretary as “beneficial for

or compatible with the proper consolidation of Indian

' The relevant provisions of the [RA, as they presently appear in the

United States Code (as amended), are reproduced in an appendix

hereto. App., i/fra, la-9a.

3

lands and for the benefit of cooperative organizations”

(§ 4,25 U.S.C. 464).

In addition, the IRA authorized or directed the Sec-

retary to undertake specified steps aimed at improving

the economic and social condition of Indians, including:

acquiring real property “for the purpose of providing

land for Indians” (IRA § 5, 25 U.S.C. 465); adopting reg-

ulations for forestry and livestock grazing on Indian

units (§ 6, 25 U.S.C. 466); proclaiming new Indian reser-

vations or adding to existing reservations with acquired

lands (§ 7, 25 U.S.C. 467); assisting financially in the

creation of Indian-chartered corporations (§ 9, 25 U.S.C.

469); making loans to Indian-chartered corporations out

of a designated revolving fund “for the purpose of pro-

moting the economic development” of the Tribes (§ 10,

25 U.S.C. 470); paying tuition and other expenses for

Indian students at vocational schools (§ 11, 25 U.S.C.

471); and giving preference to Indians for employment

in positions relating to Indian affairs (§ 12, 25 U.S.C.

472).

Finally, the IRA included provisions designed to

strengthen Indian self-government. Congress author-

ized Indian Tribes to adopt their own constitutions and

bylaws (IRA § 16, 25 U.S.C. 476), to incorporate (§ 17, 25

U.S.C. 477), and to decide, by referendum, whether to

opt out of the IRA’s application (§ 18, 25 U.S.C. 478).

Petitioners challenge the constitutionality of Section

5 of the IRA. The full text of that Section is as follows:

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relinauish-

ment, gift, exchange, or assignment, any interest in

lands, water rights, or surface rights to lands, within

or without existing reservations, including trust o1

otherwise restricted allotments, whether the allottee

d

be living or deceased, for the purpose of providing

land for Indians.

For the acquisition of such lands, interests in

lands, water rights, and surface rights, and for ex-

penses incident to such acquisition, there is author-

ized to be appropriated, out of any funds in the Trea-

sury 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 Ari-

zona, nor in New Mexico, in the event that legislation

to define the exterior boundaries of the Navajo In-

dian Reservation in New Mexico, and for other pur-

poses, or similar legislation, becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain available

until expended.

Title to any lands or rights acquired pursuant to

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

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

name of the United States in trust for the Indian

tribe or individual Indian for which the land is ac-

quired, and such lands or rights shall be exempt from

State and local taxation.

25 U.S.C. 465.

b. The Secretary adopted regulations in 1980 to im-

plement his authority to acquire property under the

IRA, which is carried out by the Bureau of Indian Af-

fairs (BIA). See 25 C.F.R. Pt. 151; 45 Fed. Reg. 62,036

(1980). Those regulations set forth the land-acquisition

5

policy and specify the factors that guide the Secretary’s

evaluation of land acquisition requests. See 25 C.F.R.

151.3(a), 151.10. The regulations provide that, subject

to consideration of the specified factors, land may be

acquired in trust for Indians when it is within or adja-

cent to the Tribe’s reservation or tribal land-consolida-

tion area, the Tribe already owns the land, or the acqui-

sition “is necessary to facilitate tribal self-determina-

tion, economic development, or Indian housing.” 25

C.F.R. 151.3(a)(3). The factors the Secretary considers

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

for additional land” and “(t]he purposes for which the

land will be used,” as well as “the impact on the State

and its political subdivisions resulting from the removal

of the land from the tax rolls” and any other

“{j Jurisdictional problems and potential conflicts of land

use.” 25 C.F.R. 151.10(b), (¢), (e) and (f).

The Secretary amended the land-acquisition regula-

tions in 1995 and 1996. See 60 Fed. Reg. 32,874 (1995);

61 Fed. Reg. 18,082 (1996). The amended regulations

retain the same statement of land-acquisition policy and

the factors for reviewing an application that were identi-

fied in the 1980 regulations. In addition, the amended

regulations require the BIA to give state and local gov-

ernments notice of a proposed acquisition and an oppor-

tunity for comment. 25 C.F.R. 151.10, 151.11(d). If the

land in question is neither within nor contiguous to a

reservation, the Secretary will give increasing scrutiny

to the Tribe’s claim of anticipated benefits and increas-

ing weight to any adverse impact of acquisition on the

State or locality’s regulatory jurisdiction or tax base as

the distance of the property from the Tribe’s reservation

increases. 25 C.F.R. 151.11(b) and (d). Finally, the 1996

regulatory amendment provides a thirty-day period af-

6

ter publication of the Secretary’s decision to take land

into trust before title is actually acquired, 25 C.F.R.

151.12(b), so that an interested party may bring a judi-

cial challenge to the acquisition.”

2. In 1990, the Lower Brule Sioux Tribe submitted

a request to the BIA that the Secretary take into trust

under Section 465 a 91-acre parcel of land owned by the

Tribe. Pet. App. 2. The parcel at issue lies seven or

eight miles south of the Lower Brule Sioux Reservation,

adjacent to Interstate Highway 90 (1-90), and partially

within the City of Oacoma, South Dakota. /bid. The

Tribe explained that it planned to use the land for an

industrial park to develop businesses and employment

opportunities for Native Americans. /d. at 101.

The BIA solicited comments on the Tribe’s proposal

from the State and the City of Oacoma. Both entities

_ expressed concerns about the proposal, including possi-

~ ble problems regarding criminal and civil jurisdiction.

Pet. App. 95-97, 101. The Tribe’s reply contended that

Oacoma did not presently provide government services

to the property in question and that tribal police would

be better able to respond to any incidents that might

arise on the parcel than the single sheriff's deputy who

was responsible for patrolling the entire county, includ-

ing the City of Oacoma. /d. at 102-103. In December

_* Such a challenge would be barred by sovereign immunity after title

is acquired, due to the exception for Indian lands in the Quiet Title Act

(QTA), 28 U.S.C. 2409a. See, e.g., Neighbors for Rational Dev., Inc. v.

Norton, 379 F.3d 956, 961-962 (10th Cir. 2004) (QTA barred APA action

challenging Secretary’s acquisition of land in trust under Section 465 as

violating NEPA); Alaska v. Babbitt, 75 F.3d 449, 452-453 (9th Cir. 1995)

(QTA barred APA claim that Bureau of Land Management’s approval

of Indian’s allotment under 43 U.S.C. 270-1 to 270-3 (1970) (repealed

1971), was ultra vires), cert. denied, 519 U.S. 818 (1996).

7

1990, the Department of the Interior approved the

Tribe’s request and, in 1992, the land was conveyed to

the United States in trust for the Tribe. /d. at 103.

3. The State of South Dakota and the City of Oacoma

filed suit in the United States District Court for the Dis-

trict of South Dakota alleging that the Department of

the Interior’s approval of the Tribe’s request was arbi-

trary and capricious and an abuse of discretion under

the Administrative Procedure Act (APA), 5 U.S.C. 701

et seq., and that Section 465, which authorized the acqui-

sition, was an unconstitutional delegation of legislative

power.

The district court rejected these challenges. Pet.

App. 94-115. The court held that it lacked jurisdiction

over the State and City’s APA claims in light of the pro-

hibition in the Quiet Title Act (QTA), 28 U.S.C. 2409a,

against challenges to the United States’ title to Indian

trust lands. Pet. App. 105-108. The court further held

that the State and City’s constitutional claims lacked

merit. Jd. at 109-11.

4. A divided panel of the Eighth Circuit reversed.

Pet. App. 64-93 (South Dakota v. Dep't of the Interior,

69 F.3d 878 (1995)). The majority found that Congress

had failed to set an “intelligible principle” to constrain

the Secretary’s exercise of authority under Section 465,

and that it was therefore an unconstitutional delegation

of legislative authority. Pet. App. 72. In so ruling, the

majority noted that the Secretary had urged that his

acquisition of land under Section 465 was not subject to

judicial review at all. /d. at 74. Judge Murphy dis-

sented. /d. at 78-93. She concluded that the historical

context in which Section 465 was enacted, the other pro-

visions of the IRA of which it was a part, and the IRA’s

legislative history all indicated that Section 465’s pur-

8

pose is to provide land and economic opportunity for

Indians to replace the millions of acres lost through the

allotment process and that that purpose provides the

Secretary with adequate direction. Jd. at 83-85.

5. The Department of the Interior petitioned this

Court for a writ of certiorari. At the same time, as noted

above, see pp. 5-6, supra, in response to the Eighth Cir-

cuit’s decision, the Department of the Interior amended

its trust acquisition regulations to ensure the availability

of judicial review of the Secretary’s action on an applica-

tion under Section 465 before land is actually taken into

trust—7.e., before judicial review is barred by sovereign

immunity under the exception for Indian lands in the

QTA. See 25 C.F.R. 151.12; 61 Fed. Reg. 18,082 (1996).

The government’s petition for a writ of certiorari sug-

gested that the Court grant the petition, vacate the

Eighth Circuit’s decision, and remand the action to the

Secretary for further proceedings under the new regula-

tions.

The Court granted the petition, vacated the Eighth

Circuit’s judgment, and directed that the matter be re-

manded to the Secretary of the Interior for reconsidera-

tion of his administrative decision under Interior’s

amended trust acquisition regulations. See Department

of the Interior v. South Dakota, 519 U.S. 919 (1996) (Pet.

App. 57-62); 62 Fed. Reg. 26,551-26,552 (1997) (explain-

ing that the remand to the Department of the Interior

operated to transfer the land out of trust).

6. Following remand, the Tribe submitted a renewed

request in 1997 that the United States acquire the

91-acre parcel in trust status. Pet. App. 3. The Tribe’s

amended application explained that the purpose of the

acquisition was to “enhance the economic development

of the tribe and * * * to provide a nexus to the Oacoma

~

9

area which is of historical importance to the Tribe.” /d.

at 132.

The Tribe indicated that it intended to use the 91-

acre parcel to attract I-90 tourist traffic onto South Da-

kota’s Native American Scenic Byway. Pet. App. 1382.

The Tribe explained that it planned to build a “Circle of

Tipis” comprised of seven tipis—each representing one

of the South Dakota Sioux Tribes—and a visitor infor-

mation and welcome center on the parcel for the By-

way’s southern terminal entrance. /bid.

The Tribe further explained that acquisition of the

property would help the Tribe achieve economic inde-

pendence and benefit the surrounding localities and

other Tribes. Pet. App. 131-132, 133. The Tribe noted

that because of its small population and remote location,

the Tribe’s existing reservation was unable to sustain an

economy. Jbid. As a consequence, over 40% of adult

members residing on the reservation were unemployed,

and over 25% of the residents had incomes below the

poverty line. /d. at 131. The Tribe contended that ac-

quisition in trust of the property along I-90 would allow

the Tribe to attract business and employment opportuni-

ties for tribal members. /d. at 133.

The BIA notified the State, County and City of the

Tribe’s reapplication and requested their comments.

Pet. App. 133. Each responded opposing the acquisition

on the basis of lost tax revenue and jurisdictional con-

flicts, such as zoning, 2b7d., although South Dakota’s

Governor later stated that he supported the application,

as did various local entities, 7d. at 134.

The Assistant Secretary for Indian Affairs approved

the application. Pet. App. 4; 2d. at 116-117. The agency

determined that an analysis of the regulatory factors

supported taking the land into trust to promote the eco-

10

nomic development of the Tribe. /bid.; id. at 128-137.

In response to the objections raised by the State and

local governments, the Department found that the tax

impact on local governments would be insignificant

—$2587—and that a much larger trust acquisition for

the Tribe a few years earlier had “not encountered any

jurisdictional problems.” Jd. at 134.

7. The State, County and City filed suit challenging

the acquisition decision under the APA and on constitu-

tional grounds.’ The district court rejected each of peti-

tioners’ challenges. The court reviewed the factors for

taking land into trust, as outlined in the regulations, and

determined that the Secretary had considered them ade-

quately. Pet. App. 32-45. The court further held that

Section 465 is not an unconstitutional delegation of legis-

lative authority because, based upon a “plain reading of

§ 465” and “review of the historic context and legislative

history of the IRA, Congress’s ‘general policy’ support-

ing enactment of § 465 becomes apparent.” Jd. at 50.

8. The court of appeals affirmed. Pet. App. 1-24.

The court observed that, in assessing petitioners’ consti-

tutional challenge, it must examine “the broader context

of the Act to determine whether the delegation in 25

U.S.C. § 465 includes guidance sufficient to withstand a

challenge based upon nondelegation doctrine grounds.”

* During the course of the district court litigation, the action was

stayed temporarily to allow the Department of the Interior to re-

examine its compliance with the National Environmental Policy Act of

1969, 42 U.S.C. 4321 et seg. Pet. App. 119. After preparing an environ-

mental assessment analyzing the impacts of the proposed acquisition,

the Department determined that the acquisition was not likely to signi-

ficantly impact the environment. /d. at 120. In January 2001, the

Department ratified its earlier decision to acquire the land in trust

status. /d. at 116-117.

11

Id. at 10. Examining the language and the context of

the Act, the court determined that the purposes of Sec-

tion 465 are made “evident in the whole of the IRA and

its legislative history.” Jd. at 11. The court found that,

reading the statute as a whole and in its historic context,

“(t]he statutory aims of providing lands sufficient to en-

able Indians to achieve self-support and ameliorating

the damage resulting from the prior allotment policy

sufficiently narrow the discretionary authority granted

to” the Secretary in Section 465. /d. at 14.

The court of appeals also rejected the State’s argu-

ment that the Secretary had failed to consider ade-

quately the regulatory factors governing the exercise of

his discretion. Pet. App. 15-22. The court found that the

agency’s finding that the property “would greatly en-

hance the Tribe’s economic base and its ability to be

self-sufficient, thereby serving the purposes of the

IRA,” was supported by the evidence, as was its finding

that the adverse impact on local jurisdictions would be

insignificant. /d. at 19. The court also found that the

agency had considered adequately the issue of the prop-

erty’s distance from the Tribe’s existing reservation

when it found that “considering the circumstances of

rural central South Dakota,” the eight-mile distance is

“of no great significance,” because the location along I-

90 “holds the greatest potential for the accomplishment

of the Tribe’s goals.” Jd. at 21-22.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other

court of appeals. Further review by this Court is there-

fore unwarranted.

12

1. Notably, petitioners do not contend that review by

this Court is necessary to resolve a conflict among the

courts of appeals. Rather, as petitioners concede (Pet.

14-15), each of the courts of appeals that has considered

a constitutional challenge to Section 465 on nondelega-

tion grounds has rejected that argument. See Pet. App.

6-14; Utah v. Shivwits Band of Pauite Indians, 428 F.3d

966, 972-974 (10th Cir. 2005), petition for cert. pending,

No. 05-1160 (filed March 9, 2006); Carcieri v. Norton,

No. 03-2647, 2005 WL 2216322, **8-**9 (1st Cir. Sept.

13, 2005); United States v. Roberts, 185 F.3d 1125, 1137

(10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000); Con-

federated Tribes of Siletz Indians v. United States, 110

F.3d 688, 694, 698 (9th Cir.), cert. denied, 522 U.S. 1027

(1997)."

Nor is the issue presented one of urgent importance.

To the contrary, the statutory provision that petitioners

* The First Circuit panel’s amended opinion in Carcieri was ori-

ginally reported at 423 F.3d 45. Appellants filed a petition for rehear-

ing en banc on November 7, 2005, which did not raise the nondelegation

issue. The court thereafter requested that the opinion be withdrawn

from the bound volume of the Federal Reporter. The editor’s note at

423 F.3d at 46-72 makes clear, however, that the decision has not been

vacated or withdrawn. To date, the court has taken no action on the

petition for rehearing en bane. See No. 03-2647 Dkt.

Petitioners observe (Pet. 5-7) that a divided panel of the Eighth

Circuit had, at an earlier stage of this litigation, upheld a nondelegation

challenge to Section 465 (Pet. App. 64-93). This Court, however, va-

cated the panel's decision, and remanded the matter to the Secretary

of the Interior to reconsider his administrative decision and to permit

judicial review in light of newly amended regulations. /d. at 57-62.

Accordingly, the initial panel decision has no precedential effect, see

O'Connor v. Donaldson, 422 U.S. 563, 578 n.12 (1975) (“Of necessity our

decision vacating the judgment of the Cour* of Appeals deprives that

court’s opinion of precedential effect.”), and the court of appeals has

itself repudiated its reasoning, see Pet. App. 9-14.

13

seek to have invalidated was enacted nearly 70 years

ago, and since that time it has become embedded in the

practical, day-to-day administration of Indian affairs.

For seven decades, Section 465 has provided the pri-

mary mechanism for the federal government to restore

and replace tribal lands, which Congress concluded was |

crucial to promote tribal self-government and economic

self-sufficiency. See pp. 17-18, infra. Congress has,

moreover, often revisited and amended the IRA, includ-

ing subsequent to the Secretary’s promulgation of land-

acquisition regulations, without expressing any dis-

- agreement with the Secretary’s understanding of the

statutory policies that are to guide his determinations.”

Similarly, this Court has considered Section 465 on

numerous occasions and has remarked that “Section

465 provides the proper avenue” for a Tribe “to reestab-

lish sovereign authority over [lost] territory.” City

of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 221

(2005). See also Cass County v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103, 114 (1998) (noting that,

in Section 465, Congress had granted the Secretary “au-

thority to place land in trust, to be held by the Federal

Government for the benefit of the Indians” and “explic-

itly set forth a procedure by which lands held by Indian

tribes may become tax exempt”); County of Yakima v.

Confederated Tribes and Bands of Yakima Indian Na-

tion, 502 U.S. 251, 255 (1992); Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 155-159 (1978).

* See Indian Reorganization Act Amendments of 1994, Pub. L. No.

103-263, § 5(b), 108 Stat. 709; Indian Reorganization Act Amendments

of 1990, Pub. L. No. 101-301, § 3(b)-(e), 104 Stat. 207; Indian Reorgani-

zation Act Amendments of 1988, Pub. L. No. 100-581, Tit. I, § 101, 102

Stat. 2938; see also Indian Land Consolidation Act, 25 U.S.C. 2201 et

seq. (extending the reach of Section 465 to all Tribes).

14

The Court previously declined to grant review on the

nondelegation issue in Roberts, which the court of ap-

peals followed in this case (Pet. App. 11), and the same

disposition is warranted in this case as well. ;

2. Despite the uniform appellate decisions upholding

the constitutionality of Section 465, petitioners urge

(Pet. 15) that the Court should grant a writ of certiorari

to review the court of appeals’ application of this Court’s

decision in Whitman v. American Trucking Ass’ns, 531

U.S. 457 (2001). The court of appeals’ application to a

particular statute of well-settled principles regarding

the conferral of authority on the Executive Branch does

not warrant this Court’s review. In any event, contrary

to petitioners’ contentions, the courts of appeals have

carefully considered and correctly applied this Court’s

nondelegation precedent.

a. It is well settled that “Congress does not violate

the Constitution merely because it legislates in broad

terms, leaving a certain degree of discretion to executive

or judicial actors.” Touby v. United States, 500 U.S.

160, 165 (1991). It is “constitutionally sufficient if Con-

gress clearly delineates the general policy, the public

agency which is to apply it, and the boundaries of this

delegated authority.” Mistretta v. United States, 488

U.S. 361, 372-373 (1989) (quoting American Power &

Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Accord Whit-

man, 531 U.S. at 472 (quoting J.W. Hampton, Jr., & Co.

v. United States, 276 U.S. 394, 409 (1928)) (Congress

must “lay down by legislative act an intelligible principle

to which the person or body authorized to [act] is di-

rected to conform. ”).

Aithcugh “in 1935 [the Court] struck down two dele-

gations for lack of an intelligible principle,” the Court

has “since upheld, without exception, delegations under

15

standards phrased in sweeping terms.” Loving v. United

States, 517 U.S. 748, 771 (1996); see, e.g., Lichter v.

United States, 334 U.S. 742, 778-786 (1948) (upholding

a statute authorizing the War Department to recover

“excessive profits” earned on military contracts); Yakus

v. United States, 321 U.S. 414, 420-427 (1944) (upholding

a statute authorizing the Price Administrator to set -

prices that are “generally fair and equitable and will

effectuate the purposes of [the Emergency Price Con-

trol] Act”); National Broadcasting Co. v. United States,

319 U.S. 190 (1943) (upholding a statute authorizing the

Federal Communications Commission to regulate broad-

casting according to the “public interest, convenience, or

necessity”).

In Whitman itself, this Court reversed the court of

appeals’ determination that the Clean Air Act, 42 U.S.C.

7409(b)(1), unconstitutionally delegated Congress’s leg-

islative power to the Environmental Protection Agency

to set national air quality standards. 531 U.S. at 472.

The Court emphasized that “[iJn the history of the Court

[it has] found the requisite ‘intelligible principle’ lacking

in only two statutes,” and that it had “almost never felt

qualified to second-guess Congress regarding the per-

missible degree of policy judgment that can be left

to those executing or applying the law.” /d. at 474-475

(quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissent-

ing), and citing 7d. at 373 (majority opinion)). The Court

noted that “the degree of agency discretion that is ac-

ceptable varies according to the scope of the power con-

gressionally conferred,” and that in the two statutes

struck down on nondelegation grounds, one “provided

literally no guidance for the exercise of discretion,” and

the other “conferred authority to regulate the entire

economy on the basis of no more precise a standard

16 i

than stimulating the economy by assuring ‘fair competi-

tion.’” Id. at 474, 475 (citing Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495 (1935)). The Court

stressed that it had never required “that statutes pro-

vide a determinate criterion for saying how much of the

regulated harm is too much.” /d. at 475 (internal quota-

tion marks and alteration omitted). ?

. b. The courts of appeals have correctly (and uni-

formly) held that “the purposes evident in the whole of

the [RA and its legislative history sufficiently narrow

the delegation and guide the Secretary’s discretion in

deciding when to take land into trust” to withstand con-

stitutional challenge. Pet. App. 11.

Section 465 itself contains a number of express indi-

cations of Congress's policy. That section states that the

purpose of the Secretary’s land-acquisition authority is

“providing land for Indians,” which is a narrow group of

individuals defined in 25 U.S.C. 479. See 25 U.S.C. 465.

Section 465 provides a limited amount of federal funds

to be used for the purpose and expressly forbids the use

of those funds to acquire land for Navajo Indians outside

of their established reservation boundaries. /bid. Fi-

nally, Section 465 specifies that lands taken into trust

“shall be exempt from State and local taxation.” /bid.

Moreover, whereas petitioners discuss solely Section

465 in isolation, that provision’s context as part of the

larger IRA is fundamental to understanding the scope

of the Secretary’s authority to take land into trust for

Indians. The boundaries of the Secretary’s authority

under Section 465 “need not be tested in isolation,”

American Power & Light, 329 U.S. at 104, but may be

discerned from the purposes of the IRA as a whole, its

factual background, and the statutory context. /bid.;

17

Lichter, 334 U.S. at 785; Federal Radio Comm’n v. Nel-

son Brothers Bond & Mortgage Co., 289 U.S. 266, 285

(1933) (holding that the “public convenience, interest, or

necessity [standard] * * * is to be interpreted by its con-

text”); Fahey v. Mallonee, 332 U.S. 245, 253 (1947) (find- -

ing broad delegation to regulate banks “sufficiently ex-

plicit, against the background of custom, to be ade-

quate”).

Congress enacted the IRA to promote Indian self-

government and economic self-sufficiency. See

Mescalero Apuche Tribe, 411 U.S. at 152-154 (“The in-

tent and purpose of the Reorganization Act was ‘to reha-

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

chance to develop the initiative destroyed by a century

of oppression and paternalism.’”) (quoting H.R. Rep.

No. 1804, 73d Cong., 2d Sess. 6 (1934)); accord New

Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335

(1983) (the IRA reflects Congress’s “overriding goal of

encouraging ‘tribal self-sufficiency and economic devel-

opment”) (quoting White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 148 (1980)); Morton v. Mancari,

417 U.S. 535, 542 (1974). Congress was particularly con-

cerned with reversing the “disastrous” consequences of

the Indian General Allotment Act of 1887, ch. 119, 24

Stat. 388, which had eroded the tribal land base and

weakened tribal organizations. Hagen v. Utah, 510 U.S.

399, 425 & n.5 (1994), Congress identified “conservling]

and developling] Indian lands and resources” as one of

the purposes of the IRA. Pmbl., 48 Stat. 984.

Accordingly, the IRA expressly repudiates the allot-

ment policy, 25 U.S.C. 461, and contains several provi-

sions designed to preserve and expand tribal lands. 25

U.S.C. 462, 463(a), 464, 465. Other provisions of the IRA

likewise reflect Congress’s policy of promoting the eco-

18

nomic development and self-governance of the Indian

Tribes. 25 U.S.C. 469, 470, 471, 472, 476, 477. The Secre-

tary’s authority under Section 465 to acquire fand in

trust for Indians and the protection of that property

against taxation is intended to further the larger statu-

tory purposes, for example, by ensuring that tribal lands

are not lost by condemnation, alienation, encroachment,

or tax defaults. See generally City of Sherrill, 544 U.S.

at 220-221 (recognizing that Section 465 serves as Con-

gress’s “mechanism for the acquisition of lands for tribal

communities that takes account of the interest of others

with stakes in the area’s governance and well being” and

“provides the proper avenue for * * * reestablish[ing]

sovereign authority over territory” formerly held by an

Indian Tribe).

The IRA’s legislative history confirms the congres-

sional purpose that is evident from the statutory text.

As the court of appeals observed, the repeated refer-

ences in the House and Senate Reports as well as floor

debates to the goal of providing land to “Indian individu-

als and tribes whose land holdings are insufficient for

self-support,” Pet. App. 13 (quoting S. Rep. No. 1080,

73d Cong., 2d Sess. 2 (1934)), reflect 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,” 7d. at

14.

The purposes of the IRA as reflected in its text,

structure, context, and history provide the intelligible

principles that guide the Secretary in the exercise of his

authority under Section 465. The Secretary may acquire

land “for the purpose of providing land for Indians,”

within the intent of Section 465, when the acquisition

would serve such purposes as advancing tribal economic

19

development, assisting tribal self-governance, and re-

storing the ancestral tribal land base. Indeed, this

Court has often identified those policies as the Congres-

sional purposes that guide the Secretary’s application of

the IRA. See Mancari, 417 U.S. at 542 (“The overriding

purpose of [the IRA] was to establish machinery

whereby Indian tribes would be able to assume a greater

degree of self-government, both politically and economi-

eally.”); Mescalero Apache Tribe, 411 U.S. at 152 (“The

intent and purpose of the Reorganization Act was ‘to

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

chance to develop the initiative destroyed by a century

of oppression and paternalism.’”) (quoting H.R. Rep.

No. 1804, supra, at 6); see also Washington v. Confeder-

ated Tribes of the Colville Indian Reservation, 447 U.S.

134, 168 (1980) (Brennan, J., concurring in part and dis-

senting in part) (noting that the IRA reflects both the

“policy of encouraging tribal self-government” and the

“complementary interest in stimulating Indian economic

and commercial development”).

Consistent with this long-established focus of the

IRA, the Secretary has recognized that Section 465 does

not confer boundless discretion. For example, in adopt-

ing a regulatory statement of land-acquisition policy

under Section 465, the Secretary expressed his under-

standing that “[t]he policy * * * is within the scope of

existing statutory authority and * * * reflects Con-

gressional intent.” 45 Fed. Reg. 62,035 (1980). The Sec-

retary has, moreover identified through regulation the

specific factors, derived from the purposes of the IRA

and the Secretary’s experience in administering it, that

guide his decisions to take lands into trust for Tribes

: 20

and individual Indians. See 25 C.F.R. Pt. 151." By set-

ting out ascertainable standards that govern trust acqui-

sition decisions, the Secretary has not only observed,

but has given concrete expression to, the limiting princi-

ples in the IRA. Cf. Lichter, 334 U.S. at 783 (recogniz-

ing that subsequent “administrative practices” under a

statute may demonstrate the “definitive adequacy” of

the terms of the statutory authorization).

c. Petitioners assert (Pet. 19) that, under this

Court’s decision in Whitman, “the nondelegation doc-

trine denies reliance on legislative history” for deter-

mining whether a sttute sufficiently guides the exercise

of the authority it delegates. Whitman’s reiteration that

Congress must “lay down by legislative act an intelligi-

ble principle” does not, however, address in any way

what reliance a court may give to legislative history in

construing the text that Congress has enacted. Whit-

man, 531 U.S. at 472 (quoting Hampton, 276 U.S. at

409). And this Court has repeatedly made clear that a

statute’s purpose, factual background, and context are

properly considered in determining whether a statute

meets this test. See, e.g., American Power & Light, 329

* As discussed above, see pp. 4-5, supra, the regulations set forth a

“Land acquisition policy,” 25 C.F.R. 151.3, which provides for acquisi-

tions in three circumstances: when the land is within or adjacent to an

existing reservation, when the land is already owned by the Tribe, or

when “the acquisition of the land is necessary to facilitate tribal self-

determination, economic development, or Indian housing.” 25 C.F.R.

151.3(a)(1)-(3).. The regulations then set forth particular factors to

guide the Secretary’s decision whether to acquire such land, including

“ft]he need of the individual Indian or the tribe for additional land” (25

C.F.R. 151.10(b)), “[t]he purposes for which the land will be used” (25

C.F.R. 151.10(¢)), and, if the land is outside a reservation and is to be

used for a tribal business purpose, “the anticipated economic benefits

associated with the proposed use” (25 C.F.R. 151.11(¢)).

21

U.S. at 104; Lichter, 334 U.S. at 778-779. To the same

extent that legislative history may be useful to confirm

the meaning of arguably ambiguous text in other con-

texts, see, e.g., Zedner v. United States, 126 S. Ct. 1976,

1985-1986 (2006), so may it also serve that function in

resolving a constitutional challenge on nondelegation

grounds. And of particular relevance here, as noted

above, this Court has repeatedly relied on the legislative

history of the IRA in identifying its purposes and poli-

cies. See, e.g., Mescalero Apache Tribe, 411 U.S. at 152-

154 (quoting H.R. Rep. No. 1804, supra, at 6); New Mex-

ico, 462 U.S. at 335 n.17 (quoting same).

Additionally, petitioners err in suggesting (Pet. 21-

22) that the legislative history demonstrates that Con-

gress “stripped” Section 465 of any standards. To the

contrary, Congress deliberately crafted the IRA to pro-

vide the Secretary with broad authority to implement

the purposes of the Act—advancing tribal economic de-

velopment, assisting tribal self-governance and restor-

ing the ancestral tribal land base. See S. Rep. No. 1080,

supra, at 1-2; accord H.R. Rep. No. 1804, supra, at 1, 6-

7. As this Court has recognized, legislation through

“broad general directives” is a necessary part of gover-

nance and is not constitutionally suspect. Mistretta, 488

US. at 372; American Power & Light, 329 U.S. at 105

(“legislative process would frequently bog down if Con-

gress were constitutionally required to appraise before-

hand the myriad situations to which it wishes a particu-

lar policy to be applied and to formulate specific rules

for each situation.”). That is especially so with respect

to the administration of Indian Affairs, involving the

varying circumstances of a number of different Tribes.

The court of appeals’ reliance on the larger statutory

and historical context in which the IRA was enacted,

22

including its legislative history, to determining whether

the statute provides adequate guidance to the Secretary

was proper and provides no warrant for this Court’s

review.

3. Petiticners’ contention that the acquisition of

lands in trust status by the Secretary impermissibly

“invade[s] the jurisdiction of the State” (Pet. 25-26), pro-

vides no basis for granting the petition. Although peti-

tioners correctly note that the Court stated in Whitman

that the level of direction required of Congress will vary

depending upon the nature of the power conferred, Pet.

_ 25 (citing Whitman, 531 U.S. at 475), that principle sup-

ports the constitutionality of the delegation contained in

Section 465. In an area in which the Executive has his-

torically exercised expansive authority, such as the su-

pervision of lands occupied by Indians,’ broader authori-

zations are especially appropriate. United States v.

Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936)

(recognizing that Congress may accord to the President

a greater degree of discretion in the area of foreign af-

fairs than would be acceptable if only domestic affairs

were involved); United States v. Mazurie, 419 U.S. 544,

556-557 (1975) (upholding a broad conferral of authority

on various Indian Tribes to regulate the introduction of

liquor into Indian country on the ground that limitations

on Congress’s authority are “less stringent in cases

where the entity exercising the delegated authority it-

self possesses independent authority over the subject

matter”).

See, ¢.g., United States v. Mitchell, 463 U.S. 206, 209 (1983);

Central Mach. Co. v. Arizona State Tax: Comm’n, 448 U.S. 160, 163

(1980); United States v. Jackson, 280 U.S. 183, 191 (1980); Unated

States v. Hitchcock, 205 U.S. 80, 85 (1907).

23

Nor is it exceptional that Congress determined in

Section 465 to confer immunity on land held in trust for

Indians from state taxation. “The policy of leaving Indi-

ans free from State jurisdiction and control” is one that

“is deeply rooted in the Nation’s history.” Rice v. Olson,

324 U.S. 786, 789 (1945); see also McClanahan v. Ari-

zona State Tax Comm'n, 411 U.S. 164, 168-173 (1973);

New Mexico, 462 U.S. at 332-333.

Similarly, petitioners’ complaint that “the acquisition

of land in trust deprives the states and localities of their

ability to zone, govern, regulate, or control the use of or

development of any real or personal property” is not

material to petitioners’ constitutional claim that Section

465 lacks an “intelligible principle” to guide the Secre-

tary’s exercise of his authority under Section 465.

Rather, petitioners’ argument represents a disagree-

ment with-longstanding principles—embodied in the

IRA and numerous other statues—that govern Indian

lands and Indian self-determination. Against that back-

ground, Congress made an explicit policy determination

to allow the Secretary to take into trust land “within or

without existing reservations” and that “such lands or

rights shall be exempt from State and local taxation.” 25

U.S.C. 465.

Finally, petitioners ignore that the Secretary’s regu-

lations promulgated by the Secretary to implement the

purposes of Section 465 address the very concerns they

raise here. See City of Sherrill, 544 U.S. at 220-221

(“The regulations implementing [Section] 465 are sensi-

tive to the complex interjurisdictional concerns that

arise when a tribe seeks to regain sovereign control over

territory.”). The regulations direct the BIA, when de-

ciding whether to approve a request that it accept land

into trust, to consider any “[jJurisdictional problems and

24

potential conflicts of land use which may arise.” 25

C.F.R. 151.10(f). Similarly, when, as was true in this

case, the land to be acquired is held in unrestricted fee

status, the BIA considers “the impact on the State and

its political subdivisions resulting from the removal of

the land from the tax rolls,” 25 C.F.R. 151.10(e), as well

as whether the BIA “is equipped to discharge the addi-

tional responsibilities resulting from the acquisition of

the land in trust status,” 25 C.F.R. 151.10(g). The court

of appeals concluded that the BIA properly applied

those regulations in this case, see Pet. App. 15-24, and

petitioners do not challenge that ruling here. -

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

WILLIAM B. LAZARUS

LISA E. JONES

Attorneys

JULY 2006

APPENDIX

Act of June 18, 1934, h. 576, 48 Stat. 984 (25 U.S.C.

641 et seq.) provides in pertinent part:

§$ 461. Allotment of land on Indian reservations

On and after June 18, 1934, no land of any Indian

reservation, created or set apart by treaty or agreement

with the Indians, Act of Congress, Executive order, pur-

chase, or otherwise, shall be allotted in severalty to any

Indian.

$462. Existing periods of trust and restrictions on

alienation extended

The existing periods of trust placed upon any Indian

lands and any restriction on alienation thereof are

extended and continued until otherwise directed by

Congress.

§ 463. Restoration of lands to tribal ownership

(a) Protection of existing rights

The Secretary of the Interior, if he shall find it to be

in the public interest, is hereby authorized to restore to

tribal ownership the remaining surplus lands of any

Indian reservation heretofore opened, or authorized to

be opened, to sale, or any other form of disposal by

Presidential proclamation, or by any of the public-land

laws of the United States: Provided, however, That

valid rights or claims of any persons to any lands so

withdrawn existing on the date of the withdrawal shall

(la)

2a

not be affected by this Act: Provided further, That this

section shall not apply to lands within any reclamation

project heretofore authorized in any Indian reservation.

*# kk & kk &

§ 464. [As amended by Pub. L. No. 109-221, § 501(b)(1),

120 Stat. 343-344.] Transfer and exchange of

restricted Indian lands and shares of Indian

tribes and corporations

Except as provided in this Act, no sale, devise, gift,

exchange, or other transfer of restricted Indian lands or

of shares in the assets of any Indian tribe or corporation _

organized under this Act shall be made or approved:

Provided, That such lands or interests may, with the

approval of the Secretary of the Interior, be sold,

devised, or otherwise transferred to the Indian tribe in

which the lands or shares are located or from which the

shares were derived, or to a successor corporation:

Provided further, That, subject to section 8(b) of the

American Indian Probate Reform Act of 2004 (Public

Law 108-374; 25 U.S.C. 2201 note), lands and shares

described in the preceding proviso shall descend or be

devised to any member of an Indian tribe or corporation

described in that proviso or to an heir or lineal

descendant of such a member in accordanee with the

Indian Land Consolidation Act (25 U.S.C. 2201 et seq.),

including a tribal probate code approved, or regulations

promulgated under, that Act: Provided further, That

the Secretary of the Interior may authorize any

voluntary exchanges of lands of equal value and the

voluntary exchange of shares of equal value whenever

such exchange, in the judgment of the Secretary, is

3a

expedient and beneficial for or compatible with the

proper consolidation of Indian lands and for the benefit

of cooperative organizations.

§ 465. Acquisition of lands, water rights or surface

rights; appropriation; title to lands; tax ex-

emption for footnote style edittion

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relinquish-

.ment, gift, exchange, or assignment, any interest in

lands, water rights, or surface rights to lands, within or

without existing reservations, including trust or

otherwise restricted allotments, whether the allottee be

living or deceased, tor the purpose of providing land for

Indians.

For the acquisition of such lands, interests in lands,

water rights, and surface rights, and for expenses

incident to such 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 Reservation in New

Mexico, and for other purposes, or similar legislation,

becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain available

until expended.

4a

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.

§ 466. Indian forestry units; rules and regulations

The Secretary of the Interior is directed to make

rules and regulations for the operation and management

of Indian forestry units on the principle of sus-

tained-yield management, to restrict the number of

livestock grazed on Indian range units to the estimated

carrying capacity of such ranges, and to promulgate

such other rules and regulations as may be necessary to

protect the range from deterioration, to prevent soil

erosion, to assure full utilization of the range, and like

purposes.

§ 467. New Indian reservations

The Secretary of the Interior is hereby authorized to

proclaim new Indian reservations on lands acquired

pursuant to any authority conferred by this Act, or to

add such lands to existing reservations: Provided, That

lands added to existing reservations shall be designated

for the exclusive use of Indians entitled by enrollment or

by tribal membership to residence at such reservations.

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§ 469. Indian corporations; appropriation for organiz-

ing

There is hereby authorized to be appropriated, out of

any funds in the Treasury not otherwise appropriated,

such sums as may be necessary, but not to exceed

$250,000 in any fiscal year, to be expended at the order

of the Secretary of the Interior, in defraying the

expenses of organizing Indian chartered corporations or

other organizations created under this Act.

§ 470. Revolving fund; appropriation for loans

There is authorized to be appropriated, out of any

funds in the Treasury not otherwise appropriated, the

sum of $20,000,000 to be established as a revolving fund

from which the Secretary of the Interior, under such

rules and regulations as he may prescribe, may make

loans to Indian chartered corporations for the purpose

of promoting the economic development of such tribes

and of their members, and may defray the expenses of

administering such loans. Repayment of amounts

loaned under this authorization shall be credited to the

revolving fund and shall be available for the purposes

for which the fund is established.

§ 471. Vocational and trade schools; appropriation

for tuition

There is authorized to be appropriated, out of any

funds in the United States Treasury not otherwise

appropriated, a sum not to exceed $250,000 annually,

together with any unexpended balances of previous

appropriations made pursuant to this section, for loans

6a

to Indians for the payment of tuition and other expenses

in recognized vocational and trade schools: Provided,

That not more than $50,000 of such sum shall be

available for loans to Indian students in high schools and

colleges. Such loans shall be reimbursable under rules

established by the Commissioner of Indian Affairs.

§ 472. Standards for Indians appointed to Indian

Office

The Secretary of the Interior is directed to establish

standards of health, age, character, experience, knowl-

edge, and ability for Indians who may be appointed to

the various positions maintained, now or hereafter, by

the Indian Office, in the administration of functions or

services affecting any Indian tribe. Such qualified

Indians shall hereafter have the preference to appoint-

ment to vacancies in any such positions.

* ke e KK

§ 476. Organization of Indian tribes; constitution and

bylaws and amendment thereof; special elec-

tion

(a) Adoption; effective date

Any Indian tribe shall have the right to organize for

its common welfare, and may adopt an appropriate

constitution and bylaws, and any amendments thereto,

which shall become effective when—

(1) ratified by a majority vote of the adult

members of the tribe or tribes at a special

Ta

election authorized and called by the Secre-

tary under such rules and regulations as the

Secretary may prescribe; and

(2) approved by the Secretary pursuant to

subsection (d) of this section.

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(e) Vested rights and powers; advisement of pre-

submitted budget estimates

In addition to all powers vested in any Indian tribe or

tribal council by existing law, the constitution adopted

by said tribe shall also vest in such tribe or its tribal

council the following rights and powers: To employ legal

counsel; to prevent the sale, disposition, lease, or en-

cumbrance of tribal lands, interests in lands, or other

tribal assets without the consent of the tribe; and to

negotiate with the Federal, State, and local govern-

ments. The Secretary shall advise such tribe or its

tribal council of all appropriation estimates or Federal

projects for the benefit of the tribe prior to the

submission of such estimates to the Office of Manage-

ment and Budget and the Congress.

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§ 477. Incorporation of Indian tribes; charter;

ratification by election

The Secretary of the Interior may, upon petition by

any tribe, issue a charter of incorporation to such tribe:

Provided, That such charter shall not become operative

8a

until ratified by the governing body of such tribe. Such

charter may convey to the incorporated tribe the power

to purchase, take by gift, or bequest, or otherwise, own,

hold, manage, operate, and dispose of property of every

description, real and personal, including the power to

purchase restricted Indian lands and to issue in

exchange therefor interests in corporate property, and

such further powers as may be incidental to the conduct

of corporate business, not inconsistent with law; but no

authority shall be granted to sell, mortgage, or lease for

a period exceeding twenty-five years any trust or

restricted lands included in the limits of the reservation.

Any charter so issued shall not be revoked or

surrendered except by Act of Congress.

§ 478. Acceptance optional

This Act shall not apply to any reservation wherein

a majority of the adult Indians, voting at a special

election duly called by the Secretary of the Interior,

shall vote against its application. It shall be the duty of

the Secretary of the Interior, within one year after June

18, 1934, to call such an election, which election shall be

held by secret ballot upon thirty days' notice.

§$ 479. Definitions

The term "Indian" as used in this Act shall include all

persons of Indian descent who are members of any

recognized Indian tribe now under Federal jurisdiction,

and all persons who are descendants of such members

who were, on June 1, 1934, residing within the present

boundaries of any Indian reservation, and shall further

include all other persons of one-half or more Indian

9a

blood. For the purposes of this Act, Eskimos and other

aboriginal peoples of Alaska shall be considered Indians.

The term “tribe" wherever used in this Act shall be

construed to refer to any Indian tribe, organized band,

pueblo, or the Indians residing on one reservation. The

words "adult Indians" wherever used in this Act shall be

construed to refer to Indians who have attained the age

of twenty-one years.